COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68277 and 68278 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION TABETHA L. DOUGAN : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : AUGUST 15, 1996 CHARACTER OF PROCEEDING : Criminal appeals from Court of Common Pleas : Case Nos. CR-303164 and CR-308262 JUDGMENT : Appeal No. 68277 affirmed; Appeal No. 68278 affirmed in part; conviction for grand theft vacated. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones Cuyahoga County Prosecutor By: Dominic Delbalso, Esq. Thomas Shaughnessy, Esq. Anthony Bondra, Esq. 11510 Buckeye Road Assistant Prosecuting Cleveland, Ohio 44104 Attorneys The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- HARPER, J.: A Cuyahoga County Grand jury issued a two-count indictment against defendant-appellant, Tabetha Dougan, on October 27, 1993 (CR-303164). She was charged with the aggravated burglary of Cataldo R. Palmisano's home in violation of R.C. 2911.11, as well as the theft of his property in violation of R.C. 2913.02. A second indictment was issued against appellant on March 10, 1994 (CR-308262). Therein, she was charged with aggravated burglary, R.C. 2911.11; aggravated grand theft, R.C. 2913.02; and grand theft, R.C. 2913.02. The alleged victim of these offenses was Joseph Loecy. The cases were consolidated for a jury trial that commenced on September 26, 1994. The jury subsequently returned guilty verdicts as to all counts. The trial court thereafter sentenced appellant as follows: (1) in CR-303164, to concurrent terms of five to twenty-five years on count one and two years on count two; (2) in CR-308262, to concurrent terms of five to twenty-five years on count on, five to fifteen years on count two, and two years on count three. The sentence in CR-308262 was ordered to be served consecutively to that imposed in CR-303164. These convictions form the basis of App. Nos. 68277 (CR- 303164) and 68278 (CR-308262). This court, at appellant's request, consolidated the appeals on January 11, 1995 for record, briefing, hearing and disposition. -3- I. On December 2, 1992, just before 9:00 p.m., Cataldo Palmisano arrived at Rockie's, the lounge within the Hilton South located in Independence, Ohio. His friend, Michael Lamonica, arrived shortly thereafter. While the two men stood by the dance floor, a woman identifying herself as "Susan St. Clare," engaged Palmisano in conversation. Eventually, "St. Clare" commented about the men and women in the bar, then suggested that Palmisano and Lamonica go with her elsewhere. Lamonica drove Palmisano and "St. Clare" to a nearby establishment but it was closed. He then drove to the local Holiday Inn where the three individuals sat in a booth in the hotel's nightclub for at least an hour and a half. "St. Clare" and Palmisano sat on one side of the booth and Lamonica sat across from them. During the time that Palmisano, Lamonica and "St. Clare" spent together, "St. Clare" learned that Palmisano was single, lived alone, and had a brother who was a jeweler. Palmisano and Lamonica learned that "St. Clare" and her father were in Cleveland on business. She explained that she did secretarial work for her father who was in the building construction business. "St. Clare" also mentioned that she once lived in Arizona. Since Lamonica lived there as well in the past, the two of them spoke about a variety of places in that state. While at the Holiday Inn, "St. Clare" suggested that the three of them rent a video. Palmisano responded that he had videos at -4- his home in North Olmsted. Lamonica, therefore, drove "St. Clare" and Palmisano back to the Hilton where Palmisano picked up his 1992 Dodge Caravan. Lamonica decided at this point that he was going to go home rather than watch a video at Palmisano's, so only "St. Clare" went with Palmisano. By now, it was approximately 1:30 a.m. Palmisano showed "St. Clare" his house upon their arrival, then asked her if she wanted some wine. They then went downstairs to the recreation room to watch a movie. Palmisano accepted "St. Clare's" offer to give him a back rub. He sat on the floor in front of the couch, and she sat behind him, rubbing his shoulders and back. "St. Clare" then asked Palmisano if he ever had a "sex kiss." Not knowing what it was, "St. Clare" showed him a "sex kiss" by taking some wine in her mouth and then squirting it into his mouth. "St. Clare" gave Palmisano two of these "kisses." When Palmisano started to feel very tired, he told "St. Clare" that he was going to bed because he was not feeling well. Palmisano woke up at approximately 10:30 a.m. the following morning. Still drowsy, he heard a banging noise which turned out to be his garage remote control unit. He also noticed that his van was missing. In addition, two diamond rings, a watch and other household items, including a coin collection belonging to his girlfriend, were missing from Palmisano's home. P a l m i s a n o telephoned his girlfriend, Barbara Heywood, at about 11:00 a.m. and asked her to come to his home. Upon her arrival, she observed that Palmisano stumbled when he walked, and could not communicate. He, however, rejected her advice that he go to the hospital. -5- Heywood threw away the wine bottle and washed the two wine glasses that were used by Palmisano and "St.Clare." Heywood also found a note on the dining room table that said, "Check airport." A trip to the airport in search of Palmisano's van was unsuccessful. Palmisano and Heywood then returned to Palmisano's home and telephoned the North Olmsted Police Department. Then patrol officer Donald Potchatek (a detective at the time of trial), arrived within the next half hour at about 2:10 p.m. Det. Potchatek processed the scene the following day, processing that included the dusting of the wine bottle for latent prints. The $16,000 van was recovered several days later at the airport. Palmisano and Lamonica independently participated in the creation of composite drawings of "St. Clare" on December 8 and 9, 1992, respectively. The Moreland Hills Police Department provided appellant's photograph to Det. Potchatek on September 17, 1993. Palmisano, on September 24, 1993, selected from photographic arrays at the North Olmsted Police Department, a photograph of appellant as depicting "St. Clare." Palmisano and Lamonica confirmed at trial their identifications of appellant as "St. Clare." Meanwhile, Joseph Loecy arrived at Shooter's, a restaurant/bar located in the Flats section of Cleveland, on Friday, August 7, 1993 at approximately 7:30 p.m. Not long after his arrival, appellant met a young woman named "Tiffany" who was having difficulty attracting the attention of a bartender because of the size of the crowd. Loecy and the woman, later identified as appellant, went to the end of the bar where they drank from a -6- bottle of champagne that was opened by Loecy's son, Roger, the owner of Shooter's. Loecy also introduced appellant to a group of people that included his friend, Vincent Conforte. After conversing in the bar area for a while, Loecy invited appellant to his 50-foot speed boat that was docked outside. The two of them stayed on the boat, talking for about an hour, and drinking one glass of champagne each. Loecy learned at this time that appellant was visiting from South Carolina with her parents and sister. The conversation otherwise turned to Loecy's car and watch collections, and his health. Appellant then asked if she could go to Loecy's home on Chardon Road in Geauga County. They arrived at the house about a half hour after leaving Shooter's. En route, Loecy felt "kind of funny." Appellant also repeatedly asked him whether anyone was following them. Once inside the residence, appellant asked Loecy if he had any champagne. After opening a bottle and pouring two glasses, Loecy provided appellant with a tour of his house. He then asked her if she wanted to go into the hot tub. Loecy left appellant in the kitchen while he went to turn the hot tub on and set the heat. Afterwards, he found appellant on the bed in the bedroom with two glasses of champagne. Appellant massaged Loecy's back for a little bit, after which she blew some champagne in his face. She then asked him to open his mouth, and she blew some into his mouth. It was approximately 10:00 p.m. when Loecy left the bedroom to check on the hot tub. -7- Loecy entered the hot tub, expecting appellant to join him, but "passed out" instead. He eventually woke up and was able to get out of the hot tub. In a weakened state, Loecy went into his dining room and put on the lights. He observed appellant in the hallway just before she left. Conforte telephoned Loecy on the morning of Sunday, August 9, 1993. Loecy's difficulty in speaking prompted Conforte to contact emergency medical services. Loecy was transported to Lake County West Hospital where he remained for three days and was treated by his personal physician, Dr. John C. Martin. According to Dr. Martin, Loecy arrived at the hospital "pretty much unconscious and incoherent." Loecy was severely dehydrated due to his prolonged stay in the hot tub. The time factor also could have caused his lethargy and confusion as a result of a low level of potassium. Blood and urine tests revealed no levels of toxins, but Dr. Martin opined that if Loecy spent enough hours in the hot tub, any drugs in his system could have possibly been lost through perspiration. As to how Loecy came to be in the hot tub for a purportedly prolonged time period, Dr. Martin could not opine with certainty, but noted the ingestion of drugs as a possible cause. Following his discharge from the hospital, Loecy inventoried his automobile and watch collections. The automobile collection consisted of eight Rolls Royces, three of which were located inside the home in a separate room. Approximately three hundred watches of varying values made up the $220,000 watch collection. None of -8- the Rolls Royces was missing, but the watch collection was gone. Additionally, other items were missing from Loecy's home, specifically, a watch outside the collection and a three and one- half karat diamond ring. The parties stipulated that the missing jewelry was worth $100,000. Loecy provided a description of the woman he met on August 7, 1993 to Detective Bruce Philbrick of the Geauga County Sheriff's Department. He subsequently assisted in the preparation of a composite drawing. Loecy eventually identified on September 15, 1993, a photograph of appellant as depicting the woman. Conforte independently selected a photograph of appellant as well in March 1994. Both Loecy and Conforte also made a positive identification of appellant at trial. Castulo Bilano, a trooper with the Highway Patrol for the state of Texas, worked the 3:00 to 12:00 p.m. shift on October 24, 1993. While on Interstate 10, he stopped a 1986 Mercedes Benz with Virginia license plates at approximately 8:10 p.m. for speeding. Trooper Bilano identified appellant at trial as the person driving the vehicle at the time of the stop. He later recalled that appellant's hair was much lighter in color at the time of the stop versus at the time of trial. Bilano radioed his location to the local communications operator, and provided the vehicle's license plate number. He then spoke with appellant and requested her driver's license. Appellant provided a driver's license from the state of Tennessee with her name on it. The license listed her height at 5' 8". A subsequent -9- warrant check revealed that a warrant for appellant's arrest was issued in Geauga County, Ohio. A second trooper, Keith Randall Oliver, arrived at Bilano's location about five minutes after Bilano learned about the existing warrant. Appellant was handcuffed, arrested and placed in Bilano's patrol car. Although Bilano observed a prescription pill bottle in the automobile at the time of an inventory search, it was not removed since it held no relevance at the time. However, after receiving additional information from Geauga County, Troopers Bilano and Oliver searched the vehicle pursuant to a search warrant issued on October 25, 1993. Bilano discovered State's Exhibit No. 6-B, a vial containing 100 pills of Ativan, in a black leather travel bag. A second pill vial, State's Exhibit No. 6-A, was recovered in an inventory search of appellant's purse upon her arrival at the Sheriff's Office. A member of the Geauga County Sheriff's Department subsequently contacted Trooper Olive. Det. Philbrick traveled to Texas to pick up the physical evidence obtained by the troopers from appellant and the Mercedes Benz. Appellant was then transported back to Ohio. Appellant visited Dr. Frank Kaltenekker, a general practitioner from Chicago, on six occasions in the one-year period between May 1992 to May 1993. He prescribed Ativan for her at each visit in the form of 2 milligram pills. Dr. Kaltenekker identified State's Exhibit No. 6-B, a prescription pill bottle with his and appellant's name on it and a prescription date of September 1993, -10- as originally containing one hundred Ativan pills in 2 milligram form. The dosage was one tablet two to three times a day. Ativan is an "anxiolytic" primarily used for anxiety. According to Dr. Kaltenekker, the maximum per day dose of Ativan would be 10 milligrams. In general, Ativan has a "calming effect," i.e., it sedates or tranquilizes the user. One side effect, depression, is intensified if the pills are taken with alcohol. Dr. Kaltenekker estimated that it would take "elephant doses" or "large" doses of the drug, which is soluble in water or alcohol, to "knock out" an adult. He, however, conceded that it was fair to say that large doses taken with alcohol can render a person unconscious. According to Dr. Craig Sutheimer, a toxicologist with the Cuyahoga County Coroner's Office, Ativan is very soluble in alcohol. An individual who takes the drug typically relaxes and/or falls asleep. Larger doses of two to three 2 milligram tablets taken with alcohol could easily render a person asleep, and doses of six to ten such tablets could render a person very sleepy, unconscious or cause a low grade coma. Finally, Dr. Sutheimer advised that most drug screenings are not set up to detect Ativan. II. Appellant, in the first assignment of error, submits that the trial court erred in allowing prejudicial other acts evidence to be introduced at trial. She specifically focuses on "other acts evidence" that purportedly stemmed from the state's opening -11- argument and the testimony of a Federal Bureau of Investigation agent. Generally, evidence of previous or subsequent other crimes, wrongs or acts is inadmissible to show that the accused has a propensity to commit crimes. Evid.R. 404(B); State v. Smith (1990), 49 Ohio St.3d 137, 140; State v. Wilkinson (1980), 64 Ohio St.2d 208, 314. Exceptions to this general rule are limited to R.C. 2945.59 and Evid.R. 404(B) to instances where the probative value of the evidence is sufficient to allow its admission. If other acts evidence is relevant, its admission is proper, absent prejudice, even if it may show or tend to show that the accused committed another crime. See R.C. 2945.59; State v. McCornell (1993), 91 Ohio App.3d 141; State v. Covrett (1993), 87 Ohio App.3d 534. Since the standard against admissibility is strict, State v. Jamison (1990), 49 Ohio St.3d 182, 185, a trial court must determine whether the other acts are relevant to the crimes at issue. See Evid.R. 402; State v. Lowe (1994), 69 Ohio St.3d 527; McCornell. Evidence is relevant if it tends "to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Evid.R. 401. Notwithstanding relevancy, a trial court may exclude the evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of issues, or of misleading the jury." Evid.R. 403. See State v. Morales (1987), 32 Ohio St.3d 252, 258. -12- Despite the mandatory language of Evid.R. 403(A), the appropriate standard of appellate review is the abuse of discretion standard. State v. Combs (1991), 62 Ohio St.3d 278, 284; State v. Sage (1987), 31 Ohio St.3d 173, paragraph two of the syllabus. The term "abuse of discretion" connotes more than an error of law; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Montgomery (1991), 61 Ohio St.3d 410, 413; State v. Adams (1980), 62 Ohio St.2d 151, 157. In the present case, the state commented during its opening statement that appellant was part of a multi-state ring. However, the trial court properly instructed the jury that the state's opening statement is not to be considered as evidence. It is presumed that the jury followed the trial court's charge. See State v. Murphy (1992), 65 Ohio St.3d 554. Regarding the agent's testimony, Agent Gary Graff first offered that physical descriptions provided in similar cases in Pennsylvania matched that of appellant. The agent offered the Pennsylvania connection on his own following the state's question as to whether he received any information from Det. Philbrick. The state withdrew the question upon defense counsel's objection. When the agent mentioned Pennsylvania again, the trial court sustained defense counsel's objection. Under these circumstances, appellant's first attack against the agent's testimony fails to expose an abuse of discretion. The agent next offered that appellant stayed at a Pennsylvania motel with another suspected individual by the name of Amy -13- Chappell. He also related that an investigation of phone records in the Washington D.C. area revealed a call to the owner of the 1986 Mercedes Benz driven by appellant in Texas, thus allegedly intimating the owner suffered a fate similar to that of Loecy. Finally, the agent's testimony disclosed that appellant provided a phony address when submitting her prescriptions for Ativan to a drug store in Chicago. Agent Graff explained that he first became involved in the Loecy investigation upon learning it was a major theft case. He explained that the F.B.I.'s standard operating procedure is to assist local authorities if it is suspected that the case may have been committed as part of a multi-state enterprise. Appellant suggests that this testimony permitted the jury to infer the worst possible scenario without any supporting evidence. The scenario is that appellant was involved in a multi-state ring that drugged unknowing wealthy males with the intention of stealing their valuables. There is no dispute that no evidence existed which conclusively proved either a multi-state ring or appellant's use of drugs, including Ativan, to sedate any victims. She argues, therefore, this "other act" evidence allowed the jury to infer the existence of a multi-state ring and usage of drugs, and impermissibly convicted her based upon these inferences. The state basically relies on the rule that "'[e]vidence of other crimes may be presented when "they are so blended or connected with the one on trial as that proof of one incidentally involves the other; or explains the circumstances thereof; or tends -14- logically to prove any element of the crime charged."' ***" Wilkinson, at 317. See State v. Howard (Apr. 8, 1993), Cuyahoga App. No. 62191, unreported. Therefore, "other acts" may be introduced if they provide the setting for a case. See State v. Hughley (1984), 20 Ohio App.3d 77; State v. Ellis (Aug. 1, 1989), Franklin App. No. 88AP-1154, unreported. Agent Graff's testimony about similar crimes in Pennsylvania, and the telephone calls and phony address, was not relevant to some issues involving proof of guilt. See State v. Bobo (1989), 65 Ohio App.3d 685; State v. Parrish (1991), 71 Ohio App.3d 659. However, the outcome of the present case turned in large measure on whether the jury believed Palmisano's, Loecy's, Lamonica's and Conforte's identifications of appellant. Given the strength of the four independent identifications which were made prior to and at trial, no reasonable probability exists that the evidence may have contributed to the accused's convictions. See State v. DeMarco (1987), 31 Ohio St.3d 191; State v. Williams (1983), 6 Ohio St.3d 281. This court is thus convinced that the admission of the testimony about which appellant complains, if error, was harmless beyond a reasonable doubt in that there was overwhelming evidence of the appellant's guilt. Id. Appellant's first assignment of error is overruled. III. Appellant's second assignment concerns the trial court's alleged error in prohibiting the defense from calling a relevant witness. Appellant argues that she was denied the right to -15- compulsory process when the court prohibited a subpoenaed witness, Louis Vizurraga, to take the stand. Vizurraga was the victim of a similar crime in Lake County. He provided a physical description of his offender that did not match certain characteristics of appellant, including height. Vizurraga set his offender at 5' 4" whereas the height estimates of Palmisano and Loecy were several inches higher. Appellant, in fact, stood slightly over 5'10". The Lake County case involving Vizurraga was dismissed prior to appellant's trial. The Lake County prosecutor sought and was granted a dismissal pursuant to Vizurraga's request that the case not proceed to trial. According to the prosecutor, the request was based on the overwhelming amount of pretrial and expected trial publicity. Appellant argues that if Vizurraga were permitted to testify about his initial description of the "Kissing Bandit" and his subsequent identification of appellant as the "Kissing Bandit," the jury could have rejected the identification because the initial description was not that of appellant. The jury could then find that appellant was not the "Kissing Bandit" in the Geauga and Cuyahoga County cases as a result of the rejection of Vizurraga's identification. An accused certainly has the fundamental right to present witnesses on her behalf. State v. Brown (1992), 64 Ohio St.3d 649, 652, citing Taylor v. Illinois (1988), 484 U.S. 400, 408, 108 S.Ct. 646, 652, 98 L.Ed.2d 798, 810. "In order to ensure that an accused's right to compulsory process is protected, it thus is -16- essential that a trial court may make the necessary inquiries before concluding that the testimony of a witness subpoenaed would not be relevant to the accused's defense." Id. An accused's right to call witnesses in her favor is thus not without limit. If challenged, the accused must make some plausible showing as to how the testimony is material and favorable to the defense. United States v. Valenzuela-Bernal (1982), 458 U.S. 858, 874, 102 S.Ct. 3440, 3450, 73 L.Ed.2d 1193. Some leeway is, of course, afforded to the accused since the possible evidence is merely described by the defense versus actually introduced by the subpoenaed witness. Id. In the within case, the state openly acknowledged its belief that appellant was only one of many "Kissing Bandits" in the country. Palmisano's and Loecy's descriptions of the woman they were with on the evenings in question did not differ so drastically from appellant's actual physical characteristics as to make the discrepancy between Vizurraga's initial description and the subsequent identification relevant. In other words, simply because Vizurraga may have been led to believe by investigating authorities that appellant was the person who stole his personal belongings, when in fact she was not that person, does not mean that Palmisano's and Loecy's identifications are subject to the same doubt. Vizurraga's identification of appellant has no bearing on the independent identifications of the remaining victims, and carried little probative value. Under these circumstances, the -17- trial court did not abuse its discretion in disallowing Vizurraga's appearance at the trial. Valenzuela-Bernal; Brown. Appellant's second assignment of error is overruled. IV. Appellant, in the third assignment of error, challenges her conviction for grand theft as contained in count three of CR- 308262. She argues that there was insufficient evidence to sustain the conviction because despite Loecy's testimony that he never gave her permission to drive one of his Rolls Royce automobiles, there was no evidence that she ever drove it. An appellate court's function in reviewing the sufficiency of the state's evidence in support of a criminal conviction is to examine all of the evidence offered by the parties in a light most favorable to the prosecution, and then to determine "whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." State v. Jenks (1992), 62 Ohio St.3d 259, 273. See Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Where the evidence is such that "any reasonable trier of fact could have found that all of the elements of the offenses charged were proven beyond a reasonable doubt," a jury's verdict must not be disturbed on appeal. Jenks, 273. Although there was a vague reference in the present case to a missing automobile by an investigating officer, the state concedes that "there was no testimony that the Rolls Royce in question was missing at the time the victim regained consciousness." The only -18- testimony offered by Loecy as to this count was that he never gave appellant permission to drive a Rolls Royce, not that she drove it. R.C. 2913.02(A)(1) defines the crime of theft and provides in part that "no person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services *** without the consent of the owner ***." The state is not only required to prove the element of lack of consent; the statute also requires proof that appellant obtained or exerted control over the Rolls Royce. Lack of consent does not equate to the affirmative act of obtaining or exerting control. The state's failure to produce title ownership was not required, State v. Rhodes (1982), 2 Ohio St.3d 74, 76, but the state was required to provide evidence that appellant either obtained or exerted control over the vehicle. Given the total absence of evidence with regard to this other element, a reasonable trier of fact could not find that all of the essential elements of theft as defined in R.C. 2913.02(A)(1) were proven beyond a reasonable doubt. Jenks. Appellant's conviction for grand theft of Loecy's Rolls Royce is thus vacated since it is not supported by sufficient evidence. Id. Appellant's third assignment of error is sustained. V. Appellant's fourth assignment of error deals with the trial court's evidentiary rulings on State Exhibit Nos. 6-A and 6-B. Appellant submits that the pill vials should not have been admitted -19- into evidence because there was absolutely no evidence that Ativan was used to render Palmisano and/or Loecy unconscious on the dates in question. Initially, the trial court only permitted the state to offer Exhibit No. 6-A into evidence. Exhibit No. 6-B was not permitted because the prescription was filled in September 1993, nearly a year after Palmisano's incident, and approximately two months after that of Loecy. There was, however, ample testimony offered at trial regarding both pill vials. A review of the present case reveals that it basically did not matter whether Palmisano and Loecy were rendered unconscious by appellant through the introduction of drugs into their systems, or if the victims simply nodded off due to tiredness or alcohol consumption. The alleged use of drugs was a purported means to an end, i.e., theft. Appellant was not charged with any offenses specifically relating to the alleged illegal use of drugs. In other words, even if there was no evidence with regard to Ativan, including the prescription vials, the state could have proceeded to prosecute appellant for the thefts. The identifications offered by the state's witnesses, including both victims, constitutes overwhelming proof of appellant's guilt, see infra. Under these circumstances, any abuse of discretion exhibited by the Ativan evidence is harmless error. DeMarco; Williams. Appellant's fourth assignment of error is overruled. -20- VI. Appellant's fifth and final argument is that her convictions are against the manifest weight of the evidence. She submits that the identifications are all suspect because no physical evidence, including fingerprints, substantiated her presence in either Palmisano's or Loecy's homes; there was no evidence that Ativan caused the victims' unconsciousness; and none of the victims' belongings were ever traced to appellant. In State v. Martin (1983), 20 Ohio App.3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence. The court stated: [T]he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the 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. *** (Citations omitted.) Id., 175. See Tibbs v. Florida (1982), 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652. Moreover, this court "'may weigh evidence only to determine whether it is of sufficient probative force to support a finding of guilt.'" State v. Hawkins (1993), 66 Ohio St.3d 339, 344, quoting State v. Tyler (1990), 50 Ohio St.3d 24, 33. Therefore, it must be stressed that the weight of the evidence and the credibility of the witnesses are issues primarily left to the trier of fact, here the jury. State v. Grant (1993), 67 Ohio St.3d 465, 476; State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. -21- In the present case, four individuals who were with the so- called "Kissing Bandit" on the evenings of December 2, 1992 and August 7, 1993, identified appellant as the "Kissing Bandit." Palmisano, Loecy and Lamonica were with the woman for hours. Even though Conforte briefly saw the woman when she was introduced by Loecy, he also identified appellant as the woman. A review of the defense's cross-examination of these witnesses, including its attacks on the discrepancy in height, facial structure and hair color, reveals no doubt as to the validity of the identifications. Regardless of whether the state failed to prove that appellant used Ativan or any other drug in the commission of the offenses, the identifications alone demonstrate that the jury did not lose it way, nor did it create a manifest miscarriage of justice in rendering the remaining guilty verdicts. Appellant's remaining convictions are thus not against the manifest weight of the evidence. Martin; see State v. Eley (1978), 56 Ohio St.2d 169. Appellant's fifth assignment of error is overruled. Judgment affirmed in App. No. 68277. Judgment affirmed in part, reversed in part, in App. No. 68278; appellant's conviction for grand theft, R.C. 2913.02(A)(1), is hereby ordered vacated in accordance with the foregoing opinion. -22- 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 Cuyahoga County 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. DAVID T. MATIA, J., AND TERRENCE O'DONNELL, J., CONCUR. PRESIDING JUDGE SARA J. HARPER 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 .