COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68713 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION MARIO SALWAN : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 30, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-313,796 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor MICHAEL B. TELEP, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: THOMAS G. LONGO Attorney at Law 28001 Chagrin Boulevard, #300 Cleveland, Ohio 44122 BLAISE C. GIUSTO Attorney at Law 614 Superior Avenue, N.W. #1350 Cleveland, Ohio 44113-1384 TIMOTHY E. McMONAGLE, J.: Defendant-appellant Mario Salwan appeals from his conviction following a bench trial for felonious assault in violation of R.C. 2903.11. We find no merit to the appeal and affirm the judgment of the trial court. This case arose out of events transpiring on May 14, 1994, when Matthew Van DeMotter was feloniously assaulted near Meadow- brook Road in Cleveland Heights, Ohio. The state's testimony is summarized below. On May 13, 1994, Matthew Van DeMotter and his girlfriend, Rebecca Rene King, went out for the evening with another couple, William Butler and Melissa Vertes. At approximately 1:30 a.m., the group went to Mama's Boy, a fast-food, carry-out restaurant, to purchase a late night snack. As they were about to enter Mama's Boy, a group of approximately six males between the ages of seventeen to twenty was leaving the establishment. Butler held the door open for the males, and his shoulder brushed up against one of the males. The male shoved Butler and said, "What's your problem?" Butler responded that he did not have a problem and asked the male what his problem was. Believing the male wanted to start a fight, Butler went inside Mama's Boy to escape the male and rejoin his friends. - 3 - While the four waited for their food order, the male who shoved Butler came back into Mama's Boy and asked Butler why he tried to knock him over. Butler could see the male's friends standing outside the front window watching them converse. Butler told the male he did not mean to brush him and that he was sorry. The male then left Mama's Boy, telling Butler, "You'll be sorry." When their food order was ready, Van DeMotter, King, Butler and Vertes exited Mama's Boy. As they made their way past the males, the males yelled unrecognizable comments at them. The group walked down the street to get out sight of the males and sat down on a step to eat their food. A few minutes later, three of the males from the group walked up to where they were sitting. One of the males, described as tall, thin and having blonde hair, was yelling at Butler, asking him why he pushed his friend. Butler told Van DeMotter, King and Vertes to stay where they were, and he stood up to try to negoti- ate peace with the male. Van DeMotter then stood up and started talking to another male from the group, telling the male that they did not want any problems. Upon observing Van DeMotter and this other male sizing one another up, Butler told Van DeMotter that they should leave. After he said this, the third male, who wore his hair in a pony tail, punched Van DeMotter. Someone then struck Butler from behind, and a fight broke out. The fight ceased after a few minutes when someone yelled, "It's the police," and the males took off running. - 4 - A few minutes later, however, the assault resumed when the police were out of sight and Butler and Van DeMotter were attacked from behind. Butler was jumped by the male whom he first encoun- tered in the doorway at Mama's Boy. Van DeMotter was jumped by the appellant and then held by another male while the appellant punched and kicked him. King tried to stop the appellant's attack on Van DeMotter by grabbing and holding onto his back. After she grabbed his crotch, he threw her onto the ground. The appellant then ran over to where Butler was and, at the request of Vertes, told the male who was assaulting Butler that Butler had enough and that they should leave. The appellant and two other males then took off running in a northerly direction. When the police arrived at the scene, they were told in which direction the assailants went. Approximately one minute later, the appellant and the two other males were observed by a police officer running out of a back yard one block north of Meadowbrook. They told the police that they had just been the victims of an assault. They were then transported back to the scene for medical attention. Upon their return to the scene, Vertes told the police that these men had been involved in the incident. Van DeMotter sustained numerous injuries as a result of the events of May 14, 1994, including bruised ribs, nerve damage in his upper cheek and gums, loose teeth, a large cut over his eye which required seven stitches, and several abrasions. - 5 - At the conclusion of the state's case, appellant orally moved for a Crim.R. 29 judgment of acquittal and for suppression of the pre-trial identification of appellant, both of which were over- ruled by the court. The defense then presented the testimony of Steve Bittence, appellant's friend and former college roommate, who testified that on May 14, 1994, he, the appellant, Frank Sarka and several other friends were out at a nightclub located in Cleveland Heights, Ohio. When the nightclub closed, the group decided to get something to eat at Chuck's Diner, a nearby restaurant. Bittence said that as they walked toward the restaurant, they noticed a group of eight to ten people who appeared to be involved in some form of a conflict. He said that Sarka recognized one of the people involved in the apparent conflict, Karl Skettle, and called out to him "Karl, is that you?" He said they then walked up to the group and that Van DeMotter, for no reason, punched Sarka in the mouth, causing him to fall to the ground. He said Van DeMotter then jumped on Sarka and punched him several times. He said he managed to pull Van DeMotter off Sarka, but it was too late -- a fight broke out. Bittence additionally stated that he did not see appellant strike or kick anyone during the fight. According to Bittence, the fight ended when he saw the appellant help Sarka up off the ground and leave the area. He followed them one block north and observed the appellant flagging down a police car. Appellant told the officer that they had just - 6 - been assaulted. The officer then transported them back to the scene for medical attention. The judge found appellant guilty of one count of felonious assault against Van DeMotter. The court sentenced appellant to a term of incarceration of three to fifteen years, suspended the sentence and placed appellant on two years probation with condi- tions. We will address the assignments of error in the order asserted. ASSIGNMENT OF ERROR NO. I THE VERDICT OF THE COURT IS CLEARLY AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant's first assignment of error addresses the weight of the state's evidence. In determining if a conviction is against the manifest weight of the evidence, an 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 impeached and whether a witness's - 7 - testimony was self-serving. State v. Mattison (1985), 23 Ohio App.3d 10. A reviewing court will not reverse a conviction where there is substantial competent and credible evidence upon which a factfinder could conclude that all of the elements of the offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169; Martin, supra. Appellant submits that the weight of the evidence supports his theory of the case that he did not knowingly cause serious physical harm to Van DeMotter and that he acted in the defense of others and that, therefore, his conviction must be reversed and a new trial ordered. Appellant points to the following alleged inconsistencies and voids in the state's evidence to support his contention that the trial court lost its way in reaching its ver-dict: the inability of Van DeMotter to identify the person who threw the first punch at him; the failure of the state's evidence to establish appellant's identity as the assailant of Van DeMotter; and the testimony of Steve Bittence, Frank Sarka and Karl Skettle that Van DeMotter attacked Sarka and that the appellant came to the aid of Mr. Sarka. Our review of the record reveals that there are inconsisten- cies between the testimonies of Van DeMotter, King, Butler and Vertes regarding whether appellant or someone else threw the first punch at Van DeMotter. Van DeMotter and King testified that appellant threw the first punch, whereas Butler and Vertes testi- fied that someone other than the appellant threw the first punch at - 8 - Van DeMotter. Despite this inconsistency, the factfinder did not lose its way in finding the testimony of these witnesses credible as to the essential elements of felonious assault. The credibility of witnesses is primarily for the trier of facts. State v. DeHass (1967), 10 Ohio St.2d 230. Examining the Mattison factors, the testimony of the prosecution witnesses was, for the most part, consistent and not impeached. The four eyewitnesses testified that after the initial punch, the appellant repeatedly kicked and punched Van DeMotter as he lay on the ground. Sarka, Skettle and Bittence, who testified to the contrary, each had an interest in testifying. Moreover, Skettle was impeached by a prior statement to the police which, by inference, implicated the appellant, Sarka and Bittence. Thus, in applying the appropriate standard of review, we find that there was substantial, competent and credible evidence from which the jury could find all of the elements of the offense of felonious assault proven beyond a reasonable doubt. The first assignment of error is overruled. - 9 - ASSIGNMENT OF ERROR NO. II THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY NOT SUPPRESSING THE PRE-TRIAL IDENTIFICATION OF APPELLANT WHICH RESULTED IN AN IMPERMISSIBLE PHOTO ARRAY. ASSIGNMENT OF ERROR NO. III THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY NOT STRIKING THE IN-COURT IDEN- TIFICATION OF APPELLANT IN AN IMPERMISSIBLE PHOTO ARRAY. Appellant's second and third assignments of error will be addressed together. Appellant argues that the trial court com- mitted reversible error in overruling his motion to suppress the identification testimony of Van DeMotter and King. Appellant contends that the identification procedure used by the police in obtaining an identification of appellant by Van DeMotter and King was unduly suggestive and impermissibly tainted their subsequent testimony identifying appellant as the person who assaulted Van DeMotter. At the outset, we note that the appellant failed to move to suppress any identification testimony prior to trial as required by Crim.R. 12; he waited until the close of the state's evidence to raise the issue for the first time. Moreover, appellant failed to timely object to the in-court eyewitness identification testimony. See Evid.R. 103(A)(1); State v. Gabriel (Dec. 31, 1987), Cuyahoga App. No. 53141, unreported (appellant waived assertion on appeal that eyewitness identification testimony was inadmissible because of flawed pretrial identification procedure where he failed to - 10 - object at the time eyewitness testimony was entered); State v. Crosby (Mar. 21, 1991), Cuyahoga App. No. 58168, unreported. Consequently, our review of these issues will be limited to a determination of whether plain error occurred. Crim.R. 52(B). The law is clear that unreliable identification testimony is excludable under the due process standards of the United States Constitution. Where, under the totality of the circumstances, a confronta- tion is unnecessarily suggestive and conducive to irreparable misidentification, a due process violation is articulated. Stovall v. Denno (1967), 388 U.S. 293, 302. No due process violation will be found, however, where an identification does not stem from an impermissibly suggestive confrontation but is, instead, the result of observations at the time of the crime. Coleman v. Alabama (1970), 399 U.S. 1, 5. In State v. Moody (1978), 55 Ohio St.2d 64, 67, the Ohio Supreme Court held that: "Although the identification procedure may have notable flaws, this factor does not, per se, preclude the admissibility of the subsequent in-court identification. See State v. Barker (1978), 53 Ohio St.2d 135, 142-143. As noted in Manson v. Brathwaite (1977), 432 U.S. 98, 53 L.Ed.2d 140, 154, '*** reliability is the linchpin in determining the admissibility of identification testimony ***.' The factors affecting reliability include '*** the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the crimi-nal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between - 11 - the crime and the confrontation.' Neil v. Biggers (1972), 409 U.S. 188, 199. Thus, although the identification procedure is suggestive, so long as the challenged identification itself is reliable, it is admissible. Manson, supra, at 151." Thus, we apply the foregoing factors to ascertain whether the identification at issue violated defendant's right to due process or had an independent origin. Accord State v. Merrill (1984), 22 Ohio App.3d 119, 121-122. In this case, the record reveals that there was sufficient independent opportunity for Van DeMotter and King, the two wit- nesses who identified the appellant at trial, to view the appel- lant. Van DeMotter testified, as follows: *** [I] remember feeling punches coming from the top and doing my best to look up to and see who it was and just kept getting kicked and punched, kicked and punched. And I didn't think he was going to stop kicking and punch- ing me. I was doing my best to scream or do whatever I could to stop, stop the kicking and punches. And all of a sudden, he stopped, looked up and started to leave. And that's when I kind of like picked myself up, sat up and looked at who it was ***. Van DeMotter further testified that his in-court identification of appellant was independent of any of the photographs he had been shown by the police. In addition, King testified that she ob- served the entire assault of Van DeMotter by the appellant and that she even jumped on the appellant's back in an effort to stop him. King said she got a good look at appellant's face after she grabbed his crotch and he let go of her. - 12 - Based upon the foregoing evidence, even if we assume, argu- endo, that the photo array was unduly suggestive, we are not per- suaded that there was a substantial likelihood of irreparable misidentification. Consequently, we discern no error, plain or otherwise, in the admission of the identification testimony. Accordingly, the second and third assignments of error are overruled. ASSIGNMENT OF ERROR NO. IV THE TRIAL COURT ERRED BY FAILING TO CONSIDER THE ISSUE OF THE DEFENSE OF OTHERS BASED ON THE EVIDENCE BEFORE IT. In his fourth assignment of error, the appellant argues that the trial court erred by failing to consider the defense of others. He argues that he took action only in the defense of Sarka. The subject of the defense of third parties who are not in a special relationship to the intervenor was addressed in State v. Wenger (1979), 58 Ohio St.2d 336. Therein, the court stated: *** one who intervenes to help a stranger stands in the shoes of the person whom he is aiding, and if the person aided is the one at fault, then the intervenor is not justified in his use of force and is guilty of an assault. This court, in State v. Horton (Mar. 26, 1992), Cuyahoga App. No. 60393, unreported, held that a defendant is entitled to a jury instruction on the defense of others if he introduces sufficient evidence which, if believed, raises a question in the minds of reasonable persons pertaining to such issues. See State v. - 13 - Melchoir (1978), 56 Ohio St.2d 15. The defendant need only pro- vide evidence of a nature and quality sufficient to raise the defense rather than prove the applicability of it by a preponder- ance of the evidence. State v. Robinson (1976), 47 Ohio St.2d 103. In State v. Kennedy (Feb. 20, 1992), Cuyahoga App. No. 59794, unreported, we held that "*** in order for a trial court to in- struct the jury on the issue of defense of others, the party seek- ing the defense must demonstrate by the preponderance of the evi- dence that the party defended is himself not at fault." In this case, the appellant did not specifically request that the defense of others be considered by the trial court. Indeed, the defense maintained by appellant at trial was that he did not punch or kick anyone and that this was a case of mistaken identi- ty. Thus, the appellant failed to present any evidence which, if believed, raised a question on the applicability of the defense of others by a preponderance of the evidence. State v. Melchoir, supra. Nevertheless, the record indicates that the court did consid- er who the aggressor in the affray was and found it was not Van DeMotter. The court also found that the appellant, Sarka and Bittence "interjected themselves into this situation." According- ly, the appellant's fourth assignment of error is overruled. - 14 - ASSIGNMENT OF ERROR NO. V THE TRIAL COURT ERRED IN NOT CONSIDERING THE LESSER OFFENSE OF AGGRAVATED ASSAULT AND ASSAULT. Appellant's fifth assignment of error claims that the trial court erred by failing to consider the inferior degree offenses of aggravated assault and assault. According to appellant, there was evidence that serious provocation by Van DeMotter induced extreme stress and incited appellant into using deadly force. Appellant argues that under these circumstances, the evidence required the trial court to consider the inferior offenses. See State v. Deem (1988), 40 Ohio St.3d 205, 210-211. It is true that where a defendant charged with felonious assault presents sufficient evidence of serious provocation, an instruction on aggravated assault must be given to a jury. (Em- phasis added.) Deem, supra, paragraph four of the syllabus. However, the case at bar was a trial to the bench, without the benefit of a jury. The record demonstrates that the trial court heard all of the evidence, including appellant's evidence of serious provocation. There is no indication that the trial court, as the factfinder, did not consider the alleged provocation and decide it was insufficient to reduce the crime from felonious assault to aggravated assault. State v. Leibold (Mar. 11, 1993), Cuyahoga App. No. 62071, unreported; State v. Williams (June 1, 1993), Butler App. No. CA92- 07-133, unreported. Indeed, the court, sua sponte, amended the - 15 - charge in count one, which was felonious assault, to simple assault. In addition, appellant's co-defendant was found guilty of the reduced charge of assault. Accordingly, the fifth assignment of error is overruled. Judgment affirmed. - 16 - 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. ANN DYKE, 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, .