COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59451 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : DARYL BELL : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 21, 1991 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-225696A JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES CUYAHOGA COUNTY PROSECUTOR BY: EDWARD KRAUS ASSISTANT COUNTY PROSECUTOR The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: DAVID L. DOUGHTEN 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 -3- SPELLACY, J.: On May 6, 1988, defendant-appellant Daryl Bell ("appellant") was indicted for aggravated burglary, in violation of R.C. 2911.11, with two aggravated felony specifications. A bench trial commenced on September 23, 1988, and the trial court found appellant guilty of the lesser included offense of burglary, in violation of R.C. 2911.12, with the aggravated felony specifications. After the accidental destruction of the transcript, however, the trial court granted appellant's motion for a new trial. A second bench trial commenced on February 2, 1990, and the trial court again found appellant guilty of the lesser included offense of burglary, in violation of R.C. 2911.12, with the aggravated felony specifications. The trial court subsequently sentenced appellant to a term of eight to fifteen years. Appellant filed a timely appeal and raises the following assignment of error: THE CONVICTION OF BURGLARY IS AGAINST THE WEIGHT OF THE EVIDENCE. Appellant's assignment of error lacks merit. Pertinent testimony and evidence from the second trial revealed the following: Edward Keck owns a house which had been owned by his mother prior to her death. On the morning of February 29, 1988, Keck and his son, who lived in the house to keep it from becoming -4- vacant, were working on the house in preparation for putting it up for sale. Keck testified that several individuals were looking through rubbish he had placed on the curb, and that one of these individuals asked whether he could have an old television set Keck was throwing out. Keck also testified that, while he was standing on the curb, a car pulled up in front of the house and a passenger, whom Keck identified as the appellant, got out and began to aggressively ask whether the house was for sale and whether he could see the inside of the house. Keck stated that appellant left after he informed him that the house was not ready to be shown. Keck's son corroborated Keck's testimony. In the afternoon of February 29, 1988, approximately an hour after Keck and his son had left the house, Minnie Perkins, who lives next door, telephoned Keck and informed him that there had been a break-in. When Keck arrived, the police had one suspect, Jeffrey Jones, under arrest. Keck identified Jones as the individual who had asked about the television set. When Keck entered the house he found it in disarray, with some of his mother's possessions collected in several trash bags and copper tubing torn up in the basement. In addition, an upstairs window and a window in an outside door had been broken. Perkins testified that on the afternoon of February 29, 1988, she called the police after hearing glass breaking and seeing two people moving about in Keck's house. She went on to -5- state that she saw appellant, whom she had known for a long time, run from the yard at Keck's house, through her yard, and through two more yards until she lost sight of him. Perkins further stated that although appellant and his brother, Michael Bell, looked alike, she could distinguish between the two. She also testified that she saw the police chase and catch Jones. Pamela Brown, Perkins' daughter, lived with Perkins at the time of the incident and testified that while Perkins was speaking with the police at the front door of their house, she stood on the back porch and saw appellant, whom she has known all of her life, hiding under a neighbor's van several doors away. Jeff Jones, who pled guilty to burglary in connection with the incident, testified on the state's behalf and stated that he had been with appellant's brother, Michael Bell, with whom he worked, and another individual, on the morning of February 29, 1988, when he spoke with Keck about the television set. He further testified that later in the day he had been walking alone past Keck's house when he saw that the door was open and he decided to go in. Jones stated that while he was in the house he saw someone, about seven or eight feet away, who looked like appellant. Jones further stated that when the police arrived he panicked and tried to run. Michael Bell testified on appellant's behalf and stated that he and Jones were walking past Keck's house when Jones suggested they go inside the house to find out if anything was left. Bell further testified that although both he and Jones entered the -6- house, he only stayed a few minutes before leaving. Jones was still in the house when Bell left. Appellant testified that when he spoke with Keck on the morning of February 29, 1988, the driver of the car he was in had wanted to know whether the house was for sale and he had only wanted to know whether he could do some work for Keck. Appellant denied returning to the house. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. "A reviewing court may not reverse a judgment of conviction in a criminal case in a trial court, where the record shows that a verdict of guilty was returned by a jury on sufficient evidence and where no prejudicial error occurred in the actual trial of the case or in the instructions given the jury by the court." Id., paragraph two of the syllabus. When addressing whether a verdict is against the manifest weight of the evidence, the reviewing court reviews: "... 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." -7- State v. Martin (1983), 20 Ohio App. 3d 172, 175; see also State v. Davis (1988), 49 Ohio App. 3d 109, 113. After a thorough review of the testimony and evidence, we conclude that the trial court, as trier of fact, could properly find appellant guilty of burglary, in violation of R.C. 2911.12. Accordingly, appellant's assignment of error is not well taken. Judgment affirmed. -8- 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. DYKE, J., and HARPER, J., CONCUR LEO M. SPELLACY JUDGE 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. .