COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72166 STATE OF OHIO, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : ELSWORTH W. REDDEN, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 22, 1998 CHARACTER OF PROCEEDING: : Criminal appeal from : Common Pleas Court : Case No. CR-343036 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Martina Kulick Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: David L. Doughten 4403 St. Clair Avenue Cleveland, Ohio 44103 -2- NAHRA, J.: Elsworth Redden appeals his conviction of felonious assault on grounds of manifest weight, and a failure by the trial court to afford defense counsel the opportunity to view exculpatory evidence. We affirm. Appellant was indicted for one count of felonious assault, waived a jury trial and was found guilty as charged by the court. Appellant was sentenced to a definite term of incarceration of eight years and fined $10,000. On March 11, 1997, the trial court resentenced the appellant to a term of three (3) years and a fine of $1,000. On September 9, 1997, appellant's motion for shock probation was granted and the trial court suspended further execution of sentence, placing appellant on probation for five (5) years. The prosecution presented five witnesses. Chester Duckworth testified that after viewing the fireworks display at Edgewater Park on the Fourth of July, 1996, he returned to a friend's house, Bill Allen, who resides on W. 114th Street. Shortly after returning home, at approximately 10:00 p.m., he heard loud noises and profanity coming from the street. He looked out the window of the house and observed a large group of teenagers beating a man in the street near an automobile. As it became clear to Duckworth that the mob of kids were beating two men, a female ran toward the Allen house and begged for help. As he went outside to investigate, he told Allen to call the police. He then proceeded to the scene and told the swarm of young men that he had called the -3- police. Appellant then punched one of the victim's in the stomach. Appellant approached Duckworth and called him a black boy and told him he was nothing. Redden then retreated to the house and approximately ten minutes later police and emergency vehicles arrived. Mark Maroun, testified that he and three friends parked on W. 114th Street between Detroit and Clifton, and walked to Edgewater Park to watch the fireworks display. Afterwards, they returned to the vehicle and proceeded south on W. 114th Street. Shortly thereafter, they were confronted by a male setting off fireworks in the middle of the street. Maroun stopped the car to investigate and a male, later identified as Kevin Drazen, threw a firecracker at the car. Maroun proceeded to get out of the car and asked Drazen What's the problem? Don't throw that at my car. At which point Drazen lighted another firecracker and threw this underneath the front of the car, which was still occupied by Maroun's three friends. At this point the appellant, followed by seven to ten males, came into the street screaming You don't want to f--k with me, to which Maroun replied, We want to get through. As Maroun backed up, appellant punched him in the face, breaking his nose and knocking off his glasses. Maroun was then struck by a beer mug in the chest, which was thrown by an unidentified male. As the melee continued, Maroun was repeatedly struck, as was Dennis Jahn, who was behind Maroun on the ground being kicked and stomped. As Maroun struggled with Drazen, someone hit him on the side of his head with a bottle. Scared and confused Maroun ran down W. -4- 114thtoward Detroit and he heard Drazen yell go back to your own country, you f--king Arab. Chester Duckworth then interceded. Maroun was taken to Lakewood Hospital Emergency Department, where he was treated for a head wound, a chipped tooth, and a fractured nose. Maroun subsequently learned that due to a pre-existing condition, his nose was non-operable, and, as a result, this fracture would result in permanent breathing problems. Dennis Jahn corroborated the testimony of Maroun and added that as the fight was breaking up, appellant stated to Jahn Get out of here. This is my f--king neighborhood, and proceeded to punch Jahn in the face. Cindy Jahn and Angie McMasters, passengers in the vehicle, reiterated the accounts of Jahn and Maroun stressing the facts surrounding the assault of Maroun. They were careful to point out that Redden did ask Maroun to leave. When Maroun refused, appellant pushed Maroun and Maroun returned the favor. Redden then punched Maroun in the face. The defense presented three witnesses. Robert Tagg observed Drazen setting off fireworks in the middle of W. 114th street as cars tried to pass. A black vehicle stopped, the driver exited and began to argue with Drazen which prompted appellant to walk over. Tagg saw the driver begin to retreat as Drazen moved backward, then forward. Tagg could not identify who was assaulting whom, and he did not see appellant punch Maroun. He then saw a passenger of the car get out, later identified as Jahn, and tackle Drazen. At this point, appellant was arguing with a black man but no punches were -5- thrown. Tagg further revealed that he lived with the daughter of appellant, with whom he has had a child, and that appellant was also his landlord. David Deeds, the appellant's first cousin, testified that while he, appellant and others were drinking at their Fourth of July party, a car stopped on W. 114th and demanded that the entire street be cleaned. Appellant approached the driver and suggested that Maroun go around the fireworks or turn his car around. Maroun continued his demands and a scuffle ensued. Deeds could not tell who was striking whom as the fight persisted, and he has no knowledge of who was the aggressor or who were the major participants. He did remember Maroun breaking free and running down W. 114th being chased by three other males. Elsworth Redden, the appellant, admitted that he was drinking on his porch as youngsters set off fireworks near the street. However, each time a car would pass the children would stop their horseplay. As this scene persisted, one car stopped and Maroun stepped out of the vehicle and demanded the boys clean up the street. Redden approached Maroun and asked him to leave, but Maroun was adamant in his insistence. Drazen then approached Maroun and also asked him to leave. When Maroun refused, Maroun punched Drazen and Drazen replied in similar fashion. Redden insisted that Maroun was the aggressor, causing the fight with Drazen which escalated into a fifteen person brawl. As Maroun and the others were leaving, Maroun pulled up to appellant's home, blew the horn and stated I will go get some more guys, and I will be -6- back. This threat was never reported to police. Redden continually claimed he never struck anyone and was a mere bystander during the entire incident. I. Appellant's first assignment of error states: I. THE TRIAL COURT ERRED WHEN IT FOUND APPELLANT GUILTY OF FELONIOUS ASSAULT WHEN THE WEIGHT OF THE EVIDENCE DID NOT SUPPORT THAT VERDICT. Appellant argues that based upon the totality of the evidence no reasonable court could have found him guilty of felonious assault. In State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717, the court set forth the test to be utilized when addressing the manifest weight of the evidence: 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), 457 U.S. 31, 38, 102 S.Ct. 2211. Further, in reviewing under the above-mentioned standard, the court should take into account the following factors: (1) awareness that even a 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) the extent to which a witness may have a personal interest to advance or defend by his testimony; (8) the extent to which the evidence is vague, uncertain, conflicting or fragmentary. -7- State v. Clark (1995), 101 Ohio App.3d 389, 408, 655 N.E.2d 795. Moreover, this court may weigh evidence only to determine whether it is of sufficient probative force to support a finding of guilt State v. Hawkins (1993), 66 Ohio St.3d 339, 344, 612 N.E.2d 1227, quoting State v. Tyler (1990), 50 Ohio St.3d 24, 33, 583 N.E.2d 576. It is essential that a court, on review, be aware that the weight of the evidence and the credibility of the witnesses are issues that are properly left to the trier of fact. State v. Grant (1993), 67 Ohio St.3d 465, 476, 620 N.E.2d 50; see, also, State v. DeHass(1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus. A reviewing court will not reverse a verdict where there is substantial evidence upon which the trier of fact could reasonably conclude that all elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, 383 N.E.2d 132; see, also, State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492; State v. Coulter (1992), 75 Ohio App.3d 219, 232, 598 N.E.2d 1324. In this case, the record reflects that the court properly considered the evidence and the credibility of the witnesses in the weighing of his decision, and determined that Redden was the aggressor and acted without provocation, resulting in his conviction of felonious assault. The central issue then presented is was the judge reasonable in reaching this conclusion. After a careful review of the record, assessing the credibility of all of the testimony and considering all reasonable inferences therefrom, we cannot conclude that the trial court -8- created a manifest miscarriage of justice in convicting Redden of felonious assault. There was substantial evidence from which the trial court could conclude that appellant purposely caused serious physical harm to Mark Maroun. Appellant essentially argues that the evidence, as presented, at most supports a conviction of aggravated assault. Appellant maintains that he never struck Maroun, however, even if the facts as supplied by the appellee are to be believed, he believes his actions were based on sufficient provocation. Under that fact pattern, after appellant asked Maroun to leave, appellant shoved Maroun and was shoved in return. This shove, appellant maintains, along with the confrontational attitude present at the scene, incited the retaliatory punch. However, this argument by appellant rests on little foundation, as he is essentially arguing the issue of credibility, and credibility is a question of fact to be determined by the trier of fact. State v. Grant, supra. Accordingly, assignment of error number one is overruled. II. Appellant's second assignment of error states: II. THE TRIAL COURT ERRED BY FAILING TO ALLOW THE DEFENSE TO PARTICIPATE IN AN IN CAMERA INSPECTION PURSUANT TO CRIM. R. 16. Crim.R. 16(B)(1) provides in pertinent part: (g) In Camera Inspection of Witness' Statement. Upon completion of a witness' direct examination at trial, the court on motion of defendant shall conduct an in camera inspection of the witness' written or recorded statement with the defense attorney and prosecuting attorney present and participating, to determine the existence of inconsistencies, if any, between the testimony of such witness and the prior statement. -9- Crim.R. 16(B)(1)(g) has been construed to mean that [o]nce the trial court independently determines that a producible out-of- court witness statement exists, attorneys for all parties must be given the opportunity to: (1) inspect the statement personally; and (2) call to the court's attention any perceived inconsistencies between the testimony of the witness and the prior statement. State v. Daniels (1982), 1 Ohio St.3d 69, 71, 437 N.E.2d 1186, syllabus. The trial court's simply permitting the attorneys to be passively present and available for consultation during the in camera inspection constitutes reversible error ... per se. The court, however, was careful to limit the scope of such reversible error to those situations where the error of participation only materially affected the outcome. Harmless error is the result where the error of participation does not include material inconsistencies with the trial testimony so as to effect the outcome. Id. at fn. 3; see, also, Crim.R. 52(A). After a careful review of the transcript and the written statement of Mark Maroun dated 7/17/96, the account he provided in open court does not contain any material inconsistencies pertaining to the action for which appellant was convicted. As a result, the error committed by the trial court was harmless. Accordingly, this assignment of error is overruled. Judgment affirmed. -10- 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. DYKE, P.J., and ________________________________ JOSEPH J. NAHRA SPELLACY, J., CONCUR. 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 .