COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69079 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION JAMES STANDBERRY : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION FEBRUARY 15, 1996 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. 317641 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES CHARLES MORGAN, JR. Cuyahoga County Prosecutor 11510 Buckeye Road JOHN F. CORRIGAN, Assistant Cleveland, Ohio 44104 Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, P.J., Defendant-appellant James Standberry appeals from his convictions following a jury trial for felonious assault (R.C. 2903.11) and kidnapping (R.C. 2905.01) arising out of an episode with his former wife, Sharon Standberry. Defendant claims the trial court erred in not admonishing the jury to refrain from discussing the case during the trial and in denying the defendant's motion for acquittal. Defendant also claims he was prejudiced by ineffective assistance of counsel and the verdicts were against the manifest weight of the evidence. We find no prejudicial error and affirm. The events leading to the charges against defendant Standberry occurred on November 4, 1994. The victim of the felonious assault and kidnapping was Sharon Standberry, the defendant's ex-wife. They had been divorced since 1985. The couple had two sons, Michael and James Standberry. Ms. Standberry has two other, older sons by two different fathers. On the night in question, Ms. Standberry was walking home from a friend's house in her neighborhood around midnight. She was escorted by a friend of her son, Albert White. Defendant suddenly drove up and offered a ride. Ms. Standberry motioned Albert White to accompany her. The two got into defendant's car and drove off. Defendant spoke to the victim in a derogatory fashion as he drove. Defendant ran two errands. First, he drove to the home of Matthew Woods, defendant's brother-in-law. When he returned to the - 3 - car accompanied by a woman, he dropped her off a couple of houses down the street. He next drove to his home and obtained a bottle of vodka. Both defendant and Albert White took drinks of the vodka. Defendant dropped White off telling him, "Man, she will be all right." Defendant drove with the victim to the area of E. 93rd and Cumberland in Cleveland. He parked the car and turned on the victim, beating her. He threatened, "smacked" and "punched" Ms. Standberry. Ms. Standberry feigned sickness. Getting out of the car, Ms. Standberry again feigned sickness and then ran. Defendant quickly caught her and beat her to the ground. She screamed for help. Defendant dragged her by the hair back to the car. Defendant again drove the victim around. He drove to an abandoned field at E. 79th and Holton Avenue. He ordered the victim out of the car. He threatened to kill her and knocked her to the ground. After beating the victim, defendant went back to the car. Ms. Standberry ran towards a passing motorist yelling, "Help me! Please stop!" Defendant intervened as the car appeared to be stopping, yelling "Get your ass out of the way;" "This is my wife." He again beat the victim to the ground, grabbed her by the hair and pulled her into the field. At that point, defendant pulled out a box cutter knife stating, "Bitch, I'll slice your throat." Holding the knife to her throat, defendant told her he would leave her carcass to the - 4 - wolves. The victim testified to her state of terror; she thought defendant had gone crazy; she began praying the Lord's Prayer out loud; just as she finished, a spotlight came and the police arrived and pulled defendant off of her. Ms. Standberry testified she was treated at St. Luke's Hospital for a bruised lip which was bleeding, contusions, sprains and strains. The hospital also collected loose hair from her head. The medical records and hair were admitted into evidence. Ms. Standberry identified the box cutter knife the Cleveland police officers recovered on the scene. She described the knife as the blade open and pressed against her throat with the sharp edge turned away. Two Cleveland policemen on patrol received a broadcast at approximately 6:20 a.m. Within minutes, they spotted the pair in the field with aid of a spotlight. Defendant had the victim pinned on her back. The officers approached and ordered defendant to get up. Defendant did not move. The police separated the parties and placed defendant under arrest. The police testimony further established that a razor knife was found, blade open, approximately five feet from where the parties were found. Ms. Standberry identified the knife at trial. Defendant's wallet was also found on the ground nearby. The police testified that Ms. Standberry looked beaten; her face was bruised and her lip was cut and bleeding. - 5 - The police found Ms. Standberry extremely upset and crying. She kept thanking the police. Ms. Standberry expressed a fear of defendant, telling them that defendant would kill her. It took the officers one-half hour to calm down the victim and get a coherent statement. The police took Ms. Standberry to the hospital and gathered as evidence the loose hair collected by hospital personnel. We will address the assignments of error in the order asserted. I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING TO PROVIDE A JURY ADMONITION IMMEDIATELY FOLLOWING COUNSEL'S OPENING STATEMENTS AND AFTER THE CLOSE OF THE STATE'S CASE IN VIOLATION OF O.R.C. 2945.34 AS WELL AS DEFENDANT-APPELLANT'S SIXTH AMENDMENT RIGHT TO A FAIR AND IMPARTIAL JURY. The claim that the jury was not instructed pursuant to Crim. R. 24(G)(2)(b) and R.C. 2945.34 prior to the first jury separation after opening arguments is not supported by the partial record before us. The court admonished the jury not to discuss the case at various times during the trial. (Tr. 91, 145, 156, 189). The first admonition in the transcript reflects the jury had been previously instructed: "Please remember the Court's admonition not to discuss this case ***." Defendant has not provided a complete transcript, including the voir dire, where the State contends that the jury was given many preliminary instructions by the court. We are required to conclude, in the absence of a complete transcript - 6 - exemplifying the asserted error, that the jury must have been properly instructed prior to the opening arguments. In the absence of a complete record, a reviewing court has no choice but to presume regularity of the proceedings below. Isbell v. Kaiser Found. Health Plan (1993), 85 Ohio App.3d 313, 316; State v. Roberts (1991), 66 Ohio App.3d 654, 657; State v. Evans (March 3, 1994), Cuyahoga App. Nos. 64803/64804, unreported at 8. Assignment of Error I 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 KIDNAPPING. IV. THE VERDICT OF THE JURY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND MUST BE REVERSED. The standard of review with regard to the sufficiency of evidence is set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus: Pursuant to Criminal Rule 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. See, also, State v. Apanovitch (1987), 33 Ohio St.3d 19, 23; State v. Davis (1988), 49 Ohio App.3d 109, 113. Bridgeman must be interpreted in light of the sufficiency test outlined in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, in which the Ohio Supreme Court held: - 7 - 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. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) Cited and followed in State v. Garner (1995), 74 Ohio St.3d 49, 60. When the argument is made that the conviction was against the manifest weight of the evidence, the appellate court is obliged to consider the weight of the evidence not its mere legal sufficiency. The defendant has a heavy burden in overcoming the fact finder's verdict. As this Court has stated: The weight to be given evidence and the credibility of witnesses are determinations to be made by the triers of fact. State v. Thomas (1982), 70 Ohio St.2d 79, 24 O.O.3d 150, 434 N.E.2d 1356. If there was sufficient evidence for the triers of fact to find a defendant guilty beyond a reasonable doubt this court will not reverse a guilty verdict based on manifest weight of the evidence. State v. Brown (1988), 38 Ohio St.3d 305, 528 N.E.2d 523, paragraph four of the syllabus, certiorari denied (1989), 489 U.S. 1040, 109 S.Ct. 1177, 103 L.Ed.2d 239. State v. Rios (1991), 75 Ohio App.3d 288, 291. Also, see, State v. Jenks (1991), 61 Ohio St.3d 259, 273. The testimony of Ms. Standberry, with the corroboration provided by the police officers and the medical records, provides - 8 - sufficient evidence for the fact finder to find the defendant guilty of the crimes charged. The act of threatening the victim with a deadly weapon, indicating an intention to use the weapon, is sufficient evidence to establish felonious assault, as actual physical harm is not a necessary element of felonious assault. Rather, an "attempt" to cause physical harm with a deadly weapon is sufficient to constitute felonious assault under R.C. 2903.11(A)(2). State v. Brown (1994), 97 Ohio App.3d 293, 299; State v. Zackery (1987), 31 Ohio App.3d 264, 265. In the case at bar, defendant, knife in hand, threatened to slice the victim's throat and leave her to the wolves. Defendant was terrified and in fear of her life. These activities were only interrupted by the arrival of the police. The evidence was also sufficient to establish the crime of kidnapping. Ms. Standberry was repeatedly restrained of her liberty, being driven around aimlessly against her will and hauled into a deserted field until the Cleveland police arrived on the scene. The State was only required to prove that the restraint was for the purpose of causing serious physical harm or with a purpose to terrorize. R.C. 2905.01(A)(2)(3). The evidence was sufficient to establish both. What we have stated previously is also sufficient to establish that the verdicts were not against the manifest weight of the evidence. - 9 - Defendant's Assignment of Error II and IV are 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. Defendant first claims counsel was ineffective for not bringing to the court's attention the failure to admonish the jury upon separation. We have previously found no demonstrable error in this regard. We must assume that the jury was appropriately instructed, and there was no basis for claiming counsel was ineffective on this score. Defendant also claims trial counsel failed to effectively impeach the victim's testimony. Defense counsel did impeach the victim regarding her probation violation warrant and the prosecution did question her about her previous guilty plea to a misdemeanor theft offense. Therefore, the jury was adequately apprised of the victim's prior criminal history. (Tr. 85-86, 88). Defendant also raises allegations made in his motion for a new trial. The failure to raise these matters in defendant's notice of appeal precludes us from reviewing same. The court has previously held that it is without jurisdiction to review a judgment or order not designated in appellant's notice of appeal. Parks v. Baltimore & Ohio R.R. (1991), 77 Ohio App.3d 426, 428; Schloss v. McGinness (1984), 16 Ohio App.3d 90, 97-98; Chotkevys v. Seman (Sept. 21, 1995), Cuyahoga App. No. 67812, unreported. Finally, defendant alleges ineffective assistance of defense counsel for failing to seek a continuance. This claim assumes - 10 - trial counsel needed a continuance, but points to no facts showing it was necessary or that any prejudice resulted. The case was set for trial on March 27, 1995. The record does not suggest counsel was not ready to proceed on March 31. Assignment of error III is overruled. Judgment 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 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. DYKE, J., and TIMOTHY E. McMONAGLE, J., CONCUR. JAMES M. PORTER PRESIDING 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 .