COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67453 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION DONOVAN TRIGGS : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 11, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-303,770 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor ANTHONY J. BONDRA, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JAMES A. DRAPER Cuyahoga County Public Defender DONALD GREEN, Assistant The Marion Building, #307 1276 West Third Street Cleveland, Ohio 44113-1569 DONALD C. NUGENT, J.: This is an appeal from a judgment of conviction from the Cuyahoga County Court of Common Pleas rendered upon a bench verdict finding defendant-appellant, Donovan Triggs, guilty of the aggravated robbery (a violation of R.C. 2911.01) and felonious assault (a violation of R.C. 2903.11) of John Harris and kidnapping (a violation of R.C. 2905.01) of Shirley Russell. On appeal, appellant challenges the sufficiency of the evidence supporting his conviction. The relevant facts, as adduced below, are taken from appellant's bench trial: On July 31, 1993, at approximately 8:30 p.m., John Harris, a self-employed businessman in trucking and contracting, was working at his construction shop located at 10635 St. Clair Avenue, Cleveland, Ohio when a car carrying two men and a woman with a baby pulled into the parking lot of Mr. Harris's business. Mr. Harris was underneath a truck installing an engine, in the presence of his fiance Shirley Russell and step-son Dessan Basie, when appellant and another man entered the building and asked, "Where is John?" Mr. Harris testified that Dessan told the men, "He's underneath the truck." Mr. Harris then felt someone kick his foot - 3 - and ask, "You got any money, old man?" Mr. Harris looked out from underneath the truck and responded, "No, I don't have any money." Mr. Harris next testified that appellant bent down and asked him, "Old man, you know what this is?" According to Mr. Harris and Ms. Russell, appellant pointed a handgun at Mr. Harris from approximately three feet away. When Ms. Russell heard appellant respond that "it was a gun," she attempted to leave the garage through a nearby door to call the police; however, Ms. Russell testified that appellant held the gun in her face and told her not to move. Mr. Harris, having heard appellant threaten his fiance, slid out from underneath the truck but was met by appellant's accomplice. According to both Mr. Harris and Ms. Russell, appellant motioned the gun back and forth from Mr. Harris to Ms. Russell. Mr. Harris then responded that he had $5 in his front pocket. Appellant's accomplice pulled out the money as he rifled through Mr. Harris's pockets. Mr. Harris testified that appellant's accomplice then hit him across the face with an object. Mr. Harris stated that although he had a wrench in his hand, he just stood there as blood poured out of his nose and eyes. Mr. Harris explained that he did not attempt to defend himself because appellant kept the gun pointed at Ms. Russell and him. Mr. Harris added that following the attack, he could hardly see but heard someone yell, "Come on, come on," as - 4 - appellant followed his accomplice back into the car, which sped away. Ms. Russell confirmed much of Mr. Harris's testimony. Ms. Russell stated that appellant held Mr. Harris and her at gunpoint while appellant's accomplice hit Mr. Harris with an object. Ms. Russell added that Mr. Harris was hit more than once and did not attempt to defend himself. Ms. Russell confirmed that Mr. Harris "was all bloody" and stated that "there was blood everywhere. All over his face and his mouth and everything." Ms. Russell also testified that during the assault, Dessan Basie managed to run off. Dessan later returned when the police arrived. After appellant and his accomplice sped away, Ms. Russell called the Cleveland police and an ambulance. Ms. Russell also obtained the license plate number of the car in which appellant and his accomplice sped away. Cleveland Police Officer George Peters and his partner responded to a robbery in progress and arrived within ten minutes of receiving the call. Officer Peters obtained the license plate number and also questioned Mr. Harris and Ms. Russell. Approximately one-half hour after the robbery, Mr. Harris was able to recall that appellant and his accomplice had worked for him in the past on a trial basis. Mr. Harris could only recall the first name of appellant's accomplice as being "Tim." Mr. Harris stated that appellant was lazy and did not do any work, so he gave - 5 - appellant and "Tim" $40 each for the day and sent them home. Mr. Harris relayed this information to Officer Peters and also gave a written statement, as did Ms. Russell. Officer Peters confirmed that Mr. Harris had cuts on his face and was bleeding. Officer Peters originally believed Mr. Harris had a broken nose and recommended that he seek immediate medical attention. Officer Peters added that later that evening, he and his partner went to the address listed for the person owning the vehicle in which appellant fled and also toured the area but were unable to locate any suspects. After the police left, Ms. Russell and Mr. Harris went to the MetroGeneral Hospital emergency room to seek medical attention for Mr. Harris. Ms. Russell testified that they waited in the emergency room for some time and although Mr. Harris was in a great deal of pain, there were too many emergencies, and they finally left without receiving immediate medical care. Mr. Harris testified that following the robbery and assault, he suffered from severe headaches. Mr. Harris's headaches made it difficult for Mr. Harris to travel to the Sixth District Police Station in order to conduct a photographic line-up to identify suspects. Eventually, however, Det. John McDonald showed both Mr. Harris and Ms. Russell, separately, five photographs, from which each witness immediately identified the photograph of appellant's as being the person who held the gun during the robbery and assault. - 6 - Mr. Harris also testified to the extent of his injuries. Sometime in early October, Mr. Harris lost feeling in his left arm and leg, and he could no longer stand. Mr. Harris was subsequently hospitalized at Mt. Sinai Medical Center and, after having told the doctors of the robbery and assault, a CT scan diagnosed Mr. Harris as suffering from a large chronic subdural hematoma on the right side of the brain, with evidence of a more recent hemorrhage within it. Mr. Harris was required to undergo emergency surgery on October 25, 1993 to alleviate the subdural hematoma. Mr. Harris was hospitalized in intensive care for approximately one week and, at the time of trial on May 10, 1994, had just started working again. Mr. Harris's medical records were admitted at trial, the authenticity of which was stipulated by defense counsel. On October 26, 1993, Det. McDonald and his partner went to the home of appellant's father to inquire of appellant's whereabouts. The detectives were invited into the Triggs home and were taken into the basement by appellant's father. Det. McDonald testified that appellant was downstairs eating breakfast when Det. McDonald informed him that an arrest warrant had been issued for him for the aggravated robbery of July 31st. According to Det. McDonald, appellant became belligerent, said he was not going to go with the officers and stated that he did not rob anyone. Appellant then jumped into the corner and told the officers, "Come on, m***** f*****s, if you want me -- you're going to have to take me." - 7 - Appellant's father attempted to persuade appellant to go with the officers; however, appellant pushed his father out of the way and swung at the officers. Det. McDonald testified that during the ensuing struggle, his gun came loose, requiring his partner to subdue appellant by striking him with a flashlight. Appellant was subsequently taken to the hospital with a concussion. While at the hospital, appellant was read his constitutional rights, to which he responded he understood. Appellant then told Det. McDonald that on the night in question, he was out with a friend drinking and driving around when they observed John Harris working on his truck. Appellant told Det. McDonald that he and his friend had worked for Mr. Harris and were owed money for their work. They stopped the car, got out and asked Mr. Harris for some money. When Mr. Harris responded that he had none, appellant stated that they "kicked his ass." According to Det. McDonald, appellant joked and laughed about the incident. Following presentation of the state's case, appellant moved for judgment of acquittal, which was denied by the trial court. Appellant then called as his first witness his father, Donovan Triggs, Sr. Mr. Triggs testified that sometime in 1989, appellant worked in the 106th/St. Clair area. Mr. Triggs testified that appellant worked for a contracting company for a little over a week. Mr. Triggs used to drop appellant off to work in that area and, on one occasion, saw appellant driving a truck. - 8 - Appellant testified next on his own behalf. Appellant stated that in 1989, he worked at Hough Bakery and dated Mr. Harris's daughter. After being laid off at Hough Bakery, Mr. Harris's daughter got appellant a job working for Mr. Harris. Appellant claimed that he worked for Mr. Harris eight and one-half hours per day for approximately three weeks. Appellant also claimed that his friend, Willie Lewis, worked for Mr. Harris as well. Appellant stated that Mr. Harris hired Mr. Lewis and him at $15 per hour but that Mr. Harris never paid either of them any wages. Appellant claimed Mr. Harris owed him $750 but refused to pay on the four to five occasions on which appellant sought payment. On the night in question, appellant testified that he and Mr. Lewis were at the home of one Kathy Cunningham when they decided to go to the Flats. On the way to the Flats, appellant observed Mr. Harris working on his truck. Notwithstanding that appellant had already observed Mr. Harris, appellant next testified that he and Mr. Lewis walked into Mr. Harris's garage and asked, "Where's John?," to which someone replied, "Under the truck." Appellant approached Mr. Harris and asked him, "How are you doing. What's up with the money you owe me, you going to pay us or give us excuses." According to appellant, Mr. Harris got up with "something in his hand" and told appellant and Mr. Lewis to get off his property. Mr. Harris then did "something" with his hand, and Mr. Lewis struck Mr. Harris in the face. - 9 - Appellant denied having a gun and further denied having prevented Ms. Russell from leaving. Appellant insisted that a fight broke out between Mr. Harris and Mr. Lewis. Appellant further insisted that he did not see any blood on Mr. Harris. Appellant added that he first thought Mr. Harris had a knife, but it later turned out to be a wrench. Appellant and Mr. Lewis left the scene after Ms. Cunningham called to them and told them not to worry about the money -- "Just take him to court." Appellant also testified to the events leading to his arrest in October. Appellant claimed he was not told what he was being arrested for and that he took "offense" to the allegations. Appellant also claimed that as he stood up, the detectives lunged at him, knocking his father, who had attempted to step in, to the ground. Appellant testified that the detectives threw him to the ground, handcuffed him, then hit him three times on the head with a flashlight, cracking his skull. Appellant acknowledged that he made a statement to the police at the hospital but insisted he was never read his constitutional rights. Appellant claimed that he told Det. McDonald that he and a friend questioned Mr. Harris about "our money" and that his friend and Mr. Harris got into a fight. Appellant also insisted that he told Det. McDonald that his friend "kicked his ass." Kathrine Cunningham was the final witness to testify. Ms. Cunningham's testimony patterned much of appellant's testimony concerning the events of July 31, 1993. Ms. Cunningham testified - 10 - that appellant and Mr. Lewis stopped at Mr. Harris's construction shop because Mr. Harris owed them money. Ms. Cunningham stated that appellant and Mr. Lewis were speaking to Mr. Harris, who had "something in his hand," when suddenly Mr. Harris's hand went up. Mr. Lewis then struck Mr. Harris. Ms. Cunningham, however, also testified that both appellant and Mr. Lewis hit Mr. Harris. After appellant and Mr. Lewis returned to the car, they left for the Flats. Upon returning home, Ms. Cunningham learned that the police had been looking for her. She called the police department but was told there was no record of the matter, so she let the matter drop. Based on the foregoing, the trial court found appellant guilty of aggravated robbery (R.C. 2911.01), felonious assault (R.C. 2903.11) and kidnapping (R.C. 2905.01). The trial court, however, found that appellant did not have a firearm on or about his person or under his control as alleged in the firearm specifications to each count in the indictment. Consequently, the trial court sentenced appellant on count one (aggravated robbery) to a term of incarceration of six to twenty-five years and on counts two and three (felonious assault and kidnapping) to a term of incarceration of six to fifteen years, with count two to run consecutive to count one and count three to run concurrent to count two. Appellant timely appeals, raising the following sole assignment of error for our review: DONOVAN TRIGGS'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE UNITED STATES AND OHIO - 11 - CONSTITUTIONS, WAS DENIED WHEN HE WAS CONVICTED OF AND SENTENCED FOR THE CRIMES OF AGGRAVATED ROBBERY, FELONIOUS ASSAULT AND KIDNAPPING ON EVIDENCE WHICH WAS INSUFFICIENT AS A MATTER OF LAW. Federal and state constitutional due process guarantees provide all criminal defendants protection against conviction upon insufficient evidence. Thus, a criminal defendant is protected against conviction "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime for which he is charged." Jackson v. Virginia (1979), 443 U.S. 307, 320, quoting In re Winship (1970), 397 U.S. 358, 364. The standard of review of the sufficiency of the evidence to support a criminal conviction is a familiar one stated by the United States Supreme Court in Jackson, supra, and reiterated by the in State v. Martin (1983), 20 Ohio App.3d 172, 175 as follows: As to the claim of insufficient evidence, the test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. Jackson v. Virginia (1979), 443 U.S. 307, 319. (Citations omitted.) See, also, State v. Waddy (1992), 63 Ohio St.3d 424, 430; State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus; and State v. Tyler (1990), 50 Ohio St.3d 24, 32. - 12 - Appellant first argues there is insufficient evidence to support his conviction for aggravated robbery. R.C. 2911.01 provides, in pertinent part: (A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall do either of the following: (1) Have a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code, on or about his person or under his control; (2) Inflict, or attempt to inflict serious physical harm on another. Appellant points out that the trial court, as factfinder, specifically found that appellant was not guilty of the firearm specification contained in each count of the indictment. As a result, appellant argues that appellant's conviction can be upheld only if there exists sufficient evidence to prove that appellant caused or attempted to cause "serious physical harm" to Mr. Harris. We disagree and point out that both Mr. Harris and Ms. Russell testified that appellant's accomplice hit Mr. Harris with an object which ultimately caused appellant to bleed profusely and caused Mr. Harris a great deal of pain. Pursuant to R.C. 2911.01 and 2923.11, a deadly weapon may include blunt objects. See, State v. Martin (Dec. 9, 1983), Cuyahoga App. No. 64421, unreported (use of handgun to pistol whip victim); State v. Rogers (Mar. 4, 1993), Cuyahoga App. No. 62014, unreported (brass knuckles); State v. Hicks (1984), 14 Ohio App. 25 (inoperable handguns); State v. Hensley (June 27, - 13 - 1991), Crawford App. No. 3-90-16, unreported (blunt end of hatchet); State v. Pope (Oct. 4, 1990), Logan App. No. 8-89-19, unreported (handle of toilet plunger); and State v. Shannon (Sep. 2, 1987), Lorain App. No. 4216, unreported (stick or pipe). Chief among appellant's complaints is that there is insufficient evidence that the subdural hematoma suffered by Mr. Harris was caused by appellant's conduct or by the conduct of appellant's accomplice. Appellant points out that there was no medical expert testimony as to whether Mr. Harris's subdural hematoma was caused by appellant's accomplice striking Mr. Harris in the face. R.C. 2901.01(E) states: (E) "Serious physical harm to persons" means any of the following: (1) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment; (2) Any physical harm which carries a substantial risk of death; (3) Any physical harm which involves some permanent incapacity, whether partial or total, or which involves some temporary, substantial incapacity; (4) Any physical harm which involves some permanent disfigurement, or which involves some temporary, serious disfigurement; (5) Any physical harm which involves acute pain of such duration as to result in substantial suffering, or which involves any degree of prolonged or intractable pain. - 14 - There can be no doubt that a subdural hematoma which causes severe headaches and requires emergency surgery and a prolonged hospital stay in the intensive care ward constitutes "serious physical injury" within the meaning of R.C. 2901.05(E)(2), (3), (4) and (5). However, we believe, in construing the evidence in a light most favorable to the prosecution, appellant's injuries constitute "serious physical harm" without necessarily finding that Mr. Harris's subdural hematoma was caused by being struck in the face by appellant's accomplice. Mr. Harris and Ms. Russell testified that appellant's accomplice struck Mr. Harris in the face with "something" while appellant held both witnesses at bay with a handgun. Each witness testified that appellant bled profusely from his nose and eyes. Mr. Harris testified that during the assault, he could hardly see as his face was covered in blood. Officer Peters confirmed that Mr. Harris bled profusely. Moreover, Mr. Harris sought immediate medical attention at MetroGeneral Hospital. While at the emergency room, Mr. Harris was in great pain. Finally, Mr. Harris's injuries caused him severe headaches following the attack so that he was not immediately able to meet with Det. McDonald to attempt to identify his assailants. Thus, sufficient evidence exists to prove beyond a reasonable doubt that the physical harm inflicted on Mr. Harris involved acute pain of such duration as to result in substantial suffering and/or that such physical harm involved a degree of prolonged or intractable pain. R.C. 2901.01(E(5). - 15 - More importantly, we believe sufficient evidence exists to prove beyond a reasonable doubt that Mr. Harris suffered the subdural hematoma as a result of appellant's accomplice striking him in the face with some object. Again, we point to testimony in the record which demonstrates that Mr. Harris bled profusely following the attack; that he sought immediate medical attention and was in great pain; that he suffered severe headaches following the attack; and that in early October, he began suffering various symptoms such as numbness in his arms and legs, which led to his hospitalization. Moreover, the medical records admitted at trial, and stipulated as being authentic, provide numerous references to the attack occurring on July 31, 1993 as being the cause of the 1 subdural hematoma. Therefore, appellant's claim that serious physical harm must be established through expert medical testimony 1 For instance, the discharge summary dated October 29, 1993 states that Mr. Harris complained of "being assaulted approximately two months prior to admission." A progress record dated October 24, 1993 indicates that Mr. Harris "had been robbed and hit w/ brass knuckles in [right] forehead [approximately] two months ago." Another progress note stated that Mr. Harris "reports that he was robbed and assaulted [approximately] two months ago." Still, a progress report dated October 25, 1993 relates that Mr. Harris was "assaulted 4 weeks ago -- hit about head." An operative report indicates that Mr. Harris "had a head injury about one month prior to admission ***." Appellant's argument that the medical records establish additional incidents of trauma occurring anywhere from one to two months prior to admission, which may be responsible for Mr. Harris's subdural hematoma, is without merit in light of Mr. Harris's testimony that he did not suffer any further assaults nor received further injury following the robbery and assault of July 31, 1993. - 16 - is without merit. State v. Purvis (Oct. 25, 1989), Medina App. No. 1784, unreported. As with every other element of a crime charged, the test for determining whether a conviction is supported with sufficient evidence is set forth in Jackson v. Virginia, supra. We also conclude that sufficient evidence exists as to the remaining elements supporting appellant's conviction for aggravated robbery. The evidence demonstrates that appellant and his accomplice, whether it be "Tim" or Willie Lewis, entered Mr. Harris's business establishment, demanded money from Mr. Harris, then took $5 as appellant held a handgun and his accomplice struck Mr. Harris in the face with an object. With or without a handgun, appellant's statement to Det. McDonald confirms that appellant and his accomplice acted in concert in taking the $5 from Mr. Harris and "kicked his ass." Appellant's conviction for aggravated robbery, in violation of R.C. 2911.01, is therefore supported with sufficient evidence. For the same reasons, we conclude that appellant's conviction for felonious assault is supported with sufficient evidence. R.C. 2903.11 provides: (A) No person shall knowingly: (1) Cause serious physical harm to another; (2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code. (B) Whoever violates this section is guilty of felonious assault, an aggravated felony of the - 17 - second degree. If the victim of the offense is a peace officer, as defined in section 2935.01 of the Revised Code, felonious assault is an aggravated felony of the first degree. Applying the same evidence and analysis to the same definition of "serious physical harm," this court concludes that sufficient evidence exists to support appellant's conviction for felonious assault. Again, with or without a gun, the evidence before this court, viewed in a light most favorable to the prosecution, reveals that appellant and his accomplice acted in concert in committing the felonious assault on Mr. Harris. Finally, appellant challenges his conviction for kidnapping Shirley Russell. R.C. 2905.01 provides, in pertinent part: (A) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where he is found or restrain him of his liberty, for any of the following purposes: * * * (2) To facilitate the commission of any felony or flight thereafter; (3) To terrorize, or to inflict serious physical harm on the victim or another; *** In reviewing the evidence in a light most favorable to the prosecution, this court concludes that sufficient evidence exists to support appellant's conviction for kidnapping in violation of R.C. 2905.01(A)(2). The record before this court reveals that appellant prevented Ms. Russell, at gunpoint, from leaving the scene of the aggravated robbery and calling the police. With or - 18 - without the gun, the record before this court reveals that appellant, by force or threat of force, restrained Ms. Russell of her liberty in order to facilitate the commission of the aggravated robbery and felonious assault of Mr. Harris. Based on the foregoing, appellant's sole assignment of error is overruled. Judgment affirmed. - 19 - 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. JOHN T. PATTON, C.J. DIANE KARPINSKI, 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, .