COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60257 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION EDWARD THORNTON, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 14, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-247,778 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: John B. Gibbons 2000 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 -2- NAHRA, J.: Edward Thornton appeals his conviction of aggravated burglary. For the reasons set forth below, we affirm the conviction. Carmencita Richardson met Edward Thornton a few times through her boyfriend, Marty. According to Richardson, Thornton came to Richardson's apartment a few times for some drinks with Marty. On December 19, 1989 Thornton came to Richardson's door. Richardson testified that he said he was looking for Marty. Richardson opened the door a crack and told him that Marty was not there. Thornton forced the door open with a knife, and told Richardson that he was staying there because it was too cold for him to sleep outside. He told Richardson she would have to call 9-1-1 to get him to leave. Richardson testified that she had her baby in her arms and was afraid Thornton would harm her. Thornton waived the knife at her. He also told her she was not allowed to leave and that her children could not leave. He was blocking the way out so she could not get by him to leave. Thornton did allow Richardson to call 9-1-1. Patrolman David Carroll testified that he responded to Richardson's call. He stated that Richardson let him into the apartment. Thornton was standing in the kitchen and refused to put his hands on his head when asked. Instead, he reached into his pocket and pulled out a folding knife with the blade open. Carroll knocked the knife out of Thornton's hand. He and his -3- partner scuffled with Thornton before they could handcuff him and place him under arrest. Thornton testified that he stayed overnight at Richardson's apartment a couple of nights, including the night before this incident. On the day of the incident, Thornton went to Richardson's on his lunch break to drop off a bottle of rum. He testified that he spoke to Richardson's landlord briefly about Richardson's gas having been cut off. Thornton claimed that he went to Richardson's after work and they had a few drinks together. He stated that she was angry with him because he discussed her personal business with her landlord. He said that they argued back and forth. He told her to call 9-1-1 to take him out, and waited for police to arrive. Thornton denied having a knife or threatening Richardson. Thornton was indicted for aggravated burglary pursuant to R.C. 2911.11. He waived a jury trial, and was found guilty by the court. He was sentenced and brought this timely appeal. Appellant's sole assignment of error states as follows: THE TRIAL COURT ERRED BY FAILING TO DISMISS THE INDICTMENT ON THE BASIS OF THE INSUFFICIENCY OF THE EVIDENCE. Crim. R. 29(A) provides that the court shall order a judgment of acquittal if the evidence is insufficient to sustain a conviction. In State v. Bridgeman (1978), 55 Ohio St. 2d 261, syllabus, the court held that a Crim. R. 29(A) motion for acquittal should be denied where "the evidence is such that -4- reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt". Furthermore, the credibility of witnesses is primarily for the trier of facts. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. Appellant was charged with aggravated burglary. R.C. 2911.11 states as follows: (A) No person, by force, stealth, or deception, shall trespass in an occupied structure, as defined in section 2909.01 of the Revised Code, or in a separately secured or separately occupied portion thereof, with purpose to commit therein any theft offense, as defined in section 2913.01 of the Revised Code, or any felony, when any of the following apply: (1) The offender inflicts, or attempts or threatens to inflict physical harm on another; (2) The offender has a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code, on or about his person or under his control; (3) The occupied structure involved is the permanent or temporary habitation of any person, in which at the time any person is present or likely to be present. Applying R.C. 2911.11(A), which requires the offender to have the purpose to commit a theft offense or any felony, the court found that appellant committed the felony of abduction pursuant to R.C. 2905.02. R.C. 2905.02(A) states as follows: (A) No person, without privilege to do so, shall knowingly do any of the following: (1) By force or threat, remove another from the place where he is found; -5- (2) By force or threat, restrain another of his liberty, under circumstances which create a risk of physical harm to the victim, or place him in fear; (3) Hold another in a condition of involuntary servitude. Richardson testified that appellant forced his way into her apartment with a knife. She also testified that appellant placed her in fear by threatening her with a knife; and that he would not let her or her children leave the apartment. This testimony, if believed, is sufficient to prove the elements of aggravated burglary and the felony of abduction. The trial court was correct in not ordering a judgment of acquittal pursuant to Crim. R. 29(A). Appellant's assignment of error is overruled. 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. DAVID T. MATIA, C.J., and FRANCIS E. 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. .