COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70821 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION JOHN MITCHELL : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : APRIL 3, 1997 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 332413 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones Cuyahoga County Prosecutor David B. Leitch, Esq. By: Eleanore E. Hilow, Esq. 6741 Ridge Road Assistant Prosecuting Parma, Ohio 44129 Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- ROCCO, J.: Defendant-appellant John Mitchell appeals from his conviction for robbery, challenging the admission of the testimony of the victim at trial and the sufficiency and weight of the evidence against him. This court affirms appellant's conviction, finding no error by either the trial court or the jury. The incident from which appellant's conviction stems occurred on October 17, 1995. On that day, at about 4:00 p.m., Theodis Lee was walking on St. Clair Avenue near East 76th Street in the city of Cleveland. Lee, a mentally handicapped person, had just left work and was proceeding to a bus stop for his trip home when he passed an abandoned building. He apparently saw something that attracted his attention. Soon thereafter, Yolanda Rainey, who lived at 904 East 76th Street, was alerted by her children of a disturbance outside. When she emerged from her 1 home, she heard "hollering" and saw three males and a white female, around Lee; one male was "rifling through" Lee's pockets as the others stood there and Lee shouted. Rainey recognized Lee because she had occasionally seen him going to and from the bus stop. She knew, too, of his handicap. She yelled at the group and then ran to a nearby telephone to dial 911. The altercation continued as she was making the call. When she was finished, she saw the group split apart; a male and the female came toward Rainey as they fled together, while the 1 Quotes indicate testimony given by a witness at appellant's trial. -3- other male, with a "black object" in his hand, ran away northbound on East 76th Street. Rainey then saw that Lee pursued the lone male. At that time, Rainey noticed a Cleveland Police zone car which was on routine patrol of the area. She attracted the attention of the officers in the car and told them that a man had been "robbed" and was chasing the suspect, and pointed in the direction she had seen them running. The officers quickly caught up with Lee. Lee gave the officers a description of what the suspect was wearing, told them the man "stole his wallet," and said he last saw the man running west on Detour Avenue. The officers drove in that direction and soon spotted the suspect, now on East 73rd Street, running northbound. The officers were able to apprehend the man, who was later identified as appellant. When they subsequently patted down appellant, they found in his pockets only ninety-one cents in change. The officers returned to the area of the incident to further question Lee and Rainey. In the meantime, Lee had found his wallet in a front yard at East 75th Street and Detour Avenue. After both Lee and Rainey had identified appellant as the male who had accosted Lee and then fled, Lee showed his wallet to the officers; the wallet was empty except for Lee's identification card and a bus pass. Lee asserted that he believed the wallet had contained $1.45 in change before it was stolen. Appellant was indicted on one count of robbery, R.C. 2911.02. He pleaded not guilty at his arraignment and was assigned counsel. His case proceeded to a jury trial. -4- The state presented the testimony of Lee, Rainey, the two arresting police officers, and the Cleveland Police detective who had been assigned to investigate the case. Appellant presented the testimony of his girlfriend, who stated the money found in appellant's pocket had been given to him by her. Ultimately, the jury found appellant guilty of robbery. After a presentence investigation and report, the trial court sentenced appellant to a term of incarceration of five to fifteen years. Appellant has filed a timely appeal of his conviction and presents three assignments of error for review, which will be addressed in logical order. Appellant's third assignment of error states: III. THE COURT ERRED IN FINDING THEODIS LEE COMPETENT TO TESTIFY WHICH RESULTED IN PREJUDICIAL AND INCOMPETENT EVIDENCE BEING PRESENTED AT TRIAL. Appellant argues the trial court abused its discretion in permitting Theodis Lee to testify as a witness at his trial. Appellant contends the voir dire examination which took place prior to trial reveals Lee had difficulty understanding simple questions and did not comprehend the obligations of an oath, therefore, he was not competent to be a witness. In addressing this assignment of error, it must first be noted that appellant objected to neither the trial court's finding of competency nor to the trial court's decision to allow Lee's testimony. Ordinarily, an appellate court need not consider an error which a party complaining of the trial court's -5- judgment could have called, but did not call, to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. Crim. R. 52(A); State v. Williams (1977), 51 Ohio St.2d 112; see, also, State v. Braden (1936), 56 Ohio App. 19; State v. Morgan (1986), 31 Ohio App.3d 152. Moreover, for the trial court's action to constitute "plain error," this court must find both that appellant's substantial rights have been effected and that only overruling the trial court's action can prevent a manifest miscarriage of justice. Crim. R. 52(B); State v. Long (1978), 53 Ohio St.2d 91; State v. Morgan, supra. The record in this case does not support such findings. Evid. R. 601(A) states in pertinent part as follows: RULE 601. General Rule of Competency Every person is competent to be a witness except: (A) Those of unsound mind *** who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly. It has been held that the term "of unsound mind" includes all forms of mental retardation. State v. Kinney (1987), 35 Ohio App.3d 84 at 86. However, the Ohio Supreme Court has stated: d ***Showing the witness to be of unsound mind does not automatically render him incompetent to testify. This court, in State v. Wildman (1945), 145 Ohio St.379, 31 O.O. 5, 61 N.E. 2d 790, paragraph three of the syllabus, stated that: "A person, who is able to correctly state matters which have come within his perception with respect to the issues involved and appreciates and understands the -6- nature and obligation of an oath, is a competent witness notwithstanding some unsoundness of mind." State v. Bradley (1989), 42 Ohio St.3d 136 at 140, 141. The court further held in Bradley that the trial court is to be given "wide discretion in determining the witness' competence to testify," since it is in the best position to view and hear a witness and to determine that witness' "understanding of the events in question and his understanding of the nature of an oath." Id., at syllabus 1. A reviewing court, therefore, will not "second-guess" a trial court's decision "absent a clear-cut abuse of discretion." Id. at 141. As in Bradley, such a situation does not exist in this case. A review of Lee's voir dire examination reveals Lee, although initially unsure of himself on the witness-stand, was able to relate facts such as his address and birthdate and to recount accurately events of which he was aware. State v. Braden, supra. Furthermore, although Lee lacked a concept of punishment for lying, he did obviously possess a desire to tell the truth because as he stated, it makes others "happy." See, e.g., State v. Baker (July 14, 1989), Cuyahoga App. No. 54439, unreported; cf. State v. Kinney, supra. Following the voir dire, the trial court commented that Lee's answers seemed to demonstrate "some weaknesses," however, it determined those weaknesses were more properly a basis for cross-examination than a reason to totally exclude Lee's testimony. Indeed, on cross-examination, appellant's counsel -7- fully explored Lee's weaknesses as a witness. From the record, therefore, it is apparent that in ruling Lee competent to testify as a witness, the trial court neither committed an abuse of discretion nor plain error. State v. Bradley, supra; State v. Braden, supra. Accordingly, appellant's third assignment of error is overruled. Appellant's second assignment of error follows: II. THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS THE ELEMENTS OF THE CHARGE OF ROBBERY WERE NOT PROVEN BY THE STATE. Despite its phraseology, appellant is actually arguing in this assignment of error that sufficient evidence of the element of force was lacking, therefore, his conviction for robbery cannot stand. This court disagrees. The test for sufficiency of the evidence was stated by the court in State v. Martin (1983), 20 Ohio App.3d 172, as follows: As to the claim of insufficient evidence, the test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. Jackson v. Virginia (1979), 443 U.S. 307, 319. R.C. 2911.02 states as follows: 2911.02 Robbery. (A) No person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall do any of the following: * * * -8- (3) Use or threaten the immediate use of force against another. R.C. 2901.01(A) provides the following definition of "force": (1) "Force" means any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing. In State v. Carter (1985), 29 Ohio App.3d 148, the court stated as follows: The type of force envisioned by the legislature in enacting R.C. 2911.02 is that which poses actual or potential harm to a person. In examining the evidence in this case relevant to the elements of the offense of robbery, Rainey testified to the following facts: (1) she heard "hollering" from behind the abandoned building; (2) she saw two men and a female around Lee, and appellant was the one "searching" or "rifling through" Lee's pockets as he yelled; (3) she saw appellant take something from Lee's pocket and then run; (4) appellant had an object in his hand as he ran; and, (5) Lee pursued him. Lee testified that he left his money in his wallet, that appellant "stole" his wallet "from my pants pocket" and that he did not want appellant to take his wallet. The police officers all testified that the spot where Lee was accosted was an area well-known as a place where people had been robbed as they went to the nearby store. Moreover, the arresting officers both testified that at the scene, Rainey described what she had observed, viz., Lee had been "robbed" by a male in a striped shirt who fled with Lee chasing him. They -9- further testified Lee's wallet was found along the route appellant had fled. Construing the above evidence in a light most favorable to the prosecution as required by Martin, supra, there was sufficient evidence in this case to support all the elements of the crime of robbery, including the element of force, since Lee was under "compulsion *** physically exerted" against him by appellant at the moment his wallet was taken. State v. Carter, supra; State v. Davis (1983, 6 Ohio St.3d 91; cf., State v. Weaver (Nov. 1, 1993), Champaign App. No. 93-CA-02, unreported. Therefore, appellant's second assignment of error is overruled. Appellant's first assignment of error states: I. THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues the weight of the evidence does not support his conviction because the testimony of the state's witnesses was 2 contradictory and was not credib Mattison (1985), 23 Ohio App.3d 10, in support of his contention, however, this court finds appellant's argument not at all persuasive. In Mattison, this court held as follows: In determining whether the decision of a trial court is against the manifest weight of the evidence, the 2 The state counters with arguments based, inappropriately, on the sufficiency of the evidence. This court is mindful of the correct standard to be applied in addressing appellant's argument and, thus, will limit itself accordingly. See, e.g., State v. Jenks (1991), 61 Ohio St.3d 259. -10- follow-ing 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. (Emphasis added.) The above factors, therefore, are merely guidelines. The test to be utilized when addressing the issue of manifest weight of the evidence was set forth in State v. Martin, supra. The Martin Court stated as follows: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. 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), 457 U.S. 31, 38, 42. (Emphasis added.) Moreover, it must be stressed that 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. A -11- reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. In this case, Lee testified that once he stopped at the abandoned building, appellant took his wallet by reaching into his pants pocket. This occurred despite Lee's outraged protests, as witnessed by Rainey. Although during cross-examination Lee experienced some confusion as to how he had been lured behind the building, and demonstrated an inability to be completely accurate with addition and subtraction, he was consistent in recounting the essential details of the incident, viz., appellant's identity, his own unwillingness to acquiesce in appellant's taking of his wallet, the chase, and his recovery of his wallet when the officers apprehended appellant. Rainey's testimony corroborated Lee's in all the essential details. She stated several times that Lee was "hollering" as appellant went through his pockets and further stated that she saw an object in appellant's hand as he ran away in the direction where the wallet ultimately was recovered. In turn, Rainey's testimony as to the events of the incident was supported by that of the police officers. The testimony of appellant's girlfriend, on the other hand, was less than credible, since she stated she had given appellant exactly ninety-one cents to go to the store to buy her "two packs" of Tylenol. -12- A review of the record demonstrates it was well within the province of the jury to choose to believe the testimony offered by the state and reject that offered by appellant. The jury could properly find the evidence indicated appellant used force against Lee in order to take Lee's wallet against his will in violation of R.C. 2911.02. Thus, the factors in Mattison, supra, are met in this case. See, also, State v. Calhoun (Nov. 14, 1991), Cuyahoga App. No. 59370, unreported; State v. Delgado (April 30, 1992), Cuyahoga App. No. 60574, unreported. The state presented reliable, credible evidence of appellant's guilt, and this court declines his request to substitute its own judgment concerning the credibility of the witnesses and the weight to be given to their testimony. In the case sub judice, this court cannot say that on the basis of 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." Martin, supra, at 175. Therefore, the verdict was not against the manifest weight of the evidence. Accordingly, appellant's first assignment of error is also overruled. Appellant's conviction is affirmed. -13- 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 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. ANN DYKE, P.J., AND LEO SPELLACY, J., CONCUR. JUDGE KENNETH A. ROCCO 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 .