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Date: 06-16-2019
Case Style:
STATE OF OHIO v. CHRISTIAN WASHINGTON
Case Number: 107286
Judge: FRANK D. CELEBREZZE, JR.
Court: COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
Plaintiff's Attorney: Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Gregory Ochocki and Callista Plemel, Assistant Prosecuting Attorneys
Defendant's Attorney: Thomas A. Rein
Description:
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The instant appeal arose from eight separate incidents that occurred
between appellant and Alicia Flowers (hereinafter “victim”) between December
2016 and September 2017. Appellant and the victim met on July 5, 2016, and
became intimate with one another approximately one week later. A month or so
after meeting, their relationship “went bad.” (Tr. 27.) Also, in late-August 2016, the
victim learned that she was pregnant with appellant’s child. The child was born in
November 2016.
The tumultuous relationship between appellant and the victim is well
documented. Between December 2016 and September 2017, the victim made
approximately 20 calls to the Cleveland Metropolitan Housing Authority (“CMHA”)
Police Department involving appellant. (Tr. 29-30.) The specific details about the
nature of these reports and the eight incidents for which appellant was charged will
be discussed in further detail below.
In Cuyahoga C.P. No. CR-17-621403-A, the Cuyahoga County Grand
Jury returned an 27-count indictment on September 29, 2017, charging appellant
with (1) attempted murder, (2) aggravated burglary, (3) kidnapping, (4) domestic
violence with a furthermore specification alleging that appellant previously pled
guilty to or was convicted of three domestic violence offenses (June 2007 in Summit
County; October 2008 in Summit County; and October 2008 in Summit County),
(5) endangering children, (6) menacing by stalking with a furthermore specification
alleging that appellant trespassed on the land or premises where the victim lives,
works, or attends school, (7) menacing by stalking with a furthermore specification
alleging that appellant made a threat of physical harm to or against the victim, (8)
menacing by stalking with a furthermore specification alleging that appellant has a
history of violence toward the victim or any other person or a history of other violent
acts toward the victim or any other person, (9) burglary, (10) theft, and (11) robbery,
(12) theft, (13) theft, (14) domestic violence with a furthermore specification alleging
that appellant pled guilty to or was convicted of three previous domestic violence
offenses, (15) endangering children, (16) theft, (17) burglary, (18) theft, (19)
aggravated robbery with a one- and three-year firearm specification, (20) theft, (21)
theft, (22) burglary, (23) criminal damaging or endangering, (24) aggravated
burglary, (25) domestic violence with a furthermore specification alleging that
appellant pled guilty to or was convicted of three previous domestic violence
offenses, (26) kidnapping, and (27) disrupting public services. Appellant was
arraigned on October 4, 2017. He pled not guilty to the indictment.
Appellant waived his right to a jury trial and elected to try the case to
the bench. A bench trial commenced on March 19, 2018. The victim testified about
the ongoing discord between her and appellant and the eight incidents for which
appellant was charged in the indictment. The victim’s testimony will be addressed
in chronological order.
The victim testified, in general, that during several of the incidents,
appellant would take her cell phone. Appellant would occasionally hit the victim,
but he did not do so every time. The victim explained that appellant had a key to her
apartment that he would occasionally use to gain entry. Other times, appellant
would break into her apartment, either by kicking in the front door or entering
through an upstairs window.
A. December 1, 2016
Counts 9 and 10 of the indictment pertained to this incident. The victim
testified that appellant came into her house, kicked and knocked at the door, came
inside, and took her cell phone. She did not invite him inside on this occasion, nor
did he have her permission to be there.
B. December 9, 2016
Counts 11, 12, and 13 pertained to this incident, which occurred in a
courtyard outside of the victim’s unit. The victim testified that appellant grabbed
her, took her wallet, and stole her food-stamp card. According to the victim,
appellant had a gun at the time this incident occurred.
C. April 16 and 17, 2017
Counts 14, 15, and 16 of the indictment pertained to an incident that
occurred on April 16, 2017. Counts 17 and 18 pertained to an incident that occurred
on April 17, 2017.
The victim testified that on April 16, 2017, she was at a friend’s house
when she got into an argument with appellant. She explained that during the
argument, appellant “spazzed out” and pushed her while she was holding their son,
who was less than one-month old. The victim’s friend was eventually able to kick
appellant out of the house. The victim spent the night at her friend’s house.
The victim testified that she received a text message from appellant the
following day, April 17, 2017, that contained “a picture of [her] house being empty.”
(Tr. 37.) The victim ran home with her friend and discovered appellant had taken
several of her belongings. Specifically, appellant stole beds, tables, “end tables, the
carpet, the TVs. [Her daughter’s] TV, food, dishes, mop, broom, everything but the
couch and my mirror and my washing machine and drier.” (Tr. 37.) After
discovering that appellant stole her belongings, the victim called the police and filed
a report.
D. June 9, 2017
Counts 19, 20, and 21 of the indictment pertained to this incident. The
victim testified that appellant was in possession of a gun and he “took something”
from her. (Tr. 45.) The victim could not recall whether appellant took her cell phone
or her food-stamp card, but she confirmed that appellant took something from her
during this incident. The victim stated that appellant had a gun and pointed it at
her. However, she subsequently explained that appellant “basically, like, showed
[the gun] to me. * * * He showed it and let me know he had a gun, understanding
that he had a gun and he’s crazy.” (Tr. 45.) The victim described the gun as a black
.40 caliber Glock.
E. August 17, 2017
Counts 22 and 23 of the indictment pertained to this incident. The
victim testified that appellant broke into her apartment and flipped the victim’s
couch upside down.
F. August 21, 2017
Counts 24-27 of the indictment pertained to this incident. The victim
testified that appellant broke into her apartment by moving an air conditioning unit
from an upstairs window. After entering the apartment, appellant “smashed
everything” inside. Specifically, appellant “smashed” a television, Roku, and Fire
Stick that belonged to her daughter.
The victim further testified that appellant came to her apartment and
would not let her leave or take her daughter to school. Appellant “smashed” her cell
phone. Regarding her assertion that appellant would not let her leave the
apartment, the victim explained: “[appellant] was intimidating. [‘B***h], if you
leave, I am going to [f**k] you up.[’] He was threatening me. He was throwing stuff.
He was acting real crazy.” (Tr. 52.) At some point, appellant permitted the victim
to take her daughter to the bus stop and the victim was able to contact the police.
CMHA police assured the victim that appellant was going to jail because he
purportedly came into her apartment despite being on CMHA’s “banned list.”
G. September 2, 2017
Counts 1-5 of the indictment pertained to this incident. The victim
testified that she was awoken by appellant who broke into her apartment and began
choking her. She explained, “[appellant] tried to kill me. He choked me. He used
both hands. I woke up and I couldn’t breathe, it was crazy.” (Tr. 55.) The victim
testified that appellant “kicked [her] real hard” as he was leaving her apartment, he
“flipped out,” and proceeded to threaten the victim’s neighbor and kick the
neighbor’s car as he was leaving. (Tr. 54-55.)
H. December 1, 2016 to September 2, 2017
Counts 6, 7, and 8 of the indictment pertained to this date range. The
menacing by stalking offenses charged in these counts contained furthermore
specifications alleging that (1) appellant trespassed on the land or premises where
the victim lives, works, or attends school (Count 6); (2) appellant has a history of
violence toward the victim or any other person or a history of other violent acts
toward the victim or any other person (Count 7); and (3) appellant has a history of
violence toward the victim or any other person or a history of other violent acts
toward the victim or any other person (Count 8).
At the close of the state’s case, defense counsel moved for a Crim.R. 29
judgment of acquittal. The trial court granted the Crim.R. 29 motion as to Counts 1,
20-23, 25, and the firearm specifications underlying Count 19. The trial court denied
the Crim.R. 29 motion as to Counts 2-11, 13-17, 24, 26, and 27. Finally, regarding
Counts 12 and 18, the trial court modified the fifth-degree felony theft offenses
charged in the indictment to first-degree misdemeanors.
After the trial court ruled on defense counsel’s Crim.R. 29 motion, the
defense rested without calling any witnesses, and renewed the Crim.R. 29 motion.
The trial court denied the renewed motion.
The trial court returned its verdict on April 16, 2018. The trial court
found appellant guilty on Counts 2, 3, 4, 5, 6, 7, 8, 13, 14, 15, 24, 26, and 27. The trial
court found appellant not guilty on Counts 9, 10, 11, 12, 16, 17, 18, and 19. The trial
court ordered a presentence investigation report and set the matter for sentencing.
The trial court held a sentencing hearing on May 18, 2018. The trial
court sentenced appellant to an aggregate prison term of four years.
On June 9, 2018, appellant filed the instant appeal challenging the
trial court’s judgment. He assigns two errors for review:
I. The trial court erred when it denied appellant’s motion or acquittal, pursuant to Crim.R. 29(A), on the charges, and thereafter convicting appellant of those charges as the conviction was not supported by sufficient evidence.
II. Appellant’s conviction was against the manifest weight of the evidence.
II. Law and Analysis
In his two assignments of error, appellant argues that his convictions
for aggravated burglary, kidnapping, domestic violence, endangering children,
menacing by stalking, and disrupting public services were not supported by
sufficient evidence and against the manifest weight of the evidence.
A. Sufficiency
A careful review of appellant’s assignments of error and the
arguments he raises therein reflects that appellant’s sufficiency and manifest weight
challenges are based on the same arguments. Specifically, appellant challenges the
victim’s credibility and the credibility of her testimony. This argument pertains to
the manifest weight of the evidence, rather than the sufficiency of the evidence. See
State v. Williams, 8th Dist. Cuyahoga No. 98528, 2013-Ohio-1181, ¶ 27 (this court
does not consider the credibility of the witnesses when reviewing a challenge to the
sufficiency of the evidence); State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio
2126, 767 N.E.2d 216, ¶ 79.
A Crim.R. 29 motion challenges the sufficiency of the evidence. The 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, ¶ 12. An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001). “‘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. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶ 12, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
State v. Keller, 8th Dist. Cuyahoga No. 106196, 2018-Ohio-4107, ¶ 19.
In this appeal, appellant does not specifically present an argument as
to why there was insufficient evidence to support his convictions. Appellant raises
one argument that can arguably be construed as a challenge to the sufficiency of the
evidence and whether the state proved the essential elements of the offenses for
which he was convicted beyond a reasonable doubt. Specifically, appellant
summarily concludes, without any analysis of the elements or the evidence other
than the victim’s testimony, that “[t]here is insufficient evidence to sustain a
conviction against [a]ppellant given the facts of this case.” Appellant’s brief at 14.
A review of appellant’s arguments reflects that he is challenging his
convictions on manifest weight grounds.
“A claim that a conviction is against the manifest weight of the evidence is qualitatively different from a claim that a conviction is not supported by sufficient evidence.” State v. Sparent, 8th Dist. Cuyahoga No. 96710, 2012-Ohio-586, citing State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), paragraph two of the syllabus. The failure to present a separate argument on each claim of an appeal is a violation of App.R. 16(A)(7); therefore, we disregard this assigned error so far as it concerns the sufficiency of the evidence. State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 2; Sparent at ¶ 11. State v. Brown, 8th Dist. [Cuyahoga] No. 87932, 2007-Ohio-527, ¶ 13.
Cleveland v. Hall, 8th Dist. Cuyahoga No. 101820, 2015-Ohio-2698, ¶ 14.
Based on the foregoing analysis, we disregard and overrule appellant’s
first assignment of error to the extent that it relates to the sufficiency of the evidence.
Hall at id. We will, however, address the issues and arguments appellant raises in
his first assignment of error that pertain to the manifest weight of the evidence.
B. Manifest Weight
In his second assignment of error, appellant argues that his
convictions are against the manifest weight of the evidence.
In contrast to a sufficiency argument, a manifest weight challenge
questions whether the state met its burden of persuasion. Bowden, 8th Dist.
Cuyahoga No. 92266, 2009-Ohio-3598, at ¶ 12. A reviewing court “‘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.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d
541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983). A conviction should be reversed as against the manifest weight of the
evidence only in the most “exceptional case in which the evidence weighs heavily
against the conviction.” Id.
Although we review credibility when considering the manifest weight
of the evidence, we are cognizant that determinations regarding the credibility of
witnesses and the weight of the testimony are primarily for the trier of fact. State v.
Bradley, 8th Dist. Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing State v.
DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The trier of fact is best able “to
view the witnesses and observe their demeanor, gestures, and voice inflections, and
use these observations in weighing the credibility of the proffered testimony.” State
v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. The jury
may take note of any inconsistencies and resolve them accordingly, “believ[ing] all,
part, or none of a witness’s testimony.” State v. Raver, 10th Dist. Franklin No.
02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197
N.E.2d 548 (1964).
In the instant matter, in support of his manifest weight challenge,
appellant argues that neither the victim nor her trial testimony were credible.
Specifically, appellant contends that (1) the victim admitted to trying to “set up”
appellant and get him arrested, (2) the victim admitted to continuing to contact
appellant via text message, (3) the victim is a convicted felon and had previously
been convicted of making up a false alarm/allegation that her child had been
abducted/kidnapped, (4) the victim swore in open court and, despite the fact that
the profanities had been transcribed by the court reporter, denied doing so, (5) the
victim refused to cooperate with police on several occasions, (6) CMHA officers
testified that the victim is argumentative and uncooperative, and that it was typical
to be dispatched to her house, and (7) the victim alleged that appellant broke in and
stole her phone, and held her against her will, but when the officers arrived at her
house, the victim was in possession of the phone. (Tr. 132.)
After reviewing the record, for the reasons set forth below, we cannot
conclude that the trial court, as the trier of fact, clearly lost its way and created such
a manifest miscarriage of justice that appellant’s convictions must be reversed. Nor
do we find that this is an “‘exceptional case in which the evidence weighs heavily
against the conviction[s].’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,
quoting Martin, 20 Ohio App.3d 172, 485 N.E.2d 717.
First, appellant argues that the victim admitted to trying to “set up”
appellant and get him arrested, and that she continued to send text messages to
appellant asking to see him.
The victim did, in fact, acknowledge that she wanted — even planned
— to get appellant arrested so she could return home and no longer have to move
around with her children. Following the September 2, 2017 incident during which
appellant choked and “tried to kill” the victim, CMHA police decided to move the
victim to a safe location until they were able to apprehend appellant. The victim was
moved to a hotel in North Olmsted, Ohio.
The victim also acknowledged on cross-examination that she
continued to text appellant after the incidents for which appellant was indicted. She
explained that she wanted him to come to the hotel in North Olmsted so he would
get arrested and she could return to her apartment. (Tr. 69.)
Defense counsel confronted the victim with various text messages that
were exchanged between appellant and the following phone number: (216) 236
1712. The victim disputed sending these text messages to appellant. One of the text
messages with which the victim was confronted stated,
Where you at baby daddy? You want to suck this p[***]y one last name. You know you love me. Laughing my a[**] off. Get off my line. B[***]h, you love the f[**]k out of me. Tell me you love me first and I might drop the charges. It’s on you.
(Tr. 68-69.) Other text messages stated that appellant was “going to be sorry” and
that the victim “will drop the charges.”
As noted above, the victim disputed sending these text messages to
appellant. She asserted that appellant sent the text messages to himself using a “call
app,” and that the phone number from which the texts were sent did not belong to
her.
CMHA Detective Ashley Jaycox testified that she was assigned to the
case in August 2017 after officers noticed a pattern of officers being dispatched to
the victim’s address for calls involving the victim and appellant. Between December
2016 and September 2017, CMHA police responded to 16 calls at the victim’s
address, 11 of which resulted in a report being filed.
During the course of her investigation, Detective Jaycox interviewed
the victim and the victim provided her with the victim’s three cell phone numbers.
Detective Jaycox stated that she never personally received the (216) 236-1712 phone
number from the victim. However, officers did become aware of this number during
the investigation. (Tr. 152.) After appellant was arrested, he was interviewed and
provided officers with the (216) 236-1712 phone number. Appellant showed
Detective Jaycox this phone number on his phone and said that it was the victim’s
number. (Tr. 155.) Detective Jaycox reviewed the text messages exchanged between
the (216) 236-1712 number, purportedly belonging to the victim, and appellant. The
victim was apologetic to appellant in the messages.
After hearing the victim’s trial testimony in which she denied that the
(216) 236-1712 number belonged to her, Detective Jaycox ran the number through
“CP Clear” to determine who the number belonged to. The number traced back to a
“third-party company, an IP company called Neutral Tandem.” (Tr. 157.) She
confirmed the number did not belong to and/or was not registered to the victim.
On cross-examination, Detective Jaycox acknowledged that text
messages were exchanged between the (216) 236-1712 number and appellant two
days after the September 2, 2017 incident during which appellant allegedly choked
and tried to kill the victim. The text messages invited appellant to the hotel where
the victim was staying to engage in sexual acts. (Tr. 161-162.) Furthermore, the text
messages included naked pictures of the victim in the hotel room.
On redirect examination, Detective Jaycox explained that appellant
did not show her any text messages from the victim that were sent from other phone
numbers. All of the text messages that were purportedly sent from the victim to
appellant were sent from the (216) 236-1712 number that Detective Jaycox verified
was not registered to the victim. (Tr. 174.)
Second, in arguing that his convictions are against the manifest
weight of the evidence, appellant relies heavily on the fact that the victim is a
convicted felon and previously pled guilty to making a false kidnapping/abduction
allegation involving her daughter as well as fifth-degree felony vandalism.
As an initial matter,
[s]imply because a witness has a criminal record does not mean his or her testimony cannot be relied upon to convict a defendant. See, e.g., State v. Nitsche, 2016-Ohio-3170, 66 N.E.3d 135, ¶ 44 [(8th Dist.)]; see also State v. Wells, 8th Dist. Cuyahoga No. 98388, 2013-Ohio-3722, ¶ 130 (credibility of witnesses in murder case was left to the jury where witnesses admitted they were high on crack cocaine the day of the murder and had “extensive criminal histories”); State v. Medezma
Palomo, 8th Dist. Cuyahoga No. 88711, 2007-Ohio-5723, ¶ 36-37 (fact that several of the state’s witnesses had criminal records did not preclude the jury from finding their testimony to be credible); State v. Petty, 10th Dist. Franklin Nos. 11AP-716 and 11AP-766, 2012-Ohio2989, ¶ 41 (fact that witnesses had criminal records did not render their testimony unreliable; jury could weigh information regarding witnesses’ criminal histories in determining how much credibility to give their testimony).
State v. Robertson, 8th Dist. Cuyahoga No. 106279, 2018-Ohio-2934, ¶ 29.
Nevertheless, the victim testified about her criminal history, both on
direct and cross-examination. She also explained the circumstances surrounding
the false kidnapping/abduction allegation. Notwithstanding the victim’s criminal
history and her purported motive to “set up” appellant to get him arrested, there
were aspects of her testimony that were supported by other evidence.
The victim’s testimony regarding the 2017 incidents during which
appellant gained entry into her apartment through a window and “smashed
everything” was supported by the testimony of CMHA Officer William Shelton.
Officer Shelton testified that he responded to the victim’s apartment on
September 3, 2017, and observed an air conditioning unit pushed to the side. Officer
Shelton asserted that the apartment looked like it had been ransacked. (Tr. 97.)
The victim’s testimony regarding the incident during which appellant
choked her was supported by the photographs documenting the injuries she
sustained during this altercation and Officer Shelton’s testimony. Officer Shelton
testified that one of the photographs was “a picture of [appellant’s] nails into [the
victim’s] neck or chin,” and confirmed that blood can be observed in the photograph.
(Tr. 98.)
Third, regarding appellant’s argument that the victim was
uncooperative with CMHA police, the victim explained why she would become upset
and angry during her encounters with CMHA authorities. She testified that she
would become upset based on (1) the numerous occasions on which she would have
to call the police regarding appellant, (2) the fact that appellant broke into her
apartment several times, (3) the fact that it would take CMHA officers 15-20 minutes
to respond to her apartment, and (4) the fact that appellant would simply leave her
apartment during the 15-20 minute time period it took officers to respond, and
return after the officers left. (Tr. 93.) The victim asserted that she cooperated with
the police every time they came out to her house and responded to her calls.
CMHA Police Officer Christopher Svec testified that he responded to
the victim’s unit on December 9, 2016, and upon arrival, the victim was hysterical,
very upset, yelling, screaming, crying, and afraid. (Tr. 113.) On cross-examination,
in response to defense counsel’s suggestion that the victim was uncooperative, he
explained, “[d]ue to being, you know, robbed and accosted and everything else, she
was very upset and irate.” (Tr. 115.) He further explained that the victim was “upset,
irate from the incident that had occurred. She was in fear and everything else.” (Tr.
116.) However, after he was able to calm the victim down, she was “all right” and he
was able to speak with her, find out what happened, and obtain a statement from
her. Detective Jaycox testified that despite the victim’s demeanor and her tendency
to get “worked up,” she was always cooperative with her. (Tr. 160.)
Fourth, appellant argues that although the victim alleged that
appellant stole her phone during the August 21, 2017 incident, when the officers
arrived at her house, the victim was in possession of the phone. The victim testified,
however, that when the police arrived at her apartment, she was holding appellant’s
phone — not her own phone. (Tr. 89.)
CMHA Police Officer James Griffiths testified that he responded to the
victim’s apartment on August 21, 2017, and generated a report. Although the victim
told officers that appellant stole her phone, he noted in his report that the victim was
holding a phone when officers arrived. He confirmed that the victim was holding
her phone. However, on redirect examination, Officer Griffiths acknowledged that
he assumed the cell phone the victim was holding belonged to her. He did not ask
or confirm whether the phone belonged to the victim, rather than appellant or a
neighbor. (Tr. 135-136.)
Finally, regarding appellant’s argument that it was “typical” for the
victim to call the police and/or for officers to be dispatched to her house, the victim
acknowledged that she had trouble recalling specific details about the incidents due
to the fact that there had been so many incidents involving appellant that resulted
in her calling the police. Although appellant was charged for his involvement in 8
incidents, the victim opined that there had been as many as 26.
As noted above, the trial court was in the best position to assess the
credibility of witnesses, including the victim. The victim testified about her criminal
history, both on direct and cross-examination. The victim also acknowledged that
she wanted and even planned to get appellant arrested so she could return home
and no longer have to move around with her children and stay in a hotel.
Accordingly, the trial court had sufficient information to judge the victim’s
credibility and the credibility of each witness. Furthermore, the trial court “was free
to believe all, part, or none of the testimony of each witness.” State v. Colvin, 10th
Dist. Franklin No. 04AP-421, 2005-Ohio-1448, ¶ 34; State v. Smith, 8th Dist.
Cuyahoga No. 93593, 2010-Ohio-4006, ¶ 16.
The trial court was in the best position to take note of the victim’s
inability to recall specific details (i.e., dates and times) of all the incidents, and any
inconsistent statements she made regarding the incidents, and weigh this
information in determining how much credibility to give her testimony.
A factfinder may believe and convict a defendant based upon the testimony of a single eyewitness, including the victim. See, e.g., State v. Martin, 8th Dist. Cuyahoga No. 90722, 2008-Ohio-5263, ¶ 32-42 (rejecting argument that convictions were against the manifest weight of the evidence because the victim, who was the sole eyewitness to the events, gave conflicting information to police officers and there was no corroborating evidence, such as other witnesses or physical evidence); see also State v. Payne, 8th Dist. Cuyahoga No. 105965, 2018-Ohio1399, ¶ 24, 29-30; State v. Mansour, 11th Dist. Trumbull No. 2011-T0013, 2011-Ohio-5438, ¶ 17-29. Likewise, a defendant is not entitled to reversal on manifest weight grounds merely because a witness may have made inconsistent statements. See, e.g., State v. Wade, 8th Dist. Cuyahoga No. 90029, 2008-Ohio-4574, ¶ 38, citing State v. Asberry, 10th Dist. Franklin No. 04AP-1113, 2005-Ohio-4547, ¶ 11.
Robertson, 8th Dist. Cuyahoga No. 106279, 2018-Ohio-2934, at ¶ 30.
For all of the foregoing reasons, appellant’s convictions are not against
the manifest weight of the evidence. Appellant’s second assignment of error is
overruled.
Outcome: After thoroughly reviewing the record, we affirm the trial court’s
judgment. Appellant’s convictions for aggravated burglary, kidnapping, domestic
violence, endangering children, menacing by stalking, and disrupting public services
are not against the manifest weight of the evidence.
Judgment affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: