[Cite as State v. Chambers, 2014-Ohio-4648.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

State of Ohio,                                  :

                  Plaintiff-Appellee,           :
                                                                   No. 13AP-1093
v.                                              :              (C.P.C. No. 12CR-3834)

James Chambers,                                 :           (REGULAR CALENDAR)

                  Defendant-Appellant.          :


                                         D E C I S I O N

                                    Rendered on October 21, 2014


                  Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for
                  appellee.

                  Meeks & Thomas Co., LPA, and David H. Thomas, for
                  appellant.

                   APPEAL from the Franklin County Court of Common Pleas

CONNOR, J.
          {¶ 1}   Defendant-appellant, James Chambers, appeals from a judgment of the
Franklin County Court of Common Pleas finding him guilty, pursuant to jury verdict, of
one count of felonious assault, a felony of the second degree. Because both sufficient
evidence and the manifest weight of the evidence support defendant's conviction, we
affirm.
I. FACTS AND PROCEDURAL HISTORY
          {¶ 2} On August 2, 2012, the state indicted defendant on one count of felonious
assault, in violation of R.C. 2903.11, with a firearm specification, and one count of having
a weapon while under disability ("WUD"), in violation of R.C. 2923.13. The events giving
rise to the indictment occurred on July 15, 2012.
No. 13AP-1093                                                                             2


       {¶ 3} On that day the victim, Nekalah, then 13-years-old, left her apartment and
went to church with her mother, father, and six siblings. Nekalah and her family lived at
68 North Hampton Street, an apartment building comprised of four apartments.
apartments A and B were located on the first floor and apartments C and D were located
on the second floor. Nekalah and her family lived in apartment A, Nekalah's grandmother
and aunt stayed in apartment B, and defendant resided in apartment C, which was
directly above apartment A. After the church service, the family attended a church picnic.
Thereafter, Nekalah, her sisters and some of her female cousins returned to apartment A
via the church bus. Nekalah's mother and father stayed behind to clean up after the picnic.
       {¶ 4} When they arrived home to apartment A, the girls settled down to watch a
movie. Nekalah's aunt, Kellie, came over from next door to watch the movie with the girls.
Nekalah and Kellie both saw defendant "walk past the window with one of his friends.
And we heard them enter the building, go upstairs." (Tr. 174.) Shortly thereafter, as
Nekalah sat on the couch, she "thought [she] heard firecrackers." (Tr. 247.) She said it
sounded like two firecracker sounds. She then got up from the couch and ran to the back
of the apartment "[b]ecause the ceiling was falling." (Tr. 247.) Nekalah began patting
herself "[a]nd then [she] saw blood" coming from her left arm. (Tr. 248.) Kellie stated that
Nekalah did not scream loudly, but said " 'I got shot' " and started crying. (Tr. 178.)
       {¶ 5} Nekalah then ran to her grandmother's door, Kellie was already there
banging on the door to apartment B. Nekalah heard people coming down the stairs and
she recognized defendant's voice. Nekalah heard defendant say to the man he was with, "
'You already know how I am, bro. You know how I do it.' " (Tr. 254.) Before the men got
all the way down the stairs, Nekalah ran outside to the back door of her grandmother's
apartment. Kellie noted that defendant was "acting normal" and talking to his friend as he
came down the stairs, and that the two men just "went out the door." (Tr. 177.) The bullet
did not fully enter Nekalah's arm, but grazed it, causing her to bleed and be in pain.
Nekalah stated that she has a scar from where the bullet grazed her arm.
       {¶ 6} When the police arrived shortly after the incident, individuals at the scene
informed the officers that someone had "shot from upstairs down through the floor." (Tr.
35.) Police noted that as they walked into apartment A "five to ten feet from the top, you
saw where there was spackling was falling, and two holes" in the ceiling. (Tr. 37.)
No. 13AP-1093                                                                           3


Nekalah's mother testified that those holes were not in her ceiling when she left for church
that morning. Spackling was all over the floor and the couch in apartment A. Police
recovered two spent bullets from apartment A, one from the couch where Nekalah had
been sitting, and one from a picture frame which was hanging on the wall behind the
couch. The police eventually made entry into apartment C. No one was there, but officers
found three "shell casings on the floor," and noticed the "butt of a gun that was sticking
underneath of the cushion of a chair." (Tr. 38.) The gun was an Intra Tec 9mm Luger
pistol ("Tec-9"), and it was loaded with live bullets in the magazine. Defendant's DNA was
the major donor of DNA on the Tec-9. The police "saw two" bullet holes in the floor of
apartment C. (Tr. 39.)
       {¶ 7} The woman who lived in apartment D, Cambria Slokum, explained that she
was in her apartment on July 15, 2012, and saw defendant and another man enter the
apartment building. Slokum said that the door to defendant's apartment was open, and
that as her "door was still cracked open" she saw what "looked like a machine gun" in
defendant's apartment. (Tr. 140.) Slokum stated that although she did not see his face, she
saw "like the side of the body," and from what she "could see from the side view" she saw
defendant shoot the gun. (Tr. 141-42.) Slokum stated that defendant had the gun pointed
"[t]owards the floor" when he fired it. (Tr. 142.) After the shooting, Slokum heard
defendant "and the other guy they were laughing and walking out of the building." (Tr.
146.) Slokum stated that, once the "screaming took place" downstairs, she saw defendant
and the other man "run." (Tr. 147.)
       {¶ 8} Defendant explained that on July 15, 2012, he was out on the street in front
of his apartment building playing cards with friends, when his friend Kenny showed up.
Defendant explained that "Kenny, he sells items. He always got items for sale; like clothes,
shoes, maybe." (Tr. 303-04.) Kenny told defendant he had something to sell him. The
men went up to defendant's apartment, and Kenny pulled the Tec-9 firearm out of a bag
he had been carrying. Kenny took the gun out of the bag "and handed it to [defendant],
[defendant] grabbed it." (Tr. 314.) Defendant looked at the firearm, noticed it was an
"automatic weapon" and, defendant stated "I don't want no problems," he determined the
firearm was "too much." (Tr. 314.) Defendant then explained that "[a]s [he] handed it
back to [Kenny], somehow he dropped it and it goes off." (Tr. 314.) Defendant stated that
No. 13AP-1093                                                                                     4


"as [he] remember[ed], [the gun] hit the floor, and it went off one time. That's all I
remember. It went off one time." (Tr. 314.) However, after sitting through trial, defendant
said he believed the gun did go off twice.
       {¶ 9} After the gun went off, defendant stated that he "panicked, * * * threw it,"
and "walked out the house." (Tr. 315-16.) Defendant did not recall hearing any screaming
as he walked out of the house. Defendant was across the street on North Hampton when
the police arrived, but he did not approach the authorities to inform them that the gun
went off accidentally. Defendant heard that he was a suspect in the shooting and, 11 days
after the incident, defendant turned himself in to the authorities. Defendant reiterated at
trial that "[i]t was a total accident. * * * [Kenny] * * * didn't do it on purpose." (Tr. 318.)
       {¶ 10} Defendant elected to have the WUD charge tried to the court, but had the
felonious assault charge and firearm specification tried to the jury. The judge found
defendant guilty of WUD, and the jury found defendant guilty of felonious assault and the
firearm specification. The court sentenced defendant to 4 years of incarceration on the
felonious assault charge, with an additional one year of mandatory, consecutive prison
time on the firearm specification, and to 24 months of imprisonment on the WUD charge.
The court ordered that the sentence on the WUD charge be run concurrently with the
felonious assault sentence, for a total prison term of 5 years.
II. ASSIGNMENTS OF ERROR
       {¶ 11} Defendant appeals, assigning the following errors:
               [I.] THE TRIAL COURT ERRED AND THEREBY DEPRIVED
               APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED
               BY THE FOURTEENTH AMENDMENT TO THE UNITED
               STATES     CONSTITUTION      AND    COMPARABLE
               PROVISIONS OF THE OHIO CONSTITUTION BY FINDING
               APPELLANT GUILTY, AS THE PROSECUTION FAILED TO
               OFFER SUFFICIENT EVIDENCE TO PROVE BEYOND A
               REASONABLE DOUBT EACH AND EVERY ELEMENT OF
               FELONIOUS ASSAULT.

               [II.] THE TRIAL COURT ERRED AND THEREBY
               DEPRIVED APPELLANT OF DUE PROCESS OF LAW AS
               GUARANTEED BY THE FOURTEENTH AMENDMENT TO
               THE UNITED STATES CONSTITUTION BY FINDING
               APPELLANT GUILTY, AS THE VERDICT FOR THE
No. 13AP-1093                                                                            5


              CHARGE OF FELONIOUS ASSAULT WAS AGAINST THE
              MANIFEST WEIGHT OF THE EVIDENCE.

       {¶ 12} Defendant has not appealed his WUD conviction. Accordingly, we confine
our analysis to his felonious assault conviction.
       {¶ 13} Whether evidence is legally sufficient to sustain a verdict is a question of
law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is a test of adequacy.
Id. The evidence is construed in the light most favorable to the prosecution to determine
whether a rational trier of fact could have found the essential elements of the offense
proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph
two of the syllabus; State v. Conley, 10th Dist. No. 93AP387 (Dec. 16, 1993). When
reviewing the sufficiency of the evidence the court does not weigh the credibility of the
witnesses. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 79.
       {¶ 14} Sufficiency of the evidence and manifest weight of the evidence are distinct
concepts; they are "quantitatively and qualitatively different." Thompkins at 386. When
presented with a manifest weight argument, we engage in a limited weighing of evidence
to determine whether sufficient competent, credible evidence permits reasonable minds
to find guilt beyond a reasonable doubt. Conley, supra. Thompkins at 387 (noting that
"[w]hen a court of appeals reverses a judgment of a trial court on the basis that the verdict
is against the weight of the evidence, the appellate court sits as a 'thirteenth juror' and
disagrees with the factfinder's resolution of the conflicting testimony"). In the manifest
weight analysis the appellate court considers the credibility of the witnesses and
determines whether 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." Id., quoting State
v. Martin, 20 Ohio App.3d 172, 175 (1983). Determinations of credibility and weight of
the testimony remain within the province of the trier of fact. State v. DeHass, 10 Ohio
St.2d 230 (1967), paragraph one of the syllabus.         The jury may take note of any
inconsistencies and resolve them accordingly, "believ[ing] all, part or none of a witness's
testimony." State v. Raver, 10th Dist. No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v.
Antill, 176 Ohio St. 61, 67 (1964).
       {¶ 15} R.C. 2903.11 defines felonious assault, in relevant part, as knowingly
causing or attempting to cause physical harm to another by a means of a deadly weapon.
No. 13AP-1093                                                                                6


A person acts knowingly, regardless of his purpose, when "he is aware that his conduct
will probably cause a certain result or will probably be of a certain nature."              R.C.
2901.22(B). "[T]he shooting of a gun in a place where there is a risk of injury to one or
more persons supports the inference that appellant acted knowingly," regardless of his
purpose. State v. Gregory, 90 Ohio App.3d 124, 131 (12th Dist.1993). See also State v.
Foster, 10th Dist. No. 08AP-523, 2008-Ohio-3525, ¶ 13 (noting that "firing a gun through
a door behind which persons are known to be standing could satisfy the 'knowingly' mens
rea for felonious assault"); State v. Lee, 10th Dist. No. 97APA12-1629 (Sept. 3, 1998)
(noting that "[f]iring into the dwelling place of another supports an inference that an
assailant acted knowingly").
       {¶ 16} The record evidence demonstrated that defendant entered his apartment on
July 15, 2012 with his friend Kenny. Kenny took the Tec-9 firearm out of the bag and
defendant grabbed the gun. Slokum, watching from across the hall, testified that she saw
defendant fire the gun as he had it pointed down "[t]owards the floor." (Tr. 142.) Slokum
affirmed that it was defendant who she saw fire the gun. Shortly after she saw defendant
go upstairs, Nekalah heard "firecrackers," the ceiling was falling down on her, and she
said to her aunt " 'I got shot.' " (Tr. 247, 178.) The police observed two bullet holes in the
floor of apartment C, and two bullet holes in the ceiling of apartment A. They recovered
one spent bullet from the couch were Nekalah had been sitting, and found another lodged
in a picture frame behind the couch. Defendant knew that a large family occupied the
apartment below him, as he indicated his belief that there were "15 people in that house.
They laughing, the baby's crying * * *. There's a lot of activity downstairs." (Tr. 322.)
       {¶ 17} Construing the evidence in favor of the prosecution, we find there was
sufficient evidence to allow the jury to infer that defendant acted knowingly to cause
physical harm to another by means of a deadly weapon when he fired the Tec-9 firearm
down towards the floor of his second floor apartment, thereby causing physical harm to
Nekalah. Defendant asserts that sufficient evidence does not exist to support his
conviction because Slokum lacked credibility and because the police officers did not
thoroughly investigate the scene. Regardless of what extra steps the police could have
taken to investigate the scene, the record evidence sufficiently supports the elements of
felonious assault. Additionally, in a sufficiency analysis we do not consider the credibility
No. 13AP-1093                                                                            7


of witnesses or "whether the evidence is to be believed, but whether, if believed, the
evidence against a defendant would support a conviction." State v. Smith, 10th Dist. No.
08AP-736, 2009-Ohio-2166, ¶ 26.
       {¶ 18} Defendant asserts under his second assignment of error that his convictions
are against the manifest weight of the evidence. He notes that he has "consistently
claimed that this was an accidental discharge of a firearm owned by a man named Kenny."
(Appellant's brief, 13.) See State v. Vance, 5th Dist. No. 2007-COA-035, 2008-Ohio-4763,
¶ 98, citing State v. Bayes, 2d Dist. No. 00CA0032 (Dec. 29, 2000) (explaining that
"[a]ccident" is not an affirmative defense, but "a factual defense that denies that the
accused acted with the degree of culpability or mens rea required for the offense").
Although defendant's version of events was that the gun accidentally discharged when he
handed the gun back to Kenny, the jury was under no obligation to accept defendant's
testimony as truthful. See State v. Carter, 72 Ohio St.3d 545, 554 (1995).
       {¶ 19} Slokum testified that she saw defendant shoot the gun down towards the
floor of his apartment. Defendant asserts that Slokum lacked credibility, as she testified
that she heard five gunshots, she originally provided police with a fake last name, and she
admitted that she did not see the face of the shooter. Slokum explained that she provided
investigators with a fake name, "[b]ecause at that time [she] had a warrant." (Tr. 149.)
Additionally, Slokum admitted that she did not see defendant's face when he shot the gun,
as she only saw "the side of the body." (Tr. 141.) Although defendant asserts that this is
problematic, as both he and Kenny were black males of a similar build, Slokum testified
that "[t]he other guy that was with [defendant] was thinner than him and taller." (Tr. 157.)
The jury was entitled to believe all or only part of Slokum's testimony. Raver at ¶ 21. The
jury heard Slokum testify, and was in the best position to judge her credibility. We cannot
say that the jury clearly lost its way in believing Slokum's testimony that defendant fired
the Tec-9 firearm on July 15, 2012.
       {¶ 20} Defendant also asserts that the "investigators had difficulty in linking" the
Tec-9 recovered from defendant's apartment to "the spent shell casings in the apartment
and the bullets recovered downstairs." (Appellant's brief, 13-14.) The firearm expert, Mark
Hardy, however, definitively stated that, of the three shell casings found in apartment C,
these casings "were, in fact, fired by this particular weapon." (Tr. 209.) Because the spent
No. 13AP-1093                                                                           8


projectiles recovered from apartment A lacked sufficient individual characteristics to
support a comparison, Hardy was unable to determine whether those spent projectiles
were fired from the Tec-9, although he noted that he could not "eliminate that possibility
either." (Tr. 210.) As defendant admitted that the gun went off in his apartment that day,
and Nekalah testified that the bullets came down through the ceiling during the time that
defendant was in his apartment, the inability of the forensic examiners to link the spent
projectiles to the firearm does not render defendant's conviction against the manifest
weight of the evidence.
       {¶ 21} Defendant further notes that "[a]lthough shell casings were found in the
second floor apartment, when those rounds were fired could not be determined."
(Appellant's brief, 14.) However, by defendant's own testimony, Kenny brought the Tec-9
firearm into his apartment for the first time on July 15, 2012, and the forensic evidence
demonstrated that the shell casings were fired from the Tec-9. There was no evidence
indicating that Kenny brought additional shell casings into defendant's apartment and
dropped them on the floor.
       {¶ 22} Defendant additionally notes that, although the state alleged that he
"intentionally fired the weapon and that an accidental discharge could not occur with the
gun which was seized, Mr. Hardy could not discount the possibility that an accidental
discharge occurred." (Appellant's brief, 14.) Hardy explained that, in order to fire this
particular weapon, the shooter would have to pull back on the bolt handle "and allow it to
slide forward," thereby bringing "the bolt back" and allowing the bullet to move into the
chamber. (Tr. 206.) After pulling the bolt back, one would shoot the gun by pulling down
on the trigger. Hardy noted that the gun had a "trigger guard" to "prevent unintentional
contact with the trigger," and noted that there was no damage to the trigger guard. (Tr.
207-08.)
       {¶ 23} Hardy explained that he tried to make the gun accidentally discharge by
dropping it on the floor. He stated that he "attempted three times at a muzzle-to-floor
distance of two feet, and again three times at a muzzle-to-floor distance of four feet," and
could not get the gun to discharge accidentally. (Tr. 223-24.) Hardy also stated that he
could not exclude the possibility of an accidental discharge. The jury heard all of the
evidence regarding how to fire the gun, defendant's claim that the gun discharged
No. 13AP-1093                                                                             9


accidentally twice, Slokum's testimony that she saw defendant fire the gun, and Hardy's
testimony regarding his attempts to make the gun discharge accidentally by dropping it.
In light of such evidence, we cannot say that the jury lost its way by not believing
defendant's claim that the gun discharged accidentally.
       {¶ 24} Defendant further contends that when his DNA was deposited on the Tec-9
it "[could not] be determined by experts." (Appellant's brief, 14-15.) However, as
defendant admitted that he handled the Tec-9 firearm on the day of the incident, when his
DNA was deposited on that firearm, is immaterial. Defendant also asserts that "[n]o
photographs were taken to document the placement of the bullet holes in the second floor
apartment." (Appellant's brief, 15.) However, both Police Officer Andrew Hawkins and
Detective Heather Collins testified that they saw two bullet holes in the floor of apartment
C. Detective Collins noted that she "personally verif[ied] the holes" in the floor of
apartment C as she attempted to run rods through the holes. (Tr. 109.)
       {¶ 25} Defendant also contends that it was "egregious" that the officers "were not
able to extrapolate from the rods the approximate angle and location from which the
bullet was fired" and that "investigating officers never attempted to extrapolate an angle
of fire from the bullet strike to the hole." (Appellant's brief, 15.) Detective Collins
explained that the officers did not try to determine the angle of fire because they "would
have had to torn [sic] the ceiling out and didn’t really feel it was necessary." (Tr. 110.) As
Detective Collins explained: "I mean, there's a hole in the floor. There's a hole in the
ceiling downstairs. So I wasn't going to rip out the floor and the ceiling of two apartments
to do that." (Tr. 110.) Such conduct by the investigating officers hardly appears egregious,
especially as defendant admitted that the gun went off in his apartment on July 15, 2012.
       {¶ 26} Lastly, defendant asserts that the "second man from the apartment,
identified by two eyewitnesses, was never pursued nor found." (Appellant's brief, 15.)
However, defendant never gave the police any way to locate Kenny, as he could not
provide them with Kenny's last name or address. Defendant noted that even he could not
"get in contact with Kenny" as Kenny "just pops up when he wants to." (Tr. 326.)
       {¶ 27} This is not the exceptional case where the evidence weighs heavily against
the conviction. Although, under a manifest weight of the evidence analysis, we are able to
consider the credibility of the witnesses, "in conducting our review, we are guided by the
No. 13AP-1093                                                                       10


presumption that the jury, * * * is best able to view the witnesses and observe their
demeanor, gestures and voice inflections, and use these observations in weighing the
credibility of the proffered testimony." State v. Tatum, 10th Dist. No. 10AP-626, 2011-
Ohio-907, ¶ 5, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984).
Engaging in the limited weighing of the evidence which we are permitted, we cannot say
the jury clearly lost its way when it found defendant guilty of felonious assault and the
attendant firearm specification beyond a reasonable doubt. Accordingly, we find that the
manifest weight of the evidence supports defendant's conviction.
      {¶ 28} Based on the foregoing, defendant's first and second assignments of error
are overruled. Having overruled defendant's assignments of error, we affirm the judgment
of the Franklin County Court of Common Pleas.
                                                                    Judgment affirmed.


                         SADLER, P.J. and TYACK, J., concur.
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