[Cite as Cleveland v. Mojsoski, 2012-Ohio-4589.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97762




                                CITY OF CLEVELAND
                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                    JONCE MOJSOSKI
                                                         DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED



                                      Criminal Appeal from the
                                     Cleveland Municipal Court
                                     Case No. 2011 CRB 011831

        BEFORE:          Celebrezze, P.J., S. Gallagher, J., and Kilbane, J.

        RELEASED AND JOURNALIZED:                        October 4, 2012
ATTORNEY FOR APPELLANT

Michael K. Webster
800 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Barbara A. Langhenry
Interim Director
City of Cleveland
Department of Law
601 Lakeside Avenue
Room 106
Cleveland, Ohio 44114-1077

Victor R. Perez
Chief Prosecutor
Angela Rodriguez
Assistant City Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:

        {¶1} Defendant-appellant, Jonce Mojsoski, appeals his conviction in the Cleveland

Municipal Court for menacing, in violation of Cleveland Codified Ordinances 621.07.

After careful review of the record and relevant case law, we affirm appellant’s

conviction.

        {¶2} Appellant and the alleged victim, Elena Zladeska, were married on June 4,

2009.    Appellant and Zladeska were citizens of the Republic of Macedonia.            On

February 15, 2011, appellant and Zladeska were scheduled to appear before the Cuyahoga

County Court of Common Pleas, Domestic Relations Division, for a hearing relating to

their divorce proceedings. Prior to the hearing, Zladeska was waiting in the courthouse

hallway for her attorney to arrive when appellant suddenly approached her and stated,

“I’ll kill you,” while making a gesture with his hand.

        {¶3} On April 11, 2011, a criminal complaint was filed against appellant for

aggravated menacing, in violation of Cleveland Codified Ordinances (“CCO”) 621.06.

The criminal complaint was filed as a result of the events that occurred on February 15,

2011. On June 8, 2011, appellant, having been advised of his rights, entered a plea of

not guilty.

        {¶4} On November 4, 2011, appellant’s case proceeded to a jury trial. At the

conclusion of trial, appellant was found guilty of the lesser included offense of menacing,

in violation of CCO 621.07. On November 21, 2011, appellant was sentenced to pay a

fine in the amount of $250 plus court costs.
       {¶5} On December 19, 2011, appellant filed this timely appeal, raising three

assignments of error for review:

       I. The trial court erred in instructing the jury on the lesser included offense
       of menacing.

       II. The trial court’s findings were against the manifest weight of the
       evidence, and therefore, should be reversed.

       III. The trial court committed prejudicial error by prohibiting appellant
       from providing testimony regarding his possible deportation in the event of
       his conviction.

                                     Law and Analysis

                     I. Jury Instruction on Lesser Included Offense

       {¶6} In his first assignment of error, appellant argues that the trial court erred in

instructing the jury on the lesser included offense of menacing.

       {¶7} The trial court’s decision whether to instruct the jury on a lesser included

offense will not be reversed absent an abuse of its discretion. State v. Mitchell, 53 Ohio

App.3d 117, 119-120, 559 N.E.2d 1370 (8th Dist.1988). An abuse of discretion implies

that the trial court acted unreasonably, arbitrarily, or unconscionably. State v. Adams, 62

Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

       {¶8} A jury instruction on a lesser included offense is only appropriate where “the

evidence presented at trial would reasonably support both an acquittal on the crime

charged and a conviction on the lesser included offense.” State v. Douglas, 3d Dist. No.

9-05-24, 2005-Ohio-6304, ¶ 20, citing State v. Thomas, 40 Ohio St.3d 213, 216, 533

N.E.2d 286 (1988). Thus, “if the evidence is such that a jury could reasonably find the

defendant not guilty of the charged offense, but could convict the defendant of the lesser
included offense, then the judge should instruct the jury on the lesser offense.” Shaker

Hts. v. Mosely, 113 Ohio St.3d 329, 333, 2007-Ohio-2072, 865 N.E.2d 859, ¶ 11, citing

State v. Shane, 63 Ohio St.3d 630, 590 N.E.2d 272 (1992).

       {¶9} It is well established that menacing is a lesser included offense of aggravated

menacing. State v. Striley, 21 Ohio App.3d 300, 303, 488 N.E.2d 499 (12th Dist.1985).

The sole difference between the two offenses is the degree of harm threatened —

aggravated menacing requires evidence of “serious physical harm,” 1 while menacing

merely requires “physical harm.”2

       {¶10} Accordingly, an instruction on menacing would be required if the jury could

have reasonably found that appellant knowingly caused or attempted to cause Zladeska

physical harm, rather than serious physical harm. Thus, the issue before us is whether,

based on the evidence presented at trial, the jury could have reasonably found that

appellant knowingly caused Zladeska to believe that he would cause her physical harm,

rather than serious physical harm.

       {¶11} R.C. 2901.01(A)(5) defines serious physical harm to a person as any one of

the following:

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

       1Aggravated menacing is controlled by CCO 621.06, which states, in relevant
part: (a) No person shall knowingly cause another to believe that the offender will
cause serious physical harm to the person or property of such other person or
member of his or her immediate family. (Emphasis added.)
       2Menacing is controlled by CCO 621.07, which states, in relevant part: (a)
No person shall knowingly cause another to believe that the offender will cause
physical harm to the person or property of such other person or member of his or
her immediate family. (Emphasis added.)
       (b) Any physical harm that carries a substantial risk of death;3

       (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.

       {¶12} In contrast, R.C. 2901.01(A)(3) defines “physical harm to persons” as “any

injury, illness, or other physiological impairment, regardless of its gravity or duration.”

       {¶13} On review of the record in its entirely, we find that the trial court did not

abuse its discretion in instructing the jury on the lesser included offense of menacing.

Throughout the trial, defense counsel maintained that, under the circumstances of the

alleged threat, it was unreasonable for Zladeska to fear serious physical harm.

Furthermore, although Zladeska testified that appellant’s threat “scared her,” the state

produced minimal testimony to establish the element of serious physical harm as opposed

to physical harm.

       {¶14} In light of the testimony produced at trial, we find that it was not

unreasonable for the jury to conclude that the state failed to prove the element of serious

physical harm beyond a reasonable doubt. However, establishing reasonable doubt on




       3Asubstantial risk is “a strong possibility, as contrasted with a remote or
even significant possibility, that a certain result may occur or that certain
circumstances exist.” R.C. 2901.01(A)(8).
the element of serious physical harm did not preclude a finding of physical harm under

the same circumstances.

       {¶15} Thus, we conclude that where, as here, there is sufficient evidence that a

threat occurred and the defendant’s theory of defense creates reasonable doubt as to the

element of serious physical harm, it is appropriate for the trial court to instruct the jury on

the lesser included offense of menacing.

       {¶16} Based on the foregoing, we find that the evidence was such that the jury

could have reasonably concluded that appellant did not cause Zladeska to believe that he

would cause her serious physical harm, but could conclude that appellant did cause her to

believe that he would cause physical harm.

       {¶17} Appellant’s first assignment of error is overruled.

                           II. Manifest Weight of the Evidence

       {¶18} In his second assignment of error, appellant argues that his menacing

conviction was against the manifest weight of the evidence, and therefore, should be

reversed.

       {¶19} The manifest weight of the evidence standard of review requires us to

review the entire record, weigh the evidence and all reasonable inferences, consider the

credibility of witnesses, 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. State v. Otten, 33 Ohio App.3d

339, 515 N.E.2d 1009 (9th Dist.1986), paragraph one of the syllabus. The discretionary

power to grant a new trial should be exercised only in exceptional cases where the
evidence weighs heavily against the conviction. State v. Thompkins, 78 Ohio St.3d 380,

1997-Ohio-52, 678 N.E.2d 541.

       {¶20} We are mindful that the weight to be given the evidence and the credibility

of the witnesses are matters primarily for the trier of fact. State v. DeHass, 10 Ohio

St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact has

the authority to “believe or disbelieve any witness or accept part of what a witness says

and reject the rest.” State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). “The

choice between credible witnesses and their conflicting testimony rests solely with the

finder of fact and an appellate court may not substitute its own judgment for that of the

finder of fact.” State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986).

       {¶21} As stated, appellant was convicted of menacing, in violation of CCO

621.07. In order to secure appellant’s menacing conviction, the state was required to

prove that he knowingly caused Zladeska to believe that he would cause physical harm to

her or her property or such other person or member of her immediate family.

       {¶22} In the instant matter, we are unable to conclude that this is the exceptional

case in which the evidence weighs heavily against appellant’s conviction. At all times

relevant to this case, Zladeska’s allegations against appellant were consistent. Zladeska

testified that while she and appellant were in the courtroom hallway prior to their divorce

proceeding, appellant became upset and told Zladeska, “I will kill you. You will see. I

will kill you.” When asked what she thought would happen, Zladeska stated, “I saw him,

anger in his eyes. It was scary. I can’t explain it visually and verbally. It was anger in

his eyes when he says, ‘I will kill you.’ It scared me.”
       {¶23} Despite appellant’s argument to the contrary, the fact that the jury

determined that his threat amounted to a threat of “physical harm” as opposed to “serious

physical harm” does not warrant the conclusion that his conviction was against the

manifest weight of the evidence. The jury, as trier of fact, was in the best position to

assess the credibility of the witnesses. On receiving the menacing jury instruction from

the trial court, the jury was free to weigh the testimony of Zladeska and determine that the

threats made by appellant constituted menacing, rather than aggravated menacing.

       {¶24} Deferring to the trial court’s assessment of the credibility of the witnesses,

as we must, we cannot say that the trier of fact lost its way and performed a miscarriage

of justice in convicting appellant of menacing.

       {¶25} Appellant’s second assignment of error is overruled.

                         III. Exclusion of Deportation Testimony

       {¶26} In his third assignment of error, appellant argues that the trial court

committed prejudicial error by prohibiting him from providing testimony regarding his

possible deportation in the event of his conviction.4 Appellant contends that testimony

relating to his possible deportation was relevant evidence that demonstrated Zladeska’s

motivation to fabricate her allegations against him.

       {¶27} We agree with appellant that information relating to a victim’s motivation to

fabricate allegations in a criminal complaint is relevant evidence. However, pursuant to



       4 We note that appellant attempted to introduce testimony relating to
Zladeska’s motive to fabricate the allegations against him during the defense’s case
in chief. Defense counsel did not attempt to cross-examine Zladeska regarding any
potential bias or motivation she had to fabricate her allegations.
Evid.R. 403(A), “[a]lthough relevant, evidence is not admissible if its probative value is

substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or

of misleading the jury.” The Ohio Supreme Court has defined unfair prejudice as “that

quality of evidence which might result in an improper basis for a jury decision.” State v.

Crotts, 104 Ohio St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 24. “When considering

evidence under Evid.R. 403, the trial court is vested with broad discretion and an

appellate court should not interfere absent a clear abuse of that discretion.” State v.

Allen, 73 Ohio St.3d 626, 633, 653 N.E.2d 675 (1995).

       {¶28} In the case at hand, the trial court excluded appellant’s request to introduce

evidence of his possible deportation if convicted based on its belief that such information

would only serve to confuse the ultimate issues for the jury. We agree. Generally,

       “[a] jury is not to consider the punishment that will follow as a consequence
       of its verdict. * * * In reaching its verdict, a jury should consider only
       whether the defendant’s guilt has been satisfactorily established in
       accordance with the law and the facts; it should not consider the
       consequences of its verdict, either in terms of the punishment that will be
       visited upon the defendant if he is convicted, or in terms of the risk he may
       pose to society if he is not.”

State v. Moore, 2d Dist. No. 94-CA-46, 1995 Ohio App. LEXIS 4317, *8-9 (Sept. 29,

1995), quoting State v. Luoma, 2d Dist. No. 10719, 1990 Ohio App. LEXIS 5333 (Dec. 7,

1990), *7-8.

       {¶29} Here, appellant failed to present the trial court with any information

sufficient to warrant his belief that Zladeska fabricated the allegations against him with

the intent to have him deported. Rather, appellant’s theory of defense was premised on

pure speculation and unfounded inferences. Under these circumstances, we are unable to
conclude that the probative value of evidence relating to appellant’s potential deportation

outweighed the potentially prejudicial nature of such evidence, including the possibility

of confusing the ultimate issues for the jury. See Evid.R. 403(A). Accordingly, we find

that the trial court did not abuse its discretion in prohibiting appellant from providing

testimony regarding his possible deportation in the event of his conviction.

       {¶30} Appellant’s third assignment of error is overruled.

       {¶31} Judgment 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 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.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

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