[Cite as State v. Chisolm,

.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 111364 v. :

DEANDRA DE MARRIO CHISOLM, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 2, 2023 _______________________________________

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-21-658290-A _______________________________________

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kristin Karkutt, Assistant Prosecuting Attorney, for appellee.

Mary Catherine Corrigan, for appellant.

LISA B. FORBES, J.:

Appellant Deandra De Marrio Chisolm (“Chisolm”) appeals the trial

court’s order convicting him of two counts of murder, two counts of felonious

assault, and one count of abuse of a corpse. After reviewing the facts of the case

and the pertinent law, we affirm. I. Facts and Procedural History

This case arose following the shooting death of D.J. In the early

morning hours of March 20, 2021, D.J.’s body was found on the side of the highway

with a gunshot wound to the neck.

Following a jury trial, Chisolm was found guilty of murder, an

unspecified felony in violation of R.C. 2903.02(A) as charged in Count 2 of the

indictment; murder, an unspecified felony in violation of R.C. 2903.02(B) as

charged in Count 3 of the indictment; felonious assault, a felony of the second

degree in violation of R.C. 2903.11(A)(1) as charged in Count 4 of the indictment;

felonious assault, a felony of the second degree in violation of R.C. 2903.11(A)(2)

as charged in Count 5 of the indictment; and abuse of a corpse, a felony of the fifth

degree in violation of R.C. 2927.01(B) as charged in Count 6 of the indictment. The

murder and felonious assault convictions each included a one-year firearm

specification pursuant to R.C. 2941.141 and a three-year firearm specification

pursuant to R.C. 2941.145. The jury returned a verdict of not guilty of aggravated

murder in violation of R.C. 2903.01(A) as charged in Count 1 of the indictment.

All but the abuse of a corpse offense merged for sentencing. The

state elected to sentence on murder in violation of R.C. 2903.02(A). In addition,

the one- and three-year firearm specifications merged, and the state elected to

sentence on the three-year specification.

The trial court sentenced Chisolm to “3 years on the gun

specification to be served prior to and consecutive with 15 years to life” for the murder conviction and 12 months in prison for the abuse of a corpse conviction.

The trial court ordered the sentences to run consecutively for a total prison term

of “life with parole eligibility after 19 years.”

It is from this order that Chisolm appeals.

II. Pertinent Trial Testimony and Evidence

The state called 20 witnesses and admitted over 200 exhibits into

evidence. The following testimony, pertinent to this appeal, was proffered.

A. Witnesses to the Incidents of March 20, 2021

On March 19, 2021, D.J. and Chisolm went out to a bar with D.J.’s

cousin, Shantail DeVaughn (“DeVaughn”), and a friend of D.J.’s named

“Shaniece.” The group stayed at the bar for “about an hour” having drinks, playing

pool, and listening to music. DeVaughn stated that “[e]verything seem[ed] to be

going fine.” As the night wound down, DeVaughn left with Shaniece. D.J. and

Chisolm left together in D.J.’s Mazda (“the Mazda”).

D.J. and her sister, Celia Thomas (“Thomas”) planned to meet each

other for an “after hours” on West 150th street. D.J. was supposed to meet Thomas

at Thomas’s house around midnight. When D.J. did not arrive at Thomas’s house,

Thomas called her. The first two calls went unanswered. On the third phone call,

Chisolm answered D.J.’s phone and explained to Thomas “that somebody followed

them from the bar and shot the car up on * * * West 90 on Broadway exit.” Chisolm

told Thomas that he “got out of the car and * * * shot back at them.” Thomas asked where D.J. had been shot and recalled that Chisolm “got real quiet.” Asked if he

would call the police until Thomas could get there, Chisolm responded, “No.”

In addition to speaking with Thomas, Chisolm called D.J.’s mother,

Cynthia Austin (“Austin”), and told her about the shooting. Austin stated that

“Chisolm called me and told me my daughter got shot in the freeway.” After telling

her that D.J. had been shot, Chisolm told Austin, “‘Some guys followed us from the

bar, and followed us on the freeway, and [D.J.] rolled down the window and they

shot her * * * in the neck.’” Chisolm told Austin that he had called the police.

D.J.’s aunt, Lamare Talley (“Talley”), testified that Chisolm also

called her on the night that D.J. died and told her that D.J. “was shot on the

freeway.” Chisolm explained to Talley that he and D.J. had been at a bar where a

group of guys were “pocket watching” them. When they left the bar, the “dudes

was following them, and * * * [Chisolm] told [D.J.] that they was following them,

and to roll down his window he was gonna shoot at their car.” Chisolm told Talley

that D.J. “rolled down the window. First [Chisolm] said he shot at their car first.

And then he switched it up and said that he never shot his gun, and they just shot

at the car and her head dropped.” After that, Chisolm told Talley that “he put the

car in neutral and he left [D.J.] * * * [o]n the freeway.”

On the night that D.J. died, D.J.’s 14-year-old son, T.J., was at D.J.’s

apartment with D.J.’s friend Richard Woodland (“Woodland”). T.J. testified that

Chisolm lived at D.J.’s apartment with her. At “around 3:00 in the morning,” Chisolm came to the apartment

and “was talkin’ on the phone.” T.J. stated that he noticed D.J. was not with

Chisolm; Chisolm told him, “she be up in a minute.” According to T.J., Chisolm

was at the apartment for approximately four to five minutes.

Woodland recalled he “let [Chisolm] in” the apartment that evening.

Before Chisolm arrived, Chisolm called Woodland from D.J.’s phone. Chisolm told

Woodland “[t]hat he needed to get in and he wanted me to let him in.” After

Woodland let Chisolm into the apartment, Chisolm “was on the phone the whole

time.”

Patricia Penn (“Penn”) was D.J.’s “best friend.” Penn testified that

Chisolm contacted her via “text messages” on Facebook the day D.J. died. The

message exchange between Penn and Chisolm was admitted into evidence. In the

messages, Chisolm told Penn about the shooting and stated that “they followed us.

* * * They was parking lot pimpin’ watchin’ us.” Chisolm explained to Penn that

D.J. “was driving. We was on 67 and Denison. * * * They pulled up on us [and]

shot in [the] car.” Penn asked who pushed D.J. out of the car, to which Chisolm

responded, “They took the car.” The two continued sending messages back and

forth. Penn asked again, “Can you please tell me what happened to my friend?”

Chisolm responded, “I did this s**t. Traumatic stress. * * * I’m traumatized by

keep telling the story.” Penn responded, “so you killed my friend?” In response,

Chisolm sent a video to Penn with another text saying, “We was having a good a**

time.” Chisolm eventually told Penn: I love the f**k outta [D.J.]. That’s my fiancée. Like n****s trying to retaliate for [D.J.] understandable, but I’m not the one who they should be lookin’ for. It’s two suspects out there that killed my life right in my hands. I’m trying not to feed into it because it’s not about — because it’s about our love one it’s unthinkable for me to do it.

B. Additional Witnesses

Lyzmabeth Rodriguez (“Rodriguez”) testified that she knew Chisolm

and that the two of them had “been together for about ten years” in an “on and off”

relationship. However, in March of 2021 they were not together. At that time,

Chisolm did not live with Rodriguez, but he used her address as his place of

residence.

On March 20, 2021, between 1:30 and 2:00 a.m., Rodriguez received

a call from Chisolm who was “crying and telling [her] that he was scared, and if

[she] could come get him.” Rodriguez recalled that she picked Chisolm up around

East 55th Street. When she arrived, Chisolm was wearing “dark jeans” and “[a]

dark jacket” and “[h]e had two phones.” Rodriguez described Chisolm as “frantic”

and “crying.” When Rodriguez asked what was happening Chisolm responded, “I

don’t want to talk right now.” The two went back to Rodriguez’s apartment where

Chisolm stayed for the next three days. At some point during that time, Chisolm

asked Rodriguez “[t]o see if he had a warrant.” On March 24, 2021, Chisolm was

arrested at Rodriguez’s apartment.

Robert Euerle (“Euerle”) testified that he owns and manages the

Parma Armory, which is “a firearms retail shop and shooting range.” Euerle

testified that Chisolm purchased a “IWI-Israel/IWI-USA * * * Masada 9 ORP” firearm from the Parma Armory on March 3, 2021, as well as “two boxes of 9mm

ammo, 115 grain full metal jacket.” The firearm was described as a “pistol.”

C. Police and Forensic Pathology Witnesses

On March 20, 2021, Detective Eric Strick (“Det. Strick”) and Officer

Matthew Diffenbacher responded to the scene of I-77 North near the Woodland

exit because “There was a body on the shoulder of the highway just before the

Woodland exit.” Det. Strick identified the victim as D.J. According to Det. Strick,

no shell casings were found near the victim’s body.

Police executed search warrants at D.J.’s apartment in East

Cleveland and Rodriguez’s apartment in Cleveland. Detective Troy Edge (“Det.

Edge”) testified regarding the search performed at D.J.’s apartment on March 23,

2021. Police collected various pieces of evidence including “a Masada firearm box”

for a “Masada * * * four-inch barrel 9mm firearm,” several rounds of “CBC 9mm

Luger ammunition,” a pair of jeans “with small stains” that were “a rust color,” and

“a white T-shirt with suspected blood” staining. The receipt inside the Masada

firearm box states that the firearm was purchased from “Parma Armory Shooting

Center.”

Detective Walter Emerick (“Det. Emerick”) assisted in executing a

search warrant for Rodriguez’s apartment on March 24, 2021. Police collected a

red iPhone, a black iPhone, a pair of Nike “Air Force 1 black shoes,” “a pair of black

pants,” “a gray hoodie jacket, [and a] shirt” from Rodriguez’s apartment. Police

determined that the black iPhone belonged to Chisolm and the red iPhone belonged to D.J. Police could not extract data from D.J.’s phone because it had

“been factory reset. So when you powered the phone on, it asked you to set up a

new device with this phone.”

On the same day, Detective Shane Bauhof (“Det. Bauhof”)

responded to a radio call that the Mazda was located on West 11th Street in

Tremont. Det. Bauhof “noticed there were cameras on the address across where

the car was parked” and “spoke to the resident there and asked them about the

vehicle.” The resident gave Det. Bauhof access to three videos from a Ring doorbell

camera. The videos showed that the Mazda was parked on West 11th Street on

March 20, 2021, at 2:10 p.m. but did not show when it arrived there.

The Mazda was towed to the “Cleveland Division of Police impound

unit” where it was examined by Detective Larry Smith (“Det. Smith”). Det. Smith

testified that the Mazda had “no damage or defects” on any of its sides nor were

there any defects to the windows. Detective Smith claimed that when he examined

the Mazda it was “a pretty well decent car, no damage at all.” Asked what

specifically he was looking for regarding defects, Det. Smith stated that he was

“[l]ooking for any defects on the side of the car to see if holes where a gun could

have been shot from going in or even out of the vehicle. Defects within the vehicle.”

A search of the interior of the Mazda showed that the “front seat area

where the driver would be sitting” had “blood on the floorboard on the doorjamb.”

Additionally, there was “blood on the steering wheel.” According to Det. Smith, the driver’s “door was saturated in blood.” No blood was found on the passenger

side of the Mazda. No firearms or shell casings were recovered from the Mazda.

Detective Michael Legg (“Det. Legg”) obtained video surveillance

that showed the Mazda arriving at the bar at approximately 10:49 p.m. on

March 19, 2021, and leaving at 12:04 a.m. on March 20, 2021. Another video

showed the Mazda on West 14th Street and Starkweather at 2:58 a.m. on March

20, 2021. That video showed a blue minivan “consistently behind [the] Mazda.”

According to Det. Legg, when the Mazda got to West 11th Street and Starkweather,

the video showed “[t]he black Mazda SUV turning in the corner here, and the blue

minivan appearing to be following the SUV.” The blue minivan was familiar to

police because “[i]t resembled an auto that was parked in the driveway of

[Rodriguez’s apartment] during the execution of the search warrant.” The videos

were played in court and admitted into evidence.

Dr. David Dolinak (“Dr. Dolinak”) testified as an expert in forensic

pathology. He conducted the autopsy of D.J. The autopsy report was admitted

into evidence. Dr. Dolinak reported to the scene where D.J.’s body was found so

that he could “better appreciate the circumstances of [her] demise, and also get a

better idea of what injuries [she] might have so that the investigation can proceed

with that in mind.”

Dr. Dolinak reported that D.J. “had a gunshot wound of her neck.

The entrance of the bullet was in the right side of the neck. It was a contact-type

gunshot wound” meaning “the end of the gun was actually in contact with the skin when it was fired.” The fact that the gun was pressed against the skin when fired

was also demonstrated by the presence of “an abundant amount of grainy black

and gray gunpowder soot is in the subcutaneous tissue and skeletal muscle

underlying the entrance wound.” In other words, “gun powder was forced

underneath the skin.” The farthest the gun could be from the skin to cause this

was “less than an inch.”

After conducting his autopsy, Dr. Dolinak found that D.J.’s manner

of death “was a homicide.” He made this finding due to “[t]he circumstances of

her death, and the nature of the injuries, and the police investigation.”

Dr. Dolinak did not find D.J.’s death to be accidental because of “the

circumstances; how the body was found, the missing gun, and the police

investigation.” Further, given the nature of the gunshot wound, “[a]n accidental

shooting, that would seem odd. If a gun is placed right against a person’s neck, I

don’t really see how that would be an accident.” Dr. Dolinak was asked whether

D.J.’s injuries were consistent with a self-inflicted gunshot wound, and responded,

“Yes.” However, Dr. Dolinak did not find that D.J.’s death was accidental “because

it does not look like an accidental gunshot wound” and “the circumstances

wouldn’t support that.” Dr. Dolinak explained:

[A]ccidental discharge of firearms don’t happen often. But when they do, the unexpected discharge of the gun, the gun is in a lot of different positions around the body. It’s not actually pressed against the body part. Suicide was excluded because “after this wound was sustained, [D.J.

would] be paralyzed and not be able to move. There was no gun at the scene. [D.J.]

didn’t have any history of depression, or suicidal, or psychiatric problems, and I

didn’t have any indication that there were any problems that would cause her to

end her life.”

Here, because the gun was pressed against D.J.’s neck when it went

off, according to Dr. Dolinak’s investigation he did not “believe that she shot

herself” and found her manner of death to be homicide.

D. Defense Witness

Chisolm testified in his own defense. Chisolm testified to the

following events regarding D.J.s death.

Chisolm drove himself and D.J. to “Henry’s [bar] on West 44th” in

the Mazda. They arrived at approximately 11 p.m., had drinks, and played pool.

They left at approximately 12:15 a.m. and went to another bar on “West 65th and

Dennison.” D.J. drove when they left the second bar, heading towards downtown

Cleveland on I-77. Chisolm recalled having four shots of Hennessy and smoking

marijuana that evening. However, he stated he was not intoxicated.

In the car, Chisolm had a loaded 9mm firearm that he purchased at

Parma Armory on his lap as well as D.J.’s cellphone and a bottle of liquor.

According to Chisolm, D.J. reached for the liquor bottle and he told her “[n]o”

because she was driving. At that point: She actually reached for the bottle. And I pushed her arm like, no, that’s enough, and she grabbed the gun off my lap thinking I was gonna give her the bottle.

D.J. began waiving the gun around in a circle and then “[t]he gun went off. She

playin’ with the gun and it went off.”

Chisolm stated that when the gun “went off” D.J.’s car was in “one

lane * * * turning on the curve.” The car did not hit anything because it “instantly

stop[ped] because she let her feet off the gas.”

Chisolm called D.J.’s sister because he “really didn’t know what to

do in that type of situation.” He stated that he told D.J.’s sister that D.J. “just got

shot.” He claimed he did not tell her how that happened. Chisolm also claimed

he told her to call the police.

Chisolm then took D.J.’s car to Tremont and “got a ride” from his

friend Melvin who took him to 55th Street. Chisolm claimed that Melvin “took me

to East 55th all the way to East Cleveland, and from East Cleveland back to 55th.”

He stated that Melvin drove him to D.J.’s apartment in East Cleveland after D.J.

had been shot. Rodriguez picked him up on Woodland. However, Chisolm later

testified that Melvin picked him up from West 14th Street and took him to 55th

Street, “[a]nd [Rodriguez] picked me up from 55th. “

Chisolm claimed that after D.J. shot herself, he put his gun in the

glove compartment, which is where it was when he left D.J.’s car in Tremont. He

admitted that he lied when he told police he gave the gun to a “tall,” “bald,” “crackhead” “with a mustache” on “25th street.” Chisolm claimed he did so

because he was scared “of being blamed for this.”

When initially asked on direct examination how D.J.’s body ended

up on the side of the road, Chisolm answered, “I guess I pushed her out.”

Responding to follow-up questions, Chisolm stated he did not know if he pushed

her out; he said, “I blacked out at that point.”

During his testimony, Chisolm admitted that he lied to Thomas,

Austin, Talley, and Penn when he told them how D.J. was shot. Chisolm admitted

that it was not true that a man in a mask was “pocket watching” him and D.J. at

the bar and that it was not true that he and D.J. were shot at from another car while

they were driving. He claimed he did not tell D.J.’s friends and family what really

happened because he “didn’t know how they was gonna retaliate, and [he] was

scared.” Chisolm maintained on the stand that D.J. shot herself accidentally.

Chisolm also admitted to lying when he told the police that a man in

a mask who was “pocket watching” him and D.J and when he told the police that

he and D.J. were shot at from another car while they were driving. Chisolm

testified that he did not tell the police what really happened because he “was afraid

how they’d look at [him] as a black male.”

III. Law and Analysis

Chisolm raises the following two assignments of error:

The verdict[s] as to Count(s) Two (2) through Five (5) cannot be upheld as the evidence does not prove [Chisolm] guilty beyond a reasonable doubt. The verdicts as to Count(s) Two (2) through Five (5) were against the manifest weight of the evidence.

A. Sufficiency

Chisolm challenges his convictions arguing that the state presented

insufficient evidence when it “did not prove the mens rae [sic] as to Count(s) Three

(3) to Six (6).” Chisolm goes on to argue the evidence as insufficient to sustain his

convictions on Counts 2 through 5 consistent with his assignment of error.

Chisolm clarifies on appeal that his conviction for abuse of a corpse is an

“uncontested conviction[.]” Accordingly, we review whether the state presented

sufficient evidence of the requisite mens rea for Chisolm’s convictions for murder,

Counts 2 and 3, and felonious assault, Counts 4 and 5.

“[A]n appellate court’s function when reviewing the sufficiency of

the evidence to support a criminal conviction is to examine the evidence admitted

at trial to determine whether such evidence, if believed, would convince the

average mind of defendant’s guilt beyond a reasonable doubt.” State v. Jenks,

,

(1991). “In essence, sufficiency is a test of

adequacy. Whether the evidence is legally sufficient to sustain a verdict is a

question of law.” State v. Thompkins,

, N.E.2d 541 (1997).

We review de novo whether sufficient evidence on every element of an offense was

presented. State v. Smith,

,

,

; State v. Messenger, Slip Opinion No.

.

“Circumstantial and direct evidence are of equal evidentiary value.”

Cleveland v. Turner,

,

, ¶ 35 (8th Dist.), discretionary appeal not accepted,

,

,

, ¶ 35, citing State v. Santiago, 8th Dist. Cuyahoga No. 95333, 2011-

Ohio-1691, ¶ 12. A “conviction can be sustained based on circumstantial evidence

alone.” State v. Franklin,

,

(1991), citing State

v. Nicely,

,

(1988).

B. Chisolm’s Convictions

1. Murder

Chisolm was found guilty of murder pursuant to R.C. 2903.02(A) and

2903.02(B).

Murder is defined in R.C. 2903.02(A) in part as follows: “No person

shall purposely cause the death of another * * *.”

Murder is defined in R.C. 2903.02(B) as follows: “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.”

2. Felonious Assault

Chisolm was found guilty of felonious assault pursuant to

R.C. 2903.11(A)(1) and (2).

Felonious assault is defined in R.C. 2903.11(A) in part as follows:

“No person shall knowingly do either of the following:”

(1) Cause serious physical harm to another * * *; (2) Cause or attempt to cause physical harm to another * * * by means of a deadly weapon or dangerous ordnance.

C. Mens Rea

A person acts purposely “when it is the person’s specific intention

to cause a certain result, or, when the gist of the offense is a prohibition against

conduct of a certain nature, regardless of what the offender intends to accomplish

thereby, it is the offender’s specific intention to engage in conduct of that nature.”

R.C. 2901.22(A). “‘Purpose,’ therefore, depends on an intended result.” State v.

Harris, 8th Dist. Cuyahoga No. 108624,

, quoting State v.

Orr, 8th Dist. Cuyahoga No. 100841,

.

An offender’s purpose or intent may be demonstrated through

circumstantial evidence. State v. Martin, 8th Dist. Cuyahoga No. 91276, 2009-

Ohio-3282, ¶ 23. “The determination of whether an offender had the specific

intent to kill is made upon consideration of the facts and circumstances

surrounding the crime.” State v. Lucas,

,

(8th Dist.), citing State v. Barrow, 8th Dist. Cuyahoga No. 101356,

,

¶ 16. In determining whether the offender had the requisite intent, “the nature of

the instrument used, the lethality of the instrument, and the manner in which the

wound was inflicted” can be considered.

citing State v. Majid, 8th Dist.

Cuyahoga No. 96855,

.

The specific intent to kill may be reasonably inferred from the fact that a firearm is an inherently dangerous instrument, the use of which is likely to produce death, coupled with relevant circumstantial evidence. State v. Searles, 8th Dist. [Cuyahoga] No. 96549, [2011- Ohio-6275, ¶ 11], citing State v. Widner,

,

(1982). “[P]ersons are presumed to have intended the natural, reasonable and probable consequences of their voluntary acts.” State v. Garner,

, 60,

,

(1995). “The act of pointing a firearm and firing it in the direction of another human being is an act with death as a natural and probable consequence.” State v. Brown, 8th Dist. [Cuyahoga] No. 68761,

, 6 (Feb. 29, 1996).

Majid at

“A person acts knowingly, regardless of purpose, when the person is

aware that the person’s conduct will probably cause a certain result or will probably

be of a certain nature.” R.C. 2901.22(B).

D. Analysis

Chisolm claims on appeal that D.J. shot herself accidentally and

that the state “did not present any evidence to speak of as to * * * Chisolm’s mens

rae [sic].” We disagree.

The circumstantial evidence presented by the state demonstrates

Chisolm’s specific intent to kill D.J. and that he knowingly caused her serious

bodily injury when he shot her in the neck.

There is no dispute that D.J. died of a gunshot wound to the neck.

Further, Chisolm does not dispute that it was his firearm, which he purchased a

few weeks before D.J.’s death that was used to shoot D.J. in the neck. The medical

examiner concluded that D.J.’s manner of death was a homicide based upon the

circumstances surrounding her death and the nature of the gunshot wound

inflicted. Based on the evidence presented at trial, the circumstances

surrounding D.J.’s death include the weapon used was Chisolm’s gun, which is

inherently dangerous; Chisolm’s gun was pressed up against D.J.’s neck when it

was fired; the only other person in the Mazda was Chisolm; Chisolm left D.J.’s body

on the side of I-77 and then drove away in the Mazda; Chisolm abandoned the

Mazda in another neighborhood; no shell casings or firearms were located near

D.J.’s body on the side of the highway or in the Mazda; Chisolm communicated

with D.J.’s friend and family shortly after D.J.’s death, telling them that D.J. had

been shot by someone who followed them from the bar; Chisolm never called 911;

Chisolm called two different friends for rides after he abandoned the Mazda; D.J.’s

phone was found at Rodriguez’s apartment where Chisolm stayed in the days

following the shooting, and D.J.’s phone was factory reset so that no data could be

collected; Chisolm admitted he lied to the police and to D.J.’s friend and family on

the night of the murder when he told them he and D.J. had been “pocket watched”

by unnamed individuals, and when he told them he and D.J. were shot at on the

road; and Chisolm also lied when he initially told the police what he had done with

his gun following D.J.’s shooting.

Accordingly, we find that the state presented sufficient evidence,

including evidence of mens rea, to sustain Chisolm’s convictions for murder and

felonious assault. Chisolm’s first assignment of error is overruled. E. Manifest Weight

A challenge to the manifest weight of the evidence “addresses the

evidence’s effect of inducing belief. * * * In other words, a reviewing court asks

whose evidence is more persuasive — the state’s or the defendant’s?” State v.

Wilson,

,

,

, ¶ 25. “When a

court of appeals reverses a judgment of a trial court on the basis that the verdict is

against the weight of the evidence, the appellate court sits as the ‘thirteenth juror’

and disagrees with the factfinder’s resolution of the conflicting testimony.”

Thompkins,

,

, quoting Tibbs v. Florida,

,

,

(1982). Reversing a conviction under a

manifest weight theory “should be exercised only in the exceptional case in which

the evidence weighs heavily against the conviction.” State v. Martin,

,

(1st Dist. 1983).

In his second assignment of error, Chisolm argues that his

convictions are against the manifest weight of the evidence because “the state of

Ohio’s death investigator indicate[d] that the injuries sustained [were] consistent

with a self-inflicted injury * * *.” We disagree.

While Dr. Dolinak stated that the shooting could have been

consistent with an accident, he determined it was not an accident and ruled D.J.’s

death a homicide because of the surrounding circumstances mentioned in our

resolution of Chisolm’s first assignment of error. See State v. Perrien, 2020-Ohio-

798,

(8th Dist.) (Finding that a defendant’s homicide conviction was “not against the manifest weight of the evidence merely because the

jury rejected the defense’s theory that the shooting was an accident and found the

state’s version of the events to be more believable.”). In particular, Dr. Dolinak

testified that an accidental shooting “would seem odd. If a gun is placed right

against a person’s neck, I don’t really see how that would be an accident.” In

addition to Dr. D0linak ruling D.J.’s death a homicide, the jury also heard Chisolm

admit that he lied when he told D.J.’s family a version of events that happened on

the evening of D.J.’s death and then told a different version of events on the stand

at trial. “‘[A] conviction is not against the manifest weight of the evidence simply

because the jury rejected the defendant’s version of the facts and believed the

testimony presented by the state.’” State v. Jallah, 8th Dist. Cuyahoga No. 101773,

, ¶ 71, quoting State v. Hall, 4th Dist. Ross No. 13CA3391, 2014-

Ohio-2959, ¶ 2.

We find that the jury did not lose its way in resolving the conflicting

theories of D.J.’s death based upon the evidence presented at trial and finding

Chisolm guilty of D.J.’s murder and felonious assault.

Chisolm’s second assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

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

common pleas court to carry this judgment into execution. The defendant’s convictions having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

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

27 of the Rules of Appellate Procedure.

LISA B. FORBES, JUDGE

SEAN C. GALLAGHER, P.J., and MARY EILEEN KILBANE, J., CONCUR