[Cite as State v. Carter, 2013-Ohio-3754.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                              :

        Plaintiff-Appellee                                 :            C.A. CASE NO.    25447

v.                                                         :            T.C. NO.   12CR915

ROBERT A. CARTER                                           :            (Criminal appeal from
                                                                        Common Pleas Court)
        Defendant-Appellant                     :

                                                           :

                                              ..........

                                             OPINION

                          Rendered on the           30th       day of        August     , 2013.

                                              ..........

APRIL F. CAMPBELL, Atty. Reg. No. 0089541, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

NICHOLAS G. GOUNARIS, Atty. Reg. No. 0064527, 130 W. Second Street, Suite 2000,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                              ..........

YARBROUGH, J. (by assignment)

                                             I. Introduction
[Cite as State v. Carter, 2013-Ohio-3754.]
        {¶ 1}      Defendant-appellant, Robert Carter, appeals the judgment of the

Montgomery County Court of Common Pleas, following a two-day bench trial, wherein the

court found appellant guilty of two counts of felonious assault, one count of improperly

discharging a firearm at or into a habitation, and one count of discharging a firearm on or

near a prohibited premises, all with the attendant firearm specifications.

                               A. Facts and Procedural Background

        {¶ 2}      The state elicited the following evidence during the two-day bench trial.

On March 19, 2012, at around 10:00 p.m., a gray or silver Chevy pulled into the driveway at

711 Cleverly Road, the home of Leon Davis, Jr. Dawne Jones, who was leaving the house

at the time, testified that she stopped and talked to the driver, who she identified as Carter.

No other passengers were in the car. After a brief conversation, Dawne left, and Sam Ford

approached the driver’s side of the car. Sam testified that he spoke with Carter, and that

Carter requested $20 that he had loaned to Sam earlier. Sam responded that he did not have

the money. Shortly thereafter, the car left. Sam testified that, although he did not perceive

Carter to be angry or upset, he heard Carter say, “[L]et me go get my gun,” as Carter was

leaving. Notably, Carter lived nearby.

        {¶ 3}      Sam returned to the front porch where he had been talking with Vanessa

Hines and Bridgette Dawson. A few minutes later, Sam and Vanessa then left to walk over

to Vanessa’s mother’s house a few blocks away. Bridgette remained sitting on the front

porch. Sam and Vanessa testified that as they were walking, they saw the same car that had

left the driveway moments ago coming down the street towards them. Vanessa testified that

she could see that Carter was driving the car and that there were no other passengers. Sam

initially testified that he also could see Carter driving the car, although he later admitted that
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he assumed it was Carter because it was the same car.

       {¶ 4}     The car passed Sam and Vanessa.          As it continued driving past 711

Cleverly, gunfire came from the driver’s side of the car. Approximately ten rounds were

fired at the house. Sam and Vanessa testified that they could see the gunfire. Bridgette

also testified that she could see the gunfire, but stood there, frozen. Three of the bullets

struck Bridgette, wounding her left chest, left wrist, and right elbow. In addition, several of

the bullets entered the house, striking the wall and television. Leon, who was inside the

house at the time, heard the shots and fell to the floor. He was not injured.

       {¶ 5}     At a subsequent interview with the police, Sam and Vanessa separately

identified Carter as the shooter from a photo lineup. After Carter was taken into custody,

and while the criminal proceedings were pending, Carter made several phone calls from the

jail in which he discussed the facts surrounding the incident, and at least on one occasion,

offered money if Vanessa would change her testimony or not show up for trial.

       {¶ 6}     Following the state’s presentation of its case, the defense called Carter’s

nephew, Jamikel, as an alibi witness. Jamikel testified that Carter was at Jamikel’s house

on the evening of the shooting. Jamikel stated that he went downstairs to get a snack on

two occasions, and remembered seeing Carter there watching television both times. The

defense also called Carter’s mother, Rose Carter.        Rose testified that in July after the

incident, Vanessa admitted to her that she could not identify Carter and so was not going to

testify. Vanessa denied ever having this conversation.

       {¶ 7}     The trial court found Carter guilty on all counts. At sentencing, the trial

court merged the felonious assault counts into the count of discharging a firearm on or near a
                                                                                              4

prohibited premises. The court further merged all of the firearm specifications into the one

specification attached to the count of improperly discharging a firearm at or into a habitation.

 Ultimately, the court sentenced Carter to eight years in prison on each count, and ordered

the sentences to run concurrently to each other, and consecutively to the five-year prison

sentence for the firearm specification, for a total prison term of 13 years. The trial court

also ordered Carter to pay court costs.

                                  B. Assignments of Error

       {¶ 8}     Carter has timely appealed, and now raises two assignments of error:

                I. Whether Carter’s convictions for Counts I, II, III, and IV, are

       against the manifest weight of the evidence since the State failed to prove that

       it was Carter in the car shooting at the house.

                II. Whether the trial court erred by imposing court costs without

       informing Carter that he could have to perform community service if he failed

       to pay his court costs.

                        II. Carter’s Convictions Were Not Against

                           the Manifest Weight of the Evidence

       {¶ 9}     In support of his first assignment of error, Carter does not contest that the

elements of the crimes were satisfied. Rather, Carter raises the issue of identity, and argues

that the trial court’s finding that he was the shooter is against the manifest weight of the

evidence.

       {¶ 10}    When reviewing a manifest weight claim,

                The court, reviewing the entire record, weighs the evidence and all
                                                                                            5

       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. The discretionary power to grant a new

       trial should be exercised only in the exceptional case in which the evidence

       weighs heavily against the conviction. State v. Lang, 129 Ohio St.3d 512,

       2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, quoting State v. Thompkins, 78

       Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

       {¶ 11}    Because the fact finder has the opportunity to see and hear the witnesses,

substantial deference must be extended to its determinations of credibility. State v. Lawson,

2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997). The trier of fact

may believe all, some, or none of what a witness says. State v. Antill, 176 Ohio St. 61, 67,

197 N.E.2d 548 (1964).

       {¶ 12}    Here, we cannot say that this is the exceptional case where the evidence

weighs heavily against the conviction. Vanessa expressly testified that she saw Carter

driving the car at the time of the shooting. Several witnesses also testified that Carter was

in the driver’s seat of the same car while it was parked at 711 Cleverly, moments before the

shooting. In addition, Sam testified that he heard Carter say he was going to go get his gun.

 Finally, Carter’s own statements on the phone calls from the jail discussing the incident and

offering money if Vanessa will either change her story or not testify is evidence of his

consciousness of his guilt.    The trial court was in the best position to determine the

witnesses’ credibility, and reviewing the record as a whole, we conclude that the court did
                                                                                           6

not lose its way merely because it chose to believe the state’s witnesses over those of the

defense. Accordingly, Carter’s first assignment of error is overruled.

            III. The Trial Court Failed to Notify Carter of the Possibility of

                     Community Service if He Failed to Pay Court Costs

       {¶ 13}       As his second assignment, Carter argues that the trial court erred by

imposing court costs without informing him that he may be required to perform community

service if he fails to pay, as required by the version of R.C. 2947.23(A)(1) in effect at the

time of his sentencing. The state concedes this error, and our review of the transcript from

the sentencing hearing confirms that Carter was not notified of the possible imposition of

community service. Accordingly, Carter’s second assignment of error is sustained.

       {¶ 14}       Carter requests that we remand this matter to the trial court for proper

imposition of court costs. Recently, however, in similar circumstances we have modified

the defendant’s sentence to eliminate any possibility that the defendant can be mandated to

perform community service in lieu of payment of court costs. See State v. Haney, 2d Dist.

Montgomery No. 25344, 2013-Ohio-1924, ¶ 21; State v. Veal, 2d Dist. Montgomery No.

25253, 2013-Ohio-1577, ¶ 20. Therefore, we modify Carter’s sentence to remove the

possibility that Carter will be required to perform community service should he fail to pay

court costs. As modified, the judgment of the Montgomery County Court of Common Pleas

will be affirmed.

                                          ..........

HALL, J. and WELBAUM, J., concur.

(Hon. Stephen A. Yarbrough, Sixth District Court of Appeals, sitting by assignment of the
Chief Justice of the Supreme Court of Ohio).
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Copies mailed to:

April F. Campbell
Nicholas G. Gounaris
Hon. Dennis J. Adkins
