COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73519 CITY OF CLEVELAND : : Plaintiff-Appellee : : -vs- : JOURNAL ENTRY : AND JULIUS BACSA : OPINION : Defendant-Appellant : DATE OF ANNOUNCEMENT : OCTOBER 29, 1998 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Cleve. Municipal Court Case No. 97- CRB-15759 JUDGMENT: Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee : George Pace, Esq. City Prosecutor Jose Torres, Esq. Reuben J. Sheperd, Esq. Assistant City Prosecutors 1200 Ontario Street 8th floor Cleveland, Ohio 44113 For defendant-appellant: Paul Mancino, Jr., Esq. 75 Public Square Suite 1016 Cleveland, Ohio 44113-2098 -2- MICHAEL J. CORRIGAN, J.: Julius Bacsa, defendant-appellant, appeals from the judgment of the City of Cleveland Municipal Court, Case No. 97-CRB-15759, in which defendant-appellantwas convicted of assault, in violation of Cleveland Codified Ordinances 623.01, and criminal damaging, in violation of Cleveland Codified Ordinances 623.02. Defendant- appellant assigns seven errors for this court's review. Defendant-appellant's appeal is not well taken. On May 19, 1997, defendant-appellant was charged in two criminal complaints in the City of Cleveland Municipal Court alleging assault and criminal damaging. The complaints arose out of an incident between defendant-appellant and Elizabeth Goncza in which defendant-appellantallegedly slapped Ms. Goncza in the face, pushed her down a flight of stairs and rammed the front end of Ms. Goncza's automobile with his truck. Defendant-appellant initially entered a plea of not guilty to the underlying offenses and was released on bond. Defendant- appellant appeared in court on August 5, 1997, at which time the trial court revoked defendant-appellant's bond due to alleged attempts to intimidate a witness in the case. The case proceeded to a bench trial on August 14, 1997. The city presented the testimony of three witnesses. The city's first witness, the victim, Elizabeth Goncza, testified that she had lived with defendant-appellant for approximately four years at the time of the incident. On May 18, 1997, defendant-appellant returned to their home complaining that he received no respect from Ms. Goncza. -3- (T. 6). Defendant-appellant then slapped Ms. Goncza in the face and allegedly attempted to push her down the stairs. Ms. Goncza testified that, at this point, she got into her automobile and drove around the block in an attempt to get away from defendant- appellant. When she returned home, defendant-appellant was still there so Ms. Goncza decided to remain in her car. Defendant- appellant then proceeded to exit the house and get into his truck. He started the truck and backed into Ms. Goncza's car while she was sitting inside causing damage to the front end of the automobile. Defendant-appellant then left the scene and the police were called. On cross-examination, Ms. Goncza stated that she was currently receiving treatment for an adult attention disorder, had been treated for alcoholism in the past and had prior convictions of driving under the influence and forged prescriptions. Ms. Goncza received no medical treatment for the alleged assault. The city's second witness, Aranka Balay, testified that on the day of the incident, she observed defendant-appellant enter the home of Ms. Goncza, become angry with Ms. Goncza and slap her in the face leaving a red mark. (T. 41). Ms. Balay then observed defendant-appellant push Ms. Goncza down a flight of stairs. At this point, Ms. Balay went to a bedroom where she observed defendant-appellant through a window as he rammed his truck into Ms. Goncza's automobile. The third and final witness for the prosecution was Officer Nate Oliver of the Cleveland Police Department. Officer Oliver testified that he was called to the scene of the incident and -4- observed front end damage to Ms. Goncza's automobile. In Officer Oliver's opinion, the damage to the car was fresh due to the presence of debris on the ground near the automobile. (T. 64). The defense case consisted of the testimony of two character witnesses, Atta Barloug and Rhonda Flowers, who testified as to defendant-appellant's general honesty as well as to defendant- appellant's whereabouts on the day of the incident. Defendant- appellant testified in his own behalf. He denied having struck Ms. Goncza or damaging her automobile in any way. (T. 97-98). At the conclusion of the testimony, the trial court found defendant-appellant guilty of both charges. On October 9, 1997, defendant-appellant was sentenced to 90 days in jail and a $750.00 fine on the offense of criminal damaging. The trial court suspended the jail time as well as $650.00 of the fine. On the assault charge, the trial court sentenced defendant-appellant to 180 days in jail and a $1,000.00 fine. The trial court suspended the full 180 day jail sentence and $800.00 of the fine. The trial court then placed defendant-appellant on one year probation. On November 7, 1997, defendant-appellant filed a timely notice of appeal from his conviction and sentence in the Cleveland Municipal Court. The instant appeal now follows. Defendant-appellant's first assignment of error states: I. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL. Defendant-appellant argues, through his first assignment of error, that he was denied the effective assistance of counsel. Specifically, defendant-appellant maintains that trial counsel's -5- decision to waive closing argument in this case constitutes ineffective assistance of counsel. In order to substantiate a claim of ineffective assistance of counsel, the appellant is required to demonstrate that: 1) the performance of defense counsel was seriously flawed and deficient; and 2) the result of the appellant's trial or legal proceeding would have been different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668; State v. Brooks (1986), 25 Ohio St.3d 144. In reviewing a claim of ineffective assistance of counsel, it must be presumed that a properly licensed attorney executes his legal duty in an ethical and competent manner. State v. Smith (1985), 17 Ohio St.3d 98; Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. The Supreme Court of Ohio, with regard to the issue of ineffective assistance of counsel, held in State v. Bradley (1989), 42 Ohio St.3d 136, that: When considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness. State v. Lytle (1976), 48 Ohio St.2d 391, 396-397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated in part on other grounds (1978), 438 U.S. 910. This standard is essentially the same as the one enunciated by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668. *** Even assuming that counsel's performance was ineffective, this is not sufficient to warrant reversal -6- of a conviction. An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364-365 (1981). Strickland, supra, at 691. To warrant reversal, [t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, supra, at 694. In adopting this standard, it is important to note that the court specifically rejected lesser standards for demonstrating prejudice. ***. Accordingly, to show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. State v. Bradley, supra, at 141, 142. In State v. Burke (1995), 73 Ohio St.3d 399, 405, 653 N.E.2d 242, the Ohio Supreme Court was confronted with the exact issue raised by defendant-appellant herein; whether the waiver of closing argument in a criminal case constituted ineffective assistance of counsel. The court determined that the waiver of closing argument may have simply been a tactical decision made by defense counsel to prevent the state from splitting closing argument and staging a strong rebuttal. Id. Consequently, the court found that waiving closing argument did not constitute ineffective assistance of counsel. See State v. Darling (June 18, 1998), Cuyahoga App. No. 72635, unreported. In the case sub judice, a review of the record demonstrates that trial counsel's waiver of closing argument did not constitute ineffective assistance of counsel. Trial counsel vigorously defended defendant-appellant throughout the underlying case -7- presenting relevant evidence, cross-examining city witnesses, objecting to the introduction of certain evidence by the city as well as moving for a judgment of acquittal pursuant to Crim.R. 29 at the close of the city's case. Clearly, defendant-appellant had competent trial counsel at all stages of the underlying prosecution. The mere fact that defense counsel waived closing argument did not unduly prejudice defendant-appellant or deprive defendant-appellant of his constitutional right to effective assistance of counsel. This is particularly true in light of the fact that the city also waived closing argument in this matter and therefore defense counsel's decision to waive oral argument could clearly be construed as a tactical decision. Darling, supra. For the foregoing reasons, defendant-appellant's first assignment of error is not well taken. Defendant-appellant's second assignment of error states: II. DEFENDANT WAS DENIED A FAIR TRIBUNAL WHEN THE COURT DID NOR RECUSE ITSELF ON ITS OWN MOTION. Defendant-appellant argues, through his second assignment of error, that the trial court should have recused itself upon its own motion due to the fact that the trial court had made a predeterminedcredibility assessment regarding the truthfulness of the victim when it revoked defendant-appellant's bond nine days prior to trial. In addition, defendant-appellant maintains that the trial court also spoke to a witness, Officer Oliver, about the facts of this case prior to trial. It is defendant-appellant's position that these actions demonstrate an unfair bias on the part -8- of the trial court and prevented a fair and impartial tribunal at the subsequent trial. A court of appeals does not have the authority to rule upon disqualification of a trial judge nor does it have the authority to void a judgment of the trial court upon that basis. State v. Ramos (1993), 88 Ohio App.3d 394, 398, citing Beer v. Griffith (1978), 54 Ohio St.2d 440, 441-442, 8 O.O.3d 428, 377 N.E.2d 775, 776; State v. Greer (Oct. 28, 1992) Summit App. No. 15217, unreported. R.C. 2701.03 sets forth the procedure by which a party may seek the disqualification of a trial court judge. The statute requires the party seeking removal to file an affidavit of prejudice with the Ohio Supreme Court. As this was not done in the underlying case, this court has no jurisdiction to rule upon defendant-appellant's second assignment of error. State v. Roderick (June 3, 1998), Summit App. No. 18521, unreported. Even if such an affidavit had been filed in the instant case, a review of the record fails to demonstrate that the trial court was, in any way, biased or unduly prejudiced toward defendant-appellant at any time during the underlying proceedings. Accordingly, it is unlikely that such an affidavit would have had any effect on the trial of this matter. Defendant-appellant's second assignment of error is not well taken. Defendant-appellant's third assignment of error states: III. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS CONVICTED OF THE OFFENSE OF ASSAULT WHEN NO COMPLAINT WAS FILED. -9- Defendant-appellant maintains, through his third assignment of error, that he was denied due process of law since he was convicted of the offense of assault when the file did not contain an underlying complaint for the alleged offense. It is defendant- appellant's position that, without the actual complaint, he could not know the exact nature of the charges against him and could not be constitutionally convicted of the offense of assault. Contrary to defendant-appellant's assertion, a review of the trial court record does in fact demonstrate that a complaint for assault was filed and is contained within the appellate record. Accordingly, it is apparent that defendant-appellant was fully informed of all charges brought against him by the city and was not denied due process in any manner. See State v. Bell (1996), 112 Ohio App.3d 473, 679 N.E.2d 44. Defendant-appellant's third assignment of error is not well taken. Defendant-appellant's fourth assignment of error states: IV. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS CONVICTED OF THE OFFENSE OF CRIMINAL DAMAGING UPON A FAXED COMPLAINT WHICH WAS NOT FILED. Defendant-appellant argues, through his fourth assignment of error, that the complaint for criminal damaging contained in the trial court file is invalid since it is only a faxed copy of the document and not an original. It is defendant-appellant's position that the underlying document does not constitute a validly filed complaint. -10- Rule 4.13 of the Rules for Practice and Procedure for the Cleveland Municipal Court, effective October, 1996, states in pertinent part: Electronic Transmittal of Criminal Complaints, Subpoenas and Bonds The Clerk of Court may accept the filing of criminal complaints by electronic transmittal. The facsimile shall be treated as the original by this court for all purposes. * * * In this instance, a review of the record demonstrates that defendant-appellant was initially charged on May 19, 1997 with assault and criminal damaging. Accordingly, Rule 4.13, as stated above, was in effect at the time the complaint was filed and the trial court was permitted to accept faxed copies of criminal complaints and treat such filings as the originals. Therefore, the record does contain a valid copy of the complaint for criminal damaging filed in accordance with Rule 4.13 of the Rules for Practice and Procedure for the Cleveland Municipal Court as well as S.Ct.Prac.R. XIV, sect. 1,(B)(2) which also deals with the requirements for the acceptance of faxed filings. For the foregoing reasons, defendant-appellant's fourth assignment of error is not well taken. Defendant-appellant's fifth assignment of error states: V. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS CONVICTED OF THE OFFENSE OF CRIMINAL DAMAGING UPON A COMPLAINT WHICH DOES NOT CHARGE AN OFFENSE. In his fifth assignment of error, defendant-appellant maintains that the complaint for criminal damaging fails to state an essential element of the offense. Specifically, defendant- -11- appellant argues that the complaint fails to state the element of knowingly in its description of the offense of criminal damaging. It is defendant-appellant's position that the city's failure to allege the culpable mental state of criminal damaging renders the complaint invalid. The primary purpose of a criminal complaint is to cause the arrest and prosecution of the person named therein and advise him of the charge with which he stands accused. Crim.R. 3; Crim.R. 7(B); State, Tp. of Richfield v. Summers (June 6, 1990), Summit App. No. 14350, unreported. A defendant has a constitutional right to be informed of the nature and cause of the accusations against him. State v. Oliver (1972), 32 Ohio St.2d 109, 110, citing State v. Hess (1887), 124 U.S. 483, 487. However, an indictment need not be in the exact language of the statute so long as all the essential elements of the crime are contained in language equivalent to that used in the statute. State v. Childers (1983), 133 Ohio St. 508, paragraph two of the syllabus; State v. Burgun (1976), 49 Ohio App.2d 112, 117. In this case, the underlying complaint charging defendant- appellant with criminal damaging provides: *** on or about the 18th day of May, 1997, within the City of Cleveland, Ohio, Julius Basca did cause or create substantial risk of physical harm to any property of another without consent in violation of Codified Ordinances of the City of Cleveland, Section 623.02. Cleveland Codified Ordinances, 623.02, provides in pertinent part: -12- (a) No person shall cause, or create a substantial risk of physical harm to any property of another without his consent: (1) Knowingly, by any means; (2) Recklessly, by means of fire, explosion, flood, poison gas, radioactive material, caustic or corrosive material, or other inherently dangerous agency or substance. * * * In this case, a review of the complaint for criminal damaging demonstrates that the language contained therein sufficiently notified defendant-appellant of the charge pending against him as well as the elements of the offense. The omission of the word knowingly from the complaint does not render it constitutionally defective as defendant-appellant contends since the knowingly is not part of the description of the criminal act contained in section (a) of the ordinance. It may reasonably be inferred from the phraseology of the complaint that defendant-appellant was informed of the nature and cause of the charges against him and was in no way prejudiced by the complaint. Accordingly, defendant-appellant's fifth assignment of error is not well taken. Defendant-appellant's sixth assignment of error states: VI. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS CONVICTED OF THE OFFENSE OF CRIMINAL DAMAGING. Defendant-appellant argues, through his sixth assignment of error, that the trial court erred in finding him guilty of criminal damaging. Specifically, defendant-appellant maintains the vehicle in question did not belong to the alleged victim, Elizabeth Goncza, but was in fact owned by defendant-appellant and loaned to Ms. -13- Goncza for her personal use. It is defendant-appellant's position that the vehicle could not then be classified as the property of another as set forth in the ordinance. Therefore defendant- appellant contends that he could not properly be convicted of criminal damaging under the ordinance. It is well established that a right of possession is a sufficient property interest to protect one against criminal damaging. See Dayton v. Wells (May 29, 1992), Montgomery App. No. 12862, unreported, at 3, Wellston v. Crabtree (Nov. 4, 1986), Jackson App. No. 519, unreported, State v. Maust (1982), 4 Ohio App.3d 187, State v. Russell (1990), 67 Ohio App.3d 81, 84-85, (applying same principle to offense of criminal mischief). In the case herein, ample evidence was presented to enable the trier of fact to conclude that Ms. Goncza was in possession of the automobile at the time of the incident. The testimony of both Atta Barloug and Officer Oliver establishes that Ms. Goncza was in possession of the automobile prior to and on the day of the underlying incident. Therefore, defendant-appellant could properly be convicted of damaging the property of another within the meaning of the criminal damaging ordinance. State v. Takacs (Dec. 23, 1994), Lake App. No. 94-L-045, unreported. Defendant-appellant's sixth assignment of error is not well taken. Defendant-appellant's seventh and final assignment of error states: VII. DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS CONVICTED OF ASSAULT AND CRIMINAL -14- DAMAGING AS THE VERDICTS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant-appellant maintains, through his seventh and final assignment of error, that his convictions of the charged offenses are against the manifest weight of the evidence. Specifically, defendant-appellant maintains that the city's evidence was vague, uncertain and conflicting at best and did not support the underlying convictions. State v. Martin (1983), 20 Ohio App.3d 172, has set forth the proper test to be utilized when addressing the issue of manifest weight of the evidence. The Martin Court stated: There being sufficient evidence to support the conviction as a matter of law, we next 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 the reasonable inferences, considers the credibility of the witnesses and determines 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. *** See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. Article IV, Section 3(B)(3) of the Ohio Constitution authorizes appellate courts to assess the weight of the evidence independently of the fact-finder. Thus, when a claim is assigned concerning the manifest weight of the evidence, an appellate court has the authority and the duty to weigh the evidence and determine whether the findings of *** the trier of fact were so against the weight of the evidence as to require a reversal and a remanding of the case for retrial. State ex rel. Squire v. City of Cleveland (1984), 150 Ohio St. 303, 345. -15- The standard employed when reviewing a claim based upon the weight of the evidence is not the same standard used when considering a claim based upon the sufficiency of the evidence. The United States Supreme Court recognized these distinctions in Tibbs v. Florida (1982), 457 U.S. 31, where it determined that unlike a reversal based upon insufficiency of the evidence, an appellate court's disagreement with the jurors' weighing of the evidence does not require special deference accorded verdicts of acquittal, i.e., invocation of the double jeopardy clause as a bar to re-litigation. Id. at 43. Additionally, only a concurring majority of an appellate panel is needed to reverse a judgment based upon the sufficiency of the evidence as opposed to the unanimous concurrence of all three appellate judges necessary for a reversal based upon the manifest weight of the evidence. State v. Thompkins (1997), 78 Ohio St. 3d 380, 386. An appellate court does not and cannot sit as the thirteenth juror when reviewing a claim based upon the weight of the evidence. Rather, we must accord due deference to the credibility determinations made by the trier of fact. See State v. DeHass, supra. At this court has previously stated in State v. Thompson (April 23, 1998), Cuyahoga App. No. 72044, unreported: The fact-finder, being the jury (in the case) or the trial judge (in a waiver), occupies a superior position in determining credibility. The fact-finder can hear and see as well as observe the body language, evaluate voice inflections, observe hand gestures, perceive the interplay between the witnesses and the examiner, and watch the witness's reaction to exhibits and the like. Determining credibility from a sterile transcript is a hurculean endeavor. -16- In the case sub judice, a review of the record demonstrates that defendant-appellant's convictions of the offenses of assault and criminal damaging were not against the manifest weight of the evidence. Both direct and circumstantial evidence was presented establishing the elements of the charged offenses. The testimony of the victim as well as that of eyewitness Aranka Balay and Officer Oliver supports the conclusion of the finder of fact. Defendant-appellant maintains that certain aspects of the city's case are in conflict with the version of events as set forth by his own witnesses. Mere conflict is insufficient to warrant reversal based upon manifest weight of the evidence. State v. Hickman (April 30, 1998), Cuyahoga App. No. 72341, unreported. Since the weight to be given the evidence and the credibility of the witnesses are primarily matters for the finder of fact to determine and that it is not the function of the appellate court to substitute its judgment for that of the fact-finder, State v. Grant (1993), 67 Ohio St.3d 415; State v. D'Ambrosio (1993), 67 Ohio St.3d 185, this court cannot now say that the underlying verdict in this case is against the manifest weight of the evidence. The trier of fact did not lose its way and create a manifest miscarriage of justice in finding defendant-appellant guilty of the charged offenses of assault and criminal damaging. Defendant-appellant's seventh and final assignment of error is not well taken. Judgment of the trial court is affirmed. -17- -18- It is ordered that appellee recover of appellant 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 Cleveland Municipal 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. KENNETH A. ROCCO, P.J., AND JAMES D. SWEENEY, J., CONCUR. JUDGE MICHAEL J. CORRIGAN 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 .