COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72355 STATE OF OHIO : : Plaintiff-Appellee : JOURNAL ENTRY : -VS- : AND : JAMES L. GEORGE : OPINION : Defendant-Appellant : Date of Announcement of Decision: JUNE 25, 1998 Character of Proceeding: Criminal appeal from Court of Common Pleas Case No. CR-347192 Judgment: Affirmed; remanded for resentencing. Date of Journalization: Appearances: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor MICHAEL A. SULLIVAN, Asst. Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: PATRICIA J. SMITH, ESQ. 4403 St. Clair Avenue Cleveland, Ohio 44103 -2- JAMES M. PORTER, P.J.: Defendant-appellant James L. George appeals from his conviction for felonious assault (R.C. 2903.11) following a jury trial. Defendant contends his conviction was against the manifest weight of the evidence and that his sentence exceeded that allowed by law. We affirm the conviction, but remand for resentencing. Defendant was charged with feloniously assaulting his former girlfriend, Kimberly Salerno, on December 17, 1994 at a bar in the Flats. Ms. Salerno testified that she had dated defendant on and off between August 1991 and December 1994. She described their relationship as volatile and that defendant was physically and emotionally abusive to her. She indicated that she had not pursued criminal charges against the defendant in the past because she was afraid of him. Ms. Salerno testified that in mid-December 1994, she attempted to end her relationship with the defendant. During a telephone conversation with the defendant on December 17, 1994, she told him that the relationship was over. After this conversation and throughout that day, defendant called her repeatedly at work. During these phone calls the defendant first expressed his love for Salerno, but then began to threaten her. He referred to a previous assault he had committed against Salerno's sister and told her that he would do the same to her. He told her that if she tried to press charges against him he would make sure that she would not be -3- able to do so. He also told her that she was messing with the wrong person and she did not know who she was dealing with. Ms. Salerno testified that at approximately 8:00 p.m. on December 17, 1994, she left her apartment to go out for the evening. When she left the apartment, she reset her telephone answering machine. She met her friend Gary at a bar in the Flats and then they both went to the Smart Bar, a spot in the Flats which she frequented every Saturday night. Defendant knew of her Saturday night habit of attending the Smart Bar. Between 11:30 p.m. and 1:00 a.m. her friend Gary left the bar, at which time she was confronted by the defendant. The defendant forced her to the rear of the bar, where he struck her in the face and then forced her into an emergency stairwell leading from the third story. The defendant stood at the top of the stairwell facing her while she stood one or two steps down. The defendant then forcibly pushed her outward with such force that she did not touch the remaining steps, but struck the concrete wall at the base of the stairs. Her next memory was of being at her mother's house the following day. As a result of her fall, Ms. Salerno suffered a skull fracture, a head wound, broken bones in her ear, temporary hearing loss, a broken arm, a compression fracture of the back, and a loss of her sense of smell. Over two years after the incident, she still had back problems, trouble with her arm, no sense of smell, and a scar on her head. -4- Ms. Salerno testified that she initially had no memory of the assault. She gradually regained bits and pieces of her memory as time passed and as she did, she informed Det. Kathleen Carlin, the investigating detective, of the refreshed information. On Christmas Eve, 1995, she finally regained her whole memory of the assault. Cleveland Patrolman Donald Nuti testified for the State. He worked part-time, off-duty at the Smart Bar. On the night in question he was stationed outside the front door. At one point during the night a white male fitting defendant's description came out of the fire escape door and ran away from the bar. Two minutes later, someone informed Officer Nuti that a girl was lying in the hallway and that her boyfriend just beat her up. Officer Nuti assisted the injured victim. The stairwell where the victim was found was the same stairwell from which Officer Nuti had seen the male emerge. Gerald Salerno, the victim's father, testified that on Sunday, December 18, 1994, he received a telephone call from Lutheran Medical Center informing him that his daughter had been injured. He went to the hospital and took his daughter home that morning. Her condition worsened at home and on Monday he brought her to Hillcrest Hospital where she was admitted. Mr. Salerno testified to retrieving messages from his daughter's telephone answering machine. He indicated that she had several messages from the defendant. He copied all of the messages from the answering machine onto a cassette tape, which was marked -5- and admitted as State's Exhibit Two. This exhibit included several harassing messages left before the assault in which the defendant sounded very angry and used profanity towards the victim. It also included a message left after the assault, during which defendant referred to the victim losing her balance on the stairs and his leaving afterwards stating that he could not just stand there because he had warrants out for his arrest. This message stated that he wished that she would talk to him that night and that he tried to talk to her but she would not listen. Cleveland Detective Kathleen Carlin was assigned to investigate the assault on Kimberly Salerno. Det. Carlin testified that the victim was initially unable to provide any details about the assault due to her memory loss. Det. Carlin testified that when she first spoke to the defendant in January 1995, he admitted to being in the bar on the night of the assault, but he claimed to have left before the incident happened. Det. Carlin also testified that the victim had kept in contact with her and regularly updated Carlin on the status of her memory. Det. Carlin stated that some time after Christmas 1995, the victim was able to give her a full statement detailing the assault. Darren Sylvester testified that he was a friend of Kimberly Salerno and that he knew the defendant. On December 18, 1994, he was present at the Smart Bar, arriving at approximately 12:00 - 12:30 a.m. He saw Kim and her friend Gary. Approximately thirty minutes after he arrived, he saw the defendant at the back bar. Sylvester had a conversation with the defendant, who appeared -6- pretty angry and used foul language regarding Kim. Sylvester testified that he did not see the defendant in the bar again after that conversation. Later that night, he learned that someone had been injured in the stairwell. Dr. Theresa Ruch testified that she was a neurosurgeon who treated Kimberly Salerno in December 1994. Dr. Ruch testified to the severity of Kim's injuries and her temporary loss of memory. She testified that these victims usually get their memory back in bits and pieces, and that when it returns it is as accurate as if it had not been lost. Michael Dawson was the only witness for the defense. He testified at length about Ms. Salerno's constant and obsessive attention to the defendant. Defendant's first assignment of error states: I. THE VERDICT FINDING THE APPELLANT GUILTY OF FELONIOUS ASSAULT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. When the argument is made that the conviction was against the manifest weight of the evidence, the appellate court is obliged to consider the weight of the evidence not its mere legal sufficiency. The defendant has a heavy burden in overcoming the fact finder's verdict. As the Supreme Court of Ohio has stated in State v. Thompkins (1997), 78 Ohio St.3d 380, 387: Weight of the evidence concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to -7- their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief. (Emphasis added.) Black's supra, at 1594. When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a `thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S. at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 ( 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. ). R.C. 2903.11, the statute under which the defendant was convicted, provides that: (A) No person shall knowingly: (1) Cause serious physical harm to another. The record plainly demonstrates that the trier of fact had substantial evidence upon which it could reasonably conclude that the elements of felonious assault were proven beyond a reasonable doubt. In this case, the State's evidence demonstrated that the defendant was angry at the victim for her attempt to end their relationship; he threatened the victim over the phone earlier in -8- the day; he left several angry and vulgar messages on her answering machine on the evening of the assault; he went to the bar where he knew the victim would be and had a conversation with her friend, again expressing anger and hostility toward the victim; he waited until the victim was alone in the bar and confronted her; he tried to talk to her, but she would not listen to him; he forced her to the back of the bar and struck her in the face; he then forced her into an emergency stairwell, where he pushed her with such force that she did not strike any steps, but flew through the air and against the wall at the base of the flight of stairs. The evidence showed that the victim suffered numerous and extensive injuries, including a fractured skull, fractured vertebrae, broken arm, subdural hematoma and a bruised brain. She lost her hearing, her memory and her sense of smell. Although her memory and her hearing returned, her sense of smell did not and may be permanently lost. The evidence further showed that defendant left another message on the victim's answering machine after the assault, during which he tried to suggest that she lost her balance on the stairs. The message clearly indicates that the defendant was present in the stairwell when the victim was injured and fled thereafter. Officer Nuti testified that he saw a white male fitting defendant's description exit the fire escape door of the stairwell and run away just a few minutes before he was informed that a girl had just been beaten up by her boyfriend and was lying in the stairwell. When questioned by Det. Carlin, the defendant claimed to have left the -9- bar before the victim was injured, but his telephone message contradicted this. Based on the evidence presented, the jury did not lose its way, was entitled to believe the State's witnesses, and reasonably could conclude that the State proved each material element of felonious assault beyond a reasonable doubt. More specifically, the defendant knowingly caused serious physical harm to Kim Salerno. The verdict was not against the manifest weight of the evidence. Assignment of Error I is overruled. Defendant's supplemental assignment of error states: II. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO SENTENCE THE APPELLANT PURSUANT TO THE NEW SENTENCING GUIDELINES OF SENATE BILL 2, THE SENTENCING WAS IN VIOLATION OF THE OHIO CONSTITUTION AND DUE PROCESS. On March 10, 1997, the defendant was sentenced to serve twelve to fifteen years after being found guilty of felonious assault. Felonious assault is a second degree felony pursuant to R.C. 2903.11(B). Under pre-S.B.2 sentencing law, the possible penalty for a felony two was two to fifteen years. (R.C. 2929.11(B)(5)). Under the existing S.B.2 guidelines, the possible penalty is 2, 3, 4, 5, 6, 7 or 8 years. (R.C. 2929.14(A)(2)). The defendant was sentenced after S.B. 2 became effective. The defendant was convicted of an offense which occurred prior to July 1, 1996, however, he was sentenced after that date and under the old sentencing provisions. Defendant correctly argues -10- that he should have been sentenced under the terms of new S.B.2 standards. The disposition of defendant's assignment of error is controlled by the following decisions issued by this court: State v. Dempsey (Nov. 20, 1997), Cuyahoga App. No. 71479, unreported, and Stat e v. Delgado (Apr. 9, 1998), Cuyahoga App. No. 71497, unreported (en banc). Accordingly, defendant's supplemental assignment of error is sustained. The matter is remanded to the trial court for resentencing in accordance with the penalty provisions contained in S.B.2. Judgment affirmed; remanded for resentencing. -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 Court of Common Pleas 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, J., and MICHAEL J. CORRIGAN, J., CONCUR. JAMES M. PORTER PRESIDING 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 .