COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67899 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : JERRY L. CRISP : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JULY 27, 1995 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-308914 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS JONES, ESQ. JAMES A. DRAPER, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public Defender FRANCINE GOLDBERG, ESQ. BY: ROBERT R. CLARICO, ESQ. Assistant County Prosecutor Assistant Public Defender 8th Floor Justice Center The Marion Building, Room 307 1200 Ontario Street 1276 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113-1569 -2- PATRICIA ANN BLACKMON, J.: Jerry L. Crisp, defendant-appellant, appeals his conviction for theft and assigns the following error for our review: THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF THE OFFENSES HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. This case proceeded to a jury trial after Crisp was indicted. Prior to the beginning of trial, the parties stipulated that Crisp had a prior conviction for robbery. The State presented two witnesses, Donald Gardner and Franklin Thompson, and they testified as follows: At approximately 5:00 p.m. on March 8, 1994, Jerry Crisp and a companion entered the Rite Aid pharmacy at the corner of E. 125th Street and Superior Avenue in the city of Cleveland. Crisp and his companion both picked up packages of cigars and walked through the store. His companion attempted to run through the exit and Crisp followed. As they went through the exit, the alarm buzzer went off. Officer Franklin Thompson of the Cleveland Police Department was off-duty and working as a security guard in the store. When the alarm sounded, he chased two men running out of the store. Crisp turned around and attempted to block Officer Thompson from -3- catching his companion. As they collided, Crisp dropped the two boxes of cigars he was holding. Crisp's companion got away, but Officer Thompson grabbed Crisp and retrieved the two boxes of cigars. Crisp did not have any money in his possession and was placed under arrest for theft. The two boxes of cigars were brand named "Black and Mild" cigars and valued at one dollar per box. Crisp testified on his own behalf. He claimed he had given Wright all of the money in his pocket, $1.82, and they went into the store together to buy beer. Crisp stood by the door waiting, while Wright walked through the store and ran out of the store. Crisp testified he never took any cigars and does not smoke them. Katrina Smith also testified on behalf of the defense. She was Crisp's girlfriend. She went to the Sixth District police station where Crisp was held after his arrest. At the station, she talked to Officer Thompson, and he told her Crisp was being held for suspicion of shoplifting so the police could get information about Wright. After deliberations, the jury returned a verdict of guilty, and the case was continued for sentencing. Crisp was sentenced to an indefinite term of one and a half to five years, and this appeal followed. In his sole assignment of error, Crisp argues his conviction was against the manifest weight of the evidence and challenges the credibility of Thompson. A conviction will not be reversed as against the manifest weight of the evidence unless, after weighing the evidence and all reasonable inferences, and considering the -4- credibility of the witnesses, the reviewing court finds that the factfinder lost its way in resolving the conflicts in the evidence 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. A reviewing court will reverse a conviction as against the manifest weight of the evidence only in exceptional cases. State v. Farris (1991), 71 Ohio App.3d 817,822. Crisp claims Thompson's testimony was contradicted by all of the other witnesses. We disagree. Thompson's testimony with respect to whether Crisp was in possession of cigars is not inconsistent with the testimony of Gardner and Smith. Thompson testified Crisp dropped the cigars when they collided and he retrieved them from the ground. Gardner and Smith testified Crisp did not have the cigars in his possession when he was placed under arrest. Because Crisp dropped the cigars prior to his arrest, there was no inconsistency. Crisp also claims Thompson's testimony was tainted by his personal interest and so conflicting and incredible as to be unreliable. Questions of credibility, such as those raised by Crisp, were primarily matters to be resolved by the jury as factfinder. See State v. DeHass (1969), 10 Ohio St.2d 230. In reviewing the evidence and considering the credibility of the witnesses, this court finds no indication the jury lost its way in resolving the conflicts in the evidence and created a manifest -5- miscarriage of justice. Accordingly, we hold the verdict is not against the manifest weight of the evidence. 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. JAMES D. SWEENEY, P.J., and HARPER, J., CONCUR. PATRICIA ANN 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- .