COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73369 STATE OF OHIO, Plaintiff-appellee JOURNAL ENTRY vs. AND DAVID WALKER, OPINION Defendant-appellant DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 19, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-348054 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor ROBERT T. GLICKMAN Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: TIMOTHY R. STERKEL 1414 S. Green Road, Suite 1500 Cleveland, Ohio 44121 -2- KARPINSKI, J.: Defendant-appellant, David Walker, appeals from a jury verdict finding him guilty of two counts of robbery. The state alleged that defendant stole the purses from two grandmothers. On appeal, defendant argues that his conviction was against the manifest weight of the evidence and was not supported by sufficient evidence. Because neither of these arguments has merit, we affirm the judgment of the trial court. The relevant facts follow. The charges against defendant arose from two separate purse- snatchings. The first incident occurred on Saturday, November 30, 1996. Brenda McCloud, 56 years old, took the bus home from work and was dropped off at East 93rd and Euclid Avenue. McCloud started to walk home and noticed her daughter, Andrea Barnes, was waiting in a car to give her a ride. As McCloud approached the car, she saw her daughter gesturing to her. At this point, McCloud felt a jerk on her shoulder as a man grabbed her purse and started to run away. Barnes left the car and chased after the thief. She did not catch him, but did see his face as he slipped before entering his car and driving away. Barnes was ten to fifteen feet away from the thief when she saw his face. On cross-examination she stated that then he had longer hair and a mustache. From a photo array and also at trial, Barnes identified defendant as the thief. The other purse-snatching occurred on Thursday, December 19, 1996. On that date, Laura Bruce, 81 years old, attempted to catch the 3:24 p.m. bus on East 156th and Lakeshore Blvd. She missed the -3- bus and decided to wait for another scheduled for approximately 4:00 p.m. Because it was only 14 degrees that day, Bruce waited in a nearby gas station to keep warm and buy a snack. She testified that while they were in the store defendant tried to talk to her. When she left the store to wait for the bus, defendant waited outside the bus shelter. As Bruce left the shelter to board the bus, defendant grabbed her purse, ran to a car, and drove away. She was not sure whether defendant had a mustache. Bruce also identified defendant as the thief from a photo array and in court. The state presented two sisters, Waneisha and Sharonda Slaughter, who witnessed the December 19, 1996 theft. Both identified defendant as the person they saw take the purse from Bruce. Significantly, they both knew defendant because he was a friend of their family. However, while Sharonda stated that defendant had a mustache on the day of the theft, Waneisha stated that she was not sure whether he had a mustache. Defendant presented four witnesses. The first witness, Elaine Welsh, a staff attorney for an auto credit firm, testified that defendant's car was repossessed on October 31, 1996. She did not know whether defendant had access to any other cars. The second witness, Yvonne Wilson, owns the grocery store, W&W Foods, that employs defendant's fiance, Theodora Dean. Wilson stated that defendant would pick up Dean after work each day between 4:00 and 4:30 p.m. Theodora Dean also testified for defendant. She stated that November 30th, 1996, was the Saturday after Thanksgiving and that -4- she was with defendant at his mother's house in Oakwood the entire day. On December 19, 1996, she stated, defendant picked her up after work at 4:20 p.m. Defendant's last witness was his mother, Emma Amey. She recalled having the family, including defendant, over to her house for a catfish dinner on the Saturday after Thanksgiving. She remembered defendant arriving around 2:00 p.m. and leaving around 9:00 p.m. She further stated that defendant had a cast on his arm from October, 1996 to January, 1997. On cross-examination, she stated that the actual cast was taken off on November 4, 1996, and that he was given a removable splint until January. The jury returned a guilty verdict on both counts of robbery. Defendant timely appealed, raising two assignments of error, the first of which states as follows: I. THE CONVICTION OF DAVID WALKER WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In this first assignment, defendant argues that his convictions for robbery were against the manifest weight of the evidence. The Supreme Court of Ohio has discussed the standard to apply when reviewing a claim of insufficient evidence. In State v. Thompkins (1997), 78 Ohio St.3d 380, the court stated as follows: 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 -5- 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. In the case at bar, the jury did not lose its way and create a manifest miscarriage of justice. The state presented four witnesses who positively identified defendant as the thief who committed two separate, but similar, purse-snatchings. After defendant took her mother's purse, Andrea Barnes chased defendant and, at a distance of 10 to 15 feet, had a good look at his face. Laura Bruce actually spoke to defendant in the gas station before he took her purse. Finally, two other witnesses to the Bruce snatching, the Slaughter sisters, were sure of his identity because they witnessed defendant take the purse and knew him before as a friend of the family. The defendant tried to prove, however, that at the time of the robberies he was elsewhere (picking up his fiance from work and at his mother's). Defendant's alibi rests -6- solely on the testimony of two persons with a very close relationship to defendant: his fiance and mother. Importantly, the defense could not present concrete proof to corroborate that his fiance was even at work at the time of the December robbery. Yvonne Wilson, who employed defendant's fiance, was asked specifically about, November the 30th, that was the Thursday (Tr. 307). There is a problem with this question, because Nov. 30th was a Saturday; December 19th was a Thursday. There is another problem with the language of the attorney's question and Wilson's answer: Q. And drawing your attention to November the 30th, that was the Thursday, her hours would have been? A. Eight to four. Q. And Mr. Walker would have picked her up then? A. Yes. Q. Do you see him pick her up? A. Yeah. Id. (Emphasis added.) Because the verbs of this discussion (that is, would and do ) convey custom or habit, this language does not describe the events on a specific date. Furthermore, no time cards were produced for the actual dates of the offenses. Additionally, the fact that Sharonda Slaughter and Andrea Barnes described defendant as having a mustache during the theft, while Waneisha Slaughter and Laura Bruce were not sure whether defendant had a mustache, does not require this court to substitute its judgment for that of the jury. As the Supreme Court has stated, [a]lthough there was some evidence of discrepancies on the part of the complainant in her identification of the appellant as her assailant, these questionable areas in -7- complainant'sdescription were particularly for the jury to decide. State v. Jells (1990), 53 Ohio St.3d 22, 27, quoting State v. Moody (1978), 55 Ohio St.2d 64, 69. Moreover, defendant's argument that the state's witnesses all identified him from an old photo that does not look like him is unavailing. Andrea Barnes and Sharonda Slaughter both identified defendant as the thief by reference to the old photo (Exh. 1) and the new photos (Exh. 2, 3, 4). More importantly, all four positively identified defendant as the thief at trial. Because the trier of fact is in a better position to observe the witnesses' demeanor and weigh their credibility, the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. The jury was entitled, therefore, to assess the accuracy of the state's witnesses and scrutinize the credibility of defendant's fiance and mother because of their obvious relationship to defendant. As a result of our review of the record, we conclude the jury herein did not lose its way and create a manifest miscarriage of justice by finding defendant guilty of robbery. Accordingly, the first assignment is overruled. Defendant's second assignment states as follows: II. THE TRIAL COURT ERRORED [SIC] WHEN IT DENIED DEFENDANT'S MOTION FOR RULE 29 ACQUITTAL. In this assignment, defendant argues that the evidence was insufficient to support a guilty verdict on the two counts of robbery. In Thompkins, supra, the Supreme Court of Ohio also -8- discussed the standard to apply when a court reviews a claim of insufficient evidence: [T]he legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different. 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 on the charges of robbery. For each separate crime, the state presented evidence from the victims that their purses were stolen, along with eyewitness testimony corroborating the identification of defendant as the thief. Eyewitness identification testimony is sufficient to support a conviction. State v. Artis (May 17, 1994), Cuyahoga App. No. 93APA11-1547, unreported; State v. Douglass (Sept. 22, 1994), Cuyahoga App. No. 65779, unreported. Thus the state presented sufficient evidence that defendant stole the two purses in question. The second assignment of error is overruled. Judgment affirmed. -9- 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. ANN DYKE, P.J., and TIM 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 .