COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60574 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION CARLOS DELGADO : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 30, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Case No. CR-236703 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor MICHAEL P. MALONEY, Assistant The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: NANCY A. FUERST 330 Standard Building Cleveland, Ohio 44113 - 2 - JOHN V. CORRIGAN, J.: Defendant appeals his convictions for breaking and entering, R.C. 2911.13, and for robbery, R.C. 2911.02. The relevant facts follow: On the afternoon of February 15, 1989, in response to an automobile theft problem, members of the Cleveland Police Department known as the "Spyglass Unit" were conducting surveillance of the area around Cleveland State University. Two plainclothes police detectives watched the area in an unmarked police car while another police detective observed the area from a "perch," i.e., he overlooked the area with binoculars and telescope while stationed on the twentieth floor of a tall university building. The three officers maintained contact with each other by radio. While parked on a side street near Lakeside Avenue, the detectives in the unmarked police car noticed a vehicle driving slowly through several university parking lots. The officers observed two men inside the vehicle. The vehicle passed many empty parking spaces; however, it would stop near late model General Motors automobiles and then proceed. The officers' suspicions were aroused so they followed the vehicle. The suspicious vehicle drove south on East 18th Street, east onto Payne Avenue, then south again on East 23rd Street. At Chester Avenue, the vehicle turned westbound and then parked on the street next to another car near a university parking lot - 3 - driveway. The detectives parked nearby. The detective in the "perch" also had the suspicious vehicle under observation. After it had parked, the passenger in the suspicious vehicle, wearing a winter coat and gloves and later identified as defendant, got out of the vehicle and approached a dark blue, 1982 Chevrolet Caprice Classic. Defendant walked around the car, went to the passenger's side, and tried to open the door. When it did not open, he went to the driver's side of the car and tried to open that door. The three detectives then observed the following: 1) defendant looked at the driver of the suspicious vehicle; 2) defendant pulled out a screwdriver and a coat hanger from under his coat; 3) with the screwdriver, defendant pried the top of the car window open; 4) with the coat hanger, defendant reached in and lifted the lock button on the car door. At this point, one of the detectives from the unmarked police car, Detective Beck, approached defendant. Defendant saw the detective, dropped the screwdriver and the coat hanger, and ran to his vehicle. The vehicle then pulled away. Detective Beck ran back to the police car. With the aid of the detective in the "perch," the detectives in the police car followed the suspect's vehicle. The detectives quickly caught up to the vehicle and forced it to stop by blocking it next to some parked cars with their own car. The driver of the suspicious vehicle was able to exit the car; before the detectives could reach him, he fled on foot. - 4 - Defendant, however, had difficulty exiting because his vehicle was close to the parked cars. Detective Stropko, the driver of the police car, tried to block defendant's escape. Defendant ran into Stropko, swinging his fists and kicking at the detective. Detective Beck, seeing Stropko's difficulty, decided to help him instead of pursuing the other suspect. Beck was able to pull defendant off Stropko and handcuff defendant. After defendant was subdued, the detectives went back to the 1982 Chevrolet Caprice Classic, retrieved the items defendant had dropped, left a note for the owner of the car, and relocked the car. Defendant was then taken to police headquarters. Stropko later sought medical attention for torn cartilage in his knee, an injury suffered in the altercation with defendant. Defendant was thereafter indicted on a four-count indictment; viz., count one, attempted grand theft, motor vehicle, R.C. 2913.02, R.C. 2923.02; count two, possessing criminal tools, R.C. 2923.24; count three, breaking and entering, R.C. 2911.13; and count four, robbery, R.C. 2011.02. Defendant's case was tried by a jury. After hearing all the testimony, the jury found defendant guilty on all counts. Defendant was immediately sentenced to concurrent terms of eighteen months each on counts one, two and three and a concurrent term of three to fifteen years on count four. Defendant has been granted leave to file a delayed appeal and now cites two assignments of error for this court's review. - 5 - Defendant's first assignment of error follows: THE VERDICT OF GUILTY AS TO COUNT 3, BREAKING AND ENTERING, IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. This assignment of error lacks merit. Defendant argues the evidence presented by the state as to this count of the indictment was against the manifest weight of the evidence and could not sustain his conviction based on the guidelines set forth in State v. Mattison (1985), 23 Ohio App. 3d 10, because the parking lot in which defendant attempted to steal the car was a property "supported by tax dollars," therefore, he could not be considered a "trespasser" for purposes of R.C. 2911.13(B). 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. - 6 - 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." Id. In State v. Martin (1983), 20 Ohio App. 3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated as follows: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. 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), 4547 U.S. 31, 38, 42. Martin, supra, at 175. Moreover, it must be stressed again that the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass, supra. Further, a reviewing court will not reverse a verdict where there is substantial evidence upon which the trier of fact could reasonably conclude that all the elements of an offense have been proved beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169. Defendant argues since he was on property supported by tax dollars, viz., Cleveland State University, he was not a - 7 - "trespasser" within the meaning of R.C. 2911.13(B), so could not be convicted of that offense. R.C. 2911.13, Breaking and Entering, states in pertinent part as follows: (B) No person shall trespass on the land or premises of another, with purpose to commit a felony. (C) Whoever violates this section is guilty of breaking and entering, a felony of the fourth degree. In construing the term "trespass" as used in R.C. 2911.13(B), the court in State v. Barksdale (1983), 2 Ohio St. 3d 126, stated that "a party who enters premises open to the public with an intent to commit thereon a felonious act" does not thereby forfeit his right of entry and become a trespasser. However, Barksdale involved an attempted theft at an automobile dealer's car lot. Therefore, the court's holding was limited in that it applied to a property whose owner extended a "tacit invitation" to the general public "to visit the lot to view the vehicles thereon." Thus, on facts nearly identical to those of the case sub judice, the court held in State v. Lyons (1985), 18 Ohio St. 3d 204 the following: For purposes of R.C. 2911.13(B), an otherwise unauthorized entry upon property restricted to those who pay a fee constitutes trespass where the person entering the property manifests no intention to pay the fee. (State v. Barksdale [1983], 2 Ohio St. 3d 126, distinguished.) - 8 - In Lyons, defendants entered an "honor parking lot," i.e., a lot left unattended with customers expected to deposit the proper fee into a slot box in exchange for the privilege of parking thereon. Defendants attempted to force open the door of a car on the lot, however, they apparently then realized they were being observed by police officers and attempted to flee. After a short car chase, they were apprehended by the officers. The supreme court held a conviction for breaking and entering was proper under the circumstances of Lyons because the privilege of entry was conditional. "Where no payment is intended, no privilege to enter can exist. Where no privilege exists, entry constitutes trespass." Lyons, supra, at 206. Likewise, in the case sub judice, William Sweeney, detective with the Cleveland State University Police Department, testified on direct examination as follows: Q. All right. And are there restricted parking privileges at these lots? A. Yes. Q. In fact, are there restrictions as to who's allowed on the lots period, whether you're in a car or out of a car? A. Yes. There's signs posted which clearly define that it's restricted for students, faculty, or staff of Cleveland State University. Q. Were you able, pursuant to my request, Detective, to research whether a Mr. Delgado had privileges to be on these lots either in a car or out? - 9 - A. Yes, I did, early this morning. Q. What were the results of your research? A. With the information you have me on Mr. Delgado, I contacted the records and admission office at the University and also contacted the registration center and also the parking and traffic department, which oversees the parking lots and that, and none of those departments have any information on Mr. Delgado. He never applied at the University. There's no connection with him to the University. (Emphasis added.) The facts of the case sub judice thus fall squarely within Lyons, supra, as it is clear that defendant had no privilege to enter the university parking lots. Without privilege to enter the lot, he was a trespasser thereon. Therefore, a conviction for breaking and entering in violation of R.C. 2911.13(B) was not against the manifest weight of the evidence. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error follows: THE VERDICT OF GUILTY AS TO THE COUNT 4, ROBBERY, IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. This assignment of error also lacks merit. Defendant argues that the element of force was not proven beyond a reasonable doubt; therefore, his conviction for robbery was improper. R.C. 2911.02, Robbery, states as follows: - 10 - (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. (B) Who ever violates this section is guilty of robbery, an aggravated felony of the second degree. (Emphasis added.) R.C. 2901.01(A) provides the following definition of "force": (A) "Force" means any violence, compul- sion, or constraint physically exerted by any means upon or against a person or thing. In State v. Carter (1985), 29 Ohio App. 3d 148, the court stated as follows: The type of force envisioned by the legisla- ture in enacting R.C. 2911.02 is that which poses actual or potential harm to a person. The elements of robbery must also occur "simultaneously" in order for the offense to occur. State v. Ballard (1984), 14 Ohio App. 3d 59. The court must therefore examine the evidence relevant to the elements of the offense of robbery. In the case sub judice, the state produced two witnesses, Detectives Beck and Stropko, both of whom testified to the following facts, viz., 1) defendant had difficulty exiting his car; 2) Detective Stropko approached defendant with the intent to block defendant's escape; 3) in his attempt to flee, defendant "ran into" Stropko, knocking him to the ground; 4) defendant then got "on top of" Stropko; 5) Beck was forced to abandon his pursuit of the other suspect to come to Stropko's aid; 6) as Beck pulled defendant off of - 11 - Stropko, defendant "swung" at Beck and kicked at Stropko; and 7) Stropko sustained a leg injury, i.e., torn knee cartilage, in the altercation with defendant and later sought medical attention for the injury at Saint Vincent Charity Hospital's emergency room. Defendant's testimony on direct examination was that he was going to a drug treatment program at "32nd and Euclid" when he was unaccountably stopped at East 22nd and Euclid near the university by Detective Beck and a Detective Evans. He denied being on the university's property. He testified that after he was stopped, he attempted to show his welfare and unemployment papers to the officers to indicate what his purpose was for being downtown, but "Evans and Beck just ripped them up ... and punched me." He further testified "Evans was beating me up" in the police car on the way to the police station. Defendant stated that Detectives Beck and Evans had been the officers involved on a previous case wherein he was convicted and sent to prison for attempted auto theft. Defendant further admitted on cross-examination that he had been previously convicted three times for auto theft. It was later established that Detective Evans was not on duty the day of the incident due to sickness. In the case sub judice, it was well within the province of the jury to choose to believe the testimony offered by the state and reject that offered by defendant. The jury could properly find the evidence indicated defendant used force against the - 12 - detectives in his attempt to flee immediately after an attempted theft offense in order to complete the robbery in violation of R.C. 2911.02. This is a classic case of robbery wherein the defendant attempts to steal and immediately thereafter uses force to perfect his escape and, in the process, injures a police officer. Thus, the factors in Mattison, supra, are met in the case sub judice. See, also, State v. Calhoun (Nov. 14, 1991), Cuyahoga App. No. 59370, unreported. The state presented reliable, credible evidence of defendant's guilt, and this court declines defendant's request to substitute its own judgment concerning the credibility of the witnesses and the weight to be given to their testimony. In the case sub judice, therefore, this court cannot say that on the basis of 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." Martin, supra, at 175. Therefore, the verdict was not against the manifest weight of the evidence. Accordingly, defendant's second assignment of error is also overruled. Judgment affirmed. - 13 - 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. J. F. CORRIGAN, P.J., and BLACKMON, J., CONCUR JUDGE JOHN V. CORRIGAN* *Judge John V. Corrigan, Retired, Eighth Appellate District, Sitting by Assignment. 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .