[Cite as State v. Freed, 2015-Ohio-4332.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :   JUDGES:
                                               :
                                               :   Hon. Sheila G. Farmer, P.J.
       Plaintiff-Appellee                      :   Hon. Patricia A. Delaney, J.
                                               :   Hon. Craig R. Baldwin, J.
-vs-                                           :
                                               :   Case No. 15-CA-34
                                               :
JUSTIN A. FREED                                :
                                               :
                                               :
       Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Licking County
                                                   Municipal Court, Case No. 15CRB00547



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            October 16, 2015




APPEARANCES:

For Plaintiff-Appellee:                            For Defendant-Appellant:

MARK D. GARDNER                                    WILLIAM T. CRAMER
JOHNSTOWN PROSECUTOR                               470 Olde Worthington Rd., Ste. 200
23 South Park Place, Ste. 208                      Westerville, OH 43082
Newark, OH 43055
Licking County, Case No. 15-CA-34                                                        2

Delaney, J.

       {¶1} Appellant Justin A. Freed appeals from the May 7, 2015 Sentencing Entry

of the Licking County Municipal Court. Appellee is the state of Ohio.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} The following facts are adduced from appellant's bench trial.

       {¶3} This case arose on April 2, 2015 around 10:00 p.m. when appellant

knocked loudly on Brett Daley's front door, looking for Daley's brother Mike. Daley said

Mike didn't live there and told appellant to go home. Appellant stayed and continued to

"ramble" and yell.

       {¶4} Daley's wife, Whitney Woods, came out of the house and joined the

argument. A car pulled up and several men jumped out and ran up to the porch: Josh

Freed (appellant's brother), Chuckie Bailey, and an unknown man. These three joined

the argument, demanding to know where Mike Daley was. Brett Daley continued to tell

them all to leave. Woods told the group "This is bull crap that you're doing this in front

of our kids, scaring them" and Josh Freed punched Woods in the arm, pushing her

against the house and launching a melee.

       {¶5} Brett Daley came off the porch and punched Josh Freed. The unknown

man grabbed Daley by a leg and held him in place while appellant, Josh Freed, and

Bailey hit and kicked Daley. Daley testified all three, including appellant, hit and kicked

him repeatedly.

       {¶6} Next door, Joseph Norris and his family heard the melee and came

outside.   Joseph Norris told the group to leave because his wife called the police.

Appellant hit Norris and also struck his son, Joey. Norris' wife yelled that police were on
Licking County, Case No. 15-CA-34                                                       3


their way. At that, the other assailants jumped in the car and took off, except appellant.

Appellant remained in Daley's yard and continued to argue with Daley and the

neighbors until police arrived.

       {¶7} Appellant testified on his own behalf at trial.        He admitted he was

intoxicated during the incident and admitted "scuffling" with Daley and the neighbors,

although he claimed he only fought back in self defense. Most surprisingly, appellant

was the only witness to claim none of the other men were there, including his brother

Josh. First appellant said as he and Daley started hitting each other the others arrived

and he didn't know where they came from. Then, in response to direct questions from

the trial court, appellant reversed course and said no car ever arrived and no one fought

Daley and the Norrises except for him.

       {¶8} Appellant was charged by criminal complaint with one count of aggravated

trespass pursuant to R.C. 2911.211, a misdemeanor of the first degree [Count I]; and

two counts of assault pursuant to R.C. 2903.13, both misdemeanors of the first degree

[Counts II and III].1 Appellant entered pleas of not guilty and the case proceeded to

bench trial. Appellant was found guilty as charged.

       {¶9} Appellant now appeals from the judgment entries of conviction and

sentence.




1Brett Daley is the named victim on Counts I and III; Joseph Norris is the named victim
on Count III.
Licking County, Case No. 15-CA-34                                                         4


         {¶10} Appellant raises two assignments of error:

                                ASSIGNMENTS OF ERROR

         {¶11} "I. APPELLANT'S RIGHTS TO DUE PROCESS UNDER THE STATE

AND FEDERAL CONSTITUTIONS WERE VIOLATED BECAUSE HIS CONVICTIONS

FOR ASSAULT WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE."

         {¶12} "II.   THE ASSAULT COUNTS WERE NOT SUPPORTED BY THE

WEIGHT OF THE EVIDENCE."

                                         ANALYSIS

         {¶13} Appellant's two assignments of error are related and will be considered

together. Appellant argues his convictions for assault2 are against the manifest weight

and sufficiency of the evidence. We disagree.

         {¶14} The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio

St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard

of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,

61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which

the Ohio Supreme Court held, “An appellate court’s function when reviewing the

sufficiency of the evidence to support a criminal conviction is to examine the evidence

admitted at trial to determine whether such evidence, if believed, would convince the

average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry

is whether, after viewing the evidence in a light most favorable to the prosecution, any




2   Appellant does not challenge his conviction for aggravated trespass.
Licking County, Case No. 15-CA-34                                                      5


rational trier of fact could have found the essential elements of the crime proven beyond

a reasonable doubt.”

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

evidence, the court of appeals functions as the “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 overturned and a new trial ordered.” State v. Thompkins, supra, 78

Ohio St.3d at 387. 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.

      {¶16} Appellant's arguments on appeal are premised upon inconsistencies in

some witnesses' testimony regarding which Freed struck which victim.          It is well-

established, though, that the weight of the evidence and the credibility of the witnesses

are determined by the trier of fact. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-

2126, 767 N.E.2d 216, ¶ 79. The trial judge, acting as the trier of fact in appellant's

case, was free to accept or reject any and all of the evidence offered by the parties and

assess the witness's credibility. “‘While the [factfinder] may take note of the

inconsistencies and resolve or discount them accordingly * * * such inconsistencies do

not render defendant's conviction against the manifest weight or sufficiency of the

evidence.’” State v. Naugle, 182 Ohio App.3d 593, 2009-Ohio-3268, 913 N.E.2d 1052, ¶

20 (5th Dist.), citing State v. Craig, 10th Dist. Franklin No. 99AP–739, 2000 WL 297252

(Mar. 23, 2000), *3. Jurors may accept only portions of a witness's testimony as true
Licking County, Case No. 15-CA-34                                                        6

and may reject the rest. Id., citing State v. Raver, 10th Dist. Franklin No. 02AP–604,

2003-Ohio-958, ¶ 21.

       {¶17} Here, the trial judge heard the witnesses, evaluated the evidence, and

was convinced of appellant's guilt. Daley unequivocally testified appellant hit and kicked

him, and Norris testified appellant hit him.       Appellant himself admitted he was

intoxicated and he "scuffled" with Daley and the neighbors, although he claimed his

blows were struck in self-defense. As the trial court pointed out in ruling from the

bench, appellant's credibility was all but destroyed when he alone insisted the rest of the

assailants were never on the scene. Upon our review of the record, we find appellant's

assault convictions are supported by sufficient evidence and are not against the

manifest weight of the evidence.

       {¶18} Appellant's two assignments of error are overruled.
Licking County, Case No. 15-CA-34                                                7


                                    CONCLUSION

       {¶19} Appellant's two assignments of error are overruled and the judgment of

the Licking County Municipal Court is affirmed.

By: Delaney, J. and

Farmer, P.J.

Baldwin, J., concur.
