COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59121 STATE OF OHIO : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION DAVID D. ZAHN : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 17, 1991 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-240,077-B JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: STEPHANIE TUBBS JONES, Prosecutor LINDSAY M. JERRY, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellee: DANIEL S. SHIELDS Attorney at Law 2000 Standard Building Cleveland, Ohio 44113 - 1 - FRANCIS E. SWEENEY, J.: After a bench trial, defendant-appellant, David Zahn, was found guilty of one count of grand theft (R.C. 2913.02). Appel- lant now timely appeals his conviction, raising two assignments of error for our review. For the following reasons, we affirm the conviction of appellant. The pertinent testimony adduced at trial was as follows: William Kittenger testified that on or about May 23, 1989, he and Claude Pyle went to a pizza place on Lorain Avenue in Cleveland to meet appellant's co-defendant, Tom Peters. Appel- lant, David Zahn, was sitting in the pizza shop. Tom Peters gave Claude Pyle a piece of paper with a list of three kinds of car which Peters wanted them to steal for him. Kittenger, Pyle and appellant left the pizza shop together and got in appellant's car, a red Monte Carlo, to steal the cars. Appellant drove to West 130th and Lorain, where they spotted a Cutlass Ciera. Kittenger stole this car while appellant waited around the block. All three of them went back to the pizza shop, where they parked the car and reported in to Peters. Kittenger, Peters, Pyle and appellant went to an apartment above a bar where they had a discussion. Afterwards, Kittenger, Pyle and appellant went in appellant's car with appellant driving - 2 - to steal other cars on the list. Appellant dropped them off at West 117th, where, a short distance away, Kittenger and Pyle stole two Olds Delta 88 cars. Janice King testified her 1989 Delta 88 car was found stolen on or about May 24, 1989 from the area of West 116th Street and Headley Avenue. Detective Timothy Patton testified he arrested Kittenger and Pyle after receiving information about car thefts in the West Tech area. After taking a written statement from Kittenger and making a further investigation, appellant and Peters were arrested. Appellant and co-defendant Peters testified in their own defense. They denied all the charges against them. Based upon the above, the trier of fact found appellant guilty of one count of grand theft (R.C. 2913.02). Appellant now timely appeals, raising two assignments of error for our review. ASSIGNMENT OF ERROR I DEFENDANT WAS ENTITLED TO JUDGMENT OF ACQUIT- TAL OF GRAND THEFT MOTOR VEHICLE, AS THE STATE FAILED TO PRODUCE EVIDENCE SUFFICIENT TO CONVINCE A RATIONAL TRIER OF FACT BEYOND A REASONABLE DOUBT THAT DEFENDANT WAS ACTING IN COMPLICITY WITH WILLIAM KITTENGER; ONLY UN- CORROBORATED TESTIMONY OF AN ACCOMPLICE IMPLICATES DEFENDANT-APPELLANT AS CONSPIRING WITH THIS PERSON. - 3 - ASSIGNMENT OF ERROR II THE TRIAL COURT ERRED IN NOT ACQUITTING DEFENDANT-APPELLANT AS THE CONVICTION WAS NOT SUPPORTED BY SUFFICIENT PROBATIVE EVI- DENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant's first and second assignments of error contain similar issues of law and will be discussed jointly. Appellant contends the trial court erred in not granting appellant's motion for acquittal on the ground that the state failed to corroborate the testimony of an accomplice, Kittenger, as was required under the old R.C. 2923.03(D). Similarly, appellant argues his convic- tion was not supported by sufficient evidence and was against the manifest weight of the evidence. These arguments are without merit. In reviewing both weight and sufficiency of the evidence, the same test is applied. State v. Jenks (1991), 61 Ohio St. 3d 273. An appellate court's function is to determine if there was evidence which, if believed, would convince the average person of the accused's guilt beyond a reasonable doubt. Id.; State v. Eley (1978), 56 Ohio St. 2d 169, syllabus. The credibility of the testimony and the weight of the evidence are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230. The inquiry is, after viewing the evidence in the light most favorable to the prosecution, whether any reasonable trier of fact could have found the essen- tial elements of the crime proven beyond a reasonable doubt. - 4 - A court shall enter a judgment of acquittal only if the evidence is such that reasonable minds cannot find that each material element of a crime has been proven beyond reasonable doubt. State v. Bridgeman (1978), 55 Ohio St. 261. R.C. 2923.03(D) was amended effective September 17, 1986 and is to be applied to a defendant charged with an offense committed after that date. State v. Mullins (1986), 34 Ohio App. 3d 192. In this case, the alleged offense occurred on May 23, 1989. Thus, the new law applies. The amended 2923.03(D) does not require that an accomplice's testimony be corroborated by other evidence. State v. Larkin (Oct. 8, 1987), Cuyahoga App. No. 52779, 52780, unreported. Instead, R.C. 2923.03(D) requires the trial court to deliver a cautionary instruction to the jury with regard to the accomplice's testimony. In the present case, Kittenger testified that appellant was present when Peters handed him a list of cars to steal and that appellant drove his car with Kittenger and Pyle in it to steal the listed cars. Appellant then let Kittenger and Pyle out where, a short distance away, they stole Janice King's 1989 Delta 88 car. Based upon these facts, we conclude sufficient credible evidence exists for the trier of fact to conclude that appellant was guilty of grand theft (R.C. 2913.02). Thus, we cannot find that the verdicts are against the manifest weight of the evi- dence. The weight to be given the accomplice's testimony was a matter for the trier of fact. - 5 - Assignments of Error I and II are overruled. Judgment affirmed. 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. 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. SPELLACY, J. CONCURS KRUPANSKY, C.J. CONCURS IN JUDGMENT ONLY JUDGE FRANCIS E. SWEENEY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .