COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61201 CITY OF SOLON : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION MARK MURAD : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : OCTOBER 15, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Bedford Municipal Court : Case No. 90-CRB-1438 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: LEROY MURAD BLAIR MELLING % MARK MURAD 31 Columbus Road 4547 Monticello Blvd. Bedford, Ohio 44146 South Euclid, Ohio 44143 - 2 - JOHN F. CORRIGAN, J., Appellant, Mark Murad, appeals from his conviction for assault. For the reasons set forth below, we affirm. I. Appellant was indicted on July 16, 1990 for one count of assault in violation of Ordinance 537.03 of the Codified 1 Ordinances of the City of Solon, a first degree misdemeanor. Appellant pled not guilty to the charge and the matter proceeded to jury trial in the Solon Municipal Court on January 10, 1991. In furtherance of this action, the City of Solon presented the testimony of the victim, Robert Metcalf, and a witness, Rita Kunakowski. Mr. Metcalf testified that he and appellant were co-workers at CECOM International in Solon, Ohio. Metcalf further testified that on the morning of July 11, 1990 appellant came into work late, blamed Metcalf for not picking him up, and began to shout obscenities at Metcalf. Metcalf's testimony continued that appellant then stood over him while he was sitting, yelled and spit at him, and poked him in the forehead with his finger. In addition, Metcalf testified that when he attempted to stand up appellant shoved him back down into his chair. Metcalf testified that the altercation ended when appellant threw a chair at him and left the room. Metcalf deflected the chair from his body avoiding possible injury. Finally, Metcalf testified that he 1 Ordinance 537.03 is now 636.02. - 3 - could see red marks on his forehead when looking in the mirror a few minutes after the altercation. Ms. Kunakowski testified that she had an unobstructed view of the altercation and corroborated Metcalf's testimony concerning appellant's actions. At the close of the City of Solon's case, appellant moved for acquittal pursuant to Crim. R. 29. That motion was denied by the trial court. Appellant testified in his own defense. Appellant admitted using vulgarities in a dispute with Metcalf, but claimed that Metcalf was the aggressor. Appellant further testified that no physical contact was made between the two men, and that because of the floor plan of the offices, Ms. Kunakowski could not have witnessed the altercation. Finally, appellant testified that Metcalf and Kunakowski testified against him out of vindictiveness. The defense rested after the presentation of appellant's testimony. Thereafter, the matter was submitted to the jury who found appellant guilty as charged in the indictment. This appeal timely follows. II. For his first assignment of error, appellant contends that: "THE JURY'S FINDING OF GUILT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, AS THE EVIDENCE PRESENTED WEIGHS HEAVILY AGAINST CONVICTION, THERE BEING NO EVIDENCE PRODUCED OF AN ESSENTIAL ELEMENT OF THE OFFENSE CHARGED, TO WIT: 'PHYSICAL HARM.'" - 4 - The primary task of weighing the evidence and judging the credibility of witnesses is left to the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. Thus, a reviewing court will reverse on the weight of the evidence only in an exceptional case. State v. Woods (1985), 25 Ohio app.3d 35, 38. A reviewing court will not reverse where there is substantial, competent and credible evidence supporting the conclusion beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. Syllabus. Ordinance 636.02 defines assault as follows: no person shall cause or attempt to cause physical harm to another. "Physical harm" is defined in Ordinance 606.01(K) as: any injury, illness or other physiological impairment, regardless of gravity or duration. In Ohio it has been found that where a knife has been held against a person with such pressure that a red indentation remains after the knife is removed, the victim has suffered "physical harm" under the above definition. State v. Goble (1982), 5 Ohio App.3d 197. Appellant argues in his brief, not as his assignment of error would indicate, that the alleged action could not constitute "physical harm," but rather that the victim's story is simply ludicrous. Based upon our review of the evidence, we find that the testimony of the state's witnesses was consistent and credible, and that the evidence presented supports a finding of guilt beyond a reasonable doubt. - 5 - Appellant's first assignment of error is not well taken. III. For his second assignment of error appellant contends that: "THE TRIAL COURT CHARGED THE JURY WITH AN ERRONEOUS INSTRUCTION OF LAW, BY INSTRUCTING THE JURY THAT IT COULD FIND THE DEFENDANT 'GUILTY' OF THE OFFENSE OF ASSAULT IF IT DETERMINED THAT DEFENDANT MERELY 'TOUCHED' THE COMPLAINANT WITHOUT RESULTING INJURY, WHICH INSTRUCTION IS CONTRARY TO LAW, AND INCREASED THE LIKELIHOOD OF THE JURY'S [SIC] RETURNING A VERDICT OF 'GUILTY', UNREASONABLY." Appellant failed to object to the court's jury instructions. The failure to object to a jury instruction constitutes a waiver of any claim of error relative thereto, unless, but for the error the outcome of the trial clearly would have been otherwise. State v. Underwood (1983), 3 Ohio St.3d 12; See, also, State v. O'Dell (1989), 45 Ohio St.3d 140, 144; Crim. R. 30. Further, we do not find that the court's instruction constituted "plain error." Appellant's second assignment of error is not well taken. IV. For his third assignment of error, appellant contends that: "THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO GRANT A MOTION FOR ACQUITTAL, WHERE APPELLANT'S CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE, AND WHICH THE COURT FAILED TO DO DUE TO ITS INCORRECT UNDERSTANDING OF THE CONCEPT OF THE KIND OF EVIDENCE NECESSARY TO FIND THE ELEMENT OF 'PHYSICAL HARM' IN THIS OFFENSE CHARGED TO APPELLANT." - 6 - Appellant moved for acquittal pursuant to Crim. R. 29(A) at the close of the state's case. That motion was denied. Appellant then proceeded to present evidence in defense of this matter. Appellant did not renew the motion at the close of the case. Appellant has thereby waived his right to claim that the trial court erred in denying his Crim. R. 29(A) motion. State v. Estrict (August 29, 1991), Cuyahoga App. No. 59013, unreported; State v. Englehart (December 12, 1991), Cuyahoga App. No. 59641, unreported. Appellant's third assignment of error is not well-taken. V. For his final assignment of error appellant contends that: "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR, OR, ABUSED ITS DISCRETION, WHICH RESULTED IN PREJUDICIAL ERROR, BY IMPROPERLY RESTRICTING THE EVIDENCE SOUGHT TO BE INTRODUCED BY DEFENDANT AS TO ONE PROSECUTION WITNESS, WHERE THE PURPOSE WAS THE SAME FOR EACH: THAT IS, TO SHOW BIAS OR INTEREST OF THE WITNESS AS IT TENDED TO AFFECT THE WITNESS'S CREDIBILITY." When a trial court determines that evidence should not be admitted, its ruling will not be reversed absent a showing that the court abused its discretion. O'Brien v. Angley (1980), 63 Ohio St.2d 159. In the case, sub judice, during the direct testimony of appellant, an attempt was made to question appellant concerning his statement that Rita Kunakowski had wrongfully witheld money from him. This alleged incident was not brought up during Ms. - 7 - Kunakowski's testimony. The trial court sustained the state's objection to this line of questioning on relevancy grounds. Appellant now contends that the matter was highly relevant to demonstrate an alleged lack of credibility of Ms. Kunakowski. Concerning evidence which is used in an attempt to attack the credibility of a witness, Evid. R. 608(B) provides in relevant part that: "Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if clearly probative of truthfulness or untruthfulness, be inquired into on cross- examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified." "The meaning of this rule is very clear. Other than the Evid. R. 609 exception for certain criminal convictions, a witness' credibility may not be impeached by extrinsic proof of specific instances of his conduct." State v. Kamel (1984), 12 Ohio St.3d 306, 311. "Such conduct may be inquired into only by the intrinsic means of cross-examination within the guidelines of Evid. R. 608(B)." (Emphasis added.) Id. The attempt to question appellant concerning the alleged prior action of Ms. Kunakowski was clearly inappropriate under Evid. R. 608(B). Appellant's fourth assignment of error is not well taken. - 8 - 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 Bedford Municipal 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, C.J., and *JOHN V. CORRIGAN, J., CONCUR. JUDGE JOHN F. CORRIGAN (*Sitting by assignment: Judge John V. Corrigan, Retired from the Eighth District Court of Appeals). 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. .