In re D.B.

[Cite as In re D.B., 2022-Ohio-936.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE D.B. :
: No. 110788
:
:
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 24, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. DL-20110028
Appearances:
John H. Lawson, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Sarah E. Hutnik, Assistant Prosecuting
Attorney, for appellee.
ANITA LASTER MAYS, P.J.:
Defendant-appellant D.B. appeals the trial court’s decision to
adjudicate him a delinquent of criminal damaging, pointing and discharging
firearms, and other weapons, and asks this court to reverse D.B’s adjudication and
remand to the trial court. We affirm the trial court’s decision.
The trial court adjudicated D.B. delinquent of one count of criminal
damaging, a second-degree misdemeanor, in violation of R.C. 2909.06(A)(1); and
one count of pointing and discharging firearms and other weapons, a fourth-degree
misdemeanor, in violation of Parma Municipal Code 672.14(A). The trial court
found that D.B. was not delinquent on the menacing charge in violation of
R.C. 2903.22(A). The trial court ordered that D.B. pay court costs of $256 and a fine
of $100. D.B. was also ordered to write a letter of apology to the victims.
I. Facts and Procedural History
The facts reveal that on October 12, 2020, J.S. and M.H. were at the
home of J.S. standing in the driveway. J.S. testified that around 4:30 pm., D.B.
“passed on a dirt bike and shot the house.” (Tr. 8.) D.B. then continued to ride away.
J.S. also testified that after D.B. rode by on the dirt bike, he saw D.B.’s brother and
another passenger in a car following D.B. (Tr. 9.) J.S. stated that he clearly saw D.B.
on the dirt bike because D.B. did not have a helmet on or anything obstructing his
face. (Tr. 10.) J.S. testified that as D.B. rode by, he shot at the house with a BB gun.
Id. J.S. stated that he heard a ping and next to where he heard the ping, there was a
hole. (Tr. 10-11.) J.S. called his sister, who called the police when she arrived home.
(Tr. 11.)
On cross-examination J.S. testified that he previously owned a BB
gun but on the date of this incident his father took it away from him. (Tr. 13.) J.S.
also testified that he did not see D.B. shoot a BB gun at the house, but instead just
heard the ping. (Tr. 15.) He stated that he heard the ping and then ran into the
house, but did not actually see D.B. shoot the gun, but did see D.B. riding past on a
dirt bike. (Tr. 16.) J.S. also testified that he told the police that he did not see
anybody shoot the BB gun, but that he just heard the shot. (Tr. 18-19.) On redirect
examination, J.S. testified that as D.B. passed by, he waved and then J.S. heard the
shot. (Tr. 19.). J.S. testified that D.B. had the BB gun in his left hand as he rode by
and crossed his body to shoot. (Tr. 22.)
M.H., who was at J.S.’s house on the day of shooting, testified that he
saw D.B. on a motorcycle and that D.B. shot the BB gun. (Tr. 26.) M.H. also testified
that he saw a hole in the garage after the shooting. (Tr. 27.) On cross-examination,
M.H. testified that earlier in the day, he and J.S. went to McDonald’s. He left
McDonald’s, going to J.S.’s house, in a car with a group, including D.B. and D.B.’s
brother. During this time, another friend of the group was riding the same dirt bike
that J.S. testified to seeing D.B. ride by the house.
M.H. testified that he also took a turn riding the dirt bike. (Tr. 32.)
However, M.H. stated that when the shots were fired, D.B. was riding the bike.
(Tr. 33.) M.H. also testified that after the shooting, he went to hang out with D.B.
so that D.B. could take him back to get his dirt bike from another location. (Tr. 34.)
D.B.’s defense counsel pointed out that M.H.’s story did not make
sense, because the timeline was different from what he testified to earlier and was
different from J.S.’s testimony. M.H. stated that he did not remember because it
happened a long time ago. (Tr. 35.) On redirect, M.H. testified that he saw D.B.
after the shooting and asked D.B. to take him to get his dirt bike because he did not
want it to get stolen. (Tr. 37.)
At the conclusion of the testimony, D.B.’s counsel made a Crim.R. 29
motion arguing that the state had not meet its burden of proof as a result of the
inconsistent testimony from the witnesses. (Tr. 43.) D.B.’s counsel asked the trial
court to dismiss the case against D.B. The trial court denied defense counsel’s
request for dismissal.
The trial court found D.B. delinquent of two of the three counts
charged in the indictment, and assessed court costs and a fine against D.B. D.B. was
released to his parents and filed this appeal assigning one error for our review:
The trial court erred by relying on the state’s two witnesses to adjudge
D.B. delinquent as both witnesses’ testimony was so unreliable and
significantly inconsistent that the manifest weight of the evidence was
not proven beyond a reasonable doubt.
II. Manifest Weight of the Evidence
A. Standard of Review
“‘In determining whether a juvenile court’s adjudication of
delinquency is against the manifest weight of the evidence, the applicable standard
of review is the same standard applied in adult criminal convictions.’” (Internal
citations omitted.) In re A.T., 8th Dist. Cuyahoga No. 110123, 2021-Ohio-2934, ¶ 72,
quoting In re A.W., 8th Dist. Cuyahoga No. 103269, 2016-Ohio-7297, ¶ 43.
“A manifest weight challenge attacks the credibility of the evidence
presented and questions whether the state met its burden of persuasion.” State v.
Flores-Santiago, 8th Dist. Cuyahoga No. 108458, 2020-Ohio-1274, ¶ 35, citing
State v. Whitsett, 8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26; State v.
Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13. “Weight of the
evidence ‘addresses the evidence’s effect of inducing belief,’ i.e., ‘whose evidence is
more persuasive — the state’s or the defendant’s?’” Id., citing State v. Wilson, 113
Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25.
“When considering an appellant’s claim that a conviction is against
the manifest weight of the evidence, the appellate court functions as a ‘thirteenth
juror’ and may disagree ‘with the factfinder’s resolution of * * * conflicting
testimony.’” Id., citing State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d
541 (1977).
In our manifest weight review of a bench trial verdict, we recognize
that the trial court is serving as the factfinder and not a jury:
“Accordingly, to warrant reversal from a bench trial under a manifest
weight of the evidence claim, this court must review the entire record,
weigh the evidence and all reasonable inferences, consider the
credibility of witnesses and determine whether in resolving conflicts
in evidence, the trial court clearly lost its way and created such a
manifest miscarriage of justice that the judgment must be reversed
and a new trial ordered.”
In re C.B., 8th Dist. Cuyahoga No. 109095, 2020-Ohio-4749, ¶ 5, quoting State v.
Strickland, 183 Ohio App.3d 602, 2009-Ohio-3906, 918 N.E.2d 170, ¶ 25 (8th
Dist.).
Additionally,
“[w]e recognize that ‘[w]here a trial is not to a jury, a majority of the
Court of Appeals may reverse a judgment on the weight of the
evidence.’” State v. Gilkerson, 1 Ohio St.2d 103, 104, 205 N.E.2d 13(1965), citing Hnizdil v. White Motor Co., 152 Ohio St. 1, 87 N.E.2d 94(1949), and construing former Section 6, Article IV, of the Ohio
Constitution, which is similar to the current version of
Section 3(B)(3), Article IV.
Id. at ¶ 6, quoting In re D.L., 2016-Ohio-5834, 70 N.E.3d 1201, ¶ 17 (8th Dist.).
B. Law and Analysis
In D.B.’s sole assignment of error, he argues that the trial court erred
in relying on J.S.’s and M.H.’s testimony as they were inconsistent. “[A] defendant
is not entitled to reversal on manifest weight grounds merely because certain aspects
of a witness’ testimony are inconsistent or contradictory.” Flores-Santiago, 8th
Dist. Cuyahoga No. 108458, 2020-Ohio-1274, at ¶ 40. D.B. points to the fact that
J.S. and M.H. both testified that they did not see D.B. shoot the BB gun. M.H. also
testified that there were certain events from that day that he did not remember.
Both witnesses testified that J.S. owned a BB gun until the J.S.’s father took the gun
away after this incident.
Additionally, M.H. testified that he and two different people rode the
dirt bike that day. M.H. also testified that he went to D.B.’s house after the shooting
to ask D.B. to take him to get his bike from another location. D.B. argues that the
testimonies are inconsistent and unreliable because both witnesses first claimed to
have seen D.B. shoot the BB gun and then changed their testimony stating that they
did not see him.
However, “this court remains mindful that the credibility of the
witnesses is primarily for the trier of fact to assess.” State v. Rudd, 8th Dist.
Cuyahoga No. 102754, 2016-Ohio-106, ¶ 62, citing State v. Bradley, 8th Dist.
Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14. “The trier of fact is in the best position
to make credibility determinations because this court cannot view the demeanor of
a witness while testifying. Therefore, the trier of fact is in the best position to
determine if the proffered testimony is credible.” Id., citing State v. Holloway, 8th
Dist. Cuyahoga No. 101289, 2015-Ohio-1015, ¶ 42.
“The decision whether, and to what extent, to believe the testimony of
a particular witness is ‘within the peculiar competence of the factfinder, who has
seen and heard the witness.’” Id. at ¶ 72, citing State v. Johnson, 8th Dist. Cuyahoga
No. 99822, 2014-Ohio-494, ¶ 54. D.B. argues that J.S.’s and M.H.’s testimony was
inconsistent. However, “‘[i]n reviewing the manifest weight of the evidence, * * *
even where discrepancies exist, eyewitness identification testimony alone is
sufficient to support a conviction so long as a reasonable [factfinder] could find the
eyewitness testimony to be credible.’’” State v. Hill, 8th Dist. Cuyahoga No. 99819,
2014-Ohio-387, ¶ 37, citing State v. Taylor, 10th Dist. Franklin No. 12AP-870, 2013-
Ohio-3699, ¶ 47. J.S. initially testified that he saw D.B. shoot the BB gun; however,
under cross-examination, he stated that he did not see D.B. shoot the gun, but rather
saw D.B. riding past the house with the BB gun in his left hand. J.S. then heard a
ping from the shot.
M.H. also testified that he recognized D.B. riding the bike because he
did not have on a helmet. However, after D.B.’s counsel stated to him that M.H.’s
timeline did not make sense, M.H. claimed it was difficult to remember given the
incident happened a long time ago. Because of this, D.B.’s counsel stated that the
testimony from J.S. and M.H. were different from what they told the police.
However, “* * * inconsistencies among the witnesses’ testimony or purported
discrepancies between the witnesses’ statements to police and their trial testimony
are not a sufficient basis to overturn [D.B.’s adjudication] on manifest weight
grounds.” Id. at ¶ 35. “The trial court, as the trier of fact in this case, was in the best
position to weigh the evidence and the witnesses’ credibility. It was entitled to
believe or disbelieve all, part, or none of a witness’s testimony.” Id. at ¶ 40, citing
State v. Torres, 8th Dist. Cuyahoga No. 99596, 2013-Ohio-5030, ¶ 93.
After examining the entire record, we cannot say that the trial court
lost its way or created a manifest miscarriage of justice in adjudicating D.B.
delinquent. Two witnesses testified that they saw D.B. on the dirt bike riding past
the house where they heard a ping from a BB gun. Both juveniles recognized D.B.
because he did not have his face covered, and they had been friends in the past. J.S.
saw the B.B. gun in D.B.’s left hand while D.B. drove by on the dirt bike and J.S heard
the ping. M.H. was just with D.B. riding the dirt bikes but D.B. was riding by during
the time of the incident with his brother following in a separate vehicle when he
heard the ping.
Therefore, D.B.’s assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court, juvenile division, to carry this judgment into execution. The
defendant’s adjudications having been affirmed, any bail pending is terminated.
Case remanded to the trial court for execution of commitment.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
_________________________________
ANITA LASTER MAYS, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
EMMANUELLA D. GROVES, J., CONCUR