State v. Coleman

[Cite as State v. Coleman, 2022-Ohio-4029.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-210600
TRIAL NO. 21CRB-16674
Plaintiff-Appellee, :
: O P I N I O N.
VS.
:
TISAAN COLEMAN, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 14, 2022
Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting
Attorney, and Rebecca Barnett, Assistant City Prosecutor, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Lora Peters, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant Tisaan Coleman appeals the judgment of the
Hamilton County Municipal Court convicting him of aggravated menacing, a
misdemeanor of the first degree. Coleman argues that his conviction is based on
insufficient evidence and is against the manifest weight of the evidence, and he also
challenges the trial court’s imposition of court costs. For the reasons that follow, we
affirm the judgment of the trial court.
Facts and Procedure
{¶2} On September 15, 2021, Coleman was charged with aggravated
menacing under R.C. 2903.21 for threatening his neighbor with a firearm. On
September 30, 2021, a bench trial was held. At trial, Demetrius Peterson, Coleman’s
neighbor, testified that he had been sitting outside of his apartment building with his
daughter and her boyfriend. Peterson continued to sit outside for a few minutes after
his daughter and her boyfriend went inside to get ready for work. He testified that
when he went back inside the building, he saw Coleman standing in front of his
daughter and her boyfriend pointing a gun at them. Peterson testified that, at this
point, he walked up the stairs to his apartment on the third floor to call the police.
Then, Coleman, “ran behind [him] up the steps” and while pointing a gun at him said,
“no motherfucker, you can get some too.” Peterson then went inside his apartment
and called the police. Peterson testified that Coleman’s sister came into the building
after the incident had occurred to “get [Coleman] and take him away.”
{¶3} Cincinnati Police Officer Bittinger testified that Peterson was “very
nervous and agitated and seemed like he may have been a bit frightened,” when police
arrived. Bittinger testified that Peterson recounted to him that Coleman said, “I’ll
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OHIO FIRST DISTRICT COURT OF APPEALS
shoot you.” Bittinger testified that he knocked on Coleman’s door, but there was no
answer. Coleman’s apartment was not searched, and a firearm was not found.
{¶4} Coleman testified in his own defense, and stated that he has Asperger’s
syndrome, and often has difficulty communicating with others. Coleman testified that
on the day of the incident, he left his apartment to walk his dog and check his mail.
On his way back to into the building, Coleman walked past Peterson and then, once
inside, “said some short words” to Peterson’s daughter’s boyfriend as they passed on
the stairs “about some taunts that w[ere] made a week earlier” during an apartment
building inspection. Specifically, Coleman testified that “I asked him if he said
something about me. He said he didn’t. I walked up the steps.” Coleman elaborated,
“I asked him if he had something – I asked him what he had against me. I don’t know.
I guess from what another person told me * * * I’m a topic of conversation, and I asked
why. Other than that, it was cool. We went past each other.” Coleman denied
threatening anyone with a gun, testifying, “I don’t carry guns. I don’t do things like
that. It’s not me. I don’t like to be there. I have a really hard time being loud. It’s
stressful.” Coleman testified that although he “heard somebody,” he was not sure if
the police officer knocked on his door because he was in his bedroom watching
television.
{¶5} Coleman’s sister, Kai Coleman, testified for the defense. She testified
that she was in Coleman’s apartment that day and sat by his open door while he went
to check his mail. She denied hearing any interaction between her brother and anyone
else in the hallway. Kai testified that she had never seen Coleman interact with
Peterson before, and that she had never seen Coleman with a gun. Kai testified that
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OHIO FIRST DISTRICT COURT OF APPEALS
she did not answer the door when the police officer knocked because she was in the
bathroom.
{¶6} A long-time neighbor and former building maintenance manager,
Randy Stoughton, also testified for the defense. He stated that he often hears
arguments in the building’s hallways, but that he did not recall hearing an argument
or any threats on the day of the incident, though he added it is often difficult for him
to hear over the noise of his television. Stoughton testified that he had never seen
Coleman with a gun.
{¶7} After hearing this testimony, the court found Coleman guilty as charged.
Coleman was sentenced to 180 days in jail, with credit for 34 days already served.
Coleman timely appealed, and the court granted a motion to stay the sentence pending
the appeal.
Sufficiency and Weight of the Evidence
{¶8} In Coleman’s first assignment of error, he contends that his conviction
was based on insufficient evidence and runs counter to the manifest weight of the
evidence.
{¶9} When this court reviews a challenge to the sufficiency of the evidence,
we ask “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. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus. Sufficiency review “raises a question
of law, the resolution of which does not allow the court to weigh the evidence.” State
v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983), paragraph two of the
syllabus; see State v. Guthrie, 1st Dist. Hamilton No. C-180661, 2020-Ohio-501, ¶ 7.
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OHIO FIRST DISTRICT COURT OF APPEALS
Essentially, we ask “whether the evidence against a defendant, if believed, supports
the conviction.” (Emphasis sic.) State v. Jones, 166 Ohio St.3d 85, 2021-Ohio-3311,
182 N.E.3d 1161, ¶ 16.
{¶10} A manifest-weight argument on the other hand, “challenges the
believability of the evidence.” State v. Staley, 1st Dist. Hamilton Nos. C-200270,
C-200271 and C-200272, 2021-Ohio-3086, ¶ 10. When we review a challenge to the
manifest weight of the evidence, we must “review the entire record, weigh the
evidence, consider the credibility of the witnesses, and determine whether the trier of
fact clearly lost its way and created a manifest miscarriage of justice.” State v. Powell,
1st Dist. Hamilton No. C-190508, 2020-Ohio-4283, ¶ 16, citing State v. Thompkins,
78 Ohio St.3d 380, 388, 678 N.E.2d 541 (1997). The court should only reverse the
conviction and grant a new trial in “exceptional case[s] in which the evidence weighs
heavily against the conviction.” Martin at paragraph three of the syllabus. This is
because “the weight to be given the evidence and credibility of the witnesses are
primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230, 231, 227
N.E.2d 212 (1967).
{¶11} Coleman was convicted of aggravated menacing under R.C. 2903.21(A),
which provides: “[n]o person shall knowingly cause another to believe that the
offender will cause serious physical harm to the person or property of the other
person.” A person acts knowingly “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). As relevant here, serious physical harm to persons includes physical harm
that “carries a substantial risk of death,” or involves some incapacity, disfigurement,
or acute pain. R.C. 2901.01(A)(5)(b) – (e).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} If believed, Peterson’s testimony established that Coleman threatened
multiple individuals in his apartment building with a firearm, and followed Peterson
to his unit, before pointing a firearm at him and delivering a verbal threat. Peterson
testified that after Coleman threatened him with a gun, he immediately went into his
apartment and called 911. He stated, “[W]e stay next door. I can’t even walk out the
door. I wouldn’t feel safe walking out that door.” Peterson’s testimony, coupled with
Bittinger’s testimony that Peterson was “very nervous and agitated and seemed like he
may have been a bit frightened” was sufficient to demonstrate that Peterson feared
Coleman was going to cause him serious physical harm. Thus, Coleman’s conviction
was supported by sufficient evidence. See, e.g., In re Shad, 1st Dist. Hamilton Nos.
C-080965 and C-081174, 2009-Ohio-3611, ¶ 17 (holding conviction for aggravated
menacing was based on sufficient evidence where the victim testified that the
defendant pointed a gun at him, and the victim was afraid he would be shot).
{¶13} Coleman primarily makes a manifest-weight argument because his
focus is on Peterson’s lack of credibility. He contends that because Peterson’s
testimony had some slight inconsistencies, it was not credible, and the court should
not have believed it.
{¶14} The trial court was confronted with conflicting evidence in this case.
And to be sure, Peterson’s testimony certainly had some inconsistencies.
Nevertheless, the court chose to believe Peterson. See, e.g., State v. Carson, 1st Dist.
Hamilton No. C-180336, 2019-Ohio-4550, ¶ 19-20 (holding that the conviction was
not against the manifest weight of the evidence even though there was conflicting
testimony about the interaction, the defendant denied owning a gun, and a gun was
not found, because credibility determinations are primarily for the trier of the facts).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} In handing down its guilty verdict, the court stated that “[t]he officer
absolutely substantiated the prosecuting witness’s state of fear and belief of being
caused harm.” The court went on to state that the motive “was actually revealed by
Mr. Coleman who said that he felt like he had been taunted in the past * * * and
someone had told [him] that the daughter’s boyfriend had made some comments on a
recent inspection.” The court did not give any weight to Stoughton’s testimony that
he did not recall hearing any threats that day because the court found it difficult to
hear Coleman when he testified even though the court had told him to speak louder.
The court stated, “You do not have to yell a threat in order to utter a threat.” The court
further found that if Coleman had not done anything, he would have opened the door
when the police officer knocked on it.
{¶16} While we certainly weigh the evidence and consider witness credibility
when we review for manifest weight, the trier of facts—the judge in this case—was in
the best position to assess the credibility of the witnesses. See State v. Landrum, 1st
Dist. Hamilton No. C-150718, 2016-Ohio-5666, ¶ 17 (affirming aggravated-menacing
conviction under manifest-weight review and holding that “The trial court was free to
accept the victim’s version of the events and reject [the defendant’s] story * * *
especially where [the defendant] admitted to being angry upon seeing the victim, and
the victim’s version was corroborated by another witness at the scene.”). This is not
one of those exceptional cases in which the evidence weighs heavily against the
conviction. And we cannot say that that the trial court clearly lost its way and created
a manifest miscarriage of justice. Accordingly, the first assignment of error is
overruled.
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OHIO FIRST DISTRICT COURT OF APPEALS
Court Costs
{¶17} In Coleman’s second assignment of error, he contends that the court
erred by imposing court costs in the sentencing entry, without imposing them at the
sentencing hearing. In support of this argument, Coleman cites to State v. Davis, 1st
Dist. Hamilton Nos. C-200249, C-200250, C-200251 and C-200252, 2021-Ohio-
2954, for the proposition that a reviewing court should reverse the order to pay court
costs where the trial court fails to impose them at the sentencing hearing. The state
concedes this assignment. While our review of the record confirms that the trial court
failed to impose costs at the sentencing hearing, a remand order is not required.
{¶18} We recently explained in State v. Fissel, 1st Dist. Hamilton No.
C-210483, 2022-Ohio-1856, ¶ 17, that “To the extent that Davis is inconsistent with
[State v.] Beasley [153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028,] and R.C.
2947.23(C), the latter control.” See Beasley at ¶ 265 (explaining that the amendments
to R.C. 2947.23(C) allow a defendant to file a motion to waive costs without appellate
court intervention). R.C. 2947.23(C) provides that, “The court retains jurisdiction to
waive, suspend, or modify the payment of the costs of prosecution, * * * at the time of
sentencing or at any time thereafter.” (Emphasis sic.) Fissell at ¶ 17, quoting R.C.
2947.23(C). Thus, Coleman does not need this court to remand the matter to the trial
court and can instead file a motion to waive court costs. The second assignment of
error is overruled.
Conclusion
{¶19} In light of the foregoing analysis, we overrule Coleman’s first and second
assignments of error and affirm the judgment of the trial court.
Judgment affirmed.
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OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, P. J., and BOCK, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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