[Cite as State v. Washington, 2011-Ohio-3689.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA




                           JOURNAL ENTRY AND OPINION
                                   No. 95929



                                    STATE OF OHIO
                                                 PLAINTIFF-APPELLEE

                                                 vs.


                                 BENNIE WASHINGTON

                                                 DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED



                                Criminal Appeal from the
                           Cuyahoga County Common Pleas Court
                                   Case No. CR-539398
                                       2

      BEFORE:      E. Gallagher, J., Blackmon, P.J., and Rocco, J.

      RELEASED AND JOURNALIZED: July 28, 2011

ATTORNEY FOR APPELLANT

William L. Summers
William L. Summers & Associates Co., L.P.A.
Landerbrook Corporate Center II
5910 Landerbrook Dr., Suite 200
Cleveland, Ohio 44124

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Oscar E. Albores
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




EILEEN A. GALLAGHER, J.:

      {¶ 1} Bennie Washington appeals from conviction following a bench

trial. Washington argues his two convictions for felonious assault with one-

and three-year firearm specifications are against the manifest weight of the

evidence. For the following reasons, we affirm the decision of the trial court.

      {¶ 2} On July 13, 2010, the Cuyahoga County grand jury indicted

Washington on two counts of felonious assault with one- and three-year
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firearm specifications. Washington elected to try his case to the court and on

September 27, 2010, the trial court conducted the trial. The state of Ohio

presented the testimony of the victim, Francina Williams, Cleveland EMS

employee, Danielle Forkapa, Cleveland Police Officer, Michael Bechtold, and

Cleveland Detective, Paul Jones. Washington presented the testimony of his

then girlfriend, Chermetria Rivers.

      {¶ 3} The trial lasted one day and, on September 28, 2010, the trial

court found Washington guilty as charged in the indictment.        The court

merged both charges of felonious assault as well as the firearm specifications

for purposes of sentencing. The court then sentenced Washington to three

years on the firearm specifications to run prior to, and consecutive with, a

four-year sentence on the merged charges of felonious assault for a total

prison term of seven years.

      {¶ 4} During trial, Francina Williams testified that on the evening of

June 11, 2010, Washington shot her in the back. Williams stated that she is

a drug addict and that she knew Washington because she bought cocaine

from him on multiple occasions. Williams testified that on the night of June

11, 2010, she was walking in the area of East 55th Street. Williams testified

that she observed Washington on a porch of a nearby house.           Williams

acknowledged Washington and then cut through a yard.          As she walked,
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Williams heard something that caused her to turn around and when she

turned, she observed Washington behind her.           Williams testified that

Washington claimed that she owed him $40 dollars. Williams stated that

she denied owing Washington the money and walked away. Williams then

heard Washington say, “I got something for you bitches, I’m sick and tired of

you.” Williams stated that she turned around and saw Washington pointing

something silver at her that seemed to be glowing and that Washington

attempted to cover the object with his other hand. Williams testified that

she became frightened and ran from the area. However, as she fled, she

heard a “pow” and felt her back start to burn. Williams then realized that

Washington had shot her and she ran toward her apartment building.

Williams testified that she asked her building’s security officer to contact the

police and an ambulance.

      {¶ 5} EMS worker Danielle Forkapa received a call to respond to the

scene for a female that had been shot. Ms. Forkapa testified that as she

treated Williams, Williams was coherent and able to identify her shooter.

Ms. Forkapa also confirmed that Williams’s wound was from a gunshot. Ms.

Forkapa testified that she transported Williams to MetroHealth Hospital for

further care.

      {¶ 6} Cleveland Police Officer Michael Bechtold and Detective Paul
                                      5

Jones also responded to the scene in connection with the shooting.            Both

officers testified that Williams was coherent and that she was able to identify

her assailant.   Detective Jones further testified that after learning of

Williams’s identification of Washington as the shooter, he attempted to

contact Washington but was unsuccessful.

      {¶ 7} In response, Washington elicited the testimony of his then

girlfriend, Chermetria Rivers.      Ms. Rivers testified that she picked up

Washington from the Euclid City jail and transported him straight to her

home in Streetsboro. Ms. Rivers stated that she remained with Washington

the entire night and that he never left the apartment.

      {¶ 8} Washington    appeals    his    conviction,   raising   the   following

assignment of error:

      {¶ 9} “Appellant’s convictions are against the manifest weight of the

evidence.”

      {¶ 10} In evaluating a challenge based on manifest weight of the

evidence, a court sits as the thirteenth juror, and intrudes its judgment into

proceedings that it finds to be fatally flawed through misrepresentation or

misapplication of the evidence by a jury that has “lost its way.” State v.

Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541. As the Ohio

Supreme Court declared:
                                     6

     “Weight of the evidence concerns ‘the inclination of the greater amount
     of credible evidence, offered in a trial, to support one side of the issue
     rather than the other. It indicates clearly to the jury that the party
     having the burden of proof will be entitled to their verdict, if, on
     weighing the evidence in their minds, they shall find the greater
     amount of credible evidence sustains the issue which is to be
     established before them. Weight is not a question of mathematics, but
     depends on its effect in inducing belief.’

     “* * * The court, reviewing the entire record, weighs the evidence and
     all 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.” Id. at 387, 547. (Internal citations omitted.)

     {¶ 11} This court is mindful that weight of the evidence and the

credibility of witnesses are primarily for the trier of fact and a reviewing

court must not reverse a verdict where the trier of fact could reasonably

conclude from substantial evidence that the state has proven the offense

beyond a reasonable doubt. State v. DeHass (1967), 10 Ohio St.2d 230, 227

N.E.2d 212, at paragraphs one and two of the syllabus.        The goal of the

reviewing court is to determine whether the new trial is mandated.           A

reviewing court should only grant a new trial in the “exceptional case in

which the evidence weighs heavily against a conviction.” State v. Lindsey, 87

Ohio St.3d 479, 2000-Ohio-465, 721 N.E.2d 995. (Internal citation omitted.)

     {¶ 12} In making this argument, Washington fails to state in any way,
                                      7

how his convictions are against the manifest weight of the evidence.

Nonetheless, in reviewing the entire record, we cannot say that the trial court

lost its way in convicting Washington of two counts of felonious assault with

one- and three-year firearm specifications. Williams testified that she knew

Washington as she used to purchase drugs from him. Williams testified that

she observed Washington raise a silver object towards her and, when she

turned and ran, she heard a “pow” and her back started burning. Williams

stated that there were no other people around that evening. EMS confirmed

that Williams had been shot and Williams identified Washington as the

shooter to EMS and police at the scene. Moreover, Williams never wavered

in her identification of Washington as the shooter.

      {¶ 13} Although Washington failed to make any such argument, he

might have claimed that his version of events should have been believed.

While Washington did present the testimony of his then girlfriend who stated

that he was in Streetsboro the entire evening of June 11, 2010, the trier of

fact is in the best position to weigh the evidence and the credibility of

witnesses.   As the reviewing court, we find that the trier of fact could

reasonably conclude from the substantial evidence presented by the state,

that the state has proven the offenses beyond a reasonable doubt.

Accordingly, we cannot find that the trier of fact lost its way and created such
                                               8

a manifest miscarriage of justice that the convictions must be reversed and a

new trial ordered.

       {¶ 14} Based on the foregoing, Washington’s sole assignment of error is

overruled.

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

       It is ordered that appellee recover of 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 lower 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.




EILEEN A. GALLAGHER, JUDGE

PATRICIA A. BLACKMON, P.J., and
KENNETH A. ROCCO, J., CONCUR
