COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59695 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION CURTIS McCORD, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 6, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-246,758 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Ruth J. Hudson HUDSON AND HUDSON 1700 Terminal Tower Cleveland, Ohio 44113 -2- NAHRA, J.: Curtis McCord appeals his conviction of aggravated robbery. For the reasons set forth, we affirm. John White testified that on May 12, 1989, he was speaking with someone on the street while holding a one-dollar bill in his hand. White stated that someone wearing a Celtics jacket, later identified as Reginald Stearns, grabbed the dollar from White's hand. Stearns walked away from White with his three friends, including appellant, who was wearing a black fur hat. White stated that he followed the group and asked for his dollar back. Stearns turned around and came back toward White. White thought Stearns looked threatening, and ran away. Appellant ran after White. White stated that appellant and Stearns both grabbed him, and that appellant took him by the collar, went through his pockets, and asked him for money. Appellant and Stearns then beat White, who suffered a fracture of a facial bone and required surgery. Shortly after the beating, a police car came by. White reported that he had been beaten by a group of four, and that they had just left. Police officer Hall testified that White's face was bleeding and that Hall called EMS. The police placed White in the back of the cruiser. Following White's directions, they drove around the corner. They saw and stopped a group White identified as his assailants, including one wearing a Celtics jacket and one wearing a black fur hat. -3- According to Hall, appellant immediately stated that he did not do anything to the old man, even though John White was not visible in the police car. A search revealed a crumpled dollar bill in Stearns' possession. Hall first stated that appellant had bloody black leather gloves and that Stearns had blood on his hands. After reviewing his report of the incident, he stated that Stearns had the gloves and McCord had bloody hands. All four men testified that White came up to them to buy drugs, and followed them after they told him to go away. Stearns testified that White reached into his coat as if to pull out a weapon, and that Stearns hit him out of fear. Stearns admitted that White had no weapon. The other three confirmed that Stearns started the fight. One did not know if White threw any punches. Appellant stated that he was not afraid of White reaching into his pocket, and got into the fight because White hit him first. Appellant also stated that he followed White across the street when White was backing away. Appellant was arrested and charged with aggravated robbery. He and his codefendant, Reginald Stearns, waived a jury trial. Appellant was found guilty of the lesser included offense of robbery, pursuant to R.C. 2911.02. He brought this timely appeal. I. Appellant's first assignment of error reads as follows: THE EVIDENCE PRESENTED BY THE STATE WAS INSUFFICIENT TO SUPPORT A CONVICTION FOR ROBBERY, AND THEREFORE, THE -4- TRIAL COURT ERRED IN DENYING APPELLANT'S RULE 29 MOTION FOR JUDGMENT OF ACQUITTAL. The Ohio Supreme Court recently set forth the legal standard for sufficiency of evidence as follows: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St. 3d 259, paragraph two of the syllabus. R.C. 2911.02(A) provides as follows: (A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall use or threaten the immediate use of force against another. In this case, the judge reasonably found beyond a reasonable doubt that appellant attempted to rob White, and used force against him during and after this attempt. White testified that appellant and Stearns grabbed him, and that appellant went through his pockets, looking for money. White, Stearns and appellant all testified that Stearns and appellant hit White. Officer Hall testified that White was bleeding from the face, and that appellant had blood on his hands. White's medical records indicating the facial injury were also admitted. This evidence could convince the average mind that appellant was guilty of robbery beyond a reasonable doubt. Appellant's first assignment of error is without merit. -5- II. Appellant's second assignment of error reads as follows: THE CONVICTION OF APPELLANT BY THE TRIAL COURT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. A reviewing court may not reverse a conviction as against the manifest weight of the evidence where the trier of fact could reasonably conclude based on substantial evidence that the state proved the offense beyond a reasonable doubt. State v. Eley, 56 Ohio St. 2d 169, 172. In State v. Martin (1983), 20 Ohio App. 3d 172, the court stated the test for determining manifest weight 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. See also State v. Mattison (1985), 23 Ohio App. 3d 10. Moreover, the weight of the evidence and the credibility of witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. In this case, the judge reasonably concluded from substantial evidence that the state proved that appellant was guilty beyond a reasonable doubt. The victim and officer Hall were believable witnesses who provided substantial evidence that -6- appellant committed the offense of robbery, see supra. Appellant's second assignment of error is without merit. Affirmed. Affirmed. 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, P.J., and JAMES D. SWEENEY, J., CONCUR. JOSEPH J. NAHRA 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. .