COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59449 STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : : and -vs- : : OPINION : ROBERT SKUBOVIOUS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT NOVEMBER 14, 1991 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. 241136 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones Thomas Callaghan Cuyahoga County Prosecutor 2628 Detroit Avenue By: James Valentine Cleveland, Ohio 4411 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - ANN McMANAMON, P.J.: Robert Skubovious timely appeals his conviction for grand theft of a motor vehicle in violation of R.C. 2913.02. In his sole assignment of error, Skubovious contests the manifest weight of the evidence. Upon review of the record, we affirm. In reviewing a challenge to the manifest weight of the evidence, this court must look at the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether "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. Martin (1983), 20 Ohio App. 3d 172, 175. Only in those cases where the evidence weighs heavily against conviction should a new trial be granted. Id. Further, we are mindful that the evaluation of witness credibility primarily lies with the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230. R.C. 2913.02 provides, in relevant part: "(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways: "(1) Without the consent of the owner or person authorized to give consent; "*** "(B) *** If the property stolen is a motor vehicle, as defined in section 4501.01 of the Revised Code, or the proceeds of a motor vehicle insurance - 2 - policy, a violation of this section is grand theft of a motor vehicle or grand theft of motor vehicle insurance proceeds, a felony of the third degree." Victor Fontaine testified that on the afternoon of June 27, 1989 he stopped at a Gastown on Memphis Avenue in Cleveland. He left his keys in the auto ignition with the engine running and went into the store to purchase soda and cigarettes. He emerged from the store approximately one minute later and observed that his auto had been driven into a fire hydrant across the street. According to Fontaine, he saw a man leaving the vehicle and closing the door. Fontaine ran after this man, grabbed him, took him to a nearby store and phoned the police. Fontaine identified the man as defendant Skubovious. On cross-examination, Fontaine admitted he initially lied to police when he identified the defendant as standing near the car before the theft. Patti Kozlowski lives in an apartment on Memphis Avenue and heard the auto as it crashed into the fire hydrant. Kozlowski observed a man who appeared to be leaving the auto after the crash. Kozlowski testified that she watched Fontaine grab this man as he walked away from the auto. According to Kozlowski, the man had curly brown hair and was wearing headphones. The defendant denied stealing the car and told the court he was walking home from a nearby shopping center when he passed the auto which had been run into the fire hydrant. Skubovious denied stealing the car and stated Fontaine simply grabbed him as he walked by the car. The defendant testified he never had brown, curly hair but admitted he was wearing headphones when - 3 - Fontaine apprehended him. Gladys Baker, the defendant's mother, told the court her son had access to a number of vehicles but was not interested in driving. In light of the trial testimony, we find the court reasonably could conclude the defendant stole Fontaine's auto and drove it into the fire hydrant. Accordingly, we overrule the assignment of error and the judgment of the trial court is affirmed. Judgment affirmed. - 4 - 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 Rules of Appellate Procedure. PATTON, J., SPELLACY, J., CONCUR PRESIDING JUDGE ANN McMANAMON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement 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. .