[Cite as State v. Hayes, 2017-Ohio-7185.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                    :

                 Plaintiff-Appellee,              :

v.                                                :                 No. 16AP-531
                                                                (C.P.C. No. 15CR-1526)
Desjuan L. Hayes,                                 :
                                                              (REGULAR CALENDAR)
                 Defendant-Appellant.             :


                                            D E C I S I O N

                                     Rendered on August 10, 2017


                 On Brief: Ron O'Brien, Prosecuting Attorney, and Valerie
                 Swanson, for appellee. Argued: Valerie Swanson.

                 On Brief: The Law Office of Thomas F. Hayes, LLC, and
                 Thomas F. Hayes, for appellant. Argued: Thomas F. Hayes.


                  APPEAL from the Franklin County Court of Common Pleas

TYACK, P.J.
        {¶ 1} Desjuan L. Hayes is appealing from his conviction for murder and felonious
assault with associated firearm specifications.           He assigns four errors for our
consideration:
                 [I.] Desjuan was deprived of his constitutional right to
                 effective assistance of counsel.

                 [II.] The court failed to remove, question, or otherwise
                 investigate a juror who slept during Erica's testimony.

                 [III.] The cumulative effect of the errors described above was
                 deprivation of the right to a fair trial.
No. 16AP-531                                                                                2


                 [IV.] The convictions are contrary to the manifest weight of
                 the evidence.

       {¶ 2} Hayes was convicted after a six-day jury trial and subsequently sentenced to
incarceration for a term of 21 years to life.
       {¶ 3} In 2014, Michael Cumberland was shot while standing on the front porch of
his home. Erica Haley who was standing nearby was also shot. Cumberland died as a
result of his injuries. Haley survived and testified at trial that Hayes was the shooter.
       {¶ 4} There is no question that Cumberland was shot and killed and that Haley
was shot in the head. Part of the evidence at trial was a surveillance video of the
shootings. Again, the fact of the crime is not in dispute. The only issue at trial was the
identity of the shooter.
       {¶ 5} Haley spent a significant portion of her day with Markiesha Morris, a friend
who happened to be a half-sibling of Hayes. Morris and Haley had parted company for
the evening before the shootings occurred, but Morris viewed the surveillance video of the
shootings and testified that Hayes had been wearing clothes like that seen on the shooter
in the surveillance video when they were together earlier.
       {¶ 6} Haley, Hayes, and two other women had been given a ride earlier by
Da'Varus Cornett. Cornett testified about the time he spent with Haley, Hayes, and the
other friends.
       {¶ 7} Although Haley suffered serious brain damage as a result of the shooting,
her testimony, when linked with the surveillance video of the shootings, clearly supported
the jury's verdicts that Hayes was the shooter. Testimony by way of an alibi defense that
Hayes was in Indiana at the time was seriously less than convincing.
       {¶ 8} Sufficiency of the evidence is the legal standard applied to determine
whether the case should have gone to the jury.
       {¶ 9} State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).              In other words,
sufficiency tests the adequacy of the evidence and asks whether the evidence introduced at
trial is legally sufficient as a matter of law to support a verdict. Id. "The relevant inquiry
is whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the
No. 16AP-531                                                                                  3


syllabus, following Jackson v. Virginia, 443 U.S. 307 (1979). The verdict will not be
disturbed unless the appellate court finds that reasonable minds could not reach the
conclusion reached by the trier of fact. Jenks at 273. If the court determines that the
evidence is insufficient as a matter of law, a judgment of acquittal must be entered for the
defendant. See Thompkins at 387.
       {¶ 10} Even though supported by sufficient evidence, a conviction may still be
reversed as being against the manifest weight of the evidence. Thompkins at 387. In so
doing, the court of appeals, sits as a " 'thirteenth juror' " and, after " 'reviewing the entire
record, weighs the evidence and all reasonable inferences, considers the credibility of
witnesses and determines whether in resolving conflicts in the evidence, 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
(1st Dist.1983); see also Columbus v. Henry, 105 Ohio App.3d 545, 547-48 (10th
Dist.1995). Reversing a conviction as being against the manifest weight of the evidence
should be reserved for only the most " 'exceptional case in which the evidence weighs
heavily against the conviction.' " Thompkins at 387.
       {¶ 11} As this court has previously stated, "[w]hile the jury may take note of the
inconsistencies and resolve or discount them accordingly, see [State v.] DeHass [10 Ohio
St.2d 230 (1967)], such inconsistencies do not render defendant's conviction against the
manifest weight or sufficiency of the evidence." State v. Nivens, 10th Dist. No. 95APA09-
1236 (May 28, 1996). It was within the province of the jury to make the credibility
decisions in this case. See State v. Lakes 120 Ohio App. 213, 217 (4th Dist.1964), ("It is
the province of the jury to determine where the truth probably lies from conflicting
statements, not only of different witnesses but by the same witness.")
       {¶ 12} See State v. Harris, 73 Ohio App.3d 57, 63 (10th Dist.1991) (even though
there was reason to doubt the credibility of the prosecution's chief witness, he was not so
unbelievable as to render verdict against the manifest weight).
       {¶ 13} Applying the same legal standard we applied above, we overrule the fourth
assignment of error.
       {¶ 14} The first assignment of error alleges that trial counsel for Hayes rendered
ineffective assistance of counsel because trial counsel did not object to leading questions
No. 16AP-531                                                                                 4


submitted to Haley. We find no fault with trial counsel's performance in defense of
Hayes.
         {¶ 15} Haley suffered extremely serious brain damage as a result of being shot in
the head. Evid.R. 611(C) clearly allows the use of leading questions to develop the
testimony of a witness. Usually the leading questions are allowed to help a child develop
his or her testimony. The same theory can apply for a witness who has suffered serious
brain damage, including a party's loss of memory. Trial counsel's performance was more
than sufficient to meet the Sixth Amendment standard for effective assistance of counsel.
         {¶ 16} The first assignment of error is overruled.
         {¶ 17} The second assignment of error alleges that the court should have removed
a juror from the panel because the juror slept through at least part of the testimony of
Haley.
         {¶ 18} There seems to be agreement of the parties that the person identified as
Juror No. 2 dozed off on more than one occasion. While such conduct is not acceptable,
there is no indication in the record before us that the outcome of the trial was affected.
         {¶ 19} The surveillance video of the shooting clearly showed Michael Cumberland
and Erica Haley being shot. The trial court judge stated on the record that she was
keeping an eye on the situation and felt that the juror has been awake for the important
testimony, namely the testimony which helped identify the shooter.
         {¶ 20} Without a suggestion from either party that the juror could not fulfill the
duties incumbent on a juror, we cannot find plain error in the trial court judge's failure to
sua sponte dismiss the juror and seat an alternate.
         {¶ 21} The second assignment of error is overruled.
         {¶ 22} Having found no error in the other assignments of error, we cannot find
cumulative error. Therefore the third assignment of error is overruled.
         {¶ 23} All four assignments of error having been overruled, the judgment of the
Franklin County Court of Common Pleas is affirmed.
                                                                        Judgment affirmed.

                              KLATT and HORTON, JJ., concur.
