[Cite as State v. Hart, 2017-Ohio-1246.]
COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, Jr, J. -Vs- : : THOMAS M. HART : Case No. 2016CA0014 : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Coshocton Municipal Court, Case No. CRB1500884
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 3, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RICHARD J. SKELTON ROBERT E. WEIR Assistant Law Director 239 N. 4th Street 760 Chestnut Street Coshocton, Ohio 43812 Coshocton, Ohio 43812
JAMES R. SKELTON Police Prosecutor 760 Chestnut Street Coshocton, Ohio 43812 Coshocton County, Case No. 2016CA0014 2
Baldwin, J.
{¶1} Defendant-appellant Thomas M. Hart appeals his conviction and sentence
from the Coshocton Municipal Court on one count of theft. Plaintiff-appellee is the State
of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On December 2, 2015, appellant was charged with theft in violation of R.C.
2913.02(A) (1), a misdemeanor of the first degree. At his arraignment on May 19, 2016,
appellant entered a plea of not guilty.
{¶3} Subsequently, a bench trial was held on July 6, 2016. At the bench trial,
Deputy Matt Woitel of the Coshocton County Sheriff’s Office testified that, on November
20, 2015, he was dispatched to Dollar General in response to the theft of a Sega gaming
system. The Deputy spoke with the manager, Heather Powell, who showed him a video.
Powell told him that a man had come into the store on November 18th with his girlfriend,
looked at the system and then left. The same man came back the next day wearing the
same red sweatshirt and hat, walked in and grabbed the same Sega gaming system off
of the shelf, and then walked out of camera view for a few minutes. He then came back
without the Sega and left after paying for another item. The Sega gaming system came
up missing during an inventory on November 20. 2015. Videos from both November 18,
2015 and November 19, 2015 were played at trial.
{¶4} Deputy Woitel testified that he spoke with appellant, who was wearing the
same hat and who, in the video, was wearing the red sweatshirt, and that while appellant
admitted to being in the store that day, he denied taking the item. According to the
Deputy, appellant told him that, on November 19, 2015, he put the gaming system down Coshocton County, Case No. 2016CA0014 3
in the deodorant aisle. The Deputy testified that the video showed that appellant had
never entered the deodorant aisle. The game was never recovered. When asked at trial
if he was able to identify appellant coming into the store on the videos, the Deputy
answered affirmatively. He further testified that, on the video from November 19, 2015,
there appeared to be something near the front pocket of appellant’s sweatshirt.
{¶5} Heather Powell, the manager at Dollar General, testified that she reviewed
the store’s video system on November 20, 2015 and noticed that the Sega system was
missing. After watching the video from the store, Powell observed that, on November 18,
2015, appellant was shopping with Eternity Tidrick and picked up the box that the system
was in, talked to Tidrick about it, and then put the box back on the shelf. She testified that
she then watched the video from the next night and that “it was the same person…that
was with Eternity the night before” Transcript at 25. Powell testified that appellant came
in, took the box off of the shelf, and went to another area. When he came back, appellant
did not have the box. According to her, appellant never went to the deodorant aisle.
Powell further testified that the videos showed that from the time appellant was in the
store until the time the game was discovered missing, no one other than appellant
touched a Sega game.
{¶6} At the conclusion of the testimony, appellant moved for a judgment of
acquittal. The trial court overruled appellant’s motion and found appellant guilty. The trial
court, as memorialized in a Judgment Entry filed on July 6, 2016, sentenced appellant to
60 days in jail, but suspended 50 of those days provided that appellant complied with
specified conditions, The trial court also fined appellant $250.00 and ordered him to pay
restitution in the amount of $49.00 to Dollar General. Coshocton County, Case No. 2016CA0014 4
{¶7} Appellant now raises the following assignments of error on appeal:
{¶8} THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S CRIM.R.
29 MOTION FOR JUDGMENT OF ACQUITTAL FOLLOWING APPELLEE’S CASE-IN-
CHIEF.
{¶9} THE DECISION OF THE TRIAL COURT, FINDING APPELLANT GUILTY,
WAS AGAINST THE SUFFICIENCY OF THE EVIDENCE.
{¶10} THE DECISION OF THE TRIAL COURT, FINDING APPELLANT GUILTY,
WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
I, II, III
{¶11} Appellant, in his first assignment of error, argues that the trial court erred in
denying his Crim.R. 29 motion for judgment of acquittal. While appellant, in his second
assignment of error, contends that his conviction for theft was against the sufficiency of
the evidence, in his third assignment of error he maintains that his conviction was against
the manifest weight of the evidence.
{¶12} A Crim. R. 29(A) motion for acquittal tests the sufficiency of the evidence
presented at trial. State v. Blue, 5th Dist. Stark No.2001CA00250, 2002–Ohio–351, citing
State v. Williams, 74 Ohio St.3d 569, 576, 1996-Ohio-91, 660 N.E.2d 724; State v. Miley,
114 Ohio App.3d 738, 742, 684 N.E.2d 102 (4th Dist.1996). Crim. R. 29(A) allows a trial
court to enter a judgment of acquittal when the state's evidence is insufficient to sustain
a conviction. A trial court should not sustain a Crim. R. 29 motion for acquittal unless,
after viewing the evidence in a light most favorable to the state, the court finds no rational
finder of fact could find the essential elements of the charge proven beyond a reasonable Coshocton County, Case No. 2016CA0014 5
doubt. State v. Franklin, 5th Dist. Stark No.2007–CA–00022, 2007–Ohio–4649 at ¶ 12,
citing State v. Dennis, 79 Ohio St.3d 421, 1997–Ohio–372, 683 N.E.2d 1096.
{¶13} 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
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[Cite as State v. Hart, 2017-Ohio-1246.]
COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, Jr, J. -Vs- : : THOMAS M. HART : Case No. 2016CA0014 : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Coshocton Municipal Court, Case No. CRB1500884
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 3, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RICHARD J. SKELTON ROBERT E. WEIR Assistant Law Director 239 N. 4th Street 760 Chestnut Street Coshocton, Ohio 43812 Coshocton, Ohio 43812
JAMES R. SKELTON Police Prosecutor 760 Chestnut Street Coshocton, Ohio 43812 Coshocton County, Case No. 2016CA0014 2
Baldwin, J.
{¶1} Defendant-appellant Thomas M. Hart appeals his conviction and sentence
from the Coshocton Municipal Court on one count of theft. Plaintiff-appellee is the State
of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On December 2, 2015, appellant was charged with theft in violation of R.C.
2913.02(A) (1), a misdemeanor of the first degree. At his arraignment on May 19, 2016,
appellant entered a plea of not guilty.
{¶3} Subsequently, a bench trial was held on July 6, 2016. At the bench trial,
Deputy Matt Woitel of the Coshocton County Sheriff’s Office testified that, on November
20, 2015, he was dispatched to Dollar General in response to the theft of a Sega gaming
system. The Deputy spoke with the manager, Heather Powell, who showed him a video.
Powell told him that a man had come into the store on November 18th with his girlfriend,
looked at the system and then left. The same man came back the next day wearing the
same red sweatshirt and hat, walked in and grabbed the same Sega gaming system off
of the shelf, and then walked out of camera view for a few minutes. He then came back
without the Sega and left after paying for another item. The Sega gaming system came
up missing during an inventory on November 20. 2015. Videos from both November 18,
2015 and November 19, 2015 were played at trial.
{¶4} Deputy Woitel testified that he spoke with appellant, who was wearing the
same hat and who, in the video, was wearing the red sweatshirt, and that while appellant
admitted to being in the store that day, he denied taking the item. According to the
Deputy, appellant told him that, on November 19, 2015, he put the gaming system down Coshocton County, Case No. 2016CA0014 3
in the deodorant aisle. The Deputy testified that the video showed that appellant had
never entered the deodorant aisle. The game was never recovered. When asked at trial
if he was able to identify appellant coming into the store on the videos, the Deputy
answered affirmatively. He further testified that, on the video from November 19, 2015,
there appeared to be something near the front pocket of appellant’s sweatshirt.
{¶5} Heather Powell, the manager at Dollar General, testified that she reviewed
the store’s video system on November 20, 2015 and noticed that the Sega system was
missing. After watching the video from the store, Powell observed that, on November 18,
2015, appellant was shopping with Eternity Tidrick and picked up the box that the system
was in, talked to Tidrick about it, and then put the box back on the shelf. She testified that
she then watched the video from the next night and that “it was the same person…that
was with Eternity the night before” Transcript at 25. Powell testified that appellant came
in, took the box off of the shelf, and went to another area. When he came back, appellant
did not have the box. According to her, appellant never went to the deodorant aisle.
Powell further testified that the videos showed that from the time appellant was in the
store until the time the game was discovered missing, no one other than appellant
touched a Sega game.
{¶6} At the conclusion of the testimony, appellant moved for a judgment of
acquittal. The trial court overruled appellant’s motion and found appellant guilty. The trial
court, as memorialized in a Judgment Entry filed on July 6, 2016, sentenced appellant to
60 days in jail, but suspended 50 of those days provided that appellant complied with
specified conditions, The trial court also fined appellant $250.00 and ordered him to pay
restitution in the amount of $49.00 to Dollar General. Coshocton County, Case No. 2016CA0014 4
{¶7} Appellant now raises the following assignments of error on appeal:
{¶8} THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S CRIM.R.
29 MOTION FOR JUDGMENT OF ACQUITTAL FOLLOWING APPELLEE’S CASE-IN-
CHIEF.
{¶9} THE DECISION OF THE TRIAL COURT, FINDING APPELLANT GUILTY,
WAS AGAINST THE SUFFICIENCY OF THE EVIDENCE.
{¶10} THE DECISION OF THE TRIAL COURT, FINDING APPELLANT GUILTY,
WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
I, II, III
{¶11} Appellant, in his first assignment of error, argues that the trial court erred in
denying his Crim.R. 29 motion for judgment of acquittal. While appellant, in his second
assignment of error, contends that his conviction for theft was against the sufficiency of
the evidence, in his third assignment of error he maintains that his conviction was against
the manifest weight of the evidence.
{¶12} A Crim. R. 29(A) motion for acquittal tests the sufficiency of the evidence
presented at trial. State v. Blue, 5th Dist. Stark No.2001CA00250, 2002–Ohio–351, citing
State v. Williams, 74 Ohio St.3d 569, 576, 1996-Ohio-91, 660 N.E.2d 724; State v. Miley,
114 Ohio App.3d 738, 742, 684 N.E.2d 102 (4th Dist.1996). Crim. R. 29(A) allows a trial
court to enter a judgment of acquittal when the state's evidence is insufficient to sustain
a conviction. A trial court should not sustain a Crim. R. 29 motion for acquittal unless,
after viewing the evidence in a light most favorable to the state, the court finds no rational
finder of fact could find the essential elements of the charge proven beyond a reasonable Coshocton County, Case No. 2016CA0014 5
doubt. State v. Franklin, 5th Dist. Stark No.2007–CA–00022, 2007–Ohio–4649 at ¶ 12,
citing State v. Dennis, 79 Ohio St.3d 421, 1997–Ohio–372, 683 N.E.2d 1096.
{¶13} 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.”
{¶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
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
a new trial should be reserved for only the “exceptional case in which the evidence weighs
heavily against the conviction.” Id. Coshocton County, Case No. 2016CA0014 6
{¶15} Appellant was convicted of theft in violation of R.C. 2913.02(A)(1) which
states as follows: “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;..” Appellant now contends that the evidence was insufficient to convict him of
theft because there were no eyewitnesses to any theft, the videos do not show appellant
stealing any items, and the missing Sega game may have been in any number of places
in the Dollar General store. Appellant also notes that no witness identified appellant as
the male in the videos and neither individual who testified at trial was asked whether or
not the person in the video was sitting in appellant’s chair.
{¶16} In the case sub judice, video showed a man looking at a Sega gaming
system on November 18, 2015. The same man was shown on a separate video from
November 19, 2015 grabbing the same Sega gaming system off of the shelf and walking
out of camera view. The man, who wore the same red sweatshirt and black baseball hat
on both days, came back without the Sega, paid for another item and then left the store.
At trial, Deputy Woitel testified that he was able to identify appellant coming into the store
on November 19, 2015 from the video. Heather Powell, the store manager, testified that
no one touched the Sega between the time appellant came in on November 19, 2015 and
the time she discovered it missing on November 20, 2015. When questioned by Deputy
Woitel, appellant, who was wearing the same hat, denied taking the Sega gaming system
and stated that he had left it in the deodorant aisle. However, the video showed that
appellant never entered the deodorant aisle. Moreover, the video from November 19,
2015 showed something near the front pocket of appellant’s sweatshirt. Coshocton County, Case No. 2016CA0014 7
{¶17} Based on the foregoing, we find that, after viewing the evidence in a light
most favorable to the state, any rational trier of fact could have found the essential
elements of the crime of theft proven beyond a reasonable doubt. We further find that the
trial court did not lose its way in convicting appellant of theft.
{¶18} Appellant’s three assignments of error are, therefore, overruled.
{¶19} Accordingly, the judgment of the Coshocton Municipal Court is affirmed.
By: Baldwin, J.
Gwin, PP. and
Wise, Earle, J. concur.