COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59579 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION TIMOTHY HERRING : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 7, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-244337 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. DAVID L. DOUGHTEN, ESQ. CUYAHOGA COUNTY PROSECUTOR 2000 Standard Building BY: STEPHEN L. MILES, ESQ. 1370 Ontario Street ASSISTANT COUNTY PROSECUTOR Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - DYKE, J.: Appellant, Timothy Herring, was convicted of aggravated robbery, R.C. 2911.01, with firearm and prior aggravated felony specifications, and was sentenced to twelve to twenty-five years and an initial three-year term of actual incarceration for the firearm. On appeal appellant assigns the following error for review: THE CONVICTION IS AGAINST THE [MANIFEST] WEIGHT OF THE EVIDENCE. "A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt." State v. Eley (1978), 56 Ohio St. 2d 169, (at syllabus). The alleged victim, Frederico Phillips, testified as follows: on July 1, 1989 appellant drove him to a money exchange to cash Phillips' check so that he could pay appellant twenty dollars he owed. Phillips sat in the front passenger seat and a friend of appellant's named John sat in the back. After Phillips cashed his check and paid appellant he agreed to ride along to appellant's job but appellant drove to "the flats" (an area near downtown Cleveland). After appellant parked he put a black bag in the trunk, went to the back of the building, returned and stood on the passenger side of the car, said that he had to wait a minute and then punched Phillips in the jaw. Appellant said that he knew Phillips had more money than that and pulled out a - 2 - gun from behind his back, pointed it at him and said that he was going to shoot him in the neck. Phillips told appellant that he had no more money but appellant told him to shut up and went through Phillips' pockets, taking his identification and money. Phillips snatched the gun, appellant ran and Phillips shot (but not at appellant) and asked appellant to stop and bring his money back. John laughed and left. Phillips disabled the car by switching wires under the hood and then walked toward Public Square to tell the police. When Phillips saw a security guard he told him he had been robbed, but had got the gun and had it in his jacket. The guard had him give him the jacket and the guard took the gun before calling the police. Phillips gave the police a statement in which he said that he borrowed from another person and appellant paid the other person with what he thought were drugs. Appellant testified as follows: he loaned Phillips twenty dollars and Phillips insisted that they go to a money exchange downtown to cash his check. After the check was cashed Phillips suggested that they go to the flats. Phillips got out, went around the building and returned to the passenger seat. Appellant asked Phillips if he was "straight" but Phillips didn't answer and pulled out a gun. Appellant reached for it, Phillips cocked the trigger and told appellant to get out of the car. Phillips got out and told appellant to come around to the passenger side and give him the keys. Phillips snatched - 3 - appellant's watch and appellant ran. Phillips fired the gun as appellant ran, climbed a fence and cut his hand. Appellant called the police but did not press charges because he was on parole and he was not supposed to be around people with guns. John and the security guard did not testify. Appellant argues that Phillips' testimony was not believable and contends that "if [a reviewing court] disagrees with the jury's resolution of the conflicting testimony" it can function as a "thirteenth juror" and order a new trial. On the contrary, an appellate court is not a thirteenth juror. State v. Tyler (1990), 50 Ohio St. 3d 24, 33. "It is the minds of the jurors and not the minds of the judges of an appellate court that are to be convinced." State v. Petro (1947), 148 Ohio St. 473, 501. Jurors resolve questions of fact, appellate courts determine questions of law. Here the question of law presented is whether or not the verdict is against the manifest weight of the evidence. In considering the claim that the conviction was against the manifest weight of the evidence ... [t]he 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weights heavily against the conviction. State v. Martin (1983), 20 Ohio App. 3d 172 (at paragraph three of the syllabus). - 4 - This court has relied on guidelines to assist in the resolution of this question. 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; 6. The reliability of the evidence; 7. Whether a witness' testimony is self-serving. 8. Whether the evidence is vague, uncertain, conflicting or fragmentary. State v. Mattison (1985), 23 Ohio App. 3d 10 (at syllabus). Appellant argued that Phillips' testimony is incredible because he contended that appellant robbed him while on parole, in front of a witness and for a small amount of money. The witness ("John") did not testify. It is not unheard of for crimes to be committed by persons on parole who net very little. Appellant insists that Phillips' statement did not include the fact that the debt transaction had involved cocaine and that Phillips admitted that he first made that accusation at trial. On cross-examination Phillips said that he never told the police cocaine was involved (Tr. 26-28) but on re-direct examination he testified that one of the questions asked by the police had been - 5 - "What did you owe the money to [appellant] for?" and he had replied "I borrowed from another person, and Tim paid him back. I think it was drugs." (Tr. 42.) On cross-examination he had been asked about telling the police about "cocaine" but he was not asked if he had previously mentioned "drugs." In contrast, appellant's claim that he did not press charges against Phillips because while on parole he was not to associate with people with guns was patently incredible. Phillips' testimony was consistent and logical. The verdict was not against the manifest weight of the evidence. Judgment 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. NAHRA, J. AND HARPER, J. CONCUR. PRESIDING JUDGE ANN DYKE 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .