COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 58836 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION PAUL GRAVES : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 27, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-235640 JUDGMENT: AFFIRMED. SENTENCE MODIFIED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. CHARLES M. MORGAN, JR. CUYAHOGA COUNTY PROSECUTOR 11510 Buckeye Road BY: SCOTT SALISBURY, ESQ. Cleveland, Ohio 44104 ASSISTANT COUNTY PROSECUTOR The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: Defendant-appellant, Paul Graves, appeals his conviction for Felonious Assault (R.C. 2903.11), Child Endangering (R.C. 2919.22) and Domestic Violence (R.C. 2919.25). In three assignments of error, he claims that his convictions are against the manifest weight of the evidence, that he was denied effective assistance due to counsel's failure to file motions to suppress and that he was erroneously sentenced to a 25 instead of 15 year maximum sentence. Upon review we find appellant's third assignment of error to have merit. Accordingly, we affirm his convictions and modify his sentence to reflect a 15 year maximum term. The following evidence was adduced during appellant's jury trial: Paula Darovich, appellant's former common law wife, testified that on the evening of January 15, 1989, she and the appellant were at home drinking with a mutual friend named Ted. She stated that she and the appellant became involved in a 45 minute argument; that Ted left at the beginning of this argument and that she took her daughter to a friend's house at 8:30 p.m in order to let things "cool down" leaving the appellant with their four-month old son, Paul Graves, Jr. She stated that when she returned home at 9:00 p.m. the appellant was crying and that he told her that he was going to go to prison. Darovich testified that he also told her that their son was bleeding and that he thought he had hit the child but was not sure because he had been drinking. Upon taking - 3 - the child outdoors, Darovich discovered that the child's mouth and nose were swollen and that he was bleeding from his nose. She stated that she immediately took the child to Metro General Hospital where he was treated and observed for five days. Officer Kumazec testified that on the evening in question the appellant approached his patrol car, told him that he was turning himself in and also told him that he deserved to go to jail. (Tr.62) Kumazec testified that he and his partner had previously received radio information regarding an infant assault; that they therefore proceeded to take the appellant to Metro General Hospital and that while enroute the appellant voluntarily stated that he had been arguing with his wife, lost control and "smacked" the baby. (Tr.66) Kumazec stated that two other responding officers and an emergency room physician came out to their patrol car after they arrived at the hospital. Kumazec stated that the physician asked the appellant what happened and that in the presence of four officers and the physician, he stated that he hit his son. The above cited testimony was corroborated by responding officer James Traynor who observed the victim in the emergency room. Kumazec's testimony was also corroborated by Dr. Regenbaum who testified that when he asked the appellant what had happened, the appellant replied: "The baby was crying and I hit him across the face with my knuckles." (Tr.88). Dr. Regenbaum testified that a CAT scan demonstrated that the infant had developed a subdural hematoma as a result of the facial trauma. Regenbaum also stated - 4 - that such hematoma could have been life threatening. Dr. Sanau, the physician who treated the victim during his hospitalization, also described the hematoma as life threatening. The defense presented the testimony of two witnesses. Appellant's mother merely acknowledged the child's injuries and a female friend testified that Paula Darovich told her that it was Ted who assaulted the child and that Darovich could not understand why the appellant was charged with the crime. The jury found the appellant guilty as charged. The instant appeal followed. I THE DEFENDANT-APPELLANT'S CONSTITUTIONAL RIGHTS WERE DENIED WHEN THE JURY CONVICTED HIM OF FELONIOUS ASSAULT, CHILD ENDANGERMENT, AND DOMESTIC VIOLENCE, A VERDICT WHICH IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In determining whether the verdict is against the manifest weight of the evidence 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. State v. Davis (1988), 49 Ohio App.3d 109, paragraph three of the syllabus. A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, paragraph one of the syllabus. Circumstantial evidence and direct evidence possess the - 5 - same probative value. Our review indicates that the State presented overwhelming circumstantial and direct evidence to convict the appellant beyond a reasonable doubt. The record demonstrates that appellant had been drinking; that he was extremely agitated and that he was left alone with a crying infant for a half-hour prior to his wife's discovery of the child's injuries. The record also demonstrates that the appellant admitted the assault to six different individuals on three separate occasions within two hours of the incident. The only witness to dispute the State's case was a friend of the appellant who alleged that Ted committed the crime. However, appellant's wife denied having a conversation with this witness and unequovically stated that Ted left the apartment when the argument ensued. In resolving such conflicts in the evidence, we cannot say that the jury lost its way and created a manifest miscarriage of justice. State v. Jenks (1991), 61 Ohio St.3d 259 and State v. DeHaas (1967) 10 Ohio St.2d 230. Appellant's first assignment of error is overruled. II THE DEFENDANT-APPELLANT'S CONSTITUTIONAL RIGHT TO EFFECTIVE COUNSEL WAS DENIED WHEN THE DEFENSE COUNSEL FAILED TO INVESTIGATE THE ORAL STATEMENTS OF THE DEFENDANT-APPELLANT AND FILE A MOTION TO SUPPRESS WHEN REFERENCE TO THE STATEMENTS WERE BROUGHT TO THE ATTENTION OF DEFENSE COUNSEL AT PRETRIAL. In his second assignment of error, appellant claims that counsel should have investigated and suppressed the statements he made to his wife, his son's physician and the police. - 6 - In applying the two-part test set forth in Strickland v. Washington (1988), 466 U.S. 668, we find that the appellant has failed to prove by the preponderance of the evidence a violation of defense counsel's essential duties. Upon explicit questioning by the court, counsel admitted that the decision to forego the filing of suppression motions was made for purposes of trial strategy. Moreover, statements appellant made to his wife were not subject to suppression as she elected to testify against him. (See, Evid.R. 601(B)(2)). Statements appellant made to the emergency room physician were also not subject to suppression. Assuming arguendo, that counsel did err in failing to suppress statements made to police officers, such error is harmless in light of other overwhelming evidence of appellant's guilt. His second assignment of error is overruled. III THE TRIAL COURT ERRED BY SENTENCING DEFENDANT-APPELLANT TO A TERM GREATER THAN THE TERM STATUTORILY SET FOR SECOND DEGREE FELONIOUS ASSAULT. We find the trial court erroneously imposed a 25 year maximum sentence in this case. Hence, we modify appellant's sentence to reflect a 15 year maximum sentence. See R.C. 2929.11(B)(2)(a). Appellant's third assignment of error is sustained. Accordingly, his sentence is modified and his convictions are affirmed. - 7 - 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. PATTON, C.J., AND HARPER, J., CONCUR. ANN DYKE JUDGE 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. .