Opinion
Appeal No. C-010602, Trial No. C-01CRB-17679.
May 15, 2002.
JUDGMENT ENTRY.
This appeal, considered on the accelerated calendar under App.R. 11.1(E) and Loc.R. 12, is not controlling authority except as provided in S.Ct.R.Rep.Op. 2(G)(1).The defendant-appellant, Terry J. Zimmerer, appeals from his conviction for assault, a misdemeanor of the first degree, in violation of R.C. 2903.13. In his single assignment of error, he argues that his conviction was contrary to the manifest weight of the evidence. We disagree.
Christopher Fowler, thirteen-years old, testified that Zimmerer, twenty-six years old, had approached him as he got off a school bus and told him that he, Zimmerer, had heard that Fowler wished to fight him. Fowler then described how Zimmerer had pushed him to the ground and struck his shoulder, inflicting bruises. The state presented photographic evidence of the bruises and an audiotape from an answering machine, on which Fowler had left a message for his mother at work, reporting the incident soon after it had occurred. In his defense, Zimmerer testified that he had only "tapped" Fowler, and that his actions were in response to Fowler picking on his brother, Nick. Zimmerer also presented the testimony of a twelve-year-old friend of Nick's, who testified that he had overheard Fowler say that he had lied in reporting the incident to the police.
It is axiomatic that the trial court is in a unique position to assess the credibility of witnesses, and that a reviewing court will not disturb its judgment unless the trial court lost its way or committed a manifest miscarriage of justice. Even sitting as a thirteenth juror, we cannot say that either occurred on this record. See State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. The assignment of error is, therefore, overruled.
Therefore, the judgment of the trial court is affirmed.
Further, a certified copy of this Judgment Entry shall constitute the mandate, which shall be sent to the trial court under App.R. 27. Costs shall be taxed under App.R. 24.
DOAN, P.J., GORMAN and WINKLER, JJ.