[Cite as State v. Ferguson, 2020-Ohio-3119.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                       :

                 Plaintiff-Appellee,                 :
                                                              No. 108603
                 v.                                  :

DELONTE FERGUSON,                                    :

                 Defendant-Appellant.                :


                               JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: May 28, 2020


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                            Case No. CR-18-629296-A


                                               Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Kevin R. Filiatraut, Assistant Prosecuting
                 Attorney, for appellee.

                 Stephen L. Miles, for appellant.


MARY EILEEN KILBANE, J.:

                   Defendant-appellant, Delonte Ferguson (“Ferguson”), appeals his

conviction for having weapons while under disability. He raises a single assignment

of error arguing his conviction is against the manifest weight of the evidence. For

the following reasons, we affirm the decision of the trial court.
Procedural History

                 Ferguson was indicted on June 5, 2018, in a five-count indictment for

the killing of Darrell Hill: Counts 1 and 2 were both first-degree murder counts in

violation of R.C. 2903.02 — each count included one-year firearm specifications

pursuant to R.C. 2941.141 as well as a three-year firearm specification pursuant to

R.C. 2941.145; Count 3, felonious assault, a second-degree felony — which included

a one-year firearm specification pursuant to R.C. 2941.141 as well as a three-year

firearm specification pursuant to R.C. 2941.145; Count 4, discharge of a firearm on

or near prohibited premises, a first-degree felony pursuant to R.C. 2923.162(A)(3)

— which included a one-year firearm specification pursuant to R.C. 2941.141 as well

as a three-year firearm specification pursuant to R.C. 2941.145. Ferguson was also

charged with Count 5, having a weapon while under disability (“HWWUD”), a third-

degree felony.

                 Ferguson exercised his right to a trial by jury on Counts 1-4; he elected

to try Count 5, the HWWUD charge, to the bench.

                 The matter proceeded to trial on all counts, at which the following

evidence was adduced.

The Trial

                 On May 28, 2018, J.P. drove to her friend R.W.’s house on Walton

Avenue. J.P. arrived at the Walton Avenue home around 8:00 p.m. and saw R.W.

walking with A.W., another one of their friends.
               R.W. lives with her mother, little brother, and Ferguson, her mother’s

boyfriend. Both A.W. and J.P. were familiar with Ferguson, having spoken with him

before, and knew him as “Lupe.”

               After picking up R.W. and A.W., J.P. drove the three to McDonald’s

and Rally’s to pick up food. They then returned to R.W.’s house where R.W.’s little

brother joined them; they all ate in the car together.

               Around 10:00 p.m., R.W. left to go put her brother to bed. J.P. and

A.W. remained in the car hanging out. Several minutes later, the two heard

gunshots nearby. J.P. testified that she heard two gunshots, while A.W. testified it

could have been four shots. J.P. was in the driver’s seat; she testified that she

immediately became terrified and that A.W. urged her to leave quickly. J.P. turned

off of Walton onto West 32nd Street, proceeding towards Clark Avenue and Tony’s

Market at a high rate of speed. Both girls testified that they know now that they were

driving towards where the shots had come from, but at the time they were both

scared. J.P.’s mother also lives in the direction they were driving.

               As the girls were driving down West 32nd, both girls saw Ferguson

walking towards his home on Walton Avenue. J.P. stated that she slowed the vehicle

down to see if Ferguson was alright, because she was worried about him, and then

“me and [A.W.] saw the gun in his hand, and he stared at us and we stared at him,

and I just kept going.” Tr. 214.

               J.P. described the gun as being “silver at the top, kind of a dark color

on the bottom half.” Id. After seeing Ferguson, J.P. accelerated, stating that she
wanted to get back to R.W.’s house to make sure their friend would be okay. As they

drove rapidly down West 32nd, neither saw anyone else on the street.

               Once they turned back onto Walton a few moments later, the girls

paused briefly in front of R.W.’s house to see if they could hear anything unusual.

The girls did not see anyone on the street or hear anything unusual, and noted that

there were some lights on in R.W.’s house and in the house of Ferguson’s mother,

who lived next door to R.W.

               J.P. then pulled out from the house and turned onto West 32nd,

proceeding down the street intending to travel to J.P.’s mother’s home. This time,

once they turned onto West 32nd, they saw a body in front of Tony’s Market, with

people gathered around. The girls did not stop, but instead drove towards J.P.’s

house. As the girls drove, they spotted a police car; J.P. flashed her high beams and

blew her horn to get the officer’s attention. They let the police know that they had

seen a body outside Tony’s Market.

               After speaking with the officers, the girls drove to J.P.’s house. Once

there, J.P.’s mother told the girls that they should tell the police who they had seen;

she accompanied the two back to West 32nd to speak with the police again.

               When speaking to police that evening, J.P. described Ferguson as

wearing a white T-shirt and baggy jeans. However, at trial, J.P. repeatedly stated

that she saw Ferguson that evening wearing a red zipper hoodie. She was asked

numerous times on cross-examination to confirm that was what she saw Ferguson

wearing.
              J.P. did the majority of the talking with police at the scene, with A.W.

only speaking up to say that she agreed with what J.P. said. At trial, A.W. did recall

some small differences but mostly confirmed J.P.’s testimony.

              In particular, A.W. testified that they did not slow down when they

saw Ferguson walking towards Walton, as J.P. had stated, but instead that J.P. was

driving very quickly because the two girls were concerned for their safety.

Otherwise, she confirmed everything that J.P. had observed.

              A.W. admitted on cross-examination that, during a pretrial meeting,

she had informed the prosecutor in this case that she did not see Ferguson with a

weapon. However, after some questioning by the prosecutor on redirect, she

admitted that she had not wanted to testify and that she really had seen a weapon.

The search for a weapon

              Following the identification of Ferguson by the two girls at the scene,

at least twenty minutes passed before officers proceeded to Walton Avenue. When

officers arrived, they learned Ferguson was at his mother’s house. Ferguson did not

immediately answer the door when officers knocked; he eventually came to the door

shirtless and sweating. He was cordial with officers, though visibly intoxicated.

              Following his arrest, the Cuyahoga County Medical Examiner’s Office

conducted a gunshot residue test on Ferguson, which resulted in a negative finding.

Nor was Ferguson’s DNA found on the cartridge casings found at the scene.

              Officers conducted extensive searches of Ferguson’s house,

Ferguson’s mother’s house, and a third home near the other two. No firearms or
ammunition were found. However, following a cold stand where A.W. and J.P.

identified, from a distance, Ferguson as the man they had seen, officers took him

into custody.

                At the conclusion of the trial, on April 25, 2019, the jury found

Ferguson not guilty of counts 1-4. However, the trial court found Ferguson guilty of

count 5 for HWWUD. The court sentenced Ferguson to 30-months’ imprisonment

on April 30, 2019. He provides a single assignment of error for our review.

                                Assignment of Error

      The appellant’s conviction was against the manifest weight of the
      evidence.

Manifest weight standard

                In our manifest weight review of a bench-trial verdict, we recognize

that the trial court is serving as the factfinder:

      Accordingly, to warrant reversal from a bench trial under a manifest
      weight of the evidence claim, this 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
      evidence, the trial court clearly lost its way and created such a manifest
      miscarriage of justice that the judgment must be reversed and a new
      trial ordered.

State v. Bell, 8th Dist. Cuyahoga No. 106842, 2019-Ohio-340, ¶ 41, citing State v.

Strickland, 183 Ohio App.3d 602, 2009-Ohio-3906, 918 N.E.2d 170, ¶ 25 (8th Dist.).

See also State v. Kessler, 8th Dist. Cuyahoga No. 93340, 2010-Ohio-2094, ¶ 13.

                A conviction should be reversed as against the manifest weight of the

evidence only in the most “exceptional case in which the evidence weighs heavily

against the conviction.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d
541 (1997). In contrast to a challenge based on sufficiency of the evidence, a

manifest weight challenge attacks the credibility of the evidence presented and

questions whether the state met its burden of persuasion at trial. State v. Whitsett,

8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26, citing State v. Bowden, 8th

Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13.

              In a manifest weight review, we sit as the thirteenth juror with the

ability to disagree with the factfinder’s resolution of the conflicting testimony.

Thompkins at id. Therefore, under Thompkins, a reviewing court can still reweigh

the evidence and reverse a lower court's holdings. State v. Wilson, 113 Ohio St.3d

382, 2007-Ohio-2202, 865 N.E.2d 1264, citing Thompkins.

              In this instance, we do not find that this is one of those exceptional

cases where the evidence weighs heavily against the conviction. Having reviewed

the evidence and the testimony of the witnesses, we find it credible that Ferguson

was in possession of a firearm on May 28, 2018.

              We have recently decided a similar case where the defendant,

acquitted by the jury of certain charges, but convicted by the court of an HWWUD

charge, challenged that conviction on manifest weight grounds. State v. Kind, 8th

Dist. Cuyahoga No. 106413, 2018-Ohio-3309.

              In Kind, a defendant was acquitted of attempted murder by the jury

but found guilty by the trial court of HWWUD. The victim in that case was

approached by two men outside of a gas station and was shot four times. He spotted

Kind, whom he knew, with a gun before the two men approached, but, when
questioned by officers at the scene, stated that he did not know who shot him.

However, at trial, the victim and his brother both identified the defendant as the

person who had shot the victim. Despite these seeming inconsistencies, the trial

court noted that the victim’s testimony was consistent as to Kind having a weapon.

As a result, the trial court convicted him of the HWWUD charge.

              Kind is almost directly on point. In this case, we have two witnesses

who both identified Ferguson, a person they knew well. Both witnesses testified that

they saw Ferguson with a weapon. True, there are some inconsistencies within their

testimony — like what Ferguson was wearing the night they saw him. But we find

that both witnesses are otherwise credible as to the essential fact: that Ferguson had

a weapon.

              While we do not defer to the trial court, we are conscious that the

court also found the two witnesses to be credible:

      I was here, I watched the trial, obviously the journal entry shows the
      disability in and of itself and I found the witnesses who said he had a
      gun very credible. They did not want to be here. Their alliance was
      really to the defendant and his family, but despite that, they came in
      and testified that, in fact, they saw him unequivocally with a gun.

              Instead of focusing on two credible witnesses, Ferguson argues that

we should focus on the fact that no weapon was found. However, we do not find that

fact inconsistent with a conviction in this case. There is ample evidence that

Ferguson took his time before speaking to police. He came to the door shirtless and

sweating minutes after officers knocked. He had plenty of time to hide the weapon.
                 This is not one of those exceptional cases where the weight of the

evidence is against the conviction. As a result, we affirm the decision of the trial

court.

         It is ordered that appellee recover from appellant 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

common pleas 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.



MARY EILEEN KILBANE, JUDGE

PATRICIA ANN BLACKMON, P.J., and
LARRY A. JONES, SR., J., CONCUR
