[Cite as State v. Cassell, 2012-Ohio-3061.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


                                                :   JUDGES:
STATE OF OHIO                                   :   Patricia A. Delaney, P.J.
                                                :   William B. Hoffman, J.
                          Plaintiff-Appellee    :   Julie A. Edwards, J.
                                                :
-vs-                                            :   Case No. 2011CA00224
                                                :
                                                :
RICHARD CASSELL                                 :   OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                             Criminal Appeal from Canton
                                                     Municipal Court Case No.
                                                     2011CRB2653

JUDGMENT:                                            Affirmed

DATE OF JUDGMENT ENTRY:                              June 28, 2012

APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant
c
ANTHONY RICH                                         ERICA PRUITT VOORHEES
Assistant Prosecuting Attorney                       Stark County Public Defender Office
City of Canton                                       West Tuscarawas Street, Suite 200
218 Cleveland Ave., S.W.                             Canton, Ohio 44702
P.O. Box 24218
Canton, Ohio 44701
[Cite as State v. Cassell, 2012-Ohio-3061.]


Edwards, J.

        {¶1}     Defendant-appellant, Richard Cassell, appeals his conviction and

sentence from the Canton Municipal Court on one count of theft. Plaintiff-appellee is the

State of Ohio.

                                  STATEMENT OF THE FATS AND CASE

        {¶2}     On July 18, 2011, a complaint was filed alleging that appellant had

committed theft in violation of R.C. 2913.02(A)(1), a misdemeanor of the first degree.

Subsequently, a jury trial commenced on September 14, 2011. The following testimony

was adduced at trial.

        {¶3}     Angela Walker, a cashier at the Bell Store in Hartville, Ohio, testified that

she was working on April 28, 2011, at around 11:00 a.m. She testified that she was

watching pump sixteen when she saw appellant, who she identified at trial, hang up the

nozzle to the pump and get into his vehicle. Walker testified that she kept an eye on

pump sixteen because “that’s where they try to go if they’re gonna skip,..” Transcript at

65.

        {¶4}     As appellant was pulling away, Walker ran up to the side of his car. The

passenger window was down. Walker testified that she told appellant that he had to pay

for his gas and that appellant indicated that he was going to pay and that he was going

to pull forward. At the time, Walker was approximately three feet away from appellant.

According to Walker, appellant, who was driving a black Mercedes, then left without

paying for $49.03 in gas. Walker then ran into the store and wrote down the license

plate of the Mercedes. She recorded the license plate as EOY2635.
Stark County App. Case No. 2011CA00224                                                   3


       {¶5}   Walker testified that appellant came in again two months later in the same

vehicle to get gas and that, at such time, she realized the O on the license plate was

actually a Q. Walker then called the police with the correct license plate number and

the police were able to identify appellant as the person who drove away.

       {¶6}   On cross-examination, Walker testified that, after the police were called on

April 28, 2011, she told the police that the person who left without paying was a white

male. She did not identify such person by hair color. Walker further testified that, on

such day, she saw hundreds of other white males.

       {¶7}   At the trial, Officer Michael Stephey of the Hartville Police Department

testified that he was assigned to investigate a case of theft of gas that occurred on April

28, 2011, at the store where Walker worked. He testified that when the original officer

assigned to the case ran the license plate number originally provided to the police by

Walker, it came back to a truck and not to a black Mercedes. Later, when Walker

contacted the police with a different license plate number after appellant returned to the

Bell Store, Stephey ran the plate and found that the plate was registered to a 1999

black Mercedes owned by appellant. After Stephey pulled up appellant’s picture, Walker

identified him as the person who drove off without paying. The following is an excerpt

from the officer’s testimony:

       {¶8}   “Q. I mean, you- you asked him [appellant] on April 28th, 2011, was he at

the Bell Store?

       {¶9}   “A. Yes.

       {¶10} “Q. And he said that he was?
Stark County App. Case No. 2011CA00224                                                    4


          {¶11} “A. He remembers being there, he remembers talking to the clerk, but it-

he doesn’t remember if he got gas.

          {¶12} “Q. And you- you viewed the video1 in this case?

          {¶13} “A. Yes.

          {¶14} “Q. And in that video were you able to see whether or not the defendant’s-

uh, defendant and his vehicle were- were getting gas at the store- at the Bell Store?

          {¶15} “A. From- from the video you can see the black Mercedes, the front of the

car, you can only see the low half of his body at the pump pumping the gas, and then

you can see the clerk when she runs out and makes contact with him.

          {¶16} “Q. And- and the clerk identified the defendant as the man who…

          {¶17} “A. Yes.

          {¶18} “Q. …stole the gas that day? And then just what- what was the defendant

ultimately charged with in this case?

          {¶19} “A. Theft. Drive off with gas.” Transcript at 91.

          {¶20} At the conclusion of the evidence and the end of deliberations, the jury, on

September 14, 2011, found appellant guilty of theft. As memorialized in a Judgment

Entry filed on the same day, appellant was sentenced to 180 days in jail with all but ten

(10) days suspended. In addition, appellant’s driver’s license was suspended for a

period of 180 days and appellant was ordered to pay $50.00 in restitution.

          {¶21} Appellant now raises the following assignment of error on appeal:

          {¶22} “I. THE TRIAL COURT ERRED IN ITS ADOPTION OF A GUILTY

FINDING AS THIS FINDING IS AGAINST THE MAINFEST [SIC] WEIGHT AND

SUFFICIENCY OF THE EVIDENCE.”
1
    The video, due to technical problems, was not played at trial.
Stark County App. Case No. 2011CA00224                                                    5


                                             I

       {¶23} Appellant, in his sole assignment of error, argues that his conviction for

theft of gas was against the manifest weight and sufficiency of the evidence. We

disagree.

       {¶24} 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

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

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

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

evidence, the appellate court acts 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, citing State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist. 1983).

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

section states as follows: “(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;…”
Stark County App. Case No. 2011CA00224                                                  6


        {¶27} Appellant, in support of his argument, notes that Walker gave a very

general description of the suspect as a white male approximately five feet, ten inches in

height and that she testified that the gas station was very busy on the day in question.

Appellant also notes that the license plate number that Walker originally provided to

police was not registered to a black Merecedes.

        {¶28} However, we find that any rational trier of fact, after viewing the evidence

in a light most favorable to the prosecution, could have found the essential elements of

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

not lose its way in convicting appellant of such offense. As is stated above, testimony

was adduced at trial that Walker observed a white male pump approximately $50.00

worth of gas into his black Mercedes and then pull forward. When Walker ran out to the

man and told him that he had to pay, he indicated that he would, but instead drove off.

Walker identified appellant at trial as such man.

        {¶29} Immediately after the theft, Walker provided the police with what she

believed to be the vehicle’s license plate number of EOY2635. However, the license

plate number provided was not registered to a black Mercedes. Approximately two

months later, Walker observed appellant in the same Mercedes return to the Bell Store.

Walker then wrote down the vehicle’s actual license plate number, which was

EQY2635, and contacted the police with such information. Such license plate number

was registered to a black Mercedes owned by appellant. Upon being shown appellant’s

photo, Walker identified appellant as the person who had left without paying on April 28,

2011.
Stark County App. Case No. 2011CA00224                                             7


      {¶30} Appellant’s sole assignment of error is, therefore, overruled.

      {¶31} Accordingly, the judgment of the Canton Municipal Court is affirmed.




By: Edwards, J.

Delaney, P.J. and

Hoffman, J. concur

                                                  ______________________________



                                                  ______________________________



                                                  ______________________________

                                                               JUDGES

JAE/d0503
[Cite as State v. Cassell, 2012-Ohio-3061.]


                 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
RICHARD CASSELL                                   :
                                                  :
                         Defendant-Appellant      :       CASE NO. 2011CA00224




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

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




                                                      _________________________________


                                                      _________________________________


                                                      _________________________________

                                                                   JUDGES
