COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73416 CITY OF PARMA : : Plaintiff-Appellee : : : -vs- : JOURNAL ENTRY : AND ANTHONY J. MIHOCI : OPINION : Defendant-Appellant : : : DATE OF ANNOUNCEMENT : AUGUST 13, 1998 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Parma Municipal Court Case No. 97-TRC-508-(6). JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: David W. Toetz, Esq. Twin Lakes Building 5851 Pearl Road Suite 203 Parma Hts., Ohio 44130 For defendant-appellant: Christopher J. McCauley, Esq. Douglas A. Kutsko, Esq. 5454 State Road Parma, Ohio 44134 MICHAEL J. CORRIGAN, J.: Anthony Mihoci, defendant-appellant, appeals from his convictions in the Parma Municipal Court, Case No. 97-TRC-00508, of -2- the offenses of driving under the influence, resisting arrest, disorderly conduct, reckless operation of a motor vehicle and operating a motor vehicle during prohibited hours without headlights. Defendant-appellant assigns one error for this court's review. Defendant-appellant's appeal is not well taken. On January 12, 1997 at approximately 2:00 A.M., Officer Norman Kekic of the City of Parma Police Department observed a group that had gathered by a garbage dumpster in the parking lot of the Pioneer Lounge located at the intersection of State and Brookpark Roads in Parma, Ohio. Officer Kekic stopped to investigate after allegedly witnessing defendant-appellant kicking the dumpster. Officer Kekic testified that defendant-appellant appeared to be irate, upset, red eyed and intoxicated. Officer Kekic attempted to talk to defendant-appellant in order to determine the nature of the problem. As Officer Kekic spoke with defendant-appellant, other members of the group began to surround the officer. Officer Kekic, feeling somewhat threatened, told them to back off. At this time, Officer David Ferrante, also of the Parma Police Department, arrived on the scene and attempted to assist Officer Kekic in controlling the group by restraining the largest of the bar patrons, David Crackey. A struggle ensued during which defendant-appellant physically placed himself between Mr. Crackey and Officer Ferrante. Officer Kekic pulled defendant-appellant off Officer Ferrante and assisted in the detention of Mr. Crackey. Defendant-appellant and his girlfriend entered their car and drove -3- out of the parking lot squealing the tires as they left. Defendant-appellant allegedly did not have his headlights on as he drove out of the parking lot. Defendant-appellant was apprehended a short distance away and, after a struggle with the police, was placed in custody. Defendant-appellant refused to submit to a breath alcohol analysis once in custody. At trial, defendant-appellant maintained that, on the night in question, he had been sprayed in the face with pepper spray in the Pioneer Lounge. When the police arrived, they mistakenly believed that David Crackey had used the pepper spray against defendant- appellant. Defendant-appellant attempted to inform the officers that Mr. Crackey was not the one who had sprayed the pepper spray at him, to which the police allegedly responded shut the fuck up and get out of here. Not wishing to be arrested, defendant- appellant entered his car and left the parking lot slowly with the headlights on. Sharon Howell and Anna Figueroa, two residents of an apartment building located next to the Pioneer Lounge, testified that both police officers on the scene told defendant-appellant to leave and then decided to pursue him. Both witnesses stated further that they did not see defendant-appellant touch either police officer and Ms. Howell stated that she did not see or hear defendant- appellant squeal his tires as he drove out of the parking lot. At the conclusion of the case, the jury returned verdicts of guilty as to all counts. On October 9, 1997, defendant-appellant -4- filed a timely notice of appeal from his convictions in Parma Municipal Court. On appeal, defendant-appellant's sole assignment of error states: APPELLANT'S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant-appellant maintains, through his sole assignment of error, that his convictions are against the manifest weight of the evidence. Specifically, defendant-appellant maintains that two independent witnesses, Sharon Howell and Anna Figueroa, testified that they did not see defendant-appellant touch either police officer and each allegedly heard the police tell defendant- appellant to leave the scene if he did not want to be arrested. Ms. Howell stated further that she did not see or hear any squealing of tires as defendant-appellant's automobile left the parking lot. It is defendant-appellant's position that the aforementioned testimony clearly contradicts the testimony of the two police officers involved. Defendant-appellant maintains further that he was not intoxicated on the night in question, but rather, was the victim of pepper spray which caused the bloodshot eyes as well as the erratic behavior. State v. Martin (1983), 20 Ohio App.3d 172, has set forth the proper test to be utilized when addressing the issue of manifest weight of the evidence. The Martin Court stated: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here, the test is much broader. The court, reviewing the entire record, weighs the evidence and all the reasonable -5- inferences, considers the credibility of the 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. *** See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. Article IV, Section 3(B)(3) of the Ohio Constitution authorizes appellate courts to assess the weight of the evidence independently of the fact-finder. Thus, when a claim is assigned concerning the manifest weight of the evidence, an appellate court has the authority and the duty to weigh the evidence and determine whether the findings of *** the trier of fact were so against the weight of the evidence as to require a reversal and a remanding of the case for retrial. State ex rel. Squire v. City of Cleveland (1984), 150 Ohio St. 303, 345. The standard employed when reviewing a claim based upon the weight of the evidence is not the same standard used when considering a claim based upon the sufficiency of the evidence. The United States Supreme Court recognized these distinctions in Tibbs v. Florida (1982), 457 U.S. 31, where it determined that unlike a reversal based upon insufficiency of the evidence, an appellate court's disagreement with the jurors' weighing of the evidence does not require special deference accorded verdicts of acquittal, i.e., invocation of the double jeopardy clause as a bar to re-litigation. Id. at 43. Additionally, only a concurring majority of an appellate panel is needed to reverse a judgment based upon the sufficiency of the evidence as opposed to the unanimous concurrence of all three appellate judges necessary for -6- a reversal based upon the manifest weight of the evidence. State v. Thompkins (1997), 78 Ohio St. 3d 380, 386. An appellate court does not and cannot sit as the thirteenth juror when reviewing a claim based upon the weight of the evidence. Rather, we must accord due deference to the credibility determinations made by the trier of fact. See State v. DeHass, supra. At this court has previously stated in State v. Thompson (April 23, 1998), Cuyahoga App. No. 72044, unreported: The fact-finder, being the jury (in the case) or the trial judge (in a waiver), occupies a superior position in determining credibility. The fact-finder can hear and see as well as observe the body language, evaluate voice inflections, observe hand gestures, perceive the interplay between the witnesses and the examiner, and watch the witness's reaction to exhibits and the like. Determining credibility from a sterile transcript is a herculean endeavor. In this case, defendant-appellant essentially argues that his convictions of the offenses of driving under the influence, resisting arrest, reckless operation of a motor vehicle and operating a vehicle during prohibited hours without headlights were against the manifest weight of the evidence since he produced eyewitness testimony that was in conflict with the testimony of the police officers on the scene. Mere conflict is insufficient to warrant a reversal based upon manifest weight of the evidence. State v. Hickman (April 30, 1998), Cuyahoga App. No. 72341, unreported. Clearly, a review of the record in its entirety demonstrates that evidence was presented as to all essential elements of each charged offense. The police officers testified that defendant-appellant did, in fact, appear to be intoxicated, -7- resisted arrest on two occasions, was disorderly and operated his automobile without headlights in a reckless manner. Since the weight to be given the evidence and the credibility of the witnesses are primarily matters for the finder of fact to determine and that it is not the function of the appellate court to substitute its judgment for that of the fact-finder, State v. Grant (1993), 67 Ohio St.3d 415; State v. D'Ambrosio (1993), 67 Ohio St.3d 185, this court cannot now say that the underlying jury verdict in this case is against the manifest weight of the evidence. The jury did not lose its way and create a manifest miscarriage of justice by finding defendant-appellant guilty of the charged offenses. Defendant-appellant's sole assignment of error is not well taken. Judgment of the trial court is affirmed. -8- It is ordered that appellee recover of appellant 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 Parma Municipal 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. ANN DYKE, PRESIDING JUDGE, AND LEO M. SPELLACY, J., CONCUR JUDGE MICHAEL J. CORRIGAN 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 .