[Cite as Cleveland v. Clay, 2017-Ohio-5815.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104985




                                CITY OF CLEVELAND

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                         DEREL CLAY
                                                      DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                      Criminal Appeal from the
                                     Cleveland Municipal Court
                                     Case No. 2015 CRB 019172

        BEFORE: Laster Mays, J., Kilbane, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: July 13, 2017
                               -i-
ATTORNEY FOR APPELLANT

Michael B. Telep
4438 Pearl Road
Cleveland, Ohio 44109


ATTORNEYS FOR APPELLEE

Barbara Langhenry
City of Cleveland Law Director

Kimberly Barnett
Chief Prosecutor

By: Aric Kinast
Assistant City Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

       {¶1} Defendant-appellant, Derel Clay (“Clay”), appeals his guilty verdict and asks

this court to reverse his conviction and vacate his sentence.   We affirm.

       {¶2} Clay entered a plea of no contest to an amended charge of aggravated

disorderly conduct.    After the plea colloquy, Clay orally requested to withdraw his plea.

The trial court granted his motion, and a bench trial was held. Clay was found guilty of

assault, a first-degree misdemeanor in violation of Cleveland Codified Ordinance 621.03.

 He was sentenced to 180 days in jail, with 176 days suspended.

I.     Facts

       {¶3} Clay and Natasha Parrish (“Parrish”) had been dating since April 2015.     On

or about August 30, 2015, Parrish stated that Clay came home late from work.       Parrish

stated that she and Clay were drinking alcohol together and another man’s name was

mentioned. Clay then accused Parrish of cheating on him. Parrish stated that Clay

became physically aggressive when he punched her and pushed her against a freezer

causing her to cut her lip.    As a result of the physical altercation between Clay and

Parrish, Parrish was taken to the hospital by ambulance. Parrish received about four

stitches to her lip.

       {¶4} Clay stated that he arrived home late from work and Parrish was angry. He

stated that Parrish was inebriated and became physically aggressive with him.      He also
stated that he was completely sober that evening. Clay testified that Parrish fell into the

freezer when he pushed her away from him to prevent injury and leave the residence.

Clay stated that he was also injured that evening. Clay stated that Parrish tried to “gash”

him and bit him on the shoulder. Clay went to the hospital but did not want to press

charges.     Parrish also went to the hospital that evening.      Clay learned about eight

months later that charges were filed against him for this incident.

       {¶5} Parrish filed a police report, and the city of Cleveland filed a complaint

against Clay for assault.   After learning of the charges, Clay turned himself in.      After

entering a not guilty plea, a bench trial was set for June 20, 2016.   On the trial date, Clay

indicated that he wanted to plead no contest and consent to a finding of guilt to an

amended charge of aggravated disorderly conduct.         During the plea proceedings, the

judge indicated that pleading to the amended charge meant that Clay would have to take

responsibility for his actions. Clay decided not to plead, and opted for a bench trial on

the assault charge. The judge found Clay guilty of assault and sentenced him to 180

days with 176 days suspended. Clay filed this timely appeal and asserts two assignments

of error for our review.

       I.      The appellant was denied due process of law and a fair trial as
               guaranteed by the Sixth and Fourteenth Amendments to the United
               States Constitution when the judge failed to disqualify herself after
               demonstrating that her impartiality might reasonably be questioned;
               and

       II.     The trial court erred when it convicted the defendant of assault when
               the verdict was against the manifest weight of the evidence beyond a
               reasonable doubt.
II.   Judge Impartiality and Disqualification

      A.     Standard of Review

      {¶6} Clay argues that the trial judge’s impartiality could be questioned, the judge

was biased toward him, and should have disqualified herself.

      Due process requires that a criminal defendant be tried before an impartial
      judge. State v. Hough, 8th Dist. Cuyahoga Nos. 98480 and 98482,
      2013-Ohio-1543, 990 N.E.2d 653, citing State v. LaMar, 95 Ohio St.3d
      181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 34. If the record evidence
      indicates that the trial was infected by judicial bias, the remedy is a new
      trial. State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97,
      ¶ 2. Judicial bias is defined as “a hostile feeling or spirit of ill will or
      undue friendship or favoritism toward one of the litigants or his attorney,
      with the formation of a fixed anticipatory judgment on the part of the judge
      * * * .” Id. at ¶ 48, quoting Pratt v. Weygandt, 164 Ohio St. 463, 132
      N.E.2d 191 (1956), paragraph four of the syllabus. Judicial bias is
      “contradistinguished from an open state of mind which will be governed by
      the law and the facts.” Id., quoting Pratt at paragraph four of the syllabus.

State v. Eisermann, 8th Dist. Cuyahoga No. 100967, 2015-Ohio-591, ¶ 95.

      B.     Law and Analysis

      {¶7} In Clay’s first assignment of error, he contends that he was denied due

process of law and a fair trial as guaranteed by the Sixth and Fourteenth Amendments to

the United States Constitution when the judge failed to disqualify herself after

demonstrating that her impartiality might reasonably be questioned.     “It is well settled

that a criminal trial before a biased judge is fundamentally unfair and denies a defendant

due process of law.   State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d

166, ¶ 34, citing Rose v. Clark, 478 U.S. 570, 577, 106 S.Ct. 3101, 92 L.Ed.2d 460

(1986).”   State v. Jackson, 8th Dist. Cuyahoga No. 104132, 2017-Ohio-2651, ¶ 80.
However, Clay has not demonstrated that the trial judge was biased toward him.        If Clay

determined that the judge was indeed biased toward him, he could have filed an affidavit

of disqualification.

       Under R.C. 2701.03(A), when a party believes that the trial judge is biased,
       the proper avenue for redress is the filing of an affidavit of disqualification.
         See Section 5(C), Article IV, Ohio Constitution. “An affidavit of
       disqualification must be filed as soon as possible after the incident giving
       rise to the claim of bias and prejudice occurred or affiant becomes aware of
       circumstances that support disqualification. A party may be considered to
       have waived its objection to the judge when the objection is not raised in a
       timely fashion and the facts underlying the objection have been known to
       the party for some time.” In re Disqualification of O’Grady, 77 Ohio
       St.3d 1240, 1241, 674 N.E.2d 353 (1996).

State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 56.

       {¶8} Clay points to a section of the transcript where the judge informs him that he

must take responsibility for his actions. During the plea, the judge asked Clay what

happened the night of the assault.    Clay responded, “Well, I pretty much — nothing.       I

— she — I actually got the police called on me.          I guess it was supposed to be a

Domestic Violence.”     (Tr. 4.)   To which the judge replied, “We’re beyond the guessing

stage. It’s not whether it’s supposed. I’m asking you as you stand before this Court,

ready to enter a plea, this process requires you to take responsibility.”   Clay then stated,

“I understand.”   (Tr. 4.)

       {¶9}   Clay also stated that the city did not show proof of the victim’s injuries, yet

the judge requested proof of his injuries through a medical report when he had no burden

to prove his injuries. (Tr. 11.) Additionally, the judge reminded Clay that he could

have been charged with a felony.
       COURT:          And, the Probation Department will contact you. If she
                      needed stitches, you could have been charged with a felony.

       CLAY:          I understand that.

       COURT:         If you understand that, there is a period, not a comma. Again,
                      I’m asking you what medical attention, what injuries, did you
                      sustain July 7th at 10:30?
(Tr. 19.)

       {¶10} After a review of the record, we do not find that the trial judge’s comments

fostered a spirit of ill will toward Clay or favoritism toward the victim. Additionally, an

objection was not made at the trial court hearing because these facts were known to Clay

for some time. Clay failed to file an affidavit of disqualification against the trial judge;

therefore, he waived his objection to the judge. Id. at ¶ 56. Clay’s first assignment of

error is overruled.

III.   Manifest Weight of the Evidence

       A.     Standard of Review

       {¶11} Clay claims that his conviction is against the weight of the evidence.

       A manifest weight challenge attacks the credibility of the evidence
       presented and questions whether the state met its burden of persuasion at
       trial. State v. Whitsett, 8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933,
       ¶ 26, citing Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d
       541; State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶
       13. Because it is a broader review, a reviewing court may determine that a
       judgment of a trial court is sustained by sufficient evidence, but
       nevertheless conclude that the judgment is against the weight of the
       evidence.

State v. Wynn, 8th Dist. Cuyahoga No. 103824, 2017-Ohio-4062, ¶ 48.

       {¶12} Also,
       [w]hen 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, quoting Tibbs v. Florida, 457 U.S. 31, 42,
       102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). 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, 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), paragraphs one
       and two 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, supra.

Id.   at ¶ 49.

       B.        Law and Analysis

       {¶13} In Clay’s second assignment of error, he argues that the trial court erred

when it convicted him of assault when the verdict was against the manifest weight of the

evidence beyond a reasonable doubt.

       In evaluating a challenge to the verdict based on the manifest weight of the
       evidence in a bench trial, “the trial court assumes the fact-finding function
       of the jury. Accordingly, to warrant reversal from a bench trial under a
       manifest weight of the evidence claim, this court must review the entire
       record, weigh the evidence and all reasonable inferences, consider the
       credibility of witnesses and determine whether in resolving conflicts in
       evidence, the trial court clearly lost its way and created such a manifest
       miscarriage of justice that the judgment must be reversed and a new trial
       ordered.” Cleveland v. Welms, 169 Ohio App.3d 600, 2006-Ohio-6441, 863
       N.E.2d 1125, citing Thompkins.

State v. Johns, 8th Dist. Cuyahoga No. 90811, 2008-Ohio-5584, ¶ 11.
       {¶14} Clay was convicted of assault, in violation of Cleveland Codified Ordinance

621.03, that states, “[n]o person shall knowingly cause or attempt to cause physical harm

to another.” Clay admits to pushing Parrish. Parrish sustained an injury.

       STATE:        So, how did she sustain the injury to her lip?

       CLAY:         By me pushing her off of me.

(Tr. 35-36.)

       {¶15} The judge heard the testimony, reviewed the evidence, and determined that

Clay was guilty of assault. Clay has not demonstrated that the trial court lost its way and

created such a manifest miscarriage of justice that the judgment must be reversed.

Clay’s second assignment of error is overruled.

       {¶16} Judgment is affirmed.

       It is ordered that appellee recover from 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 Cleveland

Municipal Court to carry this judgment into execution.         The appellant’s conviction

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.

________________________________________
ANITA LASTER MAYS, JUDGE

MARY EILEEN KILBANE, P.J., and
SEAN C. GALLAGHER, J., CONCUR
