COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72712 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION SEAVEN CAYSON : : Defendant-appellant : : : DATE OF ANNOUNCEMENT : OF DECISION : MAY 14, 1998 : CHARACTER OF PROCEEDINGS : Criminal appeal from : Court of Common Pleas : Case No. CR-315945 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: THOMAS A. REIN, ESQ. KATHLEEN W. WOOD, ESQ. Assistant County Prosecutor Assistant Public Defendant 8th Floor, Justice Center 100 Lakeside Place 1200 Ontario Street 1200 West Third Street Cleveland, OH 44113 Cleveland, OH 44113 JOHN T. PATTON, J.: A jury found defendant Seaven Cayson guilty of aggravated burglary, theft and possession of criminal tools in connection with -2- his theft of a lawnmower from a suburban house. His two assigned errors challenge the sufficiency and weight of the evidence. The victim testified that his house had an attached garage. On the day of the theft, after completing his lawn mowing, he put his lawnmower in the garage and went in the house to use the telephone. The garage door remained open during this time. After a couple minutes he heard a noise in the garage and went to investigate. He saw his lawnmower in the trunk of a Dodge automobile that was pulling out of his driveway. The victim immediately called the police with a description of the vehicle. A police officer from a nearby city heard a broadcast report of the theft and soon spotted the Dodge with the lawnmower in the trunk. The officer stopped the vehicle and identified defendant as the driver and one David Harris1 as the passenger. Defendant told the officer he was coming from his grandmother's house and that the lawnmower belonged to Harris. When pressed, defendant told the officer his grandmother lived somewhere off Warrensville, although he could not give a more precise address for her house. Another police cruiser arrived at the scene carrying the victim, who immediately identified the lawnmower in the trunk of the car as his. Defendant and Harris were taken to the police station and questioned separately. They both gave statements to the police in 1 Harris later pleaded guilty to counts of theft and breaking and entering. Both the state and the defense tried to secure Harris' presence at trial, but he could not be located. The state read his statement in his absence. -3- which they implicated the other person as the perpetrator. Defendant told the police he had been driving down the street when he saw Harris, an old acquaintance. Harris asked defendant to drive him to the Heights to pick up a lawnmower. They drove for a while and Harris pointed out a house with an open garage and told defendant to back the car in the drive. Defendant opened the trunk and Harris loaded the lawnmower in the trunk. They proceeded only a few hundred feet down the road before stopping to secure the lawnmower. The police stopped them shortly thereafter. Defendant said that when stopped, he told the police the lawnmower belonged to Harris. He admitted lying to the police about his grandmother living on Warrensville, but said he did so to follow up on Harris' story. Harris told the police that defendant came to his house and asked him to help him pick up a lawnmower from his grandmother's house. They drove for a while and eventually backed into a driveway with an open garage door. Defendant released the trunk and asked Harris to hold the trunk open while he loaded the lawnmower from the garage. They drove away but stopped after only traveling a few hundred feet to adjust the handle of the lawnmower so it would not stick out so far from the car. When stopped by the police, Harris stated defendant told him to tell the police the lawnmower belonged to Harris because he was on parole. Harris admitted telling the police officer and that the lawnmower belonged to him and they were going to defendant's mother's house to cut her lawn. -4- Defendant testified and admitted to two prior convictions for aggravated burglary and one prior conviction for receiving stolen property. He also admitted violating shock probation the court granted him about six months before the theft of the lawnmower. His testimony before the jury generally tracked the substance of his written statement. He claimed that when stopped by the police, he said the lawnmower belonged to Harris, and Harris told the police officer, [i]t's mine. What's wrong with it? Defendant denied exiting the vehicle and putting the lawnmower in the trunk. He told the jury Harris falsely implicated him with the theft. I The first assignment of error complains the court lacked sufficient evidence of force, stealth or deception necessary to prove the burglary charge since the evidence showed only that someone walked into the victim's garage during the daylight hours, loaded a lawnmower into the trunk of a car and drove slowly away. Defendant claims this evidence does not show stealth or deception. The state maintains defendant waived the right to challenge the sufficiency of the evidence by conceding the state presented sufficient evidence to prove the aggravated burglary. When making a Crim.R. 29(A) motion for judgment of acquittal at the close of the state's case, defense counsel told the court, we're obviously not debating the aggravated burglary charge or the theft case. Those crimes did occur ***. Defendant only argued he lacked the requisite culpable mental state to commit aggravated burglary and theft. -5- In order to preserve the right to appeal the sufficiency o which a conviction is based, a defendant must timelyfevidence upon file a Crim.R. 29 motion for acquittal with the trial court. If a Crim.R. 29 motion is not made by a defendant, he or she waives any sufficiency of evidence argument on appeal, State v. Roe (1989), 41 Ohio St.3d 18, and this court will review only for plain error. As we see it, the question is whether defendant's failure to challenge the state's evidence of stealth at the time of the Crim.R. 29(A) motion waives his right to present it on appeal. The federal courts, employing the virtually identical provisions of Fed.R.Crim.P. 29(a), place no duty on an accused to set forth specific grounds for a motion for judgment of acquittal. See e.g., United States v. Cox (C.A.6, 1979), 593 F.2d 46, 48; United States v. Gjurashaj (C.A.2, 1983), 706 F.2d 395, 399; United States v. Hammoude(C.A.D.C.1995), 51 F.3d 288. However, if an accused does set forth specific grounds in a motion for judgment of acquittal, all grounds not specified are waived. See United States v. Dandy (C.A.6, 1993), 998 F.2d 1344, 156-1357; United States v. Rivera (C.A.2, 1968), 388 F.2d 545, 548. Defendant did not make any argument relating to the state's failure to establish stealth as an element of the offense, despite having the opportunity to do so. We therefore find defendant waived the right to present this argument on appeal. The first assignment of error is overruled.2 2 Even were we to consider the merit of this assignment of error, we would find it not well-taken. A reasonable trier of fact could have found the evidence showed both defendant and Harris -6- II The second assignment of error complains the jury's verdict is against the manifest weight of the evidence. Defendant assails Harris' written statement, which he claims was the only evidence to contradict his own story, as self-serving, contradictory and less reliable than his own version of the facts. The problem with labeling Harris' statement as self-serving is that defendant's motive to blame Harris is at least as strong as Harris' motive to blame defendant. Any time two co-defendants point a finger at the other for an offense, their statements will be self-serving to some extent. It may be true that the police lieutenant who conducted Harris' investigation thought Harris more deceptive than defendant, but the lieutenant's opinion at the time of taking the statement is not dispositive. The jury heard defendant admit to prior burglaries and receiving stolen property. Defendant also admitted being a parole violator at the time of the offense. Finally, he admitted in his statement that he lied to the arresting officer when he said he and Harris were coming from his mother's house. These admissions clearly weighed heavily against him. The weight to be given evidence and the credibility of witnesses are determinations to be made by the triers of fact. cruised the street looking for open garages with no homeowners present. We believe this fact alone would establish any secret, sly or clandestine act to avoid discovery and to gain entrance into or to remain within a residence of another without permission. See State v. Lowe (1976), 50 Ohio App.2d 41, 47; State v. Ward (1993), 85 Ohio App.3d 537, 540. -7- State v. Thomas (1982), 70 Ohio St.2d 79. The jury heard conflict- ing accounts of the burglary and resolved those conflicts against defendant. In doing so, it obviously believed that defendant and Harris acted with complicity to commit the charged offenses. The second assignment of error is overruled. Judgment affirmed. -8- 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. DYKE, P.J. ROCCO, J., CONCUR. JUDGE JOHN T. PATTON 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 reconsidera-tion 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 .