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State v. Young

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 10, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
GEORGE YOUNG DEFENDANT-APPELLANT

         Cuyahoga County Court of Common Pleas Case No. CR-13-573242-A Application for Reopening Motion No. 510757

          George R. Young FOR APPELLANT

          Michael C. O'Malley, Katherine E. Mullin ATTORNEYS FOR APPELLEE

          JOURNAL ENTRY AND OPINION

          MARY EILEEN KILBANE, P.J.:

         {¶1} George Young has filed a timely application for reopening pursuant to App.R. 26(B). Young is attempting to reopen the appellate judgment, rendered in State v. Young, 8th Dist. Cuyahoga No. 104627, 2017-Ohio-7162, that affirmed his conviction for the offenses of rape and kidnapping. We decline to reopen Young's original appeal.

         {¶2} In order to establish a claim of ineffective assistance of appellate counsel, Young is required to establish that the performance of his appellate counsel was deficient and the deficiency resulted in prejudice. Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), cert. denied, 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 767 (1990).

         {¶3} In Strickland, the United States Supreme Court held that a court's scrutiny of an attorney's work must be highly deferential. The court further stated that it is all too tempting for a defendant to second-guess his attorney after conviction and that it would be too easy for a court to conclude that a specific act or omission was deficient, especially when examining the matter in hindsight. Thus, a court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland

          {¶4} Young has raised one proposed assignment of error in support of his application for reopening. Young's sole proposed assignment of error is that:

Appellant was denied effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution where appellate counsel omitted a dead bang winner, prejudicing the appeal from receiving a full review by the Court.

         {¶5} Young, through his sole assignment of error, argues that the trial court's verdict was against the manifest weight of the evidence. Specifically, Young states that the testimony of the victim and the victim's mother "was not believable" and that "Appellant respectfully urges the Court to sit as the thirteenth juror and determine whether in resolving conflicts in the evidence, the factfinder clearly lost its way and created a manifest injustice" that requires reversal and a new trial.

         {¶6} A challenge to the manifest weight of the evidence involves whether the state has met its burden of persuasion. State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). This court, when reviewing a manifest weight challenge, is required to review all of the evidence contained in the record and in resolving any conflicts, determine whether 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." Id. at 387.

         {¶7} When considering the manifest weight of the evidence, this court must also determine the credibility of each witness. However, we are aware that determinations regarding the credibility of any witness and the weight of offered testimony are primarily issues for the trier of fact. State v. Bradley, 8th Dist. Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967).

         {¶8} The trial court, as the trier of fact, was best able "to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations in weighing the credibility of the proffered testimony." State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. The trial court, as the trier of fact, was at liberty to take note of any inconsistencies and resolve the inconsistencies by "believ[ing] all, part, or none of a witnesses's testimony." State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).

         {¶9} Herein, the trial court heard the testimony of the victim, the victim's mother, and Young, and chose to believe the victim and the victim's mother over Young. Despite any inconsistencies or contradictions in the testimony of the victim or the victim's mother, the trial ...


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