COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72820 STATE OF OHIO : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : ANTHONY DAVIS : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: JUNE 18, 1998 CHARACTER OF PROCEEDING: Criminal appeal from the Court of Common Pleas Case No. CR-349503 JUDGMENT: Affirmed in part; sentence is vacated and matter is remanded for re-sentencing DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES, ESQ. CUYAHOGA COUNTY PROSECUTOR BY: ERIKA RITT, ESQ. ASSISTANT COUNTY PROSECUTOR 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JEAN M. GALLAGHER, ESQ. ASSISTANT PUBLIC DEFENDER 100 Lakeside Place 1200 West Third Street, N.W. Cleveland, Ohio 44113 DYKE P.J.: Defendant Anthony Davis appeals from his conviction for felonious assault. For the reasons set forth below, we affirm in -2- part, vacate defendant's sentence and remand for re-sentencing. On April 8, 1997, defendant was indicted for one count of felonious assault, by means of a golf club, in connection with an attack upon Sherlander Jackson. Defendant pleaded not guilty and the matter proceeded to a bench trial on June 3, 1997. As the matter proceeded, the state moved to amend the indict- ment to allege that the felonious assault was committed by means of a pole and not a golf club. Thereafter, Sherlander Jackson testified that on February 23, 1997, in the afternoon, she went to her friend's house. She drank at least two beers then returned to the apartment she shared with defendant at around 5:00 p.m. or 6:00 p.m. Jackson looked after her children then went to sleep at around 9:00 p.m. Jackson testified that defendant returned to the apartment intoxicated. He awoke her, cursed at her and asked her what was wrong with the house. He then grabbed her by the hair and hit her in the face. She attempted to call the police but he took the telephone away from her and threw it across the room. Defendant subsequently went downstairs and Jackson went down- stairs to make sure that he had gone. She saw defendant's friend Eugene Jones ( Chris ) standing in the doorway. Chris stepped out- side and Jackson saw defendant grab the long thing which she thought was a golf club. (Tr. 23). Jackson testified that a golf club, a pole, and a garbage poker were all stored together in a crate on the first floor. According to Jackson, defendant hit her with the pole three or four times. She passed out and defendant left. -3- Jackson further testified that she called for emergency assis- tance and was taken by ambulance to MetroHealth Medical Center. She was discharged the following morning. She was diagnosed as having multiple contusion status post assault. Jackson also testified that she sustained permanent bruises on her legs and forehead. On cross-examination, Jackson stated that the apartment was messy from the children playing, and she denied that it was a hor- rendous mess. She also denied that defendant had broken off their engagement but she admitted that she had gone to defendant's job earlier in the afternoon and he was not there. She acknowledged that upon her discharge from the hospital, she was simply advised to take Tylenol for pain. Finally, she admitted that she had been convicted of robbery two years earlier. Cleveland Police Officer Gregory Jones testified that he and his partner, John Lundy, went to Jackson's apartment in response to a call of a domestic dispute. They arrived within five minutes of receiving the call. Officer Jones observed defendant standing outside the apartment. According to Officer Jones, defendant had a pole with a pointed metal tip in his hand and he appeared highly intoxicated. The officers asked him what was going on and he dropped the poker and walked away. As the officers walked toward him, defendant began to run. He was apprehended several blocks away. Jones further testified that upon returning to the apartment, he observed that Jackson's face was swollen, the area above her -4- eyes was swollen, and she had marks on her body including a bite mark on her arm. Jones stated that the apartment looked as though it had been ransacked. He observed golf clubs in the apartment. Cleveland Police Detective Barbara McCoy testified that Jackson made a statement at the Third District Police Department on February 24, 1997. It appeared as though Jackson was stiff and could barely move. Det. McCoy testified that the incident was ori- ginally listed as domestic violence but was subsequently upgraded to felonious assault. Det. McCoy stated on cross-examination that Jackson told her that she was struck with a golf club. McCoy did not question Jackson regarding the note in Officer Jones' report that defendant had a pole. Following Det. McCoy's testimony, the defense moved for acquittal of the charge. The court denied the motion and defendant elected to present evidence. Norma Parker, Jackson's neighbor, testified that at appro- ximately 4:00 p.m., on February 23, 1997, Jackson asked her to drive her to defendant's job so that she could speak with him. Parker did so but defendant was not there. Later, at approximately 7:00 p.m., defendant came to her apartment and asked her to look at the mess that Jackson had created. Parker accompanied defendant back to the apartment. Chris was there at this time. Parker observed that the apartment had been demolished. According to Parker, glass was broken, chairs were broken, furniture was overthrown, and the kitchen floor -5- was covered with food. Parker's fiancee, Darin Suggs, arrived at the apartment and he also looked at the mess, then he and Parker left a few minutes later. At approximately 1:00 a.m., Parker heard Jackson's door being slammed. She looked out and saw defendant standing outside. Parker testified that she did not hear any dispute and that Jackson looked fine the following morning. (Tr. 102) Darin Suggs testified that he went to the apartment which Jackson shared with defendant in the early evening of February 23, 1997 and observed broken items strewn about the apartment. Defendant had a broom and was sweeping the rubbish into piles. Defendant reportedly asked Suggs what to do and Suggs told him not to leave if Jackson had been drinking and the children were there. Suggs and Parker returned to Parker's apartment. Approximately one hour later, defendant, Chris, and another man asked Suggs if he wanted to shoot pool with them. Suggs did not go with them. After midnight, Suggs heard a door slamming then saw the police enter Jackson's apartment. The following day, Suggs observed Jackson to be walking normally. Eugene Jones ( Chris ) testified that he and defendant are both security officers. He stated that he went to defendant and Jackson's apartment in the morning of February 23, 1997. It was not in disarray at this time. The men worked until approximately 5:00 or 6:00 p.m., then fixed another friend's car for approxi- mately one hour. He and defendant then returned to the apartment and observed that it had been ransacked. Jackson was asleep on the -6- couch. The two men left, but returned a short time later, and defendant began cleaning. Parker and Suggs came over briefly to see the apartment. After approximately thirty minutes, another friend, Rowdy, arrived and the three went to shoot pool. They drank at this time. After a few hours, Chris and defendant returned to defendant's apartment to get something to eat. Defendant and Jackson spoke briefly upstairs. Defendant returned to the kitchen and Jackson followed him and threw a crate at him. According to Chris, Jackson was intoxicated and repeatedly attacked defendant. In response, defendant grabbed Jackson's hand, pushed her to the couch and tried to calm her. She then grabbed the garbage poker and swung it and thrust it at him. Chris and defendant left and Jackson screamed and slammed the door. Chris denied that defendant beat Jackson. He also stated that he saw Jackson the following morning and she did not appear to be in any discomfort and did not appear to have any bruises or swelling. Defendant testified on his own behalf and stated that he and Jackson had been engaged until two weeks before this incident. On the day of the alleged attack, defendant and Chris went to the apartment for their afternoon break from work. Later in the after- noon, they went to a friend's house to fix the brakes on her car. When they returned to the apartment, broken dishes were on the floor, the refrigerator was tilted away from the wall and the door was open, items from the entertainment center were broken and on -7- the floor, and the furniture was moved or overthrown. Defendant stated that he grabbed Jackson by the shoulders, shook her and asked her what had happened. He then went outside to catch his breath. He went to the store briefly then asked Norma Parker and Darin Suggs to look at the apartment. Defendant cleaned the apartment for approximately two hours then left to play pool. He and Chris returned to the apartment shortly before 2:00 a.m. Defendant spoke to Jackson for approxi- mately five or six minutes upstairs, then returned downstairs. According to defendant, Jackson began throwing things at him and struck him with a metal object. He and Chris left and Jackson slammed the door. Defendant denied striking Jackson and stated that he would never have struck her because he thought that she was pregnant at this time. With regard to his arrest, defendant stated that the police arrived on the scene and charged at him. He went near others who were at a bus stop because he was afraid that the police were going to beat him up, and he thought that this would deter them from doing so. The matter was submitted to the court and defendant was sub- sequently convicted of felonious assault. The court sentenced defendant to two years imprisonment. He now appeals and assigns three errors for our review. Defendant's first assignment of error states: PREJUDICIAL ERROR WAS COMMITTED BY THE ADMISSION OF OTHER ACTS TESTIMONY IN VIOLATION OF R.C. 2945.59, EVID.R. -8- 404(B), SECTION 16 OF THE OHIO CONSTITUTION AND THE FOUR- TEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. Within this assignment of error, defendant complains that the trial court erroneously permitted the state to introduce evidence that Sherlander Jackson had made previous police reports to get defendant to leave the apartment. Defendant additionally complains that the court erroneously permitted Jackson to testify that defen- dant had beaten her on other occasions. We note that this matter was tried to the court without a jury. The court is therefore presumed to have considered only legally relevant evidence. See State v. Jells (1990), 53 Ohio St.3d 22, 30. Accord State v. Eley (1996), 77 Ohio St.3d 174, 180 (reviewing court will indulge the usual presumption that in a bench trial in a criminal case the court considered only the relevant, material and competent evidence in arriving at its judgment unless it affirmatively appears to the contrary). See, also, State v. Odetellah (1993), 91 Ohio App.3d 787, 794. In this instance, it does not affirmatively appear that the trial court relied upon the brief references to the other alleged incidents in determining that defendant had feloniously assaulted Jackson as alleged in the indictment. Accordingly, we are unable to credit this assignment of error. Defendant's second assignment of error states: THE CONVICTION FOR FELONIOUS ASSAULT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE WAS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF FELONIOUS ASSAULT HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. -9- Within this assignment of error, defendant maintains that his conviction is against the manifest weight of the evidence and is not supported by sufficient evidence. With regard to the sufficiency challenge, we note that in State v. Thompkins (1997), 78 Ohio St.3d 380, 386, the Supreme Court stated: `Sufficiency' is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law. Black's Law Dictionary (6 Ed. 1990) 1433. See, also, Crim. R. 29(A) (motion for judgment of acquittal can be granted by the trial court if the evidence is legally insufficient to sustain a conviction). In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148. In addition, a conviction based on legally insufficient evidence constitutes a denial of due process. Tibbs v. Florida (1982), 457 U.S. 31, 45, 102 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663, citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. In State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, the Court described the role of the appellate court in reviewing a challenge to the sufficiency of the evidence supporting a conviction: An appellate court's function when reviewing the sufficiency of evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecu- tion, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Id., at paragraph two of the syllabus, citing Jackson v. Virginia (1979), 443 U.S. 307. -10- In this instance, defendant was charged with felonious assault, the essential elements of which are set forth in R.C. 2903.11. In pertinent part, this section provides: (A) No person shall knowingly; (1) Cause physical harm to another ***; (2) Cause or attempt to cause physical harm to another *** by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code. Defendant asserts that there is insufficient evidence sup- porting his conviction because there are no photographs to verify Jackson's injuries, Jackson initially stated that defendant had beaten her with a golf club then later said that it was a metal pole, and personnel at MetroHealth simply advised her to take Tylenol for her injuries. As to the first of these claims, we conclude that photographs are simply corroborative and their absence goes to the weight of the evidence and not sufficiency. As to the fact that Jackson was mistaken as to the object allegedly used, this court has previously determined that inconsis- tencies regarding the nature of a weapon allegedly used go to the weight of the testimony. See State v. Peacock (May 31, 1990), Cuyahoga App. No. 56807, unreported. Further, evidence that one was struck with a metal pole is sufficient to demonstrate that a deadly weapon was used. That is, R.C. 2923.11(A) defines "deadly weapon" as "any instrument, device, or thing capable of inflicting death, and designed or specifically adopted for use as a weapon, or possessed, carried, or used as a weapon." In addition, other -11- pole-like objects have been determined to be "capable of inflicting death" so as to constitute a deadly weapon in connection with a charge of felonious assault. See State v. Miller (June 27, 1996), Cuyahoga App. No. 69309, unreported (pool cue); State v. Martin (December 9, 1993), Cuyahoga App. No. 64421, unreported (hand gun used to pistol whip ); State v. Pope (Oct. 4, 1990), Logan App. No. 8-89-19, unreported (handle of toilet plunger); and State v. Shannon(Sep. 2, 1987), Lorain App. No. 4216, unreported (stick or pipe). As to the fact that Jackson was given Tylenol, we note that from a sufficiency standpoint, the essential question is whether Jackson suffered physical harm within the meaning of R.C. 2903.11. In this regard, this court has previously determined that evidence that the victim was struck with a weapon, causing bruises and swelling is sufficient for a conviction under R.C. 2903.11(A)(2). See v. Owens (March 26, 1992), Cuyahoga App. No. 60370, unreported; State v. Hall (May 23, 1991), Cuyahoga App. No. 58582, unreported at 7-11; State v. Clark (June 20, 1991), Cuyahoga App. No. 58866, unreported at 4-6. In accordance with the foregoing, we are unable to conclude that defendant's conviction for felonious assault is unsupported by sufficient evidence. With regard to defendant's challenge to the weight of the evidence supporting his conviction we note that in State v. Thompkins (1997), 78 Ohio St.3d 380, 387, the Supreme Court set forth the role of an appellate court in determining whether a -12- judgment is against the manifest weight of the evidence: When a court of appeals reverses the judgment of a trial court on the basis that the verdict is against the manifest weight of the evidence, the appellate court sits as a `thirteenth juror' and disagrees with the fact- finder's resolution of the conflicting testimony. Tibbs [v. Florida (1982), 457 U.S. 31,] 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 infer- ences, considers the credibility of witnesses and deter- mines 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 only be granted in the exceptional case in which the evidence weighs heavily against the conviction. ) Moreover, the credibility of witnesses and the weight attri- butable to their testimony are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. Applying the foregoing, we are unable to conclude that the evidence weighs heavily against defendant's conviction or that the court lost its way in convicting him. That is, despite the fact that there were no photographs, Jackson credibly testified that defendant awoke her enraged that the apartment was a mess, and beat her and hit her with a metal pole, which she initially thought was a golf club. Her confusion over the nature of the object was explained by the suddenness of the attack and the fact that defen- dant retrieved the object from a crate in which the couple stored golf clubs, pokers and other poles. In addition, Officer Jones testified that Jackson had swelling about her face and defendant was still in possession of the pole -13- when the officers arrived on the scene. Finally, the record of MetroHealth Center indicate that Jackson was discharged from the hospital with a diagnosis of multiple contusions, and Det. McCoy corroborated that Jackson appeared to be in distress on the following day. Defendant did present evidence that he did not assault Jackson. His evidence tended to demonstrate that Jackson had ransacked the couple's apartment out of anger that defendant was not at work when Jackson went there for him, and did not come home to assist her during what she believed to be a miscarriage. Without losing its way, the trial court could have accepted the bulk of defendant's evidence but nonetheless concluded that this established the basis or provocation for a subsequent retaliatory response from defendant. The second assignment of error is overruled. Defendant's third assignment of error states: THE TRIAL COURT FAILED TO COMPLY WITH R.C. 2929.19(B)(3)(b), (c) AND (e) WHICH REQUIRE THAT AT SENTENCING THE TRIAL COURT NOTIFY THE DEFENDANT THAT HE IS SUBJECT TO R.C. 2967.11( BAD TIME ) AND R.C. 2967.27 ( POST-RELEASE CONTROL ). Defendant next asserts that the trial court erred in failing to inform him at the sentencing hearing that he was subject to additional, administratively imposed prison time for any offense committed while incarcerated, that he was subject to post-release control, and that he was subject to other sanctions during the period of post-release control. -14- The disposition of this assignment of error is governed by R.C. 2929.19(B)(3) which provides in relevant part as follows: (3) Subject to division (B)(4) of this section, if the sentencing court determines at the sentencing hearing that a prison term is necessary or required, the court shall do all of the following: * * * (b) Notify the offender that the parole board may extend the stated prison term if the offender commits any crimi- nal offense under the laws of this state or the United States while serving the prison term, that the extension will be done administratively as part of the offender's sentence in accordance with section 2967.11 of the Revised Code and may be for thirty, sixty, or ninety days for each violation, that all extensions of any stated prison term for all violations during the course of the term may not exceed one-half of the term's duration, and that the sentence so imposed automatically includes any extension of the state prison term by the parole board; (c) Subject to division (B)(4) of this section, if the offender is being sentenced for a felony of the first degree, for a felony of the second degree, for a felony sex offense, as defined in section 2967.28 of the Revised code, or for a felony of the third degree that is not a felony sex offense and in the commission of which the offender caused or threatened to cause physical harm to a person, notify the offender that a period of post- release control pursuant to section 2967.28 of the Revised Code will be imposed following the offender's release from prison. *** (e) Notify the offender that, if a period of post-release control is imposed following the offender's release from prison, as described in division (B)(3)(c) or (d) of this section, and if the offender violates a post-release control sanction imposed as a component of the post- release control including the mandatory condition des- cribed in division (A) of section 2967.121 [2967.12.1] of the Revised Code, all of the following apply: (i) The adult parole authority or the parole board may impose a more restrictive post-release control sanction. (ii) The parole board may increase the duration of the post-release control subject to a specified maximum. -15- (iii) The more restrictive sanction that the parole board may impose may consist of a prison term, provided that the prison term cannot exceed nine months and the maximum cumulative prison term so imposed for all violations during the period of post-release control cannot exceed one-half of the stated prison term originally imposed upon the offender. (iv) If the violation of the sanction is a felony, the offender may be prosecuted for the felony and, in addition to any sentence it imposes on the offender for the new felony, the court may impose a prison term, subject to a specified maximum, for the violation. In this matter, the state agrees that appellant is entitled to a new sentencing hearing for the limited purpose of notification in accordance with R.C. 2929.19." Accordingly, we find this assignment of error to be well-taken and we reverse defendant's sentence and remand the matter for re-sentencing in accordance with the requirements of R.C. 2929.19. The trial court's determination that defendant committed felonious assault is affirmed, the sentence is vacated and the matter is remanded for re-sentencing. -16- It is ordered that appellant and appellee share the 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. KARPINSKI, J., AND SPELLACY, J., CONCUR. ANN DYKE 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 .