[Cite as State v. Rogers, 2018-Ohio-3495.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 105879




                                             STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                         RODERICK ROGERS

                                                        DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED




                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-16-609490-A

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

        RELEASED AND JOURNALIZED: August 30, 2018
ATTORNEY FOR APPELLANT

Edward F. Borkowski
P.O. Box 609151
Cleveland, Ohio 44109


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Kelly Needham
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

         {¶1}     Defendant-appellant, Roderick Rogers, 1 brings this appeal challenging his

convictions for aggravated robbery, felonious assault, and having weapons while under disability.

 Specifically, Rogers argues that the trial court erred in permitting the introduction of video

evidence of the incident, he was denied his constitutional right to the effective assistance of

counsel, his felonious assault conviction was not supported by sufficient evidence, and his

convictions are against the manifest weight of the evidence. After a thorough review of the

record and law, this court affirms.

                                    I. Factual and Procedural History

         {¶2} Rogers was charged for his involvement in a robbery that occurred on May 29, 2015.

 In Cuyahoga C.P. No. CR-16-609490-A, the Cuyahoga County Grand Jury returned a

seven-count indictment on September 13, 2016, charging Rogers with (1) aggravated robbery, a

first-degree felony in violation of R.C. 2911.01(A)(1); (2) aggravated robbery, a first-degree

felony in violation of R.C. 2911.01(A)(3); (3) felonious assault, a second-degree felony in

violation of R.C. 2903.11(A)(1); (4) felonious assault, a second-degree felony in violation of

R.C. 2903.11(A)(2); (5) theft, a fifth-degree felony in violation of R.C. 2913.02(A)(1); (6)

kidnapping, a first-degree felony in violation of R.C. 2905.01(B)(2); and (7) having weapons

while under disability, a third-degree felony in violation of R.C. 2923.13(A)(2). Counts 1, 2, 3,

4, and 6 contained one- and three-year firearm specifications, notice of prior conviction

specifications, and repeat violent offender specifications. Count 5 contained one- and three-year

firearm specifications. Rogers was arraigned on September 16, 2016. He pled not guilty to the


         1
           The record before this court contains two spellings of appellant’s last name: Rogers and Rodgers. After
the verdicts were returned by the jury and the trial court, appellant stated that his last name was spelled “Rodgers.”
(Tr. 462.)
indictment.

       {¶3} A jury trial commenced on February 22, 2017. The notice of prior conviction and

repeat violent offender specifications were tried to the bench. The following testimony and

evidence was introduced at trial.

       {¶4} The victim, Tyler King, had cashed a paycheck on the morning of May 29, 2015,

and had approximately $1,700 on his person. King proceeded to shop at Tower City, after

which he boarded a bus that traveled eastbound. As he was searching for his bus pass, King

momentarily removed the cash that was in his pocket. King noticed two male passengers

looking at him when he had the money in his hands.

       {¶5} King exited the bus at the intersection of East 93rd Street and Union Avenue in

Cleveland, Ohio. The two males that observed the money in King’s possession exited the bus

immediately behind King.      As King crossed the street, the two males confronted him and

ordered him to turn over the money.

       {¶6} The encounter between King and the two males was recorded by Emanuel Williams

who was inside a vehicle nearby. Video footage showed one of the assailants wearing a white

shirt, purple hat, and shorts. This assailant punched and kicked King, lifted King off of his feet,

and slammed him to the ground.          The other assailant was wearing black clothing and

brandishing a handgun. This assailant struck King in the head and fired two shots at him. The

two assailants obtained King’s money and shopping bag and fled the area on foot.

       {¶7} The state presented evidence at trial identifying Rogers as the assailant wearing the

white shirt, purple hat, and shorts. King identified Rogers as one of his assailants in a pretrial
photo lineup administered by Cleveland police detectives.2 However, King was only 50 percent

certain of his identification at the time. King identified Rogers at trial as the assailant wearing

the white shirt, purple hat, and shorts. King also testified at trial that the assailant wearing the

white shirt had a distinct tattoo on his calf. After Rogers lifted his pant leg in the courtroom,

King identified Rogers’s calf tattoo as the tattoo that he observed on the calf of the assailant

wearing the white shirt.

        {¶8} Williams’s video recording of the robbery was introduced at trial. At one point

during the attack, the purple hat worn by the assailant in the white shirt fell to the ground,

making it easier to see the assailant’s face on the video recording. Freeze frame pictures of the

assailant wearing the white shirt were introduced at trial for comparison to Rogers’s face.

Furthermore, a freeze-frame picture in which the calf tattoo of the assailant wearing the white

shirt is readily visible was introduced by the state.

        {¶9} Mark Reimer, a supervisor at the Salvation Army’s Harbor Light housing facility,3

testified at trial that he is familiar with Rogers. Reimer identified Rogers in Williams’s video

recording and from photos obtained from Harbor Light’s security cameras.                          The security

cameras depicted a male leaving Harbor Light at 11:02 a.m. on the morning of the robbery.

Reimer explained that Harbor Light is approximately a ten minute walk from Tower City. The

male in the security camera photos, that Reimer identified at trial as Rogers, was wearing

clothing that was identical to the clothing worn by the assailant in the white shirt.

        {¶10} On February 24, 2017, at the close of trial, the jury returned its verdict finding


        2
            The lineup was created by Detective Michael Kitchen and administered by another detective. (Tr.
319-320.)

        3
            Harbor Light is located at East 18th Street and Prospect Avenue in Cleveland, Ohio.
Rogers guilty on all counts. Furthermore, the trial court found Rogers guilty on the underlying

notice of prior conviction and repeat violent offender specifications. The trial court ordered a

presentence investigation report and set the matter for sentencing.

       {¶11} The trial court held a sentencing hearing on April 6, 2017. The trial court merged

the aggravated robbery offenses charged in Counts 1 and 2, the theft offense charged in Count 5,

and the kidnapping offense charged in Count 6 as allied offenses for sentencing purposes. The

trial court also merged the felonious assault offenses charged in Counts 3 and 4. The state

elected to sentence Rogers on Counts 1 and 3. The trial court sentenced Rogers to an aggregate

prison term of 14 years: 11 years on the aggravated robbery count consecutive to the 3-year

firearm specification; 8 years on the felonious assault count consecutive to the 3-year firearm

specification; and three years on the having weapons while under disability count. The trial

court ordered the aggravated robbery, felonious assault, and having weapons while under

disability counts to run concurrently. Finally, the trial court ordered Rogers to pay restitution to

the victim in the amount of $1,550.

       {¶12} On June 9, 2017, Rogers filed the instant appeal, pro se, challenging his

convictions. This court granted Rogers’s motion for appointment of appellate counsel on June

20, 2017, and appointed appellate counsel to represent Rogers in this appeal.

       {¶13} Rogers assigns four errors for review:

       I. The trial court erred by permitting the introduction and admission into
       evidence of an unauthenticated video.

       II. Appellant’s counsel was ineffective.

       III. Appellant’s felonious assault conviction was unsupported by sufficient
       evidence.
       IV. Appellant’s convictions were against the manifest weight of the evidence.
                                     II. Law and Analysis

                                  A. Admission of Evidence

       {¶14} In his first assignment of error, Rogers argues that the trial court erred in permitting

the introduction of the video evidence of the incident, recorded by Williams on his cell phone.

Rogers argues that the state failed to authenticate the video and failed to establish a chain of

custody.

       {¶15} The admission or exclusion of evidence lies in the trial court’s sound discretion.

State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987). “A trial court will be found to have

abused its discretion when its decision is contrary to law, unreasonable, not supported by the

evidence, or grossly unsound.”          State v. Taylor, 8th Dist. Cuyahoga No. 98107,

2012-Ohio-5421, ¶ 22, citing State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, 932 N.E.2d

345, ¶ 16-18 (2d Dist.). Further, this abuse of discretion must have materially prejudiced the

defendant. State v. Lowe, 69 Ohio St.3d 527, 532, 634 N.E.2d 616 (1994), citing State v. Maurer,

15 Ohio St.3d 239, 265, 473 N.E.2d 768 (1984).

       Evid.R. 901(A) provides for the authentication or identification of evidence prior
       to its admissibility. The rule provides, in pertinent part: “The requirement of
       authentication or identification as a condition precedent to admissibility is
       satisfied by evidence sufficient to support a finding that the matter in question is
       what its proponent claims.” Evid.R. 901(A). By way of illustration, Evid.R.
       901(B) provides that evidence may be properly authenticated by “testimony of
       witness with knowledge” that “a matter is what it is claimed to be.” Further, the
       authentication requirement of Evid.R. 901(A) is a low threshold that does not
       require conclusive proof of authenticity, but only sufficient foundation evidence
       for the trier of fact to conclude that the evidence is what its proponent claims it to
       be. State v. Toudle, 8th Dist. Cuyahoga No. 98609, 2013-Ohio-1548, ¶ 21, citing
       Yasinow v. Yasinow, 8th Dist. Cuyahoga No. 86467, 2006-Ohio-1355, ¶ 81.

State v. Maust, 8th Dist. Cuyahoga No. 103182, 2016-Ohio-3171, ¶ 24.

       {¶16} In the instant matter, as noted above, the record reflects that Williams recorded the
May 29, 2015 robbery with his cell phone. King testified and affirmed that the video introduced

was an accurate representation of what happened that day. Williams also identified the video

introduced by the state as the video he had recorded. Accordingly, we find the state satisfied

Evid.R. 901(A).

       {¶17} Rogers further argues that the state failed to establish a proper chain of custody

pertaining to the video because Williams had the video uploaded online rather than providing it

directly to the police. We find no merit to this argument.

       When dealing with chain of custody matters, the state bears the burden of
       establishing the proper chain of custody. In re Lemons, 77 Ohio App.3d 691,
       693, 603 N.E.2d 315 (8th Dist.1991); see also State v. Ferrara, [2015-Ohio-3822,
       42 N.E.3d 224, ¶ 14 (7th Dist.)]. To meet its burden, the state must only show
       that it is reasonably certain that substitutions, alterations, or tampering did not
       occur. Id. The state does not have to negate all possibilities of substitution or
       tampering. Id. Further, breaks in the chain of custody go to the weight of the
       evidence, not its admissibility. State v. Howell, 7th Dist. Mahoning No.
       10-MA-148, 2012-Ohio-4349, ¶ 79, citing State v. Blevins, 36 Ohio App.3d 147,
       150, 521 N.E.2d 1105 (10th Dist.1987).

Maust at ¶ 27.

       {¶18} In this case, the testimony of King and Williams refuted any potential tampering

allegation pertaining to the video. To the extent that Rogers can fault the state for not taking

direct possession of the video from Williams’s phone, the matter did not affect admissibility but

rather goes to the weight of the evidence. See United States v. Broomfield, 591 Fed.Appx. 847,

851-852 (11th Cir.2014) (detailing the government’s ability to authenticate videos recovered

online).

       {¶19} Based on the foregoing analysis, Rogers’s first assignment of error is overruled.

                             B. Ineffective Assistance of Counsel

       {¶20} In his second assignment of error, Rogers argues that he was denied his
constitutional right to the effective assistance of counsel.

         {¶21} In order to establish a claim of ineffective assistance of counsel, a defendant must

prove (1) his counsel was deficient in some aspect of his representation, and (2) there is a

reasonable probability that, were it not for counsel’s errors, the result of the trial would have been

different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

         {¶22} In the instant matter, Rogers argues that his counsel was ineffective for (1) failing

to object to the testimony of Detective Michael Kitchen, (2) failing to impeach King’s testimony

that he identified Rogers to police in a pretrial photo lineup with less than 100 percent certainty,

(3) failing to present a detailed argument in support of counsel’s Crim.R. 29 motion for a

judgment of acquittal, (4) failing to emphasize specific evidentiary points during closing

arguments, and (5) failing to bifurcate the having weapons while under disability count. Rogers

asserts that the cumulative effect of trial counsel’s deficient performance deprived him of a fair

trial.

         {¶23} Regarding Rogers’s ineffective assistance claim based on counsel’s failure to

object to Detective Kitchen’s testimony, the decision of whether to object, like the decision of

whether to file a motion to suppress, is a “tactical decision.” State v. Frierson, 8th Dist.

Cuyahoga No. 105618, 2018-Ohio-391, ¶ 25, citing State v. Johnson, 7th Dist. Jefferson No. 16

JE 0002, 2016-Ohio-7937, ¶ 46. “Accordingly, ‘the failure to make objections is not alone

enough to sustain a claim of ineffective assistance of counsel.’” Frierson at id., quoting State v.

Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 103.

         Experienced trial counsel learn that objections to each potentially objectionable
         event could actually act to their party’s detriment. * * * In light of this, any single
         failure to object usually cannot be said to have been error unless the evidence
         sought is so prejudicial * * * that failure to object essentially defaults the case to
         the state. Otherwise, defense counsel must so consistently fail to use objections,
        despite numerous and clear reasons for doing so, that counsel’s failure cannot
        reasonably have been said to have been part of a trial strategy or tactical choice.
State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 140.

       {¶24} After reviewing the examples cited by Rogers, we find that he failed to

demonstrate a reasonable probability that but for counsel’s failure to object to Detective

Kitchen’s testimony, the outcome at trial would have been different. Accordingly, we find no

merit to this ineffective assistance claim.

       {¶25} Regarding Rogers’s ineffective assistance claim based on counsel’s failure to

impeach the testimony of King and King’s pretrial identification of Rogers, the record reflects

that the trial court addressed this purported error at trial, outside the presence of the jury. The

trial court noted that Rogers’s counsel had laid the groundwork to impeach King’s claim through

the later testimony of Detective Kitchen. Furthermore, the record reflects that counsel did, in

fact, impeach King’s pretrial identification through the cross-examination of Detective Kitchen.

Accordingly, Rogers suffered absolutely no prejudice in this instance.

       {¶26} Regarding Rogers’s ineffective assistance claims based on counsel’s failure to

present a detailed argument in support of counsel’s Crim.R. 29 motion for a judgment of

acquittal and failure to emphasize specific evidentiary points during closing arguments, we find

no prejudice to Rogers in this instance. The sole argument his attorney may have bolstered in

support of the Crim.R. 29 motion or during closing arguments is that the state failed to present

sufficient evidence of serious physical harm to support the felonious assault charge. As set forth

in further detail in the analysis of Rogers’s third assignment of error, pertaining to the sufficiency

of the evidence, we find that Rogers cannot demonstrate prejudice resulting from counsel’s

alleged errors because the record contains sufficient evidence of serious physical harm.

Accordingly, this ineffective assistance claim fails.
       {¶27} Regarding the ineffective assistance claim based on counsel’s failure to bifurcate

the having weapons while under disability count, Rogers argues that counsel’s deficient

performance in this regard exposed the jury to his prior conviction for burglary.4 In support of

his argument, Rogers directs this court to State v. Jenkins, 8th Dist. Cuyahoga No. 91100,

2009-Ohio-235.

       {¶28} In Jenkins, this court held that a defense counsel’s failure to request bifurcation of

the having a weapon while under disability charge contributed to a finding of ineffective

assistance of counsel. The panel in Jenkins found that this failure alone would not “constitute

ineffective assistance of trial counsel,” but that it “add[s] to the cumulative nature of counsel’s

errors,” because it could not “conceivably be considered a trial tactic” under the facts and

circumstances of the case. Id. at ¶ 17.

       {¶29} In State v. Thompson, 8th Dist. Cuyahoga No. 96929, 2012-Ohio-921, this court

reiterated the concern regarding defense counsel’s failure to seek bifurcation of a charge of

having weapons while under disability, but refused to reverse Thompson’s conviction stating,

“[t]he failure to bifurcate the disability charge did not taint the entirety of the proceedings to the

extent that a reasonable probability exists that the outcome of trial would have been different had

the charge been separated.” Id. at ¶ 40.

       {¶30} After reviewing the record, we find the present case to be more akin to the situation

presented in Thompson rather than that in Jenkins. Here, the entire incident was captured on

video by Williams. Rogers was directly identified as the assailant wearing the white shirt from

still frames of his face taken from Williams’s video, the testimony of King, and the distinct tattoo

on his leg. The state introduced additional circumstantial evidence of identification through the


       4
           Cuyahoga C.P. No. CR-09-529630-A.
testimony of Reimer, who identified Rogers in photos taken from Harbor Light’s surveillance

system. Reimer’s testimony established that Rogers left Harbor Light roughly 30 minutes prior

to the robbery wearing clothing identical to the man that can be seen attacking King in the video

created by Williams.

       {¶31} Based on this evidence that the state introduced at trial, we cannot say that Rogers

has established that a reasonable probability exists that the outcome of trial would have been

different had his counsel moved to bifurcate the having weapons while under disability charge.

Accordingly, this ineffective assistance claim fails.

       {¶32} Finally, Rogers argues that the cumulative effect of his trial counsel’s errors

deprived him of a fair trial. Based on the foregoing analysis, however, we cannot say that the

cumulative effect of counsel’s purported errors denied Rogers his constitutional right to the

effective assistance of counsel or deprived Rogers of a fair trial.

       {¶33} For all of the foregoing reasons, Rogers’s second assignment of error is overruled.

                                          C. Sufficiency

       {¶34} In his third assignment of error, Rogers argues that the state failed to present

sufficient evidence to support his conviction for felonious assault in violation of R.C.

2903.11(A)(1).

       {¶35} A challenge to the sufficiency of the evidence supporting a conviction requires a

determination of whether the state met its burden of production. State v. Hunter, 8th Dist.

Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41, citing State v. Thompkins, 78 Ohio St.3d 380, 390,

678 N.E.2d 541 (1997). When reviewing sufficiency of the evidence, an appellate court must

determine “‘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. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶

77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the

syllabus. In a sufficiency inquiry, an appellate court does not assess whether the state’s evidence

is to be believed, but whether, if believed, the evidence admitted at trial supported the conviction.

 Thompkins at 387.

       {¶36} Rogers argues that the state failed to establish that he caused serious physical harm

to King in this instance. R.C. 2901.01(A)(4) defines serious physical harm, in relevant part, as:

       (a) Any mental illness or condition of such gravity as would normally require
       hospitalization or prolonged psychiatric treatment;

       ***

       (d) Any physical harm that involves some permanent disfigurement or that
       involves some temporary, serious disfigurement;

       (e) Any physical harm that involves acute pain of such duration as to result in
       substantial suffering or that involves any degree of prolonged or intractable pain.

       {¶37} This court has held that “‘[t]he degree of harm that rises to the level of ‘serious’

physical harm is not an exact science, particularly when the definition includes such terms as

‘substantial,’ ‘temporary,’ ‘acute,’ and ‘prolonged.’” State v. Miller, 8th Dist. Cuyahoga No.

98574, 2013-Ohio-1651, ¶ 18, quoting State v. Irwin, 7th Dist. Mahoning No. 06 MA 20,

2007-Ohio-4996, ¶ 37. The extent or degree of a victim’s injuries is “normally a matter of the

weight rather than the sufficiency of the evidence.” Irwin at ¶ 37, citing State v. Salemi, 8th

Dist. Cuyahoga No. 81091, 2002-Ohio-7064, ¶ 34.

       {¶38} This court has historically applied a liberal interpretation of “serious physical harm

to persons.” State v. Davis, 8th Dist. Cuyahoga No. 81170, 2002-Ohio-7068, ¶ 20. This court

has held that, in general, “a trial court does not err in finding serious physical harm where the
evidence demonstrates the victim sustained injuries necessitating medical treatment.” Id.; see

also Miller at ¶ 18 (“when a victim’s injuries are serious enough to cause the victim to seek

medical treatment, it may be reasonably inferred that the force exerted on the victim caused

serious physical harm.”).

       {¶39} In the instant matter, the record contains evidence that King suffered a concussion

and head trauma as a result of being slammed to the ground by Rogers and pistol whipped in the

back of the head during the robbery. “A concussion is a mental condition that would normally

require hospitalization.” State v. Long, 2014-Ohio-4416, 19 N.E.3d 981, ¶ 57 (11th Dist.).

Many appellate districts have found that a concussions satisfies the serious physical harm

threshold. In re E.B., 3d Dist. Auglaize No. 2-17-21, 2018-Ohio-1683, ¶ 22, citing Long at id.,

State v. Burks, 3d Dist. Seneca No. 13-05-36, 2006-Ohio-2142, ¶ 7, 22, and Davis at ¶ 22-23.

       {¶40} In Davis, this court found sufficient evidence of serious physical harm where the

victim sought medical treatment for a concussion, cuts, and scrapes. Id. at ¶ 22. In Burks, the

Third District found sufficient evidence of serious physical harm where the victim sought

medical treatment for a concussion, head trauma, and bruising. Id. at ¶ 7, 19.

       {¶41} In this case, the record reflects that King suffered a concussion during the attack.

The dissent suggests that King’s concussion was “self-diagnosed.” Although the state did not

introduce medical records or expert testimony confirming that King suffered a concussion,

King’s trial testimony indicates that hospital personnel, rather than King himself, determined that

King sustained a concussion:

       [PROSECUTOR]: And what happened when you went to the hospital?

       [KING]: Nothing. They checked me out. Nothing but a small graze on my
       ankle and had minor concussion.
(Tr. 184.)

       {¶42} King explained that the concussion resulted in “massive headaches[.]” (Tr. 185.)

King provided the following description of the pain he suffered as a result of the blow to his

head: “[s]hortly afterwards I started getting like horrible headaches. * * * the guys, I couldn’t

hear them at first. It was hard to hear.” (Tr. 199.) He asserted that his headaches lasted for a

“[l]ong time” and that he continued to experience the headaches for days after the incident.

(Tr. 199.) King explained that at the time of trial — 21 months after the robbery took place —

he still had a mark on the top of his head where he was struck. He asserted that his head and/or

ears were ringing as a result of being struck with the pistol. King stated that his ears continued

to ring when he was at the hospital and that the ringing intensified.

       {¶43} In addition to the concussion, headaches, and head trauma, King also testified that

a bullet from one of the two gunshots fired at him “grazed” his ankle. Although King stated that

the bullet did not break through his skin, he asserted that his ankle hurt “for like the first couple

of weeks” after the incident. (Tr. 184.)

       {¶44} Finally, King testified that two doctors diagnosed him with post-traumatic stress

disorder (“PTSD”). Although the state did not introduce medical records or expert testimony

confirming King’s diagnosis, King explained that he suffered night tremors and flashbacks from

the incident: “It affected my sleep. And I would wake up in the middle of the night screaming

and fighting and it got to the point where I had to go to the doctor and have a psychological

evaluation, and I was diagnosed with [PTSD].” (Tr. 202.) King was prescribed medication to

address these issues he was experiencing as a result of the incident.

       {¶45} Although the state did not present medical records detailing the treatment that King

received for his injuries or testimony from the medical professionals that treated King, King’s
testimony establishes that he did, in fact, receive medical treatment for his injuries.      King

testified that he was transported by ambulance to Marymount Hospital where he was treated and

released.

       {¶46} For all of the foregoing reasons, we find that the record contains sufficient

evidence of serious physical harm.      Based on King’s testimony regarding the injuries he

sustained during the robbery, particularly the concussion and head trauma, the jury could have

reasonably inferred that King suffered serious physical harm. Accordingly, Rogers’s felonious

assault conviction is supported by sufficient evidence. Rogers’s third assignment of error is

overruled.

                                      D. Manifest Weight

       {¶47} In his fourth assignment of error, Rogers argues that his convictions are against the

manifest weight of the evidence.

       {¶48} In contrast to a sufficiency argument, a manifest weight challenge questions

whether the state met its burden of persuasion.   State v. Bowden, 8th Dist. Cuyahoga No. 92266,

2009-Ohio-3598, ¶ 12. A reviewing court “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.” Thompkins, 78 Ohio St.3d at 388, 678

N.E.2d 541. A conviction should be reversed as against the manifest weight of the evidence

only in the most “exceptional case in which the evidence weighs heavily against the conviction.”

 Id.

       {¶49} Although we review credibility when considering the manifest weight of the

evidence, we are cognizant that determinations regarding the credibility of witnesses and the
weight of the testimony are primarily for the trier of fact.   State v. Bradley, 8th Dist. Cuyahoga

No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212

(1967). The trier of fact is best able “to view the witnesses and observe their demeanor,

gestures, and voice inflections, and use these observations in weighing the credibility of the

proffered testimony.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,

¶ 24. The jury may take note of any inconsistencies and resolve them accordingly, “believ[ing]

all, part, or none of a witness’s testimony.” State v. Raver, 10th Dist. Franklin No. 02AP-604,

2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).

       {¶50} In the instant matter, Rogers’s sole argument in support of his manifest weight

challenge is that the state’s evidence identifying him as the assailant in the white shirt was not

credible. We disagree.

       {¶51} After reviewing the record, we find that the state presented substantial and credible

evidence from which the jury could have identified Rogers as one of King’s assailants and

determined that Rogers was involved in the robbery. Based on the facts in the record before this

court, we cannot say this is the exceptional case that requires reversal under the manifest weight

standard.

       {¶52} Accordingly, Rogers’s fourth assignment of error is overruled.

                                         III. Conclusion

       {¶53} After thoroughly reviewing the record, we overrule Rogers’s assignments of error

and affirm his convictions. The trial court did not err or abuse its discretion in permitting the

introduction of the video evidence recorded on Williams’s cell phone. Rogers was not denied

his constitutional right to the effective assistance of counsel.       Rogers’s felonious assault

conviction was supported by sufficient evidence because the evidence in the record demonstrates
that King suffered serious physical harm. Rogers’s convictions are not against the manifest

weight of the evidence.

       {¶54} Judgment affirmed.

       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 common pleas

court to carry this judgment into execution. The defendant’s convictions 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.



FRANK D. CELEBREZZE, JR., JUDGE

MELODY J. STEWART, J., CONCURS;
EILEEN A. GALLAGHER, A.J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE OPINION


EILEEN A. GALLAGHER, A.J., CONCURRING IN PART AND DISSENTING IN PART:

       {¶55} For the following reasons, I respectfully dissent, in part, from the majority opinion.

 Because I find that the state failed to present sufficient evidence of serious physical harm to

support Rodgers’ conviction for felonious assault on Count 3, I would modify that conviction to

simple assault.

       {¶56} The term “serious physical harm” as it pertains to the present case is defined in

R.C. 2901.01(A)(5) as:
       (a) Any mental illness or condition of such gravity as would normally require
       hospitalization or prolonged psychiatric treatment;

       ***

       (d) Any physical harm that involves some permanent disfigurement or that
       involves some temporary, serious disfigurement;

       (e) Any physical harm that involves acute pain of such duration as to result in
       substantial suffering or that involves any degree of prolonged or intractable pain.

       {¶57} This court has held that “[t]he degree of harm that rises to level of ‘serious’

physical harm is not an exact science” given that the definition uses terms such as “substantial,”

“temporary,”   “acute”     and   “prolonged.”    Miller, 8th Dist. Cuyahoga No. 98574,

2013-Ohio-1651, at ¶ 18, quoting Irwin, 7th Dist. Mahoning No. 06 MA 20, 2007-Ohio-4996, at

¶ 37. The extent or degree of a victim’s injuries is “normally a matter of the weight rather than

the sufficiency of the evidence.”   Irwin at ¶ 37, citing Salemi, 8th Dist. Cuyahoga No. 81091,

2002-Ohio-7064, at ¶ 34.

       {¶58} This court has historically applied a liberal interpretation of “serious physical harm

to persons.” Davis, 8th Dist. Cuyahoga No. 81170, 2002-Ohio-7068, at ¶ 20. We have held

that, in general, a trial court does not err in finding serious physical harm where the evidence

demonstrates that the victim sustained injuries necessitating medical treatment. Id.; see also

Miller at ¶ 18 (“when a victim’s injuries are serious enough to cause the victim to seek medical

treatment, it may be reasonably inferred that the force exerted on the victim caused serious

physical harm.”).

       {¶59} Serious physical harm has been found where a victim sustains a bloody cut and/or

significant swelling to the face, even where there is no evidence that stitches were required.

See, e.g., State v. Payne, 8th Dist. Cuyahoga No. 76539, 2000 Ohio App. LEXIS 3274 (July 20,
2000) (bloody, cut and swollen right eye was sufficient to establish serious physical harm

because the injury was a temporary, serious disfigurement).

           {¶60} In this instance, I find no evidence of serious physical harm in the record. The

most significant injury King described in his testimony was his self-diagnosed “mild concussion”

that resulted in headaches.        No medical records were introduced to substantiate King’s

self-diagnosis.     King testified that of the two gunshots fired at him by Rodgers’ compatriot, only

one shot managed to graze his ankle and did not require medical attention. Although King

testified that he suffered from PTSD as a result of the incident, his testimony did not establish

that the condition was such that it required hospitalization or prolonged psychiatric treatment.

           {¶61} Therefore, I would modify Rodgers’ conviction for felonious assault to simple

assault.
