State v. Brummett ( 2024 )

[Cite as State v. Brummett, 2024-Ohio-2211.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2023-10-085
: OPINION
- vs - 6/10/2024
:
GILBERT LEE BRUMMETT II, :
Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 23CR40123
David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant
Prosecuting Attorney, for appellee.
James F. Maus, for appellant.
S. POWELL, P.J.
{¶ 1} Appellant, Gilbert Lee Brummett II, appeals from his conviction in the
Warren County Court of Common Pleas after the trial court found him guilty following a
bench trial of one count of second-degree felony felonious assault with attached three-
year and five-year firearm specifications. For the reasons outlined below, we affirm.
Warren CA2023-10-085
{¶ 2} On February 6, 2023, the Warren County Grand Jury returned an indictment
charging Brummett with one count of felonious assault in violation of R.C. 2903.11(A)(2),
a second-degree felony pursuant to R.C. 2903.11(D)(1)(a). The charge included both
three-year and five-year firearm specifications in accordance with R.C. 2941.145(A) and
2941.146(A), respectively.1 The indictment followed an incident that took place one
month earlier on January 6, 2023.
{¶ 3} During this incident, it was alleged Brummett had stalked and waited several
hours for the victim, Jason Roberts, to get off work at the Frisch's restaurant located near
the King's Island amusement park in Mason, Warren County, Ohio. 2 Thereafter, upon
Roberts leaving work to go home for the evening, it was alleged that Brummett, driving a
black minivan, followed closely behind Roberts' vehicle while both he and Roberts were
traveling southbound on Kings Mills Road in Mason at speeds of 40 to 50 mph in the 25
mph speed zone. It was alleged that Brummett then, from approximately ten feet,
knowingly attempted to cause physical harm to Roberts by shooting a firearm at Roberts
just after he and Roberts both turned left onto Center Drive located behind a UDF store
in Mason. Terry Kidd, a pedestrian walking his dog, observed the two vehicles traveling
at a high rate of speed in close proximity to each other. Kidd saw an arm come out of the
driver's window of the trailing vehicle and point forward in the direction of the vehicle
ahead, then heard a gunshot. This incident was alleged to have occurred after Brummett
discovered Roberts had, just the day before, kissed and "made out" with Brummett's
1. The indictment included several other charges. These charges included, among others, one count of
fourth-degree felony improperly handling firearms in a motor vehicle and two counts of first-degree
misdemeanor operating a vehicle while under the influence of alcohol. However, in this appeal, Brummett
challenges only his conviction for the single count of second-degree felony felonious assault with its
attached three-year and five-year firearm specifications. We will limit our discussion accordingly.
2. Except for Brummett, this court has changed the names of the other individuals involved in this case.
This includes the victim whom Brummett was alleged to have shot at, Roberts.
-2-
Warren CA2023-10-085
purported fiancé and mother of Brummett's children.
{¶ 4} On February 8, 2023, Brummett was arraigned and entered a plea of not
guilty to the felonious assault charge and its attached three- and five-year firearm
specifications. The matter ultimately proceeded to a one-day bench trial held on August
10, 2023. The trial court heard testimony and accepted evidence from a total of three
witnesses offered by the state. This included testimony from the alleged victim, Roberts,
and an eyewitness to the shooting, Tony King. Brummett did not offer any witnesses in
his defense. Upon the conclusion of the trial, the court found Brummett guilty of both the
charged felonious assault offense and its attached three- and five-year firearm
specifications. In so doing, the trial court stated, in pertinent part, the following:
So, here's what I know Mr. Brummett. I don't even know what
all that was with your girlfriend, fiancé, significant other,
mother of your children⎯I don't even know what that was all
about, but I know that you went to his work. I know that you
were in the parking lot of his workplace. I know that you
initially followed and then chased Mr. [Roberts] in a vehicle. I
know that you had a gun. I know that you fired a gun. The
only thing for me to determine which is really the only thing in
dispute is whether or not you knew that the act of firing that
gun would cause the result of causing physical harm or
attempting to cause physical harm to Mr. [Roberts]. I think
that the circumstantial evidence does lead me to that
conclusion, beyond a reasonable doubt.
{¶ 5} On September 21, 2023, the trial court held a sentencing hearing where it
sentenced Brummett to serve an indefinite sentence of 10 to 11 years in prison, eight
years of which was mandatory, less 258 days of jail-time credit. The trial court also
ordered Brummett to pay a mandatory $525 fine and court costs and suspended
Brummett's driver's license for a period of one year. The following month, on October 20,
2023, Brummett filed a timely notice of appeal from his conviction. Following briefing from
both parties, oral argument was held before this court on April 15, 2024. Brummett's
appeal now properly before this court for decision, Brummett has raised two assignments
-3-
Warren CA2023-10-085
of error for review.
{¶ 6} Assignment of Error No. 1:
{¶ 7} APPELLANT-DEFENDANT'S CONVICTION FOR FELONIOUS ASSAULT
AND THE THREE AND FIVE-YEAR FIREARM SPECIFICATIONS ARE BASED ON
INSUFFICIENT EVIDENCE.
{¶ 8} In his first assignment of error, Brummett argues the trial court's decision
finding him guilty of the felonious assault offense, along with its attached firearm
specifications, was not supported by sufficient evidence. We disagree.
{¶ 9} A claim challenging the sufficiency of the evidence invokes a due process
concern and raises the question whether the evidence is legally sufficient to support the
verdict as a matter of law. State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, ¶ 165,
citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Such a challenge "requires a
determination as to whether the state has met its burden of production at trial." State v.
Boles, 12th Dist. Brown No. CA2012-06-012, 2013-Ohio-5202, ¶ 34. "The relevant inquiry
is 'whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven beyond
a reasonable doubt.'" State v. Roper, 12th Dist. Clermont No. CA2021-05-019, 2022-
Ohio-244, ¶ 39, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the
syllabus. Therefore, "[i]n a sufficiency of the evidence inquiry, appellate courts do not
assess whether the prosecution's evidence is to be believed but whether, if believed, the
evidence supports the conviction." State v. Carter, 8th Dist. Cuyahoga No. 104653, 2018-
Ohio-29, ¶ 7, citing State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 79-80.
This court merely determines whether there exists any evidence in the record that the
trier of fact could have believed, construing all evidence in favor of the state, to prove the
elements of the crime beyond a reasonable doubt. State v. Ell, 12th Dist. Fayette No.
-4-
Warren CA2023-10-085
CA2023-03-006, 2023-Ohio-4583, ¶ 16.
{¶ 10} As noted above, the trial court found Brummett guilty of one count of
felonious assault in violation of R.C. 2903.11(A)(2), a second-degree felony pursuant to
R.C. 2903.11(D)(1)(a), with attached three- and five-year firearm specifications in
accordance with R.C. 2941.145(A) and 2941.146(A), respectively. Pursuant to
2903.11(A)(2), no person shall "knowingly" cause or attempt to cause "physical harm to
another or to another's unborn by means of a deadly weapon or dangerous ordnance."
Thus, for the trial court to find Brummett guilty of felonious assault in violation of R.C.
2903.11(A)(2), the state was required to prove, beyond a reasonable doubt, that
Brummett "knowingly" caused or attempted to cause "physical harm" to Roberts "by
means of a deadly weapon or dangerous ordnance." "A person acts knowingly,
regardless of purpose, when the person is aware that the person's conduct will probably
cause a certain result or will probably be of a certain nature." R.C. 2901.22(B).
{¶ 11} The phrase "physical harm to persons" is defined by R.C. 2901.01(A)(3) to
mean "any injury, illness, or other physiological impairment, regardless of its gravity or
duration." R.C. 2923.11(A) defines the term "deadly weapon" to mean "any instrument,
device, or thing capable of inflicting death, and designed or specially adapted for use as
a weapon, or possessed, carried, or used as a weapon." It is well established that a
firearm, like the Glock 17 handgun used by Brummett in this case, is a "deadly weapon"
as that term is defined by R.C. 2923.11(A). See State v. Murphy, 2d Dist. Montgomery
No. 29559, 2023-Ohio-3276, ¶ 45 (noting that "[i]t is well established that a firearm is a
'deadly weapon'"); see also State v. Hunt, 8th Dist. Cuyahoga No. 111892, 2023-Ohio-
1977, ¶ 37 (noting the "undisputed evidence" was that a Glock 19 handgun is a "deadly
weapon").
{¶ 12} In this case, Brummett does not dispute that he was in possession of a
-5-
Warren CA2023-10-085
firearm on the night in question, that he followed Roberts in his vehicle at a high rate of
speed as was alleged, or even that he "fired the weapon" during this chase. What
Brummett does dispute, and vigorously so, is whether the state proved beyond a
reasonable doubt that he "knowingly caused or attempted to cause bodily harm" to
Roberts. This is because, according to Brummett, the record is devoid of any evidence
indicating his firing of his gun while attempting to chase down Roberts was "anything more
than a warning shot." That is to say, Brummet argues that "[w]ithout any evidence of
where the gun was aimed or pointed when fired, the fact-finder may not assume it was
fired with the intent to cause bodily harm at the alleged victim," Roberts, thereby requiring
his conviction for felonious assault be reversed. Brummett cites two cases in support of
this position: State v. Mills, 62 Ohio St.3d 357 (1992); and In re R.W., 8th Dist. Cuyahoga
No. 91923, 2009-Ohio-1255.
{¶ 13} In Mills, the Ohio Supreme Court was tasked with determining, among other
things, whether there was sufficient evidence to support the defendant's conviction for
three counts of felonious assault in violation of R.C. 2903.11(A)(2). Mills at 368-369. The
charges arose after it was alleged the defendant had either caused or attempted to cause
physical harm to three bank tellers during a bank robbery in Cincinnati, Ohio.
{¶ 14} Upon reviewing the evidence, the Ohio Supreme Court upheld the
defendant's conviction for just two of those three charges. Id. at 369. In so doing, the
Ohio Supreme Court noted that while there was sufficient evidence to sustain the jury's
verdict finding the defendant guilty of felonious assault when he fired his gun directly at
the first teller almost striking him and then, after shooting and killing a different teller, held
his gun directly to the second teller's head causing her to believe that he would shoot her
next, the evidence was insufficient to sustain the defendant's felonious assault conviction
for the third teller because:
-6-
Warren CA2023-10-085
When the initial shot was fired, [the third teller] was standing
near a desk area located behind the teller counter and off to
one side. She was not in the line of fire when the gunman
entered and hid underneath her desk during the remainder of
the robbery. The evidence is insufficient to support the finding
that [the defendant] knowingly attempted to physically harm
[the third teller].
Id.
{¶ 15} In In re R.W., the accused, a 16-year-old boy, was adjudicated a delinquent
child for committing acts that would be charged as two counts of felonious assault in
violation of R.C. 2903.11(A)(2) if committed by an adult. R.W., 2009-Ohio-1255 at ¶ 7.
The adjudication arose after it was alleged the juvenile responded "f--- you" and then
"pointed a gun straight up in the air and fired four or five times" after being told by a
neighbor to get out of her yard and away from her mother's first-floor bedroom window.
There was no dispute that the juvenile fired those four or five shots while the neighbor's
three-year old niece was standing by a window in the upstairs hallway. Id. at ¶ 3. The
juvenile appealed challenging both the sufficiency and manifest weight of the evidence
introduced to support his adjudication. Id. at ¶ 8.
{¶ 16} Upon review of the evidence, the appellate court agreed that the juvenile's
adjudication as a delinquent child was not supported by sufficient evidence. The
appellate court reached this decision upon finding the facts did not demonstrate that the
juvenile "knowingly attempted to cause physical harm to either [the neighbor or the
neighbor's three-year-old niece], the alleged victims, when he pointed his gun straight in
the air and fired several shots." Id. at ¶ 19. In so holding, the appellate court stated:
It is common knowledge that a firearm is an inherently
dangerous instrumentality, use of which is reasonably likely to
produce serious injury or death. This court and others have
consistently held that shooting a gun in a place where there is
a risk of injury to one or more persons supports the inference
that the offender acted knowingly. * * * But in this case, both
[the neighbor and her niece] were in the house when [the
-7-
Warren CA2023-10-085
juvenile] fired. Although bullets shot in the air will obviously
come down somewhere, [the neighbor and her niece] could
not have been injured when the bullets came down. As there
was no risk of injury to the victims alleged in the indictment,
[the juvenile] did not knowingly attempt to cause them
physical harm when he fired his gun into the air.
(Internal citations deleted.) Id. at ¶ 20-21.
{¶ 17} Brummett argues the facts in this case are analogous to the facts presented
in Mills and In re R.W. because all three cases involve incidents where the alleged victim
or victims were never put directly in the line of fire. However, despite Brummett's claims,
we find the facts in both Mills and In re R.W. readily distinguishable from the case at bar.
{¶ 18} Unlike the facts in this case, the facts in Mills and In re R.W. were not in
dispute. For example, in Mills, there was no dispute that the defendant neither pointed
nor fired his gun in the direction of the third teller, thereby leading the Ohio Supreme Court
to reverse on sufficiency of the evidence grounds the defendant's felonious assault
conviction as it related to that teller. Similarly, in In re R.W., there was no dispute that the
juvenile never pointed or fired his gun at either of the two alleged victims. It was instead
undisputed that the juvenile pointed his gun straight up into the air before firing off four or
five rounds. Given these facts, the appellate court reversed the juvenile's adjudication as
a delinquent child for lack of sufficient evidence upon finding the juvenile did not knowingly
cause or attempt to cause physical harm to either of the two alleged victims by firing his
gun into the air.
{¶ 19} Here, unlike the facts in Mills and In re R.W., one central fact is very much
in dispute. That being, whether the state proved beyond a reasonable doubt that
Brummett was pointing his firearm at Roberts when he fired his gun, thereby establishing
that he knowingly attempted to cause physical harm to Roberts as alleged in the
indictment, or whether Brummett was instead pointing his firearm straight up in the air so
-8-
Warren CA2023-10-085
as to fire off a so-called "warning shot."
{¶ 20} Upon review of the record, including a lengthy review of the testimony
offered by both the alleged victim, Roberts, and the eyewitness to the shooting, King, we
find that when viewing the evidence in a light most favorable to the state any rational trier
of fact could have found the essential elements of felonious assault in violation of R.C.
2903.11(A)(2) proven beyond a reasonable doubt. This includes a finding that Brummett
was pointing his gun at Roberts when he fired his weapon rather than Brummett simply
pointing his gun straight up into the air and pulling the trigger. The eyewitness to the
shooting, King, specifically testified that he saw Brummett put his arm out his van's driver's
side window while holding a gun in his hand "pointing forward towards, you know, the
same direction he was traveling" as he followed closing behind Roberts just prior to King
hearing a gunshot ring out.
{¶ 21} The above evidence, if believed, was sufficient to establish Brummett
knowingly attempted to cause physical harm to Roberts beyond a reasonable doubt. This
is because, as noted by this court and others, "'an attempt to cause physical harm may
be inferred from the act of firing a gun in the direction of a person.'" State v. Hubbard,
12th Dist. Warren No. CA2023-01-014, 2024-Ohio-1315, ¶ 106, quoting State v. Knowles,
10th Dist. Franklin No. 16AP-345, 2016-Ohio-8540, ¶ 28; see State v. Markley, 3d Dist.
Marion No. 9-14-39, 2015-Ohio-1890, ¶ 41 ("firing a gun in a person's direction is
sufficient evidence of felonious assault"); see, e.g., State v. Robinson, 12th Dist. Fayette
No. CA2005-11-029, 2007-Ohio-354, ¶ 20 (affirming appellant's felonious assault
conviction where the state introduced evidence indicating appellant fired a gun at another
occupied vehicle, which, if believed, was sufficient to prove beyond a reasonable doubt
that appellant "knowingly engaged" in conduct that, if successful, would have resulted in
physical harm to another). Brummett's argument otherwise lacks merit.
-9-
Warren CA2023-10-085
{¶ 22} In so holding, we note that in his appellate brief Brummett also appears to
be arguing that because the eyewitness to the shooting, King, did not actually see
Brummett fire his weapon that the state did not, and could not, prove beyond a reasonable
doubt that he knowingly attempted to cause physical harm to Roberts. This argument is
flawed.
{¶ 23} Brummett's argument presupposes that the state was required to introduce
direct eyewitness testimony that he was pointing his gun at Roberts when he pulled the
trigger to prove beyond a reasonable doubt that he knowingly attempted to cause physical
harm to Roberts. But, as is well established, "[a]t trial, any fact, including the perpetrator's
identity, may be proven by either direct or circumstantial evidence." State v. Jordan, 8th
Dist. Cuyahoga No. 112506, 2024-Ohio-972, ¶ 24. This necessarily includes whether the
defendant acted knowingly. State v. Jordan, Slip Opinion No. 2023-Ohio-3800, ¶ 26 ("the
state can prove knowledge through either direct or circumstantial evidence"); see, e.g.,
State v. Erdmann, 12th Dist. Clermont Nos. CA2018-06-043 and CA2018-06-044, 2019-
Ohio-261, ¶ 30 (evidence presented by the state, albeit circumstantial, was sufficient to
prove appellant "acted knowingly⎯not accidentally⎯when he kicked [a police officer] in
the face").
{¶ 24} "Circumstantial evidence is the proof of facts by direct evidence from which
the trier of fact may infer or derive by reasoning other facts." State v. Raleigh, 12th Dist.
Clermont Nos. CA2009-08-046 and CA2009-08-047, 2010-Ohio-2966, ¶ 46. Therefore,
rather than just through direct eyewitness testimony as Brummett suggests within his
appellate brief, "[t]o determine whether [the] appellant acted knowingly, [the appellant's]
state of mind must be determined from the totality of the circumstances surrounding the
crime." State v. Johns, 12th Dist. Clermont No. CA2003-07-055, 2004-Ohio-3671, ¶ 24.
This includes consideration of both the direct evidence and circumstantial evidence
- 10 -
Warren CA2023-10-085
presented at trial. To the extent Brummett claims otherwise, such argument lacks merit.
{¶ 25} Just as it is well established that any fact may be proven by either direct or
circumstantial evidence at trial, it is equally well established that circumstantial evidence
has the same probative value as direct evidence. State v. Scott, 171 Ohio St.3d 651,
2022-Ohio-4277, ¶ 21; State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph one of the
syllabus ("[c]ircumstantial evidence and direct evidence inherently possess the same
probative value"). There are in fact some instances where certain facts can be
established only through circumstantial evidence. State v. Trafton, 12th Dist. Warren No.
CA2022-06-040, 2023-Ohio-122, ¶ 21. For example, the fact that an infant was healthy
until being left alone with the defendant is circumstantial evidence that the defendant
abused the infant while the infant was in the defendant's custody. State v. Evans, 12th
Dist. Warren No. CA2017-04-049, 2018-Ohio-916, ¶ 65. "'[C]ircumstantial evidence is
sufficient to sustain a conviction if that evidence would convince the average mind of the
defendant's guilt beyond a reasonable doubt.'" State v. McKnight, 107 Ohio St.3d 101,
2005-Ohio-6046, ¶ 75, quoting State v. Heinish, 50 Ohio St.3d 231, 238 (1990).
{¶ 26} The evidence presented by the state in this case, albeit largely
circumstantial given the lack of any eyewitnesses who saw Brummett fire his weapon,
does just that. "A conviction based on purely circumstantial evidence is no less sound
than a conviction based on direct evidence." State v. Ostermeyer, 12th Dist. Fayette No.
CA2021-01-002, 2021-Ohio-3781, ¶ 41. Therefore, to the extent Brummett argues that
the state did not, and could not, prove beyond a reasonable doubt that he knowingly
attempted to cause physical harm to Roberts because the eyewitness to the shooting,
King did not actually see him fire his weapon, such argument is meritless. Accordingly,
finding no merit to any of the arguments raised by Brummett herein, Brummett's first
assignment of error lacks merit and is overruled.
- 11 -
Warren CA2023-10-085
{¶ 27} Assignment of Error No. 2:
{¶ 28} APPELLANT-DEFENDANT'S CONVICTION FOR FELONIOUS ASSAULT
AND THE THREE-YEAR AND FIVE-YEAR SPECIFICATIONS ARE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 29} In his second assignment of error, Brummet argues the trial court's decision
finding him guilty of the charged felonious assault offense and its attached three- and five-
year firearm specifications was against the manifest weight of the evidence. We disagree.
{¶ 30} "[A] manifest-weight-of-the-evidence standard of review applies to the
state's burden of persuasion." State v. Messenger, 171 Ohio St.3d 227, 2022-Ohio-4562,
¶ 26. "To determine whether a conviction is against the manifest weight of the evidence,
this court must look at the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses, and determine whether in resolving
the conflicts in the evidence, the trier of fact clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered." State v. Lewis, 12th Dist. Butler No. CA2019-07-128, 2020-Ohio-3762, ¶ 18,
citing State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, ¶ 168.
{¶ 31} But, even then, a determination regarding the witnesses' credibility is
primarily for the trier of fact to decide. State v. Baker, 12th Dist. Butler No. CA2019-08-
146, 2020-Ohio-2882, ¶ 30, citing State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph
one of the syllabus. Therefore, given that it is primarily the trier of fact who decides
witness credibility, this court will overturn a conviction on manifest-weight grounds "only
in extraordinary circumstances when the evidence presented at trial weighs heavily in
favor of acquittal." State v. Kaufhold, 12th Dist. Butler No. CA2019-09-148, 2020-Ohio-
3835, ¶ 10. When reviewing a jury verdict, this may occur "only when there is unanimous
disagreement with the verdict." State v. Marcum, 12th Dist. Preble No. CA2015-04-011,
- 12 -
Warren CA2023-10-085
2016-Ohio-263, ¶ 10, citing State v. Gibbs, 134 Ohio App.3d 247, 255 (12th Dist.1999).
However, "convictions resulting from a bench trial may be reversed by a majority of the
panel." State v. Williams, 8th Dist. Cuyahoga No. 107249, 2019-Ohio-992, ¶ 12.
{¶ 32} To support this assignment of error, Brummett argues his conviction was
against the manifest weight of the evidence because the trial court "stated it was relying
on circumstantial evidence, rather than the direct eye witness testimony" to find him guilty.
However, while it may be true that the trial court did make mention that it was the
"circumstantial evidence" presented in this case that ultimately led it to find Brummett
knowingly attempted to cause physical harm to Roberts by pointing his weapon at Roberts
and pulling the trigger, the significance that Brummett places on the trial court's statement
is misplaced. That is to say, notwithstanding Brummett's assertion to the contrary,
nowhere within the record did the trial court find the eyewitness testimony offered by King
not credible and not worthy of belief.
{¶ 33} This includes King's testimony that he saw Brummett put his arm out his
van's driver's side window with a gun in his hand "pointing forward towards, you know,
the same direction he was traveling" while following closing behind Roberts in his SUV
just prior to hearing a gunshot. This also includes King's testimony that from "a couple
hundred yards" away he "saw those two vehicles traveling again, at a high rate of speed,
brief stop, turn right, turn left and then an arm come out the window and a gunshot being
fired." This is in addition to King's testimony that, "To be completely honest, as I
remember it, as I'm just being completely honest⎯as I remember, I remember forward,"
when asked by Brummett's trial counsel if he was "positive" that he saw Brummett holding
a gun out of his van's driver's side window "pointed forward" at Roberts rather than up or
down.
{¶ 34} Given the trial court's verdict in this case, the trial court clearly found some,
- 13 -
Warren CA2023-10-085
if not all, of King's testimony set forth above reliable and dependable so as to be
considered trustworthy. This includes King's testimony elicited by Brummett's trial
counsel wherein King testified that he was "positive" he saw Brummett holding a gun out
of his van's driver's side window "pointed forward" at Roberts rather than up or down.
This was not error.
{¶ 35} "[A]s the trier of fact, the trial court was best able to view the witnesses and
observe their demeanor, gestures, and voice inflections, and use these observations to
judge the credibility of witnesses and the weight to be given the evidence." State v.
Himes, 12th Dist. Butler No. CA2023-03-030, 2023-Ohio-3561, ¶ 27. This necessarily
includes King, the eyewitness to the shooting, as well as the alleged victim, Roberts. "A
conviction is not against the manifest weight of the evidence simply because the trier of
fact believed the testimony offered by the prosecution." Baker, 2020-Ohio-2882 at ¶ 31.
This holds true even in cases like this where the defendant is being tried for felonious
assault in violation of R.C. 2903.11(A)(2). See State v. Brooks, 1st Dist. Hamilton No. C-
220102, 2023-Ohio-846, ¶ 23-27 (appellant's felonious assault conviction was not against
the manifest weight of the evidence where the "trial court heard all of the testimony and
found the victims' testimony to be more credible then the alibi testimony of [appellant's]
father"). To the extent Brummett suggests otherwise, such argument is meritless.
Therefore, finding no merit to Brummett's arguments raised herein, Brumett's second
assignment of error also lacks merit and is overruled.
{¶ 36} Judgment affirmed.
M. POWELL and BYRNE, JJ., concur.
- 14 -