COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61284 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION MICHAEL LONG : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 19, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-255439 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor EDWARD FERAN, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: HYMAN FRIEDMAN, Public Defender WARREN L. McCLELLAND, Assistant The Marion Building, #307 1276 West Third Street Cleveland, Ohio 44113-1569 - 1 - ANN McMANAMON, J.: Michael Long appeals his conviction for felon-ious assault. In one assignment of error, he seeks review of the weight of the evidence presented to the judge. Upon examination of the record, we are compelled to affirm the judg- ment of the trial court. In reviewing a challenge to the manifest weight of the evi- dence, an appellate court must view the entire record, weigh the evidence 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 only be granted in the exceptional case where the evidence weighs heavily against conviction. Id. Moreover, an evaluation of witness credibility lies primarily with the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of syl- labus. Gwenda Epperson, the victim, told the judge she and the defendant had a platonic relationship for three years. On July 14, 1990, at 8:00 a.m., the defendant called Epperson to ask if she wanted to go shopping later that afternoon. She agreed and - 2 - invited the defendant to come to her apartment. He arrived at about noon. Epperson took a bath upstairs, then came downstairs to apply her makeup in a bathroom adjacent to the kitchen. According to Epperson, as she stood in front of a full length mirror, defen- dant approached from behind and stabbed her four times in the back. She averred the attack was completely unprovoked. Epperson said she screamed and fled to the kitchen, where defendant wrestled and pinned her to the floor, applied a head lock and held the knife to her head. The pair remained in the floor for thirty minutes with the victim pleading for her life. Eventually, defendant began to cry, threw the knife across the floor and told the victim he was back on drugs. At Epperson's request, the defendant applied pressure to her back with a wet towel and apologized for his actions. Shortly thereafter, Epperson's brother, his wife and children arrived. After a "tussle" between the two men, the defendant left the premises. The defendant testified in his own defense admitting that he stabbed Epperson. He told the judge, however, that he and Epper- son had lived together for short periods of time and occasionally engaged in sexual intercourse. According to Long, Epperson called him on the morning of July 14, crying because her current boyfriend had attacked her. - 3 - Long came over, comforted her and then engaged in intercourse with Epperson. Defendant described an argument which he said erupted after he asked Epperson about her relationships with other men and "why does she always date guys that misuse her." She replied that the women in his life were, in fact, using him. At some point, defendant told Epperson, "she wasn't the best *** that [he] had been with." She slapped defendant in the face, and he slapped her back. Defendant said he immediately apologized, but that Epperson went to the kitchen, brandished a knife at him and said "she was tired of [his] using her" and "hitting on her" and "she ain't going to let it happen no more." Long said Epperson raised her arm, he grabbed it, and they wrestled to the ground. He said he smashed her hand against the kitchen cabinet so that she lost her grip and the knife fell free. It was then that defendant grabbed the wea-pon and stabbed Epperson repeatedly in the back. He averred his actions were "unconscious." Defendant fled to a nearby pay phone and called 911, gave the operator Epperson's address, and stated he had just stabbed his ex-girlfriend. He also told the operator he was turning himself in. Counsel for defendant asked the court to consider aggravated assault in lieu of felonious assault. The court found Long guilty of felonious assault as charged. - 4 - Long argues the evidence only gives rise to a conviction for aggravated assault, not felonious assault. We disagree. Although aggravated assault (R.C. 2903.12) is not a lesser included offense of felonious assault (R.C. 2903.11), it is an inferior degree of that crime. State v. Deem (1988), 40 Ohio St.3d 206, 210. R.C. 2903.11 provides in part: (A) No person shall knowingly: (1) Cause serious physical harm to an- other; (2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance. * * * (B) Whoever violates this section is guilty of felonious assault, an aggravated felony of the second degree. What distinguishes the two offenses is that aggravated assault contains a mitigating circumstance, which states: (A) No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious pro- vocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly: *** The trier of fact must make a determination as to the existence of the mitigating circumstances in order to reduce a defendant's criminal culpability and the resulting sentence. State v. Harper (Mar. 21, 1991), Cuyahoga App. No. 58269 unreported, at 7, citing State v. Carter (1985), 23 Ohio App.3d 27. - 5 - The victim and defendant gave divergent accounts of the cir- cumstances of the stabbing. Epperson claimed the attack was un- provoked. Long's story, on the other hand, purportedly gives rise to the statutory mitigating circumstance. Although we note other discrepancies between the parties' stories, such as mutual drug use, the nature of their relationship and their activities that day, resolution of this case turns on the credibility of the vic-tim and defendant. As previously observed, the evaluation of witness credibility lies primarily with the trier of fact. State v. DeHass, supra. The trial judge chose to believe the victim's testimony. Upon review of the record, we find Long's conviction, based upon Epperson's averments and all reasonable inferences to be drawn from them, was supported by the weight of the evidence. The record, in its entirety, supports the determination of the court that the defendant stabbed the victim numerous times in an unprovoked attack upon her. Accordingly, this assignment of error is overruled, and the judgment of the trial court is affirmed. Judgment affirmed. - 6 - 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 Cuyahoga County 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. HARPER, 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. .