[Cite as State v. Dukes, 2018-Ohio-3002.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SENECA COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 13-17-39

        v.

TONIA D. DUKES,                                           OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Seneca County Common Pleas Court
                            Trial Court No. CRB 1701003

                                      Judgment Affirmed

                              Date of Decision: July 30, 2018




APPEARANCES:

        W. Alex Smith for Appellant

        Richard H. Palau for Appellee
Case No. 13-17-39


ZIMMERMAN, J.

       {¶1} Defendant-appellant, Tonia Dukes (“Dukes”), appeals the November

29, 2017 judgment of the Tiffin-Fostoria Municipal Court journalizing her theft

conviction by a jury. For the reasons set forth below, we affirm the judgment of the

trial court.

                          Facts and Procedural History

       {¶2} On July 28, 2017, Elizabeth Miller (“Miller”), an “Asset Protection

Associate” with Wal-Mart, observed Dukes, along with Lester Miller (“Lester”),

exit the perfume aisle. Miller noticed several boxes of high-dollar perfume hidden

under a pillow in the cart being pushed by Lester. Miller decided to follow Dukes

and Lester throughout the store.

       {¶3} Miller followed the couple to the boy’s department.         There, she

observed Dukes remove the perfume from their boxes. Miller also observed another

female, Kay Rauch (“Rauch”), join Dukes and Lester at this time. Miller saw Dukes

remove four perfume bottles from their boxes and hand the bottles to Rauch. Rauch,

in turn, concealed the perfume bottles into her purse.

       {¶4} Thereafter, Miller followed Rauch throughout Wal-Mart, approaching

her when Rauch passed the “last point of sale” near the grocery doors, identifying

herself as Wal-Mart security. Rauch dropped her purse and ran from the store.




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Thereupon, Miller contacted Tiffin Police Department to report the theft in which

Dukes and Rauch were implicated.

       {¶5} Ultimately, Dukes was charged with theft, in violation of R.C.

2913.02(A)(1), for her involvement with Rauch. Dukes pled not guilty to the charge

in the trial court.

       {¶6} On November 29, 2017, a jury trial was held in the trial court. Miller

testified for the prosecution, along with Officer Kyle Illig. The testimony of Officer

Illig included the statement he obtained from Rauch implicating Dukes in the theft.

The state also introduced a video from Wal-Mart of the incident. Rauch testified in

Duke’s defense, testifying that she was “high on marijuana” at the time she gave her

statement to the Tiffin officers that arrested her and Dukes at Wal-Mart. Rauch

refuted her statement (given to police) at trial and testified that she was the sole

person that took the perfume from Wal-Mart. Dukes did not testify. Ultimately, the

jury found Dukes guilty of theft.

       {¶7} The trial court sentenced Dukes to serve 180 days in jail and to pay a

fine of $150.00, however, the trial court suspended 90 days of the jail time. The

trial court also placed Dukes on probation for a period of three years.

       {¶8} Dukes now appeals, asserting the following assignments of error.




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                       ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT ERRED BY MAKING A COMMENT TO
       THE JURY THAT WAS PREJUDICIAL AGAINST THE
       DEFENDANT.

                       ASSIGNMENT OF ERROR NO. II

       THE JURY ERRED BY CONVICTING THE DEFENDANT
       AGAINST THE MANIFEST WEIGHT OF TH EVIDENCE.

       {¶9} For ease of discussion, we elect to address the assignments of error out

of the order in which they appear, addressing the second assignment of error first.

                            Second Assignment of Error

       {¶10} In her second assignment of error, Dukes maintains that the jury’s

verdict convicting her of theft was against the manifest weight of the evidence

because Rauch testified at trial that she alone committed the theft. Dukes further

argues that she did not have possession of the perfume in question.

                                Standard of Review

       {¶11} When determining whether a conviction is against the manifest weight

of the evidence, we “will not reverse a conviction where there is substantial evidence

upon which the court could reasonably conclude that all the elements of an offense

have been proven beyond a reasonable doubt”. State v. Eskridge, 38 Ohio St.3d 56

(1988), at paragraph two of the syllabus.

       {¶12} In reviewing whether a conviction is against the manifest weight of

the evidence, a reviewing court must examine the entire record, “‘[weigh] the

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evidence and all inferences, consider the credibility of the witnesses and [determine]

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’”. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997),

quoting State v. Martin, 20 Ohio App.3d 172, 175 (1983). However, a reviewing

court must allow the trier of fact the appropriate discretion on matters relating to the

weight of the evidence and the credibility of the witnesses. State v. DeHass, 10

Ohio St.2d 230, 231 (1967).

                                       Analysis

       {¶13} R.C. 2913.02 states, in its pertinent part:

       (A) No person, with purpose to deprive the owner of property or
       services, shall knowingly obtain or exert control over either the
       property or services in any of the following ways:

       (1) Without the consent of the owner or person authorized to
           give consent;

       {¶14} In the case at hand, Dukes argues that the prosecution failed to prove

that she “knowingly obtained or exerted control” over the perfume. Moreover, she

contends that while Rauch was guilty of theft, Dukes, at best, could have only been

convicted of complicity, but not the actual theft.

       {¶15} In our review of the record, we find the following evidence was

presented at trial. Elizabeth Miller, an Asset Protection Associate at Wal-Mart

testified that while walking the floor at Wal-Mart, she observed Dukes and Lester

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Case No. 13-17-39


walk out of the perfume aisle with several high-dollar perfume bottles in their cart.

Miller followed the two throughout the store, noticing that they stopped in the boys’

department. There, Miller testified that she witnessed Dukes go “between two

displays of jeans where she started to open some perfume”. (Tr. 81). At this time,

Rauch joined Dukes and Lester in the boys’ wear department. Miller observed

Dukes open the hard plastic containers (containing the perfume bottles) with a sharp

object; remove the perfume from the hard plastic; remove the security tag from the

bottles; and hand the bottles to Rauch, who concealed them in her purse. (Tr. 81-

82). Miller also testified to the Wal-Mart video, (Exhibit D), which verified that

Dukes and Rauch were together in the store.

       {¶16} Tiffin police officer Illig testified that he interviewed Dukes after the

theft. In her statement to Officer Illig, Dukes confirmed that Rauch was with her

and Lester when they arrived at Wal-Mart. Officer Illig also testified that while he

was conducting his investigation of the theft, an assisting Tiffin police officer

located Rauch (who fled from the store after being confronted by Miller) in Wal-

Mart’s parking lot in a vehicle registered to Dukes’ sister. Officer Illig further

testified that Rauch admitted that Dukes’ was a participant in the theft of perfume

by stating “the lady gave me stuff to put in my bag”. (Doc. 9). However, in Dukes’

defense, Rauch testified that she was solely guilty of theft of the perfume bottles.




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       {¶17} “[A]n appellate court’s function when reviewing the weight of the

evidence is to determine whether the greater amount of credible evidence supports

the verdict.” State v. Schaeffer, 3d Dist. Seneca No. 13-14-34, 2015-Ohio-3531,

¶15, citing Thompkins.     In reviewing whether the conviction was against the

manifest weight of the evidence, the appellate court sits as a “thirteenth juror” and

examines the conflicting testimony. Id. In doing so, this Court must review the

entire record, weigh the evidence and all of the reasonable inferences, consider the

credibility of the witnesses, and determine whether in resolving conflicts in the

evidence, the factfinder “‘clearly lost its way and created such a manifest

miscarriage of justice that a conviction must be reversed and a new trial ordered’”.

State v. Holmes, 3d Dist. Hancock No. 5-15-06, 2015-Ohio-5050, ¶46, quoting

Thompkins.

       {¶18} In the case sub judice, competent and credible evidence exists in the

record to convict Dukes of theft. The jury chose to believe the testimony of Miller

instead of the testimony of Rauch as to whether Dukes was a participant in the theft.

Because the jury was in the best position to weigh the credibility of the witnesses,

we find that the jury’s verdict was not against the manifest weight of the evidence

in light of Miller’s testimony, Rauch’s statement to police (at the scene), and the

Wal-Mart video offered into evidence. Accordingly, Dukes’ second assignment of

error is overruled.


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                             First Assignment of Error

       {¶19} In her first assignment of error, Dukes contends that the trial court

erred and she was prejudiced, when the trial court judge commented on the state’s

evidence. Specifically, the trial court made the following statement when ruling on

Dukes objection to an exhibit (i.e. photograph) of the Wal-Mart perfume:

       “Ladies and gentlemen, the argument, basically, revolves around
       Ms. Beckley saying, geez, why do we have pictures? Why don’t
       we have the actual items? I don’t know what the answer to that
       is. You don’t know what it is. But I think a photograph of them
       is pretty good evidence. I suspect you’ll want to cross-examine
       her, Ms. Miller a little bit more about that. While it’s not ideal,
       it’s okay. The objection will be overruled. And the jury will be
       permitted to see it.”

                                Standard of Review

       {¶20} In State v. Scott (1986), 26 Ohio St.3d 92, 96, the Supreme Court of

Ohio analyzed the comments of a trial judge to determine whether they were

“prejudicial so as to require a mistrial,” utilizing the following criteria: “(1) The

burden of proof is placed upon the defendant to demonstrate prejudice, (2) it is

presumed that the trial judge is in the best position to decide when a breach is

committed and what corrective measures are called for, (3) the remarks are to be

considered in light of the circumstances under which they were made, (4)

consideration is to be given to their possible effect upon the jury, and (5) to their

possible impairment of the effectiveness of counsel”.          Id. (quoting State v.

Wade [1978], 53 Ohio St.2d 182, 188).

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                                       Analysis

       {¶21} While the trial court should not have commented on what could be

construed as the quality of the evidence, we find that the remark made by the trial

judge to be harmless. Reviewing the criteria for determining prejudicial effect set

forth by the Supreme Court and under the circumstances presented here, we find:

that no one objected to the remark made by the trial judge; that Dukes has failed to

demonstrate how she was prejudiced by the remark; that the remark, taken in

context, was probably lightly considered by anyone, if at all; and, most importantly,

the evidence of Dukes’ involvement in the theft was overwhelming.

       {¶22} Additionally, prior to the jury’s deliberation, the trial court included in

its instruction to the jury the following admonitions:

       “Now, if during the course of the trial I said or did anything which
       you consider an indication of my views on the facts, you’re
       instructed to disregard it. The Judge must be and sincerely
       desires to be impartial in presiding over this and every other trial
       before a jury and without a jury”. (Tr. 140-141).

       {¶23} In this case, the trial judge’s comments to the jury (when admitting a

photograph into evidence) were not appropriate. However, we find no evidence that

such comments influenced the jury on the weight of the evidence in light of the

defense presented (that) Rauch, not Dukes, solely stole the perfume. Stated clearer,

at no time was it disputed that perfume was the object involved in the theft. Hence,

we cannot see how Dukes was prejudiced (as to the weight of the evidence) when


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her defense was that Rauch alone stole the perfume. Thus, Duke’s first assignment

of error is not well taken and overruled.

         {¶24} Having found no error prejudicial to the Appellant herein in the

particulars assigned and argued, we affirm the Appellant’s conviction in the trial

court.

                                                              Judgment Affirmed

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr




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