COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69677 CITY OF CLEVELAND : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION RONALD TURNER : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 15, 1996 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE CLEVELAND MUNICIPAL COURT CASE NO. 95-CRB-1619 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: CAROLYN W. ALLEN Chief Prosecuting Attorney City of Cleveland RUBEN J. SHEPERD (#0065616) Assistant City Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: RONALD TURNER, pro se 2201 East 36th Street Cleveland, Ohio 44115 - 2 - SPELLACY, C.J.: Defendant-appellant Ronald L. Turner ("appellant") appeals his conviction for assault in violation of Cleveland Municipal Code 621.03, R.C. 2903.13. Appellant assigns the following errors for our review: I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE CLOSE OF THE CITY'S CASE AND AGAIN AT THE CLOSE OF THE DEFENDANT'S CASE AND THEREIN ENTERING A JUDGMENT OF GUILTY TO ASSAULT WHERE THERE WAS A LACK OF SUFFICIENT EVIDENCE. II. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE CLOSE OF THE CITY'S CASE AND AGAIN AT THE CLOSE OF THE DEFENDANT'S CASE AND THEREIN ENTERING A JUDGMENT OF GUILTY TO ASSAULT WHERE THERE WAS A LACK OF SUFFICIENT EVIDENCE. III. THE VERDICT FINDING THE APPELLANT GUILTY OF ASSAULT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Finding appellant's appeal to lack merit, the judgment of the trial court is affirmed. A complete review of the record upon appeal reveals the following: On January 23, 1995, a complaint was filed against appellant for assault in violation of City of Cleveland Municipal Code 621.03 and for child endangering in violation of City of Cleveland Municipal Code 609.04. A bench trial was held on August 15, 1995, and appellant was found guilty on the assault charge. The trial court, however, granted appellant's motion for judgment of - 3 - acquittal on the charge of child endangering at the close of appellee's case. On September 12, 1995, appellant was fined one thousand (1,000.00) dollars, seven hundred and fifty of which was suspended. Appellant was also sentenced to one hundred eighty (180) days in jail. The trial court, however, suspended appellant's jail sentence. Finally, appellant was sentenced to two years active probation and two hundred hours of community service. I. On January 21, 1995, Mr. Timothy David Perry was asked by Tina Louise Burnett to watch her daughter Rebecca Turner while she was at work. Rebecca Turner, also the daughter of appellant, was in the sole custody of Ms. Burnett at the time the assault took place. On the day in question, as Ms. Burnett was leaving for work, she met Mr. Perry and gave him Rebecca. Subsequently, Ms. Burnett turned in the other direction and began walking toward her bus stop. However, as Ms. Burnett approached the bus stop, she noticed appellant driving toward Mr. Perry and Rebecca. Ms. Burnett observed appellant exit the vehicle and approach Mr. Perry from behind. (Tr. 19). Ms. Burnett testified that at that time she turned, began screaming, and ran toward Mr. Perry to warn him that appellant was behind him. (Tr. 20). As Ms. Burnett approached Mr. Perry, she observed appellant strike him in the back of the head after which Mr. Perry and Rebecca fell to the ground. (Tr. 21). Ms. Burnett further - 4 - testified that appellant grabbed Rebecca from Mr. Perry, jumped into the passenger side of an automobile, and took off. Mr. Perry, however, stated that he did not actually see or hear Mr. Turner approach him; and only became aware of Mr. Turner when he got smacked on the back of the head and fell down. (Tr. 69). Testimony offered by appellant, however, contradicts the testimony given by Ms. Burnett and Mr. Perry. Appellant testified that he merely took Rebecca out of Mr. Perry's arms and that at no time did he ever have physical contact with Mr. Perry. However, the record reveals that Mr. Perry did, in fact, fall to the ground and that as a result of the fall, he sustained injuries serious enough to warrant going to the emergency room for treatment. I. For the purpose of this appeal, appellant's first and second assignments of error will be addressed together. In his first and second assignments of error, appellant asserts that the trial court erred in denying his motion for judgment of acquittal at the close of the state's case, and again at the close of his case, therein entering a judgment of guilty on the assault charge. Appellant further contends that there was insufficient evidence to prove that he possessed the requisite mental state to find him guilty of assault. Upon careful review of the hearing transcript, we find no basis for appellant's contention that the trial court erred in denying his motion for judgment of acquittal on the assault charge - 5 - at the close of the state's case or at the close of his case. In particular, the record reveals that, though appellant filed a motion for acquittal at the close of appellee's case, the motion appears to have only been directed at the charge of child endangering. The trial court granted appellant's Crim. R. 29 motion for judgment of acquittal on the child endangering charge. Subsequently, appellant presented evidence to the court on the assault charge. The record, however, does not reflect that appellant, at the close of his case, renewed his motion for acquittal with regard to the assault charge. "The failure to renew the motion constitutes a waiver of the right to raise it as an assignment of error." State v. Fittro (May 16, 1991), Cuyahoga App. No. 58227, unreported; State v. Detrow (August 16, 1990), Cuyahoga App. No. 56987, unreported; see Helmick v. Republic-Franklin Ins. Co. (1988), 39 Ohio St. 3d 71, paragraph one of the syllabus. Thus, the appellant is precluded from raising it as error. Accordingly, appellant's first and second assignments of error are overruled. III. Appellant, in his third assignment of error, argues that the trial court's judgment is against the manifest weight of the evidence. - 6 - The test to be applied when reviewing a claim that a conviction is against the manifest weight of the evidence was stated by the court in State v. Martin (1983), 20 Ohio App.3d 172 at 175. 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 such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. * * * See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. 62 State v. Williams (April 4, 1996), Cuyahoga App. No. 68690, unreported. In the case sub judice, there was conflicting testimony regarding whether appellant actually made physical contact with Mr. Perry. However, competent, credible evidence was presented to support the trial court's findings. Therefore, we cannot reverse its findings as being against the manifest weight of the evidence. See C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279. Moreover, the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. Williams, supra citing State v. DeHass (1967), 10 Ohio St.2d 230. This court cannot say that on the basis of the evidence presented, the trial court "clearly lost its way and created such a manifest miscarriage of justice that the conviction must be - 7 - reversed and a new trial ordered. Id. citing Martin, supra. Thus, the verdict of guilty was not against the manifest weight of the evidence. Id. Accordingly, appellant's third assignment of error is without merit. - 8 - 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. ANN DYKE, J. and DIANE KARPINSKI, J. CONCUR LEO M. SPELLACY CHIEF JUSTICE 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 .