[Cite as In re K.S., 2011-Ohio-4511.]




             Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                            JOURNAL ENTRY AND OPINION
                                     No. 96398




                                        IN RE: K.S.

                                        A Minor Child




                                        JUDGMENT:
                                         AFFIRMED


                                   Civil Appeal from the
                                    Juvenile Division of
                          Cuyahoga County Court of Common Pleas
                                  Case No. DL 10117412

               BEFORE:             Blackmon, P.J., Celebrezze, J., and Jones, J.
      RELEASED AND JOURNALIZED:        September 8, 2011
ATTORNEYS FOR APPELLANT

Timothy Young
Ohio State Public Defender

By: Sheryl A. Trzaska
Ohio State Assistant Public Defender
Ohio Public Defender’s Office
250 East Broad Street, Suite 1400
Columbus, Ohio 43215



ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Justin Seabury Gould
Assistant County Prosecutor
2210 Cedar Avenue, 3rd Floor
Cleveland, Ohio 44115




PATRICIA ANN BLACKMON, P.J.:
      {¶ 1} Appellant K.S.1 appeals the juvenile court’s judgment finding him

delinquent for committing one count of felonious assault with one-and

three-year firearm specifications. He assigns the following error for our review:

      “[K.S.’s] adjudications for felonious assault and the
      corresponding firearm specifications were against the
      manifest weight of the evidence, in violation of [K.S.’s]
      right to due process of law under the Fifth and Fourteenth
      Amendments to the United States Constitution, and
      Section 10, Article 1 of the Ohio Constitution.”

      {¶ 2} Having reviewed the facts and relevant law, we affirm the trial

court’s decision. The apposite facts follow.

                                         Facts

      {¶ 3} On September 16, 2010, a crowd of teenagers were fighting in front

of the home of Edna Hamilton (“Edna”). Edna’s adult son, Wayne Hamilton

(“Wayne”), attempted to break up the fight and disperse the crowd. 14-year

old K.S. was part of the crowd as was his brother C.S. C.S. was pulling on

Wayne’s niece, so Wayne pulled C.S. off of her. Wayne claims he then fell on

top of C.S., slamming him to the ground.

      {¶ 4} While Wayne was on the ground, another teenager hit him on the

back of the head with what felt like a pistol. Wayne got up and asked “who

the F hit me?” He was bleeding badly and went inside his mother’s home.

      1
        We refer to the non-adult parties in this case by their initials pursuant to this
court’s policy of not revealing the identity of juvenile defendants as well as other
non-adult parties.
He took off his T-shirt and held it to his head and returned outside to tell the

crowd to go home. He observed C.S. and K.S. talking and heard C.S. say

something about his earring. Then K.S. approached Wayne and said, “I don’t

know you big dude.” Wayne told K.S. to go home. He then felt something hit

him in the face below his right eye. After he was hit, he saw K.S. shoot his

gun three or four times in the air. The hit to his eye fractured his orbital

bone, requiring surgery.

      {¶ 5} Wayne’s mother, Edna, also testified that Wayne fell on top of C.S.

She observed another teenager hit her son in the back of the head. She could

not see what was used. She stated that about ten minutes later, she observed

K.S. walking from the direction of his house. He shot a gun in the air twice

and asked, “Who wants some of me?” She then observed C.S. and K.S. talking

and heard C.S. state, “Who was that big nigger that slammed me on the

ground? He slammed me for no reason.” She also heard C.S. complain that

one of his earrings was broken.

      {¶ 6} K.S. then approached Wayne and Edna heard him say, “Did you

jump my brother?” Wayne tried to explain that it was an accident. Edna

said K.S. appeared to walk away, but he then turned and said, “F you” and hit

her son just below his right eye with a black gun and ran from the scene.

      {¶ 7} Officer Thelemon Powell responded to the radio broadcast that a

male was assaulted. When he got to the scene, there was a large crowd of
people, and EMS was attending to Wayne. Wayne told him he was trying to

break up the fight and was struck with a pistol. He was not able to provide

him with the name of his assailant but gave the officer a description. Other

people provided the officer with the assailant’s name and pointed to the house

where he lived. The officer proceeded to the home, but no one responded.

The officer retrieved three to five shell casings in the area around the home.

      {¶ 8} In K.S.’s defense, P.P. testified that she, her mother, and K.S. were

all standing on the curb watching the fight. She did not see Wayne get hit

and did not see who shot the gun. When the shots were fired, she and her

mother ran away from the scene. K.S. stayed behind. P.P.’s mother advised

him to stay away from the fight.

      {¶ 9} K.S.’s mother testified that she saw Wayne grab C.S. and slam him

to the ground.    She did not see Wayne get assaulted.         She stated that,

although the fight started in front of Edna’s home, the fight moved a few

houses down as it progressed. When she heard the shots fired, K.S. was not

with her. She stated that K.S. was arrested the next day at another fight.

      {¶ 10} The trial court found K.S. to be delinquent and committed K.S. to

the Ohio Department of Youth Services for one year for the felonious assault

offense and one year for the firearm specifications, to be served consecutively,

and not to exceed his twenty-first birthday.

                     Manifest Weight of the Evidence
      {¶ 11} In his sole assigned error, K.S. argues his conviction was against

the manifest weight of the evidence.

      {¶ 12} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865

N.E.2d 1264, the Ohio Supreme Court addressed the standard of review for a

criminal manifest weight challenge, as follows:

      “The criminal manifest-weight-of-the-evidence standard
      was explained in State v. Thompkins (1997), 78 Ohio St.3d
      380, 678 N.E.2d 541. In Thompkins, the court distinguished
      between sufficiency of the evidence and manifest weight
      of the evidence, finding that these concepts differ both
      qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541.
      The court held that sufficiency of the evidence is a test of
      adequacy as to whether the evidence is legally sufficient to
      support a verdict as a matter of law, but weight of the
      evidence addresses the evidence’s effect of inducing belief.
      Id. at 386–387, 678 N.E.2d 541. In other words, a reviewing
      court asks whose evidence is more persuasive—the state’s
      or the defendant’s? We went on to hold that although there
      may be sufficient evidence to support a judgment, it could
      nevertheless be against the manifest weight of the
      evidence. Id. at 387, 678 N.E.2d 541. ‘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.’ Id. at 387, 678 N.E.2d 541, citing Tibbs v. Florida
      (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652.”

      {¶ 13} An appellate court may not merely substitute its view for that of

the jury, but must find that “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.” State v. Thompkins
(1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541. Accordingly, reversal on

manifest weight grounds is reserved for “the exceptional case in which the

evidence weighs heavily against the conviction.” Id.

      {¶ 14} In the instant case, Edna Hamilton was the only person to testify

that she saw K.S. hit Wayne with the gun.    K.S. argues her testimony is not

credible because it conflicts with Wayne’s and the defense witnesses’

testimony. We conclude the trial court did not lose its way in resolving the

alleged conflicting evidence.

      {¶ 15} Although Wayne’s and Edna’s testimony differed regarding what

K.S. said to Wayne prior to hitting him, the substance of their testimony was

the same. That is, K.S. confronted Wayne for slamming his brother to the

ground. Both Wayne and Edna also testified that C.S. complained to K.S.

about his earring being broken. Wayne did not hear K.S. say “F you” prior to

K.S. hitting him with the gun; however, this is not surprising since Wayne’s

attention was elsewhere as he did not see K.S. hit him. Moreover, Edna

stated that it appeared that K.S. was going to walk away; therefore, it would

be reasonable for Wayne to have focused elsewhere believing the confrontation

was over.

      {¶ 16} While Wayne’s and Edna’s testimony regarding when the

gunshots were fired also differed, both agreed that K.S. was not aiming at

anyone when he fired the shots.     Wayne testified that K.S. fired the gun
several times in the air after he was hit, and Edna testified that K.S. fired the

gun before hitting Wayne.       The fact that Wayne’s recollection of the timing

of the shooting differed from Edna’s is not critical to Edna’s credibility,

especially because Wayne was suffering from a head injury at the time.

      {¶ 17} Moreover, the officer’s finding the shell casings near K.S.’s home

supports Edna’s testimony that K.S. shot his gun in the air several times while

walking from the direction of his home.       K.S.’s mother also testified that

although the fight started in front of Edna’s house, it progressed down the

street, which would correlate with the shells being found further from Edna’s

house.

      {¶ 18} K.S. also   argues Edna’s and Wayne’s testimony is suspect given

the fact that his family had been fighting with their family for months;

however, there is nothing in the evidence to support this allegation. K.S.’s

mother testified that the fighting had been going on all summer, but she did

not clarify who was fighting.

      {¶ 19} Finally, none of K.S.’s witnesses testified to observing the attack

on Wayne. Also, although they testified that K.S. was with them watching

the fight, once the shots were fired, no one could testify to where K.S. went.

P.P. testified that she and her mother fled after the shots, but that K.S. stayed

behind.
      {¶ 20} Based on the evidence presented, we conclude the trial court did

not lose its way in resolving the conflicting evidence and concluding that K.S.

was delinquent. A defendant is not entitled to a reversal on manifest weight

grounds merely because inconsistent evidence was presented at trial. A jury,

as finder of fact, may believe all, part, or none of a witness’s testimony. State

v. Caldwell (1992), 79 Ohio App.3d 667, 607 N.E.2d 1096; State v. Hairston (1989),

63 Ohio App.3d 58, 577 N.E.2d 1144; State v. Antill (1964), 176 Ohio St. 61, 67, 197 N.E.2d

548. The rationale is that the trier of fact is in the best position to take into

account inconsistencies, along with the witnesses’ manner and demeanor, and

determine whether the witnesses’ testimonies are credible. See Seasons Coal

Co. v. Cleveland (1994), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273; State v. DeHass (1967), 10

Ohio St.2d 230, 231, 227 N.E.2d 212. Thus, the trial court could choose to believe

Wayne’s, Edna’s, and the defense witnesses’ testimony in whole or in part in

arriving at its verdict.

      {¶ 21} The trial court obviously believed Edna’s version of events because

after the defense completed closing arguments, the trial court stated that,

although defense counsel argued no one positively identified K.S., Edna

testified that she saw K.S. hit Wayne. Accordingly, K.S.’s sole assigned error

is overruled.

      {¶ 22} 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, juvenile division, to carry this judgment into execution.

The finding of delinquency having been affirmed, any bail or stay of execution

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.




PATRICIA ANN BLACKMON, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, J., CONCUR
