[Cite as State v. Greenwalt, 2012-Ohio-341.]


                                        COURT OF APPEALS
                                     GUERNSEY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO

                         Plaintiff-Appellee

-vs-


DONALD L. GREENWALT

                     Defendant-Appellant


:      JUDGES:
:      William B. Hoffman, P.J.
:      Sheila G. Farmer, J.
:      Julie A. Edwards, J.
:
:      Case No. 11CA000011
:
:
:      OPINION


CHARACTER OF PROCEEDING:                            Criminal Appeal from Cambridge
                                                    Municipal Court Case No.
                                                    11CRB00117

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             January 26, 2012

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

WILLIAM H. FERGUSON                                 MICHAEL GROH
Cambridge Law Director                              919 Wheeling Avenue
150 Highland Ave., Ste. 2                           Cambridge, Ohio 43725
Cambridge, Ohio 43725
Edwards, J.

      {¶1}    Defendant-appellant, Donald Greenwalt, appeals his conviction and

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

the State of Ohio.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    On February 3, 2011, a complaint was filed charging appellant with theft in

violation of R.C. 2913.02(A)(1), a misdemeanor of the first degree. At his arraignment

on February 11, 2011, appellant entered a plea of not guilty to the charge.

      {¶3}    Thereafter, a bench trial commenced on April 25, 2011. The following

testimony was adduced at trial.

      {¶4}    On January 27, 2011, Eric Smith was employed at the Wal-Mart store in

Cambridge as an assets protection associate. While working that day, Smith observed

appellant and a woman in the electronics department. According to Smith, the two

selected a lap top case that came with a free wireless mouse and battery. Smith

testified that he saw appellant rip open the packaging and take the mouse out of the

package and then go “over to another aisle where he took it the rest of the way out of

the package and concealed it in his front pocket.” Transcript at 7-8.

      {¶5}    Smith testified that he picked up the torn packaging and followed appellant

as he walked through the store. Smith then confronted appellant as appellant was

walking out the door. Appellant put his hands up and started shoving Smith to the side.

After Smith grabbed appellant, appellant continued struggling, yelling, screaming and

cussing. Once appellant calmed down, Smith “let him up and he spun away and got into
a corner. He actually pulled his fists up like he was going to start to throw punches.”

Transcript at 9. Appellant, according to Smith, was in the corner by green recycling bins.

Once Officer Delaney arrived on the scene, appellant started yelling and cussing again

and threatened them.

       {¶6}   Officer Delaney, during a search of appellant, found a Duracell battery in

appellant’s pocket. Smith testified that this type of battery was the type that was in the

packaging that appellant previously had opened. After viewing the store video, Wal Mart

personnel looked around and found the mouse inside the green recycling bin in the

corner. Smith testified that at one point, appellant had been right up against the bin.

When asked, he testified that he did not see appellant put the mouse into the recycling

bin.

       {¶7}   Store surveillance tapes from Wal-Mart, which were admitted as Exhibit A,

did not show appellant putting the mouse into his pocket. Testimony was adduced that

the aisle that appellant had been in was not covered by the video.

       {¶8}   On cross-examination, Smith testified that he did not see appellant throw

the mouse in the bin, but that appellant could have dumped the mouse in the bin when

he was up against the wall. According to Smith, “I know he was in possession of it and

the only two people that could have dropped it in there was either he or I.” Transcript at

23. The following testimony was adduced during redirect:

       {¶9}   “Q. And your testimony was that you never allowed contact with the

defendant from the time that he had taken the lap top from the package until you

apprehended him, correct?

       {¶10} “A. Correct, the mouse had constant surveillance throughout the store.
       {¶11} “Q. Okay and so when you were in constant surveillance of him did you

observe where he put the mouse or what he did with the mouse?

       {¶12} “A. It was in his right front pocket.

       {¶13} “Q. Is that his coat or his jeans or what?

       {¶14} “A. His jeans.

       {¶15} “Q. Okay. And now, during your struggle, would he have had an arm to

use to get into his right front pocket, right, right front pocket?

       {¶16} “A. Yes. I never had full control of him. There were only, like I said, there

was a couple times where he was out of my grip.” Transcript at 26.

       {¶17} At trial, appellant testified that he went to the store on the date in question

to compare prices on computers for his mother. After determining that the store did not

have the computer that he wanted to price, along with Ashley, his female companion

looked at a laptop case that contained a wireless mouse. According to appellant, while

looking at the item, he noticed that the box was already opened and the mouse had

parts missing and was “useless”. Transcript at 55.         Appellant testified that he did not

take the mouse.

       {¶18} Appellant testified that he then left the electronics section of the store and

went to the grocery department to pick up some sausages. After realizing that he had

left his phone in the electronics department, appellant returned there and retrieved the

same. Appellant testified that he never put the mouse in his pocket and that “[t]he only

thing I can think of is he [Smith] saw me put my phone back in my pocket…” Transcript

at 57. He testified that his phone looked like a mouse. According to appellant, after
picking up his phone and determining that he could not get any reception, he started

walking out the door to the store and was accosted by Smith.

      {¶19} Ashley Hammel testified that appellant was her boyfriend and that the two

went to Wal Mart on January 27, 2011 to price computers for appellant’s mother. She

testified that the box containing the mouse was partially opened and that the mouse

was missing parts.

      {¶20} At the conclusion of the evidence, the trial court found appellant guilty of

theft. As memorialized in a Journal Entry filed on April 25, 2011, the trial court

sentenced appellant to 45 days in jail with 40 of the days suspended. The trial court also

placed appellant on unsupervised probation for a period of 12 months.

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

      {¶22} “I. THE DECISION OF THE TRIAL COURT CONVICTING APPELLANT

OF THEFT WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.

      {¶23} “II. THE DECISION OF THE TRIAL COURT CONVICTING APPELLANT

OF THEFT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

                                              I, II

      {¶24} Appellant, in his two assignments of error, argues that his conviction for

theft of the wireless mouse is against the manifest weight and sufficiency of the

evidence. We disagree.

      {¶25} When reviewing the sufficiency of the evidence, our inquiry focuses

primarily upon the adequacy of the evidence; that is, whether the evidence, if believed,

reasonably could support a finding of guilt beyond a reasonable doubt. See State v.

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541, (1997), State v. Jenks, 61 Ohio
St.3d 259, 273, 574 N.E.2d 492 (1991). The standard of review is whether, after viewing

the probative evidence and inferences reasonably drawn therefrom in the light most

favorable to the prosecution, any rational trier of fact could have found all the essential

elements of the offense beyond a reasonable doubt. Jenks, supra.

       {¶26} On review for manifest weight, a reviewing court is to examine the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of the

witnesses and determine whether in resolving conflicts in the evidence, the trier of fact

clearly lost its way and created such a manifest miscarriage of justice that the judgment

must be reversed. The discretionary power to grant a new hearing should be exercised

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

judgment.” Thompkins, supra at 387, citing State v. Martin, 20 Ohio App.3d 172, 175,

485 N.E.2d 717 (1st Dist. 1983). Because the trier of fact is in a better position to

observe the witnesses' demeanor and weigh their credibility, the weight of the evidence

and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass, 10

Ohio St.2d 230, 227 N.E.2d 212, (1967), syllabus 1.

       {¶27} Appellant was convicted of one count of theft in violation of R.C.

2913.02(A)(1). R.C. 2913.02 states, in relevant part, 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;…”

       {¶28} Appellant now argues that his conviction is not supported by sufficient

evidence and is against the manifest weight of the evidence because there was no

evidence that he was in possession of the mouse when he left the store, because the
mouse was not found on his person and because there was no testimony that appellant

threw the mouse into the recycling bin. Appellant also contends that his conviction is

against the manifest weight of the evidence because there was no proof that the battery

found on appellant’s person was the battery that came from the mouse packaging.

       {¶29} Upon our review of the record, we find that, after viewing the probative

evidence and inferences reasonably drawn therefrom in the light most favorable to the

prosecution, any rational trier of fact could have found all the essential elements of the

offense of theft beyond a reasonable doubt. We further find that the trial court did not

lose its way in convicting appellant. As is stated above, Eric Smith testified that he saw

appellant rip open the package, remove the mouse from the same and conceal the

mouse in his front pocket after going over to another aisle. He further testified that he

had constant surveillance of appellant from that time until he confronted appellant

leaving the store. While Smith did not see appellant throw the mouse into the recycling

bin, he testified that he never had full control of appellant and that appellant was out of

his grip a couple of times. The mouse was located in a recycling bin in a corner near

where appellant had been. Testimony also was adduced that a Duracell battery was

found on appellant’s person and that this type of battery was the type that was in the

packaging that appellant previously had opened.

       {¶30} Based on the foregoing, we find that appellant’s conviction for theft was

not against the manifest weight or sufficiency of the evidence.
      {¶31} Appellant’s two assignments of error are, therefore, overruled.

      {¶32} Accordingly, the judgment of the Cambridge Municipal Court is affirmed.



By: Edwards, J.

Hoffman, P.J. and

Farmer J. concur

                                                 ______________________________



                                                 ______________________________



                                                 ______________________________

                                                              JUDGES

JAE/d1117
             IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT


STATE OF OHIO                               :
                                            :
                       Plaintiff-Appellee   :
                                            :
                                            :
-vs-                                        :       JUDGMENT ENTRY
                                            :
DONALD L. GREENWALT                         :
                                            :
                    Defendant-Appellant     :       CASE NO. 11CA000011




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

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




                                                _________________________________


                                                _________________________________


                                                _________________________________

                                                             JUDGES
