COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60562 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION ALVIN SCOTT : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MAY 7, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. 243424. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Ronald James Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Hyman Friedman County Public Defender Betty T. Harvey Assistant Public Defender The Marion Building 1276 W. Third Street, #307 Cleveland, Ohio 44113 - 2 - SWEENEY, JAMES D., J.: Defendant-appellant Alvin Scott appeals his conviction of aggravated robbery in violation of R.C. 2911.01. Appellant was sentenced to a term of five to twenty-five years incarceration. On the evening of August 26, 1989, Mr. and Mrs. Lazerick drove with Mr. and Mrs. Simon to Sutters Restaurant at East 140th Street in Cleveland, Ohio, to have dinner. Mrs. Simon alighted from the car and went quickly into the restaurant to reserve a table. Mrs. Lazerick followed more slowly, and the two men parked the car. When Mrs. Lazerick was a few steps from the car, she was grabbed from behind and thrown to the ground. She testified that appellant began hitting and kicking her, and demanded her purse. During the course of the attack, a good samaritan intervened and began assaulting the appellant. Mrs. Lazerick did not relinquish her purse. Mrs. Lazerick testified on cross examination that although her attacker attempted to hit and kick her, he did not succeed. (T. 31.) She also stated that she sought no medical attention for her injuries and proceeded to have her dinner at Sutters Restaurant. Upon arrival at the scene, Cleveland Police Officer Terrence Colton testified that he observed appellant sitting against the building and that another man was standing over him. (T. 40, 41.) Appellant was identified as the perpetrator and placed under arrest. The good samaritan gave his - 3 - name as Timothy Brown and gave an address. Mr. Brown was unable to be located and did not testify at trial. Appellant testified on his own behalf. Appellant testified that he lived at 732 East 140th Street and was the caretaker of the building; that he returned home from his mother's house and was in the front of the building locking the doors when he saw Mrs. Lazerick being attacked; that he ran to her assistance and was hit on the head; that after the attack on him, he was only semi conscious; that he remembers "hollering, Sutter, Sutter, like that, to come out." (T. 62.) He testified that he did not attack Mrs. Lazerick and did not try to steal her purse. Appellant presented character testimony from both his mother, Mrs. Eleanor Scott, and his minister, Pastor Leon Lawrence. In addition, the owner of Sutters Restaurant, Mr. John Sutter, testified that he knew appellant from talking with him over the fence. (T. 58.) Mr. Sutter gave appellant green tomatoes from his garden. (T. 58.) Appellant set forth three assignments of error. Appellant's first assignment of error. I THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE. As recently stated by this court in State v. Clark (November 14, 1991), Cuyahoga App. No. 59427, unreported, the test for determining manifest weight was set forth in State v. Thompson - 4 - and Malone (July 18, 1991), Cuyahoga App. Nos. 58803 and 58834, unreported. The Thompson and Malone decision held: 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 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. In the case sub judice, the jury heard testimony from both the victim and the police officer on the scene. The victim testified that she had seen the appellant lying in the street before she entered the parking lot (T. 14, 23), and that she saw appellant as she was fighting him on the ground. (T. 27, 29.) Officer Colton testified that upon arrival at the scene, he observed appellant was sitting against the building, and that another man was standing over him; that the other man motioned to the police; that the victim identified appellant as the perpetrator; and that appellant was arrested at the scene. - 5 - This is sufficient competent, credible evidence which, if believed by the jury, could support a finding of guilt. The conviction was not against the weight of the evidence. Appellant's first assignment of error is overruled. Appellant's second assignment of error. II ALVIN SCOTT WAS DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW WHEN HE WAS CONVICTED OF AGGRAVATED ROBBERY ON EVIDENCE WHICH WAS INSUFFICIENT AS A MATTER OF LAW TO SUPPORT THE CONVICTION. The test for determining sufficiency of the evidence is whether, after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. State v. Martin (1983), 20 Ohio App. 3 172. In this assignment of error, the appellant contends there was not sufficient evidence to support a conviction of aggravated robbery. R.C. 2911.01 defines aggravated robbery as: (A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall do either of the following: (1) Have a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code, on or about his person or under his control; (2) Inflict, or attempt to inflict serious physical harm on another. (Emphasis added.) - 6 - Appellant argues that no serious physical harm was inflicted upon Mrs. Lazerick which would meet the definition set forth in R.C. 2901.01(E): (E) "Serious physical harm to persons" means any of the following: (1) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment; (2) Any physical harm which carries a substantial risk of death; (3) Any physical harm which involves some permanent incapacity, whether partial or total, or which involves some temporary, substantial incapacity; (4) Any physical harm which involves some permanent disfigurement, or which involves some temporary, serious disfigurement; (5) Any physical harm which involves acute pain of such duration as to result in substantial suffering, or which involves any degree of prolonged or intractable pain. However, the testimony of Mrs. Lazerick was clear that although appellant may not have succeeded in kicking and hitting her, he certainly attempted to do so. (T. 15, 30, 31.) As set forth in R.C. 2911.01(A)(2), proof of an attempt to inflict serious physical harm is sufficient to support a conviction of aggravated robbery. Appellant's second assignment of error is overruled. Appellant's third assignment of error. - 7 - III THE TRIAL COURT COMMITTED PREJUDICIAL, REVERSIBLE ERROR IN DENYING APPELLANT DUE PROCES OF LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I, THE OHIO CONSTITUTION WHEN IT FAILED TO INSTRUCT THE JURY REGARDING EYEWITNESS IDENTIFICATION WHERE SUCH INSTRUCTIONS WERE APPROPRIATE AND NECESSARY UNDER THE FACTS OF THE CASE. Appellant argues that the court abused its discretion by failing to give the jury a special cautionary instruction concerning the unreliability of eyewitness identification testimony. See State v. Guster (1981), 66 Ohio St. 2d 266. The rule governing jury instructions is Cr. R. 30(A). (A) Instructions; error; record. At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. Copies of such requests shall be furnished to all other parties at the time of making such requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. The court need not reduce its instructions to writing. A party may not assign as error the giving or the failure to give any instructions unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury. (Emphasis added.) In the case sub judice, the appellant's counsel was given an opportunity to object to the court's jury instructions. - 8 - Counsel, can I see you at the sidebar, please. Do you want to come up? (Thereupon, a sidebar discussion was had.) THE COURT: I bring counsel to the sidebar to ask them if there's any additions to the instructions I have given to the jury, and whether they would like to make other objections. MR. JAMES: None for the State. MR. MCDONNELL: None for the defense, Your Honor. THE COURT: All right. Then you may be seated. (T. 97.) In State v. Williams 51 Ohio St. 2d 112, the court held that errors not brought to the trial court's attention at a time when the error could have been avoided or corrected, need not be considered by the appellate court. This court has consistently held that an appellate court need not consider an error which a party complaining of the trial court's judgment could have called, but did not call, to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. State v. Gordon 28 Ohio St.2d 45, 57 O.O.2d 180, 276 N.E. 2d 243 (1971); State v. Lancaster, 25 OhioSt.2d 83, 54 O.O.2d 222, 267 N.E.2d 291 (1971); State v. Davis, 1 OhioSt.2d 28, 30 O.O.2d 16, 203 N.E. 2d 357 (1964); State v. Glaros, 170 OhioSt. 471, 11 O.O.2d 215, 166 N.E. 2d 379 (1960). "Any other rule," this court stated in State v. Driscoll, 106 OhioSt. 33, 138 N.E. 376, at 39 (1922), "would relieve counsel from any duty or responsibility to the court and place the entire responsibility upon the trial court to give faultless instructions upon every possible feature of the case, thereby - 9 - disregarding entirely the true relation of court and counsel which enjoins upon counsel the duty to exercise diligence and to aid the court rather than by silence mislead the court into commission of error." See Crim. R. 30. Any possible error committed by the trial court in failing to instruct the jury on the unreliability of eyewitness testimony was waived by counsel's failure to request such an instruction when given an opportunity to do so. Appellant's third assignment of error is overruled. Judgment affirmed. - 10 - 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 DYKE, P.J., and THOMAS PARRINO, J.*, CONCUR. JAMES D. SWEENEY JUDGE *(SITTING BY ASSIGNMENT: THOMAS PARRINO, RETIRED JUDGE OF THE COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT.) 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. .