State v. Dewalt

[Cite as State v. Dewalt, 2020-Ohio-5504.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 2020CA00031
ADAM KEITH DEWALT :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County
Court of Common Pleas, Case No. 2019-
CR-1507
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 30, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO GEORGE URBAN
Stark County Prosecutor 116 Cleveland Avenue North
110 Central Plaza South, 5th Fl. Suite 808
Canton, OH 44702 Canton, OH 44702
[Cite as State v. Dewalt, 2020-Ohio-5504.]
Gwin, P.J.
{¶1} Defendant-appellant Adam Keith DeWalt [“DeWalt”] appeals his convictions
after a jury trial in the Stark County Court of Common Pleas.
Facts and Procedural History
{¶2} DeWalt was charged by superseding Indictment filed December 12, 2019
with Felonious Assault, 3 counts in violation of R.C. 2903.11(A)(2), felonies of the first
degree with Firearm Specifications pursuant to R.C. 2941.145 and with Firearm
Specifications pursuant to R.C. 2941.1412, one count of Aggravated Arson, a felony of
the first degree in violation of R.C. 2909.02(A)(1), eleven counts of Improperly
Discharging a Firearm at or into a Habitation, in a School Safety Zone, or with the Intent
to Cause Harm or Panic to Persons in a School, in a School Building, or at a School
Function or the Evacuation of a School Function, felonies of the second degree in violation
of R.C. 2923.161(A)(1),with Firearm Specifications pursuant to R.C. 2941.145 and
Discharge of a Firearm on or Near Prohibited Premises, a felony of the third degree in
violation of R.C. 2923.162(A)(3)(C)(2), with Firearm Specification pursuant to R.C.
2941.145. [Docket Entry Number 47]. DeWalt’s jury trial began on December 16, 2019.
The following evidence was adduced during the trial.
{¶3} On July 27, 2019 around 11:00 in the morning, Amy DeWalt was in the
shower at the home she shared with her husband, Adam DeWalt on Opal Avenue in
Louisville, Ohio. She heard her husband yelling and a window break. She jumped out of
the shower, got dressed and her husband told her to "get some stuff and get out" because
he didn't want her to get hurt. Amy DeWalt got in her car, pulled out of the driveway and
her husband came out of the garage firing a pistol in the air. Amy DeWalt drove to the
Stark County, Case No. 2020CA00031 3
high school, a couple of blocks from the residence, and called 9-1-1. Lieutenant Chris
Stillwagon of the Louisville Police Department responded to the high school, talked with
Mrs. DeWalt who reported that her husband had a .45 pistol and was suicidal.
{¶4} When Lieutenant Stillwagon pulled up to the DeWalt residence on Opal
Avenue, he could hear noises that sounded like gunfire and smoke coming from the front
of the residence. Lieutenant Stillwagon called for backup and another Louisville Police
Officer, Michael Stephey arrived. While Stephey was up at the front of the DeWalt
residence, another barrage of gunfire came from the front of the residence.
{¶5} Stillwagon and Stephey took cover and called for more backup. Three more
law enforcement agencies responded - the Stark County Sheriff; Canton police, and
Alliance police, including two SWAT teams and armored vehicles.
{¶6} Deputy Keaton Sausman testified that she was dispatched to Louisville for
an active shooter situation. Deputy Sausman was asked to block off the intersection of
Hazel and Opal to stop traffic from going up or down the road. After exiting the cruiser,
Deputy Sausman stated that she felt something go past her head and ducked down
behind her cruiser. Deputy Sausman testified that while behind the cruiser, she heard
shots hit her cruiser and stayed hidden until she was evacuated.
{¶7} Officer Zachary Taylor of the Canton Police Department testified that he
responded to the active shooter call from Louisville. Officer Taylor deployed his patrol
rifle and positioned himself by a tree on the north side of the 1516 Opal Street residence
to contain the occupants of the home. Officer Taylor testified that he heard several shots
fired that he stated were not fired at him. Officer Taylor testified that he observed the
glass in the front window break, something was thrown out the window, and a fireball
Stark County, Case No. 2020CA00031 4
erupted on the window sill. He stated that it was not until he positioned himself behind a
tree that was wider than his shoulders that he heard shots fired in his direction. Officer
Taylor stated that there were four shots fired at him.
{¶8} The Molotov cocktail ended up landing in the inside of the front window
filling the home with smoke. DeWalt came out of the home shirtless with the pistol in his
hand. He placed the pistol on the threshold of the residence and was taken into custody
by the Alliance SWAT team. DeWalt was taken in a police cruiser to Mercy Medical Center
for clearance for jail by Officer Steve Miller. DeWalt was given his Miranda warnings and
body cameras recorded his statements during the five hours that his arrest was being
processed. The recordings were played for the jury.
{¶9} DeWalt was recorded saying that he wanted to die and that he would plead
guilty to attempted murder. He stated that he tried to throw the Molotov cocktail outside
but that it ended up hitting the windowsill and bouncing back inside. If that had not ended
up smoking him out, he would have shot at law enforcement officers all day long. He would
have taken them out if they had not made themselves "green.”
{¶10} In all, DeWalt used at least four operable firearms to shoot at law
enforcement. Bullets from a Springfield Armory Model XD 45 caliber semiautomatic pistol
were found behind the Stark County Sheriff's cruiser where Deputy Sheriff Keaton
Sausman was taking cover. State's Exhibits 3, 4. Bullets from a .223 caliber Smith and
Wesson Model M&P 15 semiautomatic rifle with a scope and bipod were found on the
ground surrounding the residence and spent cartridge cases were found in the DeWalt
residence. State's Exhibit 6. Spent cartridge cases from another Smith & Wesson AR-15
rifle were also found in the residence, State's Exhibit 7. Finally, shot shells from a 12
Stark County, Case No. 2020CA00031 5
gauge Remington 870 Express Magnum pump-action shotgun were found in and around
the residence, State's Exhibits 10, 11.
{¶11} A deformed jacketed hollow-point bullet was found by the pillar of the
Louisville Police cruiser. DeWalt shot out of every window in the house except his
bedroom.
{¶12} The home of eleven of DeWalt’s neighbors were hit by the bullets. The
bullets hit spouting, a front door, brick, siding. Indeed, the home of Danielle Brickwood
was hit multiple time and sustained $25,000 damage. Judith Juskiw, who was at home
recovering from surgery heard glass break from the bullets, fell backwards and ripped
open her incision. John P. Case's family was in the backyard pool when they heard the
gunshots, came in the house and heard a big bang against the back door. They recovered
a bullet laying in the grass next to the deck where they were swimming.
{¶13} After hearing the evidence and receiving instructions from the trial court, the
jury returned with a verdict of guilty to all the counts and specifications in the indictment.
{¶14} On December 30, 2019, the Court sentenced DeWalt to an indefinite
minimum prison term of five years up to a maximum prison term of 7 1/2 years on the
charge of Felonious Assault, 1 count, as contained in Count One of the superseding
indictment. The 3- year Firearm Specification (R.C. 2941.145) to Count One was merged
into the 7 year Firearm Specification (R.C. 2941.1412) to Count One. The sentence in
Count One was ordered to be served consecutive to and subsequent to a determinate
mandatory term of 7 years actual incarceration for the specification that DeWalt had a
firearm. DeWalt received a 5-year prison term on the charge of Felonious Assault, 1 count
as contained in Count Two of the superseding indictment. This sentence was ordered to
Stark County, Case No. 2020CA00031 6
be served consecutive to and subsequent to a determinate mandatory term of 7 actual
years incarceration for the specification that DeWalt had a firearm. The 3-year Firearm
Specification to Count Two was merged into the 7 year Firearm Specification to Count
Two. DeWalt received a 5 year prison term on the charge of Felonious Assault, 1 count
as contained in Count Three of the superseding indictment, with the 3 year Firearm
Specification merged into the 7 year Firearm Specification in Counts One and Two, and
the 7 year Firearm Specification to Count Three was merged into the 7 year Firearm
Specification to Counts One and Two. DeWalt was ordered to serve a 4 year prison term
on the charge of Aggravated Arson, 1 count as contained in Count Four of the
superseding indictment. DeWalt received a prison term of 4 years on each count of
Improperly Discharging a Firearm at or Into a Habitation, in a School Safety Zone, or With
the Intent to Cause Harm or Panic to Persons in a School, in a School Building, or at a
School Function or the Evacuation of a School Function, 11 counts as contained in Counts
Five through Fifteen of the superseding indictment. The 3 year Firearm Specification to
Counts 5 through 15 were merged into the 7 year Firearm Specification to Counts One
and Two. DeWalt was ordered to serve 36 months on the charge of Discharge of a
Firearm on or Near Prohibited Premises, 1 Count as contained in Count Sixteen of the
superseding indictment. The 3-year Firearm Specification to Count Sixteen was merged
into the 7 year Firearm Specifications to Counts One and Two. DeWalt was ordered to
serve the sentences in Counts One through Five consecutively and the sentences in
Counts Six through Fifteen concurrently, for an aggregate minimum prison term of 37
years up to a maximum prison term of 39 1/2 years.
Stark County, Case No. 2020CA00031 7
Assignment of Error
{¶15} DeWalt raises one Assignment of Error,
{¶16} “I. APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”
Law and Analysis
{¶17} In his sole Assignment of Error, DeWalt argues that his convictions are
against the manifest weight of the evidence. DeWalt also claims there is insufficient
evidence to support his convictions.
Standard of Appellate Review– Sufficiency of the Evidence.
{¶18} The Sixth Amendment provides: “In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in
conjunction with the Due Process Clause, requires that each of the material elements of
a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570
U.S. __, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 136 S.Ct. 616,
621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence involves a
question of law for resolution by the appellate court. State v. Walker, 150 Ohio St.3d 409,
2016-Ohio-8295, 82 N.E.3d 1124, ¶30. “This naturally entails a review of the elements
of the charged offense and a review of the state's evidence.” State v. Richardson, 150
Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13.
{¶19} When reviewing the sufficiency of the evidence, an appellate court does not
ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus, superseded by State constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,
Stark County, Case No. 2020CA00031 8
684 N.E.2d 668 (1997; Walker, at ¶30. “The relevant inquiry is whether, after viewing the
evidence in the 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.” Jenks at
paragraph two of the syllabus. State v. Poutney, 153 Ohio St.3d 474, 2018-Ohio-22, 97
N.E.3d 478, ¶19. Thus, “on review for evidentiary sufficiency we do not second-guess
the jury's credibility determinations; rather, we ask whether, ‘if believed, [the evidence]
would convince the average mind of the defendant's guilt beyond a reasonable doubt.’”
State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001), quoting Jenks at
paragraph two of the syllabus; Walker at ¶31. We will not “disturb a verdict on appeal on
sufficiency grounds unless ‘reasonable minds could not reach the conclusion reached by
the trier-of-fact.’” State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48,
¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997); State v.
Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶74.
Issue for Appeal: Whether, after viewing the evidence in the light most favorable
to the prosecution, the evidence, if believed, would convince the average mind of
DeWalt’s guilt on each element of the crimes for which he was convicted beyond
a reasonable doubt.
Felonious Assault of a peace officer.
{¶20} The jury convicted DeWalt of three counts of felonious assault on law
enforcement officers with a firearm specification. R.C. 2903.11, felonious assault,
provides in relevant part:
(A) No person shall knowingly do either of the following:
Stark County, Case No. 2020CA00031 9
(2) Cause or attempt to cause physical harm to another....by means
of a deadly weapon or dangerous ordnance.
If the victim is a peace officer, felonious assault is a felony of the first
degree.
{¶21} DeWalt argues that there was no evidence that he pointed his weapon
directly at the law enforcement officers. According to DeWalt, he shot above their heads,
in trees and at their cruisers when the officers were not in them.
{¶22} Simply pointing a gun at another is not enough to prove an attempt to cause
physical harm. State v. Brooks, 44 Ohio St.3d 185, 192, 542 N.E.2d 636, 642(1989).
“Something more” is required to establish intent. Verbal threats or other demonstrative
evidence which are perceived by a reasonable person under the circumstances to be a
threat could fulfill the requirement for additional evidence. State v. Green, 58 Ohio St.3d
239, 241, 569 N.E.2d 1038, 1041(1991). That threat must indicate an intention to use that
weapon. Id. at 241-242, 569 N.E.2d 1038. In a somewhat analogous situation courts
have found that a jury can infer intent from the defendant’s actions, even though the
defendant claims he lacked the requisite intent,
The trier of fact may infer an intention to kill from the surrounding
circumstances where the natural and probable consequence of a
defendant's actions is to produce death. State v. Robinson (1954), 161 Ohio
St. 213, 118 N.E.2d 517, paragraph five of the syllabus; State v. Edwards
(1985), 26 Ohio App.3d 199, 200, 499 N.E.2d 352. Here, defendant looked
at a group of individuals, pointed a semi-automatic handgun in their
direction, and fired five shots. In so doing, one of the bullets fired from the
Stark County, Case No. 2020CA00031 10
handgun struck and killed his driver, Andre J. Bender. Although defendant
claims the evidence equally supports a conclusion that he was merely trying
to scare individuals in the group by firing the handgun into the air, “[t]he act
of pointing a firearm and firing it in the direction of another human being is
an act with death as a natural and probable consequence.” State v. Brown
(Feb. 29, 1996), Cuyahoga App. No. 68761, unreported. Compare State v.
Jester (1987), 32 Ohio St.3d 147, 152, 512 N.E.2d 962 (when an inherently
dangerous instrumentality is employed in the commission of a robbery, such
evidence permits a jury to find a purposeful intent to kill).
State v. Turner, 10th Dist. No. 97APA05-709, 1997 WL 798770(Dec. 30, 1997), quoting
State v. Brown, 8th Dist. No. 68761, 1996 WL 86627(Feb. 29, 1996) dismissed, appeal
not allowed, 77 Ohio St.3d 1468, 673 N.E.2d 135.
{¶23} In the case at bar, Louisville police officer Michael Stephey was one of the
first officers on the scene and knew DeWalt from previous encounters. When Stephey
tried talking with him, instead of responding, he sent a barrage of bullets out the front of
the house. When Stephey tried to run through the front yard, he could hear bullets
"zinging" through the yard. DeWalt was firing at him. Officer Stephey's police cruiser was
hit by two different caliber bullets.
{¶24} Canton police officer Zachary Taylor arrived and heard a barrage of shots
coming from the DeWalt residence. He took cover behind a tree and heard the shots
being directed towards him. When asked how he knew the shots were being fired at him,
he described for the jury the sound of the shots,
Stark County, Case No. 2020CA00031 11
So what you'll hear, you know, a bullet pass by you in close proximity,
you'll hear the, the sonic boom if it's a supersonic round. So if the round is
traveling past the speed of sound, you'll hear this crack as it goes by you. If
they hit something, glass or they ricochet off the ground or, you know, they
hit something, they'll start to tumble. And it’s not kind of like the cartoonish
whiz, that sound, but you’ll hear — it’s a distinctly different sound when they
are tumbling and they pass you.
They sound completely different when they’re coming at you rather
than like if you’re standing behind it or you’re shooting a gun, or even if the
gun, gun is shooting in a different direction.
1T. at 208-209.
{¶25} Later, when Officer Taylor stood up to observe the Molotov cocktail thrown
by DeWalt, he saw four rounds fired rapidly at him and he jumped from his standing
position back to a prone position. 1T. at 211.
{¶26} Stark County Deputy Sheriff Keaton Sausman was parked at the
intersection of Hazel and Opal Streets. She felt bullets going past her head and she
ducked behind her police cruiser. 1T. at 188. Bullets were going past her head and hitting
her cruiser shooting at the back tire where she was crouched down hiding. She was
pinned down by the bullets that DeWalt was firing until she was evacuated by the SWAT
Team.
{¶27} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
DeWalt caused or attempted to cause physical harm to Officer Stephey, Officer Taylor
Stark County, Case No. 2020CA00031 12
and Deputy Sausman by means of a deadly weapon or dangerous ordnance. We hold,
therefore, that the state met its burden of production regarding the element of felonious
assault, of a peace officer, three counts, and, accordingly, there was sufficient evidence
to support DeWalt’s convictions.
Aggravated arson.
{¶28} DeWalt was charged and convicted of aggravated arson. R.C. 2909.02
aggravated arson states in relevant part: "(A) No person, by means of fire or explosion,
shall knowingly do any of the following: (1) Create a substantial risk of serious physical
harm to any person other than the offender.” “Substantial risk” is defined as “a strong
possibility, as contrasted with a remote or significant possibility, that a certain result may
occur or that certain circumstances may exist.” R.C. 2901.01(A)(8).
{¶29} In the case at bar, DeWalt made a firebomb, lit the fuse of the firebomb and
threw the firebomb in the direction of the law enforcement officers who were attempting
to surround the home and advance toward it. DeWalt argues that the state offered no
evidence that anyone was near the home when the fire from the Molotov cocktail erupted.
Merely because DeWalt ineptly threw the firebomb does not negate the potential for
substantial risk of physical harm. See, State v. Johnson, 8th Dist. No. 81814, 2003-Ohio-
4180, rev’d on other grounds, State v. Johnson, 104 Ohio St.3d 250, 2004-Ohio-6399,
819 N.E.2d 272(“Merely because a firebomb was ineptly made does not negate the
potential risk of physical harm. See State v. Wills (1997), 120 Ohio App.3d 320, 331, 697
N.E.2d 1072. It is the risk of physical harm that is sufficient under the statute, not whether
there was actual damage.”).
Stark County, Case No. 2020CA00031 13
{¶30} By creating, lighting and launching the firebomb, DeWalt knowingly created
a substantial risk of serious physical harm to any person other than the offender. Viewing
the evidence in a light most favorable to the prosecution, we conclude that a reasonable
person could have found beyond a reasonable doubt that DeWalt by means of fire or
explosion, knowingly created a substantial risk of serious physical harm to any person
other than himself. We hold, therefore, that the state met its burden of production
regarding the element of aggravated arson, and, accordingly, there was sufficient
evidence to support DeWalt’s conviction.
Improperly Discharging a Firearm at or Into a Habitation or in a School Safety
Zone.
{¶31} DeWalt was convicted of eleven counts of Improperly Discharging a Firearm
at or Into a Habitation or in a School Safety Zone in Counts Five through Fifteen with
accompanying three year Firearm Specifications to each. DeWalt argues that the state
failed to offer evidence of the venue in all eleven of the counts of Improperly Discharging
a Firearm at or Into a Habitation or in a School Safety Zone.
{¶32} Section 10 of Article I of the Ohio Constitution requires that: " * * * [i]n any
trial, in any court, the party accused shall be allowed * * * a speedy public trial by an
impartial jury of the county in which the offense is alleged to have been committed * * *.
“Crim.R. 18(A) states that, "(t)he venue of a criminal case shall be as provided by law."
{¶33} “Venue is not a material element of any offense charged. The elements of
the offense charged and the venue of the matter are separate and distinct. State v. Loucks
(1971), 28 Ohio App.2d 77, 274 N.E.2d 773, and Carbo v. United States (C.A.9, 1963),
314 F.2d 718. Yet, in all criminal prosecutions, venue is a fact that must be proved at trial
Stark County, Case No. 2020CA00031 14
unless waived. State v. Nevius (1947), 147 Ohio St. 263, 71 N.E.2d 258.” State v. Draggo
65 Ohio St.2d 88, 90,418 N.E.2d 1343, 1345(1981).
{¶34} R.C. 2901.12 contains the statutory foundation for venue. The relevant
provisions of this section read, in pertinent part, as follows:
(A) The trial of a criminal case in this state shall be held in a court
having jurisdiction of the subject matter, and in the territory of which the
offense or any element of the offense was committed.
{¶35} “[J]urisdiction and venue are not the same, as the former denotes the power
of the court to hear the case and the latter denotes the situs of trial.” State v. Giffin, 62
Ohio App.3d 396, 403, 575 N.E.2d 887 (10th Dist. 1991), citing State v. Loucks, 28 Ohio
App.2d 77, 274 N.E.2d 773 (4th Dist. 1971). Proper venue insures that “the state [does
not] indiscriminately [seek] a favorable location for trial or [select] a site that might be an
inconvenience or disadvantage to the defendant.” State v. Meridy, 12th Dist. No.
CA2003-11-091, 2005-Ohio-241, 2005 WL 123993, ¶ 12, quoting State v. Gentry, 61 Ohio
Misc.2d 31, 34, 573 N.E.2d 220 (1990). “Venue need not be proven in express terms; it
may be established either directly or indirectly by all the facts and circumstances of the
case.” State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, ¶ 144.
{¶36} Ohio’s venue statute further provides that when an offender commits
offenses in different jurisdictions as part of a course of criminal conduct, venue lies for all
the offenses in any jurisdiction in which the offender committed one of the offenses or any
element thereof. R.C. 2901.12(H). Offenses “committed as part of the same transaction
or chain of events, or in furtherance of the same purpose or objective” serve as “prima
facie evidence of a course of criminal conduct.” R.C. 2901.12(H)(3).
Stark County, Case No. 2020CA00031 15
{¶37} DeWalt agrees that the state “procured testimony that the residence in
which he was shooting from was located in Stark County, Ohio.” [Appellant’s Brief at 11].
The record does not show that venue was in another county. DeWalt has not argued any
identifiable prejudice resulted in his being tried in Stark County. The shots into the
neighboring homes and properties was committed as part of the same transaction or
chain of events, or in furtherance of the same purpose or objective. Further, the neighbors
who testified all said that they lived in Louisville, Ohio. A map was presented which showed
that Louisville is in Stark County, Ohio.
{¶38} “The venue need not be proved in express terms, where the evidence is
such in the state’s case that no other inference can be reasonably drawn by the jury.”
State v. Dickerson, 77 Ohio St. 34, 56, 82 N.E. 969(1907), citing Tinney v. State, 111 Ala.
74, 20 South 597. In the case at bar sufficient evidence was presented that Stark County
was the proper venue to conduct DeWalt’s jury trial.
Standard of Appellate Review – Manifest Weight.
{¶39} As to the weight of the evidence, the issue is whether the jury created a
manifest miscarriage of justice in resolving conflicting evidence, even though the
evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386–387,
678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as
stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v.
Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
Stark County, Case No. 2020CA00031 16
reasonable presumption must be made in favor of the judgment and the
finding of facts.
***
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent with
the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
{¶40} The reviewing court must bear in mind, however, that credibility generally is
an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d
904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31.
Because the trier of fact sees and hears the witnesses and is particularly competent to
decide whether, and to what extent, to credit the testimony of particular witnesses, the
appellate court must afford substantial deference to its determinations of credibility.
Barberton v. Jenney, 126 Ohio St.3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20. In
other words, “[w]hen there exist two fairly reasonable views of the evidence or two
conflicting versions of events, neither of which is unbelievable, it is not our province to
choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002–
Ohio–1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125(7th
Dist. 1999). Thus, an appellate court will leave the issues of weight and credibility of the
evidence to the fact finder, as long as a rational basis exists in the record for its decision.
State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24.
Stark County, Case No. 2020CA00031 17
{¶41} Once the reviewing court finishes its examination, an appellate court may
not merely substitute its view for that of the jury, but must find that “ ‘the jury 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. Thompkins, supra, 78 Ohio St.3d at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.
1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional
case in which the evidence weighs heavily against the conviction.” Id.Issue for Appellate Review: Whether the jury clearly lost their way and created
such a manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered.
{¶42} The jury as the trier of fact was free to accept or reject any and all of the
evidence offered by the parties and assess the witness’s credibility. “While the trier of
fact may take note of the inconsistencies and resolve or discount them accordingly * * *
such inconsistencies do not render defendant’s conviction against the manifest weight or
sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL
29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996
WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness’
testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin
No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197
N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889,
citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although
the evidence may have been circumstantial, we note that circumstantial evidence has the
same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574
Stark County, Case No. 2020CA00031 18
N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,
684 N.E.2d 668 (1997).
{¶43} In the case at bar, the jury heard the witnesses and viewed the evidence.
The jury saw the witnesses and DeWalt himself subject to cross-examination. The jury
heard DeWalt’s attorney’s arguments and explanations about the evidence and his
actions. Further, the jury was able to view the events in real-time through the body
cameras and pictures from the officers involved. Thus, a rational basis exists in the record
for the jury’s decision.
{¶44} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678
N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. Based upon
the foregoing and the entire record in this matter we find DeWalt’s convictions are not
against the sufficiency or the manifest weight of the evidence. To the contrary, the jury
appears to have fairly and impartially decided the matters before them. The jury heard
the witnesses, evaluated the evidence, and was convinced of DeWalt’s guilt. The jury
neither lost their way nor created a miscarriage of justice in convicting DeWalt of the
offenses.
{¶45} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crimes for which DeWalt was convicted.
Stark County, Case No. 2020CA00031 19
{¶46} DeWalt’s sole Assignment of Error is overruled.
{¶47} The judgment of the Stark County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Wise, J., and
Delaney, J., concur