COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68730 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION RICARDO ANDERSON : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : NOVEMBER 30, 1995 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 304141 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones, Esq. Jeffrey J. Snell, Esq. Cuyahoga County Prosecutor P.O. Box 569 By: Sean Gallagher, Esq. 253 West Aurora Road Assistant Prosecuting Atty. Suite 200 The Justice Center Sagamore Hills, Ohio 44067 1200 Ontario Street Cleveland, Ohio 44113 -2- HARPER, J.: Ricardo Anderson, defendant appellant, appeals from his conviction of felonious assault and the sentence imposed by the Cuyahoga County Court of Common Pleas of nine to fifteen years incarceration plus costs at Lorain Correctional Institute. Appellant asserts that his conviction for felonious assault should be set aside. A careful review of the record compels affirmance. I. The following facts were adduced from the record before this court: At a pre-trial hearing, the state offered a plea bargain which would have imposed an eighteeen month sentence; appellant rejected this plea bargain offer. On the morning of the trial, appellant indicated that he wanted a jury trial, therefore, appellant turned down a second plea bargain offered by the state. The case proceeded to trial. Four witnesses were called by the state: Ms. Marquetta Davis, the victim, Mr. Murphy, the owner of M and M Appliance Store, Officer Thomas and Detective Jackson. The state's first witness was the victim, Ms. Davis, who provided the jury with an account of the events leading up to the attack. On direct examination, Ms. Davis testified that she frequented a bar called the "The Spot II Lounge" located at the corner of East 118th and Kinsman in Cleveland. Ms. Davis knew appellant as both Ricardo Anderson and "Ricardo Dotson." She and appellant became friends. Later in the summer of 1993, her relationship with appellant developed into a sexual relationship. -3- During this same time period, Ms. Davis spent time with her girlfriend, Ms. Geraldine White, who lived near the "Spot II Lounge." According to Ms. Davis, she would travel from Ms. White's home to appellant's apartment at East 159th and Kinsman. Ms. Davis said that she frequently helped appellant at the bar, then she would spend the entire evening with him. In the morning, she would ride the bus home. According to Ms. Davis, her relationship with appellant began to deteriorate when the appellant began to ignore Ms. Davis for another women, Ms. Terri Reese, who also frequented the "Spot II Lounge." One summer evening in July of 1993, appellant ignored her for the entire evening. As the bar was closing, Ms. Davis went outside to speak with appellant and question him about his behavior. Appellant ignored her questions and would not respond, so she poured beer in his face. As appellant jumped towards her and called her "a stupid bitch," Ms. Davis struck him in the face with the glass of beer she was holding in her hand. He then pushed her into the bushes. Ms. Davis fled from the area as appellant, Ms. Reese, and others chased her from the area. Ms. Davis testified that after the incident, she wanted to speak with appellant about the incident, even though she was afraid of appellant. She tried to call appellant in the hope of resolving the situation between the two of them. When she did eventually speak with appellant, appellant agreed to speak with her if she would meet him at the bar. After speaking with her girlfriend, Geraldine, Ms. Davis decided not to meet with appellant at the bar. -4- Ms. Davis recounted that she still feared appellant, so she altered her daily habits in the hope of avoiding appellant. Ms. Davis stated on October 3, 1993, she was walking with a friend on Kinsman Avenue. She stated that she walked by the "Spot II Lounge" on the opposite side of the street and did not see appellant. After Ms. Davis visited her friend, she walked up 126th Street. As she was walking, she suddenly heard someone running up behind her and turned to see appellant, Ricardo Anderson, swinging a bat at her. Ms. Davis recounted that he struck her from behind on the left shoulder blade with the bat. She tried to get away from appellant, so she ran toward the M and M Appliance Store on Kinsman Avenue. Ms. Davis stated that a "street person" known as "Johnnie Mae" was with appellant, and that "Johnnie Mae" tried to grab her, but she broke free from "Johnnie Mae." Ms. Davis stated that she ran into the M and M Appliance Store and tried to hide behind a refrigerator. Appellant followed her into the store and continued to swing the bat at her repeatedly saying: "Bitch, I'm going to fuck you up." Ms. Davis said that the store owner, Mr. Patrick Murphy, put appellant outside the store and kept the victim inside the store and called the victim's father. Ms. Davis said that her father came to the store and picked her up. She was then transported to St. Luke's Hospital where she was treated for a fractured left scapula bone. Next, Mr. Patrick Murphy, the owner of M and M Appliance Store, testified for the state. He corroborated the victim's -5- version of the incident. Mr. Murphy identified the appellant as the assailant and told the court that he saw appellant chase the victim into his store. He followed them into the store and he witnessed appellant and Ms. Davis wrestling near some appliances in the store; appellant was on top of Ms. Davis. He ordered them to leave the store, and when he walked closer to look at them, he observed that appellant had a bat with him. Mr. Murphy testified that he then went and got a "Billy club" to chase appellant out of the store. Mr. Murphy then stated that he called the victim's father. Officer Walter Thomas a five-year veteran of the Cleveland Police Department was the third witness to testify for the state. On October 3, 1993, he was working a one-man car in the Fourth District when he received a call that a female was being assaulted. When he arrived at the appliance store, he interviewed the victim and attempted to find appellant. He tried to find appellant, at the various locations the victim suggested, but he could not locate appellant. Officer Thomas also testified, that to his knowledge, there was no additional information added to the police report about this incident. Detective R.C. Taylor, a thirty-five year veteran of the Cleveland Police Department, was the last witness to testify for the state. He explained that he interviewed the victim and got a physical description of appellant. He next testified that appellant turned himself in at the station. After appellant was apprised of his constitutional rights, appellant admitted to -6- Detective Taylor that he knew the victim, because she was his girlfriend, and that the incident was a misunderstanding between the two of them. Detective Taylor indicated that he could not find the "street lady" Johnnie Mae, although he looked for her. Appellant then took the stand and described his personal history, including his educational and military background. In addition, he acknowledged that he had a conviction for carrying concealed weapon and a weapons disability conviction. Appellant testified about his employment at the "The Spot II Lounge" at East 118th and Kinsman which was owned by his stepfather. Appellant was employed as a manager, and he bartended on the weekends. He explained that he bartended on the weekends as a means to encourage the female patrons to come to the bar and spend money. Appellant admitted that he knew Ms. Davis, because she frequented the bar while he was bartending, however he denied having any type of relationship with her. Moreover, he testified that during this time he was involved with another woman. Further, appellant provided his version of the events which transpired between he and the victim. One evening Ms. Davis came to the bar and she attempted to speak with him several times, however, he refused to speak with her. Around closing time, he stated that he spoke with Ms. Davis when he found her outside the bar holding a glass of beer. When he questioned her about standing outside the bar with a glass of beer, she threw the beer in his face and hit him in the face with the glass. He testified that he was cut and needed forty stitches. Appellant testified that he let -7- the incident go because he figured "since she done got this frustration off her chest, she would probably leave me alone." So, he did not press charges against her. After the incident, according to appellant, the victim harassed appellant on the phone, however, appellant said that he did not file a police report. At the close of direct examination, appellant denied running after Ms. Davis with a bat and hitting her. On cross-examination, appellant confirmed that he had a third conviction for aggravated burglary and robbery, in addition to his other convictions. When questioned about his girlfriend, he explained that he hired his girlfriend, Terri Reese, to "chase the other girls away." Appellant also maintained that Ms. Davis was sexually harassing him at the bar, however, he admitted that he did not file a police report concerning this incident. Appellant then testified that when he did make a police report concerning Ms. Davis, the police changed the number on the report and appellant could not remember the name of the police officer who took the information from him. When asked for documentation verifying his military record, appellant could not provide documentation. Moreover, he could not document his claim that he was in college after his robbery conviction. When questioned about the forty stitches he received when the victim attacked him, he stated that the stitches were all healed. In addition, appellant denied making a statement to Detective Taylor about the incident with Ms. Davis being a misunderstanding. -8- Finally, Ms. Reese took the stand as a witness for appellant and testified that she had known appellant for many years. At the time of the trial, she stated that appellant had been her boyfriend for four years, and that she had been living with him for the past two years. In 1993, she was employed with appellant at the "Spot II Lounge" on Kinsman Avenue, and she was living with appellant. Ms. Reese testified that she had knowledge of appellant's whereabouts twenty-four hours a day. Moreover, she indicated that if appellant had another girlfriend, she would have known about the other girlfriend. Ms. Reese indicated that she knew Ms. Davis from the "Spot II Lounge." Ms. Reese described the altercation between appellant and Ms. Davis, in July 1993, when Ms. Davis threw the beer and the glass at appellant. Ms. Reese indicated that Ms. Davis was outside the bar, holding a glass of beer and that appellant went outside to get the glass from her. According to Ms. Reese, appellant and the victim talked, and then the victim threw the glass in his face and the glass broke across the front of appellant's face. Ms. Reese, on cross-examination, indicated that she never called 911 regarding the July incident when Ms. Davis threw the bottle at appellant, because she took appellant to the hospital. However, she could not produce a copy of the medical report documenting this hospital visit. At the close of all evidence, appellant's defense counsel moved for a Crim.R. 29 motion to dismiss. The trial court denied appellant's motion. -9- On February 24, 1994, the jury returned a verdict of guilty to the charge of felonious assault, an aggravated felony of the second degree, with a prior aggravated felony specification. Appellant timely appeals. II. Appellant assigns the following assignments of error: I. APPELLANT WAS DEPRIVED OF THE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AS SECURED BY THE UNITED STATES CONSTITUTION AMENDMENTS VI AND XIV AND THE OHIO CONSTITUTION ARTICLE I, SECTION 10. A. APPELLANT'S DEFENSE COUNSEL'S PERFORMANCE WAS DEFICIENT, RENDERING HER INEFFECTIVE UNDER THE FIRST PRONG OF THE TWO-PART TEST OF STRICKLAND. 1. APPELLANT'S TRIAL COUNSEL'S FAILURE TO MAKE ANY PREPARATION FOR TRIAL DUE TO HER ILLNESS FOR AT LEAST TWO WEEKS PRIOR TO THE TRIAL, RENDERED HER INEFFECTIVE UNDER OBJECTIVE STANDARDS OF REASONABLENESS. 2. APPELLANT'S TRIAL COUNSEL'S FAILURE TO FILE A TIMELY MOTION FOR ALIBI PURSUANT TO CRIMINAL RULE 12.1 AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL. B. APPELLANT'S COUNSEL'S DEFICIENT PREPARATION AND PERFORMANCE BY FAILING TO MAKE ANY PREPARATION BEFORE TRIAL AND HER FAILURE TO FILE A TIMELY MOTION FOR ALIBI PREJUDICED THE DEFENDANT IN THE TRIAL COURT. II. THE COURT BELOW ABUSED ITS DISCRETION BY IMPROPERLY PERMITTING THE PROSECUTOR TO QUESTION THE APPELLANT-DEFENDANT ABOUT A CONVICTION IN EXCESS OF TEN YEARS OLD, WITHOUT ANY WRITTEN NOTICE TO THE DEFENSE AND BY FAILING TO SPECIFICALLY INSTRUCT THE JURY ON THE LIMITED USE OF THE APPELLANT'S PRIOR CONVICTION UNDER EVIDENCE RULE 609(B). -10- III. APPELLANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. II. In appellant's first assignment of error, appellant asserts he was deprived of effective assistance of counsel due to his defense counsel's deficient performance. Appellant advances two arguments in support of his contention that he was deprived of the right to effective assistance of counsel as secured by the Ohio and United States Constitutions. First, appellant claims that defense counsel failed to prepare for trial due to illness. Second, defense counsel failed to timely file a Crim.R. 12.1 notice of alibi. When considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client; and second there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness. Strickland v. Washington (1984), 466 U.S. 688; State v. Bradley (1989), 42 Ohio St.3d 136. The test enunciated in Strickland is essentially the same as the one adopted by the Ohio Supreme Court in State v. Lytle (1976), 48 Ohio St.3d 391. With respect to the first prong, courts must indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance; that is, defendant must overcome the presumption that, under circumstances, a challenged action "might be considered sound trial strategy." State v. -11- Frazier (1991), 61 Ohio St.3d 247, 253. With respect to the second prong, defendant must prove that there exists reasonable probability that, were it not for counsel's errors, result of trial would have been different in order to establish that defendant has been prejudiced by counsel's deficient performance. Bradley, supra, at paragraph three of the syllabus. Defendant must show that counsel's representation fell below an objective standard of reasonable representation. Bradley, supra. Defendant must show there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. State v. Rockwell (1992), 80 Ohio App.3d 157. In the absence of positive proof to the contrary, licensed attorneys are presumed to be competent. Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. Turning to appellant's first argument, appellant charges that appellant's defense counsel was deficient because counsel failed to make any preparation for trial due to her illness for at least two weeks prior to trial. We disagree. The record before this court does not substantiate appellant's claimed ineffective assistance of counsel. To the contrary, the record indicates that defense counsel met with appellant in January, shortly after the case was assigned to the Public Defender's Office. Defense counsel consulted with appellant prior to the trial about accepting a plea offer, and appellant indicated to defense counsel that he would accept the plea arrangement. The record indicates that prior to the trial date, defense counsel obtained complete discovery. In addition, defense counsel filed -12- motions pertinent to appellant's defense in a timely fashion. Finally, Mr. Soukup, another attorney from the Public Defender's Office, who was familiar with the facts of the case, sat with appellant's defense counsel throughout the duration of the trial. The record fails to substantiate appellant's allegation that defense counsel's performance during trial was deficient because it fell below an objective standard of representation. The four witnesses called by the state, Ms. Davis, the victim, Mr. Murphy, the owner of M and M Appliance, Detective Jackson, and Officer Thomas, were effectively questioned during cross-examination by defense counsel. Given the aforementioned, appellant has not shown that there is a reasonable probability that, but for counsel's error, the outcome would have been different. Next appellant argues he received ineffective assistance of counsel because his defense counsel failed to file a timely notice for alibi pursuant to Crim.R. 12.1. Appellant maintains as a result of counsel's deficient performance, the trial court refused to permit defense counsel the opportunity to present any evidence of appellant's alibi on the alleged day and time of the incident. We disagree. Pursuant to Crim.R. 12.1, a party must file a written notice with the trial court at least seven days prior to the trial. Furthermore, the rule provides that "[i]f the defendant fails to file such written notice, the court may exclude evidence offered by the defendant for the purpose of proving such alibi, unless the court determines that in the interest of justice such evidence -13- should be admitted." The Ohio courts have generally construed Crim.R. 12.1 liberally and have not applied it where there is an excusable and demonstratable showing of mere negligence or where there is good cause shown. State v. Smith (1985), 17 Ohio St.3d 98. In the instant case, appellant's counsel informed the trial court that she had just been made aware that appellant's alibi witness, Ms. Terri Reese, was sitting in the back of the court room. The trial court denied appellant's counsel's request to call an alibi witness, citing Crim.R. 12.1. However, appellant's defense called Ms. Terri Reese as a witness for the defense, and she testified. Appellant has not proven that defense counsel's performance fell below an objective standard of performance. More importantly, appellant has failed to substantiate that there is a reasonable probability that, but for defense counsel's error, the outcome of appellant's trial would have been different. Accordingly, appellant's first assignment of error is overruled. III. In the second assignment of error, appellant charges the trial court abused its discretion by improperly permitting the prosecutor to question appellant about an eighteen-year-old conviction, without any written notice to the defense, and failed to specifically instruct the jury on the limited use of the appellant's prior conviction under Evid. 609(B). -14- Appellant maintains that the introduction of his eighteen- year-old conviction was improper for two reasons. First, appellant maintains that the trial court did not weigh the probative value of his eighteen-year-old conviction for robbery against the prejudicial effect of the conviction, and as a result, he was denied a fair trial. Second, appellant asserts that the state violated Evid.R. 609(B) by failing to provide adequate written notice to defense counsel concerning its intention to introduce the eighteen-year-old conviction. Appellee, on the other hand, maintains that it was permitted to introduce the eighteen-year-old conviction to impeach appellant's credibility, because appellant misrepresented the extent of his criminal record to the jury when he testified on direct examination. The state Appellee relies on State v. Campbell (1983), 13 Ohio App.3d 338, for the proposition that once the direct examination deals with the subject of the defendant's criminal record, the prosecution is entitled to use whatever material it has available dealing with the defendant's criminal record in order to impeach defendant. In the criminal context, an abuse of discretion involves more than an error of law or judgment; it implies the court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151. Appellant relies on the exchange between state and the court to support his argument that his eighteen year old criminal conviction was improperly introduced: -15- PROSECUTOR: Judge, I would normally not offer it, the period being more than ten years, but I didn't raise his prior conviction, judge. I would be limited as to what I could ask him under 609(B).... And I agree with the defense that, on the face, it is substantially prejudicial initially, but I didn't bring in the defendant's past criminal record. He has put before the jury the viewpoint that he has a limited criminal history when, in fact, that's not the case. So therefore--and that's the basis of my offering his prior conviction for robbery as a basis for-- THE COURT: I think that a most salient point. Had he not wanted to testify, no one would be able to mention his criminal record. Had he not testified to his criminal record, you would not be able to elicit a ten- year-old conviction. But he's testified and he can not mislead the jury by only giving them a portion of his criminal record and suggesting that he doesn't have any other conviction, so I'm going to permit you to utilize it on cross-examination. I'll note the defense's objection. Thank you. (Tr. 125-127). Turning to the rules of evidence, Evid.R. 609 provides for impeachment by evidence of the conviction of a crime. Evid.R. 609(A)(2) permits the evidence of prior convictions as a tool to attack defendant's credibility. Evid.R. 609(A)(2) states: Notwithstanding Evid.R. 403(A), but subject to Evid. R. 403(B), evidence that the accused has been convicted of a crime is admissable if the crime was punishable by death or imprisonment in excess of one year pursuant to the law under which the accused was convicted and if the court determines that the probative value of the evidence outweighs the danger of unfair prejudice, or confusion of the issues, or of misleading the jury. Evid.R. 609(B) imposes time limits on the use of that information. Evid.R. 609(B) provides: -16- (B) Time limit. Evidence of a conviction under this rule is not admissable if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement, or the termination of probation...unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein, is not admissable unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with the fair opportunity to contest the use of such evidence. Evid.R. 609, as amended in 1991, makes clear that Ohio trial judges have discretion to exclude prior convictions where the court determines that the probative value of the evidence outweighs the danger of unfair prejudice or confusion of the issues, or of misleading the jury. The trial judge possesses broad discretion under Evid.R. 609 to determine the admissibility of prior convictions for impeachment purposes. State v. Wright. (1990), 48 Ohio St.3d 5. As the Staff Notes point out "when the accused is impeached by a prior conviction under Evid.R. 609(A)(2) the unfair prejudice need only outweigh probative value. Furthermore, the trial court must take into account several factors when considering the admissibility of prior convictions such as: (1) the nature of the crime; (2) the recency of the prior conviction; (3) similarity between the crime for which there was a prior conviction and the crime charges; (4) the importance of defendant's testimony, and (5) centrality of the credibility issue. See Staff Note to July 1, 1991 Amendment to Evid.R. 609, and McCormick on Evidence (3 Ed. 1984) 94, fn. 9. -17- Pursuant to Evid.R. 609, a prior conviction more than ten years old is inadmissable, unless a court makes a determination that the probative value of the conviction outweighs the prejudicial effects of its admission. State v. Fluellen (1993), 88 Ohio App.3d 18. In the instant case, prior to cross-examination, counsel at a side bar discussed the propriety of introducing appellant's eighteen-year-old conviction. The state indicated to the trial judge that it wished to impeach appellant's credibility by using appellant's eighteen-year-old conviction for robbery. The state conceded that the old conviction was "substantially prejudicial initially." The trial court permitted the introduction of the prior conviction and reasoned that if appellant testified, he was open to attacks on his credibility and the prior conviction related to his credibility. When this court reads Evid.R. 609(B), we conclude that any conviction over ten years old must be carefully examined and weighed prior to admitting it. Additionally, counsel is directed by Evid.R. 609(B) to provide adequate written notice of its intent to use a prior conviction more than ten years old. Here, the state failed to give adequate written notice to appellant's defense counsel. Based on the foregoing, we conclude that the trial court abused its discretion when it permitted the state to introduce appellant's eighteen-year-old prior conviction. However, we find that the introduction of appellant's conviction to be harmless -18- error pursuant to Crim.R. 52(A). State v. Lytle (1976), 8 Ohio St.3d 391; State v. Brown (1992), 65 Ohio St.3d 483. Turning to appellant's second argument, appellant claims that the trial court abused its discretion by not complying with Crim.R. 30, by not providing the jury with cautionary instructions on the limited use of appellant's prior convictions under Evid.R. 609(B). We disagree. Crim. R.30 provides; (A) Instructions; error; record. At the close of evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. Copies shall be furnished to all other parties at the time of making such requests. The court shall inform counsel of its proposed action on the requests prior to counsel's argument to the jury and shall give the jury complete instructions after the arguments are completed. The court also may give some or all of its instructions to the jury prior to the counsel's arguments. The court need not reduce its instructions to writing. *** (B) Cautionary instructions. At the commencement and during the course of the trial, the court may give the jury cautionary and other instructions of law relating to trial procedure, credibility and weight of the evidence, and the duty and function of the jury and may acquaint the jury generally with the nature of the case. Action by the trial court pursuant to Crim.R. 30(B) is discretionary and should not be disturbed on review unless the court abuses it discretion. State v. Frost (1984), 14 Ohio App.3d 320. Here, appellant's counsel failed to request cautionary instructions to the jury. Pursuant to Civ.R. 30(A), the issue was -19- not preserved for appeal unless, but for the error, the result of the trial clearly would have been otherwise. State v. Underwood (1983), 3 Ohio St.3d 12. Accordingly, appellant's assignment of error is overruled. IV. In appellant's third assignment of error, appellant argues his conviction is against the manifest weight of the evidence. We disagree. To determine whether the conviction is against the manifest weight of the evidence, this court follows the standard of review set forth as follows: 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. Here, the evidence presented by the state supported appellant's conviction of felonious assault. The state set forth evidence demonstrating that appellant knowingly caused or attempted to cause serious physical harm to the victim, when he hit her with a baseball bat. First, the state presented evidence showing that appellant knew the victim before the attack. Second, the jury had before it evidence showing that appellant's motive for the attack stemmed from a prior altercation between appellant and the victim. -20- Third, the jury was presented with evidence showing that appellant possessed a deadly weapon, the baseball bat, and used this weapon in an attempt to cause serious harm to the victim. In addition, an unbiased witness positively identified appellant, as the assailant, who chased the victim. The jury was capable of weighing the credibility of the witnesses. A review of the entire record demonstrates that the trier of fact did not lose its way and create a manifest miscarriage of justice by convicting appellant of felonious assault. Appellant's conviction was supported by substantial, credible evidence upon which the jury could reasonably conclude that appellant was guilty of felonious assault. Accordingly, appellant's assignment of error is not well taken. Judgment of the trial court is affirmed. -21- It is ordered that appellee recover of appellant 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 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 A. SPELLACY, P.J., AND ANN DYKE, J., CONCUR IN JUDGMENT ONLY. JUDGE SARA J. HARPER 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 .