State v. Fornash

2020 Ohio 3265

• Court: Ohio Court of Appeals
• Decided: June 8, 2020
• Docket: 2019CA00145
• Status: Published

Opinion

[Cite as State v. Fornash, 2020-Ohio-3265.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Patricia A. Delaney, J. Plaintiff-Appellee : Hon. Earle E. Wise, J. : -vs- : : Case No. 2019CA00145 KRISTIA FORNASH : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Canton Municipal Court, Case No. 2019CRB02537

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 8, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CARRIE FRANKHAUSER AARON KOVALCHIK 218 Cleveland Ave. SW 116 Cleveland Ave. North Canton, OH 44702 Canton, OH 44702 [Cite as State v. Fornash, 2020-Ohio-3265.]

Gwin, P.J.

{¶1} Appellant Kristia Fornash appeals from the August 21, 2019 judgment entry

of the Canton Municipal Court. Appellee is the State of Ohio.

Facts & Procedural History

{¶2} On May 24, 2019, appellant was charged with one count of theft, in violation

of R.C. 2913.02(A)(1), a misdemeanor of the first degree.

{¶3} The trial court held a jury trial on August 20, 2019. Appellee called Eric

Budinski (“Budinski”), an asset protection officer at Walmart on Atlantic Boulevard in

Canton, Ohio, who was working on May 23, 2019 at 7:30 p.m. Budinski testified that

when he is watching the security cameras in the store, he is looking for signals of theft.

He stated people sometimes act in unison together. Budinski observed the following:

appellant selected a car battery; appellant and Elizabeth Welch (“Welch”) were walking

back and forth; Welch was looking around and posing as a lookout; appellant took the car

battery and dropped it into Welch’s purse; and they then walked out of the store. Budinski

testified that: their actions appeared deliberate; they seemed to know each other; the

battery retailed for about $60; Welch was looking around erratically as appellant selected

a battery; appellant took the item off the shelf; and appellant dumped the battery into

Welch’s bag.

{¶4} Appellee introduced Exhibit 1, the store security camera video from the

night of May 23, 2019. Budinski stated the video is a fair and accurate depiction of what

he observed that night. He highlighted the portion of the video where appellant and Welch

were together and where appellant placed the battery into the purse. Budinski testified

he has observed hundreds of thefts on camera. The battery was recovered from Welch’s Stark County, Case No. 2019CA00145 3

purse and they did not pay for the battery before walking out the door. Budinski testified

appellant and Welch admitted to the theft.

{¶5} On cross-examination, Budinski stated there was no merchandise on

appellant’s person when she left the store. Budinski did not give the prosecutor the video

showing appellant and Welch walking out of the store.

{¶6} Officer Timothy Thorn (“Thorn”) works for the Canton Police Department.

He works at Walmart on a regular basis. Thorn observed appellant and Welch moving

through the store together and saw appellant conceal the merchandise in the purse.

Thorn saw appellant and Welch again move through the store together after they

concealed the battery. Thorn stated when someone conceals merchandise in a purse as

opposed to placing it in a shopping cart, it is usually a good indicator that they are not

going to pay for it, but Thorn generally waits until the person passes the point of purchase

in case the person decides to pay for the item. Appellee introduced Exhibit 2, the video

from Thorn’s body camera. Thorn pulled the battery out of the purse that he observed

appellant take off the shelf and place in the purse. Thorn then placed appellant under

arrest. Thorn felt it was intentional that appellant put the battery in Welch’s bag. Thorn

identified appellant for the record.

{¶7} On cross-examination, Thorn confirmed he found the battery in Welch’s

purse.

{¶8} The trial court admitted appellee’s exhibits into the record. After

deliberation, the jury found appellant guilty.

{¶9} The trial court issued an entry on August 21, 2019, stating the jury found

appellant guilty of one count of theft pursuant to R.C. 2913.02(A) and imposing a jail Stark County, Case No. 2019CA00145 4

sentence of 180 days, with all but 35 days suspended on condition of appellant’s good

behavior for two years.

{¶10} Appellant appeals from the August 21, 2019 judgment entry of conviction

and assigns the following as error:

{¶11} “I. APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”

I.

{¶12} Appellant contends her conviction was against the manifest weight and

sufficiency of the evidence.

{¶13} 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), 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.”

{¶14} 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

lots its way and created such a manifest miscarriage of justice that the conviction must

be overturned and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 678 Stark County, Case No. 2019CA00145 5

N.E.2d 541 (1997). Reversing a conviction as being against the manifest weight of the

evidence and ordering a new trial should be reserved for only the “exceptional case in

which the evidence weighs heavily against the conviction.” Id.

{¶15} It is well-established, though, that the weight of the evidence and the

credibility of the witnesses are determined by the trier of fact. State v. Yarbrough, 95

Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216. The jury was free to accept or reject

any and all of the evidence offered by the parties and assess the witness’s credibility. Id.

{¶16} Appellant was found guilty of one count of theft pursuant to R.C.

2913.02(A)(1), which provides, in pertinent part:

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.

{¶17} Appellant specifically argues that appellee failed to prove beyond a

reasonable doubt that appellant controlled the automotive battery when it was taken from

Walmart. Appellant contends the security footage showing appellant leave the store

would have shown whether or not appellant had control of the battery when it was taken

and thus, since appellee did not present this evidence, her conviction is against the

manifest weight and sufficiency of the evidence.

{¶18} We disagree with appellant. After weighing the evidence and evaluating the

credibility of the witnesses, with appropriate deference to the trier of fact’s credibility

determination, we cannot say that the jury clearly lost its way and created a manifest

injustice with regard to the theft. Stark County, Case No. 2019CA00145 6

{¶19} Budinski testified he observed appellant and Welch walking back and forth

together, saw appellant select a car battery, saw appellant drop the battery into Welch’s

purse, and observed appellant walk out of the store with Welch. Budinski stated

sometimes people act in unison when taking items from Walmart and he observed Welch

acting as a lookout as appellant dropped the battery into Welch’s purse. Budinski

believed their actions together were deliberate and they seemed to know each other.

Thorn also observed appellant and Welch moving through the store together and

observed appellant place the battery in Welch’s purse. Thorn additionally observed

Welch and appellant move through the store together and leave the store together after

concealing the battery in the purse and not paying for it. Thorn believed appellant

intentionally and deliberately placed the battery in Welch’s purse.

{¶17} The video shows appellant and Welch walking together and standing

together by the car batteries as Welch looked around while appellant took the car battery

off the shelf and placed it into Welch’s purse. The video then shows Welch and appellant

walking away together.

{¶18} Thorn testified the battery he observed appellant take from the shelf was

found in Welch’s purse. Budinski testified the battery was recovered from Welch’s purse

and neither appellant nor Welch paid for the battery before walking out of the store.

Budinski stated both Welch and appellant admitted to the theft.

{¶19} Similarly, we find that sufficient evidence exists to support appellant’s

conviction. This is not the case where 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. Stark County, Case No. 2019CA00145 7

{¶20} The fact that appellant was not in possession of the battery in the parking

lot is not determinative of whether she exerted control over the battery without consent.

State v. Brownlee, 9th Dist. Summit No. 27255, 2015-Ohio-2616 (upholding theft

conviction when appellant stood 15-20 feet from the person with the stolen merchandise

in the cart); State v. McKinney, 11th Dist. Lake No. 2006-L-169, 2007-Ohio-3389 (stating,

“that appellant did not physically carry the merchandise out of the store is immaterial, as

the state presented sufficient evidence from which the jury could find that appellant

exerted control over the stolen merchandise”); State v. Knight, 9th Dist. Lorain No.

11CA010034, 2012-Ohio-5816 (finding the State “presented sufficient evidence” that

appellant “exerted control over the merchandise by loading it into a cart and pushing it to

the front of the store with the intent to deprive the owner of it” and R.C. 2913.02(A)(1)

does not require that an appellant cross into the parking lot with the merchandise before

the appellant has violated the statute). Further, the lack of camera footage of appellant

leaving the store does not render her conviction against the manifest weight or sufficiency

of the evidence, given the testimony of the witnesses at trial. See State v. Finfrock, 3rd

Dist. Allen No. 1-18-42, 1-18-43, 1-18-44 (overruling appellant’s manifest weight

argument when the asset protection officer testified to what he observed on the security

system video).

{¶21} In State v. Frank, this Court found that there was sufficient evidence and a

theft conviction was not against the manifest weight of the evidence when the appellant

aided and abetted the theft by boxing up pottery that was taken and in pointing out which

pottery the other person should take without consent. 5th Dist. Muskingum No. CT2017-

0102, 2018-Ohio-5148. In this case, appellee presented sufficient evidence from which Stark County, Case No. 2019CA00145 8

the jury could find that appellant exerted control over the stolen merchandise and that she

knew she was stealing when she and Welch left the store without paying for the battery.

Both Budinski and Thorn testified they observed appellant exert control over the car

battery by placing it in Welch’s purse. Further, both Budinski and Thorn testified that,

based upon their observations, appellant and Welch were working in unison and they

were deliberately working together. Additionally, Budinski testified both Welch and

appellant admitted to the theft of the battery. The weight of the evidence and the

credibility of the witnesses are determined by the trier of fact. State v. Yarbrough, 95

Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216.

Upon our review of the entire record, we find appellant’s theft conviction is

supported by sufficient evidence and is not against the manifest weight of the evidence.

Appellant’s assignment of error is overruled. Stark County, Case No. 2019CA00145 9

{¶21} The August 21, 2019 judgment entry of the Canton Municipal Court is

affirmed.

By: Gwin, P.J.,

Delaney, J., and

Wise, Earle, J., concur