COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59642 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION ALICE M. SCRUTCHEN : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 12, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-239342 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. HYMAN FRIEDMAN, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public Defender TIMOTHY MILLER, ESQ. DONALD GREEN, ESQ. Assistant Prosecuting Attorney Assistant Public Defender The Justice Center Marion Building, Room 307 1200 Ontario Street 1276 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113-1569 - 1 - HARPER, J.: Defendant-appellant, Alice Scrutchen, was indicted by the Cuyahoga County Grand Jury on August 22, 1989 in a four-count indictment. Count one charged appellant with aggravated robbery (R.C. 2913.01) with violence and aggravated felony specifications. Appellant was charged with felonious assault (R.C. 2903.11) with violence and aggravated felony specifications under counts two and three. Count four charged appellant with felonious assault (R.C. 2903.11) with violence, aggravated felony, and peace officer specifications. A bench trial was held on February 20, 1990, the appellant having waived her right to trial by jury. The state moved to nolle count two as it duplicated count three. The appellant's Crim. R. 29 motion was granted as to count one only. The trial court subsequently found appellant not guilty of felonious assault as charged in count three. However, the appellant was found guilty of the lesser included offense of assault (R.C. 2903.13) in regard to count four in connection with an attack on Officer John T. Coco. The appellant was thereafter sentenced to a term of six (6) months, said sentence suspended by the trial court. The trial court also ordered the appellant to one (1) year of probation and to pay court costs. Appellant now appeals from her conviction and sentence. A careful review of the record compels affirmance. - 2 - I. The appellant was arrested on the afternoon of March 3, 1989 in the F.W. Woolworth store located at Severance Town Center in Cleveland Heights, Ohio. The state presented four witnesses and the appellant presented three witnesses, including herself, at trial. Nicholas Taliano was the manager of the Severance Woolworth store on the date in question. He was paged via a P.A. system to a disturbance in the back of the store. Upon his arrival, Taliano observed Mike Watkins, the store security guard, holding onto an individual named Vincent Pullum, and also observed the ensuing struggle between them. Taliano attempted to help Watkins but Watkins told him to get the police. The appellant was present and was described by Taliano as very angry, very upset, and very forceful. She was yelling to the guard, "Let go of him. Let go of him." Officer John T. Coco then arrived and helped to hold Pullum down and handcuff him. Pullum was thereafter taken to the lower level security office, accompanied by Taliano, Watkins, and Coco. Taliano left the office to return to the upper level. As he ascended the stairs, the appellant ran past him. He followed her to the office where he observed a continuing struggle. The appellant joined in the struggle and swung at an officer when told to leave the office. Two police officers and Watkins were in the office at this point. - 3 - Michael Watkins was on his daily patrol in the Woolworth store on March 3, 1989 when he noticed Pullum and an unidentified woman shopping. Watkins later observed Pullum placing two packages of steak knives and a larger single knife inside his pants and his jacket. Pullum and the woman proceeded to the check out line. As Pullum approached a door, Watkins called him back, identified himself, and suggested they go the lower level security office. Pullum admitted to taking the merchandise and appeared to willingly follow Watkins' directions. However, when Pullum reached into his jacket, a scuffle developed because Watkins feared that Pullum was reaching for the knives. Several aquariums and shelves of merchandise fell to the floor as a result of the scuffle. Watkins called out to nearby cashiers, requesting that they contact the Cleveland Heights Mall Security. The unidentified woman who was standing in line was now hitting Watkins and yelling "Let him go." Pullum fell down and arose with a knife in hand. The woman reached for the knife and the knife fell from Pullum's grasp when Watkins hit his arm. The woman then ran from the store, yelling "You're going to get yours." In the meantime, Taliano arrived and began to wrestle with Watkins and Pullum. Taliano broke away to call mall security. Pullum freed himself from Watkins who then re-grabbed him and held him until the arrival of Officer Coco. The two attempted to calm Pullum down when he was "going crazy". - 4 - Watkins simultaneously heard a female other than the one who was previously with Pullum, loudly say, "You're going to let him go. I'm not going to have this. Get your [expletive] hands off him." She was also described as kicking and wailing. Watkins identified the appellant as this second woman. Another police officer arrived on the scene and pulled back the appellant. Watkins, Coco, and the third officer, Officer Gurich, then tried to handcuff Pullum. The appellant screamed, argued, cussed and swung at them throughout the episode but eventually left the area. Watkins and Coco then escorted Pullum to the lower level. When he continued to kick, they brought him to the floor. Coco left the office in search of appellant. Watkins recognized the appellant's voice as she came down the stairs ten to fifteen seconds later and demanded that her husband was coming with her. Watkins' attempt to direct appellant from the office failed and the appellant was subsequently handcuffed when Coco arrived back in the office. John T. Coco, a Cleveland Heights police officer, worked as an uniformed security guard at Severance Town Center. He responded to a call of a fight at the Woolworth store on March 3, 1989. Officer Coco recognized the security guard Watkins upon his arrival at the area of the struggle. He also recognized Pullum from prior incidents. Officer Coco suggested that Watkins and Pullum who were both standing talk downstairs. Officer Coco, - 5 - realizing that Pullum would not allow himself to be freely handcuffed, grabbed Pullum, and the three men fell to the floor. The appellant appeared, screaming and yelling. She "booted" Officer Coco in the left leg and then "like walked all over [his] right leg." He described her boots as patent leather like shoe boots. Officer Coco identified the appellant as the woman kicking him because he clearly remembered looking at her when he felt the pain from the kick. Officer Gurich then arrived and was told by Officer Coco to get the appellant away from them. Watkins and Officers Coco and Gurich successfully handcuffed Pullum and escorted him to the office. Officer Coco left the office to locate the appellant. He soon after received a radio call that the appellant was now in the lower level security office. In the office, the appellant was handcuffed and laid down in order to calm her. She was then placed into a chair. Officer Coco could not specifically recall whether appellant kicked him in the office. She and Pullum were subsequently transported to the Cleveland Heights police station by other officers. Officer Coco was transported to Huron Road Hospital by the Cleveland Heights Police Department emergency squad. The officer sustained deep bruises to his legs and, as a result, missed one or two days of work. Officer Gurich was also an uniformed security guard at Severance Town Center during his off-duty hours as a Cleveland - 6 - Heights police officer. On March 3, 1989, he was driving a mall security car in the shopping center's parking lot. He received a radio call that there was a fight in the Woolworth store and an officer needed assistance. His response to the call was immediate. Officer Gurich found a large crowd gathering around the area. He observed Officer Coco and Watkins on the ground with Pullum. The appellant was also involved in the scuffle, pushing on Officer Coco, Watkins and Pullum. Officer Coco yelled at Officer Gurich, instructing him to remove the female who was trying to interfere with Pullum's arrest. Officer Gurich pushed the appellant away and then proceeded to aid Officer Coco and Watkins in the handcuffing of Pullum. After the three men carried Pullum to the security office, Officer Coco left to find the appellant. Officer Gurich next observed the appellant coming down the steps and running into the security office. She yelled that Pullum was not being taken anywhere. The appellant was then subdued and handcuffed when she became violent. Although Officer Gurich did not personally observe appellant kicking Officer Coco, he did observe his scuffed and torn pants. He also observed a bruise on the officer's leg. Officer Gurich explained that he believed the kick occurred prior to his arrival. Phyllis Patterson was the first witness to testify for the defense. She knew the appellant for approximately one year - 7 - prior to March 3, 1989 as the appellant dated Patterson's friend, Pullum. On March 3, 1989, Patterson, her five children, Pullum, and the appellant travelled to the Woolworth store to get food stamps. Patterson and Pullum entered the store and the appellant remained in the car to watch Patterson's children. Patterson and Pullman did some shopping and both commented on their need for steak knives. Patterson selected his and the two proceeded to the cashier. Patterson then decided not to purchase the knives and left to return them. The security guard approached Pullum and instructed him to come with him. Pullum said, "I don't have anything, man." Pullum and the guard then walked away. Patterson followed, interested in seeing what was happening. She viewed Pullum's fall to the floor and the guard picking him up. A struggle followed with lamps and shelves falling to the floor. Patterson yelled to the guard, "He has a bad shoulder. Get off his shoulder." She hit the guard when the guard did not respond to her yells. The guard warned Patterson and Pullum to calm down, to which Patterson responded, "Well, you get off his shoulder." Another security guard arrived and said, "What's going on." By this time, Pullum was crying and saying, "I don't have anything." The second security guard patted Patterson down and discovered nothing. The Cleveland Heights police arrived and Pullum was successfully handcuffed by being knocked to the floor. - 8 - After Patterson was pushed into a rack, she ran out of the store and to the car. She stated to appellant, "Alice, they are beating on him [Pullum]." Appellant reacted by jumping out of the car and running into the store. The next time Patterson saw Pullum and the appellant, they were being brought out of the store in handcuffs. Odessa Hunter knew the appellant, Pullum, and Patterson as they all lived in the same neighborhood. On March 3, 1989, she heard a commotion while in the Severance Town Center Woolworth store. She walked toward a gathered group of people and observed a scuffle. She only saw Patterson and Pullum. She did not see the appellant. She saw Patterson leave. Hunter then turned, talked to someone, and then exited the store. Hunter agreed that Patterson could have reached the appellant, and the appellant could have entered the store by the time Hunter exited the store. According to appellant, she drove Patterson, her five children and Pullum to Severance Town Center on March 3, 1989. She remained in the car with the children while Patterson and Pullum were in the store. Twenty minutes after their arrival, Patterson ran out of the store and screamed that Pullum was being beaten in the store. Appellant ran into the store and upon observing merchandise all over, saw an old security guard shaking his head. Appellant asked this guard where was the guy that was being beaten and learned from him and a cashier that Pullum was downstairs. - 9 - Appellant ran down the steps, bumping into the store manager. Appellant heard screaming and ran into the office. The security guard, Watkins, pushed the door against her, warning her, "You can't come in." She continued to push the door and was grabbed by a little man who attempted to block her entry. This man grabbed her once again and threw her across the room into boxes and a desk. The security guard pushed appellant into a chair, placed his knee on her chest, and advised her to calm down. Officers Coco and Gurich and another officer, believed by appellant to be Marty Block, arrived at the office. Officer Coco warned her to calm down and that she was going to jail. Therefore, when she was told to lay down in order to be handcuffed, she did so willingly. Appellant described her footwear that evening as shiny leather rain boots. Moreover, the state's witnesses described the appellant as being a lot heavier on March 9, 1989 than she was on the date of trial. Although appellant limited this "great loss" of weight to only 12 pounds, a witness for the defense, Odessa Hunter, expressed her surprise at appellant's weight loss, estimated by her to be 40 to 50 pounds. II. In appellant's sole assignment of error, she contends that: "ALICE SCRUTCHEN WAS DENIED HER FREEDOM WITHOUT DUE PROCESS OF LAW BY HER CONVICTION WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." - 10 - Appellant asserts that the guilty verdict was based on uncertain, unreliable, and conflicting testimony. Specifically, she argues that the state's witnesses confused her with Mrs. Patterson and that no witness could positively identify her as the individual who assaulted Officer Coco. A reviewing court will not reverse a conviction where there is substantial evidence upon which the trier of fact could conclude that all the elements of an offense have been proved beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169, syllabus. Further, issues of credibility and the weight to be given evidence are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. Contrary to appellant's assertion, the evidence presented by the state was not in conflict. All of the state's witnesses entered the sequence of events at various times. Their testimony was consistent as to appellant's arrival on the scene and her involvement in the scuffle between Officer Coco, Watkins and Pullum. Officer Coco positively identified her and her boots as causing the injury to his leg. The witnesses were also consistent in their testimony concerning her reappearance in the office. In conclusion, a review of the record reveals substantial evidence upon which the trier of fact could conclude that all the elements of the offense were proven beyond a reasonable doubt. The trial court, therefore, properly found that the appellant committed assault, a violation of R.C. 2903.13. - 11 - Appellant's assignment of error is accordingly overruled. Judgment affirmed. Judgment affirmed. 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. ANN McMANAMON, P.J., and LEO SPELLACY, 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. .