[Cite as State v. Hart, 2017-Ohio-1246.]


                                        COURT OF APPEALS
                                    COSHOCTON COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                 :       Hon. Craig R. Baldwin, J.
                                             :       Hon. Earle E. Wise, Jr, J.
-Vs-                                         :
                                             :
THOMAS M. HART                               :       Case No. 2016CA0014
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Coshocton
                                                     Municipal Court, Case No.
                                                     CRB1500884




JUDGMENT:                                            Affirmed



DATE OF JUDGMENT:                                    April 3, 2017




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

RICHARD J. SKELTON                                   ROBERT E. WEIR
Assistant Law Director                               239 N. 4th Street
760 Chestnut Street                                  Coshocton, Ohio 43812
Coshocton, Ohio 43812

JAMES R. SKELTON
Police Prosecutor
760 Chestnut Street
Coshocton, Ohio 43812
Coshocton County, Case No. 2016CA0014                                             2

Baldwin, J.

       {¶1}   Defendant-appellant Thomas M. Hart appeals his conviction and sentence

from the Coshocton Municipal Court on one count of theft. Plaintiff-appellee is the State

of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On December 2, 2015, appellant was charged with theft in violation of R.C.

2913.02(A) (1), a misdemeanor of the first degree. At his arraignment on May 19, 2016,

appellant entered a plea of not guilty.

       {¶3}   Subsequently, a bench trial was held on July 6, 2016. At the bench trial,

Deputy Matt Woitel of the Coshocton County Sheriff’s Office testified that, on November

20, 2015, he was dispatched to Dollar General in response to the theft of a Sega gaming

system. The Deputy spoke with the manager, Heather Powell, who showed him a video.

Powell told him that a man had come into the store on November 18th with his girlfriend,

looked at the system and then left. The same man came back the next day wearing the

same red sweatshirt and hat, walked in and grabbed the same Sega gaming system off

of the shelf, and then walked out of camera view for a few minutes. He then came back

without the Sega and left after paying for another item. The Sega gaming system came

up missing during an inventory on November 20. 2015. Videos from both November 18,

2015 and November 19, 2015 were played at trial.

       {¶4}   Deputy Woitel testified that he spoke with appellant, who was wearing the

same hat and who, in the video, was wearing the red sweatshirt, and that while appellant

admitted to being in the store that day, he denied taking the item. According to the

Deputy, appellant told him that, on November 19, 2015, he put the gaming system down
Coshocton County, Case No. 2016CA0014                                                 3


in the deodorant aisle. The Deputy testified that the video showed that appellant had

never entered the deodorant aisle. The game was never recovered. When asked at trial

if he was able to identify appellant coming into the store on the videos, the Deputy

answered affirmatively. He further testified that, on the video from November 19, 2015,

there appeared to be something near the front pocket of appellant’s sweatshirt.

       {¶5}   Heather Powell, the manager at Dollar General, testified that she reviewed

the store’s video system on November 20, 2015 and noticed that the Sega system was

missing. After watching the video from the store, Powell observed that, on November 18,

2015, appellant was shopping with Eternity Tidrick and picked up the box that the system

was in, talked to Tidrick about it, and then put the box back on the shelf. She testified that

she then watched the video from the next night and that “it was the same person…that

was with Eternity the night before” Transcript at 25. Powell testified that appellant came

in, took the box off of the shelf, and went to another area. When he came back, appellant

did not have the box. According to her, appellant never went to the deodorant aisle.

Powell further testified that the videos showed that from the time appellant was in the

store until the time the game was discovered missing, no one other than appellant

touched a Sega game.

       {¶6}   At the conclusion of the testimony, appellant moved for a judgment of

acquittal. The trial court overruled appellant’s motion and found appellant guilty. The trial

court, as memorialized in a Judgment Entry filed on July 6, 2016, sentenced appellant to

60 days in jail, but suspended 50 of those days provided that appellant complied with

specified conditions, The trial court also fined appellant $250.00 and ordered him to pay

restitution in the amount of $49.00 to Dollar General.
Coshocton County, Case No. 2016CA0014                                                 4


       {¶7}   Appellant now raises the following assignments of error on appeal:

       {¶8}   THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S CRIM.R.

29 MOTION FOR JUDGMENT OF ACQUITTAL FOLLOWING APPELLEE’S CASE-IN-

CHIEF.

       {¶9}   THE DECISION OF THE TRIAL COURT, FINDING APPELLANT GUILTY,

WAS AGAINST THE SUFFICIENCY OF THE EVIDENCE.

       {¶10} THE DECISION OF THE TRIAL COURT, FINDING APPELLANT GUILTY,

WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

                                               I, II, III

       {¶11} Appellant, in his first assignment of error, argues that the trial court erred in

denying his Crim.R. 29 motion for judgment of acquittal. While appellant, in his second

assignment of error, contends that his conviction for theft was against the sufficiency of

the evidence, in his third assignment of error he maintains that his conviction was against

the manifest weight of the evidence.

       {¶12} A Crim. R. 29(A) motion for acquittal tests the sufficiency of the evidence

presented at trial. State v. Blue, 5th Dist. Stark No.2001CA00250, 2002–Ohio–351, citing

State v. Williams, 74 Ohio St.3d 569, 576, 1996-Ohio-91, 660 N.E.2d 724; State v. Miley,

114 Ohio App.3d 738, 742, 684 N.E.2d 102 (4th Dist.1996). Crim. R. 29(A) allows a trial

court to enter a judgment of acquittal when the state's evidence is insufficient to sustain

a conviction. A trial court should not sustain a Crim. R. 29 motion for acquittal unless,

after viewing the evidence in a light most favorable to the state, the court finds no rational

finder of fact could find the essential elements of the charge proven beyond a reasonable
Coshocton County, Case No. 2016CA0014                                               5

doubt. State v. Franklin, 5th Dist. Stark No.2007–CA–00022, 2007–Ohio–4649 at ¶ 12,

citing State v. Dennis, 79 Ohio St.3d 421, 1997–Ohio–372, 683 N.E.2d 1096.

       {¶13} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,

1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review for

a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme

Court held, “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. 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.”

       {¶14} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

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

of witnesses and determines 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 overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.

Reversing a conviction as being against the manifest weight of the evidence and ordering

a new trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.
Coshocton County, Case No. 2016CA0014                                                 6


       {¶15} Appellant was convicted of theft in violation of R.C. 2913.02(A)(1) which

states as follows: “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: (1) Without the consent of the owner or person authorized to give

consent;..” Appellant now contends that the evidence was insufficient to convict him of

theft because there were no eyewitnesses to any theft, the videos do not show appellant

stealing any items, and the missing Sega game may have been in any number of places

in the Dollar General store. Appellant also notes that no witness identified appellant as

the male in the videos and neither individual who testified at trial was asked whether or

not the person in the video was sitting in appellant’s chair.

       {¶16} In the case sub judice, video showed a man looking at a Sega gaming

system on November 18, 2015. The same man was shown on a separate video from

November 19, 2015 grabbing the same Sega gaming system off of the shelf and walking

out of camera view. The man, who wore the same red sweatshirt and black baseball hat

on both days, came back without the Sega, paid for another item and then left the store.

At trial, Deputy Woitel testified that he was able to identify appellant coming into the store

on November 19, 2015 from the video. Heather Powell, the store manager, testified that

no one touched the Sega between the time appellant came in on November 19, 2015 and

the time she discovered it missing on November 20, 2015. When questioned by Deputy

Woitel, appellant, who was wearing the same hat, denied taking the Sega gaming system

and stated that he had left it in the deodorant aisle. However, the video showed that

appellant never entered the deodorant aisle. Moreover, the video from November 19,

2015 showed something near the front pocket of appellant’s sweatshirt.
Coshocton County, Case No. 2016CA0014                                             7


       {¶17} Based on the foregoing, we find that, after viewing the evidence in a light

most favorable to the state, any rational trier of fact could have found the essential

elements of the crime of theft proven beyond a reasonable doubt. We further find that the

trial court did not lose its way in convicting appellant of theft.

       {¶18} Appellant’s three assignments of error are, therefore, overruled.

       {¶19} Accordingly, the judgment of the Coshocton Municipal Court is affirmed.

By: Baldwin, J.

Gwin, PP. and

Wise, Earle, J. concur.
