[Cite as State v. Washington, 2020-Ohio-988.]


                                    IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


 STATE OF OHIO,                                    :        OPINION

                   Plaintiff-Appellee,             :
                                                            CASE NO. 2019-T-0026
         - vs -                                    :

 MELVIN WASHINGTON,                                :

                   Defendant-Appellant.            :


 Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2018 CR
 00515.

 Judgment: Affirmed.


 Dennis Watkins, Trumbull County Prosecutor, and Michael J. Fredericka, Assistant
 Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
 44481 (For Plaintiff-Appellee).

 Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
 Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}      Appellant, Melvin Washington, appeals the April 4, 2019 judgment of the

Trumbull County Court of Common Pleas sentencing him to a 12-month term of

incarceration. For the reasons discussed herein, the judgment is affirmed.

        {¶2}      In April 2018, two Warren City police officers conducted a traffic stop of a

Chevrolet Cavalier in which Mr. Washington was a passenger. The officers both testified

that the passenger window was halfway down at the time of the stop and one of the
officers, Officer Wire, testified that he observed the passenger of the vehicle, later

identified as Mr. Washington, drop an item out of the open window. While the other

officer, Officer Weber, gathered information of the two occupants of the vehicle from the

driver’s side of the vehicle, Officer Wire collected the dropped item, which appeared to be

a plastic baggie containing crack cocaine. Subsequent testing proved the contents to

contain .51 grams of cocaine.

       {¶3}   Mr. Washington was indicted on one count of Possession of Cocaine, a

felony of the fifth degree, in violation of R.C. 2925.11(A)(C)(4)(a).         Mr. Washington

pleaded not guilty and the matter proceeded to trial, ultimately resulting in a hung jury.

The trial court declared a mistrial and ordered a new trial. The second trial was held, and

the jury, after being briefly deadlocked, ultimately found him guilty. Following a record

check, the court sentenced Mr. Washington to 12 months imprisonment.

       {¶4}   Mr. Washington now appeals, assigning one error for our review:

       {¶5}   Appellants [sic] conviction is against the manifest weight of the
              evidence.

       {¶6}   “Weight of the evidence concerns ‘the inclination of the greater amount of

credible evidence, offered in a trial, to support one side of the issue rather than the other.’”

State v. Thompkins, 78 Ohio St.3d 380, 387 (1997) (emphasis sic), quoting Black’s Law

Dictionary    1594   (6th   Ed.   1990).      A    court   reviewing    the manifest weight of

the evidence observes the entire record, weighs the evidence and all reasonable

inferences, and considers the credibility of the witnesses. Thompkins, supra. In resolving

conflicts in the evidence and deciding witness credibility, the court determines whether

the trier of fact clearly lost its way and created such a manifest miscarriage of justice that

the judgment must be reversed and a new trial ordered. Id.



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       {¶7}   “‘The discretionary power to grant a new trial should be exercised only in

the exceptional case in which the evidence weighs heavily against the conviction.’” Id.,

quoting State v. Martin, 20 Ohio App.3d 172 (1st Dist.1983).                “This is because

determinations of witness credibility, conflicting testimony, and evidence weight are

primarily for the trier of the facts who sits in the best position to judge the weight of the

evidence and the witnesses’ credibility by observing their gestures, voice inflections, and

demeanor.” State v. Janson, 11th Dist. Ashtabula No. 2015-A-0072, 2016-Ohio-5671,

¶16.

       {¶8}   Mr. Washington argues on appeal that “the only witness that claims to have

seen [him] drop anything from the passenger side window was Officer Wire” and that

Officer Wire’s ability to see the passenger drop something out of the window was “very

questionable.” (Emphasis sic.) Officer Weber, the driver of the police vehicle, testified

that he parked the police vehicle not directly behind the Cavalier but offset about four or

five feet to the left. Mr. Washington argues that, since the officers’ vehicle was offset, it

was unlikely Officer Wire, as the passenger, was able to see anything fall out of the

window. Moreover, he notes, the driver of the Cavalier, Mr. Bendon, Jr., testified that he

did not see Mr. Washington throw anything out the window. Finally, Mr. Washington also

argues that this is “not typical ‘manifest weight’” because the first trial resulted in a hung

jury and the second trial, the jury initially indicated that it was “dead locked.”

       {¶9}   Initially, we note that “‘the testimony of any one witness as to any material

fact, believed by the trier of fact, is sufficient to prove any such fact.’” Janson, supra, at

¶17, quoting State v. Jones, 2nd Dist. Clark No. 2005 CA 122, 2007-Ohio-2425, ¶24.

“‘When there exist two fairly reasonable views of the evidence or two conflicting versions




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of events, neither of which is unbelievable, it is not our province to choose which one we

believe.’” Janson, supra, at ¶16, quoting State v. Pedro, 7th Dist. Mahoning No. 11-MA-

128, 2012-Ohio-3674, ¶11-12.         “The choice between credible witnesses and their

conflicting testimony rests solely with the finder of fact and an appellate court may not

substitute its own judgment for that of the finder of fact.” State v. Awan, 22 Ohio St.3d

120, 123 (1986).

       {¶10} Ultimately, the jury in this case reached a unanimous guilty verdict. After

reviewing the record, we cannot say that the evidence weighs heavily against the

conviction. Officer Wire testified that he could see the passenger side window, was

watching it closely at the instruction of Officer Weber, and saw Mr. Washington drop an

item from the passenger-side window. Though Mr. Bendon, Jr. testified that he did not

see Mr. Washington drop anything from the window, he admitted that he was not

particularly paying attention to what Mr. Washington was doing when he was pulled over.

Accordingly, we cannot say that the jury, as the finder of fact, clearly lost its way in finding

Officer Wire’s testimony more credible than Mr. Bendon, Jr.’s testimony.

       {¶11} Mr. Washington’s assignment of error is not well taken.

       {¶12} In light of the foregoing, the judgment of the Trumbull County Court of

Common Pleas is affirmed.



THOMAS R. WRIGHT, J.,

MATT LYNCH, J.,

concur.




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