COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73730 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION LARRY GUNN : : Defendant-Appellant : : DATE OF ANNOUNCEMENT NOVEMBER 12, 1998 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-350302 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor FRANCINE GOLDBERG Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JOHN D. PATTA 13317 Madison Avenue Lakewood, Ohio 44107 -2- TERRENCE O'DONNELL, PRESIDING JUDGE: Larry Gunn appeals from common pleas court jury verdicts finding him guilty of kidnaping, aggravated robbery, and felonious assault of Tung Vang, a nineteen-year-old Vietnamese immigrant whom he forced at gunpoint to drive him to W. 50th St. and Bridge Avenue, where Gunn cut Vang with a broken beer bottle and drove off in his Toyota Corolla motor vehicle. Gunn alleges his convictions are not supported by sufficient evidence and are against the manifest weight of the evidence. After a thorough review of the record and the arguments presented, we have concluded that these contentions are not well taken, and therefore, we affirm his convictions. The record reflects that around 11:30 P.M. on March 30, 1997, Gunn approached Vang in the parking lot behind Vang's apartment located at 8811 Detroit Avenue in Cleveland, Ohio, held a handgun to the right side of his stomach, and ordered him to drive Gunn in Vang's Toyota Corolla to West 50th Street and Bridge Avenue. When they arrived there, Gunn ordered Vang out of the car, hit him on the head with a bottle of beer, and then cut him on the face and hands with the broken bottle top. As Vang struggled with Gunn, the keys to his car fell out of his pocket, but he succeeded in getting away and ran toward West 65th Street. Gunn then took Vang's car, Vang saw him drive toward Bridge Avenue, and when he reached the corner of West 65th Street and Franklin Avenue, he called 911 from a payphone. Around midnight, Cleveland Police Officers Michael Kovach and -3- Pat Andrews observed Gunn driving the Toyota eastbound on Lorain and saw it make an abrupt left turn north onto West 44th Street, a one-way southbound street. They activated their siren and lights and pursued the vehicle. They then saw Gunn jump from the car at 4213 Bridge Avenue and heard him yell that he would not let the officers catch him as he ran toward Fulton Court. Both officers pursued Gunn on foot and, with a hand-held radio, called for assistance. Officer Larry Landrau, who responded to the call, saw Gunn running toward St. Patrick's Church on Bridge Avenue, and apprehended him as he tried to climb over a fence. Thereafter, Officers Kovach and Andrews arrested Gunn on the traffic violation, received a radio report regarding theft of Vang's automobile, and when they realized that the vehicle Gunn had been operating matched the description of Vang's Toyota, they transported Gunn to Franklin Avenue and West 65th Street, where Vang identified him as the man who had kidnaped and assaulted him and had taken his automobile. The grand jury returned indictments against Gunn for kidnaping, aggravated robbery, and felonious assault. The court tried the case before a jury which found him guilty of these offenses. Gunn now appeals from his convictions and raises one assignment of error for our consideration, which states: THE TRIAL COURT ERRED IN UPHOLDING THE VERDICT OF GUILT AS THE VERDICT WAS UNSUPPORTED BY AND AGAINST THE WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW. Gunn contends his convictions are not supported by sufficient -4- evidence and are against the manifest weight of the evidence, arguing that Vang failed to identify him as the offender, and that he presented an alibi proving he did not commit the offenses. He claims that Vang at trial described the offender as wearing red- striped pants, but that Gunn wore black pants that night; that Vang claimed Gunn hit him on the back of his head, but that Vang actually had a bump on the left side of his head; that Vang claimed Gunn cut him with a broken bottle, but that the police never found the bottle; that Vang, who is 5 ft. 4 in. tall, described the offender as being a little taller than himself, but that Gunn is 5 ft. 11 in. tall; that Vang told the 911 operator that two black men committed the offenses rather than one; and that Vang testified he was pretty sure that Gunn committed the offenses, but did not identify him beyond a reasonable doubt. The state contends that the testimony of its witnesses proved beyond a reasonable doubt that Gunn committed the offenses, and that the jury did not find Gunn's alibi credible. The issue then presented for our consideration concerns whether Gunn's convictions for kidnaping, aggravated robbery, and felonious assault are supported by sufficient evidence and are not against the manifest weight of the evidence. In State v. Martin (1983), 20 Ohio App.3d 172, the court noted at 175: As to the claim of insufficient evidence, the test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. The claim of -5- insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. Jackson v. Virginia (1979), 443 U.S. 307, 319 * * *. Thus, the sufficiency test raises a question of law for the court to decide regarding whether the state has put forth evidence required to prove each of the essential elements of the offense beyond a reasonable doubt, prior to the time the jury may consider the case. In applying this test, the court should consider the evidence and all reasonable inferences drawn therefrom in a light most favorable to the state. In conducting this review, we note the court may not weigh the evidence to resolve the sufficiency question. Here, the state assumed the burden of proving the essential elements of the crimes of kidnaping, aggravated robbery, and felonious assault. R.C. 2905.01 provides the elements of kidnaping and states in relevant part: (A) No person, by force, threat, or deception * * * shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes: * * * (2) To facilitate the commission of any felony or flight thereafter; * * *. R.C. 2911.01 defines aggravated robbery in relevant part as follows: (A) No person, in attempting or committing a theft offense * * * or in fleeing immediately after the attempt or offense, shall do any of the following: -6- * * * (3) Inflict, or attempt to inflict, serious physical harm on another. R.C. 2903.11 provides the elements of felonious assault and states in pertinent part: (A) No person shall knowingly: * * * (2) Cause or attempt to cause physical harm to another * * * by means of a deadly weapon or dangerous ordnance * * *. Here, the record reveals Vang testified that Gunn forced him at gunpoint to drive Gunn to W. 50th St. and Bridge Avenue, that Gunn then hit him on the back of the head with a bottle of beer, that Gunn then cut his face and hands with the broken bottle, and then he drove away in Vang's Toyota. Officer Kovach testified that immediately following Gunn's arrest, he and Officer Andrews took him to W. 65th St. and Franklin Avenue, and there Vang identified Gunn as the offender. Also, at trial, Vang admitted that he identified Gunn immediately following his arrest, and at trial he identified Gunn unequivocally as the offender three times. However, on redirect examination, the following colloquy occurred: Q. Mr. Vang, without talking or identifying pants, who is the male that robbed you at gunpoint on March 31st of 1997? A. The one sitting to the Q. Why don't we point to him for the ladies and gentleman. A. The one sitting next to the attorney just talking to me (indicating). Q. Is there any doubt in your mind that he -7- was the male that robbed you at gunpoint of your Toyota Corolla? A. What do you mean, doubt? Q. Any doubt in your mind? Do you have any question? A. No. Q. Are you sure that it is this defendant? A. Yes, I'm pretty sure about it. Q. And I'm just curious, Mr. Vang. Was there anyone else that approached you in the parking lot of your apartment building on March 30, 1997? Was there anybody else? A. No, only him. Q. Nobody else was hiding behind cars? There was only one male? A. Yes, only one male. Q. This is that male? A. Yes. The record further reveals Vang testified he could not recall the color of the pants worn by the offender, but that he remembered the man had worn a puffy blue coat which Gunn had worn that night. Further, Vang testified that he guessed the offender's height, but knew the man had been taller than him. He also testified he told the 911 operator that one man committed the offenses, but that she did not understand his Vietnamese accent, misinterpreted him and thought he said two men, and that he simply agreed with anything she said so that the police would respond quickly. Officer Kovach testified that Vang had been very agitated and emotional following the incident. In addition, Officers Kovach and Torok testified -8- that Vang consistently stated only one man had committed the offenses. Also, Detective Torok testified that Vang had a laceration on the back of his head and cuts on his left cheek and the palms of his hands. Construing this evidence and the inferences reasonably drawn therefrom in the light most favorable to the state, we conclude as a matter of law that the court correctly ruled that the state presented sufficient evidence to prove the essential elements of the offenses of kidnaping, aggravated robbery, and felonious assault. Regarding the manifest weight of the evidence, we observe that the test is found in State v. Martin (1983), 20 Ohio App.3d 172 at 175: 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 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 * * *. Our task in connection with this review differs from our sufficiency review. Here we are to weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether the jury clearly lost its way when it resolved conflicts in the evidence. In this case, the defense presented Theresa Kish, Gunn's -9- neighbor, and Jennifer Ebosh, his girlfriend, and Gunn also testified. Kish testified that Gunn had been at her home located at 2036 W. 47th St. on the evening of March 30, 1997, and that he left there around 11:30 P.M. Ebosh stated that Gunn came to her home, located across the street from Kish's house, around 11:45 P.M. and then left to get diapers and formula for her infant. Gunn testified that he left Ebosh's house around 11:50 P.M. and walked down W. 47thSt. towards Lorain Avenue, that a friend of his, Walter Johnson, drove up to him in Vang's Toyota, that they talked for about twenty minutes, that Johnson told him the vehicle belonged to his aunt and asked Gunn if he would take it and park it at Ebosh's house. Gunn further testified that he took the Toyota and drove east on Lorain Avenue to stop at a Mini-Mart to buy diapers and formula for Ebosh's infant, but that the police stopped him. He then stated that while he sat in the Toyota, he overheard the police radio describe the Toyota as stolen, and when the officers then attempted to arrest him, he ran because he did not steal it. He also testified that when Officers Kovach and Andrews took him to W. 65th St. and Franklin Avenue after his arrest, Vang initially stated Gunn did not commit the offenses, but then changed his mind after Vang's father and Officer Andrews talked with Vang. In this case, the jury heard inconsistencies in testimony offered by Vang, Officer Kovach, and Gunn. Officer Kovach stated that he did not know the Toyota had been stolen until after he and Officer Andrews pursued and arrested Gunn, but Gunn stated that the officers learned of the theft at the time they stopped him. -10- Further, Officer Kovach stated that Vang immediately identified Gunn at W. 65th St. and Franklin Avenue, but Gunn claimed otherwise. The jury assessed the credibility of these witnesses and found Gunn guilty of kidnaping, aggravated robbery, and felonious assault. After weighing all of the evidence and the reasonable inferences and considering the credibility of the witnesses, we conclude that the jury did not clearly lose its way in resolving these evidentiary conflicts. Accordingly, we overrule this assignment of error and affirm the judgment of conviction. Judgment affirmed. -11- 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. KENNETH A. ROCCO, J., and JAMES D. SWEENEY, J., CONCUR PRESIDING JUDGE TERRENCE O'DONNELL 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 .