[Cite as State v. Sims, 2018-Ohio-2916.]




             IN THE COURT OF APPEALS OF OHIO
                              SEVENTH APPELLATE DISTRICT
                                  MAHONING COUNTY

                                            STATE OF OHIO,

                                            Plaintiff-Appellee,

                                                    v.

                                              KEITH SIMS,

                                           Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                           Case No. 16 MA 0084.


                                   Criminal Appeal from the
                       Court of Common Pleas of Mahoning County, Ohio
                                   Case No. 2014 CR 1143.

                                          BEFORE:
                   Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.


                                               JUDGMENT:
                                                 Affirmed.


Atty. Paul Gains, Prosecuting Attorney, and Attorney Ralph Rivera, Assistant
Prosecutor, Mahoning County Prosecutor’s Office, 21 West Boardman Street, 6th Floor,
Youngstown, Ohio 44503, for Plaintiff-Appellee, and
Atty. Attorney Edward Czopur, DeGenova & Yarwood, Ltd., 42 North Phelps Street,
Youngstown, Ohio 44503, for Defendant-Appellant.

                                                  Dated:
                                               July 16, 2018
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Donofrio, J.

      {¶1}     Defendant-appellant, Keith Sims Jr., appeals his conviction following a jury
trial in the Mahoning County Court of Common Pleas for one count of murder in
violation of R.C. 2903.02(A), an unclassified felony, one count of murder in violation of
R.C. 2903.02(B), an unclassified felony, and one count of felonious assault in violation
of R.C. 2903.11(A)(2), a felony of the second degree.
      {¶2}     On October 25, 2014, Julisa Harmon, Domanisha Morris, and Shamar
Harmon were visiting their friend Miguel at his home in Youngstown, Ohio. This group
heard a gunshot and went outside Miguel’s home to investigate. They saw appellant
and another group of girls across the street from Miguel’s home. Julisa’s group and
Miguel went across the street to appellant’s home to confront him. At some point,
appellant pulled out a gun, set it down, and began fighting Miguel. During the fight
between appellant and Miguel, Julisa, Domanisha, and Shamar got into a verbal
altercation with the other group of girls. After the verbal altercation, Julisa, Domanisha,
and Shamar got into a car and drove to Julisa’s house.
      {¶3}     At Julisa’s house, Julisa and Domanisha told Tamra Donlow and
Clenesha Jackson about the altercations at Miguel’s home. Julisa, Domanisha, Tamra,
and Clenesha decided to drive back to Miguel’s home that same night to check on him.
On the way to Miguel’s home, Julisa’s group picked up another girl, Shaniece Wells.
      {¶4}     When Julisa’s group returned to Miguel’s neighborhood, they went to go
check on Miguel. Once Julisa’s group was ready to leave Miguel’s neighborhood again,
they encountered the other group of girls with whom they had an altercation earlier.
Another verbal altercation ensued between the two groups. This verbal altercation
ended when Shaniece and a girl from the opposing group realized they were related.
      {¶5}     After the altercation, Julisa’s group began walking back to their vehicle.
Before they reached the vehicle, three gunshots were fired in their direction. Two of the
gunshots struck Shaniece: one through her abdomen and one through her left buttock.
Shaniece died as a result of the gunshot wounds she suffered.




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       {¶6}   On November 6, 2014, appellant was arrested and charged with
Shaniece’s murder. In addition to the murder and felonious assault charges, appellant
faced firearm specifications pursuant to R.C. 2941.145(A) on all counts.
       {¶7}   Numerous pretrial motions were filed by appellant pro se, appellant’s
counsel, and the plaintiff-appellee, the State of Ohio. Appellant was incarcerated for the
entire pretrial period and at no point waived his right to have a speedy trial.
       {¶8}   On August 20, 2015 and September 3, 2015, appellant filed pro se
motions to dismiss the charges on the basis that his speedy trial right was violated. On
September 14, 2015, the trial court denied these motions on the basis that appellant’s
counsel moved for and was granted a previous continuance which tolled the running of
his speedy trial clock.
       {¶9}   On December 16, 2015, appellant filed another pro se motion to dismiss
the charges on the basis that his speedy trial right was violated. The trial court overruled
this motion on the same day.
       {¶10} Appellant’s trial was held on March 28, 2016. The state called numerous
witnesses. At issue in this appeal is the testimony of the four eyewitnesses to
Shaniece’s death. The four eyewitnesses who testified at trial were Julisa, Clenesha,
Tamra, and Domanisha. Julisa, Clenesha, and Tamra all testified that they did not see
who fired the shots that hit Shaniece. But Domanisha testified that she saw appellant
fire his gun in the group’s direction. Domanisha also testified that she heard appellant
yell “I shot one of them bitches.”
       {¶11} The jury returned guilty verdicts on all counts. On May 24, 2016, the trial
court held a sentencing hearing. The trial court merged appellant’s three guilty verdicts
for sentencing purposes as Shaniece was the victim in all three counts. The trial court
sentenced appellant to a minimum fifteen years of incarceration for the murder in
violation of R.C. 2903.02(A) conviction and an additional three years for the
accompanying firearm specification. The trial court ordered these sentences to run
consecutively for a minimum total of eighteen years of incarceration. Appellant timely
filed this appeal on June 8, 2016. Appellant now raises two assignments of error.
       {¶12} Appellant’s first assignment of error states:




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              APPELLANT’S RIGHT TO A SPEEDY TRIAL, PURSUANT TO
       THE UNITED STATES AND OHIO CONSTITUTIONS AND THE
       REVISED CODE, WAS VIOLATED AND IT WAS ERROR FOR THE
       TRIAL COURT TO DENY HIS MOTIONS TO DISMISS.

       {¶13} Appellant argues that there was a total of 508 days between his arrest and
his trial. Including motions which tolled his speedy trial clock, appellant argues that he
was in jail awaiting trial longer than Ohio law permits.
       {¶14} A review of a trial court's decision regarding a motion to dismiss based on
statutory speedy trial grounds involves a mixed question of law and fact. State v.
McCall, 152 Ohio App.3d 377, 2003–Ohio–1603, 787 N.E.2d 1241, ¶ 9 (7th Dist.).
Deference is given to the trial court's findings of fact, but the appellate court
independently reviews whether the trial court properly applied the law to the facts of the
case. Id. When reviewing the legal issues regarding a statutory speedy trial case, the
statutes are strictly construed against the state. Brecksville v. Cook, 75 Ohio St.3d 53,
57, 661 N.E.2d 706 (1996). After the statutory time limit has expired, the defendant has
established a prima facie case for dismissal. State v. Butcher, 27 Ohio St.3d 28, 30-31,
500 N.E.2d 1368 (1986). At that point, the State has the burden to demonstrate any
extension of the time limit. Id.
       {¶15} Under Ohio law, when a defendant is charged with a felony, the defendant
“[s]hall be brought to trial within two hundred seventy days after the person's arrest.”
R.C. 2945.71(C)(2). “[E]ach day during which the accused is held in jail in lieu of bail on
the pending charge shall be counted as three days.” R.C. 2945.71(E).
       {¶16} Appellant did not post bail nor did he waive his right to a speedy trial.
Therefore, he should have been brought to trial within ninety days after his arrest on
November 6, 2014. Appellant’s trial did not begin until March 28, 2016. But as appellant
and the state point out, there are several events that can toll the speedy trial clock.
       {¶17} R.C. 2945.72 provides nine events that can toll the speedy trial clock.
Three of the events in R.C. 2945.72 are applicable to the case at bar. R.C. 2945.72(D)
extends the time for trial if a delay is caused by neglect or an improper act of the
accused. R.C. 2945.72(E) extends the trial for motions, proceedings, or actions made or
instituted by the accused. R.C. 2945.72(H) extends the time for trial if the accused files


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a motion for a continuance and extends the time for trial for any reasonable continuance
granted “other than upon the accused’s own motion.”
       {¶18} In a judgment entry dated September 14, 2015, the trial court denied
appellant’s pro se motion to dismiss dated August 20, 2015 and September 3, 2015 on
the basis that appellant’s counsel previously filed a motion to continue. The trial court
made no other findings of fact concerning this motion to dismiss. The trial court also
made no findings of fact when it denied appellant’s December 16, 2015 pro se motion to
dismiss.
       {¶19} The day of arrest does not count against the speedy trial time. State v.
Catlin, 7th Dist. No. 06 BE 21, 2006-Ohio-6246, ¶ 12. Therefore, appellant’s speedy trial
clock begins to run on November 7, 2014, the day after his arrest. Appellant’s original
trial date was set for December 15, 2014.
       {¶20} On November 19, 2014, appellant filed his discovery requests and a
request for a bill of particulars. A defendant filing discovery requests tolls the running of
the speedy trial clock. State v. Brown, 7th Dist. No. 03-MA-32, 2005-Ohio-2939, ¶ 40
citing R.C. 2945.72(E), see also State v. Brown, 98 Ohio St.3d 121, 2002-Ohio-7040,
781 N.E.2d 159, ¶ 26. According to both appellant and the state, the state responded to
appellant’s discovery requests the next day on November 20, 2014. By this time,
appellant’s speedy trial time ran for thirteen days.
       {¶21} On November 21, 2014, the state filed a reciprocal request for discovery.
This ran appellant’s speedy trial clock for one day bringing the total time that had run to
fourteen days.
       {¶22} Appellant never responded to the state’s reciprocal request for discovery.
“[A] defendant's failure to respond within a reasonable time to a prosecution request for
reciprocal discovery constitutes neglect that tolls the running of speedy-trial time
pursuant to R.C. 2945.72(D).” State v. Whaley, 7th Dist. No. 09 CO 30, 2010-Ohio-
4853, ¶ 37 quoting State v. Palmer, 112 Ohio St.3d 457, 2007-Ohio-374, 860 N.E.2d
1011, ¶ 24.
       {¶23} Appellant argues that his trial counsel’s failure to respond to the state’s
discovery request should not toll his speedy trial clock indefinitely. Appellant argues that




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the failure to respond should toll his speedy trial clock for a “reasonable amount of time
that it should have taken for the defense to respond as determined by the trial court.”
       {¶24} For this particular issue, appellant and the state cite State v. Palmer, 112
Ohio St.3d 457, 2007-Ohio-374, 860 N.E.2d 1011. In Palmer, the Ohio Supreme Court
held that a defendant’s failure to respond within a reasonable amount of time to a
prosecution’s request for reciprocal discovery constitutes neglect that tolls the running
of speedy trial time pursuant to R.C. 2945.72(D). Id. at ¶ 24. The Court continued “that a
trial court shall determine the date by which the defendant should reasonably have
responded to a reciprocal discovery request based on the totality of facts and
circumstances of the case, including the time established for response by local rule, if
applicable.” Id. Appellant argues that, at most, the failure to respond to the state’s
discovery request should only toll the speedy trial time by 30 days.
       {¶25} The Eighth District interprets the reasonable amount of time holding in
Palmer to mean 30 days. State v. Mango, 8th Dist. No. 103146, 2016-Ohio-2935, ¶ 21.
The Fourth District also implements a 30 day period. State v. Saultz, 09CA3133, 2011-
Ohio-2018, ¶ 15.
       {¶26} We do not need to reach the issue regarding how long a defendant’s
speedy trial clock is tolled due to the failure to respond to the state’s reasonable request
for reciprocal discovery. This is because appellant’s counsel filed a motion to continue
on December 5, 2014 to continue the trial set for December 14, 2014. This is less than
30 days after the state filed its reciprocal request for discovery. Any period of
continuance granted upon a defendant’s motion extends the time for a hearing or a trial
pursuant to R.C. 2945.72(H). State v. Garner, 7th Dist. No. 11 CO 1, 2012-Ohio-6271, ¶
15. Therefore, appellant’s speedy trial clock was tolled between November 21, 2014
and December 5, 2014. The trial court granted this motion on December 11, 2014. By
this time, appellant’s speedy trial clock still only ran for fourteen days.
       {¶27} In its judgment entry dated December 11, 2014, the trial court did not set a
new date for trial but ordered that a pretrial hearing was to be held on January 29, 2015.
After that pretrial hearing, in a judgment entry dated February 3, 2015, the trial court set
appellant’s trial date for August 24, 2015.




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       {¶28} Appellant argues that this continuance amounted to a court imposed time
waiver as the trial court set a trial date that was over nine months after appellant’s
arrest. Appellant argues that his speedy trial clock should only be tolled by a reasonable
amount of time due to his December 5, 2014 motion for a continuance. The state
argues that this delay was not attributable to the state and should toll appellant’s speedy
trial clock until August 24, 2015.
       {¶29} Appellant cites three cases arguing this specific point. First, appellant cites
State v. Clow, 7th Dist. No. 01 CA 70, 2002-Ohio-1564. In Clow, this Court noted that
any continuance pursuant to R.C. 2945.72(H) “must be reasonable both in purpose and
in length.” Id at ¶ 10. Second, appellant cites State v. Howard, 2d Dist. No. 27118,
2017-Ohio-692. In Howard, the Second District affirmed a trial court’s order resetting a
trial date to “the next available trial date” due to the defendant being hospitalized. Id. at
¶ 8-12. Third, appellant cites State v. Wentworth, 54 Ohio St.2d 171, 375 N.E.2d 424
(1978). In Wentworth, the Ohio Supreme Court held:

       “[T]hat where the continuance is of such length that it is facially
       unreasonable and seriously open to question, and thus outside the
       rationale upon which [State v. Lee, 48 Ohio St.2d 208, 357 N.E.2d 1095
       (1976)] is based, the attendant facts and circumstances must be included
       in the record in sufficient detail so that the necessity and reasonableness
       of the continuance is demonstrable.”

Wentworth at 175.
       {¶30} In response, the state cites State v. Pyles, 7th Dist. No. 13 MA 22, 2015-
Ohio-5594. In Pyles, this Court held “R.C. 2945.72(H) does not even require that a
continuance granted upon the defendant's own motion or a joint motion be reasonable
for the time period to be tolled.” Id. at ¶ 57 citing State v. Glass, 10th Dist. No. 10AP-
558, 2011-Ohio-6287.
       {¶31} There is no transcript of the pretrial hearing on January 29, 2015. When
no transcript is filed, the appellate court must presume the regularity of the proceedings.
Forman v. Kreps, 7th Dist. Nos. 13 MA 0177, 14 MA 0031, 2016-Ohio-1604, ¶ 36. In
this context, regularity means that appellant’s counsel, counsel for the state, and the


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trial court met and agreed that August 24, 2015 was an acceptable new trial date. This
conclusion is also supported by the fact that all of appellant’s motions to dismiss were
filed pro se and not by his trial counsel. With this continuance being reasonable in this
case, only fourteen days still had run on appellant’s speedy trial clock by August 24,
2015.
        {¶32} Before the trial date of August 24, 2015, appellant’s counsel filed another
motion for continuance dated August 10, 2015. In a judgment entry dated August 19,
2015, the trial court granted this continuance. In a judgment entry dated October 6,
2015, the trial court set appellant’s trial for December 14, 2015. By December 14, 2015,
still only fourteen days had run on appellant’s speedy trial clock.
        {¶33} And before the new trial date of December 14, 2015, appellant’s counsel
filed another motion for continuance on December 10, 2015. In a judgment entry dated
December 16, 2015, the trial court set another trial date for March 28, 2016. Moreover,
it was not error for the trial court to overrule appellant’s December 16, 2015 pro se
motion to dismiss due to appellant’s counsel filing a motion to continue on December
10, 2015.
        {¶34} Based on the foregoing, it can be seen that between appellant’s arrest on
November 6, 2014 and appellant’s trial on March 28, 2016, only fourteen days had run
on appellant’s speedy trial clock. Therefore, appellant’s speedy trial right pursuant to
R.C. 2945.71 was not violated.
        {¶35} Accordingly, appellant’s first assignment of error lacks merit and is
overruled.
        {¶36} Appellant’s second assignment of error states:

              APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST
        WEIGHT OF THE EVIDENCE BASED, IN PART, ON THE CONFLICTING
        STORIES OF THE STATE’S WITNESSES.

        {¶37} Appellant argues that the only evidence which showed he murdered
Shaniece Wells was the testimony of the four eyewitnesses. Appellant argues that three
of the eyewitnesses did not see who fired the shots that struck Shaniece. Appellant
argues that the fourth eyewitness’ testimony was so inconsistent with the other three


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eyewitnesses’ testimony that it renders his verdict against the manifest weight of the
evidence.
       {¶38} The claim that a verdict is against the manifest weight of the evidence
concerns whether a jury verdict is supported by “the greater amount of credible
evidence.” State v. Merritt, 7th Dist. No. 09 JE 26, 2011-Ohio-1468 ¶ 45 citing State v.
Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). The reviewing court weighs the
evidence and all reasonable inferences and considers the credibility of the witnesses.
Thompkins at 387. Although the appellate court acts as the proverbial “thirteenth” juror
under this standard, it rarely substitutes its own judgment for that of the jury’s. Meritt at ¶
45. This is because the trier of fact was in the best position to determine the credibility
of the witnesses and the weight due the evidence. Id. citing State v. Higinbotham, 5th
Dist. No. 2005CA00046, 2006-Ohio-635.
       {¶39} Only when “it is patently apparent that the factfinder lost its way,” should
an appellate court overturn the jury verdict. Id. citing State v. Woullard, 158 Ohio App.3d
31, 2001-Ohio-3395, 813 N.E.2d 964 (2d Dist.). If a conviction is against the manifest
weight of the evidence, then a new trial is to be ordered. Thompkins at 387. “No
judgment resulting from a trial by jury shall be reversed on the weight of the evidence
except by the concurrence of all three judges hearing the cause.” State v. Miller, 96
Ohio St.3d 384, 2002-Ohio-4931, 775 N.E.2d 498, ¶ 36 quoting Ohio Constitution,
Article IV, Section 3(B)(3).
       {¶40} The evidence appellant takes issue with in this assignment of error is the
testimony of all four eyewitnesses: Julisa, Clenesha, Tamra, and Domanisha. The state
agrees that the main contention at trial was who shot Shaniece Wells.
       {¶41} Julisa testified that, while visiting Miguel at his home, she heard a
gunshot, looked outside, and saw appellant. (Tr. 223-224). After the gunshot, Miguel
and appellant began arguing (Tr. 225). Appellant pulled out a gun, set it down, and
began physically fighting with Miguel. (Tr. 225). Julisa and her friends then left after
having a verbal altercation with a group of girls outside of appellant’s home which was
across the street from Miguel’s home. (Tr. 226-227). Julisa, Domanisha, and Julisa’s
sister then picked up Tamra, Clenesha, and Shaniece and returned to Miguel’s home.
(Tr. 228-229).



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        {¶42} Julisa continued to testify that when she and her friends returned to
Miguel’s home, they encountered the other group of girls outside of appellant’s home
and another argument ensued. (Tr. 231-232). Once Shaniece and a girl from the other
group realized they were related, the argument between the two groups stopped. (Tr.
232). When Julisa and her friends started walking away, she heard a gunshot. (Tr. 233).
Julisa ran and hid behind the car and heard another gunshot. (Tr. 234). Julisa saw
Shaniece fall to the ground after the second shot and heard Shaniece say she was shot.
(Tr. 234). Julisa did not see who fired the shots. (Tr. 234).
        {¶43} Clenesha testified that Julisa and Domanisha came and picked her up.
(Tr. 261-262). They then stopped to pick up Shaniece. (Tr. 265). When Clenesha
arrived at Miguel’s place, Clenesha and the rest of her group started arguing with the
other group of girls outside of appellant’s home. (Tr. 267). Clenesha saw appellant
standing in the doorway of his home. (Tr. 269-270). The argument stopped when
Shaniece realized she was related to one of the girls in the other group. (Tr. 270-271).
        {¶44} Clenesha continued to testify that after the argument, she and her group
started walking down the street back to the car. (Tr. 274). While walking back, Clenesha
heard a “gunshot and the glass.” (Tr. 275). Clenesha then started to run towards the
car. (Tr. 275). Clenesha heard two other gunshots after the first one. (Tr. 275-276).
Clenesha heard Shaniece say “I got hit.” (Tr. 276-277). After the shots were fired,
Clenesha saw appellant outside of his house and then walk into his house. (Tr. 278-
279).
        {¶45} Tamra testified that Domanisha and Julisa picked her up and they all went
to go pick up Shaniece. (Tr. 305-306). The group went to go check on Miguel after his
physical altercation with appellant. (Tr. 307-308). Tamra and her friends encountered
the other group of girls and a verbal altercation started. (Tr. 310-311). The argument
ended when Shaniece realized she was related to one of the other girls. (Tr. 315).
        {¶46} Tamra continued to testify that she and her group then started to walk
towards the car. (Tr. 316). When they were walking, one gunshot was fired and the
group started to run. (Tr. 317). After a pause, Tamra heard other shots but does not
recall how many altogether. (Tr. 317-318). Shaniece was shot on the second round of
shots. (Tr. 318-319). But Tamra did not see anyone with a gun that night (Tr. 324).



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        {¶47} Domanisha testified that she, Julisa, and Shamar were visiting their friend
Miguel. (Tr. 352-353). Domanisha heard a gunshot and all of them went outside and
saw appellant arguing with a neighbor. (Tr. 353-354). Domanisha remembers seeing
appellant place a gun on a car and then appellant started “fighting the old man.” (Tr.
355). The “old man” was Miguel. (Tr. 358). Around the time of the fight between
appellant and Miguel, Domanisha and her group got into an argument with another
group of girls. (Tr. 362-363). Domanisha and her group then left and picked up
Clenesha, Tamra, and Shaniece. (Tr. 364-366). They then went back to go check on
Miguel. (Tr. 367).
        {¶48} When Domanisha and her group returned to Miguel’s neighborhood,
Domanisha saw appellant come out of his house, pull his shirt up, tap his waist, and told
them to “move around.” (Tr. 367-369). Domanisha saw appellant with a gun in his pants.
(Tr. 369). The group then went to check on Miguel. (Tr. 371).
        {¶49} Domanisha and her group then saw the other group of girls near
appellant’s home as they were about to leave. (Tr. 372). The two groups began arguing.
(Tr. 374). The argument stopped once Shaniece and a girl from the other group realized
they were related. (Tr. 375). Domanisha picked up a rock and threw it at appellant’s
house. (Tr. 375). Domanisha and her group then began walking back to their car. (Tr.
376).
        {¶50} As Domanisha and her group were walking back to their car, Domanisha
heard a gunshot. (Tr. 377). The group then ran and Domanisha leaned up against a
garage. (Tr. 378). Domanisha saw Shaniece get shot. (Tr. 381). Domanisha testified
that appellant was the one who shot Shaniece. (Tr. 382). Domanisha saw appellant fire
the third shot. (Tr. 384-385). Domanisha heard appellant shout “I shot one of them
bitches.” (Tr. 387).
        {¶51} Appellant argues that Domanisha’s testimony is inconsistent with the other
three witnesses. The inconsistencies appellant points to are:

        1) Domanisha testified that her group went to appellant’s house before
           and after seeing Miguel (Tr. 368-369) while the other three testified
           that they went to appellant’s house after checking on Miguel (Tr. 230,
           265, 307-308);


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       2) Domanisha testified that her group spoke to appellant before going to
          see Miguel (Tr. 369-371) while Clenesha testified that they did not talk
          to appellant (Tr. 270);
       3) Domanisha saw appellant fire the shots (Tr. 382) while the other
          witnesses did not see who fired the shots (Tr. 234, 275, 324);
       4) Domanisha testified that the other group of girls were getting out of a
          truck when her group arrived (Tr. 372) while the other three witnesses
          testified that the other group was already at appellant’s house (Tr. 231,
          265-267, 310); and
       5) Domanisha testified that Shaniece was walking when the first shot was
          fired (Tr. 380) while Tamra testified that Shaniece was running (Tr.
          317-318).

       {¶52} Appellant argues that these inconsistencies, coupled with the fact that
Domanisha did not like appellant (Tr. 395) renders his conviction as against the
manifest weight of the evidence. This argument does not have merit.
       {¶53} The state elicited testimony that Shaniece died from a gunshot wound that
struck one of her major arteries. (Tr. 578-580). There were three shell casings that were
recovered from where Shaniece was shot and all three were fired from the same
firearm. (Tr. 607-608).
       {¶54} All four witnesses testified as to appellant’s presence at the scene. Two of
those witnesses testified that appellant had a firearm on him earlier in the night. All four
testified that they heard three shots and heard Shaniece say that she was shot.
Domanisha testified that she saw appellant fire the shots. Domanisha also heard
appellant yell “I shot one of them bitches.”
       {¶55} Moreover, while Clenesha did not see who fired the shots, she testified
that the only people outside when the shots were fired were her group and appellant.
(Tr. 278-279).
       {¶56} Although an appellate court must act as a “thirteenth juror” when
considering whether the manifest weight of the evidence requires reversal, it must give
great deference to the fact finder's determination of the witnesses' credibility. State v.
Deltoro, 7th Dist. No. 07-MA-90, 2008-Ohio-4815, ¶ 62. While Domanisha’s testimony is


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somewhat inconsistent with the other three eyewitnesses, the jury was in the best
position to assess Domanisha’s testimony and we will not second-guess any
determination concerning Domanisha’s testimony made by the jury.
      {¶57} Accordingly, appellant’s second assignment of error lacks merit and is
overruled.
      {¶58} For the reasons stated above, the trial court’s judgment is hereby affirmed.


Waite, J., concurs.
Robb, P. J., concurs.




Case No. 16 MA 0084
[Cite as State v. Sims, 2018-Ohio-2916.]




        For the reasons stated in the Opinion rendered herein, the two assignments of
error are overruled and it is the final judgment and order of this Court that the judgment
of the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be
taxed against the Appellant.


        A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.




                                           NOTICE TO COUNSEL

        This document constitutes a final judgment entry.
