COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72256 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION KERNESS MILLS : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 5, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-344944. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Denise R. Cameron Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Stephen L. Miles, Esq. 20800 Center Ridge Road, #217 Rocky River, Ohio 44116 -2- SWEENEY, JAMES D., J.: Defendant-appellant Kerness Mills appeals from his conviction for petty theft in violation of R.C. 2913.02, a first degree misdemeanor. The appellant was sentenced to a term of incarcerationof six months, ordered to pay court costs, and fined three hundred dollars. The court suspended the six-month term of incarceration. During the bench trial, the State presented six witnesses, and the appellant testified on his own behalf. From this testimony it was learned that the appellant was employed by the Department of Veterans Affairs Medical Center (the V.A.), in Cleveland, Ohio. The appellant and Craig Healey are both employed at the V.A as pipe fitters, and in the past they have had disagreements. Both men were under the supervision of Klester Brown. Frederick Thompson and Lawrence Borczuch, who are both employed in the air conditioning shop, testified, as did Gary McGregor, who is employed as a maintenance mechanic in the machine shop. Anthony Lelli, the acting chief of maintenance and operations, also testified. On August 29, 1996, at approximately 7:00 or 7:15 a.m., the appellant drove his motor vehicle into the hospital grounds and struck the steps in front of the maintenance trailer. As the appellant exited his vehicle, he and Healey waived to each other. Healey entered the building and spoke to Mr. Thompson, indicating to Thompson that he should see what the appellant had just done. Healey put his possessions away and entered the carpenters shop. -3- At this point Thompson indicated that Healey should observe the appellant's actions. As Healey looked out the window, he observed the appellant place three boxes in his motor vehicle. Healey went outside and admonished the appellant to put the stuff back, there are people watching you. Just put the stuff back. (T. 16). While Healey was near the vehicle, he observed a faucet at the appellant's feet. Healey reentered the building, and the appellant walked up behind him and told him to mind his own business. The appellant exited the building once more and Healey observed the appellant place more boxes in the motor vehicle. The appellant then left the premises. Healey described the boxes as approximately a foot and one- half wide by two feet long. There were slits in the boxes where the cardboard did not quite meet. Rings of copper could be seen through these slits. The faucet Healey saw at the appellant's feet was a four-inch center Chicago Lab faucet. Healey testified that he saw a box of faucets in the appellant's motor vehicle. Healey testified that at approximately 9:30 a.m., while he was on a break with Larry Borczuch, Gary McGregor and Mark Kippes, the appellant confronted his co-workers and threatened that if they accused him of stealing he would accuse them as well (T. 21). Healey informed his supervisor, Klester Brown, of the events of the morning. Frederick Thompson observed the appellant throw boxes from the storage trailer into his motor vehicle. At approximately 9:30 a.m. Gary McGregor was sitting near the trailer with Larry Borczuch and -4- two other employees. McGregor testified that the appellant approached and stated that if the men said anything about the earlier incident, that he, the appellant, would say the men had done stuff like that before. (T. 58-59). This testimony was corroborated by Lawrence Borczuch. Plumbing supervisor Klester Brown testified that there is a trailer on the V.A. premises used in part for storage of plumbing supplies. Upon learning from Healey and Kippes of the theft, Brown contacted his supervisor, Anthony Lelli. Later in the morning Brown conducted an inventory of the trailer, using as a basis a copy of a May 1996 purchase order requesting plumbing materials. From this inventory Brown testified both as to what he believed was not in the trailer and as to the value of the items he was unable to locate. The inventory was marked as an exhibit and accepted by the court. Brown testified that the appellant had not been given permission to remove any of the items stored in the trailer. The appellant asserts the following assignment of error: THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The appellant contends that the testimony of Craig Healy, without whose testimony the appellant believes no conviction would have been rendered, was conflicting, self-serving, impeached and so unreliable that it fails to support his conviction. The Supreme Court set forth the test for appellate review of the manifest weight of the evidence in State v. Jenks (1991), 61 Ohio St.3d 259, 273. A verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the -5- conclusion reached by the trier of fact. See also State v. Waddy (1992), 63 Ohio St.3d 424. A reviewing court will not reverse a verdict where there is substantial evidence upon which a jury could reasonably conclude that all the elements of the offense have been proven beyond a reasonable doubt. State v. Ely (1978), 56 Ohio St.2d 169; State v. DeHass (1967), 10 Ohio St.2d 230. The weight to be given evidence and the credibility of witnesses are primarily for the trier of fact to determine. Jenks, supra; Waddy supra. In the case sub judice, the trial court served as the finder of fact. The court was free to believe or disbelieve the testimony of any witness, including Craig Healey. Healey testified that he personally observed the appellant place boxes containing plumbing supplies from the storage trailer at the V.A. hospital into his personal vehicle. Notwithstanding the appellant's assertions that this testimony was conflicting, self-serving, impeached and unreliable, the weight to be given Healey's testimony and the credibility of his statements was determined by the trial court. In addition to Healey's testimony, the court heard evidence from Mr. Thompson that the appellant had indeed placed boxes from the storage trailer in his personal motor vehicle. The court heard both Mr. McGregor and Mr. Borczuch testify that the appellant threatened retaliation. Finally, the court heard Mr. Brown testify that the appellant did not have permission to remove items from the storage trailer. Given the evidence, this court cannot find that reasonable minds could not reach the conclusion reached by the trier of fact. -6- The appellant's 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 Court of Common Pleas 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. TERRENCE O'DONNELL, P.J., and JOHN T. PATTON, J., CONCUR. ______________________________ JAMES D. SWEENEY 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 .