COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71833 CITY OF CLEVELAND : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : JOHN TRUHLAR : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 2, 1997 CHARACTER OF PROCEEDING: Criminal appeal from the Cleveland Municipal Court Case No. 96-CRB-13626 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: MAURA JAITE O'NEILL, ESQ. WILLIAM T. DOYLE, ESQ. ASSISTANT CITY PROSECUTOR 200 Standard Building JUSTICE CENTER - 8TH FLOOR 1370 Ontario Street 1200 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 2 DYKE, J.: Appellant, John Truhlar, is appealing his conviction for domestic violence, threats, in violation of Cleveland Codified Ordinance 609.07(C). Appellant contends the conviction was against the weight and sufficiency of the evidence, and appellant was found guilty when the judge did not remember the facts of the case. For the following reasons, we affirm. The trial judge granted the prosecution's motion to amend the complaint to state that the incident occurred on May 16, 1996, not May 24, 1996. On August 21, 1996, a bench trial was held. Loretta Truhlar testified that appellant is her husband, and they were living together on May 16, 1996. Around 11:30 a.m., Loretta and her husband started arguing because the electricity had been turned off. Appellant was pushing and hitting her. He had a violent temper, and often took things out on her in a physical manner. Loretta left and went to her mother's. Loretta further testified that she returned at 1:30, and purchased beer for the defendant. They started fighting again, and fought for hours. Around 3:00 p.m., appellant said he could kill Loretta and get away with it. They continued to fight. She did not leave, because appellant might follow her to her mother's and fight with Loretta's mother, who was in a wheelchair. She also testified that at 6:00 p.m., appellant went into the bedroom and retrieved a loaded rifle. He pulled the hammer back and pointed it at Loretta. Appellant said, Give me one good 3 reason why I shouldn't kill you now. Loretta believed he would harm her. Appellant put the gun down. Minutes later, appellant started jabbing her with a dagger. Loretta ran out of the house. Loretta stated on cross-examination that she only hit appellant to get him off her when appellant was choking her. She did not mention anything about choking on direct examination. Loretta testified that on May 24, 1996, she was at her mother's home. Appellant went to the mother's home and tried to break down the door. Loretta called the police, and told the police about the events of May 16. Loretta did not report the May 16 threats earlier, because she was afraid of appellant. Mathew Truhlar, appellant's brother, testified that he arrived at appellant's home at 4:30 or 5:00 p.m. Loretta was just leaving. He did not see any fight. He did not see Loretta any more that evening. Mathew left appellant's home for a forty five minute period and came back later. The appellant testified that he was at work the morning of May 16. Loretta called him at work, and told him the electricity had been turned off. Around 2 p.m., he went home. Then he went to see his wife at his wife's mother's home. Appellant went to his mother's. He went home about 5:00 or 5:30 p.m. Loretta walked in two minutes later. She left, and came back around 7:30, and at that time the fight occurred. Appellant's brother and mother were not present, as they had gone to pay the electric bill. Appellant further testified that Loretta insulted him and hit 4 him in the head a few dozen times. He did not hit her or threaten her with a gun. Loretta fabricated the story about the threats because appellant said he wanted to divorce her and obtain custody of their son. Appellant also told her he would file charges against her for assault. Bryan Bunch, appellant's brother-in-law, testified that he never saw appellant hit Loretta. He saw Loretta hit appellant two years ago. The above evidence was heard on August 21, 1996. On October 9, 1996, appellant was found guilty. When discussing the sentence the trial judge stated: . . . What's the relationship here? I forget the details of it being heard and submitted. The defendant's attorney informed the judge that the parties were married, and a divorce action was pending. The judge suspended appellant's thirty day sentence, but stated that if he did not comply with the protection order prohibiting him from contacting the wife, he would have to serve the thirty days. Appellant's assignments of error will be considered out of order. I. Appellant's second and third assignments of error are interrelated and will be discussed together. They state: THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S MOTION FOR ACQUITTAL UNDER CRIM. R. 29(A) AS THERE WAS INSUFFICIENT EVIDENCE TO PROVE EACH AND EVERY ELEMENT OF THE OFFENSE CHARGED BEYOND A REASONABLE DOUBT. THE TRIAL COURT ERRED BY FAILING TO ORDER A JUDGMENT OF 5 ACQUITTAL ON ITS OWN MOTION AFTER THE CLOSE OF EVIDENCE BECAUSE WHEN VIEWED IN A LIGHT MOST FAVORABLE TO THE PROSECUTION, THE APPELLEE'S EVIDENCE WAS INSUFFICIENT TO SUSTAIN A CONVICTION OF APPELLANT. A Crim. R. 29 motion is granted if the evidence is insufficient to sustain a conviction for the offense charged. Crim. R. 29. When reviewing a challenge to the sufficiency of evidence, an appellate court must view the evidence in a light most favorable to the prosecution and determine if any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 520, State v. Jenks (1991), 61 Ohio St.3d 259. The elements of Cleveland Codified Ordinance 609.07(C), Domestic Violence/Threats are: the defendant, by threat of force, knowingly caused a family or household member to believe the defendant will cause imminent physical harm to the family or household member. C.C.O. 609.07(C). The evidence in a light most favorable to the prosecution is as follows: Appellant pointed a loaded gun at his wife, and said, give me one good reason why I shouldn't kill you now. Appellant jabbed his wife with a knife. He had been drinking and had a violent temper. Appellant and the victim had been fighting for hours. Loretta was in fear for her life. From this testimony, a reasonable trier of fact could conclude that all the elements of domestic violence/threats were proven beyond a reasonable doubt. The trial court correctly denied the Crim. R. 29 motion for acquittal, as the conviction was based upon sufficient evidence. II. 6 Appellant's first assignment of error states: THE CONVICTION OF DEFENDANT-APPELLANT JOHN TRUHLAR WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In determining if the conviction is against the manifest weight of the evidence, the appellate court reviews the record, weighs the evidence and all reasonable inferences, considers the credibility of the 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. State v. Martin (1983), 20 Ohio App.3d 172. The reviewing court should consider whether the evidence is credible or incredible, certain or uncertain, reliable or unreliable, whether the evidence is conflicting and/or fragmentary, whether a witness was impeached, and the personal interest a witness has in testifying. State v. Mattison(1985), 23 Ohio App.3d 10, State v. Clark (1995), 101 Ohio App.3d 389. The credibility of witnesses is primarily for the trier of fact, who is able to observe the witnesses first hand. See State v. DeHass (1967), 10 Ohio St.2d 230. Appellant contends the trial court lost its way in finding Loretta Truhlar's statements credible that appellant pointed a gun at her and made threats, and finding appellant's version of the facts not credible. Loretta's testimony was not incredible, vague or fragmentary and she repeated her version of the facts twice with no contradictions. The fact that Loretta did not file charges until eight days later does not render her testimony incredible. Loretta explained that she did not file charges because she was 7 afraid of appellant. Appellant asserts Loretta's testimony was motivated by her desire to avoid charges against herself. The trial court could find this statement incredible. Loretta's testimony was contradicted by appellant's brother, who said he saw no fight. However, the brother was absent from appellant's home for almost an hour. Appellant testified the fight occurred when his brother was absent. The testimony of Brian Bunch did not impeach Loretta's testimony. Loretta denied she hit appellant that day. Bunch stated he saw Loretta hit appellant two years ago. The trial court did not lose its way in finding that Loretta was threatened by appellant. The issue of credibility is primarily for the trier of facts. The conviction was not against the manifest weight of the evidence. Accordingly, this assignment of error is overruled. III. Appellant's fourth assignment of error states: JOHN TRUHLAR WAS DENIED DUE PROCESS OF LAW IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION IN THAT THE TRIAL JUDGE FOUND HIM GUILTY AS CHARGED AND IMPOSED SENTENCE WITHOUT MEMORY OF THE FACTS OF THE CASE. The transcript shows that the trial judge could not recall the relationship of the parties for sentencing purposes. The transcript does not show that the judge could not recall the facts of the case, but found appellant guilty anyway. Accordingly, this assignment of error is overruled. The decision of the trial court is affirmed. 8 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. PORTER, P.J., AND ROCCO, J., CONCUR. ANN DYKE JUDGE 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 .