[Cite as State v. Parks, 2024-Ohio-5538.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2024 CA 00005 DANIEL PARKS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2023 CR 01746
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 22, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KYLE L. STONE BERNARD HUNT PROSECUTING ATTORNEY 2395 McGinty Road, NW CHRISTOPHER A. PIEKARSKI North Canton, Ohio 44720 ASSISTANT PROSECUTOR 110 Central Plaza South, Suite 510 Canton, Ohio 44702 Stark County, Case No. 2024 CA 00005 2
Wise, J.
{¶1} Appellant, Daniel Parks, appeals from the December 12, 2023 judgment
entry of the Stark County Common Pleas Court after Parks was found guilty of theft and
sentenced to six months in jail and community control. Appellee is the State of Ohio. For
the reasons that follow, we affirm his conviction and sentence.
FACTS AND PROCEDURAL HISTORY
Indictment
{¶2} On July 17, 2023, a complaint was filed in the Canton Municipal Court
charging appellant Daniel Parks with a theft offense for seven separate thefts from the
Walmart located on Atlantic Boulevard in Stark County, Ohio. After appellant waived his
preliminary hearing, the case was bound over to the Stark County Common Pleas Court.
{¶3} On September 8, 2023, the Stark County Grand Jury indicted appellant on
one count of theft, a violation of R.C. 2913.02(A)(1)(B)(2). Because the value of the
goods stolen was more than $1,000 but less than $7,500, the theft charge was a felony
of the fifth degree.
{¶4} Parks pleaded not guilty at his arraignment and the case proceeded to a
jury trial in the Stark County Common Pleas Court.
Trial
{¶5} At trial, the state presented the testimony of two witnesses.
Testimony of Anthony Angelo
{¶6} On July 15, 2023, Canton Police Officer Anthony Angelo was working his
off-duty security job at the Walmart on Atlantic Boulevard in the City of Canton, Stark
County, Ohio. Ryan Worrell, a loss prevention associate, was watching the surveillance Stark County, Case No. 2024 CA 00005 3
cameras that were spread throughout the store and observed Parks and a female
companion place some items in a plastic reusable bag and enter one of the self-checkout
lanes. Worrell alerted Officer Angelo of a potential theft occurrence
{¶7} Officer Angelo proceeded to the loss prevention office and viewed the
surveillance camera footage with Worrell. He observed Parks and his female companion
placing items in the reusable plastic bag. He saw them enter the self-checkout line,
proceed to scan some items, and then leave the store with items that appeared to be not
scanned and not paid for.
{¶8} Officer Angelo and Worrell stopped the couple in the vestibule of the store
after they had left the final “point of purchase”. Parks and his companion were escorted
to the loss prevention office with the goods still in the bag.
{¶9} The items in the bag were sorted and the ones that had no receipt were
collected and returned to the shelves. Parks and his companion were allowed to leave
the store with the items that the receipt showed had been paid for, and Parks was issued
a summons for misdemeanor theft.
{¶10} Later, Officer Angelo and associates from Walmart’s loss prevention
department compared the credit or debit card Parks used for the transaction with prior
transactions using a software program called Secure Store. Reviewing those prior
transactions and the surveillance videos, they were able to determine that Parks had
committed six prior thefts. In all, between June 12, 2023 and July 15, 2023, Parks stole
goods valued at over $1,600. Stark County, Case No. 2024 CA 00005 4
{¶11} Officer Angelo contacted the Canton City Prosecutor’s Office and was
advised that the multiple thefts totaling over $1,000 constituted a “continuing course of
conduct”.
{¶12} Accordingly, a complaint was filed in the Canton Municipal Court charging
Parks with a felony five theft, goods stolen over $1,000 but less than $7,500.
Testimony of Travis Davis
{¶13} Travis Davis, an employee of Walmart in the loss prevention department,
has been working in the department since July, 2023. He was not the original employee
associated with the report of the Parks’ thefts. Ryan Worrell was no longer employed by
Walmart. The state supplemented its witness list to include the name of Davis.
{¶14} Davis explained the video surveillance system, which included over 32
cameras with optical zoom and 50 stationery cameras throughout the store. He
described the theft packet report that is generated by Walmart’s “loss prevention” or
“asset protection” department when there is a suspicion of a theft or shoplifting reported
in the store. A theft packet report was generated in appellant’s case and any other
reports of theft made by the department. Tr. 120.
{¶15} First, Davis explained there is an alert signal such as a previous theft that
was confirmed or a person walking through the store with a large backpack. Second,
the surveillance cameras are viewed to watch the shopper and observe whether the
shopper has picked up some goods from the store and not something brought in. For
example, a shopper may be carrying a beverage that was brought into the store from an
outside source. Then, it is observed whether the shopper tries to conceal a product. Stark County, Case No. 2024 CA 00005 5
And finally, the video cameras are viewed to determine whether the shopper takes the
suspected stolen goods past the “last point of sale”.
{¶16} Davis reviewed the theft packet report generated for Parks and viewed the
surveillance videos accompanying the report. He described the two methods Parks used
to steal products on Walmart shelves.
{¶17} Parks would use the “Scan and Go App” implemented by Walmart. A
shopper downloads the App on the cell phone and then scans merchandise throughout
the store and pays for it at the register. This eliminates the need to scan each individual
item at the register.
{¶18} Parks used his “Scan and Go” App to scan an item less than the actual item.
For example, Parks scanned one 20 ounce can of Mountain Dew and placed a 24 pack
in his shopping cart; “it looks right on the receipt but the price amount doesn’t match up.”
Tr. 122.
{¶19} Parks also used the “point of sale” system at the self-checkout register in
front of the store. In these cases, he would not scan all of the items in his shopping cart
and place the unscanned items in a bag along with the scanned items and leave the
store.
{¶20} In all, Walmart traced seven times from June, 2023 to July 15, 2023 when
Parks stole a total of $1,636.15 in goods. Parks’ thefts ranged from a 24 pack of
Mountain Dew to a Coleman 16-foot pool set.
{¶21} The state introduced, without objection, the Walmart theft report. State’s
Exh. 3. The jury also viewed the surveillance videotapes footage that were part of the Stark County, Case No. 2024 CA 00005 6
theft report without objection. Parks did not file a motion in limine to exclude Travis Davis
as a witness.
{¶22} The defense presented no evidence, and Parks did not testify in his
defense.
{¶23} After hearing the evidence, viewing the exhibits and receiving instructions
from the trial court, the jury returned with a verdict of guilty in approximately twenty-two
minutes. Tr. 231. The jury further found that the value of the goods stolen was more
than $1,000 but less than $7,500.
Sentence
{¶24} Parks was sentenced to six months in the Stark County Jail and three years
of community control. The trial court further ordered restitution to Walmart in the amount
of $873.46, the value of goods never recovered.
{¶25} Appellant now brings this timely appeal arguing four assignments of error:
ASSIGNMENTS OF ERROR
{¶26} "I. APPELLANT WAS DEPRIVED OF HIS RIGHT TO CONFRONT
THE WITNESSES AGAINST HIM BY THE ADMISSION AT TRIAL OF TESTIMONIAL
STATEMENTS OF AN ABSENT WITNESS.
{¶27} II. ADMISSION OF TRAVIS DAVIS’S STATEMENTS REGARDING
FACTS OF WHICH HE HAD NO PERSONAL KNOWLEDGE VIOLATED THE RULES
OF EVIDENCE.
{¶28} "III. APPELLANT’S CONVICTION WAS NOT BASED ON LEGALLY
SUFFICIENT EVIDENCE. Stark County, Case No. 2024 CA 00005 7
{¶29} "IV. APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE."
I., II.
{¶30} In assignments of error one and two, appellant challenges the testimony of
Travis Davis, the asset protection and loss prevention employee from Walmart who
testified to the theft report generated by Walmart in this case. Appellant claims that he
was deprived of his right to confront the actual employee who led the theft investigation,
Ryan Worrell. Worrell was no longer employed by Walmart, and his subpoena was
returned as no longer employed. His second assignment of error also challenges the
testimony of Travis Davis claiming that the trial court erred in allowing him to testify to
matters in which he had no personal knowledge.
{¶31} Because these assignments of error are interrelated, they will be discussed
together.
Plain Error Review
{¶32} Parks did not object to the testimony of Davis, the admission of the video
surveillance footage or the “theft report”. Thus, our appellate review is limited to plain
error.
{¶33} Pursuant to Crim.R. 52(B), a plain error may be invoked in exceptional
circumstances to avoid a miscarriage of justice. State v. Long, 53 Ohio St.2d 91, 94
(1978). In order for Crim.R. 52(B) to apply, a reviewing court must find that (1) there was
an error, i.e., a deviation from a legal rule, (2) that the error was plain, that is an obvious
defect in the trial proceedings and (3) that the error affected substantial rights – the
outcome of the trial. State v. Stephens, 2022-Ohio-2944, ¶ 45 (5th Dist.). Stark County, Case No. 2024 CA 00005 8
{¶34} The decision to admit or exclude evidence is within the sound discretion of
the trial court and will not be disturbed absent an abuse of discretion. However,
challenged hearsay is subject to de novo review rather than the more deferential review
of abuse of discretion. State v Kanable, 2020-Ohio-4335, ¶ 19 (6th Dist.); N.T. v. J.W.,
2024-Ohio-1513, ¶ 29 (6th Dist.); John Soliday Fin. Group L.L.C. v. Pittenger, 2010-Ohio-
4861, ¶ 28 (5th Dist.) (“... [W]e review de novo the trial court’s decision regarding whether
evidence is hearsay or nonhearsay under Evid.R. 801.”) citations omitted.
{¶35} We reject appellant’s assignments of error numbers one and two and find
that the testimony of Travis Davis in support of the “theft report” and video surveillance
footage was permissible evidence under the business records exception to the hearsay
rule.
Business records exception to Hearsay Rule
{¶36} Evid.R. 801(C) sets forth that hearsay is a “statement, other than one made
by the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted in the statement.”
{¶37} Evid.R. 802 states that “[h]earsay is not admissible except as otherwise
provided by ... these rules, or by other rules prescribed by the Supreme Court of Ohio.”
{¶38} Evid.R. 803 set forth exceptions to the hearsay rule. Evid.R. 803(6) sets
forth the business records exception to the hearsay rule and states, in part:
The following are not excluded by the hearsay rule, even though the
declarant is available as a witness:
(6) Records of a regularly conducted activity. A memorandum, report,
record, or data compilation, in any form, of acts, events, or conditions, made Stark County, Case No. 2024 CA 00005 9
at or near the time by, or from information transmitted by, a person with
knowledge, if kept in the course of a regularly conducted business activity,
and if it was the regular practice of that business activity to make the
memorandum, report, record, or data compilation, all as shown by the
testimony of the custodian or other qualified witness ... unless the source of
information or the method or circumstances of preparation indicate lack of
trustworthiness. The term ‘business’ as used in this paragraph includes
business, institution, association, profession, occupation, and calling of
every kind, whether or not conducted for profit.
{¶39} To be admissible as a business record, Ohio Evid. 803(6) requires a record
to meet the following four elements:
(1) it must have been made in the course of a regularly conducted
business activity; (2) it must have been entered by a person with knowledge
of the act, event or condition, (3) it must have been recorded at or near the
time of the transactions, and (4) a foundation must be laid by the custodian
of the record or by some other qualified witness. State v. Kanable, 2020-
Ohio-4335, ¶ 20 (6th Dist.), citing State v. Davis, 2008-Ohio-2, ¶ 171, accord
John Soliday Fin.Group L.L.C. v. Pittenger, 2010-Ohio-4861, at ¶ 31 (5th
Dist.).
{¶40} The phrase “other qualified witness” should be broadly interpreted. It is not
necessary that the witness have firsthand knowledge of the transaction giving rise to the
record. “Rather, it must be demonstrated that the witness is sufficiently familiar with the
operation of the business and with the circumstances of the record’s preparation, Stark County, Case No. 2024 CA 00005 10
maintenance and retrieval, that he can reasonably testify on the basis of this knowledge
that the record is what it purports to be, and that it was made in the ordinary course of
business consistent with the elements of Rule 803(6).” John Soliday Fin. Group L.L.C.
v. Pittenger, 2010-Ohio-4861 at ¶ 32 (5th Dist.) quoting State v. Patton (Mar. 5, 1992,
Allen App. No. 1-91-12, 1992 WL 42806 citing 1 Weissengerger’s Ohio Evidence (1985)
75-76, Section 803.7.
{¶41} The business records exception is modeled after Fed.R. 803(6). In United
States v. Jenkins, 345 F.3d 928, 935 (6th Cir. 2003), the Sixth Circuit discussed the
meaning of “otherwise qualified witness”:
Rule 803(6) does not require that the custodian personally gather,
input, and compile the information memorialized in a business record. The
custodian of the records need not be in control of or have individual
knowledge of the particular corporate records, but need only be familiar with
the company’s recordkeeping practices. Likewise, ‘[t]o be an ‘other qualified
witness,’ it is not necessary that the person laying the foundation for the
introduction of the business record have personal knowledge of their
preparation.
{¶42} Id. at 935, internal citations omitted.
{¶43} In this case, the trial court did not commit plain error in accepting Davis’
testimony as an “otherwise qualified witness’ under Evid.R. 803(6). Davis testified that
he was familiar with the theft reports generated by Walmart and described in detail the
procedure utilized by Walmart when a theft is suspected. Stark County, Case No. 2024 CA 00005 11
{¶44} The theft report and surveillance videotapes footage presented by Davis
satisfy the criteria for the business records exception to the hearsay rule. The evidence
was indisputably from Walmart, created immediately after the thefts, generated by an
employee familiar with the procedure in place for detecting thefts and testified to by an
asset protection employee responsible and familiar with the process.
{¶45} Parks submitted no evidence that the theft report and surveillance video
footage or its methods of preparation were not trustworthy. Accordingly, we find that the
theft report and surveillance video footage fall under the Evid.R.803(6) business records
exception and the trial court did not commit plain error when it admitted the evidence.
Confrontation Clause
{¶46} Parks contends that the trial court violated his constitutional right to confront
the witnesses against him by allowing the state to provide evidence of the thefts through
the testimony of Travis Davis. We conclude that the trial court did not violate the
Confrontation Clause by admitting Davis’ testimony.
{¶47} The Sixth Amendment of the United States Constitution guarantees that “[i]n
all criminal prosecutions the accused shall enjoy the right ... to be confronted with the
witnesses against him.”
{¶48} The Supreme Court has construed the Sixth Amendment’s Confrontation
Clause to bar the admission of testimonial hearsay against a criminal defendant unless
the declarant is unavailable to testify at trial and the defendant has had a prior opportunity
to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 68 (2004).
{¶49} A hearsay statement is testimonial if it was made “under circumstances
which would lead an objective witness reasonably to believe that the statement would Stark County, Case No. 2024 CA 00005 12
be available for use at a later time. Melendiaz-Diaz, 557 U.S. at 310 quoting Crawford,
541 U.S. at 51-52.
{¶50} We review de novo whether the trial court violated Parks’ confrontation
rights by admitting the testimony of Davis into evidence. Again, because Parks did not
raise a Confrontation Clause objection at trial, we apply the plain error standard of review
outlined above. Under this standard, we will reverse only if the trial court committed an
obvious and substantial error that so undermined the fundamental fairness of the trial
itself so as to cause serious doubt on the reliability of the judgment of conviction. State
v. Long, 53 Ohio St.2d 95.
Davis’ Statement
{¶51} Davis testified that he was employed in the loss prevention department at
Walmart and was trained in the methods used to detect thefts and shoplifting. He
described in detail the steps taken to identify the thefts committed by Parks.
{¶52} As noted, the surveillance video footage and theft report can be
authenticated by someone other than its creator as long as the witness has knowledge
that the exhibits accurately represent what the proponent claims it represents. Davis
described the procedure employed by Walmart in apprehending potential shoplifters.
Davis presented the surveillance video footage so that the factfinder – the jury – could
see for themselves Parks committing the acts of theft by improperly scanning the items
or not scanning the items at all.
{¶53} Accordingly, we cannot say that any error in admitting the theft report and
surveillance videotapes through the testimony of Davis was plain error. Stark County, Case No. 2024 CA 00005 13
{¶54} Officer Angelo testified that he reviewed the surveillance tapes showing the
thefts conducted by Parks. He was involved in the apprehension of Parks that day and
issuing him a summons for theft. Thus, the testimony of Davis was cumulative of other
evidence admitted at trial. Davis testimony went to the weight of the evidence and not
its admissibility.
{¶55} Parks cites to the United States Supreme Court holding in Bullcoming v.
New Mexico, 564 U.S. 647 (2011) for the proposition that it is a violation of the
Confrontation Clause to introduce a report that is not authored by the person testifying.
As the state notes, this case is easily distinguished. In State v. Hood, 2012-Ohio-6208,
the Ohio Supreme Court, when discussing the admission of cell-phone records as
business records, stated:
Unlike the laboratory reports that the [United States Supreme Court]
found to be testimonial in Melendez-Diaz … or Bullcoming, … the culling
and configuration of cell-phone records does not require the undertaking of
a scientific process or an interpretation of results from experimentation. It
reflects only a formatting of information that already exists as a part of the
company’s day-to-day business.
{¶56} Id. at ¶ 38.
{¶57} Parks submitted no evidence that the theft report and surveillance video
footage or its methods of preparation were not trustworthy. Accordingly, we find that the
theft report and surveillance video footage fall under the Evid.R.803(6) business records
exception, and their admission through the testimony of Davis did not violate the
Confrontation Clause. Stark County, Case No. 2024 CA 00005 14
{¶58} Appellant’s assignments of error numbers one and two are overruled.
III, IV.
{¶59} In Parks’ third and fourth assignments of error, he argues that the state
failed to present sufficient evidence to prove every element of the crime of theft beyond
a reasonable doubt. He also alleges that the jury lost its way in convicting him of theft –
a manifest weight of the evidence argument. Because both assignments require us to
examine the evidence we will review them together.
Standards
{¶60} The standards for challenges to the sufficiency of the evidence and for
challenges to the manifest weight of the evidence are 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. Thus, while a court of appeals may determine that a
conviction is supported by sufficient evidence, that court may nevertheless conclude that
the jury’s verdict is against the weight of the evidence.
{¶61} Sufficiency challenges are a test of adequacy. As the supreme court has
held:
The sufficiency of the evidence is a test of adequacy. Thompkins at
86, 678 N.E.2d 541. When evaluating the adequacy of the evidence, we do
not consider its credibility or effect in inducing belief. (citations omitted).
Rather, we decide whether, if believed, the evidence can sustain the verdict
as a matter of law. This naturally entails a review of the elements of the
charged offense and a review of the state’s evidence. Stark County, Case No. 2024 CA 00005 15
{¶62} The Ohio Supreme Court borrowed in Jenks this sufficiency standard from
the federal standard. Thus, pursuant to this standard, the reviewing court’s task 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.”
{¶63} 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.” State v. Jenks, 61 Ohio St.3d
259, (1991), paragraph two of the syllabus.
{¶64} Evidentiary claims that challenge the manifest weight of the evidence are
reviewed under a different standard than sufficiency claims. Under the manifest weight
standard of review, the reviewing court assesses all of the evidence admitted at trial to
determine whether it agrees with the factfinder’s resolution of conflicting evidence, sitting
as a kind of “thirteenth juror,” Thompkins, supra, at 386. The reviewing court must decide
whether the jury lost its way in assessing and weighing the credibility of witnesses and
admitted evidence and thereby created a manifest miscarriage of justice.
Law
{¶65} R.C. 2913.02 provides the definition of theft and states in relevant part:
(A) No person, with purpose to deprive the owner of property---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;
... Stark County, Case No. 2024 CA 00005 16
(B)(1) Whoever violates this section is guilty of theft.
(2) ... If the value of the property---stolen is one thousand dollars or
more and Is less than seven thousand five hundred dollars ---a violation of
this section Is theft, a felony of the fifth degree.
Parks committed theft
{¶66} We find that appellant’s conviction for theft is supported by sufficient
evidence and is not against the manifest weight of the evidence. The state presented
two witnesses who testified regarding the thefts which occurred at the Walmart on
Atlantic Blvd. in Stark County, Ohio from June to July, 2023.
{¶67} The state presented evidence which demonstrated the amount and value
of the items stolen that amounted to over $1,000. Officer Angelo explained that originally,
Davis was charged with a misdemeanor because the amount of good stolen by Parks
on July 15, 2023 was less than $1,000. But upon further review of the surveillance tapes
and the payment methods Parks used, it was determined that he stole goods from
Walmart on at least seven occasions totaling over $1,000. Officer Angelo testified that
he consulted with the City prosecutor’s office and determined that the multiple thefts
constituted a continuing course of conduct which reached the felony five status.
{¶68} Davis testified to the “theft packet” that was generated by Walmart’s loss
prevention department that established the stolen merchandise value exceeded $1,600.
{¶69} Finally, the surveillance video footage was viewed by the jury and showed
Parks selecting products, not scanning certain items and scanning cheaper versions of
more expensive item. The evidence demonstrated the pattern of Parks’ thefts. He Stark County, Case No. 2024 CA 00005 17
started out stealing small items and when he wasn’t caught, he gradually progressed to
more expensive items.
{¶70} We find that the state presented sufficient evidence for a rational trier of
fact to find all of the essential elements of the crime of theft beyond a reasonable doubt.
We further find that the jury did not lose its way in convicting Parks of theft.
{¶71} Appellant third and fourth assignments of error are overruled.
CONCLUSION
{¶72} For the foregoing reasons, the judgment of the Court of Common Pleas of
Stark County, Ohio, is affirmed.
By: Wise, J.
Hoffman, P. J., and
Baldwin, J., concur.
JWW/kt 1114