COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70325 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION FRANCINE MITCHELL : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MARCH 6, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-329387. JUDGMENT: AFFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Michael Zidar Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Rufus Sims, Esq. Rucker, Sims & Associates Glin Medical Building, Suite 209 16104 Chagrin Boulevard Shaker Heights, Ohio 44120 SWEENEY, JAMES D., C.J.: Defendant-appellant Francine Mitchell (Francine) appeals from her conviction for domestic violence in violation of R.C. 2919.25. The court suspended the imposed sentence of two year's incarceration and placed the appellant on probation for two years. On July 4, 1995, Ms. Luann Mitchell (Luann), the appellant's older sister and the victim, was invited over to her mother's house located at 12521 Arlington Avenue, Cleveland, Ohio, because an aunt was in town visiting from Dayton, Ohio. During the telephone call from her mother, Ms. Sarah Mitchell (Ms. Mitchell), Luann inquired whether the appellant would be present. Upon assurances that the appellant would not attend, Luann agreed to the visit. The relationship between Luann and Francine is less than amicable. When she arrived at her mother's home, Luann exited her vehicle and went to the trunk to retrieve a camcorder. As she did so, the appellant catapulted out of the house and lunged at her. The appellant called Luann names and scratched her car with acrylic fingernails. These marks on the vehicle were corroborated by Steven Moyal, the General Sales Manager of Hal Artz Lincoln Mercury, who observed them when the victim brought the vehicle to the dealership to report the damage. Luann attempted to dissuade Francine from the attack but was unsuccessful. Luann ran to the house, entered, and attempted to pull the door closed behind her. During the ensuing struggle in which Luann attempted to keep the door closed and Francine - 3 - attempted to open the door, the appellant injured both of her shoulders. When it was evident that Luann was losing the struggle, she fled further into the home to seek her mother. Luann ran up the stairs past her mother, a move which placed Mrs. Mitchell between her daughters. Luann testified that in the attempt to reach the victim, the appellant knocked down Mrs. Mitchell. Mrs. Mitchell prevented the appellant from reaching Luann by kicking the appellant. After the altercation, the appellant telephoned the police. Luann left the premises and drove to a nearby neighbor. The appellant left as well and proceeded to another neighbor's home. When the police arrived, Francine refused to speak with them. A statement was taken from Luann and a report filed. The victim testified that in addition to her shoulder injuries, she suffered bruises to her legs and a scrape to her forehead. The bruises and scrapes were documented in photographs taken shortly after the attack. The left shoulder injury was substantiated by Dr. Jeffrey Chaitoff, Luann's physician. The appellant presented the testimony of both her neighbor, Ms. Denita Place, and her mother. Both women testified that Francine did not initiate a confrontation. The appellant's first appointment with Dr. Chaitoff was December 4, 1995. Dr. Chaitoff testified that the type of injury suffered by the victim was consistent with Luann's rendition of the altercation with the door. The reason Luann did not seek earlier - 4 - medical attention was due to embarrassment. Dr. Chaitoff agreed that Luann is a proud woman aware of her status as an attorney. The appellant sets forth the following two assignments of error: I THE JURY'S CONVICTION OF APPELLANT FOR DOMESTIC VIOLENCE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS REASONABLE MINDS COULD HAVE REACHED DIFFERENT CONCLUSIONS WITH RESPECT TO EACH MATERIAL ELEMENT OF THE CRIME BEING PROVED BEYOND A REASONABLE DOUBT. II THE TRIAL JUDGE ERRED BY NOT GRANTING APPELLANT'S RULE TWENTY NINE MOTION FOR JUDGMENT OF ACQUITTAL. In the first assignment of error, the appellant argues that the verdict was against the manifest weight of the evidence. In the second assignment of error, the appellant asserts that the appellee failed to present sufficient evidence upon which to base a conviction. Crim.R. 29(A). The Supreme Court set forth the test for appellate review of both the sufficiency and the manifest weight of the evidence in State v. Jenks (1991), 61 Ohio St.3d 259, 273. A verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier of fact. A reviewing court will not reverse a verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of the offense have been proven beyond a reasonable doubt. State v. Ely (1978), 56 Ohio St.2d 169; State v. - 5 - DeHass (1967), 10 Ohio St.2d 230. The weight to be given evidence and the credibility of witnesses are primarily for the trier of fact to determine. Jenks, supra. In the case sub judice, the appellant was convicted for a violation of R.C. 2919.25(A), which states: No person shall knowingly cause or attempt to cause physical harm to a family or household member. The appellant asserts that the case is replete with evidence indicating her innocence. The appellant specifically points to the victim's delay in seeking medical treatment. This delay was, however, explained sufficiently by Dr. Chaitoff so as to permit the jury to refuse to construe this evidence in the appellant's favor. The record clearly shows that the jury heard testimony that the victim, Luann Mitchell, was afraid of her sister, the appellant. The State presented testimony that the appellant lunged at Luann and that Luann attempted to flee from the appellant. In the ensuing altercation Luann suffered injuries to her shoulders, bruises to her legs, and a scrape to her forehead. These facts constitute sufficient evidence upon which to base the appellant's conviction. The jury was entitled to evaluate the credibility of the witnesses and determine weight of the evidence. Jenks, supra. The appellee presented substantial evidence upon which the jury could reasonably conclude that all the elements of the offense have been proven beyond a reasonable doubt. Since reasonable - 6 - minds could reach the conclusion reached by the trier of fact, this court will not disturb the verdict. The appellant's first and second assignments of error are overruled. Judgment affirmed. - 7 - 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 Common Pleas 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. TERRENCE O'DONNELL, J., CONCURS. DIANE KARPINSKI, J., CONCURS IN JUDGMENT ONLY. SEE ATTACHED CONCURRING OPINION. JAMES D. SWEENEY CHIEF JUSTICE 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 clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70325 : STATE OF OHIO : : : Plaintiff-Appellee : : CONCURRING v. : : OPINION FRANCINE MITCHELL : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 6, 1997 KARPINSKI, J., CONCURRING IN JUDGMENT ONLY: I concur with the majority opinion. However, I do not believe that the majority opinion adequately observes the distinction between the tests for sufficiency and for manifest weight. See my separate concurring opinion in State v. Camp (June 15, 1995), .