COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59370 : : STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JOURNAL ENTRY : AND ALPHONSO CALHOUN : OPINION : Defendant-Appellant : : : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 14, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Cuyahoga County Common Pleas Court Case No. CR-237104 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, Cuyahoga HYMAN FRIEDMAN, Cuyahoga County Prosecuting Attorney County Public Defender ANTHONY BONDRA, Assistant BEVERLY J. PYLE, Assistant Prosecuting Attorney Public Defender Justice Center, Courts Tower Marion Bldg., Room 307 1200 Ontario Street 1276 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 -2- KRUPANSKY, C.J.: Defendant was indicted by the Cuyahoga County Grand Jury one count of robbery, R.C. 2911.02, with aggravated felony specifications. After a jury trial defendant was found guilty. Defendant timely appeals his conviction citing two assignments of error. The relevant facts follow: At about 8:45 p.m., near closing time, defendant entered the menswear department of the Joseph Horne Company at Randall Park Mall. The store detective observed defendant select some men's suits, take them to another area, place them on the floor, remove the suits from their hangers and fold them. The detective then saw defendant walk over to where men's shirts were displayed, select two shirts, take them to the area where the folded suits were, and follow the same procedure as he had with the suits. The detective then observed defendant place all the merchandise under his arms beneath his long overcoat, which was draped over his shoulders, and exit the store. Once outside defendant was approached from the front and the rear by the store detective and the store security manager. Defendant attempted to flee. A scuffle ensued. Defendant was injured therein and was subdued. The North Randall police arrived at the scene shortly thereafter and arrested defendant. Since defendant's injuries were of such a nature that he required some medical treatment, the police officers then transported him to a hospital. Defendant was subsequently indicted for robbery, R.C. -3- 2911.02, with aggravated felony specifications. After a jury trial defendant was found guilty. He now appeals his conviction, citing two assignments of error. Defendant's first assignment of error follows: THE TRIAL COURT ERRED AND DENIED ALPHONSO CALHOUN HIS RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS WHEN HE WAS CONVICTED OF ROBBERY ON EVIDENCE WHICH WAS AS A MATTER OF LAW INSUFFICIENT TO SUPPORT THE CON- VICTION. This assignment of error lacks merit. Defendant argues the evidence was insufficient to convict him of robbery since the state proved neither that the defendant used force nor that defendant used force for the purpose to deprive the store of its property. Defendant's argument is unpersuasive. It should be noted from the wording of the assignment of error this is not a Crim. R. 29 argument based upon a motion dealing with the sufficiency of the evidence made at the close of the state's case. However, the evidence presented by the state could have as a matter of law sustained the test for sufficiency at the close of the state's case. The test for sufficiency of the evidence was stated by the court in State v. Martin (1983), 20 Ohio App. 3d 172, as follows: As to the claim of insufficient evidence, the test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It -4- raises a question of law, the resolution of which does not allow the court to weigh the evidence. Jackson v. Virginia (1979), 443 U.S. 307, 319. R.C. 2911.02, robbery, states as follows: (A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall use or threaten the immediate use of force against another. (B) Whoever violates this section is guilty of robbery, an aggravated felony of the second degree. (Emphasis added.) R.C. 2901.01(A) provides the following definition of "force": (A) "Force" means any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing. In State v. Carter (1985), 29 Ohio App. 3d 148, the court stated as follows: The type of force envisioned by the legislature in enacting R.C. 2911.02 is that which poses actual or potential harm to a person. The court must therefore examine the evidence relevant to the elements of the offense of robbery. In the case sub judice, the state produced two witnesses, both of whom testified to the following facts, viz.: (1) defendant purposefully picked out merchandise, placed it under his arms so that it was concealed under his coat and left the store with it; (2) the security manager identified himself to defendant; (3) the defendant dropped the merchandise and pushed the security manager hard enough to cause him to fall and then attempted to run. Construing the above evidence in a light most favorable to the -5- prosecution as required by Martin, supra, there was therefore sufficient evidence in the case sub judice to support all the elements of the crime of robbery, including the element of force. State v. Carter, supra. Defendant also argues the elements of robbery do not "coin- cide" in that the use of force occurred after the taking of the clothes. At trial, defendant admitted several times he took the store's clothing with the purpose to deprive the store of its property. However, he testified he would not ordinarily have used force to accomplish this goal, but was merely forced to defend himself in the altercation outside the store. He testified he dropped the clothes outside the store before he defended himself in the altercation. This testimony he argues supports his claim the state presented insufficient evidence to support his conviction for robbery. This is a specious argument. The testimony of the state's witness concerning the manner in which defendant was carrying the clothing is relevant to this issue. Mr. Lee, store security manager, testified as follows: Q. And in what manner was he carrying it, if you know. A. Well, he had his coat draped. I don't know which shoulder it was, but it was draped over his shoulder and the merchandise was underneath it. From the foregoing testimony, it can be inferred defendant had the merchandise pinned under his arms and concealed by his coat when he pushed the security manager to the ground thereby dropping the clothes in his attempt to escape. This inference is -6- supported later by defendant's own testimony, wherein he stated the following: Q. Okay. And how did you arrange the stolen goods here (indicating)? A. Well, as I was taking the stuff, I was taking it over to this area back over here, (indicating) by the door. Q. By the cubicle? A. I was folding it, because I had formulated in my mind I would put some under this arm and some under this arm while I have my coat on and put my hands in the pockets to hold them firmly in place and go on out the door like that. And when I left, that's how I went out the store. * * * * Q. Now, when you put your hands up to your face, what happened? A. The clothes fell on the ground from under my coat. (Emphasis added.) Thus, it can be construed defendant dropped the merchandise when he used his arms to push the security manager away in his attempt to flee because of the way the clothes were placed under his arms not from any lack of intent to commit a theft or robbery. The trial court as a matter of law construing the evidence in a light most favorable to the prosecution could have found all the essential elements of the offense of robbery beyond a reasonable doubt. Therefore, there was sufficient evidence to support defendant's conviction beyond a reasonable doubt. State v. Martin, supra. -7- Accordingly, defendant's first assignment of error is over- ruled. Defendant's second assignment of error follows: THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. This assignment of error also lacks merit. Defendant argues the evidence presented by the state was against the manifest weight of the evidence and could not sustain his conviction based on the guidelines set forth in State v. Mattison (1985), 23 Ohio App. 3d 10, because the testimony of the state's witnesses was not credible for the following reasons: (1) it was not normal store practice to apprehend shoplifters outside the store; (2) the witnesses made no written notes or reports about the incident; and (3) defen- dant's injuries were extensive while the witnesses had none. Defendant cites Mattison, supra, to support his argument that the testimony of the state's witnesses was not credible. In Mattison, this court held: In determining whether the decision of a trial court is against the manifest weight of the evidence, the following factors are guidelines to be taken into account by the reviewing court: (1) The reviewing court is not required to accept as true the incredible; (2) whether the evidence is uncontradicted; (3) whether a witness was impeached; (4) what was not proved; (5) the certainty of the evidence; -8- (6) the reliability of the evidence; (7) whether a witness' testimony is self- serving; (8) whether the evidence is vague, uncertain, conflicting or fragmentary. The court in Mattison counseled that these eight factors were "merely guidelines to be taken into account when weighing evidence. They are not hard and fast rules which must be fol- lowed." Id. In State v. Martin (1983), 20 Ohio App. 3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated as follows: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.*** See Tibbs v. Florida (1982), 4547 U.S. 31, 38, 42. Martin, supra, at 175. Moreover, it must be stressed again that the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass, supra. A reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169. -9- In the case sub judice, the state's witnesses both testified to the following facts: (1) they observed defendant place the store's clothing under his arms so that it was concealed by his overcoat; (2) defendant was near a store exit while he was pre- paring the clothing for concealment and concealing it; (3) when defendant exited the store defendant was approached from the front and the rear by store security personnel; (4) when the store security manager approached defendant from the front the security manager identified himself; (5) defendant thereupon dropped the clothing while pushing the store security manager in attempting to flee; (6) defendant tripped over the security manager and the clothing, falling to the concrete pavement sustaining injuries; (7) the store detective grabbed defendant by the pants as defendant attempted to get to his feet; (8) the men wrestled during which time defendant went down to the pavement again; (9) both men were then able to subdue the defendant; (10) reports were given to the police and the store office; and (11) the circumstances of the crime were such that both witnesses remembered the incident and the defendant. Defendant took the stand in his own defense. He testified that he went to the store specifically to steal some clothing. On direct examination defendant stated the following in answer to a question propounded by his own counsel: Q. All right. You intended to steal the things that you took out of the store? A. Yes. -10- He testified the store security manager did not identify himself. Defendant also testified he was not attempting to flee, but merely to get away from the men whom he alleged attacked him once he was outside the store. However, it is well within the province of the jury to choose to believe the testimony offered by the state and reject that of defendant. The jury could properly find the evidence indicated defendant used force against the store security per- sonnel in his attempt to flee immediately after such theft offense in order to complete the robbery in violation of R.C. 2911.02. This is a classic case of robbery wherein the defendant steals and immediately thereafter uses force to perfect his escape and in the process drops what he has stolen. Thus, the factors in Mattison, supra, are met in the case sub judice. The state presented reliable credible evidence of defen- dant's guilt and this court declines defendant's request to substitute its own judgment concerning the credibility of the witnesses and the weight to be given to their testimony. In the case sub judice, therefore, this court cannot say that on the basis of the evidence the jury "clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." Martin, supra, at 175. Therefore, the verdict was not against the manifest weight of the evidence. Accordingly, defendant's second assignment of error is overruled. -11- 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 Common Pleas 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 Rule of Appellate Procedure. FRANCIS E. SWEENEY, J., and PATRICIA A. BLACKMON, J., CONCUR ________________________________ CHIEF JUSTICE BLANCHE KRUPANSKY 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .