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IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, Plaintiff-Appellee, vs. JONDA BERNEY, Defendant-Appellant.

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APPEAL NO. C-1000272 TRIAL NO. 10CRB-1258 JUDGMENT ENTRY.

We consider this appeal on the accelerated calendar, and this judgment entry is not an opinion of the court.1 Following a bench trial, defendant-appellant Jonda Berney appeals the trial court's judgment convicting her of menacing. We affirm. At trial, the victim, Tiara Mitchell, testified that as she was waiting for her class to start on the third floor of Cincinnati State College, Berney approached her, with another woman, and said to Mitchell, "Bitch, come in the bathroom because I'm going to beat your ass." Mitchell explained that there were no video cameras in the bathroom. Mitchell ignored Berney's request, went to class, and called the campus police. After class, Berney and her friend were waiting for Mitchell in the hallway. Berney again told Mitchell that she was going to "beat her ass." Mitchell walked

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See S.Ct.R.Rep.Op. 3(A), App.R. 11.1(E), and Loc.R. 12.

OHIO FIRST DISTRICT COURT OF APPEALS

away from Berney and went to the first-floor lobby. The latter incident was captured on video camera. Once on the first floor, Berney and several women approached Mitchell, and Berney said, "[W]e about to beat [Mitchell's] ass." At that point, a woman with Berney named Noel hit Mitchell. According to Mitchell, Berney pulled Noel off her and then kissed Noel. On cross-examination, Mitchell denied that she was angry at Berney for an incident that had happened earlier in the month when Mitchell was arrested at a department store after Berney had stolen some merchandise. Berney testified in her own defense and denied threatening Mitchell. She further explained that the exchange between the two women seen on the videocamera tape was about Mitchell informing Berney that Mitchell's house had been burglarized and that all of Berney's personal items that were in Mitchell's home had been stolen. Berney testified that she did not believe Mitchell's story. Following the testimony, the trial court found Berney guilty of menacing. The trial court noted that it had not found credible Mitchell's testimony that she had not been angry about being arrested for Berney stealing merchandise. But it had found credible Mitchell's testimony that Berney had threatened Mitchell, because the court believed that Berney had been upset about some of her personal items that were missing from Mitchell's house, and because the surveillance tape showed that Mitchell had walked away from Berney on the third floor. The trial court also noted that it believed that Mitchell had been in fear of physical harm because Mitchell called the police while in class.

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OHIO FIRST DISTRICT COURT OF APPEALS

On appeal, Berney raises a single assignment of error, contesting the weight of the evidence underlying her conviction. She argues that because the trial court had found some of Mitchell's testimony not to be credible, her conviction was against the manifest weight of the evidence. But it is well-established that a trier of fact may believe all, part, or none of the testimony of each witness who appears at trial.2 Further, when considering the issue of credibility on appeal, we are mindful that the trier of fact was in the best position to judge the credibility of each witness.3 Here, the only part of Mitchell's testimony that the trial court found not credible was Mitchell's statement that she had not been angry about being arrested for a crime Berney had purportedly committed. The trial court believed the

remainder of Mitchell's testimony and explained why it chose to credit it. Thus, after reviewing the record, we cannot say that the trial court lost its way and created a manifest miscarriage of justice in finding Berney guilty of menacing. The single assignment of error is overruled, and the judgment of the trial court is affirmed. Further, a certified copy of this judgment entry shall be sent to the trial court under App.R. 27. Costs shall be taxed under App.R. 24.

HILDEBRANDT, P.J., CUNNINGHAM and FISCHER, JJ.

To the Clerk: Enter upon the Journal of the Court on May 11, 2011 per order of the Court ____________________________. Presiding Judge

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State v. Long (1988), 127 Ohio App.3d 328, 335, 713 N.E.2d 1. State v. Gorrasi, 1st Dist. No. C-090292, 2010-Ohio-2875, ¶12.

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