[Cite as State v. Simmons, 2012-Ohio-592.]

 Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 96925

STATE OF OHIO 

PLAINTIFF-APPELLEE 

vs. 

BRANDON SIMMONS

 DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-544519 

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

RELEASED AND JOURNALIZED: February 16, 2012 
ATTORNEY FOR APPELLANT

Gregory T. Stralka 

Crown Centre Suite 600 

5005 Rockside Road 

Cleveland, OH 44131 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

BY: Jeffrey S. Schnatter 

Assistant County Prosecutor 

The Justice Center 

1200 Ontario Street, 9th Floor 

Cleveland, OH 44113 

MELODY J. STEWART, J.: 

{¶1} Defendant-appellant, Brandon Simmons, appeals from his conviction for 

felonious assault after fighting with victim, Daryl Steward. He complains that the trial 

court erred in denying his motion for acquittal because the evidence in support of his 

conviction was insufficient and against the manifest weight of the evidence because the 

state did not prove serious physical injury. Simmons requests that his conviction be 

vacated and the matter dismissed or, in the alternative, that a new trial be held on the 

charge of felonious assault. For the following reasons, we affirm. 
{¶2} Trial testimony established that Steward was attacked from behind while 

walking with acquaintance, Michael Brock, to Brock’s home. Steward testified that he 

was wrestled to the ground, punched repeatedly in the head, and then struck in the head 

with a brick. Steward’s assailant also took his cellular phone before leaving. Steward 

and Brock then proceeded to Brock’s home where Steward called his mother. He then 

rode around the neighborhood in an attempt to find his attacker before going to the 

hospital for treatment. 

{¶3} Officer Michelle Gricar of the Cleveland Police Department responded to 

the hospital to interview Steward and obtain his statement for a report. Detectives 

Gerald Sowul and Michael Shay prepared a photo array, and Steward and his mother went 

to the police station where he identified Simmons as his assailant. 

{¶4} Simmons was indicted and charged with aggravated robbery, theft, and two 

counts of felonious assault. After entering a plea of not guilty, he was tried by a jury, 

found guilty of one count of felonious assault, and sentenced to community control. 

{¶5} In his first assignment of error, Simmons contends that the state failed to 

prove the element of “serious physical injury,” and therefore, his conviction was based 

upon insufficient evidence and the trial court erred in denying his motion for acquittal. 

{¶6} When reviewing the sufficiency of the evidence to support a criminal 

conviction, an appellate court examines the evidence to determine whether such evidence, 

if believed, would convince the average mind of the defendant’s guilt beyond a 

reasonable doubt. The 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, 61 Ohio St.3d 

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. A verdict will not be 

disturbed based upon insufficient evidence unless it is apparent that reasonable minds 

could not reach the conclusion reached by the trier of fact. State v. Treesh, 90 Ohio St.3d 

460, 484, 739 N.E.2d 749 (2001); Jenks at 273. 

{¶7} Crim.R. 29 states, in pertinent part: “(A) The court on motion of a 

defendant or on its own motion, after the evidence on either side is closed, shall order the 

entry of a judgment of acquittal of one or more offenses charged in the indictment, 

information, or complaint, if the evidence is insufficient to sustain a conviction of such 

offense or offenses.” 

{¶8} The crime of felonious assault, defined by R.C. 2903.11(A)(1), states that 

“[n]o person shall knowingly * * * [c]ause serious physical harm to another * * *.” 

Serious physical harm is defined in R.C. 2901.01(E)(4) and (5) as “[a]ny physical harm * 

* * which involves some temporary, serious disfigurement [or] * * * that involves acute 

pain of such duration as to result in substantial suffering or that involves any degree of 

prolonged or intractable pain.” 

{¶9} In support of his argument, Simmons points out that (1) Steward did not 

immediately seek medical attention or call an ambulance, but instead set out to find his 

assailant, (2) the blood-stained shirt that Steward referred to in his testimony was not 

offered into evidence, (3) Steward testified that the punches that he had absorbed were 
“soft,” (4) Officer Gricar testified that Steward stated he did not want to go to the hospital 

and that his mother transported him at her insistence, and (5) the record did not contain 

any photographs of his injuries. 

{¶10} Serious physical harm is sufficiently established by evidence 

demonstrating that a victim required medical attention. State v. Huckabee, 8th Dist. No. 

67588, 1995 WL 628374 (Oct. 26, 1995). Moreover, “medical records [are] probative of 

the serious physical harm element of [felonious] assault.” State v. Hidvegi, 8th Dist. No. 

90014, 2008-Ohio-2662, 2008 WL 2257750, ¶ 19. 

{¶11} Steward testified that he was dizzy after being struck with a brick, that a 

staple was needed to close the wound to his head, and that his head still hurt at the time of 

trial. Brock testified that Steward’s t-shirt was bloody after the attack. Gricar and Shay 

testified that they observed the staple used to close the wound in the back of Steward’s 

head. Medical records entered into evidence indicate that Steward had sustained a 

laceration and multiple abrasions to his head and suffered from dizziness and a headache. 

{¶12} We find that the evidence sufficiently demonstrates that a temporary, 

serious disfigurement was inflicted upon Steward that resulted in prolonged pain, and that 

serious physical harm was established beyond a reasonable doubt. Simmons’s first 

assignment of error is not well taken and is overruled. 

{¶13} For his second assignment of error, Simmons asserts that the conviction 

was against the manifest weight of the evidence because the state failed to prove serious 

physical injury. 
{¶14} “The legal concepts of sufficiency of the evidence and weight of the 

evidence are both quantitatively and qualitatively different.” State v. Thompkins, 78 

Ohio St.3d 380, 678 N.E.2d 541 (1997), paragraph two of the syllabus. Sufficiency is a 

test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a 

question of law. Id. at 386. Weight of the evidence concerns “the inclination of the 

greater amount of credible evidence, offered in a trial, to support one side of the issue 

rather than the other.” Id. at 387. 

{¶15} The manifest weight of the evidence standard of review requires an 

appellate court 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. Thompkins at 

387. 

{¶16} Simmons does not independently argue that the verdict was against the 

manifest weight of the evidence, but instead relies upon his claim of insufficient evidence 

in support of this assignment of error. This court has held that this type of incorporation 

argument “does not satisfy an appellant’s App.R. 16(A)(7) obligation to give ‘reasons in 

support of the contentions, with citations to the authorities, statutes, and parts of the 
record on which appellant relies,’ nor does it satisfy an appellant’s App.R. 12(A)(2) 

obligation to separately argue each assignment of error.” State v. Thomas, 8th Dist. No. 

94443, 2011-Ohio-85, 2011 WL 208304, ¶ 2. Because Simmons has failed to argue the 

manifest weight of the evidence assignment of error, we summarily overrule it. 

{¶17} Judgment affirmed. 

It is ordered that appellee recover of appellant its 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 Cuyahoga 

County Court of Common Pleas 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. 

 

 

MELODY J. STEWART, JUDGE 

PATRICIA ANN BLACKMON, A.J., and 

EILEEN A. GALLAGHER, J., CONCUR