COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72785 IN THE MATTER OF: ROGER L. COLE, JR., JOURNAL ENTRY AND OPINION DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 19, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Juvenile Court Division of the Common Pleas Court, No. 9605792 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For appellee, State of Ohio: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor MARIE ADRINE Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For appellant, Roger L. Cole, GORDON S. FRIEDMAN Jr.: JILLIAN S. DAVIS 1700 Standard Building 1370 Ontario Street Cleveland, Ohio 44113 -2- KARPINSKI, J.: Appellant, Roger L. Cole, Jr., appeals from the judgment of the trial court which adjudged him delinquent pursuant to a complaint of robbery. On appeal, appellant argues that the judgment of the trial court is based on insufficient evidence and is against the manifest weight of the evidence. For the reasons that follow, we find no merit to these arguments and affirm the judgment of the trial court. The State of Ohio filed a delinquency complaint against appellant alleging that he used force when he stole a purse containing $50.00 from the victim, Katie Heil. The state alleged that this act constituted the offense of robbery. The facts of this case are limited because the record is incomplete. The tape recorded testimony of the victim was lost in juvenile court. The only witness whose testimony is preserved in the record is that of Officer Mark Merims. In an effort to supplement the record, Appellant filed an App.R. 9(C) statement of the facts, which states as follows: During the course of the Juvenile Court proceeding regarding Roger Cole and others, the first witness called by the State of Ohio was the alleged victim, Katie Heil, age 17. Katie had left work at Michael's Card Shop at Cedar Center in the City of South Euclid at approximately 5:00 p.m. She was in the north part of the parking lot at Cedar Center waiting for her sister to pick her up. Three young African Americans [sic] males were sitting behind milk cartons behind where she stood. They started walking behind her. One of them, she testified to, punched her in the head and grabbed her purse and then they ran and jumped over the wall. There were other people in the parking lot, but no other witnesses came forward. Katie Heil claimed positively that the person that hit her was Roger Cole. She described him as -3- wearing a red jersey and that he had shorts on. She claims to have been punched in the face, but she was never taken to the hospital. Sometime later, three young men were arrested nearby the scene of the robbery. They were talking to two young women. They were charged with robbing Ms. Heil. Katie Heil identified Roger Cole and the other two boys as the perpetrator, though she claims not to be certain of the identity of the other two boys. The second witness called by the State of Ohio was Mark Merins, a South Euclid Police Officer. He indicated that he arrested the three black males, one of whom was Roger Cole. In his description of Roger Cole, however, he indicated that Roger Cole was not wearing shorts when arrested. The testimony of the description given by Katie Heil, therefore, is in conflict to the description given by Officer Merins upon his arrest of the Juvenile, Roger Cole. Counsel argued that because Katie Heil could barely identify two of the young men that allegedly participated in the robbery who were arrested with Mr. Cole, and identified Roger Cole incorrectly, or at least in conflict with the testimony of the arresting officer, that the State of Ohio had failed to prove the delinquency of Roger Cole on March 31, 1996 beyond a reasonable doubt. The two other juveniles were found not to be delinquent by the trial court and released. Roger Cole was found to be responsible and held to be delinquent. The trial court adjudged appellant delinquent. On appeal, appellant raises two assignments of error. The first states as follows: I. THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT A VERDICT OF GUILTY FOR THE OFFENSES CHARGED. In this assignment, defendant argues that the evidence was insufficient to support a finding of delinquency based on robbery. The Ohio Supreme Court has discussed the standard to apply when reviewing a claim of insufficient evidence. In State v. Thompkins (1991), 78 Ohio St.3d 380, 386, the court stated as follows: [T]he legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different. -4- With respect to sufficiency of the evidence, `sufficiency' is a term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law. Black's Law Dictionary (6 Ed.1990) 1433. See, also, Crim.R. 29(A) (motion for judgment of acquittal can be granted by the trial court if the evidence is insufficient to sustain a conviction). In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148. In addition, a conviction based on legally insufficient evidence constitutes a denial of due process. Tibbs v. Florida (1982), 457 U.S. 31, 45, 102 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663 citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Id. at 386-387. In the case at bar, the state presented sufficient evidence that appellant's acts would have constituted robbery if he were an adult. From reviewing the 9(C) statement, we note the state presented the testimony of the victim, Katie Heil, who testified that appellant punched her in the head and took her purse. Under this assignment, appellant argues that the evidence was insufficient because (1) the victim's observation of appellant was made quickly under stressful circumstances and (2)(a) defendant was not fleeing the scene when he was arrested, and (b) the money and purse were never recovered. This argument fails. The victim's testimony satisified the statutory elements of the crime of robbery. As a matter of law, a victim's testimony is sufficient to overcome a Crim.R. 29 motion. State v. Scott (1986), 26 Ohio St.3d 92; State v. Love (1988), 49 Ohio App.3d 88; State v. Gingell (1982), 7 Ohio App.3d 764. The arguments raised by appellant are more appropriately directed to the weight of the evidence, which is -5- the issue in the second assignment. Accordingly, the finding of the trial court is supported by sufficient evidence. Appellant's second assignment of error states as follows: II. THE APPELLANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The Thompkins Court, in addition to elaborating on the sufficiency standard, also discussed a challenge to the weight of the evidence. Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence. Robinson, supra, 162 Ohio St. at 487, 55 O.O. at 388-389, 124 N.E.2d at 149. Weight 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, supra, 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 appellate court sits as a `thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S. at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 ( The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of 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. 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. ). Thompkins, supra at 387. -6- In the case at bar, the judge, sitting as trier of fact, did not lose his way and create a manifest miscarriage of justice. The victim spoke to police almost immediately after she was robbed. Within thirty minutes of the incident, while her recollection of the events was fresh, she then positively identified appellant as her attacker. She also identified appellant in the courtroom. It is true that, although the victim reported the robber was wearing shorts and a red jersey, defendant was not in shorts when he was arrested. However, he was wearing a red shirt; thus there is a conflict on some, but not all, the apparel. This difference in detail is not sufficient to set aside the victim's identification of the defendant. Moreover, the victim reported that the robber was in the company of two other young males when he was robbed; defendant was in the company of two other male juveniles when he was arrested. Other details, for example, that the purse was never recovered and that appellant was not running from the scene, are insufficient for us to conclude the trial judge lost his way. Unlike the trial court, this court is unable to observe the demeanor of the victim and assess her credibility. Moreover, without a transcript, we are unable even to read her testimony under direct and cross-examination. Given the fact that it is undisputed that the victim identified appellant as her assailant, we cannot reverse the judgment of the trial court. Appellant's second 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 Juvenile Court Division of the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA, P.J., and TIMOTHY E. McMONAGLE, J., CONCUR. DIANE KARPINSKI 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 .