[Cite as State v. Vigilante, 2015-Ohio-4221.]


STATE OF OHIO                      )                 IN THE COURT OF APPEALS
                                   )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                   )

STATE OF OHIO                                        C.A. No.      14CA0039-M

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
VINCENT F. VIGILANTE                                 COURT OF COMMON PLEAS
                                                     COUNTY OF MEDINA, OHIO
        Appellant                                    CASE No.   13CR0649

                                  DECISION AND JOURNAL ENTRY

Dated: October 13, 2015



        SCHAFER, Judge.

        {¶1}     Defendant-Appellant, Vincent Vigilante, appeals the judgement and sentence of

the Medina County Court of Common Pleas. For the reasons set forth below, we affirm.

                                                I.

        {¶2}     The victim, an elderly widow, lived alone in her home in Medina County, Ohio.

Vigilante worked as a handyman for the widow since her husband’s death approximately four

years ago.

        {¶3}     In September of 2013, the widow discovered that her First Merit savings account

contained approximately $18,000 less than it otherwise should. Vigilante drove the widow to her

local First Merit branch where she inquired about the balance of her savings account. The

widow met with Ms. Sabrina Marshall, the branch manager, and learned that rapid ATM

withdrawals had been made on her savings account on numerous occasions over the course of
                                                 2


the previous four months. Vigilante was present during this meeting between the widow and Ms.

Marshall.

          {¶4}   In response to the widow’s insistence that she never withdrew such large amounts

of money from her account, Ms. Marshall requested security photos of four randomly selected

ATM transactions through the bank’s security system.          The following day, Ms. Marshall

received the security photos, which all depicted Vigilante withdrawing money from the widow’s

account. Ms. Marshall immediately forwarded this information to the widow. The widow

confronted Vigilante with this information and he admitted to stealing money from the savings

account.     The suspicious withdrawals from the widow’s savings account instantly stopped

following her meeting with Ms. Marshall. First Merit eventually credited the widow’s savings

account with the money that was improperly withdrawn.

          {¶5}   The Medina County Grand Jury subsequently indicted Vigilante on one count of

theft from an elderly person in an amount greater than $7,500 but less than $37,500 in violation

of R.C. 2913.02(A)(1), (B)(3), a felony of the third degree. Vigilante waived his right to a jury

trial and the matter proceeded with a bench trial. The State presented three witnesses at trial: the

widow, Ms. Marshall, and Deputy Sheriff Keith Curtin of the Medina County Sheriff’s Office.

At the close of the State’s case-in-chief, Mr. Vigilante moved for a Crim.R. 29 judgment of

acquittal on the basis that the State failed to put forth sufficient evidence demonstrating that he

stole in excess of $7,500. The trial court denied Vigilante’s motion and the defense rested

without calling any witnesses. The trial court found Vigilante guilty of the sole count in the

indictment and ultimately sentenced him to 12 months in prison with credit for six days already

served.
                                                 3


          {¶6}   Mr. Vigilante filed this timely appeal, raising two assignments of error for our

review.

                                                 II.

                                   ASSIGNMENT OF ERROR I

          THE TRIAL COURT ERRED IN FINDING MR. VIGILANTE GUILTY OF
          VIOLATING O.R.C. §2913.02(A)(10) THEFT OF THE ELDERLY, A THIRD
          DEGREE FELONY (F3), IN THAT THE STATE OF OHIO DID NOT PROVE
          BEYOND A REASONABLE DOUBT THAT THE AMOUNT OF THE THEFT
          WAS IN EXCESS OF $7,500.00, AS REQUIRED FOR A FELONY 3 THEFT
          CONVICTION.

          {¶7}   In his first assignment of error, Vigilante argues that his theft conviction was

based on insufficient evidence.1 Specifically, while Vigilante admits to stealing from the widow,

he maintains that the State failed to present sufficient evidence to demonstrate that he stole more

than $7,500.00. We disagree.

          {¶8}   “We review a denial of a defendant's Crim.R. 29 motion for acquittal by assessing

the sufficiency of the State's evidence.” State v. Frashuer, 9th Dist. Summit No. 24769, 2010–

Ohio–634, ¶ 33. The issue of whether a conviction is supported by sufficient evidence is a

question of law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

When considering a challenge to the sufficiency of the evidence, the court must determine

whether the prosecution has met its burden of production. Id. at 390 (Cook, J., concurring). In

making this determination, an appellate court must engage in the following analysis:

          An appellate court's function when reviewing the sufficiency of the evidence to
          support a criminal conviction is to examine the evidence admitted at trial to
          determine whether such evidence, if believed, would convince the average mind
          of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is
          whether, after viewing the evidence in a light most favorable to the prosecution,

          1
          Although Vigilante provides the “manifest weight of the evidence” standard in his
appellate brief, his argument strictly addresses the sufficiency of the State’s evidence. As such,
we limit our review to Vigilante’s sufficiency challenge.
                                                 4


       any rational trier of fact could have found the essential elements of the crime
       proven beyond a reasonable doubt.
State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. “In essence, sufficiency

is a test of adequacy.” Thompkins at 386.

       {¶9}    R.C. 2913.02(A)(1) states that “[n]o person, with purpose to deprive the owner of

property or services, shall knowingly obtain or exert control over either the property or services *

* * [w]ithout the consent of the owner or person authorized to give consent.” Ohio’s theft statute

expressly lists the elderly as being a “protected class.” R.C. 2913.02(B)(3). The statute goes on

to state that “[i]f the value of the property or services stolen is [$7,500.00] or more and is less

than [$37,500.00], theft from a person in a protected class is a felony of the third degree.” Id.

The only element of the theft offense that Vigilante challenges on appeal is the value of the

property that he stole from the widow’s savings account. However, we determine that the State

did present sufficient evidence that could support a finding that Vigilante stole in excess of

$7,500.00 from the widow.

       {¶10}    At trial, the State presented the testimony of Ms. Marshall, the widow, and

Deputy Curtin. Ms. Marshall testified that large amounts of money had been withdrawn from

the widow’s savings account over the course of a four-month period, starting in May of 2013 and

ending in September of 2013. She added that prior to May of 2013, bank records indicate that

the only activity involving the savings account were a few withdrawals usually around tax

season, and social security deposits and interest payments. Ms. Marshall further testified that she

requested ATM security photos from four random dates when money was suspiciously

withdrawn from the widow’s savings account. The photographs all depicted Vigilante making

withdrawals from the widow’s savings account.
                                                5


       {¶11} The widow testified that she only withdrew money from her savings account to

pay her taxes and that any other withdrawal that she made was taken solely from her checking

account. The widow further testified that she never withdrew cash from the ATM, let alone on

the days where bank records showed suspicious withdrawals being made from her savings

account in 2013. Lastly, the widow testified that she never gave Vigilante permission either to

take her ATM card or to withdraw money from her savings account.

       {¶12} Deputy Curtin testified that he interviewed Vigilante at the Medina County

Sheriff’s Office, during which time Vigilante admitted to stealing money from the widow’s

account. Moreover, Deputy Curtin testified that when he asked Vigilante how much money he

thought he took from the savings account in total, Vigilante approximated $9,000.00.

       {¶13} We determine from the testimony that the State presented sufficient evidence that

Mr. Vigilante stole in excess of $7,500.00 from the widow’s savings account.

       {¶14} Vigilante’s first assignment of error is overruled.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN SENTENCING MR. VIGILANTE (A FIRST
       TIME FELONY CONVICTION WITH LOW RISK FACTOR AND WITH NO
       APPLICABLE SENTENCING FACTORS) TO A TWELVE (12) MONTH
       PRISON SENTENCE.

       {¶15} In his second assignment of error, Mr. Vigilante argues that the trial court erred

by improperly weighing the felony sentencing factors enumerated in R.C. 2929.12 and

sentencing him to a term of incarceration rather than a community control sanction.        We

disagree.

       {¶16} “A plurality of the Supreme Court of Ohio held that appellate courts should

implement a two-step process when reviewing a felony sentence.” State v. Clayton, 9th Dist.

Summit No. 26910, 2014–Ohio–2165, ¶ 43, citing State v. Kalish, 120 Ohio St.3d 23, 2008–
                                                  6


Ohio–4912, ¶ 26. “The first step, reviewed de novo, is to ensure that the trial court complied

with applicable rules and statutes in imposing the sentence.” Id. “If the first step is satisfied, the

second [step] is to review the term of imprisonment for an abuse of discretion.” Id.

       {¶17} In this case, although the trial court did not explicitly mention R.C. 2929.12

during the sentencing hearing, it is presumed that the trial court considered these factors when a

sentence falls within the statutory range. See State v. Steidl, 9th Dist. Medina No. 10CA0025-M,

2011-Ohio-2320, ¶ 13. Here, the trial court sentenced Vigilante to 12 months in prison for theft

from an elderly person, a third degree felony. This sentence falls within the prescribed statutory

range. R.C. 2929.14(A)(3)(b). As such, we determine that the trial court’s sentence is not

contrary to law.

       {¶18} However, in turning to the second prong of our analysis, we note that Vigilante

has failed to include in the appellate record a copy of the presentence investigation report

(“PSI”), which the trial court referenced at the sentencing hearing. See State v. McGowan, 9th

Dist. Summit No. 27092, 2014–Ohio–2630, ¶ 6 (“When an appellant does not provide a

complete record to facilitate our review, we must presume regularity in the trial court's

proceedings and affirm.”), quoting State v. Taylor, 9th Dist. Lorain Nos. 13CA010366,

13CA010367, 13CA010368, 13CA010369, 2014–Ohio–2001, ¶ 6. Given the absence of the PSI

report from the record, we are unable to fully review whether the trial court abused its discretion

in sentencing him and we must presume regularity. Id.

       {¶19} Vigilante’s second assignment of error is overruled.

                                                 III.

       {¶20} With both of Vigilante’s assignments of error having been overruled, the

judgment of the Medina County Court of Common Pleas is affirmed.
                                                 7


                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT



WHITMORE, J.
MOORE, J.
CONCUR.


APPEARANCES:

MICHAEL J. CALLOW, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellee.
