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In re Travis L. H.10/14/2005
r, appellant asserts the trial court erred by improperly weighing the testimony of witness Carrie B. pursuant to R.C. 2923.03(D). In support, appellant asserts that the trial court erred by purportedly failing to subject Carrie B.'s testimony to "grave suspicion." However, counsel for appellant fails to specify the basis, beyond the adverse result, from which it concluded Carrie B.'s testimony was not properly scrutinized by the trial court in weighing its decision. More importantly, it must be noted that the statute upon which appellant relies in support of his second assignment of error is facially inapplicable to this case. R.C. 2923.03(D) expressly and exclusively applies to cases involving jury trials. By contrast, the juvenile case under review clearly did not entail a jury. The statute states, in relevant part:
{ } "* * * the court, when it charges the jury, shall state substantially the following:
{ } "'The testimony of an accomplice does not become inadmissible because of his complicity, moral turpitude, or self-interest, but the admitted or claimed complicity of a witness may affect his credibility and make his testimony subject to grave suspicion, and require that it be weighed with great caution. * * *'"
{ } This argument presents as fact for purposes of appellate review a key element that is not a fact in this case. Counsel for appellant simply concludes Carrie B. is a statutory "accomplice". The record establishes that Carrie B. was guilty of driving under the influence and poor judgment. It does not, however, establish complicity for purposes of application of R.C. 2923.03. Even assuming, arguendo, Carrie B. was an accomplice, R.C. 2923.03(D) expressly leaves to the discretion of the trier-of-fact whether or not the testimony of an accomplice is undermined by their complicity. We find the record is devoid of evidence to support a claim of an abuse of discretion by the trial court in finding Carrie B.'s testimony credible.
{ } This court has thoroughly examined the record from below and finds the testimony of witness Carrie B. credible and sufficient to establish appellant's guilt beyond a reasonable doubt. This court further finds the credibility of testimony given by Detective McDonough and Carrie B. outweighs the credibility of the alibi testimony furnished by appellant's mother and relatives. Appellant's second assignment of error is found not well-taken.
{ } The judgment of the Huron County Court of Common Pleas, Juvenile Division, is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Huron County.
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98.
Peter M. Handwork, J. JUDGE
Arlene Singer, P.J., Dennis M. Parish, J. CONCUR.
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