COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71691 : STATE OF OHIO : : : Plaintiff-appellee : : : -vs- JOURNAL ENTRY : AND ALBERT WATSON : OPINION Defendant-appellant : : : DATE OF ANNOUNCEMENT : OCT. 23, 1997 OF DECISION CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-336646 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 By: Blaise D. Thomas, Esq. Cleveland, Ohio 44103 Assistant Prosecuting Atty. The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 2 ROCCO, J.: Appellant appeals his conviction in the trial court following a jury trial. As the record indicates that the jury's verdict was not against the manifest weight of the evidence, we affirm. Appellant Albert J. Watson was indicted on March 25, 1997 by a Cuyahoga County Grand Jury for one count of attempted murder in violation of R.C 2923.02 and one count of felonious assault in violation of R.C 2903.11. Both counts included firearm specifications. A jury trial commenced on October 15, 1996. On October 18, 1996, the jury returned a verdict of guilty on both counts and on the firearm specifications. The trial court found that the two counts merged, and determined that appellant would therefore be convicted only of attempted murder with a firearm specification. The trial judge sentenced appellant to a term of ten to twenty-five years plus three years actual to be served prior to and consecutive with the ten to twenty-five year term. The instant action arose from an incident that occurred on December 24, 1995 when the victim, David Johnson, was shot in the back of the head. First to testify at trial was Officer Todd Charles Melzer of the Cleveland Police Department. On December 24, 1995, he was assigned to the Fifth District and received a call at approximately 4:37 p.m. reporting that a motor vehicle had collided with a pole. When he arrived, he saw the vehicle, a van, and learned that the injured party, who may have been shot, had been transported to Mt. Sinai. 3 After viewing photographs of the van, Officer Melzer identified a spiderweb imprint on the windshield between the driver and the passenger's side. Such an imprint generally indicates impact with the windshield. Officer Melzer recalled seeing blood on the rearview mirror and back headrest of the driver's seat. He found no apparent bullet holes. Officer Ray Kaloczi then testified. He responded to the call of a male gunshot victim at Mt. Sinai. He and his partner were able to speak with the victim, David Johnson. He asked the victim a few times who had shot him and received no answer, although he observed that Mr. Johnson was conscious. He then again asked the victim who had shot him, telling him that he had spoken with the surgeon and that there was a chance the victim would not survive surgery. Johnson responded with the name of appellant. Officer Kaloczi also learned that the van that had been involved in the accident belonged to Johnson. Officer David Wilsman, Kaloczi's partner, then testified. He said Johnson had told them he was driving around in his van with his friend, the appellant, who was sitting behind him in the van. The two of them began to argue over money. Johnson remembered hearing a loud noise and the next thing he knew, EMS workers were assisting him. Additional testimony was provided by the victim. Johnson's testimony revealed that he had met appellant five or six weeks earlier, and that the two of them had driven around together two or three times since then. On December 24, 1995, he drove over to 4 pick up appellant in his van, and then planned to drive around. Appellant asked Johnson to drive him over to visit some relatives. Appellant went inside while Johnson waited in the van. When appellant got back into the automobile, Johnson testified that he smelled the smoke from crack cocaine. Johnson testified that appellant then asked Johnson for money; when Johnson refused, appellant pulled a gun on him. Johnson did not believe appellant was serious about robbing him. Johnson further testified that, while appellant was holding the gun on him, he stopped to get gas. Johnson also helped someone at the gas station who needed assistance. Johnson said he tried to tell the people at the gas station that appellant was holding a gun on him, but that they did not believe him. Johnson then got back into the van, and appellant got in and sat behind him on a cooler that was in the back of the van. Appellant repeatedly asked Johnson for his money, and Johnson refused. Johnson then recalled hearing a loud pop, and remembered his van hitting something. Johnson next remembered waking up in Mt. Sinai Hospital. Johnson further testified that when he got his belongings back, he was missing $25. Johnson also testified that his profession was that of a repo man. Further evidence indicates that Johnson has been diagnosed with mental illness, and that he has been confined to Lima State Hospital. He receives social security disability checks as a result of his illness. 5 Officer Linda E. Tugard testified next. She was working in security services at the Justice Center on December 27, 1995. One of her functions is to accept or process those who surrender themselves for charges at headquarters. As Officer Tugard recalled, appellant came into police headquarters that day and was met by an institutional guard who notified Officer Tugard that someone wished to turn himself in. Appellant told Officer Tugard he was turning himself in because he was wanted in connection with something. The officer notified her supervisor because she was unable to leave her post at the time. Officer Tugard remembered only that the charge for which appellant was turning himself in had something to do with an incident that involved a shooting that involved a friend. Officer Tugard testified on cross-examination that she had reviewed booking cards to refresh her memory on the matter, but that she also had an independent memory of the incident. Detective Norm Griffin testified next. He received the report of the incident from the officers who conducted the initial investigation. He learned that the named suspect had turned himself in to the Justice Center. Detective Griffin also testified that Johnson came into the station to make a formal statement about the incident on January 20, 1996. Johnson again named appellant as the man who shot him. Detective Griffin also reported that Johnson's van was towed to the Cleveland Police Department's Scientific Investigation Unit for processing. No shell casing was found in the van. 6 The medical records submitted into evidence also included Johnson's admission notes where he had initially reported to hospital personnel that he was shot after being chased. He did not name the shooter at that time. Following his conviction in the trial court, appellant timely filed his Notice of Appeal. In his sole assignment of error, appellant contends: THE VERDICT FINDING THE APPELLANT GUILTY OF ATTEMPTED MURDER AND FELONIOUS ASSAULT ARE (SIC) AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues that the evidence presented at trial was insufficient to support his conviction. An appellate court has the power to determine that a conviction was against the manifest weight of the evidence. State v. Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148. The court must review the entire record, weigh the evidence and all reasonable inferences, and consider witness credibility. State v. Davis (1988), 49 Ohio App.3d 109, 550 N.E.2d 966; State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 218, 485 N.E.2d 717, 720. State v. Assad (1992), 83 Ohio App.3d 114, 117. Although the reviewing court must consider the credibility of witnesses, assessments of credibility are primarily for the triers of fact. State v. Riffle (1994), 110 Ohio App.3d 554, 559, citing State v. Loza (1994), 71 Ohio St.3d 61, 69. See, also, State v. DeHass (1967), 10 Ohio St.2d 23, paragraph one of the syllabus In determining whether the trial court's decision is against the manifest weight of the evidence, the reviewing court may consider the following factors as guidelines: 7 . The reviewing court is not required to accept as true the incredible; . whether the evidence is uncontradicted; . whether a witness was impeached; . what was not proved; . the certainty of the evidence; . the reliability of the evidence; . whether a witness' testimony is self-serving; . whether the evidence is vague, uncertain, conflicting or fragmentary. State v. Mattison (1985), 23 Ohio App.3d 10, at the syllabus. The court must then determine whether the jury clearly lost its way and created such a miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. State v. Martin (1983), 20 Ohio App.3d 172, 175, (citations omitted.)1 Appellant contends the evidence is clearly insufficient to support the jury's guilty verdict. He argues that there is no evidence to connect him with the incident. First of all, Johnson initially reported, when he was admitted to the hospital, that he 1This court further notes that, in order to reverse a judgment of the trial court on the weight of the evidence when the judgment was the result of a trial by jury, a unanimous concurrence of all three judges on the court of appeals panel that reviews the case is required. State v. Thompkins (1997), 78 Ohio St.3d 380, paragraph four of the syllabus. 8 had been chased and then shot. He did not, at that time, identify a shooter. Furthermore, appellant argues that once the police arrived to speak with Johnson, he did not immediately name appellant, but had to be asked several times. Appellant further contends that Johnson has a history of mental illness, and is not a credible witness. He claims to have stopped for gas, called his wife, and helped someone with their automobile, all while allegedly being held at gunpoint by appellant. Finally, appellant alleges the police did not sufficiently investigate the incident. There was a crack in the front windshield, but no bruises on either Johnson or appellant that would be consistent with striking the glass. Furthermore, although Johnson had testified that the gun appellant had held on him was an automatic, there was neither a gun nor any shell casings found at the scene of the accident. This court's independent review of the evidence indicates the jury's verdict was not against the manifest weight of the evidence. First of all, three days after the incident, appellant went to the Justice Center to turn himself in for a charge relating to the shooting of a friend. Furthermore, the victim, while he was in the hospital preparing to undergo serious surgery, identified appellant as the one who shot him. There was no evidence to suggest that at the time Johnson identified appellant as the shooter he was not functioning competently. While Johnson did not immediately identify appellant as the shooter, he had just been brought into the hospital after being shot in the back of the head. A brief 9 delay in his identification of the shooter is insufficient to prove that Johnson fabricated his story. Although this court must consider the credibility of the witnesses, it remains a question primarily for the trier of fact. See State v. DeHass, supra. There is no evidence to indicate that the jury clearly lost its way when believing the testimony of Johnson. Moreover, applying the general guidelines established in Mattison, our review of the record fails to indicate that the jury's verdict was against the manifest weight of the evidence. See State v, Mattison, supra. Johnson's testimony was not necessarily incredible , nor was his testimony impeached. Furthermore, the evidence is not vague or conflicting. While it is true that there is little evidence besides Johnson's testimony to support the jury's conviction of appellant, the record does not indicate that the jury's decision created such a miscarriage of justice so as to require a reversal of appellant's conviction. See State v. Martin, supra. The facts of the instant case do not indicate an exceptional case where the evidence weighs heavily against conviction. Id. After reviewing the entire record and considering the credibility of the witnesses and all reasonable inferences, this court finds that the jury's verdict was not against the manifest weight of the evidence submitted. Appellant's assignment of error is overruled. Judgment affirmed. 10 11 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. DIANE KARPINSKI, P.J., AND JOHN T. PATTON, 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 of decision by the .