COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61174 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : JAMES BRUMFIELD : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 24, 1992 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-256343 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor By: JOHN P. KESHOCK Assistant County Prosecutor The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: CHARLES B. LAZZARO 526 Superior Avenue 1440 Leader Building Cleveland, Ohio 44114 -2- SPELLACY, J.: On September 24, 1990, defendant-appellant James Brumfield ("appellant") was indicted by the Cuyahoga County Grand Jury for one count of Robbery, in violation of R.C. 2911.02. The count also carried a violence specification for a prior conviction of robbery. At his arraignment on October 22, 1990, appellant pleaded not guilty. Appellant's bench trial commenced on December 3, 1990. The first witness to testify for the State was Robert Woidke, the manager of a Convenient Food Mart located at 9105 1 Denison Avenue, in the City of Cleveland, Ohio. Robert Woidke stated that he observed appellant and two other males enter the store and walk toward the coolers in which beer and other beverages were stored. The two other males were later identified as Larry Burghy and Scott Hackney. Robert Woidke observed each of the males carrying a twelve-pack of beer and walking up the middle aisle. Robert Woidke further testified that Larry Burghy suddenly made a dash for the door and was able to get outside. At that point, appellant and Scott Hackney approached Robert Woidke, shoved him out of the way and tried to get outside. Scott Hackney did not make it outside, but appellant did. However, a 1 Robert Woidke was also the son of the owner of the Convenient Food Mart. -3- struggle between appellant and Robert Woidke ensued and appellant was dragged back inside. Robert Woidke claimed that appellant was swinging and punching and that he got punched by appellant. The two men fought for about ten to fifteen minutes all the way down the aisle and into the back room. In the meantime, Elizabeth Sunyak telephoned the police, who arrived shortly thereafter. While waiting for the police, Robert Woidke continued to struggle with appellant. He was very surprised that appellant had so much power. They fought in the aisles causing several beer cases to fall over. Robert Woidke said that he was eventually able to hold appellant on the floor until the police arrived. He testified that he suffered a fat lip and some bruises. Robert Woidke stated that Scott Hackney listened to Elizabeth Sunyak's instruction and remained seated until the police arrived. However, Larry Burghy ran outside and had to be apprehended by Rodney Peterson, a patron from the store. The next witness to testify for the State was Elizabeth Sunyak. Elizabeth Sunyak testified that she was working at the Convenient Food Mart on August 10, 1990, at about 11:15 P.M., when she observed three men standing by the cooler. She then noticed each one of the men retrieve a twelve-pack of beer and proceed up the aisle. Elizabeth Sunyak further testified that the three men began running toward the exit with the beer in their hands. Appellant -4- was able to make it halfway out the door, but Robert Woidke was able to grab him and pull him back inside. Elizabeth Sunyak unsuccessfully tried to help Robert Woidke, and the two men began to struggle. While Robert Woidke fought with appellant, Elizabeth Sunyak went to the register and telephoned the police. Elizabeth Sunyak instructed one of the other men to sit down and he complied. At the same time, a patron was able to catch the third man, who had made it outside. Elizabeth Sunyak stated that appellant continued to try to get away, but Robert Woidke was able to hold on to him until the police arrived. When the police arrived, appellant was arrested and taken to the hospital for injuries he sustained in the struggle with Robert Woidke. The State then called Rodney Peterson to testify. Rodney Peterson testified that he was at the Convenient Food Mart on August 10, 1990, in order to purchase some milk and a few other items. He observed appellant and two other males in the area of the cooler which held the beer. As he was paying for his items, Rodney Peterson observed the men trying to flee the store with beer in their hands. Rodney Peterson further testified that he ran outside the store and grabbed one of the men who had managed to get outside the store. Rodney Peterson brought the individual back into the store. He was later identified as Larry Burghy. -5- When Rodney Peterson returned to the store, he noticed that appellant was fighting with Robert Woidke. Robert Woidke was trying to get appellant into the back of the store but he was resisting. Every time Robert Woidke got appellant to sit down, appellant would charge at him like a football player. The scuffle lasted for about ten minutes, until the police arrived. The last witness to testify for the State was Officer Susan Dennis from the Cleveland Police Department. Officer Dennis stated that at approximately 11:30 P.M. on August 10, 1990, she and her partner arrived at the Convenient Food Mart, located at 9105 Denison Avenue. As they proceeded to the back room, they observed food from the shelves on the floor. In the back room, Officer Dennis found Robert Woidke struggling with appellant. Robert Woidke informed the officers that he had just caught appellant trying to steal beer. Appellant continued to struggle and curse at everything. At that point, appellant was placed under arrest and advised of his rights. Appellant was then transported to a nearby hospital since he suffered some injuries. In his defense, appellant offered the testimony of his brother-in-law, James Ludwig. James Ludwig testified that he took photographs of appellant's injuries following the August 10, 1990 incident. The photographs revealed a severe black left eye, bruises and some puncture wounds. Appellant testified on his own behalf that he entered the Convenient Food Mart in order to get some beer. He went into the -6- store with Larry Burghy and another guy, whose name he could not remember. He claimed that Larry Burghy and the other man took beer and ran toward the door while he walked down the aisle. Appellant stated that as he walked around the corner, Robert Woidke hit him in the face with a pipe, causing him to drop everything and knocking him unconscious. Appellant also said that he lost his bowel movement, and when he awoke, he was terrified. Appellant further testified that he got up and ran for the door, but Robert Woidke started to "nail" him. He claimed that if he threw any punches himself, it was in the process of blocking. He did not recall swinging at Robert Woidke. Appellant admitted during his testimony that he intended to steal the beer. However, he never actually tried to leave the store with the beer in his hand. Appellant denied that he hit Robert Woidke in the face five or six times. He testified that it was Robert Woidke that hit him with a pipe and continuously kicked him. At the close of all the evidence, the trial court found appellant guilty of robbery. He was subsequently sentenced to a term of three years to fifteen years. Appellant filed a timely notice of appeal and subsequently raised the following assignment of error: THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. -7- Appellant argues that a robbery did not occur in this case. Appellant contends that an attempted theft of beer was stopped in progress, and he merely tried to flee from a more serious beating at the hands of Robert Woidke. In State v. Martin (1983), 20 Ohio App.3d 172, 175, the court stated that with regard to the issue of manifest weight of the evidence: 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. This court is mindful that the weight of the evidence and the credibility of the witnesses are primarily for the trier of facts. State v. DeHass (1976), 10 Ohio St.2d 230, paragraph one of the syllabus. Appellant in this case was convicted of Robbery, in violation of R.C. 2911.02, which provides in pertinent part: (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. We find that in the instant case, the trial court simply chose to believe the State's witnesses. We are unable to find that the trial court lost its way and created such a manifest -8- miscarriage of justice that appellant's conviction must be reversed and a new trial ordered. We conclude that there was substantial competent credible evidence to support the trial court's verdict of guilty of robbery. Accordingly, we determine that appellant's conviction for robbery was not against the manifest weight of the evidence. Appellant's assignment of error is without merit and is overruled. Trial court judgment is affirmed. -9- 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. 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. .