COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59479 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : AARON HIGGENS : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 27, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. 237680. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor George J. Sadd Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Everett Chandler, Esq. 815 Superior Avenue, #202 Cleveland, Ohio 44114 -2- SWEENEY, JAMES D., J.: Appellant Aaron Higgens appeals his conviction for aggravated robbery in violation of R.C. 2911.01, case number 237680. Appellant was given a sentence of ten to twenty-five years incarceration to run concurrent with his sentence on case number 236127. Case number 236127 is not the subject of this appeal. On March 15, 1989, Gary Bennett was on his way home from work. At approximately 12:30 a.m., he stopped on the corner of Shaw and Hayden Roads to use the telephone. While he was still seated in the car, but with the door open and one foot out, he was approached by a man who requested a light. When Mr. Bennett responded that he did not have a light, the man, later identified as Joe Thornton, drew a gun. At that point, two other men entered the rear seat of the vehicle. The appellant removed Mr. Bennett's watch from his wrist. Cory Dorsey, also in the rear seat, asked the victim for his money, and subsequently removed approximately four dollars from the victim's pocket. Thornton ordered Mr. Bennett out of the car, and proceeded to drive the car away from the scene. Mr. Bennett ran across the street to a Sunoco gasoline station where the police were telephoned. Mr. Bennett testified that the gun was gray or silver; that it was a revolver; that the whole incident took about five minutes; that there was sufficient light from within the car to see; and that he saw the appellant clearly. -3- The next three witnesses were police officers involved with the investigation of this crime. Officer Richard Longstreet of the Cleveland Police Department was involved in the actual location of Mr. Bennett's stolen car. At the time the car was stopped, Cory Dorsey was driving and appellant was a passenger. Officer Jack Bornfeld, also of the Cleveland Police Department, testified as to his interview with both appellant and Dorsey. Appellant imparted at least two different renditions of the evening's events, and Dorsey's version was yet again different. Both appellant and Dorsey denied any knowledge of, or participation in, the robbery. Officer Bornfeld was also present when Mr. Bennett identified appellant as one of the perpetrators in a lineup conducted on the evening of March 15, 1989. Officer Gordon Metcalfe of the East Cleveland Police Department presented nine photographs to Mr. Bennett on March 20, 1989. Amongst these nine photographs were pictures of Thornton Dorsey and appellant, which were quickly identified by the victim. The appellant presents two assignments of error for review. Appellant's first assignment of error. I THE COURT ERRED IN NOT GRANTING THE MOTION TO DISMISS FOR WANT OF SPEEDY TRIAL ON BEHALF OF APPELLANT. The appellant had two pending cases at the trial court: case number 237680 for aggravated robbery, which is the subject of this appeal; and case number 236127 for receiving stolen -4- property and possession of criminal tools, which is not under appeal. In case number 236127, a motion to dismiss for lack of a speedy trial was filed on August 10, 1989. The motion had both trial court case numbers typed on its face, but case number 237680 was clearly scratched out. In spite of this, the motion was copied and placed in the file on case number 237680, and recorded on the docket. There is no direct evidence as to who was responsible for the case number being obliterated. However, at trial on case number 237680, appellant's counsel stated: "There is another case that is pending. As the Court is aware, I did file a motion to have the defendant discharged for lack of a speedy trial." (T. 232). From this statement it is apparent that the motion was filed only on case number 236127. Since the motion was never filed on the case sub judice, there is no error for this court to review. Even if this court were to consider the issue of whether or not the appellant received a speedy trial pursuant to R.C. 2945.71, 2945.72, and 2945.73, under the plain error doctrine, we would be required to uphold the trial court's actions. See State v. Ladd (1978), 56 Ohio St. 2d 197. Appellant's first assignment of error is overruled. Appellant's second assignment of error. II THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. -5- As recently stated by this court in State v. Clark (November 14, 1991), Cuyahoga App. No. 59427, unreported, the test for determining manifest weight was set forth in State v. Thompson and Malone (July 18, 1991), Cuyahoga App. Nos. 58803 and 58834, unreported. The Thompson and Malone decision held: The scope of review to be used where a party alleges the judgment of the trial court is against the manifest weight of the evidence was recently stated by this court in State v. Scott (Mar. 23, 1989), Cuyahoga App. No. 55114, unreported, at p. 7-8. The primary task of weighing evidence and judging the credibility of witnesses is left to the trier of fact, in this case the jury. State v. DeHass (1967), 10 Ohio St. 2d 230, at syllabus number 1. Therefore, a reversal of a judgment based on manifest weight of the evidence will only be done in exceptional cases. State v. Woods (1985), 25 Ohio App. 3d 35. A reviewing court will not reverse where there is substantial, competent and credible evidence supporting the criminal conviction. State v. Eley (1978), 56 Ohio St. 2d 169, syllabus. In the case at bar, the jury not only heard testimony from the victim, but heard evidence from three police officers as to the scope of their respective investigations as well. This testimony included the fact that the victim unhesitatingly identified appellant in both a lineup and in a photo array. The record demonstrates competent, credible evidence which, if believed would support a finding of guilt. Appellant's second assignment of error is overruled. Judgment of the trial court is affirmed. -6- 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. ANN MCMANAMON, P.J., and JERRY HAYES*, J., CONCUR. JAMES D. SWEENEY JUDGE *Judge Jerry Hayes, Domestic Relations Court, Portage County, sitting by assignment. 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. .