COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73028 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION TIMOTHY M. THOMAS, JR. : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : JULY 9, 1998 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-346,620 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor LOUIS J. BRODNIK, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JAMES A. DRAPER, ESQ. Cuyahoga County Public Defender DANIEL SCULLY, Assistant 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 KENNETH A. ROCCO, J.: Defendant-appellant Timothy M. Thomas, Jr. appeals from his -2- conviction after a bench trial on one count of felonious assault, contending his conviction was against the manifest weight of the evidence. After reviewing the record, this court determines the trial court's judgment was well-supported; therefore, appellant's conviction is affirmed. Appellant's conviction stems from an incident that occurred at Doolittle's Tavern, a family-owned-and-operated bar located at 13380 Madison Avenue, in Lakewood, Ohio. The state's witnesses testified to the following scenario of the incident. At approximately 10:00 p.m. on the night of Friday, October 18, 1996, the victim, Matthew Tahsin, arrived at the tavern with his girlfriend, Emily Bell. The couple had eaten dinner at a restaurant in nearby Fairview Park, where Bell resided, and then had proceeded to Doolittle's in order to "meet up with"1 a few of Tahsin's "buddies." Tahsin and his friends were frequent customers at the tavern since they were acquainted with its owners. On this night, Tahsin's friends had arrived earlier and already were engaged in "talking sports"; therefore, Tahsin and Bell seated themselves at the bar a short distance away, ordered a beer and a glass of wine, and began their own conversation. The two were speaking with each other when one of Bell's friends, a girl named Shannon DuCrane, entered the tavern with two young men, who were later identified as appellant and Scott Farago. Since Bell had introduced DuCrane to Tahsin on a prior occasion, the 1Quotes indicate testimony given by a witness at appellant's trial. -3- couple greeted her before resuming their conversation. Tahsin was unaware that Bell also knew DuCrane's companions. Bell had met them the previous evening. On that occasion, Bell found appellant's behavior to be so "obnoxious" that while transporting him and several others in her car, she had stopped her car and demanded appellant exit it before the journey was completed; thus, appellant had been forced to locate another method of transportation home. Appellant, Farago and DuCrane seated themselves at a table near the couple. Within a short time, appellant approached Tahsin from behind. Bell was seated on a bar stool to Tahsin's left. Appellant stood between them and, in a "cocky" and "bullyish" manner, told Tahsin to "buy Shannon a drink." Tahsin was nonplused by this demand from a stranger and looked at Bell. Bell made no comment on appellant's request, but Tahsin was aware DuCrane was not yet of a legal age to obtain alcohol. Tahsin responded to appellant, "Listen, I can't do it." Although appellant attempted to argue the point, Tahsin refused to be drawn into further conversation about the matter. Appellant retreated to his table, "mumbling" in an "aggressive" tone loudly enough to be heard that he "would love to punch" someone. Within a few seconds, appellant returned. Again, he stepped behind Tahsin between the couple. Appellant, holding a drink in his right hand, "crouched" toward Tahsin in an "aggressive manner" and began "mumbling" into Tahsin's left ear. This time, Tahsin -4- turned to appellant, demanding that he "[g]et out of [his] face" as Tahsin was "minding [his] own business with [his] girlfriend." Appellant "got very mean"; he told Tahsin that Tahsin had "three seconds" before appellant was "going to get in [his] face." Although Tahsin had now turned away, appellant "started counting out loud." Tahsin realized he was at a disadvantage while he remained seated on the stool. Therefore, he began to rise and turn toward appellant. Before Tahsin could complete his motion, however, appellant "smashed" the glass he was holding into the left side of Tahsin's head, slicing Tahsin's ear and lacerating his scalp. Tahsin reeled from the blow; nevertheless, as he did so, he lashed out with his left hand and struck appellant in the mouth. Appellant's response, despite a cut on his hand from the broken glass, was to deliver more blows to Tahsin's head, sending Tahsin to the floor. The disturbance occurring at the bar attracted the attention of Tahsin's friends, and a fracas ensued. Russell Koz, the owner of the tavern, rushed over to the bar and tried to restore order. Eventually, Koz restrained appellant; however, when he had removed appellant from the area and released him, appellant fled.2 Tahsin was helped to his feet. Holding a bar towel to his head to staunch the blood coming from the wound to his head, and 2From the testimony regarding Lakewood police officers' subsequent attempts to locate appellant regarding the incident, it appears appellant proceeded to the apartment he shared with Farago in order to obtain some personal belongings, then went to his girlfriend's house to evade pursuit. -5- accompanied by Bell, Tahsin drove himself to the nearest hospital's emergency room. Soon thereafter, he underwent a three- to four-hour surgery, during which glass fragments were removed from his wounds, the top portion of his left ear was reconstructed, and lacerations to his face and head were sutured. Tahsin also sustained in the incident two new fractures of a previously-broken bone in his left hand. The incident came to the attention of the Lakewood Police Department as Tahsin was proceeding to the hospital. A patrol car had been dispatched to "the area of Waterbury and Madison"3 in response to a call concerning a "disturbance." Although the uniformed police officers who responded to the call found nothing amiss at that particular location, they received "another call of a disturbance" involving "four to five males arguing" at a nearby convenience store. When the officers arrived at the convenience store, they observed only Scott Farago there. Farago spoke to them briefly about the incident that had taken place at Doolittle's a few minutes earlier. Thereafter, the officers received an assignment to interview Tahsin at Lakewood Hospital. Their police report later was given to Detective Donald Lissner, who conducted a "follow-up" investigation of the incident. As a result of the police investigation, a warrant was issued on October 23, 1996 for appellant's arrest. Appellant ultimately was arrested on December 11, 1996. Thereafter, the Cuyahoga County 3Testimony established this was "near" Doolittle's Tavern. -6- Grand Jury issued an indictment against appellant, charging him with one count of felonious assault in violation of R.C. 2903.11. Appellant waived his right to a jury trial; thus, his case was tried to the bench. After hearing the testimony of the state's witnesses and appellant and his witnesses, and after permitting the introduction into evidence of Tahsin's medical records, photographs of Tahsin's injuries and a duplicate of one of the tavern's bar glasses, the trial court found appellant guilty of the charge against him. The trial court subsequently sentenced appellant to a term of incarceration of five years. Appellant has filed a timely appeal of his conviction and presents the following as his sole assignment of error: THE APPELLANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THUS, HE HAS BEEN DENIED HIM (sic) DUE PROCESS OF LAW AS GUARANTEED BY THE CONSTITUTIONS OF THE UNITED STATES AND OF OHIO. Appellant argues that the testimony of the state's witnesses was inconsistent and incredible whereas his testimony and the testimony of his witnesses was believable. Citing State v. Mattison(1985), 23 Ohio App.3d 10, he thus contends the weight of the evidence fails to sustain his conviction. Nevertheless, appel- lant's argument remains unpersuasive. The test to be applied when reviewing a claim that a conviction 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 -7- consider 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 credibility of witnesses and determines whether in resolving conflicts in the evidence, the [trier of fact] 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, 42. (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. Appellant was convicted of felonious assault in violation of R.C. 2903.11, which provides in pertinent part as follows: S2903.11 Felonious assault. (A) No person shall knowingly: (1) Cause serious 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. R.C. 2923.11 provides in pertinent part the following: -8- S2923.11 Definitions. As used in sections 2923.11 to 2923.24 of the Revised Code: (A) "Deadly weapon" means any instrument, device, or thing capable of inflicting death, and designed or specially adapted for use as a weapon, or possessed, carried, or used as a weapon. In this case, the trial court heard the testimony of the victim, Emily Bell, Russell Koz, and several of the police officers who investigated the incident. The state's witnesses presented a logical, coherent sequence of events. From their testimony, it could be inferred appellant, who stated he had a "hate people attitude," carried a grudge against Bell for ordering him out of her vehicle on the previous evening. Appellant chose to satisfy his grudge on this night by interrupting Bell's conversation and antagonizing her boyfriend. Then, because his attempts to goad Tahsin were unavailing, appellant grew angry and decided not to control that anger when Tahsin finally requested appellant to "get out of [his] face." Tahsin, aware of appellant's aggression, was already preparing to defend himself when he was turning to rise and to face appellant. Appellant, however, could not permit his victim to be on an equal footing with him; therefore, before Tahsin had his feet on the floor, appellant struck Tahsin with the object he held in his right hand: a heavy drinking glass that broke into thick shards upon impact. As a result, Tahsin suffered injuries so serious they required reconstructive plastic surgery. Appellant and his witnesses, on the other hand, presented evidence that was both self-serving and impeached. Farago -9- testified that although he observed appellant, who was speaking to Bell rather than to Tahsin, he neither saw appellant strike Tahsin first nor saw a drinking glass in appellant's hand at all. Farago stated he never really saw [appellant] hit the victim; rather, Tahsin was the person "hitting" appellant, doing so at least three times. Farago admitted he had told Det. Lissner, however, that he was not even in the room when the fight began and had observed nothing concerning it. Farago further admitted that he "lied." Appellant's testimony, moreover, was unconvincing. Appellant testified that prior to the incident, he was speaking to Bell rather than to Tahsin, who seemed "interested" in their conversation but "[n]ot greatly upset." Despite testifying to this initial lack of animosity between them, appellant stated he and Tahsin began exchanging "innuendos," which led to appellant saying "something that made Mr. Tahsin get off his stool and hit me on my cheekbone." Appellant claimed he merely "threw" out his hands in a self- protective gesture; appellant further testified, however, that even though he held a glass in his right hand when he thus connected with Tahsin's head and was "hurt severely in [his] hand," when the glass shattered, he "did not become aware [Tahsin] was actually hurt with the glass until two days later." Appellant admitted his subsequent awareness did not lead him to proceed to the Lakewood Police Department, although he knew of both its investigation and Det. Lissner's desire to speak with him. -10- The trial court also heard the testimony of Vanessa Kaiser, a friend of appellant's girlfriend. Kaiser's testimony so closely mirrored Farago's as to seem rehearsed. Moreover, Kaiser stated that although she witnessed the incident, she did not speak to appellant about it until just prior to his trial because she "did not think it was serious at the time." Kaiser further testified that before leaving the bar that night, she saw no blood on either the fight's participants or on the floor. Prior to rendering its verdict in this case, the trial court carefully evaluated on the record the credibility of each witness. The trial court compared the discrepancies between the defense witnesses' testimony and the testimony of the state's witnesses, then considered the logic of the situation and the physical evidence extant in Tahsin's medical records and the photographs of his injuries. From its analysis, the trial court concluded the evidence presented in the case demonstrated appellant committed a felonious assault upon Tahsin but failed to demonstrate appellant's attack was either provoked or necessary. Reviewing the record, this court cannot infer the trial court 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)(2), therefore, 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; State v. Hensley (June 27, 1991), Crawford App. No. 3-90-16, unreported. -11- Accordingly, appellant's sole assignment of error is overruled. 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 LEO M. SPELLACY, 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 .