[Cite as State v. Simmons, 2012-Ohio-592.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 96925



                                     STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                 BRANDON SIMMONS
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-544519

        BEFORE: Stewart, J., Blackmon, A.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED:                     February 16, 2012
ATTORNEY FOR APPELLANT

Gregory T. Stralka
Crown Centre Suite 600
5005 Rockside Road
Cleveland, OH 44131


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Jeffrey S. Schnatter
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113




MELODY J. STEWART, J.:

      {¶1} Defendant-appellant, Brandon Simmons, appeals from his conviction for

felonious assault after fighting with victim, Daryl Steward. He complains that the trial

court erred in denying his motion for acquittal because the evidence in support of his

conviction was insufficient and against the manifest weight of the evidence because the

state did not prove serious physical injury. Simmons requests that his conviction be

vacated and the matter dismissed or, in the alternative, that a new trial be held on the

charge of felonious assault. For the following reasons, we affirm.
       {¶2} Trial testimony established that Steward was attacked from behind while

walking with acquaintance, Michael Brock, to Brock’s home. Steward testified that he

was wrestled to the ground, punched repeatedly in the head, and then struck in the head

with a brick. Steward’s assailant also took his cellular phone before leaving. Steward

and Brock then proceeded to Brock’s home where Steward called his mother. He then

rode around the neighborhood in an attempt to find his attacker before going to the

hospital for treatment.

       {¶3} Officer Michelle Gricar of the Cleveland Police Department responded to

the hospital to interview Steward and obtain his statement for a report. Detectives

Gerald Sowul and Michael Shay prepared a photo array, and Steward and his mother went

to the police station where he identified Simmons as his assailant.

       {¶4} Simmons was indicted and charged with aggravated robbery, theft, and two

counts of felonious assault. After entering a plea of not guilty, he was tried by a jury,

found guilty of one count of felonious assault, and sentenced to community control.

       {¶5} In his first assignment of error, Simmons contends that the state failed to

prove the element of “serious physical injury,” and therefore, his conviction was based

upon insufficient evidence and the trial court erred in denying his motion for acquittal.

       {¶6} When reviewing the sufficiency of the evidence to support a criminal

conviction, an appellate court examines the evidence 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 prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. A verdict will not be

disturbed based upon insufficient evidence unless it is apparent that reasonable minds

could not reach the conclusion reached by the trier of fact. State v. Treesh, 90 Ohio St.3d

460, 484, 739 N.E.2d 749 (2001); Jenks at 273.

       {¶7} Crim.R. 29 states, in pertinent part: “(A) The court on motion of a

defendant or on its own motion, after the evidence on either side is closed, shall order the

entry of a judgment of acquittal of one or more offenses charged in the indictment,

information, or complaint, if the evidence is insufficient to sustain a conviction of such

offense or offenses.”

       {¶8} The crime of felonious assault, defined by R.C. 2903.11(A)(1), states that

“[n]o person shall knowingly * * * [c]ause serious physical harm to another * * *.”

Serious physical harm is defined in R.C. 2901.01(E)(4) and (5) as “[a]ny physical harm *

* * which involves some temporary, serious disfigurement [or] * * * that involves acute

pain of such duration as to result in substantial suffering or that involves any degree of

prolonged or intractable pain.”

       {¶9} In support of his argument, Simmons points out that (1) Steward did not

immediately seek medical attention or call an ambulance, but instead set out to find his

assailant, (2) the blood-stained shirt that Steward referred to in his testimony was not

offered into evidence, (3) Steward testified that the punches that he had absorbed were
“soft,” (4) Officer Gricar testified that Steward stated he did not want to go to the hospital

and that his mother transported him at her insistence, and (5) the record did not contain

any photographs of his injuries.

        {¶10}      Serious physical harm is sufficiently established by evidence

demonstrating that a victim required medical attention.     State v. Huckabee, 8th Dist. No.

67588, 1995 WL 628374 (Oct. 26, 1995). Moreover, “medical records [are] probative of

the serious physical harm element of [felonious] assault.” State v. Hidvegi, 8th Dist. No.

90014, 2008-Ohio-2662, 2008 WL 2257750, ¶ 19.

        {¶11} Steward testified that he was dizzy after being struck with a brick, that a

staple was needed to close the wound to his head, and that his head still hurt at the time of

trial. Brock testified that Steward’s t-shirt was bloody after the attack. Gricar and Shay

testified that they observed the staple used to close the wound in the back of Steward’s

head.   Medical records entered into evidence indicate that Steward had sustained a

laceration and multiple abrasions to his head and suffered from dizziness and a headache.

        {¶12}   We find that the evidence sufficiently demonstrates that a temporary,

serious disfigurement was inflicted upon Steward that resulted in prolonged pain, and that

serious physical harm was established beyond a reasonable doubt.            Simmons’s first

assignment of error is not well taken and is overruled.

        {¶13} For his second assignment of error, Simmons asserts that the conviction

was against the manifest weight of the evidence because the state failed to prove serious

physical injury.
       {¶14}   “The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different.” State v. Thompkins, 78

Ohio St.3d 380, 678 N.E.2d 541 (1997), paragraph two of the syllabus. Sufficiency is a

test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a

question of law. Id. at 386. Weight of the evidence concerns “the inclination of the

greater amount of credible evidence, offered in a trial, to support one side of the issue

rather than the other.” Id. at 387.

       {¶15}   The manifest weight of the evidence standard of review requires an

appellate court to review the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of witnesses and determine 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. State

v. Otten, 33 Ohio App.3d 339, 515 N.E.2d 1009 (9th Dist.1986), paragraph one of the

syllabus.   The discretionary power to grant a new trial should be exercised only in

exceptional cases where the evidence weighs heavily against the conviction. Thompkins at

387.

       {¶16} Simmons does not independently argue that the verdict was against the

manifest weight of the evidence, but instead relies upon his claim of insufficient evidence

in support of this assignment of error. This court has held that this type of incorporation

argument “does not satisfy an appellant’s App.R. 16(A)(7) obligation to give ‘reasons in

support of the contentions, with citations to the authorities, statutes, and parts of the
record on which appellant relies,’ nor does it satisfy an appellant’s App.R. 12(A)(2)

obligation to separately argue each assignment of error.” State v. Thomas, 8th Dist. No.

94443, 2011-Ohio-85, 2011 WL 208304, ¶ 2. Because Simmons has failed to argue the

manifest weight of the evidence assignment of error, we summarily overrule it.

      {¶17}    Judgment affirmed.

      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.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MELODY J. STEWART, JUDGE

PATRICIA ANN BLACKMON, A.J., and
EILEEN A. GALLAGHER, J., CONCUR
