COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61172 STATE OF OHIO : : : Plaintiff-Appellee : JOURNAL ENTRY : v. : AND : DERRICK WARREN : OPINION : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 24, 1992 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-249858 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor By: FEDELE DESANTIS Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: HYMAN FRIEDMAN Cuyahoga Public Defender By: WARREN L. McCLELLAND Assistant Public Defender The Marion Building, Rm. 307 1276 West Third Street Cleveland, OH 44113-1569 -2- SPELLACY, J.: Defendant-appellant Derrick Warren ("appellant") appeals his conviction, after a jury trial, for aggravated robbery, in violation of R.C. 2911.01, and felonious assault, in violation of R.C. 2911.03, and raises the following assignments of error: I. THE APPELLANT WAS DENIED A FAIR AND IMPARTIAL TRIAL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION BY THE PURPOSEFUL MISCONDUCT OF THE PROSECUTOR. II. APPELLANT'S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. III. THE APPELLANT WAS CONVICTED OF AGGRAVATED ROBBERY WITH INSUFFICIENT EVIDENCE AS A MATTER OF LAW. Finding these assignments of error to be without merit, we affirm the convictions. I. On Friday, February 16, 1990, the manager of a Clark gas station, Madwell Frazier, was severely beaten and $1,486.75 was taken from the station's floor safe. Frazier identified appellant, a nineteen year old employee, as his assailant. At trial, Frazier testified that after he arrived at the station on Friday morning, appellant, who had worked the night shift at the station on Thursday evening, showed up and asked whether he could earn some money by doing extra work around the station. Frazier stated that he let appellant count stock. Frazier went on to testify that at about 6:00 A.M., just when the -3- station was supposed to open, he was at his desk in a back room, when appellant assaulted him with a tire iron. Frazier further stated that he struggled with appellant but eventually lost consciousness. At 6:35 A.M., a neighbor found Frazier, barely conscious, at her front door. She testified that Frazier told her that appellant had assaulted him. The assistant district manager for the station testified that $20 to $40 in sales had been entered into the cash register between 6:10 A.M. and 6:20 A.M. The money from these transactions was in the cash register. The assistant district manager believed that an employee made the sales because the cash register had been operated correctly. He also stated that a bag containing the receipts from Thursday's day shift was found in the floor safe. Frazier testified that he had been unable to deposit these receipts on Thursday. Frazier doubted appellant knew the receipts were in the bag. The police arrested appellant at his grandparents' home, a ten minute walk from the station, at about noon on Friday. A police detective testified that appellant had a cut on one of his fingers, limped, and had fingernail marks on his back. Photographs of appellant's finger and back were admitted into evidence. Appellant testified that during the night shift on Thursday, he took in between $1400 and $1500, which he dropped into the floor safe. He further stated that after closing the station, -4- his grandfather drove him to his grandparents' house, where he stayed until the police arrived on Friday. Appellant's grandparents testified that appellant was at their home from about midnight on Thursday until the police arrived. Appellant's grandfather testified that appellant could not have left the house because he did not have a key to the dead bolt locks. Frazier further testified that several days after the incident, appellant telephoned and apologized, stating that someone had threatened to kill him if he did not produce money. Frazier stated that the next day appellant telephoned again and offered to pay his medical bills if he did not pursue the case. Finally, an individual who worked in the neighborhood testified she had seen appellant "hanging out" at the Copa Lounge, known for its drug activity. Appellant denied "hanging out" at the Copa Lounge. I. In his first assignment of error, appellant contends he did not receive a fair trial because the prosecutor committed misconduct. Appellant supports his contention by arguing that the prosecutor acted improperly during cross-examination of appellant when he asked whether Frazier was telling the truth and in his closing argument when he stated, "[t]hat's two people [Frazier and the police detective] who have to be outrageous liars to bring this guy in the courtroom today." (Tr. 324). -5- Appellant did not object to either the prosecutor's cross- examination or his closing argument. As a result, we may only address whether the prosecutor's actions amounted to plain error. State v. Cooey (1989), 46 Ohio St.3d 20, 31; see, also, Crim. R. 52(B) which provides "[p]lain error or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Plain error exists when the outcome would clearly have been different if the error had not occurred. State v. Jells (1990), 53 Ohio St.3d 22, 24; State v. Long (1978), 53 Ohio St.2d 91, paragraph two of the syllabus. It should only be recognized with utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice. Long, at paragraph three of the syllabus. Reviewing the record, we find that the prosecutor's actions did not constitute plain error. Accordingly, appellant's first assignment of error is not well taken. III. We address appellant's second and third assignments of error in reverse order. In his third assignment of error, appellant contends the evidence was insufficient to sustain a conviction for aggravated robbery. Specifically, appellant argues there was insufficient evidence connecting him to the theft of the money from the station. -6- In State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, the court 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 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. Appellant, citing to State v. Italiano (1985), 18 Ohio St.3d 38, 41, and State v. Jacobozzi (1983), 6 Ohio St.3d 59, 61, argues that the circumstantial evidence connecting him to the theft of the money is insufficient because it is "equally as consistent with one or more theories under which [he] is innocent as it is with the theory that [he] is guilty ***." Both Italiano and Jacobozzi rely on State v. Kulig (1974), 37 Ohio St.2d 157. In Jenks the Supreme Court overruled Kulig, holding that "[w]hen 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." Jenks, at paragraph one of the syllabus. After reviewing the evidence in a light most favorable to the prosecution, we find that a rational trier of fact could have found that appellant took the money out of the floor safe. -7- Accordingly, appellant's third assignment of error is not well taken. IV. In his second assignment of error, appellant contends his convictions are against the manifest weight of the evidence. "On the trial of a case, either civil or criminal, the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts." State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. When determining whether a verdict is against the manifest weight of the evidence, the reviewing court 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 jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v.Martin (1983), 20 Ohio App.3d 172, 175. After reviewing the evidence, we find that the jury, as trier of fact, could properly find appellant guilty of aggravated robbery and felonious assault. Accordingly, appellant's second assignment of error is not well taken. 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. HARPER, J., AND PARRINO, J.*, CONCUR. LEO M. SPELLACY PRESIDING JUDGE * Parrino, J., Retired Judge of the 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 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. .