COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68201 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION ARLEN PARKS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION JULY 6, 1995 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. 275091 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES MARIE T. SMYTHE, ESQ. Cuyahoga County Prosecutor 993 Argonne Road JOSEPH V. HOFFER, Assistant South Euclid, Ohio 44121 Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, J., Defendant-appellant Arlen R. Parks appeals from his conviction for felonious assault (R.C. 2903.11) with firearm and violence specifications following a bench trial. Defendant contends the verdict of the trial court was against the manifest weight of the evidence and that the trial court improperly shifted the burden of proof to defendant. We find no error and affirm. On the evening of November 23, 1991, John Henry Price (age 15), was shot by the defendant at 6403 Roland Avenue in Cleveland. Defendant lived at this address with his mother and two brothers. Price was best friends with defendant's younger brother, Robert. It is undisputed that defendant shot Price. Whether it was an accident or intentional was hotly disputed at trial. Price testified that the defendant and Harry Richards beat him up. He said that defendant then shot him in the head in the foyer of the home, and that defendant and Richards then dragged him into the bedroom. No blood stains were found on the foyer floor, however, Price had his hat on and a review of the photographs of the scene show he bled very little from his head wound. Price claimed defendant stole $500 from him, which Price had obtained from the sale of 20 cartons of cigarettes. There was evidence that Price may have been indebted to defendant for the sale of the stolen cigarettes. A .22 caliber sawed-off rifle was found in the bedroom next to the unconscious Price by the police and EMS personnel. - 3 - Defendant was not at the scene when police arrived, but had gone to his girlfriend's house. Robert Parks, defendant's brother, and his girlfriend, were the only other people present at the time of the shooting. Robert and the girlfriend left the scene and went to the house of a relative and acquaintance. They later returned to the scene of the shooting and informed the police that the victim had shot himself in an attempted suicide. The "suicide story" told to the police by the brother and the girlfriend made the investigating police officers suspicious. In the words of the sergeant on the scene: "It seemed like no one there was really telling the truth." The police searched the bedroom where Price was found unconscious by EMS personnel. One suspected bullet hole was found on the wall near the door to the room. No hole was found in the door to the room at the time of the investigation, although the door was thoroughly checked by both the sergeant and a detective. Price was admitted to the hospital and was in critical condition. When three days passed and Price had survived, the defendant turned himself in to the Cleveland Police. He told the homicide detective that he had shot Price and then invoked his constitutional right to speak with an attorney. At trial, the defendant and his friends and relatives testified that the victim was shot accidentally. According to them: the defendant and Price were "sicking" the family's pit bull dog on each other; Price went into the bedroom to get away from the - 4 - dog and refused to come out; the defendant was trying to give Price his gun back when Price ran into the bedroom; the pit bull, seeing the gun, attacked defendant from his left side, apparently jumped over his right hand and gun and bit the defendant on the web of the back of the right hand (between the thumb and index finger) in which defendant held the gun; defendant then accidentally squeezed the trigger of the illegal sawed-off .22 caliber rifle; the trigger pull was estimated to be between 6 to 7 pounds; the bullet then went through the door from the living room at a height of 43" (3'7") and exited at 42 " (3'6 "), in a downward trajectory; and after passing through the door, the bullet struck the victim above the right eye. The victim was 5'6" tall. We will address defendant's assignments of error in the order presented. I. THE VERDICT OF THE TRIAL COURT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND BASED UPON INSUFFICIENT EVIDENCE. As stated by this Court in State v. Phelps (Jan. 5, 1995), Cuyahoga App. No. 66804, unreported at 11: The trial court, as the trier of fact, must judge the credibility of witnesses and weigh the evidence. State v. Fanning (1982), 1 Ohio St.3d 19. A reviewing court will not reverse the trial court on the weight of the evidence where there is substantial, credible evidence to support the trial court's decision. State v. Eskridge (1988), 38 Ohio St.3d 56. We must defer to the trial court's judgment and ruling. Defendant argues that the victim could not have been shot in the living room as he claimed since no blood was found in that - 5 - area. However, the evidence also disclosed that Price was wearing a hat and the photographs of the scene indicate there was very little bleeding from the victim's head wound. The police officers also testified that there was no hole in the door the night of the shooting contrary to defendant's contention that the gun accidentally discharged and wounded Price through the door. The door in question was an exhibit and was examined by the trial court. There was testimony that the "bullet hole" in the door displayed at trial was the result of a drill or bore and not caused by a bullet. "[A] reviewing court cannot reverse a judgment of conviction in a criminal case where there is sufficient evidence presented to the jury, which, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." State v. Mattison (1985), 23 Ohio App.3d 10, 14. In the case at bar, there was sufficient evidence to convince the trial court that defendant was guilty beyond a reasonable doubt. Defendant admitted shooting the victim in the head and the victim testified that the defendant shot him. The wound above the right eye suggested that the shooting was intended to be lethal. The defendant, his family and friends told two different and inconsistent stories, first of suicide and then accident. These misguided efforts were indicative of covering up guilt. The lack of blood in the bedroom and the amount of time that the victim was in the bedroom shows that the victim did not bleed a - 6 - great deal. He was wearing a hat when shot. A hole appears in the hat, blood is inside the hat, and the hat was found underneath or behind the body of the victim. There was almost no blood on the outside of the hat. These facts tend to show that the victim bled very little, and when he did bleed, it was mostly inside of his hat until he was brought in the bedroom. The police never searched the rest of the house because they had been led to believe by defendant's witnesses that the "suicide" shooting took place in the bedroom. The defendant's theory of the case suffered from two different versions about that happened at the time of the shooting. Defendant's friends and family admittedly lied to the police in the first instance saying the victim had attempted to commit suicide. The suicide story fell apart when the victim survived to deny it. The second story did not fare much better. The defendant claims that the family pit bull attacked him because he had a firearm in his hands, causing the weapon to accidentally discharge through the bedroom door, striking the victim above the right eye. While not impossible, this scenario was highly implausible. The pit-bull-made-me-do-it story was not supported by the physical evidence. The door in question was along the left side of the living room wall when looking from the kitchen towards the front door of the house in question. Defendant was facing the door, with the illegal .22 caliber sawed-off rifle in his right - 7 - hand. According to defendant, the dog approached defendant from the kitchen area on defendant's left side. But, the dog jumped up and bit the defendant on the web of the back of his right hand between the knuckle of the first finger and the thumb. This bite would have required remarkable aerial maneuvers by the dog in defiance of gravity. Additionally, the record contained no evidence of any wound on the defendant's hand when he turned himself in to the police, even though he claims there were scars present on his hand at trial. There were other discrepancies in the evidence. The defendant testified that he opened the door and just dropped the gun right down onto the floor next to Price without stepping over him. However, the gun was found on the right side of the victim requiring that defendant would have had to step over him. The trigger pull on the illegal weapon required a strong (6 to 7 pounds), mitigating against an accidental or "hair trigger" pull. According to the investigating officers, the hole that appeared in the door at trial was not present when the room was searched on the night of the crime. The police opined that the hole was intentionally bored into the door by means other than a bullet. This act obviously occurred when the door had been remounted and rotated 180 degrees. Thus, when the door was rehung with a left-hand door knob, someone came to the house and bored a hole in the door giving it an upwards trajectory. If this door was rehung in the manner it was on the day that the shooting occurred - 8 - (a right-hand door knob), the trajectory would be down from 43" as the bullet left the living room and entered the bedroom. State v. Martin (1983), 20 Ohio App.3d 172, 178, requires that, "[t]he 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." This same standard applies when there is a bench trial. See Inger Interiors v. Peralta (1986), 30 Ohio App.3d 94, 96; State v. Phelps, supra; State v. Harris (Sept. 29, 1994), Cuyahoga App. No. 65681, unreported; State v. Alamin (Aug. 12, 1993), Cuyahoga App. No. 63352, unreported. We cannot say that the trial court reached a decision that operated as a miscarriage of justice. The court resolved the conflicts of evidence in a reasonable way. Price had testified that he was shot at three times in the face; was fully conscious after the shooting; and identified defendant as the one who had shot him; however, EMS personnel, the police officers on the scene, and the witnesses all testified that Price was unconscious after he was shot. The trial court's verdict shows that conflicts or confusion in Price's testimony were resolved based on consideration of "the passage of time or brain trauma or shock" resulting to the victim. - 9 - We therefore hold that the decision was not against the manifest weight of the evidence or unsupported by sufficient evidence. This assignment of error is overruled. II. THE TRIAL COURT ERRED WHEN IT SHIFTED THE BURDEN OF PERSUASION AND PROOF TO APPELLANT. We find no evidence from the record to support this contention. Defendant argues that because the trial court resolved conflicts in evidence contained in the victim's testimony in favor of the State, that the trial court placed the burden of persuasion on the defendant. The trial court simply resolved inconsistencies in evidence by believing some of the testimony of the victim and relying on physical evidence to fill in the gaps. The trial court indicated that it felt that the incident did not occur as "recalled" by the victim, John Price. In other words, the statement made by the trial court that represents the basis of the defendant's argument relates to the victim's ability to recall, which the trial court felt was disabled due to brain trauma or shock. We find no proof that the trial court ignored the traditional burden of proof or switched it to defendant from the prosecution. This assignment of error is overruled. Judgment affirmed. - 10 - It is ordered that appellee recover of appellant its 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 Court of Common Pleas 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. BLACKMON, P.J., and DAVID T. MATIA, J., CONCUR. JAMES M. PORTER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which .