[Cite as State v. Holter, 2012-Ohio-3784.]


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

STATE OF OHIO                                        C.A. No.      26251

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
MARTIN T. HOLTER                                     COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No. CR 10 10 2851

                                  DECISION AND JOURNAL ENTRY

Dated: August 22, 2012



        DICKINSON, Judge.

                                             INTRODUCTION

        {¶1} Based mostly on eyewitness accounts, a jury convicted Martin Holter of stealing

computer equipment from the Walmart store in Macedonia. He was sentenced to serve nine

months of incarceration as a result of his fifth-degree felony theft conviction. He has appealed.

This Court affirms because his conviction is supported by sufficient evidence and is not against

the manifest weight of the evidence.

                                             BACKGROUND

        {¶2} Two asset protection officers employed by Walmart testified that they were

assigned by a superior to watch a suspicious male shopping in the electronics department of the

Macedonia Walmart store on October 2, 2010. When DeShawn Miller, one of the Walmart asset

protection officers, located the suspect, he was leaving the electronics department with two big

boxes in his cart. Mr. Miller and the second store employee, Kahil Berry, testified that, inside
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the cart they saw a blue and white box containing a computer monitor and a Hewlett-Packard

box containing a Pavilion desktop computer.

       {¶3} The men testified that the suspect had a tattoo around his neck, but they could not

read what it said. They also testified that the man was wearing a white t-shirt, a tan or light

brown jacket, and eyeglasses. Both men stayed at least 15 to 20 feet away from the suspect, but

maintained visual contact with him as he left his cart in the lawn and garden department and

walked around in front of an emergency exit door located at the front of the store near the lawn

and garden department. Although the suspect did not touch the emergency door, a fire alarm

began to sound, and store employees began evacuating the building, but the suspect continued to

stand around, appearing to wait near the emergency exit door. One of the loss protection

employees called for a uniformed store employee to escort the man from the building. Both Mr.

Miller and Mr. Berry continued to watch the suspect as he exited via the main entrance without

any merchandise, having left his cart in the lawn and garden area.

       {¶4} Both men testified that they watched the suspect get into the front passenger’s

seat of a dark-grey Ford Focus, and Mr. Miller memorized the license plate. The car then drove

around a blocked-off construction area in the parking lot to drive alongside the Walmart

building. Mr. Miller and Mr. Berry sprinted after the car and located it parked outside the fence

by the lawn and garden department. Mr. Berry testified that he saw the suspect inside the lawn

and garden department despite the fact that the fire alarm was still sounding, indicating that

nobody should have been inside the building. Mr. Miller then ran back to the front of the store to

try to locate a manager while Mr. Berry stayed to watch the suspect. The two men kept in touch

via cellphones. Mr. Berry testified that, as he got closer, he saw the computer and monitor boxes
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outside of the fence. He then watched as the suspect “jumped on a pallet of mulch” and climbed

over the fence, loaded the two boxes into the car, and got inside.

       {¶5} When Mr. Miller ran back to find a manager, he instead approached a firefighter

in an SUV who had responded to the fire alarm. The firefighter offered to use his radio to

contact local police for Mr. Miller while they followed the suspect’s car. As they pulled around

to the lawn and garden area, Mr. Berry pointed out to them that the grey Focus was just pulling

out of the parking lot. Mr. Miller testified that the car did not speed away and the firefighter was

able to follow it while staying several cars behind it. Mr. Miller maintained visual contact with

the grey Focus as they followed it on Route 8 southbound and radioed through the fire

department’s dispatcher for local police to stop it. Meanwhile, Mr. Berry and another Walmart

employee drove to the scene of the traffic stop.

       {¶6} After the two people inside the car were secured during the stop, police asked Mr.

Miller and Mr. Berry to identify the computer equipment found in the back seat of the car, the

woman driving the car, and the male passenger. Both men identified the male passenger, Mr.

Holter, as the man they had watched at the Walmart store. They also testified that the computer

equipment was the same merchandise they watched Mr. Holter steal from the store. Photos

taken by police at the scene of the traffic stop indicate that both boxes were still wrapped in the

“spider wrap” or electronic security wires the store uses to deter theft of expensive merchandise.

After taking photographs, police returned the merchandise to the Walmart employees.

                                         SUFFICIENCY

       {¶7} By his sole assignment of error, Mr. Holter challenges both the sufficiency and

weight of the evidence. Whether a conviction is supported by sufficient evidence is a question of

law that this Court reviews de novo. State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997); State
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v. West, 9th Dist. No. 04CA008554, 2005–Ohio–990, ¶ 33.               We must determine whether,

viewing the evidence in a light most favorable to the prosecution, it could have convinced the

average finder of fact of his guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259,

paragraph two of the syllabus (1991).

       {¶8} Although Mr. Holter has couched all of his arguments in terms of challenging

both the sufficiency and weight of the evidence, his only true sufficiency argument challenges

the State’s evidence of the value of the merchandise involved in the theft. At the time of the

offense, a violation of Section 2913.02 was a felony of the fifth degree “[i]f the value of the

property or services stolen is five hundred dollars or more and is less than five thousand

dollars[.]” R.C. 2913.02(B)(2), effective Apr. 7, 2009. At trial, Mr. Miller testified that the

sticker prices of the computer and monitor equaled $867. He said that he was sure of those

prices because, after police returned the merchandise to him, he scanned the barcodes from each

box into the Walmart computer system.

       {¶9} Mr. Holter has argued that there was not sufficient evidence to prove that the

computer equipment cost more than $500 because the Walmart employees who testified did not

know whether the equipment was on sale on the day of the theft. Section 2913.61(D) of the Ohio

Revised Code provides criteria to be used in determining the value of property or services

involved in a theft offense. Under that section, the value of personal property held for sale by a

retail outlet is the fair market value, that is, the amount a buyer is willing to pay and the seller is

willing to accept to sell the item “assuming that the buyer is willing to buy and the seller is

willing to sell, that both are fully informed as to all facts material to the transaction, and that

neither is under any compulsion to act.” R.C. 2913.61(D)(3), effective Sept. 9, 2000. “Without

limitation on the evidence that may be used to establish the value of property or services
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involved in a theft offense . . . [if] the property involved is personal property held for sale at

wholesale or retail, the price at which the property was held for sale is prima-facie evidence of its

value.” R.C. 2913.61(E)(1), effective Sept. 9, 2000.

       {¶10} Mr. Miller testified about the “sticker price” of both items involved in the theft.

He explained that the Walmart computer system listed the items for sale at those prices. That is

prima facie evidence of their value in this context. See R.C. 2913.61(E)(1), effective Sept. 9,

2000. To the extent that it addressed the sufficiency of the evidence, Mr. Holter’s assignment of

error is overruled.

                                      MANIFEST WEIGHT

       {¶11} The second part of Mr. Holter’s assignment of error is that his conviction is not

supported by the manifest weight of the evidence. If a defendant argues that his conviction is

against the manifest weight of the evidence, we “must 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). Mr. Holter’s first argument

in this regard relates to his sufficiency challenge to the State’s evidence proving the value of the

stolen goods. Because there was no evidence regarding whether the items were offered for sale

at a discount on the day of the theft, Mr. Holter has argued that his fifth-degree felony conviction

is not supported by the weight of the evidence.

       {¶12} As discussed in relation to his sufficiency argument, Mr. Miller’s testimony

regarding the “sticker price” of the goods was prima facie evidence of the fair market value. If

Mr. Holter believed that evidence to be inaccurate, he should have offered some contrary
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evidence for the jury to consider. See State v. Edwards, 2d Dist. No. 2755, 1991 WL 102729, *8

(June 13, 1991). In this case, the jury had no contrary evidence to challenge the sticker price of

each item. To the extent that Mr. Holter’s assignment of error addressed the manifest weight of

the evidence in regard to the value of the stolen merchandise, it is overruled.

       {¶13} Mr. Holter’s next argument relates to the manifest weight of the evidence

challenging the veracity of the Walmart employees’ identification of Mr. Holter. He has argued

that, during the traffic stop, both of the Walmart employees identified the female driver of the car

despite their testimony that they had never before seen the person who was driving the car and

did not even know the driver’s gender until they joined police at the side of the road during the

traffic stop. Because their basis for identification of the female driver was questionable, Mr.

Holter has argued that their identification of him should not have been trusted.

       {¶14} Under Section 2913.02 of the Ohio Revised Code, “[n]o person, with purpose to

deprive the owner of property . . . , shall knowingly obtain or exert control over . . . the property .

. . [w]ithout the consent of the owner or person authorized to give consent[.]”                   R.C.

2913.02(A)(1), effective Apr. 7, 2009. Two Walmart employees testified that they followed Mr.

Holter around inside the Walmart store for some time before seeing him complete the theft.

Although they stayed at least 15 feet away from him, they described his height, clothing, and a

tattoo around his neck. They said the tattoo was the man’s most obvious identifying feature.

They also testified that the only time they lost sight of him was when the car he entered drove

around the side of the building, but they quickly located him again when they ran over and saw

the same car parked beside the fence. Mr. Miller and Mr. Berry had also described the suspect’s

clothing, including a tan jacket and eyeglasses, both of which were found on the floor of the car

by Mr. Holter’s feet when police caught him. Based on this evidence, the jury did not lose its
                                                   7


way when it determined that Mr. Holter was the man who stole the computer equipment. To the

extent that Mr. Holter’s assignment of error addressed the manifest weight of the evidence in

regard to the identification of him as the perpetrator of this theft, it is overruled.

        {¶15} Finally Mr. Holter has challenged the manifest weight of the evidence due to the

witnesses’ identification of the merchandise. He has made two arguments in this regard. First,

he has argued that his conviction is against the manifest weight of the evidence because Mr.

Berry and Mr. Miller were unable to offer any direct evidence that the computer equipment

found in the backseat of the car had come from the Macedonia Walmart.

        {¶16} The men were able to testify that the stickers on the boxes identified them as

Walmart products and the spider wrap security wires were still intact, as they had been inside the

Walmart store. Mr. Holter’s lawyer elicited evidence on cross-examination, however, indicating

that, although subsequent scanning of the barcodes confirmed the boxes were from Walmart

stock, it could not differentiate among the Walmart stores. Therefore, Mr. Holter has argued that

the men could not testify “that these particular items came from the Walmart in Macedonia.”

        {¶17} “[C]ircumstantial evidence and direct evidence inherently possess the same

probative value . . . .” State v. Starks, 9th Dist. No. 25155, 2010-Ohio-5980, ¶ 9 (quoting State v.

Jenks, 61 Ohio St. 3d 259, paragraph one of the syllabus (1991)). Mr. Holter has correctly

pointed out that there was no direct evidence that the Walmart computer boxes found in the car

with Mr. Holter were the same two computer boxes Mr. Berry watched Mr. Holter load into the

car outside the lawn and garden department of the store. The testimony of Mr. Berry and Mr.

Miller, however, provided circumstantial evidence that they were the same two boxes. The

Walmart employees testified that they saw Mr. Holter stash a cart containing a Hewlett-Packard

Pavilion computer and a monitor in a blue and white box in the lawn and garden department, and
                                                 8


Mr. Berry later saw Mr. Holter jump the fence of that department and load what appeared to be

the same two boxes into the back of the grey Focus. Further, the asset protection officers

testified that they never lost visual contact with the Focus until it was stopped by police, at which

time two boxes from Walmart, containing a Hewlett-Packard Pavilion desk top computer and a

monitor were found in the car, both still wrapped in Walmart’s security devices.

       {¶18} Mr. Holter has also argued that his conviction is against the manifest weight of

the evidence because neither of the boxes in the back seat of the car was damaged, despite the

fact that, if Mr. Berry’s testimony is to be believed, Mr. Holter must have either thrown the

boxes over or dropped them from the top of a fence that is 15 feet high. Mr. Berry estimated that

the fence was about 12 to 15 feet high, and he testified that Mr. Holter had no trouble scaling it.

Although he did not testify about how the merchandise was removed from the store, he said that,

after running around the outside of the store, he saw Mr. Holter inside the fence in the lawn and

garden department while the merchandise that had been in Mr. Holter’s cart inside the store was

on the ground outside the fence. Mr. Berry also testified that he watched Mr. Berry climb up

onto a pallet of mulch that had bags of mulch stacked up approximately four feet before climbing

the rest of the way over the fence. He also said that there was mulch stacked up on the outside of

the fence that helped Mr. Holter descend on the outside as well. The fact that the evidence

revealed no damage to the computer boxes does not cause this Court to conclude that Mr.

Holter’s conviction is not supported by the manifest weight of the evidence. The jury may have

reasonably concluded that, despite the lack of damage to the boxes, there was no reasonable

doubt about the large amount of circumstantial evidence tending to show that the boxes police

found in the car with Mr. Holter were the same two boxes Mr. Berry and Mr. Miller had watched

Mr. Holter take from the electronics department before the fire alarm sounded. In any event, the
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jury did not lose its way and create a manifest miscarriage of justice in determining that Mr.

Holter stole the computer equipment that was found with him in the Ford Focus just minutes

after the crime. Mr. Holter’s assignment of error is overruled.

                                         CONCLUSION

       {¶19} Mr. Holter’s assignment of error is overruled because his conviction is supported

by sufficient evidence and is not against the manifest weight of the evidence. The judgment of

the Summit County Common Pleas Court 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.




                                                     CLAIR E. DICKINSON
                                                     FOR THE COURT
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WHITMORE, P.J.
BELFANCE, J.
CONCUR

APPEARANCES:

RONALD T. GATTS, Attorney at Law, for Appellant.

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