COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59565 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION ROCCO ORTIZ : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 12, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-234583 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JAMES J. McDONNELL, ESQ. Cuyahoga County Prosecutor 936 Terminal Tower GEORGE J. SADD, ESQ. Cleveland, Ohio 44113 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - HARPER, J.: I. Appellant, Rocco Ortiz, was indicted by the Cuyahoga County Grand Jury on a three-count indictment; to wit: two counts of Felonious Assault, in violation of R.C. 2911.02, and one count of Burglary, in violation of R.C. 2903.11. Appellant was tried by a jury. On May 5, 1990, appellant was convicted by the jury on two counts of Aggravated Assault, in violation of R.C. 2903.12, and one count of Burglary, in violation of R.C. 2911.12. Appellant was found not guilty of Felonious Assault. Appellant was sentenced to a minimum term of two years and a maximum term of five years in jail on each Aggravated Assault charge, and a minimum term of eight years and a maximum term of fifteen years in jail on the Burglary conviction. The court ordered that the sentences be served concurrently. Appellant's motion for leave to file a delayed appeal was granted. For the reasons that follow, we affirm. II. Walter Beck testified that he is the owner of Back Street Lounge, located at 1311 East 49th Street, Cleveland, Ohio. Mr. Beck stated that he employed Rocco Ortiz as a bartender, maintenance man and a bouncer at his bar. Mr. Beck testified that he closed the bar at about 2:30 a.m. on the early morning of November 10, 1988 and took the cash register receipts upstairs to - 2 - the office. When he came downstairs, he began cleaning the bar. Mr. Beck testified that a few minutes after he began cleaning the bar, Mr. Ortiz started screaming at his girl friend, Dana Bennett, accusing her of "*** screwing with my emotion ***." Mr. Beck attempted to intervene between Ortiz and his girl friend when Ortiz punched him in the mouth with his fist, knocking him to the floor. Mr. Beck immediately fired Mr. Ortiz. Mr. Beck got up from the floor and proceeded to the kitchen to attend to the bleeding from his mouth. At that time, Mr. Conwell pushed Mr. Ortiz out of the bar through a side door and locked the door behind him. A few minutes after the door was closed it flew back open and Mr. Ortiz walked back into the bar saying that he wanted the beer that he had already paid for. Mr. Ortiz began throwing beer bottles in the direction of the bar patrons. Mr. Beck stated that Mr. Ortiz threatened to ruin his business and "burn the place down" if the police were called. Mr. Beck testified that he broke his finger while attempting to protect himself from the flying debris thrown by Mr. Ortiz. Mr. Beck testified that he did not threaten or strike Mr. Ortiz, and that he did not have any weapon during the entire ordeal. Mr. Beck went to the hospital and received about twenty-four stitches on the cut on his lip. Mary Bell Howe testified that she was a long time friend of Mr. Ortiz. She testified that she was at the Back Street Bar with some friends on the night of November 10, 1988. Ms. Howe testified that she was an eyewitness to the argument between Mr. - 3 - Ortiz and Mr. Beck. She testified that after Mr. Ortiz was pushed out of the bar, he reentered and began throwing bottles at one of the ladies at the bar, later identified as Dana Bennett. She testified that a shoving match between Mr. Ortiz and Mr. Beck erupted into a fight and nobody really saw the first punch thrown. Terrence Conwell testified that he is employed by the Cuyahoga County Sheriff's Department and a part-time employee of the Back Street Bar. He stated that he was present at the Back Street Bar on the night of November 10, 1988. He testified that Mr. Beck and Mr. Ortiz argued over Dana Bennett. Mr. Conwell stated that the fight stopped when he stepped in to separate them. He escorted Mr. Ortiz out of the bar and closed the door behind him. Mr. Conwell testified that he turned around and Mr. Ortiz was back in the bar looking for his beer. He testified that Mr. Ortiz began throwing bottles. He did not see who threw the first punch. He testified that Mr. Ortiz broke the window of Mr. Beck's car. Officer James Purcell of the Cleveland Police Department testified that he was the officer who arrived at the bar as a result of a call made to the police department. He stated that he viewed the "messed up" condition of the bar and Mr. Beck's injury, and filed a report. Beverly Hartfield testified that she is a stepdaughter of Mr. Beck. She stated that she answered a phone four nights after the bar incident. She stated that the party at the other end of - 4 - the phone was Mr. Ortiz. Mr. Ortiz had called to speak to Mr. Beck. She informed him that Mr. Beck was already in bed, sleeping. She stated that Mr. Ortiz related to her that he was sorry for what had happened and warned that if Mr. Beck filed charges against him, that "things would get ugly and a lot of people would get hurt". Mr. Ortiz took the stand on his own behalf. He testified that the incident occurred as a result of an argument he had with Mr. Beck concerning his girl friend, Dana Bennett. He testified that Mr. Beck has been pressuring Dana to go to bed with him and he was bothered by it. He stated that Mr. Beck yelled at him and said, "'Fuck you Spic' like that, and he just like raised his hand and got all in my face, and in a reflect action I hit him with my left and he went flying into the table." Mr. Beck jumped up and grabbed a chair, attempting to poke it at his face. He grabbed the chair from Mr. Beck's hand and threw it. He became enraged and kicked over tables and threw three beer bottles against the wall. He stated that he was escorted out of the bar by Mr. Conwell. When he tried to reenter, it felt as if Mr. Conwell was holding the door closed with his body. He kicked the door and it flew open. He stuck his head inside the bar and yelled at Mr. Beck. He went home. Ms. Bennett later joined him at home and spent the night with him. He testified that he later phoned Mr. Beck to apologize. III. Appellant's assignments of error are as follows: - 5 - "I. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. "II. DEFENDANT'S CONVICTION OF BURGLARY IS CONTRARY TO LAW. "III. THE APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES. "IV. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL." Appellant, in his first assignment of error, argues that the jury verdict was against the manifest weight of the evidence. Appellant argues that since "the record is totally void of any injury or harm to Donna [sic] Bennett", that his conviction was not supported with credible evidence. R.C. 2903.12 states as follows: "(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. "(B) Whoever violates this section is guilty of aggravated assault, a felony of the fourth degree. If the victim of the offense is a peace officer, as defined in section 2935.01 of the Revised Code, aggravated assault is a felony of the third degree." A conviction under R.C. 2903.12 is not predicated on actual injury or harm to the victim, but lies when there is sufficient evidence showing that a defendant knowingly attempted to cause physical harm to another by means of a deadly weapon or dangerous ordnance. It is a settled law that the intent of a defendant - 6 - cannot be proven by direct testimony of another but by the totality of all the facts and circumstances. State v. Flowers (1984), 16 Ohio App. 3d 313. In the within case, there is uncontroverted testimony that appellant in a fit of rage threw beer bottles and chairs at Ms. Bennett and other patrons at the bar. Appellant had the following to say on direct examination: "Q. Did you say anything to Dana Bennett at that "A. Yes. "Q. What did you say? "A. I called her a bitch. "Q. Did you call her anything else? "A. No, sir. "Q. Can you show these ladies and gentlemen of the jury how you threw the beer bottle? "A. I just went like this. "Q. Where were you looking when you did that? "A. I was looking at Dana. "Q. What did Dana do? "A. She ducked behind the bar. "Q. Can you tell these ladies and gentlemen of the jury how far from Dana these beer bottles hit in feet? "A. I would say about six feet from her head. I wasn't trying to hit her." Appellant cannot argue that he lacked knowledge that the beer bottles could have injured Ms. Bennett if she had not ducked. Several state witnesses testified that appellant threw beer - 7 - bottles at Ms. Bennett prompting her to duck under a table to avoid being hit. Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279. We will make every reasonable presumption in favor of the trial court's judgments. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77. Furthermore, the weight to be given the evidence and witness credibility are primarily for the factfinder. Shore Shirley & Co. v. Kelly (1988), 40 Ohio App. 3d 10. See also State v. Martin (1983), 20 Ohio App. 3d 178; State v. Mattison (1985), 23 Ohio App. 3d 175. In the case sub judice, appellant's own testimony and the testimony of several eyewitnesses to the incident was sufficient to convict appellant of aggravated assault pursuant to R.C. 2903.12(A). Appellant argues that "a key element is missing from the so- called aggravated assault of Donna [sic] Bennett. It is Donna [sic] Bennett herself. She never came forward to make a police report, testify at the grand jury, or testify at the trial." Appellant argues that his conviction should be overturned because Ms. Bennett did not testify for the state. Appellant's argument is without merit. Any conduct that constitutes a criminal offense as defined by the Revised code is an offense against the state, see R.C. 2901.03. The decision to prosecute a crime is - 8 - solely that of the state and not of the victim. We hold that where the state has sufficient evidence and testimony to convict a defendant without the testimony of the victim, the state's failure to call the victim as a witness in its case is of no legal consequence. We equally hold that a victim's testimony is not an element of a crime of aggravated assault pursuant to R.C. 2903.12. In the case sub judice, the state did not need the testimony of Ms. Bennett to convict appellant of aggravated assault. Appellant's first assignment of error is overruled. IV. Appellant, in his second assignment of error, argues that his conviction for burglary is contrary to law. We take this to mean that appellant is arguing that the evidence was insufficient to convict him of burglary pursuant to R.C. 2911.12. R.C. 2911.12 defines burglary as follows: "(A) No person, by force, stealth, or deception, shall trespass in an occupied structure as defined in section 2909.01 of the Revised Code, or in a separately secured or separately occupied portion thereof, with purpose to commit therein any theft offense as defined in section 2913.01 of the Revised Code, or any felony. "(B) Whoever violates this section is guilty of burglary, an aggravated felony of the second degree." Mr. Conwell testified that he escorted appellant out of the bar and locked the door behind the appellant. When he turned around, appellant was back inside the bar with the door swung open. Appellant testified that he was escorted out of the bar by Mr. Conwell and that he kicked the door open to reenter. When appellant was escorted out of the bar, he needed permission of - 9 - Mr. Beck to reenter. Mr. Beck did not give him permission, and in appellant's own testimony, he kicked the door open. Appellant, therefore, entered the bar the second time by force. When appellant forced himself into the bar, he began throwing chairs and beer bottles at Mr. Beck and Ms. Bennett, which could have caused serious bodily harm if they had not taken appropriate measures to avoid being hit by the bottles. Appellant, by the act of throwing beer bottles (dangerous ordnance) at Ms. Bennett, committed a felony of aggravated assault as the jury found. Appellant's argument of insufficiency of the evidence is absolutely unpersuasive. Appellant's second assignment of error is overruled. V. Appellant, in his third assignment of error, argues that he was denied the Sixth Amendment right to confront witnesses against him as mandated by the United States Constitution. Appellant, in support of his argument contends that the state's failure to produce Donna [sic] Bennett to testify and be cross- examined by his counsel constituted a Sixth Amendment violation. We disagree for the following reasons. Firstly, we stated supra that the state is free to call any witness it chooses to make its case, and that the Ohio Penal Code does not require that a victim of a crime be a witness before a crime is prosecuted. Secondly, the United States Sixth Amendment right to confront witnesses is inapplicable when a party is not called to testify. The Sixth Amendment to the United States Constitution states in pertinent - 10 - part as follows: "in all criminal prosecutions, the accused shall enjoy the right ****, to be confronted with the witnesses against him ****." The language of the confrontation clause of the constitution is plain on its face. A defendant has a right to confront only those who are witnesses against him. In the within case, Dana Bennett was never a witness for the state. She was only one of the victims of appellant's tantrum. The record shows that appellant confronted all of the witnesses against him. Appellant's contention that Dana Bennett should have been called by the state to testify is without legal foundation. Besides, appellant had as much right to call Dana Bennett as a witness as does the state. Appellant's failure to call Dana Bennett as his own witness is no more considered erroneous than the state's failure to call her. Appellant's third assignment of error is overruled. VI. Appellant, in his fourth assignment of error, contends that his conviction cannot lie because his counsel was ineffective. Appellant argues that his counsel's failure to object to the state's inability to produce Ms. Dana Bennett constituted ineffective assistance of counsel. Appellant further argues that his trial counsel's "failure" to present the issue of self- defense prejudiced his case, and, therefore, constituted ineffective assistance of counsel. To establish a claim of ineffective assistance of counsel, appellant bears the buren of presenting evidence of sufficient operative facts to demonstrate - 11 - that his counsel was incompetent, and that he was prejudiced by counsel's ineffectiveness. State v. Jackson (1980), 64 Ohio St. 2d 107, State v. Ledger (1984), 17 Ohio App. 3d 94; State v. Smith (1985), 17 Ohio St. 3d 989; see also Strickland v. Washington (1984), 466 U.S. 668. However, circumstances of a case may render the two-prong test inapplicable. As stated by the Ohio Supreme Court in State v. Johnson (1986), 24 Ohio St. 3d 87: "However, there are exceptions to this 'cause-and- prejudice' test. In United States v. Cronic (1984), 466 U.S. 648, 659-660, the Supreme Court noted that there are 'some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial. Powell v. Alabama, 287 U.S. 45 (1932), was such a case.' As stated by Justice Sutherland in Powell at 58-59: 'It is not enough to assume that counsel *** thought there was no defense, and exercised their best judgment in proceeding to trial without preparation. Neither they nor the court could say what a prompt and thoroughgoing investigation might disclose as to the facts. No attempt was made to investigate. No opportunity to do so was given. Defendants were immediately hurried to trial. *** [A] defendant, charged with a serious crime, must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense.' Then, quoting a Pennsylvania case with approval, Justice Sutherland declared: '"It is vain to give the accused a day in court, with no opportunity to prepare for it, or to guarantee him counsel without giving the latter any opportunity to acquaint himself with the facts or law of the case.***"' Id. at 59." In the case sub judice appellant has failed to show that his counsel was ineffective or that he was prejudiced. We stated supra that the state was not required to produce Ms. Dana Bennett in order to make a case against appellant. Therefore, counsel's - 12 - failure to object to the state's failure to produce Ms. Dana Bennett is irrelevant and does not constitute ineffective assistance of counsel. Appellant's argument that he acted in self-defense, and that his counsel's failure to argue the issue of self-defense constituted ineffective assistance of counsel, is not supported by the record. The record shows that appellant kicked the door of the bar open. The record shows that when appellant reentered the bar, he started throwing chairs and beer bottles at patrons. We fail to see who appellant was defending himself against by throwing bottles at patrons of the bar, who the record shows did not throw anything at him. Appellant's argument has no merit and his fourth assignment of error is overruled. Judgment affirmed. - 13 - 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 Common Pleas Court 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., and NAHRA, J., CONCUR. SARA J. HARPER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .