[Cite as State v. Carter, 2013-Ohio-3787.]




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




STATE OF OHIO,

   PLAINTIFF-APPELLEE,                                     CASE NO. 13-13-03

  v.

SETH A. CARTER,                                            OPINION

   DEFENDANT-APPELLANT.



                  Appeal from Seneca County Common Pleas Court
                            Trial Court No. 12-CR-0097

                                       Judgment Affirmed

                           Date of Decision: September 3, 2013



APPEARANCES:

        Randy F. Hoffman for Appellant

        Heather N. Jans for Appellee
Case No. 13-13-03


ROGERS, J.

       {¶1} Defendant-Appellant, Seth A. Carter, appeals the judgment of the

Court of Common Pleas of Seneca County, finding him guilty of one count of

theft and sentencing him to 170 days in jail. On appeal, Carter contends that the

trial court erred by: (1) denying his motion for acquittal at the end of the State’s

evidence; and (2) entering a guilty verdict that was against the manifest weight of

the evidence. For the reasons that follow, we affirm the trial court’s judgment.

       {¶2} On July 11, 2012, the Seneca County Grand Jury returned a one count

indictment against Carter charging him with one count of theft of a credit card in

violation of R.C. 2913.02(A)(1), (B)(2), a felony of the fifth degree.

       {¶3} A jury trial was held in this matter on January 17 and 18, 2013. The

following relevant evidence was adduced during the State’s case-in-chief.

       {¶4} On April 26, 2012, Tiffin police responded to a report of a residential

burglary at 32 Hall Street, the home of Robert (“Robert”) and Michelle

(“Michelle”) Smith (collectively “the Smiths”). At approximately 5:00 a.m. that

day, Robert was finishing his morning routine of prayers and physical therapy

when he noticed Michelle’s keys on the floor. Upon further inspection, Robert

observed that his office window was open and discovered muddy footprints going

across the office floor. Robert then woke Michelle up and together they looked

for her purse. The Smiths were unable to find Michelle’s purse and immediately

called the Tiffin Police Department. The police arrived shortly after and began to

                                         -2-
Case No. 13-13-03


process the crime scene. The police asked the Smiths for some documentation,

which they usually kept inside a small safe in their office. When Robert went to

retrieve the information, he discovered that the safe was also missing.

       {¶5} Michelle’s purse contained $800.00 in cash, various credit cards,

rosaries, medication, and other miscellaneous items. Inside the safe were several

personal documents, such as birth certificates, the Smiths’ marriage license,

pictures of their deceased daughter, the deed to their burial plot, backups to their

computers, and approximately $1,000.00 in cash.

       {¶6} On the morning of April 30, 2012, the Smiths received a phone call

from a private number. Carter later admitted that he had called the Smiths that

day. What was said during this phone call was disputed at trial. Robert testified

that Carter said he had found some items that he believed belonged to the Smiths.

Carter then asked Robert if there was a reward. Robert claimed that he told Carter

that there was not a reward available, but he would appreciate it if Carter turned

their property into the police department, as it was part of a burglary investigation.

       {¶7} According to Robert, Carter then told Robert that he needed some

money to pay some bills. Robert replied that he could probably give Carter $50.00

if he returned the property, but Carter was unsatisfied and told Robert he needed

$70.00. Robert said he would try to obtain the $70.00 and give it to Carter.

Robert first tried to convince Carter to drop the property off at the police

department, but Carter refused. Robert then asked if Carter could drop it off at a

                                         -3-
Case No. 13-13-03


nearby church, which Carter also refused. Eventually, Robert and Carter agreed

the two would meet at Noble School. Carter repeatedly asked Robert not to get

the police involved, and Robert promised he would not. Robert then went to

Noble School to meet Carter. However, Carter never showed up. After waiting

for an hour, Robert returned home and told Michelle that he was going to look for

their property on Davis Street, which is where Carter claimed to have found the

Smiths’ stolen property. Robert told Michelle not to answer the phone if it came

up as a private number.

      {¶8} Robert did not find anything at the end of Davis Street except “a lot of

mud.” Trial Tr., p. 136. He then testified that it had rained and snowed between

the date the Smiths’ property went missing and the date Carter made his phone

call. While searching for their stolen property, Michelle called Robert and told

him that a private number had called their house three times. By the time Robert

got home, Carter had called the Smiths five times. The Smiths called the police

department again and they arrived as Carter called the Smiths for the sixth time.

The officer at the Smiths was able to record part of the phone conversation.

      {¶9} At trial, the State offered this phone recording into evidence as State’s

Exhibit 1 and played it for the jury. On the recording, Carter can be heard telling

Robert not to call the police and arranging to drop off the property at the Smiths’

residence.   After the phone called ended, the police officer left the Smiths’

residence and Michelle went to her bedroom and locked the door.                Shortly

                                        -4-
Case No. 13-13-03


thereafter, Carter arrived at the Smiths. Robert helped Carter get the Smiths’

property from the trunk of Carter’s car and then Robert gave Carter $70.00.

Robert testified that as Carter was leaving, he told Robert to invest in a security

system.

       {¶10} After Carter left, the Smiths took their recovered property to the

police department and gave a description of Carter and his car. The police were

able to locate Carter at his residence at 107 Olive Street. Robert was shown a

photo lineup and he was able to pick Carter from the lineup.

       {¶11} On cross-examination, Robert testified that inside Michelle’s purse

was a letter to the editor of a Tiffin newspaper stating that if someone had found

his wife’s missing rosary the Smiths would offer a reward for the rosary. Robert

explained that this letter was from a previous incident, where Michelle’s rosary

was taken from her car. Although this separate incident happened several months

ago, Michelle still had the letter in her purse. Robert also admitted to lying to

Carter about not calling the police.

       {¶12} Michelle then testified and corroborated much of Robert’s testimony.

She also elaborated on the letter that was found in her purse concerning a

previous, stolen rosary. Unlike her husband, she denied that the letter offered a

reward for the missing rosary. Instead, she explained that the letter asked whoever

borrowed her rosary to return it to her and she would give them another rosary, but

not a reward.

                                        -5-
Case No. 13-13-03


       {¶13} Detective Rob Bour also testified for the State about his involvement

in the investigation. He testified that he and Detective David Horn interviewed

Carter. During the interview, Carter told the detectives that he had found the purse

and safe down by the river while he was fishing. Further, Detective Bour testified

when asked about the reward money, Carter originally told him he was only paid

$50.00, but eventually admitted to receiving $70.00.

       {¶14} Detective Horn corroborated Detective Bour’s testimony. Detective

Horn also testified that during the interview, Carter changed his story on where he

found the stolen property many times. First, Carter stated he found the property

while walking his dog down the street. Then Carter told Detective Horn that he

had found it while fishing with a friend. Finally, Carter told Detective Horn that

he had found the property at the house of John Smith, one of his acquaintances.

       {¶15} At the close of the State’s evidence, Carter moved for a Crim.R. 29

motion for acquittal, which the trial court denied. During Carter’s case-in-chief,

the following relevant evidence was adduced.

       {¶16} Carter testified, explaining that he had found the Smiths’ property

when he was walking his dog on Water Street. Carter stated that when he started

to look through the purse he found a letter that talked about a reward. Carter

claimed that this letter had all of the Smiths’ contact information and said that if

any of their possessions were found to return them for a reward. Subsequently,

Carter called Robert and told him that he had found his safe and purse. Carter

                                        -6-
Case No. 13-13-03


asserted that he never demanded a reward for the Smiths’ property and “could care

less about it.” Trial Tr., p. 219.

       {¶17} Carter confirmed that he had set up a meeting with Robert to give

back the property at Noble School. When Carter arrived at Noble School he saw

police officers and decided not to meet with Robert. Carter then testified that he

called Robert again and made the arrangement to meet Robert at his house. When

Carter arrived, Robert helped him retrieve his property from Carter’s trunk.

Robert promptly thanked Carter and handed him his reward money.

Subsequently, police officers arrived at Carter’s residence and took him to the

police station. At the police station, Carter denied having any involvement in the

residential burglary and denied knowing who did do it. Carter testified that from

the beginning of the interview, Detective Horn would not believe anything Carter

would say.

       {¶18} On cross-examination, the State elicited testimony regarding changes

in Carter’s story as follows:

       Q. Now, during this interview that you had with the officers, didn’t
       you tell the police that you found the property at John Smith’s
       house?

       A: No.

       Q: Didn’t you also tell the police that you found it in your basement?

       A: Well, I’ll tell you what happened. When it came to me about
       going to jail, he [Detective Horn] was like, “Well, if you don’t want
       to tell me where it was, then you can just go to jail, you know,”

                                        -7-
Case No. 13-13-03


       because the main time, the whole thing he just wanted to know who
       did the burglary.

Trial Tr., p. 224. Carter was unable to explain how the safe and purse were not

muddy or wet when he found the items outside during rainy and snowy weather.

It was also elicited on cross-examination that Carter has prior convictions for theft

and for misusing credit cards.

       {¶19} After Carter testified, the defense rested its case. The State then

called Detective Horn back to the stand as a rebuttal witness. The State played

portions of the police interview of Carter.     In the beginning of the interview,

Carter said that he found the Smiths’ property while he was walking his dog down

by the river. A few minutes later, Carter changed his story and said that he found

the Smiths’ property at John Smith’s house while he was fishing. When asked

whether Carter ever advised Robert to install a security system, Carter denied

making that statement but did admit he told Robert he should get a shotgun.

Carter appeared to be restless and fidgety throughout the entire interview.

       {¶20} The State then offered the letter that was found in Michelle’s purse

into evidence. The note reads:

       I and my wife would like to ask the person or persons that borrowed
       my wife’s rosary to return it. The rosary was removed from her
       unlocked car over the Valentine weekend. The rosary is a favorite
       that my wife received from a very close friend and is used weekly at
       adoration. We believe that a rosary can be a powerful tool to assist
       others in need and hope that it will be returned. We would gladly
       provide the person that borrowed the rosary a new rosary for their
       personal use if they would return it. We are not looking for any type

                                         -8-
Case No. 13-13-03


       of retribution and do not intend to press charges or file a report.
       Obviously the person that borrowed the rosary was in dire need.

       Bob and Shelly Smith
       32 Hall Street
       Tiffin

(State’s Exhibit 10).

       {¶21} On January 18, 2013, the jury returned their verdict. The jury found

Carter guilty of one count of theft. The jury also found that the property involved

was not a credit card. Consequently, the verdict resulted in a conviction of a

misdemeanor in the first degree. The matter proceeded to sentencing on January

28, 2013. The trial court sentenced Carter to a jail term of 170 days. In addition,

the trial court required Carter to pay restitution in the amount of $70.00 dollars to

the Smiths.

       {¶22} Carter filed this timely appeal, presenting the following assignments

of error for our review.

                             Assignment of Error No. I

       THE TRIAL COURT ERRED AS A MATTER OF LAW IN
       DENYING    APPELLANT’S  MOTIONS     (sic) FOR
       ACQUITTAL AT THE END OF THE STATE’S EVIDENCE,
       AS THE EVIDENCE PRESENTED WAS INSUFFICIENT
       FOR A CONVICTION.

                            Assignment of Error No. II

       THE JURY VERDICT OF GUILTY WAS AGAINST THE
       MANIFEST WEIGHT OF THE EVIDENCE.



                                         -9-
Case No. 13-13-03




                             Assignment of Error No. I

       {¶23} In his first assignment of error, Carter contends that the trial court

erred when it did not grant his motion for acquittal. Specifically, Carter argues

that the State did not show that he threatened or intimidated the Smiths; therefore,

failing to prove an essential element beyond a reasonable doubt. We disagree.

                                Standard of Review

       {¶24} Crim.R. 29(A) provides that a court must order the entry of a

judgment of acquittal of a charged offense “if the evidence is insufficient to

sustain a conviction of such offense[.]” However, “a court shall not order an entry

of judgment of acquittal if the evidence is such that reasonable minds can reach

different conclusions as to whether each material element of a crime has been

proved beyond a reasonable doubt.” State v. Bridgeman, 55 Ohio St.2d 261

(1978), syllabus. Thus, a motion for acquittal tests the sufficiency of the evidence.

State v. Tatum, 3d Dist. Seneca No. 13–10–18, 2011–Ohio–3005, ¶ 43, citing State

v. Miley, 114 Ohio App.3d 738, 742 (4th Dist.1996).

       {¶25} When an appellate court reviews a record for sufficiency, the

relevant inquiry is whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements

of the crime proven beyond a reasonable doubt. State v. Monroe, 105 Ohio St.3d

384, 2005–Ohio–2282, ¶ 47.         Sufficiency is a test of adequacy.       State v.

                                        -10-
Case No. 13-13-03


Thompkins, 78 Ohio St.3d 380, 386 (1997), superseded by constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89 (1997).

Accordingly, the question of whether the offered evidence is sufficient to sustain a

verdict is a question of law. State v. Wingate, 9th Dist. Summit No. 26433, 2013-

Ohio-2079, ¶ 4.

       {¶26} In order to preserve the issue of sufficiency on appeal, this court has

held that “[w]hen a defendant moves for acquittal at the close of the state's

evidence and that motion is denied, the defendant waives any error which might

have occurred in overruling the motion by proceeding to introduce evidence in his

or her defense. In order to preserve a sufficiency of the evidence challenge on

appeal once a defendant elects to present evidence on his behalf, the defendant

must renew his Crim.R. 29 motion at the close of all the evidence.” (Citation

omitted.) State v. Edwards, 3d Dist. Marion No. 9–03–63, 2004–Ohio–4015, ¶ 6.

       {¶27} The record reveals that Carter made his Crim.R. 29 motion at the

close of the State's case-in-chief, and that the trial court denied his motion for

acquittal. Thereafter, Carter proceeded to present evidence in his defense. Carter,

however, did not renew his Crim.R. 29 motion at close of his case-in-chief or at

the conclusion of the all the evidence. Thus, according to this court's precedent,

Carter has waived all but plain error. State v. Flory, 3d Dist. Van Wert No. 15–

04–18, 2005–Ohio–2251, citing Edwards.



                                       -11-
Case No. 13-13-03


       {¶28} However, “[w]hether a sufficiency of the evidence argument is

reviewed under a prejudicial error standard or under a plain error standard is

academic.” Perrysburg v. Miller, 153 Ohio App.3d 665, 2003–Ohio–4221, ¶ 57

(6th Dist.), quoting State v. Brown, 2d Dist. Montgomery No. 17891 (July 14,

2000). Regardless of the standard used, “a conviction based on legally insufficient

evidence constitutes a denial of due process, and constitutes a manifest injustice.”

(Citation omitted.) Thompkins, 78 Ohio St.3d at 386–87. Accordingly, we will

proceed to determine whether the State presented sufficient evidence to support

Carter's conviction.

                             R.C. 2913.02(A)(1), (B)(2)

       {¶29} Carter was charged with theft in violation of R.C. 2913.02(A)(1),

(B)(2) which provides:

       (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;

       ***

       (B) (2) Except as otherwise provided in this division or division
       (B)(3), (4), (5), (6), (7), or (8) of this section, a violation of this
       section is petty theft, a misdemeanor of the first degree. If the value
       of the property or services stolen is one thousand dollars or more and
       is less than seven thousand five hundred dollars or if the property
       stolen is any of the property listed in section 2913.71 of the Revised
       Code, a violation of this section is theft, a felony of the fifth degree.


                                         -12-
Case No. 13-13-03


Further, “deprive” is defined as withholding property “with the purpose to restore

it only upon payment of a reward or other consideration.” R.C. 2913.01(C)(1).

                            Recapitulation of Evidence

      {¶30} Bearing this statutory language in mind, we turn our attention to the

evidence presented at trial. The record reveals that the State presented sufficient

evidence to overcome Carter’s motion for acquittal.

      {¶31} Testimony was elicited from Robert that his house was broken into

on April 26, 2012 and that a purse and small safe was taken from his home. On

April 30, 2012, Robert received a phone call, from Carter, informing Robert that

he had found his stolen property. According to Robert, Carter wanted a reward for

finding the property.   Robert testified that he informed Carter that he never

intended to offer a reward for the missing property and asked Carter to return the

property to the Tiffin Police Department, but Carter refused. Carter also refused

to return the property to a nearby church. Instead, Carter only agreed to return the

property if he met with Robert and received $70.00 as a reward.

      {¶32} There was also testimony that Robert and Michelle had never given

permission to Carter to possess their property. Michelle testified that she kept

various credit cards inside of her purse. Further, the Detectives who worked on

the case testified that Carter kept changing his story when they interviewed him.

There was testimony that Carter lied about how much Robert gave him as a



                                       -13-
Case No. 13-13-03


“reward” and also gave multiple, contradicting stories about where Carter found

the Smiths’ property.

       {¶33} However, there was testimony from Robert that inside of Michelle’s

purse was a paper that said “return for reward.” Robert explained that it was a

letter to the editor of a local newspaper concerning an unrelated theft of Michelle’s

rosary. When Michelle testified, she clarified that the paper in her purse did not

say “return for reward,” as her husband testified, but merely offered to exchange

the stolen rosary for a new one, as the stolen rosary had sentimental value to her.

       {¶34} Construing the evidence in a light most favorable to the prosecution,

we find that there was sufficient evidence for a trier of fact to find, beyond a

reasonable doubt, that the State proved the essential elements of theft.

       {¶35} Carter contends that “no good deed goes unpunished” and that his

discussion with Robert about a reward does not prove the element of deprivation

that is required by R.C. 2913.02(A)(1). Appellant’s Br., p. 4. To the contrary,

deprive is specifically defined by R.C. 2913.01(C)(1) as withholding property

“with the purpose to restore it only upon payment of a reward or consideration.”

(Emphasis added.) The State’s evidence showed exactly what R.C. 2913.02(A)(1)

prohibits. Robert testified he informed Carter that he was not offering a reward

and to return the stolen property to the police department. Carter refused this

request, and also refused to return the property to a nearby church. After refusing

to return the property without a reward, Robert gave into Carter’s demand and

                                        -14-
Case No. 13-13-03


offered him $50.00 to return his stolen property. Carter once again refused, and

asked for more money. Carter continuously refused to return the Smiths’ property

without a reward and then had the audacity to negotiate a price for its return. This

does not constitute a “good deed” but is a deprivation of property.

       {¶36} Carter also argues that the State did not prove that Carter threatened

or intimidated the Smiths. However, the existence of any purported threats or

intimidation is immaterial to Carter’s liability under R.C. 2913.02(A)(1). The

statute merely requires that an offender knowingly exert control over another’s

property with the purpose of depriving the victim of his or her property, without

the consent of the owner. As such, by its plain terms, R.C. 2913.02(A)(1) does not

require threats or intimidation.

       {¶37} Accordingly, we overrule Carter’s first assignment of error.

                             Assignment of Error No. II

       {¶38} In his second assignment of error, Carter argues that his theft

conviction was against the manifest weight of the evidence. We disagree.

                                   Standard of Review

       {¶39} When an appellate court analyzes a conviction under the manifest

weight standard, it “sits as the thirteenth juror.” Thompkins, 78 Ohio St.3d at 387.

Accordingly, it must review the entire record, weigh all of the evidence and its

reasonable inferences, consider the credibility of the witnesses, and determine

whether the fact finder “clearly lost its way” in resolving evidentiary conflicts and

                                          -15-
Case No. 13-13-03


“created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.” State v. Martin, 20 Ohio App.3d 172, 175 (1st

Dist. 1983). When applying the manifest weight standard, a reviewing court

should only reverse a trial court’s judgment “in exceptional case[s]” when the

evidence “weighs heavily against the conviction.” Id. at paragraph three of the

syllabus.

                                 Evidence at Trial

       {¶40} In addition to the State’s case-in-chief, Carter took the stand to

testify in his defense.   On direct examination, Carter testified that he never

demanded a reward, but that the letter he found inside Michelle’s purse offered a

reward. Carter also testified he was not interested in keeping the Smiths’ property,

and it was always his intention to give the property back to its owner.

       {¶41} On cross-examination, Carter admitted that he was previously

convicted of theft and misusing credit cards, both of which are crimes of

dishonesty. Further Carter denied ever changing his story to Detective Horn or

Detective Bour about where he found the Smiths’ property.

       {¶42} The State recalled Detective Horn to the stand as a rebuttal witness.

On direct examination, Detective Horn played portions of his interview with

Carter, which showed Carter changing his story multiple times throughout the

interview.   Detective Horn also testified that he collected the letter found in



                                        -16-
Case No. 13-13-03


Michelle’s purse regarding the stolen rosary. Then State subsequently offered the

letter into evidence as State’s Exhibit 10.

       {¶43} Carter argues that the State presented no evidence that Carter

demanded a reward and the fact he changed his story so many times was

irrelevant. Whether a reward was offered or demanded depends on whether the

jury found Robert’s or Carter’s testimony more credible. Therefore, Carter’s

variations in his story were extremely relevant as they affect his credibility.

Robert testified that he told Carter he did not originally plan on giving a reward

for the return of his stolen property. Further, Robert asked Carter to return the

property to the Tiffin Police Department as it was evidence in an ongoing burglary

investigation. Carter refused this request, and also refused to return the property

to a nearby church. It was reasonable for the jury to believe that Robert wanted

his property back, which included not only credit cards and money, but also

pictures of his deceased daughter, and gave into Carter’s demand to issue a

“reward.”

       {¶44} It is also telling how originally Robert offered $50.00 for Carter to

return the property, and then Carter made a counter offer of $70.00.           This

demonstrates that Carter was not willing to give back the stolen property as part of

a good deed, but was motivated by financial gain.

       {¶45} Carter insists that he was offered a reward by the Smiths and simply

accepted that reward. He testified he did not want the police involved because he

                                         -17-
Case No. 13-13-03


was afraid the police would think he was the one who burglarized the Smiths’

residence.

       {¶46} Even though Robert admitted to lying to Carter about not involving

the police, it is reasonable that the jury believed the testimony of Robert over the

testimony of Carter. On cross-examination, Carter testified that he never told the

detectives that he found the Smiths’ property at John Smith’s house. However,

this was contradicted when the State played portions of the interview recording for

the jury, which showed Carter telling the detectives that he found the stolen

property at John Smith’s house. Carter was also unable to explain how the safe

and purse were not wet or muddy when he found them outside during rainy and

snowy weather.      Carter’s credibility was again called into question when he

admitted on cross-examination that he has previous theft and misusing credit cards

convictions, which suggest a dishonest propensity.

       {¶47} Lastly, looking at the letter itself, there is no mention of a reward

anywhere within it. Rather than offering a monetary reward, it simply states that

the person who returns the rosary will receive another one from the Smiths.

Considering all of the evidence in the record, it seems likely that Carter demanded

a reward and was unwilling to return the Smiths’ property unless he was

monetarily compensated. Therefore, we cannot say the jury lost its way in finding

Carter guilty of theft.

       {¶48} Accordingly, we overrule Carter’s second assignment of error.

                                       -18-
Case No. 13-13-03




      {¶49} Having found no error prejudicial to Carter in the particulars

assigned and argued, we affirm the trial court’s judgment.

                                                             Judgment Affirmed

WILLAMOWSKI and SHAW, J.J., concur.
/hlo




                                       -19-
