COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59201 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION WILLIAM McNAMEE : : Defendant-appellant : : DATE OF ANNOUNCEMENT : NOVEMBER 7, 1991 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-240919 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES Hyman Friedman, Cuyahoga Cuyahoga County Prosecutor County Public Defender Jeffrey Margolis Robert M. Ingersoll Assistant County Prosecutor Assistant Public Defender The Justice Center Marion Bldg., Room 307 1200 Ontario Street 1276 West Third Street Cleveland, OH 44113 Cleveland, OH 44113-1569 - 2 - PATTON, J., Defendant-appellant William McNamee ("appellant") appeals from his conviction of one count of aggravated assault (R.C. 2903.12) with a violence specification. Appellant was originally indicted on one count of felonious assault (R.C. 2903.11)./1\ For the reasons that follow, the decision below is affirmed. The following relevant facts gave rise to this appeal: the victim, Hughlene Patricia McNamee, appellant's ex-wife (the "victim"), testified on behalf of the state. She stated that she is the mother of four children, three of which were born during wedlock to appellant. On the day in question, appellant had an arrangement with the victim to pick up their two sons at the victim's grandmother's house, where they stayed during the day while the victim worked. The victim, upset that appellant was late picking up the children, called appellant at home. Apparently, appellant became angry at the victim for "bothering him." (Tr. 24.) The victim proceeded to pick up her daughter at her grand- mother's house. As she was leaving she saw appellant on the street. According to the victim's testimony, he almost "leaped" on her car and began "yelling and screaming" at her for calling /1\ Aggravated assault, R.C. 2903.12, is not a lesser included offense of felonious assault, R.C. 2903.11, but the same offense with a reduction in penalty upon determination by the trier of fact of the existence of the mitigating circumstance of sudden passion or sudden fit of rage, which mitigates a defendant's criminal culpability. State v. Carter (1985), 23 Ohio App. 3d 27. - 3 - him at home. (Tr. 25.) An argument ensued after which appellant grabbed her two fingers and began twisting them, and then grabbed her by the throat. (Tr. 25.) The victim told appellant if he "calmed down" he could meet them later at the children's baseball game. Appellant then left. He arrived unexpectedly at the victim's house shortly after the victim returned home. Apparently, appellant began yelling at the victim when she went to the door. Appellant was demanding that he take the children that day. The victim kept refusing his demand. The victim again extended her offer for appellant to meet them at the baseball field. Appellant pursued his argument and threatened to hit her. (Tr. 31.) As they both turned to depart, appellant hit the victim in the jaw, breaking it and cracking several teeth. The victim ran inside her house, locked the door and telephoned the police. She heard appellant pounding on the side and front doors of her house. The victim then went to the hospital after her children's baseball games. She remained in the hospital for three days and had to have her jaw wired shut for thirteen weeks. She underwent two surgeries as a result of the broken jaw. The victim denied making any threaten- ing gestures toward appellant or touching him. Further, she denied the possession of any weapons. Gene Stepak ("Stepak"), the victim's next door neighbor, testified. He stated he was napping in his living room when he was awakened by loud arguing at the victim's house. Stepak got - 4 - up and looked out the window and saw appellant arguing with the victim while standing at the side door. He did not see anything else. William McNamee's ("Billy") testimony corroborated that of the victim. Billy stated he saw appellant hit the victim during a heated argument. Billy also stated he did not see the victim hit or touch appellant prior to being hit. Stephanie Peris ("Stephanie"), appellant's step-daughter also corroborated the victim's testimony. James Gobble ("Gobble"), the victim's boyfriend, testified he was told by the victim that earlier in the day she got into an argument with appellant and had gotten hit. She told Gobble that appellant "punched" her. (Tr. 172.) The defense presented the testimony of several witnesses who averred they saw scratch marks on appellant's neck and chest the day after the incident in question. Another witness testi- fied that these scratch marks were consistent with those made by human fingernails. The defense also presented character wit- nesses. Appellant testified in his own behalf. He admitted striking the victim and stated he "could really give a s---less" to see if the victim was all right after he saw her spitting out blood subsequent to his attack. He called her later, though, after he realized what he had done. (Tr. 285.) Appellant, however, averred that he hit the victim because she was grabbing his - 5 - throat and he feared for his life. He claimed he hit her as a "reflex" action. Appellant also stated that while he and the victim were married she attempted to kill him twice. Upon cross-examination it was revealed that appellant has been in the army for twenty-one years and had extensive training in self-defense and hand-to-hand combat. He also accused his eight-year old son Billy of lying on the stand with regard to his testimony that he witnessed appellant raise his hand and strike the victim. The state presented two rebuttal witnesses. One witness testified she saw appellant strike the victim once before while the three lived together in 1979. The other witness testified she was present during an incident where appellant began choking and hitting his step-daughter, Stephanie, after becoming upset over an allegedly sarcastic remark she made. Appellant was sentenced to one and one-half to five years incarceration plus costs, which sentence was suspended on the condition he complete ninety days in the work release program. He was also placed on three years probation and ordered to pay restitution to the victim. Appellant's timely appeal raises three assignments of error for our review: I. THE VERDICTS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. II. WILLIAM McNAMEE HAS BEEN DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS SENTENCE FOR ONE AND ONE-HALF TO FIVE YEARS ON HIS CONVICTION - 6 - FOR AGGRAVATED ASSAULT, AS SAID SENTENCE EXCEEDS THE STATUTORILY PERMISSIBLE SENTENCES FOR THE CRIME OF WHICH HE WAS CONVICTED. III. THE TRIAL COURT ERRED AND DENIED WILLIAM McNAMEE OF HIS CONSTITUTIONAL RIGHT TO COMPULSORY PROCESS, WHEN IT WOULD NOT PERMIT HIM TO INTRODUCE EVIDENCE ABOUT THE VICTIM'S MENTAL HISTORY. I. Appellant argues in his first assignment of error that the jury's verdict is against the manifest weight of the evidence. Specifically, he contends that the jury's verdict was based upon uncertain, unreliable and conflicting evidence. We do not agree. The appellant's challenge to the manifest weight of the evidence requires us to review the entire record, weigh the evidence and all reasonable inferences and to consider witness credibility. State v. Davis (1988), 49 Ohio App. 3d 109; State v. Martin (1983), 20 Ohio App. 3d 172. A reviewing court must determine whether the fact finder lost its way in resolving conflicts in evidence and thereby created a manifest miscarriage of justice requiring reversal. Id. This court may not reverse a conviction where substantial evidence exists upon which the court could reasonably conclude that all elements of an offense have been proved beyond a reasonable doubt. State v. Eskridge (1988), 38 Ohio St. 3d 56; State v. Eley (1978), 56 Ohio St. 2d 169. We are mindful that the weight to be given the evidence and the credibility of the witnesses are primarily for resolution - 7 - by the fact finder. State v. Thomas (1982), 70 Ohio St. 2d 79; State v. DeHass (1967), 10 Ohio St. 2d 230. R.C. 2903.12, aggravated assault, provides in part: (A) No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly: (1) Cause serious physical harm to another; (2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code. *** The essential elements of aggravated assault and felonious assault, R.C. 2903.11, are the same. State v. Harper (Mar. 21, 1991), Cuyahoga App. No. 58269, unreported, at 6-7; State v. Whitt (1987), 31 Ohio App. 3d 92; State v. Carter (1985), 23 Ohio App. 3d 27. Though the crimes are identical, a reduced penalty results upon a determination by the fact finder that there are circumstances of sudden passion or a fit of rage so as to miti- gate a defendant's criminal culpability. Our review of the record does not reveal any inconsistencies in the testimony which would require us to reverse the decision below as being against the manifest weight of the evidence. First, appellant's contention that the victim's testimony was not corroborated is false. Her testimony was indeed corro- borated by Billy's testimony. Appellant asserts that Billy did not "actually see his father hit his mother," (Appellant's brief - 8 - at p. 14) and he cites to page 127 of the record. A review of page 127 of the record reveals that Billy indeed testified that he saw appellant strike the victim, contrary to appellant's contention. Q Now, did you see your dad hit your mom? A I couldn't see all of it, but I saw him hit her. I couldn't see all of his fist, and all of my mom's face. But I saw him hit her. (Tr. 127.) Second, appellant falsely contends that Stephanie's and Gobble's testimony contradicts the victim's testimony. Stephanie corroborated the victim's testimony and Gobble's testimony recounted the version of events as explicated by the victim and her two children. No inconsistencies are found. Third, although appellant presented testimony that he indeed had scratches on his neck and chest which were consistent with scratches made by a human fingernail, no evidence was presented that the victim actually caused the scratches but for appellant's own testimony. The jury had before it the witnesses and we will not second-guess the credibility of witnesses on appeal. That is properly left in the province of the fact finder. Fourth, while appellant claimed he feared for his life during the victim's alleged brutal assault, the jury had before it the "diminutive" size of the victim (Tr. 275) versus appel- lant, a man with twenty-one years of service in the army, which included extensive self-defense and hand-to-hand combat training. - 9 - We find that the jury's verdict is not against the manifest weight of the evidence and overrule appellant's first assignment of error. II. Appellant's second assignment of error argues he was denied due process of law when he was sentenced to a term of incarcera- tion which exceeded the statutorily prescribed maximum for aggravated assault. Specifically, he posits that because he was not convicted of the accompanying violence specification, his sentence is void as it exceeded the maximum sentence. Appellant concedes that his sentence is in compliance with the legislative mandates for a conviction of aggravated assault with a violence specification, a crime for which he was convicted. A step-by-step review of the record is necessary for the resolution of this assignment of error. As the following review will reveal, appellant was indeed convicted of the violence specification. Appellant was indicted on one count of felonious assault with a violence specification. The jury verdict form finding him guilty of aggravated assault reads: VERDICT We, the Jury in this case being duly impaneled and sworn, do find the defendant WILLIAM McNAMEE, (*) Guilty of Aggravated Assault upon Hughlene McNamee, in violation of R.C. 2903.12, an offense of an inferior degree under the charge of the Indictment. (Emphasis added.) - 10 - The charge of the indictment included a violence specification which specification stated that appellant caused physical harm to the victim during the commission of the offense. The journal entry which journalized the jury's guilty verdict found appellant guilty of one count of aggravated assault "under the charge of the indictment." The charge of the indictment clearly included a violence specification. Appellant's second assignment of error is overruled as he was indeed found guilty as charged in the indictment. III. Appellant's third assignment of error challenges the trial court's ruling denying his request to introduce evidence about the victim's psychiatric history. Specifically, appellant contends her psychiatric history was relevant to the issue of self-defense and should have been admitted. "The admission or exclusion of relevant evidence rests within the sound discretion of the trial court." State v. Sage (1987), 31 Ohio St. 3d 173, paragraph two of the syllabus. Absent a clear and prejudicial abuse of discretion, the trial court's ruling will not be disturbed on appeal. Calderon v. Sharkey (1982), 70 Ohio St. 2d 218, 222. Appellant posits the victim's psychiatric history was rele- vant. Relevant evidence is "*** evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than - 11 - it would be without the evidence." Evid. R. 401; see, also, State v. Tolliver (1984), 16 Ohio App. 3d 120 (Evid. R. 401 applied). Applying the above rules, we hold the trial court did not err in excluding the evidence. The victim's alleged proclivity toward self-destruction in no way bears upon appellant's assault in this particular incident. Because we do not find the trial court abused its discre- tion, appellant's third assignment of error is overruled. Judgment affirmed. - 12 - 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 Court of Common Pleas 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. DYKE, P.J. SPELLACY, J., CONCUR. JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .