COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68675 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION ANTHONY R. EVANS : : Defendant-appellant : : DATE OF ANNOUNCEMENT : JANUARY 4, 1996 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-302309 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: SEAN GALLAGHER, ESQ. CHARLES H. BRAGG, ESQ. Assistant County Prosecutor 303 East Bagley Road 8th Floor P.O. Box 309 Justice Center Berea, OH 44017 1200 Ontario Street Cleveland, OH 44113 - 2 - PATTON, C.J. Defendant-appellant, Anthony Evans ("appellant") appeals his conviction for robbery in violation of R.C. 2911.02. The following facts were adduced at appellant's jury trial. Dave's Supermarket Security Guard, Alexander Radikovich testified that on September 30, 1993, he observed appellant acting suspiciously in the grocery store. Radikovich stated that the appellant kept looking around to see who was observing or following him. Radikovich then observed the appellant place a package of ham inside the front of his pants. Radikovich testified that he waited for the appellant to exit the store before he questioned him. The appellant bought punch, bread and a small bag of popcorn and then exited the store. Radikovich approached the appellant and identified himself as security. Radikovich then questioned the appellant about the ham and the appellant denied taking the ham. Radikovich then pulled the ham out from the front of appellant's pants and asked the appellant to follow him into the store. At first, the appellant began to walk back to the store with Radikovich. Radikovich stated that before they entered the store, the appellant pushed Radikovich down and ran. Radikovich chased the appellant across the street and through some back yards. Radikovich found the appellant behind a garage on Harvard Avenue located in Cleveland, Ohio. Radikovich stated that the appellant - 3 - indicated that he was armed and threatened to kill him so Radikovich drew his weapon and ordered the appellant to stop. Radikovich testified that he put his gun away and started to handcuff the appellant when the appellant started to swing violently at him. A fight ensued and eventually Radikovich was able to restrain the appellant and take him back to the store. Radikovich stated that once they returned to the store the appellant stated that he was a diabetic and asked for orange juice because he felt faint. Radikovich promptly gave him the orange juice. Cleveland Police Officer David Zemba testified that he was called to Dave's Supermarket regarding a robbery case. Zemba met with Radikovich and the appellant and discussed the events that had occurred. Zemba stated that he placed the appellant under arrest and took him to the station. Zemba also stated that the appellant did not complain of a beating or did not show any physical signs that he was beaten. The appellant testified that he went to Dave's Supermarket and bought a few items but did not have enough money to buy the ham. The appellant admitted that he stole the ham but denied any use of force against Radikovich. The appellant admits that he did run away from Radikovich. However, the appellant claims that Radikovich pulled a gun on him and then started beating him with brass knuckles and the appellant claimed he has a scar from this beating. The appellant denies hitting Radikovich because - 4 - Radikovich had a gun and he did not want to get killed over $4 worth of ham. The appellant's sole assignment of error states: THE CONVICTION OF THE APPELLANT, ANTHONY R. EVANS, OF ROBBERY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND WAS INSUFFICIENT TO SUSTAIN HIS CONVICTION AS A MATTER OF LAW. Appellant maintains that his conviction of robbery was against the manifest weight of the evidence and was insufficient to sustain his convictions as a matter of law. Specifically, appellant claims that there was insufficient evidence to show that force was used against Radikovich. R.C. 2911.02 states: (A) No person, in attempting or committing a theft offense, as defined in section 2913. of the Revised Code, or in fleeing immediately after such attempt or offense, shall use or threaten the immediate use of force against another. 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 Martin court stated as follows: 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. Martin, supra at 175. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. - 5 - State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. This court will not reverse a verdict where there is substantial evidence upon which a trier of fact could reasonably conclude that all the elements of the offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169. See also, State v. Jenks (1991), 61 Ohio St.3d 259, 273. Upon a careful review of the record, we are unable to conclude that the jury lost its way and created such a manifest miscarriage of justice that appellant's conviction must be reversed. The evidence adduced at trial showed that the appellant used force against Radikovich. See State v. Zoya (Dec. 16, 1993), Cuyahoga App. No. 64322, unreported. In light of the surrounding facts and circumstances, the jury could reasonably conclude that the appellant committed robbery. Accordingly, appellant's sole assignment of error is overruled. 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 Court of Common Pleas 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. NAHRA, J. KARPINSKI, J., CONCUR. CHIEF JUSTICE JOHN T. PATTON 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 journalization, .