[Cite as State v. McMichael, 2012-Ohio-1343.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                  Nos. 96970 and 96971



                                     STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                  TREA MCMICHAEL
                                                      DEFENDANT-APPELLANT



                                           JUDGMENT:
                                            AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                              Case Nos. CR-546065 and CR-546110

        BEFORE: Boyle, P.J., S. Gallagher, J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED:                       March 29, 2012
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ATTORNEY FOR APPELLANT

Patricia J. Smith
4403 St. Clair Avenue
The Brownhoist Building
Cleveland, Ohio 44103



ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Sherrie S. Royster
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
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MARY J. BOYLE, P.J.:

          {¶1} Defendant-appellant, Trea McMichael, appeals his convictions claiming

they were against the manifest weight of the evidence. Finding no merit to his appeal,

we affirm.

                               Procedural History and Facts

          {¶2} In January 2011, the grand jury indicted McMichael on seven counts for

events that occurred around 1:00 a.m. on January 19, 2010, involving victim Oscar

Harris.     The counts included two counts of kidnapping, two counts of aggravated

robbery, two counts of felonious assault, and one count of discharging a firearm on or

near prohibited premises.    The kidnapping, aggravated robbery, and felonious assault

counts carried one- and three-year firearm specifications.

          {¶3} Approximately one week later, the grand jury indicted McMichael on six

counts for events that occurred around 7:00 a.m. on January 19, 2010, involving victim

Jennifer Caldwell.    The counts included kidnapping, aggravated robbery, grand theft,

receiving stolen property, trafficking, and possessing criminal tools. The kidnapping,

aggravated robbery, grand theft, and receiving stolen property charges carried one- and

three-year firearm specifications, and the drug counts carried forfeiture specifications.

          {¶4} The cases were consolidated for purposes of trial and appeal.                The

following facts were presented to a jury.
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       {¶5} Oscar Harris testified that on the morning in question, around 1:00 a.m., he

was driving northbound on “108th off of Superior” when he stopped at a stop sign at the

corner of 108th Street and Hampton Avenue to talk to “a young lady about a guy that had

an aneurysm.”     When he did, two men approached his car.         One of the men, later

identified to be co-defendant, Mitchell Taylor, had a “revolver” and said, “You know

what this is.”   McMichael was later identified to be the other man with Taylor.        Harris

immediately started to drive away, but Taylor shot three times into Harris’s vehicle.     One

of the shots hit Harris in the arm. Harris drove home and called 911. Harris testified

that it was well lit near the stop sign because a street light was about ten feet away.

Harris said the men were young, African American, and wearing dark clothes.

       {¶6} Jennifer Caldwell testified that she is a teacher at Joseph F. Landis School.

She said that when she arrived at work on the morning of January 19, 2010, she was

approached by two African American males in dark clothing.         She noticed that one of

the men had a gun near his waist, pointed down toward the ground. He said to her, “As

long as you give us the keys to your car, and your purse, we will not hurt you.”          She

complied.   The men then told her not to move, and they got into her car and left.        She

went into the school and called 911.

       {¶7} Later that morning, police officers David Jones and Renee Perez received a

report that a carjacking had taken place earlier that day. They spotted Caldwell’s vehicle

on Lee Road. They saw two men sitting in the front of the car. They turned around to
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follow the car and saw it pull into a driveway. The men jumped out of the car and took

off running. The officers lost sight of them and radioed for assistance.

       {¶8} Officer Reginald Beddard testified that he works in the canine unit.          He

arrived at the scene where the stolen car was parked.    His dog, Jack, picked up the men’s

scent and tracked them to an abandoned building, where the officers found Taylor and

McMichael.

       {¶9} Detective Vincent Lucarelli testified that Harris identified Taylor and

McMichael from a photo array. Harris identified Taylor as the man who shot him and

McMichael as the man who was with Taylor.

       {¶10} Sonya West, McMichael’s mother, testified on her son’s behalf. Although

she testified to generally knowing when her son got home from school, what time he went

to bed, and what time he left for school, she admitted that she could not specifically recall

the specifics of the night in question because it had taken place a year and a half before

the trial. She testified that “to the best of her knowledge,” McMichael was at school on

January 19, 2010. West further stated that she had met Taylor through her son, but said

that her son was not good friends with Taylor.

       {¶11} Taylor testified for the defense.    Taylor said that he was serving three years

at the Ohio Valley Juvenile Correctional Facility for his part in the crimes against Harris

and Caldwell.

       {¶12} Taylor testified that on the morning of January 19, 2010, he was walking
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down “105th and Hampton” when he saw Harris’s vehicle. Taylor said that Harris was

“giving some lady some drugs or whatever.” Taylor “ran up on the car, * * * put the

gun in the window, [and] told [Harris] give me everything.” Taylor said that when he

did that, the woman who Harris had been talking to was walking down the street.    Taylor

said he saw Harris “reach for his gun,” so Taylor “started shooting in the car.”   Taylor

testified that he acted alone.

        {¶13} Taylor explained that he did not sleep that night; he just walked around the

area.   The next day around 10:00 or 11:00 a.m., he was “walking down by Lee” when he

saw Caldwell’s vehicle parked, but running.      Taylor said he got in the car and drove

away. Taylor picked up two women he knew who flagged him down and then went to

McMichael’s house because he “needed some CDs” and he knew that McMichael made

rap CDs.    McMichael gave Taylor the CDs and asked Taylor for a ride.      As they were

driving down Lee, they saw the police.        Taylor parked the car and they ran into an

abandoned building where the police found them.

        {¶14} On cross-examination, Taylor said that he had been friends with McMichael

for a few months before they were arrested.

        {¶15} The jury found McMichael guilty of all counts in the case involving Harris,

and guilty of receiving stolen property, trafficking, and possessing criminal tools in the

case involving Caldwell.     The trial court sentenced McMichael to an aggregate of eight

years in prison for both cases.      It is from this judgment that McMichael appeals,
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challenging only the manifest weight of the evidence.

                             Manifest Weight of the Evidence

       {¶16} A challenge to the manifest weight of the evidence attacks the credibility of

the evidence presented. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541

(1997). Because it is a broader review, a reviewing court may determine that a judgment

of a trial court is sustained by sufficient evidence, but nevertheless conclude that the

judgment is against the weight of the evidence. Id., citing State v. Robinson, 162 Ohio

St. 486, 487, 124 N.E.2d 148 (1955).

       {¶17} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions 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, 485 N.E.2d 717 (1983).

       {¶18} Reversing a conviction as being against the manifest weight of the evidence

and ordering a new trial should be reserved for only the “exceptional case in which the

evidence weighs heavily against the conviction.” Id.

       {¶19} McMichael argues that Harris’s identification of him was not credible

because it was “after midnight and dark outside.”         McMichael further contends that

Harris was not credible because he was “talking with a prostitute and selling her drugs.”

McMichael maintains that Harris drove home before calling 911 because he needed to
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“get rid of his gun and drugs before he called police.”        McMichael also argues that

Taylor was more credible than Harris.      He asserts that McMichael’s mother testified that

Taylor and McMichael were not friends.             He further asserts that Taylor testified

unwillingly and his version of the events was “quite credible and consistent.” And

McMichael contends that Taylor, “although a delinquent, had no motive to lie.”

       {¶20} Here, however, the jury chose to believe Harris over Taylor.             After

independently reviewing the record before us, we conclude that this is not the case where

the jury “clearly lost its way” and “created a manifest miscarriage of justice.”     Taylor

may have been consistent in his version of the events, but no more so than Harris.

Indeed, Harris and Taylor’s version of the robbery and shooting were nearly identical —

except for McMichael’s presence.         And although West testified that McMichael and

Taylor were not friends, Taylor contradicted that and said they had been friends for a few

months before they were arrested.    Thus, Taylor certainly had motive to lie — to protect

his friend.   Taylor had already been convicted for his part in the crimes and had nothing

to lose if he testified for McMichael.

       {¶21} Accordingly, McMichael’s convictions were not against the manifest weight

of the evidence. His sole assignment of error is overruled.

       {¶22} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
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      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.   Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
EILEEN A. GALLAGHER, J., CONCUR
