COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72328 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION ANTONIO MCCRIMON : : Defendant-Appellant : : DATE OF ANNOUNCEMENT June 18, 1998 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-341453 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee: STEPHANIE TUBBS JONES, ESQ. Cuyahoga County Prosecutor DANIEL SCHIAU, ESQ. Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: KATHLEEN W. WOOD, ESQ. Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, A.J.: Appellant Antonio McCrimon appeals the decision of the trial court convicting him of one count of aggravated burglary, two -2- counts of aggravated robbery, and two counts of felonious assault with firearm specifications for each and sentencing him accordingly. McCrimon assigns the following error for our review: BECAUSE THE STATE'S IDENTIFICATION EVIDENCE WAS TOO UNRELIABLE TO IMPLICATE ANTONIO MCCRIMON BEYOND A REASONABLE DOUBT, HIS CONVICTION MUST BE REVERSED. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. Around midnight, on May 6, 1996, McCrimon and Delmont Pitts broke into the home of Cheryl Adams. The house is a single-family dwelling with a second floor, a third floor, and a basement. Also present in the house were Rebecca Minor, Rochelle Adams, and Kenya Adams Cheryl Adams' sister, adult niece, and adult daughter, respectively. There were also two children in the house. At the time of the break-in, Cheryl Adams was asleep in her bedroom on the second floor. Minor and Rochelle were in another bedroom on the same floor watching television when they heard loud noises from downstairs. They both ran into Adams' bedroom to wake her and alert her that someone was trying to break into the house. Rochelle then gathered the children and took them to the third floor where Rochelle informed Kenya Adams of the intrusion. Kenya and Rochelle hid in a closet with the children and called 911. They also called their uncle, Jason Jackson, for help. McCrimon and Pitts went to Adams' bedroom where Adams and Minor remained. McCrimon and Pitts each pointed a gun at the women as they demanded the stuff from Adams. By the stuff , McCrimon -3- and Pitts meant money and drugs belonging to Jason Jackson. Adams told them she did not have the stuff . Minor suggested they look for it in the basement. McCrimon and Pitts kicked and beat both women as they proceeded down the stairs to the basement. Once inside the basement, McCrimon and Pitts continued to beat, kick, and threaten Adams and Minor. Minor was stabbed in her side with a coat hanger. Sometime after entering the basement, McCrimon and Pitts became aware that the police were on their way. Minor took advantage of this distraction and escaped to the third floor. Adams was shot in the abdomen. McCrimon and Pitts fled from the basement. The police, however, were unable to apprehend them that evening. Officer Randy Cottingham responded to the call regarding the break-in. When he arrived, Cottingham observed two individuals running from the scene. Cottingham also heard gun shots. Unable to apprehend the two men, Cottingham returned to the house where he found Adams lying on the floor yelling that she had been shot. Later, Cottingham inspected the house and retrieved four spent nine millimeter rounds. Detective John Giotta was assigned to investigate the incident the following day. Subsequently, Giotta contacted Adams and Minor, separately, to show them a photo line-up. Adams was unsure of McCrimon's identity because at the time of the incident, McCrimon had a lot of hair and his photo showed him with short hair. Minor also identified McCrimon as one of the perpetrators. -4- At trial, Adams and Minor testified that McCrimon and Pitts did not wear masks or anything else to disguise their faces. The women also testified they saw their faces clearly when they were in the basement, which was illuminated. Adams said that although, out of fear, she tried not to look at their faces, she did look at them. Minor testified she was not scared to look at her attackers and she would never forget their faces. Rochelle testified she recognized McCrimon's voice. She said she was able to recognize his voice because she has known McCrimon for ten years and because they went to school together in junior high. However, Rochelle Adams also testified she never really communicated with McCrimon. (Tr. 152) When asked how could she hear his voice in the basement when she was on the third floor, Rochelle Adams replied, there's [sic] heat vents in the closet that we were in, that goes all the way down. You can hear anything come up [sic] through the heat vents, and I heard all of that, yes. (Tr. 158). Pearl McCrimon, McCrimon's aunt and Pitts' godmother, testified that on the night of the incident, both McCrimon & Pitts spent the night at her house. She stated that both came to her house early in the day and remained there without leaving until after 1:00 a.m. when she went to bed. After a guilty verdict, McCrimon was sentenced to ten to twenty-five years for counts one, two and three; eight to fifteen years on counts four and five; and three years for each gun specification. The gun specifications are concurrent; counts one, -5- two, and five are concurrent; counts two and four are also concurrent, but are consecutive to one, three, and five. McCrimon's sole assignment of error argues, essentially, that the trial court's decision is against the manifest weight of the evidence. Specifically, he argues the weight of the evidence suggests that Adams' and Minor's identification of him as one of the perpetrators was based on factors other than their personal knowledge and memory of him as one of their attackers. McCrimon also argues that Rochelle Adams' voice identification of him is unreliable since she admitted she never really communicated with McCrimon. When considering a manifest weight argument, we must weigh the evidence and all reasonable inferences, consider *** the credibility of the witnesses, and determine *** 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. State v. Martin (1983), 20 Ohio App.3d 172, 175. The rationale *** is to ensure that the evidence preponderates sufficiently heavily in support of the verdict ***. State v. Wilson (June 9, 1994), Cuyahoga App. Nos. 64442, 64443, unreported. The identification testimony by the eyewitnesses was reliable. Adams positively identified McCrimon as her attacker. Although Adams said she was not one hundred percent sure McCrimon was her attacker at the time she viewed the photo spread sheet, she explained it was because his hair was substantially different in -6- the photo than on the day of the incident. She testified that [she] just wasn't sure, because *** the person had bushy hair, and the face looked the same,but it's just that his hair -- (Tr. 91). (Emphasis added.) She did go on to identify McCrimon during the trial without hesitation. She said, I wasn't sure, but now that I seen [sic] him today, I am absolutely sure. Additionally, Minor's identification of McCrimon was positive. In court, she stated McCrimon was one of the men who broke into her sister's house and assaulted them. In fact, Minor testified she identified McCrimon as one the perpetrators from the photo spread sheet and a physical line-up. In light of the state's witnesses' testimony, we conclude that the identification evidence weighed heavily against McCrimon; consequently, the jury did not lose its way. McCrimon's assigned error is overruled. Judgment affirmed. 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. KARPINSKI, J., and PATTON, J., CONCUR. PATRICIA ANN BLACKMON ADMINISTRATIVE 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 .