[Cite as State v. Johnson, 2012-Ohio-5450.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                              :   JUDGES:
STATE OF OHIO                                 :   Patricia A. Delaney, P.J.
                                              :   John W. Wise, J.
                         Plaintiff-Appellee   :   Julie A. Edwards, J.
                                              :
-vs-                                          :   Case No. 2012 CA 0055
                                              :
                                              :
CHRISTINA JOHNSON                             :   OPINION

                    Defendant-Appellant




CHARACTER OF PROCEEDING:                           Criminal Appeal from Massillon
                                                   Municipal Court, Stark County, Case
                                                   No. 2011 CRB 2221

JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            November 13, 2012

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

ROBERT A. ZEDELL                                   JACOB T. WILL
Massillon Law Department                           116 Cleveland Ave., N.W.
Two James Duncan Plaza                             Suite 808
Massillon, Ohio 44646                              Canton, Ohio 44702
[Cite as State v. Johnson, 2012-Ohio-5450.]


Edwards, J.

        {¶1}     Appellant, Christina Johnson, appeals a judgment of the Massillon

Municipal Court convicting her of one count of theft (R.C. 2913.02) and sentencing her

to 180 days in jail. Appellee is the State of Ohio.

                                   STATEMENT OF FACTS AND CASE

        {¶2}     During the afternoon of September 15, 2012, Andrew Davis and Michael

Poland had left their apartment building in Massillon, Ohio, to get groceries. Michael

stopped at his place of employment to pick up his pay, which was $220 in cash. When

they returned, they began carrying the groceries upstairs to Michael’s apartment.

Michael laid his money, cigarettes, food stamp card and receipts on a step near the

mailboxes in the building.

        {¶3}     While they were unloading the groceries, appellant came to the building,

where she was also a resident. Michael looked down the stairs and saw appellant take

his money. Andrew, who was unloading groceries outside, saw appellant stoop down

and pick something up from the stairs.

        {¶4}     Appellant left the building and got in the passenger seat of a car. Michael

chased the vehicle, yelling for the car to stop. The driver of the vehicle did not stop the

car. Michael called the police.

        {¶5}     Appellant was charged with one count of theft. The case proceeded to

jury trial in the Massillon Municipal Court.          She was convicted as charged and

sentenced to 180 days incarceration, fined $500.00 and ordered to pay restitution in the

amount of $220.00.

        {¶6}     She assigns a single error on appeal:
Stark County App. Case No. 2012 CA 0055                                                 3


       {¶7}   “THE DEFENDANT’S CONVICTION FOR ONE COUNT OF THEFT IN

VIOLATION OF R.C. 2913.02 WAS AGAINST THE MANIFEST WEIGHT AND

SUFFICIENCY OF THE EVIDENCE.”

       {¶8}   In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of

witnesses, and determines whether in resolving conflicts in 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-Ohio-52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485

N.E.2d 717 (1983).

       {¶9}   An appellate court's function when reviewing the sufficiency of the

evidence is to determine 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, 574

N.E.2d 492, paragraph two of the syllabus (1991).

       {¶10} “Theft is defined by R.C. 2913.02:

       {¶11} “(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:

       {¶12} “(1) Without the consent of the owner or person authorized to give

consent[.]”
Stark County App. Case No. 2012 CA 0055                                                    4


       {¶13} Davis testified that he saw appellant stoop down and pick something up

on the stairs, and earlier he saw Poland place his money on the stairs. Poland testified

that from the top of the stairs, he looked down and saw appellant take his money and

leave the building. This is sufficient evidence, if believed by the jury, to support a

finding of guilt.

       {¶14} Appellant argues that Davis was 15-20 feet away from the stairs and at

“an impossible angle” to have seen the offense. She further argues that he watched her

walk past him without trying to stop her after the theft and that he has a prior record,

impugning his credibility.      She also argues that Poland could not have seen the

stairway from his apartment where he was putting away groceries, and that his

testimony differed from his police statement regarding the race of the driver of the

vehicle in which appellant left the apartment building.

       {¶15} Both witnesses testified that they were in a position to observe appellant

take the money from the stairs.      Counsel cross-examined both witnesses concerning

their location and ability to see the stairs, and both testified that they were in a position

where the stairway was visible. Counsel cross-examined Poland regarding the

inconsistency in his statement regarding the race of the driver of the vehicle. Further,

the jury was aware of Davis’s prior record. We cannot find that the jury lost its way in

finding appellant guilty of theft.
Stark County App. Case No. 2012 CA 0055                                      5


      {¶16} The assignment of error is overruled.

      {¶17} The judgment of the Massillon Municipal Court is affirmed.




By: Edwards, J.

Delaney, P.J. and

Wise, J. concur

                                                 ______________________________



                                                 ______________________________



                                                 ______________________________

                                                             JUDGES

JAE/r0911
[Cite as State v. Johnson, 2012-Ohio-5450.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
CHRISTINA JOHNSON                                :
                                                 :
                        Defendant-Appellant      :       CASE NO. 2012 CA 0055




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Massillon Municipal Court, Stark County, is affirmed. Costs assessed

to appellant.




                                                     _________________________________


                                                     _________________________________


                                                     _________________________________

                                                                  JUDGES
