COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70365 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION CURTIS FOUNTAIN : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 7, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-321,399 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BLAISE THOMAS, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: EDWARD G. HACK Attorney at Law 14600 Detroit Avenue, #1300 Lakewood, Ohio 44107 TIMOTHY E. McMONAGLE, J.: Defendant-appellant Curtis Fountain separately appeals from his conviction on September 22, 1995 by a jury of robbery in vio- lation of R.C. 2911.02. After a joint trial, Curtis Fountain, Rochelle Szakacs and Leroy Harris were each found guilty of the robbery of Mark Zelasko on February 1, 1995. Fountain was sen- tenced on October 30, 1995. This court granted appellant's motion to file a delayed appeal on April 4, 1996, and this appeal ensued. For the reasons adduced below, we affirm the decision of the trial court. Appellant raises the following sole assignment of error for our review: CURTIS FOUNTAIN'S CONVICTION FOR ROBBERY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant complains that the jury verdict finding him guilty of robbery was against the manifest weight of the evidence. Specifically, appellant contends that the totality of the state's case was of such a poor quality that the conviction is against the manifest weight of the evidence because the principal witness had an overpowering motivation to manufacture testimony to escape his legal problems and possible prosecution. Further, appellant argues - 3 - no other significant testimony to corroborate the charge against him was presented. We disagree. In State v. Martin (1983), 20 Ohio App.3d 172, the court set forth the test to be utilized when addressing the issues of mani- fest weight of the evidence. The Martin court, at p. 175, 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), 4547 U.S. 31, 38, 42. In determining whether the decision of a trial court is against the manifest weight of the evidence, the following factors are guidelines to be taken into account by the reviewing court: (1) The reviewing court is not required to accept as true the incredible; (2) whether the evidence is uncontradicted; (3) whether a witness was impeached; (4) what was not proved; (5) the certainty of the evidence; (6) the reliability of the evidence; (7) whether a witness' testimony is self- serving; (8) whether the evidence is vague, uncertain, conflicting or fragmentary. - 4 - 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. Appellant argues that the only witness to supply testimony that appellant was involved in the robbery was Raymond Long and that Long's ability to perceive the events of February 1, 1995 is in doubt and that, further, Long had two very strong motives to lie, rendering the testimony unreliable. First, appellant argues that Long's ability to perceive the events is suspect due to his short-term memory difficulties, his cocaine use and his lack of glasses on the date in question. Long was cross-examined on each of these issues and responded that the short-term memory difficulties did not impair his ability to recall the incidents of February 1, 1995, his cocaine use did not impair his perception of the incidents of February 1, 1995 and, further, his lack of glasses in no way impaired his ability to see what happened that night. Second, appellant contends that Long had reason to lie be- cause he had been in a crack house for twelve hours and had smoked several rocks and feared that he had been caught involved in a felony. On cross-examination, Long testified that he was not fearful when the police arrived, but, in fact, he was happy that the police showed up that night as he was fairly desperate because one of the crack dealers had taken his truck hours earlier, had not returned it, and he felt as if he were being held hostage. - 5 - Third, appellant contends Long had motivation to lie and have the appellant arrested because Long owed the appellant money for the crack cocaine and, if arrested, the appellant would then not be able to collect on the debt or to assault Long. On cross- examination, Long testified that he intended to pay the debt and that he had called his aunt for the money and intended to repay the debt in the morning. Viewing the entire record as we are required to do reflects he following facts. The state presented testimony from the victim, four police officers who responded to the scene and an eyewitness to the incident. The victim testified that he picked up a prostitute near West 65th Street in the early morning hours of February 1, 1995. The prostitute, a white woman whom he later identified as Rochelle Szakacs, instructed him to follow her in his car. She was the passenger in a pick-up truck. He followed the truck to West 87th Street, where Szakacs directed him to pull into the parking lot and to wait for her. She went up to a second floor apartment on the exterior steps; he waited in the parking lot as she instructed him. He testified that three black males came from the front of the building, yanked him out of his car and beat, kicked and robbed him. During the attack, one of the men pulled the victim's jacket over his head and they proceeded to crack the windshield of his car and rip out his car stereo. The attackers took about $120 from him. The victim identified appellant Fountain, "the stocky one," as one of his attackers. - 6 - The police officers testified that when they responded to a call concerning several black males assaulting a man, they found the victim lying on the ground next to his vandalized car. The victim told the police that the prostitute, Szakacs, had gone into the second floor apartment of the building after instructing him to wait for her and that three black males had then come from the front of the building and beat and robbed him. The officers testified that the victim told them that his attackers had gone up the stairs of the building. The police entered the second floor apartment with the consent of Leroy Harris and spoke to the people who were present. Harris denied that a "white woman" had come into the apartment. The police searched the apartment and found Quintina Smith, a black woman, and her children asleep in one bedroom, appellant Fountain lying on a mattress in another room and Long in the living room. Privately, the eyewitness, Long, told the police officers his version of what had transpired that evening. The police found a car stereo and CD case on the front porch and a car radio face plate in the kitchen of the apartment. These items were identified by the victim as items taken from his car. The appellant told the police that he bought the stereo from "the greek" that evening. As the police were escorting the appellant and Leroy Harris out of the apartment, Harris told them that "the bitch you are looking for is still in the house." The police re-entered the apartment and found Szakacs hidden under a stack of dirty clothes - 7 - infested with cockroaches in the room where appellant Fountain had been lying on the mattress. The victim identified Szakacs as the prostitute whom he had met earlier in the evening. Raymond Long, who is white, testified that he was in the apartment that night for the purpose of obtaining crack cocaine. He was brought there by a drug dealer, Gerard. The occupants of the apartment, Szakacs, Fountain, Harris and Smith, joked about how they had mugged a man earlier in the day. Later, Gerard left the apartment, using Long's truck. After a number of hours in the apartment, Rochelle Szakacs left the apartment. When she returned, she had a $50 bill and said she got the money from a man downstairs who had more money on him. Appellant Fountain told Long to "sit" there, and the appellant and Harris "shot downstairs." Long testified that he looked out the window and saw the victim being assaulted in the parking lot by two men. Long identified one of the attackers as appellant Fountain by the coat he was wearing. Fountain and Harris returned to the apartment with things hidden under their coats. When Smith called out the warning that the police were coming, all the occupants of the apartment scurried around, hiding the drug paraphernalia. Rochelle Szakacs hid herself. Privately, Long told the police what he had seen. Upon review of the entire record before us, when we weigh the evidence and all reasonable inferences and when we consider the credibility of the witnesses, including Raymond Long, we do not find that the jury clearly lost its way and created such a manifest - 8 - miscarriage of justice in resolving the conflicts in the evidence that the conviction must be reversed and a new trial ordered. Accordingly, the appellant's sole assignment of error is overruled, and the decision of the trial court is 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 Cuyahoga County 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. PATRICIA BLACKMON, P.J. and JAMES M. PORTER, J. CONCUR JUDGE TIMOTHY E. McMONAGLE 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 of decision by the .