COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70007 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION GARY MONTONEY : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 26, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-324556. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor John Gallagher Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: James A. Draper Cuyahoga County Public Defender Robert R. Clarico Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113-1569 SWEENEY, JAMES D., P.J.: Defendant-appellant Gary Montoney ("Montoney") appeals from his bench trial conviction of one count of improperly discharging a 1 firearm in violation of R.C. 2923.161(A). For the reasons adduced below, we affirm. A review of the record herein indicates that this case revolves around a drive-by shooting which occurred on January 10, 1995, wherein gunfire repeatedly struck an occupied home. This appeal from the verdict argues that the verdict was against the manifest weight of the evidence. At trial, Montoney and his co-defendant, Thomas Francis, were tried jointly. Six witnesses testified on behalf of the prosecution, and one witness was presented by each of the two defendants. The first witness for the prosecution was Mr. Stanley J. Grabowski, who was at home in the early afternoon hours when gunfire struck his house four times and he observed, from a distance of approximately seventy feet away, a large dark-blue automobile with a sunroof and darkly tinted windows speeding away from the area following the shooting. This witness was 1 The version of the statute in effect at the time of the offense herein provides in pertinent part as follows: (A) No person, without privilege to do so, shall knowingly discharge a firearm at or into an occupied structure that is a permanent or temporary habitation of any individual or a school. - 3 - subsequently informed that a juvenile, Willie Grube, pled guilty in juvenile court to having fired the shots at the home of the witness. This witness stated that he and his family had had trouble with an individual, later identified as Montoney, before the offense at issue. The witness also stated that a neighbor lady, Mrs. Sandra Donegan, had described a person to the police as one of the assailants, and this assailant fit the physical description of the person later identified as Montoney. He had not spoken to Mrs. Donegan until after having spoken with the police. The second witness for the prosecution was Mr. Jason R. Palady, who was inside the living room of the house at the time the 2 gunfire struck it. He observed a large dark-colored car with darkly tinted windows and a sunroof drive slowly past the house twice before the shooting, and speed away after the shooting. The weather that day was nice. The witness also stated that he went to high school with Montoney. He observed the gunfire emanate from the front passenger window of the vehicle. The witness also stated that Ms. Donegan came by immediately after the shooting and stated that she saw the shooter and could identify him. This witness further stated that he was aware that Montoney had a prior bad experience with another male, Chuckie Dixon, who also lived in the house at the time: Mr. Dixon had testified in a prior criminal 2 This witness testified that he lived at the house at the time of the shooting. - 4 - case that Montoney had shot at him, but Montoney was acquitted of that charge and was angry with Mr. Dixon for having testified. He could not identify the shooter. The third witness for the prosecution was Mr. Charles W. Dixon, who lived at the house which was struck by the gunfire. He was at home at the time of the shooting and observed, following the shooting, a dark blue car with tinted windows and a sunroof speed away down the street. Although the front passenger window of the car was half open, he could not discern the identity of the occupants, except that the exposed ear of the passenger indicated that the passenger was a caucasian. This witness testified that Montoney shot at him at the home prior to this incident, but Montoney was subsequently acquitted of that prior offense. Approximately one-half hour after this present shooting, the witness received a telephone call from Montoney in which Montoney stated that "It ain't over with." (R. 81.) The witness believed that the bad blood between he and Montoney started over a girlfriend of the witness. The witness also corroborated the earlier testimony that Ms. Donegan came down to the house following the shooting. Additionally, he does not know William Grube and has no idea why Mr. Grube would plead guilty in juvenile court to having shot at the home. The fourth witness for the prosecution was Ms. Sandra L. Donegan, who corroborated the earlier testimony concerning her observation of the shooting. Her house is located five houses from - 5 - the house that was targeted in the drive-by shooting. At the time of the shooting, she was in her attic at a desk studying a college calculus textbook, and after hearing the shots, she looked out her window and saw the dark car with a sunroof accelerating away with the front passenger's window open with the passenger looking back toward the target home. She saw in the passenger window a laughing, heavyset caucasian male with a distinctive goatee beard and jowls. After that, she ran outside and down to the target house. When the police arrived, she related her observances to them. About two to three hours later that day, she identified Montoney in a cold stand identification conducted by the police at a location away from her home. She also identified Montoney in court as the passenger she had seen in the car that day. The fifth witness for the prosecution was Cleveland Police Officer Jeff Wonder, who was dispatched to the scene of the shooting. The officer recovered a small caliber bullet from the target home. After obtaining the physical description of the passenger from Ms. Donegan, he relayed this description to the occupants of the target home, who indicated that Montoney fit the description provided by Ms. Donegan. He passed this suspect identification, and the description of the car, to other officers. Occupants of the target home also stated that they had received a telephone call from Montoney shortly after the shooting implicating Montoney in the present shooting. The pistol turned in by Mr. Grube in connection with the juvenile court case was operable, but - 6 - could not be matched to the bullet recovered from the target home due to the mangled condition of the recovered bullet. The sixth witness for the prosecution was Cleveland Police Officer Dennis Sweeney, who stated that he is a member of the Strike Force Unit and responded to the broadcast information provided by Officer Wonder. This witness located Montoney later in the afternoon on the date of the offense. Montoney, who appeared upset when it was explained what he was stopped for, was placed under arrest after being positively identified by Ms. Donegan. The suspect vehicle was located parked in front of the home of the co- defendant. Later investigation indicated that the suspect vehicle was registered to the co-defendant. In a statement to the police, the co-defendant, Mr. Francis, stated: (1) that a male named "Willie," whom the co-defendant had never met before the date of the offense, was the shooter, and that another unnamed/unknown male was also along for the ride in another car; (2) that this "Willie" visited the co-defendant several days after the shooting and asked the co-defendant why he (the co-defendant) didn't lie to the police for him ("Willie"); and (3) the weapon used by "Willie" looked like a .38-caliber. Based on the location given by Mr. Francis, the witness went to the home of "Willie," finding William Grube, and based on comments by Mr. Grube as to the location of the weapon used in the shooting, the witness and his partner searched, unsuccessfully, the rooftop location given by Mr. Grube. William Grube's mother, several days later, turned over an unloaded .22- - 7 - caliber revolver to the witness. William Grube was seventeen years old at the time of this trial, and his physical appearance, which was very thin and slightly built, looked totally dissimilar to Montoney's stocky build. At this point the prosecution rested and both defendants moved for acquittal pursuant to Crim.R. 29(A). Subsequent to limited oral argument, the trial court denied the motions for acquittal. In Montoney's case-in-chief, the defense offered the testimony of Cleveland Police Detective Dornat Drummond. This witness investigated the shooting at issue with his partner, Officer Sweeney, and corroborated the testimony of Officer Sweeney. Following the close of this witness's testimony, the court denied defense counsel's renewed motion for acquittal. The co-defendant, Thomas Francis, testified on his own behalf during his case-in-chief, corroborating the testimony of Officer Wonder concerning his statements to the police. Following the testimony of this witness, the court denied the renewed motion for acquittal. Subsequent to closing arguments, the court acquitted the co- defendant, Mr. Francis, and convicted Montoney on the offense charged, but acquitted Montoney on the firearm specification. Following the preparation of a presentence investigation report, Montoney was sentenced to one year imprisonment with credit of 136 days. In addition, Montoney's probation status on a prior - 8 - conviction was terminated due to this conviction. This timely appeal followed presenting one assignment of error. I THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF IMPROPER DISCHARGE OF A FIREARM HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. In addressing a manifest weight of the evidence argument, we note that the primary task of weighing evidence and judging the credibility of witnesses is left to the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, at paragraph one of the syllabus; State v. Caldwell (1992), 79 Ohio App.3d 667, 679. Also, a reviewing court will not reverse a judgment based on manifest weight of the evidence where there is substantial, competent and credible evidence supporting the criminal conviction. State v. Eley (1978), 56 Ohio St.2d 169, syllabus. Also see State v. Jenks (1991), 61 Ohio St.3d 259. Thus, a reversal of a judgment based on manifest weight of the evidence will only be done in exceptional cases. State v. Woods (1985), 25 Ohio App.3d 35; State v. Martin (1983), 20 Ohio App.3d 172, 175. In the present case, there was competent, credible evidence presented in the form of the identification of Montoney by Ms. Donegan, which, if believed by the fact finder, would support a conviction herein. Further, when the eight factors enunciated in State v. Mattison (1985), 23 Ohio App.3d 10, syllabus, which are themselves the basis for appellant's appeal, are applied against - 9 - the testimony of Ms. Donegan, the weight of that testimony inures to the benefit of the prosecution on every single factor. Additionally, there was the evidence that Montoney had telephoned the target home shortly after the shooting and stated that the matter between he and the occupants was unfinished. Finally, there was testimony that the shots were fired from the front passenger seat and that Montoney was identified as the passenger in that seat. Assignment 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 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. SARA J. HARPER, J., and TIMOTHY E. McMONAGLE, J., CONCUR. JAMES D. SWEENEY PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App. R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .