COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60399 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : LEONARD CORBETT : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: APRIL 9, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-251936. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Wesley A. Dumas, Esq. 1800 Superior Building Cleveland, OH 44114 -2- MATIA, C.J.: Defendant-appellant, Leonard Corbett, appeals from his conviction for the offense of aggravated robbery with a firearm specification. The appellant's appeal raises the issues of a motion for acquittal pursuant to Crim. R. 29, weight and sufficiency of the evidence and hearsay testimony. The appellant's appeal is not well taken. I. THE FACTS A. THE APPELLANT'S INVOLVEMENT IN AN AGGRAVATED ROBBERY On April 5, 1990, Michael Vaughn was babysitting two children in an apartment suite located at the Westerfield apartment complex, Parma, Ohio. At approximately 12:30 a.m., Stephanie Simpkins returned to the apartment suite to pick up her child. Stephanie Simpkins, however, was in the company of the appellant and another male. Upon entering the apartment, the appellant and his companion proceeded to rob Michael Vaughn of his money at gunpoint. Following the robbery, Michael Vaughn telephoned the Parma Police. Both Michael Vaughn and Stephanie Simpkins provided descriptions of the appellant and his accomplice to the Parma Police. Based upon the information received from Michael Vaughn and Stephanie Simpkins, the appellant and his accomplice were arrested. B. THE INDICTMENT On May 7, 1990, the appellant was indicted by the grand jury of Cuyahoga County for one count of aggravated robbery in -3- violation of R.C. 2911.01 with a firearm specification and two prior felony specifications. C. THE ARRAIGNMENT On May 11, 1990, the appellant was arraigned whereupon a plea of not guilty was entered to the charged offense of aggravated robbery with a firearm specification and two prior felony specifications. D. THE NON-JURY TRIAL AND SENTENCE OF THE TRIAL COURT On July 30, 1990, a non-jury trial was commenced before the Cuyahoga County Court of Common Pleas. During the course of the non-jury trial, the trial court denied the appellant's motion for acquittal as made pursuant to Crim. R. 29(A). At the conclusion of the trial, the trial court found the appellant guilty of the offense of aggravated robbery with a firearm specification and two prior felony specifications. The trial court immediately sentenced the appellant to incarceration within the Lorain Correctional Institution for a period of thirteen years to twenty-five years with regard to the offense of aggravated robbery and an additional term of three years actual incarceration with regard to the firearm specification. E. THE TIIMELY APPEAL Thereafter, the appellant timely brought the instant appeal from his conviction for the offense of aggravated robbery with a firearm specification. -4- II. FIRST ASSIGNMENT OF ERROR The appellant's first assignment of error is that: THE COURT ERRED IN DENYING DEFENDANT'S RULE 29 MOTION FOR ACQUITTAL AS TO THE CRIME AND GUN SPECIFICATION. A. ISSUE RAISED: TRIAL COURT IMPROPERLY DENIED THE MOTION FOR ACQUITTAL The appellant, in his initial assignment of error, argues that the trial court erred as a result of denying the appellant's Crim. R. 29(A) motion for acquittal. Specifically, the appellant argues that the evidence adduced at trial failed to establish the material elements of the offense of aggravated robbery with a firearm specification. The appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW APPLICABLE TO A MOTION FOR ACQUITTAL Crim. R. 29(A), which establishes the parameters for the granting of a motion for acquittal, provides that: *** The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case. In addition, the Supreme Court of Ohio, in State v. Bridgeman (1978), 55 Ohio St. 2d 216, established that a trial court may not grant a Crim. R. 29(A) motion for acquittal where the evidence adduced at trial shows that reasonable minds can reach -5- different conclusions as to whether the elements of a charged offense have been proved beyond a reasonable doubt. Pursuant to Crim. R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. C. ELEMENTS OF AGGRAVATED MURDER The elements of the offense of aggravated robbery are: 1) in attempting or committing a theft offense or in fleeing immediately after such attempt or theft; 2) have a deadly weapon or dangerous ordnance on or about his person or under his control or inflict or attempt to inflict serious physical harm to another. D. TRIAL COURT PROPERLY DENIED THE MOTION FOR ACQUITTAL Herein, a review of the record demonstrates that the prosecutor presented sufficient evidence at trial so that reasonable minds could reach different conclusions as to whether each and every element of the offense of aggravated robbery with a firearm specification had been proved beyond a reasonable doubt. The evidence adduced at trial showed that the appellant actively participated in the theft of money from Michael Vaughn and that a firearm was used during the commission of the theft offense. State v. Vandenberg (1980), 61 Ohio St. 2d 285; State v. Price (1989), 52 Ohio App. 3d 49; State v. Jordan (1987), 31 Ohio App. 3d 187. -6- Thus, the trial court properly denied the appellant's Crim. R. 29(A) motion for acquittal and the appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR The appellant's second assignment of error is that: THE WEIGHT OF THE TESTIMONY WHICH RESULTED IN DEFENDANT'S CONVICTION(S) IS INSUFFICIENT AS A MATTER OF LAW AND SHOULD BE REVERSED. A. ISSUE RAISED: CONVICTION FOR OFFENSE OF AGGRAVATED MURDER WAS INSUFFICIENT AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE The appellant, in his second assignment of error, argues that he was improperly convicted of the offense of aggravated robbery with a firearm specification. Specifically, the appellant argues that the prosecutor failed to produce sufficient evidence at trial to support the appellant's conviction for the offense of aggravated robbery with a firearm specification. In addition, the appellant argues that his conviction was against the manifest weight of the evidence. The appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW FOR "SUFFICIENCY OF THE EVIDENCE" The Supreme Court of Ohio, in State v. Jenks (1991), 61 Ohio St. 3d 259, reexamined the standard of review to be applied by an appellate court when reviewing a claim of insufficient evidence and held that: 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 -7- 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. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) State v. Jenks, supra, paragraph two of the syllabus. In addition, the Supreme Court of Ohio in Jenks established a new standard of review which is to be applied to circumstantial evidence: Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. When the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction. Therefore, where the jury is properly and adequately instructed as to the standards for reasonable doubt a special instruction as to circumstantial evidence is not required. (Holland v. United States [1954], 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150, followed; State v. Kulig [1974], 37 Ohio St.2d 157, 66 O.O.2d 351, 309 N.E.2d 897, overruled.) State v. Jenks, supra, paragraph one of the syllabus. C. STANDARD OF REVIEW FOR MANIFEST WEIGHT Additionally, the weight of the evidence adduced at trial and the credibility of all witnesses are primarily a matter for consideration by the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 231. An appellate court cannot reverse the verdict of the trier of fact where there is substantial and credible -8- evidence upon which the trier of fact could reasonably conclude that all of the elements of the charged offense have been proved beyond a reasonable doubt. State v. Eley (1978), 58 Ohio St. 2d 169. D. APPELLANT'S CONVICTION WAS SUFFICIENT AS A MATTER OF LAW AND NOT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE In the case sub judice, both direct and circumstantial evidence were presented by the prosecutor in an attempt to establish the elements of the offense of aggravated robbery with a firearm specification. The appellant was clearly identified as one of the individuals who participated in the aggravated robbery of Michael Vaughn. This identification of the appellant as a participant was made by both Michael Vaughn and Stephanie Simpkins. (Tr. 100, 101, 113, 123, 182.) In addition, evidence and testimony were adduced at trial with regard to the firearm which was used to facilitate the theft of money from Michael Vaughn. (Tr. 55, 85, 92, 107, 123.) Upon application of the standard of review for sufficiency of the evidence as established in State v. Jenks, this court can but find, after viewing the evidence in a light most favorable to the prosecution, that any rational trier of fact could have found the essential elements of the crime of aggravated robbery with a firearm specification proved beyond a reasonable doubt. Jackson v. Virginia, supra. In addition, the appellant's conviction was supported by substantial credible evidence. -9- Thus, the appellant's second assignment of error is not well taken. IV. THIRD ASSIGNMENT OF ERROR The appellant's third assignment of error is that: THE COURT DENIED DEFENDANT A FAIR TRIAL BY ALLOWING A NUMEROUS HEARSAY STATEMENTS (SIC) INTO EVIDENCE. A. ISSUE RAISED: APPELLANT PREJUDICED BY HEARSAY TESTIMONY The appellant, in his third assignment of error, argues that he was prejudiced as a result of the trial court's evidentiary rulings. Specifically, the appellant argues that he was prejudiced as a result of the admission of several hearsay statements into evidence. B. THE THREE CLAIMED HEARSAY STATEMENTS The appellant, in support of his third assignment of error, cites to three separate hearsay statements as follows: Q. What was her statement she made with regard to this identification? A. She stated the one male, Leonard, was her cousin and she wasn't sure of the other male. She wasn't saying his name at the time. (Tr. 183.) A. She stated that the one male, Leonard, that was her cousin, didn't have a gun. He hadn't done anything in the robbery, but he was just there. She said the other male is the one that had the gun and that had committed the robbery. -10- (Tr. 184.) Q. And at that time was any identification made by Stephanie Simpkins? A. Yes. Q. Tell the Judge which male it was that was brought down to the parking lot where you're talking about now. A. Leonard Corbett, the heavier of the two. (Tr. 185, 186.) C. FAILURE OF APPELLANT TO OBJECT AT TRIAL RESULTS IN A WAIVER OF ERROR A review of the record, however, fails to disclose that the appellant raised an objection to any of the three alleged hearsay statements. The Supreme Court of Ohio has consistently held that an appellant waives a claimed error which was not originally raised before the trial court. State v. Awan (1986), 22 Ohio St. 3d 120; State v. Williams (1977), 51 Ohio St. 2d 112. In addition, any error associated with the alleged three hearsay statements was harmless error beyond a reasonable doubt in light of the overwhelming evidence of the appellant's guilt and the fact that the appellant was tried before the bench and not a jury. Chapman v. California (1967), 386 U.S. 18; State v. Adams (1980), 62 Ohio St. 2d 151; State v. Bayless (1976), 48 Ohio St. 2d 73. Thus, the appellant has waived his argument with regard to the alleged three hearsay statements and the appellant's third assignment of error is not well taken. Judgment affirmed. -11- 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. ANN MC MANAMON, J. and *PARRINO, J., CONCUR. DAVID T. MATIA CHIEF JUDGE *SITTING BY ASSIGNMENT: Judge Thomas J. Parrino, Retired Judge of the Eighth Appellate District. 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. .