COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60976 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION KELVIN HARRIS, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : JULY 9, 1992 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-253,554 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Edward Kraus Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Daniel Shields The Standard Building No. 2000 Cleveland, Ohio 44113 -2- NAHRA, P.J.: Kelvin Harris, defendant-appellant, appeals his conviction for attempted grand theft and for possession of criminal tools. On May 25, 1990, Detective Michael Blanc and Ignatious Sowa were working in the Auto Theft Spyglass Detail Operation for the Cleveland police in downtown Cleveland. The detectives' focus was the inner harbor area where the rib burnoff was taking place and where many automobiles had been stolen in the past. At approximately 11:25 p.m., the detectives observed a 1985 Oldsmobile travelling westbound on Lakeside Avenue. The Oldsmobile moved slowly and stopped occasionally next to General Motors' vehicles. Blanc revealed that this activity is known as vehicle shopping in auto theft circles. The Oldsmobile continued to stop next to a couple of new General Motors' cars that were parked on E. 6th Street. Detective Blanc testified that General Motors automobiles are easier to steal than most cars because their columns are generally made out of plastic and light metal which can be penetrated without much resistance. Blanc and Sowa observed the Oldsmobile approach a 1990 Blazer on Rockwell Avenue. The individuals in the Oldsmobile, Harris and co-defendant Marvin Trollinger, looked at the Blazer and parked their car on Rockwell Avenue. Both got out of their car and walked toward the Blazer; Harris went to the driver's side of the Blazer while Trollinger went to the passenger's side. Both Harris and Trollinger pulled on the Blazer's door handles and attempted to open the door. Harris then leaned on the Blazer and rocked back and forth in order to shake the vehicle. -3- Detective Blanc testified that Harris shook the Blazer in order to find out if it was equipped with a motion alarm. Harris and Trollinger had a short conversation in front of the Blazer. Blanc and Sowa observed Trollinger approach the passenger side of the vehicle and take out a screwdriver from his pants. Trollinger attempted to pry open the Blazer's door lock. Thereafter, Sowa and Blanc approached Trollinger at which time he dropped the screwdriver to the ground. Harris and Trollinger walked away briskly but were accosted nearby and arrested by the detectives. The screwdriver was found on the ground next to the passenger door of the Blazer. Fresh scratch marks were observed at the bottom of the door lock on the Blazer's passenger side. Harris testified on his own behalf that he was asked by the woman with whom he lived to drive downtown to pick up her son- in-law, Dwayne. Harris stated that he called Trollinger, his friend, and told him that he would pick him up. Harris revealed that the front end of the car he drove was damaged and that he kept a screwdriver in the car to assist in opening the car's hood when necessary. Harris claims that he was not certain about where Dwayne worked. As a result, he and Trollinger waited in a bus shelter. A short time later, they were arrested. Harris was indicted for attempted grand theft pursuant to R.C. 2913.02 and R.C. 2923.02 and for possession of criminal tools pursuant to R.C. 2923.24. A bench trial ensued and Harris was convicted of both counts in the indictment. This appeal follows. -4- I. Appellant's first and second assignments of error are interrelated and shall be examined together. They state: I. THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO CRIMINAL RULE 29. II. THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO CRIMINAL RULE 29(A) AS TO THE SECOND CHARGE OF THE INDICTMENT, POSSESSION OF CRIMINAL TOOLS. At the close of the state's case in chief, Harris moved for a Crim. R. 29 acquittal. Such motion was denied by the trial court. Harris proceeded to present evidence on his own behalf. At the close of his own case, Harris failed to renew his Crim. R. 29 motion for acquittal. As a result, Harris waived his right to claim that the trial court's denial of his motion for acquittal constituted error. State v. Deboe (1977), 62 Ohio App. 2d 192, 406 N.E.2d 536; City of Cleveland v. Muntaser (Aug. 29, 1991), Cuyahoga App. No. 59021, unreported; see State v. Bak (Mar. 1, 1990), Cuyahoga App. No. 56619, unreported; see also State v. Seals (Oct. 31, 1985), Cuyahoga App. No. 49448, unreported. Moreover, had the motion been made, the court would have been correct in overruling it for the reasons set forth in discussion of defendant's third assignment of error. Accordingly, appellant's assignments of error are overruled. II. -5- Appellant's third assignment of error states: THE CONVICTION HERE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. 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. If there was sufficient evidence for the trier-of-fact to find a defendant guilty beyond a reasonable doubt this court will not reverse a guilty verdict based on manifest weight of the evidence. State v. Brown (1988), 38 Ohio St. 3d 305, 306, 528 N.E.2d 523, paragraph four of the syllabus, certiorari denied (1989), 109 S. Ct. 1177. R.C. 2913.02, which defines the offense of theft, states in pertinent part: (A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways: (1) without the consent of the owner or person authorized to give consent; (2) beyond the scope of the express or implied consent of the owner or person authorized to give consent; * * * R.C. 2923.24, which defines the offense of possession of criminal tools, states in pertinent part: (A) No person shall possess or have under his control any substance, device, instrument, or article, with purpose to use it criminally. * * * -6- Harris asserts that he did not possess the screwdriver or assist in the alleged attempt to steal the Blazer. Instead, he points out that Mavin Trollinger held the screwdriver to the Blazer's door lock while Harris merely stood next to him at such time. We believe that there was sufficient evidence to convict Harris and that the verdict was not against the manifest weight of the evidence. Detectives Blanc and Sowa testified that they observed Harris and Trollinger driving through downtown shopping for vehicles. Harris and Trollinger stopped next to a parked Blazer on Rockwell Avenue. Harris walked to the driver's side of the Blazer and attempted to open the door handle. Harris then leaned on the Blazer and rocked back and fourth in order to shake it. Such action was undertaken in order to determine whether the vehicle had a motion alarm. Shortly thereafter, a conversation unfolded between Harris and Trollinger. Trollinger approached the passenger side of the vehicle and began to pry the Blazer's door lock with a screwdriver. Evidence in the record indicates that the screwdriver was brought by Harris and was normally kept in the car that he was driving. This evidence is sufficient to establish that Harris participated with Trollinger in the attempted theft of the Blazer. State v. Woods (1976), 48 Ohio St. 2d 127, 357 N.E.2d 1059. Evidence also indicates that Harris had possession of the screwdriver and the criminal purpose to use it to steal the Blazer by operating in tandem with Trollinger. State v. Sims (1983), 10 Ohio App. 3d 56, 460 N.E.2d 672; State -7- v. Oliver (1987), 31 Ohio App. 3d 100, 508 N.E.2d 1048. The verdict was not against the manifest weight of the evidence. Appellant's assignment of error is overruled. Accordingly, the judgment of the trial court is affirmed. -8- 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 McMANAMON, J., and PATTON, 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. .