         [Cite as State v. Saunders, 2017-Ohio-8557.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                    :     APPEAL NO. C-160781
                                                        TRIAL NO. 16CRB-2972
        Plaintiff-Appellee,                       :

  vs.                                             :
                                                         O P I N I O N.
WESLEY SAUNDERS,                                  :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                           Remanded

Date of Judgment Entry on Appeal: November 15, 2017


Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and
Christopher Liu, Appellate Director, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Demetra
Stamatakos, Assistant Public Defender, for Defendant-Appellant.
                   OHIO FIRST DISTRICT COURT OF APPEALS




ZAYAS, Presiding Judge.
          {¶1}   Wesley Saunders appeals the judgment of the Hamilton County

Municipal Court, convicting him, after a bench trial, of assault. We affirm the

trial court’s finding of guilt, but we reverse the sentence, and remand the

cause to the trial court for resentencing because the trial court did not afford

Saunders his right of allocution.

                                     Facts

          {¶2}   On December 13, 2015, Wesley Saunders was involved in a car

accident. While he was stopped at a red light, he was hit from behind by a car

driven by Laverda Taylor. The impact of the crash caused Saunders’ car to hit

the car in front of him and caused his air bag to deploy. His car started

smoking, and Saunders exited from the vehicle.

          {¶3}   Saunders confronted Taylor and became angry and upset when

he learned she had no car insurance.       While Saunders was arguing with

Taylor, Alfred Crawford, a passenger in Taylor’s car, got out of the car.

Crawford was approached by the driver of the car that was struck by

Saunders’ car, who demanded money and tried to reach into Crawford’s

pocket.     After pushing the third driver’s hand away, Crawford noticed

Saunders becoming increasingly confrontational with Taylor.

          {¶4}   Both Crawford and Taylor believed that Saunders was going to

strike her, so Crawford approached and asked Saunders to back away from

Taylor.     Crawford and Saunders began to fight.      During the altercation,

Crawford, who admitted he had been drinking tequila earlier that evening,

tripped on the curb and fell to the ground. While he was on the ground,

Saunders put him in a chokehold. While Crawford was on the ground, he was


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                  OHIO FIRST DISTRICT COURT OF APPEALS



repeatedly kicked and punched. Eventually, Crawford lost consciousness.

When the police arrived, Crawford was taken to the hospital to be treated.

Crawford suffered a severe concussion, a sprained knee, and multiple bruises

around his eyes, neck, and elbow.

       {¶5}    At trial, Saunders testified that Crawford confronted him and

accused him of causing the accident. Saunders, who believed Crawford was

intoxicated, stated that Crawford had swung at him first. Saunders responded

by engaging in a fight and putting Crawford in a chokehold to restrain him

until the police arrived. Saunders denied hitting or kicking Crawford while he

restrained him, but testified that the third driver did.

       {¶6}    Both Crawford and Taylor testified that Saunders hit Crawford

first, and that Saunders continued to hit and kick Crawford after he was on

the ground. After a bench trial, the court found Saunders guilty. The trial

court determined that Crawford’s testimony of the events was more credible

than Saunders’ version.

       {¶7}    The court continued the case for sentencing and requested a

presentence investigation (“PSI”). The victim did not submit to a victim-

impact statement for inclusion in the PSI. At the sentencing hearing, the

court invited Saunders’ counsel to speak in mitigation. However, the court

did not address Saunders and ask whether he wished to make a statement.

The court sentenced Saunders to a suspended jail term of 180 days and one

year of community control. The sentence was stayed pending appeal.

                              Manifest Weight

       {¶8}    In his first assignment of error, Saunders contends that the

conviction was against the manifest weight of the evidence because Crawford



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started the fight, and Saunders merely defended himself. Saunders primarily

argues that the testimony of Crawford and Taylor was not credible.

       {¶9}   However, it is well settled law that matters as to the credibility

of witnesses are for the trier of fact to resolve. See State v. Railey, 2012-Ohio-

4233, 977 N.E.2d 703, ¶ 14 (1st Dist.). We may consider the credibility of the

witnesses, yet we are guided by the presumption that the trial court in a bench

trial, “is in the best position to take into account inconsistencies, along with

the witnesses' manner and demeanor, and determine whether the witnesses'

testimony is credible.” State v. Strider-Williams, 10th Dist. Franklin No.

10AP-334, 2010-Ohio-6179, ¶ 13. A reviewing court must give great deference

to the factual findings of the judge regarding the credibility of the witnesses.

Id.

       {¶10} Here, the trial court determined that Crawford’s testimony was

more credible than Saunders’. After reviewing the entire record, we cannot

say that the court clearly lost its way and created such a manifest miscarriage

of justice that we must reverse Saunders’ conviction and order a new trial.

Therefore, the conviction was not against the manifest weight of the

evidence. See State v. Thompkins, 78Ohio St.3d 380, 387, 678 N.E.2d 541

(1997). We overrule Saunders’ first assignment of error.

                            Right of Allocution

       {¶11} In his second assignment of error, Saunders contends that he

was denied his right of allocution at sentencing because the court failed to

address him personally and allow him the opportunity to speak. We agree.

       {¶12} The plain language of Crim.R. 32(A)(1) imposes a mandatory

duty upon the trial court to address the defendant and provide him with the

opportunity to speak before sentencing. State v. Green, 90 Ohio St.3d 352,

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                   OHIO FIRST DISTRICT COURT OF APPEALS



359-360, 738 N.E.2d 1208 (2000). “A Crim.R. 32 inquiry is much more than

an empty ritual: it represents a defendant's last opportunity to plead his case

or express remorse.” Id. at 352, 359-360.         When a trial court imposes

sentence without first asking the defendant whether he wishes to make a

statement in his behalf, the judgment of sentence shall be reversed and the

cause shall be remanded for resentencing, unless the error is invited or

harmless. State v. Campbell, 90 Ohio St.3d 320, 325-326, 2000-Ohio-183,

738 N.E.2d 1178.

       {¶13} In the present case, the trial court failed to follow the mandate

of Crim.R. 32(A)(1) when it did not personally address Saunders and asked if

he wished to speak. Based on a review of the record before us, we cannot find

that the trial court's error was invited or harmless. Accordingly, we sustain

his second assignment of error, reverse the sentence, and remand the cause

for resentencing. The trial court’s judgment is affirmed in all other respects.

               Judgment affirmed in part, reversed in part, and cause remanded.

MYERS and MILLER, JJ., concur.




Please note:
       The court has recorded its own entry this date.




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