COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67534 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION DWAYNE BOGAN, SR. : : Defendant-appellant : PER CURIAM : DATE OF ANNOUNCEMENT : OF DECISION : APRIL 13, 1995 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 276068 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones Gregory T. Stralka Cuyahoga County Prosecutor 400 The Standard Building By: Diane Smilanick 1370 Ontario Street Assistant Prosecuting Cleveland, Ohio 44113 Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Local R. 25 of this court, the records from the Cuyahoga County Court of Common Pleas and briefs of counsel. Appellant, Dwayne Bogan, was sentenced on July 19, 1993 to a two-year probation following a conviction for carrying a concealed weapon. On March 22, 1994, appellant appeared before the court for a probation violation hearing, charged with beating his wife. Before the court was a report from the East Cleveland Police Department indicating that appellant's wife had "lacerations of the face in which sutures were required." The report on the lacerations came from University Hospital. Appellant testified that he had an argument with his wife. She sustained injuries to her face as she bent down to pick up some change on the floor. She hit her head on the end table. Appellant testified that the police knocked at his door and his wife told them they argued. Appellant informed the court that he did not deliberately try to violate the rules and regulations of his probation. Appellant's counsel informed the court that appellant always reported on time to his probation officer. The trial court found appellant to have violated his probation and reduced his original sentence to one year to be served at the Lorain Correctional Institute. Appellant appeals, assigning as errors that the trial court denied him a statutory right to a probation violation hearing and -3- also that the court's finding was against the manifest weight of the evidence. Appellant argues that he was not given any notice of the hearing. He also argues that he was not given the opportunity to cross-examine witnesses against him as the only evidence before the court was the police report. The record is silent as to how appellant got to be at a probation revocation hearing without a notice, however, that notwithstanding, the record shows that neither appellant nor his counsel objected to the lack of notice or improper evidence and lack of witnesses. Appellant instead admitted arguing with his wife knowing fully well that he was before the court for violence against his wife. He testified that he did not deliberately violate the conditions of his probation indicating an admission to violation albeit "not deliberately". The law is settled that outside plain error, an appellate court will not address errors assigned for the first time on appeal where the defendant did not object at trial below and allow the trial court the opportunity to first address the error. Such a failure to object at the court below constitutes a waiver. State ex rel Martin v. Cleveland (1993), 67 Ohio St.3d 155, 157; State v. Cook (1992), 65 Ohio St.3d 516, 520; State v. Murphy (1992), 65 Ohio St.3d 554, 582; State v. Williams (1977), 51 Ohio St.2d 112; State v. Humphries (1977), 51 Ohio St.2d 95; see, also, State v. Long (1978), 53 Ohio St.2d 91; State v. Underwood (1983), 3 Ohio St.3d 12. Accordingly, we decline to address appellant's first assignment. -4- Appellant argues in his second assignment that the trial court's decision is against the manifest weight of the evidence. The trial court heard appellant's testimony concerning what happened to his wife. The court chose not to believe him but instead believed that appellant beat his wife and caused the injuries to her face. Since the weight of the evidence and the credibility of witnesses are primarily determined by the trier of fact, State v. DeHass (1967), 10 Ohio St.2d 230; State v. Eley (1978), 56 Ohio St.2d 169 syllabus; State v. Mattison (1985), 23 Ohio App.3d 10, 14, we have found no reason to reverse the trial court's judgment. Judgment affirmed. -5- 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. SARA J. HARPER, PRESIDING JUDGE ANN DYKE, JUDGE JAMES M. PORTER, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement 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. .