COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70989 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION ZINE BELDJILALI : : Defendant-Appellant : : DATE OF ANNOUNCEMENT JULY 17, 1997 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-335933 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCE: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS-JONES, ESQ. JOHN A. GHAZOUL, ESQ. Cuyahoga County Prosecutor 425 Lakeside Place, #1 DARCY MOULIN, ESQ. Cleveland, Ohio 44113 Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - PATRICIA ANN BLACKMON, P.J.: Zine Beldjilali, defendant-appellant, appeals his conviction for one count of theft with violent and prior theft offense specifications. Beldjilali argues his mere presence at a crime is not sufficient to sustain a verdict for theft. He also argues that the weight of the evidence supports him and not the state. The state of Ohio ( State ), plaintiff-appellee, argues Beldjilali was seen on the monitor placing merchandise into a plastic bag; thus, he was not merely present but an aider and abettor to the theft. Beldjilali assigns the following errors for our review: I. THE EVIDENCE IS CONSTITUTIONALLY INSUFFICIENT TO SUSTAIN THE CONVICTIONS. II. THE APPELLANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Having reviewed the record and the arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. During a non-jury trial, the state offered evidence that Beldjilali was an aider and abettor. Phillip Denino, clerk of Kaufmann's, stated on December 30, 1995, three men wearing dark clothing and speaking a foreign language, entered his area of Kaufmann's, which was the young men's department. Denino identified Beldjilali as one of the three men. Afterwards, he stated a customer told him to [W]atch out. [T]hese guys are ripping you off. (TR. 20.) In addition to the customer's warning, Denino said the three men behaved suspiciously. He gave these examples: one asked permission to go to the dressing room after he had already been there; and another requested assistance - 3 - to find a shirt with certain specifications, but did not buy the shirt. Denino stated he recognized Beldjilali and one of the men from a previous week. He testified his department was not crowded and the men were in the area for about 20 minutes. Kaufmann's security guard, Raymond Hartlaub, was on duty in the security office at the time the three men entered the store. Hartlaub said he observed three dark complexioned men dressed in dark clothing on the security monitors. He saw the three men huddling together and stuffing clothing into large bags. He observed that the men were in Denino's department. He did not see their faces because of the camera angle and the way they were huddled. Security guard, Brian Jones, also saw the men on the security monitors, but could not identify them. Hartlaub radioed security guard, Jeffrey Phillips and gave him a description of the suspects. He also told him where they were. Afterwards, he called the North Olmsted police. Phillips said when he arrived the men were leaving the store. The first man who exited carried two bags. Phillips testified that Beldjilali was the second man to exit the store and that just before exiting, Beldjilali looked at him then said something to the first man in a foreign language. According to Phillips, the men went in separate directions, both walking faster than before. Phillips followed the man with the bags because he was the one with the store's merchandise. Phillips said the man put the bags in a van with New York plates, then left the van. Phillips stayed with the van. - 4 - A short time later, Hartlaub, Jones, and the police arrived. Phillips teamed with Officer Mark Goodwin to search for the suspects. They found Beldjilali walking away from the mall in a southerly direction. When they approached him, he immediately said, I did nothing. I didn't steal anything. I'm not the one with the bags. He's over in Applebee's. Neither Jones nor Phillips had said anything to him. They subsequently handcuffed him and took him back to the van where he was read his rights. The bags were retrieved from the van. They contained 27 pairs of Levi jeans and one denim jacket, totaling $900.00. The van also contained bags of jeans from Dillard's Department Store and a list of names of malls and directions to them. Beldjilali was indicted on one count of theft with violence specifications and two furthermore clauses containing prior theft offenses. Beldjilali waived his right to a jury trial. At the close of the State's case, Beldjilali moved for an acquittal. His motion was denied and he subsequently rested his case. He was found guilty as charged minus one furthermore clause. The trial court sentenced Beldjilali to two to five years at the Lorain Correctional Institution. This appeal followed. In his first assignment of error, Beldjilali raises the issue of the sufficiency of the evidence. Our approach to the sufficiency issue is governed by the recent Ohio Supreme Court decision State v. Thompkins (1997), 78 Ohio St.3d 380. In Thompkins, that court reaffirmed the sufficiency standard as outlined in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two - 5 - of the syllabus. In Jenks, the court held the relevant inquiry is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact, could have found the essential elements of the crime proven beyond a reasonable doubt. The issue is one of adequacy. Id. We conclude the state's evidence was adequate to show complicity to commit the theft offense. Officer Phillips testified three men in dark clothing, dark complexion, were observed by him leaving Kaufmann's. He identified Beldjilali as one of the men. When Beldjilali saw Phillips, he said something in a foreign language to the man with the bag, and the three men split up. Phillips followed the one with the bags who took the bags to a van. Ultimately, when the van was searched, Kaufmann's merchandise was retrieved, which merchandise was from its Young Men's Department. In addition to Phillips' testimony, the state's witnesses stated that three men fitting the physical appearance of these three men were seen on the store's security monitor stuffing merchandise into bags. All three men were observed. Although the security people could not identify Beldjilali by face, he was one of the three men generally described. Besides, Denino testified that Beldjilali was one of the three in his department. He stated a customer told him that the three were stealing. He also recognized Beldjilali from a previous occasion. Consequently, this court concludes when viewing the evidence in favor of the State, its evidence was adequate to show as a - 6 - matter of law that Beldjilali was an aider and abettor. It is the quantity of the evidence that is at issue in this inquiry. Beldjilali's first assignment of error lacks merit. In his second error, Beldjilali argues the verdict is against the manifest weight of the evidence. Again, we look to State v. Thompkins for resolution of this issue. The Supreme Court held weight of the evidence concerns the inclination of the greater amount of credible evidence offered in a trial, to support one side of the issue rather than the other. Thompkins at 387. This issue involves the quality of the evidence and our inquiry is whether the evidence weighs heavily against the conviction. The state argued Beldjilali was an aider and abettor. A security monitor showed three men at the time of the theft stuffing merchandise into bags. When Officer Phillips received the information that three men in dark clothing were stealing from the store, he arrived at the area and observed three men fitting the description exiting the store. He identified Beldjilali as one of the men. When Beldjilali observed Officer Phillips, he spoke to the one carrying the bag in a foreign language, and the three men went in separate directions. Denino, the store clerk, stated the three men in dark clothing spoke in a foreign language. Officer's Hartlaub and Jones observed on the security monitor three dark complexioned men in dark clothing huddling over and stuffing merchandise in bags. These men entered the store together and exited together. Both Denino and Phillips identified Beldjilali as one of the men. - 7 - After reviewing the entire record, this court cannot say that the evidence weighed heavily against Beldjilali's conviction. Beldjilali's second assignment of error lacks merit. Judgment affirmed. 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. O'DONNELL, J., and SPELLACY, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING JUDGE 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 .