[Cite as In re A.S., 2019-Ohio-2359.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
IN RE: A.S. : APPEAL NO. C-180056 TRIAL NO. 17-2344X :
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 14, 2019
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin, Assistant Prosecuting Attorney, for Appellee State of Ohio,
Raymond T. Faller, Hamilton County Public Defender, and Julie Kahrs Nessler, Assistant Public Defender, for Appellant A.S. OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} Appellant A.S. appeals the judgment of the juvenile court adjudicating
him delinquent in connection with the robbery of a pizza-delivery driver. For the
reasons that follow, we affirm.
Background Facts and Procedure
{¶2} A pizza-delivery driver was lured to a home in Price Hill where several
young men attacked and robbed her. The victim could not identify any of the
suspects. In the course of the police investigation, the police traced the phone
number used to order the pizza to a juvenile, M.B. The police interviewed M.B., and
during that interview, M.B. identified a juvenile named “Black Tino,” and another
juvenile, S.F., as also being involved in the incident. The police showed M.B. a
photograph of A.S., and M.B. confirmed A.S. was “Black Tino.” Police arrested A.S.
in connection with the robbery. The matter proceeded to a trial before the
magistrate.
{¶3} At trial, the victim testified that she had driven her car to a house in
Price Hill to deliver a pizza. She pulled up to the house and five black males were
standing outside. One of the males stated that his mom would be out. When no one
came out of the house, the victim called the customer’s number, but the call went
straight to voicemail. One of the males stated that his mom went to the store and
would be right back. At this point, the victim told the group that she had other
deliveries and would return. She put the pizza in the passenger side of her car and
locked the doors. She then walked around the back of her car when she heard one of
males yell, “Get her.” One of the juveniles jumped over the hood of her car and then
body slammed her to the ground and started punching her. Another juvenile tried to
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open the passenger-side car door. The juvenile who had body slammed her and
another juvenile tried to grab items out of her pocket. The victim’s wallet fell out,
and one of the three grabbed it. The juveniles took off running, and the victim tried
to pursue them, but could not catch them.
{¶4} M.B. testified that he had been among the group that had ordered
pizza, and that a “fistfight” had occurred with the delivery driver. M.B. testified that
A.S. also had been a part of that group, and M.B. identified A.S. in court. M.B.
initially stated that he had “not really” seen what A.S. had done during the course of
the robbery because M.B. “wasn’t paying attention.” When questioned by the
magistrate, M.B. said that he had seen A.S. punch the victim. On cross-examination,
M.B. admitted that when investigators had first approached him about the robbery,
he lied about an incident that had occurred a week after the robbery, in which M.B.
had sustained a gunshot wound. M.B. told police that he had been shot in the course
of a drive-by shooting by an unknown person, but M.B. later admitted to police that
he had been holding a gun when it accidentally discharged. The state did not file a
complaint against M.B. for false reporting or for the robbery.
{¶5} In addition to M.B.’s testimony, the state presented testimony from
two police officers in the criminalistics unit who perform fingerprint analysis. The
police had obtained fingerprints from the pizza driver’s vehicle. An officer testified
that she used the prints that she had received from the driver’s vehicle and put them
into a database. The database matched the prints to “A.S.”
{¶6} The magistrate recommended that A.S. be adjudged delinquent. A.S.
filed objections. A.S. objected to the magistrate’s admission of the fingerprint
evidence, arguing that the evidence had not been properly authenticated. A.S.
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argued that the state had failed to prove that the prints belonged to A.S., and not
another person with the same name. A.S. also argued that the state had failed to
prove beyond a reasonable doubt that A.S. had been one of the perpetrators.
{¶7} The juvenile court sustained A.S.’s objection as to the fingerprint
evidence. The trial court determined that with respect to A.S.’s adjudication, the
magistrate had not “fully consider[ed]” M.B.’s testimony, and “instead relied heavily
on the fingerprint evidence.” The juvenile court excluded the fingerprint evidence in
conducting an independent review, and found that M.B. had identified A.S. as “Black
Tino” to police, and that M.B. had seen A.S. punch the victim. The juvenile court
determined M.B.’s testimony to be “consistent and credible.” The juvenile court
adjudged M.B. delinquent of robbery and imposed a suspended commitment to the
Department of Youth Services.
{¶8} A.S. has appealed.
Manifest Weight of the Evidence
{¶9} In his first assignment of error, A.S. contends that his adjudication was
against the manifest weight of the evidence.
{¶10} In reviewing whether a juvenile court’s adjudication of delinquency is
against the manifest weight of the evidence, this court applies the same standard of
review applied to criminal defendants. See In re B.M., 1st Dist. Hamilton No. C-
170103, 2018-Ohio-1733, ¶ 9. In reviewing a manifest-weight challenge, the court of
appeals sits as a “thirteenth juror” and “review[s] the entire record, weighs the
evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the [factfinder] clearly lost
4 OHIO FIRST DISTRICT COURT OF APPEALS
its way and created such a manifest miscarriage of justice that the conviction must be
reversed * * *.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
{¶11} A.S. argues that the juvenile court erred in relying on M.B.’s testimony,
because it was inconsistent and not credible. As to M.B.’s lack of credibility, A.S.
argues that M.B. admittedly lied to police about the source of a gunshot wound, and
the state did not press charges against M.B. in connection with the false report or the
pizza-delivery robbery. As to the substance of M.B.’s testimony, A.S. argues that
M.B. first stated that three people had been involved in the robbery, including
himself, but later stated that four people had been involved, and none of M.B.’s
testimony matched the victim’s account that five people had been involved. M.B.
also denied that he had been holding anything in his hands during the robbery, but
the victim testified that the two boys who had been observing the event had been
holding florescent lights. A.S. also points out that M.B. described the entire event as
a “fistfight” between the boys and the delivery driver, which could not be considered
credible. A.S. also argues that M.B. stated several different times that he had not
been paying attention and did not remember what had occurred. A.S. also argues
that M.B.’s initial identification of A.S. was “suspect” because M.B. did not identify
A.S. by name, but by the nickname “Black Tino,” at which point the police provided
M.B. with a single photograph—that of A.S. Finally, A.S. argues that the juvenile
court lost its way in adjudicating him delinquent because the state provided alternate
theories by which A.S. had been involved in the crime: (1) that A.S. had punched the
victim, (2) that A.S. had tried to get into the victim’s vehicle, and (3) that A.S. had
tried to steal items from the victim’s vehicle after the victim pursued the suspects.
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{¶12} A juvenile court is free to believe some, all, or none of a witness’s
testimony. In re L.S., 6th Dist. Ottawa No. OT-17-021, 2018-Ohio-4758, ¶ 28.
Moreover, “[i]f evidence is susceptible to more than one construction, reviewing
courts must give it the interpretation that is consistent with the verdict and
judgment.” In re B.Z., 11th Dist. Geauga No. 2016-G-0089, 2017-Ohio-5638, ¶ 18,
quoting Warren v. Simpson, 11th Dist. Trumbull No. 98-T-0183, 2000 WL 286594,
*3 (Mar. 17, 2000). Therefore, the juvenile court was free to resolve the
inconsistencies in M.B.’s testimony, consider M.B.’s credibility issues as brought out
on cross-examination, and still find credible M.B.’s statements to police and at trial
implicating A.S. in the robbery. During trial, the magistrate asked M.B. what he had
seen A.S. do during the event. M.B. replied, “Just punch her.”
{¶13} After reviewing the entire record, weighing the evidence and all
reasonable inferences, and considering the credibility of the witnesses, we cannot say
that the juvenile court clearly lost its way and created such a manifest miscarriage of
justice that A.S.’s adjudication must be reversed. See Thompkins, 78 Ohio St.3d at
387, 678 N.E.2d 541. Thus, A.S.’s adjudication was not against the manifest weight
of the evidence. We overrule the first assignment of error.
Review of Magistrate’s Credibility Determination
{¶14} In his second assignment of error, A.S. argues that the juvenile court
violated Juv.R. 40 by failing to give deference to the magistrate’s credibility
determinations. Juv.R. 40(D)(4) provides in relevant part:
(b) Action on Magistrate’s Decision. Whether or not objections are
timely filed, a court may adopt or reject a magistrate’s decision in
whole or in part, with or without modification. A court may hear a
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previously-referred matter, take additional evidence, or return a
matter to a magistrate.
(c) If No Objections Are Filed. If no timely objections are filed, the
court may adopt a magistrate’s decision, unless it determines that
there is an error of law or other defect evident on the face of the
magistrate’s decision.
(d) Action on Objections. If one or more objections to a magistrate’s
decision are timely filed, the court shall rule on those objections. In
ruling on objections, the court shall undertake an independent review
as to the objected matters to ascertain that the magistrate has properly
determined the factual issues and appropriately applied the law.
Before so ruling, the court may hear additional evidence but may
refuse to do so unless the objecting party demonstrates that the party
could not, with reasonable diligence, have produced that evidence for
consideration by the magistrate.
{¶15} A.S. argues that neither party objected to the magistrate’s finding that
M.B. was not credible, and therefore, under Juv.R. 40, the juvenile court was not
permitted to disagree with the magistrate’s credibility determination. A.S.’s
argument that the juvenile court should have deferred to the magistrate’s credibility
determination assumes that the magistrate found M.B.’s testimony not credible,
which is not supported by the magistrate’s decision. The magistrate found that
M.B.’s testimony was not consistent and “at times” not credible, but the magistrate
specifically found M.B.’s testimony credible with respect to the other juvenile being
tried with A.S. for the robbery. The magistrate determined that “even without M.B.’s
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testimony,” A.S. should be found delinquent because of the state’s fingerprint
evidence. The magistrate’s partial disregard of M.B.’s testimony as to A.S. in this
case does not equate to a finding by the magistrate that M.B.’s testimony as to A.S.
was not credible, but a recognition that A.S.’s fingerprints on the vehicle of the victim
was in and of itself sufficient evidence of A.S.’s involvement in the crime.
{¶16} Furthermore, A.S. specifically objected to the magistrate’s decision on
the basis that “the greater weight of the credible evidence does not support [his]
adjudication.” Therefore, the weight of the evidence and the credibility of the
witnesses, which would include M.B.’s credibility, was squarely before the juvenile
court for an independent review.
{¶17} A.S. further argues that even if the juvenile court could review the
magistrate’s credibility determination under Juv.R. 40, it should have given
deference to the magistrate’s determination. A.S. cites to In re X.B., 10th Dist.
Franklin Nos. 16AP-243 and 16AP-277, 2016-Ohio-5805. In In re X.B., father filed
an action in domestic-relations court seeking to establish parentage and custody of
his alleged child, and seeking custody of another child. Maternal grandmother had
been given emergency custody of the children. The magistrate held a four-day trial
where it was undisputed that father had met mother through a Craigslist ad for a
massage, and that the first time they met, they engaged in sexual relations. At the
time, mother was just 16 years old, and father was in his early 40s. Although father
claimed that he did not know mother was a minor when they met, he admitted that
he found out at some point that mother was underage, but he continued to have sex
with her. Mother, as well as other witnesses, testified that father had a pattern of
8 OHIO FIRST DISTRICT COURT OF APPEALS
engaging in sex acts with minors and paying them with either money or drugs, and
that father prostituted girls.
{¶18} The magistrate in In re X.B. determined that grandmother’s witnesses
were credible, and recommended an award of custody to grandmother. On
objections, the juvenile court granted father’s objections and awarded custody to
father. The trial court found that the testimony of grandmother’s witnesses was not
credible, and that insufficient evidence existed to find that father was an unsuitable
parent. Grandmother appealed. The Tenth District reversed the trial court, holding
that the trial court abused its discretion. The Tenth District determined that
“[a]lthough a trial court must still independently assess the evidence and reach its
own conclusions when reviewing a magistrate’s recommendation, we believe the trial
court’s credibility assessment here was in error.” Id. at ¶ 20. The appellate court
determined that the magistrate “as the true trier of fact, was in the better position to
judge the credibility of the witnesses[,]” and therefore the appellate court “believe[d]
the magistrate’s credibility determinations were more reliable and persuasive.” Id. at
¶ 13.
{¶19} The appellate court in In re X.B. engaged in a detailed review of the
witnesses’ testimony in holding that the trial court abused its discretion in granting
custody to father. Although the appellate court determined that the magistrate’s
credibility determinations were more persuasive based upon the evidence at trial, the
appellate court’s holding does not stand for the proposition that a trial court must
defer to a magistrate’s credibility determination in ruling on objections.
{¶20} While a trial court may defer to a magistrate’s credibility
determination, the trial court, not the magistrate, is “the ultimate trier of fact.” State
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ex rel. Dewine v. Ashworth, 4th Dist. Lawrence No. 11CA16, 2012-Ohio-5632, ¶ 37;
Hurricane Dev., L.L.C. v. Fourtounis, 2017-Ohio-927, 86 N.E.3d 857, ¶ 27 (8th
Dist.). “A magistrate is an arm of the court, not a separate judicial entity with
independent judicial authority and duties.” Ashworth at ¶ 38. Thus, even if a trial
court is limited to reviewing the trial in the form of a transcript, the trial court “must
make its own factual determination by undertaking an independent analysis of the
issues.” DeSantis v. Soller, 70 Ohio App.3d 226, 233, 590 N.E.2d 886 (10th
Dist.1990); see Vice v. Sexton, 4th Dist. Scioto No. 10CA3371, 2011-Ohio-1647, ¶ 16
(A trial court when ruling on objections must conduct a de novo review of the factual
and legal issues and “may not properly defer to the magistrate in the exercise of the
trial court’s de novo review.”). In this case, the juvenile court had a duty to
undertake an independent review of the evidence presented at trial when ruling on
A.S.’s objections with regard to his delinquency adjudication. The record indicates
that the juvenile court undertook an independent review of the evidence as required
by Juv.R. 40.
{¶21} Finally, to the extent that A.S. argues that the juvenile court should
have found M.B.’s testimony not credible, this argument is indistinguishable from
A.S.’s first assignment of error and is without merit.
{¶22} Therefore, the juvenile court did not violate Juv.R. 40 in ruling on
A.S.’s objections. We overrule A.S.’s second assignment of error.
Conclusion
{¶23} In conclusion, we determine that A.S.’s assignments of error appealing
from his juvenile-delinquency adjudication are without merit. We affirm the
judgment of the juvenile court.
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Judgment affirmed.
MOCK, P.J., concurs. BERGERON, J., dissents.
BERGERON, J., dissenting.
{¶24} Integral to our system of appellate review is deference to the ultimate
finder of fact on factual questions. Needless to say, that deference is not complete,
and there are recognized exceptions and caveats. But that deference carries
particular resonance when the finder of fact evaluates the credibility of a witness.
After all, subsequent courts do not have that judge’s vantage point to hear the
inflexions of voice, observe the demeanor, and render a candid assessment of
whether a witness told the truth.
{¶25} I respectfully dissent because the magistrate discounted the credibility
of the key witness and purposefully did not rely on his inculpatory testimony
regarding A.S. The witness’s testimony was riddled with inconsistencies, and he
admitted to lying to the police, so needless to say, he had some credibility problems.
Nevertheless, on review, the juvenile court—without taking any new evidence—
deemed that witness’s testimony “consistent and credible.”
{¶26} Let’s take a quick look at the witness’s (M.B.’s) testimony. Remember,
M.B.’s phone was the one used to summon the pizza-delivery driver, so he sat in the
cross-hairs of the investigation and had every incentive to deflect blame onto others.
M.B. also proved to be a reluctant witness, going to great lengths to avoid saying
anything of consequence in his testimony:
Q. Okay. Who all was with you at the time?
A. (Inaudible.)
11 OHIO FIRST DISTRICT COURT OF APPEALS
Q. I’m sorry?
A. The people that I told you.
Q. Okay. But you have to tell us here now.
A. Oh.
Q. How many people were there when you guys made the phone
call?
A. I didn’t really count them.
***
Q. Do you remember who the other boys were that were there [for
the phone call]?
A. No.
After further prodding, M.B. acknowledges that A.S. had some involvement in
the altercation:
[The Court]. Do you see any of the people who were involved in the
fistfight in court today?
A. Yeah.
Q. Okay. One of the kids in the fistfight, was that [A.S.]?
A. Huh?
Q. [A.S.], was he one of the boys in the fight?
A. Yes.
Q. Did you say “yes”? Okay. Do you see him -- can you point to
him here?
A. I don’t want to point.
12 OHIO FIRST DISTRICT COURT OF APPEALS
But then M.B. repeatedly states that he did not witness A.S. do anything because he
professed not to be paying attention:
Q. That’s [A.S.]. What did he do?
A. I don’t know really, I wasn’t paying attention really-
really.
Q. So you said there was a fight. Did you see what he was doing in
the fight? No? But he was in the fight. Okay.
Q. Okay. At one point did [A.S.] throw a punch?
[Objection to leading question, which was sustained].
Q. Did you ever see [A.S.] do anything?
A. Not really.
[The Court]. [M.B.], you said that [A.S.], the one wearing the blue,
was involved in the fight.
[The Court]. But you didn’t see what he did.
A. Unh-unh.
[The Court]. Well, how do you know if he was involved in the fight,
then, if you didn’t see what he did?
A. I don’t remember that he really did that, that’s what I
said.
[The Court]. You what?
A. I said I don’t remember what he did.
13 OHIO FIRST DISTRICT COURT OF APPEALS
(Emphases added.) After going through this litany and hearing him disavow seeing
anything, the magistrate further presses M.B.: “But you saw him do something,” and
M.B. acknowledges that he did. The magistrate’s follow-up then elicits the lone
inculpatory statement from M.B.
[The Court]. Well, what’d you see him do?
A. Just punch her.
[The Court]. He punched her.
{¶27} The magistrate was unimpressed by M.B.’s testimony. Indeed, if the
magistrate had found him credible, the easiest thing in the world would have been to
say “he testified that the defendant punched the victim and I believe him.” That,
however, is not what the magistrate said, as she went out of her way to emphasize
M.B.’s lack of credibility. At the end of the trial, the magistrate remarked, “While
[M.B.]’s testimony certainly is questionable and the credibility of his testimony at
some parts was questionable [as to the other juvenile, it was corroborated by other
evidence].” As to A.S. specifically, she notes, “I didn’t really consider [M.B.]’s
statement too much * * *.”
{¶28} The magistrate’s written decision echoes the point, as the magistrate
repeatedly noted M.B.’s lack of credibility. The magistrate, consistent with her trial
remarks, found M.B. credible with respect to his testimony about a codefendant
because that testimony lined up with independent evidence. “Although [M.B]’s
testimony was not consistent and at time could be found to be not
credible, his testimony regarding [other juvenile] was credible[,]” and “[w]hile
[M.B.]’s testimony was at times not credible, he testified to exactly what
14 OHIO FIRST DISTRICT COURT OF APPEALS
[other juvenile] admitted to * * *.” (Emphasis added.) Juxtaposing these points, the
magistrate found a portion of the testimony (regarding the codefendant) credible but
not the testimony regarding A.S.
{¶29} Because the magistrate deemed M.B. not credible, she declined to rely
on his testimony in finding A.S. guilty, and instead relied exclusively on the
fingerprint evidence. (“Even without [M.B.’s] testimony, the state proved its case.
[A.S.]’s fingerprints were found on the victim’s car.”). But A.S. successfully
challenged the admissibility of the fingerprint evidence before the juvenile court, and
the state does not question that determination on appeal. With the fingerprint
evidence out of the equation, that leaves only the discredited testimony of M.B. to
prop up the conviction. The juvenile court thus correctly framed the issue that it was
tasked with determining “whether sufficient evidence other than the fingerprint
evidence supports a finding beyond a reasonable doubt that A.S. committed the
delinquent act of robbery.” (Emphasis added.) But I would find that the juvenile
court erred by deeming M.B.’s testimony “consistent and credible” and finding that it
weighed in favor of a delinquent adjudication.
{¶30} Before reviewing that determination, I would start with the parameters
that govern the juvenile court’s review of the magistrate’s decision. First, as with any
case, credibility determinations are primarily the province of the trier of fact. See
Desantis v. Soller, 70 Ohio App.3d 226, 233, 590 N.E.2d 886 (10th Dist.1990) (“The
trial court, like a reviewing court, is limited to reviewing witnesses’ testimony in the
form of a written transcript, and lacks the advantage of physically viewing the
witnesses in order to aid in determining truthfulness.”); In re Adoption of J.L., 1st
Dist. Hamilton Nos. C-180453 and C-180454, 2019-Ohio-366, ¶ 25 (“[I]n weighing
15 OHIO FIRST DISTRICT COURT OF APPEALS
the evidence, we must always be mindful that the magistrate and the probate court
were in the best position to observe the demeanor of the parties and assess
the credibility and accuracy of the testimony.”). Consequently, if “a magistrate
comments on credibility and the trial court does not take additional evidence * * *
‘the judgment of the magistrate on issues of credibility is, absent other evidence, the
last word on the issue for all practical purposes.’ ” Mandelbaum v. Mandelbaum, 2d
Dist. Montgomery No. 21817, 2007-Ohio-6138, ¶ 103, quoting Quick v.
Kwiatkowski, 2d Dist. Montgomery No. 18620, 2001 WL 871406, *4 (Aug. 3, 2001)
(discussing decisions of magistrates in the context of Civ.R. 53(D)).1 In other words,
in situations such as the present one, the magistrate functions as the trier of fact:
[T]he trial court did not view these witnesses in person, but only
reviewed the transcript of the proceedings. The magistrate, as the true
trier of fact, was in the better position to judge the credibility of the
witnesses. The actual trier of fact present during the testimony is
generally in the better position to judge the credibility of witnesses.
In re X.B., 10th Dist. Franklin Nos. 16AP-243 and 16AP-277, 2016-Ohio-5805, ¶ 13.
{¶31} While the juvenile court must undertake an independent review of the
record, it is generally limited in second-guessing credibility determinations unless it
entertains new evidence. And I don’t mean to suggest that a juvenile court could
never question a magistrate’s credibility determination absent new evidence—for
instance, if a magistrate deemed a witness not credible but the testimony comported
with documentary evidence in the record, a juvenile court might well make a
different call taking into consideration the totality of the evidence.
1 “Courts have noted that Civ.R. 53 and Juv.R. 40(D) are analogous.” (Citation omitted.) In re
T.S., 9th Dist. Medina No. 11CA0033-M, 2012-Ohio-858, ¶ 8.
16 OHIO FIRST DISTRICT COURT OF APPEALS
{¶32} But this was a rather simple case, and once we remove the fingerprint
evidence from consideration, the entire conviction hangs on the weight assigned to a
solitary statement of one witness. The juvenile court sought to support its revised
credibility determination by pointing out that, “[i]n his recorded statement to police,
M.B. reported that an individual he referred to as ‘Black Tino’ was the boy that
punched the victim.” While this could be a potential basis to shore up M.B.’s
credibility, the recorded statement is not in the record before us. Therefore, there
was no way for the juvenile court to compare the recorded statement to M.B.’s trial
testimony, at least so far as the record reveals. That leaves the juvenile court’s
conclusion that M.B.’s testimony was “consistent and credible.” As the excerpts
above attest, M.B.’s testimony was anything but consistent (nor does the majority
suggest otherwise). He repeatedly explained that he either did not see or could not
recall any involvement by A.S., and only at the end, after careful prodding by the
magistrate, did he perform a 180 and magically recall that he saw A.S. punch the
victim. It is little wonder that the magistrate declined to find that last statement
credible.
{¶33} The majority opinion cites In re B.Z., 11th Dist. Geauga No. 2016-G-
0089, 2017-Ohio-5638, for the proposition that “ ‘[i]f evidence is susceptible to more
than one construction, reviewing courts must give it the interpretation that is
consistent with the verdict and judgment.’ ” Id. at ¶ 18, quoting Warren v. Simpson,
11th Dist. Trumbull No. 98-T-0183, 2000 WL 286594, *3 (Mar. 17, 2000). The
Warren case, which B.Z. quotes, goes on to explain that this deference is appropriate
because of the trial court’s position to observe the demeanor of witnesses. Warren at
*3. But that really makes my point—the juvenile court never had the opportunity to
17 OHIO FIRST DISTRICT COURT OF APPEALS
observe the demeanor of the critical witness, and it lacked any basis for simply
jettisoning the magistrate’s credibility finding. And for all of the reasons discussed
above, I would find that the juvenile court’s credibility determination contravenes
the record and that, as the majority summarized X.B., “the magistrate’s credibility
determinations were more persuasive based upon the evidence at trial.” See In re
X.B., 10th Dist. Franklin Nos. 16AP-243 and 16AP-277, 2016-Ohio-5805, at ¶ 19.
{¶34} This conviction simply cannot stand on the basis of a statement that
A.S. punched the victim when the witness lacked credibility, and that statement
contradicted what M.B. had recounted (several times) just moments earlier. For
those reasons, I would find that the juvenile court’s determination to the contrary
was against the manifest weight of the evidence and I would accordingly reverse the
judgment below and remand the cause for a new trial.
{¶35} I respectfully dissent.
Please note:
The court has recorded its own entry on the date of the release of this opinion.