[Cite as State v. Hiestand, 2010-Ohio-835.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 10-09-11

        v.

JULIE A. HIESTAND,                                        OPINION

        DEFENDANT-APPELLANT.




                           Appeal from Celina Municipal Court
                            Trial Court No. 2009-CRB-00326

                                      Judgment Affirmed

                             Date of Decision:   March 8, 2010




APPEARANCES:

        Jay M. Lopez for Appellant

        Kevin M. McKirnan for Appellee
Case No. 10-09-11


ROGERS, J.

       {¶1} Defendant-Appellant, Julie A. Hiestand, appeals the judgment of the

Municipal Court of Celina convicting her of theft. On appeal, Hiestand argues

that the trial court erred in finding her guilty of theft because its decision was

against the manifest weight of the evidence. Based upon the following, we affirm

the judgment of the trial court.

       {¶2} In April 2009, Hiestand was charged with theft in violation of R.C.

2913.02(A)(1), a misdemeanor of the first degree. The complaint was issued

following an incident during which Hiestand allegedly took several items without

paying for them from Dollar General, her place of employment.              Shortly

thereafter, Hiestand entered a plea of not guilty to the offense.

       {¶3} In May 2009, the case proceeded to bench trial, at which the

following testimony was heard.

       {¶4} Sergeant Jason Miller of the Coldwater Police Department testified

that, on April 16, 2009, he was called to the Dollar General Store in Coldwater

regarding an alleged shoplifting incident by a store employee; that, in the parking

lot of the store, Hiestand granted him permission to search her truck; that,

underneath a blanket underneath the back seat of the truck, he located a white

plastic Wal-Mart bag that was tied at the top; that, inside the bag, he found two

bags of grass seed with Dollar General price stickers on the outside of the bags,


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two boxes of children’s Motrin, two Lasting Impressions air fresheners, and four

Glade scented candle refills; that there were no Dollar General receipts found in

the plastic bag; that there were no Dollar General shopping bags found among the

items in the truck; that employees of Dollar General scanned the items and the

total came to $35.31; that the employees’ ability to scan the items indicated that

they had come from that Dollar General store; that Hiestand indicated that she had

purchased the items “last Thursday when she was working” (trial tr., p. 7), but that

he checked the schedule and she had not worked on that day; that he examined the

shelves in the store where the items found in the truck would have been located for

sale and discovered that the items were missing from the fronts of the shelves;

and, that Jennifer Bogan, another employee of Dollar General, identified Hiestand

as taking the merchandise.

       {¶5} Jennifer Bogan testified that, in April 2009, she was employed as the

assistant manager of the Dollar General store in Coldwater; that, on the day in

question, she was in her office when she observed Hiestand take merchandise up

to the register, put it in a shopping bag, tie the bag, look around to see if anyone

was watching, and then take the bag out to her truck; that she did not actually see

Hiestand remove items from the shelves and conceal them; that Hiestand took the

merchandise out of the store without paying for it; that Hiestand was working on

the day of the incident; that, after the police officers arrived, she overheard


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Hiestand say that she had purchased the items a week prior on Thursday; and, that

Hiestand did not work on the date she claimed she had purchased the items.

      {¶6} Hiestand testified that she had purchased the grass seed at Dollar

General a week prior to the incident while accompanied by her mother and sister;

that she had receipts for some of the items; that she often purchased items from

Dollar General; and, that there were empty spots on the store shelves because the

trucks had not come in yet to restock the shelves. On cross-examination, Hiestand

admitted that the receipts she provided were Wal-Mart receipts dated February and

early March 2009, and that she did not have a receipt for the children’s Motrin and

could not explain why it was found in her vehicle.

      {¶7} Donna Black, Hiestand’s mother, testified that she was with

Hiestand when she purchased the grass seed; that Hiestand kept Motrin in her

truck because she had a young child with allergies who “gets into everything”

(trial tr., p. 30); and, that Hiestand was an honest person. On cross-examination,

Black testified that Hiestand had purchased the grass seed a week prior to the

incident; and, that, when Hiestand purchased the grass seed, she overheard other

employees saying that Bogan was going to “get someone fired because there’s

[sic] too many employees.” (Trial Tr., p. 32).

      {¶8} Thereafter, the trial court found Hiestand guilty of theft in violation

of R.C. 2913.02(A)(1) and ordered the items returned to the store.


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       {¶9} It is from this judgment that Hiestand appeals, presenting the

following assignment of error for our review.

       THE TRIAL COURT ERRED IN FINDING DEFENDANT-
       APPELLANT, JULIE A. HIESTAND, GUILTY OF THEFT
       PURSUANT TO O.R.C. 2913.02(A)(1) AS THE SAME WAS
       AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶10} In her sole assignment of error, Hiestand argues that the trial court’s

finding that she was guilty of theft was against the manifest weight of the

evidence. Specifically, Hiestand argues that the evidence before the trial court did

not support a theft conviction because no one actually saw her remove items from

the shelves of Dollar General, and that she provided receipts for the items she

allegedly took, establishing that she purchased the items prior to the date of the

alleged offense. We disagree.

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

weight standard, it must review the entire record, weigh all of the evidence and all

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

determine whether, in resolving conflicts in the evidence, the fact finder 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-Ohio-52, superseded by constitutional amendment on other grounds as

stated by State v. Smith, 80 Ohio St.3d 89, 1997-Ohio-335, quoting State v. Martin



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(1983), 20 Ohio App.3d 172, 175. Only in exceptional cases, where the evidence

“weighs heavily against the conviction,” should an appellate court overturn the

trial court’s judgment. Id.

       {¶12} Here, Hiestand was cited for theft in violation of R.C.

2913.02(A)(1), 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[.]

Evidence was heard at trial that the assistant manager of the Dollar General store

observed Hiestand take merchandise up to the register, put it in a shopping bag, tie

the bag, look around to see if anyone was watching, and take the bag out to her

truck; that Hiestand did not pay for the items prior to removing them from the

store; that police officers discovered a Wal-Mart bag underneath a blanket

underneath the backseat of Hiestand’s truck containing two bags of grass seed

with Dollar General price stickers on them, two boxes of medicine, two air

fresheners, and four scented candle refills; that there were no Dollar General

receipts in the bag or Dollar General shopping bags in the truck; that employees of

Dollar General were able to scan the items, which indicated they had come from

that Dollar General store; that there were empty spaces on the shelves where the



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items would have been located in the Dollar General store; and, that Hiestand told

Sergeant Miller that she had purchased the items the previous Thursday when she

was at work, but that the schedule indicated she had not worked that day.

Although Hiestand testified that she had purchased the grass seed a week prior to

the incident, that she had receipts for some of the items, and that there were empty

spots on the shelves because they had not yet been restocked, and presented

testimony from her mother that she accompanied her to purchase the grass seed

and that she kept the medicine in her truck so her child would not misuse it, we

emphasize that the weight to be given to the evidence and the credibility of

witnesses are primarily reserved for the trier of fact. State v. DeHass (1967), 10

Ohio St.2d 230, paragraph one of the syllabus. Here, the trial court chose to

believe Bogan’s and Sergeant Miller’s testimony over Hiestand’s and Black’s

testimony. We cannot find that, in weighing all of the evidence, the fact finder

“clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered,” Thompkins, 78 Ohio St.3d at

387, particularly given that the receipts Hiestand provided were Wal-Mart receipts

and were dated in February and early March, and she offered no explanation why

she had kept all of the items in her vehicle for months. Thus, we find that

Hiestand’s conviction was not against the manifest weight of the evidence.

      {¶13} Accordingly, we overrule Hiestand’s assignment of error.


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       {¶14} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

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

/jlr




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