[Cite as State v. Bailey, 2012-Ohio-3955.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97754




                                       STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.



                                     RANDY F. BAILEY
                                                             DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-548179

        BEFORE:           Jones, J., Blackmon, A.J., and Boyle, J.

        RELEASED AND JOURNALIZED:                      August 30, 2012
ATTORNEY FOR APPELLANT

Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Carl Sullivan
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:

       {¶1} Defendant-appellant Randy Bailey appeals his conviction for improperly

discharging into a habitation.    We affirm.

       {¶2} In 2011, Bailey was charged with one count of improperly discharging at or

into habitation. The matter proceeded to a jury trial, at which the following pertinent

evidence was presented.

       {¶3} Joyce Trotter testified that she was dating Bailey and they lived on different

floors of the same apartment building. Bailey lived on the first floor and Trotter lived

on the second floor. One night they got into an argument over a bottle of liquor that

Trotter was holding for Bailey and his friend; Trotter ended up giving the bottle of

alcohol to Bailey. Later that evening, Trotter went to Bailey’s apartment and the couple

again began to argue.      According to Trotter, Bailey got a gun from underneath his

mattress, but quickly put it back at the urging of other people in the apartment. Trotter

then left, she said, to get cigarettes out of her apartment.

       {¶4} When Trotter returned to Bailey’s apartment a short time later, she sat down

to watch television. Suddenly, someone yelled that Bailey had a gun and told her to run.

 Trotter ran out of Bailey’s apartment and up the stairs towards her apartment; she saw

Bailey run after her with a gun in his hands.      She had just gotten inside her apartment

when she heard a gunshot.        The bullet hit her front door, which was made of steel; the

bullet put a dent in the door.   Trotter called 911.
       {¶5} Candy Hicks testified that she and her boyfriend, Eddie Saunders, were at

Bailey’s apartment the night of the shooting. She saw Trotter and Bailey arguing.      She

saw Bailey pull “something” out from underneath his mattress and “storm” out of the

apartment with a gun in his hand.        A moment later, Hicks heard three gunshots.

Saunders’s testimony was essentially the same as Hicks’s testimony in that he testified he

was with Hicks at Bailey’s apartment, witnessed Bailey and Trotter arguing, saw Bailey

leave the apartment with a gun, and heard three gunshots.

       {¶6} Trotter, Hicks, and Saunders testified that they, and Bailey, had been drinking

alcohol that evening.

       {¶7} Cuyahoga Metropolitan Housing Authority (“CMHA”) police officer Eric

Williams testified that both CMHA police and Cleveland Police responded to the

apartment building for a call of shots fired.   When Patrolman Williams arrived at the

apartment complex he could hear yelling and shouting.            He interviewed Trotter and

observed her to be very upset and intoxicated.      Trotter told Patrolman Williams that

Bailey had shot at her door.     The police arrested Bailey and noted that he too was

intoxicated.   The officers recovered a spent round from in front of Trotter’s door and

took photographs of the dent in the door.    The police searched Bailey’s apartment after

Bailey consented to a search but did not recover any weapons.

       {¶8} The jury convicted Bailey of the sole count in the indictment and the trial

court sentenced him to three years in prison. It is from this conviction that Bailey now

appeals, raising the following assignment of error, as quoted:
      I.   The trial court erred by entering a conviction for improperly discharging

      a firearm at or into a habitation, which was against the manifest weight of

      the evidence.

      {¶9} In reviewing a challenge to the manifest weight of the evidence, the Ohio

Supreme Court has held that

      [t]he question to be answered is whether there is substantial evidence upon
      which [the trier-of-fact] could reasonably conclude that all the elements
      have been proved beyond a reasonable doubt. In conducting this review,
      we must examine the entire record, weigh the evidence and all reasonable
      inferences, consider the credibility of the witnesses, and determine whether
      the [triers-of-fact] clearly lost [their] way and created such a manifest
      miscarriage of justice that the conviction must be reversed and a new trial
      ordered.

(Internal quotes and citations omitted.) State v. Leonard, 104 Ohio St.3d 54,

2004-Ohio-6235, 818 N.E.2d 229, ¶ 81.

      When a court of appeals reverses a judgment of a trial court on the basis
      that the verdict is against the weight of the evidence, the appellate court sits
      as a ‘thirteenth juror’ and disagrees with the factfinder’s resolution of the
      conflicting testimony.

State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541, citing Tibbs

v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). To determine

whether a case is an exceptional case where the evidence weighs heavily against

conviction, an appellate court must review the record, weigh the evidence and all

reasonable inferences, and consider the credibility of witnesses. Thompkins at id., citing

State v. Martin, 20 Ohio App.3d 172, 175,         485 N.E.2d 717 (1st Dist.1983).        An

appellate court should reverse the conviction and order a new trial only if it concludes
that the trier of fact clearly lost its way in resolving conflicts in evidence and created a

manifest miscarriage of justice. Thompkins at id.

       {¶10} Bailey argues that his conviction was against the weight of the evidence

because the state’s witnesses were unreliable, uncertain, self-contradicting, and

intoxicated on the night of the shooting. He further claims that the jury lost its way in

convicting him because the police failed to perform a gunshot residue test on him and

never recovered the gun.

       {¶11} It is well-settled that the weight of the evidence and resolution of issues of

credibility are matters primarily for the fact-finder to assess. State v. DeHass, 10 Ohio

St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. In reviewing this case

under the weight-of-the-evidence standard, we find the following approach taken by the

Third Appellate District particularly fitting:

       The word “primarily” could imply that in some instances the issue of

       credibility may become an issue for redetermination upon review.

       However, such instances would be quite rare. The demeanor of witnesses,

       the manner of their responses, and many other factors observable by a jury *

       * * simply are not available to an appellate court on review.    While there

       may exist isolated rare cases in which the testimony of a witness is so

       garbled and internally contradictory, or so opposed to established scientific

       fact, as to warrant a reviewing court to exclude it from consideration in

       determining an issue of manifest weight, such an instance is not here
         presented. There is some contradiction, there is some impeachment, but

         there is no exceptional situation presented. Here the situation was fully

         capable of resolution by a jury which had heard the testimony given and

         observed the witness giving it. We conclude that no exception is here

         involved and the general rule must prevail. The credibility of the witnesses

         was here a matter solely and properly for determination by the jury. It by its

         verdict assigned full credibility to the testimony presented by the witnesses

         for the state. Having done so this court assigns such credibility and having

         done so, and having reviewed carefully the transcript of evidence, finds that

         the verdict was not against the weight of the evidence.

State v. Bierbaum, 3d Dist. No. 13-88-18, 1990 Ohio App. LEXIS 1204,*4 - *5 (Mar. 14,

1990).

         {¶12} In this case, although the eyewitnesses admitted to being intoxicated and

there were some inconsistencies in their testimonies, we do not find that the

inconsistencies rise to the level wherein the evidence weighs heavily against conviction.

Hicks and Saunders both testified that Trotter and Bailey were arguing, Bailey got a gun

and ran after Trotter, and then they heard gunshots.     Trotter testified that she saw Bailey

run after her with a gun and as soon as she shut her apartment door, she heard a gunshot.

Patrolman Williams testified that the police observed a dent in Trotter’s apartment door

and recovered a spent bullet from the scene.

         {¶13} In light of the above, the sole assignment of error is overruled.
      {¶14} Judgment affirmed.

      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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.     Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




LARRY A. JONES, SR., JUDGE

PATRICIA ANN BLACKMON, A.J., and
MARY J. BOYLE, J., CONCUR
