[Cite as Tallmadge v. Johnson, 2016-Ohio-5214.]


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

CITY OF TALLMADGE                                      C.A. No.   27936

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
TENEIKA Y. JOHNSON                                     STOW MUNICIPAL COURT
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   2014CRB03932

                                DECISION AND JOURNAL ENTRY

Dated: August 3, 2016



        MOORE, Presiding Judge.

        {¶1}    Appellant, Teneika Johnson, appeals her conviction by the Stow Municipal Court.

This Court affirms.

                                                  I.

        {¶2}    On December 6, 2014, a loss prevention employee of Kmart in Tallmadge saw

two women enter the store with large purses. They gathered some children’s merchandise and

walked to the cashiers’ area, where one of the women made a payment toward a layaway

account. When the Kmart employee approached the women, they ran from the store and drove

away in a white Ford Edge. The employee provided police with the license plate number and

identified the owner of the layaway account as Teneika Johnson.

        {¶3}    When Ms. Johnson returned to the store to return an item from layaway, store

employees called the police. They arrested Ms. Johnson outside the store near a vehicle that

matched the earlier description. Ms. Johnson was charged with petty theft in violation of
                                                2


Codified Ordinances of the City of Tallmadge 545.05, a first-degree misdemeanor. The trial

court found Ms. Johnson guilty and sentenced her to a fine of $1000, with $800 suspended, and

180 days in jail, suspended on the condition that she complete community control. The trial

court also ordered Ms. Johnson to pay $70 restitution to Kmart. Ms. Johnson filed this appeal.

Some of her assignments of error have been rearranged for ease of discussion.

                                               II.

                                ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN VIOLATION OF THE CONFRONTATION
       CLAUSE OF THE SIXTH AND FOURTEENTH AMENDMENTS OF THE
       U.S. CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO
       CONSTITUTION WHEN IT RELIED ON HEARSAY EVIDENCE FROM A
       DECLARANT OF UNKNOWN AVAILABILITY IN ITS FINDING OF FACT
       AND THEN FOUND MS. JOHNSON GUILTY.

       {¶4}    In her first assignment of error, Ms. Johnson argues that the trial court erred by

permitting hearsay testimony that violated the Confrontation Clause. This Court does not agree.

       {¶5}    The Sixth Amendment to the United States Constitution guarantees an accused

the right to confront witnesses against him. Crawford v. Washington, 541 U.S. 36, 54 (2004). As

a general rule, the Confrontation Clause is implicated by the admission of out-of-court

statements that are testimonial in nature when the declarant does not testify in the proceeding.

See Melandez–Diaz v. Massachusetts, 557 U.S. 305, 309-310 (2009). When no such statements

are admitted, the Confrontation Clause is not implicated. In this case, the Kmart employee

testified about his own observations on the evening in question. When he started to relate

statements made by his supervisor on several occasions, defense counsel objected. The trial

court sustained the objection, and the trial court’s written findings of fact relied solely on the

employee’s testimony regarding his own observations. In other words, the trial court did not

admit any of the statements at issue, so there was no error with respect to the Confrontation
                                                 3


Clause. Because we need go no further than this in our analysis of this issue, we make no

determination with respect to whether the statements at issue were testimonial in nature.

       {¶6}    Ms. Johnson’s first assignment of error is overruled.

                                ASSIGNMENT OF ERROR III

       THE EVIDENCE SUPPORTING MS. JOHNSON’S CONVICTION FOR
       PETTY THEFT WAS INSUFFICIENT TO PROVE GUILT BEYOND A
       REASONABLE DOUBT IN VIOLATION OF THE DUE PROCESS CLAUSE
       OF THE SIXTH AND FOURTEENTH AMENDMENTS OF THE U.S.
       CONSTITUTION AND THE DUE PROCESS CLAUSE OF THE OHIO
       CONSTITUTION.

       {¶7}    Ms. Johnson’s third assignment of error is that her conviction for petty theft is not

supported by sufficient evidence. Specifically, she has argued that there is insufficient evidence

that she is the person who stole merchandise from the Tallmadge Kmart. We disagree.

       {¶8}    “Whether a conviction is supported by sufficient evidence is a question of law

that this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009-Ohio-

6955, at ¶ 18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The relevant inquiry is

whether the prosecution has met its burden of production by presenting sufficient evidence to

sustain a conviction. Thompkins at 390 (Cook, J., concurring). In reviewing the evidence, we do

not evaluate credibility, and we make all reasonable inferences in favor of the State. State v.

Jenks, 61 Ohio St.3d 259, 273 (1991). The State’s evidence is sufficient if it allows the trier of

fact to reasonably conclude that the essential elements of the crime were proven beyond a

reasonable doubt. Id.

       {¶9}    Codified Ordinances of the City of Tallmadge 545.05(a)(1), which is analogous to

R.C. 2913.02(A)(1), provides that “No 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[.]” The identity of a
                                                 4


perpetrator must also be proved by the State beyond a reasonable doubt. State v. Flynn, 9th Dist.

Medina No. 06CA0096-M, 2007-Ohio-6210, ¶ 12.

        {¶10} In this case, the Kmart security employee testified that between 6:00 and 7:00

p.m., he saw two women with large purses enter the store, proceed to the children’s clothing

department, and gather several items of clothing. He recalled that the women then went to the

infants’ department and put the merchandise into their purses. He also testified that when he

approached the women after they completed a transaction at the cash registers, they ran. The

employee identified Ms. Johnson as one of the two women, and records from the layaway

transaction also identified her as the owner of the layaway account. Ms. Johnson was arrested

when she returned to the store in late December in the same vehicle that had been used the night

of the theft.

        {¶11} Based on this testimony, a jury could reasonably conclude that Ms. Johnson

committed petty theft by stealing the items at issue. Her third assignment of error is overruled.

                                ASSIGNMENT OF ERROR II

        MS. JOHNSON’S CONVICTION FOR THEFT WAS AGAINST THE
        MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF ARTICLE IV,
        SECTION 3, OF THE OHIO CONSTITUTION.

        {¶12} Ms. Johnson’s second assignment of error is that her conviction for petty theft is

against the manifest weight of the evidence because some of the witnesses at trial testified that

she was at another location during the theft. We disagree that her conviction is against the

weight of the evidence.

        {¶13} When considering whether a conviction is against the manifest weight of the

evidence, this Court must:

        review the entire record, weigh the evidence and all reasonable inferences,
        consider the credibility of witnesses and determine whether, in resolving conflicts
                                                 5


       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). A reversal on this basis is reserved for

the exceptional case in which the evidence weighs heavily against the conviction. Id., citing

State v. Martin, 20 Ohio App.3d 172, 172 (1st Dist.1983).

       {¶14} Ms. Johnson has argued that the weight of the evidence at trial established that

she was not at the Tallmadge Kmart on the evening of the theft. Ms. Johnson, who testified in

her own defense, testified that she cleaned a daycare center on Ardella Avenue in Akron on the

day in question from around 4:40 p.m. until 10:00 p.m. She admitted that the car identified at the

Kmart was hers, but testified that she loaned it to a friend the day of the theft and gave the same

friend her driver’s license so that the friend could make a payment on her layaway account in her

absence. A second friend testified that she helped Ms. Johnson with her cleaning responsibilities

on the night of the theft, but she also admitted that she could not remember what Ms. Johnson

was wearing that day, that she did not know whether Ms. Johnson drove there or was dropped

off, and that she did not pay attention to what time Ms. Johnson left the daycare center.

       {¶15} Notably, there are gaps in both women’s testimony. In addition, Ms. Johnson’s

testimony that she gave her vehicle and driver’s license to an acquaintance who was not licensed

to drive is of questionable veracity. Ms. Johnson’s testimony and the testimony of her cleaning

companion were also at odds with the testimony of the Kmart employee, who witnessed the theft

and identified Ms. Johnson as the woman who committed the theft and returned to the store in

late December. Having reviewed all of the testimony at trial and considered the credibility of all

of the witnesses, however, we cannot conclude that this is the exceptional case in which the

evidence at trial weighs heavily against the conviction.
                                                 6


       {¶16} Ms. Johnson’s second assignment of error is overruled.

                                                III.

       {¶17} Ms. Johnson’s assignments of error are overruled. The judgment of the Stow

Municipal 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 Stow Municipal

Court, 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.




                                                       CARLA MOORE
                                                       FOR THE COURT



WHITMORE, J.
HENSAL, J.
CONCUR.
                                         7


APPEARANCES:

REBECCA M. BLACK, Attorney at Law, for Appellant.

MEGAN E. RABER, Director of Law, and JOHN A. SCAVELLI, JR., Assistant Director of
Law, for Appellee.
