[Cite as State v. Grigsby, 2018-Ohio-2623.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  :   JUDGES:
                                                :
                                                :   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                      :   Hon. Patricia A. Delaney, J.
                                                :   Hon. Earle E. Wise, Jr., J.
 -vs-                                           :
                                                :   Case No. 17-CA-73
                                                :
 ZACHARIAH GRIGSBY                              :
                                                :
                                                :
        Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Licking County
                                                    Municipal Court, Case No. 17-CRB-385



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             June 28, 2018




APPEARANCES:

 For Plaintiff-Appellee:                            For Defendant-Appellant:

 AMY S. DAVISON                                     CHRIS BRIGDON
 40 West Main Street                                123 Stirling Way
 Newark, OH 43055                                   Etna, OH 43062
Licking County, Case No. 17-CA-73                                                            2

Delaney, J.

       {¶1} Defendant-Appellant Zachariah Grigsby appeals the July 20, 2017

sentencing entry of the Licking County Municipal Court.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} On February 6, 2017, the manager of the BP gas station located at 900

North 21st Street in Newark, Ohio, placed a book of “Max the Money” lottery tickets on

the gas station store counter. The store manager had incorrectly scanned the lottery ticket

book into the store records so he put the lottery ticket book aside to fix the error later. The

store manager had not yet activated the lottery ticket book with the Ohio Lottery

Commission. Each ticket in the lottery ticket book was worth $30.00, with a total book

value of $750.00. The lottery tickets from the “Max the Money” lottery ticket book are

physically larger than other lottery tickets because of the ticket’s higher value. The store

manager left the store on February 6, 2017 and the lottery ticket book was on the counter

when he left.

       {¶3} A winning lottery ticket cannot be cashed until it is activated with the Ohio

Lottery Commission. A lottery ticket book is activated with an Ohio Lottery machine

located in the gas station store. The Ohio Lottery Commission regulates the lottery

machine and tracks when lottery ticket book is activated and later settled. When a lottery

ticket book is sold, the book is settled through the lottery machine. The lottery machine

prints out a paper report when a lottery ticket book is activated and settled.

       {¶4} On February 6, 2017, after the store manager left, two employees were

working their shift at the BP gas station store: Defendant-Appellant Zachariah Grigsby

and S.P. Grigsby’s shift ended at approximately 10:00 p.m. The store manager stated he
Licking County, Case No. 17-CA-73                                                        3


may have shown the employees how to activate a lottery ticket book with the lottery

machine. Per company policy, however, employees were not permitted to purchase

lottery tickets during their work hours.

       {¶5} On February 7, 2017, the store manager could not locate the lottery ticket

book he placed on the store counter. He called the Ohio Lottery Commission which stated

its records showed the lottery ticket book was activated and settled during the time period

of 7:54 p.m. to 7:59 p.m. on February 6, 2017. The Ohio Lottery Commission also told the

store manager that on February 6, 2017, two tickets were cashed from the lottery ticket

book at a Speedway gas station on Church and 21st Street in Newark at approximately

10:25 or 10:30 p.m.

       {¶6}    The BP gas station store has at least 15 video cameras within the store

continuously recording store activity. The store manager reviewed the video camera

recordings for the time periods stated by the Ohio Lottery Commission and observed

Grigsby at the lottery machine. He did not observe the second employee at the lottery

machine. The video showed something printing from the lottery machine. Grigsby took

the print out and threw it away in the trash can. The store manager next reviewed a video

recording showing the outside of the gas station. In this video, the store manager

observed Grigsby taking the trash from the store to the dumpster outside of the gas

station. He then left in a waiting car. The video did not show the other store employee at

the dumpster. The store manager checked the dumpster and found the activation and

settlement reports from the missing lottery ticket book.

       {¶7} The store manager next called the store manager at the Speedway where

the Ohio Lottery Commission said the two lottery tickets were cashed. He asked the store
Licking County, Case No. 17-CA-73                                                        4


manager to review the store video recordings at approximately 10:30 p.m. to see who

cashed the two lottery tickets. He gave the store manager a description of Grigsby. The

Speedway store manager reviewed the video recording and observed a man matching

the BP store manager’s description of Grigsby cashing a lottery ticket. Based on her

experience, the Speedway store manager recognized the lottery ticket being cashed was

of higher value because of the ticket’s size.

       {¶8} The BP store manager contacted the Newark Police Department. Officer

Troy Cochran reviewed the video recordings from BP and Speedway. Based on the video

recordings and the information from the store manager, Officer Cochran arrested Grigsby

for theft, a first-degree misdemeanor in violation of R.C. 2913.02.

       {¶9} The matter proceeded to a jury trial. At trial, the State presented the

testimony of the BP gas station store manager, the Speedway store manager, and Officer

Cochran. The State also submitted into evidence the video recordings from the BP and

Speedway stores and the printed reports found in the dumpster. Grigsby did not testify.

The jury found Grigsby guilty of theft. On July 20, 2017, the trial court sentenced Grigsby

to 90 days in jail, a $150.00 fine plus court costs, and $180.00 in restitution.

       {¶10} It is from this judgment Grigsby now appeals.

                                ASSIGNMENT OF ERROR

       {¶11} Grigsby raises one Assignment of Error:

       {¶12} “APPELLANTS [sic] CONVICTION OF THEFT WAS IN ERROR DUE TO

THE MANIFEST WEIGHT OF THE EVIDENCE.”
Licking County, Case No. 17-CA-73                                                          5


                                        ANALYSIS

       {¶13} In Grigsby’s sole Assignment of Error, he argues his conviction is against

the manifest weight of the evidence. In the body of his appellate argument, however, he

also argues his conviction was against the sufficiency of the evidence. We will address

both arguments.

       {¶14} 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.”

       {¶15} 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
Licking County, Case No. 17-CA-73                                                        6


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

heavily against the conviction.” Id.

       {¶16} Grigsby was found guilty of theft, in violation of R.C. 2913.02, which states:

              (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.

       {¶17} Grigsby argues there was insufficient evidence for a jury to find beyond a

reasonable doubt that he exerted control over the lottery ticket book. He also argues the

manifest weight of the evidence did not show that Grigsby exerted control over the lottery

ticket book. Grigsby is correct that the evidence presented at trial did not show Grigsby

holding the lottery ticket book. Reviewing the matter in a light most favorable to the

prosecution, the time-line of evidence established by the information from the Ohio Lottery

Commission, store video recordings, and printed lottery machine reports could convince

a jury of the defendant's guilt for theft beyond a reasonable doubt.

       {¶18} There was no factual dispute that the BP store manager left the “Max the

Money” lottery ticket book on the store counter. The store manager testified he did not
Licking County, Case No. 17-CA-73                                                         7


activate the lottery ticket book before he left it on the store counter. The next day, after

Grigsby’s shift, the store manager discovered the lottery ticket book was missing. The

lottery ticket book could only be activated through the lottery machine. The Ohio Lottery

Commission stated the lottery ticket book was activated between 7:54 and 7:59 p.m. on

February 6, 2017. The BP store video recording showed Grigsby by the lottery machine

at that same time period. The video recording showed the lottery machine generate a

printed report, which Grigsby is seen throwing away and then he is observed taking that

trash to the dumpster. The store manager discovered the lottery machine reports in the

dumpster. The lottery machine reports found in the dumpster showed the “Max the

Money” lottery ticket book was activated and settled. Grigsby’s shift at BP was over at

10:00 p.m. Grigsby is observed in a video recording cashing lottery tickets at a nearby

Speedway at approximately 10:30 p.m. The Ohio Lottery Commission reported two tickets

from the missing “Max the Money” lottery ticket book were cashed at a nearby Speedway

at approximately 10:30 p.m.

       {¶19} There is sufficient evidence in this case to demonstrate that Grigsby exerted

control over the “Max the Money” lottery ticket book. The State’s witnesses provided

substantial circumstantial evidence. State v. Yoder, 5th Dist. Licking No. 16-CA-54, 2017-

Ohio-903, ¶ 44 citing State v. Weller, 10th Dist. Franklin Nos. 07AP–289, 07AP–290,

07AP–291, 2007–Ohio–6598, ¶ 18. The Supreme Court of Ohio has held that “[a]

conviction can be sustained based on circumstantial evidence alone.” State v. Franklin,

62 Ohio St.3d 118, 124, 580 N.E.2d 1 (1991), citing State v. Nicely, 39 Ohio St.3d 147,

154–155, 529 N.E.2d 1236 (1988). In fact, circumstantial evidence may “ ‘be more certain,

satisfying and persuasive than direct evidence.’ ” State v. Ballew, 76 Ohio St.3d 244, 249,
Licking County, Case No. 17-CA-73                                                           8

667 N.E.2d 369 (1996), quoting State v. Lott, 51 Ohio St.3d 160, 167, 555 N.E.2d 293

(1990), quoting Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 5

L.Ed.2d 20 (1960).

       {¶20} We find that based on the evidence and testimony of all the witnesses,

viewed in a light most favorable to the prosecution, as is required, a rational trier of fact

could have found beyond a reasonable doubt that Grigsby was guilty of theft. Thus, we

find the record contains sufficient evidence to support Grigsby’s conviction. We further

find that a trier of fact could reasonably infer that Grigsby exerted control over the lottery

ticket book. Thus, we cannot conclude that the jury lost its way and created a manifest

miscarriage of justice when it found Grigsby guilty. Therefore, we find that Grigsby’s

conviction is not against the manifest weight of the evidence.

                                      CONCLUSION

       {¶21} The judgment of the Licking County Municipal Court is affirmed.

By: Delaney, J.,

Gwin, P.J. and

E. Wise, J., concur.
