[Cite as State v. Andrews, 2016-Ohio-7389.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. John W. Wise, J.
                         Plaintiff-Appellee   :       Hon. Patricia A. Delaney, J.
                                              :
-vs-                                          :
                                              :       Case No. 15 CAA 12 0099
BRANDON M. ANDREWS                            :
                                              :
                    Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Delaware County
                                                  Court of Common Pleas, Case No. 15CR-I-
                                                  04-0161


JUDGMENT:                                         Affirmed in part; reversed in part and
                                                  remanded


DATE OF JUDGMENT ENTRY:                           October 18, 2016

APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

CAROL HAMILTON O’BRIEN                            LINDA KENDRICK
ERIC PENKAL                                       79 North Sandusky Street
ANDREW BIGLER                                     Delaware, OH 43015
140 N. Sandusky St.
Delaware, OH 43015
[Cite as State v. Andrews, 2016-Ohio-7389.]


Gwin, P.J.

        {¶1}    Defendant-appellant Brandon Andrews (“Andrews”) appeals his conviction

and sentence after a jury trial in the Delaware County Court of Common Pleas for one

count of theft, a misdemeanor of the first degree.

                                         Facts and Procedural History

        {¶2}    In February of 2015, Andrews was an employee of AVI Food Systems at

their location inside the Kroger Warehouse Distribution Center in Delaware, Ohio. On

February 12, 2015, a meeting was held at the Kroger location and it was determined that

Andrews would be given responsibility for collecting money from the kiosks and preparing

the deposits for pickup by a driver who would transport them to the main office.

        {¶3}    Andrews was given the keys to the kiosks, money bags, cage and safe on

February 16, 2015. He was told to keep the keys with him at all times.

        {¶4}    On February 27, 2015, Andrews left his employment early because he was

ill. Mike Whitmer, the Branch Manager, who was to obtain the spare key to the kiosks

because the kiosks needed to have a money pull before the weekend, contacted Melody

Dennick, the loss prevention person at AVID Food Systems. Dennis Falatach was sent

to the Kroger location with the key to the kiosks and instructions to pull the money.

        {¶5}    These events prompted Ms. Dennick to begin an investigation of the Cash

Out Reports, because there had been discrepancies at that Kroger location in the past.

This investigation led to the discovery of missing cash deposits and discrepancies

between the amount removed from the kiosks and what was actually deposited.
Delaware County, Case No. 15 CAA 12 0099                                                3


      {¶6}   At trial, evidence was presented that between February 12, 2015 and

February 27, 2015, there were three money pulls done by Janelle Simmons, six done by

Andrews, and one done by Dennis Falatach.

      {¶7}    Ms. Dennick identified two deposits that were missing, the one from

February 17, 2015, for $1469.00 and one from February 22, 2015, for $2150.

      {¶8}   Ms. Dennick testified that she reviewed the surveillance footage, which

showed that Andrews opened the kiosk machines 2 times each prior to his leaving work

on February 27, 2015. Dennis Falatach testified that when he counted the money that he

had pulled from the kiosks on February 27, 2015, it was short, but he could not remember

the exact amount.

      {¶9}   Andrews testified that he was not the only one who had access to the keys.

He occasionally lent his keys to Simmons, Falatach and unidentified driver and Mike

Whitmer. He also, testified that he left work on February 27, 2015 because he was ill, but

was called in by Simmons so she could use the key to get the employee paychecks.

Andrews never went back to work after that time.

      {¶10} The jury found the Andrews guilty of theft and determined the amount to be

less than $1,000.00. The sentencing hearing was held on December 1, 2015. The issue

of restitution was addressed. The court ordered restitution in the amount of $999.99

                                     Assignments of Error

      {¶11} Andrews raises three assignments of error,

      {¶12} “I. DEFENDANT'S CONVICTION WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.
Delaware County, Case No. 15 CAA 12 0099                                                       4


       {¶13} “II. THE TRIAL COURT ERRED WHEN IT FAILED TO HOLD A HEARING

ON THE ISSUE OF RESTITUTION.

       {¶14} “III. THE TRIAL COURT COMMITTED PLAIN AND REVERSIBLE ERROR

WHEN IT ORDERED DEFENDANT TO PAY RESTITUTION IN THE AMOUNT OF

$999.00.”

                                                   I.

       {¶15} In his first assignment of error, Andrews contends that his conviction is

against the manifest weight of the evidence. Specifically, Andrews argues there is no

direct evidence that he took any money from his employer and not enough circumstantial

evidence that he deprived his employer of any property of any value.

       {¶16} Our review of the constitutional sufficiency of evidence to support a criminal

conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979), which requires a court of appeals to determine whether “after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Id.; see also

McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d 582(2010) (reaffirming

this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d 1239, 2010–Ohio–1017,

¶146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296, 2010–Ohio–2720, ¶68.

       {¶17} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997). Weight of the

evidence concerns “the inclination of the greater amount of credible evidence, offered in

a trial, to support one side of the issue rather than the other. It indicates clearly to the

jury that the party having the burden of proof will be entitled to their verdict, if, on weighing
Delaware County, Case No. 15 CAA 12 0099                                                      5


the evidence in their minds, they shall find the greater amount of credible evidence

sustains the issue, which is to be established before them. Weight is not a question of

mathematics, but depends on its effect in inducing belief.” Id. at 387, 678 N.E.2d 541,

quoting Black's Law Dictionary (6th Ed. 1990) at 1594.

       {¶18} When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting

testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102

S.Ct. 2211, 72 L.Ed.2d 652 (1982).          However, an appellate court may not merely

substitute its view for that of the jury, but must find that “‘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, supra, 78 Ohio St.3d at 387, quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721 (1st Dist. 1983). Accordingly,

reversal on manifest weight grounds is reserved for “‘the exceptional case in which the

evidence weighs heavily against the conviction.’” Id.

              “[I]n determining whether the judgment below is manifestly against

       the weight of the evidence, every reasonable intendment and every

       reasonable presumption must be made in favor of the judgment and the

       finding of facts.

                                             ***

              “If the evidence is susceptible of more than one construction, the

       reviewing court is bound to give it that interpretation which is consistent with
Delaware County, Case No. 15 CAA 12 0099                                                      6


      the verdict and judgment, most favorable to sustaining the verdict and

      judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

      {¶19} Andrews was convicted of theft. R.C. 2913.02 provides in relevant part,

             (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:

             (1) Without the consent of the owner or person authorized to give

      consent;

             (2) Beyond the scope of the express or implied consent of the owner

      or person authorized to give consent;

             (3) By deception;

             (4) By threat;

             (5) By intimidation.

             (B)(1) Whoever violates this section is guilty of theft.

             (2) Except as otherwise provided in this division or division (B)(3),

      (4), (5), (6), (7), (8), or (9) of this section, a violation of this section is petty

      theft, a misdemeanor of the first degree. If the value of the property or

      services stolen is one thousand dollars or more and is less than seven

      thousand five hundred dollars or if the property stolen is any of the property

      listed in section 2913.71 of the Revised Code, a violation of this section is

      theft, a felony of the fifth degree. If the value of the property or services
Delaware County, Case No. 15 CAA 12 0099                                                  7


      stolen is seven thousand five hundred dollars or more and is less than one

      hundred fifty thousand dollars, a violation of this section is grand theft, a

      felony of the fourth degree. If the value of the property or services stolen is

      one hundred fifty thousand dollars or more and is less than seven hundred

      fifty thousand dollars, a violation of this section is aggravated theft, a felony

      of the third degree. If the value of the property or services is seven hundred

      fifty thousand dollars or more and is less than one million five hundred

      thousand dollars, a violation of this section is aggravated theft, a felony of

      the second degree. If the value of the property or services stolen is one

      million five hundred thousand dollars or more, a violation of this section is

      aggravated theft of one million five hundred thousand dollars or more, a

      felony of the first degree.

      {¶20} Andrews argues the evidence, both direct and circumstantial is insufficient

to prove that he took any money from the kiosks.

      {¶21} Because the jury found Andrews guilty of taking less than $1,000, we will

confine our analysis to that amount.

      {¶22} In the case at bar, the parties agreed that Andrews was put in charge of the

kiosks on February 12, 2015. The parties further agreed that Andrews had the only set

of keys necessary to enter the kiosks, the cage area, the cabinet, the money bags and

the safe. Dennis Falatach the operations manager for the vending side of the operation

testified that he saw Andrew at the operation that day. (2T. at 198). When the money

bag was not delivered to the Branch Warehouse Manager, Mr. Falatach retrieved a key

from the Marysville office and drove to the operation to pull the money from the kiosks.
Delaware County, Case No. 15 CAA 12 0099                                                  8


(2T. at 199-200). Mr. Falatach generated a receipt that indicated there should be over

$1,000 in the kiosk. Mr. Falatach counted the money he retrieved and found “somewhere

around 5, 6, $700” was missing (2T. at 202).

       {¶23} Viewing the evidence in the case at bar in a light most favorable to the

prosecution, we conclude that a reasonable person could have found beyond a

reasonable doubt that Andrews committed a misdemeanor theft

       {¶24} We hold, therefore, that the state met its burden of production regarding

each element of the crime of theft and, accordingly, there was sufficient evidence to prove

Andrews’s conviction.

       {¶25} As an appellate court, we are not fact finders; we neither weigh the evidence

nor judge the credibility of witnesses. Our role is to determine whether there is relevant,

competent and credible evidence, upon which the fact finder could base his or her

judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911(Feb. 10,

1982). Accordingly, judgments supported by some competent, credible evidence going

to all the essential elements of the case will not be reversed as being against the manifest

weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d 279, 376

N.E.2d 578(1978). The Ohio Supreme Court has emphasized: “‘[I]n determining whether

the judgment below is manifestly against the weight of the evidence, every reasonable

intendment and every reasonable presumption must be made in favor of the judgment

and the finding of facts. * * *.’” Eastley v. Volkman, 132 Ohio St.3d 328, 334, 972 N.E.

2d 517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77,

80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review,

Section 603, at 191–192 (1978). Furthermore, it is well established that the trial court is
Delaware County, Case No. 15 CAA 12 0099                                                   9

in the best position to determine the credibility of witnesses. See, e.g., In re Brown, 9th

Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing State v. DeHass, 10 Ohio St.2d 230, 227

N.E.2d 212(1967).

       {¶26} Ultimately, “the reviewing court must determine whether the appellant or the

appellee provided the more believable evidence, but must not completely substitute its

judgment for that of the original trier of fact ‘unless it is patently apparent that the fact

finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,

¶31, quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964

(2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of

the evidence or two conflicting versions of events, neither of which is unbelievable, it is

not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No.

99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722

N.E.2d 125(7th Dist. 1999).

       {¶27} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967),

paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960

N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86

L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d

646 (1983).

       {¶28} The jury as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness’s credibility. "While the jury may

take note of the inconsistencies and resolve or discount them accordingly * * * such

inconsistencies do not render defendant's conviction against the manifest weight or
Delaware County, Case No. 15 CAA 12 0099                                              10

sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL

29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236, 1996

WL 284714 (May 28, 1996). Indeed, the jury need not believe all of a witness' testimony,

but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin No. 02AP-

604, 2003-Ohio-958, ¶21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548

(1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889, citing State

v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992).         Although the

evidence may have been circumstantial, we note that circumstantial evidence has the

same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574

N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,

684 N.E.2d 668 (1997).

       {¶29} In the case at bar, the jury heard the witnesses, viewed the photographic

evidence and heard Andrews’ arguments concerning the other individuals who had

borrowed the keys, and missing money bags prior to when he became responsible for the

kiosks.   The jury did not find Andrews guilty of felony theft indicating that the jury

considered his arguments and did not find that he had taken all the money that was

testified to as being missing.

       {¶30} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678

N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury

neither lost his way nor created a miscarriage of justice in convicting Andrews of the

charge.
Delaware County, Case No. 15 CAA 12 0099                                                   11


       {¶31} Based upon the foregoing and the entire record in this matter, we find

Andrews conviction is not against the sufficiency or the manifest weight of the evidence.

To the contrary, the jury appears to have fairly and impartially decided the matters before

them. The jury as a trier of fact can reach different conclusions concerning the credibility

of the testimony of the state’s witnesses and Andrews and his arguments. This court will

not disturb the jury's finding so long as competent evidence was present to support it.

State v. Walker, 55 Ohio St.2d 208, 378 N.E.2d 1049 (1978).             The jury heard the

witnesses, evaluated the evidence, and was convinced of Andrews’s guilt.

       {¶32} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of the

crimes of theft beyond a reasonable doubt.

       {¶33} Andrews’ first assignment of error is overruled.

                                               II & III.

       {¶34} Because Andrews’ second and third assignments of error both concern the

propriety of the trial court’s restitution order, we shall address the assignments of error

together.

       {¶35} Andrews contends that the trial court was required to hold a hearing before

ordering restitution and further, that there is no basis to support an order of restitution in

the amount of $999.99.

       {¶36} R.C. 2929.18 states in pertinent part,

              (A) Except as otherwise provided in this division and in addition to

       imposing court costs pursuant to section 2947.23 of the Revised Code, the

       court imposing a sentence upon an offender for a felony may sentence the
Delaware County, Case No. 15 CAA 12 0099                                                  12


     offender to any financial sanction or combination of financial sanctions

     authorized under this section or, in the circumstances specified in section

     2929.32 of the Revised Code, may impose upon the offender a fine in

     accordance with that section. Financial sanctions that may be imposed

     pursuant to this section include, but are not limited to, the following:

            (1) Restitution by the offender to the victim of the offender’s crime or

     any survivor of the victim, in an amount based on the victim’s economic

     loss. If the court imposes restitution, the court shall order that the restitution

     be made to the victim in open court, to the adult probation department that

     serves the county on behalf of the victim, to the clerk of courts, or to another

     agency designated by the court.          If the court imposes restitution, at

     sentencing, the court shall determine the amount of restitution to be made

     by the offender. If the court imposes restitution, the court may base the

     amount of restitution it orders on an amount recommended by the victim,

     the offender, a presentence investigation report, estimates or receipts

     indicating the cost of repairing or replacing property, and other information,

     provided that the amount the court orders as restitution shall not exceed the

     amount of the economic loss suffered by the victim as a direct and

     proximate result of the commission of the offense. If the court decides to

     impose restitution, the court shall hold a hearing on restitution if the

     offender, victim, or survivor disputes the amount. All restitution payments

     shall be credited against any recovery of economic loss in a civil action

     brought by the victim or any survivor of the victim against the offender.
Delaware County, Case No. 15 CAA 12 0099                                                    13


       {¶37} R.C. 2929.18(A)(1) provides that, “[i]f the court decides to impose

restitution, the court shall hold a hearing on restitution if the offender, victim, or survivor

disputes the amount.” Accordingly, the statute mandates that the court must conduct a

hearing if the offender, victim, or survivor disputes the amount. State v. Lalain, 136 Ohio

St.3d 248, 2013-Ohio-3093, 994 N.E.2d 423, ¶3.

       {¶38} In the case at bar, the following exchange occurred during the sentencing

hearing,

              You heard the facts in this case; obviously, Mr. Andrews contested

       that he never took any of the funds.         Obviously, the jury came to a

       conclusion that he took some amount. We don't know what that amount

       would be other than something less than $1,000.

              At this point I would indicate to the Court there's no basis on which

       to make a restitution order because there's nothing in front of the Court

       showing exactly what the jury determined was the misdemeanor amount

       that was taken. So we would ask that the Court not make a restitution order

       because there's no evidence to show for a restitution order, and then take

       the other things into consideration. Thank you.

Sent. T. at 9-10.

       {¶39} As we indicated in our disposition of Andrews’ first assignment of error, Mr.

Falatach counted the money he retrieved and found “somewhere around 5, 6, $700” was

missing (2T. at 202). We find this evidence is insufficient to show the amount of actual

economic loss with reasonable certainty.
Delaware County, Case No. 15 CAA 12 0099                                               14


       {¶40} A trial court abuses its discretion in ordering restitution in an amount that

was not determined to bear a reasonable relation-ship to the actual loss suffered. State

v. Williams, 34 Ohio App.3d 33, 516 N.E.2d 1270 (2nd Dist. 1986).

       {¶41} Therefore, we find the trial court abused its discretion in ordering Andrews

to pay restitution in the amount of $999.99.

       {¶42} Andrews’ second and third assignments of error are sustained. The order

of restitution in the amount of $999.99 is vacated and the matter is remanded for an

evidentiary hearing on restitution.

       {¶43} For the foregoing reasons, the judgment of the Delaware County Court of

Common Pleas is affirmed in part and reversed in part and this case is remanded to that

court to conduct and evidentiary hearing on the amount of restitution.

By Gwin, P.J.,

Wise, J., and

Delaney, J., concur
