CLERK OF COURT SUPREM: COURT OF OHIO IN THE SUPRENIE COURT OF OHIO. ^.- -^ } ^e gg ; STATE OF OHIO, Case No. Plaintiff-Appellee,

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1 IN THE SUPRENIE COURT OF OHIO ^.- -^ } ^e gg ; STATE OF OHIO, Plaintiff-Appellee, V. CEDRIC MARBURY, Case No. On Appeal from the Montgomery County Court of Appeals, Second Appellate District C.A. Case No Defendant-Appellant. MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLAN T CEDRIC MARBURY Cedric Marbury, # Lebanon Correctional Institution P.O. Box 56 Lebanon, OH (513) DEFENDANT-A.PPELLANT, PRO SE Mathias H. Heck Montgomery County Prosecuting Attorney 301 West Third Street Dayton, OH COUNSEL FOR PLAINTIFF-APPELLEE, STATE OF OHIO 1 PDa EVL '^^ t,: JUN CLERK OF COURT SUPREM: COURT OF OHIO.....'.i _,..^:,:,... ;h ^- r^..:; ^.>^, :t% ifsl t.l

2 TABLE OF CONTENTS EXPLANATION OF WHY THIS CASE INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION STATEMENT OF THE CASE AND FACTS ARGUMENT IltiT SUPPORT OF PROPOSITIONS OF LAW Proposition of Law No. 1: The Appellant's conviction was against the manifest weight of the evidence CONCLUSION CERTIFICATE OF SERVICE Appendix Appx. Pg. Opinion of the Montgomery County Court of Appeals (May 10,2013) Judgment Entry the Montgomery County Court of Appeals (May 10, 2013)... 9 i

3 EXPLANATION OF WHY THIS CASE RAISES A SUBSTANTIAL CONSTITUTIONAL QUESTION This case raises a substantial constitutional question because the court of appeals merely rubber-stamped the decision of the trial court instead of weighing the evidence itself as the precedent of this Court demands. The sole assignment of error before the court of appeals asserted that the conviction was against the manifest weight of the evidence. This Court has previously ruled that when reviewing a manifest weight of the evidence claim the appellate court sits as the thirteenth juror, and when it disagrees with the factfinders resolution of conflicting testimony, the judgment of the trial court should be reversed as against the manifest weight of the evidence. Stcite v..thornpkins (1997), 78 Ohio St.3d 380, 678 N E.2d 541. As has been explained, an appellate court "must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, 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 that a new trial be ordered."' State v, Gabriel (2007), 170 Ohio App.3d 393, 867 N.E.2d 474, citing, State v. Thompkins, 78 Ohio St3d 380 (emphasis added). In this case, the court of appeals showed a greater deference to the trial coul-t's evaluation than this Court's precedent permits. The Second District Court of Appeals specifically declined to evaluate the credibility of the witnesses in this matter. It did so in spite of the fact that the case hinged largely of credibility determinations. As this Court has previously indicated, an appellate court must consider witness credibility as part of its review of the evidence in assessing the merits of a manifest weight argument. State v. Thonapkins, 78 Ohio St.3d at 387. By refusing to engage in the evaluation of witness credibility, the court of appeals failed in its 1

4 obligation to evaluate the Defendant's assignment of error and it denied him his due process rights on appeal. An appellate court that merely rubber stamps the lower court's determinations without conducting an independent evaluation is not really engaging in any type of ineaningful appellate review. It must look at the evidence independently, weigh the evidence, consider witness credibility, and resolve any of the numerous conflicts in the evidence. When a court fails to engage in this analysis, it has failed its duty to sit as the thirteenth juror. If the court of appeals had ellgaged in an independent review of the facts, evidence, and credibility determinations, as it was required to do, the outcome of the appeal would have likely been different. This case rested almost solely on the credibility of the accuser, Alonna Smith, and the Defendant, and there was substantial evidence to suggest that Smith had fabricated much of her story. The failure to make an independent determination on matters of credibility is a refusal to undertake a manifest weight analysis at all. This Court should take jurisdiction over this case in order to ensure that a proper appellate review is conducted and to provide the Appellant with due process and equal protection of the laws as guaranteed by both the Ohio and United States Constitutions. Appellant was denied his right to appellate review by the undue deference shown to the trial court's decision. While some deference may be appropriate, the weighing of the evidence and credibility deterrninations are not the exclusive proviiice of the trial court. The court of appeals is permitted, and in fact obligated, to undertake its own analysis of the evidence. The failure to do so ignores this Cotirt's precedent in State v. Thompkins and this Court should accept jurisdiction to enforce the rule of law as set forth in that ruling. 2

5 STATEMENT OF THE CASE AND FACTS This case arose from a domestic altercation between the Appellant and his live in girlfriend Alonna Smitll which occurred in the Appellant's apartznent on the afternoon of August 13, It is undisputed that the couple argued on that date and that the argument turned violent, although the specifics are very much in dispute. The Appellant was convicted at a bench trial on March 21, 2012 and he was convicted of one count of having a weapon while under disability with a three (3) year firearm specification, one count of kidnapping (Fl) with a three (3) year firearm specification and a Repeat Violent Offender (RVO) specification (F1), and one count of felonious assault with a three (3) year firearm specification along with another RVO (F2). After merger of some of the charges, Appellant was sentenced to a total of nine (9) years imprisonment. An appeal was presented to the Second District Court of Appeals which denied the appeal on May 10, It is fi on1 this decision that Appellant requests that this Court assert jurisdiction. At trial, Alonna Smith claimed that Appellant had beat her, choked her, cut her with a razor, and held her captive at gunpoint for more than eighteen (18) hours. However, she conversely testified that she was alone, in public, on at least three occasions and that she failed to summon assistance or alert anyone that she was a hostage, as she later claimed. The Appellant also testified at trial and alternatively explained that the altercation was brief, provoked by Smith's assault, and that his only contact with the firearm was to disarm Smith when she reached for the gun during their altercation. The lower court erred when it refused to consider credibility of the witnesses in the appeal and it failed to fully weigh the evidence in reaching its decision. In support of this contention, the Appellant offers the following argument. 3

6 ARGUMENT IN SUPPORT OF THE PROPOSITION OF LAW Proposition of Law No. 1: The Appellant's conviction was against the manifest weight of the evidence. The court of appeals erred when it upheld the decision of the trial court which was clearly against the manifest weight of the evidenee. The alleged victim in this case told a rather preposterous tale that was unsupported by the evidence and that could not be believed by any rational trier of fact. The court of appeals showed undue deference to the trial court's assessment of credibility. Assessment of credibility is part of the review in which an appellate court must engage in reviewing a claim that a conviction is against the manifest weight of the evidence. State v. T1tompkins (1997) 78 Ohio St.3d 380, 678 N.E.2d 541. "Weight of the evidence concerns `the inclination of the greater amount of credible evidence, offered in a trial, to support one side or the otller...weight is not a question of mathematics, but depends on its effect in inducing belief."' Id. at 387, quotitzg, Black's Law Dictionarv 1594 (6`h Ed. 1990). In other words, a reviewing court asks "whose evidence is more persuasive - the state's or the defendant's'?" State v. Wilson (2007), 113 Ohio St.3d 382; 865 N.E.2d Such a review in this case clearly demonstrates that the accusations made by Alonna Smith lack credibility and are unsupported by the evidence presented by the state at trial. Neither the trial court nor the court of appeals made any effort to resolve the numerous inconsistencies in Smith's story. Smith and the Appellant were living together in August 2011 and had been living together since February It is undisputed that as Smith was getting ready to go to a concert, they began to argue and that argument turned physical. Both parties claim that the other was the 4

7 aggressor. Smith claims the Appellant punched her repeatedly in her face, choked her, cut her with a razor, and held her at gun point until the following day. The Appellant, alternatively, claimed that Smith assaulted him and reached for a gun during the altercation. 1-le further explained that he disarmed Smith and restrained her briefly in order to end the altercation, but that the incident was brief and that he hid the gun in the kitchen after disarming her and unloading the weapon. The Appellant noted that the following day, he packed his belongings and moved out of the couples shared residence - ending their relationship. Smith does not dispute this fact, nor does she dispute the fact that she waited some five (5) or more hours after Appellant moved out to tell her tale to the authorities. Smith admits that neither party was armed at the time the altercation began, but she alleges that while the Appellant is supposedly choking her, punching her, and pinning her down - that he asks where she has hidden her gun. One would logically presume that telling an attacker where they can locate a firearm is the last thing any reasor_2 able person would do - but Smith claims she did just that and revealed where she had hidden her gun. Smith further claimed that the Appellant had threatened her and cut her with a straight razor, although she later admitted on cross examination that there was no straight razor, but merely a small razor blade. Smith also claimed that after the altercation, that the two talked and she wanted to go the store. The Appellant claims that she left to go to the store alone, while Smith claims that they went together. However, even assuming for the sake of argument that they did leave together, as Smith claims, her story lacks credibility. Smith claims that they drove to a grocery store, a Sav- A-Lot, together and Smith claims that she is being abducted by the Appellant, even though it was her idea to go the store. She claims that she went into the grocery store alone. This grocery store was in an urban area at approximately 6:15 pm and presumably full of other customers as well as 5

8 employees. Once in the grocery store after havang been dropped off by the Appellant, and after she claims to have been beaten, choked, cut, and held hostage at gun-point by the Appellant, Smith inexplicably does nothing to summon assistance. She does not ask any store employees to call the police nor does she ask any other customers for help. Instead, she shops for a bit, buys nothing, and leaves the store. Smith states that when she left the store, the Appellant was nowhere in sight. Instead of seeking help like a kidnapping victim_ would logically do - she proceeds not to try to avoid the Appellant, but instead she begins walking towards their shared home. While walking towards the apartment, the Appellant offers her a ride which she accepts. Smith claims that they then drove to a Rite-Aid Pharmacy. Again, this store is in an urban location in broad daylight and the Appellant indisputably goes into the store alone to purchase Smith's desired items, leaving Smith to wait in the car. Alone in the car, Smith makes no effort to get away or to summon assistance as one would expect from a kidnapping victim. Rather, she simply waits in the car for the Appellant to return. When they return to the apartment, the couple avoids one another. Smith stays in the bedroom while the Appellant stayed in the living room. During this time, Smith states that she began texting her best friend Marcie. (When Smith obtained her phone or whether she had it the entire time is unclear from the record). Smith allegedly texted her friend and told her that the Appellant had tried to kill her and that the Appellant had "jumped" on her. There is no allegation at this time that Appellant had beaten Smith, choked 1i_er, or cut her as she would later claim. Smith declines Marcie's offer to come over and tells her not too call the police, a rather odd request from a person who would later claim to be held hostage at this point in time. 6

9 Marcie, apparently unconcerned by her texted conversation with Smith, does nothing to come to her aid. The following day, Smith, who slept in the couple's bed while the Appellant was relegated to the sofa, claims the Appellant offered to cook her breakfast. She declined and informed the Appellant that she was going to her nlother's house. Smith noted that the Appellant made no effort to stop her. Thus, Smith left the apartment - alone - indisputably free to go anywhere she chooses. Despite her later claim that she had been terrorized, kidnapped, and held hostage, Smith does not attempt to summon police nor does she attempt to receive treatment for any injuries that she claimed she sustained. Instead, she allegedly goes to Marcie's workplace. Interestingly, the State never called Marcie to testify to confirm these accounts nor does the record reflect that she was ever interviewed by the police. Whether or not Smith was injured at this point in time is unsupported by any evidence other than her testimony. Nonetheless, Smith claims that she stayed at Marcie's workplace only a short time because she was afraid the Appellant would come looking for her, although Smith admits that the Appellant did not know where she was, did not know Marcie was at work, nor did he know where Marcie worked. Thus, Smith's alleged fear seems unfounded and illogical. After leaving Marcie's, Smith again fails to make any effort to summon help, but returns back to the apartment and back to the Appellant. It seems rather difficult to believe that Smith would have returned had she indeed experienced the terror she claimed that she endured. The State claims that this person was beaten, choked, cut, and then terrorized for 15+ hours and that she then went to visit a friend at work and dutifully returned to her kidnapper instead of seeking assistance or sanctuary. Such a tale is simply incredible. 7

10 Smith next claims that when she returned, the Appellant was not at home so she started searching for her gun. When Appellant arrived home, she claims that they argued again, but she does not allege any physical contact. Smith then chose to leave the apartment again - and again the Appellant made no effort to stop her. Nor does she seek help this time either. Instead of calling the police, she calls the Appellant to continue the argument and the Appellant informs her that he is packing his things, moving out of their apartment, and ending their relationship. Smith next maintains that she went to her mother's house where she continued to call the Appellant instead of calling police as one would expect. Again, her mother, who presumably could have verified the existence of any injuries to Smith at this point in time, did not testify. Smith asserts that she left messages telling the Appellant that she wanted her gun and threatening to call the police if he would not give her the gun. Smith expressed fzustration that the.appellant ignored her and refused to take her calls. She next claims that the Appellant texted her; however, no record of that text was submitted as evidence despite the admission of the texts between Smith and Marcie. Apparently the collection of text messages by the police was quite limited. If one text exchange was recoverable from Smith's phone, this exchange should have been available too. Nonetheless, Smith next returns to the house with her mother. The Appellant is gone at this point, having moved out. He has left his keys in the apartment and the gun is there too, but unloaded. Smith's reaction is to text the Appellant again demanding to know the location of the ammunition. She later was contacted by a neighbor with whom Appellant had left the ammunition and got it back. Smith alleges that she next called police, though no evidence of any such call was ever produced. Smith later approaches a police officer who is parked in the parking lot of a shopping center and tells him some version of this story. He called for a crime scene investigator to come 8

11 to the shopping center to take pictures of Smith who, at this time, is exhibiting minor injuries that were not in need of any treatment; however, at no time does he or anyone else go to the apartment to process the scene of this alleged crime where Smith claims to have been held hostage over the course of two days. The razor, or razor blade, is never taken into evidence; no pictures of the apartment are taken until weeks later; and the gun is not recovered until weeks later. The police make no effort to obtain surveillance footage from the businesses where the two went to confirm Smith's story and no phone records are ever obtained. In fact, this case is remarkable due to its lack of corroborating evidence. The State submitted photographs of what it claims are text messages between Smith and Marcie, but none of the texts between Smith and the Appellant, as though they never occurred. No one could testify that Smith was injured prior to her flagging down a police officer some five (5) hours after she last saw the Appellant, nor could Smith verify her whereabouts in the interim. Smith's actions are inconsistent with those of a reasonable person who experienced the type of trauma she now claims to have endured. Her lack of effort in seeking help, her repeated excursions away from the Appellant and her voluntary return to him are inconsistent with someone who has been kidnapped, terrorized, and brutally assaulted as she claims she was. Further, her relatively minor injuries are inconsistent with the prolonged brutal assault Smith claims to have endured. The Appellant in this matter admits that there was a physical altercation on the evening of August 13, The Appellant asserts that he restrained Smith momentarily and disarmed her after she reached for a gun. He estimated that the incident lasted seconds. Appellant testified that he unloaded the weapon and they talked for about an hour. He went and placed the unloaded gun in the kitchen. The Appellant testified that Smith was in and out of the house the 9

12 entire evening and confirmed that they went to Rite-Aid together, where Smith remained in the car for about 15 minutes. The Defendant testified Smith had earlier gone to Sav-A-Lot by herself. The Appellant claimed that Smith got up around 10 the next morning and left to go to Marcie's. He indicated that he began packing his belongings and had left the apartment for good by 12:45 pni. Smith did not contact police until approximately 5:00 pm. Given these conflicting accounts, no reasonable trier of fact could have found the Appellant guilty beyond a reasonable doubt. There is simply no evidence to corroborate the felonious assault charge nor is there any evidence to corroborate a kidnapping in this matter. Even Smith's version of the facts does not support a kidnapping conviction. Smith's story simply lacks credibility. No one who endured the terror she claims she endured would conceivably avoid seeking help and purposefully avoid contact with the police for 24 hours when she had multiple opportunities to seek assistance. Instead, she waits for nearly five hours after the Appellant has moved out to flag down a police officer in a parking lot of a shopping center, where she is described by the police as "nervous, but not scared." The police do not go to the alleged crime scene for two weeks and then only to collect the evidence that Smith gives them. Notably, neither the gun nor the ammunition contained the Appellant's prints or DNA, despite Smith's claim that he handled both for more that 17 hours on August 13 and 14. Quite simply, the evidence does not support Smith's alleged events. The court of appeals explicitly declined to assess credibility in this case. It should have, because it is a part of the manifest weight analysis. Further, in this case, credibility matters because it is the only evidence supporting Smith's rather incredible tale. A closer look at the 10

13 evidence would reflect that Smith is not credible, that the evidence does not support her claims, and the conviction is against the manifest weight of the evidence. CONCLUSION For the reasons discussed above, this case involves a substantial constitutional question. The Appellant requests that this Court accept jurisdiction in this case so that the important issues presented above will be reviewed on their merits. ^spectfully submitted, ^^ %3t^ \^ ; ^.,ms ^..., e` 3 Cedric Marbury, #. fi `^. Lebanon Correctional Insti tion P.O. Box 56 ^<_.v..._ ^ Lebanon, OH APPELLANT APPEARS PRO SE Certificate of Service The undersigned hereby certifies that a copy of the foregoing notice of appeal was mailed by regular U.S. Mail, postage pre-paid, to counsel for the State of Ohio Mathias H. Heclk Montgomery County Prosecutor, 301. W. Third St. Dayton, OH, on this the day of June, b 1 / Cedric Marbury 11 f ^..

14 IN THE SLTPREME COURT OF OHIO STATE OF OHIO, Plaintiff-Appellee, V. CEDRIC MARBURY, Case No. On Appeal from the Montgomery County Court of Appeals, Second Appellate District C.A. Case No Defendant-Appellant. APPENDIX TO MEMORANDUM IN SUPPORT OF JURISDICT'ION OF APPELLANT CEDRIC MARBURY

15 s=rl.:, nwnx 2013 KAY 10 a:(t<: :.;._:3k ^J.G i^10 :? 6 STATE OF OHIO IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY Pla'intiffpAppeitee Appellate Case No V. Trial Court Case No CR-2913 CEDRIC MARBURY (Criminal Appeal from Common Pleas Court) Defendant-Appellant OPINi N Rendered on the 10th day of May, NIATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. # , Montgomery County Prosecutor's Offscce, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio Attorney for Plaintiff-Appellee MARSHALL G. LACHMAN, Atty. Reg. # , 75 North Pioneer Boulevard, Springboro, Ohio Afforrtey for Defendant-Appellant FAIN, P.J. (T 1) Defendant-appellant Cedric Marbury appeals from his conviction and sentence for Kidnapping, Felonious Assault, and Having Weapons While Under Disability. Marbury THE COURT OF APPEALS OF Of3iU SECOND APPELLATE DISTItfCT..ft/

16 contends that the guilty verdicts are against the manifest weight of the evidence because the victim's testimony was not credible. We conclude that the verdicts are not against the manifest weight of the evidence. Accordingly, the judgment of the trial court is Affirmed. -2-1, Marbury Assaults and Kidnaps his Girlfriend { 2} MarbUry moved in with Alonna Smith and her son in February Marbury and Smith had known each other for a number of years, and they had a romantic relationship that often was contentious. 3} On August 13, 2011, Smith and Marbury had plans to attend a concert together. Prior to leaving for the concert, they began arguing. Smith and Marbury gave differing accounts of what happened next. A. Smith's Version of Events {T 4} Accard ing to Smith, Marbury punched her in the jaw, knocking her to the floor. Tr. 31. As Marbury yelled and cursed, he got on top of Smith, held her arms down under his knees, and repeatedly hit her in the face and started choking her. Marbury demanded to knaw where Smith had hidden her gun. Id. When Smith told him that it was in the drawer next to them, Marbury dumped the drawer on the floor, grabbed the gun, chambered a bullet, put the gun to Smith's head, and stated, "Bitch, I will kill you in here. ld, at 32. The force with which Marbury held the gun against Smith's head left a scratch on her face. fd at {15} While holding Smith down, Marbury put the gun aside and grabbed a straight razor. id. 32. Marbury began making slashing motions with the razor and stated, "Bitch, THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT..iha

17 i'll cut your face. He then cut Smith's nose. ld. Marbury subsequently put down the razor, picked up the gun, and began to yell at Smith, referencing a friend who had shot someone, leading Smith to believe that Marbury would shoot her, Id. at 41-43, (161 Marbury eventually let Smith go into the bathroom to attend to her injuries. At that time, Smith had a cut on her nose and a scratch on her face, along with a swollen face and neck. ld. at 35-41,43. She also had bruises on both of her arms. kl. at 36. Smith told Marbury that she needed Epsom salt to reduce her sweiling. ld. at 43. Marbury drove Smith to a grocery store and brought the gun with him, He dropped Smith off at the door to the store, but warned her that she had better come back to the car: ld. She could not locate any Epsom salt and retumed to the-car. Marbury then drove her to a drug store and purchased Epsom salt while Smfth waited in the car. ld. at 44. {l 71 Marbury drove Smith back to their apartment, and alternated between being enraged and apologetio. Smith sent a few text messages to a fr`iend, alerting the friend that Marbury had jumped on Smith. Smith also told her friend that Marbury would not leave, he had tried to kill her, and she was scared to call the police because Marbury had Smith's gun. kl at4g-49. (I( 8) The next mrr^ir4g, Smith convinced Marbury to let her leave the home to go visit her mother. ld. at 52. Instead of going to see her mother, Smith went to see her best friend, and explained to her everything that had happened, ld at 53. (19) Smith returned to her apartment, and eventually was confronted by Marbury, who told her that he had gone to her mother's house, and discovered that Smith was not there. id. at 54. Marbury accused Smith of cheating on him, and lunged at her again. Id. A few minutes later, while Marbury was in the kitchen making breakfast, Smith ran out of THE COURT OF APPEALS OF OHIO SECONF? APPELLATE DISTRICT

18 le, the apartment to her car and drove away. Once she was safely away from her apartment, Smith called Marbury, told him to leave the apartment, and told him that she would call the police if Marbury did not leave Smith's gun in the apartment, Id. at Marbury left, and Smith returned to the apartment. She called the Montgomery County SherifPs Office and reported Marbury's actions. Id at 56-57, if B. Marbury's Version of Events { 10) Marbury conceded that he was arguing with Smith on August 13th. According to Marbury, however, Smith struck Marbury first during the argument, and Marbury responded by smacking her on her cheek. Tr Smith then attempted to get her gun from the drawer, but Marbury held her down to keep her from getting the gun. Id. At that point, Marbury got control of the gun and separated the gun from the magazine. fd. at 108. {111} About an hour later, Smith left the house on her own in search of Epsom salt, but retucned without any. Marbury then drove Smith to the store to get some Epsom salt. id at The next morning, Marbury was washing clothes, and assumed everything fvas fine. Id. at 11Q. Marbury went to Ace Hardware and ptirchased some containers in which he planned to pack his belongings. Id. Marbury then told Smith that he had decided to move out of the apartment because of the previous night's altercation and the fact that Smith had a gun at the apartment. /d. at 11Q-111. (112) Marbury denied assaulting Smith, choking her, and slashing her with a razor. Id. at , , He also denied holding Smith against her witl, and believed that Smith was making up the allegations against him because she did not want THE COURT OF APPEALS OF (?HIO SECOND APPELLATE DISTRICT

19 _5. to lose him. td. at 111, If. Course of the Proceedings 13) Marbury was indicted on one count of Having Weapons While Under Disabiiity, in violation of R.C (,4)(2), one count of Kidnapping, in violation of R.C (A)(3), and one count of Felonious Assault, in vioiation of R.C (A){2). All three counts of the indictment had firearm specifications, and the Kidnapping and Felonious Assault counts of the indictment had an additional specification involving Marbury's status as a repeat violent offender. {114} Marbury waived his right to a jury trial. Following a bench trial, the trial court found Marbury guilty on all three counts, and all specifications, as charged in the indictment. The trial court sentenced Marbury to an aggregate prison sentence of nine years. From this judgment, Marbury appeals. III. The Verdicts Are Not Against the Manifest Weight of the Evidence { 15} Marbury's sole assignment of error states: THE TRIAL CGt.EF2T'S VERDICTS SHOULD BE RafERSED AS THEY WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. a 16) When a conv;ctinn is challenged on appeal as being against the weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, 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 THE COURT#JFAPPEALS OF OHP SECOND APPELLATE DISTRICT ; ^

20 9 ^Vv. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A judgment should be reversed as being against the manifest weight of the evidence "only in the exceptional case in which the evidence weighs heavily against the conviction." State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1 st Dist. 1983). {117} Marbury contends that the ttial court's verdicts are against the manifest weight of the evidence because the court "simply ignored the inconsistencies and the fundamental discrepancies in Ms. Smith's testimony." Brief, p. 8. According to Marbury, "[i]t defies any logic that Ms, Smith, claiming such abuse, would have so many opportunities to get away from the Defendant yet return on so many occasions during the 11 time of the alleged criminal activity." /d. at 9. (118) Smith testified in detail about being assaulted by Marbury and being held against her will. The State introduced photographs depicting the injuries sustained by Smith, and the pictures were consistent with Smith's testimony. Furthermore, the text messages sent by Smith were consistent with Smith's testimony. Before announcing its verdict, the trial court made the following stetement: I have reviewed the evidence. I listened carefully to the evidence of all the witnesses. I've reviewed carefully the exhibits as ^n+eil as ti-ie statutes applicable in this case. I've also considered the credibility of all of the witnesses. I find the testimony of Ms. Smith to be very credibie.. I did not find the testimony of Mr. Marbury to be credible in many respects. Tr (1119) The credibility of the witnesses and the weight to be given to their#estimony are primarily matters for the trier of fact to resolve. State v. DeHass, 10 Ohio St.2d 230, THE COURT OF APPEALS OF OHIO SECOND APPELLATE DlSTK1CT

21 .z 231, 227 N.E.2d 212 (1967). "Because the factfinder * * * has the opportunity to see and hear the witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a judgment is against the manifest weight of the evidence requires that substantial deference be extended to the factfinder's determinations of credibility. The decision whether, and to what extent, to credit the testimony of particular witnesses is `erifthin the peculiar competence of the factfinder, who has een and heard the wifness." State v. Lawson, 2d Qist. Montgomery No , 1997 WL (Aug. 22, 1997). {120} This court will not substitute its judgment for that of the trier of facts on the issue of witness credibility unless it is patently apparent that the trier of fact lost its way in arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL (Oct. 24, 1997). { 2'I} The trial court decided to credit Smith's testimony over Marbury's#estimony. Smith's testimony, along with the photographs and text messages introduced in evidence at trial, support the guilty verdicts. We reject Marbury's contention that Smith's testimony should be rejected solely because she failed to attempt an escape from Marbury at the earliest opportunity. Based on our review of the evidence presented at trial, we do not find that the trial courtclearly iust its way an : created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." Thompkins, supra. Marbury's sole assignment of error is overruled. _7_ IV. Conclusion {122} Marbury's sole assignment of error having been overruled, the judgment of the trial court is Affirmed, 'f'he COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT

22

23 ' `^' f^ Nn'nut.^^,6 1, IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO Ps aintitt-appee4ee Appellate Case No V. CEDRIC MARBURY Defendant-Appellant Trial Court Case No CR (Criminal Appeal from Common Pleas Court) FINAL ENTRY Pursuant to the opinion of this court rendered on the t^^h day af May, 2013, the judgment of the trial court is Afrirmed. Costs to be paid as stated in App.R. 24. Pursuant to Ohio App.R. 30(A), it is hereby ordered that the clerk of the Montgomery County Cotact of Appeals shall immediately serve notice of this judgment upon all parties and make a note in the docket of the mailing. 0-0-qle MIKE FAIN, Presiding Judge. THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT

24 .. B a2_ MAF^ rovan, E. Judge JE FREY NI.INELBAUM, Judge Copies mailed to: Mathias M. Heck, Jr. Andrew T. French Montgomery County Prosecutor's {3ffice P.O. Box 972 Dayton, OH Marshall G. Lachman 75 N. Pioneer Blvd. Sprengboro, OH Hon. Mary K. Huffman Montgomery County Common Pleas Court 41 N. Perry Street Dayton, OH 45422, THE COURT OF APPEALS OF i7n 3() SECOND APPELLATE DISTRICT

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