[Cite as Parma v. Schrader, 2014-Ohio-2060.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100369


                                     CITY OF PARMA

                                                      PLAINTIFF-APPELLEE

                                                vs.

                             BARBARA A. SCHRADER

                                                            DEFENDANT-APPELLANT



                                           JUDGMENT:
                                            AFFIRMED


                                    Criminal Appeal from the
                                     Parma Municipal Court
                              Case Nos. 13 CRB 520 and 13 CRB 521

        BEFORE:         Jones, P.J., Keough, J., and Stewart, J.

        RELEASED AND JOURNALIZED:                     May 15, 2014
ATTORNEY FOR APPELLANT

David M. Watson
137 S. Main Street
Suite 300
Akron, Ohio 44308


ATTORNEYS FOR APPELLEE

Timothy G. Dobeck
City Law Director
Boyko, Dobeck & Weaver
7393 Broadview Road
Suite A
Seven Hills, Ohio 44131

BY: Kristen L. Sobieski
Assistant City Prosecutor
6611 Ridge Road
Parma, Ohio 44129




LARRY A. JONES, SR., P.J.:
       {¶1} Defendant-appellant Barbara Schrader appeals her theft convictions that were

rendered after a jury trial in the Parma Municipal Court.   We affirm.

                              I. Procedural History and Facts

       {¶2} In January 2013, two complaints were filed against Schrader in the municipal

court; each complaint charged her with one count of theft in violation of Parma Codified

Ordinances 642.02.    The complaints alleged that the thefts occurred at the Ridgewood

Road Walmart in Parma, one on November 9, 2012, and the other on December 28, 2012.

       {¶3} A jury trial was had on both complaints. At the conclusion of the city’s case,

Schrader moved for a Crim.R. 29 acquittal; the motion was denied.        Schrader testified

and presented a witness.   At the conclusion of her case, Schrader renewed her Crim.R. 29

motion that was again denied. After its deliberations, the jury found Schrader guilty of

both counts.

       {¶4} The trial court amended the charges, without objection, from being a violation

of the Parma Codified Ordinances, to being violations of the Ohio Revised Code,

specifically, R.C. 2913.02.    The court sentenced her to 180 days of jail time in the

Cuyahoga County Jail, and suspended 150 days. The court also placed Schrader on 24

months of probation, with 12 months being active.

       {¶5} The following trial testimony gave rise to the charges and convictions.    The

city presented two witnesses: Melissa Evcic, a Walmart asset protection manager, and

Edward Pinc, a Parma police officer.

       {¶6} Evcic testified that her job as an asset protection manager at Walmart included
conducting investigations into internal and external thefts from the store.         It was the

store’s policy that if a cashier needed change, the cash would be transported by a customer

service manager from the register to a podium located at the front of the store; the cash

was always required to be transported in a blue zippered bag.          If the cash box at the

podium needed change, the customer service manager would transport the cash from the

podium in a blue zippered bag to the cash office.

       {¶7} Evcic testified that the amount of cash from the cash registers is input to a

computer, which would compare the entered amount to the amount of sales, and indicate

any discrepancy.        A daily report was generated, and if that report indicated a cash

shortage, Evcic would be notified by email.

       {¶8} The email Evcic would receive would indicate the amount of the shortage

from a particular cash register.     Evcic would obtain a list of all the cash transactions for

the day in question and then review the entire day’s video surveillance relative to the cash

register in question.

       {¶9} In August 2012, Evcic began investigating cash shortages that had occurred at

the Ridgewood Road store.          Specifically, there had been approximately 20 shortages,

each one varying between $20 and $100.         Evcic reviewed the video surveillance for the

cash registers in question, and did not observe any suspicious activity on the part of the

cash register operators.     She, therefore, expanded her investigation to include additional

employees who also handle the cash.

       {¶10} Schrader was a customer service manager and, therefore, as part of her job
duties, she transferred money to and from the cash registers to the podium or from the

podium to the cash office.    Schrader was identified as a person of interest during Evcic’s

expanded investigation.    Evcic reviewed the video surveillance of Schrader on November

9 and December 28, 2012, and saw Schrader “palming” money. “Palming” is when a

person “rolls” money into her palm to conceal it.

         {¶11} In regard to the November 9 incident, Evcic testified that a cashier at the

customer service desk requested change.      Schrader opened the cash register, took some

money out, exchanged money with the cashier, and walked away with the money folded

in her hand under a palm pilot, rather than in the required blue zippered bag.         Evcic

testified that there are areas in the store that are not covered by surveillance; the cameras

did not capture Schrader after that encounter.

         {¶12} Evcic testified that the surveillance video of the December 28 incident

showed a similar occurrence of Schrader getting money out of a cash register and carrying

it concealed in her hand rather than in the required bag.   Available bags were depicted in

the video.

         {¶13} On January 24, 2013, an asset protection assistant interviewed Schrader with

Evcic present.    Schrader denied stealing any money, but admitted that on other occasions

she had transported money in her pockets, in violation of the store’s policy.

         {¶14} Officer Edward Pinc from the Parma police department responded to the

scene.     He reviewed the video surveillance, and after doing so, detained Schrader.

Schrader also denied to the officer that she had stolen money. Schrader offered no
explanation for her actions in not using the required bag or putting the money under a palm

pilot.

         {¶15} The video surveillance from the two dates in question was played for the

jury.

         {¶16} In her testimony, Schrader admitted that she did not follow the protocol for

transporting money in the store, but denied taking any money from Walmart.                 She

testified that she used the palm pilot to conceal the money from the customers in the store,

but not to conceal it for any other purpose.      Schrader further testified that the zippered

bags seen in the video were for “loan” money, not “change” money. She testified that

because of the “fast pace,” she and other managers routinely carried the store’s cash in

their hands.

         {¶17} On this evidence, the jury found Schrader guilty of both counts of theft.

Schrader now raises the following assignments of error for our review:

         [I.] The admission of Melissa Evcic’s testimony regarding the internal
         Walmart email concerning cash shortages violated Ms. Schrader’s
         constitutional right to confront the witnesses against her as guaranteed by the
         6th Amendment to the United States Constitution.

         [II.] The trial [court] erred to the prejudice of Barbara Schrader when it
         admitted, over objection, hearsay testimony regarding the cash shortages at
         the Ridgewood Road Walmart.

         [III.] The trial court erred to the prejudice of Barbara Schrader when it
         admitted, over objection, the testimony of Melissa Evcic who had no
         personal knowledge regarding the cash shortages at the Ridgewood Road
         Walmart.

         [IV.] There was insufficient evidence to convict Barbara Schrader of two
         counts of theft in violation of Parma Municipal Code 642.02.
       [V.] When Barbara Schrader was charged with a violation of the Parma
       Municipal Code Section 642.02, the trial court erred in finding her guilty of
       Ohio Revised Code Section 2913.02.

                                  II.   Law and Analysis

Testimony about the Email

       {¶18} The email about the cash shortages that Evcic testified to receiving was from

an unnamed source and was not admitted into evidence.      In her first assignment of error,

Schrader contends that Evcic’s testimony about the email, a “document whose existence

was never confirmed,” amounted to “testimonial references,” which was “by definition

and use inadmissible hearsay” and in violation of Schrader’s right to confront witnesses

used against her.

       {¶19} In her second assignment of error, Schrader contends that the city failed to

establish that Evcic’s testimony about the email was subject to the business records

hearsay exception.

       {¶20} Schrader objected to Evcic’s testimony, and in her Crim.R. 29 motion made

at the close of the city’s case, she argued that the court should exclude the whole of

Evcic’s testimony because it was based on the email informing her that registers were

short, but she had no personal knowledge of that.    The city contended that the email was

a business record, and the court agreed.

       {¶21} This case presents somewhat differently than the usual case where a claim of

the business records exception to the general ban on hearsay is at issue because, as pointed

out by Schrader, the claimed business record (the email) was never produced.       We first
consider that situation, which implicates the best evidence rule.

       {¶22} The best evidence rule as set forth in Evid.R. 1002, provides as follows:

       To prove the content of a writing, recording, or photograph, the original
       writing, recording, or photograph is required, except as otherwise provided
       in these rules or by statute enacted by the General Assembly not in conflict
       with a rule of the Supreme Court of Ohio.

       {¶23} 29 American Jurisprudence 2d, Evidence,          Section 449, at 510 (      ).

explains the best evidence rule as follows:

       The best evidence rule has no application to a case where a party seeks to
       prove a fact which has an existence independently of any writing; he may do
       so by oral testimony, even though the fact has been reduced to, or is
       evidenced by, a writing. Nor is it contrary to the best evidence rule that
       oral testimony of a fact in issue may be primary evidence thereof, although
       there is written evidence of the same fact, where the essential fact to be
       proved is neither the existence nor the contents of the writing, but the
       existence of the independent fact itself, to which the writing is merely
       collateral or incidental.

       {¶24} In Gennaro Pavers, Inc. v. Kosydar, 7th Dist. Mahoning No. 72 C. of A. 63,

1973 Ohio App. LEXIS 1951 (Aug. 15, 1973), the Seventh Appellate District stated the

following:

       “* * * The principle that the best evidence of which the case in its nature is
       susceptible, and which is within the power of the parties to produce, or is
       capable of being produced, must always be adduced in proof of every
       disputed fact is an elementary principle of the law of evidence; and, in a
       broad sense, embraces within its application every issue that may be in
       controversy; but in modern practice it is generally confined to the
       substitution of oral testimony in proof of an existing document. If the
       content of the written document is in issue or if the very existence of the
       document itself is in controversy, the document must be produced or its
       absence accounted for. But the rule has never been extended to require
       evidence of facts that may as well be established by oral testimony; that is to
       say, oral testimony of a fact in issue may be primary evidence of the fact,
       although there be in existence written evidence of the same fact, and, where
       the essential fact to be proved is neither the existence nor the contents of the
       writing, but some independent fact to which the writing is merely incidental,
       the writing need not be produced but the proof may be adduced by oral
       testimony. * * *.”


(Emphasis sic.)    Id. at *6-*7, quoting Catlin v. Justice, 288 Ky. 270, 276, 156 S.W.2d

107 (Nov. 11, 1941).

       {¶25} Here, Evcic’s testimony about the email was to prove a fact that existed

independently of the actual email: whenever there were cash shortages in the drawers

Evcic was notified by email. Evcic’s testimony about the email was to explain how it

was that she began investigating the shortages. Her oral testimony about the store’s

procedures when shortages occur was primary evidence of the procedures, irrespective of

the email.   Schrader had a full and fair opportunity to cross-examine Evcic on her

investigatory process.   Thus, no error occurred based on the city’s lack of production of

the email.

       {¶26} Moreover, the business records exception under Evid.R. 803(6) “concerns

the introduction of the documents themselves, not oral testimony * * *.”1               State v.

Cicerchi, 182 Ohio App.3d 753, 2009-Ohio-2249, 915 N.E.2d 350, ¶ 52 (8th Dist.).

       {¶27} In light of the above, we find that the trial court properly allowed Evcic’s

testimony, albeit for reasons other than as a business records exception.         The first and

second assignments of error are overruled.


       The business records exception to hearsay contemplates “memorandum, report, record,
       1



       or data compilation.” Evid.R. 803(6).
Evcic’s Testimony vis-a-vis her Personal Knowledge

       {¶28} For her third assignment of error, Schrader contends that Evcic’s testimony

about how much was missing from the cash registers was improper because Schrader did

not have personal knowledge of same, as required under the business records exception.

       {¶29} As already discussed, the business records exception does not apply here.

The testimony regarding the email was proper to show how Evcic’s investigation began.

Further, any testimony regarding amounts of the loss referenced in the email was harmless.

 Schrader was charged and convicted of first-degree misdemeanor theft, which required

that the city prove that she, with purpose to deprive Walmart of its property, knowingly

obtained or exerted control over its property without the store’s consent.        Her crimes

were not enhanced based on the amount of the thefts.     Thus, in this case, any reference to

the amounts in the email was immaterial. See Parma Codified Ordinances 642.02(a) and

(b); see also R.C. 2913.02.

       {¶30} In light of the above, the third assignment of error is overruled.

Sufficiency of the Evidence

       {¶31} For her fourth assigned error, Schrader contends that the evidence was

insufficient to support a theft conviction.

       {¶32} “‘[S]ufficiency’ is a term of art meaning that legal standard which is applied

to determine whether the case may go to the jury,” i.e., “whether the evidence is legally

sufficient to support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio

St.3d 380, 386, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1433 (6th
Ed.1990).      Essentially, “sufficiency is a test of adequacy,” that challenges whether the

state’s evidence has created an issue for the trier of fact to decide regarding each element

of the offense.    Id.

       An appellate court’s function when reviewing the sufficiency of the evidence
       to support a criminal conviction is to examine the evidence admitted at trial
       to determine whether such evidence, if believed, would convince the average
       mind of the defendant’s guilt beyond a reasonable doubt.

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus,

following Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In reviewing the sufficiency of the evidence to support a criminal conviction,

       [t]he relevant inquiry is 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.

Jenks at id.

       {¶33} Parma Codified Ordinances 642.02 governs theft and provides that

       [n]o person, with purpose to deprive the owner of property or services, shall
       knowingly obtain or exert control over either the property or services * * *
       [w]ithout the consent of the owner or person authorized to give consent * * *.

       {¶34} Schrader contends that the city presented evidence (through the email) that

shortages occurred, but there was “absolutely no evidence in the record below that the

Walmart Store on Ridgewood Road was deprived of any money attributed to the actions of

Barbara Schrader.”       We disagree.

       {¶35} After being alerted to the cash shortages, Evcic began her investigation into

them, and through the process, narrowed Schrader as a suspect.     In identifying   Schrader

as a suspect, Evcic reviewed the surveillance from the two dates in question and observed
Schrader “palming” money.        Officer Pinc also viewed the surveillance video and

observed the “palming.”      This evidence, if believed, was sufficient to sustain the

convictions.

       {¶36} In light of the above, the fourth assignment of error is overruled.

Finding of Guilt under the Ohio Revised Code

       {¶37} Schrader was charged with violating Parma Codified Ordinances 642.02, but

the charges were amended, without objection, to a violation of R.C. 2913.02. After being

found guilty, Schrader was sentenced to the Cuyahoga County Jail.                  In her fifth

assignment of error, Schrader contends that the amendment of the charges was improper.

       {¶38} Under Crim.R. 52(B), errors that were not brought to the attention of the trial

court are reviewed for plain error.   “Notice of plain error under Crim.R. 52(B) is to be

taken with the utmost caution, under exceptional circumstances and only to prevent a

manifest miscarriage of justice.”     State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804

(1978), paragraph three of the syllabus.

       {¶39} Upon review, we find that no plain error occurred.           Under Crim.R. 7,

misdemeanors can be charged by indictment, information, or complaint, and “may be in

the words of the applicable section of the statute, provided the words of that statute charge

an offense, or in words sufficient to give the defendant notice of all the elements of the

offense with which the defendant is charged.” Crim.R. 7(B).

       {¶40} Petty theft under Parma Codified Ordinances 642.02 and R.C. 2913.02 are

the same.   Therefore, there was no error in terms of notice to Schrader of the crimes of
which she was charged. Moreover, the jury found her guilty of theft, without notation as

to whether it was under the city’s ordinances or the Ohio Revised Code.             Further,

contrary to Schrader’s contention, petty theft under Parma Codified Ordinances 642.02      is

not a lesser included offense of petty theft under the Ohio Revised Code.

       {¶41} Finally, Schrader contends that, because of the amendment, she was confined

to the county jail instead of the city jail.   “Any appeal of a sentence already served is

moot.” State v. Gruttadauria, 8th Dist. Cuyahoga No. 90384, 2008-Ohio-3152, ¶ 6,

citing State v. Bostic, 8th Dist. Cuyahoga No. 84842, 2005-Ohio-2184, ¶ 21; see also State

v. Jackson, 8th Dist. Cuyahoga No. 99804, 2014-Ohio-820, ¶ 7. Schrader has already

served her sentence and, therefore, her alleged error in regard to it is moot.

       {¶42} The fifth assignment of error is, therefore, overruled.

       {¶43} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Parma

Municipal Court to carry this judgment into execution.




       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.
LARRY A. JONES, SR., PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
MELODY J. STEWART, J., CONCUR
