State v. Hill

[Cite as State v. Hill, 2014-Ohio-387.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 99819

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

MARCUS HILL
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-568406

BEFORE: Rocco, J., Celebrezze, P.J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: February 6, 2014
ATTORNEY FOR APPELLANT

John E. Castele
614 West Superior Avenue, Suite 1310
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Edward R. Fadel
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:

{¶1} Defendant-appellant Marcus Hill appeals his convictions for felonious

assault in violation of R.C. 2903.11(A)(2), a second-degree felony, and corresponding

one-year and three-year firearm specifications. He contends that his convictions are

against the manifest weight of the evidence. Having reviewed the record, we find no

merit to Hill’s appeal and affirm his convictions.

{¶2} Hill’s convictions arose out of an October 24, 2012 shooting incident in the

area of 2834 Washington Avenue in Cleveland. On November 13, 2012, Hill was

indicted on six counts — three counts of attempted murder in violation of R.C. 2923.02

and 2903.02(A) and three counts of felonious assault in violation of R.C. 2903.11(A)(2).

Each of the counts included one-year and three-year firearm specifications under R.C.

2941.141(A) and 2941.145(A), respectively, and a weapon forfeiture specification under

R.C. 2941.1417(A). The counts identified three different victims, Lindsey Baldwin,

Destiny Baldwin, and Anthony Donner. A codefendant, Dionta Willis (“Willis”), was

indicted on the same charges. Both men waived their right to a jury trial, and on

February 19, 2013, a bench trial commenced as to the charges against Hill and Willis.

{¶3} The state’s witnesses, which included eyewitnesses Danielle Edwards

(“Danielle”), her son and daughter, Lindsey (“Lindsey”) and Destiny Baldwin

(“Destiny”), and Nataia Ogletree, several police officers, and a forensic expert, provided
the following account of the incident and subsequent investigation that led to Hill’s arrest

and convictions.

{¶4} Danielle Edwards testified that on the evening of October 24, 2012, she

received a telephone call advising her that a couple of neighborhood children were

fighting at Linda’s, a corner store located several minutes up the street from her

apartment. After receiving the call, she ran out to the parking lot and jumped into her

truck, intending to drive to the store to get her children, Lindsey and Destiny, whom she

believed were also at the store. Danielle testified, however, that she never made it to the

store. Before she left the parking lot, she saw her children and other kids from the

neighborhood coming back towards the parking lot, so she turned around. As she was

pulling her truck into a space in the parking lot, Danielle testified that she heard the

children screaming, “Here they come. Here they come.” Danielle testified that she got

out of the truck and was approaching the walkway when she saw three young men —

Hill, Willis, and T.Y. — running towards her children and Anthony Donner (“Donner”),

who, by this time, were standing by a gate near the dumpster. Hill was in the front with

Willis and T.Y. on either side of him. Although, at the time, Danielle did not know Hill

by name, she testified that she recognized him from the neighborhood and that her

children later told her his name. Danielle testified that she likewise knew Willis from

the neighborhood and had previously spoken to him several times. She identified both

men in the courtroom.
 {¶5} Danielle testified that when she saw Hill and Willis, they were running and

shooting in the direction of a large crowd of approximately 30 people, including Lindsey,

Destiny, and Donner, who had gathered around the dumpster. Although it was

evening, Danielle testified that the parking lot was brightly lit and that the neighboring

buildings also had lights. Danielle testified that she was approximately the distance

from the witness stand to the outside doors of the courtroom away from the boys when

she first saw them shooting. She testified that she saw Hill and Willis each holding a

gun and that, with respect to each, she saw “fire coming out of the gun” and “the fire

come out they [sic] hand.” She further testified that she heard five or six gunshots

“hitting stuff,” but that no one was hurt. After the shooting started, she ran to her

apartment and called 911. The state introduced a recording of Danielle’s 911 call.

Approximately five minutes later, the police arrived, and Danielle went back out to the

parking lot to talk with the police. Danielle testified that, after she spoke with the police

for several minutes, Willis was apprehended. Willis was brought over to where Danielle

was speaking with the police, and she identified him as one of the shooters.

{¶6} On cross-examination, Danielle testified that she had given two written

statements to police — one that evening, immediately after the incident, and a second

statement the following day. Danielle admitted that in the first statement she gave to

police, she mistakenly indicated that there were “three shooters.” At trial, she testified

that she “wrote it wrong” and “meant to say it the other way,” i.e., that although there

were three boys, “only two of them was [sic] shooting.” She testified that when she
wrote her initial statement, her hand was shaking and that she was “upset,” “scared,” and

“horrified” as a result of the incident. As to her second statement, Danielle

acknowledged that she did not mention in that statement that Willis had a gun, only that

Hill had a gun. She testified that she did not indicate that Willis had a gun in her second

written statement because (1) by that time, Willis was already in jail and (2) she had

already included information regarding Willis’s involvement in her first statement and

“didn’t know [she] had to put him in that statement, too.” Danielle further

acknowledged that she did not tell the 911 dispatcher the names of the individuals she

believed were involved in the incident during her 911 call and that the information she

provided the 911 dispatcher regarding what the individuals were wearing at the time of

the shooting came from a third party.1

1
It is not entirely clear from the record whether Danielle, in fact, failed to mention that Willis
was one of the shooters in her second written statement to police. The statement was not admitted
into evidence and, therefore, is not in the record. On re-direct examination, the prosecutor asked
Danielle to read the following lines from her second statement, which suggests that Danielle may
have actually indicated in that statement that Willis was shooting as well: “And Marcus was coming
up Washington. Marcus lift his hand up once. They got by the office. And that’s when he started
shooting. And Dionta was beside him, and they were running towards all of us, shooting.”
(Emphasis added.)

Likewise, upon review of the recording of the 911 call, it does appear that Danielle told the
911 dispatcher that “Marcus” was involved. Danielle told the 911 dispatcher that she needed police
assistance because “these guys that grabbed her son earlier, they just came back here shooting at us.”
When asked by the dispatcher, “what did they have on,” Danielle turned to a boy named Marquel and
asked him what the shooters were wearing. She then told the dispatcher “it was Marcus.” Danielle
is heard asking, “who else,” apparently attempting to get the names of the others involved from those
nearby, but then yells, “they coming back,” and the call ends abruptly.
 {¶7} The 911 call Danielle made relating to the incident was one of three 911 calls

she made the day of the incident. Danielle testified that she first called police after her

son, Lindsey, “got jumped on” at the local recreation center earlier that afternoon.

Danielle testified that, according to Lindsey, Hill was one of the participants in the

beating, having held Lindsey down while others beat him up. She called 911 a second

time “when the same guys that held [Lindsey] down and jumped on him came back up

there to try and jump him again,” and, a third time, after the shooting began.

{¶8} Danielle’s 14-year-old daughter, Destiny Baldwin, also testified. Destiny

testified that on the evening of the incident, she saw Hill and Willis at the corner store.

She testified that she had been at the store with her brother, Lindsey, his friend, Donner,

and several others watching Hill and another boy, Marquel, fighting. After the fight,

they walked back to their house on Washington Avenue. She testified that a few

minutes after the fight, she, Lindsey, and Donner were “up the hill” near the garbage can

by her house when Hill, accompanied by Willis and T.Y., “came shooting.” She

testified that she knew Willis and Hill from the recreation center, where she would see

them playing basketball. She identified both boys in the courtroom.

{¶9} Destiny testified that she saw a gun in Hill’s hand and saw fire coming from

the front of the gun, pointing down towards where she, Lindsey, and Donner were

standing, approximately ten feet away. She testified that Willis and T.Y. were standing

next to Hill, facing towards her, and that she did not see either Willis or T.Y. holding a

gun. Based on the way in which she and the others were positioned, Destiny testified
that if Willis had had a gun, she believed she would have seen it. She stated that, in her

mind, there was only one shooter, Hill.

{¶10} Destiny testified that she heard two gun shots. To her knowledge, no one

was struck by the bullets, but one hit a gate a few inches away from where she, Lindsey,

and Donner were standing. Destiny testified that after the shooting began, Donner

pushed her towards her house and told her to leave. Destiny turned around and ran

home quickly. When she arrived, her mother was already there. Destiny testified that

she spoke with police after the incident but was never asked to prepare a written

statement.

{¶11} Danielle’s son, sixteen-year-old Lindsey Baldwin, similarly testified that he

knew Willis and Hill from the recreation center, where he had played basketball with

them. Lindsey testified that at approximately 5:00 p.m. on the day of the incident, he

was walking home from the recreation center with a boy named Marquel when he was hit

from behind. Lindsey testified that he did not know who hit him but that Hill and

another boy, Joseph, were there and were holding him down. Lindsey testified that later

that evening, he learned that Hill was at the store fighting Marquel, so he, Destiny, and

Donner went up the hill to the store. Lindsey testified that by the time they arrived, the

fight was over. He saw Hill ran past them, “toward the high rise.” Lindsey testified

that when he next saw Hill, approximately five minutes later, Hill was running towards

him down the hill, shooting. Lindsey testified that he saw a gun in Hill’s hand and that

Hill was shooting towards the area where he, Destiny, Donner, and “a lot” of others were
standing. Lindsey further testified that Willis and “Tyrone” were with Hill and that

Willis also had a gun and was shooting in his direction. Lindsey testified that they

“were about a dumpster apart” from where they boys were shooting on the corner of

Washington Avenue, but that he believed they were further away from Hill than his sister

had testified when the shots were being fired. Lindsey testified that he heard three gun

shots. He testified that no one was shot, but that a bullet hit a fence approximately three

feet to the left of where he and the others were standing. When the shooting started,

Lindsey ran home. Hill and Willis then ran down the hill away from Lindsey.

{¶12} On cross-examination, Lindsey admitted that there was “bad blood” between

him and Hill and Willis, i.e., he did not like them and they did not like him. Although

Lindsey had originally testified on direct examination that he could see Hill’s and Willis’s

faces despite the darkness, on cross-examination, he later acknowledged that he could not

see their faces as they were shooting but knew who was shooting at him because he knew

“how they walked and stuff.” Lindsey also admitted that he gave a written statement to

police the day after the incident in which he indicated that only Hill had been shooting at

him. Despite acknowledging that the information “would have been important,”

Lindsey could not state why he did not mention, in the written statement he gave police,

that Willis had been shooting at him as well.2

2
It is not entirely clear from the record whether Lindsey, in fact, failed to mention in his
written statement to police that Willis was also shooting at him. A copy of the statement is not in
the record. On re-direct examination, however, the prosecutor asked Lindsey to read a line from the
statement, which suggests that Lindsey may have stated that Willis had also been shooting at him:
“Walking down the street toward us when Marcus and Dionta started shooting at us.” (Emphasis
 {¶13} Nataia Ogletree (“Ogletree”), age 19, also witnessed the incident. She

testified that she first saw Hill, Willis, and T.Y. that evening when Hill and Marquel were

involved in “a little tussle” at the corner store. She testified that she did not see Lindsey,

Destiny, or Donner at the store at that time. She testified that she knew Willis because

Ogletree and Willis’s sister had been involved in “altercations” several years earlier.

She denied, however, that any “bad blood” continued to exist between the two women.

Ogletree testified that she was also familiar with Hill and knew him from “just seeing

him” around the neighborhood.

{¶14} Ogletree testified that after the altercation at the store, she and several others

were walking back towards her grandmother’s house on Washington Avenue when Hill

told them, “wait right there,” and ran down the hill. At this time, Willis was “still

towards the store.” Ogletree testified that she and her companions continued to walk

toward Washington Avenue. A minute or two later, as they approached 2834

Washington Avenue, Ogletree testified she heard gunshots coming from behind her from

the corner. She and “a lot” of others who were standing in the area took off running.

She testified that she and Danielle hurried to get the young children who were in the area

inside away from the gunfire. Ogletree testified that she did not see the gunfire or who

was shooting and did not recall how many shots she heard. She further testified that she

gave a statement to police following the incident in which she stated that Willis was

wearing a red polo hat, red shirt, and khakis that evening.

added.)
 {¶15} In addition to the testimony from eyewitnesses, the state presented

testimony from several police officers, including Lorenzo Brazzell, a patrol officer with

the Cuyahoga County Metropolitan Housing Authority (“CMHA”) Police Department,

and Sergeant Richard Schilling and Detective Kyle White, also with the CMHA Police

Department — all of whom responded to the call about the shooting.

{¶16} Brazzell testified that he had been assigned to the 2 p.m. to 10 p.m. shift and

had responded to an assault call earlier that evening involving Lindsey. Brazzell

testified that he spoke with Hill regarding the alleged assault and that Hill acknowledged

being present during the assault, but denied knowing who hit Lindsey. Brazzell testified

that when he spoke with Hill about the alleged assault, Hill was wearing a blue shirt and

khaki pants.

{¶17} Brazzell testified that, later that evening, he was one of several police

officers who responded to a call regarding shots having been fired on Washington

Avenue. Brazzell testified that when he arrived on the scene, he saw six to ten people

“in a slight panic.” He conducted interviews of several eyewitnesses, including Danielle

and Ogletree, and testified that, with respect to potential suspects, Hill and Willis were

identified by name as having been involved in the incident. He testified that the

witnesses also provided descriptions of two males who were allegedly involved in the

incident — one in a blue shirt and khaki pants and one in a red or grey shirt with a hoodie

and cargo or khaki pants. After speaking with the victims, Brazzell conducted a patrol

of the surrounding area. Less than 100 yards from the scene of the incident, Brazzell
observed a person who appeared to match the description of one of the suspects and

stopped him. It was Willis. Brazzell testified that he became suspicious of Willis after

Willis agreed to speak with him, but could not provide clear answers to the officer’s

questions regarding his comings and goings. After confirming over the police radio that

Willis matched the description given by eyewitnesses of one of the males involved in the

incident, Brazzell handcuffed Willis and placed him in his police car for further

investigation. Willis had no weapon, ammunition, or other contraband with him at the

time he was detained. Brazzell testified that Willis was then brought back to the scene,

where witnesses identified him as one of the individuals involved in the incident. Willis

was thereafter arrested for felonious assault. A gunshot residue test performed on

Willis’s hands thirty or forty minutes after the shooting came back negative.

{¶18} CMHA Sergeant Schilling and CMHA Detective Kyle White were also

involved in the on-site investigation. Detective White testified that they located and

collected four spent .40 caliber shell casings at the scene. Sergeant Schilling believed

that the casings they found were nine millimeter shell casings, but explained that nine

millimeter and .40 casings could be fired from the same gun. Detective White further

testified that no gun was located at the scene and that a .40 caliber bullet could not be shot

from a .22 caliber gun.

{¶19} Martin Lewis, a forensic scientist in the trace evidence section of the

Attorney General’s Office, Bureau of Criminal Identification and Investigation, testified

regarding gunshot residue tests he performed on a jacket belonging to Hill. He testified
that the tests came back negative. Lewis explained, however, that a negative gunshot

residue test does not necessarily mean that someone did not fire a gun. He explained

that gunshot residue has a limited ability to be detected and that there are a number of

variables that impact whether gunshot residue will be found following a shooting,

including the type of firearm used, the number of shots fired, the type of ammunition, the

length of time since the shooting, the level of activity since the shooting, and weather and

wind currents. He explained that gunshot residue generally remains on the surface of a

person’s hands for up to four to six hours. He further explained that gunshot residue

deposited on a surface “falls off” over time; physical activity, contact with other items,

and movement can cause gunshot residue to fall off.

{¶20} CMHA Detective Leon Justus was assigned to conduct the follow-up

investigation following the incident. He testified that, as part of his investigation, he

spoke with Danielle, reviewed the first statement she gave at the scene of the incident

with her, and then asked her to write out another statement. He also spoke with Lindsey,

Destiny, and several others regarding the incident. Justus thereafter obtained a search

warrant for Hill’s apartment where officers recovered a .22 caliber revolver out of Hill’s

closet and six rounds of .22 ammunition in a dresser. Justus testified, however, that the

.22 caliber ammunition and revolver found in Hill’s home did not match the .40 caliber

shell casings found at the scene. After Justus executed the search warrant, Hill was

arrested.

{¶21} Neither Hill nor Willis presented any witnesses in their defense.
 {¶22} On February 21, 2013, the trial court returned guilty verdicts against Hill on

all three felonious assault counts, along with the corresponding one-year and three-year

firearm specifications. As to the attempted murder charges, the trial court found Hill not

guilty. The trial court acquitted Willis of all charges.

{¶23} On March 25, 2013, the trial court sentenced Hill to an aggregate prison

term 6 years — three years on each of the felonious assault charges, to be served

concurrently to one another, and three years on the firearm specifications, to be served

consecutively with the three-year sentence on the felonious assault charges.

{¶24} Hill appeals his convictions, raising a single assignment of error:

The defendant’s convictions are against the manifest weight of the
evidence.

{¶25} A manifest weight challenge questions whether the state met its burden of

persuasion at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶

13, citing State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997). When a

conviction is challenged on appeal as being against the manifest weight of the evidence,

the reviewing court must examine the entire record, weigh the evidence and all reasonable

inferences, consider the witnesses’ credibility, and determine whether, in resolving

conflicts in the evidence, the trier of fact 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, 175, 485 N.E.2d 717

(1st Dist.1983).
 {¶26} In considering a manifest weight challenge, this court must remain mindful

that the credibility of the witnesses and the weight to be given the evidence are primarily

for the trier of fact to assess. 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),

paragraph one of the syllabus. The trier of fact is in the best position to take into account

inconsistencies, along with the witnesses’ manner, demeanor, gestures, and voice

inflections, in determining whether the proffered testimony is credible. State v. Kurtz,

8th Dist. Cuyahoga No. 99103, 2013-Ohio-2999, ¶ 26, quoting State v. Wilson, 113 Ohio

St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24; see also State v. Lilliard, 8th Dist.

Cuyahoga Nos. 99382, 99383, and 99385, 2013-Ohio-4906, ¶ 93 (In considering the

credibility of witnesses on a manifest weight challenge, appellate court is “guided by the

presumption” that the jury, or the trial court in a bench trial, 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.’”), quoting Seasons

Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). Reversal on

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

weighs heavily against the conviction.’” Thompkins at 387, quoting Martin, supra.

{¶27} In support of his manifest weight challenge, Hill argues that his convictions

are inconsistent with the trial court’s acquittal of his codefendant, Willis, on the same

charges. Hill also contends that his convictions should be overturned due to (1) the

absence of a weapon or any forensic evidence linking him to the shooting, (2)
contradictions in the witnesses’ testimony regarding the number of shooters, who was

shooting, and how many shots were fired, (3) discrepancies between the witnesses’ trial

testimony and their written statements to police, and (4) evidence of the “bad blood”

between Lindsey and Hill and Willis. These arguments do not persuade us that Hill’s

convictions were against the manifest weight of the evidence.

{¶28} R.C. 2903.11(A)(2) provides in relevant part:

No person shall knowingly * * * [c]ause or attempt to cause
physical harm to another * * * by means of a
deadly weapon or dangerous ordnance.

“A person acts knowingly, regardless of his purpose, when he is aware that his conduct

will probably cause a certain result or will probably be of a certain nature. A person has

knowledge of circumstances when he is aware that such circumstances probably exist.”

R.C. 2901.22(B).

{¶29} Under R.C. 2929.14(B)(1)(a), a one-year mandatory prison term shall be

imposed if the offender had “a firearm on or about the offender’s person or under the

offender’s control while committing the felony” or a three-year mandatory prison term

shall be imposed if the offender had “a firearm on or about the offender’s person or under

the offender’s control while committing the offense and display[ed] the firearm,

brandish[ed] the firearm, indicat[ed] that the offender possessed the firearm, or us[ed] it

to facilitate the offense.” See also R.C. 2941.141, 2941.145.

{¶30} The acquittal of Willis on all charges does not warrant the conclusion that

Hill’s conviction on the same charges was against the manifest weight of the evidence.
First, the state’s evidence was stronger against Hill than against Willis. Destiny testified

unequivocally that although she clearly saw Hill, approximately ten feet away, shooting at

her and others that evening, she was certain she never saw Willis with a gun. Although

she knew Willis and what he was wearing the night of the incident, Ogletree did not see

Willis shooting at her. With respect to Danielle and Lindsey’s testimony identifying

Willis as one of the shooters, certain aspects of their testimony were called into question

during cross-examination, including purported inconsistencies between their trial

testimony and the written statements they gave police shortly after the incident, which, at

times, did not clearly identify Willis as one of the shooters. As a result, the trial court

may have found Danielle and Lindsey’s testimony identifying Willis as one of the

shooters less credible than Destiny’s contrary testimony.

{¶31} Further, the state presented evidence that Willis was picked up walking

along the neighborhood streets shortly after the incident. Gunshot residue tests

performed on Willis’s hands thirty to forty minutes after the shooting came back negative.

Forensic expert Martin Lewis testified that he would generally expect gunshot residue to

remain on a shooter’s hands for four to six hours after a shooting. The fact that these

tests came back negative, combined with the conflicting witness testimony regarding

Willis’s role in the incident, supports the trial court’s reasonable doubt as to whether

Willis “knowingly * * * [c]ause[d] or attempt[ed] to cause physical harm to another

* * * by means of a deadly weapon or dangerous ordnance.”
 {¶32} Whereas there was conflicting testimony regarding whether Willis was one

of the shooters, all of the witnesses consistently identified Hill as a shooter. Danielle,

Lindsey, and Destiny each testified that they knew Hill (by name or facial recognition)

and that they saw fire coming from a gun Hill held in his hand as he pointed the gun

towards Lindsey, Destiny, Donner, and others standing nearby. Accordingly, we do not

believe the verdicts were inconsistent. See, e.g., State v. Eppard, 6th Dist. Lucas No. CL

05-1279, 2007-Ohio-2257, ¶ 16 (wife’s conviction for grand theft based on alleged

authorized payments from little league account to herself and codefendant husband was

not improper, notwithstanding husband’s acquittal on an identical charge, where state’s

evidence was stronger against wife); State v. Mounts, 12th Dist. Brown No.

CA97-02-007, 1998 Ohio App. LEXIS 1078, *12 (Mar. 23, 1998) (verdicts convicting

wife and acquitting codefendant husband of filing false report of child abuse or neglect

were not inconsistent where trier of fact could reasonably find that roles of appellant and

codefendant in the conduct at issue differed and that the “motive and credibility” of the

two “parted in many respects”).

{¶33} Further, even assuming arguendo that the verdicts against Hill and

acquitting Willis were inconsistent, “inconsistent verdicts between co-defendants is not a

sufficient reason for reversing a conviction.” See, e.g., Eppard at ¶ 16; Mounts at *12,

citing Dunn v. United States, 284 U.S. 390, 394, 52 S.Ct. 189, 76 L.Ed. 356 (1932), and

United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 88 L.Ed. 48 (1943).
 {¶34} Nor does the absence of a weapon or forensic evidence tying Hill to the

shooting warrant overturning Hill’s convictions, where, as here, credible eyewitness

testimony identified Hill as one of the shooters. See, e.g., State v. Torres, 8th Dist.

Cuyahoga No. 99596, 2013-Ohio-5030, ¶ 95 (defendant’s convictions were not against

the manifest weight of the evidence where, although there was no forensic evidence tying

defendant to victim, “substantial testimonial and circumstantial evidence” supported

jury’s verdict); State v. Taylor, 10th Dist. Franklin No. 12AP-870, 2013-Ohio-3699, ¶ 47

(although no weapon or forensic evidence tied appellant to the shooting, conviction was

not against the manifest weight of the evidence where one of the victims identified

appellant as the shooter); State v. Warren, 8th Dist. Cuyahoga No. 95671,

2011-Ohio-4633, ¶ 27, 33-35 (rejecting appellant’s argument that evidence weighed

heavily against his conviction because no gun was found and no forensic evidence was

presented linking him to the crime, where witnesses testified that appellant had a small

silver gun he had used to rob the victims and then shot at one of the victims); State v.

Jordan, 10th Dist. Franklin No. 04AP-827, 2005-Ohio-3790, ¶ 14-15 (where eyewitness,

familiar with defendant, identified defendant as the shooter, absence of weapon or

forensic evidence tying defendant to the shooting did not support reversal of conviction

on manifest weight grounds).

{¶35} Likewise, inconsistencies among the witnesses’ testimony or purported

discrepancies between the witnesses’ statements to police and their trial testimony are not

a sufficient basis to overturn Hill’s convictions on manifest weight grounds.
Admittedly, there were inconsistencies among the witnesses regarding what they saw and

heard that evening. For example, the witnesses disagreed as to who was shooting —

whether it was just Hill or Hill and Willis — as to the number of gunshots fired — two

shots, three shots, or five or six shots— and as to the distance between the witnesses and

the shooter(s) when the shooting occurred — ten feet, the distance from the witness stand

to the outside doors of the courtroom, or further away. There were also various alleged

discrepancies between Danielle and Lindsey’s trial testimony, the 911 call Danielle made

after the incident, and the written statements Danielle and Lindsey each gave to police.

However, despite the variations in their testimony, each of the witnesses clearly and

consistently identified Hill as a shooter.

{¶36} Danielle, Lindsey, and Destiny each testified unequivocally that they heard

gunshots and saw gunfire coming towards them from a gun held in Hill’s hand. These

witnesses further testified that they knew Hill by name (or, in the case of Danielle, facial

recognition) from playing basketball at the recreation center or from seeing him around

the neighborhood. They also testified that they saw Hill’s face or otherwise recognized

Hill from “how [he] walked and stuff” when Hill was shooting toward the crowd that

evening. Hill was identified as a shooter in both Danielle’s and Lindsey’s witness

statements and during the 911 call. Police detectives testified that four shell casings

were recovered near the scene of the incident, corroborating the witnesses’ testimony that

a gun had been fired.
 {¶37} “‘A conviction is not against the manifest weight of the evidence solely

because the jury heard inconsistent testimony.’” State v. Wade, 8th Dist. Cuyahoga No.

90029, 2008-Ohio-4574, ¶ 38, quoting State v. Asberry, 10th Dist. Franklin No.

04AP-1113, 2005-Ohio-4547, ¶ 11; see also State v. Mann, 10th Dist. Franklin No.

10AP-1131, 2011-Ohio-5286, ¶ 37 (“‘While [a factfinder] may take note of the

inconsistencies and resolve or discount them accordingly, * * * such inconsistencies do

not render defendant’s conviction against the manifest weight or sufficiency of the

evidence.’”), quoting State v. Nivens, 10th Dist. Franklin No. 95APA09-1236, 1996 Ohio

App. LEXIS 2245, *7 (May 28, 1996); State v. Bridgeman, 2d Dist. Champaign No. 2010

CA16, 2011-Ohio-2680,

¶ 35-42 (fact that evidence “is subject to different interpretations does not render the

conviction against the manifest weight of the evidence”), citing State v. Wilson, 2d Dist.

Montgomery No. 22581, 2009-Ohio-525, ¶ 14. “‘In reviewing the ‘manifest weight of

the evidence, * * * even where discrepancies exist, eyewitness identification testimony

alone is sufficient to support a conviction so long as a reasonable [factfinder] could find

the eyewitness testimony to be credible.’’” Taylor, 2013-Ohio-3699 at ¶ 47, quoting State

v. Humberto, 196 Ohio App.3d 230, 2011-Ohio-3080, 963 N.E.2d 162 ¶ 35, (10th Dist.),

quoting Jordan, 2005-Ohio-3790 at ¶ 14.

{¶38} Hill highlights various issues with Lindsey’s testimony, in particular, that he

claims makes him an unbelieveable witness. However, “‘[i]t is the province of the [trier

of fact] to determine where the truth probably lies from conflicting statements, not only of
different witnesses but by the same witness.’” State v. Jennings, 10th Dist. Franklin No.

09AP-70, 2009-Ohio-6840, ¶ 56, quoting State v. Haynes, 10th Dist. Franklin No.

03AP-1134, 2005-Ohio-256, ¶ 24.

{¶39} Nor does the fact that there was “bad blood” between Lindsey and Hill

warrant overturning his convictions. The animosity between Lindsey and Hill and any

motive on the part of Lindsey or his family members to testify untruthfully was simply

one fact for the court to consider in evaluating the credibility of the witnesses’ testimony.

{¶40} The trial court, as the trier of fact in this case, was in the best position to

weigh the evidence and the witnesses’ credibility. It was entitled to believe or

disbelieve all, part, or none of a witness’s testimony. Torres, 2013-Ohio-5030 at ¶ 93,

citing State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶ 21. After

examining the entire record, we cannot say that the trial court lost its way or created a

manifest miscarriage of justice in convicting Hill of felonious assault and the related

firearm specifications. The state’s case contained substantial testimonial evidence upon

which the trial court could reasonably conclude, beyond a reasonable doubt, that Hill was

one of the shooters and that he “knowingly * * * attempt[ed] to cause physical harm to

another * * * by means of a deadly weapon or dangerous ordnance,” had “a firearm on or

about [his] person or under [his] control while committing the [offense],” and

“display[ed] the firearm, brandish[ed] the firearm, indicated that [he] possessed the

firearm, or us[ed] [the firearm] to facilitate the offense” to warrant his convictions for

felonious assault in violation of R.C. 2903.11(A)(2) and the corresponding one-year and
three-year firearm specifications under R.C. 2941.141(A) and 2941.145(A). R.C.

2929.14(B)(1)(a); State v. Pruitt, 8th Dist. Cuyahoga No. 98080, 2012-Ohio-5418, ¶ 18

(“[W]eight 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.”),

citing DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 at paragraphs one and two of the

syllabus. Accordingly, Hill’s assignment of error is overruled.

{¶41} Hill’s convictions are 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 convictions having

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

for execution of sentences.

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

Rule 27 of the Rules of Appellate Procedure.

_________________________________
KENNETH A. ROCCO, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
EILEEN T. GALLAGHER, J., CONCUR