[Cite as State v. Dillard, 2012-Ohio-4018.]



                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO



STATE OF OHIO,                                 :      APPEAL NO. C-120058
                                                       TRIAL NO. B-1106611
          Plaintiff-Appellee,                  :

  vs.                                          :

ANTWAN DILLARD,                                :           O P I N I O N.

          Defendant-Appellant.                 :

                                               :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                           Remanded

Date of Judgment Entry on Appeal: September 5, 2012


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Christine Y. Jones, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                    OHIO FIRST DISTRICT COURT OF APPEALS


FISCHER, Judge.


       {¶1}   Defendant-appellant Antwan Dillard appeals the judgment of the

Hamilton County Court of Common Pleas finding him guilty, after a bench trial, of

two counts of felonious assault, accompanied by firearm specifications, and having a

weapon while under a disability. The trial court sentenced Dillard to 13 years’

imprisonment and also imposed court costs.

       {¶2}   Dillard’s convictions arose from a drive-by shooting incident that

occurred on Livingston Street in Cincinnati.      Two victims were involved in the

incident: a male victim who was grazed by a bullet and a female victim who was not

injured. The female victim identified Robert White as the shooter during a call to a

911 operator following the shooting, and she later identified Dillard as the driver of

the car during an interview with a police officer. The male victim was unable to

identify either the driver or the passenger who had fired the shots and was unable to

identify White or Dillard in a police photo array. No physical evidence was found at

the scene.

       {¶3}   At trial, the defense attorney attacked the credibility of the female

victim. The female victim admitted in her trial testimony that she had lied about her

name during the 911 call because she had a warrant out for her arrest. She also

admitted that she had an earlier criminal conviction stemming from an incident

where she had lied to police. Moreover, the female victim had served prison time for

assault after shooting into the home of Dillard and his mother, and in the days before

the drive-by shooting, the female victim’s sister had allegedly shot and killed a friend

of Dillard and White.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



                      Sufficiency and Weight of the Evidence

       {¶4}       In his first and second assignments of error, Dillard contends that his

convictions were not supported by sufficient evidence and were against the manifest

weight of the evidence. In a challenge to the sufficiency of the evidence, the question

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

any rational trier of fact could have found all the essential elements of the crime

beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus. In a challenge to the weight of the evidence,

we must review the entire record, weigh the evidence, consider the credibility of the

witnesses, and determine whether the trier of fact clearly lost its way and created a

manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997).

       {¶5}       Dillard’s main argument attacking his convictions goes to the

credibility of the female victim.       In evaluating witness testimony, credibility is

primarily for the trier of fact. State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971,

804 N.E.2d 433, ¶ 116; State v. Williams, 1st Dist. Nos. C-060631 and C-060668,

2007-Ohio-5577, ¶ 45.         Therefore, after viewing the evidence in the light most

favorable to the prosecution, we determine that a rational trier of fact could have

found all the essential elements of felonious assault and having a weapon while

under a disability beyond a reasonable doubt. Further, we cannot determine that the

trial court clearly lost its way and created a manifest miscarriage of justice in finding

Dillard guilty.

       {¶6}       We overrule Dillard’s first and second assignments of error.




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                   OHIO FIRST DISTRICT COURT OF APPEALS



                          Community-Service Notification

       {¶7}   In his third assignment of error, Dillard contends that the trial court

erred by imposing court costs on him without notifying him that he could be ordered

to perform community service if he fails to pay the costs. Under R.C. 2947.23(A)(1),

if a court imposes court costs on a defendant as part of the judgment, then the court

must notify the defendant of the following upon imposing a sentence:

              (a) If the defendant fails to pay that judgment or fails to

              timely make payments towards that judgment under a

              payment schedule approved by the court, the court may

              order the defendant to perform community service in an

              amount of not more than forty hours per month until

              the judgment is paid or until the court is satisfied that

              the defendant is in compliance with the approved

              payment schedule. (b) If the court orders the defendant

              to perform the community service, the defendant will

              receive credit upon the judgment at the specified hourly

              credit rate per hour of community service performed,

              and each hour of community service performed will

              reduce the judgment by that amount.

       {¶8}   The Ohio Supreme Court recently held that a trial court’s failure to

notify a defendant of the possibility of court-ordered community service in lieu of

paying costs, as required by R.C. 2947.23(A)(1), is ripe for review on direct appeal

from the underlying sentence. See State v. Smith, 131 Ohio St.3d 297, 2012-Ohio-

781, 964 N.E.2d 423.     Since the court’s decision in Smith, the Ninth Appellate

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                    OHIO FIRST DISTRICT COURT OF APPEALS



District has determined that if a trial court fails to comply with the community-

service notification under R.C. 2947.23(A)(1) when imposing court costs, the proper

remedy is to vacate the imposition of costs and remand the case for proper

notification as set forth in the statute. See State v. Debruce, 9th Dist. No. 25574,

2012-Ohio-454, ¶ 38; but see State v. Henderson, 2d Dist. No 24701, 2012-Ohio-

3283 (holding that the proper remedy for a trial court’s failure to notify a defendant

of the possibility of court-ordered community service in lieu of court costs is to

eliminate the possibility of court-ordered community service altogether).            In

reaching its conclusion, the Ninth District reasoned that the imposition of court costs

arises from the concept of implied contract, and thus removing a trial court’s

authority to order community service if a defendant fails to pay those costs would not

further the interests of justice. Debruce at ¶ 38. We adopt the reasoning of the

Ninth District and conclude that the proper remedy for a trial court’s failure to

comply with R.C. 2947.23(A)(1) when imposing costs is to vacate the imposition of

costs and remand the case for proper community-service notification.

       {¶9}    The trial court imposed court costs on Dillard without notifying him of

the possibility of community service in lieu of paying costs. Therefore, Dillard’s third

assignment of error is sustained to the extent that we vacate that portion of the trial

court’s judgment imposing court costs, and we remand the matter to the trial court

to properly notify Dillard as required under R.C. 2947.23(A)(1) in conjunction with

the imposition of costs.

       {¶10} The remainder of the judgment of the trial court is affirmed.

                                Affirmed in part, reversed in part, and cause remanded.

SUNDERMANN, P.J. and CUNNINGHAM, J., concur.

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                    OHIO FIRST DISTRICT COURT OF APPEALS




Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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