COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72818 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION ALFRED HOLLY : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION JUNE 11, 1998 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-348409 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor ANTHONY J. KELLON (#0042498) Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 (CONTINUED ON NEXT PAGE) (CONT) For Defendant-Appellant: JAMES A. DRAPER Cuyahoga County Public Defender -ii- DONALD GREEN (#0039202) Assistant Public Defender 1200 West Third Street N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 SPELLACY, J.: Defendant-appellant Alfred Holly ( appellant ) appeals from his conviction for felonious assault. Appellant assigns the following error for our review: ALFRED HOLLY WAS DENIED HIS FREEDOM WITHOUT DUE PROCESS OF LAW BY HIS CONVICTION WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Finding appellant's appeal to lack merit, the judgment of the -2- trial court is affirmed. I. On March 6, 1997, appellant was issued a two-count indictment. Count I charged appellant with aggravated robbery in violation of R.C. 2911.01 with notice of prior conviction and a repeat violent offender specification. Count II charged appellant with felonious assault in violation of R.C. 2903.11, also with notice of prior conviction and a repeat violent offender specification. Appellant pleaded not guilty to the charges set forth in the indictment. On May 5, 1997, appellant's case was called for trial. Levelle Harris, the victim, was the first witness to testify. On November 19, 1996, Harris went to appellant's house with his cousin, Frank James. Curtis Meredith was also with Harris and James. Appellant and his brother, Ernest Holly, were in the house recording rap music at the time. Appellant started an argument with Harris and Harris was asked to leave. Once outside, Harris was assaulted by appellant, Ernest Holly and two other men. Harris managed to break free and ran to a nearby Finast Supermarket. When he exited Finast, Harris was once again assaulte d by appellant, Ernest Holly and the two other men. The appellant hit him with an aluminum baseball bat. Harris was also hit and kicked in the head and face during this attack. Harris was eventually knocked unconscious by his assailants. Harris regained conscio usness in a hospital, where he was treated for multiple injuries to the head and face. -3- Kevin Freeman, a police officer with the Cleveland Police Department , was the next witness to testify for the state. On November 19, 1996, Officer Freeman received a call to assist EMS with an injured man. Officer Freeman responded to the scene, the Finast Supermarket located at 11905 Superior, and observed Levelle Harris receiving emergency medical treatment in the back of an EMS vehicle. According to Officer Freeman, Harris appeared to be in pretty bad condition with various injuries to the head and face. Officer Freeman accompanied Harris to the hospital. According to Officer Freeman, Harris stated that he was attacked by two brothers. Officer Freeman believed that Harris stated that his attackers were Alfred Reed and Alan Reed. However, Officer Freeman noted that Harris was fading in and out of consciousness during the transport to the hospital. Officer Freeman attempted to interview Harris in the hospital. However, Harris, who had sustained blunt trauma injuries to his head, was having a hard time remembering the assault at that time. Joseph Williams, a detective with the Cleveland Police Departme nt, was the last witness to testify for the state. Det. Williams was assigned to investigate this case. On November 29, 1996, Det. Williams obtained a written statement from Levelle Harris. In this statement, Mr. Harris described the November 19, 1996 incident. Harris named appellant and his brother, Ernest Holly, as two of his assailants. Mr. Harris did not know the names of the other two attackers. The state then rested and the defense called their lone -4- witness, Curtis Meredith. According to Meredith, Frank James drove Levelle Harris and Meredith to appellant's house on the evening of November 19, 1996. All three men were drinking beer, and James and Harris were smoking marijuana. The trio entered appellant's house and watched appellant and his brother record rap music. Meredith testified that Harris became disruptive and was asked to leave. A verbal argument ensued. Meredith testified that Harris was not attacked at that time. According to Meredith, the altercation ended when Harris ran away. Appellant then went back inside his house. Meredith stated that he and James went to James' car, which was parked near appellant's house, and waited for Harris to come back. The two men stayed there for approximately twenty to thirty minutes. During this time, Meredith believed that appellant was still in his house. Meredith heard music coming from the house, and observed lights on in the house and appellant's car in the driveway. Moreover, Meredith testified that he did not see appellant exit his house during this period of time. After approximately twenty to thirty minutes, James and Meredith decided to drive around the neighborhood to look for Harris. According to Meredith, he did not see appellant outside of his house during their search for Harris. During his testimony, Meredith admitted to having at least two prior convictions. Meredith also stated that he has known appellant for fifteen years. (Tr. 192.) Moreover, Meredith stated that he and the appellant have a good relationship . (Tr. 193.) On May 7, 1997, the jury returned its verdict. The jury found -5- appellant not guilty of aggravated robbery. However, the jury found appellant guilty of felonious assault. On May 30, 1997, appellant was sentenced to a prison term of five (5) years on this conviction. The court ordered that this sentence run consecutively with a sentence appellant was serving for another conviction. Appella nt filed a timely notice of appeal and subsequently raised the within assignment of error. II. In his sole assignment of error, appellant argues that his conviction was against the manifest weight of the evidence. This contention is without merit. A reviewing court will not reverse the verdict of the trial court where there is substantial evidence upon which the trier of fact could reasonably conclude that all the elements of an offense had been proved. State v. Coley (Feb. 17, 1994), Cuyahoga App. No. 64717, unreported, citing State v. Eley (1978), 56 Ohio St.2d 169. It is the trier of fact who is best able to weigh the evidence and pass on the credibility of the witnesses. Coley, supra, citing State v. DeHass (1967), 10 Ohio St.2d 230. Only if reasonable minds could not fail to find reasonable doubt of a defendant's guilt will an appellate court reverse a conviction as being against the manifest weight of the evidence. State v. Thomas (1982), 70 Ohio St.2d 79. An appellate court may not substitute its own judgment for that of the factfinder. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77. -6- Appella nt argues that the testimony of Curtis Meredith was suffici ent to raise reasonable doubt of appellant's guilt. We disagree. The jury, which was in the best position to pass on the credibi lity of the witnesses, had obvious reasons to question Meredith's testimony. Meredith admitted to having at least two priorconvictions. Meredith testified that he has known appellant for approximately fifteen years. Meredith further testified that he and appellant have a good relationship. In the instant case, we will not substitute our judgment on the credibility of Meredith as a witness for that of the jury. Seasons Coal Co., supra. Accordingly, appellant's sole assignment of error is overruled. Judgment affirmed. -7- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN DYKE, P.J. and DIANE KARPINSKI, J. CONCUR LEO M. SPELLACY, JUDGE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D), 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(B) 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 .