[Cite as In re A.H., 2011-Ohio-5822.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 95661




                                         IN RE: A.H.
                                        A Minor Child




                                        JUDGMENT:
                                         AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                        Juvenile Division
                                     Case No. DL 10100171


        BEFORE:          Sweeney, J., Stewart, P.J., and Jones, J.

        RELEASED AND JOURNALIZED:                     November 10, 2011
ATTORNEY FOR APPELLANT, A.H.

Sheryl A. Trzaska, Esq.
Assistant State Public Defender
Office of the Ohio Public Defender
250 East Broad Street, Suite 1400
Columbus, Ohio 43215

ATTORNEYS FOR APPELLEE, STATE OF OHIO

William D. Mason
Cuyahoga County Prosecutor
By: Richard Hanrahan, Esq.
       Michael D. Horn, Esq.
       Justin S. Gould, Esq.
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, Ohio 44115




JAMES J. SWEENEY, J.:

          {¶ 1} Appellant A.H. appeals his juvenile delinquency adjudication for felonious

assault with firearm specification and associated commitment to the Ohio Department of

Youth Services (ODYS).        After reviewing the facts of the case and pertinent law, we

affirm.

          {¶ 2} On January 8, 2010, Tony Hines looked out of his bedroom window and

saw two males, later identified as A.H. and his brother D.W., attempting to break into a
neighbor’s house.     The brothers saw Hines in the window and took off running.

Approximately ten minutes later, Hines saw A.H., who was wearing a black hoodie,

approach the neighbor’s house again and pry open the storm door using a screwdriver.

Hines went outside, began talking to A.H., and walked him from the porch to the

sidewalk in front of the house.

        {¶ 3} Hines was looking for D.W., who was wearing a red hoodie, when he heard

a gunshot. Hines turned to the right and saw D.W. in the driveway with a gun pointed at

him. Hines asked A.H. who was shooting at him. A.H. replied, “That’s my brother

back there shooting at you.” Hines told A.H. to tell his brother D.W. to stop shooting.

Hines testified that A.H. began “jiggling around, telling his brother to stop shooting at

me.” Hines did not see A.H.’s hands because they were in his pockets. Hines turned

away from A.H. to look at D.W. and heard two more gunshots. At that point, Hines

realized he was shot in the lower left abdomen.

        {¶ 4} According to Hines, a total of three shots were fired, and it was the third

shot that hit him.    Asked if he knew who shot him, Hines testified that, “I can’t

specifically say who shot me, but I can specifically say I was shot.”   However Hines also

testified that it was not possible that D.W. shot him, because he was shot in the left side

of his abdomen, and D.W. was standing to the right of Hines approximately 20-25 feet

away.

        {¶ 5} Shawn Smith, who is a United States Postal Service letter carrier, testified

that he was delivering mail on 93rd Street on January 7, 2010, when he heard two
gunshots. He looked down the street and saw two individuals standing in a yard about

ten houses away.    The two people were standing approximately three feet to three yards

away from one another.       One of the individuals was wearing black, and he pointed a

gun at the other individual, who tried to grab it. The individual with the gun fired two

shots at the other individual’s torso. Smith testified that he did not know if the one

individual was hit by any of the shots.

       {¶ 6} According to Smith, there were a total of four shots.     He heard the first

two, but did not see anything. He looked in the direction of the gunfire and within 30

seconds, saw the person wearing black fire two shots at the other individual.         The

shooter started to run away, then stopped. He was still holding the gun. The shooter

began to pace back and forth in the street and eventually walked away, disappearing out

of Smith’s view.

       {¶ 7} Asked if he would find it strange if the man who was allegedly shot testified

that he never saw the gun he was shot with, Smith stated as follows: “I would find it

more than strange. * * * [B]ecause * * * he actually reached out and grabbed the gun. * *

* If he said he didn’t see a gun, I would find that very strange and I would actually

wonder why I’m here.”

       {¶ 8} A joint exhibit was admitted into evidence showing the results of gunshot

residue tests performed by the Bureau of Criminal Identification and Investigation

(“BCI”). BCI found “[p]articles highly indicative of gunshot primer residue on the

samples from [D.W.’s] gloves.” However, no residue was found on the samples from
A.H. or D.W.’s hands. The parties stipulated that A.H.’s hands tested negative for

gunshot residue; however, this “does not preclude the fact that possibly [A.H.] did, in

fact, discharge a firearm * * *.”

       {¶ 9} On July 28, 2010, A.H. was adjudicated delinquent in juvenile court as to

one count of felonious assault in violation of R.C. 2903.11(A)(1) and/or (A)(2), with

firearm specifications, and one count of attempted burglary in violation of R.C.

2911.12(A)(4) and R.C. 2923.02, with firearm specifications.

       {¶ 10} On August 4, 2010, the court held a dispositional hearing and committed

A.H. to the Ohio Department of Youth Services (ODYS) as follows: a minimum of 12

months for the felonious assault in violation of R.C. 2903.11(A)(2) to run consecutive to

two years for the firearm specification, with “a maximum period not to exceed the child’s

attainment of the age of twenty-one (21) years.”

       {¶ 11} A.H. appealed and we remanded to the juvenile court for disposition of the

attempted burglary offense. In re A.H., Cuyahoga App. No. 95661, 2011-Ohio-2039.

Upon remand, the court disposed of the attempted burglary as follows:          “[A.H.] is

released to the custody of parent/guardian * * *.”

       {¶ 12} A.H. appeals and raises one assignment of error for our review, arguing that

his adjudication for felonious assault with firearm specification is against the manifest

weight of the evidence.     Specifically, A.H.’s argument is threefold:   first, the victim

and eyewitness’s testimony is inconsistent as to whether A.H. had or shot a gun; second,
the gunshot residue test performed on A.H. was negative; and third, A.H. was not acting

with the same purpose as D.W. and was not complicit in the shooting.

      {¶ 13} The proper test for an appellate court reviewing a manifest weight of the

evidence claim is as follows:

      {¶ 14} “The appellate court sits as the ‘thirteenth juror’ and, reviewing the entire

record, weighs all the reasonable inferences, considers the credibility of witnesses and

determines whether, in resolving conflicts in 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.” State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541.

      {¶ 15} As to the gunshot residue, the test results contain the following information:

“The presence of gunshot primer residue on a person’s hands is consistent with that

individual having discharged a firearm, having been in the vicinity of a firearm when it

was discharged, or having handled an item with gunshot primer residue on it. The

absence of gunshot primer residue on a person’s hands does not preclude the possibility

of any of the above stated events.” Additionally, the parties stipulated that the gunshot

residue evidence was not dispositive of whether A.H. fired a gun.

      {¶ 16} In finding A.H. delinquent, the court stated that it believed Smith’s

testimony that A.H. fired a gun and that Hines did not see this. The court also stated that

even if A.H. did not have a gun, he would still be found delinquent under a complicity

theory because he participated in the criminal act with D.W.
       {¶ 17} Upon review, we find that the court’s reconciliation of Hines’s and Smith’s

testimony is not against the manifest weight of the evidence. Hines testified that he did

not see who shot him; he did not see A.H. with a gun, but he looked away from A.H. as

A.H. was jiggling his hands in his pockets; and in his opinion, D.W.’s shots did not hit

him because the bullet entered him from the opposite side. Smith testified that an

individual in black had a gun, which another individual tried, but failed, to grab. The

individual in black raised and pointed         the gun and fired two shots at the other

individual.   The evidence in the record shows that A.H. was wearing black, and the court

could reasonably infer that A.H. was the person who Smith saw fire the gun.

       {¶ 18} Accordingly, A.H.’s sole assignment of error is overruled and his

delinquency adjudication is affirmed.

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

       The Court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing the Juvenile

Court to carry this judgment into execution.

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

the Rules of Appellate Procedure.



JAMES J. SWEENEY, JUDGE

MELODY J. STEWART, P.J., and
LARRY A. JONES, J., CONCUR
