COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60849 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : LOUIS WARD : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JUNE 11, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-248117 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS-JONES NANCY A. FUERST Cuyahoga County Prosecutor 330 Standard Building 8th Floor Justice Center Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 -2- PATRICIA A. BLACKMON, J.: Louis Ward defendant-appellant, hereinafter Defendant timely appeals his conviction from a bench trial for Trafficking in drugs, marijuana in violation of R.C. 2925.03. For the reasons stated below, we affirm. Defendant was indicted for two counts of Trafficking in drugs and one count of Possession of Criminal Tools. Defendant waived his right to a jury and the case was tried to the bench. The evidence, in pertinent part, established that on January 3, 1990, members of the Cleveland Police Department's S.W.A.T. and Narcotics Units executed a search warrant on the H & K Deli at 7116 Cedar Avenue. Defendant, Freddie Beamon, Ricardo Stovall and Hosie Harris, Jr. were arrested during the search. Stovall and Harris were co-defendants in Defendant's trial. The basis for Defendant's arrest and conviction was primarily the testimony of Detective Sharon Dickerson. Det. Dickerson did not participate in the execution of the search warrant, but observed a confidential informant purchase marijuana from Defendant. She testified that sometime prior to the execution of the search warrant, she accompanied an informant into H & K Deli. She selected a pop and potato chips from the store and followed the informant to the cash register window where she observed the drug transaction. The informant placed a ten dollar bill, which she had provided as buy money, in the slot for Defendant who was at the cash register. Defendant took the ten dollar bill and -3- slid a foil packet through the slot to the informant. Then, Det. Dickerson purchased her pop and potato chips from Defendant. Upon exiting the store, the informant turned the foil packet over to Det. Dickerson. She placed the evidence in an envelope and marked it "black male, 50." She testified that she gave a more detailed description to the officer's executing the search warrant. She described Defendant as having on a baseball cap, dark clothing, glasses, a beard and a lot of rings on his fingers. During execution of the search warrant, the ten dollar bill used as buy money was found in possession of Stovall. Defendant stipulated to the chain of custody of the foil packet and the identification of its contents as marijuana. Both the ten dollar bill and foil packet were admitted into evidence. At the close of the State of Ohio's case, the trial court dismissed the second and third count of the indictment pursuant to Crim. R. 29(A). In the defense case, Harris and Defendant took the stand. Harris stated that Beamon was at the cash register on the day in question. Harris never saw Defendant near the cash register that day. Defendant also testified that he did not work the cash register, but he saw Beamon in that area. Defendant maintained that he never saw Det. Dickerson before the trial. He believed he was identified by the police because he had some words with one of the officers. He admitted hearing rumors about marijuana sales at the deli. However, he denied any -4- knowledge of prior arrests or marijuana sales at the deli and denied ever having sold marijuana himself. Upon this evidence, the trial court found Defendant guilty of Trafficking in drugs. He was sentenced to a term of six months, a fine of $750.00 and costs. The sentence was suspended with three years probation conditioned upon urinalysis and community service in lieu of the fine and costs. Defendant's sole assignment of error states: THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant argues that if the reviewing court disagrees with the factfinder's resolution of conflicting testimony, a new trial is in order. We disagree. The notion that this court resolves conflicting evidence by ordering a new trial was specifically overruled by the Supreme Court of Ohio in State v. Jenks (1991), 61 Ohio St. 3d 259. The weight to be given evidence and the credibility of the witnesses are primarily decisions for the jury. State v. DeHass (1967), 10 Ohio St. 2d 230. A criminal conviction should not be reversed, where there is sufficient probative evidence "which, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." State v. Eley (1978), 56 Ohio St. 2d 169, 172. See, e.g. Jenks at 283. In the instant case, Detective Dickerson's positive identification of Defendant, observation of the marijuana purchase, the buy money and the marijuana provide sufficient -5- probative evidence of Trafficking in drugs in violation of R.C. 2925.03. Judgment affirmed. Judgment 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. PATRICIA A. BLACKMON 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .