[Cite as State v. Washington, 2011-Ohio-3689.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95929
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
BENNIE WASHINGTON
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Common Pleas Court Case No. CR-539398 2
BEFORE: E. Gallagher, J., Blackmon, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: July 28, 2011
ATTORNEY FOR APPELLANT
William L. Summers William L. Summers & Associates Co., L.P.A. Landerbrook Corporate Center II 5910 Landerbrook Dr., Suite 200 Cleveland, Ohio 44124
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor BY: Oscar E. Albores Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶ 1} Bennie Washington appeals from conviction following a bench
trial. Washington argues his two convictions for felonious assault with one-
and three-year firearm specifications are against the manifest weight of the
evidence. For the following reasons, we affirm the decision of the trial court.
{¶ 2} On July 13, 2010, the Cuyahoga County grand jury indicted
Washington on two counts of felonious assault with one- and three-year 3
firearm specifications. Washington elected to try his case to the court and on
September 27, 2010, the trial court conducted the trial. The state of Ohio
presented the testimony of the victim, Francina Williams, Cleveland EMS
employee, Danielle Forkapa, Cleveland Police Officer, Michael Bechtold, and
Cleveland Detective, Paul Jones. Washington presented the testimony of his
then girlfriend, Chermetria Rivers.
{¶ 3} The trial lasted one day and, on September 28, 2010, the trial
court found Washington guilty as charged in the indictment. The court
merged both charges of felonious assault as well as the firearm specifications
for purposes of sentencing. The court then sentenced Washington to three
years on the firearm specifications to run prior to, and consecutive with, a
four-year sentence on the merged charges of felonious assault for a total
prison term of seven years.
{¶ 4} During trial, Francina Williams testified that on the evening of
June 11, 2010, Washington shot her in the back. Williams stated that she is
a drug addict and that she knew Washington because she bought cocaine
from him on multiple occasions. Williams testified that on the night of June
11, 2010, she was walking in the area of East 55th Street. Williams testified
that she observed Washington on a porch of a nearby house. Williams
acknowledged Washington and then cut through a yard. As she walked, 4
Williams heard something that caused her to turn around and when she
turned, she observed Washington behind her. Williams testified that
Washington claimed that she owed him $40 dollars. Williams stated that
she denied owing Washington the money and walked away. Williams then
heard Washington say, “I got something for you bitches, I’m sick and tired of
you.” Williams stated that she turned around and saw Washington pointing
something silver at her that seemed to be glowing and that Washington
attempted to cover the object with his other hand. Williams testified that
she became frightened and ran from the area. However, as she fled, she
heard a “pow” and felt her back start to burn. Williams then realized that
Washington had shot her and she ran toward her apartment building.
Williams testified that she asked her building’s security officer to contact the
police and an ambulance.
{¶ 5} EMS worker Danielle Forkapa received a call to respond to the
scene for a female that had been shot. Ms. Forkapa testified that as she
treated Williams, Williams was coherent and able to identify her shooter.
Ms. Forkapa also confirmed that Williams’s wound was from a gunshot. Ms.
Forkapa testified that she transported Williams to MetroHealth Hospital for
further care.
{¶ 6} Cleveland Police Officer Michael Bechtold and Detective Paul 5
Jones also responded to the scene in connection with the shooting. Both
officers testified that Williams was coherent and that she was able to identify
her assailant. Detective Jones further testified that after learning of
Williams’s identification of Washington as the shooter, he attempted to
contact Washington but was unsuccessful.
{¶ 7} In response, Washington elicited the testimony of his then
girlfriend, Chermetria Rivers. Ms. Rivers testified that she picked up
Washington from the Euclid City jail and transported him straight to her
home in Streetsboro. Ms. Rivers stated that she remained with Washington
the entire night and that he never left the apartment.
{¶ 8} Washington appeals his conviction, raising the following
assignment of error:
{¶ 9} “Appellant’s convictions are against the manifest weight of the
evidence.”
{¶ 10} In evaluating a challenge based on manifest weight of the
evidence, a court sits as the thirteenth juror, and intrudes its judgment into
proceedings that it finds to be fatally flawed through misrepresentation or
misapplication of the evidence by a jury that has “lost its way.” State v.
Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541. As the Ohio
Supreme Court declared: 6
“Weight of the evidence concerns ‘the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.’
“* * * The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.” Id. at 387, 547. (Internal citations omitted.)
{¶ 11} This court is mindful that weight of the evidence and the
credibility of witnesses are primarily for the trier of fact and a reviewing
court must not reverse a verdict where the trier of fact could reasonably
conclude from substantial evidence that the state has proven the offense
beyond a reasonable doubt. State v. DeHass (1967), 10 Ohio St.2d 230, 227
N.E.2d 212, at paragraphs one and two of the syllabus. The goal of the
reviewing court is to determine whether the new trial is mandated. A
reviewing court should only grant a new trial in the “exceptional case in
which the evidence weighs heavily against a conviction.” State v. Lindsey, 87
Ohio St.3d 479, 2000-Ohio-465, 721 N.E.2d 995. (Internal citation omitted.)
{¶ 12} In making this argument, Washington fails to state in any way, 7
how his convictions are against the manifest weight of the evidence.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Washington, 2011-Ohio-3689.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95929
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
BENNIE WASHINGTON
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Common Pleas Court Case No. CR-539398 2
BEFORE: E. Gallagher, J., Blackmon, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: July 28, 2011
ATTORNEY FOR APPELLANT
William L. Summers William L. Summers & Associates Co., L.P.A. Landerbrook Corporate Center II 5910 Landerbrook Dr., Suite 200 Cleveland, Ohio 44124
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor BY: Oscar E. Albores Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶ 1} Bennie Washington appeals from conviction following a bench
trial. Washington argues his two convictions for felonious assault with one-
and three-year firearm specifications are against the manifest weight of the
evidence. For the following reasons, we affirm the decision of the trial court.
{¶ 2} On July 13, 2010, the Cuyahoga County grand jury indicted
Washington on two counts of felonious assault with one- and three-year 3
firearm specifications. Washington elected to try his case to the court and on
September 27, 2010, the trial court conducted the trial. The state of Ohio
presented the testimony of the victim, Francina Williams, Cleveland EMS
employee, Danielle Forkapa, Cleveland Police Officer, Michael Bechtold, and
Cleveland Detective, Paul Jones. Washington presented the testimony of his
then girlfriend, Chermetria Rivers.
{¶ 3} The trial lasted one day and, on September 28, 2010, the trial
court found Washington guilty as charged in the indictment. The court
merged both charges of felonious assault as well as the firearm specifications
for purposes of sentencing. The court then sentenced Washington to three
years on the firearm specifications to run prior to, and consecutive with, a
four-year sentence on the merged charges of felonious assault for a total
prison term of seven years.
{¶ 4} During trial, Francina Williams testified that on the evening of
June 11, 2010, Washington shot her in the back. Williams stated that she is
a drug addict and that she knew Washington because she bought cocaine
from him on multiple occasions. Williams testified that on the night of June
11, 2010, she was walking in the area of East 55th Street. Williams testified
that she observed Washington on a porch of a nearby house. Williams
acknowledged Washington and then cut through a yard. As she walked, 4
Williams heard something that caused her to turn around and when she
turned, she observed Washington behind her. Williams testified that
Washington claimed that she owed him $40 dollars. Williams stated that
she denied owing Washington the money and walked away. Williams then
heard Washington say, “I got something for you bitches, I’m sick and tired of
you.” Williams stated that she turned around and saw Washington pointing
something silver at her that seemed to be glowing and that Washington
attempted to cover the object with his other hand. Williams testified that
she became frightened and ran from the area. However, as she fled, she
heard a “pow” and felt her back start to burn. Williams then realized that
Washington had shot her and she ran toward her apartment building.
Williams testified that she asked her building’s security officer to contact the
police and an ambulance.
{¶ 5} EMS worker Danielle Forkapa received a call to respond to the
scene for a female that had been shot. Ms. Forkapa testified that as she
treated Williams, Williams was coherent and able to identify her shooter.
Ms. Forkapa also confirmed that Williams’s wound was from a gunshot. Ms.
Forkapa testified that she transported Williams to MetroHealth Hospital for
further care.
{¶ 6} Cleveland Police Officer Michael Bechtold and Detective Paul 5
Jones also responded to the scene in connection with the shooting. Both
officers testified that Williams was coherent and that she was able to identify
her assailant. Detective Jones further testified that after learning of
Williams’s identification of Washington as the shooter, he attempted to
contact Washington but was unsuccessful.
{¶ 7} In response, Washington elicited the testimony of his then
girlfriend, Chermetria Rivers. Ms. Rivers testified that she picked up
Washington from the Euclid City jail and transported him straight to her
home in Streetsboro. Ms. Rivers stated that she remained with Washington
the entire night and that he never left the apartment.
{¶ 8} Washington appeals his conviction, raising the following
assignment of error:
{¶ 9} “Appellant’s convictions are against the manifest weight of the
evidence.”
{¶ 10} In evaluating a challenge based on manifest weight of the
evidence, a court sits as the thirteenth juror, and intrudes its judgment into
proceedings that it finds to be fatally flawed through misrepresentation or
misapplication of the evidence by a jury that has “lost its way.” State v.
Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541. As the Ohio
Supreme Court declared: 6
“Weight of the evidence concerns ‘the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.’
“* * * The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.” Id. at 387, 547. (Internal citations omitted.)
{¶ 11} This court is mindful that weight of the evidence and the
credibility of witnesses are primarily for the trier of fact and a reviewing
court must not reverse a verdict where the trier of fact could reasonably
conclude from substantial evidence that the state has proven the offense
beyond a reasonable doubt. State v. DeHass (1967), 10 Ohio St.2d 230, 227
N.E.2d 212, at paragraphs one and two of the syllabus. The goal of the
reviewing court is to determine whether the new trial is mandated. A
reviewing court should only grant a new trial in the “exceptional case in
which the evidence weighs heavily against a conviction.” State v. Lindsey, 87
Ohio St.3d 479, 2000-Ohio-465, 721 N.E.2d 995. (Internal citation omitted.)
{¶ 12} In making this argument, Washington fails to state in any way, 7
how his convictions are against the manifest weight of the evidence.
Nonetheless, in reviewing the entire record, we cannot say that the trial court
lost its way in convicting Washington of two counts of felonious assault with
one- and three-year firearm specifications. Williams testified that she knew
Washington as she used to purchase drugs from him. Williams testified that
she observed Washington raise a silver object towards her and, when she
turned and ran, she heard a “pow” and her back started burning. Williams
stated that there were no other people around that evening. EMS confirmed
that Williams had been shot and Williams identified Washington as the
shooter to EMS and police at the scene. Moreover, Williams never wavered
in her identification of Washington as the shooter.
{¶ 13} Although Washington failed to make any such argument, he
might have claimed that his version of events should have been believed.
While Washington did present the testimony of his then girlfriend who stated
that he was in Streetsboro the entire evening of June 11, 2010, the trier of
fact is in the best position to weigh the evidence and the credibility of
witnesses. As the reviewing court, we find that the trier of fact could
reasonably conclude from the substantial evidence presented by the state,
that the state has proven the offenses beyond a reasonable doubt.
Accordingly, we cannot find that the trier of fact lost its way and created such 8
a manifest miscarriage of justice that the convictions must be reversed and a
new trial ordered.
{¶ 14} Based on the foregoing, Washington’s sole assignment of error is
overruled.
{¶ 15} The judgment of the trial court is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the lower court to
carry this judgment into execution. The defendant’s conviction having been affirmed, any
bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
PATRICIA A. BLACKMON, P.J., and KENNETH A. ROCCO, J., CONCUR