COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71747 STATE OF OHIO : : : Plaintiff-appellee : : : -vs- : JOURNAL ENTRY : AND GIOVANNI SADDLER : OPINION : : Defendant-appellant : DATE OF ANNOUNCEMENT APRIL 16, 1998 OF DECISION CHARACTER OF PROCEEDING Criminal appeal from Common Pleas Court Case No. CR-337776 JUDGMENT Affirmed. DATE OF JOURNALIZATION APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs Jones, Esq. Darin Thompson, Esq. Cuyahoga County Prosecutor 1200 W. 3d Street N.W. Michael D. Horn, Esq. 100 Lakeside Place Assistant Prosecuting Attorney Cleveland, Ohio 44113 1200 Ontario Street 8th Floor Cleveland, Ohio 44113 Giovanni Saddler #331-373 S.O.C.F. P.O. Box 45699 Lucasville, Ohio 45699-0001 MICHAEL J. CORRIGAN, J.: Giovanni Saddler, defendant-appellant, appeals his conviction in the Cuyahoga County Court of Common Pleas for aggravated murder -2- in violation of R.C. 2903.01, aggravated robbery in violation of R.C. 2911.01, and felonious assault in violation of R.C. 2903.11 (all counts containing a firearm specification). Defendant- appellant raises four assignments of error. This court, finding no error, affirms defendant-appellant's conviction. Based upon information the Cleveland Police Department had received concerning an aggravated murder and robbery, defendant- appellant was arrested on October 17, 1995. On February 29, 1996, defendant-appellant was bound over from Juvenile Court to the Court of Common Pleas to be prosecuted as an adult for aggravated murder, two counts of aggravated robbery and one count of felonious assault. On April 18, 1996, the Cuyahoga County Grand Jury indicted defendant-appellant on the above mentioned charges with each count carrying a firearm specification. A pre-trial was held on May 1, 1996 and was continued, at the request of defendant-appellant, until May 30, 1996. On May 31, 1996, defendant-appellant filed a motion to suppress oral statements made by defendant-appellant and any/all evidence concerning a photo array and identification of defendant-appellant. A hearing on defendant-appellant's motion to suppress was held on June 6, 1996. The motion was overruled on that date. Defendant- appellant then waived his speedy trial rights from June 6, 1996 through July 31, 1996. On July 29, 1996, the case was set for trial. At that point it was presented to the trial court that new evidence in the form of a co-defendants statement had come to light -3- and that defense counsel had been negotiating a plea bargain agreement with the prosecutor.1 However, defendant-appellant refused to enter into the plea agreement. For that reason, defense counsel requested a one-week extension of time to properly review the new evidence. Initially, defendant-appellant consented to the continuance. However, he then refused to consent to a waiver of his speedy trial rights for that week. The trial court explained that the one-week extension would be to his benefit and expressed concern over defendant-appellant's judgment. The judge questioned defendant- appellant to ensure that he understood the consequences of his decision. At that point, it was revealed that defendant-appellant had been receiving advice from an individual known as the Library Man who worked at the jailhouse library. Defense counsel informed the court that defendant-appellant was under the mistaken belief that if the trial was not completed by July 31, 1997, the charges would be dismissed due to a speedy trial violation. The trial judge attempted to explain to defendant-appellant that under the speedy trial guidelines, the trial only has to start on July 31, 1996. After the explanation, the trial judge asked if defendant-appellant understood. Although he answered in the positive, it is clear from the record he did not. Again the trial court attempted to explain the consequences of his decision and the 1There were no allegations that the state withheld the statement of the co-defendant. In fact, defense counsel stipulated that once the statement was obtained, it was timely forwarded to defense counsel. -4- dangers of relying upon the advice of Library Man. Moreover, defendant-appellant's father approached the court and explained that he cannot convince his son that a one-week delay would be beneficial and that the charges would not be dismissed if the case was not finished by July 31st. At that point, the trial court explained the plea agreement to defendant-appellant who stated that he understood but refused to accept the plea agreement. As the trial judge was about to call out the jury, defendant-appellant indicated that he decided to waive his speedy trial rights for one week. However, the prosecutor then informed the trial court that if the trial began in seven days, he would be unable to finish it as he was scheduled to be out of town for approximately three weeks. After a short recess, the trial court expressed concern over the defendant-appellant'sdecision making ability and the fact that he has had a history of depression and attempted suicide. Although defendant-appellant's father opined that he did not believe his son would attempt suicide, he did believe his son was confused. Moreover, his father informed the court that defendant-appellant had previously been found to have a learning disability. For these reasons, the trial court referred defendant-appellant to the court psychiatric clinic for a competency valuation pursuant to R.C. 2945.37 over defendant-appellant's objection. The court psychiatric clinic report was received by the trial court on August 29, 1996. On September 3, 1996, a hearing was held wherein the trial court indicated the report found defendant- -5- appellant competent to stand trial. The results were accepted by the parties and the trial court. Trial was then scheduled for September 11, 1996. After a delay by defense counsel, the jury was sworn in on September 13, 1996. On September 20, 1996, the jury found defendant-appellant guilty of aggravated murder, aggravated robbery, and felonious assault with all counts containing a firearm specification. Defendant-appellant appeals his conviction. For his first assignment of error, defendant-appellant states: I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS FOR LACK OF PROSECUTION WITHIN THE TIME REQUIRED BY R.C. 2945.71 ET SEQ., AS THE TRIAL COURT'S SUA SPONTE (SIC) RAISING OF THE ISSUE OF COMPETENCY OF MR. SADDLER AND SUBSEQUENT REFERRAL FOR COMPETENCY EVALUATION DID NOT TOLL TIME FOR SPEEDY TRIAL PURPOSES BECAUSE IT WAS WITHOUT BASIS IN THE RECORD AND CONSTITUTED AN UNREASONABLE AND UNCONSCIONABLE ATTEMPT TO AVOID THE REQUIREMENTS OF R.C. 2945.71 ET SEQ. The Sixth and Fourteenth Amendments to the United States Constitution, as well as Section 10, Article I of the Ohio Constitution,guarantee a criminal defendant the right to a speedy trial by the state. State v. O'Brien (1987), 34 Ohio St.3d 7. In Barker v. Wingo (1972), 407 U.S. 514, 523, 92 S.Ct. 2182, 2188, 33 L.Ed.2d 101 112-113, the United States Supreme Court declared that, with regard to fixing a time frame for speedy trials, [t]he States *** are free to prescribe a reasonable period consistent with constitutional standards ***. To that end, the Ohio General Assembly enacted R.C. 2945.71 in order to comply with the Barker decision. See, also, State v. Lewis (1990), 70 Ohio App.3d 624. R.C. 2945.71 states in pertinent part: -6- (C) A person against whom a charge of felony is pending: (1) Notwithstanding any provisions to the contrary in Criminal Rule 5(B), shall be accorded a preliminary hearing within fifteen consecutive days after his arrest if the accused is not held in jail in lieu of bail on the pending charge or within ten consecutive days after his arrest if the accused is held in jail in lieu of bail on the pending charge (2) Shall be brought to trial within two hundred seventy days after his arrest. * * * (E) For purposes of computing time under divisions (A), (B), (C)(2), and (D) of this section, each day during which the accused is held in jail in lieu of bail on the pending charge shall be counted as three days. This division does not apply for purposes of computing time under division (C)(1) of this section. It is well established that the Ohio speedy trial statute constitutes a rational effort to enforce the constitutional right to a public speedy trial of an accused charged with the commission of a felony or misdemeanor and shall be strictly enforced by the courts of this state. State v. Pachay (1980), 64 Ohio St.2d 218. Once the statutory limit has expired, the defendant has established a prima facia case for dismissal. State v. Howard (1992), 79 Ohio App.3d 705. At that point, the burden shifts to the state to demonstrate that sufficient time was tolled pursuant to R.C. 2945.72. State v. Geraldo (1983), 13 Ohio App.3d 27. Initially, we note that the period during which the mental competency of the accused to stand trial is being determined tolls the time in which the accused must be brought to trial. R.C. -7- 2945.72(B). See State v. Bowman (1987), 41 Ohio App.3d 318; State v. Wilson (1982), 7 Ohio App.3d 219.2 It has been stipulated by the parties that defendant- appellant's claim of a speedy trial violation depends upon whether or not the trial court's referral of defendant-appellant to the psychiatric clinic for a competency valuation was a proper use of its discretion. An abuse of discretion connotes more than an error of law or judgment, it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St. 2d 151; State v. Qualls (1988), 50 Ohio App.3d. 56. In this case, defendant-appellant argues the trial court erroneously believed the trial had to be commenced by July 29, 1996. Next, contrary to the journal entry, defendant-appellant claims that he did in fact waive his speedy trial rights for one week as previously requested. However, at that point the prosecutor informed the court that he would be unable to complete the trial if the trial date was continued due to a scheduling conflict. For that reason, defendant-appellant argues, the trial court invented a reason for delaying the trial, i.e., the sua sponte referral for a competency evaluation. Defendant-appellant argues the trial court's decision is a ruse which is unreasonable and unconscionable and constitutes an abuse of discretion. Plaintiff-appellee argues that the transcript cannot even remotely be said to establish an abuse of discretion by the trial 2A conflict between these two cases is currently pending before the Ohio State Supreme Court. See 80 Ohio St.3d 1468. -8- court. Moreover, plaintiff-appellee fails to comprehend the audacity of defendant-appellant to suggest that the trial court invented a reason to delay and manufactured its concerns for defendant-appellant's competency. Leaving out the indignance of plaintiff-appellee, we agree that the record does not support a finding of abuse of discretion by the trial court and there exists a presumption of regularity that has not been overcome by the defendant appellant. Here, defendant-appellantinitially consented to the waiver of his speedy trial rights for that week but then refused. His refusal was based upon the advice from an individual known as the Library Man who worked at the jailhouse library. Even though the trial court went to great lengths to explain his rights under R.C. 2945.71, defendant-appellant remained confused. Again the trial court attempted to explain the circumstances of his decision and the dangers of relying upon the advice of Library Man to no avail. Additionally, defendant-appellant's father approached the court and explained that he cannot convince him that a one-week delay would be beneficial and that the charges would not be dismissed if the case was not finished by July 31st. Eventually, defendant-appellant agreed to the one-week waiver. However, at that time, the prosecutor informed the trial court that it would be unable to complete the trial if it was rescheduled to start in one week. A short recess was taken and the trial court expressed concern over the defendant-appellant's decision making ability and the fact that he has had a history of depression and -9- attempted suicide. Although defendant-appellant's father opined that he did not believe his son would attempt suicide, he did believe his son was confused. Defendant-appellant's father also informed the court that his son had previously been found to have a learning disability. We recognize that defendant-appellant eventually agreed to the one week waiver and that the trial court stated its concerns for defendant-appellant's competency only after a short recess was taken after the prosecutor informed the court it would be unable to complete the trial if it was rescheduled in one week. These facts standing alone, however, do not support defendant-appellant's contention that the trial court manufactured a reason to delay the trial and toll the speedy trial time. Especially after considering the prior dialog between the trial court and the parties concerning defendant-appellant's decision-making ability and confusion over his right to a speedy trial. For these reasons, the trial court did not abuse its discretion in ordering a competency evaluation of defendant- appellant. Defendant-appellant's first assignment of error is not well taken. Defendant-appellant's second assignment of error states: II. THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT'S PRE-TRIAL MOTION TO SUPPRESS THE IDENTIFICATION TESTIMONY OF TONEITHA LAMAR AS SUCH IDENTIFICATION WAS IRREPARABLY TAINTED BY UNFAIR AND IMPROPERLY SUGGESTIVE PHOTOGRAPHIC IDENTIFICATION PROCEDURES. In this case, defendant-appellant argues the photo array was impermissibly suggestive as defendant-appellant since: 1) he was -10- the only individual with bright colors, 2) he was the only individual with a distinctive multiple corn rolls hairstyle, 3) he was one of three individuals who had facial hair and 4) defendant-appellant's picture, unlike the others, appeared to be a snapshot taken recently due to its clarity and distinctively bright background. Defendant-appellant also argues Ms. Lamar's belief that the shooter would be among those pictured impermissibly tainted her identification. First, we note the defendant has the burden to show the court that the identification procedures were unnecessarily suggestive. As stated in State v. Sims (1984), 13 Ohio App.3d 287: The threshold question is whether the photo identification is impermissibly suggestive. All identification processes are inherently suggestive. Due process is violated only when the process is so impermissibly suggestive that the identification is unreliable in that there exists a substantial likelihood of irreparable misidentification. State v. Haley (1994), 93 Ohio App.3d 71, 76. To this end, this court held in State v. Byarse (Sept. 4, 1997), Cuyahoga App. No. 70282, unreported: When defendant is identified at trial following a pretrial identification by photograph, the defendant's conviction will be set aside if the photographs are so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States (1968), 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247. Suggestiveness depends upon several factors, including the size of the array, its manner of presentation, and its contents. Reese v. Fulcomer (C.A.3, 1991), 946 F.2d 247, 260. Stated otherwise, the test is whether the picture of the accused, matching descriptions given by the witness, so stood out from all of the photographs as to suggest to an identifying witness that [that person] was more likely to be the culprit. Jarrett v. Headly (C.A. 2d. 1986), 802 F.2d 34, 41. -11- See, also, State v. Barnett (1990), 67 Ohio App.3d 760, 767. Finally, even if the identification procedure may have contained notable flaws, this factor does not, per se, preclude the admissibility of the identification. State v. Merrill (1984), 22 Ohio App.3d 119, 121; State v. Moody (1978), 55 Ohio St.2d 64, 67. Rather, the focus then shifts to reliability, i.e., whether the out-of-court suggestive procedure created a very substantial likelihood of misidentification. Simmons v. United States (1968), 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247. In this case, Ms. Lamar was presented with a photo array of five individuals within the same age group as opposed to a single photograph. See Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. The detective who put together the photo array and was present during the identification testified that he never suggested the shooter was in the photo array. Rather, Ms. Lamar testified that it was merely her impression that the shooter would be in the photo array. Without a representation that the shooter was in the photo array by the officer conducting the identification, Ms. Lamar's logical and reasonable assumption does not establish a substantial likelihood of misidentification. More important to this court is the fact that Ms. Lamar testified that the crime scene was well-lit and she had no problem viewing the shooter's face. Additionally, the detective testified that he instructed Ms. Lamar to concentrate on the facial features of the individuals and that she was careful in making her selection. -12- Ms. Lamar testified the shooter was wearing a hat at the time of the incident thereby rendering defendant-appellant's hairstyle irrelevant. Defendant-appellant's argument that the hair style, in and of itself, impermissibly drew the attention of the witness to defendant-appellant's photograph is unpersuasive given that another individual in the photo array had a similarly distinctive hair style. Finally, this court has reviewed the photo array regarding the clarity of the pictures, the facial hair of the individuals and what defendant-appellant argues to be his suggestively bright colors. First, we find all of the photographs were of comparable clarity. Second, arguably four of the individuals including defendant-appellant had comparable facial hair. Finally, that defendant-appellant was the only individual with a blue shirt on does not impermissibly suggest to an identifying witness that he was more likely to be the shooter. For all of these reasons, we find Ms. Lamar's identification of defendant-appellant as the shooter was sufficiently reliable and admissible. See State v. Jells (1990), 53 Ohio St.3d 22. Defendant- appellant's second assignment of error is not well taken. In a supplemental pro se brief, defendant-appellant states as his third assignment of error: III. DOES COURT-APPOINTED COUNSEL'S FAILURE TO ABIDE BY THE CLIENT'S DECISION VIOLATE APPELLANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE 6TH AND 14TH AMENDMENTS OF THE UNITED STATES CONSTITUTION? In order to substantiate a claim of ineffective assistance of counsel, the appellant is required to demonstrate that: 1) the -13- performance of defense counsel was seriously flawed and deficient; and 2) the result of the appellant's trial or legal proceeding would have been different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668, State v. Brooks (1986), 25 Ohio St.3d 144. In reviewing a claim of ineffective assistance of counsel, it must be presumed that a properly licensed attorney executes his legal duty in an ethical and competent manner. State v. Smith (1985), 17 Ohio St.3d 98; Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. The Supreme Court of Ohio, with regard to the issue of ineffective assistance of counsel, held in State v. Bradley (1989), 42 Ohio St.3d 136, 141-142 that: When considering an allegation of ineffective assistance of counsel, a two-step process is usually employed. First, there must be a determination as to whether there has been a substantial violation of any of defense counsel's essential duties to his client. Next, and analytically separate from the question of whether the defendant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's ineffectiveness. State v. Lytle (1976), 48 Ohio St.2d 391, 396- 397, 2 O.O.3d 495, 498, 358 N.E.2d 623, 627, vacated in part on other grounds (1978), 438 U.S. 910. This standard is essentially the same as the one enunciated by the United States supreme Court in Strickland v. Washington (1984), 466 U.S. 668. * * * Even assuming that counsel's performance was ineffective, this is not sufficient to warrant reversal of a conviction. An error by counsel, even if professionally unreasonable, does not warrant setting aside -14- the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364- 365 (1981). Strickland, supra, at 691. To warrant reversal, [t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, supra, at 694. In adopting this standard, it is important to note that the court specifically rejected lesser standards for demonstrating prejudice. * * * Accordingly, to show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. In the case sub judice, defendant-appellant argues trial counsel's failure to explain his right to a speedy trial and ignoring his decision on the issue constitutes ineffective assistance of counsel. However, from a review of the record, it is clear that trial counsel did, in fact, attempt to explain his rights to a speedy trial and offered legally sound advice to their client concerning this matter. Moreover, not only did defendant- appellant eventually follow the advice of his counsel and agreed to the waiver, but he also stated on the record that he was satisfied with his counsel's performance. It is clear that defendant-appellant's confusion over the issue was due solely to his own reliance upon the advice of an employee who worked in the jailhouse library. Finally, defendant- appellant fails to establish any actual prejudice from the alleged -15- misconduct of his counsel, i.e., that the outcome of the trial would have been different had defense counsel provided proper representation. For these reasons, defendant-appellant's third assignment of error is not well taken. In his supplemental pro se brief, defendant-appellant states in his fourth assignment of error: IV. DOES A TRIAL COURT ERROR WHEN THE WEIGHT OF THE EVIDENCE IS NOT MANIFESTED. Article IV, Section 3(B)(3) of the Ohio Constitution authorizes appellate courts to assess the weight of the evidence independently of the fact-finder. Thus, when a claim is assigned concerning the manifest weight of the evidence, an appellate court has the authority and the duty to weigh the evidence and determine whether the findings of *** the trier of fact were so against the weight of the evidence as to require a reversal and a remanding of the case for retrial. State ex re. Squire v. City of Cleveland (1948), 150 Ohio St. 303, 345. The standard employed when reviewing a claim based upon the weight of the evidence is not the same standard to be used when considering a claim based upon the sufficiency of the evidence. The United States Supreme Court recognized these distinctions in Tibbs v. Florida (1982), 457 U.S. 31, where the Court held that unlike a reversal based upon the insufficiency of the evidence, an appellate court's disagreement with the jurors' weighing of the evidence does not require special deference accorded verdicts of acquittal, i.e., invocation of the double jeopardy clause as a bar to relitigation. Id. at 43. -16- Upon application of the standards enunciated in Tibbs, the court in State v. Martin (1983), 20 Ohio App.3d 172, has set forth the proper test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated: 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 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. Moreover, it is important to note that the weight of the evidence and the credibility of the witnesses are issues primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. Hence we must accord due deference to those determinations made by the trier of fact. In this case, defendant-appellant argues his guilty verdict is against the manifest weight of the evidence. Specifically, defendant-appellant argues the testimony of Ms. Lamar who identified him as the shooter and the testimony of the co-defendant were not credible and/or trustworthy. We disagree. A review of the transcript establishes Ms. Lamar testified that she and her boyfriend had pulled in front of her house on Colfax Avenue and were talking. Although it was past midnight, the area was well lit. A car parked in front of them and prevented them from leaving. Individuals got out of the car and began shooting at their windows. Ms. Lamar and her boyfriend both ducked down in -17- their seat. At that point, the doors opened and both Ms. Lamar and her boyfriend were pulled from the car and were assaulted. She testified that she observed defendant-appellant rummaging through her boyfriend's pockets as he yelled profanity all the while. She testified defendant-appellant said to her, Bitch, is this your man. Watch this ho ass nigga' die. Ms. Lamar then witnessed defendant-appellant shoot her boyfriend in the head. She testified she was approximately ten feet from defendant-appellant and had a clear view of his face. Ms. Lamar testified that she did not see who the individual was who pulled her out of the vehicle because she was paying attention to defendant-appellant. The state also provided the testimony of a co-defendant, Leonard Gaines, who testified that in exchange for his testimony he was able to plead guilty to a lesser charge of involuntary manslaughter and felonious assault. He testified that on the day of the incident, he had been smoking marijuana with defendant- appellant, whom he had known for approximately five years. That evening, defendant-appellant, himself and a boy named Darshawn, saw a white Cutlass with expensive tire rims. Leonard Gaines testified that defendant-appellant told him he wanted those tire rims and they began following Ms. Lamar and her boyfriend in their car. He testified that the victim turned off Kinsman Avenue down East 69th Street and then on Colfax Avenue. Leonard Gaines testified he and Darshawn pulled Ms. Lamar out of the vehicle and began assaulting her while defendant-appellant assaulted her -18- boyfriend. At that point, he heard a gun shot and defendant- appellant told Leonard Gaines to get back in their car. At that point, defendant-appellant jumped into the white Cutlass and drove off. Leonard Gaines testified he knew defendant-appellant fired the gun and that defendant-appellant subsequently told him he shot the boy because he laughed at him. After the shooting, Leonard Gaines testified they drove both cars into a parking lot and defendant-appellant took out the stereo and gave it to an individual named Charles. Defendant-appellant took the white Cutlass to an old baseball field where defendant- appellant and some other friends stripped the vehicle and took the tire rims. Leonard Gaines subsequently saw defendant-appellant with the tire rims. The state also presented the testimony of Patrol Officer Wellinger, who found the burned out Cutlass of the victim in a field with its tires and rims missing. We have reviewed the transcript and find the above cited testimony reliable and credible. Furthermore, other than his broad assertions that the testimony in question is unreliable, defendant- appellant fails to cite to anything in the record which would give merit to his claims. The fact that the co-defendant's testimony was made as part of a plea agreement was a fact raised before the jury for their consideration in determining his credibility and the weight to afford that testimony. Additionally, the trial court, properly charged the jury with regards to the weight and credibility of the accomplice's testimony as mandated by R.C. 2923.01(H) and 2923.03(D). See 40.J.I. 405.51(B). -19- Therefore, after a complete review of the record and keeping in mind that the weight of the evidence and the credibility of the witnesses are issues primarily for the trier of fact, we cannot say that the jury clearly lost its way and created a manifest miscarriage of justice. As such, defendant-appellant's conviction is not against the manifest weight of the evidence. Defendant- appellant's fourth assignment of error is not well taken. Judgment affirmed. -20- It is ordered that appellee recover of appellant 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, PRESIDING JUDGE LEO SPELLACY, J., CONCUR JUDGE MICHAEL J. CORRIGAN 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 .