COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70741 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION RAYMOND GROSS : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JULY 24, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-332837 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor JOHN R. MITCHELL Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: ROBERT R. CLARICO The Brownhois Building 4403 St. Clair Avenue Cleveland, Ohio 44103 - 2 - O'DONNELL, J.: Raymond Gross appeals from a judgment of the Cuyahoga County Common Pleas Court finding him guilty of receiving stolen property, a motor vehicle. The record before us reveals that David Pierce acknowledged that he participated in the theft of Judith McNulty's 1995 Chevrolet Lumina van on or about October 28, 1995. He further admitted that on that date he drove it into a vacant field near Literary Road and began to search the interior for valuables. As he began to leave, he spotted a CMHA police officer, so he jumped out of the van as it rolled down an embankment, and apparently crashed in front of the home of Debra Rhodes, a sixteen-year-old student who attends Cleveland Central Catholic High School and who lives with her parents at 2113 West 7th Street in Cleveland, Ohio. Upon hearing the noise of the vehicle crash, she looked out of her window and saw the van on the tree lawn of her front yard with Tommy Sperlock, Jr. seated in the driver's seat and Pierce, Jason Vasquel and Raymond Gross pushing the vehicle into her driveway. She then saw them all run toward Literary Road. After telling her mother what she had seen, her mother called the police who arrived thirty minutes later. Upon investigating, Officer George Kirby of the Cleveland Police Department observed tire tracks on an embankment across the street leading toward the driveway, and during the course of his - 3 - on-premises investigation saw Raymond Gross and David Pierce walking down the street toward the van. When Rhodes identified them as participants who pushed the van into her driveway, Officer George Kirby arrested them at that time. The grand jury subsequently indicted Gross for one count of receiving stolen property (motor vehicle). He then waived his right to a jury trial thereby consenting to a bench trial before the court. At trial, the state presented the testimony of Debra Gross, Officer George Kirby, and a stipulation from the vehicle owner, Judith McNulty, that she gave no one permission to take her vehicle. The defense then presented its witnesses: David Pierce, who denied Gross' involvement; Nathaniel Nunez, who claimed he and Gross watched the World Series together at his home, but before the game ended, they walked to Pierce's house, the store, and over to Rhodes' house to see what was happening; and Gross, who testified that he watched the World Series at Nunez's house, and that he and Nunez left and met Pierce who told them he had stolen a van and had run it into Rhodes' yard. When they went to Rhodes' house, he got arrested. At the close of trial, the court found him guilty of receiving stolen property and sentenced him to a one-year term of incarceration. Gross now appeals and raises one assignment of error for our review. I. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THERE IS NO SUBSTANTIAL EVIDENCE - 4 - UPON WHICH A TRIER OF FACT COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF RECEIVING STOLEN PROPERTY HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. Gross contends that his conviction is against the manifest weight of the evidence because the only witness who implicated him, Debra Rhodes, has poor eye sight, and also because Pierce testified he had nothing to do with the crime, and Nunez provided him with an alibi that they were watching the World Series game at the time of the incident. The state urges, however, that it presented substantial evidence upon which the judge could conclude that all the elements of the offense of receiving stolen property had been proven beyond a reasonable doubt and, therefore, Gross' conviction should be affirmed. The issue then presented for review concerns whether Gross' conviction for receiving stolen property is against the manifest weight of the evidence. 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. In this case, the state needed to prove the elements of receiving stolen property as listed in R.C. 2913.51; that Gross, - 5 - received, retained or disposed of the property of another, knowing it had been obtained through commission of a theft offense. The evidence in this case reveals that although Rhodes has poor eyesight, she wore contact lenses when she observed Gross, whom she had previously known from the neighborhood, and several other young men push the damaged van into her driveway. The parties stipulated regarding the ownership and theft of the McNulty vehicle. Although Pierce testified that Gross had nothing to do with the incident and Nunez testified as to Gross' whereabouts at the time of the incident, the trial court considered the credibility of these witnesses, along with Rhodes and Kirby, and, after considering the evidence, determined beyond a reasonable doubt that Gross was guilty. After reviewing these facts together with reasonable inferences which can be drawn from them and after carefully considering the credibility of the witnesses, we conclude that the court did not lose its way or 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. - 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 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 PORTER, 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 .