[Cite as State v. Haven, 2019-Ohio-973.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  :   JUDGES:
                                                :
                                                :   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                      :   Hon. Patricia A. Delaney, J.
                                                :   Hon. Craig R. Baldwin, J.
 -vs-                                           :
                                                :   Case No. 18-COA-025
                                                :
 PAULA M. HAVEN                                 :
                                                :
                                                :
        Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Ashland Municipal
                                                    Court, Case No. 17CRB01204



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             March 18, 2019




APPEARANCES:

 For Plaintiff-Appellee:                            For Defendant-Appellant:

 ANDREW N. BUSH                                     JOSEPH P. KEARNS, JR.
 Assistant Director of Law                          P.O. Box 345
 City of Ashland                                    153 W. Main St.
 1213 E. Main St.                                   Ashland, OH 44805
 Ashland, OH 44805
Ashland County, Case No. 18-COA-025                                                     2



Delaney, J.

       {¶1} Defendant-Appellant Paula M. Haven appeals the May 18, 2018 sentencing

entry of the Ashland Municipal Court. Plaintiff-Appellee is the State of Ohio.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} On August 25, 2017, Defendant-Appellant Paula M. Haven parked her

vehicle outside Walmart, located in Ashland, Ohio. She, with her two children, entered

the Walmart from the Tire Lube Express entrance. She took a shopping cart, placed her

purse in the cart, and went to the men’s apparel department. Josh Smith is the Loss

Prevention Associate for the Ashland Walmart. He observed Haven in the men’s apparel

department. He was dressed in plain clothes and stood 15 to 20 feet away from Haven in

such away she could not see him. Smith observed Haven pick out items of men’s clothing,

remove the hangers from the items, and roll the items up. She placed the rolled-up clothes

in the shopping cart next to her purse. Smith could not describe the clothing Haven rolled

up and placed in the cart. He estimated she rolled up more than two but less than six

items of clothing.

       {¶3} Haven left the men’s clothing department and Smith followed her. Haven

went to the toy department, where her children were located, and then she went to the

shoe department. While in the shoe department, Smith observed Haven put the rolled-up

clothes from the shopping cart into her purse. Smith was concerned that Haven was not

going to pay for the items she placed in her purse, so he continued to follow her.

       {¶4} Haven went to different departments within the Walmart and placed

merchandise in her shopping cart. Haven went back to the toy department and gathered

her children. She went to the pharmacy department. Smith observed Haven ask the
Ashland County, Case No. 18-COA-025                                                          3


pharmacist for boxes of Sudafed. Haven paid for the Sudafed and the merchandise in her

shopping cart, but Smith did not see Haven remove the rolled-up clothing items she

placed in her purse and pay for them.

       {¶5} After she made her purchase, Haven went to the restroom. Smith sent a

female Walmart employee into the restroom and the employee did not observe any

merchandise in the restroom.

       {¶6} Haven left the store through the automotive department exit. When Haven

left the store, Smith stopped her just outside the exit door in the parking lot, stating that

he needed to speak with her regarding the merchandise in her purse. Haven responded,

“no” and she proceeded to her car. Smith observed Haven walk quickly to her car. She

put the children in the car and accidently left her car keys in the car door after she got into

her car. She retrieved the keys and drove away.

       {¶7} Smith reviewed the security camera recordings within the Walmart. The

security camera recordings did not capture Haven concealing merchandise in her purse.

Smith observed Haven place the merchandise in her purse while she was in the shoe

department. There was no security camera in the shoe department.

       {¶8} Smith contacted the City of Ashland Police Department and Officer Cody

Hying responded. He took the report from Smith about Haven’s alleged theft and

forwarded it to the City of Ashland Law Department for review.

       {¶9} Haven was charged with one count of Petty Theft, a first-degree

misdemeanor in violation of R.C 2913.02(A)(1). Haven entered a plea of not guilty and

the matter proceeded to a jury trial on May 17, 2018.
Ashland County, Case No. 18-COA-025                                                       4


       {¶10} At trial, Haven testified on her own behalf. Haven denied having placed any

unpaid merchandise in her purse or that she left the store with unpaid merchandise on

August 25, 2017. She testified that Josh Smith had a vendetta against her since he lost

the case against her in 2015. In 2015, Smith stopped Haven in the Ashland Walmart

because he observed Haven put merchandise in a reusable shopping bag and attempt to

leave the store. Haven stated that she was not trying to leave the store, but simply getting

a shopping cart from the store entrance. Haven was charged with petty theft and

possession of criminal tools. The matter went to trial and Haven was found not guilty of

both charges. Haven testified that Josh Smith has stopped her while she shopped in the

Walmart five or six times, asking to look in her purse. She always complied with his

requests because her children were not with her at those times. On August 25, 2017,

Haven testified that she did not comply with Smith’s request to look in her purse because

her children were with her. Smith testified that he has only stopped Haven twice, once in

2015 and in 2017.

       {¶11} The jury found Haven guilty of petty theft. The trial court sentenced Haven

to 30 days in jail, with 20 days suspended, and one year of probation. Haven was fined

$250.00 and ordered to pay court costs. (Sentencing Entry, May 18, 2018).

       {¶12} It is from this judgment Haven now appeals.

                              ASSIGNMENTS OF ERROR

       {¶13} Haven raises two Assignments of Error:

       {¶14} “I. THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.
Ashland County, Case No. 18-COA-025                                                        5


       {¶15} “II. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL.”

                                        ANALYSIS

                           I. Manifest Weight of the Evidence

       {¶16} Haven argues in her first Assignment of Error that her conviction for petty

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

       {¶17} 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, 678 N.E.2d 541 (1997),

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

Reversing a conviction as being against the manifest weight of the evidence and ordering

a new trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.

       {¶18} Haven was convicted of petty theft, less than $1,000, in violation of R.C.

2913.02(A)(1). The statute reads in pertinent part:

       (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;
Ashland County, Case No. 18-COA-025                                                         6


       {¶19} Haven argues the jury lost its way when it convicted her of petty theft. She

points to the lack of evidence that she purposely deprived Walmart by exerting control

over their property without paying. First, Smith was not able to identify what items Haven

allegedly took from the men’s apparel department. Second, there was no security footage

showing her place anything in her purse. Finally, the alleged stolen merchandise was

never recovered.

       {¶20} The lack of physical or video evidence required the jurors to largely

determine Haven’s innocence or guilt based on the credibility of the witnesses. “The

weight of the evidence concerns the inclination of the greater amount of credible evidence

offered in a trial to support one side of the issue rather than the other.” State v. Brindley,

10th Dist. Franklin No. 01AP-926, 2002-Ohio-2425, 2002 WL 1013033, ¶ 16. We defer to

the trier of fact as to the weight to be given the evidence and the credibility of the

witnesses. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), at paragraph one

of the syllabus. When assessing witness credibility, “[t]he choice between credible

witnesses and their conflicting testimony rests solely with the finder of fact and an

appellate court may not substitute its own judgment for that of the finder of fact.” State v.

Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986). “Indeed, the factfinder is free to

believe all, part, or none of the testimony of each witness appearing before it.” State v.

Pizzulo, 11th Dist. Trumbull No. 2009-T-0105, 2010-Ohio-2048, 2010 WL 1839440, ¶ 11.

Furthermore, if the evidence is susceptible to more than one interpretation, a reviewing

court must interpret it in a manner consistent with the verdict. Id.

       {¶21} Smith testified he observed Haven roll up clothing items from the men’s

apparel department, place the clothing in her shopping cart next to her purse, and then
Ashland County, Case No. 18-COA-025                                                           7


place the items in her purse while she was in the shoe department. Haven checked out

in the pharmacy department and did not pay for the items she placed in her purse. When

confronted by Smith, Haven would not let Smith look in her purse when Haven said at

other times, she let Smith look in her purse when asked. Haven went to her car and when

she got into her car, she left her car keys in the car door. She had to retrieve her car keys

to start her car. The jury could have determined Haven’s actions after she was accused

of theft pointed to her guilt.

        {¶22} The determination of witness credibility is left to the trier of fact. The jury in

this case found the testimony of Josh Smith more credible than Haven’s testimony. We

find no error for the jury to determine the testimony of Smith was more credible than

Haven to find Haven guilty of petty theft.

        {¶23} Haven’s first Assignment of Error is overruled.

                              II. Ineffective Assistance of Counsel

        {¶24} Haven contends in her second Assignment of Error that she received

ineffective assistance of trial counsel. We disagree.

        {¶25} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong    test.   Initially,    a   defendant   must    show     that   trial   counsel    acted

incompetently. See, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In

assessing such claims, “a court must indulge a strong presumption that counsel's conduct

falls within the wide range of reasonable professional assistance; that is, the defendant

must overcome the presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350 U.S.

91, 101, 76 S.Ct. 158 (1955). “There are countless ways to provide effective assistance
Ashland County, Case No. 18-COA-025                                                        8


in any given case. Even the best criminal defense attorneys would not defend a particular

client in the same way.” Strickland, 466 U.S. at 689. The question is whether counsel

acted “outside the wide range of professionally competent assistance.” Id. at 690.

       {¶26} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694.

       {¶27} Haven first argues defense counsel was ineffective for putting her on the

witness stand. She argues her testimony allowed the State to cross-examine her

concerning prior bad acts. The advice provided by a criminal defense lawyer to his or her

client regarding the decision to testify is “a paradigm of the type of tactical decision that

cannot be challenged as evidence of ineffective assistance.” State v. Nesbitt, 5th Dist.

Stark No. 2017CA00234, 2018-Ohio-4222, ¶ 48 quoting State v. Winchester, 8th Dist.

Cuyahoga No. 79739, 2002-Ohio-2130, ¶ 12, appeal not allowed, 96 Ohio St.3d 1512,

2002-Ohio-4950, 775 N.E.2d 855, citing Hutchins v. Garrison, 724 F.2d 1425, 1436

(C.A.4 1983), cert. denied, 464 U.S. 1065, 104 S.Ct. 750, 79 L.Ed.2d 207 (1984)

and Jones v. Murray, 947 F.2d 1106, 1116 (C.A.4, 1991), fn. 6; see also, State v. Essinger,

3rd Dist. Hancock No. 5-03-15, 2003-Ohio-6000, ¶ 41, appeal not allowed, 102 Ohio St.3d

1409, 2004-Ohio-1763, 806 N.E.2d 561. Nonetheless, a claim for ineffective assistance

of counsel may be successful if the record demonstrates the defendant's decision

whether or not to testify was the result of coercion. Id., citing Lema v. United States, 987

F.2d 48, 52–53 (C.A.1, 1993). Nothing in the record suggests Haven’s decision
Ashland County, Case No. 18-COA-025                                                      9


to testify was the result of coercion. A defendant in a criminal case has the due process

right to take the witness stand and to testify in his or her own defense. Rock v. Arkansas,

483 U.S. 44, 51, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). The record does not demonstrate

Haven did not choose to testify of her own free will, and she therefore cannot challenge

his decision to testify as ineffective assistance of counsel.

       {¶28} Haven also argues her trial counsel’s decision to raise at trial Haven’s 2015

acquittal for petty theft and possession of criminal tools was ineffective assistance of

counsel. During the cross-examination of Josh Smith, Haven’s counsel asked if he had

prior interactions with Haven. (T. 59). The State objected, arguing Smith’s prior

interactions with Haven were not relevant. (T. 61). Haven’s counsel argued that because

there was no video evidence of the alleged theft and no merchandise was recovered,

Smith was the State’s main witness. Haven’s counsel was attempting to show Smith’s

bias against Haven. (T. 62). The trial court stated it was concerned that counsel’s line of

questioning would open the door to Haven’s 2015 petty theft case, which could be

prejudicial to Haven. (T. 65-66). Trial counsel argued the fact pattern from the 2015 case

and the present case were different and Haven could testify to those issues. (T. 66). The

trial court allowed the line of questioning as to Smith’s prior encounters with Haven and

stated that it opened the door for the State to ask about the 2015 case. (T. 68).

       {¶29} Haven contends counsel’s strategy of demonstrating Smith’s bias towards

Haven opened the door to testimony regarding Haven’s prior bad acts, prejudicing Haven

in the eyes of the jury. Haven further argues the trial tactic was unnecessary because

there was no physical evidence to support Smith’s testimony that Haven shoplifted.
Ashland County, Case No. 18-COA-025                                                         10


       {¶30} Upon a review of the trial transcript, we find that Haven failed to meet her

burden to show her trial counsel acted incompetently. Josh Smith was the State’s main

witness. There was no video evidence of Haven’s shoplifting to corroborate Smith’s

testimony. Smith could not describe the clothing Haven put in her purse. The stolen

merchandise was never recovered. The transcript shows that Haven’s counsel deftly

cross-examined Smith to demonstrate the gaps in the video surveillance and Smith’s lack

of detailed knowledge as to the items stolen by Haven. To support Smith’s lack of

knowledge and evidence to support his allegations, Haven’s counsel attempted to

demonstrate that Smith had a bias against Haven. Smith did not testify that Haven acted

surreptitiously when she entered the Walmart on August 25, 2017, yet Smith followed

Haven to the men’s apparel department and watched her as she shopped. Haven’s

counsel attempted to explain Smith’s bias against Haven as arising out of the 2015 petty

theft case for which Haven was acquitted. Both Smith and Haven explained the facts of

that case, which were different from the circumstances of the present case. We cannot

say that Haven’s trial counsel acted outside the wide range of professionally competent

assistance by attempting to show the bias of the State’s main witness, nor can we say

that but for the alleged incompetence, the result of the trial would have been different.

       {¶31} Haven’s second Assignment of Error is overruled.
Ashland County, Case No. 18-COA-025                                     11


                                   CONCLUSION

       {¶32} The judgment of the Ashland Municipal Court is affirmed.

By: Delaney, J.,

Hoffman, P.J. and

Baldwin, J., concur.
