COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70902 CITY OF SHAKER HEIGHTS : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION DARGAN J. BURNS : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 3, 1997 CHARACTER OF PROCEEDING : Criminal appeal from : Shaker Heights Municipal : Court : Case No. 96 CRB 01219 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: GARY R. WILLIAMS, Prosecutor Shaker Heights City Hall 3400 Lee Road Shaker Heights, Ohio 44120 For defendant-appellant: WILLIAM D. MOORE Attorney at Law 620 Leader Building 526 Superior Avenue, N.E. Cleveland, Ohio 44114 TIMOTHY E. McMONAGLE, J.: Defendant-appellant, Dargan Burns, appeals his conviction of domestic violence under Section 737.14(a) of the Codified Ordi- nance of Shaker Heights after trial to the bench. Burns claims that the trial court erred in failing to adhere to the strict mandates of Crim.R. 43(A) and R.C. 2938.11(F) and further claims that the verdict of guilt is against the manifest weight of the evidence and contrary to law. Finding no reversible error in the court below, we affirm. On April 12, 1996, Joyce Burns reported an incident of domestic violence to the Shaker Heights Police Department alleging that she was injured by the defendant, her ex-husband, on April 9 during a struggle over documents. The defendant was charged with domestic violence and was arraigned on April 15, when he entered a plea of not guilty. The matter went to trial before the bench on April 22, 1996. In support of its case, the city presented testimony from the complaining witness, Joyce Burns, who testified that she and the defendant, Dargan Burns, were divorced in August, 1995. Both she and the defendant resided in the marital home, which was to be sold pursuant to order of the domestic relations court. On April 9, 1996, the real estate agent came to the home for the purpose of measuring the rooms in preparation for the sale - 3 - of the home. The agent was carrying blueprint documents for the home. Mrs. Burns opened the inside door, and the agent entered the back hall. The defendant was standing just behind his ex-wife as she opened the door. Mrs. Burns "snatched" the blueprint from the real estate agent. In an apparent attempt to get her to release the blueprint, the defendant grabbed her wrist very hard and pulled her hair, jerking her head back. After more than ten seconds, when she failed to release the document, he let go. That night, when she saw the bruises on her arms, she showed them to the defendant. The next morning, she flew to Chicago for a family funeral. On Thursday, after she returned from Chicago, she called her doctor and made an appointment for the next morning, April 12. From her doctor's office, she went directly to the Shaker Heights police to file her report. The city rested its case. The defense presented the testimony of the defendant and the real estate agent who was witness to the event. The defendant took the stand on his own behalf and stated that he and his ex-wife had a confrontation at the back door of the house as the real estate agent was waiting to get into the house to take room mea-surements. When the door was finally opened, his ex-wife grabbed the blueprints out of the agent's hand. He and the real estate agent then went into the kitchen, where she began to take the measurements. He testified that at no time did he grab or touch his ex-wife's hair. He further stated that he "absolutely" did not - 4 - touch his wife in an attempt to hinder her in taking the plans from the agent. The real estate agent testified that she came to the house by appointment to measure the rooms. She rang the doorbell but left the doorway to retrieve the plans from the car. Mrs. Burns had opened the door and, when the agent re-approached the door, Mrs. Burns slammed the door in her face. Mrs. Burns then re-opened the door, and the agent entered the hallway. She stated that she had the plans in her hands and, as she attempted to hand the plans to the defendant, Mrs. Burns "snatched" them from her hand. The real estate agent testified that she did not see the defendant threaten his ex-wife, grab her arm, or physically abuse her. The defense rested. The court received the case as "heard and submitted." On April 29, 1996, the court entered its finding of guilt. The defendant appeared for his sentencing on May 30, 1996. On that date, he learned of the court's finding of guilt, and he was then sentenced to thirty days in jail and fined $1,000.00. The court suspended all jail time and $500 of the fine. On June 7, 1996, the defendant filed a motion for a new trial, which was denied by the court on June 13, 1996. The defendant timely filed his notice of appeal and presents five assignments of error for our review. - 5 - ASSIGNMENT OF ERROR NO. I THE COURT ERRED TO THE PREJUDICE OF DEFENDANT IN FINDING THAT HE HAD KNOWINGLY CAUSED OR ATTEMPTED TO CAUSE PHYSICAL HARM TO A FAMILY OR HOUSEHOLD MEMBER, NAMELY HIS EX-WIFE. In his first assigned error, appellant complains that the evidence presented did not support a finding beyond a reasonable doubt of one essential element of the crime charged. Specifi- cally, appellant contends that the evidence does not support a finding that he "knowingly" caused physical harm to a family member. Essentially, the appellant's argument goes to the suffi- ciency of the evidence on this element of the charge. 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 1 of the crime proven beyond a reasonable doubt. 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 2 proven beyond a reasonable doubt. 1 State v. Jenks (1991), 61 Ohio St.3d 259. 2 State v. Eley (1978), 56 Ohio St.2d 169. - 6 - To sustain a conviction for domestic violence, the city was required to prove that the appellant knowingly caused or attempted 3 to cause physical harm. One acts "knowingly" when, " *** regardless of his purpose, [one] is aware that his conduct will probably cause a certain 4 result or will probably be of a certain nature. ***" The record reflects that the appellant pulled the victim's hair and grabbed her wrist with force and held her arm tightly for more than ten seconds in an attempt to cause her to release the documents that she had snatched out of the hands of the real estate agent. The evidence, when examined in the light most favorable to the state as 5 required by State v. Bridgeman, is sufficient to support a finding beyond a reasonable doubt that the appellant acted "knowingly" when he grabbed his ex-wife's wrist and held it so hard that, as a result of this force, bruises developed on her wrist. We find, therefore, a rational trier of fact could have found each of the essential elements of the crime of domestic violence proven beyond a reasonable doubt. Accordingly, appellant's first assignment of error has no merit and is overruled. 3 Cod. Ord. of Shaker Heights, Sec. 737.14(a). 4 R.C. 2901.22(B). 5 State v. Bridgeman (1978), 55 Ohio St.2d 261. - 7 - ASSIGNMENT OF ERROR NO. II THE COURT ERRED TO THE PREJUDICE OF DEFENDANT BY FAILING TO ADHERE TO THE STRICT MANDATE OF CRIMINAL RULE 43(A) WHICH REQUIRED THE DEFEN- DANT'S PRESENCE AT EVERY STAGE OF THE PRO- CEEDINGS. In his second assignment of error, appellant contends that the trial count committed error requiring either acquittal or reversal and remand when it entered the verdict of guilt against him on April 25, 1996, while he was neither present in open court nor scheduled to be present as required by Crim.R. 43(A). We do not agree. Crim.R. 43(A) provides that "*** [t]he defendant shall be present at the arraignment and every stage of the trial, including the impaneling of the jury, the return of the verdict, and the imposition of the sentence, except as otherwise provided by these rules." The record before us reflects that the verdict was journal- ized by the court on April 25, 1996, and the court set sentencing for May 30, 1996. It is clear from the record of the sentencing proceedings of May 30, 1996, that, although the appellant did not receive notice of the verdict from the court following the jour- nalization of its verdict, the court did, on May 30, 1996, announce to the appellant, in open court, the verdict of guilt found against him on the charge of domestic violence. The court then proceeded with his sentencing. - 8 - Therefore, from the record before us, it cannot be said that the appellant was not present at every stage of the proceedings as contemplated by the rule. Appellant was present at all stages of his trial, he was present when the judge advised him of the ver- dict against him in open court, and he was present at his sentenc- ing. Accordingly, appellant's second assignment of error has no merit and is overruled. ASSIGNMENT OF ERROR NO. III THE COURT ERRED TO THE PREJUDICE OF DEFENDANT BY FAILING TO ADHERE TO THE STRICT REQUIREMENT OF SECTION 2938.11(F) OF THE OHIO REVISED CODE WHICH REQUIRED THAT ANY FINDING BY THE JUDGE SHALL BE ANNOUNCED IN OPEN COURT NOT MORE THAN FORTY-EIGHT HOURS AFTER SUBMISSION OF THE CASE TO HER. In this assignment of error, appellant contends that where the court violates the mandate of R.C. 2938.11(F) to announce its finding in open court not more than forty-eight hours after the submission of the case, reversal and remand in conformity of the rules is required. We do not agree. R.C. 2938.11 provides that "*** [a]ny finding by the judge or magistrate shall be announced in open court not more than forty- eight hours after the submission of the case to him." - 9 - This statutory provision is merely directory in nature and is 6 not a mandatory rule. Although the forty-eight-hour directive is not mandatory, a defendant is entitled to judgment within a rea- sonable time after a case has been submitted to the court for 7 8 disposition. In State v. Hatcher, the court found even a thirty- three-day delay was not unreasonable for a traffic offense. Appellant here was charged on April 12, 1996, with the crime of domestic violence, a first degree misdemeanor. He was tried, convicted and sentenced by May 30, 1996. We do not find this time frame to be unreasonable; therefore, where there is no claim of violation of the appellant's constitutional right to a speedy trial, we find appellant's claim that the court's failure to follow the directive of R.C. 2938.11(F) is reversible error to be without merit. Accordingly, appellant's Assignment of Error No. III is overruled. ASSIGNMENT OF ERROR NO. IV THE FINDING OF GUILTY BY THE COURT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In his fourth assignment of error, appellant contends that the verdict was against the manifest weight of the evidence. 6 State ex rel. Turrin v. County Court (1966), 5 Ohio St.2d 194. 7 Sheffield v. Nieves (1976), 52 Ohio App.2d 187, 188. 8 State v. Hatcher (1982), 2 Ohio Misc.2d 8. - 10 - Specifically, appellant contends that the testimony of his ex-wife was incredible, contradicted and uncorroborated and that, there- fore, the facts presented are insufficient to warrant a finding of guilt beyond a reasonable doubt. 9 In State v. Martin, the court set forth the test to be utilized when addressing the issues of manifest weight of the evidence. The Martin court, at p. 175, stated as follows: 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), 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; (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; 9 State v. Martin (1983), 20 Ohio App.3d 172. - 11 - (8) whether the evidence is vague, uncertain, conflicting or fragmentary. Moreover, the weight of the evidence and the credibility of 10 the witnesses are primarily for the trier of fact. The evidence presented to the court by the complaining wit- ness indicates that the appellant grabbed his ex-wife's arm as she "snatched" the blueprints from the real estate agent. Further, this grabbing or holding of her arm caused bruises. Although the appellant denied that any physical contact took place and the witness testified that she did not see any physical contact, the court, as the finder of fact, apparently determined that the complaining witness was more credible. Therefore, upon review of the entire record before us, when we weigh the evidence and all reasonable inferences and when we consider the credibility of the witnesses, we do not find the testimony of the complainant so astonishing or incredible that it could be said that the trier of fact so clearly lost its way and created such a manifest miscarriage of justice in resolving the conflicts in the evidence that the conviction must be reversed and a new trial ordered. Accordingly, appellant's fourth assignment of error is not well taken and is overruled. 10 State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. - 12 - ASSIGNMENT OF ERROR NO. V THE FINDING OF GUILTY BY THE COURT WAS CON- TRARY TO LAW. With his final assignment of error, appellant complains that the facts of the case do not give rise to the charge of domestic violence. Specifically, the appellant complains that his only purpose in the struggle, as described by his ex-wife, was to gain possession of the blueprint documents. He argues that such a struggle, even where it resulted in bruises, will not support a conviction for domestic violence. We do not agree. 11 Appellant relies on State v. Burgess for the proposition that where a struggle, which in that case resulted in bruises from an attempt to prevent the wife from taking a camcorder, is not perceived to be a personal physical attack, then a defendant is not guilty of domestic violence. Appellant's reliance on Burgess is misplaced. In Burgess, the lower court found defendant Burgess not guilty of the offense of domestic violence but concluded that his conduct constituted disorderly conduct, a fourth degree misde- meanor as a lesser included offense of domestic violence. Burgess appealed that conviction on the basis that the offense of which he was convicted was not a lesser included offense of domestic vio- lence. On appeal, the court agreed, found Burgess's argument well taken, reversed and remanded, holding that disorderly conduct. pursuant to R.C. 2917.11(A)(1)(4) and (5), as a fourth degree 11 State v. Burgess (1992), 79 Ohio App.3d 584. - 13 - misdemeanor, is not a lesser included offense of domestic vio- lence. The Burgess court made no determination as to the lower court's finding of not guilty of domestic violence on the evidence presented, and we will not go so far as to say that that case stands for that proposition, as presented by the appellant here. Having determined in our analysis of the appellant's first assigned error that sufficient evidence existed to support a finding beyond a reasonable doubt on each element required in the charge of domestic violence and, further, having shown in our analysis of appellant's fourth assigned error that the verdict was not against the manifest weight of the evidence, we find that the finding of the lower court was in accordance with law. Accordingly, appellant's fifth assignment of error has no merit and is overruled. - 14 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this ap- peal. It is ordered that a special mandate issue out of this Court directing the Shaker Heights Municipal Court to carry this judg- ment 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, C.J. and JOHN T. PATTON, 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 .