COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60188 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION MICHAEL E. GRAY, SR. : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : APRIL 9, 1992 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-250231 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS-JONES DAVID L. DOUGHTEN, ESQ. CUYAHOGA COUNTY PROSECUTOR 2000 Standard Building JOHN F. MANLEY, ASST. 1370 Ontario Street Justice Center - 8th Floor Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 - 2 - J.F. CORRIGAN, J., Defendant Michael E. Gray, Sr. appeals from his conviction for felonious assault with specifications. For the reasons set forth below, we affirm. I. On April 3, 1990, defendant was charged with one count of felonious assault, with violence and aggravated felony specifications, in connection with the January 4, 1990 beating of Anna McKissic. Defendant pleaded not guilty and the matter proceeded to a bench trial on June 18, 1990. For its key evidence, the state presented the testimony of McKissic, her neighbors Florence Dawson, Marlene Dixon, and Phyllis Key, and Cleveland Police Officer Marvin Bittinger. McKissic testified that she and defendant had lived together for approximately one year, until September 1989 when McKissic ended the relationship following defendant's arrest for drug abuse. Thereafter, on the morning of January 4, 1990, McKissic stopped at Dawson's apartment before going to the store. When McKissic returned to Dawson's apartment later that morning, defendant arrived at the apartment. According to McKissic, she asked defendant what he was doing there, and he started hitting her. She then fell to the ground and defendant kicked her until she became unconscious. Later, after arriving at the hospital, McKissic explained that defendant beat her with a beer bottle. As a result of the - 3 - beating, McKissic sustained a concussion, stitches to her head, and two black eyes. Finally, McKissic testified that after this incident, defendant called her and asked her to drop the charges. McKissic admitted on cross-examination that she had spoken with defendant subsequent to January 4, 1990, and that she had indicated that she would drop the charges. She explained, however, that she did so because she was afraid. Florence Dawson testified that McKissic is her neighbor at the Regency Square Apartments and that she also knows defendant, McKissic's former boyfriend. Dawson further established that McKissic came to her apartment on the morning of January 4, 1990, to see if Dawson wanted anything from the store. McKissic then left and when she returned a short time later, there was a knock at the door and Dawson asked McKissic to answer it. Dawson did not see the visitor, but did hear an argument and recognized defendant's voice. Dawson then left to run an errand. Marlene Dixon, also a resident of Regency Square, testified that as she was returning home from an errand on the morning of January 4, 1990, she saw defendant quickly leaving the apartment. According to Dixon, defendant said, "See if the bitch is dead," and Dixon then found McKissic lying in a puddle of blood, with an unopened 40 ounce bottle of beer near her head. Finally, Dixon and neighbor Phyllis Key both testified that defendant called them later that day to see whether McKissic had died. - 4 - Officer Bittinger testified that he arrested defendant in connection with an unrelated incident, and defendant stated that his name was Eugene Johnson. Bittinger subsequently learned defendant's real name, then determined that there was an outstanding warrant for his arrest. Bittinger asked defendant about the warrant and defendant indicated that he had had a minor altercation with his girlfriend. For the defense, defendant testified on his own behalf and stated that McKissic became angry with him following his 1989 arrest, because he could no longer be with her. He further testified that during his incarceration, he learned that McKissic was involved with drugs and he then terminated the relationship. She responded that if she could not have him, no one would. As to the events of January 4, 1990, defendant stated that at all relevant times he was at a meeting in East Cleveland, and did not go to McKissic's apartment building. At around 9:00 a.m., however, defendant reportedly called McKissic regarding returning some of his clothing, and he mentioned that he had a new girlfriend. According to defendant, McKissic became hostile. Finally, defendant stated that he had spoken with McKissic frequently afterward, and at one point she offered to drop the charges against him. Defendant was subsequently convicted of felonious assault and both specifications. II. - 5 - "THE JUDGMENT IS AGAINST THE WEIGHT OF THE EVIDENCE." Within his sole assignment of error, defendant challenges the weight of evidence implicating him as McKissic's assailant. 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. In addition, the following guidelines for reviewing challenges to the manifest weight of the evidence were promulgated in State v. Mattison (1985), 23 Ohio App. 3d 10, 14: "'"1. Knowledge that even a reviewing Court of Appeals is not required to accept as true the incredible. *** "'"2. Whether evidence is uncontradicted, *** "'"3. Whether a witness was impeached, *** "'"4. Consideration of what was not proved, *** "'"5. The certainty of the evidence, *** "'"6. The reliability of the evidence, *** "'"7. The extent to which any of the witnesses may have an interest to advance or protect by their testimony, *** "'"8. The extent to which the evidence is vague, uncertain, conflicting, fragmentary, or not fitting together in a [logical] pattern, ***."'" Applying the foregoing, we hold that defendant's conviction is not contrary to the manifest weight of the evidence as McKissic provided certain, complete, logical testimony which - 6 - implicated defendant as her assailant. In addition, Dawson credibly established, without contradiction, defendant's presence in the apartment immediately prior to the assault and Dixon credibly established, without contradiction, his presence there immediately afterward. Both women, moreover, certainly established that defendant called to inquire about McKissic shortly afterward. Further, Officer Bittinger presented wholly reliable, uncontradicted testimony that defendant acknowledged that the outstanding warrant for his arrest may have involved an altercation with his girlfriend. Weighed against the foregoing, defendant presented an unsupported alibi, and an implausible and self-serving theory of McKissic's implication of him. In short, we cannot conclude that the trier of fact lost its way. Judgment affirmed. - 7 - 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. FRANCIS E. SWEENEY, P.J., and *ECONOMUS, J., CONCUR. JUDGE JOHN F. CORRIGAN (*Judge Peter Economus, Mahoning 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 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. .