[Cite as State v. Shavers, 2016-Ohio-5561.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              BUTLER COUNTY




STATE OF OHIO,                                      :
                                                          CASE NO. CA2015-12-212
        Plaintiff-Appellee,                         :
                                                               OPINION
                                                    :           8/29/2016
    - vs -
                                                    :

MIQUEL SHAVERS,                                     :

        Defendant-Appellant.                        :



                  CRIMINAL APPEAL FROM HAMILTON MUNICIPAL COURT
                                Case No. 15CRB03805



Neal Schuett, 345 High Street, 2nd Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Christopher Frederick, 304 North Second Street, Hamilton, Ohio 45011, for defendant-
appellant



        S. POWELL, J.

        {¶ 1} Defendant-appellant, Miquel Shavers, appeals from his conviction in the

Hamilton Municipal Court for one count of aggravated menacing. For the reasons outlined

below, we affirm.

        {¶ 2} On October 5, 2015, Shavers was arrested and charged with two counts of

aggravated menacing in violation of R.C. 2903.21(A), both first-degree misdemeanors. The

charges stemmed from allegations that he had threatened to shoot both Krysta Hoskins
                                                                        Butler CA2015-12-212

("Hoskins") and Dustin Chambers ("Chambers").           It is undisputed that Shavers is the

boyfriend of Chambers' sister, Jitanna Chambers ("Jitanna"), who is the mother of Shavers'

two children. It is also undisputed that Hoskins and Chambers, who are married, lived at

the same residence as Jitanna at all times relevant.

       {¶ 3} On November 24, 2015, the matter proceeded to a bench trial, during which

time the trial court heard testimony from Hoskins, Chambers, Jitanna, and Shavers, among

others. Following trial, the trial court issued its decision finding Shavers not guilty as it

relates to Chambers, but guilty as it relates to Hoskins. In so holding, the trial court

addressed Shavers and stated:

              You didn't deny that you were there threatening people.
              Threatening people is basically the legist of what you're accused
              of doing. But with regard to Mr. uh – the charge that involved
              Mr. Chambers as a witness, said he wasn’t afraid. Not Guilty.
              With regard to the charge with regard to Ms. Hoskins who by the
              way, I believe her testimony more than anyones (sic) in the
              case. I'm finding you to be Guilty.

The trial court then sentenced Shavers to a suspended sentence of 180 days in jail and

ordered him to pay a $300 fine. Shavers was also placed on two years of community control

and required to attend anger management. Shavers now appeals from his conviction,

raising a single assignment of error for review.

       {¶ 4} MR. SHAVERS' CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.

       {¶ 5} In his single assignment of error, Shavers argues his conviction for

aggravated menacing was against the manifest weight of the evidence. We disagree.

       {¶ 6} A manifest weight of the evidence challenge examines the "inclination of the

greater amount of credible evidence, offered at a trial, to support one side of the issue rather

than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶

14. To determine whether a conviction is against the manifest weight of the evidence, the

                                             -2-
                                                                     Butler CA2015-12-212

reviewing court must look at the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of the witnesses, and determine whether in resolving the

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. State

v. Morgan, 12th Dist. Butler Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, ¶

34. However, while appellate review includes the responsibility to consider the credibility

of witnesses and weight given to the evidence, "these issues are primarily matters for the

trier of fact to decide." State v. Walker, 12th Dist. Butler No. CA2006-04-085, 2007-Ohio-

911, ¶ 26. An appellate court, therefore, will overturn a conviction due to the manifest

weight of the evidence only in extraordinary circumstances when the evidence presented

at trial weighs heavily in favor of acquittal. State v. Graves, 12th Dist. Clermont No.

CA2015-03-022, 2015-Ohio-3936, ¶ 19.

      {¶ 7} As noted above, Shavers was convicted of one count of aggravated menacing

in violation of R.C. 2903.21(A), a first-degree misdemeanor, which provides, in pertinent

part, that "[n]o person shall knowingly cause another to believe that the offender will cause

serious physical harm to the person or property of the other person[.]" In turn, although the

definition of aggravated menacing found in R.C. 2903.21(A) does not include the word

"fear," the crime "does require some proof that the victim was apprehensive or intimidated

by the possibility that the offender would cause serious physical harm." State v. Ludt, 180

Ohio App.3d 672, 2009-Ohio-416, ¶ 32. Yet, even then, the state is not required "to prove

that the offender is able to carry out the threat or even that the offender intended to carry

out the threat." State v. Russell, 12th Dist. Warren Nos. CA2011-06-058 and CA2011-09-

097, 2012-Ohio-1127, ¶ 12. Rather, "the offender merely must have a purpose to intimidate

or know that his conduct would probably intimidate." State v. Applegate, 12th Dist. Warren

No. CA2013-08-070, 2014-Ohio-1697, ¶ 10.

                                            -3-
                                                                        Butler CA2015-12-212

       {¶ 8} At trial, Hoskins testified that Shavers sent her several text messages and

proceeded to make threats that he was going to come to her house and shoot her and her

husband, Chambers. According to Hoskins, these text messages included threats from

Shavers that he was going to "smoke her" and "take [her] out." Due to these threats,

Hoskins testified she called the police because she was scared and worried about what

Shavers might do.

       {¶ 9} Hoskins then testified that Shavers and his girlfriend, Jitanna, arrived at her

house, jumped out of their car, and "started talking crazy" with "a lot of words exchanged.

Arguing." According to Hoskins, Shavers then said he was "fixin' to get a gun now," before

returning to his car and getting "something that looked like a gun." When asked about the

gun, Hoskins testified that she had never seen a gun except for what was on television, but

that "it looked like a gun – a gun to me."

       {¶ 10} Continuing, Hoskins testified that Shavers then threatened to "smoke" her and

her husband before yelling at his girlfriend "to get back in the effing car because [they] called

the cops." Hoskins then testified that Shavers said "this [gun] may not be real but the next

one will [be]" before driving away. These threats, coupled with the presence of what she

believed to be a gun, caused Hoskins to fear for her safety and physical well-being.

Although indicating he was not scared or fearful of Shavers, Chambers provided

substantially similar testimony to that of Hoskins.

       {¶ 11} In Shavers' defense, Jitanna testified that she and Shavers went to the house

so that she could use the restroom when a verbal altercation occurred between herself,

Hoskins, Chambers, and Shavers. However, Jitanna testified that "nothing was mentioned

about a gun or none of that. It was just a verbal argument." Thereafter, when specifically

asked about whether she saw Shavers with a gun that day, Jitanna testified that she did

not. Jitanna also testified she did not hear Shavers ever mention a gun. Jitanna further

                                              -4-
                                                                        Butler CA2015-12-212

testified that when she realized Hoskins had called the police, she too called the police

before getting back in the car with Shavers and driving off.

       {¶ 12} Shavers also testified. As part of his testimony, Shavers readily admitted that

he made threats to Chambers, but denied making any threats to Hoskins. Specifically,

when asked if he ever threatened Hoskins that day, Shavers testified "[n]o. No, I didn't. It

was just me and [Chambers] arguing back and forth." According to Shavers, such threats

were merely verbal and had nothing to do with a gun. As Shavers testified, "it wasn't with

a gun. It was with words." Shavers also testified that he did not have a gun with him that

day, nor anything else that would appear to be a gun. Rather, Shavers testified that "it was

just um – like an argument that we normally got into but they just put lies on top if it for some

reason."

       {¶ 13} After a thorough review of the record, we find Shavers' conviction for

aggravated menacing of Hoskins was not against the manifest weight of the evidence. As

noted above, Hoskins testified that Shavers made several threats that he was going to shoot

her and her husband, Chambers, through a series of text messages. Hoskins then testified

that Shavers again threatened to shoot her and her husband after arriving at their house

and brandishing something that she believed to be a gun. As Hoskins testified, these

threats, coupled with the presence of what appeared to be a gun, caused her to fear for her

safety and physical well-being.

       {¶ 14} Shavers claims Hoskins' testimony was not credible, thereby requiring his

conviction be reversed. However, as the trial court stated when addressing the credibility

of the witnesses, "I believe [Hoskins'] testimony more than anyones (sic) in the case." As

the trier of fact is in the best position to judge the credibility of the witnesses, "we will not

disturb the trial court's finding in regard to which version of events was credible, and which

was not." State v. Bonner, 12th Dist. Butler No. CA2012-09-195, 2013-Ohio-3670, ¶ 13.

                                              -5-
                                                                      Butler CA2015-12-212

Moreover, although faced with conflicting evidence, "[i]t is well-established that when

conflicting evidence is presented at trial, a conviction is not against the manifest weight of

the evidence simply because the trier of fact believed the prosecution testimony." State v.

Lunsford, 12th Dist. Brown No. CA2010-10-021, 2011-Ohio-6529, ¶ 17.                Therefore,

because this is not one of those extraordinary cases where the evidence presented at trial

weighs heavily in favor of acquittal, Shavers' single assignment of error is without merit and

overruled.

       {¶ 15} Judgment affirmed.


       PIPER, P.J., and RINGLAND, J., concur.




                                            -6-
