COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73322 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION MALIK WALIYYUDDIN : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 27, 1998 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-348060 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor CAROL SKUTNIK (#0059704) Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: ROBERT R. CLARICO (#0062067) The Brownhoist Building 4403 St. Clair Avenue Cleveland, Ohio 44103 SPELLACY, J.: Defendant-appellant Malik Waliyyuddin ( appellant ) appeals -2- from his conviction for the felonious assault of Deondra Davis. Appellant assigns the following error for our review: THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE CHARGES HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. Finding appellant's appeal to lack merit, the judgment of the trial court is affirmed. I. On February 27, 1997, appellant was issued an indictment charging him with felonious assault in violation of R.C. 2903.11. On March 5, 1997, appellant pleaded not guilty to the charges set forth in the indictment. On July 22, 1997, appellant's case was called for trial. Deondra Davis, appellant's victim, was the first witness to testify. Mr. Davis testified that, at the time of the subject assault, he was employed at Plastic Platers as a second shift supervisor. Plastic Platers is located at East 40th Street and Superior Avenue in Cleveland, Ohio. Appellant was one of the workers assigned to Mr. Davis' supervision. Mr. Davis testified that he had to reprimand appellant on several occasions. According to Mr. Davis, he confronted appellant about appellant's work performance on January 21, 1997. After the second shift had ended, at 10:00 p.m., Mr. Davis proceeded to a bus shelter near the corner of East 40th Street and Superior Avenue. As he was waiting for a bus, he observed appellant entering a van that had arrived at Plastic Platers. The van then proceeded -3- westbound on Superior Avenue. The van returned a few minutes later. The driver and appellant exited the van and the driver attacked Mr. Davis. Mr. Davis was able to momentarily pin the driver against the van when appellant began punching Mr. Davis and kicking him in the left knee. According to Mr. Davis, EMS arrived and transported him to University Hospital. Mr. Davis, who was severely beaten, was admitted to University Hospital and treated for multiple injuries. His injuries included torn ligaments in his left knee, which required surgery prior to Mr. Davis being released from the hospital. The prosecution then called Darrick Jarvis. On January 21, 1997, Mr. Jarvis was a police officer with the Greater Cleveland Regional Transit Authority ( RTA ). On that date, Mr. Jarvis responded to a reported assault at the bus shelter on East 40th Street. When Mr. Jarvis arrived at the scene, EMS was already treating the assault victim, Mr. Davis. An RTA zone man was also at the scene. Mr. Jarvis testified that he briefly questioned Mr. Davis about the assault. Although severely beaten, Mr. Davis was able to name one of his assailants. Approximately forty-five minutes later, Mr. Jarvis spoke to Mr. Davis at University Hospital. At that time, Mr. Davis confirmed the identity of one his attackers. According to Mr. Jarvis, he provided the name of the suspect to RTA's detective bureau. The prosecution's final witness was Dale Moran, a detective with the Cleveland Police Department. Det. Moran was notified -4- about the subject assault by a detective with RTA. On January 27, 1997, Det. Moran interviewed Mr. Davis at his home. Mr. Davis had recently been released from the hospital, but was still confined to his bed. Det. Moran testified that Mr. Davis once again identified appellant as one of his assailants. Det. Moran also interviewed appellant in jail on January 27, 1997. According to Det. Moran, appellant claimed that he and Mr. Davis were waiting at a bus stop when he noticed a white work van. According to appellant's statement to Det. Moran, two masked men exited the van and assaulted Mr. Davis. Appellant told Det. Moran that another man remained in the van during the attack. Appellant also told Det. Moran that he mocked Mr. Davis and laughed during the attack. The prosecution also admitted several exhibits, including: (1) the written discipline reports made by Mr. Davis concerning appellant; (2) Mr. Davis' medical records; (3) photographs of Mr. Davis' injuries; and (4) Det. Moran's notes. The prosecution then rested. Appellant called two of his former co-workers, Eddie Wells and Jeffrey Young, to testify on his behalf. Mr. Wells noted that Mr. Davis and appellant had a poor relationship and several work- related confrontations. According to Mr. Wells, Mr. Davis was harsh and unfair in his treatment of appellant. Mr. Wells testified that Mr. Davis and appellant were in an argument on January 21, 1997. During his testimony, Mr. Young described Mr. Davis as a forceful, overbearing supervisor. Appellant also testified on his own behalf. During his -5- testimony, appellant admitted that he disliked Mr. Davis and that he had several work-related problems with Mr. Davis. Appellant also acknowledged that he had a confrontation with Mr. Davis on January 21, 1997, and that Mr. Davis had threatened to have appellant fired from his job on that date. According to appellant, after his shift was over on January 21, 1997, he proceeded to the bus shelter on East 40th Street and Superior Avenue. Appellant testified that Mr. Davis was already at the bus stop when he arrived. Appellant claimed that a beige or gray van pulled-up to the bus stop a few minutes later, and that two men wearing ski masks exited the van. Appellant contends that, after a short discussion, the two men assaulted Mr. Davis. Appellant testified that he started laughing during the assault, until he noticed there were two other men in the van with guns. Appellant claimed that he slowly moved away from the scene, and that his friend, Todd Jones, arrived and drove appellant home. Appellant's final witness was Todd Jones. Jones has been appellant's friend since 1981. Jones testified that he drove by Plastic Platers on January 21, 1997, to see if appellant needed a ride home. According to Jones, when he arrived at the scene, he observed two black men in ski masks attacking another black man. Jones testified that appellant jumped in his car and that they proceeded to appellant's home. On July 25, 1997, the jury returned its verdict. The jury found appellant guilty of felonious assault. On September 8, 1997, appellant was sentenced to a prison term of two (2) years on this -6- conviction. 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. Eley (1978), 56 Ohio St.2d 169. 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. The choice between credible witnesses and their conflicting testimony rests solely with the finder of fact and an appellate court may not substitute its own judgment for that of the finder of fact. State v. Awan (1986), 22 Ohio St.3d 120, 123. Appellant argues that his testimony and the testimony of his friend, Todd Jones, was sufficient to raise reasonable doubt of appellant's guilt. We disagree. Appellant and Jones testified that they witnessed Mr. Davis being attacked by two unidentified masked men. Mr. Davis testified that he was attacked by appellant and his friend. Although there was conflicting testimony as to who attacked Mr. Davis, there is competent, credible evidence to support the jury's findings. The jury, which was in the best position to pass on the credibility of the witnesses, had ample -7- reasons to find Mr. Davis' testimony more believable than the incredible version of events offered by appellant and Jones. We note that the testimony offered by appellant and his witnesses painted his supervisor, Mr. Davis, as appellant's work place nemesis. Appellant argues that the jury should have discredited Mr. Davis' testimony because of his obvious ill feeling towards appellant, which were evidenced by their various work- related problems. To the contrary, the mutual animosity between appellant and Mr. Davis provided a plausible motive for appellant's assault of Mr. Davis and, if anything, bolstered Mr. Davis' testimony. Therefore, we cannot reverse the trial court's findings as being against the manifest weight of the evidence. Accordingly, appellant's sole assignment of error is overruled and his conviction is upheld. Judgment affirmed. -8- 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 Common Pleas Court to carry this judgment into execution. The defendant's appeal 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. JOHN T. PATTON, P.J. and KENNETH A. ROCCO, J. CONCUR. LEO M. SPELLACY JUDGE N.B. This 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(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 -9- journalization of this court's announcement of decision by the .