[Cite as State v. Williams, 2016-Ohio-2838.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103325




                                       STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                      ALEX WILLIAMS
                                                        DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-592311-A

        BEFORE: S. Gallagher, J., Keough, P.J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: May 5, 2016
ATTORNEY FOR APPELLANT

David L. Doughten
David L. Doughten Co., L.P.A.
4403 St. Clair Avenue
Cleveland, Ohio 44103


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: David Schwark
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:

      {¶1} Alex Williams (“Alex”) appeals from his conviction for felonious assault

and aggravated menacing, claiming that his conviction is against the manifest weight of

the evidence. We disagree and affirm.

      {¶2} In October 2014, Alex attacked his upstairs neighbor with a machete. Alex,

his brother Kurtis, and a friend had been fighting with the victim (“Sherman”) and

Sherman’s brother and niece all day. The feuding neighbors were unable to ever coexist.

Police had responded to the ongoing fight earlier in the day, but witnesses were reluctant

to cooperate, and the agitators, Alex and Kurtis, left the area. After the police officers

left, thinking tempers had cooled, Alex and Kurtis returned, evidently to finish what was

started. As the physical altercation escalated, Sherman’s brother was accosted by Alex

and Kurtis. Sherman, unarmed, charged at both brothers. Alex pulled a machete and

swung at Sherman, who defended himself by putting his hand out to stop the blow. Cut

and badly bleeding, Sherman retreated to a nearby gas station to await medical help.

      {¶3} Sherman knew the Williams brothers and could distinguish between the two.

He remembered seeing Alex, and not Kurtis, swing the machete at him. Sherman’s niece

saw the attack and knew the Williams brothers. She also testified that Alex was the

attacker. At trial, Alex called his mother and another witness. His mother testified that

Alex and Kurtis looked different: Alex was more manicured, and Kurtis was unkept.

Alex’s mother did not see the actual attack, but did tell Alex to leave the area after the

attack. The other witness, who had been drinking all day, did not know anyone, but
claimed the more unkept Williams brother, therefore Kurtis, was the attacker.           The

witness did not speak to the police officers who responded.

       {¶4} After the jury trial, Alex was found guilty of felonious assault and aggravated

menacing and sentenced to an aggregate three-year term of imprisonment. He now

appeals, advancing a sole assignment of error claiming his conviction is against the

manifest weight of the evidence. We find no merit to his claim.

       {¶5} When reviewing a claim challenging the manifest weight of the evidence, the

court, reviewing the entire record, must weigh the evidence and all reasonable inferences,

consider the credibility of the witnesses, and determine whether, in resolving conflicts in

the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage

of justice that the conviction must be reversed and a new trial ordered.           State v.

Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.               Reversing a

conviction as being against the manifest weight of the evidence should be reserved for

only the exceptional case in which the evidence weighs heavily against the conviction.

Id.

       {¶6} The weight of the testimony must still be considered by the trier of fact with

the ability to view and hear firsthand the witnesses’ testimony. State v. DeHass, 10 Ohio

St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Although appellate

courts are tasked with sitting as a “thirteenth” juror, “the demeanor of witnesses, the

manner of their responses, and many other factors observable by [a trier of fact] * * *

simply are not available to an appellate court on review.” State v. Bailey, 8th Dist.
Cuyahoga No. 97754, 2012-Ohio-3955, ¶ 12. “‘A conviction is not against the manifest

weight of the evidence solely because the jury heard inconsistent testimony.’” State v.

Hill, 8th Dist. Cuyahoga No. 99819, 2014-Ohio-387, ¶ 37, quoting State v. Wade, 8th

Dist. Cuyahoga No. 90029, 2008-Ohio-4574, ¶ 38. It is for this reason that reversing a

conviction as being against the manifest weight of the evidence is only reserved for

instances in which a miscarriage of justice would result. State v. Torres, 8th Dist.

Cuyahoga No. 99596, 2013-Ohio-5030, ¶ 93, citing State v. Raver, 10th Dist. Franklin

No. 02AP-604, 2003-Ohio-958, ¶ 21.

       {¶7} Alex’s sole argument rests with the fact that a single witness claimed to have

seen Kurtis swing the machete at Sherman and the fact that Alex’s mother claimed her

sons wore different clothing than was described by Sherman. Although the mother

attempted to shift blame to Kurtis, she did not witness the actual attack. Further, Alex

makes no attempt to question the credibility of the state’s witnesses who universally and

unequivocally identified him as the attacker. Both witnesses were familiar with both

Alex and Kurtis, and could identify each, thus rendering any inconsistencies in the color

of Alex’s clothing less compelling. As a result, we find no reason to circumvent the

jury’s resolution of the inconsistent testimony heard at trial.

       {¶8} Finally, and within the manifest weight of the evidence challenge, Alex

summarily concludes that he should have been convicted of a violation of R.C. 2903.12,

which provides in pertinent part that “no person, while under the influence of sudden

passion or in a sudden fit of rage, either of which is brought on by serious provocation
occasioned by the victim that is reasonably sufficient to incite the person into using

deadly force, shall knowingly cause serious physical harm to another,” because the victim

was the aggressor. The evidence unequivocally established that all parties engaged in a

mutual fight and Alex escalated that nondeadly fight with the use of a weapon. It is

undisputed that Sherman was unarmed. There was no serious provocation for the use of

force. State v. McDuffie, 8th Dist. Cuyahoga No. 100826, 2014-Ohio-4924, ¶ 26. His

argument is without merit.

       {¶9} The sole assignment of error is overruled, and the conviction is 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 appeal 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.



SEAN C. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
