[Cite as State v. Ferguson, 2016-Ohio-363.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                      :

                 Plaintiff-Appellee,                :
                                                                    No. 15AP-636
v.                                                  :             (C.P.C. No. 13CR-2045)

Elizabeth J. Ferguson,                              :           (REGULAR CALENDAR)

                 Defendant-Appellant.               :


                                              D E C I S I O N

                                    Rendered on February 2, 2016


                 Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for
                 appellee.

                 Gerald Latanich, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas

TYACK, J.
        {¶ 1} Elizabeth J. Ferguson is appealing from her conviction on a charge of theft
of a credit card. She assigns five errors for our consideration:
                 [I.] THERE WAS INSUFFICIENT AUTHENTICATION FOR
                 THE INTRODUCTION OF THE FLEET MANAGEMENT
                 REPORT INTO EVIDENCE AND FOR TESTIMONY ABOUT
                 IT AT TRIAL.

                 [II.] THERE WAS INSUFFICIENT FOUNDATION FOR THE
                 TESTIMONY AND ADMISSION INTO EVIDENCE OF THE
                 SPEEDWAY RECORDS AS BEING BUSINESS RECORDS.

                 [III.] APPELLANT WAS DENIED HER RIGHT TO DUE
                 PROCESS AND ADEQUATE ASSISTANCE OF COUNSEL
                 UNDER THE 6TH AND 14TH AMENDMENTS DUE TO
                 INADEQUATE ASSISTANCE OF TRIAL COUNSEL.
No. 15AP-636                                                                             2

              [IV.] THE TRIAL COURT ERRED IN NOT GRANTING THE
              REQUEST FOR A DISMISSAL BASED ON A CRIMINAL
              RULE 29 MOTION.

              [V.] THE FINDING OF GUILTY BY THE JURY VIOLATED
              THE ACCUSED'S RIGHTS TO DUE PROCESS AND A FAIR
              TRIAL AND IS AGAINST THE MANIFEST WEIGHT OF THE
              EVIDENCE.

       {¶ 2} Ferguson was an employee at MU Trucking, a company owned by John
Harris. Harris noted some irregularities involving some of the company credit cards.
Specifically, Harris noticed some use of the card during a time period when the company
was closed.
       {¶ 3} Harris started an investigation which resulted in the discovery of several
photographs of Ferguson using a company credit card at various Speedway gas stations in
central Ohio. The card was not only used to buy fuel for Ferguson's personal vehicle, but
also to buy gift cards around Christmas time. This led to the filing of criminal charges
against Ferguson.
       {¶ 4} At trial, Ferguson testified and claimed she had permission to use one of the
company credit cards to compensate herself for extra duties she performed. The jury
found her guilty of theft in violation of R.C. 2913.02, a felony of the fifth degree, which
implies the jury did not believe her claims of permission to use the card in the way
indicated.

I. NO ADMISSION OF EVIDENCE AT TRIAL CONSTITUTED PLAIN ERROR
       {¶ 5} Turning to the individual assignments of error, the first and second
assignments of error argue that pieces of evidence, a credit card report and photographs
of the credit card being used, were not properly admitted into evidence.
       {¶ 6} The central issue presented by the defense during the trial was not the
admissibility of business records or the testimony relating to the records, but an
explanation of the information contained in the records and an explanation of why
Ferguson used the credit cards. This was a legitimate theory for a defense. Given that
theory, there was no reason to engage in a series of objections as to whether or not strict
compliance with the Ohio Rules of Evidence had been demonstrated. Trial counsel's
No. 15AP-636                                                                               3

theory of the best defense did not correspond with appellate counsel's theory now before
us.
       {¶ 7} Because of the theory of the defense at trial, a minimal number of objections
were lodged. As a result, the first and second assignments of error are evaluated on appeal
under a plain error standard.
       {¶ 8} To constitute plain error, the error must be obvious on the record, palpable,
and fundamental such that it should have been apparent to the trial court without
objection. See State v. Tichon, 102 Ohio App.3d 758, 767 (9th Dist.1995). Moreover,
plain error does not exist unless the appellant establishes that the outcome of the trial
clearly would have been different but for the trial court's allegedly improper actions. State
v. Waddell, 75 Ohio St.3d 163, 166 (1996). Notice of plain error is to be taken with utmost
caution, under exceptional circumstances and only to prevent a manifest miscarriage of
justice. State v. Phillips, 74 Ohio St.3d 72, 83 (1995); State v. Ospina, 81 Ohio App.3d
644, 647 (10th Dist.1992).
       {¶ 9} We cannot find plain error as to the admissibility of the fleet management
report and related testimony. The report basically was admitted to demonstrate why an
investigation was begun. Other testimony revealed many of the details of the use of the
credit cards.
       {¶ 10} The first assignment of error is overruled.
       {¶ 11} The photographs of the person using the credit cards were developed
through a police investigation. More detail as to how Speedway keeps its security system
functioning and maintains its records was possible, but was not the central point of the
case. The failure t0 call more witnesses had little impact on the outcome, especially since
Ferguson admitted to the conduct shown in the photographs. We fail to find plain error
as to the use of the photographs.
       {¶ 12} The second assignment of error is overruled.

II. FERGUSON WAS REASONABLY REPRESENTED BY COUNSEL
       {¶ 13} The third assignment of error basically asserts that trial counsel for
Ferguson rendered ineffective assistance of counsel by choosing a theory of defense which
No. 15AP-636                                                                               4

was ultimately rejected by the jury. However, the theory of the defense was clearly
reasonable.
       {¶ 14} A two-step process is employed when considering allegations of ineffective
assistance of counsel. "First, there must be a determination as to whether there has been
a substantial violation of any of defense counsel's essential duties to his client. Next, and
analytically separate from the question of whether the defendant's Sixth Amendment
rights were violated, there must be a determination as to whether the defense was
prejudiced by counsel's ineffectiveness." State v. Lytle, 48 Ohio St.2d 391, 396-97 (1976),
vacated in part on other grounds, 438 U.S. 910 (1978).
       {¶ 15} A counsel's performance "will not be deemed ineffective unless and until
counsel's performance is proved to have fallen below an objective standard or reasonable
representation and, in addition, prejudice arises from counsel's performance." State v.
Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus.
       {¶ 16} The question is whether counsel acted outside the "wide range of
professionally competent assistance."     Strickland v. Washington, 466 U.S. 668, 689
(1984). Appellate courts must be highly deferential in scrutinizing counsel's performance.
"A fair assessment of attorney performance requires that every effort be made to eliminate
the distorting effects of hindsight * * *. There are countless ways to provide effective
assistance in any given case." Id.
       {¶ 17} Nothing about the defense's theory at the time made the trial unfair. The
defense was simply not believed by the jury. We do not find that counsel's performance or
the theory that Ferguson did in fact have permission to make the credit card transactions
fell below the standard of reasonable representation.
       {¶ 18} The third assignment of error is overruled.

III. THE VERDICT IS SUPPORTED BY SUFFICIENT EVIDENCE
       {¶ 19} The fourth assignment of error argues the trial court erred in not granting a
Crim.R. 29 motion for acquittal at the conclusion of the state's evidence. The trial court
could have granted a motion for judgment of acquittal under Crim.R. 29 only if the
evidence was insufficient to justify a conviction. "Our review of a decision denying a
Crim.R. 29 motion for acquittal is the same as a sufficiency review, because a Crim.R. 29
No. 15AP-636                                                                              5

motion tests the sufficiency of the state's evidence."       State v. Gripper, 10th Dist.
No. 12AP- 396, 2013-Ohio-2740, fn. 1, citing State v. Berry, 10th Dist. No. 10AP-1187,
2011-Ohio-6452, ¶ 8; State v. Reddy, 10th Dist. No. 09AP-868, 2010-Ohio-3892, ¶ 12.
       {¶ 20} When reviewing the sufficiency of the evidence to support a conviction an
appellate court must examine the evidence that, if believed, would convince the average
mind of the defendant's guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d
259 (1991), paragraph two of the syllabus. "The relevant inquiry is whether, after viewing
the evidence in 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." Id.
The claim of insufficient evidence invokes an inquiry about due process. It raises a
question of law, the resolution of which does not allow the court to weigh the evidence.
State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
       {¶ 21} Harris testified that only he and the drivers of his company were authorized
to use the company credit cards for diesel gasoline, and Ferguson was not authorized to
use the card. Ferguson admitted to making the purchases with the company credit card
including purchases of non-diesel gasoline and gift cards. The evidence here was clearly
sufficient to sustain a conviction. Viewing this evidence in the light most favorable to the
prosecution a rational trier of fact could have found the elements to prove theft.
       {¶ 22} The fourth assignment of error is overruled.

IV. THE VERDICT IS SUPPORTED BY THE MANIFEST WEIGHT OF THE
EVIDENCE
       {¶ 23} The fifth assignment of error alleges that the jury's verdict was against the
manifest weight of the evidence. A manifest weight argument, in contrast to a claim of
insufficient evidence, requires us to engage in a limited weighing of the evidence to
determine whether there is enough competent and credible evidence so as to permit
reasonable minds to find guilt beyond a reasonable doubt and, thereby, to support the
judgment of conviction. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997).
       {¶ 24} In so doing, the court of appeals sits as a " 'thirteenth juror' " and, after
" 'reviewing the entire record, weighs the evidence and all reasonable inferences,
considers the credibility of witnesses and determines whether in resolving conflicts in the
No. 15AP-636                                                                              6

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.' " Id., quoting Martin at
175; see also Columbus v. Henry, 105 Ohio App.3d 545, 547-48 (10th Dist.1995).
Reversing a conviction as being against the manifest weight of the evidence should be
reserved for only the most " 'exceptional case in which the evidence weighs heavily against
the conviction.' " Thompkins at 387, quoting Martin at 175.
       {¶ 25} As this court has previously stated, "[w]hile the jury may take note of the
inconsistencies and resolve or discount them accordingly, see [State v.] DeHass [, 10 Ohio
St.2d 230 (1967)], such inconsistencies do not render defendant's conviction against the
manifest weight or sufficiency of the evidence." State v. Nivens, 10th Dist. No. 95APA09-
1236 (May 28, 1996). It was within the province of the jury to make the credibility
decisions in this case. See State v. Lakes, 120 Ohio App. 213, 217 (4th Dist.1964) ("It is
the province of the jury to determine where the truth probably lies from conflicting
statements, not only of different witnesses but by the same witness."). See State v. Harris,
73 Ohio App.3d 57, 63 (10th Dist.1991) (Even though there was reason to doubt the
credibility of the prosecution's chief witness, he was not so unbelievable as to render
verdict against the manifest weight).
       {¶ 26} We bear in mind "the trier of fact's superior, first-hand perspective in
judging the demeanor and credibility of witnesses." State v. Mickens, 10th Dist. No.
08AP-626, 2009-Ohio-1973, ¶ 30, citing DeHass. A unanimous concurrence of all three
judges on the court of appeals reviewing panel is required to reverse a judgment as a
result of a trial by jury as being against the manifest weight of the evidence. Thompkins at
paragraph four of the syllabus.
       {¶ 27} Ferguson admitted that she was the one that made the purchases at the gas
stations. The only question to be resolved was whether she had authority to do so.
Ferguson stated she did and Harris stated she did not. The jury made their decision and
we find that there is enough competent and credible evidence for Ferguson to be found
guilty beyond a reasonable doubt.
       {¶ 28} The fifth assignment of error is overruled.
No. 15AP-636                                                                          7

V. CONCLUSION
      {¶ 29} Once the photographs of the transactions had been admitted into evidence
and Harris identified Ferguson in them, there remained only one real question — who the
jury found more credible, Harris or Ferguson. The jury found Harris to be more credible
and we find there is competent and credible evidence to support the resulting verdict.
Having overruled all the assignments of error, the judgment of the Franklin County Court
of Common Pleas is affirmed.
                                                                    Judgment affirmed

                          BROWN and SADLER, JJ., concur.
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