COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61116 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION GLEN BIVENS : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 8, 1992 CHARACTER OF PROCEEDING: Criminal proceeding from Common Pleas Court Case No. CR-256883 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. HYMAN FRIEDMAN, ESQ., Cuyahoga Cuyahoga County Prosecutor County Public Defender MICHAEL TELEP, ESQ. BETTY TANKERSLEY HARVEY, ESQ. Assistant Prosecuting Attorney Assistant Public Defender The Justice Center The Marion Bldg., Room 307 1200 Ontario Street 1276 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113-1569 - 2 - HARPER, J.: Defendant-appellant, Glen Bivens, appeals from his conviction for robbery following a bench trial in the Cuyahoga County Court of Common Pleas. His timely appeal raises two assignments of error which challenge the verdict as being against the manifest weight of the evidence and not supported by sufficient evidence. We hold these claims are without merit and affirm the judgment of the trial court. The robbery conviction arose from an incident which occurred at Sheliga Drug Store, located at 6025 St. Clair, Cleveland, Ohio. Appellant testified that he entered the store on April 14, 1990 at approximately 3:30 p.m. along with his wife and brother. Earlier in the day, he consumed two pints of Wild Irish Rose wine and some beer. He admitted that he attempted to steal a $38 iron by carrying it past the checkout counter while his wife waited to pay for other items. The store owner, Joseph Sheliga, immediately pursued appellant and confronted him in the vestibule of the store. Sheliga placed himself between the door and appellant. Appellant testified that Sheliga grabbed him from behind by the shoulder when he was halfway through the vestibule. He claimed that prior to being grabbed, he dropped the iron to the floor and kicked it because he "didn't want to catch no theft case." He denied that Sheliga ever demanded payment for the iron. Sheliga testified that as he approached appellant, demanding payment for the iron which he saw being placed inside appellant's - 3 - coat, appellant pushed him against the wall and then to the floor. Sheliga's employee, Tony Filipovic, witnessed and confirmed that appellant threw Sheliga to the ground. Filipovic and another store employee pulled appellant off Sheliga and detained him until the arrival of the police. Filipovic for the first time observed the iron on the floor. Sheliga suffered various black and blue marks and the buttons on his smock were torn off as a result of his confrontation with appellant. He did not, however, seek medical attention as he sustained no serious injuries. Appellant's first and second assignments of error provide: "I. THE JUDGMENT OF THE COURT WAS AGAINST THE WEIGHT OF THE EVIDENCE." "II. GLEN BIVENS WAS DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW WHEN HE WAS CONVICTED OF ROBBERY ON EVIDENCE WHICH WAS INSUFFICIENT AS A MATTER OF LAW TO SUPPORT THE CONVICTION." Appellant asserts in his second assignment of error that the trial court's verdict is not supported by sufficient evidence. He argues that the state failed to demonstrate that force was used against Sheliga while he was admittedly attempting to commit a theft offense. Since he dropped the iron thereby "abandoning" the theft prior to his confrontation with Sheliga, he argues that he did not use force in order to deprive Sheliga of his property and could not, therefore, commit a robbery. Moreover, in his first assignment of error, appellant argues that the unreliable quality of the state's witnesses' testimony demonstrates that the verdict is against the manifest weight of the evidence. - 4 - 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 defendant's guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St. 3d 259, paragraph two of the syllabus. 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. Id. The robbery statute (R.C. 2911.02) states, in pertinent part, that no person, in attempting or committing a theft offense, or in fleeing immediately after such attempt or offense, shall use or threaten the immediate use of force against another. "Force" means any violence, compulsion or constraint physically exerted by any means upon or against a person. R.C. 2901.01(A). The statute is not complex. A simple reading of it "leads to the conclusion that the force or threat of force must be used in attempting or committing the theft offense, or in fleeing thereafter." State v. Ballard (1984), 14 Ohio App. 3d 59, 61 (emphasis added). This court has, therefore, consistently affirmed robbery convictions based upon evidence that the defendant physically resisted apprehension during a shoplifting incident. See, e.g., State v. Brooks (Apr. 27, 1989), Cuyahoga App. No. 55138, unreported; State v. Crawford (Jan. 19, 1989), Cuyahoga App. No. 54923, unreported; State v. Griggs (Oct. 9, - 5 - 1987), Cuyahoga App. Nos. 52815, 52923, unreported; State v. Anderson (Jan. 31, 1985), Cuyahoga App. No. 48563, unreported. The record in the instant case reveals evidence which, when viewed in a light most favorable to the prosecution, would allow any rational trier of fact to find all the essential elements of robbery beyond a reasonable doubt. Sheliga observed appellant place the iron inside his coat. By the time Sheliga reached appellant, the appellant was in the vestibule between an outer and inner door. The appelant responded that he did not have anything when Sheliga questioned whether he wished to pay for something. Sheliga positioned himself between appellant and the outer door. The appellant then pushed Sheliga against the wall and the two men fell to the floor. According to Sheliga, the iron "just fell off from under his coat." It was at this point Sheliga was assisted by his two employees. On cross-examination, appellant's counsel inquired of Sheliga as follows: "Q. You don't even know if he had the iron? "A. I saw him take it. "Q. In the hallway, you don't know whether he had the iron or not, do you, sir? "A. I know. Sure, I know he had it." (Emphasis added.) The trial court then interjected: "THE COURT: Time out. He's saying you saw him take the iron and put it under his coat; is that right? "THE WITNESS: Yes. - 6 - *** "THE COURT: Now, he's saying you didn't have him in sight all the way, so presumably, he could have thrown it on the floor from the time you saw him and the time you met him in the vestibule; is that right? "THE WITNESS: If you want to assume that." (Emphasis added.) However, any assumption that the appellant did not have the iron in his possession while in the vestibule was averted when Sheliga continued as follows: "A. I saw him take it. It fell out of his coat. It had to be there if it fell out of his coat. "Q. Where did it fall out of his coat? Where in the "A. Right at the door. When I stood in front of him he raised his arm to hold me, and the thing came out of his coat." Appellant's conviction is thus supported by sufficient evidence. Though evidence may be sufficient to sustain a guilty verdict, an appellate court has the power to determine that the verdict is against the weight of the evidence. State v. Robinson (1955), 162 Ohio St. 487. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. A reviewing court, when addressing whether a verdict is against the manifest weight of the evidence, reviews: "*** 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 [trier of fact] clearly lost its way and created such a manifest miscarriage of justice - 7 - that the conviction must be reversed and a new trial ordered." State v. Davis (1988), 49 Ohio App. 3d 109, 113. Appellant relies on the guidelines set forth in State v. Mattison (1985), 23 Ohio App. 3d 10, in arguing that Sheliga's testimony was uncertain, unreliable and conflicting because he was vindictive and in stressing that Filipovic's personal bias as an employee of Sheliga influenced his testimony. The record fails to enlighten this court to any such influence, unreliability, uncertainty or conflict in the evidence. In the case sub judice, the state presented competent, credible evidence that appellant obtained control over Sheliga's property without his consent and then used force when attempting to flee from the store. The trier of fact could reasonably conclude that appellant committed a robbery. Hence, the trial court's verdict was not against the manifest weight of the evidence. Appellant's first and second assignments of error are overruled. Judgment 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. J.F. CORRIGAN, P.J., and LEO SPELLACY, J., CONCUR. SARA J. HARPER 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. .