[Cite as State v. Carlisle, 2014-Ohio-2852.]


STATE OF OHIO                      )                  IN THE COURT OF APPEALS
                                   )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

STATE OF OHIO                                         C.A. No.     27028

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
LARAY L. CARLISLE                                     COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 12 09 2503

                                  DECISION AND JOURNAL ENTRY

Dated: June 30, 2014



        MOORE, Judge.

        {¶1}     Defendant, Laray L. Carlisle, appeals from his conviction in the Summit County

Court of Common Pleas. This Court affirms.

                                                 I.

        {¶2}     In the midday hours of July 24, 2012, Mr. Carlisle was involved in a traffic

incident involving a taxi driven by Keywana Williams. Mr. Carlisle twice rear-ended Ms.

Williams’ taxi as she was stopped at an intersection waiting to turn left from East Mapledale

Avenue onto South Main Street in Akron, Ohio. Thereafter, Ms. Williams exited her taxi and

became lodged to some extent within Mr. Carlisle’s window while he was driving away from the

scene. She later fell from his car at or near a parking lot located about fifty yards from where

Mr. Carlisle had rear-ended her taxi.

        {¶3}     As a result of this incident, the Summit County Grand Jury indicted Mr. Carlisle

on one count of felonious assault in violation of R.C. 2903.11(A)(2), and one count of
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kidnapping in violation of R.C. 2905.01(A)(1)/(A)(3). Mr. Carlisle pleaded not guilty, and the

case proceeded to jury trial. The jury found Mr. Carlisle guilty of felonious assault and not

guilty of kidnapping.

       {¶4}    The trial court imposed sentence in an entry dated July 8, 2013, and Mr. Carlisle

timely filed a notice of appeal. Mr. Carlisle now presents one assignment of error for our review.

                                                 II.

                                  ASSIGNMENT OF ERROR

       [MR.] CARLISLE’S CONVICTION IS AGAINST THE MANIFEST WEIGHT
       OF THE EVIDENCE, AND MUST BE REVERSED.

       {¶5}    In his sole assignment of error, Mr. Carlisle argues that his conviction for

felonious assault was against the manifest weight of the evidence. We disagree.

       {¶6}    When a defendant asserts that his conviction is against the manifest weight of the

evidence,

       an appellate court must review the entire record, weigh the evidence and all
       reasonable inferences, consider the credibility of witnesses and determine
       whether, in resolving 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).

       {¶7}    In making this determination, this Court is mindful that “[e]valuating evidence

and assessing credibility are primarily for the trier of fact.” State v. Shue, 97 Ohio App.3d 459,

466 (9th Dist.1994), citing Ostendorf-Morris Co. v. Slyman, 6 Ohio App.3d 46, 47 (8th

Dist.1982) and Crull v. Maple Park Body Shop, 36 Ohio App.3d 153, 154 (12th Dist.1987).

       {¶8}    Here, Mr. Carlisle was convicted of felonious assault, in violation of R.C.

2903.11(A)(2), which provides: “No person shall knowingly * * * [c]ause or attempt to cause

physical harm to another * * * by means of a deadly weapon or dangerous ordnance.” “A person
                                                3


acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause

a certain result or will probably be of a certain nature. A person has knowledge of circumstances

when he is aware that such circumstances probably exist.” R.C. 2901.22(B). R.C. 2923.11(A)

defines a deadly weapon as “any instrument, device, or thing capable of inflicting death, and

designed or specially adapted for use as a weapon, or possessed, carried, or used as a weapon.”

The parties do not dispute that “[a]n automobile may be used as a deadly weapon for purposes of

this statute.” State v. Gibson, 9th Dist. Summit No. 23881, 2008-Ohio-410, ¶ 14, citing State v.

Davidson, 9th Dist. Lorain No. 89CA004641, 1990 WL 83966, *2 (June 20, 1990). See also

2903.11(D)(2) (acknowledging that a motor vehicle could be a deadly weapon used in the

commission of a violation of that section).

       {¶9}    Here, as part of the State’s case-in-chief, the prosecution presented the testimony

of Ms. Williams, Thomas Baum, and Sergeant Timothy McLeod. Ms. Williams testified that she

works for a taxi company. On July 24, 2012, while driving her taxi, she was stopped on East

Mapledale Avenue at the intersection of South Main Street, where she planned to turn left. Ms.

Williams had on her left turn signal as she waited for traffic to pass. While waiting, she felt a

bump against her taxi, and she heard someone say, “[M]ove.” She got out of the taxi, and a man,

later identified as Mr. Carlisle, was backing up his car, and he was laughing. She called 9-1-1

and explained that a man had just hit her taxi, and she got back into her taxi. After making the 9-

1-1 call, she called her employer, and then she again felt Mr. Carlisle hit her taxi with his car.

She exited her taxi, and Mr. Carlisle apologized and said he did not mean to hit her that time, and

he was in a hurry. Ms. Williams got back in the taxi, and Mr. Carlisle maneuvered his car

between her taxi and the stop sign. Their windows were down, and Mr. Carlisle informed Ms.

Williams that he could not wait. He held up his license and insurance for her inspection and Ms.
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Williams got out of her taxi to take a picture of his license with her cell phone because she did

not have a pen. As she approached his window, she testified that he grabbed her hand and

phone. Ms. Williams reached into Mr. Carlisle’s car to get her phone, and as she was leaned into

his car, he began to accelerate. Ms. Williams then ran alongside the car while her upper body

was still in Mr. Carlisle’s window, but ultimately she just tried to hold onto the car to avoid

injury. During the incident, Mr. Carlisle continuously referred to her using an expletive, and, at

one point while she was attached to the vehicle, he said he was going to break her arm off. After

traveling into a parking lot, the car stopped, and Ms. Williams flew off of the car and hit her

head. Mr. Carlisle threw her phone down, breaking it, and quickly drove back toward East

Mapledale Avenue. She testified that she saw him stop at her taxi, close the door which she had

left open, and drive away. As a result of the incident, Ms. Williams suffered injuries to her head

and ankle, and she suffered a flare-up of a previous back injury.

       {¶10} On cross-examination, Ms. Williams maintained that Mr. Carlisle took her phone

with his right hand and then stretched his right arm out so that she could not reach it. When he

started to pull off, she was still reaching for her phone, and she did not expect him to start

moving his car. When he did, she held on to the steering wheel, grabbed his shirt, and ended up

grabbing ahold of the door when they were moving. The record reflects that defense counsel

asked her to demonstrate the respective hand positions of herself and Mr. Carlisle, and she

complied. It is difficult to discern from the transcript much of what this demonstration consisted.

However, during Ms. Williams’ testimony and the limited narration of portions of the

demonstration with defense counsel, Ms. Williams’ maintained that Mr. Carlisle held her phone

away from her by stretching out his right arm, that Mr. Carlisle had grabbed or held onto Ms.

Williams’ hand, and that Mr. Carlisle had ahold of the steering wheel.
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       {¶11} Thomas Baum testified that he works at Accent Custom Marble on South Main

Street. On the date at issue, he went out the front door of the business and saw a car quickly

pulling out of the drive from Accent’s parking lot. A woman was screaming in the parking lot.

As he went to go help the woman, she asked him to watch her taxi on East Mapledale Avenue,

and he complied. When he approached to watch the taxi, the door was open. He stood by the

taxi until he flagged down an officer, who stayed with the car while Mr. Baum went back to

work. On cross-examination, Mr. Baum acknowledged that no one touched or came near the car

while he was watching it.

       {¶12} Sergeant Timothy McLeod of the Akron police department testified that he was

assigned to investigate this incident. After Mr. Carlisle was arrested, Sergeant McLeod spoke

with him. An exhibit containing the video recorded interview was admitted into evidence. On

the video, Mr. Carlisle denies any knowledge of the incident. However, an audio recording of a

telephone call made by Mr. Carlisle from the Summit County jail also was entered into evidence.

During this call, Mr. Carlisle acknowledged the incident, but maintained that Ms. Williams put

herself in danger because she jumped into his window after he started moving, and, when he

realized she had done so, he stopped.

       {¶13} On appeal, Mr. Carlisle argues that Ms. Williams’ testimony that she was partially

inside the vehicle when Mr. Carlisle began moving was not credible, and, therefore, the

determination that he knowingly caused or attempted to cause physical harm to her with his car

is against the manifest weight of the evidence. See R.C. 2903.11(A)(2). Specifically, Mr.

Carlisle maintains that Ms. Williams’ account of the relative hand placement of herself and Mr.

Carlisle inside of his car while he drove was “impossible” and internally inconsistent. In

addition, Mr. Carlisle maintains that it was not possible that Ms. Williams could have seen Mr.
                                                 6


Carlisle shut her taxi door after the incident because her line of sight would have been blocked

by a building. Moreover, her testimony on this point was inconsistent with the testimony of Mr.

Baum, who maintained that the taxi door was open while he waited with the taxi, and no one

touched the taxi at this time. Mr. Carlisle maintains that Ms. Williams’ testimony on this point

constituted a “glaring impossibility, one that calls the veracity of all of the rest of [Ms.]

Williams’ testimony into question.”

       {¶14} However, after reviewing the entire record, weighing the inferences and

examining the credibility of witnesses, we cannot say that the jury’s resolution of the testimony

was unreasonable. Although Ms. Williams’ testimony as to the positioning of her hands and

body within Mr. Carlisle’s car is difficult to envision, we cannot say that her account of the

events is “impossible.” Further, as to the purported internal inconsistencies in Ms. Williams’

testimony and the apparent inconsistency between Ms. Williams’ and Mr. Baum’s testimony, we

have repeatedly held that “[t]he jury is free to believe all, part, or none of the testimony of each

witness.” Prince v. Jordan, 9th Dist. Lorain No. 04CA008423, 2004-Ohio-7184, ¶ 35, citing

State v. Jackson, 86 Ohio App.3d 29, 33 (4th Dist.1993). This is because the jury “is best able to

view witnesses and observe their demeanor, gestures and voice inflections, and use these

observations in weighing the credibility of the proffered testimony.” State v. Cook, 9th Dist.

Summit No. 21185, 2003-Ohio-727, ¶ 30, quoting Giurbino v. Giurbino, 89 Ohio App.3d 646,

659 (8th Dist.1993). Based upon her testimony, Ms. Williams clearly indicated that she was

leaning in the car when Mr. Williams began to accelerate, and that, based upon his threatening

words and his actions, he was aware that she was leaning in the car at that time. Moreover, in

regard to Ms. Williams’ testimony as to Mr. Carlisle closing her taxi door, we recognize that this

testimony is inconsistent with the testimony of Mr. Baum. However, we cannot say that it is
                                                    7


impossible that she could have seen Mr. Carlisle close the door as, although pictures of the area

where the incident occurred were admitted into evidence, the precise position where Ms.

Williams became dislodged from the car is not clear from the record. Further, even if the jury

chose to believe that Ms. Williams’ testimony on this point was inaccurate, the action of closing

the taxi door did not speak to any element of the offense. We do not agree that this inconsistency

between her testimony and that of Mr. Baum as to the taxi door undermines the remainder of Ms.

Williams’ testimony.

       {¶15} Consequently, this is not the exceptional case where the jury clearly lost its way

and created a manifest miscarriage of justice in finding Mr. Carlisle guilty. Accordingly, Mr.

Carlisle’s sole assignment of error is overruled.

                                                III.

       {¶16} Mr. Carlisle’s assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    CARLA MOORE
                                                    FOR THE COURT



HENSAL, P. J.
CARR, J.
CONCUR.


APPEARANCES:

JACQUENETTE S. CORGAN, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
