COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60564 STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION CHRISTOPHER MOLDWIN : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 30, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. CR-248777 JUDGMENT: AFFIRMED. APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor STEPHEN L. MILES, Assistant The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: HYMAN FRIEDMAN, Cuyahoga County Public Defender MARGARET O. ISQUICK, Assistant The Marion Building, Room 307 1276 West Third Street Cleveland, Ohio 44113-1569 - 2 - JOHN V. CORRIGAN, J.: Defendant appeals from his conviction for felonious assault with violence specifications. The relevant facts follow: James Davis, a firefighter and paramedic with the South Euclid Fire Department testified that just past midnight on the morning of December 23, 1989, the fire department received a call to send an emergency squad vehicle to Mr. Big's, a bar in the northern part of the city. Mr. Davis testified that when the emergency squad unit arrived at the location, he observed in the well-lit parking lot a man, later identified as the victim, James Kincaid, walking out of the bar "covered with blood" and with "something wrapped around his head." Mr. Davis testified the paramedics put the victim on the EMS vehicle's stretcher and proceeded to treat him for "lacerations all over his head." Mr. Davis testified that although the paramedics were treating the victim for "head trauma," the victim appeared to be "alert and oriented. So that even though he had taken a beating he was not in any jeopardy." Mr. Davis further testified that the victim was "upset" and "refused to lie down" and "didn't want to go to the hospital;" however, after the paramedics reassured the victim they were trying to help him, he "eventually told us he had been beaten up by two or three people. With what he didn't say. He said he had been beaten about the head with a stick." The victim was then transported to Hillcrest Hospital. On cross-examina- tion, Mr. Davis stated that just before the EMS vehicle arrived - 3 - at the hospital, the victim told the paramedics the assailants "had used a baseball bat on him." Officer Meinhardt of the South Euclid Police Department testified he arrived at Mr. Big's shortly after the emergency squad vehicle and observed the victim being treated by the paramedics. The officer saw "several lacerations on his face" and "quite a bit of blood." He "obviously had been beaten up." The officer asked the victim "who did it to him," and the victim named three names, one of whom was defendant. The officer stated that although Mr. Kincaid had been badly beaten all over his head, he was "clear as to what had happened." After Mr. Kincaid was transported to the hospital, Officer Meinhardt interviewed one of the persons named. Thereafter, at about 6:00 a.m., the officer went to the hospital to take a written statement from Mr. Kincaid. Mr. Kincaid stated to the officer again that he had been beaten up in the parking lot behind Mr. Big's by defendant and two others, who had used "wooden clubs like bats, baseball bats to beat him up." Officer Meinhardt further testified the weapons used on the victim were not found. Mr. Kincaid, the victim, testified that he was at his mother's house in South Euclid the evening of December 22, 1989. At approximately 10:30 p.m., three friends, one of whom was defendant, stopped by and invited him to Mr. Big's. All four of them then went in one person's car to the bar. Mr. Kincaid - 4 - testified that after they all arrived, he sat and spoke with a female acquaintance for a time and then noticed the others were gone. He testified he then went to look for them in the bar; when he didn't see them, he went outside to look. He testified that when he went outside to the parking lot behind the building, he was attacked by defendant, defendant's brother and another man. He stated they started hitting him with "a bat" or "a club"; he described the weapons as like "little miniature bats you get in a baseball game, but a little heavier." He stated that when he was first attacked, he turned around and was able to get a good look at his assailants. He testified that after what seemed like about a minute, one attacker said, "Okay, that's enough. Let's go." Then, after the assailants left, he reen- tered the bar and someone gave him a towel for his wounds and called an ambulance. Mr. Kincaid testified that after the beating, he had wounds on his head and felt "dizzy." He stated he was pretty dazed and couldn't clearly remember what he said to the paramedics when they arrived, but he remembered telling the police officer who attacked him. Mr. Kincaid specifically identified defendant as one of his attackers. Mr. Kincaid also testified that he was a convicted felon. It was further brought out in his testimony that he was in jail at the time of the trial of the case sub judice. A few days after the incident, Mr. Kincaid was incarcerated on an unrelated charge. Another South Euclid police officer, - 5 - James Pitten, interviewed him with regard to the incident. Officer Pitten testified the oral statement Mr. Kincaid gave was consistent with what he had earlier told Officer Meinhardt. A few weeks thereafter, Mr. Kincaid gave a written statement to Officer Pitten and formal charges were brought against defendant and the other assailants. Defendant and two others were thereafter indicted for felonious assault, R.C. 2903.11, with four violence specifica- tions. Defendant's case was tried to a jury. The state pres- ented the testimony of Mr. Davis, the two South Euclid police officers, and Mr. Kincaid. Defendant presented no witnesses and did not testify. The jury found defendant guilty of felonious assault as charged in the indictment. The trial court immediate- ly sentenced defendant to a term of three to fifteen years incarceration. Defendant thereafter filed a timely appeal of his conviction to this court, citing two assignments of error for review. Defendant's first assignment of error follows: THE VERDICT IS AGAINST THE MANIFEST 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 Mr. Kincaid testified defendant was one of his attackers and hit him with a weapon alternately described as a - 6 - "club" or a "bat" and (2) Mr. Kincaid's testimony with regard to the events of the night in question was conflicting. Defendant cites Mattison, supra, to support his argument that the weight of the evidence does not support his conviction for felonious. 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; (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. 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." 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: - 7 - 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. Further, 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. - 8 - (B) Whoever violates this section is guilty of felonious assault, an aggravated felony of the second degree. *** R.C. 2923.11 provides in pertinent part the following: 2923.11 Definitions. As used in sections 2923.11 to 2923.24 of the Revised Code: (A) "Deadly weapon" means any instrument, device, or thing capable of inflicting death, and designed or specially adapted for use as a weapon, or possessed carried, or used as a weapon. In the case sub judice, Mr. Kincaid testified as follows: 1) he went to Mr. Big's with defendant and two others; 2) after a time in the bar, he noticed the other men were gone; 3) he looked for them and went outside to look; 4) he was attacked with what he described as clubs or bats in the parking lot; 5) he saw clearly who his attackers were; 6) defendant was one of his assailants; and 7) he was beaten in the head and received numerous wounds. Mr. Kincaid's testimony about the attack and his injuries was supported by that of the paramedic, Mr. Davis, and Officer Meinhardt. Furthermore, the medical records from the hospital where Mr. Kincaid received treatment just after the incident were admitted into evidence at the close of the state's case. Therein - 9 - is the notation "15 lacerations ... #104 sutures." The statements Mr. Kincaid gave to the police regarding the incident had minor inconsistencies with respect to events prior to or following the incident; however, Mr. Kincaid never wavered in his identification of defendant as one of his attackers. It is well within the province of the jury to choose to believe the testimony offered by the state. State v. DeHass, supra. The jury could properly find defendant knowingly caused serious physical harm to Mr. Kincaid 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 first assignment of error is overruled. Defendant's second assignment of error follows: - 10 - APPELLANT'S DUE PROCESS RIGHT TO A FAIR TRIAL WAS DENIED BY THE PROSECUTOR'S IMPROPER LINE OF QUESTIONING. This assignment of error also lacks merit. Defendant argues that the prosecutor's questions to Mr. Kincaid about Mr. Kincaid's conversation with defendant in prison after the incident were prejudicial because "their sole purpose was to indirectly inform the jurors that [defendant] had been in prison and therefore call his character into question." This argument is unpersuasive. Defendant objects to the following testimony elicited on direct examination of Mr. Kincaid: Q. Is there any reason why you would be lying here today? A. No. As a matter of fact, I thought we were friends. I really have nothing against the guy. Q. Did you see the defendant Chris Moldwin in prison recently? A. Yes. Q. How long ago was that? A. Three weeks. Q. Did he say anything to you at that time? MR. FARRELL: Objection. THE COURT: Approach the bench. (Discussion had at the sidebar between the Court and counsel on the record and out of the hearing of the jury.) - 11 - THE COURT: Go ahead. MR. FARRELL: I'm objecting to this question as well as the question about the victim seeing my client in prison, because it's my understanding in order to not unduly prejudice the jury my client is dressed in civilian clothes so not to warrant an idea that he is presently being jailed for this offense. I think the question certainly prejudices him in the eyes of this jury. THE COURT: What do you want me to do? MR. FARRELL: What do I want you to do, Judge? THE COURT: Yes. MR. FARRELL: I would like to discontinue this line of questioning about the prison and jail. THE COURT: Do you want me to instruct the jury to disregard? MR. FARRELL: No. THE COURT: Just indicate he had a conversation and when it took place, and you know, see. BY MR. MILES: Q. Mr. Kincaid, you had a discussion approximately three weeks ago with the defendant? A. Yes. Q. Who was present when this conversation took place? A. One of the officers. Q. Do you recall his name? - 12 - A. No, I don't. Q. What was said during this conversation? A. He asked me how my head felt. Q. Anything else said between the two of you? A. No, that's all that was said. Q. How did you take what was said? MR. FARRELL: Objection. THE COURT: Sustained. A. I took it as a threat. THE COURT: You are to disregard that last statement. The conduct of a prosecuting attorney during trial cannot be made a ground of error unless that conduct deprives defendant of a fair trial. State v. Papp (1978), 64 Ohio App. 2d 203. It must be clear beyond a reasonable doubt that absent the conduct of the prosecution, the jury would have found the defendant guilty. State v. Maurer (1984), 15 Ohio St. 3d 239. In the case sub judice, absent the conduct complained of, it is clear beyond a reasonable doubt that the jury would have reached a verdict of guilty. State v. Vrona (1988), 47 Ohio App. 3d 145. A review of the record in the case sub judice clearly shows the prosecutor's purpose behind the questions complained of was to show a connection between Mr. Kincaid and defendant, not to impugn defendant's character. The evidence of a conversation between the two men was admissible under Evid. R. 801(D)(2). - 13 - Moreover, it was clear that both Mr. Kincaid and defendant were in jail; thus, it is difficult to see how this testimony would have prejudiced defendant's character more than Mr. Kincaid's credibility. Furthermore, when defense counsel objected to the references to where the conversation took place, the trial court asked defense counsel what he wanted the court to do. Counsel stated the following: "Just indicate he had a conversation and when it took place ...." Defense counsel's objection to this extent was sustained by the trial court. Thus, the record clearly shows any "improper" questioning was not permitted by the trial court. Therefore, defendant was not deprived of his due process right to a fair trial. State v. Vrona, supra, at 153. Accordingly, defendant's second assignment of error is also overruled. Judgment affirmed. - 14 - 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. JOHN F. CORRIGAN, P.J., and BLACKMON, J., CONCUR JUDGE JOHN V. CORRIGAN* *Judge John V. Corrigan, Retired, Eighth District Court of Appeals, 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. .