[Cite as State v. Henry, 2016-Ohio-692.]


                     Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 102634




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                     STEVE D. HENRY
                                                    DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-582467-A

        BEFORE: E.A. Gallagher, J., Celebrezze, P.J. and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: February 25, 2016
ATTORNEYS FOR APPELLANT

Michael J. Connick
Gary A. Vick, Jr.
Connick & Associates, Co., L.P.A.
25550 Chagrin Blvd. Suite 101
Beachwood, Ohio 44122



ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Fallon Radigan
       Daniel T. Van
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




EILEEN A. GALLAGHER, J.:
       {¶1} Defendant-appellant Steve Henry, who was indicted for felonious assault in

violation of R.C. 2903.11(A)(1), appeals his conviction for the inferior offense of

aggravated assault in violation of R.C. 2903.12(A)(1). Henry’s conviction was based on

an altercation in which he punched the alleged victim once. Henry asserts that a single

punch cannot, as a matter of law, support a conviction for aggravated assault because it

does not constitute “deadly force.” He further contends that the trial court’s findings that

Henry acted with serious provocation and that the victim sustained serious physical harm

were not supported by sufficient evidence and were against the manifest weight of the

evidence. We do not find Henry’s arguments persuasive. For the reasons that follow,

we affirm Henry’s conviction.

       Factual and Procedural Background

       {¶2} On February 6, 2014 at approximately 12:30 p.m., Vincent Gatto went to

the Henry residence in Broadview Heights, Ohio to collect money he was allegedly owed

by Henry’s son, Bret Henry (“Bret”).    An argument ensued and, as Gatto was leaving the

home, Henry struck him in the face, allegedly injuring his upper lip and teeth. On

February 24, 2014, a Cuyahoga County Grand Jury indicted Henry on one count of

felonious assault in violation of R.C. 2903.11(A)(1). Henry pled not guilty, and the case

proceeded to a bench trial.   The state presented testimony from three witnesses: Gatto,

Bret and Broadview Heights patrol officer, Troy Schonberger.

       {¶3} Gatto testified that, on January 31, 2014, he had agreed to purchase a $50 gift

card from Bret, one of his classmates at Broadview Heights/Brecksville High School, for
$35. At the time, Gatto was 18; Bret was 17. A paypal receipt allegedly evidencing

the transaction was introduced into evidence.1 According to Gatto, approximately one

week later, after he attempted to use the gift card to purchase gasoline for his vehicle, he

discovered that only $.84 was left on the $50 gift card. Gatto texted Bret regarding the

issue. On February 6, 2014, Bret texted Gatto and invited him to come to his home to

collect his money.2 Gatto arrived at the Henry residence at approximately 12:25 p.m. He

parked his car on the street in front of the house, left the engine running and walked to the

front door.   Gatto texted Bret that he had arrived and waited for him at the front door.

Gatto denied ringing the door bell or knocking or pounding on the door. However, a

minute later, Bret’s father, Henry, came to the door.        Gatto testified that Henry asked

him why he was there and that he responded, “[Y]our son stole $50 from me.              I’m here


         The paypal receipt reflects a payment of $36.32 to Bret on January 31, 2014 at 8:54 a.m.
       1


There was no testimony explaining why the payment was more than the $35 to which the parties
allegedly agreed.
       2
         A screen shot from Gatto’s phone taken at 1:10 p.m. the day of the incident was admitted
into evidence showing the following exchange of text messages beginning at 12:16 p.m.:

       you comin or not
               Yes I am. Do you have my money
       yea i got it.
               I’m here
       come to the front
               Here
               Come to the door

Although Gatto claimed to have had other text message communications with Bret, he testified that
these were the only text messages they exchanged that day and that he “deleted [Bret’s] number and
any text messages after or before this incident.”
to receive it.    He told me to come over here.”    Gatto said that Henry replied, “My son

isn’t giving you anything.”

       {¶4} After exchanging “a little more words,” Gatto stated that he was “upset” and

“mad” but that he decided to leave and walked down the driveway towards his vehicle.

Henry followed him.       The pair continued to “exchange angry words” as Henry followed

Gatto down the driveway; however, there was no physical contact between them.

       {¶5} According to Gatto, as he stood in the street about to get into his car, Henry

said something to him and Gatto turned around. Gatto testified that Henry then asked

him if he had any drugs on him. After Gatto replied that he had no drugs, Henry

threatened to make a “citizen’s arrest,” and Gatto told Henry to “show me your badge.”

Henry then asked Gatto what he was going to do to Bret. Gatto said, “[N]othing. I

don’t want to see him” and “I’m done with him.”

       {¶6} Gatto testified that after the two men exchanged these “final words,” Henry

struck him in the mouth with his fist. Henry punched Gatto once, Gatto fell to the

ground and Henry left and went back into the house. Gatto testified that, as a result of

the punch, his upper lip was “split in two,” his two front teeth were “bent in” and blood

was dripping on his cell phone.

       {¶7}      After Henry went back into the house, Gatto stood up, got into his car and

called his mother who told him to come home. Gatto drove home and his parents drove

him to the emergency room at Marymount Hospital.
       {¶8} At the hospital, Gatto was disruptive and yelled and cursed at the hospital

staff. Although he testified on direct examination that when he arrived at the hospital,

he was in “excruciating pain,” he admitted on cross-examination that he had refused any

pain medication.     The medical records reflect that Gatto told the hospital staff shortly

after his arrival that his pain level was six out of ten. With respect to the medical

treatment he received for his injuries, Gatto testified that he was at the hospital for

“around five and a half hours,” that he received “[a]round 30 stitches in and outside [his]

lip” and that he wore gauze on his mouth, protecting his lip, for about four hours. Once

the gauze was removed, no other bandages were required.

       {¶9}     Gatto’s medical records from Marymount Hospital were admitted into

evidence.     Although Gatto claimed to have received 30 stitches, the medical records do

not confirm this.    The medical records indicate only that a “Dr. Ulvi graciously came in

and repaired the patient’s laceration.”   There is no reference in the medical records to the

number of stitches, if any, Gatto received.

       {¶10} With respect to the follow-up care he received, Gatto testified that his

injuries did not require surgery but that a plastic surgeon removed his stitches.

According to Gatto, he saw the “medical surgeon” “about five times” and his family

dentist twice for the injuries he sustained in the altercation with Henry. No medical

records documenting any of this alleged follow-up treatment were introduced into

evidence. Gatto was not hospitalized, never lost consciousness and did not claim to

have any scars or disfigurement as a result of the altercation.     There was no evidence
that Gatto suffered from any continuing pain, that he missed any school or work or that he

was otherwise incapacitated as a result of the injury to his upper lip.

       {¶11} Troy Schonberger, a Broadview Heights patrol officer, testified that he

responded to a call at the Henry residence regarding “a male threatening the caller’s son.”

 When he arrived at the residence, he was met by Henry and Bret.          Henry informed the

officer that Gatto had come to the house and was “beating on the door trying to get a hold

of his son Bret because of money that was owed.”       Henry told Officer Schonberger that

he believed Bret may have owed Gatto money for drugs, that he wanted “no part of that”

and that he escorted Gatto off his property. Officer Schonberger testified that, according

to Henry, when he and Gatto reached the end of the driveway and were standing in the

street near Gatto’s car, Gatto punched him in the face and that he “returned the punch.”

Officer Schonberger took photographs of Henry, including one photo that showed a small

spot of blood on the right side of his face below his lip, a photo of Henry’s face showing

“no visible injuries” and a photo of Henry’s left hand showing a “small injury” to his

knuckle “consistent * * * with a punch.”           These photographs were admitted into

evidence.

       {¶12} Officer Schonberger also spoke with Bret.         Officer Schonberger testified

that Bret told him that the incident was the result of “a drug deal gone bad,” i.e., that

Gatto had given Bret inferior marijuana so he decided not to pay for it.             Officer

Schonberger testified that he had no evidence that there had been a drug deal and that if

there had been evidence of a drug deal, he “he would have made arrests.”
       {¶13} While Officer Schonberger was at Henry’s residence, dispatch received a

call from a staff member at Marymount Hospital indicating that Gatto was there. Within

45 minutes to an hour, Officer Schonberger went to the hospital to take a report. He told

Henry he would return after he finished at the hospital.    When he arrived at the hospital,

Officer Schonberger spoke with Gatto.          Officer Schonberger testified that Gatto

informed him that he had gone over to Henry’s residence to try and get money for a $50

gift card he had purchased from Bret.   According to Gatto, Henry came to the door, and

the pair exchanged “angry words.”    Gatto then began walking down the driveway toward

his car intending to leave and Henry followed him.     When the two men reached Gatto’s

car, Henry struck him.

       {¶14} Officer Schonberger testified that Gatto had a large split in his upper lip

“that was going to require a plastic surgeon” and that Gatto was “irate” and “very, very

upset,” “lashing out at everybody around him,” “verbally abusive to the hospital staff”

and “standoffish” to the officer, cursing at him several times.        He took pictures of

Gatto’s injuries, which were admitted into evidence.       Officer Schonberger stayed at the

hospital with Gatto for an hour and a half, then, “because of the injuries Mr. Gatto had

received,” he returned to Henry’s residence.

       {¶15} When Officer Schonberger returned to the Henry residence, he looked in the

area where the altercation occurred but did not see any blood, blood marks or blood

splatter.   He then spoke briefly with Henry a second time.       Henry denied that he had

been injured when Gatto punched him and refused to speak further with Officer
Schonberger.    Officer Schonberger knocked on the doors of several neighbors to

determine if anyone had witnessed the incident but no one was home.

       {¶16} Bret also testified. He admitted that he had invited Gatto over to his house

on February 6, 2014 because he “was going to give [Gatto] his money that he wanted.”

Bret testified that he had sold Gatto a gift card in exchange for marijuana.    Bret stated

that Gatto had come over on February 5, 2014, when just he and his mother were home

and that Gatto had banged on the front door, rang the doorbell repeatedly and had been

screaming, swearing and threatening Bret that he was going to “get him” at school.     Bret

testified that he did not answer the door that day because his mother was crying and he

was afraid Gatto was going to cause him harm. He told his mother not to call the police

because he “didn’t want to get in trouble for the transaction and everything.”         Bret

testified that he told Gatto to come over the following day to get his money because he

wanted it “to be over with” and for Gatto to “leave [him] alone.”

       {¶17} When Gatto arrived at the Henry’s residence on February 6, 2014, Bret was

in his room. Gatto banged on the door and rang the doorbell, screaming for Bret to

come outside. Bret testified that when he looked out the window, he saw his dad answer

the door and that the two men were talking. He then saw Gatto walk down the driveway

followed by Henry. He testified that his view of the driveway was “partially limited” by

trees in the front yard but that two or three times he saw Gatto turn around and take steps

back towards Henry as they walked down the driveway.       After that, he “really didn’t see

anything” because Gatto and Henry “disappeared behind the trees.”
         {¶18} At the close of the state’s case, Henry moved for acquittal pursuant to

Crim.R. 29(A), arguing that there was no evidence that Henry had knowingly caused

Gatto serious physical harm.     The trial court denied the motion.   Henry then testified.

         {¶19} Henry, a pediatric home health care nurse, testified that he was in his garage

after snow blowing the driveway when he heard the doorbell ringing and someone

pounding on the front door.     He stated that he heard someone yelling in an “erratic” and

“threatening” manner, “Bret.     Come out here.    Bret. * * * I’m going to kick you’re a**.

 Come out here.      I want my money.”     Henry indicated that he was aware that Gatto had

come to the house the day before and threatened his son but that he had done nothing

about it.

         {¶20} Henry stated that he answered the door and said, “Yes?” and that Gatto

replied, “Where’s Bret.     I want my f****** money.”      He testified that he told Gatto to

leave and that he was not giving him “any drug money” and stepped out onto the front

porch.      Gatto raised his voice, “very adamant about this $50.”       After Henry again

directed Gatto to leave, he started walking away, and Henry told him, “I’m calling your

mother, the school, and the police.”     According to Henry, Gatto’s behavior changed “for

the worst.”     Gatto turned around and was “erratic, scary looking [and] aggressive.”

         {¶21} Henry testified that he again told Gatto to leave and began to follow him

down the driveway. As the two men walked down the driveway, Henry told Gatto

repeatedly that he was not to come back.          Gatto responded, “I want my money. I

always get my money. I’m going [to] kick Bret’s a** tomorrow.”           Henry stated that he
did not go back into the house because he was not “turning his back on Mr. Gatto.”

Henry testified that he was “fearful” of Gatto and that as they were walking down the

driveway, Gatto turned around and faced him “multiple times.”      At some point, Gatto

“postured,” i.e., making himself look bigger than he is, which heightened Henry’s

concern given that Gatto was taller than Henry and weighed more than he did.

       {¶22} Twenty feet before the end of the driveway, Gatto turned around again.

According to Henry, Gatto was “being very aggressive, posturing, threatening” and

“disrespectful” and was “out of control.”     Henry testified that when they reached the

street, Gatto threw a right punch at Henry. The punch connected “[s]lightly” and Henry

responded, punching Gatto once. Gatto fell down, then got up and started yelling and

screaming.     Henry walked away, went into the house and called the police.      Henry

testified that punching Gatto was simply “a reaction” and that he did not intend to cut

Gatto’s lip.   He acknowledged, however, that he knew there was “a chance” Gatto could

get hurt.

       {¶23}    Gatto denied that he had ever sold marijuana to Bret, that he had been at

Henry’s residence the day before or that he, “at any point in time,” threw a punch at

Henry “or anything like that.”

       {¶24} After Henry completed his testimony, the defense rested and Henry renewed

his Crim.R. 29(A) motion. Once again, the trial court denied the motion.

       {¶25} In his closing argument, defense counsel argued that the state had failed to

prove mens rea or that Henry had caused Gatto serious physical harm, beyond a
reasonable doubt.      Defense counsel also argued that Henry had acted in self-defense.

The trial court rejected Henry’s self-defense claim. The trial court found Henry not

guilty of felonious assault but guilty of the inferior offense of aggravated assault under

R.C. 2903.12(A)(1).

       {¶26} On January 6, 2015, Henry filed a motion to vacate the finding of guilt

arguing that a conviction for aggravated assault requires the use of deadly force and that a

“one-punch situation cannot, as a matter of law, ever constitute deadly force.”       After

hearing argument on the issue, the trial court denied the motion, sentenced Henry to one

year of community control and ordered him to pay $75 in restitution.

       {¶27} This appeal followed. Henry has raised the following three assignments

of error for review:

       ASSIGNMENT OF ERROR NO. 1:
       The trial court erred in finding the defendant guilty of aggravated assault
       which requires the use of deadly force, when the law states that a one-punch
       felonious assault does not rise to the level of deadly force.

       ASSIGNMENT OF ERROR NO. 2:
       The trial court erred in finding serious provocation.

       ASSIGNMENT OF ERROR NO. 3:
       The trial court erred in finding that the victim suffered serious physical

       harm.

       Law and Analysis

       {¶28}    Henry was convicted of aggravated assault in violation of R.C.

2903.12(A)(1). R.C. 2903.12(A)(1) provides, in relevant part:
       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 * * *.



       {¶29}       Aggravated assault is an inferior offense of felonious assault.     Its

elements are identical to felonious assault except its nature and penalty are mitigated by

one or two mitigating circumstances, i.e., sudden passion and/or a sudden fit of rage

brought on by serious provocation occasioned by the victim.   See, e.g., State v. Deem, 40

Ohio St.3d 205, 533 N.E.2d 294 (1988), paragraph four of the syllabus; State v. Williams,

8th Dist. Cuyahoga No. 98210, 2013-Ohio-573, ¶ 21; State v. Searles, 8th Dist. Cuyahoga

No. 96549, 2011-Ohio-6275, ¶ 18; see also R.C. 2903.11(A)(1) (a person commits

felonious assault where he or she “knowingly * * * [c]ause[s] serious physical harm to

another * * *”).      While the state must prove the elements of the offense beyond a

reasonable doubt — i.e., that the defendant knowingly caused serious physical harm to the

victim — in order to mitigate felonious assault to aggravated assault, the defendant bears

the burden of proving the existence of one or both of the mitigating circumstances by a

preponderance of the evidence, i.e., that he or she acted under the influence of a sudden

passion and/or a fit of rage, which was the result of serious provocation by the victim.

State v. Rhodes, 63 Ohio St.3d 613, 617, 590 N.E.2d 261 (1992), fn. 2; Williams at ¶ 21;

Searles at ¶ 18.
       Use of “Deadly Force” and Serious Provocation

       {¶30} Henry’s first two assignments of error are interrelated and will, therefore,

be addressed together. In his first assignment of error, Henry argues that his conviction

for aggravated assault should be overturned because no evidence was presented “as to the

critical element of deadly force.”   Henry contends that it was undisputed that he punched

Gatto only once and that one punch is insufficient as a matter of law to constitute “deadly

force.” In his second assignment of error, Henry argues that his conviction should be

overturned because the trial court’s finding of serious provocation was not based on

sufficient evidence and was against the manifest weight of the evidence.          Henry’s

arguments are meritless.

       {¶31} 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 (1977).          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. State v.
Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25, citing Thompkins at 387;

Jenks at paragraph two of the syllabus.   In considering whether the evidence at trial was

sufficient to support a conviction, “[a]n appellate court must review ‘all of the evidence’

admitted at trial,” including the evidence offered by defense.       (Emphasis omitted.)

State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888, ¶ 18 (appellate court

was required to consider the defendant’s own testimony in evaluating sufficiency of

evidence to support his convictions following bench trial), quoting Jackson v. Virginia,

443 U.S. 307, 99 S.Ct. 2781, 61 L.E.2d 560 (1979).

      {¶32} In contrast to a challenge based on sufficiency of the evidence, a manifest

weight challenge attacks the credibility of the evidence presented and questions whether

the state met its burden of persuasion. State v. Whitsett, 8th Dist. Cuyahoga No. 101182,

2014-Ohio-4933, ¶ 26, citing Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541; State v.

Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13. When considering an

appellant’s claim that a conviction is against the manifest weight of the evidence, the

court of appeals sits as a “thirteenth juror” and may disagree “with the factfinder’s

resolution of conflicting testimony.” Thompkins at 387, citing Tibbs v. Florida, 457

U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).      Weight of the evidence involves

“the evidence’s effect of inducing belief.”      State v. Wilson, 113 Ohio St.3d 382,

2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing at Thompkins at 386-387.           “In other

words, a reviewing court asks whose evidence is more persuasive — the state’s or the

defendant’s?” Wilson at ¶ 25.      The reviewing court must examine the entire record,
weigh the evidence and all reasonable inferences, consider the witnesses’ credibility 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. Thompkins at 387, citing State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). In conducting such a review, this

court remains mindful that the credibility of witnesses and the weight of the evidence are

matters primarily for the trier of fact to assess. State v. DeHass, 10 Ohio St.2d 230, 227

N.E.2d 212 (1967), paragraph one of the syllabus. Reversal on manifest weight grounds

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

conviction.’” Thompkins at 387, quoting Martin at 175.

       {¶33} Citing this court’s decision in State v. Triplett, 192 Ohio App.3d 600,

2011-Ohio-816, 949 N.E.2d 1058 (8th Dist.), Henry argues that “deadly force” is an

element of aggravated assault under R.C. 2903.12(A)(1) and that because there was no

evidence Henry used “deadly force,” his conviction for aggravated assault must be

reversed.

       {¶34} In Triplett, the defendant punched the victim once. Id. at ¶ 4. The victim

suffered a head injury and died later that day. Id. The defendant claimed he was acting

in defense of his sister. Id. A jury found him guilty of felonious assault. Id. at ¶ 3.

The defendant asserted (among other alleged errors) that the trial court erred in failing to

instruct the jury regarding the defense of another involving the use of non-deadly force.

This court agreed, stating, “[w]e do not agree that one punch, even when a death occurs,
is comparable to deadly force” and that “when ‘there is sufficient evidence of self-defense

involving non-deadly force * * * the trial court must instruct the jury on that defense.’”

Id. at ¶ 14, quoting State v. Griffin, 2d Dist. Montgomery No. 20681, 2005-Ohio-3698.

       {¶35} Triplett addressed whether the trial court was required to give a self-defense

jury instruction regarding the use of non-deadly force where the defendant threw a single

punch. It does not stand for the proposition that deadly force is an element of the offense

of aggravated assault. To the contrary, the court held that “the ‘serious harm’ required

for felonious assault does not equal deadly force” and that “‘knowingly’ causing ‘serious

harm’ does not automatically equate to ‘deadly force.’” Triplett at ¶ 14, quoting State v.

Pannetti, 8th Dist. Cuyahoga No. 73044, 1998 Ohio App. LEXIS 4123 (Sept. 3, 1998).

Accordingly, Triplett does not support Henry’s contention that proof of the use of “deadly

force” was required to sustain his conviction for aggravated assault.

       {¶36} As stated above, the elements of the offense of aggravated assault under

R.C. 2903.12(A)(1) are that the defendant knowingly caused serious physical harm to

another person.    As used in R.C. 2903.12(A)(1), “deadly force” merely describes the

“seriousness” of the provocation required for a defendant to qualify for mitigation, i.e.,

“serious provocation * * * that is reasonably sufficient to incite the person into using

deadly force.”    In other words, it is part of the mitigating circumstances, which are not

an element of the offense. See, e.g., Rhodes, 63 Ohio St.3d at 617, 590 N.E.2d 261, fn.

2; Deem, 40 Ohio St.3d at 210-211, 533 N.E.2d 294; State v. Ramey, 8th Dist. Cuyahoga

No. 69080, 1996 Ohio App. LEXIS 956, *26 (Mar. 14, 1996); see also State v. Kurincic,
8th Dist. Cuyahoga No. 68246, 1995 Ohio App. LEXIS 5296, *13-14 (Nov. 30, 1995)

(rejecting defendant’s argument that he could not be convicted of aggravated assault

“because under R.C. 2903.12(A), the provocation must be such as to bring on deadly

force”), citing State v. Newell, 8th Dist. Cuyahoga No. 6472, 1993 Ohio App. LEXIS

2371, *12 (May 6, 1993).

       {¶37} The deficiency about which Henry complains — both with respect to his

“deadly force” argument and his broader claim that his conviction should be overturned

because the trial court’s finding of serious provocation was not based on sufficient

evidence and was against the manifest weight of the evidence — is not the absence of

evidence (or the absence of credible evidence) of a necessary element of the offense of

aggravated assault upon which the state has the burden of proof, but rather, the absence of

evidence of a mitigating circumstance upon which he has the burden of proof. Because

serious provocation is a component of the mitigating circumstances rather than an

element of the offense, there was no obligation on the part of the state to prove serious

provocation in order to obtain a conviction for aggravated assault. See State v. Hayes,

11th Dist. Ashtabula No. 97-A-0667, 1999 Ohio App. LEXIS 4645, *12 (Sept. 30, 1999)

(“[T]he mitigating language contained in the aggravated assault statute does not constitute

an element of the crime for which the burden of proof is ever placed upon the prosecution

* * * .”); Rhodes at 617, 620, fn. 2.

       {¶38} Even if, as Henry has argued, there was insufficient evidence (or insufficient

credible evidence) to support a finding that Henry acted under the influence of a sudden
passion and/or a fit of rage occasioned by serious provocation by Gatto, the trial court’s

error was to Henry’s benefit not to his prejudice, i.e., instead of being convicted of

felonious assault, Henry was convicted of the inferior offense of aggravated assault.

Accordingly, any such error does not constitute grounds for overturning his conviction.

See, e.g., State v. Pairan, 9th Dist. Summit No. 16715, 1995 Ohio App. LEXIS 1145,

*11-12 (Mar. 22, 1995) (“Just as a defendant indicted on voluntary manslaughter and not

on murder or aggravated murder is foreclosed from arguing as a defense to the voluntary

manslaughter charge that one of the mitigating circumstances was not present[,] a

defendant convicted of voluntary manslaughter is foreclosed from arguing on appeal that

a mitigating circumstance was not proven. * * * [A]n appellate court’s consideration

should be limited to whether sufficient evidence was presented on the elements of that

crime.   It will be presumed (to the benefit of the defendant) that sufficient evidence was

presented on mitigating circumstances.”), citing Rhodes at 618 (where defendant is

charged with only voluntary manslaughter rather than murder, “it is not a defense to

voluntary manslaughter that neither party is able to demonstrate the existence of a

mitigating circumstance”); Newell, 1993 Ohio App. LEXIS 2371, at *12 (trial court did

not err in denying defendant’s motion for acquittal and instructing jury on both felonious

assault and aggravated assault because if any error existed in trial court’s decision to give

instructions on both offenses, defendant “benefited from such instructions, without which

he could have been found guilty of the offense of higher degree” and any such error,
therefore, “would not have prejudiced” defendant).               Accordingly, Henry’s first and

second assignments of error are overruled.

       Serious Physical Harm

       {¶39}     In his third assignment of error, Henry contends that his aggravated assault

conviction should be overturned because there is no evidence that Gatto suffered “serious

physical harm.”3 R.C. 2901.01(A)(5) defines “[s]erious physical harm to persons” as

any of the following:

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

       (b) Any physical harm that carries a substantial risk of death;

       (c) Any physical harm that involves some permanent incapacity, whether
       partial or total, or that involves some temporary, substantial incapacity;

       (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.

       {¶40} “Physical harm to persons” means “any injury, illness, or other physiological

impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3).            However, “‘[t]he

degree of harm that rises to level of “serious” physical harm is not an exact science’”


        Although he challenges the trial court’s finding that Gatto sustained “serious physical harm,”
       3


Henry does not dispute that sufficient evidence was presented to support the trial court’s finding that
he acted “knowingly” or that the trial court’s finding as to that element was supported by the manifest
weight of the evidence. See R.C. 2903.12(A)(1) (requiring proof beyond a reasonable doubt that
defendant “knowingly * * * [c]aused serious physical harm”) (Emphasis added.).
given that the definition uses terms such 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. 06MA20, 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.

        {¶41} In considering whether the record supports the trial court’s finding that

Gatto sustained “serious physical harm,” we are mindful of the fact that this court has

“historically applie[d] 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 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’”), quoting State v. Melendez, 8th Dist. Cuyahoga

No. 97175, 2012-Ohio-2385, ¶ 14; State v. Littlejohn, 8th Dist. Cuyahoga No. 95380,

2011-Ohio-2035, ¶ 21 (citing cases).     However, this court has also stated that the fact

that a victim seeks medical treatment does not alone “substantiate[] an inference that the

victim suffered serious physical harm” and that although “[t]he inference derived from a

victim seeking medical treatment is a proper factor to consider,” it is “not a dispositive

one.”     State v. Clopton, 8th Dist. Cuyahoga No. 95297, 2011-Ohio-2392, ¶ 14-16. For
an injury to constitute “serious physical harm,” it must fall within at least one of the five

categories enumerated in R.C. 2901.01(A)(5)(a)-(e).       See, e.g., State v. Addison, 8th

Dist. Cuyahoga No. 96514, 2012-Ohio-260, ¶ 29; see also Clopton at ¶ 15 (observing that

“[t]his district has not affirmed a conviction based on a fact pattern where the victim

seeking medical treatment is the only evidence establishing the serious physical harm.

Quite the opposite.”), citing State v. Ivey, 98 Ohio App.3d 249, 257, 648 N.E.2d 519 (8th

Dist.1994); State v. Enovitch, 8th Dist. Cuyahoga No. 72827, 1998 Ohio App. LEXIS

3833, *5 (Aug. 20, 1998) (mere fact that victim sought treatment at the hospital was not

enough to establish serious physical harm).

       {¶42} We are also mindful that “[t]his court has consistently held that the need for

stitches constitutes serious physical harm for purposes of a felonious assault conviction.”

State v. Studgions, 8th Dist. Cuyahoga No. 94153, 2010-Ohio-5480, ¶ 10; see also State

v. Williams, 8th Dist. Cuyahoga No. 98210, 2013-Ohio-573, ¶ 19 (observing that “[t]his

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”). However, in most cases, it appears that it was not simply the fact that the

victim received stitches that led the court to conclude that the victim sustained “serious

physical harm” within the meaning of R.C. 2901.01(A)(5), but rather, the fact that, as is

often the case with an injury requiring stitches, the injury and stitches led to a permanent

scar or disfigurement. See, e.g., Studgions at ¶ 10; Williams at ¶ 10; State v. Paythress,

8th Dist. Cuyahoga No. 91554, 2009-Ohio-2717, ¶ 6-7 (finding serious physical harm
when the medical records documented that victim sustained a three-to-four-inch cut on

his face that required 60 stitches to close and victim was able to point out his injury to the

jury, “suggesting that he suffered some permanent disfigurement as a result of the

attack”); see also State v. Townsend, 9th Dist. Summit No. 24311, 2009-Ohio-3190, ¶

10-12 (victim’s testimony that defendant slapped her, punched her in the mouth, hit her in

the face and spit on her, leaving her lip bleeding and hanging, requiring stitches and

resulting in a permanent scar and lack of feeling in her lip was sufficient to establish

“serious physical harm” under R.C. 2901.01(A)(5)); State v. Edwards, 83 Ohio App.3d

357, 360, 614 N.E.2d 1123 (1992) (where victim received 23 stitches for two-centimeter

cut above his right eyebrow, which resulted in a permanent scar, and the reopening of a

one-centimeter scar on his forehead, jury could reasonably find victim sustained some

permanent disfigurement constituting “serious physical harm”). But see State v. Craig,

8th Dist. Cuyahoga No. 94455, 2011-Ohio-206, ¶ 45 (state presented sufficient evidence

upon which jury could find defendant caused serious physical harm under                R .C.

2901.01(A)(5)(c), i.e., “physical harm that involves some permanent incapacity * * * or *

* * some temporary, substantial incapacity,” where one victim testified that he suffered a

cut to his face that required stitches to close and other testified that he needed three

staples to close head wound); State v. Churchwell, 8th Dist. Cuyahoga No. 88171,

2007-Ohio-1600, ¶ 28 (serious physical harm shown where victim was bleeding

profusely, her eyes were swollen shut and she received stitches around her eyes, without

reference to scarring); see also State v. Greene, 9th Dist. Lorain No. 08CA009465,
2009-Ohio-2518, ¶ 9-12 (evidence was sufficient to support finding of serious physical

harm under R.C. 2901.01(A)(5)(d) and (e) and felonious assault conviction was not

against the manifest weight of the evidence where testimony established that officer was

bleeding from his nose and mouth, needed three stitches to close a deep vertical laceration

on his inner lower lip, could not eat normally and suffered pain for seven to ten days after

defendant struck him in the face with his fist, causing him to fall on his arm). Further,

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 stitches were required.

See, e.g., State v. Payne, 8th Dist. Cuyahoga No. 76539, 2000 Ohio App. LEXIS 3274,

*9-10 (July 20, 2000) (bloody, cut and swollen right eye was sufficient to establish

serious physical harm because the injury was a temporary, serious disfigurement); but see

State v. Hill, 9th Dist. Summit No. 26771, 2013-Ohio-5725, ¶ 24-26 (reversing conviction

for felonious assault where “blunt force injuries” sustained in fist fight, i.e., scrapes or

abrasions many of which were described as “superficial” or “minor,” did not constitute

serious physical harm); In re Delayn K., 6th Dist. Huron No. H-00-029, 2000 Ohio App.

LEXIS 5839, *5-6 (Dec. 15, 2000) (evidence was insufficient to establish that defendant

caused “serious physical harm” to victim where victim did not need stitches, there was no

medical evidence presented regarding the severity of the wound, and photographs showed

wound on victim’s neck “to be more of a scratch or scrape, than a ‘slash’”); Enovitch,

1998 Ohio App. LEXIS 3833, at *5-6 (despite victim’s testimony describing his injuries

as a painful swollen ear and a cut over his right eye that required eleven stitches and left a
scar victim claimed “will not go away,” state failed to present sufficient evidence of

serious physical harm to support defendant’s felonious assault conviction where hospital

records described victim’s injury as “minor” and other than victim’s testimony, there was

no evidence that the scar above his eye was permanent).

       {¶43} In this case, there was no evidence that Gatto sustained any mental illness,

was hospitalized or sustained any physical harm that carried a substantial risk of death.

R.C. 2901.01(A)(5)(a)-(b).     There was likewise no evidence that Gatto suffered from

any degree of prolonged or intractable pain or was in any way incapacitated by his cut lip

or “bent in” teeth.   R.C. 2901.01(A)(5)(c), (e).     There was no evidence Gatto missed

any school or work or was precluded from engaging in any of his other ordinary activities

as a result of his injury. Gatto did not claim to have a scar or any other type of

permanent disfigurement.     R.C. 2901.01(A)(5)(d).      Accordingly, what we are left with

is whether the injury to Gatto’s upper lip “involve[d] acute pain of such duration as to

result in substantial suffering” within the meaning of R.C. 2901.01(A)(5)(e) or a

“temporary, serious disfigurement” under R.C. 2901.01(A)(5)(d).

       {¶44} The photographs taken by Officer Schonberger at the hospital show Gatto

with a bloodied, swollen upper lip that appears to be cut in two places.       Gatto testified

that he was in “excruciating pain” when he arrived at the hospital and the medical records

reflect that Gatto told the hospital staff that his pain level was six out of ten at that time.

Gatto testified that, as result of Henry’s punch, his front teeth were “bent in,” that he

received 30 stitches and that he saw the “medical surgeon” “about five times” and his
family dentist twice for his injuries. Viewing the evidence in the light most favorable to

the state, we find that Gatto’s testimony, together with the photographs and medical

records introduced by the state, was sufficient to establish that Henry caused him serious

physical harm under R.C. 2901(A)(5)(d) or (e).

       {¶45}    Henry’s manifest weight challenge is based on the same arguments and

evidence (or lack thereof) as his sufficiency challenge — i.e., the absence of medical

evidence corroborating Gatto’s testimony regarding the severity of his injuries and the

treatment he received, the lack of evidence of any permanent scarring and criticisms

regarding inconsistencies in, and the lack of credibility of, Gatto’s testimony.

       {¶46} The severity of Gatto’s injury is unclear based on the photographs alone.

Although Gatto claimed to have needed 30 stitches in and around his lip to repair the

injury, there is no reference to Gatto having received any stitches in the medical records.

Rather, the notes from the attending emergency room physician regarding the course of

treatment for Gatto’s injury, simply state, in relevant part:

       Because of the complexity of the repair I recommended plastic surgery. I

       spoke with Dr. Ulvi who stated after office hours he would come over to

       assess the laceration and repair. * * * Dr. Ulvi graciously came in and

       repaired the patient’s laceration.

       {¶47} Gatto testified that as a result of the punch he received from Henry his two

front teeth were also “bent in”; however, there are no photographs of any damage to

Gatto’s teeth and no testimony or other evidence in the record explaining what Gatto
meant when he said that his two front teeth were “bent in” or how, if at all, that condition

was remedied.

       {¶48} Likewise, although Gatto claimed to have seen the “medical surgeon”

“about five times” and his family dentist twice for the injuries he sustained, there are no

medical records documenting any of this alleged follow-up treatment and, other than

Gatto’s testimony that a “plastic surgeon” removed his stitches, no evidence as to what

this alleged treatment entailed or when it occurred.    The record contains only Gatto’s

medical records from the emergency room at Marymount Hospital.            None of Gatto’s

medical providers testified.

       {¶49} Based on our review of the record in this case, we acknowledge that there

are a number of credibility issues with Gatto’s testimony. For example, Gatto’s version

of the events — i.e., that Henry, without any provocation, threw the first and only punch

as soon as Gatto left his property — certainly strains credulity. It makes little sense that

Henry would have had no physical contact with Gatto as he “escorted” him off his

property and then, only after Gatto assured Henry that he wanted “nothing” more to do

with Bret and was in the street “try[ing] to get in[to] [his] car,” that Henry “out of

nowhere” struck Gatto in the mouth.

       {¶50} However, a defendant is not entitled to reversal on manifest weight grounds

merely because certain aspects of a witness’s testimony are not credible or were

inconsistent or contradictory.   See, e.g., State v. Wade, 8th Dist. Cuyahoga No. 90029,

2008-Ohio-4574, ¶ 38, citing State v. Asberry, 10th Dist. Franklin No. 04AP-1113,
2005-Ohio-4547, ¶ 11.       The decision whether, and to what extent, to believe the

testimony of a particular witness is “within the peculiar competence of the factfinder, who

has seen and heard the witness.” State v. Johnson, 8th Dist. Cuyahoga No. 99822,

2014-Ohio-494, ¶ 54.     It was, therefore, within the province of the trial court, as the trier

of fact, to believe Gatto’s testimony regarding the severity of his injuries and to find that

he sustained serious physical harm as a result of Henry’s actions. It is not our role to

substitute our judgment for that of the trial judge.

       {¶51} After a careful review of the record in its entirety, weighing the strength and

credibility of the evidence presented and the inferences to be reasonably drawn therefrom,

we cannot say that this is one of those “exceptional cases” in which the trial court clearly

lost its way and created such a manifest miscarriage of justice that Henry’s conviction for

aggravated assault was against the manifest weight of the evidence. Thompkins, 78

Ohio St.3d at 387, 678 N.E.2d 541, quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d

717. Accordingly, Henry’s third assignment of error is overruled, and we affirm his

conviction.

       {¶52}    Judgment affirmed.

       It is ordered that appellee recover from appellant the 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.

       A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.


________________________________________
EILEEN A. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
EILEEN T. GALLAGHER, J., CONCUR
