COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68135 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : HAROLD M. SMITH : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 20, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-309701. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Michael B. Telep, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Arthur A. Elkins, Esq. Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, OH 44113 Harold M. Smith, pro se Serial No. 294-823 Madison Correctional Institution P.O. Box 740 London, OH 43140 -3- DAVID T. MATIA, P.J.: Harold Smith, defendant-appellant, appeals his conviction on one count of assault, three counts of felonious assault and one count of kidnapping. Each count contained a violence specification. Appellant raises four assignments of error. This court, finding no error, affirms appellant's conviction. I. STATEMENT OF FACTS On May 17, 1994, Harold Smith, defendant-appellant, was indicted on three counts of felonious assault against Wanda Addison, Gladys McClendon and Kaye Holley and one count of kidnapping against Wanda Addison. Each count contained a violence specification. On September 26, after waiving his right to a speedy trial, a bench trial ensued. The state presented eight witnesses. Ms. Addison testified that in January of 1993, defendant- appellant moved into the downstairs apartment of their two-family home on Macon Avenue, Cleveland, Ohio. On September 28, 1993 at approximately 1:15 p.m., Ms. Addison came home early from work in order to pick up her children from school at 2:00 p.m. and take them to a dentist appointment. When she arrived home, Ms. Addison found defendant-appellant upset over the misplacement of several mechanic's receipts. Eventually, she found the receipts under defendant-appellant's bedroom dresser. As Ms. Addison was leaving, defendant-appellant began accusing her of allowing a strange man into his home to use or answer the phone. The argument escalated and defendant-appellant began beating her in the face and chest. While Ms. Addison attempted to -4- flee, defendant-appellant continued to chase and beat her. Ms. Addison testified that during the fight, she fell to the floor and lost consciousness. After regaining consciousness, defendant-appellant refused to allow Ms. Addison to leave and told her to call her children's school and inform them she would not be able to pick the children up as planned. After approximately two hours, Ms. Addison convinced defendant-appellant if he did not allow her to leave, the school officials would become concerned and call the police. As Ms. Addison was dialing 4-1-1 to obtain the school's phone number, defendant-appellant believed she was dialing 9-1-1. Defendant- appellant grabbed the phone and accused her of trying to call the police. Ms. Addison testified that defendant-appellant would not allow her to leave and that she had to knee defendant-appellant in the groin to get out of the apartment. After reaching her children's school, Ms. Addison informed the school officials of what had just happened and the police were called. The officers made a report of the incident and took Ms. Addison to the emergency room at Lutheran Medical Center for treatment. Although Ms. Addison was told a detective would contact her to make a report, this did not happen. Ms. Addison testified of another incident on February 2, 1994 between her and defendant-appellant. This incident also included her mother, Ms. Gladys McClendon, and her friend, Ms. Karl Holley. At approximately 10:00 a.m., Ms. Addison and her mother picked up Ms. Holley to go to the doctor's office and run errands. While -5- driving Ms. Holley home, Ms. Addison saw defendant-appellant in his car and honked her horn. Defendant-appellant followed Ms. Addison and eventually brought her to a complete stop by cutting her off. Defendant-appellant began admonishing Ms. Addison for not stopping when he signalled her to stop. Upon seeing who was in the car, defendant-appellant kicked out the passenger side window, shattering the glass and struck Ms. McClendon in the chest with his foot. Defendant- appellant then pulled Ms. Holley out of the back seat and punched her twice in the face. Defendant-appellant then got into his car and left. Neighbors helped Ms. Holley into her home. Ms. McClendon called the police and was then taken home by her daughter. Ms. Addison eventually took her mother to the hospital as she was complaining of chest pains. Among other witnesses, the state provided Officer Reidthaller who testified that he responded to Ms. Holley's call and witnessed the extent of her injuries. However, Ms. Holley was too afraid of defendant-appellant to make a written police report. The state also provided the testimony of Officer Dunn who was dispatched to Lutheran Medical Center and took a statement from Ms. McClendon accusing defendant-appellant of assaulting her. Additionally, Detective Patton testified that after discovering nobody had been assigned to Ms. Addison's September 28, 1993 report, he took control of her case and took written statements implicating defendant-appellant. -6- At the conclusion of the bench trial, the judge found defendant- appellant guilty of the lesser included offense of assault as amended in count one of the indictment (against Ms. McClendon) and guilty of felonious assault and kidnapping as charged in the remaining counts. Defendant-appellant was sentenced for a term of time already served on count one, consecutive terms of eight to fifteen years on counts two and three and a term of eight to twenty five years on count four to be served consecutive to counts two and three. Defendant-appellant timely files this appeal. II. FIRST ASSIGNMENT OF ERROR Harold M. Smith, defendant-appellant, states as his first assignment of error: I. APPELLANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I, OF THE OHIO CONSTITUTION. A. ISSUE RAISED: WHETHER DEFENDANT-APPELLANT RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL. Defendant-appellant argues he did not receive effective assistance of counsel. Specifically, defendant-appellant argues the felonious assault and kidnapping charges against Ms. Addison are allied offenses of similar import and should have been merged for purposes of sentencing. As such, it was prejudicial of his attorney not to object to the consecutive sentencing of said charges. Defendant-appellant's first assignment of error is not well taken. -7- B. STANDARD OF REVIEW: EFFECTIVE ASSISTANCE OF COUNSEL. The Sixth Amendment to the United States Constitution provides that the accused shall enjoy the right to "have the Assistance of Counsel" in all criminal prosecutions. See, also, Section 10, Article I, Ohio Constitution. The Supreme Court of the United States has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial in that it assures the fairness, and thus, the legitimacy of the adversary process. Powell v. Alabama (1932), 287, U.S. 45; Gideon v. Wainwright (1963), 372, U.S. 335. The constitutional right to counsel is the right to effective assistance of counsel. McMann v. Richardson (1970), 397 U.S. 759. In State v. Bradley (1989), 42 Ohio St.3d 136, the Ohio Supreme Court extensively discussed the charge of ineffective assistance of counsel. At syllabus two and three the court held: 2. Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S. 668, followed.) 3. To show that defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. -8- Finally, in reviewing a claim of ineffective assistance of counsel, it must be presumed that a properly licensed attorney executes his legal duty in an ethical and competent manner. State v. Smith (1985), 17 Ohio St.3d 98. C. DEFENDANT-APPELLANT WAS NOT DENIED EFFECTIVE ASSISTANCE OF COUNSEL. R.C. 2941.25, which deals with issues of multiple counts and allied offenses of similar import, states: (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them. Allied offenses of similar import occur when the offenses and their elements correspond to such a degree that the commission of one offense results in the commission of the other; the state relies on the same conduct to support both offenses; and the commission of both offenses is motivated by the same animus or purpose. State v. Souchey (June 9, 1994), Cuyahoga App. No. 62797, unreported (citations omitted). In State v. Logan (1979), 60 Ohio St.3d 126, the Ohio Supreme Court set forth guidelines in order to determine whether -9- kidnapping and another charged offense constitute allied offenses of similar import. The Supreme Court stated: (a) Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions; (b) Where the asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime, there exists a separate animus as to each offense sufficient to support separate convictions. Id. at syllabus. In the case sub judice, defendant-appellant assaulted Ms. Addison in his apartment on September 28, 1993. After the assault, defendant-appellant would not allow the victim to leave for approximately two hours. It was only after the victim kneed defendant-appellant in the groin that she was able to leave the apartment. Thus the uncontroverted evidence establishes the restraint upon the victim was of a prolonged nature and was not incidental to the prior assault upon the victim. Therefore, since the two offenses are not allied offenses of similar import, defense counsel's failure to object to the consecutive sentencing did not prejudice defendant-appellant and/or constitute ineffective assistance of counsel. -10- Defendant-appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Harold M. Smith, defendant-appellant, states as his second assignment of error: II. THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN APPELLANT'S CONVICTION OF FELONIOUS ASSAULT IN VIOLATION OF R.C. 2903.01(A)(1) OR KIDNAPPING IN VIOLATION OF R.C. 2905.01(A)(3) IN COUNTS THREE AND FOUR OF THE INDICTMENT. A. ISSUE RAISED: WHETHER DEFENDANT-APPELLANT'S CONVICTION FOR FELONIOUS ASSAULT AND KIDNAPPING WAS SUPPORTED BY THE EVIDENCE. Defendant-appellant argues his conviction for felonious assault and kidnapping against Ms. Wanda Addison was not supported by the evidence. Specifically, defendant-appellant argues not only is the testimony of Mr. Robinson concerning the lacerations of the victim's face inconsistent with the hospital records, but also that the injuries described do not constitute serious physical injury as defined in R.C. 2901.01(E). Moreover, defendant-appellant argues the state failed to prove beyond a reasonable doubt that he possessed a separate animus to kidnap Ms. Addison as defined by R.C. 2905.01. Defendant-appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW: SUFFICIENCY OF EVIDENCE. -11- In State v. Jenks (1991), 61 Ohio St.3d 259, 273, the Ohio Supreme Court set forth the test an appellate court should apply when reviewing the sufficiency of the evidence to support a conviction: [T]he relevant inquiry on appeal is whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. In other words, an appellate court's function when reviewing the sufficiency of the evidence is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Eley [(1978), 56 Ohio St.2d 169]. See also, Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. C. APPELLANT'S CONVICTION IS SUPPORTED BY SUFFICIENT EVIDENCE. In the present case, defendant-appellant was convicted of feloniously assaulting and kidnapping Ms. Addison. For purposes of this opinion, felonious assault is defined as knowingly causing serious physical harm to another. R.C. 2903.11(A)(1). Serious physical harm is defined in pertinent part by R.C. 2901.01(E): (3) Any physical harm which involves some permanent incapacity, whether partial or total, or which involves some temporary, substantial incapacity. * * * (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. -12- Again, there was uncontroverted testimony that defendant- appellant punched the victim repeatedly in the face. At one point in the struggle, the victim fell to the floor and lost consciousness. The victim testified that her lips and jaw were swollen and she had bruises on the right side of her face. The hospital records confirmed this. Finally, the victim testified it took approximately three weeks to heal from the injuries and that during this period, she was unable to work due to the injuries and subsequently lost her job. Keeping in mind that the weight of the evidence and credibility of the witnesses are primarily for the trier of fact, State v. DeHass (1967), 10 Ohio St.2d 230, we find this to be sufficient evidence to establish serious physical harm under both R.C. 2901.01(E)(3) and (5). See State v. Norton (March 4, 1993), Cuyahoga App. No. 61902, unreported. Defendant-appellant's conviction for felonious assault against Ms. Addison is supported by sufficient evidence. Defendant-appellant further argues his conviction for kidnapping Ms. Addison was not supported by the evidence. T h e definition of kidnapping can be found in R.C. 2905.01 which reads 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: * * * -13- (3) To terrorize, or to inflict serious physical harm on the victim or another. As previously stated, there exists sufficient evidence establishing defendant-appellant assaulted the victim, then restrained the victim to keep her from notifying the police and/or school officials. After approximately two hours, the victim attempted to leave and defendant-appellant tried to grab her. It was only after the victim kneed defendant-appellant in the groin that she was able to leave the apartment. Under these facts, we find there exists a separate purpose and separate animus to support defendant-appellant's conviction for kidnapping. See State v. Parker (1986), 31 Ohio App.3d 128. Defendant-appellant's second assignment of error is not well taken. IV. THIRD ASSIGNMENT OF ERROR Harold M. Smith, defendant-appellant, has filed a pro se supplemental brief and states as his third assignment of error: III. THE TRIAL JUDGE ERRED TO THE EXTREME PREJUDICE OF APPELLANT AS THE JUDGMENT HEREIN WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW. A. ISSUE RAISED: WHETHER DEFENDANT-APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant-appellant argues his conviction was against the manifest weight of the evidence. Specifically, defendant- appellant argues: 1) the evidence establishes Ms. Addison was not restrained for purposes the kidnapping offense, but rather -14- stayed on her own free will and 2) while admitting "assaultive behavior," defendant-appellant argues the evidence establishes the victims of felonious assault in counts two and three (Ms. Halley and Ms. Addison) only received minor injuries as opposed to the serious physical injury required to sustain a conviction under R.C. 2903.011. Defendant-appellant's third assignment of error is not well taken. B. STANDARD OF REVIEW: MANIFEST WEIGHT It is primarily the function of the trier of fact to determine the evidence and credibility of the witnesses. State v. DeHass, supra. However, when an issue concerning the manifest weight of the evidence is presented upon appeal, this court utilizes the test articulated by the court in State v. Martin (1983), 20 Ohio App.3d 172, 175: The 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), 457 U.S. 31, 38, 42. "A reviewing court cannot reverse a judgment of conviction in a criminal case where there is sufficient evidence presented to the jury which, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." State v. Eley -15- (1978), 56 Ohio St.2d 169, 172; State v, Mattison (1985), 23 Ohio App.3d 10. C. DEFENDANT-APPELLANT'S CONVICTION WAS SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE. In the case sub judice, Ms. Addison testified that after she was assaulted, she attempted to leave the apartment to get her children. Defendant-appellant refused to allow her to leave for approximately two hours. Again, it was only after she kneed defendant-appellant in the groin that she was able to get out of the apartment and go to her children. When she arrived at the school, the victim's face was swollen and she was crying. We find this evidence, if believed, would convince the average mind of defendant-appellant's guilt of kidnapping as defined in R.C. 2905.01. See State v. Logan, supra. Furthermore, there was testimony from both Ms. Addison and Ms. Holley that defendant-appellant punched them repeatedly in the face and that they both suffered intense pain for several days. There exists sufficient evidence supporting defendant-appellant's convictions for felonious assault as defined by R.C. 2903.11. See, State v. Norton, supra. Accordingly, we cannot say the trier of fact losts its way and created a miscarriage of justice that would require a new trial. For the above-stated reasons, defendant-appellant's convictions were not against the manifest weight of the evidence. Defendant- appellant's third assignment of error is not well taken. V. FOURTH ASSIGNMENT OF ERROR -16- Harold M. Smith, defendant-appellant, has filed a pro se supplemental brief and states as his fourth assignment of error: IV. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT ALLOWED THE GOVERNMENT TO ADDUCE TESTIMONY AT TRIAL OF PRIOR BAD ACTS AND OTHER CRIMES OF THE DEFENDANT. A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN EVALUATING THE EVIDENCE. Defendant-appellant argues the trial court committed prejudicial error by considering irrelevant and sometimes inflammatory testimony and by considering prior bad acts as evidence that he acted in conformity therewith. Defendant-appellant's fourth assignment of error is not well taken. B. RELEVANCY AND EVIDENCE OF PRIOR BAD ACTS. Evid.R. 401 defines relevant evidence as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would without the evidence. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice. Evid.R. 403. Moreover, 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. Evid.R. 404(B). The admission or exclusion of relevant evidence rests within the sound discretion of the trial court and will not be disturbed unless the decision involves an abuse of that discretion. State -17- v. Sage (1987), 31 Ohio St.3d 173; State v. Harcourt (1988), 46 Ohio App.3d 52. An abuse of discretion connotes more than an error of law or judgment. There must be a finding that the trial court's attitude was arbitrary, unreasonable, or unconscionable. Cedar Bay Constr., Inc. v. Fremont (1990), 50 Ohio St.3d 19. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN EVALUATING EVIDENCE. Defendant-appellant cites to a number of instances where the witnesses testified concerning defendant-appellant's history of abusive behavior. However, after a review of the record we find there to be overwhelming evidence supporting defendant- appellant's conviction. Keeping in mind this case was a bench trial and that it is presumed a judge considers only the relevant, material and competent evidence in arriving at a judgment, State v. White (1968), Ohio St.2d 146, we find defendant-appellant has failed to demonstrate an abuse of discretion and/or prejudicial effect resulting from the trial court's evaluation of the evidence. See Gleason v. Gleason (1991), 64 Ohio App.3d 667. Accordingly, defendant-appellant's fourth assignment of error is not well taken. Judgment affirmed. -18- -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 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. JAMES M. PORTER, J. and TIMOTHY E. MCMONAGLE, J., CONCUR. DAVID T. MATIA PRESIDING 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 .