COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70454 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION VICTOR McDANIEL : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 24, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-330456 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor MICHAEL P. DONNELLY, Assistant 8th Floor - Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES A. DRAPER Cuyahoga County Public Defender ROBERT R. CLARICO, Assistant 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113-1569 - 3 - O'DONNELL, J.: Victor McDaniel appeals from a judgment of the Common Pleas Court entered pursuant to a jury verdict finding him guilty of Aggravated Robbery at knifepoint of Robyn Brunson, a clerk at the Sunoco mini-mart located on South Marginal Road in Euclid, Ohio. Around 7:45 p.m. on the evening of October 23, 1995, Brunson noticed McDaniel as he entered the store and purchased cigarettes from her through the glass enclosed booth where the cash register is located. After he purchased the cigarettes, McDaniel remained in the store and advised Brunson he was waiting for a friend. He continued to walk in and out of the exit doorway several times and purchased different items during this period. At one point, Brunson left the store to clean the lot, locking the east entrance and leaving through the west entrance. Once outside the store, the appellant told her that he needed to purchase something, and in response, Brunson unlocked the west door and they re-entered the store. As she walked back toward the booth and unlocked it appellant followed her and suddenly pushed her into the booth stating "This is a robbery, don't say anything." Brunson replied "Okay. Just don't kill me." Once inside the booth, appellant demanded appellant open the cash register and give him all the money. Brunson testified that appellant told her that he had a gun, but when she looked she saw he had a six-to-seven-inch wooden handled knife with red and - 4 - white carvings on it held to her side. Appellant continued to demand the money, so Brunson opened the cash register and appellant removed all the paper money, which triggered a silent alarm notifying the police of the robbery. After getting the money, appellant told Brunson that he wanted to put her in the freezer. As he turned his back to her, it gave her the opportunity to push him out of the booth with her left hand and to lock the door. She then phoned Sunoco security as she watched appellant exit through the west door of the mini- mart and run in a westerly direction on nearby railroad tracks. While on the phone with Sunoco security, she gave them a detailed description of the appellant, and the incident including the fact that he threatened her with a gun which turned out to actually be a knife. When the police arrived, three or four minutes later, she explained what happened, gave them a description of the appellant and told them the direction in which she saw him running. Detective Bensi, of the Euclid Police Department, then had Brunson write out a statement of the events as she remembered them. In her statement, she included a detailed description of the knife, and made a drawing of it on the police report. About five minutes later, Euclid police apprehended the appellant, and brought him back to the Sunoco station. They also recovered a sweatshirt and a knife and returned with those items to the mini-mart because they believed they matched the - 5 - description given by Brunson. Brunson identified the appellant as the perpetrator and the items as his, and the police then arrested the appellant and transported him to the police station. The grand jury returned an indictment against the appellant on October 23, 1995, for aggravated robbery in connection with the incident, and included two aggravated felony specifications due to appellant's prior aggravated felony convictions. A jury trial commenced on February 21, 1996, where at the close of the state's case, and again at the close of all the evidence, the court overruled defense motions for acquittal pursuant to Crim.R. 29. The jury returned a guilty verdict and the court then sentenced him to a term of thirteen years of actual incarcera- tion to twenty-five years. On this appeal, McDaniel raises one assignment of error for our review: THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF AGGRAVATED ROBBERY HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. Appellant asserts that the verdict finding him guilty of aggravated robbery is against the manifest weight of the evidence because that state did not produce any physical evidence connecting him with the knife and because the testimony of the clerk, Robyn Brunson, is not credible. - 6 - The state claims that the verdict is not against the manifest weight of the evidence because it proved the elements of aggravated robbery beyond a reasonable doubt. Hence, the issue for our consideration is whether or not the verdict in this case is against the manifest weight of the evidence. The standard of review for cases involving this issue is well stated in the headnote of State v. Davis (1988), 49 Ohio App.3d 109, as follows: 3. In determining whether the verdict is against the manifest weight of the evidence 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. Further, the syllabus in State v. DeHass (1967), 10 Ohio St.2d 230, states: 1. On the trial of a case, either civil or criminal, the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts. Finally, we note that the court stated in its syllabus in State v. Eley (1978), 56 Ohio St.2d 169: A reviewing court will not reverse a jury verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. - 7 - Here, we are called upon to review the appellant's aggravated robbery conviction. R.C. 2911.01 defines aggravated robbery in part as follows: (A) No person, in *** committing a theft offense, *** or in fleeing immediately after such *** offense, shall do *** the following: (1) Have a deadly weapon *** on or about his person or under his control; *** Further, R.C. 2923.11 defines a deadly weapon as: (A) *** any instrument, device, or thing capable of inflicting death, and designed or specially adapted for use as a weapon, or possessed carried or used as a weapon. The appellant concedes in his brief that the evidence adduced at trial was sufficient to convict him of theft; he challenges the evidence concerning the use of a weapon in commission of the theft offense. In its case in chief, the state presented the testimony of Robyn Brunson who gave a detailed description of the appellant and the knife to the Sunoco security officers over the telephone, and to the Euclid police officers who arrived on the scene, at a time before the Euclid police officers recovered the weapon. In addition, Detective Bensi testified that Brunson's statement enabled the patrolmen to retrieve the knife. The state also presented testimony of Officer Frank Janovics who testified that upon receiving a call from the radio dispatch officer, he spotted the appellant running away from the mini-mart westbound on the railroad tracks approximately a quarter of a mile from the Sunoco - 8 - station. He then called for assistance and eventually apprehended the appellant. Officer Tim Hoffman then testified that he took Clay, his police dog, to the location where the appellant had been apprehended, and traced a path back toward the Sunoco station and along the way recovered a sweatshirt which belonged to the appellant on the ground next to an electrical box, ten to fifteen feet from the railroad tracks. Also, Officer Andrew Veres testified that when he searched that area he found the knife at the base of the electrical box and brought it back to the Sunoco station where Brunson identified it as the weapon used by appellant. After reviewing the entire record and weighing the evidence and the reasonable inferences therefrom, and after considering the credibility of the witnesses, we have concluded that the jury in this case did not lose its way and create a manifest miscarriage of justice. Accordingly, appellant's conviction is not against the manifest weight of the evidence and, therefore, this assignment of error is overruled. 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. BLACKMON, P.J., and MATIA, 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 .