COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73734 CITY OF CLEVELAND, : ACCELERATED : Plaintiff-Appellee : JOURNAL ENTRY : AND vs. : OPINION : VENIS TISDALE, : PER CURIAM : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 27, 1998 CHARACTER OF PROCEEDING: : Criminal appeal from : Cleveland Municipal Court : Case No. 97-CRB-11204A JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Rosalind V. Taylor Assistant City Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Peter A. Campbell 11510 Buckeye Road Cleveland, Ohio 44104 -2- PER CURIAM: Appellant, Venis Tisdale, appeals his conviction of assault in the Cleveland Municipal Court on grounds of manifest weight and ineffective assistance. On April 14, 1997, Inspector Rufus Taylor and Supervisor Frank Koscho, both of the city of Cleveland, Division of Building and Housing, went to investigate complaints of unlicenced motor vehicles in the parking lot of 17550 Lakeshore Boulevard. Upon inspection of these vehicles, a man approached Koscho and asked what it was he was doing. Koscho explained their purpose and suddenly appellant started cursing. Koscho then got into his vehicle and began to drive away, but as he was leaving, this man, later identified as appellant, reached through the driver's door window and punched Koscho in the side of the head, knocking his glasses off of his face. Koscho then called the police, who, upon their arrival, went into the apartment complex with Koscho and had Koscho identify appellant as the man who had assaulted him. At the time of questioning Koscho noticed that appellant had changed his clothes. Appellant denied leaving the apartment complex at any point that morning. After a bench trial, appellant was found guilty of assault, sentenced to 180 days in jail, 175 suspended, and ordered to pay court costs. Appellant was also placed on three years of active probation including the attendance at mental health counseling. Appellant timely filed his notice of appeal and assigns two errors for our review. -3- I. Appellant's first assignment of error states: THE COURT'S FINDING OF GUILTY AGAINST THE DEFENDANT FOR ASSAULT IN VIOLATION OF SECTION 621.03 OF THE CITY OF CLEVELAND MUNICIPAL CODE WAS AGAINST THE WEIGHT OF THE EVIDENCE. Appellant argues that, considering the totality of the evidence, no reasonable court could have found him guilty of assault. In State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541, 547, the Supreme Court reaffirmed that the proper standard under which a court should consider questions of manifest weight is set forth in State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717, where the court stated: 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 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, 102 S.Ct. 2211. Further, in reviewing under the above-mentioned standard, the court should take into account the following factors: (1) awareness that even a reviewing court is not required to accept as true the incredible; (2) whether the evidence is uncontradicted; (3) whether a witness was impeached; (4) what was not proved; (5) the certainty of the evidence; (6) the reliability of the evidence; (7) the extent to which a witness may have a personal interest to advance or defend by his testimony; (8) the extent to which the evidence is vague, uncertain, conflicting or fragmentary. State v. Clark (1995), 101 Ohio App.3d 389, 408, 655 N.E.2d 795. Moreover, this court may weigh evidence only to determine -4- whether it is of sufficient probative force to support a finding of guilt. State v. Hawkins (1993), 66 Ohio St.3d 339, 344, 612 N.E.2d 1227, quoting State v. Tyler (1990), 50 Ohio St.3d 24, 33, 583 N.E.2d 576. It is essential that a court on review be aware that the weight of the evidence and the credibility of the witnesses are issues that are primarily left to the trier of fact. State v. Grant (1993), 67 Ohio St.3d 465, 476, 620 N.E.2d 50; see, also, State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus. A reviewing court will not reverse a verdict where there is substantial evidence upon which the trier of fact could reasonably conclude that all elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, 383 N.E.2d 132; see, also, State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492; State v. Coulter (1992), 75 Ohio App.3d 219, 232, 598 N.E.2d 1324. After a careful review of the record, assessing the credibility of all of the testimony and considering all reasonable inferences therefrom, we cannot conclude that a manifest miscarriage of justice was created in convicting Tisdale of assault. There was substantial evidence from which to conclude that appellant purposely attempted to cause physical harm to another. The detailed testimony of the victim, which the trier of fact was free to believe in its entirety, was sufficient to convict. Accordingly, appellant's first assignment of error is overruled. -5- II. Appellant's second assignment of error states: THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND UNDER SECTION 10 ARTICLE I OF THE OHIO CONSTITUTION WHICH PREJUDICED THE DEFENSE. The federal and Ohio test for determining if a defendant was denied the effective assistance of counsel are strikingly similar. The federal test is whether counsel's conduct so undermined the proper functioning of the adversarial process that the defense was prejudiced. Strickland v. Washington (1984), 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 692-693. In State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus, it was determined that in Ohio an ineffective assistance claim requires proof that counsel's performance is proved to have fallen below an objective standard of reasonable representation and in addition prejudice arises from counsel's performance. Id. In order to establish such prejudice, the appellant must demonstrate that there is a reasonable probability that, were it not for counsel's errors, the results of the trial would have been different. State v. Bradley, supra, paragraph three of the syllabus. Furthermore, we operate under the presumption that counsel's assistance was both reasonable and professional. State v. Thompson (1987), 33 Ohio St.3d 1, 10, 514 N.E.2d 407, 416-417; see, also, Strickland, 446 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. Appellant asserts that appointed counsel's representation of him at trial was deficient because appellant was not allowed to -6- fully testify on his own behalf. As a direct result of this failure, appellant maintains not all the evidence was properly presented before the court. It is clear from the record that the representation given Tisdale was both comprehensive and competent. A choice by trial counsel to limit the content of his defendant's testimony is one of discretion and trial strategy. The appellant's failure to point out to this court how any extra testimony, beyond his denial of that which he was accused, prejudiced him to the point where the outcome would have been different, further demonstrates this point. As a result, since there is nothing new in the record that demonstrates appellant's further testimony would have shed light upon his innocence or guilt, appellant suffered no ill effects from appointed counsel's strategy. Accordingly, counsel's performance is deemed both reasonable and professional, and appellant's second 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. 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. JOSEPH J. NAHRA, PRESIDING JUDGE DIANE KARPINSKI, JUDGE KENNETH A. ROCCO, 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 .