[Cite as State v. Rudd,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 102754

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

TERRENCE RUDD, JR.

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART; REVERSED IN PART; AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-583175-A

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

RELEASED AND JOURNALIZED: January 14, 2016 ATTORNEY FOR APPELLANT

Britta M. Barthol P.O. Box 218 Northfield, Ohio 44067

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Norman Schroth Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 FRANK D. CELEBREZZE, JR., P.J.:

{¶1} Defendant-appellant, Terrence Rudd Jr., brings this appeal challenging his

convictions for murder and felonious assault, and the trial court’s imposition of court

costs. Specifically, appellant argues that: (1) the evidence was insufficient to support his

convictions, (2) his convictions are against the manifest weight of the evidence, and (3) the

trial court erred by failing to advise him of court costs at the time of sentencing. After a

thorough review of the record and law, this court affirms in part, reverses in part, and

remands for further proceedings.

I. Factual and Procedural History

{¶2} On October 29, 2013, Demarte Allen was shot and killed following an

argument and physical encounter near East 71st Street and Chambers Avenue in

Cleveland’s Slavic Village.

{¶3} The Cuyahoga County Grand Jury returned a multiple count indictment

charging Terrence Rudd, Jr. (“appellant”) with: (1) aggravated murder, R.C. 2903.01(A),

(2) murder, R.C. 2903.02(B), (3) felonious assault, R.C. 2903.11(A)(2), and (4) felonious

assault, R.C. 2903.11(A)(1). All four counts contained both one- and three-year firearm

specifications. Appellant pled not guilty to the indictment.

{¶4} The parties were unable to reach a plea agreement, and appellant elected to

proceed to trial. A jury trial commenced on January 6, 2015.

A. Trial Testimony {¶5} The jury heard eyewitness testimony from the following individuals: (1) Mark

Allen, (2) Demarko Allen, (3) Antoine Rox (“Rox”), (4) Stanley Peacock (“Peacock”),

(5) Melissa Adams, and (6) Launer Norman.

{¶6} First, Mark Allen testified that he and his brothers walked to the Sunoco gas

station on Fleet Avenue, between East 70th and East 71st Street, on the night of October

29, 2013. Mark testified that his brother Demarko bumped into either appellant or

Peacock, fighting words were exchanged between the groups, and he and his brothers

followed appellant and Peacock. Mark testified that appellant ran away from him and his

brothers. Mark testified that his brother Demarte walked ahead of him and Demarko to

confront Peacock. Mark testified that a man standing on a nearby porch warned him that

there was a police car at the corner of Fleet Avenue and East 71st Street.

{¶7} Mark testified that he heard one gunshot, saw his brother Demarte lying on the

ground, and saw a “short dude with the glasses” standing over his brother. Furthermore,

Mark testified that he moved closer to the “person with the glasses” and observed a black

gun in his hand, pointed toward the ground. Mark testified that the shooter was carrying a

black gun, “probably say a 9 mm or a .40.” Mark testified that Peacock told appellant to

“get up out of there, to run.” Mark testified that the person wearing glasses ran through

the field toward Chambers Avenue. Mark testified that he ran to Demarte, found him

unresponsive, and began fighting Peacock out of rage.

{¶8} Mark identified appellant from a photo array as the person with a gun on the

night of the shooting, but told police he “wasn’t for sure.” Mark identified appellant in court as the person wearing glasses and holding a weapon that night. Mark testified that

when police asked if he could identify the person who shot his brother, he told the police

“I don’t remember what he looked like, all I know he had glasses.” Mark explained that

he told the police that he could not remember every detail about the shooter, but that “he

was a short dude with glasses, nappy hair.”

{¶9} Second, Demarko Allen testified that he went to the Sunoco gas station on

Fleet Avenue, between East 70th and East 71st Street, with his brothers Demarte and Mark

on the evening of October 29, 2013. Demarko testified that he and his brothers left the

gas station and crossed paths with appellant and his friend, Peacock. Demarko testified

that he bumped into appellant and told him to watch where he was going. Demarko

testified that he and appellant exchanged “fighting words.” Demarko testified that he and

his brothers followed appellant and Peacock through the Cleveland Public Library’s

parking lot and through the parking lot of a flower shop at East 71st Street and Broadway

Avenue. Demarko testified that he caught up with appellant at East 71st Street and

attempted to punch him. Demarko testified that appellant ducked and ran toward

Chambers Avenue with Peacock. Demarko testified that a man standing on his porch on

East 71st Street told him and his brothers “guys around here, they don’t fight, they shoot.”

Demarko testified that he and his brothers did not pursue appellant and Peacock, and

continued walking. Demarko testified that appellant and Peacock returned, and that his

brother Demarte ran toward them and put his fists up. Demarko testified that Demarte

and Peacock were squaring up to fight when appellant raised a black pistol and fired a single shot at Demarte.

{¶10} Demarko testified that Demarte fell to the sidewalk and appellant “took off”

down Chambers Avenue. Demarko testified that Peacock did not flee the scene.

Demarko testified that he ran toward his brother Demarte to check on his condition and

Mark ran towards Peacock to fight him. Demarko testified that he joined the fight

between Mark and Peacock after he realized Demarte was no longer breathing.

{¶11} Demarko identified appellant from a photo array as the person who shot his

brother. Demarko identified the appellant in the courtroom as both the person he

identified in the photo array and the person who shot his brother on October 29, 2013.

Demarko testified that appellant was wearing prescription glasses on the night of the

shooting, and that he neither saw Peacock wearing glasses nor holding a weapon on the

night of the shooting.

{¶12} Third, the state presented the eyewitness testimony of Antoine Rox.

Although Rox did not identify the appellant as the shooter, he provided officers with a

detailed description of the shooter.

{¶13} Rox testified that he was outside, in front of his house, on the evening of

October 29, 2013. Rox testified that he observed three young males, one wearing red

jogging pants, walking toward his house on the sidewalk. Rox testified that another

group of three males ran through the field next to his house and exchanged words with the

group of males on the sidewalk. Rox testified that the male wearing red jogging pants

threw off his jacket and approached the group of males in the field “like he was ready to fight.”

{¶14} Rox testified that “[t]he individual in the black jacket and blue jeans pulled

out a handgun and shot [the male in the red pants].” Rox testified that as the male pulled

out the gun, he said “you think this is a game?” Rox testified that he was standing on his

porch and saw the shooter from a “side view.” Rox testified that the shooter was

approximately 5' 5" or 5' 6" and “between sixteen and eighteen. Fairly young.”

Furthermore, Rox testified that the male “shot one time and retreated.”

{¶15} Rox testified that the male who shot the victim wore glasses. Rox testified

that the male with the handgun was the only person wearing glasses, and that he did not

see anybody else with a weapon. Rox testified that the male’s gun was a handgun, and

that it “looks like a black automatic to me * * * maybe like .380 or 9 mm.” Rox testified

that after firing the shot, the male “paused for a second. Then he turn around and ran.”

{¶16} Rox testified that after the shooter ran, there were two groups of males in the

field: (1) the two males who were with the shooter, and (2) the three males who had been

on the sidewalk, including one who was wearing red pants. Rox testified that of the three

males from the sidewalk, one of the males had been shot and was on the ground, another

male was holding the male who had just been shot and said “you shot my brother,” and the

third male was “tussling” with the two males who were with the shooter. On re-direct

examination, Rox testified that the male said “he shot my brother,” rather than “you shot

my brother.” Rox testified that the shooter was gone when the male told the police “he

shot my brother.” Rox testified that the police arrived on the scene less than a minute after the shot was fired. Rox testified that the police subdued everybody in the field, and

that the person with the glasses who shot the gun was not subdued because he was gone.

Rox testified that the two males who were with the shooter had not left the field, and were

subdued by the police. Rox testified that the three males, including the male with the red

pants, had not left the field, and were subdued by the police. Rox testified that he gave an

oral statement to Detective Sowa on the night of the shooting, and that he made a written

statement to the police in June of 2014.

{¶17} Fourth, appellant’s friend Stanley Peacock testified as a court’s witness.

Peacock testified that he ran into appellant at East 69th Street and Fleet Avenue on his way

to the Sunoco gas station on October 29, 2013. Peacock testified that he and appellant

bumped into the Allen brothers — who were strangers — on the sidewalk outside of the

Sunoco. Peacock testified that one of the brothers exchanged fighting words with

appellant. Peacock testified that he and appellant continued walking back towards

Broadway Avenue, crossing East 71st Street, on the way to his sister’s house. Peacock

testified that the Allen brothers followed him and appellant. Peacock testified that he was

willing to fight the brothers to protect appellant, who he considered to be a good friend.

Peacock testified that appellant began running down Chambers Avenue toward East 69th

Street. Peacock testified that he did not run with appellant, and turned to fight the Allen

brothers. Peacock testified that he began fighting Demarte Allen and heard a gunshot

coming from down Chambers Avenue. Peacock testified that neither he nor the Allen

brothers had guns. Peacock testified that Demarte fell to the sidewalk, one of the other Allen brothers yelled “you all killed my brother,” and both Demarko and Mark Allen

began to fight him.

{¶18} Peacock testified that neither he nor any of the Allen brothers were wearing

glasses on October 29, 2013. Furthermore, Peacock testified that appellant was wearing

“[r]egular glasses, like clear glasses” on the night of the shooting.

{¶19} On the night of the shooting, Peacock told police that “T-Man” was the

shooter, and identified a picture of appellant as “T-Man.” However, Peacock testified

that his statement to the police on the night of the shooting was not truthful, and that he

lied to the police out of fear of going to jail. Peacock testified that neither he nor any of

the Allen brothers were wearing glasses on October 29, 2013. Furthermore, Peacock

testified that appellant was wearing “[r]egular glasses, like clear glasses” on the night of

the shooting.

{¶20} Fifth, Peacock’s sister Melissa Adams testified as a court’s witness. Adams

testified that she was standing outside sometime around dusk when she saw appellant run

past her. Adams testified that Peacock was walking down Chambers Avenue and some

people were following him. Adams testified that she asked Peacock what was going on,

and he told her he thought he was going to be jumped. In her statement to the police,

Adams told detectives that appellant had a gun, pointed the gun at Demarte Allen, and

fired. Adams testified that her statement to the police on the night of the shooting was

false.

{¶21} Sixth, Melissa Adams’s friend, Launer Norman testified as a court’s witness. Norman testified that she was waiting to be picked up outside of Adams’s house

on East 69th Street and Chambers Avenue on the evening of October 29, 2013. Norman

testified that she saw appellant run by her, then heard a gunshot and Peacock’s voice as he

was running toward her on Chambers Avenue.

{¶22} In her statement to police on the night of the shooting, Norman claimed that

she saw appellant holding a black handgun when he ran past her outside of Adams’s

house. However, Norman recanted this portion of her statement during her trial

testimony.

B. State’s Other Evidence

{¶23} Mark and Demarko Allen both identified appellant as the shooter on the

night of the incident.

{¶24} Detective Katherine Cruz testified that officers conducted photo arrays

during the interviews of the Allen brothers on the night of the incident. Detective Cruz

testified that Officer Marvin Young administered Mark Allen’s photo array and Detective

James Raynard administered Demarko Allen’s photo array.

{¶25} Officer Young testified that after showing Mark Allen the photo array, Mark

identified appellant as the individual who committed the crime.

{¶26} Detective Raynard testified that after showing Demarko Allen the photo

array, Demarko identified appellant and said “he shot my brother.”

C. Verdict and Sentence

{¶27} The trial court overruled the defense’s Crim.R. 29 motions for acquittal — both at the close of the state’s case and at the close of all the evidence. The jury found

appellant guilty of Counts 2, 3, and 4, and not guilty of Count 1.

{¶28} The trial court merged all counts for the purposes of sentencing and the state

elected to proceed with sentencing on Count 2. The trial court sentenced appellant to a

prison term of 15 years to life on Count 2, and an additional three years for the firearm

specification. The trial court ordered appellant’s sentence to be served at the Lorain

Correctional Institution. The trial court credited appellant with 460 days of time served.

{¶29} Appellant filed the instant appeal assigning three errors for review:

I. The evidence was insufficient as a matter of law to support a finding beyond a reasonable doubt that the appellant was guilty of murder and felonious assault.

II. Appellant’s convictions for murder and felonious assault were against the manifest weight of the evidence.

III. The trial court erred and deprived appellant of his property without due process of law and his rights under the Fifth Amendment of the United States Constitution when it imposed court costs outside his presence.

II. Law and Analysis

A. Sufficiency

{¶30} Appellant first argues his murder and felonious assault convictions are not

supported by sufficient evidence and, therefore, the trial court erred in denying his Crim.R.

29 motions for acquittal.

{¶31} A Crim.R. 29(A) motion for acquittal tests the sufficiency of the evidence.

State v. Hill, 8th Dist. Cuyahoga No. 98366,

. Crim.R. 29 requires the

trial court to issue a judgment of acquittal where the evidence presented by the state is insufficient to sustain a conviction for an offense. State v. Taylor, 8th Dist. Cuyahoga

No. 100315,

. This court reviews the denial of such a motion using

the same standard employed in a sufficiency claim. Id. at ¶ 21-23, citing Cleveland v.

Pate, 8th Dist. Cuyahoga No. 99321,

, citing State v. Mitchell, 8th Dist.

Cuyahoga No. 95095,

.

{¶32} The state has the burden of proving each element of a charged offense. A

claim that a conviction is unsupported by sufficient evidence tests whether the state has

met its burden of production at trial. State v. Hunter, 8th Dist. Cuyahoga No. 86048,

, citing State v. Thompkins,

,

(1997). This court must determine “‘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. Leonard,

,

,

, ¶ 77, quoting State v. Jenks,

,

(1991), paragraph two of the syllabus. In a sufficiency inquiry, an

appellate court does not assess whether the state’s evidence is to be believed but whether,

if believed, the evidence admitted at trial supported the conviction. State v. Starks, 8th

Dist. Cuyahoga No. 91682,

, ¶ 25.

{¶33} Appellant was convicted of murder in violation of R.C. 2903.02(B) and

felonious assault in violation of R.C. 2903.11(A)(1) and (A)(2).

{¶34} R.C. 2903.02(B), murder, provides: No person shall cause the death of another as a proximate result of the

offender’s committing or attempting to commit an offense of violence that is

a felony of the first or second degree and that is not a violation of section

2903.03 or 2903.04 of the Revised Code.

{¶35} R.C. 2903.11(A), felonious assault, provides:

No person shall knowingly do either of the following:

(1) Cause serious physical harm to another or to another’s unborn;

(2) Cause or attempt to cause physical harm to another or to another’s unborn by means of a deadly weapon or dangerous ordnance.

{¶36} Appellant first argues that the state’s evidence showing that he was the

shooter was weak, conflicting, and unreliable. We disagree.

{¶37} In State v. Bryson, this court held that eyewitness identification testimony

alone is sufficient to support a conviction — even where discrepancies exist — so long as

a reasonable juror could find the eyewitness testimony to be credible. State v. Bryson, 8th

Dist. Cuyahoga No. 98298,

,  64; see State v. Jordan, 10th Dist. Franklin

No. 04AP-827,

.

{¶38} Initially, we note that appellant’s insinuation about the credibility of the

eyewitnesses does not provide a basis for a challenge to the sufficiency of the evidence.

See Bryson at  62. The question is not whether the reviewing court should believe the

evidence, but whether the evidence, if believed, is adequate to “convince the average mind

of the defendant’s guilt beyond a reasonable doubt.” Jenks,

,

. {¶39} There was a lack of physical evidence tying appellant to the crime and, thus,

the state’s case rested on: (1) the Allen brothers’ identification of appellant as the

shooter, (2) eyewitness testimony, and (3) circumstantial evidence.

1. Identification of Appellant

{¶40} Mark and Demarko Allen both identified appellant as the shooter.

{¶41} In State v. Johnson, 8th Dist. Cuyahoga No. 99822,

, this

court explained a blind administration of a photo array:

R.C. 2933.83 governs eyewitness identification procedures in lineups. Subsection (B)(1) of the statute provides in part that “[u]nless impracticable, a blind or blinded administrator shall conduct the live lineup or photo lineup.” A blind administrator “means the administrator does not know the identity of the suspect.” R.C. 2933.83(A)(2). “If a blind administrator is conducting the live lineup or the photo lineup, the administrator shall inform the eyewitness that the suspect may or may not be in the lineup and that the administrator does not know who the suspect is.” R.C. 2933.83(B)(5).

Id. at ¶ 42.

{¶42} Detective Katherine Cruz testified that she interviewed Demarko Allen and

Detective Sowa interviewed Mark Allen on the night of the shooting. Detective Cruz

testified that officers conducted photo arrays during the interviews of the Allen brothers.

Detective Cruz testified that Officer Marvin Young administered Mark Allen’s photo array

and Detective James Raynard administered Demarko Allen’s photo array. Detective Cruz

explained the procedure for photo arrays:

in order to protect the integrity of the photo arrays, it’s usually given to a law enforcement person, whether it’s a detective or uniformed police officer. Anyone that can assist us who is not familiar with the suspect, the suspect’s name, the suspect’s identity that could in no way influence the photo lineup process.

{¶43} Officer Young testified that he did not know the identity of the shooter at the

time he administered the photo array. Officer Young testified that he was alone in the

room with Mark Allen when he administered the photo array. Officer Young testified

that he read the blind administrator verbal instructions to Mark Allen before showing him

the photo array. The instructions were as follows:

I am going to show you a group of photographs. These photographs may or may not contain a picture of the person who committed the crime now being investigated. I do not know the suspect — I don’t know who the suspect is. Keep in mind that any hairstyles, beards and mustaches can easily be changed. Also photographs may not always depict the true complexion of a person. It may be even lighter, darker than shown in a photo. Pay no attention to any markings or number that may appear on the photo or any differences in the type or style shown on the photographs.

When you look at all the photos, tell me whether or not you see any person you recognize. Do not tell other witnesses that you have or have not identified anyone.

{¶44} Officer Young testified that he read these instructions to Mark Allen

verbatim. Officer Young testified that after showing Mark Allen the photo array, Mark

identified appellant as the individual who committed the crime. Officer Young testified

that it took “about three minutes” to administer Mark Allen’s photo array.

{¶45} Detective Raynard testified that a “blind administrator” means that the office

administering the photo array has no knowledge as to the persons involved. Detective

Raynard testified that he did not have any information regarding the suspect when he

administered the photo array. Detective Raynard testified that he was alone in the room with Demarko Allen when he administered the photo array. Detective Raynard testified

that he read the blind administrator verbal instructions verbatim to Demarko Allen before

administering the photo array.

{¶46} Detective Raynard testified that after showing Demarko Allen the photo

array, Demarko identified appellant and said, “he shot my brother.” When asked how

long it took Demarko Allen to make an identification from the photo array, Detective

Raynard testified, “it wasn’t very long.”

{¶47} After reviewing the record, we find that the officer’s presentations of the

photo arrays to the Allen brothers were neither overly suggestive nor biased. Thus, the

Allen brothers’ identification of appellant as the shooter — in and of itself — was

sufficient to support the convictions.

2. Eyewitness Testimony

{¶48} The eyewitness testimony supported the Allen brothers’ identification of

appellant as the shooter.

{¶49} First, Mark Allen testified that he identified appellant from the photo array as

the person with a gun on the night of the shooting, but told police he “wasn’t for sure.”

Mark identified appellant in court as the person wearing glasses and holding a weapon on

the night of the shooting. Mark testified that he heard a gunshot, looked around, saw his

brother laying on the ground, and saw a “short dude with the glasses” standing over his

brother. Furthermore, Mark testified that he moved closer to the “person with the

glasses” and observed a gun in his hand. Mark testified that the shooter was carrying a black gun, “probably say a 9 mm or a .40.” Mark testified that after the shooting, the

person wearing glasses ran through the field toward Chambers Avenue. When asked if he

could identify the person who shot his brother, Mark testified that he told the police “I

don’t remember what he looked like, all I know he had glasses.” Mark explained that he

told the police that he could not remember every detail about the shooter, but that “he was

a short dude with glasses, nappy hair.”

{¶50} Second, Demarko Allen testified that he identified appellant from the photo

array as the person who shot his brother. Demarko testified that his brother Demarte and

Peacock were squaring up to fight when appellant raised a black pistol and shot his

brother. Demarko testified that appellant fired one shot and then “took off” down

Chambers Avenue. Demarko identified the appellant in the courtroom as both the person

he identified in the photo array and the person who shot his brother on October 29, 2013.

Demarko testified that appellant was wearing prescription glasses on the night of the

shooting, and that he neither saw Peacock wearing glasses nor holding a weapon on the

night of the shooting.

{¶51} Third, in addition to the Allen brothers’ identifications of appellant, the state

presented the eyewitness testimony of Rox. Although Rox did not identify the appellant

as the shooter, he provided officers with a detailed description of the shooter.

{¶52} Rox testified that an “individual in the black jacket and blue jeans pulled out

a handgun and shot [the victim].” Furthermore, Rox testified that the male “shot one time

and retreated.” Rox testified that he was standing on his porch and saw the shooter from a “side view.” Rox testified that the shooter was approximately 5' 5" or 5' 6" and

“between 16 and 18. Fairly young.”

{¶53} Rox testified that the male who shot the victim was wearing black-framed

glasses. Rox testified that the male with the handgun was the only person wearing

glasses, and that he did not see anybody else with a weapon. Rox testified that the male’s

gun was a handgun, and that it “looks like a black automatic to me * * * maybe like .380

or 9 mm.” Rox testified that after firing the shot, the male “paused for a second. Then

he turn around and ran.”

{¶54} Rox testified that the police arrived on the scene less than a minute after the

shot was fired. Rox testified that the police subdued everybody in the field, and that the

person with the glasses who shot the gun was not subdued because he was gone. Rox

testified that the two males who were with the shooter had not left the field, and were

subdued by the police. Rox testified that the three males, including the male with the red

pants, had not left the field, and were subdued by the police.

{¶55} Fourth, Peacock testified that neither he nor any of the Allen brothers were

wearing glasses on October 29, 2013. Furthermore, Peacock testified that appellant was

wearing “[r]egular glasses, like clear glasses” on the night of the shooting.

{¶56} Taken together, the Allen brothers’ identification of appellant as the shooter

and the testimony of the Allen brothers, Rox, and Peacock, if believed, was sufficient to

establish all the essential elements of the offenses with which appellant was charged.

Accordingly, viewing the evidence in a light most favorable to the state, a rational jury could have determined beyond a reasonable doubt that appellant was guilty of murder and

felonious assault.

3. Circumstantial Evidence

{¶57} The Ohio Supreme Court “has ‘long held that circumstantial evidence is

sufficient to sustain a conviction if that evidence would convince the average mind of the

defendant’s guilt beyond a reasonable doubt.”’ State v. Cassano, 8th Dist. Cuyahoga No.

97228,

, quoting State v. Heinish,

,

(1990). The question is whether the state presented sufficient evidence that,

if believed, would support the jury’s convictions of murder and felonious assault beyond a

reasonable doubt.

{¶58} The state’s theory of the case was that: (1) a verbal argument took place

between the Allen brothers and appellant and Peacock; (2) the argument escalated, and the

Allen brothers followed appellant and Peacock to an empty lot on East 71st Street and

Chambers Avenue; (3) appellant left the lot and returned with a gun; (4) appellant fired a

single shot, killing Demarte Allen; and (5) appellant fled down Chambers Avenue toward

East 69th Street. The state presented evidence, if believed, that would support that theory.

Therefore, the evidence was sufficient to support the conviction.

{¶59} The state presented the testimony of Officer Robert Alford, a first responder

to the scene of the murder. Officer Alford testified that officers detained and searched

Demarko Allen, Mark Allen, Peacock, Melissa Adams, and Launer Norman on the night

of the shooting. Officer Alford testified that police did not find any weapons during the searches. Thus, an inference could be made that after shooting Demarte Allen, appellant

fled the scene with the murder weapon and evaded the officers responding to the scene.

{¶60} Viewing the evidence in a light most favorable to the state, a rational jury

could have determined beyond a reasonable doubt that appellant was guilty of murder and

felonious assault. In light of the above, appellant’s first assignment of error is overruled.

B. Manifest Weight

{¶61} In contrast to a challenge based on sufficiency of the evidence, a manifest

weight challenge attacks the credibility of the evidence presented and questions whether

the state met its burden of persuasion rather than production. State v. Whitsett, 8th Dist.

Cuyahoga No. 101182,

, citing Thompkins,

,

; State v. Bowden, 8th Dist. Cuyahoga No. 92266,

, ¶ 13.

When considering a claim that a conviction is against the manifest weight of the evidence,

this court sits as a “thirteenth juror” and may disagree “with the factfinder’s resolution of

conflicting testimony.”

. The weight-of-the-evidence standard

“addresses the evidence’s effect of inducing belief.” State v. Wilson,

,

,

, ¶ 25, citing

.

{¶62} This court reviews the entire record, weighs the evidence and all reasonable

inferences, considers the witnesses’ credibility and determines 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.

, citing State v. Martin,

,

(1st Dist. 1983). In conducting such a review, this court remains mindful that the credibility of

the witnesses is primarily for the trier of fact to assess. State v. Bradley, 8th Dist.

Cuyahoga No. 97333,

, citing State v. DeHass,

,

(1967), paragraph one of the syllabus. The trier of fact is in the best

position to make credibility determinations because this court cannot view the demeanor of

a witness while testifying. Therefore, the trier of fact is in the best position to determine

if the proffered testimony is credible. State v. Holloway, 8th Dist. Cuyahoga No. 101289,

, ¶ 42, citing State v. Kurtz, 8th Dist. Cuyahoga No. 99103,

. Reversal on manifest weight grounds is reserved for the

“‘exceptional case in which the evidence weighs heavily against the conviction.’”

, quoting

.

{¶63} Appellant argues that his convictions are against the manifest weight of the

evidence because: (1) there was no physical evidence linking him to the crime at trial, and

(2) the testimony of the witnesses lacked credibility. Furthermore, appellant argues that

based on the evidence, it is more likely that Peacock was the shooter.

1. Inconsistent Testimony

{¶64} In support of his manifest weight challenge, appellant highlights several

discrepancies between the testimony of the eyewitnesses and inconsistencies between the

eyewitness’ trial testimony and statements made to the police following the incident.

Appellant argues that there are “significant inconsistencies” in the eyewitness’ testimony

and that the eyewitness’ testimony is neither credible nor reliable. {¶65} Appellant identifies the following inconsistencies between Demarko Allen’s

trial testimony and the statement he gave to police on the night of the shooting: (1) he

told police that appellant and Peacock were following his brothers and him, but he testified

that he and his brothers followed appellant and Peacock; and (2) in his written statement,

he indicated that appellant said “wait right here,” but he testified that appellant took off

running without saying anything.

{¶66} Appellant argues that Mark Allen’s criminal history casts doubt on the

veracity of his testimony. Furthermore, appellant identifies the following inconsistencies

between Mark and Demarko’s testimony: (1) Mark testified that Peacock bumped into

Demarko, but Demarko testified that appellant bumped into him; (2) Mark testified that

appellant remained silent, but Demarko testified that appellant told him to “wait right

here”; (3) Mark testified that he did not see the shooting, but told the police that he saw the

shooter pull out a gun; (4) Mark told police that he saw the shooter pull out a gun, but

Demarko testified that appellant was holding a gun when he approached Demarte; and (5)

Mark testified that his statement to police that he saw the shooter pull out a gun was a lie.

{¶67} Appellant identifies the following inconsistencies between the testimony of

the Allen brothers and Rox: (1) Demarko testified that Rox told him “guys around here,

they don’t fight, they shoot,” but Rox testified that he did not say this to the Allen brothers;

(2) Rox testified that the Allen brothers told him “niggas trying to start some shit” and he

told them “just go ahead and live your lives, don’t worry about it”; (3) Mark testified that

Rox told the Allen brothers to “leave that alone”; (4) Mark testified that Rox told him that the police were at the corner of East 71st Street and Fleet Avenue, but Rox testified that he

did not tell anyone that the police were down the street; and (5) Rox testified that the

shooter pulled out a gun from his waistband, but Demarko testified that appellant was

holding a gun when he approached Demarte.

{¶68} Appellant argues that Peacock is not a credible witness, insinuating that his

testimony was self-serving and that “he simply was accusing someone else of a crime that

he may have committed.” Appellant identifies the following inconsistencies with

Peacock’s testimony: (1) Peacock testified that his statement to police on the night of the

incident was not truthful; (2) Peacock identified appellant as the shooter in his statement to

the police, but Officer Alford testified that both Demarko Allen and the crowd at the scene

of the shooting referred to Peacock as the shooter; and (3) Peacock identified appellant as

the shooter, but Peacock had gunshot residue on both of his hands on the night of the

shooting.

{¶69} In challenging Peacock’s credibility, appellant highlights Officer Alford’s

testimony. Officer Alford testified that he arrived at the scene and Demarko Allen

approached his car saying something to the effect of “[m]y brother got shot.”

Furthermore, Officer Alford testified that Demarko was yelling to another individual in the

area “something to the effect of, ‘he shot my brother. He shot my brother.’” Officer

Alford testified that Demarko Allen was referring to Peacock as the person who shot his

brother. Officer Alford testified that he overheard people in the crowd saying “he shot

him,” “he has a gun,” and “he killed that guy.” Officer Alford testified that the only two people in the field when he overheard these statements from the crowd were Demarko

Allen and Peacock.

{¶70} Appellant argues that Melissa Adams is not a credible witness because

Peacock — who was involved in the incident — is her brother. Appellant identifies the

following inconsistencies with Ms. Adams’s testimony: (1) she told police that she did

not see the shooting, but later gave a statement identifying appellant as the shooter; (2) she

testified that Detective Cruz wanted her to identify T-man as the shooter; and (3) she

testified that the statement she gave to police on the night of the incident was a lie.

{¶71} Appellant argues that Launer Norman is not a credible witness because she is

friends with Melissa Adams and “has known Peacock since he was a young boy.”

Appellant identifies the following inconsistencies with Ms. Norman’s testimony: (1) she

told officers at the scene that she did not see the shooting, but later gave a statement to the

police stating that she saw appellant run past her with a gun; and (2) she testified that she

lied to the police, and told them what they wanted to hear, so she could go home to her

daughter.

{¶72} As detailed above, there are a number of inconsistencies among the

witnesses’ testimony in this case. However, a conviction is not against the manifest

weight of the evidence solely because the jury heard inconsistent or contradictory

testimony. State v. Wade, 8th Dist. Cuyahoga No. 90029,

, citing

State v. Asberry, 10th Dist. Franklin No. 04AP-1113,

; see also State

v. Mann, 10th Dist. Franklin No. 10AP-1131,

, ¶ 37 (“‘While the jury 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,

, *7 (May 28, 1996). The decision

whether, and to what extent, to believe the testimony of a particular witness is “within the

peculiar competence of the factfinder, who has seen and heard the witness.” State v.

Johnson, 8th Dist. Cuyahoga No. 99822,

.

{¶73} “‘Even where discrepancies exist, eyewitness identification testimony alone

is sufficient to support a conviction so long as a reasonable juror could find the eyewitness

testimony to be credible.”’ State v. Robinson, 8th Dist. Cuyahoga No. 100126,

, quoting Johnson at ¶ 52; State v. Jordan, 10th Dist. Franklin No.

04AP-827,

. “‘The reliability of properly admitted eyewitness

identification, like the credibility of the other parts of the prosecution’s case is a matter for

the jury.”’ State v. Roper, 9th Dist. Summit No. 20836,

, ¶ 55, quoting

Foster v. California,

,

,

(1969).

{¶74} This case came down to the credibility of the eyewitnesses. As detailed

above, the jury was presented with reasons — such as inconsistent statements, prior

convictions, or alleged bias — to question the credibility of Demarko Allen, Mark Allen,

Rox, Peacock, Melissa Adams, and Launer Norman. However, it was within the jury’s

province to evaluate the witnesses’ credibility in light of these issues. Furthermore, the

jury was also given reasons to believe the eyewitness’ testimony. {¶75} First, the Allen brothers consistently described the shooter as a male wearing

dark clothing and black glasses. These descriptions are corroborated by Rox’s testimony.

Second, the Allen brothers identified appellant as the shooter from photo arrays.

Detective Cruz, Detective Raynard, and Officer Young testified that the photo arrays were

administered “blindly” to prevent the photo array from being unduly suggestive or biased.

Third, all of the witnesses who heard the gunshot testified that only a single shot was fired.

This testimony was corroborated by both the single-spent shell casing recovered at the

scene and the single bullet recovered from Demarte’s body. Fourth, the eyewitnesses to

the shooting testified that the shooter was wearing eyeglasses at the time the shooting took

place. Fifth, all of the witnesses testified that no weapons were recovered from anyone at

the scene where the shooting took place.

{¶76} Based on this evidence, the jury reasonably could have concluded that: (1)

the Allen brothers’ identification of appellant as the shooter was credible and reliable, (2)

the police did not recover a weapon at the scene of the shooting because appellant fled the

scene with the murder weapon and evaded the responding police officers, and (3) the

“(he/you) shot (my brother/him)” statements made by Demarko Allen and the people in the

crowd referred to appellant, who was no longer present at the scene, rather than Peacock.

2. Physical Evidence

{¶77} Appellant argues that his convictions were against the manifest weight of the

evidence because there was no physical evidence linking him to the crime.

{¶78} Lisa Przepyszny, a forensic scientist in the trace evidence department of the Cuyahoga County Medical Examiner’s Office, testified that she collected samples from

Demarte Allen, Mark Allen, Demarko Allen, and Peacock to test for gunshot residue.

{¶79} Przepyszny testified that she observed one particle containing lead and

antimony, indicative of gunshot residue, on Peacock’s right hand. Przepyszny testified

that she observed the following on Peacock’s left hand:

I found one particle of lead, barium and antimony, so one particle characteristic of gunshot residue. And I found four particles indicative of gunshot residue. Three of those particles contained lead and antimony. And one of those particles contained lead and barium.

{¶80} Przepyszny testified that samples collected from the hands of Demarte Allen,

Demarko Allen, and Mark Allen were also indicative of gunshot residue.

{¶81} Przepyszny testified that there are “three essential ways” that gunshot residue

can get on a person’s hands: (1) firing a weapon, (2) being in close proximity to a fired

weapon, or (3) handling an object that has gunshot residue on it. Furthermore,

Przepyszny testified that she cannot determine from gunshot residue tests whether an

individual fired a weapon or was just in close proximity to a weapon that was fired.

Based on this evidence, the jury reasonably could have concluded that gunshot residue was

on Peacock’s hands because he was in close proximity to the shooter when he fired the

gun.

{¶82} After reviewing the entire record, weighing the strength and credibility of the

evidence presented and the inferences to be reasonably drawn therefrom, we cannot say

that the jury clearly lost its way and created such a manifest miscarriage of justice that

appellant’s convictions were against the manifest weight of the evidence. {¶83} Accordingly, appellant’s second assignment of error is overruled.

C. Court Costs

{¶84} Appellant argues that the trial court erred by failing to advise him of court

costs at sentencing. The state concedes this error on appeal.

{¶85} R.C. 2947.23(A)(1)(a), judgment for costs and jury fees, provides “[i]n all

criminal cases, including violations of ordinances, the judge or magistrate shall include in

the sentence the costs of prosecution, including any costs under section 2947.231 of the

Revised Code, and render a judgment against the defendant for such costs.”

{¶86} In State v. Joseph, the Ohio Supreme Court addressed the issue of whether a

trial court may impose court costs under R.C. 2947.23 in its sentencing entry when the trial

court did not impose those costs during the sentencing hearing. State v. Joseph,

,

,

. The court held that it is reversible error under

Crim.R. 43(A) for the trial court to impose court costs in its sentencing entry when it did

not impose those costs in open court at the sentencing hearing. Id. at ¶ 22. The court

reasoned that the defendant was harmed by the trial court’s error, as he “was denied the

opportunity to claim indigency and to seek a waiver of the payment of court costs before

the trial court.” Id. Furthermore, the court found that the remedy in such a situation is a

limited remand to the trial court, allowing the defendant to seek a waiver of court costs.

Id. at ¶ 23.

{¶87} In the instant matter, the trial court did not impose court costs at sentencing.

However, the trial court imposed court costs in its journal entry “in an amount equal to the costs of this prosecution.” Accordingly, we reverse the portion of the trial court’s

judgment imposing court costs and remand the matter for the limited purpose to allow

appellant the opportunity to move the trial court for a waiver of payment of court costs.

See State v. Thompson, 8th Dist. Cuyahoga No. 99467,

.

{¶88} Appellant’s third assignment of error is sustained.

III. Conclusion

{¶89} Based on the foregoing analysis, the trial court properly denied appellant’s

Crim.R. 29 motions for acquittal. When viewed in the light most favorable to the

prosecution, the state’s evidence, if believed, was sufficient for the jury to conclude that

appellant committed murder and felonious assault.

{¶90} The jury’s verdict was not against the manifest weight of the evidence.

While there were inconsistencies in the testimony of the witnesses during trial, the jury

was in the best position to judge the credibility of the witnesses accordingly.

Furthermore, after reviewing the record, we cannot conclude that the inconsistencies in the

witnesses’ testimony rendered their testimony so unreliable or unworthy of belief that the

jury lost its way and engaged in a manifest miscarriage of justice in finding appellant

guilty of the offenses.

{¶91} Appellant’s third assignment of error is sustained. The trial court erred in

imposing court costs in its sentencing entry when it did not impose those costs during the

sentencing hearing.

{¶92} Accordingly, the appellate court’s judgment is affirmed in part, reversed in part, and remanded for the limited purpose of allowing appellant to seek a waiver of court costs.

It is ordered that appellant and appellee share the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having been

affirmed, any bail pending 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.

___________________________________________________ FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and EILEEN T. GALLAGHER, J., CONCUR