[Cite as State v. Simmons, 2012-Ohio-3454.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97557



                                     STATE OF OHIO
                                                PLAINTIFF-APPELLEE

                                                 vs.


                                 CHARLES SIMMONS
                                                DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-552318

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

        RELEASED AND JOURNALIZED:                      August 2, 2012
ATTORNEY FOR APPELLANT

Kevin M. Cafferkey
2000 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Andrew Rogalski
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

       {¶1} Defendant-appellant, Charles Simmons (“Simmons”), appeals his felonious

assault convictions. Finding no merit to the appeal, we affirm.

       {¶2} In July 2011, Simmons was charged with two counts of felonious assault

resulting from an incident with the named victim, John Robinson (“Robinson”). The

matter proceeded to a jury trial, at which the following evidence was adduced.

       {¶3} The events giving rise to the altercation between Simmons and Robinson

occurred on July 4, 2011, at the home of Carol Robinson (“Carol”), in Cleveland Heights,

Ohio. Carol is Robinson’s aunt, the mother of Simmons’s girlfriend, Tasha Robinson

(“Tasha”), and the grandmother of Simmons’s son, Charles Simmons, Jr. Carol had a

party at her home to celebrate the Fourth of July and the birthday of Charles Simmons Jr.

Guests began to arrive at the party at approximately 4:00 p.m. While outside, Robinson

observed his cousin, Tasha, who is the mother of Charles Simmons, Jr., speeding into the

driveway, almost hitting the guests. Tasha jumped out of her car and began screaming.

Around the same time, Robinson also observed Simmons’s cousin, Tameka, drive past the

house with Simmons in the front passenger seat of Tameka’s car.           Moments later,

Tameka drove back past Carol’s house and parked her car in the street, without Simmons

in the car.
       {¶4} Robinson then observed Simmons walking down the street toward Carol’s

house “yellin’, * * * fired up, ready to do somethin’” and “act[ing] like he want[ed] to

take [his shirt] off.” Simmons was “callin’ everybody out,” including Robinson, his

uncle, Lynn Dearing (“Dearing”), and his uncle’s friend.              Robinson and others

approached Simmons on Carol’s tree lawn to tell Simmons to leave. Robinson testified

that Simmons started “swingin” at him, so Robinson swung back at Simmons in his own

defense. Robinson testified that Tasha then ran over to the group and threw a bicycle at

Robinson. Simmons then pulled out a can of mace and sprayed Robinson in the face,

causing his eyes to water and burn, but Robinson testified that he could still see.

Robinson further testified that the next thing he knew, he saw “[Simmons] reach around

and stab [Robinson with a knife] on [his] right side.” Robinson described the knife as

having approximately a four-inch blade. At that point, Tameka grabbed Simmons and

took him to her car. Tameka then drove away with Simmons.

       {¶5} After Robinson was stabbed, he collapsed to the ground. Robinson was

bleeding from his side so he took his shirt off and pressed it against the stab wound to

stop the bleeding. Police and EMS responded to the scene. Robinson was transported

to Huron Hospital. Robinson was in the hospital for four days with a punctured lung.

Robinson testified that as of the trial date, he was still in pain from the stab wound. He

described it as “like gettin’ pinched by a sharp object on this side of my chest.”

       {¶6} Carol testified that she was inside her house when a friend told her to

“come get your daughter, get your daughter.” Carol went outside and observed Simmons
on the sidewalk calling for Robinson, Dearing, and Dearing’s friend. She noticed that

Simmons was holding his hand in his pocket, “like he had somethin’ in it.” Robinson

asked Simmons to stop and Simmons attempted to punch Robinson. At that point, Tasha

came with a bicycle and threw it at Robinson, who pushed the bicycle on the tree lawn.

After that, Simmons began spraying mace. Carol then went inside to get her phone so

she could call the police. When she came back outside, Simmons and Tameka had left

the scene and she observed Robinson on the ground bleeding.

       {¶7} Dearing testified that he was at his sister Carol’s house for the birthday and

Fourth of July celebration when he observed Simmons standing outside, “raisin’ Cain, * *

* incitin’ people, carryin’ on, actin’ a damn fool.” Robinson approached Simmons and

told him that he had to leave. Dearing testified that Simmons had his hand in his pocket

was holding something. Simmons attempted to punch Robinson and Robinson fought

back. Tasha then approached the group and threw a bicycle at Robinson. After that,

Simmons pulled out a can of mace and started spraying it. Then, Dearing observed

Simmons stab Robinson in the side with a knife.            Dearing testified that he has a

prosthetic eye, but also testified that he was able to see clearly on the date of the incident

because he was wearing his glasses.

       {¶8} Cleveland Heights Police Investigator Dominic Bodamer (“Bodamer”)

testified for the defense. He testified that he took Robinson’s statement on July 4, 2011,

when Robinson was at the hospital. Bodamer wrote down what Robinson said because
Robinson was not able to give a written statement. Bodamer determined that Robinson

was competent before taking his statement. Robinson stated that:

       [Simmons] came toward me and started swinging. At this time, we started
       to fight. I had to defend myself while throwing punches. I threw a bike at
       him and he caught it. The fight then went into the street * * * [and that is]
       when [Simmons] maced me in the face. * * * We continued to fight and
       that’s when I felt something dripping from my side. When I took my shirt
       off, I saw I had been stabbed and it was bleeding.

       {¶9} Once Robinson completed his verbal statement, Bodamer had Robinson

review and sign the statement he (Bodamer) had written.            On cross-examination,

Bodamer acknowledged that he is not medically qualified to determine whether someone

in Robinson’s condition would have definite memory of the incident.

                    Sufficiency and Manifest Weight of the Evidence

       {¶10} In the first assignment of error, Simmons argues that the State failed to

present sufficient evidence to sustain his convictions. In the second assignment of error,

he argues that his convictions are against the manifest weight of the evidence.

       {¶11} The Ohio Supreme Court in State v. Diar, 120 Ohio St.3d 460,

2008-Ohio-6266, 900 N.E.2d 565, ¶ 113, explained the standard for sufficiency of the

evidence as follows:

       Raising the question of whether the evidence is legally sufficient to support
       the jury verdict as a matter of law invokes a due process concern. State v.
       Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. In reviewing
       such a challenge, “[t]he 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 (1991), 61 Ohio St.3d 259, 574 N.E.2d
       492, paragraph two of the syllabus, following Jackson v. Virginia (1979),
       443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.
       {¶12} With regard to a manifest weight challenge, the Ohio Supreme Court in

State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, has stated:

       [T]he reviewing court asks whose evidence is more persuasive — the
       state’s or the defendant’s? * * * “When a court of appeals reverses a
       judgment of a trial court on the basis that the verdict is against the weight of
       the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees
       with the factfinder’s resolution of the conflicting testimony.” [Thompkins
       at 387], citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72
       L.Ed.2d 652.

       {¶13} Moreover, an appellate court may not merely substitute its view for that of

the jury, but must find that “‘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 at 387, quoting State v. Martin, 20 Ohio

App.3d 172, 485 N.E.2d 717 (1st Dist.1983). Accordingly, reversal on manifest weight

grounds is reserved for “‘the exceptional case in which the evidence weighs heavily

against the conviction.’” Id., quoting Martin.

       {¶14}    Simmons      was    convicted    of   felonious   assault   in   violation   of

R.C. 2903.11(A)(1) and (A)(2), which provides in pertinent part that “[n]o person shall

knowingly * * * [c]ause serious physical harm to another * * * or * * * [c]ause or attempt

to cause physical harm to another * * * by means of a deadly weapon or dangerous

ordnance.”

       {¶15} Simmons argues there was no direct evidence that he “knowingly caused

physical harm” because all of the evidence “was circumstantial and/or based upon

inferences.”    He attacks Robinson’s credibility, noting the discrepancy between
Robinson’s trial testimony and his statement to Bodamer. At trial, Robinson testified

that he observed a knife in Simmons’s hand and that Tasha threw the bike; whereas,

Robinson’s statement to Bodamer does not specifically mention a knife and states that he

threw the bike. As a result, he claims that without any sufficient evidence that Simmons

had a knife, it cannot be shown that he caused Robinson’s injuries or that he knew his

actions would cause serious physical harm to Robinson.

       {¶16} We note that there is no distinction in the particular weight or way of

evaluating the evidence, whether it is direct or circumstantial. Jenks at paragraph one of

the syllabus. “Circumstantial evidence and direct evidence inherently possess the same

probative value.     In some instances certain facts can only be established by

circumstantial evidence.” Id. at 272. Moreover, to the extent Simmons argues that the

evidence is insufficient because these witnesses lacked credibility, we note that credibility

challenges are not relevant to a sufficiency of the evidence claim. State v. Yarbrough, 95

Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79.

       {¶17} A review of the record in the instant case reveals sufficient evidence that

Simmons knowingly caused serious physical harm to Robinson when he stabbed

Robinson with a knife. Robinson and Dearing both testified that Simmons approached

Carol’s house yelling and ready to fight. Simmons acted like he was going to take his

shirt off in preparation of the fight. Simmons attempted to hit Robinson and the fight

ensued. Simmons then pulled out a can of mace and sprayed Robinson in the face.

After that, Robinson testified that Simmons reached around and stabbed him with a knife
on his right side and then fled the scene with Tameka. Robinson described the knife as

having approximately a four-inch blade.         Dearing also testified that he observed

Simmons stab Robinson in the side with a knife and flee from the scene with Tameka.

Robinson was then bleeding from his side, so he took his shirt off and pressed it against

the stab wound to stop the bleeding. Robinson was in the hospital for four days with a

punctured lung. Additionally, the jury viewed a picture of Robinson’s torso with the

puncture wound. Viewing this testimony in a light most favorable to the State, we find

sufficient evidence that Simmons knowingly caused Robinson serious physical harm

when he stabbed Robinson with a knife.

      {¶18} Simmons’s challenge to the credibility of the State’s witnesses is relevant to

his manifest weight of the evidence claim. We recognize that

      [t]he determination of weight and credibility of the evidence is for the trier
      of fact. The rationale is that the trier of fact is in the best position to take
      into account inconsistencies, along with the witnesses’ manner and
      demeanor, and determine whether the witnesses’ testimony is credible. As
      such, the trier of fact is free to believe or disbelieve all or any of the
      testimony. Consequently, although an appellate court must act as a
      “thirteenth juror” when considering whether the manifest weight of the
      evidence requires reversal, it must give great deference to the fact finder’s
      determination of the witnesses’ credibility. (Citations omitted.)

State v. Montgomery, 8th Dist. No. 95700, 2011-Ohio-3259, ¶ 10, quoting State

v. Blackman, 8th Dist. No. 95168, 2011-Ohio-2262, ¶ 21.

      {¶19} At trial, Robinson testified that he observed Simmons stab him with a knife.

On cross-examination, defense counsel attempted to emphasize inconsistency by noting

that Robinson’s statement to Bodamer did not specifically state that Simmons stabbed
him with a knife. Robinson explained that he did not know what Simmons stabbed him

with until he observed him back away with a knife in his hand. Furthermore, Robinson

and Dearing testified at trial that Tasha threw the bicycle at Robinson, but Robinson’s

statement to Bodamer indicates that he threw the bicycle at Simmons. Robinson testified

that he never told Bodamer that he threw the bicycle at Simmons. He explained that

Bodamer might have forgotten to put Tasha’s name in the statement. Robinson further

testified that at the time he gave his statement to Bodamer, he was on medication and

could not remember everything.

       {¶20} In the instant case, the jury believed the testimony of the State’s witnesses

and returned a verdict against Simmons despite these inconsistencies. The trial court

instructed the jury to “consider the credibility or believability of each person testifying * *

* the interest or bias each witness had in the outcome of the verdict and * * * any and all

other facts and circumstances surrounding the testimony which, in your judgment, would

add or detract from the credibility and weight of the witness’ testimony.” We presume

the jury followed these instructions.       State v. Stallings, 89 Ohio St.3d 280, 286,

2000-Ohio-164, 731 N.E.2d 159, citing State v. Loza, 71 Ohio St.3d 61, 641 N.E.2d 108

(1994), and State v. Ferguson, 5 Ohio St.3d 160, 450 N.E.2d 265 (1983).

       {¶21} Simmons further argues the jury “lost its way” by not finding him guilty of

the inferior offense of aggravated assault because Robinson provoked him when he threw

the bicycle at him. Simmons claims that Robinson’s throwing of the bicycle incited him

to use deadly force against Robinson.
       {¶22} In the instant case, the trial court instructed the jury on aggravated assault

under R.C. 2903.12(A)(1), which provides:

       No person, while under the influence of sudden passion or in a sudden fit of
       rage, either of which is brought on by serious provocation occasioned by the
       victim that is reasonably sufficient to incite the person into using deadly
       force, shall knowingly * * * [c]ause serious physical harm to another * * *.

This court has found that an “[a]ggravated assault occurs only when a person, under

extreme emotional stress brought on by serious provocation, is incited to use deadly force

and knowingly causes physical harm to another.” State v. Mabry, 5 Ohio App.3d 13, 449

N.E.2d 16, paragraph four of syllabus (8th Dist.1982).          Furthermore, for serious

provocation to exist, the provocation

       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.

Id. at paragraph five of the syllabus.

       {¶23} We find that the testimony in the instant case does not support an inference

of serious provocation. The evidence presented clearly indicates that Robinson initiated

the entire incident when he walked toward Carol’s house “yellin’, * * * fired up, ready to

do somethin’,” acting like he wanted to take his shirt off and “callin’ everybody out.”

The jury, therefore, did not lose its way in finding Simmons guilty of felonious assault as

opposed to aggravated assault. Thus, we cannot say the jury clearly lost its way and
created such a manifest miscarriage of justice that Simmons’s convictions must be

reversed and a new trial ordered. Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717.

      {¶24} Accordingly, the first and second assignments of error are overruled.

      {¶25} Judgment is affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      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.

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

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

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