COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69340 CITY OF CLEVELAND, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION ANTHONY PETRONZIO, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : MARCH 21, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Cleveland Municipal Court : Case No. 95CRB8593A13C JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Carolyn Watts-Allen Chief Prosecutor, City of Cleveland Gina Villa Assistant City Prosecutor Courts Tower - Justice Center 1200 Ontario Street - 8th Floor Cleveland, Ohio 44113 For defendant-appellant: Kevin Patrick Prendergast 27999 Clemens Road Suite One Westlake, Ohio 44145 -2- NAHRA, J.: Defendant-appellant Anthony Petronzio appeals from his convictions in Cleveland Municipal Court for three Cleveland Codified Ordinance ("CCO") violations arising from a single incident. The incident which led to the charges against appellant occurred on April 6, 1995 at approximately 10:00 a.m. in the office of the Cuyahoga County Title Bureau located at 1261 Superior Avenue in the city of Cleveland. At that time, Glen Esch, the records manager at the Bureau, was working at his station at the front counter facing the lobby area when Brian Chaney, appellant's employer at a company called Auto Title Services, approached Esch and requested him "to call the 1 police." Chaney indicated appellant, who was standing nearby, was "harassing" him. Both Chaney and appellant were well-known to Esch because they had come to the Bureau "a number of times" in connection with their business. Esch took note of appellant's demeanor and went to notify Harry Jennings, the security officer on duty, of Chaney's problem. As he was returning to his station followed by Jennings, Esch observed Chaney reenter the lobby area from the dealer room to the left of the front counter, closely followed by appellant. Chaney placed two bags he was carrying onto the counter, asked Esch to watch them, and turned to appellant. Appellant then "swung 1 Quoted material indicates testimony given by a witness at appellant's trial. -3- on" Chaney with his fist and "struck him twice." Appellant also began shouting and calling his employer names. The two men "started fighting." The altercation attracted the attention of Helen Troupe, another Bureau employee who worked next to Esch. Jennings, a burly man 6'1" tall and weighing approximately 300 pounds, hurried forward around the counter and stepped between the two men. As Jennings was attempting to separate them, however, he backed up and tripped on a rug, which caused him to fall. When he hit the floor, his glasses "flew off." He was attempting to retrieve them when appellant started "kicking" him. Jennings found his glasses, put them on and "grabbed" appellant. Jennings asked appellant to leave and began to push him toward the front door. Appellant resisted but ultimately was "put" out the door, whereupon Jennings released him. Outside, appellant turned to Jennings and started calling him names. Jennings heard appellant "telling me he was going to kill me" and say he was "going to get my family." Appellant told Jennings "he knew where I lived at, and he would get me one way or the other." Appellant then left: he entered a car being driven by his friend and the car pulled away. Jennings then escorted Chaney to his car and returned to the front door. Before Jennings reentered the building, however, Chaney drove back to Jennings' location. Jennings could see the car appellant was in following Chaney's car, so he motioned Chaney to come back into the building. -4- The car appellant was in stopped; appellant got out and came up to the door where Jennings stood. Jennings reiterated his earlier position that appellant had to leave and indicated he could not re-enter the building. At that point, appellant began to call Jennings names and "struck at" him. Jennings, seeing appellant's demeanor, felt "afraid." Jennings tried to ward appellant off with his flashlight. More blows were exchanged before appellant disengaged himself. Ultimately, appellant left the area in his friend's car. Jennings later sought medical attention as a result of the incident. Subsequently, appellant was cited for the following violations: 1) CCO 621.03, Assault; 2) CCO 621.07, Menacing; and 3) CCO 623.04, Criminal Trespass. Appellant entered pleas of not guilty to the charges. Appellant's case was tried to the bench. Prior to the city's presentation of its case-in-chief, appellant's counsel moved for a separation of witnesses. The trial court granted the motion. The city then presented the testimony of Helen Troupe, Glen Esch, co-worker Colleen Burns, and Harry Jennings. At the conclusion of the city's evidence, appellant's counsel moved for acquittal on all the charges. The trial court listened to his arguments but overruled the motion. The case then proceeded. When appellant's counsel called his first witness, however, the city prosecutor objected. The prosecutor observed the witness had been "in the courtroom the -5- entire time . . . ." The trial court stated for the record as follows: THE COURT: Objection sustained. They were your witnesses, you made a motion for the separation of witnesses. What were they doing in the courtroom? MR. PRENDERGAST: I thought they left the courtroom. THE COURT: Sir, they were sitting over there throughout the whole courtroom proceedings. Everybody else was ordered to leave. You knew they were your witnesses, they should have been out of the courtroom. MR. PRENDERGAST: I'll call [appellant] then. Following appellant's testimony, his counsel argued his other witnesses should be permitted to testify. The trial court admonished counsel that he had "an obligation" to obey the trial court's order. The trial court indicated counsel "knew the witnesses were back there," and, further, that he knew they had been there "throughout the whole trial." Although the trial court thus refused to permit the witnesses' testimony, counsel was permitted to proffer their testimony for the record. The trial court ultimately found appellant guilty of the charges and sentenced him accordingly. The trial court also denied appellant's subsequent motion for a new trial. Appellant has filed 2 a timely appeal of his convictions and presents two assignments of error for this court's review. I. 2 The trial court granted a stay of execution of sentence pending the outcome of this appeal. -6- Appellant's first assignment of error states: THE TRIAL COURT ERRED IN REFUSING TO ALLOW TWO DEFENSE WITNESSES TO TESTIFY WHO REMAINED IN THE COURTROOM AFTER A SEPARATION OF WITNESSES WAS ORDERED. Appellant argues it was improper for the trial court to refuse to allow his witnesses to testify for their violation of the separation order, contending that under the circumstances of this case, that sanction was unduly harsh. Generally, the separation of witnesses during trial is a matter within the discretion of the trial court. Euclid v. Fitzthum (1976), 48 Ohio App.2d 297 at 303. The exercise of that discretion will be reversed only for an abuse thereof. Oakwood v. Makar (1983), 11 Ohio App.3d 46; State v. Collins (March 10, 1978), Cuyahoga App. No. 37333. A review of the record in this case reveals the trial court did not abuse its discretion by refusing to allow appellant's witnesses to testify. First, it must be noted that it was appellant who requested the separation of witnesses, rather than the city. In fact, as a consequence of appellant's motion, the city had to alter the mode of its presentation of its case. Second, contrary to appellant's assertion in his appellate brief, the record reflects the presence of the two defense witnesses in the courtroom was neither the result of a misunderstanding of the order nor occurred without the defense being aware of it. Indeed, appellant's counsel made no such protestations when confronted on the matter. Counsel was -7- confronted twice: first by the prosecutor and later, at the conclusion of the evidence in the case, by the trial court. Both episodes indicate counsel was conscious of a willful violation of the separation order, rather than an "innocent" one. Third, a review of the proffered testimony reveals it was merely cumulative to appellant's own testimony. Its exclusion, therefore, did not unduly prejudice appellant's case. Based upon the foregoing, it must be concluded the trial court did not err or abuse its discretion in refusing to allow appellant's witnesses to testify after they violated the separation of witnesses order. Oakwood v. Makar, supra; cf., State v. Slone (1974), 40 Ohio App.2d 523. Accordingly, appellant's first assignment of error is overruled. II. Appellant's second assignment of error states: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL OR, IN THE ALTERNATIVE, THE TRIAL COURT'S FINDING OF GUILT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues that the evidence adduced at his trial was insufficient to establish essential elements of both the trespassing charge and the menacing charge, but was sufficient to establish the defense of self-defense with respect to the assault charge. A challenge to the sufficiency of evidence is a matter of law to be determined by the trial court based upon only a favorable -8- interpretation of the evidence produced by the city. Therefore, sufficiency requires this court view the matters adduced in the light most favorable to the prosecution and determine whether a rational fact finder could have found all the material elements of the offense beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St.2d 261; State v. Jenks (1991), 61 Ohio St.3d 259. Once the trial court has made its ruling on the sufficiency of the evidence, the issues now become a matter for the fact finder, which weighs all the evidence, including evidence presented, if any, by the defense, and determines the credibility of the witnesses. State v. Jenks, supra; State v. Martin (1983), 20 Ohio App.3d 172. CCO 623.04, Criminal Trespass, provides in pertinent part: (a) No person, without privilege to do so, shall . . . (1) Knowingly enter or remain on the land or premises of another; Appellant argues the evidence was insufficient to prove he "remained" at the Title Bureau without privilege to do so. Appellant's argument, however, fails to consider either the language of the ordinance or the facts of this case. The ordinance is written in the disjunctive; therefore, the city had merely to provide sufficient evidence to prove appellant either remained on the premises or tried to enter the premises after his privilege to do so was revoked. See, e.g., State v. Steffan (1987), 31 Ohio St.3d 111 at 114-115. Jennings testified appellant was told he had to leave while he was being pushed toward the front door. Not only did appellant resist his expulsion from the premises, after he left he returned a -9- short time later and attempted by force to re-enter the front door. This was sufficient evidence to prove the requisite elements of CCO 623.04(a). Id. Jennings' testimony, moreover, was corroborated by the testimony of Helen Troupe and Glen Esch, both of whom stated they heard appellant being told by Jennings that he had to leave and thereafter observed that appellant came back and "tried to get back in the building." Furthermore, when he testified, appellant admitted Jennings told him to leave the premises but after he was ejected, he came back to the front doorway area, argued with Jennings, and refused to leave. On the other hand, appellant's testimony that Jennings prevented him from leaving was simply incredible. Thus, the evidence was sufficient to prove appellant violated CCO 623.04(a) and, furthermore, his conviction for that offense was not against the manifest weight of the evidence. Cleveland v. Kliment (1990), 68 Ohio App.3d 730; cf., Beachwood v. Cohen (1986), 29 Ohio App.3d 226, State v. Newell (1994), 93 Ohio App.3d 609. With regard to the menacing charge, appellant argues evidence of the victim's "reasonable fear" was lacking. CCO 621.07(a), Menacing, states: No person shall knowingly cause another to believe that the offender will cause physical harm to the person or property of such other person or member of his immediate family. In this case, Jennings testified appellant threatened "he was going to kill me." Esch also heard appellant say those words. -10- Jennings further testified appellant stated he was "going to get my family" and "knew where I lived at, and he would get me one way or the other." Moreover, Esch and Troupe testified that since appellant was at the Bureau so often, he was familiar to and with the employees there. Jennings and Esch also testified that appellant's demeanor caused them some alarm. Finally, near the conclusion of his testimony, Jennings stated that as a result of appellant's behavior, "I was in fear of my life." Thus, in spite of the relative physical attributes of Jennings and appellant, the city provided sufficient evidence to prove the elements of the victim's belief appellant would cause physical harm to him or his family. Appellant's testimony, moreover, corroborated that of the city's witnesses, since he admitted calling Jennings names during the incident. Therefore, appellant's conviction for menacing also was based upon sufficient evidence and was not against the manifest weight of the evidence. State v. Stuley (1985), 21 Ohio App.3d 300; see, also, State v. Schwartz (1991), 77 Ohio App.3d 484; City of East Cleveland v. Thomas (Jan. 22, 1987), Cuyahoga App. No. 51552, unreported. Finally, appellant argues the evidence with regard to the 3 assault charge was sufficient to prove only the defense of self- 3 CCO 621.03(a), Assault, states in pertinent part as follows: (a) No person shall knowingly cause or attempt to cause physical harm to another. -11- defense. The record, however, does not support appellant's argument. Jennings, Troupe and Esch all testified appellant "kicked" Jennings while he was on the ground. Jennings further testified that as a result of appellant's actions during the incident, Jennings had to seek medical attention for his injuries. Thus, the evidence was sufficient to prove the assault charge. City of Cleveland v. Wirtz (July 29, 1993), Cuyahoga App. No. 62751, unreported. Although appellant testified repeatedly on direct examination that Jennings "was hitting" him, "jumped on" him, poked at and hit him with a flashlight, and further testified that after the incident his arm was bleeding, appellant admitted on cross- examination that he engaged in provoking behavior and also admitted that after the incident he never sought medical attention for his alleged injury. Under the circumstances of this case, therefore, the trial court did not err in overruling appellant's motion for acquittal as to all of the charges against him. See, e.g., City of Cleveland Heights v. DiGravio (Mar. 8, 1973), Cuyahoga App. Nos. 32082, 32083 and 32084, unreported. Appellant's convictions were also in accord with the manifest weight of the evidence in this case. Cf., City of Cleveland v. Booker (Oct. 6, 1983), Cuyahoga App. No. 46560, unreported. Appellant's second assignment of error, therefore, is overruled. Appellant's convictions are affirmed. -12- 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 Cleveland Municipal 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. SPELLACY, C.J., and O'DONNELL, 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 .