COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67693 CITY OF CLEVELAND : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION DWAYNE DILLINGHAM : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 11, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Cleveland Municipal Court : Case No. 94 CRB 17021 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: CAROLYN W. ALLEN Chief Prosecuting Attorney CORNELL P. CARPER, Assistant Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: LARRY W. ZUKERMAN Attorney at Law 160 Signature Square I 25201 Chagrin Boulevard Cleveland, Ohio 44122 DONALD C. NUGENT, J.: On July 5, 1994, defendant-appellant Dwayne Dillingham (hereinafter "the appellant") was charged in the Cleveland Municipal Court with one count of domestic violence in violation of R.C. 2919.25. After a bench trial on July 21, 1994, the appellant was found guilty of domestic violence. The appellant was sentenced by the court to one hundred eighty days in jail, with ninety days suspended, two years active probation, fined $500, with $250 suspended, and ordered to pay court costs. The cause is now before this court on appeal. The genesis of this charge was an incident that took place on July 5, 1994 in which the appellant allegedly caused physical harm to his former spouse (hereafter "the victim"). The record reveals that in May 1992, the appellant and the victim were divorced. Some two years later, in January or February 1994, the appellant and the victim reached an agreement by which the appellant, an unemployed carpenter, would restore a building owned by the victim. As part of their agreement, the appellant moved in with the victim and their two young children. According to the victim, on July 5, 1994, she was asleep in bed with the children when she was awakened by appellant, who was rubbing her and sucking on her arm. The victim believed that - 3 - appellant, who had been drinking, woke her to have sex with him. The victim told the appellant to leave her alone. She then got out of bed and went to sleep on the couch. The victim said that sometime later, she was again awakened by appellant, who was yelling at her. The victim said the appellant pulled her off the couch by her arm, punched her in the head and face, knocked her to the ground, and dragged her down the steps and out of the house, locking the door behind her. The victim's mother, who lived next door, heard the fighting and called the police. The police arrived at the scene, and appellant let them into the house. The appellant admitted that he and the victim had engaged in a physical dispute but said that it was the victim, not he, who was the aggressor. The appellant said he was awakened by the victim yelling that he was sucking on her arm. The appellant said he told the victim he was not sucking on her arm and that it must have been their five-year-old daughter. He said that the victim did not believe him and began hitting and kicking him. He told the victim to go to her mother's house, which she refused to do and instead continued to swing at him. The appellant claimed that he did not hit or kick the victim but attempted only to thwart her blows. I. In his first assignment of error, the appellant asserts that the trial court abused its discretion in denying his request for a - 4 - continuance, thus depriving him of his rights to due process and compulsory attendance of witnesses. The appellant contends that he was prejudiced because trial commenced only seven days after his arraignment: THE TRIAL COURT ERRED IN NOT GRANTING THE DEFENDANT'S MOTION FOR CONTINUANCE IN ORDER TO OBTAIN WITNESSES TO TESTIFY ON HIS BEHALF IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS AND COMPULSORY PROCESS OF LAW UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. The grant or denial of a request for a continuance is a matter entrusted to the sound discretion of the trial court. State v. Unger (1981), 67 Ohio St.2d 65. An appellate court must not reverse the denial of a continuance unless there has been an abuse of discretion. Id. "The term `abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable ***." State v. Adams (1980), 62 Ohio St.2d 151. Whether a trial court abuses its discretion by denying a request for a continuance depends on the circumstances in the case, "`*** particularly in the reasons presented to the trial judge at the time the request is denied.'" Ungar v. Sarafite (1964), 376 U.S. 575, 589; State v. Unger, supra, at 67. R.C. 2945.02 provides that a court "*** shall set all criminal cases for trial for a day not later than thirty days after the date of entry of the plea of the defendant." The appellant's trial - 5 - commenced seven days after his arraignment and was, therefore, within the parameters of R.C. 2945.02. As for the appellant's request for a continuance of the trial date, R.C. 2945.02 further provides that "[n]o continuance of the trial shall be granted except upon affirmative proof in open court, upon reasonable notice, that the ends of justice require a continuance." R.C. 2945.02 also provides that "[n]o continuance shall be granted for any other time than it is affirmatively proved the ends of justice require." The record reflects that before trial, counsel for appellant made an oral request for a continuance because the appellant wished to subpoena a witness to testify for him. In arguing for the continuance, however, the appellant did not tell the court the identity of the witness whose attendance he wished to compel, the matters to which the witness would offer testimony, what steps, if any, had been taken to secure the presence of the witness or how long of a continuance he needed to secure the presence of the witness. Consequently, in our view, the trial court did not abuse its discretion in denying the request for a continuance as appellant failed to show a particularized need for one before trial at the time the request was made. The appellant's first assignment of error is overruled. In his second assignment of error, appellant claims that he was denied his right to counsel when the trial court denied his request for a continuance to allow him to retain private counsel: - 6 - THE TRIAL COURT ERRED IN NOT GRANTING THE DEFENDANT'S MOTION FOR CONTINUANCE IN VIOLATION OF THE DEFENDANT'S RIGHT TO BE REPRESENTED BY ADEQUATE COUNSEL, OF HIS CHOICE, UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. Again, the appropriateness of the trial court's refusal to grant a continuance depends on the circumstances of the case, particularly the reasons presented to the trial judge at the time the request is made. Ungar v. Sarafite, supra, at 589; State v. Unger, supra. Considering the many factors surrounding the appellant's request for a continuance, we find no abuse of discretion by the trial court's refusal to delay commencement of the trial. Of particular note is the fact that when court-appointed counsel requested a continuance, he made no allegations that he would have a problem defending the appellant or would otherwise be ineffective in his representation of the appellant. Counsel merely indicated that appellant preferred to be represented by privately-retained counsel of his choice. Moreover, there is no indication in the record that appellant was concerned about the ability of the court- appointed counsel to defend him. Consequently, because there is no indication in the record that counsel was not acting in the appellant's best interests, or that the appellant expressed dissatisfaction with his counsel's representation at the time the request for a continuance was made, we can but conclude that the trial court did not abuse its discretion in denying the appellant's - 7 - request for a continuance. See State v. Price (1973), 34 Ohio St.2d 43. The appellant's second assignment of error is overruled. In his third assignment of error, the appellant contends he was denied his due process rights to a fair trial when the trial court allowed the prosecution to introduce evidence of other acts of misconduct committed by appellant after the date of the charged offense: THE TRIAL COURT ERRED IN OVERRULING DEFENSE COUNSEL'S OBJECTION TO THE ADMISSION OF TESTIMONY WHICH ATTEMPTED TO ESTABLISH OTHER BAD ACTS BY THE DEFENDANT, FOLLOWING THE INCIDENT IN QUESTION. The testimony complained of by appellant is as follows: Q: Ma'am, since this incident, has there been any other problems? [Defense counsel]: Objection. [The court]: Overruled. A: Yes, there has. The day after, on the 6th, we weren't staying at our house because I was afraid. We were driving - - staying at my girlfriend's house and he followed us to my girlfriend's and we were afraid to park. He got out of the car and harassing, verbally abusing, and calling me names and what not. We rolled the window up and took off from that point. The very next day after that, I was at work and he came up to me and personally told me that after work that he was going to kill me. And again on the day after he was arrested and he was released, I supposed it to have been at 8:00 o'clock, he called me and said, "How do you like being locked out of the house?" There was super glue in my locks. - 8 - Since appellant raised a timely objection to the disputed evidence, we review the trial court's ruling under an abuse of discretion standard. State v. Dehner (1991), 74 Ohio App.3d 431. Accordingly, this court shall not order reversal unless the record affirmatively shows that the trial court acted unreasonably, unconscionably or arbitrarily. See Blakemore v. Blakemore (1983), 5 Ohio St.3d 217 (defining "abuse of discretion"). Evid.R. 404(B) provides that: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The staff notes to Evid.R. 404(B) emphasize that this list of justifiable purposes for evidentiary other acts is not exclusive or exhaustive. Therefore, a party may sometimes introduce other acts evidence although the purpose for its admission is not enumerated in Evid.R. 404(B). State v. Wilson (1982), 8 Ohio App.3d 216, 219. While most cases addressing other acts evidence, admitted pursuant to Evid.R. 404(B), involve prior crimes or acts of misconduct, it is clear that evidence of subsequent crimes or acts of misconduct is admissible if it is relevant to an issue at trial and its probative value is not outweighed by its prejudicial effect. See State v. Thompson (1981), 66 Ohio St.3d 496. - 9 - Applying the above well-established principles to the case sub judice, we hold that the trial court did not abuse its discretion in admitting the evidence of the incidents occurring on July 6, 7 and 8, 1994 as this evidence was relevant to show that appellant was the aggressor on July 5, 1994, an issue hotly contested at trial. We are further of the opinion that this evidence was more probative than prejudicial. See Evid.R. 403; State v. Harcourt (1988), 46 Ohio App.3d 52 (In balancing the probative value against the danger of unfair prejudice, the trial court is vested with broad discretion, and an appellate court should not interfere absent a clear abuse of discretion.). Based on the foregoing, the appellant's third assignment of error is overruled. The appellant also challenges his conviction for domestic violence as against the manifest weight of the evidence. In State v. Martin (1983) 20 Ohio App.3d 172, the court aptly set forth the test to be used by an appellate court when reviewing a claim that a conviction is against the manifest weight of the evidence. The Martin court stated as follows: *** [t]he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the 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. *** See, Tibbs v. Florida (1982), ** U.S. 31, 38-42. - 10 - The appellant argues that there was no evidence to support the conclusion that the victim suffered "serious physical harm." In making this argument, however, the appellant ignores the fact that he was charged with violations of R.C. 2919.25(A), (B) and (C). And, while R.C. 2919.25(B) does require proof of "serious physical harm," R.C. 2929.25(A) and (C) only require proof of "physical harm"; that is, proof of "*** any injury, illness, or other physiological impairment, regardless of its gravity or duration." R.C.2901.01(E). In this case, the evidence supports a finding that the victim suffered physical harm. The victim testified that she suffered a bleeding and swollen lip, rug burns on both her shoulders, scraped knees and elbows, and a bruised head. We further find no merit in the appellant's argument that the victim's testimony, alone, is insufficient to sustain the conviction. The fact that no other witnesses were called by the prosecution to corroborate the victim's testimony regarding her physical injuries is immaterial. See State v. Jenks (1991), 61 Ohio St.3d 259. Hence, it is the opinion of this reviewing court that the record amply supports the factfinder's conclusion that the appellant caused physical harm to the victim. Accordingly, the appellant's fourth assignment of error is overruled. Judgment affirmed. - 11 - 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 Cleveland Municipal 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. LEO M. SPELLACY, P.J. ANN DYKE, 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, .