COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69761 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION LEROY HARRIS : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 17, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-321399 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BLAISE D. THOMAS, Assistant The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES A DRAPER Cuyahoga County Public Defender ROBERT M. INGERSOLL Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113-1513 - 3 - O'DONNELL, J.: Leroy Harris separately appeals from a judgment entered pursuant to jury verdict finding him, Rochelle Szakacs, and Curtis Fountain guilty of the robbery of Mark Zelasko in the parking lot of an apartment building located at West 87th Street and Detroit Avenue in Cleveland. On the afternoon of February 1, 1995, Raymond Long met a drug dealer named Gerard, who took Long to a second floor apartment at the West 87th Street apartment building where they, along with Harris, Fountain, and Szakacs, spent the afternoon smoking crack cocaine. That evening, Gerard borrowed Long's pick-up truck and he and Szakacs left the apartment. Sometime after midnight, Zelasko, who had been out drinking with a friend, drove to the vicinity of West 65th Street and Detroit in pursuit of a prostitute. Szakacs waived him down, negotiated a transaction with him, and told him to follow her back to her apartment. She then got into a pick-up truck driven by a black male, presumably Gerard. Zelasko followed the pick-up truck to the West 87th Street apartment building. As the pick-up truck pulled in front of the building, Szakacs got out and instructed Zelasko to pull into a parking lot behind the building and wait while she went up to an apartment. Zelasko then saw her enter a second floor apartment via a rear exterior staircase. - 4 - Once inside the apartment, according to Long who was still in that apartment, Szakacs, waving a $50 dollar bill, yelled at Harris and Fountain to "hurry and get down there. This guy has more fifties in his back pocket." Fountain told Long to sit and not move, while he and Harris "shot downstairs." Shortly thereafter, Zelasko saw three black males approach him from the front of the building. They yanked him out of his car through the driver side window and began to beat and kick him about the head and stomach. During the attack, one of the males pulled Zelasko's leather jacket over his head and removed his tennis shoes; another stole his car stereo and cracked the front windshield of his car. In addition, $120 in cash was taken from Zelasko's person. Meanwhile, from the back window of the second floor apartment, Long identified the jacket worn by one of the males attacking Zelasko as identical to one worn by Fountain earlier that afternoon. Suddenly, Quintina Smith, Harris' girlfriend who was in the apartment with Long and Szakacs, began yelling "Five- O, Five-O are coming," at which point Long saw Harris and Fountain run up the stairs with "things wrapped up in their coats." Once back in the apartment, Harris, Fountain, Smith, and Szakacs hurried in and out of different rooms hiding various items. Cleveland Police Officers John Marflak and Jeffrey Traine, responding to a call concerning several males assaulting another, - 5 - found Zelasko face down on the ground next to his vandalized vehicle. Zelasko explained to them what had happened, and told them that he did not know where the perpetrators had gone, but that Szakacs had gone to a second floor apartment in the building. One of the officers radioed for additional assistance and Officers William Gonzalez and Christine Oravec responded. The police then knocked on the apartment door and Harris consented to let the officers search for Szakacs. During their search, Long spoke privately with Officers Gonzalez and Marflak and explained to them what had taken place that evening. Subsequently, Harris and Fountain spoke with Officers Marflak and Traine and told them that a man known as Greek ran upstairs and sold them a car stereo. As a result of his search, Officer Marflak found cassette tapes, CDs, and a car stereo on the front porch and a car radio face plate on the kitchen counter, all of which were identified by Zelasko as property which had been taken from his car. No money was ever recovered, however. Zelasko also identified Fountain as one of his attackers, but could not identify Harris. The officers then arrested Harris and Fountain and as they were escorted down the stairs, Harris yelled out "the bitch you are looking for is still in the house." - 6 - Officer Traine then re-entered the apartment and at the direction of Smith went to a closet where he had previously found a large compressed stack of dirty clothes infested with cockroaches, and after digging through the pile, discovered Szakacs hiding beneath the clothes. He arrested her and when he brought her down to the parking lot, Zelasko identified her as the prostitute he had met earlier that evening. On April 4, 1995, a Cuyahoga County Grand Jury indicted Harris, Fountain, and Szakacs for robbery and on August 4, 1995, after a joint trial, the jury in the case returned guilty verdicts as to all three. Harris now separately appeals his conviction for robbery and assigns the following error for our review: LEROY HARRIS' CONVICTION FOR ROBBERY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Harris contends his conviction is against the manifest weight of the evidence because Zelasko could not identify him, and therefore, the only evidence which links him to the robbery is the unreliable testimony of Long. Harris further asserts that Long's testimony is unreliable because Long suffers from bipolar disorder for which he is on medication; he has undergone electroconvulsive therapy which results in memory lapses; he had been smoking cocaine and was not wearing his glasses on the day of the robbery; and Long has incentives to lie to protect himself - 7 - from prosecution for drug charges and retaliation from Harris and Fountain. The state maintains, however, that the jury evaluated the credibility of Long's testimony and determined that Harris was guilty beyond a reasonable doubt. The issue of whether Harris' conviction is against the manifest weight of the evidence requires us to review the entire record in this case. The standard of review in cases of this distinction was stated in State v. Martin (1983), 20 Ohio App.3d 172: 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.*** Id., at 175. An examination of the entire record in this case reflects the following facts: Gerard, a black male, borrowed Long's pick- up truck and left the second floor apartment with Szakacs sometime during the evening of February 1, 1995. Zelasko, later that same evening, met Szakacs near West 65th and Detroit, negotiated a transaction with her, saw her get into a pick-up truck driven by a black male, and followed the truck to the West 87th Street apartment building. There, Zelasko saw the truck pull to the front of the building and watched Szakacs ascend an exterior wooden staircase at the rear of the building. Once inside, according to Long, Szakacs tells Harris and Fountain to go downstairs because Zelasko has more money in his pocket. In a - 8 - matter of moments, Long observes Harris and Fountain go downstairs and then Zelasko notices three black males coming at him from the front of the building. Then, Long sees several males attacking Zelasko, one of whom is wearing the same jacket Fountain had on earlier that day. Finally, when Smith yells "Five-O, Five-O are coming," Harris and Fountain run up the back stairs with "things wrapped up in their coats." When the police arrived, they found Harris in the apartment with Szakacs, the prostitute who lured Zelasko to the parking lot, together with Fountain, who Zelasko identified as one of the perpetrators, and the radio which had been taken from his car. After reviewing these facts together with reasonable inferences which can be drawn from them and after carefully considering the credibility of the witnesses including Raymond Long, we conclude that the court did not lose its way nor create a manifest miscarriage of justice in this case. Accordingly, this assignment of error is not well taken and the judgment of conviction is affirmed. Judgment 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. SWEENEY, P.J., and DYKE, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .