[Cite as State v. Coleman, 2012-Ohio-2399.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                              :   JUDGES:
STATE OF OHIO                                 :   W. Scott Gwin, P.J.
                                              :   William B. Hoffman, J.
                         Plaintiff-Appellee   :   Julie A. Edwards, J.
                                              :
-vs-                                          :   Case No. 2011CA00157
                                              :
                                              :
CHANDRA COLEMAN                               :   OPINION

                    Defendant-Appellant




CHARACTER OF PROCEEDING:                           Criminal Appeal from Massillon
                                                   Municipal Court Case No.
                                                   2010CRB2650

JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            May 29, 2012

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

ROBERT A. ZEDELL                                   GEORGE URBAN
Massillon Law Department                           116 Cleveland Ave., N.W.
Two James Duncan Plaza                             Suite 808
Massillon, Ohio 44646                              Canton, Ohio 44702
[Cite as State v. Coleman, 2012-Ohio-2399.]


Edwards, J.

        {¶1}    Appellant, Chandra Coleman, appeals a judgment of the Massillon

Municipal Court convicting her of theft in violation of R.C. 2913.02(A)(1) and sentencing

her to 180 days incarceration with 150 days suspended. Appellee is the State of Ohio.

                                   STATEMENT OF FACTS AND CASE

        {¶2}    On December 16, 2010, Lori Stolte, a loss prevention officer at Burlington

Coat Factory, noticed appellant selecting merchandise without checking for size or

condition. This conduct made Stolte suspicious. Appellant selected several items from

the little girls department and several items from the little boys department. Appellant

had placed her partially-empty cloth purse in the area of the cart where a small child

sits.   Initially, appellant placed the clothing on top of the purse.    Stolte later saw

appellant fold the items and place them under her purse. Appellant had no other items

in her cart. She then went to the front of the store and stood next to a person in line at

the checkout.

        {¶3}    Although appellant waited in the checkout line for 15 minutes, she did not

attempt to pay for the items. Appellant exited the store with the unpaid items in her cart.

Stolte confronted her in the parking lot. Appellant told Stolte initially that she did not

have anything under her purse. She then told Stolte that she simply forgot the items

were there. The cost of the items totaled $71.95.

        {¶4}    Patrolman Todd Macaluso from the Jackson Township Police Department

arrived at the store after Stolte called the police. He spoke with appellant at the store.

She told the officer that she forgot to pay for the items. She declined to write a written

statement.
Stark County App. Case No. 2011CA00157                                                 3


       {¶5}    Appellant was charged with theft. The case proceeded to jury trial in the

Massillon Municipal Court. Appellant testified at trial that she came to the store with a

friend to get some Christmas items out of layaway. She got the items out of layaway

and claimed the bag containing these items was in her cart. While in the store, she

selected the children’s clothing items in her cart as Christmas presents for her great-

niece and great-nephew.      She also looked at luggage for her mother because her

mother travels a lot, but she did not have enough money or room on her credit card to

purchase luggage. She testified that she never folded the clothing and simply placed

her purse on top of the clothing after checking to see if she had enough money to buy

the luggage.    She then met her friend in line at the front of the store intending to

checkout. While in line, her niece called her and said that appellant’s mother had just

fallen and “busted her head.” Tr. 94. Appellant testified that she became very upset

and began crying in line because she had been very concerned about her mother’s

health. She testified that she was not yet outside the store but was in the area between

the two doors to the store when she realized she had the items in her cart and turned

around to put them back. However, Stolte apprehended her at that point. She testified

that she told Stolte about her concerns for her mother and that she was upset at the

time. She testified that she believed Stolte called the police because appellant called

Stolte a “damn liar” during their encounter in the store.

       {¶6}    Appellant was found guilty by the jury and convicted of theft. She was

sentenced to 180 days incarceration with 150 days suspended. She assigns three

errors on appeal:
Stark County App. Case No. 2011CA00157                                                  4


      {¶7}   “I. THE DEFENDANT’S CONVICTION FOR ONE COUNT OF THEFT IN

VIOLATION OF R.C. 2913.02 WAS AGAINST THE MANIFEST WEIGHT AND

SUFFICIENCY OF THE EVIDENCE.


      {¶8}   “II.   APPELLANT      WAS    DENIED      EFFECTIVE      ASSISTANCE       OF

COUNSEL.


      {¶9}   “III. APPELLANT WAS DENIED A FAIR TRIAL AS A RESULT OF

PROSECUTORIAL MISCONDUCT.”

                                                I

      {¶10} In her first assignment of error, appellant argues that her conviction is

against the manifest weight and sufficiency of the evidence.

      {¶11} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of

witnesses, and determines whether in resolving conflicts in 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. Thompkins, 78 Ohio St. 3d 380, 387,

1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485

N.E.2d 717 (1983).

      {¶12} An appellate court's function when reviewing the sufficiency of the

evidence is to determine 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
Stark County App. Case No. 2011CA00157                                                  5

crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574

N.E.2d 492, paragraph two of the syllabus (1991).

       {¶13} Theft is defined by R.C. 2913.02(A)(1):

       {¶14} “(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:

       {¶15} Without the consent of the owner or person authorized to give consent;”

       {¶16} Appellant specifically argues there was no evidence that she acted with

purpose as defined by R.C. 2901.22(A):

       {¶17} “(A) A person acts purposely when it is his specific intention to cause a

certain result, or, when the gist of the offense is a prohibition against conduct of a

certain nature, regardless of what the offender intends to accomplish thereby, it is his

specific intention to engage in conduct of that nature.”

       {¶18} Appellant argues that her testimony establishes that she was distraught

over news of her mother’s fall and simply forgot to pay for the items. However, her

testimony was directly controverted by the testimony of Stolte. Stolte testified that she

observed appellant grab items without checking for sizes or condition. Appellant folded

the items and placed them under her purse, flattening her cloth purse on top of the

items. She observed appellant in the checkout line and did not see appellant speak on

her cell phone, nor did appellant appear to be upset or crying in the line. She testified

that appellant never told her that she was upset about her mother, but rather first

claimed she did not have any items and then claimed she forgot to pay. Patrolman
Stark County App. Case No. 2011CA00157                                                   6


Macaluso also testified that appellant said nothing to him about an emergency and

stated simply that she forgot to pay.

       {¶19} Clearly the jury chose to reject appellant’s testimony. Stolte’s testimony

was sufficient, if believed by the jury, to find that appellant acted with purpose. The

judgment is not against the manifest weight or sufficiency of the evidence. The first

assignment of error is overruled.

                                             II

       {¶20} In her second assignment of error, appellant argues counsel was

ineffective for failing to object to impermissible expert opinion testimony by Stolte.

       {¶21} A properly licensed attorney is presumed competent. State v. Hamblin, 37

Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of

ineffective assistance of counsel, appellant must show counsel's performance fell below

an objective standard of reasonable representation and but for counsel’s error, the

result of the proceedings would have been different.        Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136,

538 N.E.2d 373 (1989). In other words, appellant must show that counsel’s conduct so

undermined the proper functioning of the adversarial process that the trial cannot be

relied upon as having produced a just result. Id.

       {¶22} Stolte testified that she believed appellant was purposely placing items

under her purse to conceal them. Appellant argues that Stolte’s testimony concerning

appellant’s state of mind violated Evid. R. 701:

       {¶23} “If the witness is not testifying as an expert, the witness' testimony in the

form of opinions or inferences is limited to those opinions or inferences which are (1)
Stark County App. Case No. 2011CA00157                                                    7


rationally based on the perception of the witness and (2) helpful to a clear

understanding of the witness' testimony or the determination of a fact in issue.”

      {¶24} Stolte’s testimony that appellant was purposely placing the items under

her purse was rationally based on her perceptions in the store. Stolte had worked for

20 years as a loss prevention officer. Her conclusion that appellant acted purposely

was based on her observations of appellant taking items without checking for size or

imperfections , folding the items and flattening her purse on top of the items.     Further,

the evidence was helpful to the jury’s understanding of her testimony concerning why

she watched appellant and ultimately confronted her outside the store and to

determining a fact in issue, namely appellant’s state of mind. Appellant has not

demonstrated that had counsel objected, the objection would have been sustained and

she would have been acquitted.

      {¶25} The second assignment of error is overruled.

                                               III

      {¶26} In her final assignment of error, appellant argues that the prosecutor

committed misconduct in closing argument. The prosecutor stated:

      {¶27} “State believe (sic) Chandra Coleman is guilty because of the fact she

folded these items and placed them under her purse, and then stood next to the check

out (sic) line making no attempts whatsoever to check out. Never looking down to

check her cart, never picking up her purse to make sure there are no items in the cart.

Even though she said her intention was to buy items for her nieces and nephews she

completely forgot about them in her cart. Doesn’t sound very believable to me and the

State believes she is guilty because of this and I would ask that you find the same.”
Stark County App. Case No. 2011CA00157                                                   8


       {¶28} Appellant concedes that she failed to object and we must find plain error in

order to reverse. In order to prevail under a plain error analysis, appellant bears the

burden of demonstrating that the outcome of the trial clearly would have been different

but for the error. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978); Notice of plain

error “is to be taken with the utmost caution, under exceptional circumstances and only

to prevent a manifest miscarriage of justice.” Id. at paragraph three of the syllabus.

       {¶29} The test for prosecutorial misconduct is whether the prosecutor's

comments and remarks were improper and if so, whether those comments and remarks

prejudicially affected the substantial rights of the accused. State v. Lott, 51 Ohio St.3d

160, 555 N.E.2d 293 (1990). In reviewing allegations of prosecutorial misconduct, we

must review the complained of conduct in the context of the entire trial. Darden v.

Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).

       {¶30} Parties are given wide latitude when making their closing arguments.

State v. Hand, 107 Ohio St.3d 378, 397, 840 N.E2d 151, 2006–Ohio–18, citing Lott. The

state can summarize the evidence and draw conclusions as to what the evidence

shows. Id. at 165. However, the prosecution must avoid insinuations and assertions that

are calculated to mislead the jury. State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883

(1984). Prosecutors also may not render their personal beliefs regarding the guilt of the

accused. Id. Nevertheless, since isolated instances of prosecutorial misconduct are

usually harmless, any alleged misconduct in the closing argument must be viewed

within the context of the entire trial to determine if any prejudice has occurred. See

State v. Lorraine, 66 Ohio St.3d 414, 420, 613 N.E.2d 212 (1993).
Stark County App. Case No. 2011CA00157                                                  9


         {¶31} While the prosecutor should not have commented on her personal belief

of appellant’s guilt, the remarks in the instant case were isolated and limited solely to

rebuttal closing argument. Viewed in the context of the entire trial, we cannot find plain

error.    The testimony of Stolte, which clearly the jury believed over appellant’s

testimony, established that appellant placed the items under her purse and left the store

without paying for them.     Based on the evidence presented, we cannot conclude that

had the prosecutor not made these limited remarks about her personal beliefs of guilt,

appellant would have been acquitted.

         {¶32} The third assignment of error is overruled.

         {¶33} The judgment of the Massillon Municipal Court is affirmed.




By: Edwards, J.

Gwin, P.J. and

Hoffman, J. concur

                                                    ______________________________



                                                    ______________________________



                                                    ______________________________

                                                                JUDGES

JAE/r0214
[Cite as State v. Coleman, 2012-Ohio-2399.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
CHANDRA COLEMAN                                  :
                                                 :
                       Defendant-Appellant       :       CASE NO. 2011CA00157




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

judgment of the Massillon Municipal Court is affirmed. Costs assessed to appellant.




                                                     _________________________________


                                                     _________________________________


                                                     _________________________________

                                                                  JUDGES
