COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69311 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION PATRICK J. RUSSELL : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MAY 9, 1996 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-324101 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: MARK J. MAHONEY (#0041928) Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES A. DRAPER Cuyahoga County Public Defender BY: DONALD GREEN (#0039202) Assistant Public Defender 1200 West Third Street N.W. 100 Lakeside Place Cleveland, OH 44113-1569 - 2 - SPELLACY, C.J.: Defendant-appellant Patrick J. Russell ("appellant") appeals his conviction for breaking and entering, theft, three counts of vandalism, failure to comply with order or signal of police officer, receiving stolen property/motor vehicle, and two counts of felonious assault with peace officer specifications. Appellant assigns the following error for review: I. PATRICK RUSSELL WAS DENIED HIS FREEDOM WITHOUT DUE PROCESS OF LAW BY HIS CONVICTION WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. On July 6, 1994, at approximately l:00 a.m., Maple Heights police officer Ted Mackiewicz observed a gray van without its lights on in the parking lot of the Marathon station located at Warrensville Center Road and Maple Heights Blvd. Suspicious because the business was closed, Officer Mackiewicz followed the van when it left the station. The officer received a radio broadcast of an alarm being activated at the Marathon station. When a break-in was confirmed at that address, Mackiewicz, now out of his jurisdiction, signalled a Warrensville Heights police officer that he was going to make a stop. Officer Mackiewicz activated his lights and siren, positioning his police vehicle behind the van. The van did not stop but increased its speed. The - 3 - van entered I-271 and led police on a chase at which speeds reached in excess of 100 m.p.h. Other police joined in the chase. The van crossed over the median strip and began travelling south on I-271. At different points in the pursuit, two officers were driving next to the driver's side of the van. Both identified appellant as the driver. Both testified they looked directly at the face of the driver. A rolling road block was executed in which police vehicles were in front, back, and on either side of the van in an attempt to first slow and then stop the van. The driver rammed the police car in front twice and struck the police cars on either side. The police car to the van's left was nearly run off the road. The van exited I-271 at Chagrin Blvd. The pursuit continued on Chagrin Blvd. at speeds between 90 m.p.h and 100 m.p.h. The chase went through the suburbs and into Cleveland. The van approached a railway crossing at which the gates were lowered. The van crashed through the gates and drove over the tracks. The driver then made a series of turns before losing control and hitting an electric pole. The police officers feared some electric wires would come down and backed their vehicles up to a safer distance. Two men were observed fleeing the van. Appellant was located under the front porch of a nearby house. He was uncooperative and refused to get out from under the porch until pepper spray was used. Appellant told one officer he was not involved in the chase - 4 - but had been on the corner selling drugs and hid because he believed the police were the vice squad. It was determined the van was stolen earlier in the evening from the driveway of a home in Garfield Heights. Items taken from the Marathon station were discovered inside the van. Appellant testified he was in the van that night but was not driving. He stated he had passed out in the back of the van awakening during the chase due to the driver's erratic turns. Appellant told the driver to stop but he would not. Appellant grabbed the driver's arm in an attempt to stop the vehicle. The van then struck the pole. II. In his assignment of error, appellant contends the verdict was against the weight of the evidence. Appellant asserts the identification of him as the driver was unreliable, uncertain, and contradicted by other witnesses. Appellant points out the identification of him by the two police officers was based on both observing him at night during a 100 m.p.h. pursuit. Appellant argues he presented evidence showing he was not the driver of the van. A reviewing court will not reverse the verdict of the trial court where there is substantial evidence upon which the trier of fact could reasonably conclude that all the elements of an offense had been proved. State v. Eley (1978), 56 Ohio St.2d 169. The test is whether, after reviewing the entire record and probative - 5 - evidence and the inferences reasonably drawn from the evidence, the court determines that the trier of fact clearly lost its way when resolving conflicts in the evidence and created a manifest miscarriage of justice such that the conviction must be reversed and a new trial ordered. State v. Martin (1983), 20 Ohio App.3d 172, 175. The weight of the evidence and the credibility of the witnesses are primarily for the trier of fact to resolve. State v. DeHass (1967), 10 Ohio St.2d 230. Appellant relies on his own testimony and that of his girlfriend that there were three people in the van that night and he was not the driver. Appellant admits the testimony of both could be suspect. He also points to the testimony of Ramona and Daniel Tanner who resided at the home at which appellant was found. Ramona Tanner testified she did not see the crash but saw two people, including appellant, exit the passenger side of the van and one person leave from the back of the van. She stated it was two to three minutes before the police arrived following the crash. Ramona testified the man who exited from the van's back had on a white shirt and blue jeans while appellant was wearing a light gray shirt and dark jeans. Ramona Tanner's thirteen-year old son Daniel testified at first that he did not see anyone get out of the van but later said a man with a white shirt got out of the van and ran into the field behind their house. He also identified appellant as both the man found under the front porch and the man who ran into the field. He - 6 - later stated he was unsure if appellant was the man found under the porch. Neither witness observed the person who drove the van. Except for appellant's testimony, the only testimony directly pertaining to this issue was provided by the two police officers. Both affirmatively and definitely testified appellant was driving the van during the pursuit. Therefore, there was competent, credible evidence admitted for the trier of fact to have found appellant guilty of the offenses charged. Appellant's assignment of error lacks merit. Judgment affirmed. - 7 - 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 M. PORTER, J. and TIMOTHY E. McMONAGLE, J. CONCUR. LEO M. SPELLACY CHIEF JUSTICE 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 .