[Cite as State v. Colon, 2011-Ohio-3446.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. Sheila G. Farmer, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-

PATTI L. COLON                                     Case No. 2011CA00018

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from Alliance Municipal Court, Case
                                               No. 2010CRB01124



JUDGMENT:                                      Affirmed




DATE OF JUDGMENT ENTRY:                         July 11, 2011




APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

WILLIAM F. MORRIS                              AARON KOVALCHIK
470 East Market Street                         116 Cleveland Avenue North
Alliance, OH 44601                             Suite 808
                                               Canton, OH 44702
Stark County, Case No. 2011CA00018                                                           2

Farmer, J.

       {¶1}   On September 2, 2010, appellant, Patti Colon, was charged with one

count of theft in violation of R.C. 2913.02. Said charge arose from an incident wherein

appellant was stopped while exiting a Wal-Mart with unpaid merchandise (Cricut

cartridges) inside her purse.

       {¶2}   A jury trial commenced on December 16, 2010. The jury found appellant

guilty as charged.    By judgment entry filed same date, the trial court sentenced

appellant to three days in jail and ordered her to pay a fine of $100.00 plus court costs.

       {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                             I

       {¶4}   "APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT

AND SUFFICIENCY OF THE EVIDENCE."

                                             I

       {¶5}   Appellant claims her conviction for theft was against the manifest weight

and sufficiency of the evidence. We disagree.

       {¶6}   On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks (1991), 61 Ohio St.3d 259. "The 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

paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307. On

review for manifest weight, a reviewing court is to examine the entire record, weigh the
Stark County, Case No. 2011CA00018                                                        3


evidence and all reasonable inferences, consider the credibility of witnesses and

determine "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." State v. Martin (1983), 20 Ohio App.3d 172, 175. See also, State

v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new trial "should be

exercised only in the exceptional case in which the evidence weighs heavily against the

conviction." Martin at 175. We note the weight to be given to the evidence and the

credibility of the witnesses are issues for the trier of fact. State v. Jamison (1990), 49

Ohio St.3d 182, certiorari denied (1990), 498 U.S. 881. The trier of fact "has the best

opportunity to view the demeanor, attitude, and credibility of each witness, something

that does not translate well on the written page." Davis v. Flickinger, 77 Ohio St.3d 415,

418, 1997-Ohio-260.

       {¶7}   Appellant argues the evidence that she knowingly committed a theft

offense was insufficient to support a conviction beyond a reasonable doubt, and the

testimony of Tobias Young, Wal-Mart's loss prevention employee, lacked credibility.

Appellant was convicted of theft in violation of R.C. 2913.02(A) which states the

following:

       {¶8}   "(A) No person, with purpose to deprive the owner of property or services,

shall knowingly obtain or exert control over either the property or services in any of the

following ways:

       {¶9}   "(1) Without the consent of the owner or person authorized to give

consent;
Stark County, Case No. 2011CA00018                                                     4


      {¶10} "(2) Beyond the scope of the express or implied consent of the owner or

person authorized to give consent;

      {¶11} "(3) By deception;

      {¶12} "(4) By threat;

      {¶13} "(5) By intimidation."

      {¶14} Appellant argues her testimony that she had previously purchased the

Cricut cartridges at Wal-Mart on a different date was more credible than Mr. Young's

testimony.

      {¶15} Mr. Young testified he first observed appellant in the craft department,

hunched over her shopping cart and digging into her purse. T. at 22-23. She then took

plastic bags out of her purse and threw them in the bottom of her cart. T. at 23. This

caused Mr. Young to continue watching appellant until she left the store to make sure

she was not going to place anything within the bags and try to leave the store. T. at 24-

25. Mr. Young observed appellant take three Cricut cartridges off the shelf and place

them in the top part of her cart. Id. She proceeded to the electronics department and

picked up a movie, and walked over to the girls department near the socks display. T.

at 25. While in the girl's department, he observed appellant open her purse, place the

three Cricut cartridges inside, and "zipped it shut." T. at 26. Appellant then proceeded

to the register, paid for the movie, and exited the store. T. at 26. The door "dinged" as

the security tags on the Cricut cartridges had not been de-activated. T. at 45-46. Mr.

Young stopped appellant and informed her she was being stopped for the Cricut

cartridges in her purse to which she responded "okay you got me." T. at 27. Diana

Knipp, customer service manager, overheard appellant's statement. T. at 45, 49.
Stark County, Case No. 2011CA00018                                                          5


       {¶16} Appellant testified when she entered the Wal-Mart store, the three Cricut

cartridges were in her purse and the door "dinged." T. at 63-64. She showed the

cartridges to the greeter and he told her not to worry "I'll get you on the way out if it goes

off." T. at 63. Appellant admitted to going to the craft department and looking at the

Cricut cartridges, but put everything back. T. at 64. While in the girls department, she

pulled things from her purse looking for "chap stick." T. at 65-66. She pulled the Cricut

cartridges out then put them back in. T. at 66. Appellant testified she purchased the

cartridges at Wal-Mart some weeks prior and they were never properly de-activated. T.

at 73, 75. The cartridges were in her purse because she intended to use them later that

day. T. at 66. Appellant denied saying "okay you got me" after she was stopped, just

"okay." T. at 68.

       {¶17} As we noted earlier, credibility is within the province of the triers of fact.

The jury was given two versions of the events. Both Mr. Young and Ms. Knipp testified

appellant stated "you got me." Appellant's argument that she had previously purchased

the Cricut cartridges was not supported by any independent evidence.

       {¶18} The jury had before it Mr. Young's personal observations as to appellant's

activity as well as her spontaneous admission when stopped which was testified to by

both Mr. Young and Ms. Knipp. Upon review, we find sufficient credible evidence in the

record to support the jury's verdict, and no manifest miscarriage of justice.

       {¶19} The sole assignment of error is denied.
Stark County, Case No. 2011CA00018                                                6


      {¶20} The judgment of the Alliance Municipal Court is hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Delaney, J. concur.




                                          _s/ Sheila G. Farmer_________________




                                          _s/ William B. Hoffman________________




                                          _s/ Patricia A. Delaney________________

                                                           JUDGES

SGF/sg 0622
Stark County, Case No. 2011CA00018                                                  7


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT




STATE OF OHIO                               :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
PATTI L. COLON                              :
                                            :
       Defendant-Appellant                  :         CASE NO. 2011CA00018




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Alliance Municipal Court is affirmed. Costs to appellant.




                                            _s/ Sheila G. Farmer_________________




                                            _s/ William B. Hoffman________________




                                            _s/ Patricia A. Delaney________________

                                                             JUDGES
