[Cite as State v. Hunt, 2019-Ohio-2352.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      DARKE COUNTY

 STATE OF OHIO                                  :
                                                :
         Plaintiff-Appellee                     :   Appellate Case No. 2018-CA-9
                                                :
 v.                                             :   Trial Court Case No. 2018-CRB-001-
                                                :   589
 JASON L. HUNT                                  :
                                                :   (Criminal Appeal from
         Defendant-Appellant                    :    Municipal Court)
                                                :

                                           ...........

                                           OPINION

                             Rendered on the 14th day of June, 2019.

                                           ...........

JESSE J. GREEN, Atty. Reg. No. 0040265, Darke County Prosecutor’s Office, Appellate
Division, 504 S. Broadway, Greenville, Ohio 45331
       Attorney for Plaintiff-Appellee

P.J. CONBOY, II, Atty. Reg. No. 0070073, 5613 Brandt Pike, Huber Heights, Ohio 45424
      Attorney for Defendant-Appellant

                                           .............




TUCKER, J.
                                                                                       -2-




       {¶ 1} Jason L. Hunt was found guilty of theft, a first-degree misdemeanor, after a

bench trial in the Darke County Municipal Court. Hunt appeals from his conviction,

claiming that his conviction was based on insufficient evidence and against the manifest

weight of the evidence and that the trial court erred in admitting certain testimony. For

the following reasons, the trial court’s judgment will be affirmed.

                           I. Factual and Procedural History

       {¶ 2} The State presented three witnesses at trial: Brad Flora, Director of Finance

and Accounting at Darke Rural Electric; Mark Heft, a safety and engineering technician

at Darke Rural Electric; and Deputy Jay Pearson of the Darke County Sheriff’s

Department. The defense did not call any witnesses. The evidence at trial established

the following facts.

       {¶ 3} Tracey Frech had an account with Darke Rural Electric for electric service at

the residence located at 568 State Route 121. On April 17, 2018, a Darke Rural Electric

employee went to the residence for the purpose of disconnecting the electricity due to

nonpayment. Flora indicated that Darke Rural Electric does this as part of its standard

procedure when a customer’s payment is late. Hillarie Frech, Tracey’s daughter, was

home when the Darke Rural Electric employee arrived, and she (Hillarie) indicated that

she wanted to enter into a payment plan. Hillarie agreed to make four weekly payments

of $154.57, and she made the first payment by phone that day. The payment agreement,

signed by Hillarie, was entered into evidence. On cross-examination, Flora confirmed

that Hunt’s name was not on the residential account, and he did not sign the payment

agreement.
                                                                                         -3-


       {¶ 4} Frech failed to make the April 24, 2018 payment, as required by the payment

agreement.    Darke Rural Electric considered the agreement to be broken, and an

employee went to the residence the following day to disconnect service.           This was

accomplished by pulling the meter out and tilting it to a certain degree so the connections

would not be made. Flora indicated that customers usually call due to their lack of

electricity, and if customers do not call within a few days or a week, the company typically

will go back and check to see if someone is living there, if something was done by the

customer to reconnect service, and the like. No one called.

       {¶ 5} On May 10, 2018, a Darke Rural Electric employee when back to Frech’s

property and saw that the meter seal had been broken and the meter had been put back.

Darke Rural Electric determined the amount of electricity that had been used, and it added

that amount plus a $100 tampering charge to Frech’s account. The employee also put

a “plastic blank” in the meter, which would not allow any connections to be made. Tracey

Frech paid the $100 tampering charge.

       {¶ 6} On the morning of May 16, 2018, Mark Heft checked the meter and noticed

that the wire seal on the bottom had been broken. Heft removed the seal, opened the

lid to the meter and pulled out the plastic blank. He then noticed that someone had wired

metal strips to feed power from the top of the meter base down to the bottom and then

into the house. As Flora described it, the plastic blank had been “jumped” with metal

strips that allowed for the flow of electricity. As a result, the house was receiving power

without its being metered. To disconnect power again, Heft installed a new plastic device

and then pulled the fuse from the transformer.

       {¶ 7} Because the meter had been bypassed and the exact amount of electricity
                                                                                            -4-


had not be recorded, Heft calculated the value of the electricity for seven days using an

average 191.45 kilowatt hours times the rate. The value of the electricity was $27.80.

       {¶ 8} Heft testified that working with the meter was dangerous, and the person who

wired the bypass had “mechanical skill and savvy.” Heft indicated that there was a

significant risk of electrocution for someone who tampers with a meter base. However,

he stated on cross-examination that he did not think that the individual needed training or

experience as an electrician to bypass the meter.

       {¶ 9} Heft testified that he never went back to the residence after May 16, but he

could see that the fuse remained out of the transformer when he happened to drive by.

Heft stated that he did notice a generator “sitting beside the house beside the meter base.

Sometimes it was covered.”

       {¶ 10} At 11:39 a.m. on May 16, Flora received a phone call from an individual who

identified himself as Hunt and gave his address. (Flora did not articulate the address

that had been given, but the flow of the prosecutor’s questioning suggested that the topic

of conversation was 568 State Route 121.1) The man told Flora that a new meter box

had been installed, that Darke Rural Electric had no right to be on the residential property,

and that the property no longer received service from Darke Rural Electric. The man

indicated that the property was receiving service from Dayton Power and Light.

       {¶ 11} The following day, Deputy Pearson responded to Darke Rural Electric on a



1  Prior to trial, Hunt filed a motion in limine, seeking to prevent the State from introducing
evidence of the telephone call on the ground that Flora could not authenticate Hunt’s
voice and thus, there was insufficient basis to authenticate that Hunt made the call. The
trial court overruled the motion, reserving the issue for trial. When the State asked Flora
at trial whether he had received a call from Hunt, Hunt objected. The trial court overruled
the objection.
                                                                                      -5-


dispatch that the company needed to file a report regarding tampering with a meter base.

Pearson spoke to three Darke Rural Electric employees, including Heft and Flora.

Deputy Pearson testified that he was told that Hunt and Hillarie Frech lived at the

residence, but the account was in Tracey Frech’s name.

      {¶ 12} Deputy Pearson went to house several times to locate Hunt, but he was

unsuccessful. After Hunt was arrested on unrelated charges, Pearson spoke to Hunt at

the jail. Hunt told the deputy that only he (Hunt) and Hillarie lived at the residence.2

Hunt denied to Pearson that he had tampered with the meter base. When asked who

would have tampered with the meter base, Hunt told the deputy that he did not know.

Pearson testified that Hunt said that he had several friends who came and went and that

Hillarie “would not have messed with it.” Hunt admitted to Pearson that he had hooked

up a generator to the breaker panel.

      {¶ 13} After hearing the evidence, the trial court found Hunt guilty of theft. The

court sentenced him to 90 days in jail of which 87 were suspended, a $500 fine of which

$250 was suspended, and restitution of $27.80. The trial court stayed the execution of

the sentence pending appeal.

      {¶ 14} Hunt appeals from his conviction, raising two assignments of error.

                II. Sufficiency and Manifest Weight of the Evidence

      {¶ 15} In his first assignment of error, Hunts claims that the trial court erred in

convicting him of theft. He argues that his conviction was based on insufficient evidence

and was against the manifest weight of the evidence.



2 As discussed in detail, below, defense counsel objected to the deputy’s testimony
regarding Hunt’s residence. The trial court overruled the objection.
                                                                                          -6-


       {¶ 16} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678

N.E.2d 541 (1997). The relevant inquiry is whether any rational finder of fact, after

viewing the evidence in a light most favorable to the State, could have found the essential

elements of the crime proven beyond a reasonable doubt. State v. Dennis, 79 Ohio

St.3d 421, 430, 683 N.E.2d 1096 (1997). A guilty verdict will not be disturbed on appeal

unless “reasonable minds could not reach the conclusion reached by the trier-of-fact.”

Id.

       {¶ 17} In contrast, when reviewing an argument challenging the weight of the

evidence, an appellate court reviews the entire record, weighs the evidence and all

reasonable inferences, considers the credibility of witnesses, and determines whether, in

resolving conflicts in the evidence, the finder 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. Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983).

       {¶ 18} Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder’s decisions whether, and to what extent, to credit the testimony of

particular witnesses.   State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL

476684 (Aug. 22, 1997). The fact that the evidence is subject to different interpretations

does not render the conviction against the manifest weight of the evidence. Wilson at

¶ 14. A judgment of conviction should be reversed as being against the manifest weight
                                                                                           -7-

of the evidence only in exceptional circumstances. Martin at 175.

       {¶ 19} In reviewing challenges based on the sufficiency and/or manifest weight of

the evidence, we are required to consider all of the evidence admitted at trial, regardless

of whether it was admitted erroneously. State v. Brewer, 121 Ohio St.3d 202, 2009-

Ohio-593, 903 N.E.2d 284; State v. Rosales, 2d Dist. Montgomery No. 27117, 2018-Ohio-

197, ¶ 16, citing State v. Johnson, 2015-Ohio-5491, 55 N.E.3d 648, ¶ 95 (2d Dist.).

       {¶ 20} Hunt was convicted of theft in violation of R.C. 2913.02(A), a first-degree

misdemeanor. Of relevance, R.C. 2913.02(A) provides: 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[.]”

       {¶ 21} On appeal, Hunt argues that he was not the owner of the residence, he was

not the account holder on the electric service, there were no witnesses to the tampering

of the meter, Hunt denied tampering with the meter, there was no evidence that Hunt had

the technical skills to bypass the meter, and there was no physical evidence to indicate

that Hunt was the perpetrator. Hunt further argues that there was “no credible evidence”

that he resided at the residence.

       {¶ 22} Viewing the facts in the light most favorable to the State, there was sufficient

evidence that Hunt committed theft of the electric services. Testimony from Darke Rural

Electric employees established that service at the residence located at 568 State Route

121 was disconnected twice due to non-payment, and that someone twice bypassed

Darke Rural Electric’s actions and reconnected electrical services to the house. Mark

Heft noticed on May 16, 2018 that the meter had been bypassed the second time. He
                                                                                         -8-


testified that someone had wired metal strips to feed power from the top of the meter base

down to the bottom and then into the house. Due to these actions, the house received

power from Darke Rural Electric without its being metered.         Accordingly, there was

ample evidence that someone, with purpose to deprive Darke Rural Electric of electricity

services, knowingly exerted control over the company’s electric services without the

company’s consent.

       {¶ 23} The State presented evidence that Hillarie Frech, the daughter of the Darke

Rural Electric account holder, resided at 568 State Route 121, that Hunt was Frech’s

boyfriend, and that Hunt resided there with her. When power was disconnected from the

residence on May 16, someone identifying himself as Hunt called Darke Rural Electric to

complain. Although Hunt denied tampering with the meter, he acknowledged hooking

up a generator to the breaker box so the house would have electricity. Hunt indicated

that Hillarie would not have tampered with the meter. Construing this evidence in the

State’s favor, the trial court could have reasonable concluded that Hunt was the individual

who tampered with the meter and stole the electricity.

       {¶ 24} Moreover, we cannot conclude that Hunt’s conviction was against the

manifest weight of the evidence. It was the province of the trial court, as the finder of

fact, to evaluate the witnesses’ credibility. In reaching its verdict, the court was free to

believe all, part, or none of the testimony of each witness and to draw reasonable

inferences from the evidence presented. E.g., State v. Baker, 2d Dist. Montgomery No.

25828, 2014-Ohio-3163, ¶ 28. Considering all of the evidence at trial, the trial court

reasonably found Hunt guilty of theft.

       {¶ 25} Hunt’s first assignment of error is overruled.
                                                                                          -9-


                                 III. Evidentiary Matters

       {¶ 26} In his second assignment of error, Hunt claims that the trial court erred in

allowing the deputy to testify about Hunt’s statement that he (Hunt) resided at the house

with Hillarie Frech.   Hunt argues that his statements to Deputy Pearson were not

recorded, and the specific statement about his residing at the home with Hillarie was not

disclosed to defense counsel prior to trial.

       {¶ 27} A trial court has broad discretion to admit or exclude evidence, and its

exercise of that discretion will not be disturbed on appeal absent an abuse of discretion.

State v. Norris, 2d Dist. Montgomery No. 26147, 2015-Ohio-624, ¶ 14. “A trial court

abuses its discretion when it makes a decision that is unreasonable, unconscionable, or

arbitrary.” State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.

       {¶ 28} As an initial matter, Hunt’s statements to the deputy constituted admissions

of a party opponent, which are not hearsay (Evid.R.801(D)(2)), and they were admissible

against him as substantive evidence of his guilt.        There is no requirement that a

defendant’s statements be recorded in order to be admissible.

       {¶ 29} Under Crim.R. 16(B)(1), the prosecuting attorney must provide defendant’s

counsel with “[a]ny written or recorded statement by the defendant or a co-defendant,

including police summaries of such statements, and including grand jury testimony by

either the defendant or co-defendant[.]”       The trial court has discretion to regulate

discovery in a manner consistent with Crim.R. 16. Crim.R. 16(L); State v. Mobley, 2d

Dist. Montgomery No. 26858, 2016-Ohio-4579, ¶ 23. If it comes to the court’s attention

that a party has not complied with Crim.R. 16 or the court’s discovery order, the trial court

may “order such party to permit the discovery or inspection, grant a continuance, or
                                                                                          -10-


prohibit the party from introducing in evidence the material not disclosed, or it may make

such other order as it deems just under the circumstances.” Crim.R. 16(L)(1).

       {¶ 30} The Ohio Supreme Court has held that “[a] trial court must inquire into the

circumstances surrounding a discovery rule violation and, when deciding whether to

impose a sanction, must impose the least severe sanction that is consistent with the

purpose of the rules of discovery.” Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d

1138 (1987), paragraph two of the syllabus; see State v. Pelfrey, 2d Dist. Montgomery

No. 27474, 2018-Ohio-2427, ¶ 50. This holding applies equally to discovery violations

committed by the State and by the defense. State v. Darmond, 135 Ohio St.3d 343,

2013-Ohio-966, 986 N.E.2d 971, ¶ 42. In exercising its discretion when the discovery

violation is committed by the State, trial courts should consider: (1) whether the failure to

disclose was a willful violation of Crim.R. 16, (2) whether foreknowledge of the

undisclosed material would have benefitted the accused in the preparation of a defense,

and (3) whether the accused was prejudiced. Darmond at ¶ 35, citing State v. Parson,

6 Ohio St.3d 442, 453 N.E.2d 689 (1983).

       {¶ 31} At trial, defense counsel objected when Deputy Pearson testified that Hunt

admitted to living at the residence with Hillarie Frech. Defense counsel argued that the

statement was not provided to defense counsel in accordance with Crim.R. 16. The

parties agreed that the prosecutor had provided Deputy Pearson’s summary of his

conversation with Hunt to the defense counsel. The State acknowledged, however, that

the summary did not include Hunt’s purported statement regarding his residence. The

prosecutor argued that “the State should be given a certain amount of leeway given the

nature of the Officer’s narrative.” The trial court overruled the objection.
                                                                                        -11-


       {¶ 32} We find no abuse of discretion in the trial court’s allowance of the deputy’s

testimony regarding Hunt’s statement of his residence. The State complied with its

obligation under Crim.R. 16 to provide defense counsel with the deputy’s summary of

Hunt’s oral statements. The deputy’s failure to include Hunt’s alleged statement that he

resided at Hillarie’s residence could have been, but was not, the subject of cross-

examination and a basis for challenging the deputy’s credibility regarding that specific

statement. Pearson was questioned on cross-examination about the State’s lack of a

recording of Pearson’s interview with Hunt and alleged deficiencies in Pearson’s

investigation of Darke Rural Electric’s complaint.

       {¶ 33} Hunt’s second assignment of error is overruled.

                                     IV. Conclusion

       {¶ 34} The trial court’s judgment will be affirmed.

                                     .............



HALL, J., concurs.

FROELICH, J., dissents:

       {¶ 35} Viewing the facts in the light most favorable to the State, there was ample

evidence from which the trial court could find beyond a reasonable doubt that someone

committed theft of the electric services. Testimony from Darke Rural Electric employees

established that service at the residence located at 568 State Route 121 was

disconnected twice due to non-payment, and that someone twice bypassed Darke Rural

Electric’s actions and reconnected electric service to the house. Mark Heft noticed on

May 16, 2018 that the meter had been bypassed the second time. He testified that
                                                                                       -12-


someone had wired metal strips to feed power from the top of the meter base down to the

bottom and then into the house. Due to these actions, Darke Rural Electric provided

electricity to the house that was not metered and for which it was not paid. Accordingly,

there was sufficient evidence that someone, with purpose to deprive Darke Rural Electric

of electricity services, knowingly exerted control over the company’s electric services

without the company’s consent.

      {¶ 36} However, I would find that there was insufficient evidence to establish

beyond a reasonable doubt that Hunt was the individual who committed the theft. The

State presented evidence that Hillarie Frech, the daughter of the Darke Rural Electric

account holder, resided at 568 State Route 121, that Hunt was Frech’s boyfriend, and

that Hunt resided there with her.     On May 16, after Heft pulled the fuse from the

transformer and power again was disconnected from the residence, someone identifying

himself as Hunt called Darke Rural Electric to complain. However, the phone call merely

established that Hunt (assuming that he made the phone call) believed that a new meter

box had been installed and that power was being supplied by Dayton Power & Light

(DP&L); the phone call did not establish Hunt knew the home had been receiving power

illegally or that he was the one who had “jumped” the meter. The State also presented

evidence that Hunt had told Deputy Pearson that he had hooked up a generator to the

breaker box, and Heft testified that he saw a generator outside the house after the fuse

had been removed from the transformer. However, there is nothing illegal about hooking

up a generator to supply electricity once electric service has been disconnected, nor does

that action imply that Hunt had the need or the technical skills to safely circumvent the

disabling device that Darke Rural Electric had placed on the electric meter.
                                                                                          -13-


       {¶ 37} Hunt denied tampering with the meter, and he told the deputy that Hillarie

would not have tampered with the meter. As a resident in the house, Hunt had a motive

to reconnect the electricity unlawfully and an opportunity to do so. However, the same

is true of Hillarie, who had agreed to make payments to Darke Rural Electric but then

defaulted, or perhaps Tracey Frech, who was the account holder and who paid the

tampering charge.

       {¶ 38} It is not enough that the State proved that Hunt was one of two or more

people who could have committed the offense. As stated by the Fourth District, “[a] fifty

percent possibility does not satisfy the standard of beyond a reasonable doubt.” State

v. Miley, 114 Ohio App.3d 738, 744, 684 N.E.2d 102 (4th Dist.1995). In Miley, the Fourth

District reversed a father’s conviction for felony child endangering as based on insufficient

evidence when the evidence established that the father was one of two caregivers and

there was no direct evidence that father had abused his infant daughter, failed to protect

her, or knew of the abuse. The appellate court held that circumstantial evidence that the

father and the mother were the only ones with access to the child did not prove beyond a

reasonable doubt that the father was the one who abused the child. Id. at 745.

       {¶ 39} While it is very possible, or perhaps even probable, that Hunt was the

perpetrator, the State presented insufficient evidence from which the fact-finder could

determine, beyond a reasonable doubt, whether it was Hunt, Hillarie, or another person

on Hillarie or Hunt’s behalf who tampered with the electric meter and committed theft of

electricity. Accordingly, I dissent.

                                       .............
                                 -14-




Copies sent to:

Jesse J. Green
P.J. Conboy, II
Hon. Julie L. Monnin
James S. Detling, Acting Judge
