COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71729 VILLAGE OF BROOKLYN HEIGHTS : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION SCOTT J. NOWAK : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 11, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Parma Municipal Court, No. 96-CRB-623-1-1. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Theodore S. Holtz, Esq. 6325 York Road Suite 305 Parma Heights, OH 44130 For Defendant-Appellant: John A. Valenti, Esq. A Legal Professional Association 1501 Euclid Avenue, No. 800 Cleveland, OH 44115 David J. Finnerty, Esq. 6553 Brecksville Road Independence, OH 44131 DAVID T. MATIA, P.J.: Defendant-appellant, Scott Nowak, appeals from the judgment of the Parma Municipal Court finding him guilty of domestic violence. 2 Defendant-appellant assigns two errors for review concerning the manifest weight of the evidence and the court's refusal to grant a continuance. This court, finding no error, affirms the decision of the trial court. I. STATEMENT OF FACTS On March 31, 1996, Scott Nowak, defendant-appellant, was arrested for domestic violence against his then wife, Sharon Nowak. On April 29, 1996, the trial court granted defendant-appellant a continuance for a pretrial. On August 14, 1996, the trial court granted defendant-appellant a trial continuance. On September 23, 1996, after denying another request for a continuance, a bench trial was had. Sharon Nowak testified that at the time of the incident, she was in the process of obtaining a divorce from her husband, defendant-appellant. Sharon Nowak had custody of their seven-year- old child, Kayla, and the parties had agreed that defendant- appellant was permitted supervised visitation. The parties further agreed that visitation was to be supervised by defendant- appellant's sister, Michelle. Sharon Nowak testified that on March 31, 1995, she was delivering Kayla to the residence of defendant-appellant. When she exited her vehicle, defendant-appellant came out of the house. Upon being questioned, defendant-appellant informed Sharon Nowak that his sister, Michele, was in Florida. When Sharon Nowak informed defendant-appellant that she would not leave Kayla unsupervised, an argument ensued. When the argument subsided, 3 defendant-appellant asked if he could at least give a kiss and hug to Kayla who was sitting in the car. When the door opened, defendant-appellant started verbally berating the child's mother and attempted to take Kayla out of the vehicle. Kayla jumped into the back seat to avoid defendant- appellant and Sharon Nowak attempted to close the car door. At that point, she testified defendant-appellant struck her with his fist on her right shoulder. At this time, a patrol car happened to be patrolling the area and observed the two arguing loudly near the car door. When the officer approached, he separated the fighting couple. Sharon Nowak told him what had occurred and the officer arrested defendant- appellant for domestic violence. This version of the events also appears on her voluntary statement that she made for the police. Additionally, Sharon Nowak introduced a tape recorded version of the incident to the court. Apparently, she had a small tape recorder running in an effort to demonstrate that she took her daughter to visitation in case defendant-appellant later claimed that she was in violation of the visitation agreement. The transcript of the tape recording states in pertinent part: MR. NOWAK: Go ahead and file charges. MRS. NOWAK: Scott get away from me, please. MR. NOWAK: UNINTELLIGIBLE. MRS. NOWAK: Can't you see how scared she is. MR. NOWAK: UNINTELLIGIBLE. MRS. NOWAK: Lock all the doors. 4 MR. NOWAK: No. MRS. NOWAK: Scott, why do you think she's so scared to come here? She's so scared ***. MR. NOWAK: I've got a Court Order. You let her out of the car now. MRS. NOWAK: You don't. I'm closing the door. UNINTELLIGIBLE. PATROLMAN: Stay there. Sir? MR. NOWAK: She hit me first. UNINTELLIGIBLE. MRS. NOWAK: I did not. Patrolman James Cassidy was also called to the stand. He testified that while on routine residential patrol, he observed defendant-appellant and Sharon Nowak arguing near the parked vehicle. As he approached the scene, he observed Kayla crying in the back seat. After separating the couple, he questioned Sharon Nowak on what had just occurred. Officer Cassidy testified that he observed redness on Sharon Nowak's shoulder. Finally, the prosecution called Sergeant James Wislow as a witness. Sergeant Wislow testified that he was called by Officer Cassidy to the scene. When he arrived he observed the officer and Sharon Nowak talking in the driveway. The Sergeant then asked Sharon Nowak what had happened. After explaining how the argument had begun between the couple, the Sergeant testified that she told him defendant-appellant grabbed her arm and fisted her. He also testified that he observed a redness on her shoulder and that it appeared something had struck her. Defendant-appellant testified on his own behalf. He stated that when he went inside the car to give his daughter a kiss good- 5 bye, Sharon Nowak pushed him away and slammed the car door on his hand. He grabbed her by the shoulder and pushed her away from the car. He then opened the door and took his hand out. Defendant- appellant testified that after he was released on bail, he went to the hospital where a splint was placed on his hand. On cross- examination, defendant-appellant testified that he did not strike his wife and that he merely pushed her once in an attempt to free his hand from the door. After reviewing all the evidence submitted, the trial court found defendant-appellant guilty as charged. Defendant-appellant then filed a motion for a new trial based on the trial court's failure to grant a continuance. This motion was denied on November 14, 1996. Defendant-appellant timely appeals. II. FIRST ASSIGNMENT OF ERROR Scott Nowak, defendant-appellant, states as his first assignment of error: . THE TRIAL COURT ERRED WHEN BASING ITS CONVICTION OF SCOTT NOWAK UPON A MISTAKEN BELIEF THAT THE POLICE OFFICERS WERE ACTUAL WITNESSES OF VIOLENCE AND THEREFORE SCOTT NOWAK'S CONVICTION SHOULD BE OVERTURNED. . ISSUE RAISED: WHETHER THE GUILTY VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant-appellant argues the finding by the trial court was against the manifest weight of the evidence. Specifically, defendant-appellant argues the trial court based its decision upon the mistaken belief that the officers who testified were actual witnesses to the alleged violence. Defendant-appellant supports 6 this assertion by citing the journal entry which denied defendant- appellant's motion for a new trial: *** the police officers were very clear as they were driving down the street, they visually observed the violence taking place. Coupling this testimony with the other credible evidence introduced at trial, this Court finds there was substantial evidence of Defendant's guilt, notwithstanding whatever Witness Cassidy might have speculatively added. Defendant-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW: MANIFEST WEIGHT. Article IV, Section 3(B)(3) of the Ohio Constitution authorizes appellate courts to assess the weight of the evidence independently of the fact-finder. Thus, when a claim is assigned concerning the manifest weight of the evidence, an appellate court has the authority and the duty to weigh the evidence and determine whether the findings of *** the trier of fact were so against the weight of the evidence as to require a reversal and a remanding of the case for retrial. State ex re. Squire v. City of Cleveland (1948), 150 Ohio St. 303, 345. The standard employed when reviewing a claim based upon the weight of the evidence is not the same standard to be used when considering a claim based upon the sufficiency of the evidence. The United States Supreme Court recognized these distinctions in Tibbs v. Florida (1982), 457 U.S. 31, where the Court held that unlike a reversal based upon the insufficiency of the evidence, an appellate court's disagreement with the jurors' weighing of the evidence does not require special deference accorded verdicts of 7 acquittal, i.e., invocation of the double jeopardy clause as a bar to relitigation. Id. at 43. Upon application of the standards enunciated in Gibbs, the court in State v. Martin (1983), 20 Ohio App.3d 172, has set forth the proper test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated: 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 the 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. Moreover, it is important to note that the weight of the evidence and the credibility of the witnesses are issues primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. Hence we must accord due deference to those determinations made by the trier of fact. . DEFENDANT-APPELLANT'S VERDICT WAS NOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In the case sub judice, the trial court stated the following before rendering its verdict: You may be seated. I've reviewed as I've done listened to the tape several times, went over the testimony, Exhibits, and most of the evidence pretty much goes along with the victim's testimony. I note that Officer Cassidy arrived during the scene. The victim claims that she was fisted. Both Officers testified as to the red marks on the victim's shoulders. Both Officers testified that they checked out the Defendant's hands. They saw no red marks, no other injuries, and his function was fine. I find that the defendant is guilty. *** 8 We believe any error the trial judge made in the entry denying defendant-appellant's motion for a new trial was a mere misstatement and does not constitute prejudicial error. Moreover, in both the reading of the verdict and the denial of the motion for a new trial, the trial court expressed that the guilty verdict was based upon substantial evidence of defendant-appellant's guilt. After reviewing the record in its entirety, we do not disagree. Defendant-appellant's guilty verdict was not against the manifest weight of the evidence. Defendant-appellant's first assignment of error is not well taken. II. SECOND ASSIGNMENT OF ERROR Scott Nowak, defendant-appellant's, second assignment of error states: II. THE TRIAL COURT ERRED WHEN FORCING THE DEFENSE TO PROCEED WITH TRIAL WITHOUT THE BENEFIT OF COMPULSORY PROCESS THEREBY DENYING THE DEFENDANT HIS RIGHT TO DUE PROCESS OF LAW. 9 . ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENSE COUNSEL'S REQUEST FOR A CONTINUANCE. Defendant-appellant argues the trial court abused its discretion in denying his request for a continuance of the trial which denied him his constitutional right to compulsory process. Specifically, after defense counsel explained to the court that their witness had the flu, the court assumed bad faith instead of making a phone call to the witness to determine if she was truly sick. In light of the fact that the case concerned a your word against mine altercation, defendant-appellant should not have been prejudiced when the properly subpoenaed, unbiased witness failed to appear. Defendant-appellant argues the trial court's denial of its request for a continuance and to compel the testimony of a properly subpoenaed, unbiased witness constitutes an abuse of discretion. Defendant-appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW: CONTINUANCES. It is well established in Ohio that the grant or denial of a continuance is a matter within the sound discretion of the trial court. State v. Burke (1995), 73 Ohio St.3d 399; State v. Unger (1981), 67 Ohio St.2d 65. An appellate court must not reverse a denial of a continuance unless there has been and abuse of discretion. An abuse of discretion is more than an error of law or judgment. It implies an attitude on then part of the trial court that is unreasonable, arbitrary, or unconscionable. State, ex rel. 10 Beacon Journal Publishing Co., v. Akron Metro. Hous. Auth. (1989), 42 Ohio St.3d 1. In State v. Powell (1990), 49 Ohio St.3d 255, 258, the Ohio Supreme Court citing to Unger, supra, stated: The reviewing court must weigh potential prejudices against a court's right to control its own docket and the public's interest in the prompt and efficient dispatch of justice. Relevant factors include the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or *** dilatory, purposeful, or contrived; [and] whether the defendant contributed to the circumstances which give rise to the request. . THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING DEFENDANT-APPELLANT'S REQUEST FOR A CONTINUANCE. Initially we note that defendant-appellant was previously granted two continuances prior to trial. Moreover, we do not believe it is incumbent upon the trial court to make a mere thirty second phone call in an effort to ascertain whether the reason for the request is legitimate. Rather the burden is upon defense counsel to demonstrate for the court that the continuance is not merely a delaying tactic. Finally, defendant-appellant failed to sufficiently proffer to the trial court the testimony of the witness who failed to appear. See State v. Galan (1990), 67 Ohio App.3d 68. An affidavit attached to the motion for a new trial stating what the attorney believes the witness may have testified to is untimely and insufficient. For the above stated reasons, we do not believe the trial court's denial of defendant-appellant's request for a continuance 11 rises to the level of an abuse of discretion. Defendant- appellant's second assignment of error is not well taken. Judgment 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 Parma 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. NAHRA, J. and O'DONNELL, J., CONCUR. DAVID T. MATIA PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 .