COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59641 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : CARL A. ENGLEHART : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 12, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. 242750. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Frank C. Gasper Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Ruth J. Hudson, Esq. Hudson and Hudson 1700 Terminal Tower Cleveland, Ohio 44113 -2- SWEENEY, JAMES D., J.: Defendant-appellant Carl Englehart ("Carl"), date of birth August 19, 1963, appeals from his bench trial conviction of one count of felonious assault [R.C. 2903.11] with a knife. For the reasons adduced below, we affirm. A review of the record reveals that two witnesses testified on behalf of the prosecution. The first witness for the prosecution was the alleged victim, Robert Trent ("Trent"), date of birth September 29, 1971, who stated that at approximately 11:45 p.m. on August 2, 1989, he was standing on a corner of Homeway Avenue near Rocky River Drive in the City of Cleveland. Trent's friend, Joe Gaglione, and several of Mr. Gaglione's friends were allegedly with Trent on the corner. Trent testified that Carl drove up to the corner in a white Chevrolet automobile, with Carl's girlfriend, Kelley Kosmas, in the front passenger's seat. Trent stated that Carl said "what's up dick" to Trent. Trent then walked up to the driver's door and saw Carl reach into the glovebox and retrieve something. Trent stepped back and walked away from the car. Carl, with a knife, then exited the car and approached Trent. At the time, Trent had casts on both wrists and on one leg from injuries sustained in a fall on July 6, 1989. Trent raised his hands to defend himself. After waving the four inch blade knife in front of Trent, Carl made a jerking movement, slicing Trent across his nose. Trent walked away from the altercation and Carl reentered the car and drove off in the direction of Rocky River -3- Drive. The witness stated that this direction was opposite to the direction of Carl's house which was fifteen to twenty houses away. Trent then walked to Mr. Gaglione's house, which was adjacent to the vicinity of the incident location, and first aid was applied to the cut which was bleeding profusely. The bleeding was controlled by the first aid treatment. Trent then went home to his residence at 20007 Midvale Avenue, Cleveland. There, he awakened his parents and younger brother. The Trent family then drove over to the home of Karen Minut at 18701 Homeway Avenue./1\ They arrived there at approximately 12:20 a.m. After searching the interior of the home at Ms. Minut's request, it was concluded that Carl was not there. The Trents then drove to Fairview Hospital where Trent was treated at the emergency room at 12:36 a.m. In addition to medications, Trent received five stitches for the nasal laceration. Trent did not recall what Mr. Gaglione, Carl and his girlfriend were wearing that night. Trent did recall that he was wearing jogging pants on the night in question. The prosecution's second witness, Michael Trent ("Michael"), then testified. Michael, the victim's brother, stated that the distance between the house of Karen Minut and his home was less /1\ Karen Minut was the manager of a band of which the defendant was a member. The band practiced regularly at her house. A factual question exists as to whether Trent was still a member of the band at the time of the stabbing. -4- than a quarter of a mile. He was not sure of the actual times of the events that night, but thought that he was awakened between 12:30 - 1:00 a.m. and arrived at the Minut house about 1:00 a.m. The prosecution then rested and the defense moved for acquittal pursuant to Crim. R. 29. The motion for acquittal was denied. The defense then offered the testimony of four witnesses. The first defense witness was Karen Minut ("Minut"), who testified that Trent was released from the band after his injuries of July 6, 1989. Minut stated that the band practiced at her home until approximately 11:00 p.m. on the night of August 2, 1989, and Carl and his girlfriend left the house shortly after a movie began on television at 11:30 p.m., and drove the white Chevrolet. On redirect, Minut said Carl left about one-half hour after the movie began. When questioned by the Court, Minut stated she was not sure when Carl left, that it could have been 11:40 p.m., 11:45 p.m., or 12:00 a.m. She was certain the Trents came to her house before the movie ended. Minut did not know what Carl and his girlfriend did after leaving the house. She stated that she sold the white Chevrolet to Carl's girlfriend in July of 1989. Minut also stated that Daniel Springen and Dennis Englehart lived at her house on the night in question as renters. The second defense witness was Carl's girlfriend, Kelley Kosmas ("Kelley"), who stated that the band started practice at Minut's house at 7:00 p.m. and ended practice between four and five hours later. Kelley further testified that she and Carl -5- left Minut's house around 11:55 p.m. because Carl's mother had telephoned and needed to be picked up at the corner at the top of Homeway Avenue. Kelley said that she and Carl drove off in the white Chevrolet and picked up Carl's mother who was standing at the top of Homeway Avenue. The mother allegedly rode in the back seat of the two-door car. They took her to her home on Breezedale, which was a few streets over, dropped her off, and then went to Kelly's residence at 18125 Parkmount Avenue in the low income housing projects off Rocky River Drive near Hopkins Airport. They allegedly arrived at Kelley's home at 12:10 a.m. She also said that Carl lived with his mother, but would spend some nights at her house. Carl's mother did not testify in the present case. Kelley testified that she did not see Trent that night, that there was no run-in with Trent that night. She also stated that Carl purchased the white Chevrolet from Minut for Kelley's use. The third witness for the defense was Daniel Springen ("Springen"), who testified: that he rented a room at Minut's house; that Trent was demoted from lead guitarist to rhythm guitarist in the band when Trent hurt his wrists in July of 1989; that practice ended at 11:00 p.m. on the night in question; that Carl and Kelley left Minut's house around midnight; that the Trents came to the Minut house about 1 - 1 1/2 hours after Carl and Kelley had left. The fourth and final defense witness was Dennis Englehart ("Dennis"), the brother of Carl. Dennis testified that he rented -6- a room at Minut's house. Dennis also stated that: he replaced Trent as the lead guitarist because Trent's wrists were injured; practice stopped at 11:00 p.m.; Carl received a telephone call between 11:45 p.m. and midnight and then left the Minut house; the Trents came to the Minut house one-half hour after Carl had left; Trent had threatened the witness two weeks prior to the stabbing; the band had no engagements in August of 1989; Trent had used the expression "what's up dick" six or seven times while addressing the witness. The defense then rested without renewing its motion for acquittal. Following closing arguments, the court found Carl guilty and remanded him for a presentence report. Subsequent to sentencing, this appeal followed raising five assignments of error. The matter has been submitted for review on the briefs of the parties. I IT WAS PLAIN ERROR FOR THE TRIAL COURT TO REQUIRE APPELLANT TO PROVE HIS DEFENSE OF ALIBI BY A PREPONDERANCE OF THE EVIDENCE. During the prosecution's rebuttal segment at closing argument, counsel for the prosecution stated to the court that the burden of proof under a defense of alibi rests with the defendant by a showing of a preponderance of the evidence. R. 96. There was no objection raised at trial by defense counsel with respect to this statement of counsel for the State. The appellant argues that the burden of proof on the alibi defense -7- was incorrectly placed upon the defendant and that a "reasonable doubt" standard, rather than a "preponderance of the evidence" standard, should have been applied by the court in its determination of the alibi defense. We agree with the appellant's belief that the prosecutor misstated the burden of proof with regard to alibi. The burden of proof in proving alibi is not on the accused. State v. Sabo (1928), 119 Ohio St. 231. However, there is no evidence in the record to suggest that the trial court in this jury waiver case failed to apply the correct law in this case. A judge is presumed to know the law and apply it to the particular facts. Assignment overruled. II APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BY TRIAL COUNSEL'S FAILURE TO OBJECT TO THE PROSECUTOR'S MISSTATEMENT OF THE LAW. There was no resulting prejudice in defense counsel's failure to object to the prosecutor's misstatement of law relative to the burden of proof in the alibi defense. See State v. Kinney (1987), 35 Ohio App. 3d 84. As was previously discussed, the Court is presumed to know and apply the correct law to a given case. The record does not indicate that the judge in the present case applied the incorrect standard on the alibi defense. Therefore, counsel's failure to object did not deny defendant the effective assistance of counsel. Assignment overruled. -8- III IT WAS PREJUDICIAL ERROR FOR THE TRIAL COURT TO EXCLUDE FROM EVIDENCE THE MEDICAL RECORDS OF ROBERT TRENT'S HOSPITAL TREATMENT OF JULY 6, 1989, ON THE BASIS OF RELEVANCE. The Trent medical records from the August 2, 1989 injury indicate that Trent received a laceration of one centimeter to the left side of his nose and a one-half centimeter laceration to his left septum. The Trent medical record from July 6, 1989, indicates that he received a three centimeter laceration to the right side of his nose. As can be clearly seen, the nasal injuries on the two dates were on different sides of the nose. The court correctly determined within its discretion that the medical record of July 6, 1989, was not relevant to the issue of whether Trent was injured on August 2, 1989. Evid. R. 401, 402. Assignment overruled. IV THE EVIDENCE PRESENTED BY THE STATE WAS INSUFFICIENT TO SUPPORT A CONVICTION FOR FELONIOUS ASSAULT AND THEREFORE, IT WAS PREJUDICIAL ERROR FOR THE TRIAL COURT TO DENY APPELLANT'S RULE 29 MOTION FOR JUDGMENT OF ACQUITTAL. In City of Cleveland v. Berkesch (November 14, 1991), Cuyahoga App. No. 59324, unreported, at pages 5-6, we stated the following in reviewing a similar assignment based on a denial of a motion for acquittal: Following the denial of the defense motion for acquittal made at the close of plaintiff's case, the defense offered -9- evidence on his own behalf. Any error in overruling the motion for acquittal is therefore waived. State v. Whitmeyer (1984), 20 Ohio App. 3d 279; State v. Parks (1982), 7 Ohio App. 3d 276. See also, State v. Higgins (Franklin, 1990), 61 Ohio App. 3d 414, 417-418. In the present case, the defense offered evidence on his own behalf following the denial of his motion for acquittal at the close of the prosecution's case. The defense did not renew its motion for acquittal at the close of the defense case. Any error in overruling the motion for acquittal is waived. Assignment overruled. V THE CONVICTION OF APPELLANT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In City of Cleveland v. Berkesch, supra, we also addressed a manifest weight of the evidence assignment at pages 6-7: This court stated the following in State v. Thompson and Malone (July 18, 1991), Cuyahoga App. Nos. 58803 and 58834, unreported, at pages 5-6: The standard of review to be applied to these assignments of error was stated in State v. Thomas, et al. (September 20, 1990), Cuyahoga App. Nos. 57311 and 57327, unreported, at p. 4, and 5 as follows: The scope of review to be used where a party alleges the judgment of the trial court is against the manifest weight of the evidence was recently stated by this court in State v. Scott (Mar. 23, 1989), Cuyahoga App. No. 55114, unreported, at p. 7-8. The primary task of weighing evidence and judging the credibility of witnesses -10- is left to the trier of fact, in this case the jury. State v. DeHass (1967), 10 Ohio St. 2d 230, at syllabus number 1. Therefore, a reversal of a judgment based on manifest weight of the evidence will only be done in exceptional cases. State v. Woods (1985), 25 Ohio App. 3d 35. A reviewing court will not reverse where there is substantial, competent and credible evidence supporting the criminal conviction. State v. Eley (1978), 56 Ohio St. 2d 169, syllabus. Appellant also relies on eight factors enunciated in State v. Mattison (Cuyahoga, 1985), 23 Ohio App. 3d 10, in support of his assignment based on manifest weight of the evidence. The Mattison decision and the eight factors were discussed recently by this court in State v. Laux (June 27, 1991), Cuyahoga App. No. 58856, unreported, at pages 15-16: This court stated the following in State v. Mattison (1985), 23 Ohio App. 3d 10, at page 14: A reviewing court cannot reverse a judgment of conviction in a criminal case where there is sufficient evidence presented to the jury "'which, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt.'" State v. Eley (1978), 56 Ohio St. 2d 169, 172 [10 O.O. 3d 340]; see, also, State v. DeHass (1967), 10 Ohio St. 2d 230 [39 O.O. 2d 366]. *** The eight factors listed in Gaston are merely guidelines to be taken into account when weighing the evidence. They are not hard and fast rules which must be followed. The eight factors mentioned in the above citation and relied upon by appellant, which are contained in State v. Gaston (Jan. 11, 1979), Cuyahoga App. No. 37846, unreported, were referenced by the Mattison court in the syllabus. These factors are: -11- 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; 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, uncertain, conflicting or fragmentary. Based on the evidence and testimony presented, there was competent evidence upon which a finding of guilt could be based. Assignment overruled. -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 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. DAVID T. MATIA, P.J., and JOHN F. CORRIGAN, J., CONCUR. JAMES D. SWEENEY 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. .