[Cite as State v. Williams, 2013-Ohio-573.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98210


                                       STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                 ANTHONY WILLIAMS
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-552836

        BEFORE: Keough, J., Jones, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                      February 21, 2013
ATTORNEY FOR APPELLANT

Michael H. Murphy
20325 Center Ridge Road, Suite 512
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Alison Foy
      Gregory Mussman
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1}   Defendant-appellant,    Anthony     Williams   (“Williams”),   appeals   his

convictions for felonious assault, aggravated burglary, and kidnapping. For the reasons

that follow, we affirm.

       {¶2} In August 2011, Williams was indicted with two counts of rape and

kidnapping, and one count each of felonious assault and aggravated burglary.           The

kidnapping, felonious assault, and aggravated burglary charges contained sexual

motivation specifications.   The matter proceeded to a bench trial, where the court heard

the following relevant evidence.

       {¶3} In the early morning of June 28, 2011, police and paramedics responded to a

call to assist a female who reported she had been assaulted.   Stacie Nofer, a Cleveland

paramedic, testified that the victim, Jennita Morgan, had bleeding cuts from her face and

from behind her ear that required stitches.   According to Nofer, Morgan was emotionally

upset and during the course of treatment, told her that she was assaulted and raped by a

man named “Skank.”

       {¶4} Officer Thomas Smith testified that when he arrived on the scene, he

observed Morgan receiving medical treatment for two large gashes near her left eye.

According to Officer Smith, Morgan was very upset, crying, and shaking. Morgan told

Officer Smith that her friend “Skank” did this to her. She stated to Officer Smith that

she was sitting on her bed with Skank when he violently started punching her and then
had raped her.   Officer Smith went inside the house to the upstairs bedroom, where he

found Morgan’s friend, Andre Bradley, sitting on her bed.         Although Morgan told

Officer Smith that the assault and rape occurred in the bedroom, he noticed that the living

room was in disarray; there was broken glass and blood on the floor, and the furniture

was kicked.

       {¶5} Andre Bradley (“Bradley”) testified that he has known Williams from the

neighborhood for about six years.      He stated that Williams’s nickname is “Skank.”

Bradley testified that he and Morgan are friends who occasionally hang out together,

drink, and talk. Bradley testified he was at Morgan’s house in the early morning hours

of June 28, 2011 because she had called him earlier and asked him to come over.      When

he arrived, Morgan answered the door.       According to Bradley, she was not upset or

injured, and was acting normally.    Upon entering the home, he encountered a male he

did not know who was seated at a table.    After he and Morgan had a brief conversation,

Morgan went upstairs. Bradley testified that he did not hear any kind of “scuffle”

upstairs, but he could hear Morgan having a private conversation with another man.

Morgan then came back downstairs and Williams followed asking her about his missing

money.   Bradley then overheard Morgan and Williams arguing in the dining room.

When he heard the argument turn physical, he walked into the dining room and saw

Morgan and Williams pushing, shoving, and hitting each other. According to Bradley,

Williams was grabbing and holding Morgan to keep her from attacking him because
Morgan was “a lot out of control.”    He stated that they were slapping and punching each

other, “both wild[ly] swinging,” and described it as a “cat fight.”

       {¶6} At some point, Morgan was able to break free from Williams and she began

throwing things at him including a glass vase. According to Bradley, Williams “then

started in.”   Bradley agreed that Morgan “provoked” Williams and testified that

Williams punched Morgan in the face, causing the area around her eye to split open, only

after Morgan started throwing things at hin.      After Williams left, Bradley noticed the

injury to Morgan’s face and insisted on calling the paramedics.       Bradley testified that he

told Morgan that she had to “stop doing what she was doing” because “look at you” —

meaning that she was “kind of busted up.”

       {¶7} Morgan testified that she had a criminal history and had been using crack

cocaine since 2009. She testified that in the early morning of June 28, 2011, Williams

came over to her house to exchange sex for crack cocaine, which they routinely did twice

a week.   She recalled that Williams gave her the crack and they engaged in consensual

sex. About ten minutes later, Williams wanted to have sex again, but Morgan said “no.”

According to Morgan, Williams became abusive and although she said “no,” Williams

“jumped on me anyway.”      Williams then fell asleep.

       {¶8} After getting up from the bed, she noticed that her friend “Dre” (Bradley) and

another gentleman were standing at her back window screaming her name.           She let them

inside her home and received $20 from Bradley, which she took upstairs and exchanged
for a rock of crack cocaine.   She returned with the rock for Bradley, and they smoked it.



         {¶9} According to Morgan, Williams then came downstairs and was upset about

money that was missing from his wallet. Williams attempted to get Morgan to come

back upstairs to talk about the missing money, but she refused. Nevertheless, she went

upstairs with Williams where he threatened her.   Morgan then came back downstairs and

Williams followed her, wearing a pair of leather gloves and stating, “I’m about to whop

this bitch ass.” Morgan testified that Williams began holding and attacking her and in

order to defend herself, she began throwing things like a vase and a white crystal ball at

him. She said that Williams continued to punch her all the way to the door and then her

son, who was in the basement with her nephew, came upstairs and chased Williams with a

knife.

         {¶10} After the incident, Morgan called 911 at the insistence of Bradley.    She

testified that she was taken to Fairview Hospital where she received stitches to her eye

and behind her ear.     She testified about and showed the court the scar that remained

around her eye due to the assault.

         {¶11} During her testimony, Morgan admitted she was “very[,] very high” and

“couldn’t remember a lot of stuff”    about that night. She admitted that she lied to the

police and hospital nurses when she said that Williams strangled her. She testified that

she made this statement because she was mad at Williams and to bolster the rape claim.

She further admitted at trial that she did not disclose to police that the first sexual
encounter was consensual, that the first encounter was done in exchange for crack, or that

she was high on crack.       However, Morgan maintained that Williams beat her in the

bedroom before the second sexual encounter, and because she said “no,” it was rape.

       {¶12} The State also called two sexual assault nurse examiners from Fairview

Hospital to testify regarding their examination and treatment of Morgan.          The final

witness was a Cleveland police sex crimes officer who testified about her interactions

with Morgan after the incident, including taking Morgan’s statement.

       {¶13} At the close of the State’s case, the trial court granted Williams’s Crim.R.

29 motion for judgment of acquittal on one count of rape. Following the close of all

evidence, the trial court found Williams not guilty of the remaining rape count, one count

of kidnapping, and all the sexual motivation specifications. However, Williams was

found guilty of felonious assault, aggravated burglary, and the remaining kidnapping

charge.   The trial court filed its written verdict, which included findings of fact and

conclusions of law, into the record. Williams was sentenced to five years in prison.

       {¶14} He now appeals his convictions, raising four assignments of error.

                    I.   Sufficiency and Manifest Weight of the Evidence

       {¶15} In his first, second, and third assignments of error, Williams contends that

the trial court erred in denying his Crim.R. 29(A) motion for acquittal, there was

insufficient evidence to support his convictions, and his convictions were against the

manifest weight of the evidence. We consider these assignments of error together because

they are related.
       {¶16} Crim.R. 29(A) provides for a judgment of acquittal “if the evidence is

insufficient to sustain a conviction of such offense or offenses.” The test for sufficiency

requires a determination of whether the prosecution met its burden of production at trial.

State v. Bowden, 8th Dist. No. 92266, 2009-Ohio-3598, ¶ 12. 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.

       {¶17} A manifest weight challenge, on the other hand, questions whether the

prosecution met its burden of persuasion. State v. Thomas, 70 Ohio St.2d 79, 80, 434

N.E.2d 1356 (1982). A reviewing court may reverse the judgment of conviction if it

appears that 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.

Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. A finding that a

conviction was supported by the manifest weight of the evidence necessarily includes a

finding of sufficiency. Id. at 388.

                       A. Felonious Assault vs. Aggravated Assault

       {¶18} Williams was convicted of felonious assault in violation of R.C.

2903.11(A), which provides that “no person shall knowingly cause serious physical harm

to another.”   As applicable here, “serious physical harm” is defined as “any physical

harm that involves some permanent disfigurement or that involves some temporary,
serious disfigurement.”    R.C. 2901.01(A)(5)(d). “Physical harm” means any injury,

regardless of duration. R.C. 2901.01(A)(3).

       {¶19} In this case, the evidence showed that Williams punched Morgan in the head

and face, causing the area around her eye to split open and also causing injury behind her

ear.   When the paramedics arrived, they found these injuries bleeding.       Morgan was

transported to Fairview Hospital where she was treated and received stitches around her

eye and behind her ear to close the wounds.      This court has repeatedly held that the

element of serious physical harm is satisfied when the evidence shows that the victim

sustained injuries requiring medical treatment, including stitches. See, e.g., State v.

Churchwell, 8th Dist. No. 88171, 2007-Ohio-1600, ¶ 28.

       {¶20} Accordingly, Williams’s conviction for felonious assault was supported by

sufficient evidence and was not against the manifest weight of the evidence.     However,

Williams does not challenge his conviction for felonious assault, per se; rather, he

contends the evidence supports a conviction for the “lesser included” or “inferior” offense

of aggravated assault.

       {¶21} The offenses of aggravated assault and felonious assault are comprised of

the same elements, except aggravated assault contains the mitigating circumstance of

“serious provocation.”     Accordingly, aggravated assault is an inferior offense of

felonious assault.   See State v. Searles, 8th Dist. No. 96549, 2011-Ohio-6275, ¶ 18.

“To mitigate felonious assault to aggravated assault, the defendant must affirmatively

prove by a preponderance of the evidence either sudden passion or sudden fit of rage
brought on by the victim’s serious provocation reasonably sufficient to incite the

defendant into using deadly force.” United States v. Rodriguez, 664 F.3d 1032, 1039

(6th Cir.2011), citing R.C. 2901.05; State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294

(1988).

       Provocation, to be serious, must be reasonably sufficient to bring on
       extreme stress and the provocation must be reasonably sufficient to incite or
       to arouse the defendant into using deadly force. In determining whether the
       provocation was reasonably sufficient to incite the defendant into using
       deadly force, the court must consider the emotional and mental state of the
       defendant and the conditions and circumstances that surrounded him at the
       time.

State v. Mabry, 5 Ohio App.3d 13, 449 N.E.2d 16 (8th Dist.1982), paragraph five of the

syllabus.

       {¶22}   Although the trial court considered the offense of aggravated assault as a

lesser included offense, it is clear from the court’s verdict that the mitigating factor of

serious provocation was not proven. The trial court stated:

       The Court believes, however, that all the elements of Felonious Assault
       have been met and that the element of “serious provocation occasioned by
       the victim that is reasonably sufficient to incite the person into using deadly
       force” is not present in this matter with regard to a small amount of missing
       money.

       {¶23} We agree with the trial court’s conclusion that the circumstance of “serious

provocation” was not satisfied by Williams under the facts of the case.            Williams

asserted at trial and on appeal that the missing money and the fact that Morgan was

throwing items at him qualified as “serious provocation” that was “reasonably sufficient”

to put him in a sudden fit of rage.    While the evidence showed that Williams believed
Morgan stole $20 from his wallet and Morgan threw a vase and a white crystal ball at

him, these actions do not constitute “serious provocation” that are “reasonably sufficient

to incite [Williams] into using deadly force.” See, e.g., State v. Watson, 8th Dist. No.

87281, 2006-Ohio-5738 (dispute over $25 is not an amount that would reasonably incite

the use of deadly force).

       {¶24} Moreover, we find it questionable whether Williams’s punching of Morgan

constituted deadly force.       Compare      State v. Triplett, 192 Ohio App.3d 600,

2011-Ohio-816, 949 N.E.2d 1058 (8th Dist.) (one punch, even when death occurs, is not

comparable to deadly force; knowingly causing serious harm does not automatically

equate to deadly force) with Watson (multiple punches to victim’s head constitute deadly

force where initial punch knocks victim down and severs jaw from skull).

       {¶25} Accordingly, the trial court properly rejected the inferior offense of

aggravated assault, and the evidence supports Williams’s conviction for felonious assault.

                                 B.   Aggravated Burglary

       {¶26} Williams was also convicted of aggravated burglary in violation of R.C.

2911.11, which provides in pertinent part, that “no person by force, stealth, or deception,

shall trespass in an occupied structure * * * , when another person * * * is present, with

purpose to commit in the structure * * * any criminal offense, if * * * : (1) the offender

inflicts, or attempts or threatens to inflict physical harm on another.”

       {¶27} The trial court found that although Williams was initially permitted to be

inside Morgan’s residence, the permission was revoked when he began physically
assaulting Morgan.    The Ohio Supreme Court has held that “a privilege once granted

may be revoked.” State v. Steffen, 31 Ohio St.3d 111, 115, 509 N.E.2d 383 (1987). In

State v. Lofton, 8th Dist. No. 91330, 2009-Ohio-3732, this court found that although the

defendant entered the victim’s home with permission, his privilege to be in the victim’s

home after he began assaulting her was revoked.        This revocation of permission and

privilege established the trespass element of burglary. Id. at ¶ 45.

       {¶28} In this case, any permission given to Williams was revoked even prior to the

physical altercation when Williams stated to Morgan and Bradley that he was going to

“whop this bitch ass.” This threat to inflict harm was sufficient to revoke Williams’s

privilege to be present.   The evidence that Williams then remained in Morgan’s home

and then assaulted her to the point of causing serious physical harm to her face and head,

was sufficient to support Williams’s conviction for aggravated burglary. Moreover, his

conviction was not against the manifest weight of the evidence.

                                     C. Kidnapping

       {¶29} Williams was also convicted of kidnapping in violation of R.C.

2905.01(A)(2).   The indictment read that Williams “did, by force, threat, or deception, *

* * purposely remove [Morgan] from the place where the other person is found or restrain

the liberty of her for the purpose of facilitating the commission of any felony to wit:

Rape, R.C. 2907.02 and/or Felonious Assault R.C. 2903.11 or flight thereafter.”

Because Williams was found not guilty of rape, the attendant felony would be felonious

assault.
       {¶30} We previously determined that Williams’s conviction for felonious assault

was supported by the evidence because Williams caused serious physical harm to Morgan

when he punched her in the head and face, causing injury to her eye and ear.       The issue

presented by Williams on appeal is whether he was restraining Morgan when he caused

these injuries, thus satisfying the elements of kidnapping.         Williams contends that

Bradley’s testimony established that Morgan had “broken free” from him when he struck

her in the eye, causing it to split open. Moreover, Williams argues that any testimony

given by Morgan was incredible.

       {¶31} Although we consider the credibility of witnesses in a manifest weight

challenge, we are mindful that the determination regarding witness credibility rests

primarily with the trier of fact because the trier of fact is in the best position to view the

witnesses and observe their demeanor, gestures, and voice inflections — observations that

are critical to determining a witness’s credibility. State v. Clark, 8th Dist. No. 94050,

2010-Ohio-4354, ¶ 17, citing State v. Hill, 75 Ohio St.3d 195, 205, 1996-Ohio-222, 661

N.E.2d 1068, and State v. Antill, 176 Ohio St. 61, 66, 197 N.E.2d 548 (1964). The trier

of fact is free to accept or reject any or all the testimony of any witness. State v. Smith,

8th Dist. No. 93593, 2010-Ohio-4006, ¶ 16.

       {¶32} In this case, the trial court entered into the record extensive findings of fact

and conclusions of law. The trial court found that the testimony revealed that Williams

grabbed Morgan and held her during the physical assault.       Specifically, the court stated,

“The Court further finds, based upon the testimony of Ms. Morgan and Mr. Bradley, that
force was clearly used by the Defendant and that the restraint and force were for the

purposes of committing a felony, which in this matter would be Felonious Assault.”

       {¶33} After a thorough review of the testimony presented at trial, we find that

sufficient evidence was presented supporting Williams’s conviction for kidnapping and

that the conviction is not against the manifest weight of the evidence.

       {¶34} Morgan’s credibility was questionable given that she testified she was

“very[,] very high” and “couldn’t remember a lot of stuff about that night.”

Furthermore, she admitted that she lied to the police about important details relevant to

the investigation. Nevertheless, the trial court also heard testimony by Morgan that

Williams held her and punched her four or five times in the face.            He continued

punching her until he left.    This testimony was corroborated by the physical evidence, as

well as Bradley’s testimony.

       {¶35} Bradley testified he heard Morgan and Williams having a conversation

upstairs and when Williams came downstairs, he was accusing Morgan of taking his

money. Bradley was in the kitchen when Morgan and Williams were arguing in the

dining room.    When he heard physical contact between them, he walked into the dining

room and saw them pushing, shoving, and hitting each other. Bradley testified that

Williams grabbed at Morgan and held on to her to keep her from attacking him because

she was “a lot out of control.”    Bradley testified that they were “both wild[ly] swinging”

and described it as a “cat fight.”   When Morgan broke free from Williams’s grasp, she
started throwing things at him, including a vase. Williams then punched Morgan in the

face, causing the area around her eye area to split open.

       {¶36}    Morgan suffered serious physical harm to both her eye area and behind her

ear. Although there was testimony that Williams was not holding onto Morgan when he

punched her in the eye, testimony exists that he was holding onto her when he first began

hitting her. This initial combat could reasonably explain the subsequent injury behind

her ear that also required stitches. Accordingly, we do not find that the court lost its way

in convicting Williams of kidnapping.

       {¶37} Williams’s first, second, and third assignments of error are overruled.

                           II.   Ineffective Assistance of Counsel

       {¶38} In his fourth assignment of error, Williams contends he was denied effective

assistance of trial counsel.

       {¶39} To establish ineffective assistance of counsel, a defendant must demonstrate

that counsel’s performance fell below an objective standard of reasonable representation

and that he was prejudiced by that performance. State v. Drummond, 111 Ohio St.3d 14,

2006-Ohio-5084, 854 N.E.2d 1038, ¶ 205, citing Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice is established when the defendant

demonstrates “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 at 694. In

evaluating a claim of ineffective assistance of counsel, a court must be mindful that there
are countless ways for an attorney to provide effective assistance in a given case, and it

must give great deference to counsel’s performance.        Id. at 689.   Trial tactics and

strategies do not constitute a denial of effective assistance of counsel. State v. Gooden,

8th Dist. No. 88174, 2007-Ohio-2371, ¶ 38, citing State v. Clayton, 62 Ohio St.2d 45, 402

N.E.2d 1189 (1980).

       {¶40} In this case, Williams contends that his trial counsel was ineffective for

failing “to bring up evidence that could have been presented at trial that would have at

least mitigated the sentence, if not resulted in lesser charges.”    He contends that his

counsel did not call any witnesses or introduce any exhibits.

       {¶41}   But Williams fails to identify what witnesses could have been called, what

their testimony would have provided to the case, what exhibits were needed, and how

their content would have related to the case.   Furthermore, he fails to demonstrate how

he was prejudiced as a result of his trial counsel’s failure to produce these witnesses or

exhibits.

       {¶42} We find that Williams was not denied effective assistance of counsel.    His

trial counsel successfully defended two counts of rape and a count of kidnapping by

extensively and effectively cross-examining all witnesses, including the victim and the

eyewitness. We fail to see and Williams has not demonstrated how his trial counsel

could have done more considering the facts and evidence in the case.     Accordingly, both

prongs of Strickland have not been satisfied.

       {¶43} The final assignment of error is therefore overruled.
      {¶44} 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 Common

Pleas 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.




KATHLEEN ANN KEOUGH, JUDGE

LARRY A. JONES, SR., P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
