COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72531 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION BONNIE WRIGHT : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 6, 1998 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-314,548 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor KESTRA SMITH-CRUTCHER, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: PATRICIA J. SMITH Attorney at Law 4403 St. Clair Avenue Cleveland, Ohio 44103 KENNETH A. ROCCO, J.: -2- Defendant-appellant Bonnie J. Wright appeals from his conviction for felonious assault with a violence specification, arguing his conviction was against the manifest weight of the evidence due to the state's witnesses' questionable identifica- tion of him as the perpetrator of the crime. This court has reviewed the record, concludes the jury did not lose its way when considering the evidence of appellant's guilt and, therefore, affirms appellant's conviction. Appellant's conviction stems from an incident that occurred on the night of December 8, 1993, at a house located at 2965 East 79th Street in the City of Cleveland, Ohio. The state's witnesses tes- tified to the following scenario of the incident: The victim, Phillip Norman, began living at the house in the spring of 1993. In exchange for the use of one of the house's two bedrooms, both of which were located on the second floor, Norman paid rent to the owner, Brodie Phillips. Phillips also owned the houses located on both sides of the one at 2965 East 79th Street; he resided at 2967 East 79th. Approximately three months later, Phillips permitted Henry and Brenda Wallace, a married couple, to live in the remaining bedroom of the 2965 East 79th Street house. Henry Wallace was a mechanic who also did electrical work and plumbing. Since the 2965 East 79th Street house lacked utilities and adequate plumbing, Wallace had agreed to do some contract work 1 during the couple's 1Quotes indicate testimony given by a witness at appellant's trial. -3- residency. In the interim, Phillips provided for his renters a long extension cord, which was hooked up to an outlet in the house in which he lived. By this method of obtaining electricity, the renters each could use one electrical appliance at a time in their respective bedrooms. The Wallaces and Norman eventually became friends. They often socialized with each other and with Norman's girlfriend, Mary Elizabeth ( Liz ) Gay. Gay occasionally stayed overnight in the house in Norman's room. In the fall of 1993, Phillips apparently asked another handyman also to do some work on the house. Thus, a person known to the other renters as Little Man moved into the house with his sister, Joyce Wright. These two resided in the living room of the house during their occupancy. Wright's sons, one of whom was later identified as appellant, often visited her there. Wright intro- duced her sons to the other renters, but neither the Wallaces nor Norman had much social contact with the young men. Wright soon moved from the 2965 East 79th Street house next door into the third house Phillips owned, located at 2963 East 79th Street. This house, like the one in which Phillips lived, had both electricity and heat. After her move, Phillips' other renters con- tinued to see Wright and her sons nearly every day. At the end of November 1993, Phillips proposed to Norman that Norman exchange his room at 2965 East 79th Street for a room in the house in which Wright lived. Norman agreed to do so; thus, shortly thereafter, he moved into a vacant bedroom of the third house. -4- Less than two weeks later, however, Phillips was arrested and jailed. Wright, at this point, demanded Norman pay his room rent to her as Phillips' agent. Since this directive made Norman uneasy, he decided to move back to the 2965 East 79th Street house rather than enter into a dispute with Wright. Norman therefore packed his belongings into plastic bags and began returning them to his former residence. Despite his efforts, Norman's departure caused unpleasant feelings between him and the Wrights. Before Norman had removed all of his belongings, one of Wright's sons told Norman he didn't want [Norman] to come over there anymore. Norman accordingly requested his girlfriend and Henry Wallace to retrieve the last of the bags containing his possessions. On December 8, 1993, Norman and Gay accompanied the Wallaces in celebrating Henry's birthday. Norman and the Wallaces admitted they did so by drinking beer and liquor over the span of several hours. The foursome thereafter proceeded home. Upon their arrival, Norman requested Gay to perform an errand. He and the Wallaces then went upstairs to their respective rooms. The Wallaces used the extension cord to light a lamp. Soon thereafter, all three of them heard knocking on the door of the house. Norman also heard Gay call for him. Norman descended to the first floor where, by the light of a streetlamp shining through a dining room window, he observed his girlfriend and two of Wright's sons, one of whom was later identified as -5- appellant, in the doorway. When Norman stood close to the visitors, they accused him and Gay of stealing some clothing from the house in which Wright lived. Norman responded, [D]idn't nobody steal anything. If anything, they may have got mixed up *** [W]e'll look in all the bags and see did that happen. He then turned his head to indicate the bags were located upstairs. At that moment, Norman was struck in the neck with a stick. The blow caused him to fall to the floor, whereupon appellant and his brother began kicking him in the stomach and the back. Norman called out for help, then slowly began to sink into unconsciousness from the blows he was receiving. The Wallaces could hear the sounds emanating from the first floor; therefore, Henry responded to Norman's cry. Upon his arrival on the first floor, Henry observed appellant and one of his brothers kicking Norman, who was on the floor, in his back and in his stomach. Henry also observed a broken stick near the wall of the dining room and saw Joyce Wright and a woman he knew as appellant's wife near the doorway of the house. Gay was no longer present. Henry attempted to rescue Norman by raising him and moving him away from his assailants. In response, however, appellant and his brother began stomping and kicking Henry. Brenda Wallace, by this time, also had descended the stairway to investigate the commotion. When she saw her husband being attacked, she returned to their room, retrieved a shoe, ran back to -6- the dining room, and struck appellant in the head with it. Appellant's wife joined the fray, attempting to prevent Brenda from inflicting damage on appellant. At that point, Joyce Wright announced, [T]hat's enough, and convinced her relatives to leave the scene. After their departure, Brenda noticed Norman lying motionless on the floor. Brenda summoned medical aid for the two men, both of whom were eventually transported to St. Alexis Hospital. Henry Wallace suffered fractured ribs in the incident. Since Phillip Norman's neck and spinal cord were severed in the attack, he became a paraplegic, which ultimately necessitated constant nursing home care. Although the attack upon Norman came to the attention of some uniformed police officers, who attempted to take the victim's statement despite his medical condition, the case was not assigned to a Cleveland police detective until December 28, 1993. On that date, Det. James Smelko began an investigation into the incident. His review of the uniformed police officers' report revealed that although the victim knew his attackers, he was unsure of their names; Norman's statement indicated he believed one of them might be called Shawn. Smelko proceeded to the 2965 East 79th Street address. Initially, however, he was unable to locate Phillips, who had been transferred for hospitalization to a different facility. When Smelko finally interviewed Phillips, the nursing personnel per- -7- mitted only a brief discussion, during which Smelko learned the Wallaces had been involved in the incident. Smelko eventually spoke to the Wallaces in mid-January, 1994. They were able to inform him that they recognized two of Joyce Wright's sons as the assailants during the attack, but they, too, seemed unsure of the brothers' names. From this information, Smelko attempted to assemble a photographic array to display to the victim and the witnesses. Although Smelko obtained photographs of appellant's brothers Robert and Wesley, he was unable to obtain one of appellant. Neverthe- less, he showed the array of six photographs to the victim and then to the Wallaces and requested them to state whether they recog- nized anyone. Phillips chose Wesley`s photograph from the array, stating the man looked like the brother of one of the males that (sic) assaulted him. When the Wallaces separately were shown the photographic array, they each chose appellant's two brothers as persons they recognized. Brenda Wallace further stated that B.J. and Robert Wright were the perpetrators of the assault. However, Henry Wallace believed Robert's name was Shawn. Based upon his interviews of the witnesses, Smelko proceeded on an assumption Wesley Wright and Robert Wright were the attackers of Norman and the Wallaces.2 Smelko later learned Wesley Wright 2The record reflects Robert Wright was indicted and prosecuted for his part in the attack in the fall of 1994. -8- was incarcerated in Georgia at the time of the incident. After gaining this information, Smelko did some further investigation. As a result of this, on October 3, 1994, appellant was indicted on one count of felonious assault, R.C. 2903.11. The indictment contained two violence specifications, viz., 1) that during the commission of the offense, appellant caused physical harm to Phillip Norman and 2) that during the commission of the offense, appellant made an actual threat of physical harm to Phillip Norman with a deadly weapon. Appellant's jury trial commenced on September 26, 1995. The state presented the testimony of the victim, the Wallaces and Smelko.3The state also introduced into evidence the photographic array assembled by Smelko. Appellant's cross-examination of these witnesses obviously was calculated to raise doubt concerning whether appellant was present during the incident. At the conclusion of the state's case-in-chief, the trial court overruled appellant's motion for acquittal. Appellant's sole defense witness was his brother, Wesley, who testified he had been incarcerated at the time of the incident. The record reveals that at the conclusion of the presentation of the evidence, the trial court change[d] the order of trial by first instructing the jury, then permitting closing argument. Apparently as a result of this procedure, the jury submitted 3Prior to trial, appellant stipulated that Norman sustained serious physical harm during the commission of the offense. -9- several questions of law to the trial court during its delibera- tions. Ultimately, the jury found appellant guilty of the charge of felonious assault and guilty of the first violence specification. The trial court subsequently sentenced appellant to a term of incarceration of eight to fifteen years. This court has permitted appellant to file a delayed appeal of his conviction. Appellant presents the following as his sole assignment of error for review: THE VERDICT FINDING THE APPELLANT GUILTY OF FELONIOUS ASSAULT IS AGAINST THE WEIGHT OF THE EVIDENCE. Appellant argues the testimony identifying him as the perpetrator of the crime was unreliable and incredible. Citing State v. Mattison (1985), 23 Ohio App.3d 10, he thus contends the weight of the evidence fails to sustain his conviction. Neverthe- less, appellant's argument remains unpersuasive. The test to be applied when reviewing a claim that a convic- tion is against the manifest weight of the evidence was set forth in State v. Martin (1983), 20 Ohio App. 172, at 175, as follows: There being sufficient evidence to support the conviction as a matter of law, we next con- sider 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 credibil- ity of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a mani- fest miscarriage of justice that the conviction must be reversed and a new trial ordered. *** See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. -10- (Emphasis added.) See, also, State v. Thompkins (1997), 78 Ohio St.3d 380. Moreover, the weight of the evidence and the credibility of witnesses are matters primarily for the trier of fact; a reviewing court must not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus; State v. Eley (1978), 56 Ohio St.2d 169; see, also, State v. Jenks (1991), 61 Ohio St.3d 259; State v. Waddy (1992), 63 Ohio St.3d 424. Appellant was convicted of felonious assault in violation of R.C. 2903.11, which provided in pertinent part as follows: S2903.11 Felonious assault. (A) No person shall knowingly: (1) Cause or attempt to cause serious physical harm to another; *** In this case, the state's witnesses presented a logical and reasonably coherent summary of the circumstances surrounding the incident and their recognition of appellant as one of the assail- ants. Norman and the Wallaces indicated they were well acquainted with Joyce Wright, had been introduced to three of her sons, and knew the young men's faces. Indeed, all three stated they saw appellant in his mother's company almost daily. Although these witnesses could not accurately match names with faces prior to the incident, they never wavered in their certainty as to their ability to distinguish the features of the two assailants. -11- The witnesses testified they were not completely inebriated at the time they arrived home. Moreover, they all testified that dur- ing the incident, they stood within only a few feet from the attackers. The witnesses indicated their identification of appel- lant and his brother was aided by adequate lighting, both from a street lamp outside the uncurtained window and from the illumina- tion given off by the lamp in the Wallaces' room. The explanation of Smelko's misunderstanding of these witnesses' identifications when they were shown the photographic array was sensible and believable. Finally, each witness's iden- tification of appellant at trial as one of the men who had struck and kicked Norman was positive. The certainty of their testimony was for the jury to consider. Reviewing the record, therefore, this court cannot infer the jury clearly lost its way in resolving any of the evidentiary conflicts. Its decision that appellant was guilty of violation of R.C. 2903.11(A)(1) was not against the manifest weight of the evidence. State v. Jenks, supra; State v. Dill (Aug. 28, 1997), Cuyahoga App. No. 70740, unreported; State v. Moldwin (Apr. 30, 1992), Cuyahoga App. No. 60564, unreported. Accordingly, appellant's sole assignment of error is over- ruled. Appellant's conviction is 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 Cuyahoga County 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. JAMES M. PORTER, P.J. and JAMES D. SWEENEY, J. CONCUR JUDGE KENNETH A. ROCCO 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 .