COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61297 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION TERRENCE EVANS : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 19, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-258508 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. CHARLES M. MORGAN, JR., ESQ. CUYAHOGA COUNTY PROSECUTOR 11510 Buckeye Road BY: EDWARD O. PATTON, ESQ. Cleveland, Ohio 44104 ASSISTANT COUNTY PROSECUTOR The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - ANN MCMANAMON, J.: Terrence Evans timely appeals his convictions for felonious assault on a police officer (R.C. 2903.11) and attempted kidnapping (R.C. 2905.01). In one assignment of error, Evans contests the manifest weight of the evidence supporting his convictions. Upon a review of the record, we affirm. In reviewing a challenge to the manifest weight of the evidence, this court must look at the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether "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. Only in those cases where the evidence weighs heavily against conviction should a new trial be granted. Id. Further, we are mindful that the evaluation of witness credibility primarily lies with the jury. State v. DeHass (1967), 10 Ohio St.2d 230. R.C. 2903.11 provides: "(A) No person shall knowingly: (1) Cause serious physical harm to another; (2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code. - 2 - (B) Whoever violates this section is guilty of felonious assault, an aggravated felony of the second degree. If the victim of the offense is a peace officer, as defined in section 2935.01 of the Revised Code, felonious assault is an aggravated felony of the first degree." Kidnapping is proscribed by R.C. 2905.01, which states in relevant part: "(A) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where he is found or restrain him of his liberty, for any of the following purposes: *** (2) To facilitate the commis- sion of any felony or flight there- after; (3) To terrorize, or to inflict serious physical harm on the victim or another; ***." After leaving work at 11:30 p.m., October 6, 1990, Cleveland police officer Ginger Hasan socialized at an eastside club until 5:00 a.m. when she left for home in her automobile. Hasan drove eastbound on Euclid Avenue where she eventually stopped her auto and signalled for a left-hand turn into her driveway. Hasan testified that, while she waited for oncoming traffic to pass, an auto hit her from the rear. The driver, Terrence Evans, drove his car to the side of the roadway and left the auto to examine it for damage. Hasan approached Evans and asked "Didn't you see - 3 - you hear me talking to you?" Evans walked to the side of his auto and opened the door. Hasan then identified herself as a police officer and told Evans they needed to exchange insurance information. According to Hasan, Evans grabbed her and placed a knife against her neck. Hasan testified she was able to put her fingers between her neck and the knife as she and Evans fell to the ground. Hasan estimated they wrestled on the ground for ten minutes and, when a passing auto diverted the defendant's attention, Hasan managed to remove her gun from her purse. Evans grabbed the weapon, which then discharged. Hasan stated she was unable to point the gun towards Evans so she fired four more shots to attract attention. The defendant told Hasan "You shot me. I'm going to kill you." At that time, a police car stopped and the officer ordered "drop the gun." Hasan averred the defendant yelled "This crazy female is trying to shoot me" and released Hasan. Evans left in his auto with the police officer in pursuit. Hasan testified other officers arrived at the scene and took her to a hospital. Hasan received twenty stitches in her right hand and one in her left to close the wounds caused by the defendant's knife. On cross-examination, Hasan denied drinking that evening. Blood tests corroborated her testimony. - 4 - Police sergeant Russell Johnson heard shots while patrolling Euclid Avenue in the early morning hours of October 7, 1990. He observed two individuals wrestling in the street. According to Johnson, the female was on the ground on her hands and knees, and the male was on top of the female with one hand wrapped around her. The male, who the officer identified as the defendant, was holding the female's hand so she could not drop the gun. Evans eventually relaxed his grip enabling Hasan to release the weapon. The officer observed the defendant drop something as he walked away from Hasan and left the scene in his auto. Officer Johnson pursued Evans for one mile before Evans hit a curb. According to the officer, Evans claimed he was shot, but Johnson observed only slight bleeding on one of the defendant's hands. Officer Johnson returned with Evans to search the area where Evans dropped the object. The officer found a knife with an eight-inch blade. Thelma Jones, who lives with Hasan, testified she heard a female yell "help" and shots fired in the early morning hours of October 7, 1990. Jones observed two individuals wrestling in the street and telephoned police. On appeal, Evans claims Hasan was the aggressor. He argues Hasan's testimony was self-serving and designed to protect her against criminal charges and loss of her job as a police officer. Finally, Evans states Hasan's version of the struggle was illogical. According to Evans, Hasan could not both protect herself from the defendant and retrieve her gun during the - 5 - struggle. He also disputes Hasan's testimony that only one car passed by them during the incident. Reviewing the evidence presented to the jury, we find ample evidence to support the verdict. The jury was aware of Hasan's possible motivations and reasonably could determine she was a truthful witness. DeHass, supra. Further, the events as described by Hasan were not so incredible as to find the jury lost its way. Martin, supra. Accordingly, the defendant's assignment of error is overruled and the trial court's judgment is affirmed. Judgment affirmed. - 6 - 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. FRANCIS E. SWEENEY, P.J., AND HARPER, J., CONCUR. ANN MCMANAMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. .