COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61237 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : MICHAEL TORBERT : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OCTOBER 29, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-252686 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS-JONES MICHAEL E. MURMAN Cuyahoga County Prosecutor 14701 Detroit Avenue 8th Floor Justice Center Suite 555 1200 Ontario Street Lakewood, Ohio 44107 Cleveland, Ohio 44113 -2- PATRICIA A. BLACKMON, J.: Michael Torbert defendant-appellant, hereinafter Appellant timely appeals a jury verdict from the Cuyahoga County Court of Common Pleas, finding him not guilty of Robbery, but guilty of the lesser included offense of Theft of a Motor Vehicle, in violation of R.C. 2913.02. Having reviewed the transcript of proceedings and the legal arguments presented by the parties, it is the decision of this court that the appellant's conviction is affirmed. The apposite facts follow. Appellant was indicted on July 10, 1990 for a single count of Robbery, in violation of R.C. 2911.02 with a specification for a previous robbery conviction. On July 25, 1990, Appellant was arraigned and entered a plea of not guilty. A jury trial was commenced on December 6, 1990, and the prosecution introduced the testimony of three witnesses: Sandra Robinson, Officer Ronald Michelich, and Detective James Bergan. After the testimony of these three witnesses, Appellant moved for an acquittal pursuant to Crim.R. 29. The trial court overruled Appellant's motion. After this ruling by the trial court, Appellant offered no evidence, rested his case, and renewed his motion for acquittal, which was again overruled. On the following day, December 7, 1990, the jury returned a verdict of not guilty as to the Robbery, but guilty of the lesser included offense of Theft of a Motor Vehicle. On December 28, 1990, Appellant was sentenced to two years of incarceration at the Lorain Correctional Institute. -3- The record of the jury trial established that Sandra Robinson and Appellant were at one time romantically involved. They had lived together briefly for six months, and Appellant fathered her son. On April 30, 1990, Vincent Kraft, a friend of Sandra Robinson, drove her to her place of employment, the Free Clinic located at 12201 Euclid Avenue. He drove her car, a Nissan, which she purchased from Appellant. As they entered the Free Clinic parking lot she saw Appellant. Since she did not want to encounter him, she informed Vincent Kraft to continue driving out of the parking lot. Appellant then approached the car ostensibly to talk with Robinson, who informed Appellant that she was on her way to work and did not want Appellant to cause problems at her job. After the verbal interchange, Vincent Kraft pulled out of the lot and stopped at the traffic light in front of the Free Clinic. Robinson looked over her shoulder and observed Appellant nearing her car. Once he approached the passenger side of her car, he reached into the car and slapped her across the left side of her face, which caused Robinson to become dazed. Upon witnessing Appellant's action, Vincent Kraft exited the car and started to argue with Appellant. During the argument, a crowd gathered and some of the people from the crowd restrained Vincent Kraft, which enabled Appellant to enter the driver's side of Robinson's car and drive away. Robinson who remained in her car during the argument then jumped from the car as Appellant drove -4- away. When Robinson jumped from the car, she fell and was injured. Afterwards, she called the police who arrived shortly thereafter. Robinson was informed by a man and a woman who were not identified that her car was crashed into a telephone pole at East 118th Street and Euclid. After the accident, Robinson was conveyed to the hospital by the University Circle Police. A short time later, Robinson saw Appellant driving his mother's car and reported him to the police. He was arrested at his home, where he was hiding in an upstairs closet. Appellant asserts one assignment of error in support of his appeal. It states: THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues that since R.C. 2913.02 requires that the prosecution prove that Appellant had a purpose to deprive the alleged victim of her property, his conviction is against the manifest weight of the evidence. The underlying reason, according to Appellant, is that the evidence produced at trial failed to establish beyond a reasonable doubt that Appellant intended to deprive Sandra Robinson of her car. The rules pertaining to the issue of manifest weight are well established in Ohio. Judgments that are supported by some competent and credible evidence going to all the essential elements of the case will not be reversed by a reviewing court on the grounds that the evidence is against the manifest weight of -5- the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. In State v. Martin (1983), 20 Ohio App.3d 172, the Hamilton County Court of Appeals set forth at Syllabus 3 a test for claims that a conviction was against the manifest weight of the evidence. It states: In considering the claim that the conviction was against the manifest weight of the evidence, the test is much broader. 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. In addition, this court has promulgated a litany of factors to be used as guidelines in an evaluation of whether the verdict is against the manifest weight of the evidence. This court, in State v. Mattison (1985), 23 Ohio App.3d 10 at Syllabus, stated: In determining whether the decision of a trial court is against the manifest weight of the evidence, the following factors are guidelines to be taken into account by the reviewing court: 1. The reviewing court is not required to accept as true the incredible; 2. whether the evidence is uncontra- dicted; 3. whether a witness was impeached; 4. what was not proved; 5. the certainty of the evidence; 6. the reliability of the evidence; 7. whether a witness; testimony is self-serving; 8. whether the evidence is vague, uncertain, conflicting or fragmen- tary. -6- When these legal principles are applied to the instant case, the conclusion is that Appellant's conviction was not against the manifest weight of the evidence. R.C. 2913.02(A), the statute that Appellant was convicted of violating, in pertinent part, reads: (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 to 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; (3) By deception; (4) By threat. Appellant insists that he did not have the intent or purpose to deprive Robinson of her car. Appellant argues that the evidence established that he and Robinson had a previous personal relationship. Further, Appellant asserts that he merely wanted to have a conversation with Robinson out of Kraft's presence but that Robinson voluntarily jumped out of the car. In addition, Appellant argues that there is no evidence that he planned to drive off with the car until Robinson refused to speak with him. Appellant, therefore, suggests that the prosecution did not prove that he intended to permanently deprive Robinson of her property or intentionally damage the vehicle. In the case sub judice, the conviction was based primarily on the testimony of Sandra Robinson. Thus, the evidence of Appellant's taking of the car was uncontradicted. In considering -7- some of the other guidelines contained in Mattison, supra, the evidence regarding Appellant's actions that day was not vague, uncertain, conflicting, or fragmented, nor was it incredible. Appellant insists that the evidence concerning his mens rea of purpose was not supportive of a conviction. The key to whether Appellant's purpose was proven lies in the fact that the prosecution utilized circumstantial evidence in this regard. If, in fact, Appellant had no purpose to take Robinson's vehicle, the question that immediately comes to mind is why he did not stop and get out of the vehicle when Robinson jumped out. Clearly, if his sole purpose was to have a private conversation with Robinson, he could no longer do that once Robinson exited the vehicle. Instead, Appellant drove the vehicle away and crashed it into a pole. On these facts, it is not an unreasonable inference that Appellant had the purpose of depriving Robinson of her motor vehicle. Appellant could have easily stopped the car and got out of it once Robinson jumped out, if his intention was something other than depriving her of her motor vehicle. This conviction was not against the manifest weight of the evidence. The trier of fact concluded from evidence presented that Appellant purposefully deprived Robinson of her motor vehicle. On this record, this court cannot conclude that the jury's inferences were unreasonable, that the jury lost its way, or created such a manifest miscarriage of justice that Appellant's conviction should be reversed. -8- 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 HARPER, 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. .