[Cite as State v. Melton,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 103341

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

CHRISTOPHER MELTON DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-574120-A

BEFORE: S. Gallagher, J., Keough, P.J., and Kilbane, J.

RELEASED AND JOURNALIZED: March 24, 2016 ATTORNEY FOR APPELLANT

Jennifer McTernan 11510 Buckeye Road Cleveland, Ohio 44104

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: Aleksandra Chojnacki Assistant Prosecuting Attorney Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 SEAN C. GALLAGHER, J.:

{¶1} Christopher Melton appeals from his conviction on three counts of abduction,

one count of intimidation, and one count of misdemeanor assault. Upon review, we

affirm.

{¶2} In May 2013, the four victims were drinking and playing cards at another’s

apartment. There were two men, one of which stayed out of the events and is not

considered a victim, and three women. Three members of the group, the two men and

one of the females, described themselves as being intoxicated or having consumed a

significant amount of alcohol. The other two women testified to only drinking a couple

of alcoholic drinks. At some point in the evening, one member of the group went to his

car to retrieve something. He then decided to move the car, but backed into Christopher

Melton’s car in the process. Melton and at least three associates happened to be nearby

during the accident. The situation immediately spiraled out of control. Melton and the

group pulled the driver from the car and started beating him. Two other victims stepped

outside of the apartment and saw the beating. They retreated to the apartment with

Melton and company in pursuit.

{¶3} Melton and his group then gained entry into the apartment and kept the three

female victims separated from the male victim, who at this point had been returned to the

apartment from the parking lot. While in the apartment, Melton slammed the head of

one of the victims into the wall while she was being held captive in the bathroom. That

assault was the basis of the misdemeanor assault charge. All the victims testified to being in fear and were unable to freely move about or exit the apartment. All four

victims and the fifth occupant of the apartment described Melton as being active in the

hostilities and home invasion. Melton was the biggest man of the attacking group and

easily identified. Police officers responded, found Melton standing over the supine and

bloody victim in the apartment, and heard Melton ranting about getting his car fixed.

Melton’s accomplices fled, and Melton was arrested.

{¶4} After a bench trial, Melton was found guilty and sentenced to serve a

one-year aggregate term in prison, with credit for 119 days already served. Melton was

convicted of three counts of abduction, felonies of the third degree; one count of

misdemeanor assault; and one count for intimidation, a felony of the third degree.

Melton’s timely appeal advances a single claim that the three abduction and one assault

convictions were against the manifest weight of the evidence. We find no merit to the

sole assigned error.

{¶5} When reviewing a claim challenging the manifest weight of the evidence, the

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

consider the credibility of the witnesses, 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. State v.

Thompkins,

,

,

. Reversing a

conviction as being against the manifest weight of the evidence should be reserved for only the exceptional case in which the evidence weighs heavily against the conviction.

{¶6} In order to prove the crime of abduction, the state was required to present

evidence that the defendant or his accomplices did, “without privilege to do so, * * *

knowingly * * *[,] [b]y force or threat, restrain the liberty of another person under

circumstances that create a risk of physical harm to the victim or place the other person in

fear.” R.C. 2905.02(A)(2). Misdemeanor assault is defined as “No person shall

knowingly cause or attempt to cause physical harm to another.” R.C. 2903.13(A). The

state proceeded on a theory of accomplice liability because Melton was part of a group

and not necessarily personally involved with each and every act of the mob. In this case,

the state offered evidence that Melton and the group he was with beat one of the victims

in the parking lot, invaded the apartment, prevented three of the occupants from leaving,

and placed the victims in fear of bodily harm.

{¶7} Melton claims that the witnesses were incredible because of the fact that each

admitted to drinking alcohol during the evening. Even if all the witnesses admitted to

being intoxicated, for the purposes of our manifest weight of the evidence review, a

witness’s intoxication in and of itself is not a sufficient basis to completely undermine his

or her testimony absent something in the record demonstrating that the intoxication

rendered the witness incapable of accurately recalling the events. State v. Carlisle, 4th

Dist. Lawrence No. 97 CA 13,

, *12 (Sept. 29, 1997).

Intoxication bears upon the witnesses’ credibility, but the weight of the testimony must still be considered by the trier of fact with the ability to view and hear firsthand the

witnesses’ testimony. State v. DeHass,

,

(1967),

paragraph one of the syllabus. Thus, while intoxication is a factor informing the

credibility determination, it does not render the witness’s testimony per se incredible.

State v. Shipley, 10th Dist. Franklin No. 05AP-385,

; see also State v.

Sims, 7th Dist. Mahoning No. 14 MA 27,

, ¶ 20-23.

{¶8} More important, in this case only three of the witnesses described themselves

as being intoxicated at the time of the home invasion. Of the three female victims, only

one testified to being intoxicated. The other two testified to consuming a couple of

alcoholic drinks, and none of the responding police officers testified to the victims

showing objective signs of inebriation. The ability of the witness to accurately recall the

events is a factor in the credibility determination, but in this case, the simple fact is that

the record does not support an inference that two of the female victims were intoxicated

during the home invasion. Instead, Melton attacks their credibility because their

testimony conflicted with the “intoxicated” trio’s testimony.

{¶9} Melton’s illogical argument is one that inherently contradicts itself. On one

hand, he argues that the three self-proclaimed intoxicated witnesses should be considered

incredible because of their varying levels of inebriation. On the other, Melton argues the

intoxicated witnesses’ testimony should be deemed credible for the purposes of

discrediting the more sober members of the group. Although a trier of fact need not

accept the entirety of a witness’s testimony, a trier of fact cannot deem the incredible portion of a witness’s testimony as the truth for the purposes of discrediting another

witness.

{¶10} Even with the minor discrepancies between the witnesses’ testimony — the

discrepancies occurring between the intoxicated and sober witnesses’ testimony — all the

victims remember the apartment being invaded by Melton and several others. As this

court has recognized, even under a manifest weight challenge, “the weight of the

evidence and resolution of issues of credibility are matters primarily for the fact-finder to

assess.” State v. Bailey, 8th Dist. Cuyahoga No. 97754,

, citing

DeHass,

,

, paragraph one of the syllabus. Although

appellate courts are tasked with sitting as a “thirteenth” juror, “the demeanor of witnesses,

the manner of their responses, and many other factors observable by [a trier of fact] * * *

simply are not available to an appellate court on review.” Id. at ¶ 12. It is for this

reason that reversing a conviction as being against the manifest weight of the evidence is

only reserved for instances in which a miscarriage of justice would result. In Bailey, this

court found that although the eyewitnesses admitted to being intoxicated and there were

some inconsistencies in their testimonies, those inconsistencies did not rise to the level

wherein the evidence weighed heavily against conviction. Id.

{¶11} We do not find that the minor inconsistencies between the victims’

memories of an event that transpired over two years before the trial or the fact that some

may have been intoxicated rise to the level of creating a manifest miscarriage of justice in

this case. The testimony of the victims largely corroborated each other’s version of events. Melton and his group of people attacked one victim in the parking lot, followed

the others into the apartment, and kept the three female victims from the beaten victim.

One female victim was locked in the bedroom by an unknown male wearing all black.

Melton himself kept the other two females in the bathroom where they had attempted to

hide. Melton forced his way into the bathroom and assaulted one of the women before

they escaped to the hallway. All the while, the victims were in fear of being harmed by

Melton and his group’s belligerent behavior. When police officers arrived, they found

Melton standing over a supine and bleeding victim, ranting about getting his car fixed.

{¶12} And finally, for the purpose of accomplice liability under R.C. 2923.03, it is

reasonable to infer from the sequence of events that Melton was acting in concert with the

others in his group. Melton was at least present during — although, according to the

witnesses, Melton also participated in — the beating that took place in the parking lot.

Melton, with firsthand knowledge of the mob’s behavior, then joined in the home

invasion that followed. The trier of fact was free to infer that Melton was not an

innocent bystander simply trying to gather insurance information following a minor car

accident.

{¶13} Melton’s conviction for abduction of the three victims and misdemeanor

assault is not against the manifest weight of the evidence. His conviction is 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 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.

SEAN C. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, P.J., and MARY EILEEN KILBANE, J., CONCUR