COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71189 STATE OF OHIO : : : Plaintiff-Appellee : : JOURNAL ENTRY v. : AND : OPINION ROBERT FANNING AKA LOVE : : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 23, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-337866 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. PATRICIA J. SMITH, ESQ. Cuyahoga County Prosecutor 4403 St. Clair Avenue Cleveland, Ohio 44103 REBECCA J. MALECKAR, ESQ. The Justice Center ROBERT FANNING, pro se 9th Floor No. 324-097 1200 Ontario Street Madison Correctional Inst. Cleveland, Ohio 44113 2 KARPINSKI, J.: Defendant-appellant, Robert Fanning, appeals from a jury decision finding defendant guilty of one count of felonious assault. On appeal, defendant argues that his conviction was against the manifest weight of the evidence. For the reasons that follow, we find no merit to this argument and affirm the judgment of the trial court. On April 23, 1996, defendant was charged with aggravated burglary, aggravated robbery, and felonious assault. All three counts contained aggravated felony and violence specifications. The state alleged that defendant broke into his former place of employment, Rapid Lube, and assaulted the night watchman with a crowbar. The victim, William Crawley, age 49, testified as follows. He works at Rapid Lube as the night watchman. Defendant was the former night watchman, whom Eddie Gray, the Rapid Lube manager, had fired. During his shift, Crawley would sleep for part of the night on a cot in the Rapid Lube office. Crawley knew the defendant for approximately six months, but only by his first name, Robert. During the early morning hours of March 4, 1996, Crawley was sleeping at work when a person entered the office and hit Crawley with a tire iron four or five times on the head, arm, and leg. Crawley identified the defendant as the attacker. He explained he could identify defendant because defendant was only a few feet away and the room was illuminated by the television set that he had left 3 on. With defendant was another person standing in the doorway, whom Crawley could not identify. Crawley escaped out of Rapid Lube, and defendant chased him. The police found Crawley running down the street and took him to St. Luke's, where he received stitches on his head. He told the police that Robert was the person who hit him on the head. Crawley also claimed he had left on the counter approximately $45 or $50 dollars, which was not there when he returned the next day. Crawley admitted that he drank a few beers the afternoon before being attacked but he did not feel intoxicated when he was awakened by the attacker. On cross-examination, Crawley stated he could not see what the attacker was wearing. Leonard Poss of the Cleveland Police Department next testified. On March 5, 1997, he was called to investigate a reported robbery at Rapid Lube. He spoke to Crawley whose head was bandaged. Crawley identified a man named Robert as the person who hit him the night before. Eddie Gray, the manager of the Rapid Lube, testified that Crawley was night watchman on March 4th. Prior to Crawley, defendant was the night watchman for about six months and used the premises as his home. Two weeks before Crawley was hired, defendant was let go for leaving the premises and not watching the cars. While he was employed, defendant had keys to Rapid Lube. Gray stated that the day after the break-in, the barbed wire on top of the fence was different in that it was loose. On the night of the incident, the police called Gray and told him that Crawley was 4 in the hospital and that Robert was a suspect. Gray gave the police Robert's address. Officer Matthew Baeppler testified that on March 16, 1996, he responded to a call to go to Rapid Lube, where Gray told Baeppler that a person was threatening Gray. Gray described the person and told the officer to look in the area of Steinway Avenue for a maroon vehicle, which may be stolen. The officer then located in the Steinway area a vehicle matching this description with defendant in a passenger seat. Officer Baeppler then arrested defendant, pursuant to the outstanding arrest warrant, for the previous robbery and burglary of Rapid Lube. The jury returned a verdict of not guilty on the first two counts of burglary and aggravated robbery, but guilty on the third, felonious assault. From this judgment, defendant appeals raising one assignment of error, which states as follows: I. THE VERDICT FINDING THE APPELLANT GUILTY OF FELONIOUS ASSAULT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In this assignment, defendant argues that the jury verdict was against the manifest weight of the evidence. An appellate court is limited in reviewing a manifest weight claim. The decision of the jury will not be reversed unless it is shown that the jury clearly lost its way and created a manifest miscarriage of justice. State v. Martin (1983), 20 Ohio App.3d 172. In the case at bar, defendant makes three arguments why the verdict should be reversed. None has merit. First, defendant points out that the jury found defendant not guilty of the first two counts. This argument is unpersuasive. The elements of the 5 first two are not identical to the third charge. The jury could have logically concluded that the state did not prove a theft offense but that the state did prove the felonious assault. Even if the difference did constitute an inconsistency and it does not a jury verdict will not be reversed merely because it is inconsistent. State v. Woodson (1985), 24 Ohio App.3d 143. Second, defendant attacks the credibility of Crawley. Defendant points out that Crawley had been drinking and that he identified defendant after seeing defendant for only a few seconds in the dim light from the television screen. These are good arguments to make to a jury, but they will not warrant a reversal on appeal. It was for the jury to evaluate the credibility of Crawley's testimony. It was not unreasonable for the jury to reject part of Crawley's testimony (that is, the theft), but accept his identity of the assailant. The theft was uncorroborated. The victim's identification of defendant as the assailant, on the other hand, was supported by evidence the defendant had been fired and by evidence linking the defendant to the car from which a man threatened the manager. Third, defendant claims that defendant could not have committed this crime, because his asthma and two broken heels inhibited him from climbing a twelve-foot fence and chasing the victim. Such details, however, were not shown as making a climb or chase impossible. They were merely evidence the jury could weigh. Because the victim identified defendant as the attacker and because circumstantial evidence tended to corroborate his identity, 6 we cannot conclude the jury lost its way. Defendant's sole assignment is overruled. The judgment of the trial court is affirmed. 7 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 PATTON, J., CONCUR. DIANE KARPINSKI 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 journalization of this court's announcement of decision by the .