COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69600 : VILLAGE OF NEWBURGH HEIGHTS : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION DONALD VILLANUEVA : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 5, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Garfield Heights Municipal Court Case No. 95-CRB-4544 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: JOHN K. MARONEY, ESQ. EDWARD A. HEFFERNAN, ESQ. Prosecuting Attorney for 668 Euclid Avenue, Suite 535 Newburgh Heights Cleveland, Ohio 44114-3004 22255 Center Ridge Road Suite 208 Rocky River, Ohio 44116 - 2 - KARPINSKI, J.: Defendant-appellant, Donald Villanueva, appeals from the judgment of the trial court whereby the jury found defendant guilty of aggravated menacing, resisting arrest, and disorderly conduct. On appeal, defendant argues that (1) the convictions were based on insufficient evidence and against the manifest weight of the evidence, (2) the trial court erred by not granting a mistrial, and (3) the trial court erred when it bifurcated the charge of aggravated menacing. For the reasons that follow, the judgment of the trial court is affirmed. The incident that forms the basis of this case was an alleged fight that occurred at the Marathon gas station at the corner of East 49th Street and Harvard in Newburgh Heights. The fight allegedly involved defendant and Charles Perito. Moments after the incident, the police arrived on the scene. According to the testimony of the officers and the victim, when defendant was taken into custody, he became unruly. The complaints filed in Garfield Heights Municipal Court charged defendant with (1) attempted assault on Patrolman Aytay, (2) aggravated menacing of Patrolmen Aytay and Lukas, (3) assault of Charles Perito, (4) resisting arrest, and (5) disorderly conduct. Defendant pled not guilty and the case proceeded to trial. Charles Louis Perito testified that he was pumping gas in his truck at the Marathon station when defendant made insulting remarks about Perito's truck. Defendant then called Perito a - 3 - "nigger." He stated that defendant threw four punches at Perito, the last one hitting Perito in the face. The police then arrived and the fight ended. Perito said defendant was struggling and kicking after he was handcuffed. Finally, Perito told the court he heard defendant tell the police officer that he knew where they lived. Patrolman Reiger of the Cuyahoga Heights Police Department testified that he heard defendant threaten the police. Regarding the threat, Reiger stated, Q. Was it fair to say or would it be fair to say that he was acting in a threatening manner? MR. HEFFERNAN: Objection. THE COURT: Overruled. A. Yes. Q. To whom, Officer? A. I perceived it to be the officers, us three officers that were on the scene, in addition to the victim. * * * Q. Did you hear him specifically threaten any of the officers? A. At one time I believe we had him at the back of his vehicle with his hands on the thing, on the trunk lid, and, you know, he just turned around to Officer Lukas and he says, you know, "Why are you doing this to me Jamie? You're going to get yours, I know where you live." (Tr. 60-61.) Patrolman Jamie Jay Lukas of the Newburgh Heights Police Department testified as follows. He responded to the incident at the Marathon station at the corner of East 49th and Harvard. When he arrived, he saw the other officers talking to Perito and defendant. Perito's nose was bloodied and the defendant did not have any cuts or bruises. After talking with Perito, Lukas determined there was probable cause to arrest defendant. At the time they cuffed defendant, he appeared "pretty calm." (Tr.96.) - 4 - As the officers proceeded to place defendant in Officer Aytay's car, defendant became verbally abusive. Officer Lukas testified as follows: Q. Now describe for the jury, if you would, the language or the statements that were coming from the defendant's mouth as he was being escorted to Officer Aytay's vehicle. A. There was a lot of swear words involved, they were both being cussed at. THE COURT: What did he say? THE WITNESS: He called us a mother-fucking nigger, niggers, assholes, and then started spitting on the car. (Tr. 96-97.) Defendant allowed himself to be placed in the back of the police car, but then started pounding the windows and kicking the door inside the police car. Defendant continued to kick as he was removed from the patrol car. The officers then removed defendant's belt and wrapped the belt around defendant's legs to prevent defendant from kicking. Lukas then described the threat as follows: Q. All right. Was there any conversation had between the defendant and you while this was going on? A. Yeah, he made threats at myself and Patrolman Aytay that he knew where we lived and he was going to get us. (Tr. 103.) Patrolman Terry Aytay took the stand and testified as follows. He responded to the scene at the Marathon station with Officer Lukas. Upon arriving at the station, Aytay observed the victim sitting in his truck with a bloody nose and mouth. The officer described the victim at the scene as follows: A. Okay. He had the smell of alcoholic beverage on his breath. His eyes appeared glazed over and glassy, and his pupils were dilated. (Tr. 182.) - 5 - Aytay further repeated the following statements from the defendant. A. The defendant again looked back at Patrolman Lukas and said "Jamie, why are you doing this to me?" And Jamie said "All we're trying to do is find out what happened here." From that point on he said, you know, "This is a bunch of bullshit" again, "I know where you live, and you're going to be sorry." (Tr. 184.) Once defendant was placed in the police cruiser he began kicking the door and window. He continued to try to kick as the officers restrained his feet. Aytay testified that after defendant was placed back in the car he repeated the statement to the officers as follows: A. Yes. At this time he was saying "you guys really did it now. I know where youse [sic] live, and you better watch out, and you families better watch out." (Tr. 195.) Taking the stand in his own defense, defendant testified as follows. On the night of the incident, even though he was 18, he had at least five beers at a local festival. He claimed that Perito initiated the altercation with a hit to the back of defendant's head. After Perito hit defendant again, defendant took off his shirt and hit Perito. At this point the police arrived. Instructing defendant to place his hands on the back of the police vehicle, Officer Aytay handcuffed him. Officer Lukas stayed with him while Officer Aytay went over to Perito. Defendant stated he calmly entered the police vehicle without any profanities. After defendant saw that Perito was allowed to leave the scene, defendant began "cursing and then kicking the door." (Tr. 379.) The police then took defendant out of the - 6 - car, "hogtied" him with a belt around his feet, and returned him back to the police car. At the police station the police removed the belt from defendant's feet and uncuffed him. Defendant stated that he did not try to kick the officers; he admitted to spitting, but not at the officers. He stated that he never threatened Patrolman Aytay or Patrolman Lukas. On cross-examination, defendant admitted using profanity but claimed it was not directed at anyone. He expressly denied threatening Officers Lukas or Officer Aytay. The jury found defendant not guilty on the charge of attempted assault of Patrolman Aytay, not guilty on the charge of aggravated menacing as to Patrolman Aytay, and not guilty on the charge of assault of Charles Perito. The jury did find defendant guilty, however, of aggravated menacing as to Patrolman Lukas, guilty of resisting arrest, and guilty of disorderly conduct. Defendant timely appealed raising five assignments of error. I. THE TRIAL COURT COMMITTED PLAIN EEROR [SIC] BY CONVICTING DEFENDANT ON THE CHARGE OF RESISTING ARREST SINCE THERE IS INSUFFICIENT EVIDENCE IN THE RECORD TO SUSTAIN A CONVICTION ON THIS CHARGE. In this first assignment, defendant argues there was insufficient evidence to convict him of resisting arrest because (1) there was no lawful arrest and (2) there was no evidence to establish that defendant resisted the arrest. These arguments lack merit. Defendant argues the arrest was unlawful because the arresting officer did not observe the commission of the offense. - 7 - Under Ohio law, it is not necessary that the officer personally observe the offense. This court has held that an officer may arrest a misdemeanant without personally viewing the events. A warrantless arrest for a misdemeanor is valid if the arresting officer is able to reasonably conclude from the surrounding circumstances that an offense has been committed. R.C. 2935.03(A); State v. Reyman (1989), 55 Ohio App.3d 222, 563 N.E.2d 749; Columbus v. Lenear (1984), 16 Ohio App.3d 466, 16 OBR 548, 476 N.E.2d 1085 (what is required for a valid warrantless misdemeanor arrest is not that the officer have absolute knowledge that a misdemeanor is being committed but, rather that he be in a position to form a reasonable belief that a misdemeanor is being committed, based upon evidence perceived through his own senses). Cleveland v. Murad (1992), 84 Ohio App.3d 317. In the case at bar, the police arrived at the scene immediately after the incident and observed Perito with a bloody nose. Moreover the police spoke with all the persons present at the incident. Accordingly, probable cause existed for the police to arrest defendant. Defendant next argues the state presented insufficient evidence to establish that he resisted arrest. Resisting arrest is defined in R.C. 2921.33 as follows: (A) No person, recklessly or by force, shall resist or interfere with a lawful arrest of himself or another. In reviewing a Crim.R. 29(A) motion, the trial court must view the probative evidence and inferences reasonably drawn therefrom in a light most favorable to the prosecution. State v. Martin (1983), 20 Ohio App.3d 172. If the court finds the evidence is such that "reasonable minds can reach different conclusions as to whether each material element of a crime has - 8 - been proven beyond a reasonable doubt, the issue is presented to the jury." State v. Bridgeman (1978), 55 Ohio St.2d 261. When reasonable minds could not convict, a Crim.R. 29(A) motion must be granted, the charges dismissed, and the case not given to the jury. Id. In the case at bar, the evidence, viewed in a light most favorable to the prosecution, established that defendant resisted arrest. The officers had to restrain defendant because he was kicking the inside of the police car. Furthermore, Officer Aytay testified that "[a]s soon as we entered the police station he started kicking chairs and kicking at walls and spitting at the walls and trying to spit at us." (Tr.251.) Accordingly, sufficient evidence was presented to support defendant's conviction for resisting arrest. II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT CONVICTED DEFENDANT ON THE CHARGE OF AGGRAVATED MENACING SINCE THE AMNIFEST [SIC] WEIGHT OF THE EVIDENCE DID NOT SUPPORT THE CONVICTION. In this assignment, defendant argues that his conviction for aggravated menacing against Officer Lukas was against the manifest weight of the evidence. Aggravated Menacing is defined in R.C. 2903.21 as follows: (A) No person shall knowingly cause another to believe that the offender will cause serious physical harm to the person or property of such other person or member of his immediate family. The standard for evaluating claims that a conviction is against the manifest weight of the evidence has been summarized as follows: - 9 - There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. State v. Martin (1983), 20 Ohio App.3d 172, 175. The first issue is whether defendant made an actual threat toward Officer Lukas. On this point the evidence is contradictory. All three officers testified that defendant said he was going to get them and that he knew where they lived. Defendant denied making this statement. The evidence conflicts as to when defendant made the alleged statement. Even though the evidence was controverted, there was evidence presented to the jury from which it could determine that defendant made the aforementioned threat to the officers. The second issue is whether defendant's statement was "threatening," that is, would cause another person to believe that serious physical harm would occur either to himself or his family or to his or his family's property. On this point Officer Lukas testified as follows: Q. So on June 10th those words weren't threatening to you, were they? A. Afterwards I thought about it, yes. Q. On June 10th I said. A. Yes, they were. Q. On June 10th they were threatening to you then? A. Yes, they were. (Tr. 139.) - 10 - This testimony established that Lukas did, in fact, feel threatened by defendant's remarks. Moreover, a reasonable man would interpret defendant's statement as a threat defendant was going to the officer's home and commit a crime against his person or property. Accordingly, the state presented evidence that a threat was made to Officer Lukas. It cannot be said that the jury created a manifest miscarriage of justice by finding defendant guilty of aggravated menacing as to Officer Lukas. III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY CONVICTING THE DEFENDANT ON THE CHARGE OF DISORDERLY CONDUCT SINCE THE MANIFEST WEIGHT OF THE EVIDENCE DID NOT SUPPORT THE CONVICTION. In this assignment, defendant challenges his conviction for disorderly conduct which is defined in R.C. 2917.11(B) as follows: (B) No person, while voluntarily intoxicated shall do either of the following: (1) In a public place or in the presence of two or more persons, engage in conduct likely to be offensive or to cause inconvenience, annoyance, or alarm to persons of ordinary sensibilities, which conduct the offender, if he were not intoxicated, should know is likely to have such effect on others; (2) Engage in conduct or create a condition which presents a risk of physical harm to himself or another, or to the property of another. Challenging his conviction under this section, defendant argues that the jury's finding was against the manifest weight of the evidence regarding his intoxication. This argument is meritless. In State v. Broughton (1988), 51 Ohio App.3d 10, the court held that circumstantial evidence of intoxication can be used to support a conviction under R.C. 2917.11(B). In the case - 11 - at bar, Officer Aytay testified that defendant's eyes were glossy and his pupils were dilated. Aytay stated, moreover, that he smelled alcohol on defendant's breath. Although defendant denied being intoxicated, he admitted to having more than five beers. As a result of this evidence, it cannot be said that the jury's finding of intoxication and, therefore, disorderly conduct is against the manifest weight of the evidence. IV. THE TRIAL COURT ERRED IN DENYING DEFENDANT A MISTRIAL AFTER PATROLMAN LUKAS TESTIFIED THAT A BRICK HAD BEEN THROWN THROUGH HIS WINDOW. In the fourth assignment, defendant argues that, after Patrolman Lukas testified about a brick thrown through the window of his car, the trial court committed reversible error by not granting defendant's motion for a mistrial. Lukas began to talk about this incident in response to a question of whether he felt threatened by defendant's threats. Lukas stated as follows: Q. What were you thinking and feeling as this conversation or these statements were being made by the defendant? MR. HEFFERNAN: Objection. THE COURT: He may answer. A. I was -- at the time I wasn't too concerned about them, I was just -- we were just trying to get him into our custody so we could get him under control, and afterwards is when I felt threatened. And when the bricks went through my front window-- (Tr. 104.) After this exchange, the court immediately instructed the jury as follows: THE COURT: So long as the jury understands, there's been an objection to testimony which was not solicited by Mr. Moroney of the witness. I'm asking you to strike from your minds anything he may have said which was not solicited or not in answer to a statement by Mr. Moroney; in other words, any information the defendant -- or the police officer here volunteers is - 12 - to be stricken from your mind and not be relied on for any reason whatsoever. You may -- once again, Officer answer only the questions that are asked of you, do not volunteer anything. (Tr. 104-105.) Defendant argues that, notwithstanding the curative instruction, the testimony about the brick through the window denied defendant a fair trial because the jury could infer that the brick through the window was connected to defendant's alleged threat. As defendant points out, however, there was no evidence to connect the brick to defendant, the defendant being incarcerated at the time of the incident. A trial court's decision granting or denying a motion for a mistrial court is reviewed under an abuse of discretion standard. State v. Widner (1981), 68 Ohio St.2d 188; State v. Chitwood (1992), 83 Ohio App.3d 443. In the case at bar, the trial court gave a curative instruction. For mistrial purposes, curative instructions are presumed to be effective with respect to improper comments made by witnesses. State v. Warren (1990), 67 Ohio App.3d 789. In other words, it is presumed that a jury will follow the instructions of the trial judge. State v. Ferguson (1983), 5 Ohio St.3d 160. Because of the immediate curative instruction, the trial court did not abuse its discretion by denying a motion for a mistrial. V. THE TRIAL COURT ERRED IN BIFURCATING THE CHARGE OF AGGRAVATED MENACING. In this assignment of error, defendant argues that the trial court abused its discretion by bifurcating the charge of aggravated menacing. The original complaint charged defendant - 13 - with making a menacing statement to both Aytay and Lukas. Apparently, the judge charged that they could find defendant 1 guilty of making a menacing statement either to Aytay or Lukas. The jury found defendant guilty of aggravating menacing regarding Lukas but not regarding Aytay. The record before us does not contain the jury instructions. Moreover, the state argues that defense counsel never objected to this alleged error. Defendant does not refute this point. Any error not brought to the attention of the trial court is waived for the purposes of appeal. State v. Williams (1977), 51 Ohio St.2d 112. Defendant, therefore, waived any error on this issue. This assignment is overruled. Judgment affirmed. 1 Generally, the decision whether an accused will be tried separately on different counts of the indictment rests within the sound discretion of the trial court. Braxton v. Maxwell (1965), 1 Ohio St.2d 134; State v. Strobel (1988), 51 Ohio App.3d 31. R.C. 2941.04. - 14 - 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 Garfield Heights 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. LEO M. SPELLACY, C.J., and DYKE, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .