COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59636 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION ALAN WILLIAMS : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 12, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. CR-247642 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor DAVID C. SHELDON, Assistant The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: DAVID L. DOUGHTEN 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 - 2 - SPELLERBERG, J.: Defendant appeals from his conviction for felonious assault. The relevant facts follow: Defendant's girlfriend, Latanya Littlejohn, was visiting the home of her friend, Cynthia Weeks, when defendant came to the residence and asked Ms. Littlejohn if he could borrow some money. Upon Ms. Littlejohn's refusal, an argument ensued. Ms. Littlejohn testified defendant then drew a knife and cut her above her right eye. She ran upstairs; defendant followed. After more words were exchanged, defendant pushed Ms. Littlejohn onto a bed in one of the upstairs bedrooms, got on top of her, and struck her with his hands several times in the face. He was finally pulled away from Ms. Littlejohn by Ms. Weeks and two of Ms. Weeks' cousins. Ms. Weeks then called the police. Defendant left the house before the police arrived, but stayed in the vicinity. The police officers who responded to the call obtained a description of defendant; Ms. Littlejohn was then taken to St. Vincent Charity Hospital by an E.M.S. unit. Shortly thereafter, defendant was apprehended near the home by the responding police officers. The officers thereupon drove to the hospital, where defendant was identified by Ms. Littlejohn as her assailant. Defendant was then arrested. Defendant did not have a knife, nor was one recovered; however, Ms. Littlejohn's eye injury required seven stitches, and her face and lip were noticeably swollen after the fight with defendant. Defendant was - 3 - subsequently indicted for felonious assault, R.C. 2903.11, with two violence specifications. After a bench trial, he was convicted of felonious assault and sentenced to a three to fifteen year term of incarceration. Defendant timely appeals, citing one assignment of error for review. Defendant's sole assignment of error follows: THE VERDICTS ARE AGAINST THE WEIGHT OF THE EVIDENCE. This assignment of error lacks merit. Defendant argues the evidence presented by the state could not sustain his conviction based on the guidelines set forth in State v. Mattison (1985), 23 Ohio App. 3d 10 for the following reasons: (1) only Ms. Littlejohn testified defendant had a knife and cut her with it; and (2) the evidence indicated defendant did not knowingly cause Ms. Littlejohn harm. Defendant cites Mattison, supra, to support his argument that weight of the evidence does not support his conviction for felonious assault. In Mattison, this court held: In determining whether the decision of a trial court is against the manifest weight of the evidence, the following factors are guidelines to be taken into account by the reviewing court: (1)The reviewing court is not required to accept as true the incredible; (2) whether the evidence is uncontradicted; (3) whether a witness was impeached; (4) what was not proved; - 4 - (5) the certainty of the evidence; (6) the reliability of the evidence; (7) whether a witness' testimony is self- serving; (8)whether the evidence is vague, uncer- tain, conflicting or fragmentary. The court in Mattison counseled that these eight factors were "merely guidelines to be taken into account when weighing evidence. They are not hard and fast rules which must be followed." Id. In State v. Martin (1983), 20 Ohio App. 3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated as follows: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. *** See, Tibbs v. Florida (1982), 4547 U.S. 31, 38, 42. State v. Martin, supra, at 175. Moreover, the weight of the evidence and the credibility of witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. - 5 - A reviewing court will not reverse a verdict where there is substantial evidence upon which the trier of fact could reasonably conclude that all the elements of an offense have been proved beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169. Defendant was convicted of felonious assault in violation of R.C. 2903.11, which provides in pertinent part as follows: 2903.11 Felonious assault. (A) No person 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 felonious assault, an aggravated felony of the second degree. *** Defendant argues there was neither credible evidence that he knowingly caused Ms. Littlejohn physical harm nor that he assaulted her with a knife; therefore, his conviction for felonious assault should be reversed. This argument is unpersuasive. In the case sub judice, Ms. Littlejohn testified as follows: (1) soon after the argument with defendant began, defendant suddenly had a knife in his hand and used it to cut her above the eye; (2) she began to bleed as a result of this injury; (3) she did not know whether anyone else in the house saw this happen; - 6 - (4) she then ran upstairs, pursued by defendant; (5) defendant followed her upstairs; and (6) after more words were exchanged, defendant pushed her down on a bed in one of the upstairs bedrooms, got on top of her, and struck her in the face and head several times. She testified her eye required several stitches and her face and lip were swollen after the incident. Ms. Weeks also testified; she did not see defendant with a knife, however, Ms. Weeks corroborated Ms. Littlejohn's testimony about what occurred in the upstairs bedroom. Furthermore, she saw Ms. Littlejohn bleeding above the eye and noticed Ms. Littlejohn's lip was swollen after the fight with defendant. The state presented two other witnesses in support of its case against defendant: one of the police officers who responded to the call to Ms. Weeks' home, and the police detective who spoke to Ms. Littlejohn the day after the incident. Both witnesses indicated that Ms. Littlejohn's testimony concerning the incident was consistent with what she told them had occurred. Both witnesses also observed Ms. Littlejohn's eye and facial injuries. Furthermore, the medical records from the hospital where Ms. Littlejohn received treatment just after the incident were admitted into evidence at the close of the state's case. Therein is the notation, "Pt. states stabbed with knife." The operation report states the following: The right lower lid was noted to be lacerated. The laceration was located 4 mm. - 7 - lateral to the medial canthus and l.5 mm. medial to the inferior puncta of the right lower lid. The laceration was approximately 3 mm. deep and extended approximately 4 mm. onto the skin and 2 mm. posterior involving the conjunctiva. The eye wound required seven sutures. X-rays were also taken of Ms. Littlejohn's face because of the injuries she sustained in the incident with defendant. Defendant took the stand in his own defense. He denied having a knife; however, on cross-examination, the following testimony was elicited: Q. That razor-edged finger of yours cut her eye like that; is that right? A. No. I had my finger in her eye. I had my finger in her eye, right here in the corner of her eyelid, okay, for her to let go of my face. * * * Q. You hit her, too, didn't you? A. Yes, I did. * * * Q. You knew you could cause injury to her if you hit her, didn't you? A. Yes, I guess so. Q. You guess so? A. Yes. * * * Q. Well, how many times did you hit her? A. Let me see. One -- about three or four times. - 8 - Q. Did you see her lip swelling after you hit her? A. No. After that she was bleeding from the corner of her eye. That's all I seen. It is well within the province of the trier of fact, in this case the trial court, to choose to believe the testimony offered by the state and reject that of defendant. State v. DeHass, supra. The court could properly find defendant knowingly caused serious physical harm to Ms. Littlejohn by means of a deadly weapon in violation of R.C. 2903.11. State v. Zackey (1987), 31 Ohio App. 3d 264. Thus, the factors in Mattison, supra, are met in the case sub judice. The state presented reliable credible evidence of defendant's guilt, and this court declines defendant's request to substitute its own judgment concerning the credibility of the witnesses and the weight to be given to their testimony. In the case sub judice, therefore, this court cannot say that on the basis of 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." Martin, supra, at 175. Therefore, the verdict of guilty of felonious assault was not against the manifest weight of the evidence. Accordingly, defendant's assignment of error is overruled. Judgment affirmed. - 9 - 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 BLACKMON, J., CONCUR JUDGE THOMAS R. SPELLERBERG* *Judge Thomas R. Spellerberg, Seneca County Common Pleas Court, Sitting by Assignment. 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. .