COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68614 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION EDWARD F. ZIERNICKI, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 2, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-308556 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Jeffrey Margolis Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Deborah B. Capps Joseph E. Rutigliano KOHRMAN, JACKSON & KRANTZ 1375 East Ninth Street One Cleveland Center 20th Floor Cleveland, Ohio 44114 Stuart H. Lippe 930 Leader Building Cleveland, Ohio 44114 -2- NAHRA, J.: Appellant, Edward Ziernicki, is appealing his conviction after a bench trial for aggravated assault. He contends the conviction was against the weight and sufficiency of the evidence. For the following reasons, we affirm. Edward Ziernicki, a general contractor, hired Dean Dyke (the victim) to perform interior carpentry work on a house Ziernicki was building for Michael and Ginny Albino. A dispute arose as to how much Ziernicki owed Dyke for the work. Dyke spoke to Ginny Albino and threatened to put a lien on the home. Dyke testified Mrs. Albino was not upset about the threatened lien. Mr. Albino testified that she was upset. Ziernicki and Dyke met at the construction site to discuss the problem. Dean Dyke testified a rational discussion about the bill soon turned into an argument. Ziernicki started screaming, "you get out." Appellant came up behind Dyke and put his arm around Dyke's throat. Appellant dragged Dyke towards the door. Dyke tried to escape by throwing his elbows back at appellant. When the two reached the door, appellant let go of the victim. Dyke turned around to face appellant, and appellant punched him in the face. Dyke punched appellant. Then, the men held each other in a wrestling hold. Appellant grabbed a board and hit Dyke on the head. Dyke sustained a deep cut on the top of his head. Dyke left the house and went to the police station. He denied breaking anything in the house or hitting appellant with a board. -3- Edward Ziernicki testified that when Dyke arrived at the house, he was screaming and demanding his money. Dyke started ripping apart some of the carpentry work he had done. Ziernicki grabbed Dyke around the waist and walked him over to the door. Dyke was still trying to destroy parts of the home along the way. When the two reached the door, Ziernicki let go of Dyke. Dyke lit up a cigarette, took a few drags, and threw the cigarette out the door. All of a sudden, Dyke became angry again and punched Ziernicki in the face. Ziernicki curled up into a fetal position as Dyke punched his back. Dyke struck appellant's back with a board. Ziernicki was in fear for his life. Ziernicki was able to grab the board away from Dyke and Dyke fell on top of him. Both men got up. Ziernicki turned around holding the board and accidentally struck Dyke's head with the board. After Dyke left the house, Ziernicki covered up the blood because he did not want the Albinos to become alarmed. Ziernicki then phoned the police to report the fight. Appellant had several character witnesses who testified appellant was a truthful person. Donald Sanzo testified that he performed repair work on carpentry in the home. Appellant told Sanzo the damage was caused by vandalism. In his oral findings of fact, the trial judge stated he believed neither Ziernicki nor Dyke was telling the complete truth. The judge believed Ziernicki had a good faith belief the property -4- was in danger and a good faith belief he was in danger of substantial bodily harm. The judge questioned whether appellant violated his duty to retreat. The judge ordered the parties to submit briefs on the duty to retreat issue. The trial judge wrote an opinion finding appellant guilty of aggravated assault. The opinion stated that appellant failed to prove by a preponderance of the evidence that he believed in good faith he was in danger of such great bodily harm as to necessitate the use of deadly force. I. Appellant's assignments of error will be considered out of the order presented in appellant's brief. Appellant's second assignment of error states: THE APPELLANT'S CONVICTION FOR AGGRAVATED ASSAULT WAS CONTRARY TO LAW THE STATE BECAUSE (SIC) FAILED TO PRESENT SUFFICIENT EVIDENCE UPON WHICH THE TRIER OF FACT COULD CONCLUDE BEYOND A REASONABLE DOUBT ALL THE ELEMENTS AGGRAVATED ASSAULT. When reviewing a challenge to the sufficiency of evidence, an appellate court must view the evidence in a light most favorable to the prosecution and determine if any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259. The essential elements of aggravated assault relevant to this case are: (1) the defendant acted in a sudden passion or fit of rage, brought on by sufficient provocation by the victim, (2) the defendant knowingly, (3) caused or attempted to cause physical harm to -5- another by means of a deadly weapon, as defined by R.C. 2923.11. Appellant argues the trial court found the victim's testimony was not credible. Appellant reasons that therefore, there was no evidence from which a reasonable trier of fact could find beyond a reasonable doubt that appellant knowingly caused physical harm to the victim. Appellant testified that he turned around holding the board, and the board accidentally struck the victim. The trial court did not find the victim's testimony entirely incredible, but found that neither the victim nor appellant were telling the complete truth. The trier of fact may choose to believe part of a witness's testimony. State v. Harriston (1989), 63 Ohio App.3d 58, 63, State v. Antil (1964), 176 Ohio St. 61. The trial judge here could believe the part of the victim's testimony that appellant knowingly hit the victim on the head with the board. Thus, there was sufficient evidence to prove the elements of aggravated assault beyond a reasonable doubt. Appellant also argued that he proved by a preponderance of the evidence that he acted in self-defense. To establish self-defense for the use of deadly force, the defendant must show: (1) he was not at fault in creating the situation giving rise to the affray, (2) he had a bona fide belief that he was in imminent danger of death or great bodily harm and his only means of escape was the use of deadly force, and (3) he did not violate a duty to retreat or avoid the danger. State v. Jackson (1986), 22 Ohio St.3d 281. The defendant is privileged only to use the force reasonably necessary to repel the attack. State v. Williford (1990), 49 Ohio St.3d 247, -6- 249, State v. Catlin (1990), 56 Ohio App.3d 75, State v. Payton (April 1, 1993), Cuyahoga App. No. 62243, unreported, State v. Goins (Nov. 9, 1994), Miami App. No. 93-CA-16, unreported. Whether the defendant used reasonably necessary force is a question of fact for the trier of fact. Goins, supra. There was sufficient evidence here from which the trial judge could conclude appellant did not have a bona fide belief of great bodily harm and used force greater than necessary to repel the attack. The victim testified that he and appellant punched each other and wrestled, and that he never hit appellant with a board. Appellant sustained only bruises from the fight. The trial court could conclude that appellant was in fear of some bodily harm, but not greatly bodily harm. The court could also reasonably find that the deadly force of hitting the victim with the board was not reasonably necessary to end the fight. See State v. Catlin, supra, (deadly force was not necessary to eject a trespasser who was engaged in shoving match with the defendant). Even if the trial court found appellant had no duty to retreat because appellant was in his place of business, appellant was still only privileged to use deadly force if he was in reasonable fear of death or great bodily harm. See Catlin, supra, State v. Graham (1918), 98 Ohio St. 77. The trial court had sufficient evidence to find appellant did not act in self-defense. Appellant argues that prejudicial error occurred because the trial judge stated on the record that appellant had a good faith belief he was in danger of great bodily harm, and then "flip- -7- flopped" on this issue in his written opinion and journal entry. A trial court may change an oral pronouncement made before a journal entry, without giving grounds for appeal, because the court has not spoken until the journal entry is filed. Economy Fire & Casualty Co. v. Craft General Contr. Inc. (1982), 7 Ohio App.3d 335, 337, In re Adoption of Gibson (1986), 23 Ohio St.3d 170, 173 at fn. 3. The trial court's findings in its written opinion were not contrary to law although they conflicted with the court's prior oral statement. The conviction was not contrary to law and was supported by sufficient evidence. Accordingly, this assignment of error is overruled. II. Appellant's first assignment of error states: THE APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In determining if a conviction is against the manifest weight of the evidence, the appellate court reviews the record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence the trier of fact 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. Martin (1983), 20 Ohio App.3d 172, quoting Tibbs v. Florida (1982), 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652. The court should consider whether the evidence is credible or incredible, contradicted or uncontradicted, reliable or unreliable, certain or uncertain, whether a witness was -8- impeached and whether a witness' testimony was self-serving. State v. Mattison (1985), 23 Ohio App.3d 10. A reviewing court will not reverse a verdict whether there is substantial, competent and credible evidence supporting the criminal conviction. State v. Eley (1978), 56 Ohio St.2d 169, Martin, supra. Appellant asserts that the victim's testimony cannot be believed. Dyke made an incredible statement that he was struggling to break free of appellant's hold, yet was still holding a cigarette. Dyke's testimony concerning the emotional state of Mrs. Albino was contradicted by Mr. Albino's testimony. Dyke also had an economic interest in the testimony because he filed a civil lawsuit against Ziernicki. Appellant's testimony was also self-serving and contained some contradictions. For example, appellant stated he did not put the board into a cardboard box after the incident. A police officer testified that when appellant showed him the scene, appellant took the board out of a cardboard box. Appellant had several character witnesses testify on his behalf. Based on the above analysis, we find that the trial judge did not lose his way or create a manifest miscarriage of justice in believing appellant's testimony in part and the victim's testimony in part. The trial court's finding that appellant did not have a bona fide belief he was in danger of great bodily harm was supported by competent, credible evidence. The victim's testimony he did not hit appellant with a board was not incredible. The determination as to the credibility of witnesses is primarily for -9- the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, State v. Tyler (1990), 50 Ohio St.3d 24. Even if the trial court believed appellant was struck with the board, the court could find that once appellant obtained the board and the victim was unarmed, appellant no longer had a bona fide belief of an imminent danger of great bodily harm. Appellant did not have to hit the victim on the head with the board to end the conflict, and used unreasonable force. Appellant's testimony that he turned around and accidentally hit the victim with the board was incredible, given that the victim sustained a deep gash on the top of his head. The conviction was not against the manifest weight of the evidence. Accordingly, this assignment of error is overruled. The decision of the trial court is affirmed. -10- 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. HARPER, P.J., and PORTER, J., CONCUR. JOSEPH J. NAHRA 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 .