[Cite as In re E.A., 2016-Ohio-7281.]


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

IN RE: E.A.                                           C.A. No.       28106



                                                      APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
                                                      COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
                                                      CASE No.   DL 15-04-0593

                                 DECISION AND JOURNAL ENTRY

Dated: October 12, 2016



        WHITMORE, Judge.

        {¶1}     Appellant E.A. appeals a judgment of the Summit County Court of Common

Pleas, Juvenile Division, that adjudicated her delinquent for theft. This Court affirms.

                                                 I.

        {¶2}     According to Venicia Sales, she was managing an accessory store at Chapel Hill

Mall on March 4, 2015, when E.A. and another girl entered the store. As E.A. browsed the

merchandise, Ms. Sales saw E.A. put a phone case and a pair of clip-on earrings in her pocket.

After E.A. exited the store, Ms. Sales stopped her in the mall and asked her to return to the store.

When they got back to the store, Ms. Sales saw E.A. take the phone case out of a pocket and put

it on a display case. E.A. also handed Ms. Sales the pair of earrings.

        {¶3}     A police officer subsequently filed a complaint against E.A., alleging that she

appeared to be a delinquent child for committing acts that were sufficient to establish the

elements of theft under R.C. 2913.02. Following an adjudicatory hearing, a magistrate found
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that, although E.A. had taken the items from the store, the State failed to present any evidence

that it was without consent. The State objected to the magistrate’s decision, arguing that Ms.

Sales’s actions in retrieving the items established that E.A. had taken them without consent. The

juvenile court sustained the objection, and adjudicated E.A. delinquent. E.A. has appealed,

assigning two errors.

                                               II.

                                 ASSIGNMENT OF ERROR I

       E.A.’S ADJUDICATION / CONVICTION FOR THEFT WAS NOT
       SUPPORTED BY SUFFICIENT EVIDENCE, AND MUST BE REVERSED.

       {¶4}    In her first assignment of error, E.A. has argued that her adjudication of

delinquency is not supported by sufficient evidence. “[T]his Court applies the same sufficiency

* * * standard[ ] of review in a juvenile delinquency case that it applies in an adult criminal

appeal due to the inherently criminal aspects of delinquency proceedings * * *.” (Internal

quotations and citations omitted.) In re V.H., 9th Dist. Summit No. 26894, 2013–Ohio–5408, ¶

9.

       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,
       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. “The test for sufficiency

requires a determination of whether the State has met its burden of production at trial.” State v.

Edwards, 9th Dist. Summit No. 25679, 2012–Ohio–901, ¶ 7.             “Circumstantial and direct

evidence are of equal evidentiary value.” State v. Zaffino, 9th Dist. Summit No. 21514, 2003-

Ohio-7202, ¶ 25.
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        {¶5}   R.C. 2913.02(A)(1), which prohibits theft, provides 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.” According to E.A., there is no evidence that she exerted control over the cell

phone case and earrings because she never left the accessory store. Ms. Sales testified, however,

that E.A. left the store with the items in her pocket and walked toward a jewelry store, which is

where she stopped E.A. and her friend. A mall security officer also testified that she saw Ms.

Sales stop the girls about 20 to 25 feet from the accessory store.

        {¶6}   E.A. has also argued that the evidence regarding control is insufficient because

the security officer heard Ms. Sales tell E.A. and her friend after she stopped them in the mall

that she “thought” they had either misplaced the phone case or taken it. Just because the

statement Ms. Sales made to E.A. as she tried to persuade her to return to the accessory store

contained ambiguity, however, does not negate the circumstantial evidence that E.A. knowingly

obtained or exerted control over the phone case and earrings with purpose to deprive the store of

them.

        {¶7}   E.A. has also argued that there is insufficient evidence to support her adjudication

because she had no use for the items that she took from the accessory store. E.A. testified that

she does not own a phone that would fit in the case she allegedly took and that her ears are

pierced, meaning she did not need clip-on earrings. A person does not have to be able to utilize

an item, however, in order to intend to deprive the owner of it.

        {¶8}   E.A. has further argued that there is no evidence that she took the items without

consent, pointing to the magistrate’s decision. According to E.A., because Ms. Sales saw her put

the items in her pocket and did not stop her right then, it demonstrates that her actions were not
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“[w]ithout * * * consent” under R.C. 2913.02(A)(1). Ms. Sales testified, however, that the

company policy of the accessory store is not to stop shoplifters within the store because they are

“not technically a shoplifter until after they have crossed the lease line[.]” She, therefore, did not

stop E.A. until E.A. left the store, which signaled that E.A. intended to deprive the store of the

items.

         {¶9}   Finally, E.A. has argued that the security officer was unable to verify whether

E.A. took any items from the store, testifying that she only “believed” that she saw E.A. produce

an item from her pocket. E.A., however, has misstated the security officer’s testimony. The

security officer testified unequivocally that she saw E.A. remove something from her pocket

after returning to the store with Ms. Sales. The only uncertainty in her testimony was about the

identity of the item. The security officer “believe[d]” the item was a pair of clip-on earrings.

         {¶10} Upon review of the record, we conclude that, viewing the evidence in a light most

favorable to the State, there was sufficient evidence to support E.A.’s adjudication of

delinquency. E.A.’s first assignment of error is overruled.

                                  ASSIGNMENT OF ERROR II

         E.A.’S CONVICTION FOR THEFT WAS AGAINST THE MANIFEST
         WEIGHT OF THE EVIDENCE, AND SHOULD BE REVERSED.

         {¶11} In her second assignment of error, E.A. has argued that her adjudication of

delinquency is against the manifest weight of the evidence. “[T]his Court applies the same * * *

manifest weight standard [ ] of review in a juvenile delinquency case that it applies in an adult

criminal appeal due to the inherently criminal aspects of delinquency proceedings * * *.”

(Internal quotations and citations omitted.) In re V.H., 2013–Ohio–5408, at ¶ 9. When

considering whether an adjudication of delinquency is against the manifest weight of the

evidence, this Court must:
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       review the entire record, weigh the evidence and all reasonable inferences,
       consider the credibility of witnesses and determine whether, in resolving conflicts
       in the evidence, the trier of fact 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for

the exceptional case in which the evidence weighs heavily against the adjudication. See id.

       {¶12} E.A. has argued that she is not delinquent of theft because she did not leave the

store with items in her pocket, there was no testimony from the police officers who were

allegedly present, she had no reason to steal a phone case that did not fit her phone or earrings

that would not replace the ones she had lost, and the security officer who testified had no direct

knowledge of the alleged theft and contradicted Ms. Sales’s testimony. E.A. has noted that she

testified that she never left the store with any items and that the police officers stopped her inside

the accessory store and searched her person. According to E.A., if the police officers had

testified, it would have resolved the discrepancies between Ms. Sales’s testimony and her own.

       {¶13} After hearing the conflicting testimony, the magistrate chose to believe Ms.

Sales’s testimony regarding whether E.A. left the store with the items.                  “Credibility

determinations are primarily within the province of the trier of fact.” State v. Just, 9th Dist.

Wayne No. 12CA0002, 2012-Ohio-4094, ¶ 42. The magistrate was “in the best position to

evaluate the credibility of witnesses, and this Court will not overturn the trial court’s verdict on a

manifest weight of the evidence challenge simply because the trial court chose to believe certain

witnesses’ testimony over the testimony of others.” State v. Campanalie, 9th Dist. Summit No.

26383, 2013-Ohio-3509, ¶ 21, quoting State v. Ross, 9th Dist. Wayne No. 12CA0007, 2013-

Ohio-522, ¶ 16. Upon review of the record, we cannot conclude that the juvenile court clearly

lost its way when it accepted the magistrate’s finding that E.A. left the store with the items over
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E.A.’s version of the events. Accordingly, we conclude that E.A.’s adjudication of delinquency

is not against the manifest weight of the evidence. Her second assignment of error is overruled.

                                                III.

       {¶14} E.A.’s assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas, Juvenile Division, is affirmed.

                                                                              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 Summit, 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.




                                                       BETH WHITMORE
                                                       FOR THE COURT
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MOORE, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

CARA K. FORD, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
