COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68579 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION RODNEY THOMAS : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 26, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-314856 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. CHARLES M. MORGAN, JR., ESQ. CUYAHOGA COUNTY PROSECUTOR 11510 Buckeye Road BY: BRUCE COUREY, ESQ. Cleveland, Ohio 44104 ASSISTANT COUNTY PROSECUTOR The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - DYKE, J.: Defendant-Appellant Rodney Thomas, appeals his conviction for one count of felonious assault with a violence specification (R.C. 2903.11) and one count of domestic violence with a violence specification (R.C. 2919.25). Appellant asserts that the trial court erred in admitting incriminating statements allegedly obtained during custodial interrogation; that it erred in denying his motion for acquittal; that he received ineffective assistance of counsel and that the jury's verdict was against the manifest weight of the evidence. Upon review, we find appellant's assignments of error to be devoid of merit. The judgment of the trial court is affirmed. The victim, Ms. Roberta Santiago, testified that when she returned home on September 9, 1994 at 1:30 a.m., the appellant, without provocation, struck her right leg with a wooden club. Ms. Santiago stated that the blow from the club immediately broke her 1 leg such that the bone extruded thru her skin. Ms. Santiago stated that the appellant continued to beat her, injuring her left arm, left leg and head, until upstairs tenants heard her screams and called the emergency medical service (EMS). Ms. Santiago indicated that even though the appellant was an epileptic and appeared to be shaking prior to the assault, such shaking did not 1 Ms. Santiago stated that she subsequently under went emergency surgery for the reduction of her open fracture which necessitated the placement of two permanent, stabilizing screws and a rod. - 3 - develop into an epileptic seizure. Ms. Santiago testified that EMS personnel transported her to St. Luke's Medical Center where she told Cleveland Police Officer Frank Zagami that the appellant broke her leg with a club and beat her. Ms. Santiago identified the club; indicated that she had lived with the appellant for three years and further indicated that when she told the appellant she was going to prosecute, he repeatedly threatened to "blow" her brains out. Officer Zagami testified that he was radioed to the medical center to investigate a report of domestic violence. He also stated that he was told that the suspect was on site. Zagami testified that he interviewed Ms. Santiago in the emergency room and that she told him that "Rodney Thomas" beat her and broke her leg. Zagami testified that he located the appellant; asked him to take a seat in the patrol car and further asked him to relate what happened. Zagami indicated that the appellant told him that there had been a block party that evening and that he was with a group of people when they heard Ms. Santiago's screams and found her lying on the floor. Zagami stated that after the appellant denied being present during the assault and claimed that Ms. Santiago's accusations were impossible, he informed the appellant of his rights and arrested him. Zagami testified that he and another officer returned to appellant's home and confiscated a wooden club. The court overruled appellant's motion for acquittal. The appellant testified that he was an epileptic; that he - 4 - asked Ms. Santiago to get him his medication when she returned home that morning; that when she approached him she had an "object" in her hand; that he was frightened of her because of prior acts of violence and that he threw "the stick" at her just once. During cross-examination appellant admitted that he could not describe the 2 "object" alleged to be in Ms. Santiago's hand. He also admitted to weighing 200 pounds and described Ms. Santiago as petite; maintained that he threw the club at Ms. Santiago just once and further maintained that he did not know how Ms. Santiago sustained her additional injuries. The appellant denied seeing any bone protruding thru Ms. Santiago's leg and admitted that he lied to Officer Zagami in the patrol car when he denied being present at the scene of the assault. The jury found the appellant guilty as charged. The instant appeal followed. I THE TRIAL COURT COMMITTED PLAIN ERROR BY ADMITTING DEFENDANT-APPELLANT'S INCRIMINATING STATEMENT IN VIOLATION OF HIS FIFTH AMENDMENT RIGHTS. In his first assignment of error, appellant claims that the initial explanations he gave to Officer Zagami constituted incriminating statements made during the course of a custodial interrogation and that the court committed plain error in admitting 2 On cross examination, Ms. Santiago denied having a knife in her hands. She stated that when she returned home the only thing she had in her hands were house keys. She also stated that when the appellant struck her with the club, the glass of water she was holding fell from her hands. - 5 - 3 such statements. Appellant's argument is devoid of merit. In Miranda v. Arizona (1966), 384 U.S. 436 the United Stated Supreme Court defined "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id., at 444. The Supreme Court also held that the fact that an officer consciously sought to elicit incriminating statements and that the defendant was the focal point of the investigation did not automatically entitle the defendant to a Miranda warning. See, Minnesota v. Murphy (1984), 465 U.S. 431. The ultimate inquiry is whether there is a "formal arrest or restraint on movement" of the type associated with a formal arrest. See, State v. Warrell (1987), 41 Ohio App.3d 286, 287 citing California v. Beheler (1983), 463 U.S. 1121, 1125. In determining whether there has been such a restraint, the inquiry is how a reasonable man in the suspect's position would have understood his situation. Id. Officer Zagami testified that he asked the appellant to take a seat in the patrol car and further asked him to relate what had occurred. There is no evidence in the record to suggest that Zagami demanded anything of the appellant or that he physically coerced the appellant in any way. Hence, at the time the appellant spoke to Zagami, his movement had not been restrained in any manner 3 The appellant failed to object to Zagami's testimony during trial. However, since he alleges plain error, we shall address appellant's arguments. - 6 - associated with a formal arrest. Also, Zagami affirmatively stated that he informed the appellant of his Miranda rights and arrested the appellant after he denied being at the scene of the assault. Even if we were to assume arguendo that the questioning was custodial, the record clearly demonstrates that appellant's statements constituted a denial of the crime, not an admission. Hence, such statements were not incriminating nor were they the direct predicates of his conviction. Such statements were used to impeach the appellant. In light of appellant's own admissions as well as other, overwhelming evidence of appellant's guilt, the admission of such statements could not have prejudiced him. His first assignment of error is overruled. II THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AS THE EVIDENCE PRESENTED BY THE STATE WAS INSUFFICIENT TO SUSTAIN A CONVICTION OF THE OFFENSES OF FELONIOUS ASSAULT AND DOMESTIC VIOLENCE. In his second assignment of error, appellant claims that he was having an epileptic seizure at the time of the assault and that the alleged seizure precluded him from "knowingly" causing Ms. Santiago's harm. Appellant's argument is devoid of merit. Ms. Santiago testified that she knew what epileptic seizures were and that appellant's shaking never developed into an epileptic seizure. In addition, the appellant testified that he threw the club at Ms. Santiago because he was frightened of her. Hence, the appellant described his own conduct as being a rational, purposeful response to alleged fear. While the jury found appellant's - 7 - assertion to be incredible, it does serve to confirm the fact that the appellant was functioning in a cognitive manner and was not experiencing an epileptic seizure at the time of the assault. Hence, there is ample evidence in the record to demonstrate that appellant "knowingly" caused Ms. Santiago's harm. The state presented sufficient evidence to support each element of the 4 5 offense of felonious assault and domestic violence. Appellant's 4 R.C. 2903.11 provides that: (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 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. 5 R.C. 2919.25 provides in relevant part that: (A) No person shall knowingly cause or attempt to cause physical harm to a family or household member. (B) No person shall recklessly cause serious physical harm to a family or household member. (C) No person, by threat of force, shall knowingly cause a family or household member to believe that the offender will cause imminent physical harm to the family or household member. * * * (E) As used in this section and section 2919.26 of the Revised Code: (1) "Family or household member" means any of the following, who is residing or has resided with the offender: (a) A spouse, a person living as a spouse, or a former spouse of the offender; * * * (2) "Person living as a spouse" means a person who is living or has lived with the offender in a common law marital relationship, who otherwise is cohabiting with the offender, or - 8 - second assignment of error is overruled. III DEFENDANT-APPELLANT'S RIGHT TO A FAIR AND IMPARTIAL TRIAL WAS MATERIALLY PREJUDICED BY THE INEFFECTIVE ASSISTANCE OF HIS COUNSEL IN VIOLATION OF HIS SIXTH AMENDMENT RIGHTS. In his third assignment of error, appellant claims that he was prejudiced because counsel failed to file a motion to suppress the statements he made to Officer Zagami in the patrol car. As indicated in our resolution of appellant's first assignment of error, such statements were made prior to appellant's arrest. Hence, they were non-custodial and legally admissible. Accordingly, counsel's failure to file a motion to suppress did not constitute ineffective assistance. See, Strickland v. Washington (1984), 466 U.S. 668 Appellant's third assignment of error is overruled. IV THE VERDICT OF THE JURY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND MUST BE REVERSED. In his last assignment of error, appellant claims that the quality of the state's evidence was so poor and unreliable that it could not support a guilty verdict. Specifically, appellant claims that Ms. Santiago's consumption of alcohol on the evening of the assault undermined her ability to testify; that prior acts of who otherwise has cohabited with the offender within one year prior to the date of the alleged commission of the act in question. - 9 - violence undermined her testimony regarding the unprovoked nature 6 of the assault and that Ms. Santiago's assertion that he beat her for an hour was incredible. We find appellant's arguments to be unpersuasive. In determining whether the verdict is against the manifest weight of the evidence the court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of 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. State v. Davis (1988), 49 Ohio App.3d 109, paragraph three of the syllabus. A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, paragraph one of the syllabus. The credibility of the witnesses is primarily a matter for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 231. While Ms. Santiago admitted to drinking a six-pack of beer and also admitted sporadic acts of violence against the appellant, she unequivocally testified that appellant broke her leg with a club and beat her without provocation. Ms. Santiago identified the club and the appellant admitted ownership of it. This testimony was fully corroborated by Officer Zagami who affirmatively stated that 6 Appellant testified that Ms. Santiago stabbed him with a screw driver on a prior occasion. - 10 - the appellant made no comments regarding Ms. Santiago's possession of an "object" and that the appellant also made no statements regarding any provocation. In addition, Ms. Santiago's injuries were documented by medical records indicating that she had been "beaten by her boyfriend" and that she had been "beaten multiple times to her right tibia (leg), left humerus (arm), occiput (head) and sustained an open wound, grade I right tibia fracture ... with obvious deformity." (Clinical History, Operative Report, State Exhibit #1) The state presented substantial, competent and credible evidence which would enable a jury to reasonably conclude that appellant's offenses had been proven beyond a reasonable doubt. Hence, the instant verdict is not against the manifest weight of the evidence. Appellant's fourth assignment of error is overruled. The judgment of the trial court is 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 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. SPELLACY, P.J., AND MCMONAGLE, J., CONCUR. ANN DYKE JUDGE 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, .