[Cite as State v. Cavin, 2025-Ohio-1578.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT SANDUSKY COUNTY
State of Ohio/City of Fremont Court of Appeals No. S-24-012
Appellee Trial Court No. 23 CRB 868
v.
Terrance J. Cavin DECISION AND JUDGMENT
Appellant Decided: May 2, 2025
*****
James F. Melle, City of Fremont Prosecuting Attorney, for appellee.
James H. Ellis, III, for appellant.
SULEK, P.J.
{¶ 1} Appellant, Terrance Cavin, appeals from a judgment of the Fremont
Municipal Court convicting him of theft. For the reasons that follow, the trial court’s
judgment is affirmed.
Statement of the Case and Facts
{¶ 2} On December 14, 2023, police arrested Cavin for theft in violation of R.C.
2913.02(A)(1) following an incident at the Fremont, Ohio, Walmart. The complaint was filed in the Fremont Municipal Court on December 18, 2023. At arraignment, held on
December 20, 2023, Cavin pleaded not guilty to the charge, and the trial court appointed
counsel on Cavin’s behalf.
{¶ 3} The matter was heard at a bench trial on April 30, 2024. The undisputed
evidence established the following. On December 14, 2023, Robert Taylor was working
as an asset protection investigator for Walmart, in Fremont, Ohio. At the time of the
incident, Taylor was training a new asset protection investigator.
{¶ 4} At approximately 7:30 p.m. on that date, Taylor and the trainee observed
Cavin and a female companion moving quickly and erratically in the grocery department.
According to Taylor, Cavin and his companion were “scanning the area, looking up and
down the aisles.” Keeping continuous floor surveillance on the pair, Taylor and the
trainee observed the woman conceal items of merchandise in her purse and they observed
Cavin conceal items of merchandise on his person, inside the front of his pants.
{¶ 5} Taylor and the trainee maintained continuous surveillance of Cavin and the
woman while they were in the store, and they approached and stopped the pair after they
passed the last point of sale without paying for the items they had concealed. Prior to this,
Cavin and the woman had attempted to pay for certain other items that were in a
shopping cart, but the payment system was not equipped to accept payment from their
Apple Pay account. Those items were left in the cart, and Cavin and the woman walked
2. away and headed toward the exit doors. Neither Cavin nor the woman made any attempt
to pay for the items that they had concealed.
{¶ 6} Cavin and the woman were escorted into the Walmart asset protection
office, where Cavin pulled merchandise out of the front of his pants and laid it on the
table. Taylor removed the merchandise from the table and put it in a cart. Meanwhile, the
other suspect placed her items on the seat of the chair in the office. All of the items that
were concealed by Cavin and the woman were depicted together in a photograph that was
admitted as State’s Exhibit 1. Those items were identified, and their values tabulated, on
a training receipt that was admitted as State’s Exhibit 2. The total value of the items taken
was $176.77.
{¶ 7} Police were notified of the theft, and Sgt. Bush and Off. Holskey responded
to the asset protection office. Sgt. Bush and Off. Holskey each testified that Cavin
admitted in their presence to having committed the theft.
{¶ 8} At the conclusion of the State’s case-in-chief, Cavin’s trial counsel moved
for acquittal of the charge pursuant to Crim.R. 29. The basis of the motion was, among
other things, that the State had failed to prove which of the totality of the stolen items had
been concealed in Cavin’s pants. The trial court denied the motion.
{¶ 9} Cavin did not present any evidence and rested his case. Thereafter, he
renewed his motion for acquittal under Crim.R. 29. Once again, the court denied the
motion.
3. {¶ 10} The trial court found Cavin guilty of the offense of theft in violation of
R.C. 2913.02(A)(1) and immediately sentenced him to serve 90 days in the Sandusky
County jail, with 75 days suspended. In addition, the trial court placed Cavin on two
years non-reporting probation, imposed a fine of $50.00, and ordered restitution to
Walmart in the amount of $12.96. Cavin timely appealed his conviction.
Assignments of Error
{¶ 11} On appeal, appellant asserts the following assignments of error:
I. The trial court errored [sic] by denying appellant’s motion for acquittal under Crim.R. 29(A).
II. The trial court caused a manifest miscarriage of justice in convicting appellant because the manifest weight of the evidence did not establish beyond a reasonable doubt all of the essential elements of the offense of theft in violation of R.C. 2913.02(A)(1).
Law and Analysis
First Assignment of Error
{¶ 12} Cavin argues in his first assignment of error that the trial court erred in
denying his motion for judgment of acquittal pursuant to Crim.R. 29(A).
{¶ 13} Crim R. 29(A) provides:
The court on a motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case.
4. {¶ 14} “[A] motion for acquittal under Crim.R. 29(A) is a challenge to the
sufficiency of the evidence.” State v. Daniel, 2023-Ohio-2800, ¶ 46 (6th Dist.), citing
State v. Messer, 2017-Ohio-1223, ¶ 16 (6th Dist.), citing State v. Brinkley, 2005-Ohio-
1507, ¶ 39. “A trial court's denial of a motion for acquittal under Crim.R. 29(A) ‘“is
governed by the same standard as the one for determining whether a verdict is supported
by sufficient evidence.”’” Id., citing Messer at ¶ 16, quoting State v. Tenace, 2006-Ohio-
2417, ¶ 37. “In reviewing a challenge to the sufficiency of the evidence, an appellate
court views the evidence in a light most favorable to the prosecution and determines
whether ‘any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.’” Id., quoting Messer at ¶ 16, quoting State v. Smith,
80 Ohio St.3d 89, 113 (1997). “In making that determination, the appellate court does not
weigh the evidence or assess the credibility of the witnesses.” Id., citing Messer at ¶16,
citing State v. Were, 2008-Ohio-2762, ¶ 132. “The question of whether the evidence is
sufficient to support a conviction is a question of law.” Id., citing State v. Thompkins, 78
Ohio St.3d 380, 386 (1997).
{¶ 15} Here, Cavin was convicted of theft in violation of R.C. 2913.02(A)(1),
which provides:
(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:
5. (1) Without the consent of the owner or person authorized to give consent.
{¶ 16} Cavin argues that the evidence was insufficient to support his conviction
because there was no evidence to identify “any specific item concealed by Appellant
from which it could be inferred, beyond a reasonable doubt, that the Appellant had
obtained control of the property.” Stated differently, Cavin apparently objects to the fact
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[Cite as State v. Cavin, 2025-Ohio-1578.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT SANDUSKY COUNTY
State of Ohio/City of Fremont Court of Appeals No. S-24-012
Appellee Trial Court No. 23 CRB 868
v.
Terrance J. Cavin DECISION AND JUDGMENT
Appellant Decided: May 2, 2025
*****
James F. Melle, City of Fremont Prosecuting Attorney, for appellee.
James H. Ellis, III, for appellant.
SULEK, P.J.
{¶ 1} Appellant, Terrance Cavin, appeals from a judgment of the Fremont
Municipal Court convicting him of theft. For the reasons that follow, the trial court’s
judgment is affirmed.
Statement of the Case and Facts
{¶ 2} On December 14, 2023, police arrested Cavin for theft in violation of R.C.
2913.02(A)(1) following an incident at the Fremont, Ohio, Walmart. The complaint was filed in the Fremont Municipal Court on December 18, 2023. At arraignment, held on
December 20, 2023, Cavin pleaded not guilty to the charge, and the trial court appointed
counsel on Cavin’s behalf.
{¶ 3} The matter was heard at a bench trial on April 30, 2024. The undisputed
evidence established the following. On December 14, 2023, Robert Taylor was working
as an asset protection investigator for Walmart, in Fremont, Ohio. At the time of the
incident, Taylor was training a new asset protection investigator.
{¶ 4} At approximately 7:30 p.m. on that date, Taylor and the trainee observed
Cavin and a female companion moving quickly and erratically in the grocery department.
According to Taylor, Cavin and his companion were “scanning the area, looking up and
down the aisles.” Keeping continuous floor surveillance on the pair, Taylor and the
trainee observed the woman conceal items of merchandise in her purse and they observed
Cavin conceal items of merchandise on his person, inside the front of his pants.
{¶ 5} Taylor and the trainee maintained continuous surveillance of Cavin and the
woman while they were in the store, and they approached and stopped the pair after they
passed the last point of sale without paying for the items they had concealed. Prior to this,
Cavin and the woman had attempted to pay for certain other items that were in a
shopping cart, but the payment system was not equipped to accept payment from their
Apple Pay account. Those items were left in the cart, and Cavin and the woman walked
2. away and headed toward the exit doors. Neither Cavin nor the woman made any attempt
to pay for the items that they had concealed.
{¶ 6} Cavin and the woman were escorted into the Walmart asset protection
office, where Cavin pulled merchandise out of the front of his pants and laid it on the
table. Taylor removed the merchandise from the table and put it in a cart. Meanwhile, the
other suspect placed her items on the seat of the chair in the office. All of the items that
were concealed by Cavin and the woman were depicted together in a photograph that was
admitted as State’s Exhibit 1. Those items were identified, and their values tabulated, on
a training receipt that was admitted as State’s Exhibit 2. The total value of the items taken
was $176.77.
{¶ 7} Police were notified of the theft, and Sgt. Bush and Off. Holskey responded
to the asset protection office. Sgt. Bush and Off. Holskey each testified that Cavin
admitted in their presence to having committed the theft.
{¶ 8} At the conclusion of the State’s case-in-chief, Cavin’s trial counsel moved
for acquittal of the charge pursuant to Crim.R. 29. The basis of the motion was, among
other things, that the State had failed to prove which of the totality of the stolen items had
been concealed in Cavin’s pants. The trial court denied the motion.
{¶ 9} Cavin did not present any evidence and rested his case. Thereafter, he
renewed his motion for acquittal under Crim.R. 29. Once again, the court denied the
motion.
3. {¶ 10} The trial court found Cavin guilty of the offense of theft in violation of
R.C. 2913.02(A)(1) and immediately sentenced him to serve 90 days in the Sandusky
County jail, with 75 days suspended. In addition, the trial court placed Cavin on two
years non-reporting probation, imposed a fine of $50.00, and ordered restitution to
Walmart in the amount of $12.96. Cavin timely appealed his conviction.
Assignments of Error
{¶ 11} On appeal, appellant asserts the following assignments of error:
I. The trial court errored [sic] by denying appellant’s motion for acquittal under Crim.R. 29(A).
II. The trial court caused a manifest miscarriage of justice in convicting appellant because the manifest weight of the evidence did not establish beyond a reasonable doubt all of the essential elements of the offense of theft in violation of R.C. 2913.02(A)(1).
Law and Analysis
First Assignment of Error
{¶ 12} Cavin argues in his first assignment of error that the trial court erred in
denying his motion for judgment of acquittal pursuant to Crim.R. 29(A).
{¶ 13} Crim R. 29(A) provides:
The court on a motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case.
4. {¶ 14} “[A] motion for acquittal under Crim.R. 29(A) is a challenge to the
sufficiency of the evidence.” State v. Daniel, 2023-Ohio-2800, ¶ 46 (6th Dist.), citing
State v. Messer, 2017-Ohio-1223, ¶ 16 (6th Dist.), citing State v. Brinkley, 2005-Ohio-
1507, ¶ 39. “A trial court's denial of a motion for acquittal under Crim.R. 29(A) ‘“is
governed by the same standard as the one for determining whether a verdict is supported
by sufficient evidence.”’” Id., citing Messer at ¶ 16, quoting State v. Tenace, 2006-Ohio-
2417, ¶ 37. “In reviewing a challenge to the sufficiency of the evidence, an appellate
court views the evidence in a light most favorable to the prosecution and determines
whether ‘any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.’” Id., quoting Messer at ¶ 16, quoting State v. Smith,
80 Ohio St.3d 89, 113 (1997). “In making that determination, the appellate court does not
weigh the evidence or assess the credibility of the witnesses.” Id., citing Messer at ¶16,
citing State v. Were, 2008-Ohio-2762, ¶ 132. “The question of whether the evidence is
sufficient to support a conviction is a question of law.” Id., citing State v. Thompkins, 78
Ohio St.3d 380, 386 (1997).
{¶ 15} Here, Cavin was convicted of theft in violation of R.C. 2913.02(A)(1),
which provides:
(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:
5. (1) Without the consent of the owner or person authorized to give consent.
{¶ 16} Cavin argues that the evidence was insufficient to support his conviction
because there was no evidence to identify “any specific item concealed by Appellant
from which it could be inferred, beyond a reasonable doubt, that the Appellant had
obtained control of the property.” Stated differently, Cavin apparently objects to the fact
that there was no evidence to distinguish the items that Cavin concealed in his pants from
the totality of the items that were stolen by Cavin and his female companion.
{¶ 17} The facts here are not in dispute. The State’s evidence clearly established
that Cavin exerted control over Walmart’s property by concealing Walmart merchandise
in his pants and then taking that merchandise, still in his pants, beyond the last point of
sale. The merchandise that he had secreted in his pants, although not separately
identified, was depicted in a photo exhibit together with the remaining items of property
that were taken by Cavin’s female companion. The evidence also demonstrates that
Walmart never consented to the exercise of control over the merchandise, and that Cavin
admitted to the theft when confronted by law enforcement officers. Thus, the evidence
presented at trial demonstrates that Cavin purposely deprived Walmart of certain
property, without Walmart’s consent. Taken in its entirety, the evidence contained in the
record is sufficient to support Cavin’s conviction for theft. Accordingly, Cavin’s first
assignment of error is found not well-taken.
6. Second Assignment of Error
{¶ 18} Cavin argues in his second assignment of error that his conviction was
against the manifest weight of the evidence. An appellate court reviewing the weight of
the evidence in support of conviction sits as a “thirteenth juror,” and will reverse only if it
disagrees “‘with the factfinder’s resolution of the conflicting testimony.’” State v.
Cofield, 2021-Ohio-3773, ¶ 29 (6th Dist.), quoting Thompkins at 387. (Additional citation
omitted.) “‘The discretionary power to grant a new trial should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction.’”
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983).
{¶ 19} Echoing the argument raised in his first assignment of error, Cavin claims
in his second assignment of error that “the trial court lost its way in convicting [him] of
theft due to the failure of the State to present any evidence as to what exact property [he]
concealed in his pants.” Here, there was no conflicting testimony to resolve. As indicated
above, the evidence was sufficient to support Cavin’s conviction for theft. Cavin
concealed items he knew he did not own. That the evidence did not specifically identify
which of the totality of stolen items were concealed in Cavin’s pants did nothing to alter
this conclusion. Neither does it render this an exceptional case in which the evidence
weighs heavily against the conviction. Cavin’s second assignment of error is therefore
found not well-taken.
7. Conclusion
{¶ 20} The judgment of the Fremont Municipal Court is affirmed. Appellant is
ordered to pay the costs of appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. JUDGE
Gene A. Zmuda, J. JUDGE
Charles E. Sulek, P.J. CONCUR. JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
8.