COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68610 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION FAYEZ ABBOUD, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 16, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-307307 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Frank Gasper John W. Monroe Assistant County Prosecutors The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: James R. Willis Courthouse Square Building 310 Lakeside Avenue, N.W. Suite 350 Cleveland, Ohio 44113 -2- NAHRA, J.: Defendant-appellant Fayez Abboud appeals from his two convictions for violation of R.C. 2913.46(A), Trafficking in food stamps. The following pertinent facts are adduced from the record. In early 1993, with the help of federal government agencies, the Cleveland Police Department's Organized Crime Unit began investigating area stores for fraudulent activities with regard to federal food stamps. As part of this investigation, the unit enlisted officers from other departments to act in an "undercover" capacity. One of the officers so recruited was Det. Helen Parries of the Street Crimes Unit. On November 6, 1993, Det. Parries' supervisor, Det. James Brady, gave her some $50 books of food stamps and directed her to enter a convenience store known as "Abboud's Shop N Go," located on Miles Road in the village of North Randall, Ohio. Parries was familiar with this store from years of previous patronage of it as a customer; her parents lived in the neighborhood and when she visited them she had stopped at the store to obtain miscellaneous items on many occasions. Since Parries had never worn a uniform on her previous visits, the store employees were unaware she was a police officer. On this day, she approached one of the employees, displayed the book of food stamps, and asked, "Can I get cash for these -3- 1 stamps?" The employee directed her to stand aside; when some other customers had left, the employee went to speak to appellant. Parries recognized appellant as someone who had waited on her on earlier occasions. He was an older man whom Parries had seen working at the cash register and who had also exchanged brief pleasantries with Parries when she shopped there. Appellant gestured to her to come to him, walked halfway down a store aisle where they would be alone, and said, "How much?" Parries showed him $300.00 worth of food stamps. Appellant took the food stamps, went to a glassed-in office area for a few moments, then returned to Parries. He said merely, "$225." Parries said, "That's fine," and appellant gave her that amount of money. Parries thanked him, purchased some candy and cigarettes, and then left the premises. Two days later, on November 8, 1993, Parries returned to the store. This time she was accompanied by Det. Sharon Dickerson. Dickerson had also patronized the store on some earlier occasions to familiarize herself with the establishment and its employees. Parries found appellant in one of the store aisles stacking canned goods. She tapped him on the shoulder, greeted him, and asked him if he would "take care of" her "cousin's" food stamps. Appellant replied, "Oh, sure," and indicated Parries and Dickerson should wait for him in another aisle. 1 Quoted material indicates testimony adduced at appellant's trial. -4- A few minutes later, appellant came to the officers and asked, "How much?" Dickerson gave appellant $300.00 in food stamps. Again, appellant went to the office area; when he returned, he counted out $230.00 and handed the money to Dickerson. Appellant then kissed both women on the cheek, declared them to be "good girls," and told them to "come back" with their stamps and he would "take care of" them. Thereafter, Dickerson purchased a few items before both women left the store. Approximately three weeks later, at separate times, both Parries and Dickerson picked appellant from a stack of photographs as the man at Abboud's Shop N Go who had exchanged the food stamp books for cash. Appellant was subsequently indicted on two counts of trafficking in food stamps, R.C. 2913.46, "[t]he face value of the 2 food stamp coupons involved * * * being less than $500.00." Appellant entered pleas of not guilty to the charges. At appellant's jury trial, during its case-in-chief; the State presented the testimony of the following witnesses: 1) detectives Parries and Dickerson; 2) two United States federal agents who had been involved in the food stamp investigation; and 3) one of appellant's relatives who had been formerly a store employee. At the conclusion of the State's case, appellant's counsel declined to make a Crim.R. 29 motion for acquittal on appellant's 2 Another charge was nolled by the State of Ohio prior to appellant's trial. -5- behalf. He did, however, thereafter present evidence on appellant's behalf in the form of numerous witnesses. In pertinent part, most of these witnesses testified appellant did very little work at the store, could not have entered the store's office area the way Parries and Dickerson described, and spoke and understood almost no English. The State presented a rebuttal witness on the matter of appellant's familiarity with the English language, whose testimony was permitted to be challenged by one of the defense witnesses before both sides finally rested in the case. Once again, defense counsel made no Crim.R. 29 motion for acquittal on appellant's behalf before the case was given to the jury. The jury ultimately found appellant guilty on both counts of the indictment; a co-defendant was found not guilty. The trial court sentenced appellant to a term of incarceration of one year on each count; however, it suspended the sentence, placed appellant on one year of probation, imposed a $1,500.00 fine, and ordered appellant to perform fifty hours of court community work service. Appellant has filed a timely appeal from his convictions and presents the following as his sole assignment of error: THE VERDICTS FINDING THE DEFENDANT GUILTY OF THE TRAFFICKING IN FOOD STAMP CHARGES MADE AGAINST HIM WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW IN THAT THE PROOF IS INSUFFICIENT TO SUPPORT A FINDING OF GUILT BEYOND A REASONABLE DOUBT. Relying primarily on the testimony of his own witnesses, appellant argues this court should reevaluate the testimony given by Detectives Parries and Dickerson in light of the totality of the -6- evidence adduced in this case and conclude the jury improperly 3 convicted him of the offenses charged. This court has thoroughly examined the record and finds appellant's argument lacks substance. In State v. Martin (1983), 20 Ohio App.3d 172 at 175, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here 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. * * * See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. (Emphasis added.) A reviewing court will not reverse a verdict where there is substantial evidence upon which the trier of fact could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169; State v. Jenks (1991), 61 Ohio St.3d 259. Moreover, the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. 3 Although appellant intimates the issue is also one of sufficiency of evidence, his failure to move for acquittal at any time during his trial has waived this issue for purposes of appeal. See, e.g., Dayton v. Rogers (1979), 60 Ohio St.2d 162; Akron v. Wendell (1990), 70 Ohio App.3d 35. -7- In this case, although appellant asserts in his argument that the testimony of Parries and Dickerson was suspect, this court cannot agree with his assertion. Parries and Dickerson were both experienced police officers. Parries had years of familiarity with the store, its various employees, and appellant in particular. The officers had ample time to observe and interact with appellant. Moreover, when later viewing a large photo array, both accurately "matched" appellant with his store, picking him as the one who had exchanged the food stamp books for them. Thus, the factors favoring the reliability of their testimony were substantial. State v. Hill (1987), 37 Ohio App.3d 10; State v. Parker (1990), 53 Ohio St.3d 82, paragraph two of the syllabus. Furthermore, the officers' testimony was corroborated in many instances by other evidence presented by the state. The testimony of appellant's witnesses, on the other hand, often did not address the issue of appellant's guilt, demonstrated bias, and was rebutted by the testimony of the state's witnesses. Under the circumstances, it was within the province of the jury, which was able to observe the demeanor of all of the witnesses and of appellant himself during the course of the trial, to choose to believe the evidence offered by the state rather than that offered by appellant. State v. DeHass, supra. Clearly, a review of the record in this case reveals the state presented reliable credible evidence of appellant's guilt. This court declines appellant's request to substitute its own judgment -8- concerning the credibility of the witnesses and the weight to be given to their testimony; it cannot say that on the basis of 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, supra. Therefore, the verdicts of guilty of trafficking in food stamps were not against the manifest weight of the evidence. State v. Abohamdi (Nov. 3, 1994), Cuyahoga App. No. 66344, unreported. Accordingly, appellant's sole assignment of error is overruled. Appellant's convictions are 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. SPELLACY, P.J., and PORTER, J., CONCUR. JOSEPH J. NAHRA 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 journalization, at which time .