[Cite as State v. Johnston, 2019-Ohio-5135.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                        :

                 Plaintiff-Appellee,                  :
                                                                              No. 18AP-817
v.                                                    :                    (C.P.C. No. 17CR-818)

Hakeem O. Johnston,                                   :                (REGULAR CALENDAR)

                 Defendant-Appellant.                 :



                                               D E C I S I O N

                                   Rendered on December 12, 2019


                 On brief: Ron O'Brien, Prosecuting Attorney, and
                 Kimberly M. Bond, for appellee. Argued: Kimberly M.
                 Bond.

                 On   brief:  Todd     W.                 Barstow,   for   appellant.
                 Argued: Todd W. Barstow.


                   APPEAL from the Franklin County Court of Common Pleas

KLATT, P.J.

        {¶ 1} Defendant-appellant, Hakeem O. Johnston, appeals from a judgment of the
Franklin County Court of Common Pleas finding him guilty, pursuant to jury verdict, of
aggravated burglary, aggravated robbery, involuntary manslaughter, and felony murder,
with associated 54-month firearm specifications as to each, and guilty, pursuant to bench
verdict, of having weapons while under disability ("WUD"), with an associated 54-month
firearm specification. Because the manifest weight of the evidence supports the verdicts,
we affirm.
No. 18AP-817                                                                                  2

       {¶ 2} In 2017, Laquam Gratsy lived in a two-story house located at 255 South
Ogden Avenue. The house was well-known as a "trap house" where persons could buy, sell,
and abuse drugs. (Tr. at 179.) Two surveillance cameras mounted at the top left and top
right of the front porch captured images of persons entering and exiting the house through
the front door, which led to directly into the living room. These cameras also captured
images of persons walking along the side of the house near the front door. In addition, a
surveillance camera mounted at the top of the back of the second story monitored ingress
and egress through the back door, which led directly into the kitchen.
       {¶ 3} On January 30, 2017, Michael Reime rode with appellant, known as "Chilli,"
Devante Harris, known as "Shooter," a man known as "Steve-O," and a man named Max to
the Ogden Avenue address. At the time, Reime and Gratsy were good friends; however,
Reime had known appellant and Shooter less than a day. Appellant told Reime that a
woman at the Ogden house owed him money. Both appellant and Shooter were armed
with .40 caliber handguns; appellant's gun had an extended clip.
       {¶ 4} The front porch surveillance cameras captured images of the group arriving
at the Ogden house at approximately 7:42 p.m.; Reime and the others walked around the
side of the house to the back door. (State's Ex. 153-154.) Gratsy's brother, Emilio,
immediately permitted Reime to enter the house. The other four men initially were denied
entry; however, they eventually were permitted inside. Gratsy and Kiana Bacino were
seated at the kitchen table conducting drugs transactions. Marcus Cooley, a homeless crack
addict who sometimes worked as a "doorman," regulating traffic in and out of the house in
exchange for drugs, was also in the kitchen. (Tr. at 433-34.) Reime and Steve-O walked
through the kitchen to the living room, where several young women were abusing drugs.
Emilio eventually left the house; however, Gratsy, Bacino, Cooley, appellant, Shooter, and
Max remained in the kitchen.
       {¶ 5} At some point, appellant, allegedly angry because some of the individuals
inside the house owed him money, pulled out his gun and ordered Gratsy, Bacino, and
Cooley to lie down on the floor. Gratsy, however, remained seated at the table. After
Shooter and Max robbed the others, appellant struck Gratsy in the back of the head with
the gun. When Gratsy stood up, appellant again struck him with the gun, this time on the
left side of his face. Gratsy, unconscious, fell to the floor, close to Bacino, who had complied
No. 18AP-817                                                                                                  3

with appellant's order to get on the floor. Appellant then fired one shot at Gratsy, hitting
him in the back.
        {¶ 6} Reime, still in the living room, heard the gunshot. About five seconds later,
appellant entered the living room, held a gun to Reime's face, and told him to get down on
the floor. Appellant, Shooter, Max, and Steve-O then ran out of the house through the back
door.
        {¶ 7} Reime went into the kitchen and observed Gratsy lying face-down on the
floor. Reime left the scene because he thought there was an outstanding warrant against
him. Paramedics soon arrived and transported Gratsy to the hospital, where he later died.
        {¶ 8} During their search of the crime scene, police recovered a single spent .40-
caliber shell casing from the kitchen table. No firearms were recovered from the house.
        {¶ 9} After performing an autopsy, the coroner determined Gratsy's cause of death
to be a "gunshot wound of the back." (State's Ex. 1, Franklin County Coroner Autopsy
Report.)
        {¶ 10} Within one month of the shooting, the police separately presented Reime,
Bacino, and Cooley with two sets of photo arrays. One set included photographs of
appellant; the other included photographs of Shooter.1 All three identified appellant as the
individual who shot Gratsy and Shooter as the person who robbed them while appellant
held them at gunpoint. More specifically, on January 31, 2017, Reime identified appellant,
the man he knew as Chilli, as the person who "shot [Gratsy] at 255 S. Ogden Ave[.] during
a robbery." (State's Ex. 143, Tr. at 157-58, 283.) Reime also identified Shooter as the
individual who "held people in the house at 255 S. Ogden at gunpoint during a robbery
while his accomplish [sic] shot [Gratsy]." (State's Ex. 142, Tr. at 155-56, 281.)                           On
February 5, 2017, Bacino identified appellant as the individual who "shot [Gratsy]." (State's
Ex. 144, Tr. at 317, 373-74.) Bacino also identified Shooter as the individual who "patted
everyone down, was with other suspect." (State's Ex. 145, Tr. at 320, 373-74.) On
February 28, 2017, Cooley identified appellant as "Chilli" and denoted, "I saw him shoot


1 Appellant filed a motion to suppress the identification procedure with regard to the photo arrays as
impermissibly suggestive. No hearing was held on the motion. Prior to the jury being impaneled, appellant's
trial counsel raised the issue of the pending motion before the trial court. Although the trial court did not
expressly deny the motion, it impliedly did so, stating, "I don't see how this isn't just the proper subject of
cross-examination, and that's where I'll go. I guess if I hear something else, I will do my best to instruct the
jury accordingly." (Tr. at 13.)
No. 18AP-817                                                                                 4

the victim." (State's Ex. 147, Tr. at 308, 463-64.) Cooley also identified Shooter as "Chilli's
partner." (State's Ex. 146, Tr. at 306, 461-62.)
       {¶ 11} By indictment filed on February 9, 2017, appellant was charged with one
count of aggravated burglary in violation of R.C. 2911.11, a first-degree felony; one count of
aggravated robbery in violation of R.C. 2911.01, a first-degree felony; one count of
aggravated murder in violation of R.C. 2903.01, an unclassified felony; one count of murder
(purposeful) in violation of R.C. 2903.02, an unclassified felony; one count of murder
(felony) in violation of R.C. 2903.02, an unclassified felony; one count of WUD in violation
of R.C. 2923.13, a third-degree felony; and one count of kidnapping in violation of R.C.
2905.01, a first-degree felony. All counts included 54-month firearm specifications in
violation of R.C. 2941.145(D). In addition, the aggravated burglary, aggravated robbery,
aggravated murder, purposeful murder, felony murder, and kidnapping counts included
repeat violent offender ("RVO") specifications in violation of R.C. 2941.149(A).
       {¶ 12} Appellant waived his right to a jury trial on the WUD. Jury trial on the
remaining charges commenced on August 20, 2018. On August 28, 2018, the jury returned
verdicts finding appellant guilty of aggravated burglary, aggravated robbery, and felony
murder, all with firearm specifications, not guilty of aggravated murder and purposeful
murder, but guilty of involuntary manslaughter as a lesser-included offense of aggravated
murder, with a firearm specification. The trial court found appellant guilty of WUD with a
firearm specification. Upon application of the prosecutor, the trial court entered a nolle
prosequi on the kidnapping count. The trial court sentenced appellant on September 19,
2018 to an aggregate term of life imprisonment with parole eligibility after 24 years. The
trial court memorialized the conviction and sentence in an amended judgment entry filed
on October 11, 2018.
       {¶ 13} Appellant timely appeals, assigning the following error:
              The trial court erred and deprived appellant of due process of
              law as guaranteed by the Fourteenth Amendment to the United
              States Constitution and Article One Section Ten of the Ohio
              Constitution by finding him guilty of murder; aggravated
              burglary; aggravated robbery; manslaughter; and having
              weapons while under disability as those verdicts were not
              supported by sufficient evidence and were also against the
              manifest weight of the evidence.
No. 18AP-817                                                                                 5

       {¶ 14} Appellant's assignment of error asserts the guilty verdicts for aggravated
burglary, aggravated robbery, felony murder, involuntary manslaughter, and WUD were
not supported by sufficient evidence and were against the manifest weight of the evidence.
However, appellant fails to identify a single element of any of these offenses that the state
failed to prove or even argue that the state's evidence was insufficient. Rather, the crux of
his argument is that the state's evidence was not reliable, credible, or consistent. Appellant
specifically contends that the "[t]he State's case in this matter rested on the testimony of
two convicted felons and a person whose testimony defies belief." (Appellant's brief at 2.)
Because appellant's argument relates solely to the manifest weight of the evidence, we will
address it accordingly. See App.R. 16(A)(7) and 12(A)(2).
       {¶ 15} The weight of the evidence concerns the inclination of the greater amount of
credible evidence offered to support one side of the issue rather than the other. State v.
Thompkins, 78 Ohio St.3d 380, 387 (1997). When presented with a manifest-weight
challenge, an appellate court may not merely substitute its view for that of the trier of fact,
but must review the entire record, 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. Id. An appellate court
should reserve reversal of a conviction as being against the manifest weight of the evidence
for only the most "exceptional case in which the evidence weighs heavily against the
conviction." State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983); State v. Strider-
Williams, 10th Dist. No. 10AP-334, 2010-Ohio-6179, ¶ 12.
       {¶ 16} In addressing a manifest-weight challenge, we are able to consider the
credibility of the witnesses. State v. Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio-4953,
¶ 6. "However, in conducting our review, we are guided by the presumption that the jury,
or the trial court in a bench trial, '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.' " Id., quoting Seasons Coal Co. v. Cleveland, 10 Ohio
St.3d 77, 80 (1984). Accordingly, we afford great deference to the jury's determination of
witness credibility. State v. Redman, 10th Dist. No. 10AP-654, 2011-Ohio-1894, ¶ 26, citing
State v. Jennings, 10th Dist. No. 09AP-70, 2009-Ohio-6840, ¶ 55.
No. 18AP-817                                                                              6

       {¶ 17} Here, the state presented the testimony of Reime, Bacino, and Cooley, all of
whom were present at the time of the offenses and were victims of the robbery. Reime, who
rode to the Ogden house with appellant, testified that appellant and his accomplice,
Shooter, were armed with .40 caliber handguns and that appellant averred that someone at
the house owed him money. All three of the victims testified that no one inside the house
other than appellant and Shooter were armed. Bacino and Cooley both testified that they
were in the kitchen when appellant pulled out his gun and ordered them to lie on the floor
while his accomplices, Shooter and Max, took money and other personal possessions from
them. Both testified that appellant twice struck Gratsy with his gun and then shot him once
in the back. Reime testified that he was in the living room when he heard a gunshot;
approximately five seconds later, appellant entered the living room, held a gun on Reime,
and ordered to him lie on the floor.
       {¶ 18} The state also presented video evidence from the surveillance cameras, which
captured images of appellant and the others arriving at the house at approximately 7:42
p.m. Reime identified the individuals on the surveillance video by name, including
appellant.   Reime also identified still photographs of the images captured on the
surveillance video. (State's Ex. 158-162.) The state also presented evidence that within one
month of the shooting, Reime, Bacino, and Cooley separately identified appellant as the
individual who shot Gratsy.
       {¶ 19} Appellant contends Reime was not a credible witness because he had prior
felony convictions and was in prison at the time of trial. Reime candidly admitted that he
had been out of prison only three weeks before Gratsy was shot and that he was incarcerated
at the time of trial. Defense counsel had ample opportunity to challenge Reime's credibility
and motivation for testifying through cross-examination.         Indeed, defense counsel
challenged Reime's credibility through questioning which forced Reime to reiterate that he
had been out of prison only three weeks before the shooting. As to Reime's motivation for
testifying, the record contains no evidence establishing that Reime and the prosecution had
negotiated a deal related to his current incarceration in exchange for providing testimony
against appellant. Finally, we note that the jury was specifically instructed that testimony
tending to show that a witness had been convicted of a crime could be considered in judging
the witness's credibility and the weight to be afforded the witness's testimony. We presume
No. 18AP-817                                                                                 7

the jury followed this instruction. State v. Greene, 10th Dist. No. 17AP-238, 2019-Ohio-
4010, ¶ 76. Thus, the jury was in the best position to determine for itself the effect of
Reime's prior convictions and current incarceration on his credibility.
       {¶ 20} Appellant further contends that Reime's assertion that appellant shot Gratsy
was inconsistent with a statement he provided to police on the night of the shooting.
Columbus Police Detective Amy Welsh testified in appellant's case that she interviewed
Reime on the night of the shooting. She both recorded and prepared a report of the
interview. Although Welsh testified that the recording was lost and she could not recall the
details of the interview or the contents of the report, she acknowledged that the report
indicated that Reime said Shooter shot Gratsy while appellant held Reime and the others
at gunpoint. When defense counsel cross-examined Reime about the statement contained
in the report, Reime denied making it.        Specifically, Reime testified that he "never
pinpointed who shot who because I wasn't in the room" and "I never said who did it because
I didn't see who did it. I wasn't in the room." (Tr. at 205-06.) While a jury may take note
of inconsistencies in the evidence and resolve or discount them accordingly, such
inconsistencies do not render an accused's conviction against the manifest weight of the
evidence. State v. Loomis, 10th Dist. No. 17AP-843, 2019-Ohio-2576, ¶ 54.
       {¶ 21} Appellant also challenges Cooley's credibility on grounds that he was a
convicted felon, was incarcerated at the time of trial, and admitted to smoking crack cocaine
throughout the evening prior to the shooting. Cooley openly admitted these facts and
defense counsel had ample opportunity to challenge his credibility based on these issues.
Defense counsel did so through questioning about Cooley's crack cocaine use and the fact
that he was "high" on the night in question. (Tr. at 468.) Thus, the jury was aware that
Cooley had smoked crack cocaine and it was within the province of the jury to take his drug
use into consideration when assessing his credibility. Loomis at ¶ 53 (jury was aware that
witnesses had consumed alcohol and it was within province of jury to take the witnesses'
alcohol consumption into consideration when weighing the evidence and assessing the
witnesses' credibility). Defense counsel also put Cooley's credibility at issue via questioning
which challenged his statement that he was not armed that night and never carried a gun
through eliciting an admission from Cooley that he had a 2012 WUD conviction. Moreover,
the record contains no evidence establishing that Cooley offered his testimony in exchange
No. 18AP-817                                                                                 8

for favorable treatment related to his current incarceration. We reiterate that the jury was
instructed that it could consider Cooley's incarceration in assessing his credibility and the
weight to be afforded his testimony. The jury could thus determine for itself the effect of
Cooley's prior conviction, his current incarceration, and his drug use on his credibility.
       {¶ 22} Appellant further contends that Cooley's assertion that Gratsy was seated in
a chair when appellant shot him conflicted with Bacino's testimony that Gratsy was lying
on the floor when appellant shot him. Although their testimonies may have contained
differences as to Gratsy's position when he was shot, both testified that appellant shot
Gratsy in the kitchen of the Ogden house. This inconsistency in the testimony did not
render appellant's convictions against the manifest weight of the evidence.
       {¶ 23} Appellant also asserts that Cooley's testimony concerning his own location in
the kitchen at the time of the shooting was unclear, leaving open the possibility that his view
of the shooting would have been obstructed if he were lying on the floor. Appellant does
not direct this court to the portion of testimony upon which he relies for this argument. See
App.R. 16(A)(7) and 12(B)(2). However, our review of Cooley's testimony reveals that he
was not lying on the floor when Gratsy was shot. Cooley testified that "when I heard that
one shot, I hit the floor. Everything just went blank. And next thing you know, him and his
bud Shooter told everybody to get on the ground, told everybody to give up the money, the
dope, pretty much took everything from everybody." (Tr. at 440.) Further, even if Cooley's
testimony on this point could be construed as being unclear, or inconsistent with other
testimony, his testimony identifying appellant as the person who shot Gratsy was clear and
unwavering.
       {¶ 24} Appellant next contends that Bacino's testimony was "questionable."
(Appellant's brief at 3.) Appellant specifically points to Bacino's testimony that she had
never seen drug activity at the Ogden house, including on the night of the shooting. This
testimony clearly conflicts with the testimony of Reime and Cooley that Gratsy ran a drug
trafficking operation out of the Ogden location. Indeed, Cooley testified that Bacino and
Gratsy were conducting drug operations in the kitchen and that Bacino supplied him with
the crack cocaine he smoked that night. Given the testimony of Reime and Cooley, the jury
may have disbelieved Bacino's testimony on this particular point. The jury may take note
of inconsistencies in testimony and resolve or discount them accordingly "believ[ing] all,
No. 18AP-817                                                                                 9

part, or none of a witness's testimony." State v Raver, 10th Dist. No. 02AP-604, 2003-
Ohio-958, ¶ 21.
       {¶ 25} Appellant also characterizes Bacino's testimony as "troubling" regarding her
claim that she witnessed the shooting from her position on the floor under the kitchen table.
(Appellant's brief at 4.) Bacino explained in detail where she was on the floor and averred
that she "was looking right at [appellant], right in his eyes the whole time" when he shot
Gratsy. (Tr. at 365) Defense counsel had ample opportunity to cross-examine Bacino and
challenge her declaration that she could see appellant shoot Gratsy from her vantage point
on the floor. As noted above, determining the credibility of the witnesses is primarily for
the trier of fact, and we must afford great deference to such determinations. Redman, 10th
Dist. No. 10AP-654, 2011-Ohio-1894, ¶ 26.
       {¶ 26} After reviewing the entire record, weighing the evidence and all reasonable
inferences, considering the credibility of witnesses and conflicts in the evidence, we cannot
find that appellant's convictions were such that 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. Accordingly, appellant's sole assignment of error is overruled.
       {¶ 27} Having overruled appellant's assignment of error, we hereby affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                         Judgment affirmed.

                          DORRIAN and BRUNNER, JJ., concur.
