[Cite as State v. Magri, 2018-Ohio-4275.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      GEAUGA COUNTY, OHIO


STATE OF OHIO,                                  :       OPINION

                 Plaintiff-Appellee,            :
                                                        CASE NO. 2018-G-0154
        - vs -                                  :

SAMUEL MAGRI,                                   :

                 Defendant-Appellant.           :


Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 2017 C
000034.

Judgment: Affirmed.


James R. Flaiz, Geauga County Prosecutor, and Nicholas A. Burling, Assistant
Prosecuting Attorney, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH
44024 (For Plaintiff-Appellee).

Robert N. Farinacci, 65 North Lake Street, Madison, OH           44057 (For Defendant-
Appellant).


DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant, Samuel Magri, appeals from his convictions for Theft

and Receiving Stolen Property in the Geauga County Court of Common Pleas. The

issues to be determined by this court are whether a court abuses its discretion in

admitting business records when the foundation for the documents is provided through

the testimony of a former manager who no longer directly maintains such records and

whether a conviction for Theft is supported by the weight and sufficiency of the evidence
when items discovered missing from a business were pawned by the defendant, a

former employee, approximately a month after their disappearance. For the following

reasons, we affirm the judgment of the court below.

       {¶2}   On February 23, 2017, the Geauga County Grand Jury issued an

Indictment, charging Magri with Theft, a felony of the fifth degree, in violation of R.C.

2913.02(A)(1), and Receiving Stolen Property, a felony of the fifth degree, in violation of

R.C. 2913.51(A).

       {¶3}   A jury trial was held on November 7, 2017.          The following pertinent

testimony and evidence were presented:

       {¶4}   Max Coulter is a machinist and former plant manager at Troy Innovative

Instruments, which manufactures medical instruments and other items. He testified that

he was plant manager for 14 years but no longer held that position since new

management eliminated it approximately four years ago. In his roles with the company,

he became familiar with the machinery and equipment used for manufacturing and had

“set up” much of the equipment.         He testified that all equipment used for the

manufacturing process belonged to Troy and not individual employees.             As plant

manager, Coulter had been responsible for record-keeping, which included machine

maintenance records, purchase records, and calibration records.

       {¶5}   He testified that Magri had been an application engineer at Troy for

approximately two years and was terminated in the summer of 2016.             Magri’s role

involved “help[ing] out on the floor” and “get[ting] the machines going.” In that role,

Magri worked with the manufacturing equipment daily. To Coulter’s knowledge, Magri

was friends with at least one employee at Troy following his termination.




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      {¶6}   Coulter testified that around October 2016, Troy employees started to

notice equipment was missing around the shop. Coulter testified that he did not give

permission for anyone to take items from Troy’s premises and was not “aware of”

permission being given to Magri to take any items.

      {¶7}   The first item missing was a Suburban Tool Master Grind used in grinding

processes, which Coulter believed went missing in October 2016.          Exhibits were

presented in relation to this item, including an invoice/purchase order, identifying the

price and item number, as well as a copy of a warranty registration card which

contained the serial number. Both documents were from 2011.

      {¶8}   Coulter also testified regarding the other missing items, two micrometers

and a digital indicator, which are used to inspect/measure parts manufactured by Troy.

He identified three documents providing calibration records (a process completed to

ensure they were working accurately) of these items, which listed at the top the items’

name/style, the “company asset numbers,” and serial numbers. When the missing

items were reported to police, Coulter was shown an eBay listing for the grinder at Gold

Star Pawn in Eastlake, obtained the warranty card from Troy’s maintenance records,

and found that the serial numbers matched. All of the missing items were recovered

from the pawn shop and returned to Troy.

      {¶9}   On cross-examination, Coulter testified that he was not currently

responsible for inventory or calibration records, although he could access them when

needed. He could not identify exactly when the items, other than the grinder, went

missing.

      {¶10} Detective Donald Seamon of the Geauga County Sherriff’s Office went to




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Gold Star Pawn in November 2016 after an investigation had determined Troy’s missing

items may be located there. He obtained copies of the pawn slips and receipts for a

grinder, two micrometers, and a digital indicator, which showed they were pawned by

Magri. The pawn slips also listed the serial numbers of each of the items. He testified

that the serial number from Troy’s warranty card for the grinder matched the number on

the recovered grinder. An interview between Detective Seamon and Magri was played.

Pursuant to the interview, Magri stated that the items he had pawned at Gold Star were

ten to twelve years old and some had been obtained from a “place that went out of

business” called Axiom in Mentor. When informed by police that the items had gone

missing from Troy recently, Magri stated that he had been to Troy a “couple times” to

visit a friend who works there but did not go inside of the building since he was

terminated. He stated that the only possibility would be for the micrometer to get “mixed

up” with his tools while he was still working at Troy. He denied stealing the items.

      {¶11} At the close of the State’s case, Magri’s counsel objected to the admission

of exhibits from Troy’s records since they were not verified by a records custodian or

other qualified person. Defense counsel also made a Rule 29 motion to dismiss. These

requests were denied.

      {¶12} On November 8, 2017, the jury found Magri guilty of both counts as

charged in the Indictment. The verdict was memorialized in a November 20, 2017

Judgment Entry.

      {¶13} At the sentencing hearing, the court denied Magri’s request to merge the

two offenses and ordered him to serve a term of 90 days of residential community

control in the Geauga Safety Center and three years of community control. The trial




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court filed its Judgment Entry of Conviction memorializing the sentence on January 25,

2018.

         {¶14} Magri moved to stay his sentence, which motion was denied by the trial

court.    He moved this court for a stay, which was granted in a February 8, 2018

Judgment Entry.

         {¶15} On appeal, Magri raises the following assignments of error:

         {¶16} “[1.]   The court erred to the prejudice of the defendant by admitting

documentary hearsay evidence that was not testified to by the custodian of records or

other qualified witness.

         {¶17} “[2.] The court erred to the prejudice of appellant when it overruled his

Crim.R. 29(A) motions where there lacked sufficient evidence for the theft count to

proceed to jury and in the alternative, the evidence that was before the jury lacked

sufficient weight to support a conviction of theft.”

         {¶18} In his first assignment of error, Magri argues that the trial court erred by

admitting exhibits presented during Coulter’s testimony, which included an invoice and

warranty registration card for purchase of the grinder, and three calibration records for

the micrometers and the digital indicator. He contends that these were not presented

by a proper records custodian and constituted hearsay not admissible under any

exception.

         {¶19} “[A] trial court is vested with broad discretion in determining the

admissibility of evidence in any particular case, so long as such discretion is exercised

in line with the rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d

269, 271, 569 N.E.2d 1056 (1991). However, “while the trial court has discretion to




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admit or exclude relevant evidence, it has no discretion to admit hearsay.” John Soliday

Fin. Group, L.L.C. v. Pittenger, 190 Ohio App.3d 145, 2010-Ohio-4861, 940 N.E.2d

1035, ¶ 28 (5th Dist.). See also State v. Fambro, 11th Dist. Trumbull No. 2016-T-0063,

2017-Ohio-5646, ¶ 44.

       {¶20} Hearsay is an oral or written statement, “other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of

the matter asserted.” Evid.R. 801(C).         “It is axiomatic that hearsay evidence is

inadmissible unless it falls within the specific hearsay exceptions enumerated in the

Rules of Evidence.” State v. DeMarco, 31 Ohio St.3d 191, 195, 509 N.E.2d 1256

(1987).

       {¶21} In the present matter, the parties’ argument centers around whether the

evidence was admissible hearsay under Evid.R. 803(6), which allows the admission of:

              [a] memorandum, report, record, or data compilation, in any form, of
              acts, events, or conditions, made at or near the time by, or from
              information transmitted by, a person with knowledge, if kept in the
              course of a regularly conducted business activity, and if it was the
              regular practice of that business activity to make the memorandum,
              report, record, or data compilation, all as shown by the testimony of
              the custodian or other qualified witness or as provided by Rule
              901(B)(10), unless the source of information or the method or
              circumstances of preparation indicate lack of trustworthiness. * * *


       {¶22} “To qualify for admission under Rule 803(6), a business record must

manifest four essential elements: (i) the record must be one regularly recorded in a

regularly conducted activity; (ii) it must have been entered by a person with knowledge

of the act, event or condition; (iii) it must have been recorded at or near the time of the

transaction; and (iv) a foundation must be laid by the ‘custodian’ of the record or by

some ‘other qualified witness.’” (Citation omitted.) State v. Davis, 116 Ohio St.3d 404,


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2008-Ohio-2, 880 N.E.2d 31, ¶ 171. A qualified witness is someone with “‘enough

familiarity with the record-keeping system of the business in question to explain how the

record came into existence in the ordinary course of business.’” State v. Phillips, 11th

Dist. Lake No. 2016-L-029, 2017-Ohio-1204, ¶ 26, citing State v. Hood, 135 Ohio St.3d

137, 147, 2012-Ohio-6208, ¶ 40.

      {¶23} Magri argues that Matt Coulter testified that he no longer is the keeper of

records for Troy, is employed only as a machinist, and thus, is not qualified to testify as

to the business records in question. It must be noted however, that Coulter had been

the plant manager for fourteen years. Pursuant to his testimony, when he was plant

manager, he tended to “day to day business” including the upkeep of equipment,

maintenance records, purchase records, and calibration records. As to the purchase

order and warranty card for the grinder, Coulter was plant manager at the time these

documents were created in 2011 and testified that he had maintained these documents.

The warranty document has a notation on the bottom that a copy was given to Coulter

for his files. As to these records, he was well-qualified to testify as he was directly

involved in ensuring the grinder was warrantied and keeping up to date records of

purchases. While he may no longer physically maintain such records, he was permitted

to access them from the Troy files and it is hard to imagine a more well-qualified person

to testify about the grinder paperwork than the man who was directly involved in its

registration and maintenance.

      {¶24} As to the documents relating to the other equipment, these records were

created by OCS Technologies in 2016, and documented the results of calibration

services performed on the micrometers and indicator. Coulter testified that he is not




                                            7
currently involved in the calibration process, nor does he maintain the records for

calibration. However, it is worth noting again, he was a person who had extensive

knowledge of record-keeping and the calibration process from his experience as plant

manager, which would appear to satisfy the requirements that a qualified witness have

“familiarity with the record keeping system of the business.” Phillips at ¶ 26.

       {¶25} Magri also argues that a witness should have been called from OCS,

since it prepared the calibration documents.      As stated in Evid.R. 801(C), hearsay

includes only that which is “offered in evidence to prove the truth of the matter

asserted.” As to the calibration itself, there is no question that the prosecution did not

present the records from OCS to show the truth of the calibration, which was irrelevant

to the trial. As to the serial numbers, while these would constitute hearsay as they were

admitted to prove ownership of the items by Troy, Evid.R. 803(6)’s applicability as an

exception to the hearsay rules allows the admission of such a record.

       {¶26} Even if admission of the calibration records was made in error, such error

would be harmless. See Crim.R. 52(A) (“[a]ny error, defect, irregularity, or variance

which does not affect substantial rights shall be disregarded”). There is no reasonable

question as to whether Coulter was a qualified person to testify about, at the very least,

the grinder, for the reasons discussed above.           The grinder was purchased for

approximately $2,500 and listed for sale by Gold Star Pawn for over $1,300. Even if

evidence of other items was not admissible to prove the serial numbers of the

micrometers and the digital indicator, the evidence establishing the grinder theft alone

would have justified the fifth-degree felony Theft conviction, since this offense requires

that “the value of the property * * * stolen is one thousand dollars or more.” R.C.




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2913.02(B)(2).

       {¶27} The first assignment of error is without merit.

       {¶28} In his second assignment of error, Magri argues that his conviction for

Theft was not supported by sufficient evidence, nor the weight of the evidence.

       {¶29} Crim.R. 29(A) provides, in pertinent part: “[t]he court * * * shall order the

entry of a judgment of acquittal of one or more offenses charged * * * if the evidence is

insufficient to sustain a conviction of such offense or offenses.”       In reviewing the

sufficiency of the evidence, “[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.” 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

       {¶30} Whereas “sufficiency of the evidence is a test of adequacy as to whether

the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of

the evidence addresses the evidence’s effect of inducing belief.” State v. Wilson, 113

Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing State v. Thompkins, 78

Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997). “[A] reviewing court asks whose

evidence is more persuasive—the state’s or the defendant’s?” Id. An appellate court

must consider all the evidence in the record, the reasonable inferences, the credibility of

the witnesses, and whether, “in resolving conflicts in the 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.” (Citation omitted.) Thompkins at 387. “Since there

must be sufficient evidence to take a case to the jury, it follows that ‘a finding that a




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conviction is supported by the weight of the evidence necessarily must include a finding

of sufficiency.’” (Citation omitted.) State v. Arcaro, 11th Dist. Ashtabula No. 2012-A-

0028, 2013-Ohio-1842, ¶ 32.

       {¶31} To convict Magri of Theft, the State was required to prove, beyond a

reasonable doubt, that he did, “with purpose to deprive the owner of property or

services * * * 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.” R.C. 2913.02(A)(1).

       {¶32} Here, evidence was presented to support a conclusion that Magri had

possession of property that had been stolen from Troy, in that property alleged by a

Troy employee to have been stolen was pawned using Magri’s name and identification.

Magri admitted to having pawned the items in question. The testimony and exhibits

demonstrated matching descriptions, including serial numbers, of the items missing

from Troy and those recovered from the pawn shop. Coulter testified that Magri did not

have permission to possess these items. In Magri’s interview, he admitted he had

returned to Troy to visit friends after his termination.

       {¶33} It is a reasonable inference that Magri intended to deprive the owner of the

property, given that he pawned it. While there was no specific evidence presented to

show exactly how the property was acquired, it was also reasonable to infer that Magri

took the property from Troy or, at the least, was involved with other parties in taking the

items and would have realized this property belonged to Troy, having worked with the

equipment while employed there.

       {¶34} Magri’s main contention is that there “is no evidence that [he] is the person




                                              10
who stole the items subject of the Indictment.” The State counters that even if he did

not steal the items himself, having a friend steal the items and provide them to him

constitutes Theft.

       {¶35} It has been held that, “a jury may reasonably infer that a defendant

committed theft or burglary based on the following circumstantial evidence: (1) the

stolen items were found in the defendant’s possession ‘soon thereafter,’” i.e., with “close

temporal proximity” between the commission of the crime and defendant’s possession

of the items and “(2) there are ‘other circumstances indicative of guilt’—for example, the

lack of a credible explanation of how the defendant came to possess the stolen items so

soon after the crime occurred.” State v. Smith, 6th Dist. Lucas Nos. L-16-1113, et al.,

2017-Ohio-5762, ¶ 45, citing Methard v. State, 19 Ohio St. 363, 368 (1869); see

also State v. McAllister, 53 Ohio App.2d 176, 180, 372 N.E.2d 1341 (8th Dist.1977)

(“unexplained possession by a defendant of recently stolen property may give rise to a

permissible inference from which a jury may conclude, beyond a reasonable doubt, that

the accused is guilty of the theft”). This principle has been applied to cases for Theft

under R.C. 2913.02(A)(1), the same charge present in this matter. In re R.T., 8th Dist.

Cuyahoga No. 101093, 2014-Ohio-5686, ¶ 13-17; State v. Boone, 6th Dist. Lucas No.

L-16-1246, 2018-Ohio-772, ¶ 16-19.

       {¶36} Here, the items were found in a pawn shop approximately a month after

the timeframe during which they went missing, as described by Coulter (although he

was uncertain as to the exact time they disappeared). While Magri explained in his

interview with police that he had either previously owned the property or accidentally

mixed up Troy property with his own tools while employed there, we find that the jury




                                            11
was entitled to determine this was not a reasonable explanation. Coulter testified that

no permission was given to take the items and that while some employees had some

personal equipment used on the job, these were the type of items that remained within

the shop to complete the manufacturing process. At least one item, the grinder, was a

larger tool that would not be removed from Troy property “accidentally.” Further, the

items went missing after Magri’s employment terminated. Any contention that they were

Magri’s personal items from a prior job is entirely inconsistent with the records and

testimony demonstrating that they belonged to Troy. See State v. Cody, 6th Dist. Huron

No. H-88-33, 1989 WL 65113, *1, 3 (June 16, 1989) (finding, in the context of a

receiving stolen property conviction, that a stolen item, including unique qualities,

identified by the owner, found three months after the item was stolen, and which was

inexplicably in the defendant’s possession, met the requirements for a “permissive

inference that the defendant is guilty of a theft offense”).

       {¶37} While this case is based on circumstantial evidence, a fact with which

Magri takes issue, the well-established law of Ohio is that a defendant may be convicted

solely on the basis of circumstantial evidence. State v. Nicely, 39 Ohio St.3d 147, 151,

529 N.E.2d 1236 (1988). “Circumstantial evidence is not less probative than direct

evidence, and, in some instances, is even more reliable.” (Citation omitted.) Id.

       {¶38} Based on the foregoing, we reject Magri’s argument that the Theft

conviction was against the weight of the evidence, and, therefore, that there was

insufficient evidence for such conviction. While much of his argument relies on the

belief that the evidence was essentially too circumstantial to allow a conviction, this was

primarily based on the belief that his possession of the items could not prove Theft.




                                             12
However, possession was a primary factor in demonstrating his guilt, especially when

tied to the circumstances that he had recently been terminated from his employment

and had no reason to be in possession of the items.

      {¶39} The second assignment of error is without merit.

      {¶40} For the foregoing reasons, Magri’s convictions in the Geauga County

Court of Common Pleas are affirmed. Costs to be taxed against appellant.



TIMOTHY P. CANNON, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents.




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