COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69309 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION ROLAND MILLER : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 27, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-317,700 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor RONALD JAMES, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JAMES A. DRAPER Cuyahoga County Public Defender DANIEL SCULLY, Assistant 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 TIMOTHY E. McMONAGLE, J.: Defendant-appellant, Roland Miller (hereinafter "appellant"), and one other individual not a party to this appeal, Dragon Djurovic, were charged in a one-count indictment with felonious assault in violation of R.C. 2903.11. The indictment included a violence specification; to wit: that during the commission of the offense, the offender caused physical harm to Bryce Castillo. The appellant and Djurovic were tried separately. The jury found appellant guilty of felonious assault but found him not guilty of the violence specification. The appellant received a sentence of eight to fifteen years of incarceration at the Lorain Correctional Institution. He now appeals from his conviction, assigning for 1 this court's review the following purported errors: I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ENTERING A JUDGMENT OF CONVICTION FOR FELONIOUS ASSAULT WHEN THE JURY MADE A SPECIFIC FINDING OF FACT THAT THE APPELLANT DID NOT CAUSE PHYSICAL HARM TO THE VICTIM AND THE APPELLANT WAS DENIED DUE PROCESS OF LAW AS GUARANTEED BY THE CONSTITUTION OF THE UNITED STATES AND OF OHIO WHEN THE TRIAL COURT OVERRULED HIS 1 Appellant's third through fifth assignments of error are argued pro se. - 3 - MOTION FOR RELIEF FROM INCONSISTENT VER- DICTS. II. THE APPELLANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THUS, HE WAS DENIED DUE PROCESS OF LAW AS GUARANTEED BY THE CONSTITUTIONS OF THE UNITED STATES AND OF OHIO. III. WHETHER THE TRIAL COURT ABUSED ITS DIS- CRETION BY OVERRULING DEFENDANT'S MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS IN VIOLATION OF RIGHTS PROTECTED BY AND THROUGH THE SIXTH AND FOURTEENTH AMEND- MENTS TO THE UNITED STATES CONSTITUTION. IV. WHETHER THE DEFENDANT WAS DENIED DUE PROCESS OF LAW AS GUARANTEED BY AND THROUGH THE FOURTEENTH AMENDMENT WHERE THE TRIAL COURT FAILED TO STATE ITS ESSENTIAL FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF ITS ORDER OVERRULING DEFENDANT'S MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS, PURSUANT TO THE OHIO RULES OF CRIMINAL PROCEDURE, RULE 12(E). V. WHETHER DEFENDANT/APPELLANT WAS DENIED DUE PROCESS OF LAW WHEREIN THE TRIAL COURT FAILED TO ACCORD DEFENDANT A FULL AND FAIR FACT FINDING HEARING ***. Based on the reasons set forth below, we find no error and affirm the judgment of the trial court. I. The appellant's conviction stems from an incident occurring at the Silver Bar located in Cleveland, Ohio. Evidence adduced during the state's case reveals the following facts: On September 23, 1994, at approximately 1:45 a.m., Silvia Ahmetovic was tending bar at the Silver Bar. Seated at the bar was Vesna Marincil, who was waiting for her friend, Bryce Castillo, the victim in this case. - 4 - At approximately 2:00 a.m., Castillo entered the bar. He chatted briefly with the two women and then went to the men's bathroom. The appellant and Djurovic entered the bar right after Castillo and followed Castillo into the bathroom. The appellant stood watch by the door while Djurovic, who lived down the street from Castillo, accused Castillo of selling drugs from his home. Castillo denied the accusation. After a further exchange of words, Djurovic struck Castillo twice with his fists. Castillo ran out of the men's room. Djurovic followed Castillo out of the bathroom and struck him a third time in the back of his head. Castillo fell but managed to pick himself up. Djurovic then picked a pool stick up off of the pool table and struck Castillo over his head. When Castillo tried to stand up, the appellant jumped on his back, and the two men fell to the floor. As they lay on the floor, Djurovic kicked Castillo in the face several times. Ms. Marincil managed to get the appellant off Castillo by pulling his hair. The appellant and Djurovic then left the bar together. Castillo was taken to the hospital, where he was treated for injuries to his eyes (he sustained a fracture in the bone behind his eye) and received seven stitches in the back of his head. A week after the incident, Castillo had to undergo eye surgery to repair nerve damage caused by the assault. The defense theory of the case is that appellant did not punch or kick Castillo and that he did not act in complicity with or aid or abet Djurovic in his assault upon Castillo. To support this - 5 - theory, the appellant testified that he was at Tino's Bar when he received a telephone call from Marincil asking him to meet her for a drink at the Silver Bar. As the appellant was getting up to leave, Djurovic asked him where he was going. The appellant told him he was going to the Silver Bar to meet Marincil. Djurovic asked if he could come along, and the appellant agreed. Upon arriving at the Silver Bar, the appellant said he and Djurovic headed straight for the men's bathroom. Appellant said that when they entered the men's bathroom, Castillo was washing his hands at the sink. Appellant further said that while he was using the urinal, he heard Djurovic call Castillo a "mother f---er." He then turned and saw Djurovic smack and punch Castillo. He said Castillo ran out of the men's bathroom, and Djurovic chased Castillo and hit him in the back of the head. The appellant said when he finished using the urinal, he reentered the bar, where he saw Djurovic hit Castillo over the head with a pool stick. He said the force of the blow knocked Castillo into him, and the two of them fell down onto the floor. He said while he and Castillo lay on the ground grappling, Djurovic began kicking Castillo. He said Castillo refused to let go of him and, instead, used him as a human shield against Djurovic. II. - 6 - In his first assignment of error, appellant argues that his conviction for felonious assault violated due process principles because that conviction, coupled with his acquittal on the vio- lence specification, constitutes an inherent inconsistency between those verdicts. We do not agree. Felonious assault, by way of statutory definition, is classed as a second degree felony. The violence specification contained in the indictment is not required where the charge is an aggravated felony of the second degree. R.C. 2943.41; R.C. 2929.11. The specification only becomes relevant when a defendant is convicted of a fourth degree felony such as aggravated assault, which is a lesser included offense of the felony of the greater degree. The purpose, then, of including a violence specification with the felonious assault indictment is to put the defendant on notice that a conviction of aggravated assault as a lesser included offense could result in the possible imposition of an indefinite sentence. See State v. Valentine (1991), 77 Ohio App.3d 489, 492. However, in this case, the trial court did not instruct the jury on the lesser included offense of aggravated assault, a fourth degree felony. Therefore, it should not have permitted the jury to make any findings with regard to the violence specification which, without an instruction on a lesser included offense, was mere surplusage. Moreover, this fact aside, we do not believe that the ver- dicts are irreparably inconsistent. The trial court instructed the - 7 - jury that the appellant could be convicted as an accomplice or as an aider or abettor to the charged offense of felonious assault. A determination by the jury that the appellant acted either as an aider or abettor or as an accomplice is not inconsistent with a determination that he did not inflict the physical harm himself. See State v. Mapes (1985), 19 Ohio St.3d 108; State v. Woodson (1985), 24 Ohio App.3d 143; State v. Washington (Mar. 24, 1994), Cuyahoga App. No. 65007, unreported; State v. Harp (May 23, 1985), Franklin App. No. 84 AP-941, unreported. Rather, in acquitting the appellant of the violence specification, the jury apparently concluded that appellant did not cause physical harm to Castillo. Considering the state of the evidence before us, we are con- vinced that the jury did not lose its way in finding the appellant guilty of felonious assault while acquitting him of the violence 2 specification. See, State v. Beehive Ltd. Partnership (1993), 89 Ohio App.3d 718, 728-29. The evidence shows that the appellant and Djurovic watched Castillo enter the men's bathroom and that they then followed him into the bathroom together. Upon entering the bathroom, the appellant stood watch while Djurovic assaulted Castillo. There is testimony that indicates that after Djurovic hit Castillo over the head with the pool stick, the appellant jumped on Castillo's back and wrestled him to the floor. Based on 2 Although appellant raises this argument under his second assignment of error, for purposes of simplicity, it is addressed under his first assignment of error. - 8 - this evidence in the record, we cannot say that the jury lost its way in reaching its verdict. Appellant's first assignment of error is overruled. In his second assignment of error, appellant argues that the jury's verdict was against the manifest weight of the evidence. A verdict will not be reversed as against the manifest weight of the evidence unless the court, after reviewing the entire record, weighing the evidence and all reasonable inferences, and consider- ing the credibility of witnesses, finds that the jury clearly lost its way in resolving the conflicts in the evidence 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. The appellant argues that the weight of the evidence demon- strates overwhelmingly that he did not knowingly aid or abet Djurovic in causing serious physical harm to Castillo. Specifi- cally, the appellant argues that Ahmetovic's testimony that appellant jumped on Castillo's back after Djurovic struck him with the pool stick conflicts with the testimony of the other state witnesses and appellant's version of what transpired. Our review of the evidence fails to disclose a conflict between the state's witnesses on the involvement of the appellant in the felonious assault of Castillo. First, Castillo did not testify, as represented by the appellant, that he fell into the appellant and that that is how they ended up on the floor. In - 9 - fact, Castillo denied emphatically the appellant's version of the events. Castillo said that he was dazed from the blow to his head, but he clearly remembered that the appellant was standing behind him when he was struck with the pool stick and when he fell to the floor. Nor does the testimony of Marincil contradict that of Ahmetovic. Marincil testified that she did not see how the appellant and Castillo ended up on the floor because Ahmetovic was standing in front of her, blocking her view. Moreover, the fact that the appellant presented contradictory testimony about the circumstances of how he and Castillo ended up grappling on the floor does not, in and of itself, render Ahmetovic's testimony incredible or unbelievable. It is the responsibility of the jury to resolve the conflicts in the evidence. "The choice between credible witnesses and their conflicting testimony rests solely with the finder of fact and an appellate court may not substitute its own judgment for that of the finder of fact." State v. Callihan (1992), 80 Ohio App.3d 184, 192. We conclude that the jury did not lose its way in resolving the conflicting testimony. Accordingly, we overrule the appellant's second assignment of error. In his third assignment of error, the appellant argues that the trial court erred in overruling his motion to dismiss based upon a violation of his right to a speedy trial. Specifically, the appellant argues that he was entitled to a dismissal on speedy - 10 - trial grounds because the triple-count provisions of R.C. 2945.71(E) are applicable to a defendant held in jail under a valid parole holder. In support, appellant relies on State v. Martin (Nov. 19, 1992), Cuyahoga App. No. 61437, unreported. This court has found that State v. Brown (1992), 64 Ohio St.3d 476, is dispositive of this issue and has further held that the Ohio Supreme Court's holding in Brown clearly overruled, by implication, this court's decision in Martin. State v. Mann (Nov. 4, 1993), Cuyahoga App. No. 63903, unreported. In so holding, this court stated: The existence of a valid parole holder pre- vents application of the triple-count provi- sions of R.C. 2945.71(E). State v. Brown (1992), 64 Ohio St.3d 476, 479; State v. Cook (1992), 65 Ohio St.3d 516, 518; see, also, State v. Martin (1978), 56 Ohio St.2d 207. R.C. 2945.71(E) is applicable to only those defendants held in jail in lieu of bail solely on the pending charge. Id., citing State v. MacDonald (1976), 48 Ohio St.3d 66. (Emphasis added.) A parole violation is a separate offense and does not relate to the pending charge as contemplated by R.C. 2945.71(E). Id. "Thus, the triple-count provision of R.C. 2945.71(E) is inapplicable to a defendant held in jail under a parole holder, even when there are additional criminal charges pending. ***" Id., citing State v. Dunkins (1983), 10 Ohio App.3d 72, 74-75; see, also, State v. Martin (1978), 56 Ohio St.2d 207, 211. Brown, at 16-17. See, also, State v. Royce (Feb. 13, 1994), Cuyahoga App. No. 65670, unreported. Consistent with the above-cited authorities, the appellant's arguments lack merit. The third assignment of error is overruled. - 11 - In his fourth assignment of error, the appellant contends that the trial court committed reversible error when it summarily denied his motion to dismiss his case on statutory speedy trial grounds. In support of his position, the appellant cites Crim.R. 12(E). Crim.R. 12(E) requires a trial court to "state essential findings of fact in support of its denial of a motion to discharge for failure to comply with the speedy trial provisions of R.C. 2945.71." Bryan v. Knapp (1986), 21 Ohio St.3d 64, syllabus. However, under Bryan, such findings must be placed on the record only upon the defendant's request. Id. See, also, State v. Benner (1988), 40 Ohio St.3d 310. Our review of the record fails to uncover any request by the appellant in this vein. Accordingly, the appellant's fourth assignment of error is overruled. In his fifth assignment of error, the appellant argues that the trial court failed to conduct a full and fair hearing on his speedy trial motion. The record, however, demonstrates that the court did hold a full hearing prior to the start of trial. The trial court heard arguments from both the appellant and his coun- sel. Inasmuch as the record does not support the appellant's contention, the fifth assignment of error is overruled. Judgment affirmed. - 12 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this ap- peal. It is ordered that a special mandate issue out of this Court directing the to carry this judgment into execution. The defen- dant'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. TERRENCE O'DONNELL, 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, .