COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59841 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION CLAYTON SEALS, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 6, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-226,354 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: John A. Clough Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Barbara L. Jones 369 Front Street Suite 3 Berea, Ohio 44017 -2- NAHRA, P.J.: On October 9, 1987, at approximately 7:30 p.m., Marcia Banks was attacked upon exiting her vehicle in her apartment's underground parking facility. Her attacker, identified later as Clayton Seals, defendant-appellant, pointed a gun at her and demanded that she get on the ground. She complied with such demand and, upon request, gave Seals her purse and some jewelry. When he discovered what little money she possessed, Seals reached into her clothing in an apparent search for hidden valuables and/or money. He then took the keys to Banks' car, opened the trunk, and ordered that she get inside. Banks refused and a struggle ensued during which Seals struck Banks in the face with the gun. Banks fell to the ground and fractured her right arm. At the same time, Shirley Baker was inside an adjacent laundry room when she heard the screams of Ms. Banks. When she opened the door leading to the garage, Baker observed the struggle and yelled, causing the attacker to retreat from the laundry area and across the parking garage. Both Banks and Baker escaped into the apartment building. The Cleveland police were summoned to the scene and searched for the attacker. They found some broken glass from the door where the attacker presumably made his escape as well as some blood. Banks and Baker gave the police brief descriptions of the attacker. Approximately one week later, Banks and Baker were summoned to the Cleveland Police Department and asked to view a -3- photographic slide display of possible suspects. The slides consisted primarily of mug shots of those having been arrested previously by the Cleveland Police Department. Ms. Banks, viewing slides herself, selected a slide identified later as Clayton Seals; she further communicated to the police that Seals was her attacker. Ms. Baker also looked through a tray of "mug shot" slides on October 24, 1987, and was able to pick out three possibilities as suspects. At such time, Banks and Baker were told that each had selected the photograph of Clayton Seals. Thereafter, Ms. Baker accessed records from the Welfare Department, her employer, and obtained additional photographs of Clayton Seals in the form of identification cards. She informed the Cleveland Police Department that she could positively identify Seals as the attacker. She testified to the same at trial. Ms. Banks later positively identified Seals as her assailant at a preliminary hearing and at trial. Seals was indicted on the following four counts: aggravated robbery with gun specifications, felonious assault with gun specifications, gross sexual imposition with gun specifications, and one count of having a weapon under a disability. Trial ensued and after the close of the state's case, the trial court dismissed all of the gun specifications. A jury found Seals guilty of aggravated robbery, felonious assault, and having a weapon under a disability. However, the jury was unable to reach a verdict on the charge of gross sexual imposition; -4- thereafter, the trial court entered a finding of not guilty for such charge and sentenced Seals. This appeal follows. Appellant's first and second assignments of error are interrelated and shall be examined together. They state: I. THE CONVICTIONS IN THE TRIAL COURT SHOULD BE REVERSED BECAUSE THEY ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND BECAUSE THE EVIDENCE SUPPORTING THEM WAS INSUFFICIENT AS A MATTER OF LAW TO PROVE THE CONVICTION BEYOND A REASONABLE DOUBT. II. THE ADMISSION AT TRIAL OF AN IN-COURT IDENTIFICATION BY WITNESSES WHOSE OPPORTUNITY AT THE TIME OF THE CRIME TO OBSERVE THE ATTACKER WAS MEAGER AND WHERE THE DIFFERENCES IN THE GENERAL DESCRIPTION OF THE SUSPECT AND THE PHOTOGRAPHS USED TO IDENTIFY HIM CONSTITUTES PLAIN ERROR. The Supreme Court of Ohio has stated: In reviewing a claim that a jury verdict was against the weight of the evidence, or that the evidence was insufficient, a reviewing court's duty is to review the record to determine whether there was sufficient evidence for the jury to find defendant guilty beyond a reasonable doubt. State v. Brown (1988), 38 Ohio St. 3d 305, 528 N.E.2d 523, certiorari denied (1989), 109 S. Ct. 1177; see State v. Barnes (1986), 25 Ohio St. 3d 203, 209, 495 N.E.2d 922; see also State v. Eley (1978), 56 Ohio St. 2d 169, 383 N.E.2d 132, syllabus. Seals asserts his identification as the assailant by Ms. Banks and Ms. Baker was tainted and that their testimony lacked credibility. He points out that each witness admitted a slight discrepancy between Seals' appearance at trial and how he looked in a prior photograph as well as his appearance at the time of the incident. -5- The weight to be given evidence and the credibility of witnesses are determinations to be made by the triers-of-fact. State v. Thomas (1982), 70 Ohio St. 2d 79, 434 N.E.2d 1356. Both Ms. Banks and Ms. Baker testified at trial that Seals was the assailant. Each expressed no doubt in her identification. During the attack, the assailant placed a gun up Ms. Banks' nose. She observed him in the lighted garage for several minutes. We find no reason to disturb the jury's evaluation of the witnesses' credibility. We also believe that the procedure of identification employed by the police was proper. Simmons v. United States (1968), 390 U.S. 377, 384; State v. Moody (1978), 55 Ohio St. 2d 64, 377 N.E.2d 1008. Our review of the record indicates that there was sufficient evidence to convict Seals of aggravated robbery, felonious assault, and having a gun under a disability and that the verdict was not against the manifest weight of the evidence. Appellant's assignments of error are overruled. Accordingly, the 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. FRANCIS E. SWEENEY, J., and JAMES D. SWEENEY, J., CONCUR. JOSEPH J. NAHRA PRESIDING 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. .