[Cite as State v. Collins, 2020-Ohio-4136.]


                                COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                      :

                 Plaintiff-Appellee,                :
                                                             No. 108878
                 v.                                 :

SENYON L. COLLINS,                                  :

                 Defendant-Appellant.               :


                                 JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: August 20, 2020


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-18-627168-B


                                              Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Anthony T. Miranda, Assistant Prosecuting
                 Attorney, for appellee.

                 Jennifer N. McTernan L.L.C., and Jennifer L. McTernan,
                 for appellant.


EILEEN A. GALLAGHER, J.:

                Defendant-appellant Senyon Collins appeals after a jury convicted him

of felonious assault, improper discharging firearm at or into habitation or school,

discharge of firearm on or near prohibited premises and two counts of improperly
handling firearms in a motor vehicle. Each count contained a one-, three- and five-

year firearm specification. The trial court sentenced Collins to an aggregate 14 years

in prison. We affirm.

I. Factual Background and Procedural History

             Tuquisha Oliver and Collins were romantically involved, on and off, for

about a year. During that time, they believed that Collins had fathered a child born

of Tuquisha. However, following a paternity test, it was determined that Collins was

not the child’s father.

             The paternity test was taken at the behest of codefendant Brittany

Lawson. Collins and Lawson were romantically involved prior, and subsequent, to

his relationship with Tuquisha.

             When Collins learned that he was not the child’s father, he was angry

and engaged in several verbal altercations with Tuquisha. One evening when

Tuquisha was staying at her mother, Rochelle Oliver’s, home in Cleveland Heights,

Ohio she talked with Collins on the phone. She informed him that she had permitted

another man to visit with the child. This angered Collins, she explained, because he

did not like the child being around other men. He yelled at her and told her he was

coming over to the home. He did not appear that evening, but showed up the

following morning driving a gray truck. Rochelle answered the door and told Collins

that Tuquisha was not present even though she was in another room. Collins left

shortly thereafter and when he did, Tuquisha and Rochelle went to the home of

Tunisha Oliver, Tuquisha’s sister, in Euclid, Ohio
            According to Tuquisha, she and Rochelle stopped briefly at Tunisha’s

house before proceeding to a dental appointment.           While en route to the

appointment, Rochelle received a call from Tunisha who was in tears. Collins,

accompanied by Lawson, had come to the Tunisha’s home looking for Tuquisha and,

when told she was not there, he pointed a gun at Tunisha while seated in his gray

truck and he proceeded to fire a single round into the house.

            Tunisha called 911 after she called her mother. She reported that “my

house has been shot up” and that “my sister’s boyfriend” was the person who did it.

Tunisha testified that at the time of the crime she did not know Collins’ legal name,

but confirmed that she was “a hundred percent sure” that it was he who fired the

shot.

            The bullet struck the house near Tuquisha’s room there. Officer Trevor

Thomas testified that when he arrived on the scene Tunisha was “visibly upset.”

Thomas observed three children playing in the house, none of whom were injured.

He described “what appeared to be a bullet hole in the second floor window sill,”

although no bullet was recovered.

             Detective Joshua Schultz testified as to his experience with firearms

and ballistics, including the fact that he had been a military sniper and that he has

been trained in shooting incident reconstruction. Schultz had familiarity with

trajectory ballistics and the effect on different mediums when struck by a bullet.

            Schultz assessed the defect in the window sill and described “some

tearing from the aluminum siding, as, you know, a high velocity projectile would
proceed through a medium.” He observed “shiny aluminum inside the impact site”

which indicated that the damage occurred recently and that it was caused by a bullet.

Schultz confirmed that it was “very common” for this kind of damage to be caused

by a bullet.

               The day trial was set to begin, the prosecutor informed the court of a

discovery issue. Collins had not been given three pieces of evidence: (1) surveillance

video footage taken from a gas station near Tunisha’s house that depicted a gray

truck, (2) a video recording of Lawson’s police interview and (3) Lawson’s cell site

location data obtained from a cell phone company that showed her location was

consistent with the crime. The prosecutor accepted responsibility for the failure to

provide the evidence and asserted that it was an unintentional oversight. Collins did

not suggest otherwise.

               Although Collins only received this evidence on the day of trial, he

admitted he had previously received the detective’s report that referred to this

evidence. The trial court conducted a hearing and inquired about the nature of the

violation and the evidence. The court gave Collins an opportunity to review the new

evidence and stated that if there was anything prejudicial or materially inconsistent

with the detective’s report, Collins could seek a continuance. Collins did not identify

anything prejudicial or materially inconsistent and he did not seek a continuance.

II. Assignments of Error

               Collins asserts five assignments of error:
      1. Defendant-appellant’s rights to due process and a fair trial were
      violated when the state failed to provide discoverable evidence to
      defense prior to the day of trial.

      2. The trial court abused its discretion in failing to adequately address
      the state’s discovery violations.

      3. The trial court abused its discretion in failing to grant defendant’s
      motion for a mistrial after a state’s witness testified in front of the jury
      regarding defendant-appellant not speaking to law enforcement.

      4. Defendant-appellant was denied the effective assistance of counsel
      in violation of Amendments V, VI, and XIV of the United States
      Constitution, and Article 1, Sections 10 and 16 of the Ohio Constitution.

      5. The jury found against the manifest weight of the evidence that the
      defendant-appellant committed the acts alleged in Counts 1, 2, 3, 4 and
      5 of the indictment.

1. Discovery Violation

              In the first assignment of error, Collins argues that the state violated

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by providing

him additional discovery the morning trial was set to begin.

             “[T]he suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is material either to

guilt or to punishment * * *.” Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10

L.Ed.2d 215 (1963).     A Brady violation occurs where suppressed exculpatory

evidence is discovered after trial. State v. Sheline, 8th Dist. Cuyahoga No. 106649,

2019-Ohio-528, ¶ 164. There is no Brady violation where evidence is disclosed or

introduced during trial. Id.

             Here, the discovery materials were provided to Collins prior to trial.

As such, Brady was not implicated. See State v. Mills, 8th Dist. Cuyahoga No.
90383, 2008-Ohio-3666, ¶ 11. Moreover, we note that Collins merely assumes, and

does not explain how, the evidence was favorable and material to guilt or

punishment. See Brady at 87.

              We overrule the first assignment of error.

2. Discovery Violation Sanction

              In the second assignment of error, Collins argues that the trial court

abused its discretion by failing to adequately address the discovery violation. He

asserts that the court should have delayed trial so that he could review the newly

produced discovery materials. He claims that delaying trial would have given him

the opportunity to “seek out review by an independent expert if necessary” to

analyze Lawson’s cell site location data.

              A trial court enjoys broad discretion in regulating discovery and,

where a discovery violation has occurred, in determining the appropriate sanction.

State v. Smiler, 8th Dist. Cuyahoga No. 100255, 2014-Ohio-1628, ¶ 13, citing State

v. Wiles, 59 Ohio St.3d 71, 78, 571 N.E.2d 97 (1991). A trial court abuses its

discretion where it makes an arbitrary, unconscionable or unreasonable decision.

State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. An

abuse of discretion includes a situation where the trial court engaged in an unsound

reasoning process. Id.

              Crim.R. 16(L)(1) details the trial court’s authority to issue orders in

response to a party’s failure to comply with its discovery obligations. Id. at ¶ 33.

Where a party fails to comply with the discovery rules, the court has discretion to
order the party to produce the discovery at issue, prohibit the party from introducing

the nondisclosed material into evidence, grant a continuance or “make such other

order as it deems just under the circumstances.” Crim.R. 16(L)(1).

              The Supreme Court has identified three factors that should inform a

trial court’s decision to sanction the state in the event it commits a discovery

violation:

      (1) [W]hether the failure to disclose was a willful violation of Crim.R.
      16, (2) whether foreknowledge of the undisclosed material would have
      benefited the accused in the preparation of a defense, and (3) whether
      the accused was prejudiced.

Darmond at ¶ 35, citing State v. Parson, 6 Ohio St.3d 442, 453 N.E.2d 689 (1983),

at the syllabus. Put differently, “[t]he [trial] court does not abuse its discretion in

admitting evidence undisclosed in discovery unless the record shows that the

prosecutor’s discovery violation was willful, that foreknowledge would have

benefitted the accused in preparing his defense, or that the accused was unfairly

prejudiced.” State v. Haddix, 12th Dist. Warren No. CA2011-07-075, 2012-Ohio-

2687, ¶ 39, quoting State v. Otte, 74 Ohio St.3d 555, 563, 660 N.E.2d 711 (1996).

              In addressing a discovery violation, the trial court “must inquire into

the circumstances surrounding [the] violation, must balance the competing

interests, and ‘must impose the least severe sanction that is consistent with the

purpose of the rules of discovery.’” (Emphasis sic.) Darmond at ¶ 21, quoting

Lakewood v. Papadelis, 32 Ohio St.3d 1, 5, 511 N.E.2d 1138 (1987). If the trial court

failed to properly cure a discovery violation we consider whether any resulting error
was a harmless error. State v. Newell, 8th Dist. Cuyahoga No. 106584, 2019-Ohio-

976, ¶ 42, citing Middleburg Hts v. Lasker, 2016-Ohio-5522, 76 N.E.3d 372, ¶ 16

(8th Dist.), (permitting an undisclosed witness to testify was harmless error where

the testimony was merely cumulative).

              In this case, before the jury was selected, on the day trial was

scheduled to begin, the prosecutor informed the court of an issue with discovery,

because she had that day produced three additional pieces of discovery:           (1)

surveillance video footage from a gas station near the crime scene at the relevant

time, (2) a video recording of Collins’ codefendant, Brittany Lawson’s police

interview and (3) Lawson’s historic cell site location data.

              The court conducted an extensive hearing into the attendant

circumstances including discussion of the evidence and the nature of the violation,

hearing argument from both parties. The prosecutor stated that the detective’s

report “included narration of all the evidence” that she provided to Collins earlier

that day. Collins admitted that he was in possession of the detective’s report.

              The prosecutor informed the court that her failure to provide the

evidence to Collins was unintentional. Collins’ attorney did not dispute this, and

observed that she was a “good prosecutor.” The prosecutor explained that multiple

attorneys had worked on the case before her and that she herself had received the

video recordings that same day, shortly before she produced it to Collins.

Nevertheless, she accepted responsibility for the error.
              The court inquired into the nature of the videos. The prosecutor

stated that only a few seconds of the gas station surveillance video were relevant,

depicting a gray truck in the vicinity of the crime that was described as matching

Collins’ truck. As to Lawson’s recorded police interview, the court inquired whether

the prosecutor was planning on calling Lawson as a witness. The prosecutor

indicated that Lawson would be testifying at trial and was providing her testimony

in exchange for a diversion agreement and confirmed that Lawson’s statement was

contained in the detective’s report that was in Collins’ possession. Collins agreed

that Lawson’s statement was reflected in the detective’s report.

              Addressing the cell site location data, the prosecutor stated that the

records indicated that Lawson was within four miles of the crime scene and that the

detective’s report reflected any probative information from the records. The court

confirmed that “to the extent that [the prosecutor] would use any of [the cell site

location information] and call [Lawson as a witness], that’s already been provided

to defense counsel.”

              At multiple points during the hearing, the court addressed Collins and

informed him that it would give him time to review the evidence before the jury was

sworn “so if there is something that you can raise between now and tomorrow from

the video that would materially prejudice you or information that you didn’t already

have through the detective report, then we’ll address a Motion for Continuance at

that time * * *.” The court opined that, from the parties’ statements it did not believe

the discovery violation was intentional or malicious, but was rather a “mutual miss”
to the extent that Collins knew the evidence existed because of the detective’s report

and the prosecutor was unaware that Collins did not have it.

               The following day, before trial began, the court continued its inquiry

into the discovery violation and asked whether Collins’ counsel reviewed the video

recordings and whether there was anything materially different from what was

contained in the detective’s report. Counsel stated that he did not review the gas

station video but confirmed that “stills” taken from it did depict a gray truck.

               The court asked counsel if, after his review, he saw anything that was

materially different from the detective’s report, prejudicial or whether there was

anything that would cause him to change his approach to the case. Counsel

responded “[n]o, your Honor.”

               The court turned to the video of Lawson’s police interview and again

inquired whether counsel found anything materially different from that which was

recorded in the detective’s report, prejudicial or that would make him approach the

case differently.

              Counsel did not directly answer the question, instead noting that “new

information” was contained in the video recording including statements about

alleged conversations between the victims and Lawson. The court asked counsel if

Collins wanted a continuance in light of this information or whether he would be

able to proceed with trial and address any concern he had with Lawson or the victims

via cross-examination.      Counsel responded that the video contained “new

information” and that he had not had the opportunity to “do the necessary follow-
up” with Lawson or the victims. Counsel also wanted Collins to have the ability to

review the video. The court confirmed that Lawson and the victims were on the

witness list and that counsel, therefore, had the opportunity to talk with them:

      There is nothing that prevents you from talking to any witness. The
      diversion agreement does not prevent you from speaking to [Lawson].
      And if she chose not to speak to you, that’s every right of any witness
      on the advice of counsel or not * * * but you do have these person’s [sic]
      names on the witness list. The fact that two people that were known to
      each other after the incident; one called in and said, “I’m calling the
      police on you,” I don’t think demands further investigation more than
      being able to discuss it with them because they’re on the witness list
      and call them and just discuss generally the case, but also this is cross-
      examination.

              The state sought to clarify that the “new information” Collins’ counsel

found in the interview video, stating:

      [A]lot [sic] of those facts are already within the police report * * * and
      that was provided to defense many months ago.

      Not only that, jail calls were provided and social media was provided, I
      believe back in January or February. The social media shows ongoing
      threats by the defendant provided by the victims so, you know, there is
      ongoing communication.

              The state then confirmed that “the sum and substance of what

[Lawson] said in her interview is also the same thing that was provided elsewhere in

other forms of discovery.”

              The court agreed that Collins should have the opportunity to review

the video and adjourned for a recess to provide Collins time to review the video of

Lawson’s interview. After the recess, the court addressed Collins’ counsel:

      The Court: Okay. And so it’s my understanding that the substance of
      [Lawson’s statement] * * * was partially in the detective’s supplement.
      But the same substance or allegations or claims or basis for her
      statements were also found elsewhere in other discovery.

      Counsel:      Yes, that’s correct.

      The Court: Okay. All right. So then we can continue.

      Counsel:      Yes, your Honor.

              Collins argues that the trial court erred because it did not delay trial in

response to the discovery violation. He claims, without offering any support or

explanation, that the violation “materially altered” his trial strategy and denied him

a fair trial. We disagree. Review of the record does not indicate that the prosecutor’s

failures were willful, that foreknowledge would have aided Collins in preparing his

defense or that he was unfairly prejudiced. See Darmond, 135 Ohio St.3d 343, 2013-

Ohio-966, 986 N.E.2d 971 at ¶ 35.

              We find nothing in the record to indicate that the discovery violation

was willful. To the contrary, and as the trial court observed, the violation appears to

be unintentional.

              As to whether foreknowledge of the evidence would have aided his

defense, we note that Collins admitted he was in possession of the detective’s report

that details the video and phone record evidence. The trial court noted that Collins

was thus on notice that the evidence existed. This is not to suggest that it became

Collins’ burden to obtain the video recordings and phone records after he was made

aware of them through the detective’s report, or that such reference in a detective’s

report is tantamount to the evidence itself for discovery purposes. See State v.

Wilson, 8th Dist. Cuyahoga No. 97465, 2012-Ohio-3567, ¶ 18 (failure to disclose
audio recording of detective interview potentially to be used at trial violated Crim.R.

16; indication in detective’s statement that recording existed does not shift burden

to defendant to seek out recording). Nevertheless, in this case, the extent to which

the detective’s report detailed the video and phone records minimizes the potential

impact of not having the evidence itself for defense preparation.

                Moreover, Collins does not actually claim to have suffered any unfair

prejudice as a result of the discovery violation. Instead, he speculates that were the

trial court to delay the trial he would have had more time for “adequate review” of

the evidence, “additional discussions regarding trial strategy” and “an opportunity

to seek out review by an independent expert if necessary.” Collins does not explain

how any of this speculation would have provided him any benefit.

                As discussed, the trial court afforded Collins and his attorney time to

review the evidence and it ensured that the evidence was not materially different or

prejudicial from what was contained in the detective’s report or was otherwise

information that “[he] should have known earlier.” Collins did not identify anything

of substance.     He did not dispute the prosecutor’s claim that the gas station

surveillance video was merely cumulative of other evidence addressed in the

detective’s report that identified Collins and his truck at the crime scene, namely the

victim’s statement.

                With regard to Lawson’s interview video, Collins agreed that the

detective’s report was only a partial reflection of the entire interview. However, he
admitted that anything in the video that was not reflected in the detective’s report

was otherwise established in discovery that he possessed.

              As to the cell site location data, Collins did not dispute that any

relevant information was contained in the detective’s report and that any

information that the state would use had previously been provided to Collins.

               This was a minimal discovery violation. Nevertheless, even if we were

to assume that the trial court failed to properly cure the discovery violation, the error

would be harmless because, as discussed, Collins fails to identify any prejudice that

resulted from the discovery violation. See State v. Newell, 8th Dist. Cuyahoga No.

106584, 2019-Ohio-976, ¶ 42.

               We overrule the second assignment of error.

3. Denial of Motion for Mistrial

               In the third assignment of error, Collins argues the trial court erred by

denying his motion for a mistrial after Detective Schultz testified that his attempt to

interview Collins was unsuccessful. Collins asserts that this testimony constitutes a

violation of his Fifth Amendment right to remain silent.

              Collins argues that the detective impermissibly referred to his pre-

arrest silence twice, once during his direct examination and again during his cross-

examination. During his direct examination the prosecutor inquired about the

course of the investigation and Schultz testified:

      So after identifying [Collins and Lawson] I attempted to reach out to
      them to set up potential interviews to get their side of the story, if there
      was any foundation of the allegations against them at some point. I was
      unable to schedule those interviews.

               There was no objection. During cross-examination, in the midst of a

line of questions relating to whether the detective was biased in his investigation,

the following exchange occurred between Collins’ attorney and Schultz:

      Q. To the extent that you, as being a detective, the person that is
      unbiased and the person who is just supposed to call it just the way it
      is, you’re the type of person you have to talk to everyone that provides
      information critical to your case because you’re not on one side or the
      other.

      A. Correct.

      ***

      Q. So it’s your job to interview people that provided information so
      you know the integrity of what you’re receiving.

      A. Correct. * * * But I also did attempt to have Mr. Collins and Ms.
      Lawson speak to me regarding this matter.

Collins’ attorney objected.

              In general, “[u]se of a defendant’s pre-arrest silence as substantive

evidence of guilt violates the Fifth Amendment privilege against self-incrimination.”

State v. Leach, 102 Ohio St.3d 135, 2004-Ohio-2147, 807 N.E.2d 335, at syllabus.

However, one exception to this rule exists where the state uses a defendant’s pre-

arrest silence as evidence of the “course of the investigation.” Id. at ¶ 32.

               In Leach, the defendant’s conviction was predicated solely upon the

credibility of the state’s witness. Leach at ¶ 29. During trial, an officer testified that

he contacted the defendant during the course of the investigation:
      I asked [the defendant], I told him that I had been made aware that he
      wanted to talk to the police about what had occurred at the house that
      night, and I made arrangements. He said he would come in and talk to
      me at 2:30 in the afternoon [later that day].

Id. at ¶ 5. When the officer was asked whether the defendant kept the appointment

or whether he had any further contact with the defendant, he testified:

      No. * * * I believe I contacted him. Either I contacted him — I know he
      left a message on my machine in regards to he wanted to speak with an
      attorney before talking with the police.

Id. The Supreme Court found that the officer’s testimony that the defendant had

made an appointment to speak with police but had not kept that appointment was

legitimate evidence as related to the course of the investigation. Id. at ¶ 32.

              In this case, the detective’s statement during direct examination about

being unable to schedule an interview with Collins and his statement on cross-

examination about attempting to speak with Collins were admissible to explain the

course of the investigation. See State v. Stone, 8th Dist. Cuyahoga No. 100794,

2014-Ohio-4803, ¶ 26 (“[T]estimony about defendant’s silence] was not elicited * * *

as substantive evidence of his guilt. Rather it was elicited to explain to the jury why

* * * the company initiated a police investigation.”).

              State v. Jackson, 8th Dist. Cuyahoga No. 88345, 2007-Ohio-2925, is

instructive as to this point. In Jackson, a detective testified that during the course

of a shooting investigation, he spoke with the defendant and attempted to set up an

interview with him. The detective testified that the defendant missed several such

appointments before finally coming to the police station for an interview. Id. On

appeal, the defendant argued that his right against self-incrimination was violated
when the state introduced evidence of his initial refusal to speak with police. Id. at

¶ 25. This court rejected the argument, explaining:

       The testimony concerning the missed appointments was admissible to
       explain the course of the investigation. Unlike the testimony found
       impermissible in Leach, the testimony here did not involve defendant
       invoking his right to counsel. Conversely, the testimony that defendant
       had missed appointments is like the testimony the Ohio Supreme Court
       found to be legitimate in Leach.

Id. at ¶ 30.

               Similarly, in this case, the detective’s testimony only involves his

inability to set up an interview with Collins. There is no mention of Collins refusing

and invoking his right to counsel. As such, the testimony was admissible to explain

the course of the investigation. The trial court, therefore, did not err by denying

Collins’ motion for a mistrial based on his Fifth Amendment right to remain silent,

because there was no such violation.

               We overrule the third assignment of error.

4. Ineffective Assistance of Counsel

               In the fourth assignment of error, Collins argues that he was denied

the effective assistance of counsel based on counsel’s response to the discovery issue

that were the subject of the first two assignments of error. Collins argues that his

counsel was deficient because he did not (1) request a delay in trial, (2) object to

inclusion of the evidence or (3) move for a mistrial based on its inclusion.

               A criminal defendant has the right to effective assistance of counsel.

Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984).    To establish ineffective assistance of counsel, a defendant must

demonstrate: (1) deficient performance by counsel, i.e., that counsel’s performance

fell below an objective standard of reasonable representation, and (2) that counsel’s

errors prejudiced the defendant, i.e., a reasonable probability that but for counsel’s

errors, the result of the trial would have been different. Id. at 687-688, 694; see also

State v. Ford, 158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 391 (“Reversal

of a conviction for ineffective assistance of counsel requires that the defendant show,

first, that counsel’s performance was deficient and second, that the deficient

performance prejudiced the defendant so as to deprive the defendant of a fair trial.”).

“Reasonable probability” is “probability sufficient to undermine confidence in the

outcome.” Strickland at 694.

              As discussed in the second assignment of error, the discovery violation

in this case was minimal and was appropriately addressed.            Collins has thus

articulated no basis for us to conclude that his counsel’s performance was deficient.

Moreover, we note that aside from the mere statement that he was prejudiced by his

counsel’s actions, Collins has provided no explanation as to how he actually was

prejudiced.

              We overrule the fourth assignment of error.

5. Manifest Weight of the Evidence

              In the fifth assignment of error, Collins argues that his convictions are

against the manifest weight of the evidence.
               Evaluating a manifest weight of the evidence challenge requires this

court to review the record, weigh the evidence and reasonable inferences, consider

witness credibility and determine whether, in resolving conflicts in the evidence, the

trier of fact clearly lost its way and thereby created a manifest miscarriage of justice.

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). In conducting

such a review, we remain mindful that witness credibility and the weight to be given

to evidence are primarily assessments for the trier of fact. State v. Bradley, 8th Dist.

Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d

230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Reversal on the weight

of the evidence is reserved for the “‘exceptional case in which the evidence weighs

heavily against the conviction.’” Thompkins at 387, quoting State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

              Collins attacks the quality of the gas station surveillance video and cell

phone site location data and the conclusions that can be drawn from them. He

asserts that the video is “grainy,” and that, although it was clear enough to depict a

gray truck, he notes that the detective admitted during his testimony he could not

identify any occupant or make out the license plate number. These claims, and the

extent to which they pertain to whether Collins fired a bullet into Tunisha’s house-

aside, the jury was free to accept or reject that the video depicted Collins’ truck.

Interpreted in any light, the video is not evidence that Collins did not shoot the

house.
               As to the cell phone records, Collins admits that the records do show

that Lawson’s phone pinged towers near the crime at the relevant time, but notes

that when the detective testified about these records he admitted that he did not

personally compile the data, that he would not know if there was any error in the

records and acknowledged he was not an “expert” in this kind of data interpretation.

Again, the jury had the ability to draw its own conclusion from these records. We

note that Lawson’s testimony that she was present with Collins at Tunisha’s house

is undisputed. Moreover, as was the case with the surveillance video, the cell phone

records are not evidence that Collins did not shoot the house.

              Collins asserts that Tunisha’s testimony was not reliable or credible.

To substantiate this claim, Collins notes that, after he purportedly fired the gun,

Tunisha immediately called her mother rather than the police and that when she did

call the police “one or two minutes” later, she identified the shooter as “[her] sister’s

boyfriend” rather than providing Collins’ legal name. As noted, Tunisha testified

that she did not know Collins’ name when she called 911. Collins further complains

that Tunisha alleged in a written statement that he and Lawson “kept calling and

threatening her” but that she admitted during trial that neither Collins nor Lawson

actually called her. Again, the extent to which any of this bears on Tunisha’s

credibility is a determination within the purview of the jury. Regardless, none of it

constitutes evidence weighing against conviction.

               Collins asserts that there were “significant inconsistencies” between

Tuquisha’s and Rochelle’s testimony, although he identifies only one. Tuquisha
claimed that after Collins left Rochelle’s house, she and Rochelle briefly stopped at

Tunisha’s before going to a dental appointment and that Tunisha called Rochelle

about the gunshot while they were en route. Rochelle’s testimony, in contrast, was

that she received Tunisha’s call about the gunshot while they were en route to

Tunisha’s house.       Our disagreement with Collins’ characterization of this

inconsistency as “significant” aside, this inconsistency is unrelated to whether

Collins fired the shot and is not evidence weighing against conviction.

                Collins also attacks Lawson’s credibility, claiming her testimony was

“conflicted” because she “wanted to avoid a warrant and maintain her placement in

the Diversion Program.”       Lawson testified that she thought she remembered

“showing up at a house in Euclid,” though she testified that she did not recall any

details of the incident, including any conversation that transpired, whether anything

was out of the ordinary or whether any weapon was present. She explained “I think

I was on drugs or something.” After further discussion between the prosecutor and

Lawson the following exchange occurred:

      Q. Okay. So now refreshing your memory, based on your interview
      with the detective and you telling him about the gun, you remember
      that there was a gun on March 6th of 2018?

      A. Yeah, I guess.

      Q. Yeah, you — I guess you remember there was a gun?

      A. Yes.

      Q. Do you remember who had the gun?

      A. I didn’t have it.
      Q. Okay. Do you remember it being in the car or the pickup truck?

      A. I said that.

      Q. Yes?

      A. Yes.

      Q. Okay. Do you remember anybody holding it?

      A. No.

      Q. Do you remember Senyon Collins holding it?

      A. No, I really don’t remember.

      Q. Okay. But you now remember the gun. Right?

      A. Yes.

      Q. You remember it being in the car. Right?

      A. Yes.

                To the extent that any of Lawson’s testimony conflicts with Tunisha’s

testimony about the incident that she was “a hundred percent sure” that Collins fired

the shot into her house, it was the jury’s obligation to resolve that conflict. We

cannot say that in so doing the jury lost its way.

                It is the province of the jury to “believe or disbelieve any witness or

accept part of what a witness says and reject the rest.” State v. Antill, 176 Ohio St.

61, 67, 197 N.E.2d 548 (1964). This is not the exceptional case where the evidence

weighs heavily against conviction. State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997).

                We overrule the fifth assignment of error.

                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 to carry this judgment into execution.          The defendant’s

conviction having been affirmed, any bail pending is terminated. Case remanded to

the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



EILEEN A. GALLAGHER, JUDGE

PATRICIA ANN BLACKMON, P.J., and
RAYMOND C. HEADEN, J., CONCUR
