COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70740 STATE OF OHIO : : : Plaintiff-appellee : : -vs- JOURNAL ENTRY : AND : OPINION JASON DILL : : Defendant-appellant : DATE OF ANNOUNCEMENT AUGUST 28, 1997 OF DECISION CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-330036. JUDGMENT Affirmed. DATE OF JOURNALIZATION APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones, Esq. Charles H. Bragg, Esq. Cuyahoga County Prosecutor The Courtyard Office Park By: Michael P. Donnelly, Esq. 7055 Engle Road, Suite 1-103 Assistant Prosecuting Attorney Middleburg Hts., Ohio 44130 Justice Center-Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 ROCCO, J.: 2 Defendant-appellant Jason Dill appeals from his conviction after a bench trial on one count of felonious assault with two violence specifications, contending his conviction was both based upon insufficient evidence and against the manifest weight of the evidence. After reviewing the record, this court determines the trial court's judgment was supported by the evidence, therefore, appellant's conviction is affirmed. Appellant's conviction stems from an incident which occurred at the Sportsman's Inn, a tavern located on Prospect Road in Berea, Ohio. The state's witnesses testified to the following scenario of the incident. At approximately 11:30 p.m. on October 6, 1995, the victim, Kelly Kirk, arrived at the tavern with the mother of his child, his companion of seven years, Donna Schmidlin. The couple proceeded to converse with some friends and Kirk played a game of pool. During this time, both Kirk and Schmidlin consumed some alcohol. Also during this time, Kirk noticed another acquaintance of his, Tony Janowick, sitting at the bar; the two men acknowledged each other. At approximately 12:30 a.m. soon after their friends had left, Schmidlin became aware of a disturbance at the bar. She observed Janowick arguing 1 with two other men, later identified as appellant and his co-defendant in this case, Vince Karwatsky. Karwatsky apparently disliked the manner in which Janowick was speaking to his friend the bartender. The argument appeared to be 1Quotes indicate testimony given by a witness at appellant's trial. 3 resolved quickly, however, so Schmidlin paid the matter no further attention. Soon thereafter, Karwatsky and his girlfriend, Nan Rappaport, approached Kirk and Schmidlin and visited with them. The tavern closed at 1:00 a.m., therefore the two couples decided to proceed to some other establishment to obtain something to eat. Since Rappaport had ridden a bicycle to the tavern, Schmidlin offered to help her lift it into the pickup truck which she and Kirk had parked outside. Because it was nearer to the truck, Schmidlin, Rappaport and Kirk exited the tavern through its front door. Janowick, apparently intending to finish the argument he had been having previously with Karwatsky, went out the back door of the tavern. While Rappaport's bicycle was being placed on the truck bed by the women a few minutes later, Kirk noticed some activity taking place in the parking lot toward the rear of the building. He approached the area and observed Janowick on the ground. Although Janowick had punched Karwatsky first, Karwatsky had Tony in a headlock and was hitting him in the face while appellant watched. Kirk shouted to the men to [b]reak it up. His calls attracted the women's attention, therefore, they came closer to observe the scene. Kirk's warnings soon caused the combatants to separate; thereafter, appellant and Karwatsky quickly returned to appellant's car. Both Janowick and Rappaport, however, angered at the situation, called out threats and imprecations to appellant and Karwatsky across the parking lot. 4 At this point, Schmidlin told Rappaport to shut up because she was starting it again. Rappaport reacted by grabbing Schmidlin by the hair, thus, the women started fighting. Kirk managed to separate them as well. He took Schmidlin by the shoulders, pushed her toward their pickup truck, and told her to get inside it. As he did so, he observed appellant and Karwatsky re-approaching. Rappaport had run over to Janowick, who appeared to be looking for rocks to throw, since he had shouted he wanted to break appellant's car windows. Schmidlin took a few steps toward the truck; Karwatsky walked up to her, swung an aluminum baseball bat he held in his hands, and struck her with it in the jaw. Schmidlin collapsed. Kirk immediately went toward Schmidlin's assailant, however, before Kirk could reach Karwatsky, appellant struck Kirk in the back of the legs with what appellant later identified as a tire checker. 2 Kirk fell to the ground. At that, appellant and Karwatsky began striking him with the objects they held in their hands. Kirk covered his head with his arms and rolled from side to side in an effort to protect himself. As he did so, a police cruiser, which had been dispatched to the scene by the Berea Police Department, arrived. Officer Joseph Quinn and Thomas Walker were in the cruiser. As they entered the parking lot, which thus was well-illuminated by 2Appellant testified a tire checker is an instrument used to determine the air pressure in tires on semis. Officer Quinn testified it appeared to be a stick and was approximately one to one and a half feet in length. 5 their cruiser's headlights, both officers observed a man down on the ground and two males standing over him, hitting him with *** a bat and club. Officer Quinn, who was driving, pulled the cruiser almost on top of the victim in an attempt to try to back the people off. The attempt failed. The officers then quickly emerged from their cruiser and yelled to the two men to drop their weapons. The order was ignored, therefore, Quinn drew his .45 caliber duty firearm and repeated the order. However, Quinn had to repeat it several times before appellant finally obeyed. Appellant and Karwatsky were then placed under arrest. Kirk was able to rise and to reach Schmidlin. He sustained only bruises in the incident. However, Schmidlin was removed by ambulance; later, it was determined she had several facial fractures, lacerations of her lips and scalp, and a ruptured tympanic membrane. Walker observed Karwatsky had a cut on the lip. Appellant had no visible injuries. Appellant and Karwatsky subsequently were indicted together on two counts of felonious assault, R.C. 2903.12, with two violence specifications. They pleaded not guilty to the charges and signed jury waiver forms, thus, their cases were tried together to the bench. After hearing the testimony of the state's witnesses and appellant and his co-defendant, the trial court found appellant guilty of the count of felonious assault relating to Kirk but not guilty of the count relating to Donna Schmidlin. The trial court 6 subsequently sentenced appellant to a term of incarceration of three to fifteen years. Appellant has filed a timely appeal of his conviction and presents the following as his sole assignment of error: THE CONVICTION OF THE APPELLANT, (SIC) JASON DILL WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND WAS INSUFFICIENT TO SUSTAIN HIS CONVICTION AS A MATTER OF LAW. In this assignment of error, appellant actually advances two separate arguments. First, he apparently asserts the trial court erred in overruling his Crim.R. 29 motions for acquittal, contending the state provided insufficient evidence to support all the elements of violation of R.C. 2903.11. A motion for acquittal should be denied if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proven beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St.2d 261; State v. Jenks (1991), 61 Ohio St.3d 259. The trial court is required to view the evidence and reasonable inferences therefrom in a light most favorable to the prosecution. Id.; see, also, State v. Martin (1983), 20 Ohio App.3d 172. Appellant was charged with violation of R.C. 2903.11(A)(2) which states: S2903.11 Felonious assault. (A) No person shall knowingly: * * * (2) Cause or attempt to cause physical harm to another *** by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code. 7 R.C. 2923.11(A) defines a deadly weapon as any instrument, device or thing capable of inflicting death, and *** adapted for use as a weapon, or *** used as a weapon. In this case, the state presented the testimony of the victim, who stated that after Karwatsky hit Schmidlin with the baseball bat, he ran to grab Karwatsky but was stopped by appellant; at that point, Kirk was getting hit with State's Exhibit No. 6, later identified by appellant as a tire checker. Kirk further testified he went down on the ground and was rolling from side to side trying to cover up with my hands as both appellant and Karwatsky were striking him with the bat and that pipe. Janowick also saw appellant holding the instrument; Janowick testified that after Karwatsky hit Schmidlin, Jason was hitting Kelly [Kirk] with the smaller bat and that soon thereafter, the police arrived. The police officers observed appellant hitting Kirk with a club or a stick of some kind of approximately a foot, foot and a half long as they entered the parking lot. Officer Quinn identified State's Exhibit No. 6 as the item appellant utilized. The injuries to Kirk's knee and side also were documented in photographs taken the following morning at the police station and submitted to the trial court as exhibits. From the foregoing evidence, a reasonable trier of fact could have found the requisite elements of R.C. 2903.11(A)(2) were proven beyond a reasonable doubt. State v. Czajka (1995), 101 Ohio App.3d 8 564; State v. Brown (1994), 97 Ohio App.3d 293; State v. Zackery (1987), 31 Ohio App.3d 264; see, also, State v. Nara (March 11, 1993), Cuyahoga App. No. 61955, unreported. Appellant also argues his conviction is against the manifest weight of the evidence. Based upon the record on appeal, this court does not find his argument persuasive. 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, supra, at 175 as follows: 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 [trier of fact] 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. (Emphasis added.) Moreover, the weight of the evidence and the credibility of witnesses are primarily for the trier of fact; a reviewing court must not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus; State v. Eley (1978), 56 Ohio St.2d 169; see, also, State v. Jenks, supra. In this case, the trial court heard the testimony of the victims, Tony Janowick, the police officers, and also of appellant and his co-defendant. The state's witnesses presented a logical, 9 coherent sequence of events. These events culminated in appellant's securing from the trunk of his car two formidable instruments; one, a baseball bat, was used by Karwatsky to inflict serious injury upon Schmidlin, the other, the tire checker was used as a weapon by appellant to beat Kirk when Kirk attempted to apprehend Karwatsky. The testimony of the victims and Janowick was corroborated by that of the police officers and by the physical evidence placed before the trial court. Appellant and his co-defendant, on the other hand, presented evidence which was in large part both self-serving and incredible. Karwatsky stated he did not flee the fight because he was not familiar with the area, despite having lived in a nearby community all his life. He further stated Schmidlin approached him even though he was swinging the baseball bat around in an effort to fend off Kirk and Janowick. Appellant testified he was a friend of the owner of the Sportsman's Inn, yet when he pounded on the door, and was screaming that his buddy just got hit, his friend told him merely to use the pay phone located nearby. Appellant also stated he first tackled Kirk, although how he accomplished this while holding the tire checker at the same time was not explained. Appellant further stated he used the tire checker to defend Karwatsky from both Kirk and Janowick; however, upon their arrival, the police officers stated Janowick was nowhere in view as they observed appellant and Karwatsky striking Kirk with the weapons. Moreover, the police officers found the combatants in a location in 10 the parking lot some distance from the location appellant and Karwatsky's version of the incident would have placed them. Reviewing the record, therefore, this court cannot infer the trial court clearly lost its way in resolving conflicts in the evidence. Thus, its decision that appellant was guilty of violation of R.C. 2803.11(A)(2) was not against the manifest weight of the evidence. State v. Moldwin (Apr. 30, 1992), Cuyahoga App. No. 60564, unreported; State v. Hensley (June 27, 1991), Crawford App. No. 3-90-16, unreported. Accordingly, appellant's sole assignment of error is overruled. Appellant's conviction is affirmed. 11 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 Cuyahoga County 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. JAMES M. PORTER, P.J., AND JOSEPH J., NAHRA, J., CONCUR. ________________________________ JUDGE KENNETH A. ROCCO 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 .