COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69532 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION ALLEN GARY : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION MAY 9, 1996 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-315480 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES JAMES A. DRAPER, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public Defender DIANE SMILANICK, Assistant ROBERT M. INGERSOLL, Assistant Prosecuting Attorney Public Defender 1200 Ontario Street 100 Lakeside Place Cleveland, Ohio 44113 1200 West Third Street Cleveland, Ohio 44113-1513 - 2 - JAMES M. PORTER, J., Defendant-appellant Allen Gary appeals from his convictions for felonious assault (R.C. 2903.11) and aggravated burglary (R.C. 2911.11) on the grounds that his convictions were not supported by sufficient evidence and he was deprived of a fair trial because the court allowed an eight year old child to testify against him. We find no merit to the appeal and affirm. This case arose out of an incident that occurred on the evening of September 10, 1994, at the home of Marilyn Cobb. Ms. Cobb, her daughter Tierra and her boyfriend, Robert Smith, were all at home that evening when Smith was beaten by defendant. Ms. Cobb testified she had been defendant's girlfriend for almost twelve years and Tierra was their child. Cobb and defendant eventually broke up and defendant was angry about the breakup. Cobb began dating the victim Richard Smith. Smith stayed at Cobb's house on the evening in question and Tierra was also at home in bed. Cobb went to bed about 11:00 p.m. and woke up around 11:30 p.m. to get Tierra a snack. When she returned to her room around midnight, Cobb heard a loud bang on the kitchen door, looked out her bedroom window and saw defendant on the porch. Cobb brought Tierra into her bedroom. Smith was also present in the bedroom. Minutes after she heard the loud bang, defendant came into her bedroom. Defendant yelled at Smith, "I want you" and proceeded to hit Smith in his face. He fell onto Tierra's lap on the bed. Defendant continued to hit Smith. - 3 - Ms. Cobb grabbed Tierra and ran downstairs to call 911 but was too nervous to dial the numbers. Defendant ran after Cobb and grabbed her arm. Cobb and Tierra ran outside and took refuge in a neighbor's house for help. Ms. Cobb and Tierra were let in by the neighbor who called the police. Cobb stated that she saw defendant push Smith into his car as she looked out her neighbor's window. The police arrived at about 1:00 a.m. and questioned Cobb and Tierra at the neighbor's house. The police took Cobb and Tierra home to pack some things and then took them to Cobb's mother's house. Ms. Cobb stated that when she went back to her house that Smith was not there and that she observed a lot of blood in her bedroom and down the stairs. The State then called eight year old Tierra to testify. After a voir dire by the court finding her competent, Tierra testified that she and her mother lived together. Tierra's testimony was essentially corroborative of her mother's testimony since she witnessed the attack in her mother's bedroom and the flight to the neighbor's house. The neighbor testified to Cobb and the child coming to her house and calling the police. Cleveland Police Officer James Bezak was called to the scene by radio dispatch and interviewed Ms. Cobb and her daughter. Bezak looked throughout the house and saw the broken back door and the blood on the wall and floor of Cobb's bedroom. He patrolled the area and arrested defendant, who matched the descriptions obtained during the interview. - 4 - The victim, Richard Smith, testified that he was dating Cobb and was at her home the evening of September 10, 1994. Smith went into Cobb's bedroom at about 11:00 p.m. A few minutes later, he heard a loud thumping and Tierra awoke and came into the bedroom. Defendant ran into Cobb's bedroom about two minutes later, walked up to Smith and started to hit him. Smith stated that defendant hit him in the right side of his face, in the right eye area. Smith fell on the bed and defendant proceeded to hit him on the left side of the face and then again on the right side of his face. Smith stated that he attempted to get away and go down the stairs, but that defendant shoved him down the stairs and hit him again. Smith got into his car and went to the Cleveland Clinic emergency room for treatment. Smith received stitches on the top and bottom of his right eye and was released. At the end of the State's case, the defense motion for acquittal under Crim. R. 29 was overruled. The defendant took the stand and denied beating Smith. He said that he was at William Blackwell's house on the evening of September 10, 1994, but Mr. Blackwell did not testify. We will address defendant's assignments of error in the order asserted. - 5 - I. ALLEN GARY WAS DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS CONVICTIONS FOR AGGRAVATED ROBBERY AND FELONIOUS ASSAULT, AS NEITHER CONVICTION WAS SUPPORTED BY SUFFICIENT EVIDENCE TO PROVE HIS GUILT BEYOND A REASONABLE DOUBT. 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: 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.) Quoted and followed in State v. Garner (1995), 74 Ohio St.3d 49, 60. - 6 - Defendant was convicted of felonious assault defined by R.C. 2903.11 as follows: (A) No person shall knowingly: (1) Cause serious physical harm to another; (2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code. "Serious physical harm" is defined by R.C. 2901.01(E) in pertinent part as follows: (3) Any physical harm which involves some permanent incapacity, whether partial or total, or which involves some temporary, substantial incapacity; (4) Any physical harm which involves some permanent disfigurement, or which involves some temporary, serious disfigurement; (5) Any physical harm which involves acute pain or such degree of prolonged or intractable pain. Defendant contends that he could not have violated R.C. 2903.11 because Smith did not suffer serious physical harm. We do not agree. There was sufficient evidence of serious physical injury to allow a jury to find a violation of the statute. The State's witnesses at trial testified that they saw defendant repeatedly punch Smith in the face causing him to seek medical attention. Smith testified that he needed stitches above and below his right eye. His face was bruised. Smith's testimony and the other witnesses' testimony was sufficient evidence to take this issue to the jury on whether there was temporary serious - 7 - disfigurement or acute pain. This Court has previously held that where the injuries to the victim are serious enough to cause him to seek medical treatment, a jury may reasonably infer that the force exerted on the victim caused serious physical harm as defined by subparagraph (3) of the statute. State v. Huckabee (Oct. 26, 1995), Cuyahoga App. No. 67588, unreported at 6; State v. Rushing (Sept. 30, 1993), Cuyahoga App. No. 62688, unreported at 9; State v. Walker (June 18, 1987), Cuyahoga App. No. 52391, unreported at 10; State v. Williams (Nov. 10, 1983), Cuyahoga App. No. 46599, unreported at 3. Defendant also argues that if there was not enough evidence to support a conviction for felonious assault, then there would not be enough evidence to sustain a conviction for aggravated burglary. Since we have found there was sufficient evidence to support the felonious assault conviction, this argument must fail. Aggravated burglary under R.C. 2911.11 states that no person shall trespass in an occupied structure with the purpose to commit a felony. Defendant broke Cobb's door down with the purpose to feloniously assault Smith, which he accomplished. There was sufficient evidence to support the aggravated burglary conviction. Assignment of Error I is overruled. II. ALLEN GARY WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL, WHEN THE TRIAL COURT IMPROPERLY FOUND TIERRA COBB, A CHILD OF ONLY EIGHT YEARS, TO BE COMPETENT TO TESTIFY. The trial court voir dired Tierra Cobb outside the presence of the jury. The court asked eight year old Tierra basic questions: - 8 - her name; age; with whom she lived; what school she attended; if she knew what a lie was and if she knew it was wrong to tell a lie. Tierra testified that she knew it was wrong to tell a lie and that God would punish somebody who told a lie; that she would tell the truth. The court also permitted defense counsel to question Tierra regarding competency issues. Based on the questions posed by the court and defense counsel, the trial court found that Tierra understood the meaning of an oath and the necessity of telling the truth and ruled that she was competent to testify. Evid. R. 601(A) states: Every person is competent to be a witness except: (A) Those of unsound mind, and children under ten (10) years of age, who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly ***. The rule's purpose is to declare all persons competent to testify in all cases, unless specifically designated as incompetent. All children are competent to testify, except those children under ten who: (1) appear incapable of receiving just impressions of the facts as to which they are examined; or (2) are incapable of relating those facts truly. State v. Frazier (1991), 61 Ohio St.3d 247, 251; State v. Cobb (1991), 81 Ohio App.3d 179, 181; State v. Allen (1990), 69 Ohio App.3d 366, 370; State v. Lewis (1982), 4 Ohio App.3d 275. The record indicates that the trial court conducted a careful examination of Tierra to determine her competency to testify and to tell the truth. A trial court's - 9 - determination of a child's competency will not be disturbed absent a clear showing of an abuse of discretion. State v. Frazier, supra at 251; State v. Cobb, supra at 182; State v. Allen, supra at 321; State v. Workman (1984), 14 Ohio App.3d 385, 389. It is clear from the record that Tierra could answer the questions posed and that she could tell the difference from the truth and a lie and that she would tell the truth. A trial court is in the best position to observe a child's demeanor and conduct for purposes of determining competency. State v. Frazier, supra at 251; State v. Cobb, supra at 182; Presley v. Presley (1990), 71 Ohio App.3d 34, 43; State v. Barnett (1922), 104 Ohio St. 298, 301. Defendant has not demonstrated a clear abuse of the trial court's discretion in this matter. In any event, Tierra's testimony was not crucial to the State's case. It was mostly corroborative of two other eye witnesses, the victim Smith and Ms. Cobb. Under the circumstances, if there was any error, it was harmless in view of the other overwhelming evidence of defendant's guilt. Assignment of Error II is overruled. Judgment affirmed. - 10 - 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. SPELLACY, C.J., and JAMES D. SWEENEY, J., CONCUR. JAMES M. PORTER 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 .