COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70056 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION DIMITRIK ROBINSON : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION DECEMBER 12, 1996 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-247474 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES JAMES A. DRAPER Cuyahoga County Prosecutor Cuyahoga County Public Defender DENISE R. CAMERON, Assistant VALERIE R. ARBIE, Assistant Prosecuting Attorney Public Defender 1200 Ontario Street 1200 West Third Street Cleveland, Ohio 44113 100 Lakeside Place Cleveland, Ohio 44113-1569 - 2 - JAMES M. PORTER, J., Defendant-appellant Dimitrik Robinson appeals from his conviction following a jury trial for felonious assault (R.C. 2903.11) with a violence specification. Defendant assigns error in the trial court's admission of evidence and contends that the conviction was not sustained by sufficient evidence and was against the manifest weight of the evidence. We find no error and affirm. The evidence adduced at trial showed that on October 14, 1989, William Willis, III was assaulted and injured seriously by Floyd Robinson and Dimitrik Robinson, brothers and defendants in separate prosecutions. Mr. Willis testified that on October 14, 1989, he took his three children to his parents' home at 12609 Emery Avenue in Cleveland. While he took his wife to her hair appointment, his parents were going to watch his three children. As he returned to pick up the children, he encountered Floyd Robinson and Dimitrik Robinson in a parked car in front of his parents' home. He knew the Robinson brothers since childhood; Dimitrik was once engaged to Willis' sister. As the victim backed his vehicle into his father's driveway, Dimitrik Robinson reached in through the passenger side of the car and grabbed the keys from the ignition disabling the vehicle. The victim then attempted to exit the car, but was obstructed when Floyd Robinson pushed the car door pinning him. The two brothers then proceeded to pummel the immobilized victim. Dimitrik Robinson - 3 - began punching the victim in excess of twenty times on the head and face with his fist. Floyd held him and hit him. Finally, Floyd Robinson said, "Stop or you will kill him." The victim fell to the ground and Floyd and Dimitrik Robinson continued to assault and kick the victim. The victim testified that he could not get up and that he could not move. Over objection, Willis also testified that he observed Dimitrik Robinson puncturing the tires on his car. He lost consciousness. He did not regain consciousness until the paramedics shined lights in his face and placed him on a stretcher. The victim was transported to Metro General Hospital where he was treated and released. He sustained severe injuries to his face and head. His eyes were swollen shut for approximately two weeks. His injured jaw was swollen and painful. He did not return to work for three weeks. The medical records indicated that the victim sustained a left lamina papyracea fracture, i.e., a broken nose. The victim's father, William Willis, Sr., also testified to the unprovoked attack. Willis, Sr. was alerted to the trouble by the sound of barking dogs. When he went to the front door, he heard fussing and cussing and saw his son lying on the ground. Then he saw Floyd kicking his son and he saw Dimitrik slashing the tires on his son's car. Willis, Sr. had no trouble identifying the brothers for he testified he knew them since they were children. Dimitrik and Floyd Robinson walked away after Willis, Sr. threatened to call the police. - 4 - Earl Proctor testified that he lived on Emery Avenue where the assault occurred. On the night in question, Proctor was backing his car out of the driveway when he heard vehicles travelling at a high rate of speed and squealing tires. He heard loud talking. By this time, he exited his car and observed the incident: the victim was dragged out of his car by two individuals and struck in the face numerous times until he fell to the ground; the victim struggled to get up; the assailants were two young black males of medium build, and between five feet seven inches and five feet nine inches tall; both males punched and stomped the victim; the second male also punctured the tires; and then both males left the scene. Proctor approached the victim and found him unconscious. He testified that the victim's face was swollen and he was bleeding from the nose and mouth. Sergeant Bell of the Cleveland Police Department responded to the scene and learned from the victim that the Robinson brothers had beaten him up. The defense called Lamar Hemstead and the defendant- appellant. The essence of their testimony was that the victim's car was blocking Emery Avenue and the brother, Floyd Robinson, got into a fight with the victim who appeared intoxicated. Dimitrik claimed he was a bystander who tried to stop his enraged brother and did not slash Willis' tires. From a jury conviction, defendant pursued a timely appeal. - 5 - We will address the assignments of error in the order presented. I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT PERMITTED TESTIMONY ABOUT DIMITRIK ROBINSON ALLEGEDLY SLASHING WILLIAM WILLIS' CAR TIRES DURING A TRIAL ON A FELONIOUS ASSAULT CHARGE WHEN THE TESTIMONY WAS IRRELEVANT AND MORE PREJUDICIAL THAN PROBATIVE AND SHOULD HAVE BEEN EXCLUDED PURSUANT TO EVID.R. 401, 402, AND 403. Defendant contends the testimony about the alleged tire slashing was not relevant as it did not have a tendency to make the existence of any fact of consequence to the determination of the action more or less probable than it could be without the evidence. Evid.R. 401-02. The testimony was offered to prove that Dimitrik Robinson was not a mere observer to the altercation, as he claimed, but was an active participant who aided and abetted his brother in the beating of Willis. Even if relevant, defendant argues that the probative value of the testimony about the tire slashing was substantially outweighed by its prejudicial nature. Evid.R. 403(A) provides: "Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, or confusion of the issues, or of misleading the jury." The determination of the admission or exclusion of evidence is within the discretion of the trial court and will not be reversed without abuse of discretion. State v. Combs (1991), 62 Ohio St.3d 278, 284; Rigby v. Lake Cty. (1991), 58 Ohio St.3d 269, 271; State v. Sage (1987), 31 Ohio St.3d 173, 180. - 6 - We find the evidence was relevant in that it showed the defendant's close participation with his brother in the altercation with the victim. Relevant evidence that is admissible is not limited to merely direct evidence establishing a claim or defense. Circumstantial evidence as it relates to the probative value of other evidence in the case can also be of consequence to the action. State v. Moore (1988), 40 Ohio St.3d 63, 65. The evidence was all part of the same episode and was properly admitted to tell the whole story and describe the assault. State v. Douglas (Sept. 22, 1994), Cuyahoga App. No. 65779, unreported; State v. Logan (Nov. 10, 1993), Cuyahoga App. No. 63943, unreported. In any event, we find the admission of the evidence to be harmless. In order to hold error harmless, the court must be able to declare a belief that the error was harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18; State v. Lytle (1976), 48 Ohio St.2d 391. A reviewing court may overlook an error where the admissible evidence comprises "overwhelming" proof of a defendant's guilt. State v. Williams (1983), 6 Ohio St.3d 281, 290. When a claim of harmless error is raised, the appellate court must read the record and decide the probable impact of the error on the minds of the average jury. Harrington v. California (1974), 395 U.S. 250, 254. In Delaware v. Van Arsdall (1986), 475 U.S. 673, 681, the United States Supreme Court wrote: The harmless-error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence, - 7 - *** and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error. See, also, Jackson v. Howell (1993), 86 Ohio App.3d 497, 501; State v. Adams (1991), 74 Ohio App.3d 140, 145. In the instant case, after a review of the entire record, we find that any prejudice that may have resulted from the testimony about the tire slashing constitutes harmless error. The overwhelming nature of the evidence against defendant would easily establish that he was guilty as charged. State v. Simko (1994), 71 Ohio St.3d 483, 491. Several witnesses observed the assault and two eyewitnesses were able to identify defendant as one of the assailants. In this case, the jury heard the testimony of the victim who specifically identified Dimitrik Robinson and his brother as both being involved in the assault. The father of the victim and a disinterested witness, Earl Proctor, corroborated that testimony beyond a reasonable doubt. It is therefore unlikely that evidence of the slashed tires contributed materially to defendant's conviction. Any claimed error was harmless beyond a reasonable doubt. Assignment of Error I is overruled. - 8 - II. THE VERDICT FINDING DIMITRIK ROBINSON GUILTY OF FELONIOUS ASSAULT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE BECAUSE THERE WAS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF THE OFFENSES HAD BEEN PROVEN 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. - 9 - When the argument is made that the conviction was against the manifest weight of the evidence, the appellate court is obliged to consider the weight of the evidence not its mere legal sufficiency. The defendant has a heavy burden in overcoming the fact finder's verdict. As this Court has stated: The weight to be given evidence and the credibility of witnesses are determinations to be made by the triers of fact. State v. Thomas (1982), 70 Ohio St.2d 79, 24 O.O.3d 150, 434 N.E.2d 1356. If there was sufficient evidence for the triers of fact to find a defendant guilty beyond a reasonable doubt this court will not reverse a guilty verdict based on manifest weight of the evidence. State v. Brown (1988), 38 Ohio St.3d 305, 528 N.E.2d 523, paragraph four of the syllabus, certiorari denied (1989), 489 U.S. 1040, 109 S.Ct. 1177, 103 L.Ed.2d 239. State v. Rios (1991), 75 Ohio App.3d 288, 291. Also, see, State v. Jenks (1991), 61 Ohio St.3d 259, 273. There was ample evidence from the victim, his father and a disinterested neighbor to support the conviction of defendant for participating in a brutal and unprovoked attack on a helpless victim, stomping him when he was down and slashing his tires. The credibility of the witnesses and their conflicting versions of the assault were for the jury to determine. It cannot be said that if the State's case was believed that it was insufficient to sustain the charges. For the same reasons, the conviction is not against the manifest weight of the evidence. 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. JAMES D. SWEENEY, P.J., and BLACKMON, J., CONCUR. JAMES M. PORTER 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 of decision by the .