[Cite as State v. Hester, 2019-Ohio-5341.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                 Plaintiff-Appellee,               :
                                                            No. 108207
                 v.                                :

LORENZO HESTER, JR.,                               :

                 Defendant-Appellant.              :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: December 26, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-18-626585-A


                                             Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Brad Meyer, Assistant Prosecuting
                 Attorney, for appellee.

                 Patrick S. Lavelle, for appellant.


EILEEN T. GALLAGHER, J.:

                   Defendant-appellant, Lorenzo Hester, Jr. (“Lorenzo”), appeals his

convictions and claims the following two errors:

        1. The jury determination in the lower court in regards to Counts 1, 2,
        3, 4, and 6, and all gun specifications was against the manifest weight
        of the evidence.
      2. There was no sufficient evidence presented to the trier of fact in the
      lower court proceeding to convict appellant of Counts 1, 2, 3, 4, 6, or
      any gun specifications.

                We find that Lorenzo’s convictions are supported by sufficient

evidence and are not against the manifest weight of the evidence. We, therefore,

affirm the trial court’s judgment.

                        I. Facts and Procedural History

                Lorenzo was charged with four counts of felonious assault, one count

of improperly handling firearms in a motor vehicle, and one count of discharging of

a firearm on or near a prohibited premises. All counts included one- and three-year

firearm specifications, and Counts 5 and 6, which alleged improper handling of

firearms in a motor vehicle and discharging a firearm on or near a prohibited

premises, included five-year drive-by shooting specifications. The state alleged that

Lorenzo fired several gunshots at Jaleesa Allums (“Jaleesa”) and her three children

in an effort to collect a drug debt owed by Jaleesa’s cousin, Clarence Cooper

(“Clarence”).

                Jaleesa testified at trial that an unidentified man known as “Birdman”

claimed that Clarence purchased $400 worth of crack cocaine from him but never

paid for it. (Tr. 595.) Janet Cooper (“Janet”), Clarence’s aunt, testified that Clarence

had recently been thrown out of a group home and had come to live with her shortly

before Birdman came to her house to collect the drug debt. Clarence is on disability,

and when he became a resident of Janet’s home, Janet became the payee of his social

security checks.
               On June 1, 2017, Birdman took Clarence to a bank on East 55th Street

in Cleveland to cash one of his social security checks. (Tr. 745, 801.) The bank teller

knew Janet and called her to let her know that someone was trying to cash a check

payable to her. (Tr. 745.) Janet told the teller that “if they cash the check they’re

going to jail.” (Tr. 745.) Birdman later came to Janet’s house on Phillips Avenue in

Cleveland near the intersection of Phillips Avenue and East 123rd Street, handed her

the check, and asked her to pay Clarence’s drug debt. (Tr. 747.) Janet told him “no,”

and he left. He subsequently returned to the house and again asked for the money.

Janet told him to leave her property. He returned a few more times to demand the

money and, later that evening, Lorenzo came to the house and threatened: “It’s a

shame * * * somebody is going to get killed over money being owed.” (Tr. 799.)

               Janet called the police and reported the threat.        Officers Benji

Gonzalez and Orlando Rivera of the Cleveland Police Department responded to

Janet’s house. Officer Gonzalez testified that while they were talking in Janet’s front

yard, two men showed up at the corner of East 123rd Street and Phillips Avenue.

Janet identified one of the men as Birdman, but did not know the identity of the

second man, who was wearing a gray hoodie. (Tr. 869.) According to Officer

Gonzalez, the unidentified man in the gray hoodie “extended his right arm out in

front of him as if he had gun and pointed it toward us.” (Tr. 869.) Janet and the

officers took cover, Officer Rivera ordered the man to drop the gun, and the two men

ran away. (Tr. 887.)
               The next day, June 2, 2017, Janet again called the police because

Lorenzo and Birdman were back demanding the money. (Tr. 809-810.) Officer

Gonzalez, who was still on duty from the night before, responded to the call. Janet

reported to him that Birdman and Lorenzo had returned, but they were gone by the

time Officer Gonzalez arrived. (Tr. 869-870.)

               On June 3, 2017, Janet, her son Brett Allums (“Brett”), and her

tenant, Walter Lucky, decided to leave the house to avoid the danger posed by

Lorenzo and Birdman. Janet was packing her things for an extended stay at her

daughter Jaleesa’s house. (Tr. 593, 601.) Jaleesa and her three children came to

Janet’s house to help her pack. Janet’s sister, Jesse Cooper, and her adult children,

Dashae Cooper (“Dashae”) and Devin Cooper (“Devin”), were also present. Devin

testified that when he arrived at Janet’s house, shortly before dark, he heard people

yelling threats from the convenience store at the corner of Phillips Avenue and East

123rd Street. Devin heard them say: “It’s going to go down, it’s almost time, going

to light that bitch up, and things like that.” (Tr. 587.) According to Jaleesa, Lorenzo

and Birdman warned that “at midnight my mother and my brother [were] going to

be dead.” (Tr. 599.)

               Sometime around 11:00 p.m., Janet and her family were ready to

leave the house, and Jaleesa and her three children were the first to go. Jaleesa

pulled out of Janet’s driveway, turned onto Ingomar Avenue, drove to Lakeview

Road, and circled back to East 123rd Street to check on her family. (Tr. 604.) She

stopped at a stop sign for three to four minutes and texted her mother, Janet, to find
out where she went, but received no response. (Tr. 605.) Meanwhile, a Burgundy

KIA Sorento came down East 123rd Street and stopped a few feet from Jaleesa’s car

and blocked her lane of travel. (Tr. 606.) Jaleesa explained:

      It continued to back up. And then I moved around it and got to the
      corner and that’s when I kind of, like, looked over because I heard
      gunshots too, and I kind of, like, — when I hit the corner, I saw him
      running and shooting.

(Tr. 608-609.) Jaleesa testified that Lorenzo ran after her car while shooting. (Tr.

666.) The KIA stopped briefly near Lorenzo before continuing to pursue her. (Tr.

667.) Jaleesa did not see whether Lorenzo got into the car, but additional gunshots

were fired from the car as it followed her. (Tr. 667-668.)

              Dashae testified that Jaleesa called her during the chase. According

to Dashae, Jaleesa was screaming “They’re trying to kill me, they’re shooting at my

car.” Dashae asked Jaleesa who was shooting, and Jaleesa replied: “Lorenzo.”

(Tr. 711.) Dashae testified that she could hear gunshots through the phone while

Jaleesa was talking. Dashae told Jaleesa to drive to the McDonald’s at the corner of

East 105th Street and St. Clair Avenue because it had surveillance cameras and the

parking lot was well-lit. (Tr. 713.) Jaleesa heeded her cousin’s advice and made it

safely to the McDonald’s. The KIA did not follow her to the McDonald’s.

              During the chase, Jaleesa also spoke briefly on the phone with Janet

and Brett, who were together in Janet’s car. Janet testified that she was the last to

leave her house on the night of June 3, 2017. She did not hear any gunshots when

she left the house, but she “heard the gunshots on the phone.” (Tr. 826, 829.)
Jaleesa told Brett that she was on Ingomar Avenue. Janet drove to that location, but

Jaleesa was gone by the time they got there. (Tr. 831.) However, Janet observed

Lorenzo running across the street with a long-nose revolver. (Tr. 831, 839.) Janet

slowed the car, and Brett started shooting at Lorenzo with Janet’s semiautomatic

handgun. (Tr. 841.) Janet then took the gun from Brett and fired shots at Lorenzo.

(Tr. 842-843.)

              Lorenzo disappeared in a dark alley leading to Ingomar Avenue. Janet

drove onto Ingomar looking for Lorenzo and fired two gunshots into the air to let

Lorenzo know that she knew he shot at her daughter and grandchildren. (Tr. 845.)

Thereafter, Janet and Brett received a call that the family was congregating at the

McDonald’s in East 105th Street and St. Clair Avenue. When they arrived at the

McDonald’s, Jaleesa and her six-, eight-, and nine-year-old children were crying.

(Tr. 634, 849.)

              Officer Rivera and Sergeant Michael Schwebs spoke with the family

at the McDonald’s. Sergeant Schwebs testified that he met Dashae before reaching

the McDonald’s because she was driving “frantically,” and he was going to pull her

over but she saw him and flagged him down. She told him that someone was chasing

and shooting at her cousin. Sergeant Schwebs followed Dashae to the McDonald’s

where he met Jaleesa, who was “frantic” and “short of breath.” (Tr. 913.) Sergeant

Schwebs testified that Jaleesa “definitely appeared to be scared” and her children

were crying. (Tr. 913.) The statements of Jaleesa and other members of the family
were recorded on Officer Rivera’s body camera, which was played for the jury.

(Tr. 883-884.)

              Janet did not tell police that she and Brett fired shots at Lorenzo, in

part, because Brett was under disability and was prohibited from possessing a

firearm. Nevertheless, Jaleesa is heard in the video telling police that “a dude” was

shooting at her. Later in the video she identifies “the dude” as Lorenzo. When asked

if Jaleesa was sure it was Lorenzo who shot at her, Officer Rivera responded: “There

was no doubt.” (Tr. 908.) Dashae showed police a photograph she had taken of

Lorenzo on Janet’s tree lawn earlier that day, and Jaleesa identified the person

depicted in the photograph as Lorenzo. (Tr. 621; state’s exhibit No. 11.)

              The jury found Lorenzo guilty of four counts of felonious assault and

the one- and three-year firearm specifications attendant to each of those counts. He

was acquitted of the improper handling of a firearm charge alleged in Count 5, but

found guilty of discharging a firearm at or near a prohibited premises as alleged in

Count 6. He was also acquitted of the accompanying five-year “drive-by shooting”

specification attendant to that count. The trial court sentenced Lorenzo to eight

years on each of the felonious assault convictions plus three years on attendant

firearm specifications for a total of 11 years on each count. The court also sentenced

him to three years on his discharging a firearm on or near a prohibited premises

conviction. The court ordered two of the 11-year prison terms on the felonious

assault convictions to be served consecutively and the remaining sentences to be
served concurrently for an aggregate 22-year prison term. Lorenzo now appeals

only his convictions.

                               II. Law and Analysis

               In the first assignment of error, Lorenzo argues his convictions,

including the gun specifications, are against the manifest weight of the evidence. In

the second assignment of error, he argues that neither his convictions nor the gun

specifications are supported by sufficient evidence. Although the terms “sufficiency”

and “weight” of the evidence are “quantitatively and qualitatively different,” we

address these issues together because they are closely related, while applying the

distinct standards of review. State v. Thompkins, 78 Ohio St.3d 380, 386, 678

N.E.2d 541 (1997).

               “[T]he test for sufficiency requires a determination of whether the

prosecution met its burden of production at trial.” State v. Bowden, 8th Dist.

Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13. “The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.

               In contrast to sufficiency, “[w]eight of the evidence [involves] ‘the

inclination of the greater amount of credible evidence.’”             (Emphasis sic.)

Thompkins at 387, quoting Black’s Law Dictionary 1433 (6th Ed.1990). While

“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, * * * weight of the evidence

addresses the evidence’s effect of inducing belief.” State v. Wilson, 113 Ohio St.3d

382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387. “In

other words, a reviewing court asks whose evidence is more persuasive — the state’s

or the defendant’s?” Id. The reviewing court must consider all the evidence in the

record, the reasonable inferences, and the credibility of the witnesses to determine

“‘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.’” Thompkins at 387, quoting State v. Martin, 20 Ohio

App.3d 172, 485 N.E.2d 717 (1st Dist.1983).

               In conducting such a review, the Ohio Supreme Court has stated that

the appellate court “sits as a ‘thirteenth juror’ and disagrees with the factfinder’s

resolution of conflicting testimony.” Id. at 546-547, quoting Tibbs v. Florida, 457

U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).            The Supreme Court’s

characterization of the appellate court as a “thirteenth juror” refers to the appellate

court’s “‘discretionary power to grant a new trial.’” Id. at 347, quoting Martin at 175.

As a “thirteenth juror,” the appellate court may disagree with the factfinder’s

resolution of the conflicting evidence and, in effect, create a deadlocked jury, which

requires a new trial.

               However, our status as a “thirteenth juror” is not equal to the other

twelve jurors, who are uniquely positioned to view the witnesses’ demeanor,

gestures, facial expressions, and voice inflections. These outward behaviors are not
evident in a written transcript. Demeanor is not what the witness says, but the

manner in which he or she says it. Demeanor evidence is invaluable in assessing a

witness’s credibility, yet it is totally lost in transmission to the court of appeals. It is

for this reason that “the weight to be given the evidence and the credibility of the

witnesses are primarily for the trier of facts.” State v. DeHass, 10 Ohio St.2d 230,

227 N.E.2d 212 (1967), paragraph one of the syllabus.

               ‘“Because the trier of fact sees and hears the witnesses and is

particularly competent to decide “whether, and to what extent, to credit the

testimony of particular witnesses;” we must afford substantial deference to its

determinations of credibility.’” Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-

2420, 929 N.E.2d 1047, ¶ 20, State v. Konya, 2d Dist. Montgomery No. 21434,

2006-Ohio-6312, quoting State v. Lawson, 2d Dist. Montgomery No. 16288, 1997

Ohio App. LEXIS 3709, 4 (Aug. 22, 1997).

               Although we have the discretionary power of a “thirteenth juror” to

grant a new trial, that power “‘should be exercised only in the exceptional case in

which the evidence weighs heavily against the conviction.’” Thompkins at 547,

quoting Martin at 175. “[A] finding that a conviction [was] supported by the

manifest weight of the evidence necessarily includes a finding of sufficiency.” State

v. Robinson, 8th Dist. Cuyahoga No. 96463, 2011-Ohio-6077.

               Lorenzo was convicted of four counts of felonious assault in violation

of R.C. 2903.11(A)(2), which required the state prove that he “knowingly cause[d]

or attempt[ed] to cause serious physical harm to another * * * by means of a deadly
weapon or dangerous ordnance.”         The indictment specifically alleged that he

attempted to cause serious physical harm to Jaleesa and her children with “a gun.”

                The jury further found Lorenzo guilty of the one- and three-year

firearm specifications, in violation of R.C. 2941.141(A) and 2941.145(A), attendant

to those counts. R.C. 2941.141(A) governs the one-year firearm specification and

requires the jury to find that “the offender had a firearm on or about the offender’s

person or under the offender’s control while committing the offense.”             R.C.

2941.145(A) governs the three-year firearm specification and requires the jury to

find that “the offender had a firearm on or about the offender’s person or under the

offender’s control while committing the offense and displayed the firearm,

brandished the firearm, indicated that the offender possessed the firearm, or used it

to facilitate the offense.”

                Finally, Lorenzo was convicted of discharging a weapon on or near a

prohibited premises in violation of R.C. 2923.162(A)(3), which states, in relevant

part, that “[n]o person shall * * * [d]ischarge a firearm upon or over a public road or

highway.”

                In order to maintain a conviction for felonious assault by shooting a

gun as alleged in the indictment and for discharging a weapon on or near a

prohibited premises, the state had to prove that Lorenzo used an operable firearm.1



       1 An inoperable weapon can still be considered a deadly weapon if it can be used
as a bludgeon. State v. Johnson, 8th Dist. Cuyahoga No. 90449, 2008-Ohio-4451, ¶ 14.
However, in this case, the state alleged that Lorenzo committed felonious assault by
shooting at the victims.
Discharging the firearm was an element of each of those offenses. The guilty

findings on the firearm specifications also required the state to prove that the

firearm was operable. State v. Patterson, 10th Dist. Franklin No. 15AP-117, 2016-

Ohio-7130, ¶ 49.

               Lorenzo argues there is no evidence, much less credible evidence,

that he fired a gun at the victims because there was no testimony that Jaleesa ever

saw a gun in Lorenzo’s possession. He contends his convictions are “dependent

upon the victim’s testimony that she heard what she believed to be gunshots.”

(Appellant’s brief at 6.) He also asserts there were no bullet holes in Jaleesa’s car

and that “it is just as likely that the Appellant fired a cap gun as it is that he fired

an actual firearm.” (Appellant’s brief at 6.)

               Despite Lorenzo’s argument to the contrary, Jaleesa testified that

she saw Lorenzo fire the gun at her. She stated, in relevant part: “I hear a gunshot,

and as I’m going up 123rd, I see Lorenzo shooting at my car right behind my car.”

(Tr. 606.) Jaleesa later stated: “I kind of, like, looked over, because I heard

gunshots too, and I kind of, like — when I hit the corner, I saw him running and

shooting.” (Tr. 609.) Therefore, there was direct evidence that Jaleesa saw

Lorenzo fire the gun at her car, which was occupied by herself and her three

children. Therefore, there was also direct evidence that the firearm was operable.

               Circumstantial evidence corroborates Jaleesa’s testimony. Dashae

told Sergeant Schwebs that someone was chasing and shooting at Jaleesa. When

he encountered Jaleesa at the McDonald’s a few minutes later, “she was very
frantic.” (Tr. 911.) Sergeant Schwebs testified that Jaleesa was “short of breath,”

and “definitely appeared scared.” (Tr. 913.) He also stated that Jaleesa’s children

were crying and appeared “shook up.” (Tr. 912.) These behaviors are consistent

with her reports that Lorenzo shot at her a short time earlier.

              Dashae and Janet also testified that they spoke with Jaleesa on the

phone while Lorenzo was chasing her and shooting at her. They both testified that

they heard gunshots through the phone. Dashae stated that Jaleesa was screaming:

“They’re trying to kill me, they’re shooting at my car.” (Tr. 711.) When Dashae asked

who was shooting, Jaleesa replied: “Lorenzo.” (Tr. 711.) And Janet testified that she

saw Lorenzo running with “a long-nosed revolver in his hand.” (Tr. 839.) Therefore,

at least two witnesses testified that they saw Lorenzo in possession of a gun, Jaleesa

testified that she saw Lorenzo shoot the gun at her and her children, and three

witnesses testified that they heard gunshots.

              Although the two shell casings found at the scene belonged to Janet’s

9 mm semiautomatic handgun and no other shell casings were found at the scene,

two witnesses experienced with firearms testified that revolvers do not expel shell

casings when they are fired. Therefore, the fact that police did not find any shell

casings expelled from Lorenzo’s gun is of no consequence. Witness testimony

provided competent, credible evidence to support the jury’s finding that Lorenzo

fired a gun across the roadway at Jaleesa’s car while she was driving. There was,

therefore, competent credible evidence to support Lorenzo’s four felonious assault
convictions with the attendant firearm specifications and his discharging a weapon

on or near a prohibited premises conviction.

               The first and second assignments of error are overruled.

               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 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 T. GALLAGHER, JUDGE

MICHELLE J. SHEEHAN, J., CONCURS IN JUDGMENT ONLY;
MARY EILEEN KILBANE, A.J., CONCURS IN JUDGMENT ONLY WITH
SEPARATE ATTACHED OPINION


MARY EILEEN KILBANE, A.J., CONCURRING IN JUDGMENT ONLY:

               I concur with the majority’s disposition of Hester’s assignments of

error. I agree that there is sufficient evidence to support his convictions and the

convictions are not against the manifest weight of the evidence. In light of this

court’s recent opinion in State v. Metz, 8th Dist. Cuyahoga Nos. 107212, 107246,
107259, 107261, 2019-Ohio-4054, I write separately because I disagree with the

manifest weight standard of review applied by the majority.

                In Metz, the concurring in part and dissenting in part opinion by

Judge Sean C. Gallagher noted that:

       The majority and concurring decisions to overrule the defendants’
       weight-of-the-evidence argument, based on the claim that the finder of
       fact “was in the best position to assess [the witnesses’] credibility,” is
       misplaced — the incorrect standard is being used. By deferring to the
       trier of fact’s credibility determinations, which weighed in the state’s
       favor in light of the verdict, the majority is essentially performing a
       sufficiency-of-the-evidence review in which all credibility
       determinations are found in favor of the state. It may well be time that
       the Ohio Supreme Court review the continued use of DeHass, or a
       similar sufficiency case, within the weight-of-the-evidence standard of
       review. Regardless, the majority and concurring decisions ignore the
       Thompkins standard and simply defer to the trial court’s weighing of
       the evidence and credibility determinations.

Id. at ¶ 129.

                In the instant case, the majority states that our status as a “thirteenth

juror” is not equal to that of the 12 jurors, “who are uniquely positioned to view the

witnesses’ demeanor, gestures, facial expressions, voice inflections.” While I agree

that these observations are not readily evident in the cold transcript and we must

afford deference to the trier of fact’s credibility determinations, appellate courts do

not defer to the trier of fact when reviewing the weight of the evidence. Rather, this

deference is applicable when reviewing the sufficiency of the evidence. 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. State v. Thompkins, 78 Ohio

St.3d 380, 546-547, 678 N.E.2d 541 (1997).
              The majority cites to State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d

212 (1967), and Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, 929

N.E.2d 1047, in overruling Hester’s manifest-weight-of-the-evidence review.

However, DeHass and Barberton specifically applied to the sufficiency-of-the-

evidence analysis. DeHass at 234 (after setting forth the deferential standard, the

court found that “[i]n conclusion, * * * there was evidence sufficient to support the

verdict)” and Barberton at ¶ 23 ([a] police officer’s unaided visual estimation of a

vehicle’s speed is sufficient evidence to support a conviction for speeding).

              For these reasons, I disagree with the manifest weight standard of

review applied by the majority. Metz at ¶ 121-129. Nonetheless, I agree that the

convictions should be affirmed. After reviewing the record, weighing the evidence

and all reasonable inferences, and considering the credibility of the witnesses, I

cannot conclude the “jury lost its way” and created a manifest miscarriage of justice

to warrant a reversal. I concur with the remainder of the majority’s opinion.
