COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59585 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION BELINDA HARRIS : : Defendant-appellant : : DATE OF ANNOUNCEMENT : NOVEMBER 27, 1991 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-246,362 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES HYMAN FRIEDMAN Cuyahoga County Prosecutor Cuyahoga County Public Defender The Justice Center BETTY HARVEY 1200 Ontario Street Assistant Public Defender Cleveland, OH 44113 The Marion Bldg., Rm. 411 1276 Wesst Third Street Cleveland, OH 44113-1569 - 2 - PATTON, J., Defendant-appellant Belinda Harris ("appellant") appeals from her conviction of one count of aggravated robbery (R.C. 2911.01) which was rendered after a bench trial. Appellant challenges her conviction as being against the manifest weight of the evidence. For the reasons that follow, appellant's conviction is affirmed. The victim, Pamela Billups, ("victim") testified that she and one Ronald Bennett ("Bennett") were driving through a high drug traffic area at approximately 1:15 a.m. the morning of November 8, 1989. The victim testified she was driving Bennett's vehicle. The victim stated that she was approached by a woman later identified as appellant. The victim averred that appellant, armed with a gun, approached the car and demanded money. When the victim refused her demand, appellant cocked the trigger of the gun and demanded money a second time. The victim, in response, handed over $200 in cash which she had with her. Appellant then fled into an apartment building. Bennett began chase as the victim turned the car around. The victim then followed Bennett into the apartment building because she feared for his safety. As she entered the building, the victim saw Bennett inquiring of a resident if a "girl" just ran through the apartment. The response was that the girl ran out the back door. - 3 - The victim then left the apartment building and called the police. Shortly thereafter, Detective Richard Gugliotta ("Det. Gugliotta") of the Cleveland Police Department, along with his partner, arrived at the scene. Det. Gugliotta's testimony corroborated that of the victim's wherein he stated he walked Bennett up to the apartment where Bennett saw appellant enter just after the robbery. A male later identified as Lawson Irby ("Irby") answered the door. Det. Gugliotta entered and was given permission to inspect the premises. Irby told the police that a woman known as Tootie (appellant's nickname) just ran out the back door. However, two females, appellant and Irby's sister Darlene, entered the kitchen where Det. Gugliotta was standing. Bennett was then brought into the kitchen and positively identified appellant as the victim's assailant. The victim was then brought into the apartment separately from Bennett and she positively identified appellant as her assailant. Appellant was then arrested. Appellant testified in her own behalf. She denied robbing the victim. She stated she approached the victim's vehicle for the purpose of conducting a drug transaction. Allegedly, the victim wished to buy a rock of crack cocaine but instead got a "dummy". A dummy is an artificial substance which is not real - 4 - cocaine but is sold on the streets as a scam. Appellant stated she supported her drug habit by selling drugs and dummies. Appellant's version of events revealed that the victim became angered when she was sold a dummy and Bennett then chased appellant into the apartment building. Appellant admitted to prior convictions for welfare fraud and possession of drugs. She also stated she is a member of a "dope house" located in the apartment where she was arrested. The defense also presented the testimony of Petite Biggers ("Biggers") and Jeffrey Alford ("Alford"). Both men testified that the area was indeed a "dummy" area where real drugs were no longer sold. Bernice Blackwell ("Blackwell"), appellant's mother, testified that her daughter is intelligent but has a drug problem. Blackwell also stated her daughter had never been involved in a violent crime. I. Appellant argues the guidelines set forth in State v. Mattison (1985), 23 Ohio App. 3d 10, were not met since the victim's testimony was uncertain, unreliable and conflicting. Specifically, appellant contends that her testimony and that of her witnesses, Biggers, Irby and Alford were more reliable than the victim's testimony. Appellant also argues that the victim's statement to the police shortly after the robbery differed - 5 - dramatically from her trial testimony and should therefore not be believed. In Mattison, supra, this court held: 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. The court in Mattison counseled that these eight factors were "merely guidelines to be taken into account when weighing evidence. They are not hard and fast rules which must be followed." Mattison, supra, at 14. Furthermore, a reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169. In State v. Martin (1983), 20 Ohio App. 3d 172, the court set forth the test to be utilized when - 6 - addressing the issues of manifest weight of the evidence. The Martin court stated as follows: *** The 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. *** See, Tibbs v. Florida (1982), 457 U.S.31, 38, 42. Martin, supra, at 175. Moreover, the weight of the evidence and the credibility of the victim, and all the other witnesses, including appellant, were primarily for the judge, the trier of fact, in this case. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. Significantly, we take note this case was tried to the bench and not a jury. A presumption arises in bench trials that the judge considers "*** only the relevant, material and competent evidence in arriving at a judgment, unless the contrary affirmatively appears from the record. [citation omitted]" State v. Eubank (1979), 60 Ohio St. 2d 183, 187. Therefore, we give weight to the fact this case was tried to the court rather than a jury and presume the judge considered only relevant, competent and material evidence in arriving at his decision. State v. Philpot (Feb. 22, 1990), Cuyahoga App. No. 56596, unreported, at 11. The record discloses that the victim's testimony was corroborated by the testimony of Det. Gugliotta. - 7 - The victim's statement to police that she got out of her vehicle and gave appellant the money she demanded after appellant forced her to open the car door significantly conflicted with her trial testimony wherein she stated she slipped the money through a crack in the window. This, standing alone, does not require reversal. Defense counsel attempted to impeach her by having the conflicting portion read into the record, hence, allowing the judge to use this in his deliberation. Although the appellant's testimony differed from the victim's and the victim's testimony was partially corrob- orated by appellant's friends, the judge was in the best position to assess their credibility. Because the conviction turns on credibility and we find the evidence is not against the manifest weight of the evidence, we defer to the trial judge's findings and affirm appellant's conviction. 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 Court of Common Pleas 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. SPELLACY, J., CONCUR. JUDGE JOHN T. PATTON 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. .