COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70381 CITY OF CLEVELAND : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION HOWARD BALLARD : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 31, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Cleveland Municipal Court : Case No. 96-CRB-030274 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: CAROLYN WATTS ALLEN Chief Cleveland Prosecutor BRYAN FRITZ, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: WILLIAM T. McGINTY Attorney at Law McGinty, Gibbon & Hilow Co., L.P.A. 1375 East Ninth Street, #1920 Cleveland, Ohio 44114 TIMOTHY E. McMONAGLE, J.: Defendant-appellant Howard Ballard appeals from his convic- tion of assault, in violation of Cleveland Cod. Ord. 621.03, after a trial to the court. Defendant-appellant was sentenced to one hundred eighty days incarceration, one year probation and $1,000 fine, and he was ordered to perform one hundred hours of community service. Appellant timely appeals. For the reasons adduced below, we affirm the decision of the lower court. Appellant presents three assignments of error for our review. ASSIGNMENT OF ERROR NO. I THE TRIAL COURT ERRED IN DENYING APPELLANT THE RIGHT TO A JURY TRIAL. Appellant claims that it was error for the trial court to deny him the right to a jury trial. Specifically, although the appellant concedes that he failed to make a written demand for a jury trial as required by the rules, he argues that he made verbal demands upon the court on three occasions and, therefore, his case should have been tried to a jury. This argument of the appellant is without merit. - 3 - The offense of assault in violation of Cleveland Cod. Ord. 621.03 is a misdemeanor of the first degree, carrying a penalty of no greater than six months. As such, it is a "petty offense" under Crim.R. 2(D). Trial by jury is governed by Crim.R. 23(A), which states in pertinent part: In serious offense cases the defendant before commencement of the trial may knowingly, in- telligently and voluntarily waive in writing his right to trial by jury. Such waiver may also be made during trial with the approval of the court and the consent of the prosecuting attorney. In petty offense cases, where there is a right of jury trial, the defendant shall be tried by the court unless he demands a jury trial. Such demand must be in writing and filed with the clerk of court not less than ten days prior to the date set for trial, or on or before the third day following receipt of notice of the date set for trial, whichever is later. Failure to demand a jury trial as provided in this subdivision is a complete waiver of the right thereto. The record reflects that the trial judge was fully cognizant of the appellant's right to a jury trial if such demand were made. Appellant concedes that no demand was made in writing before the date set for trial as required by the rule. Failure to demand a jury trial as provided by the rule is a complete waiver of the right in petty offense cases. Crim.R. 23; Dayton v. Drake (1990) 69 Ohio App.3d 180; City of Cleveland v. Oppman (Sep. 8, 1994), Cuyahoga App. Nos. 66282, 66283, 66284, 66285, 66286, 66287, 66288, 66289, unreported. The appellant has not been deprived of a right which he has waived. - 4 - Accordingly, the appellant's first assignment of error has no merit and is overruled. ASSIGNMENT OF ERROR NO. II THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant complains that the verdict of the trial court was against the manifest weight of the evidence. Specifically, the appellant contends that the evidence presented by the prosecution witnesses was both inconsistent and contradictory. In State v. Martin (1983), 20 Ohio App.3d 172, the court set forth the test to be utilized when addressing the issue of mani- fest weight of the evidence. The Martin court stated, at p. 175, as follows: *** The court, reviewing the entire record, weighs the evidence and all reasonable infer- ences, 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), 4547 U.S. 31, 38, 42. In determining whether the decision of a trial court is against the manifest weight of the evidence, the following factors are guidelines to be taken into account by the reviewing court: (1) The reviewing court is not required to accept as true the incredible; (2) whether the evidence is uncontradicted; (3) whether a witness was impeached; - 5 - (4) what was not proved; (5) the certainty of the evidence; (6) the reliability of the evidence; (7) whether a witness' testimony is self- serving; (8) whether the evidence is vague, uncertain, conflicting or fragmentary. Further, a reviewing court will not reverse a verdict where there is substantial evidence upon which the trier of fact could reasonably conclude that all the elements of an offense have been proved beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. At trial, the city presented testimony from three witnesses. Each witness testified that the appellant assaulted the victim by striking her in the face and head, causing her to fall. The prosecution first called the victim, who testified that she had known the appellant for three years and that they lived in the same apartment complex. She said the appellant and his friend Fred were sitting on the steps at the apartment building. She stated that the appellant confronted her while she was walking up the driveway with her daughter. After a verbal altercation, the appellant, in a surprise attack, started hitting her in the face, causing her to fall, to injure her thigh and to hit her head into the wall. The appellant then stopped the attack and went inside to finish his beer with his friend. Unknown to her at the time, a witness in the apartment building called the police. After the - 6 - attack, the victim testified that she went to the pay phone to call the police. The victim was cross-examined by counsel for the defendant. Next, the prosecution called the victim's daughter, who was a witness to the incident. The daughter testified that as she and her mother approached their building, both the appellant and his friend Fred said "something" and started getting physical. The appellant hit her mother, and her mother fell and almost hit the step with her head. The daughter stated that Fred grabbed her arm; then, the appellant and his friend Fred left and went upstairs. Finally, Nancy Callahan, a witness to the incident, testified for the city. Callahan stated that she knew the victim slightly and that she has known the appellant for a year. From her window, she was able to see the victim, her daughter, the appellant and his friend, Fred Gresham. Callahan testified that she saw the appellant strike the victim in the face and then hit her a second time, knocking her to the ground. Callahan immediately called the police. She ran to another apartment to get help for the victim. On cross-examination, Callahan testified that she did not talk to the police when they came. At the close of the city's case, counsel for the appellant moved for acquittal pursuant to Crim.R. 29 on the basis that the evidence presented was "confusing" and "made no sense." The trial court overruled the defense motion. - 7 - The defense presented its first witness, Linda Bailey, the apartment manager. Bailey testified that from the window of her apartment, she saw the victim and her daughter. When she heard all the commotion, she opened her apartment door and saw the appellant at the top of the stairs by her door. The victim and her daughter were pushing "Fred" up against the mailboxes at the bottom of the stairs. The victim asked Bailey to call the police, but Bailey refused. She testified that the victim caught her foot and fell down. Bailey stated that she did not see either Fred or the appellant push the victim down. She did not see the appellant touch the victim or the victim's daughter. When the police arrived, Bailey noted that the victim, although she had told the police that the appellant had hit her, also identified Fred as the one "who hit me." Counsel for the city cross-examined Bailey. The defense then presented Lorna Sherman, the girlfriend of the appellant, who witnessed the incident. Sherman testified that when she heard a commotion, she went into the hallway and saw the victim pushing Fred while the daughter of the victim was hitting Fred and trying to stab him with a pencil. She stated that the victim caught her shoe and fell. She stated that during the scuffle at the bottom of the stairs, the appellant was standing with her outside her apartment on the second floor. Sherman testified that she did not see the appellant touch or strike the victim or the victim's daughter. - 8 - The defense next called Fred Gresham, who testified to his version of the events of September 8th. Gresham stated that he and the appellant were sitting on the landing of the building when the victim and her daughter walked past. The victim called out to them, calling them "effin niggers," and then walked on. The victim went up to her door and tried the key, but, then, the victim and her daughter walked back and the daughter hurled a "loaded pop can" at the two of them. The appellant ducked, slipped and hit his head on the driveway. Gresham jumped up and grabbed both the victim and her daughter. He directed the appellant to go inside. The victim's daughter held up a pencil as if to attack him with it, but the child never lunged at him. He took the pencil from her and broke it. The three of them, Gresham, the victim and her daughter, then went into the building. The victim then asked the manager, Linda Bailey, to call the police or to let her use the manager's phone. Bailey refused. Gresham gave the victim a quarter and told her if she thought that he and the appellant had done something to her, she should call the police. At that point, the victim started pushing Gresham, then she turned and fell. Gresham never saw the appellant strike or push the victim. The appellant testified on his own behalf. He stated that he did not strike or push the victim and did not strike or shake the victim's daughter. On cross-examination, the appellant testified that he did not observe anyone injure or attempt to injure the victim. - 9 - The defense renewed its motion for acquittal pursuant to Crim.R. 29. The court denied the motion. The court then found the appellant guilty of assault. Having reviewed the entire record here, and weighing all the evidence and reasonable inferences, considering the credibility of the witnesses and resolving the conflicts in the evidence, as we are constrained to do, we cannot say that the finder of fact clearly lost its way and created such a manifest miscarriage of justice that this conviction must be reversed and a new trial order. Accordingly, the appellant's second assignment of error is overruled. ASSIGNMENT OF ERROR NO. III APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL DUE TO DEFENSE COUNSEL'S DEFICIENT REPRESENTATION IN 1) FAILING TO MAKE THE PROPER JURY DEMAND IN ACCORDANCE WITH APPELLANT'S WISHES; 2) FAILING TO CONSULT WITH APPELLANT PRIOR TO TRIAL; AND 3) FAILING TO CALL THE REPORTING POLICE OFFICERS TO TESTIFY THAT THE VICTIM ORIGINALLY IDENTIFIED FRED GRESHAM, NOT THE APPELLANT, AS THE PARTY WHO ASSAULTED HER. Appellant, in this assigned error, complains that he was denied effective assistance of counsel. Specifically, appellant contends that counsel's representation was deficient in three areas: failure to make a jury demand; failure to meet with appellant before trial; and failure to present witnesses to pres- ent exculpatory evidence. - 10 - To establish ineffective assistance of counsel, appellant must show his counsel substantially violated an essential duty and appellant was prejudiced thereby. Strickland v. Washington (1984), 466 U.S. 668. In order to succeed on a claim of ineffective assistance of counsel, appellant must satisfy the following two-prong test: first, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client; next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness. State v. Lytle (1976), 48 Ohio St.2d 391, 396-97. Courts presume that duly licensed attorneys perform effec- tively. Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. First, it is conceded that no written request for a jury trial was made on behalf of the appellant; however, there is no evidence in the record that counsel for the appellant failed to request a jury trial at the prior request of the appellant. Further, appellant has failed to show that he was prejudiced by counsel's failure to request a jury trial. Second, although it is conceded that counsel did not meet with appellant prior to trial, appellant has presented no evidence of prejudice from the failure to consult with him. Third, appellant contends that exculpatory evidence could have been presented if the police officers had been called to testify; however, there is nothing in the record to substantiate the - 11 - appellant's claim that such exculpatory evidence existed and, further, the appellant presented no evidence that he was preju- diced by failure to call such witnesses. Accordingly, the appellant has failed to show that his coun- sel was ineffective. Therefore, appellant's third assignment of error is overruled. The decision of the trial court is 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. PATRICIA BLACKMON, P.J. and JAMES M. PORTER, J. CONCUR JUDGE TIMOTHY E. McMONAGLE 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 .