COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59528 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : ROBERT MATHEWS : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-239060 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: NOVEMBER 21, 1991 APPEARANCES: FOR PLAINTIFF-APPELLEE: STEPHANIE TUBBS JONES CUYAHOGA COUNTY PROSECUTOR By: MARK FELLENBAUM ASSISTANT COUNTY PROSECUTOR THE JUSTICE CENTER 1200 ONTARIO CLEVELAND, OHIO 44113 FOR DEFENDANT-APPELLANT: SERGIO DiGERONIMO 1370 ONTARIO STREET, SUITE 2000 CLEVELAND, OHIO 44113 -2- SPELLACY, J.: On May 30, 1989, defendant-appellant Robert Mathews ("appellant") was indicted by the Cuyahoga County Grand Jury for one count of Robbery, in violation of R.C. 2911.02, with violence and aggravated felony specifications; one count of Breaking and Entering, in violation of R.C. 2911.13, with violence specifica- tions; one count of Possession of Criminal Tools, in violation of R.C. 2923.24, with violence specifications; one count of Resist- ing Arrest, in violation of R.C. 2921.33; and one count of Assault, in violation of 2903.13. At his arraignment on June 13, 1989, appellant pleaded not guilty to the charges set forth in his indictment. On February 7, 1990, appellant's jury trial commenced. The first witness to testify for the State was James Frank Zakos. James Zakos testified that on April 27, 1989, he was at the Little Bar and Grill on Frankfort Avenue, in the City of Cleveland, Ohio. At approximately 1:30 A.M., he and a friend left the tavern and walked toward his father's 1985 Caprice station wagon. When he approached the car, he noticed that there was a little puncture hole in the driver's door just below the key lock. James Zakos also noticed a note on his windshield which he put in his pocket. James Zakos read the note the next day and learned that somebody had tried to break into his father's car. James Zakos stated that appellant had no permission to be in control of the automobile. James Zakos' father, Ronald Zakos, also testified -3- that appellant no permission to be in possession of his car on April 27, 1989. The State also presented the testimony of Detective Robert Beck from the Spyglass Detail of the Cleveland Police Department. Detective Beck testified that on April 27, 1989, at approximately 10:30 P.M., he and four other detectives were patrolling in two unmarked cars in the areas of West 3rd Street, West 6th Street, West 9th Street and the warehouse district. They were patrolling these areas because there had been several auto thefts occurring at that time. During his surveillance, Detective Beck observed appellant operating a 1979 Ford Fairmont with Edward Lee and Michael King in the vehicle. The Ford Fairmont was driving very slowly and stopping next to several General Motors cars that were parked. The detectives maintained their surveillance of appellant and the other males and observed them drive into a parking lot and stop the automobile. Detective Beck then observed appellant exit his car and approach two General Motors vehicles. He tried to open the car doors but they were locked. Appellant then returned to the Ford Fairmont and, along with Edward Lee and Michael King, drove slowly towards a parking lot located on Frankfort Avenue. Eventually, they parked their vehicle next to a station wagon. Immediately thereafter, appellant and Michael King got out of the Ford Fairmont while Edward Lee sat in the car with the engine running. Appellant attempted to open the car doors of two -4- automobiles but they were locked. Eventually, he went to the rear of the automobiles and met with Michael King. Appellant then removed a screwdriver from underneath his tee shirt and handed it to Michael King. Michael King took the screwdriver, went to the driver's door of the station wagon and inserted it into the key lock. Detective Beck further testified that at this point, he and the other detectives moved in. Detective Beck approached appellant but he kept on backing away saying that he did not do anything. Appellant failed to follow Detective Beck's instruc- tions, thus Detective Beck attempted to grab him by the arm. Appellant pulled his arm away and swung and punched Detective Beck in the chest. Detective Beck wrestled with appellant, and with the help of Detective Evans, he was able to handcuff him. The next witness to testify for the State was Detective William Evans, also from the Spyglass Detail of the Cleveland Police Department. In his testimony, Detective Evans basically corroborated the testimony of Detective Beck. At the close of the State's case-in-chief, appellant moved for a judgment of acquittal pursuant to Crim. R. 29. The trial court overruled said motion as to the first four counts. However, the trial court granted appellant's motion for judgment of acquittal as to the assault charge. The first witness to testify on behalf of appellant was Gary Puzin, an attorney with the Public Defender's Office. Gary Puzin testified that in late April, 1989 or early May, 1989, appellant -5- came to him about a complaint of being physically hit while being handcuffed. Appellant then testified on his own behalf. Appellant claimed that on April 27, 1989, he, Edward Lee and Michael King went to a bar on Frankfort Avenue called Numbers. Apparently, Edward Lee, the driver of a 1979 Ford Fairmont, was not familiar with the location of the bar and was driving down the wrong streets in search of it. Eventually, they parked in the Numbers' parking lot on Frankfort Avenue. Appellant stated that while and Edward Lee sat in the car talking, Michael King got out in order to urinate. The next thing he knew, the car was surrounded by three men with guns, who physically pulled them out of the car. Appellant denied that he resisted the officers or that he took a swing at anybody. He claimed that while he was handcuffed, he was struck in the face with a handgun and roughed up. At the close of all the evidence, appellant renewed his Crim. R. 29 motion for judgment of acquittal. The trial court overruled appellant's motion. After deliberations, the jury found appellant not guilty of robbery, but it did find him guilty of the lesser included offense of attempted theft. The jury also found appellant guilty of breaking and entering, and possession of criminal tools. Appellant was found not guilty of resisting arrest. Appellant filed a timely notice of appeal and subsequently raised the following assignments of error: -6- I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT-APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO CRIM. R. 29 ON THE POSSESSION OF THE CRIMINAL TOOLS COUNT WHERE THE EVIDENCE IS INSUFFICIENT TO SUSTAIN A CONVICTION OF SUCH OFFENSE. II. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In his first assignment of error, appellant argues that the trial court should have granted his Crim. R. 29 motion for judgment of acquittal as to the charge of possession of criminal tools. Crim. R. 29(A) states as follows: (A) Motion for judgment of acquittal. The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case. In State v. Bridgeman (1978), 55 Ohio St. 2d 261, the Ohio Supreme Court set forth the standard of determining whether a motion for judgment of acquittal is properly denied by holding that: Pursuant to Crim. R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. Id. at syllabus. -7- A motion for judgment of acquittal pursuant to Crim. R. 29 should be granted only where reasonable minds could not fail to find reasonable doubt. State v. Apanovitch (1987), 33 Ohio St. 3d 19, 23. In the instant case, appellant was charged with possession of criminal tools, in violation of R.C. 2923.24, which provides in relevant part: (A) No person shall possess or have under his control any substance, device, instru- ment, or article, with purpose to use it criminally. The criminal tool in question in this case was a screwdriver. Thus, in applying R.C. 2923.24, it is clear that the State had the burden of proving that appellant was in possession of a screwdriver with the purpose to use it criminally. At trial, Detective Beck testified that he observed appellant take a screwdriver from underneath his tee shirt, and hand it to Michael King. Michael King took the screwdriver and inserted it into the key lock on the driver's door of a parked station wagon. Detective Beck stated that screwdrivers are commonly used in auto thefts, in order to gain access to the car, to peel the steering column off, and to start the engine. Upon a review of the record, we find that reasonable minds can reach different conclusions as to whether all the elements of possession of criminal tools have been proved beyond a reasonable doubt. Accordingly, we conclude that the trial court did not err -8- in denying appellant's Crim. R. 29 motion for judgment of acquittal as to the charge of possession of criminal tools. Appellant's first assignment of error is without merit and is overruled. Appellant argues in his second assignment of error that the jury's verdict of guilty as to the charge of criminal tools was against the manifest weight of the evidence. When called upon to do so, this court has the duty to determine whether a conviction was contrary to the manifest weight of the evidence. State, ex rel. Squire v. Cleveland (1948), 150 Ohio St. 303, paragraph eight of the syllabus. A reviewing court 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. State v. Martin (1983), 20 Ohio App. 3d 172, 175. The weight of the evidence and credibility of witnesses are primarily an issue for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. In the instant case, appellant's testimony conflicted with the testimonies offered by the State. However, the jury was entitled to believe or not to believe the testimonies of the State's witnesses and/or the defense's witnesses. State v. Antill (1964), 176 Ohio St. 61. -9- Upon a careful review of the entire record, we cannot conclude that the jury lost its way and created such a manifest miscarriage of justice that appellant's conviction must be reversed and a new trial ordered. It is clear that the jury chose to believe the testimonies of Detectives Beck and Evans and chose not to believe appellant's testimony. We find that there was substantial competent and credible evidence to support the jury's verdict of guilty of possession of criminal tools. Accordingly, we conclude that appellant's conviction for possession of criminal tools was not against the manifest weight of the evidence. Appellant's second assignment of error is not well taken and is overruled. Trial judgment is affirmed. -10- 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 PATTON, 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 to run. .