COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67165 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION SHAWN COLLINS : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 22, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-305,752 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor ELAINE WELSH, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: CHRISTOPHER J. MALLIN Post Office Box 46565 Bedford, Ohio 44146 DONALD C. NUGENT, J.: Defendant-appellant Shawn Collins (hereinafter "appellant") appeals from his bench trial conviction in the Court of Common Pleas of Cuyahoga County for felonious assault with a violence specification; to wit: that Mr. Collins had previously been convicted of aggravated assault in violation of R.C. 2903.12. Appellant appeals his conviction and raises the following ten assignments of error for our review: I. THE TRIAL COURT ERRED WHEN IT OVERRULED DEFENDANT'S OBJECTIONS TO THE HEARSAY TESTIMONY OF STATE'S WITNESS MAUREEN WILLIAMSON AND DENIED THE DEFENDANT'S MOTIONS TO STRIKE SAID HEARSAY TESTIMONY. II. THE TRIAL COURT ERRED WHEN IT OVERRULED DEFENDANT'S OBJECTIONS TO THE HEARSAY TESTIMONY OF STATE'S WITNESS JULIE ANN BLASCZAK. III. THE TRIAL COURT ERRED WHEN IT OVERRULED DEFENDANT'S OBJECTIONS TO THE HEARSAY TESTIMONY OF STATE'S WITNESS PATRICIA GREEN. IV. THE TRIAL COURT ERRED WHEN IT OVERRULED DEFENDANT'S OBJECTIONS TO THE HEARSAY TESTIMONY OF STATE'S WITNESS YOLANDA VILLEGAS AND DENIED DEFENDANT'S MOTION TO STRIKE SAID HEARSAY TESTIMONY. V. THE TRIAL COURT ERRED WHEN IT GRANTED PLAINTIFF'S OBJECTIONS TO DEFENDANT'S CROSS-EXAMINATION OF STATE'S WITNESS YOLANDA VILLEGAS AS TO THE PERSONAL RELATIONSHIP BETWEEN THE ALLEGED VICTIM AND THE DEFENDANT, AND AS TO THE PRESENCE - 3 - OR ABSENCE OF FEAR OF THE DEFENDANT BY THE ALLEGED VICTIM. VI. THE TRIAL COURT ERRED WHEN IT OVERRULED DEFENDANT'S OBJECTIONS TO THE HEARSAY TESTIMONY OF STATE'S WITNESS NOREEN BAYER. VII. THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION FOR ACQUITTAL PURSUANT TO CRIMINAL RULE 29 MADE AT THE CLOSE OF THE PLAINTIFF'S OPENING STATEMENT. VIII.THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION FOR ACQUITTAL PURSUANT TO CRIMINAL RULE 29 MADE AT THE CLOSE OF THE PLAINTIFF'S EVIDENCE. IX. THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION FOR ACQUITTAL PURSUANT TO CRIMINAL RULE 29 MADE AT THE CLOSE OF ALL THE EVIDENCE. X. THE VERDICT IS MANIFESTLY AGAINST THE WEIGHT OF THE EVIDENCE. I. The present case is a circumstance where much of the prosecution's testimony is from six witnesses who heard the declarant-victim name the appellant as her assailant. These six witnesses were co-workers and friends of Ms. Perry; to wit: Maureen Williamson, Julie Ann Blasczak, Patricia Green, Yolanda Villegas, Kenneth Thomson and Noreen Bayer. The statements made to them by Ms. Perry were made at different times after her assault. The facts that culminated in the conviction of appellant can be derived from the facts adduced at trial. They are as follows: - 4 - At approximately 7:00 p.m. on October 13, 1993, Annie Perry arrived at her job as a dancer at Bugaloo's Tavern on Harvard Avenue in Cleveland. One of Ms. Perry's co-workers at Bugaloo's that night was Maureen Williamson. Ms. Williamson's testimony was that she saw appellant, Shawn Collins, enter Bugaloo's Tavern at about 8:00 p.m. and physically grab Ms. Perry. An exchange of words was had between the couple. At that point, Ms. Perry went into the dressing room to change her clothes. Ms. Williamson entered the dressing room and tried to encourage her not to leave with appellant; however, Ms. Perry told her she feared that if she did not go with the appellant, he would kill her children. Shortly thereafter, Ms. Perry left the bar with appellant. About twenty minutes later, Ms. Perry returned to the bar with appellant. At that time, Ms. Perry's mouth and right eye were cut and bleeding. Ms. Williamson testified that Ms. Perry was hysterical, scared and frightened. She tried to keep Ms. Perry from leaving with appellant, but Ms. Perry refused, claiming that appellant had a gun. Ms. Williamson testified that shortly thereafter, Ms. Perry left the bar with appellant. The barmaid at Bugaloo's Tavern that night was Julie Ann Blasczak. Ms. Blasczak also testified that she knew appellant and witnessed appellant enter the bar at approximately 8:00 p.m. on the night of October 13, 1993. After a short time, she witnessed appellant and Ms. Perry leave the bar together. Within about ten to twenty minutes, she witnessed Ms. Perry return to the bar and - 5 - enter the dressing room. At that time, Ms. Blasczak testified that she entered the dressing room and saw that Ms. Perry was very scared and nervous in appearance. She noticed that Ms. Perry's lip was bleeding. When she asked Ms. Perry what had happened to her, Ms. Perry told her that appellant had hit her. After this, Ms. Perry got dressed and left the bar with the appellant. The record does not indicate whether the appellant or Ms. Perry was seen by anyone until the next morning. The next person to testify to seeing Ms. Perry was Ms. Patricia Green. Ms. Green testified that she had known Ms. Perry "like a daughter" for the past ten years. At times over these years, Ms. Perry had lived in Ms. Green's home. Ms. Green stated that at about 10:00 a.m. on the morning of October 14, 1993, Ms. Perry arrived at Ms. Green's home holding her stomach and rib. Ms. Green testified that Ms. Perry's eyes were closed shut, her mouth was swelled "like a duck's beak," and blood was all over her. She testified that she immediately put Ms. Perry into her car and drove her to the police station. On the way to the police station, Ms. Green described Ms. Perry as being "out of it" and scared. During the trip to the police station, Ms. Perry recounted to Ms. Green the events of the previous night. Ms. Green testified that Ms. Perry told her that the appellant had come into the bar and told her that if she did not leave with him, he would "blow her away." Ms. Perry stated that after she left the bar with the appellant, he started hitting - 6 - her in the parking lot of the bar. She told Ms. Green that appellant then drove to nearby Clark Field, where he continued to beat on her. After this, appellant took Ms. Perry to their home and continued to beat on her. Ms. Green testified that after arriving at the Second District Police Station, she was told to take Ms. Perry directly to Metro General Hospital. Ms. Perry was fearful that appellant would be able to find her at Metro General, so Ms. Green took her to Deaconess Hospital, where she could be treated for her injuries. Further testimony as to the events of the morning of October 13, 1993 was elicited from Ms. Perry's half-sister, Yolanda Villegas, and her boyfriend, Ken Thomson. The couple testified that on that morning, they were together at their home. Ms. Villegas testified that at approximately 10:00 a.m. that morning, appellant, Shawn Collins, appeared at her home looking for Ms. Perry. Ms. Villegas testified that the appellant stated that he and Ms. Perry had "gotten into it last night" and that he was sorry and he loved her. The events testified to by Ms. Villegas were separately reiterated in the testimony of Mr. Thomson. Mr. Thomson also testified that the appellant had arrived at his and Ms. Villegas's home and admitted that he and Ms. Perry had "gotten into it last night." After this short conversation with the couple, the appellant left their home. Shortly thereafter, the couple received a call - 7 - from Ms. Green. Ms. Green informed the couple that Ms. Perry was in the hospital and had been seriously injured. Ms. Perry's treating nurse at Deaconess Hospital was Ms. Noreen Bayer, R.N. Nurse Bayer testified that Ms. Perry was a shocking sight upon her entrance to the hospital. There was a large amount of bruising over both legs and arms and along her back. Ms. Perry's eyes were extensively bruised and tearing. In addition, her face was cut and bruised and there was a shoe imprint on her face. Nurse Bayer testified that upon entering the hospital, Ms. Perry was extremely anxious, whimpering and visibly shaking. According to normal hospital procedures, Nurse Bayer asked Ms. Perry a number of questions in order to determine the proper course of treatment. In response to the nurse's questions, Ms. Perry stated that she had been kicked and punched by her boyfriend. In addition, Ms. Perry stated that she had been beaten in the past and that she was seen in Lakewood Hospital only two weeks earlier due to another beating. After being tested and treated by the staff at Deaconess, Ms. Perry checked herself out "AMA" (against medical advice) at 4:00 p.m. on the afternoon of October 14, 1993. Later that evening, Ms. Perry re-admitted herself to Deaconess Hospital, where she stayed until she was discharged on October 15, 1993. The case was assigned to Detective Borsuk of the Second District, Cleveland Police Department. Detective Borsuk interviewed Ms. Perry while she was at Deaconess Hospital. At that - 8 - time, she named appellant as the assailant. With this information, a warrant was issued for appellant's arrest. Based upon the foregoing facts, appellant, Shawn Collins, was arrested. On February 1, 1994, he was indicted for the felonious assault of Ms. Annie Perry with violence specifications. The trial was set for March 23, 1994. On March 17, 1994, subpoenas were issued to insure the presence of Ms. Perry at trial. On March 21, 1994, another group of subpoenas was issued for Ms. Perry. On March 23, 1994, Ms. Perry did not appear in court. At that time, the trial court immediately issued a bench warrant for Ms. Perry. Thereafter, the bench trial proceeded. After the state completed its opening statement, the appellant moved for acquittal pursuant to Crim.R. 29. The court denied appellant's motion, and the state proceeded with its case-in-chief. The state called six witnesses to testify as to their knowledge of the events of October 13 and October 14, 1993. After the state presented its case, the appellant again moved for acquittal pursuant to Crim.R. 29. Argument was heard before the court pursuant to the merits of appellant's Crim.R. 29 motion. After argument, the court again denied appellant's motion. Thereupon, the appellant did not present any testimony nor call any witnesses; appellant simply renewed his Crim.R. 29 motion and rested. The court again overruled appellant's motion. After deliberation of the entire testimony, the trial court found appellant guilty as charged in the indictment. The court - 9 - sentenced appellant to eight to fifteen years at Lorain Correctional Institute, the minimum being the term of actual incarceration. On April 21, 1994, appellant filed his notice of appeal with this court. Appellant appeals the trial court's allowance of certain testimony of some of the witnesses. In addition, appellant claims that the trial court's findings are against the manifest weight of the evidence. For the reasons that follow, we affirm the judgment of the trial court. II. Of primary consideration in the present case is this court's role in determining whether the trial court's admission of certain testimony into evidence constituted prejudicial error. Generally, errors relating to a trial court's admission of evidence must be reviewed in light of Evid.R. 103(A) and the standard established in Crim.R. 52(A), providing that if such errors are found, they are harmless unless the record demonstrates that the errors affected a party's substantial right. State v. Sorrels (1991), 71 Ohio App.3d 162, 165. Therefore, this court is mindful that even if some of the testimony of certain witnesses was erroneously admitted into evidence by the trial court, the admission of this evidence would not be grounds for reversal unless it adversely affected a substantial right of the appellant. State v. Sage (1987), 31 Ohio St.3d 173. - 10 - Further, this court notes that this case was a bench trial wherein the trial court not only ruled on the proper admissibility of evidence but also determined the guilt of the appellant. Therefore, the decision as to whether the disputed evidence fits within a hearsay exception is left to the broad discretion of the trial court. Sage, supra; State v. Smith (1986), 34 Ohio App.3d 180. A trial court does not abuse its discretion in admitting evidence unless it is shown that the admittance of certain testimony constituted prejudicial error. "The term 'abuse of discretion' connotes more than an error of law or judgment on the part of the trial court; it implies that the court's attitude was unreasonable, arbitrary or unconscionable." Pembaur v. Leis (1982), 1 Ohio St.3d 89; State v. Adams (1980), 62 Ohio St.2d 131. Due to the fact that the herein action was a bench trial, greater freedom is given to the trial court for the production of evidence because a presumption exists that the trial judge will only consider relevant, material and competent evidence in deciding a case. State v. Eubank (1979), 60 Ohio St.2d 183, 187; State v. Post (1987), 32 Ohio St.3d 380, 384. Accordingly, in determining the present appellant's assignments of error, if the trial court's resolution of the requisite facts in the present case establishes that the hearsay exceptions were reasonably applied, the decision of the trial court will not be overturned. Peters v. Ohio (1992), 63 Ohio St.3d 296, 299; National City Bank v. Fleming (1981), 2 Ohio App.3d 50, 56. - 11 - In the case sub judice, the gist of appellant's assignments of error is that the trial court improperly allowed certain out-of- court statements attributed to Ms. Perry to be admitted into evidence through other witnesses. The appellant argues that the witnesses' testimony does not qualify under any exception to the hearsay rule of Evid.R. 802, infra. As such, appellant claims that the guilty verdict entered by the trial court was entered and based upon erroneously-admitted testimony and thus constitutes prejudicial error. In deciding upon the "admissibility" of evidence, a trial court's ultimate question in applying the rules of evidence is whether, as a practical matter, the evidence in question helps to determine the truth -- in essence, whether the evidence offered before the court can assist the court in reaching a conclusion in which justice is served. This is the common law basis for the preliminary questions of "competency" and "relevancy" of evidence which are required of the trial court by Evid.R. 104. Therefore, the trial court must make a preliminary finding that the evidence proposed for admission is both competent and relevant to the issue before the court. Evid.R. 104. This preliminary finding is of particular importance when, as in the case herein, a trial court determines that some evidence, although hearsay, is admissible as an exception to the hearsay rule. The common law definition of hearsay was codified into Evid.R. 801(C). It defines hearsay as a "statement, other than one made by - 12 - the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." At common law, there existed a general prohibition that hearsay should not be introduced into evidence. This common law rule was codified in Evid.R. 802, which states as follows: Hearsay is not admissible except as otherwise provided by the Constitution of the State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by any other rules prescribed by the Supreme Court of Ohio. The United States Supreme Court enforced the validity of the use of hearsay exceptions with its ruling in Ohio v. Roberts (1980), 448 U.S. 56, 100 S.Ct. 2531, which stated at 66, 100 S.Ct. 2539: [R]eliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness. In the present case, the trial court held that some of the victim's out-of-court statements that were made to certain witnesses were both relevant and admissible due to the fact that the statements were made by the victim shortly after her beating. Therefore, in the trial court's determination, Ms. Perry was still under the stress of the beating when she made the declarations and, for this reason, her statements fell within the firmly-rooted excited utterance exception of Evid.R. 803(2). White v. Illinois (1992), 502 U.S. ___, 112 S.Ct. 736. - 13 - The reliability prong of the Roberts test, supra, was satisfied because the hearsay statements fell within the exception enumerated in Evid.R. 803(2), which states, in pertinent part, as follows: (2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Therefore, considering the foregoing definitions of hearsay in accord with our standard of review, as set forth in the holdings of Peters and National City Bank, supra, this court must determine whether the trial court abused its discretion in admitting testimony pursuant to the pertinent hearsay exceptions. With these considerations in mind, we now turn to the assignments of error raised by the appellant, Shawn Collins. III. Appellant's first and second assignments of error argue that the trial court erred when it admitted, under Evid.R. 803, the statements of Ms. Perry made to her co-workers, Maureen Williamson and Julie Ann Blasczak. Because the court's determination that these statements were excited utterances is based upon essentially the same facts and circumstances, we will consider them together. The testimony of both Ms. Williamson and Ms. Blasczak consists of their own eyewitness accounts of the actions of the appellant as well as statements made to them by Ms. Perry on the night of October 13, 1993. - 14 - Appellant contends that the testimony of these two witnesses was not properly admissible under the excited utterance exception of Evid.R. 803(2), supra. In Potter v. Baker (1955), 162 Ohio St. 488, the Ohio Supreme Court defined the four-part test to be applied by trial courts in determining whether hearsay statements should be admitted under the excited utterance exception: (a) [T]hat there was some occurrence startling enough to produce a nervous excitement in the declarant, which was sufficient to still his reflective faculties and thereby make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs, and thus render his statement or declaration spontaneous and unreflective, (b) That the statement or declaration, even if not strictly contemporaneous with its exciting cause, was made before there had been time for such nervous excitement to lose dominion over his reflective faculties, so that such domination continued to remain sufficient to make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs, (c) That the statement or declaration related to such a startling occurrence or the circumstances of such startling occurrence, and (d) that the declarant had an opportunity to observe personally the matters asserted in his statement or declaration. See also, State v. Duncan (1978), 53 Ohio St.2d 215, (paragraph one of the syllabus); State v. Wallace (1988), 37 Ohio St.3d 87, 89; State v. Boston (1989), 46 Ohio St.3d 108; State v. Huertas (1990), 51 Ohio St.3d 22, 31. - 15 - Every element of the above Potter test has been clearly satisfied by the testimony of Ms. Blasczak and Ms. Williamson. The testimony consisted of Ms. Perry's statements made to these witnesses while the victim was in a hysterical state, within moments of Ms. Perry having injuries inflicted to her face. The witnesses saw appellant enter the bar and physically grab Ms. Perry. Shortly thereafter, she left the bar with appellant. Both witnesses saw Ms. Perry before she left the bar with appellant. At that time, neither witness noticed any cuts or damage to Ms. Perry's face. Then, about ten to fifteen minutes after leaving the bar with appellant, Ms. Perry returned. When asked to describe Ms. Perry's emotional and physical condition upon returning to the bar, the witnesses testified as follows: MS. WILLIAMSON: *** When she came back and she was changing, she was putting on her regular street clothes and I noticed that there was, her eye was cut and her mouth was bleeding. * * * PROSECUTOR: All right. What was her emotional condition at that point? A: Hysteria. Q: All right. Describe further, if you will please, was she crying? A: She was crying. She was trying not to. She was trying to hold it back, I mean, tears were coming out of her eyes. She didn't appear to be in pain. She just, - 16 - she just seemed like real scared, frightened. Further, Ms. Blasczak testified as follows: PROSECUTOR: Describe if you will her (Ms. Perry's) emotional condition when you first saw her? MS. BLASCZAK: She was shaky looking. She was real scared in appearance, real nervous. Q: Did you just talk with her then? A: Yes, her lip was bleeding and I asked her what happened and she said Shawn had hit her. MR. MALLIN: (DEFENSE ATTORNEY): Objection to what she said. THE COURT: Overruled. It is appellant's contention that the circumstances laid out above do not qualify the victim-declarant's statements as excited utterances. We do not agree. Both witnesses testified that the declarant's statements were made while she was in an anxious, frightened and fearful state. In addition, both witnesses testified that Ms. Perry's eye was cut and her mouth was swollen when she came back into the bar minutes after leaving with appellant. Appellant argues that these facts do not warrant the admission of Ms. Perry's statements made to these two witnesses that identified the appellant as her assailant. From a review of the record, it is clear that Ms. Perry was in a stressful state when she made these statements, as required by Evid.R. 803(2). The - 17 - spontaneity of the statements and the lack of opportunity for Ms. Perry to engage in reflection were the essential criteria that the trial court had to consider in determining whether the hearsay statements satisfied the excited utterance exception. See, State v. Moorman (1982), 7 Ohio App.3d 251, 252. This criteria was unquestionably met by the facts herein. Both witnesses stated that Ms. Perry was in a scared and nervous state. Also, it must be remembered that this case was a bench trial. Eubank and Post, supra. Therefore, the trial judge had the means and opportunity to view and question, if necessary, the veracity and credibility of these witnesses. This court can think of few examples that more clearly represent the type of testimony which was intended to be admitted under Evid.R. 803(2). Consequently, we find that the trial court's admission of Ms. Williamson's and Ms. Blasczak's testimony identifying the defendant as the assailant was proper under the excited utterance exception of Evid.R. 803(2). Accordingly, appellant's first and second assignments of error are overruled. IV. Appellant's third, fourth and sixth assignments of error raise the issue as to whether the trial court erred in allowing certain witnesses (Ms. Green, Ms. Villegas and Nurse Bayer) to testify about statements made to them by Ms. Perry in the morning after the - 18 - beating. It is appellant's contention that the admittance of this testimony constituted the "crux of the state's case" and must result in a reversal of the trial court's verdict. Each of these witnesses had personal contact with Ms. Perry during the morning hours of October 14, 1993. The appellant argues that it was error for the trial court to overrule his objections to the introduction of the testimony of these witnesses. It is appellant's contention that the statements made by Ms. Perry to these witnesses constituted hearsay. Moreover, appellant contends that these hearsay statements were not admissible because they did not fall within an exception to the hearsay rule. Therefore, appellant argues, the admission of these statements by the trial court resulted in prejudicial error because the statements falsely named appellant as the victim's assailant. In order to discuss the propriety of the trial court's admission of these statements, we must first consider the manner in which these statements were presented to the trial court. Appellant argues that the testimony of the three witnesses in question is the state's only evidence to support its claim that the appellant inflicted Ms. Perry's injuries. A plain review of the record shows that appellant's contention is not correct. Of utmost importance to the determination of this question is the testimony presented to the trial court by Ms. Yolanda Villegas and Mr. Ken Thomson. - 19 - On the morning of October 14, 1993, before Ms. Villegas was summoned to the hospital, she had a conversation with the appellant, Shawn Collins. According to Ms. Villegas, the appellant came to her home the morning after the assault looking for Ms. Perry. Her testimony was as follows: PROSECUTOR: And when you first saw Shawn Collins, what did he say to you? MR. MALLIN: Objection. THE COURT: Overruled. PROSECUTOR: Your Honor, can we clarify that for the record certainly as an admission by a party opponent? THE COURT: Sure. MS. VILLEGAS: He had asked where my sister was and he said that he was really sorry, and that they had got into it, and that he really loved my sister and that was just about it really. Q: All right. How many times did he say that? A: I would say two or three times. He was, you know, just saying that he was sorry that they had got into it. The above testimony of Ms. Villegas was reiterated and affirmed through the testimony of Ken Thomson. Mr. Thomson lives with Ms. Villegas and was also witness to appellant making the 1 above statements. 1 We note that appellant has not raised an issue on appeal as to the admittance of this testimony by the trial court. - 20 - The statement by Mr. Collins that he and the victim "had gotten into it" clearly implies that something had taken place between himself and Ms. Perry. This statement is not hearsay and was properly admitted by the trial court as an admission by a party opponent under Evid.R. 801(D)(2). Therefore, considering 1) the appellant's statements to Ms. Villegas and Mr. Thomson, 2) the eyewitness accounts of Ms. Blasczak and Ms. Williamson and 3) the physical description of the victim's injuries, there was overwhelming evidence presented by the state to prove that the identity of the assailant was Mr. Collins. See, State v. Williams (1983), 6 Ohio St.3d 281. With this in mind, we now turn to consider the admissibility of the particular statements made to the three witnesses in question. The testimony of Ms. Green, Ms. Villegas and Nurse Bayer all relate to the condition of Ms. Perry and the events that were experienced by these witnesses on the morning of October 14, 1993. Each of these witnesses testified in regard to the extent of Ms. Perry's physical injuries as well as to the statements which Ms. Perry made to them regarding the cause of her injuries. Appellant argues that the trial court's overruling of his objections to the statements which identified him as the assailant was prejudicial error. Again, we are mindful that this case was a bench trial. Therefore, a presumption arises that the judge only considered - 21 - relevant, material and competent evidence in deciding the case. Eubank and Post, supra. Appellant was charged with felonious assault in violation of R.C. 2903.11, which requires the element of "serious physical harm," infra. Therefore, the state had the burden of proving that the injuries to Ms. Perry constituted serious physical harm. The introduction of eyewitness accounts of the extent of the injuries was a proper method to prove such an element of the offense. The testimony of these witnesses was that of eyewitnesses to the injuries inflicted upon Ms. Perry and was not offered into evidence to implicate the appellant as the assaillant. Moreover, the testimony of these witnesses was necessary to identify and corroborate the state's photographs which were taken of Ms. Perry's injuries while she was in the hospital. It is clear that each of these witnesses had personal knowledge in regard to the extent of Ms. Perry's injuries. The testimony of each of these witnesses was absolutely necessary for the state to prove the element of serious physical harm. Ms. Green drove Ms. Perry to the hospital and stayed with her until she was discharged; Ms. Villegas came to the hospital to see Ms. Perry and personally viewed the injuries of Ms. Perry; and, finally, Nurse Bayer was the nurse primarily responsible for determining what treatment was necessitated by Ms. Perry's injuries. Nurse Bayer testified that in her fourteen years of experience as a nurse, she had "never seen anyone that badly injured [as Ms. Perry] that was - 22 - not fatally injured." For the purpose of determining the extent of Ms. Perry's injuries, Nurse Bayer completed a routine questionnaire regarding the cause of Ms. Perry's injuries. This questionnaire was also admitted into evidence to prove the extent of Ms. Perry's injuries. For these reasons, the testimony of these witnesses was properly admissible by the trial court. Even assuming arguendo that some of the testimony given by these witnesses constituted hearsay statements that identifed Mr. Collins as the assailant, the admission of these statements by the trial court would have been harmless error. Crim.R. 52(A). Notwithstanding any statements made by Ms. Perry to these witnesses identifying appellant as the assailant, the remaining evidence, standing alone, constituted overwhelming proof of the identity of the appellant as the assailant. Williams, supra. Therefore, the admission of any statement naming the appellant as the assailant was merely cumulative and harmless beyond a reasonable doubt as to the question of the identity of the assailant. State v. Bayless (1976); 48 Ohio St.2d 73; In re Johnson (1989), 61 Ohio App.3d 544, 550. Accordingly, we find that the trial court did not err in overruling the objections of appellant to the testimony of these witnesses into evidence as the testimony of these witnesses was necessary to prove an essential element of the crime charged. Appellant's third, fourth and sixth assignments of error are not well taken. - 23 - V. Appellant's fifth assignment of error argues that the trial court erred when it did not allow the defendant to cross-examine Ms. Villegas about the personal relationship between Ms. Perry and the appellant as well as to whether Ms. Perry was presently fearful of the appellant. The scope of cross-examination is within the sound discretion of the trial court, whose determination should not be disturbed absent a clear abuse of discretion. State v. Green (1993), 66 Ohio St.3d 141, 147. The cross-examination in the present case dealt with the Ms. Perry's half-sister, Ms. Villegas. Appellant's counsel attempted to ask Ms. Villegas the following questions: Q: Do you know if your sister has plans to become married to [appellant]? * * * Q: Do you know if your sister is still keeping company with Shawn Collins? * * * Q: Since your sister's release from the hospital, have you observed anything in her behavior or her action that she is in fear of Mr. Collins? The trial court sustained the state's objections to all of these questions. Appellant argues that he should have been permitted to ask these questions. We do not agree. The Supreme Court has generally recognized that the right to cross-examination, which is included in the Sixth Amendment's - 24 - confrontation clause, guarantees only an opportunity for effective cross-examination, not to cross-examination that was effective in whatever way, and to whatever extent the defense might wish. Delaware v. Fensterer (1985), 474 U.S. 15, 106 S.Ct. 292. In addition, the Sixth Amendment right of confrontation applies to the states in their criminal proceedings. Pointer v. Texas (1965), 380 U.S. 400, 85 S.Ct. 1065. The pertinent question before the trial court was whether or not, at the time that Ms. Perry made her declarations, she was under the stress, excitement and fear of being brutally assaulted. Boston and Duncan, supra. The only relevant fear is that which Ms. Perry had at the time that she made the declarations. Her future or present fear of the appellant is completely irrelevant to the determination of guilt or innocence as it relates to the assault of October 13, 1993. For the foregoing reasons, we find that the trial court properly limited defense counsel's cross-examination. Accordingly, appellant's fifth assignment of error is overruled. VI. Appellant's seventh, eighth and ninth assignments of error argue that it was error for the trial court to deny appellant's motions for acquittal pursuant to Crim.R. 29. As these assignments - 25 - of error deal with essentially the same issue, they will be addressed together. Crim.R. 29 states, in pertinent part, as follows: (A) The court on a motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of judgment or acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for acquittal made at the close of the state's case. A trial court shall not enter a judgment of acquittal pursuant to Crim.R. 29 if the evidence is such that reasonable minds can reach different conclusions as to whether each element of a crime has been proven beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St.2d 261, paragraph one of syllabus. The test for a trial court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307; Bridgeman, supra. In the present case, the appellant was charged with and found guilty by the trial court of felonious assault under R.C. 2903.11, which provides, in pertinent part, as follows: (A) No person shall knowingly: (1) Cause serious physical harm to another; - 26 - (2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance ***. Appellant contends that the evidence presented by the state did not prove all of the essential elements of the crime charged. Appellant further contends that his motion for acquittal should have been granted because the state's opening statement "indicated there would be no identification of this defendant by anyone who claims to have observed him inflict any injury on Ms. Perry." Appellant essentially argues that his conviction was improper because it was based on insufficient circumstantial evidence. We find appellant's arguments to be unpersuasive. In State v. Jenks (1991), 61 Ohio St.3d 259, paragraph 1 of the syllabus, the Ohio Supreme Court specifically addressed the sufficiency of circumstantial evidence as follows: Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. When the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction. The question before the trial court in deciding appellant's Crim.R. 29 motion was whether reasonable minds could differ as to the guilt or innocence of the defendant. If the court felt that no reasonable mind could find the defendant guilty, then acquittal should have been granted. Bridgeman, supra. - 27 - In deciding this issue, the trial court had to consider all of the evidence which was properly admitted before the court. By arguing that the evidence before the trial court was insufficient to establish guilt, the appellant again attempts to argue the admissibility of the hearsay declarations of Ms. Perry. This court has already submitted an exhaustive analysis as to the reasons why the statements made by Ms. Pery to Ms. Blasczak and Ms. Williamson were properly admitted into evidence to prove the identity of Ms. Perry's assailant. Section III, supra. Therefore, they were also properly considered by the trial court in ruling on appellant's Crim.R. 29 motions. The evidence presented to the trial court was clearly sufficient to leave a question for reasonable minds to determine whether or not the elements of felonious assault had been committed. Evidence was presented through eyewitnesses that appellant was seen leaving the bar with Ms. Perry and that, a short time later, Ms. Perry returned to the bar with injuries to her face. At that time, she told the witnesses that the appellant had hit her. In addition, appellant admitted to two witnesses that he and Ms. Perry had "gotten into it" the previous night and that he was "real sorry." Moreover, eyewitness accounts, medical reports and photographs were provided to show the physical extent of Ms. Perry's injuries. Based on the above facts, we hold that the trial court properly determined that the evidence was sufficient to withstand - 28 - appellant's Crim.R. 29 motions for acquittal as these motions were presented at each and every aspect of the evidence. Therefore, the trial court's denials of appellant's Crim.R. 29 motions were not an abuse of discretion. Accordingly, appellant's seventh, eighth and ninth assignments of error are overruled. IX. Appellant's tenth assignment of error argues that the verdict of the trial court is against the manifest weight of the evidence. In determining whether a conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences and the credibility of the witnesses, and determine whether, in resolving the conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that a conviction must be reversed. Elyria v. Tress (1991), 73 Ohio App.3d 5, 7; State v. Martin (1983), 20 Ohio App.3d 172, 175. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 19 Ohio St.2d 230. 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. - 29 - As previously stated, in the case sub judice, the trial court was faced with a great deal of circumstantial evidence pointing to the guilt of the appellant. Perhaps the strongest evidence presented was the witnesses' consistent and detailed testimony of the events leading up to and immediately following the brutal assault inflicted upon Ms. Perry. The first sign of injury to Ms. Perry came mere minutes after she left the bar with appellant. The next morning, the victim arrived at the home of her closest confidant in a terribly beaten state, barely able to walk. Appellant, himself, admitted that he had "gotten into it" with Ms. Perry and that he "was sorry." In addition, the testimony of the state's witnesses clearly showed that the injuries which were inflicted upon Ms. Perry were very substantial and serious in nature. The state's witnesses identified the photographs of Ms. Perry as adequately representing the seriousness of her injuries. Whatever inference can be drawn from all of this evidence is within the purview of the trial court. In reviewing this evidence, this court cannot find any indication that, faced with all the evidence properly presented before it, the trial court's verdict was against the manifest weight of the evidence. The evidence presented to the trial court was competent, credible and went to every essential element of the case. Accordingly, appellant's tenth assignment of error is overruled. - 30 - Judgment affirmed. - 31 - 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 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. LEO M. SPELLACY, P.J. PATRICIA BLACKMON, J. CONCUR JUDGE DONALD C. NUGENT 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, .