COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72078 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION DERRICK BROOKS : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 18, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Lower Case No. CR-344248. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Edward F. Feran Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: James A. Draper Cuyahoga County Public Defender Darin Thompson Assistant County Public Defender 100 Lakeside Place 1200 West Third Street, N.W. Cleveland, Ohio 44113-1569 -2- JAMES D. SWEENEY, C.J.: Defendant-appellant Derrick Brooks ( Brooks ), d.o.b. February 22, 1961, appeals from his jury trial conviction of one count of Trafficking in Marijuana in an amount less than one hundred grams, a fifth degree felony in violation of R.C. 2925.03. For the reasons adduced below, we affirm. The record on appeal indicates that the Cleveland Police Department was conducting drug sweeps at approximately 5:50 p.m. on August 29, 1996, in the vicinity of East 35th Street and Community College Avenue. At that time, Detective Sharon Dickerson, a fourteen-year veteran of the police force, was driving in an unmarked police car in the company of a confidential undercover informant. The informant had been provided with marked currency by the police. Detective Ansari was acting as Detective Dickerson's back-up. Detective James Kooser was also working the sweep that day. Detective Dickerson, the first witness for the prosecution, received information from Detective Ansari that several males were making drug sales at a parking lot adjacent to Community College Avenue. In response, Detective Dickerson drove to the parking lot in question and parked her vehicle. The undercover informant exited the vehicle and walked four to six feet over to a male, where Detective Dickerson observed an exchange take place between the two men. The exchange took approximately thirty to sixty seconds to complete. The informant then reentered Detective Dickerson's vehicle and the vehicle drove off. As this vehicle was -3- driving away, Detective Dickerson radioed to the other officers the physical description of the man who made the exchange with the informant. The informant then handed Detective Dickerson a package containing suspected marijuana. Detective Kooser, the second witness for the prosecution, testified that he received the radio call giving the physical description of the defendant and, in response, drove to the parking lot where the exchange took place. Approximately thirty seconds after the exchange took place, Detective Kooser approached the only male fitting the description of the defendant and placed him under arrest. A subsequent search of the suspect found a marked twenty- dollar bill, which currency was positively identified as marked currency by Detective Kooser from the serial number on the bill and a distinctive marking (a moustache) placed on the image of President Jackson by Detective Dickerson. Ms. Karen A. Twitty, the only witness for the defense, testified that she had known the defendant for approximately six years and was consuming a beer in the parking lot at the time of the offense, having arrived at the lot with her female niece, Mickey Hardwick, at approximately 5:25 to 5:30 p.m. She also testified that she and her niece were planning on accompanying the defendant to a music concert in the Flats that evening. Ms. Twitty recounted that as the two women and the defendant drank beer and chatted, two vans with police pulled up, whereupon several officers approached and searched several men, including the defendant. This witness stated that an officer she identified as Tennis Shoe -4- searched the defendant twice, finding currency and some paper in a pocket during the first search which the officer stuffed back into the defendant's pocket prior to the start of the second search several minutes later. She observed the defendant being handcuffed after the second search and led away by the police, and claimed that the defendant was not engaged that evening in any criminal or drug activity. The parties stipulated to the scientific report indicating that the exchanged substance tested positive for marijuana in an amount of 3.89 grams. (R. 234-235.) The jury returned a guilty verdict and the defendant was subsequently sentenced on December 17, 1996, to a term of eleven months and a fine of $500 plus court costs. This appeal presents the following lone assignment of error: THE VERDICT FINDING DERRICK BROOKS GUILTY OF TRAFFICKING IN MARIJUANA WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE BECAUSE THERE WAS NO SUBSTANTIAL EVIDENCE UPON WHICH A TRIER OF FACTS COULD REASONABLY CONCLUDE THAT THE ELEMENTS OF THE OFFENSE HAD BEEN PROVEN BEYOND A REASONABLE DOUBT. The standard of review for an argument based upon manifest weight of the evidence is provided in State v. Martin (1983), 20 Ohio App.3d 172, at 175: The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the 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. (Italization added.) -5- It is recognized in our appellate review that the weight and credibility of the witnesses are primarily a consideration for the trier of fact and it is not the function of an appellate court to substitute its judgment for that of the trier of fact. State v. Grant (1993), 67 Ohio St.3d 465, 476; State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. Additionally, an appellate court's authority to reverse a criminal conviction based upon manifest weight of the evidence must be exercised with caution and in only the rare cases in which the evidence weighs heavily against the conviction. State v. Martin, supra. Finally, a reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the prosecution has proved the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169, paragraph one of the syllabus. The appellant correctly cites to the eight factors outlined in State v. Mattison (1985), 23 Ohio App.3d 10, syllabus, in urging reversal of the conviction. These factors, which are in no way exhaustive according to State v. Wilson (June 9, 1994), Cuyahoga App. Nos. 64442/64443, unreported, include: 1. Knowing that even a reviewing court is not required to accept the incredible as true; 2. Whether evidence is uncontradicted; 3. Whether a witness was impeached; 4. Attention to what was not proved; 5. The certainty of the evidence; 6. The reliability of the evidence; -6- 7. The extent to which a witness may have a personal interest to advance or defend their testimony; and, 8. The extent to which the evidence is vague, uncertain, conflicting or fragmentary. Upon reviewing the transcript of the trial, it is evident that the parties' version of the evidence, and the inferences and conclusions drawn from it, differs in certain respects. However, there was sufficient evidence advanced by the prosecution upon which the jury, who is vested with primary responsibility for judging the credibility and weight of the evidence, could conclude that the defendant had violated the offense at issue beyond a reasonable doubt. The assignment of error is overruled. Judgment 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. JOHN T. PATTON, J., and ROBERT E. HOLMES, J.,(*) CONCUR. ______________________________ JAMES D. SWEENEY CHIEF JUSTICE (*) Robert E. Holmes, Retired Justice from the Supreme Court of Ohio, sitting by assignment. 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 .