COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72719 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION TERRANCE APPLING : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : MAY 21, 1998 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-344,305 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor DAVID ZIMMERMAN, Assistant MARTINA KULICK, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: STEPHEN L. MILES Attorney at Law 20800 Center Ridge Road, #217 Rocky River, Ohio 44116 KENNETH A. ROCCO, J.: Appellant appeals the jury's verdicts convicting him of murder, attempted murder and having a weapon while under disabil- -2- ity. Since there was no plain error, appellant's rights to due process were not violated, appellant was not deprived of effective assistance of counsel and the verdict was not against the manifest weight of the evidence, we affirm. I. On September 29, 1996, Joseph Garth was shot and killed after a fight occurred following a football game. Appellant Terrance Appling was also shot and wounded. Appellant was subsequently arrested in connection with the homicide of Mr. Garth. Appellant was indicted on October 29, 1996 by the Cuyahoga County Grand Jury and charged with three counts: Count One, Murder in violation of R.C. 2903.02, with a firearm specification, Count Two, Attempted Murder in violation of R.C. 2923.02 and 2923.03, with a firearm specification, and Count Three, Having a Weapon While Under Disability in violation of R.C. 2923.13, with a firearm specification. Trial to a jury commenced on April 1, 1997. II. The state first presented Dr. Stanley Fred Seligman of the Cuyahoga County Coroner's Office. Dr. Seligman testified that he performed an autopsy on the victim. He examined the fatal gunshot wound and determined that, due to the absence of either black soot or gun powder on the body, the gun had been fired from a distance greater than two and a half to three feet from the victim's head. -3- He opined that the bullet traveled forward from the back of the head downward and from right to left. Dr. Seligman also testified that the victim had other injuries that indicated he had been involved in a fight close in time to when he was shot. Tests also revealed that the victim was under the influence of a high level of marijuana at the time of his death. Next to testify was Solomon Dorsey. Mr. Dorsey testified that on September 29, 1996, he was involved in a football game behind the Daniel E. Morgan Elementary School. The game was played by two teams consisting of former members of two gangs, the Road Dogs and East 79th. Mr. Dorsey had previously been a member of East 79th. The victim, his cousin, had also been a member. After the game, the victim was involved in a fight with a man known as either Maleek or Tabby. Mr. Dorsey witnessed the victim pick up and slam to the ground the man with whom he had been fighting. The victim then turned around, and Mr. Dorsey witnessed appellant approach the victim from behind and shoot him. After the shooting, Mr. Dorsey ran from the scene. He returned after a short time and observed the victim lying on the ground between two cars. He also saw appellant get into a car. Mr. Dorsey identified appellant as a man he knew as Ice. Mr. Dorsey said appellant was approximately one foot behind the victim when he shot him using a silver 380 automatic. Mr. Dorsey identified state's exhibit 4 as the gun he saw appellant use and also identified appellant as the man whom he saw shoot the -4- victim. Following the incident, Mr. Dorsey gave a written state- ment of his account to the police. Mr. Dorsey had two prior convictions involving drugs and one attempted receiving stolen property of a motor vehicle. Herbert Robert Minor also testified. He, too, had been watching the football game that day. He knew the victim as Debo and testified that he saw him involved in a fight with some dude. He observed the victim slam the other man to the ground. According to Mr. Minor, a man he knew as Jermaine was pushing members of the crowd, including appellant, away from the scene, trying to prevent them from getting involved in the fight. He testified that Jermaine and appellant then got into a fight and appellant pull[ed] out a gun, from like his waist somewhere. Mr. Minor testified that appellant then shot the victim in the back of the head. Appellant was approximately five or six feet away from the victim. After the shooting, Mr. Minor saw appellant run from the scene and throw something. He followed in the direction where he had seen appellant run and found a silver gun with a rusty tip and a clear handle. He seized the gun using a T-shirt and took the gun home, where he put it into a brown bag and hid it in his basement. He later told his grandmother about the gun, and she called the police. Two police officers came to his house to retrieve the gun. A few days after the incident, a detective brought four or five photographs to Minor's home. Mr. Minor identified appellant from the photographs as the man whom he had seen shoot the victim. -5- At trial, the witness identified appellant as the man whom he had selected from the photographs. He also identified state's exhibit 4 as the gun that the police had retrieved from his home, although he admitted that he could not be sure whether it was the gun used by appellant. Ptl. Frank Juliano, a patrol officer in the Fifth District, testified that he went to Mr. Minor's home on September 30, 1996 to retrieve the gun. He identified state's exhibit 4 as the gun he retrieved. Juvis Montgomery testified that on September 29, 1996, he had been watching the football game with the victim. He witnessed appellant shoot the victim. He believed that appellant was approximately five or six feet away from the victim when he shot him. Mr. Montgomery testified that he was next to the victim at the time of the shooting, and he received a gun shot wound to his leg. He claimed that neither he nor the victim did anything to appellant. After he and the victim were shot, the witness saw appellant begin to run and then fall but did not know what caused him to fall because [i]t was shooting going on at the time (sic). Mr. Montgomery reported that he had previously spoken to a detective and had identified a photograph of appellant from an array of five photographs presented to him. At trial, he identi- fied state's exhibit 4 as the gun used by appellant in the shooting. Mr. Montgomery had been previously convicted of burglary and drug trafficking and, at the time of appellant's trial, was in -6- jail on two pending cases, one for conveying drugs into an institution and one for domestic violence. Det. Edward Prinz, of the Scientific Investigation Unit of the Cleveland Police Department, also testified for the state. He had processed state's exhibit 4 for fingerprints but had found no fingerprints of value on the weapon. Det. Daniel Rowley testified that he is assigned to the forensics lab of the Cleveland Police Department. He identified state's exhibit 4 as the weapon he tested. He compared two spent shell casings that had been found at the scene and determined that they had been fired from state's exhibit 4. He also examined the bullet recovered from the victim and concluded that state's exhibit 4 was the weapon used in the homicide. Det. Robert Matuszny testified that he works for the homicide unit and responded to the scene. At the scene, he observed two shell casings, a magazine and a black skull cap believed to be the victim's. He identified state's exhibit 4 as the weapon that police officers had retrieved from Herbert Minor. Once the gun had been transported to his office, he carried the gun to Det. Prinz and then to Det. Rowley. Det. Matuszny testified that following the incident, he met with Mr. Montgomery in the emergency room at Mt. Sinai Hospital and took an oral statement from him. Mr. Montgomery identified appellant, Terry, a/k/a, Ice, as the suspect in the shooting; however, since appellant was in surgery and in critical condition, the detectives were unable to bag appellant's hands to preserve -7- them for later testing for gunshot residue. They were able to bag the victim's hands, and subsequent tests revealed no gunshot residue. Det. Matuszny testified that he met with appellant in the hospital on October 2, 1996, and took an oral statement from him. Appellant told him that after the football game between Wade Park boys and the boys from East 79th Street, he observed two men whom he knew as Tie and Devo involved in a fight. Appellant identified a photograph of the victim as the man he knew as Devo. Appellant told the detective that he had been shot while watching the fight and was then beaten by some guys from 79th Street. He identified one of the males who beat him as Mr. Dorsey. Appellant denied shooting the victim and stated that he did not see who shot either himself or the victim. He claimed that he never carries a gun. Appellant reported that he had heard the shooter might be Jermaine Fattis. Appellant told the detective that he knew of witnesses to the shootings, although at the time of trial, he had not yet identified any witnesses. Det. Matuszny was unable to locate anyone by the name of either Jermaine or Jerome Fattis. Bridget Hunt was first to testify for appellant. Her niece, Erica Hunt, was a good friend of appellant's, and she had gone to watch the football game with Erica and another friend, Odessa Burton. While she was at the field, she saw appellant shooting dice. She testified that he had a cellular phone in his right hand. She saw no gun either in his hand or on his person. -8- Bridget testified that when the shooting started, she ran from the scene but returned to see if appellant was okay. She noticed appellant had been shot and saw him fall. As he fell, the witness observed several people putting their feet on him and hitting him with sticks and stuff. Ms. Hunt stated that she was reluctant to testify because she feared for her life. Next to testify was Erica Hunt. She had observed appellant riding a bicycle during the football game and saw a cellular phone in his hand. She had seen appellant in a crowd of people, shooting dice. She was getting ready to leave when she heard a whole bunch of gunshots. She saw appellant fall and everybody just started beating him up. She did not see appellant with a gun on the day of the incident. Odessa Burton also testified. She was at the football game with Bridget and Erica Hunt. She also did not see appellant with a gun. Phil Williams was also present at the game on the day of the incident. He testified that he saw appellant with a cellular phone in one hand and a pager in the other hand. He witnessed appellant strike a boy named Studio in the head with his cellular phone because Studio was trying to participate in the fight. After the witness saw appellant strike Studio, a whole bunch of gunshots started firing off. Phil Williams testified that he was eventually able to get into his car and that he then saw that appellant had been injured. He helped to put appellant into Jerome's car, and Jerome drove -9- appellant to the hospital. The witness did not know Jerome's last name. Mr. Williams' brother, A.G., also testified. He, too, was at the football game that day. After the gunfire, he got into his car to leave. He looked into his rearview mirror and saw appellant lying on the ground. He saw that appellant had been shot and observed several males, including Juvis Montgomery and Sidney Garth, stomping him. He also testified that he had seen appellant with only dice in his hands and that he did not see appellant with a gun. The defense's final witness was appellant. Appellant testified that on September 29, 1996, he went to the school to gamble. He drove to the field and, once he was there, used somebody's bicycle to get around. He testified that one of the football players broke his leg, and he used his cellular phone to call an ambulance. According to appellant, while he was playing dice, a fight occurred between the victim and a male known as Tabby. A man by the name of Jermaine Fattis pulled out a gun to back everybody up away from the fight. Appellant stated that he then backed up and got pushed and was shot. He remembers Sidney Garth and Juvis Montgomery kicking him and has no further memories of the incident. The jury returned a verdict finding appellant guilty of all counts as charged in the indictment. Appellant was subsequently -10- sentenced to the Lorain Correctional Institution. Appellant timely filed a Notice of Appeal of his convictions.1 III. Appellant's first and second assignments of error address the same issue and, therefore, will be considered together. Appel- lant's first two assignments of error state: I. THE APPELLANT WAS DENIED A FAIR TRIAL BY THE ADMISSION OF IRRELEVANT TESTIMONY CONCERNING GANG MEMBERSHIP AND ASSOCIA- TION, WHICH THEREBY PORTRAYED APPELLANT AS A (SIC) EVIL PERSON WHO ACTED IN CON- FORMITY WITH HIS NATURE. II. THE APPELLANT WAS DENIED A FAIR TRIAL BY THE ADMISSION OF IRRELEVANT TESTIMONY CONCERNING GANG MEMBERSHIP IN VIOLATION OF EVIDENCE RULE 404. Appellant's trial counsel failed to object to the testimony regarding gang membership; therefore, appellant argues that the admission of testimony regarding gang membership constitutes plain error. Generally, this court will not consider any alleged error that was not brought to the attention of the trial court at the time the alleged error is said to have occurred. State v. Slagle (1992), 65 Ohio St.3d 597, 604. An appellate court may consider a trial error that was not objected to only when it is plain error. Id. Crim.R. 52(B) states: Plain error. Plain errors or defects affect- ing substantial rights may be noticed although 1 The trial court appointed a different attorney for purposes of an appeal. -11- they were not brought to the attention of the court. The reviewing court must determine whether the alleged error affected the outcome of the trial in the lower court. Slagle, supra at 604-605. The court should examine the asserted error in light of all the evidence properly admitted at trial to determine whether the jury would have convicted the defendant if the alleged error had not occurred. Id. at 605. Plain error does not exist unless it can be said that but for the error, the outcome of the trial would clearly have been otherwise. See e.g., State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph two of the syllabus; State v. Greer (1988), 39 Ohio St.3d 236, 252, 530 N.E.2d 382, 401. State v. Nicholas (1993), 66 Ohio St.3d 431, 436, quoting State v. Moreland(1990), 50 Ohio St.3d 58, 62. It is appellant's position that the state's questioning of Mr. Dorsey and Mr. Montgomery regarding their associations with gangs, the references to appellant's alleged street name of Ice, and the inferences that the football game was played by two gangs should not have been admissible. He argues that the issue of gang membership was not relevant to the decisive question in this matter: whether or not appellant shot Mr. Garth. Evid.R. 404 provides, in pertinent part: (A) Characterevidence generally. Evidence of a person's character or a trait of his charac- ter is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, subject to the following exceptions: (1) Character of accused. Evidence of a pertinent trait of his character offered -12- by an accused, or by the prosecution to rebut the same is admissible; * * * (B)Other crimes, wrongs or acts. Evidence of the other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowl- edge, identity, or absence of mistake or accident. Evid. R. 402 provides that: All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by the Constitution of the State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme Court of Ohio. Evidence which is not relevant is not admissible. This court's review of the transcript in the matter sub judice does not support appellant's contention that his rights were adversely affected by the gang references. The testimony indicated only that appellant was at the school shooting dice, not involved with gang activity or with the football game. Moreover, the state did not ask appellant or the other witnesses whether appellant himself was a member of a gang. See State v. Fleming (Sep. 5, 1996), Cuyahoga App. No. 68664, unreported, 1996 WL 502156 (after noting that state's delving into gang activity was minimally relevant to case, court stated: In light of the lack of evidence of appellant's gang membership, and the testimony thereto, this court does not find that the jury could have been confused or -13- misled by the state's questioning, nor that appellant was unfairly prejudiced by it. Evid.R. 403. ). Appellant's counsel failed to object to the admission of gang- related testimony at trial. Additionally, appellant has failed to demonstrate the existence of plain error because there is no indication that the admission of the testimony relating to gang membership adversely affected appellant's right to a fair trial. For these reasons, appellant's first two assignments of error are overruled. Appellant next contends: III. THE APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE PROSECUTOR IMPLICATED (SIC) THAT THE APPELLANT HAD THE BURDEN OF PROOF TO PROVE HIS INNOCENCE. Appellant claims he was denied due process of law because the prosecutor's comments at trial implied that appellant had the burden of proof. R.C. 2901.05(A) provides: Every person accused of an offense is presumed innocent until proven guilty beyond a reason- able doubt, and the burden of proof for all elements of the offense is upon the prosecu- tion. *** Appellant argues that the following exchange between the state and Det. Matuszny implied that it was appellant's burden to prove his innocence, in contravention of R.C. 2901.05(A): Q: In talking with the defendant, did you ask him whether he had any witnesses or knew of any witnesses to the shooting of himself and the victim in this case, Joey Garth? A: He told us he did. -14- Q: Did he give you any names at that time? A: No. Q: What did you do? A: Gave him our card, my partner's and my name on it, and as we were leaving, we talked with his relatives that were in the hall, we also gave them a card. Q: What did you tell them in reference to any of the witnesses that they knew of that observed the shooting of the defen- dant or the victim, Joey Garth? A: That they had to get their names, phone numbers, whatever, contact us with them. Q: If they had contacted you with any names and phone numbers what would you have done? A: We would have talked to them. Mr. Tolliver [appellant's attorney]: Objection. The Court: I'm sorry. Mr. Tolliver: Objection. The Court: I'll sustain that. Q: Did you receive any telephone calls from the defendant in reference to the names of any witnesses? A: Never. Mr. Tolliver: Objection. The Court: Overruled. * * * Upon review of the above dialogue and the entire transcript, this court found no indication that the state implied that appellant was responsible for proving his own innocence. Appellant -15- had told the detective that he knew of the existence of witnesses to the incident, and the detective logically requested their names for purposes of his investigation. Rather than insinuating that appellant had the burden to prove his innocence, the detective reported only that appellant had claimed he had witnesses to support his version of the events but had never given any of these names to the police. Moreover, if any error exists in this regard, it is harmless error. The state, in its closing argument, informed the jury that [t]he burden is upon the State of Ohio to prove this man guilty beyond a reasonable doubt. Additionally, the trial judge, in his instructions to the jury stated: If you find the State failed to prove beyond a reasonable doubt any one of the essential elements of any one or more of the offenses charged in the separate counts of the indict- ment, then your verdict must be not guilty as to that offense or those offenses according to your findings. There is no evidence to support appellant's contention that the state implied that appellant had the burden to prove his innocence; therefore, appellant's third assignment of error is overruled. Appellant's fourth assignment of error contends: IV. THE APPELLANT'S CONSTITUTIONAL RIGHT TO REMAIN SILENT WAS VIOLATED BY THE STATE WHEN DETECTIVE MATUSZNY COMMENTED ON THE APPELLANT'S POST-ARREST SILENCE. Appellant maintains that Det. Matuszny's testimony violated his right to remain silent. -16- Where the accused asserts his constitutional right to remain silent, his silence may not be used against him. Doyle v. Ohio (1976), 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91. The admission of testimony by a police officer regarding an accused's post-arrest silence constitutes reversible error when it is not clear beyond a reasonable doubt that absent this statement of the officer no juror could have entertained a reasonable doubt as to defendant's guilt. State v. Motley (1985), 21 Ohio App.3d 240, 242, 21 OBR 256, 258-259, 486 N.E.2d 1259, 1262. State v. Rowe (1993), 92 Ohio App.3d 652, 670. Following the exchange quoted in this court's analysis of appellant's third assignment of error between Det. Matuszny and the state, the state continued to question the detective as follows: Q: Did you receive any telephone calls from anybody identifying themselves as a wit- ness? A: No. Q: As of this date, has the defendant, any of his family or any witnesses or Mr. Tolliver contacted you with the name of any witnesses as to the shooting of the defendant? Mr. Tolliver: Objection The Court: Overruled. A: No. This court does not interpret this dialogue as improper. The detective did not tell the jury that appellant refused to speak to the police after his arrest. He merely responded that after appellant hadspoken to him and told him that he knew of witnesses to the incident, neither appellant nor his family had followed up and provided the names of any witnesses. -17- Furthermore, our examination of the record indicates that even absent the statements that appellant believes were improper, the evidence still supports appellant's convictions without a reason- able doubt. See e.g., Rowe, supra. Therefore, appellant's fourth assignment of error is overruled. Appellant's fifth assignment of error maintains: V. THE APPELLANT WAS DENIED DUE PROCESS OF LAW BECAUSE HE WAS NOT GIVEN EFFECTIVE ASSIS- TANCE OF COUNSEL. Appellant next contends that his trial counsel was ineffective. The Ohio Supreme Court devised a two-step process which should be employed when a court considers an allegation of ineffective assistance of counsel. State v. Nicholas, supra, citing State v. Bradley (1989), 42 Ohio St.3d 136, 141-142. 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 sepa- rate from the question of whether the defen- dant's Sixth Amendment rights were violated, there must be a determination as to whether the defense was prejudiced by counsel's inef- fectiveness. 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 [98 S.Ct. 3135, 57 L.Ed.2d 1154}. Id.The above standard is essentially the same as the test devised by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668. A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors -18- so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that coun- sel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that ren- ders the result unreliable. Id. at 687. Appellant argues that he was denied effective assistance of counsel because his counsel failed to object to the prosecutor's introduction of testimony regarding street gangs and because appellant's counsel failed to cross-examine witness Herbert Minor and ask him where he specifically found the gun alleged to have been used by appellant to shoot Mr. Garth. First, it is not apparent that appellant's trial counsel's representation constituted a substantial violation of any of the essential duties of a defense attorney. See e.g., Nicholas, supra. The record indicates counsel effectively cross-examined all of the state's witnesses and provided witnesses to support the defense's version of the events. Second, and more importantly, there is no evidence to indicate that appellant's trial counsel's actions prejudiced appellant so as to deprive him of a fair trial. The testimony regarding gangs was not used to implicate appellant by association. The state established that one of its witnesses, Mr. Dorsey, was a member of the gang and that the football game was between two competing gangs. There was no testimony directly linking appellant to a gang. Thus, appellant's -19- counsel's failure to object to such testimony did not prejudice appellant. Furthermore, Mr. Minor testified that he saw appellant run from the scene and throw something. Mr. Minor proceeded to the area where he saw the object thrown and found the gun that was admitted as state's exhibit 4. Further testimony specifying the exact location of the gun would not have aided the defense. Moreover, there is sufficient evidence in the record to convict appellant even if the testimony referring to gangs had been excluded and Mr. Minor had been cross-examined regarding the position of the gun. Therefore, appellant's fifth assignment of error is overruled. Finally, appellant contends: THE VERDICTS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant's final assignment of error argues that the jury's verdicts were against the manifest weight of the evidence. An appellate court has the power to determine that a conviction was against the manifest weight of the evidence. State v. Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148. The court must review the entire record, weigh the evidence and all reasonable inferences, and consider witness credibility. State v. Davis (1988), 49 Ohio App.3d 109, 550 N.E.2d 966; State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 218, 485 N.E.2d 717, 720. State v. Assad (1992), 83 Ohio App.3d 114, 117. Although a reviewing court must consider the credibility of witnesses, assessments of credibility are primarily for the triers of fact. State v. Riffle (1994), 110 Ohio App.3d 554, 559, citing State v. -20- Loza (1994), 71 Ohio St.3d 61, 69. See, also, State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. In determining whether the decision of a trial court is against the manifest weight of the evidence, the following factors are guidelines to be taken into account by the reviewing court: 1. The reviewing court is not required to accept as true the incredible; 2. whether the evidence is uncontradicted; 3. whether a witness was impeached; 4. what was not proved; 5. the certainty of the evidence; 6. the reliability of the evidence; 7. whether a witness' testimony is self- serving; 8. whether the evidence is vague, uncertain, conflicting or fragmentary. State v. Mattison (1985), 23 Ohio App.3d 10, at the syllabus. The court must then determine whether the jury *** clearly lost its way and created such a miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. State v. Martin (1983), 20 Ohio App.3d 172, 175 (citations omit- ted.) Although appellant contends that this court is to apply the same test when reviewing the weight of the evidence as when reviewing the sufficiency of the evidence, he is incorrect. The -21- sufficiency of the evidence is a test of adequacy. State v. Thompkins (1997), 78 Ohio St.3d 380, 386. In contrast, *** [w]eight of the evidence concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief. (Emphasis added.) Black's [Law Dictionary (6 Ed.1990) 1433] at 1594. When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appel- late court sits as a thirteenth juror and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs [v. Florida (1982)], 457 U.S. [31], at 42, 102 S.Ct. [2211] at 2218, 72 L.E.2d [652] at 661. See, also, State v. Martin [supra at 175] ***. State v. Thompkins, supra at 387. This court's review of the entire record in the matter sub judiceindicates the verdicts were not against the manifest weight of the evidence. The record contained ample evidence on which the jurors could have based their verdicts. There is no indication that the jury clearly lost its way or created a miscarriage of justice. See Martin, supra. This court sees no reason why it should disagree with the jury's determination; therefore, appellant's sixth assignment of error is overruled. Appellant's appeal is overruled. -22- 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 Cuyahoga County 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. ANN DYKE, P.J. and JAMES M. PORTER, J. CONCUR JUDGE KENNETH A. ROCCO 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 .