COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61247 CITY OF CLEVELAND : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION MAHMOUD Y. ZAYED : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 29, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Cleveland Municipal Court : Case No. 90 CRB 030500 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: MARK A. McCLAIN Chief City Prosecutor JOSE A. TORRES, Assistant Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: ROBERT S. TUROFF, ESQ. 420 National City Bank Bldg. 629 Euclid Avenue Cleveland, Ohio 44114 - 1 - ANN McMANAMON, J.: Mahmoud Zayed challenges the weight of the evidence offered to convict him of domestic violence. He also argues that the exclusion of evidence and the bias of the trial judge compel reversal. We reject these arguments and affirm the Cleveland Municipal Court. In reviewing a challenge to the manifest weight of the evi- dence, this court must view the entire record, weigh the evi- dence and all reasonable inferences, consider the credibility of witnesses, and determine whether "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." State v. Martin (1983), 20 Ohio App.3d 172, 175. A new trial should be granted only where the evidence weighs heavily against convic- tion. Id. Further, we are mindful that the evaluation of wit- ness credi-bility primarily lies with the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. Zayed was convicted on one count of domestic violence (R.C. 2919.25), which provided in pertinent part on the date of the offense: (A) No person shall knowingly cause or attempt to cause physical harm to a family or household member. * * * (D) Whoever violates this section is guilty of domestic violence. A violation of divi- sion (C) of this section is a misdemeanor of the fourth degree. A violation of division - 2 - (A) or (B) of this section is a misdemeanor of the first degree. *** (E) As used in this section and section 2919.26 of the Revised Code: (1) "Family or household member" means any of the following, who is residing or has resided with the offender: (a) A spouse, a person living as a spouse, or a former spouse of the offender; *** Mahmoud and Fatima Zayed divorced each other in 1989 and, at the time of the incident in question, had a four-year-old son. On October 28, 1990, Fatima Zayed arrived at Russell's, a store formerly owned by her ex-husband, to pick up her son, who had spent the weekend with his father. According to Fatima Zayed, while she was sitting in the car, the defendant came out of the store and made sexual advances toward her. When she rebuffed him, he went inside the store, brought their son out and placed him in the car. Mahmoud Zayed then asked Fatima Zayed about her whereabouts the previous evening, making lewd and racist remarks. He became "very irate." The former wife began to cry and told Zayed she "wanted to leave, and to please shut the [car] door." He refused. Just as she managed to close the door, Zayed "started attacking [her]" by punching her through the open window, strik- ing her from her neck to her thighs. She managed to start the car and drove directly to a nearby police station, where she - 3 - filed a complaint. The following Monday, she followed up on the complaint at the prosecutor's office. Harvey Longs testified for the defendant. He acknowledged that he had worked for Mahmoud Zayed for two years at a previous time. Longs averred he was present at the store when Mrs. Zayed arrived. He took toys out to the car for the couple's son, plac- ing them in the back seat, while the defendant helped his son into the front seat and Mrs. Zayed drove away. Longs told the court that the defendant neither attacked Fatima Zayed nor ex- changed words with her. Mahmoud Zayed took the stand in his own defense and corrobo- rated Longs's version of the events. Thus, the trial court was faced with sharply contrasting versions of the occurrence. When confronted with both accounts, the judge was in the best position to weigh the evidence, make reasonable inferences, and consider the credibility of the wit- nesses. The court chose to believe Fatima Zayed and to disbe- lieve the defendant and his witness. Upon review of the record, we cannot say defendant's conviction was against the weight of the evidence. Accordingly, the first assignment of error is overruled. - 4 - In his second assignment of error, Mahmoud Zayed argues the court erred in excluding certain evidence at trial. During cross-examination of Fatima Zayed, counsel for defen- dant attempted to introduce, over objection, a motion to show cause which Mahmoud Zayed had filed in the couple's domestic re- lations case. The court rejected the exhibit. The record reflects that the defendant did not proffer this exhibit for appeal purposes. Without such a proffer, there is no basis upon which to review the alleged error. United Department Stores No. 1, et al. v. Continental Casualty Co. (1987), 41 Ohio App.3d 72, 75. We note that even if the exhibit had been proffered, the court properly excluded it. Defendant contends that the unadmitted motion to show cause was relevant to demonstrate Fatima Zayed's motive in filing the charge against her husband. According to Mahmoud Zayed, Fatima brought the domestic violence claim against him two weeks after he filed the show cause motion and, thus arguably, in retaliation for his action. Defendant is correct is asserting that the actual criminal complaint was not filed until November 29, 1990, two weeks after Mahmoud Zayed filed the motion to show cause. What defendant fails to point out, however, is that Fatima Zayed initiated her complaint against her former husband at the police station on the day of the alleged assault and followed it up later with the city - 5 - prosecutor. The assault occurred two weeks before Mahmoud Zayed filed his motion. For these reasons, we conclude the non-proffered exhibit was not relevant to exemplify the wife's motive. The second assignment of error is overruled. In his third assignment of error, Mahmoud Zayed argues he was denied the right to a fair trial because of the judge's pre- judice. He posits that the judge demonstrated her prejudice by 1) refusing to admit his exhibit into evidence (Tr. 12); 2) re- stricting cross-examination of the wife designed to show he had permitted her to take free merchandise from his store (Tr. 15); and 3) remarking as to the latter issue: Well, now, that is a wild goose chase. I mean how far away from this issue can you get? I mean did he have a right to beat her up because she went there and took the mer- chandise? (Tr. 15). The law presumes that a presiding judge is unbiased and free from prejudice, and evidence must be strong enough to overcome this presumption. State v. Richard (Dec. 5, 1991), Cuyahoga App. No. 61524, unreported at 10 citing State v. Baker (1984), 25 Ohio Misc.2d 11, 12. A trial judge's opinions of law are not by them- selves evidence of bias or prejudice. In re Disqualification of Murphy (1988), 36 Ohio St.3d 605. - 6 - As to the first instance of the trial judge's alleged preju- dice against the defendant, since we have found that the court had a proper basis for excluding the exhibit, we find no error. Nor has the defendant demonstrated that the trial judge, in restricting the scope of cross-examination, exhibited prejudice against him. A trial judge is charged by statute with broad discretion to "control all proceedings during a criminal trial" and limit dur- ing trial only the introduction of relevant evidence. R.C. 2945- .03. The court had a proper basis for restricting the line of questioning of Fatima Zayed on relevancy grounds. Inquiry into whether Fatima Zayed had taken merchandise from the store was not relevant as to whether Mahmoud Zayed caused physical harm to her. Thus, the court's ruling fails to demonstrate prejudice toward defendant. In determining whether a trial judge's remarks are prejudi- cial, the following "rules" shall be taken into consideration: (1) The burden of proof is placed upon the defendant to demonstrate prejudice, (2) it is presumed that the trial judge is in the best position to decide when a breach is committed and what corrective measures are called for, (3) the remarks are to be considered in light of the circumstances under which they are made, (4) consideration is to be given to their possible effect upon the jury and (5) to their possible impairment of the effec- tiveness of counsel. State v. Wack (1978), 53 Ohio St.2d 182, 188. - 7 - The judge's remarks were made after she sustained an objec- tion based on the relevancy of a line of questioning by defense counsel. In light of her ruling, this statement did not demon- strate prejudice towards the defendant. We conclude defendant has not met his burden. Accordingly, the third assignment of error is overruled, and the judgment of the trial court is affirmed. Judgment affirmed. - 8 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this ap- peal. It is ordered that a special mandate issue out of this Court directing the Cleveland 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. SPELLACY, J. CONCUR JUDGE ANN McMANAMON 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .