COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68594 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION ROGER GRIDER : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : DECEMBER 20, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-314,379 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor RONNI DUCOFF, Assistant JOHN W. MONROE, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JAMES A. DRAPER Cuyahoga County Public Defender ARTHUR A. ELKINS, Assistant The Marion Building, #307 1276 West Third Street Cleveland, Ohio 44113-1569 TIMOTHY E. McMONAGLE, J.: Defendant-appellant, Roger Grider, and one other individual not a party to this appeal, Jerry Shamblin, were charged in a four- count indictment with two counts of aggravated robbery, one count of robbery and one count of felonious assault with a violence specification. The appellant and Mr. Shamblin stood trial together. At the conclusion of the trial, the jury found appel- lant guilty of felonious assault with specifications and not guilty of aggravated robbery and robbery. The appellant received a sentence of three to fifteen years incarceration at the Lorain Correctional Institution. The appellant now appeals from his conviction, assigning for this court's review the sufficiency of the evidence to support his conviction: THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN APPELLANT'S CONVICTION FOR FELONIOUS ASSAULT IN VIOLATION OF R.C. 2903.11(A)(1). The appellant's conviction stems from an incident occurring on August 13, 1994. At approximately 2:30 a.m., Chandra Meesig, Zachary Serafin and Michael Thoma exited the Brillo Pad Bar and Cafe and walked together to Ms. Meesig's car, which was parked down the street from the Brillo Pad. The three stood alongside Ms. Meesig's car exchanging goodbyes when they noticed a late model Datsun headed in their direction. As the Datsun passed, its - 3 - occupants shouted obscenities out of the window at the trio. The Datsun then came to a screeching halt at the end of the street, turned around, and headed back up the street toward where Ms. Meesig, Mr. Serafin and Mr. Thoma were standing. A group of four men then exited the Datsun and began running up the street yelling obscenities. Concerned for their safety, Ms. Meesig and Mr. Serafin jumped into Ms. Meesig's car and locked the doors. Mr. Thoma, who drove separately and was parked in another location, began to leave the area but was stopped by the group of men. One of the men, Jerry Shamblin, punched Mr. Thoma in the head, then proceeded toward the car where he began pounding and kicking the passenger side window as Ms. Meesig attempted to start the car. Meanwhile, appellant and several other men took turns punching and kicking Mr. Thoma. The attack stopped when Ms. Meesig succeeded in starting her car and driving away. Mr. Thoma was taken by ambulance to the hospital, where he was treated for hemorrhaging in both eyes, various bruises and abrasions, a laceration on his right palm, a head laceration (for which he received five stitches), and a concussion. Appellant argues that it was error for the trial court to deny his Crim.R. 29 motion for acquittal on the charge of felonious assault as the state's evidence was insufficient to show that Mr. Thoma sustained serious physical harm. Specifically, appellant contends that reasonable minds could differ as to whether the state proved beyond a reasonable doubt that Mr. Thoma suffered serious - 4 - physical harm. Proof of serious physical harm to the victim is an essential element of the offense of felonious assault. R.C. 1 2903.11(A)(1). In order to sustain appellant's conviction for felonious assault, there must be sufficient evidence which, if believed, would convince the average mind that appellant knowingly caused serious physical harm to Mr. Thoma. As stated by the Ohio Supreme Court in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Vir-ginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) R.C. 2901.01(E) defines "[s]erious physical harm to persons" as any of the following: (1) Any mental illness or condition of such gravity as would normally require hospital- ization or prolonged psychiatric treatment; (2) Any physical harm which carries a sub- stantial risk of death; 1 R.C. 2903.11, which defines the offense of felonious assault, provides, in pertinent part, that: (A) No person shall knowingly: (1) Cause serious physical harm to another[.] (Emphasis added.) - 5 - (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. (Emphasis added.) Over the last several years, this court has become increas- ingly liberal in its interpretation of the element of serious physical harm under a charge of felonious assault. In State v. Walker (June 18, 1987), Cuyahoga App. No. 52391, unreported, this court found sufficient evidence of serious physical harm based on the following: Dr. Krakow testified that Gracia suffered a hematoma on the right side of his head, abra- sions to his face, tenderness from blows to his chest, a cut lip, a puncture wound to his right knee and a cut to his hand requiring sutures. This Court has held that where the injuries to the victim are serious enough to cause him to seek medical treatment, a jury may reasonably infer that the force exerted on the victim caused serious physical harm. See State v. Williams (Nov. 10, 1983), Cuyahoga App. No. 46599, unreported; *** (Emphasis added.) In State v. Huckabee (Oct. 26, 1995), Cuyahoga App. No. 67588, unreported, this court addressed the issue of whether the prosecution had presented sufficient evidence of serious physical harm and held that: - 6 - *** Serious physical harm may be shown by testimony of medical treatment. Vaughn did receive medical treatment for the injuries to his face and forearm; consequently, the jury could reasonably infer from this fact that the injuries were serious and the force used caused serious physical harm. State v. Williams. (Emphasis added.) Similarly, in the present case, we find that the evidence presented to the trial court in this case, if believed, was suffi- cient to convince a rational trier of fact that Mr. Thoma suffered serious physical harm as defined in R.C. 2901.01(E)(3) and/or (5). Evidence was presented that Mr. Thoma incurred hemorrhaging in both eyes, that his eyes were blackened and swollen shut, that he received numerous bruises and abrasions on various parts of his body including his arms, legs and abdomen, that he received a laceration on his right palm and one on his head (for which he received five stitches) and that he suffered a concussion. In addition, there was evidence that since the incident, Mr. Thoma experiences dryness in his eyes, especially the one that was swollen shut, and has increased blurred vision. Based on the above facts, we hold that the trial court did not abuse its discretion by denying appellant's motions for acquittal. Accordingly, appellant's sole assignment of error is over- ruled and the judgment of the trial court is affirmed. - 7 - 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. JOSEPH J. NAHRA, P.J. and DIANE KARPINSKI, J. CONCUR JUDGE TIMOTHY E. McMONAGLE 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, .