State v. Cargill ( 2014 )

[Cite as State v. Cargill, 2014-Ohio-2073.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 13AP-594
v. : (M.C. No. 2013-CRB-996)
William Cargill, Sr., : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on May 15, 2014
Richard C. Pfeiffer, Jr., City Attorney, Orly Ahroni, for
appellee.
Yeura R. Venters, Public Defender, and David L. Strait, for
appellant.
APPEAL from the Franklin County Municipal Court
CONNOR, J.
{¶ 1} Defendant-appellant, William Cargill, Sr., appeals from a judgment of the
Franklin County Municipal Court, finding him guilty of one count of theft by deception, in
violation of R.C. 2913.02(A)(3). Because both sufficient evidence and the manifest weight
of the evidence support defendant's conviction, we affirm.
I. FACTS & PROCEDURAL HISTORY
{¶ 2} The state filed a complaint against defendant on January 13, 2013, charging
him with the crime of theft by deception, a misdemeanor of the first degree. The
complaint alleged that defendant took $250 in cash and two valid tickets to The Ohio
State University ("OSU") men's basketball game from the victim, Andrew Jameson, and in
No. 13AP-594 2
exchange gave Jameson two counterfeit tickets. Defendant waived his right to a jury trial
and elected to have the case tried to the court.
{¶ 3} The evidence adduced at trial demonstrated that, on January 13, 2013,
Jameson was planning to take his 12-year-old daughter to see the OSU men's basketball
game versus the University of Michigan. The game was sold out, but Jameson already had
two tickets for the game. Jameson's tickets were for seats located in the terrace of the
arena, in Section 300. Jameson's tickets had a face value of $47 each.
{¶ 4} That morning, Jameson parked his car in a parking lot located off of the
intersection of Lane Avenue and Fife Avenue, on the OSU campus. Jameson and his
daughter exited their car and began to walk toward the arena where the basketball game
would take place. As they were walking, Jameson and his daughter "were approached by
two black males," one of whom was defendant. (Tr. 13.) Defendant asked Jameson if he
needed any tickets. Jameson said "[w]ell, maybe we would consider an upgrade," and at
that time Jameson and defendant "started talking price." (Tr. 15.) Defendant offered
Jameson two tickets for seats located in Section 105 of the arena. Jameson had "gone to a
lot of OSU basketball games" in the past, and was familiar with Section 105, as he had "sat
in that section before." (Tr. 16.) Jameson noted that the tickets defendant was offering
were a significant upgrade from the tickets Jameson possessed.
{¶ 5} Initially, defendant and his partner wanted $600 total for the tickets they
had. Jameson believed the price was too high, and "kept trying to walk away but was
stopped" by defendant. (Tr. 15.) Jameson eventually said that his "best offer" was $250
cash for the pair of the two upgraded tickets, plus the pair of tickets to Section 300 that
Jameson possessed. Defendant accepted Jameson's offer, defendant and Jameson
exchanged the tickets, and defendant paid the $250 cash to "the other gentleman,
[defendant's] partner." (Tr. 15.) Jameson recalled that defendant promised him "[g]ood
seats" in Section 105. (Tr. 45.)
{¶ 6} When Jameson and his daughter attempted to enter the arena, the ticket
taker denied them entrance, as the tickets Jameson had purchased from defendant would
not scan. The police officers who were present in the arena came over and inspected the
tickets, and informed Jameson that the "tickets [were] invalid" and that he had "been sold
some counterfeit tickets." (Tr. 17.) The police noted that the tickets were "very good
No. 13AP-594 3
counterfeit tickets." (Tr. 17.) Jameson then provided the police with a description of
defendant and left the arena, as he had no valid tickets which would allow him entry into
the game. The police provided Jameson with a phone number to call in case he saw
defendant on the street.
{¶ 7} Jameson and his daughter walked back to Jameson's car and, as they were
driving on Lane Avenue, they saw defendant walking on the street. Jameson noted that
defendant was not with the same man who had been present when defendant sold
Jameson the tickets earlier in the day. Jameson pulled into the parking lot of a Panera
Bread store located on Lane Avenue, stopped two police officers who were walking on the
street, and explained the situation to them. The police officers then detained defendant.
OSU police officer Andrew Gillespie noted that, when he made contact with defendant
outside of the Panera Bread store, defendant told Officer Gillespie that "it was all a
mistake. He said that he hadn't done anything wrong; * * * he didn't have any knowledge
or any kind of association with the people that we may be looking for, but he might be able
to point me in the direction of who did." (Tr. 74.) After Jameson confirmed that defendant
was the person who sold him the counterfeit tickets, Officer Gillespie arrested defendant.
{¶ 8} Defendant testified in his own defense. He explained that, on the morning
of January 13, 2013, he was at his home in Cleveland when he received a call from "three
gentlemen from Cleveland saying, Let's go down to the Ohio State game." (Tr. 112.)
Defendant asked his wife if he could go, and at first she said no, but then she said okay,
and gave defendant "ten $100 bills, $1,000." (Tr. 112-13.) Defendant told her that he was
"going to watch the game," but she said, "[y]ou know you are going to sell tickets." (Tr.
113.) Defendant regularly scalped tickets at OSU games, as well as other sporting events,
but he told his wife that he was not going to sell tickets that day, as he was going to watch
the game. Defendant's friend, Clint Crenshaw, and two other gentlemen picked defendant
up, and the men traveled to Columbus together.
{¶ 9} When defendant arrived in Columbus, tickets to the basketball game had
sold out. So, defendant went down to the street to try to buy a ticket off of someone.
Defendant said he stood on the corner next to a man named David he knew from
Cincinnati. Defendant explained that, he was standing "on the corner trying to find a
couple tickets, and another gentleman came over and stood in between" him and David.
No. 13AP-594 4
(Tr. 113.) Defendant knew this other man, "because [he had] seen him hustling down
there before." (Tr. 113.)
{¶ 10} Defendant stated that the other gentleman said, "[y]o, yo. * * * Come here
for a minute." (Tr. 113.) Defendant walked over and saw Jameson talking to the
unidentified man. Defendant had on his sign "that said I need a ticket" on the front, and
had a seating chart of the arena on the back. (Tr. 114.) Defendant explained that he
allowed Jameson to look at the seating chart, so Jameson could see where the tickets he
was considering purchasing from the unidentified man would be located. Defendant
explained that "Mr. Jameson looked at [his] chart, seen the man's ticket. That's all he
wanted to know. [Defendant] walked away, [and] went back over" to the corner. (Tr. 115.)
Defendant explained that he did not "see if [any] transaction went through" between
Jameson and the other man. (Tr. 116.)
{¶ 11} Thereafter, defendant and Crenshaw were walking on Lane Avenue together
near the Panera Bread store, when the police stopped them. The police asked defendant if
he knew Crenshaw, and "initially they both said they didn't know each other," but then
later defendant admitted that he did know Crenshaw, as they were both from Cleveland.
(Tr. 53.) Defendant denied playing any roll in the transaction with Jameson, besides
lending Jameson his seating chart for a moment. Defendant reiterated at trial that he
never received $250 from Jameson, never gave Jameson any tickets, and that he "never
even touched a ticket that day." (Tr. 119.) After defendant was arrested, he offered to the
police that he could "contact the person who had taken the money and to bring [the
money] back and give it to Mr. Jameson." (Tr. 98.)
{¶ 12} After trial, the court stated that, "[i]n considering all the evidence, weighing
the credibility of the witnesses, I believe the State has proven, Mr. Cargill, your guilt
beyond a reasonable doubt." (Tr. 150.) Accordingly, the court found defendant guilty of
the crime of theft by deception, imposed a $250 financial sanction, and sentenced
defendant to 180 days of incarceration, but suspended 169 of those days and placed
defendant under a period of community control for two years. The court also ordered that
defendant stay away from OSU property and that defendant pay restitution to Jameson in
the amount of $334.
No. 13AP-594 5
II. ASSIGNMENTS OF ERROR
{¶ 13} Defendant appeals, assigning the following two assignments of error:
[I] The judgment of the trial court is not supported by
sufficient, credible evidence.
[II] The judgment of the trial court is against the manifest
weight of the evidence.
{¶ 14} Defendant's assignments of error assert that neither sufficient evidence nor
the manifest weight of the evidence support his conviction for theft by deception. For the
reasons that follow, we find that the evidence supports defendant's conviction.
{¶ 15} Whether evidence is legally sufficient to sustain a verdict is a question of
law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is a test of adequacy.
Id. The evidence is construed in the light most favorable to the prosecution to determine
whether a rational trier of fact could have found the essential elements of the offense
proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph
two of the syllabus; State v. Conley, 10th Dist. No. 93AP-387 (Dec. 16, 1993). When
reviewing the sufficiency of the evidence the court does not weigh the credibility of the
witnesses. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 79.
{¶ 16} Sufficiency of the evidence and manifest weight of the evidence are distinct
concepts; they are "quantitatively and qualitatively different." Thompkins at 386. When
presented with a manifest weight argument, we engage in a limited weighing of evidence
to determine whether sufficient competent, credible evidence permits reasonable minds
to find guilt beyond a reasonable doubt. Conley. Thompkins at 387 (noting that "[w]hen a
court of appeals reverses a judgment of a trial court on the basis that the verdict is against
the weight of the evidence, the appellate court sits as a 'thirteenth juror' and disagrees
with the factfinder's resolution of the conflicting testimony"). In the manifest weight
analysis the appellate court considers the credibility of the witnesses and determines
whether the jury "clearly lost its way and created such a manifest miscarriage of justice
that the conviction must be reversed and a new trial ordered." Id., quoting State v.
Martin, 20 Ohio App.3d 172, 175 (5th Dist.1983). Determinations of credibility and
weight of the testimony remain within the province of the trier of fact. State v. DeHass,
10 Ohio St.2d 230 (1967), paragraph one of the syllabus. The jury may take note of any
No. 13AP-594 6
inconsistencies and resolve them accordingly, "believ[ing] all, part or none of a witness's
testimony." State v. Raver, 10th Dist. No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v.
Antill, 176 Ohio St. 61, 67 (1964). In cases involving a bench trial, "the trial court assumes
the fact-finding function of the jury." Cleveland v. Welms, 169 Ohio App.3d 600, 2006-
Ohio-6441, ¶ 16 (8th Dist.).
{¶ 17} The crime of theft by deception provides that "[n]o 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: * * * [b]y deception." R.C.
2913.02(A)(3). See also State v. Frazier, 10th Dist. No. 10AP-112, 2010-Ohio-4440, ¶ 28
(noting that, in order to prove theft by deception, the state must show: (1) intent, (2) to
deprive the owner, (3) of something of value—i.e., property or services, (4) without the
owner's consent, and (5) by deception). "Deception" means knowingly deceiving another
or causing another to be deceived by any false or misleading representation, by
withholding information, or by any other conduct, act, or omission that creates,
confirms, or perpetuates a false impression in another, including a false impression as to
law, value, state of mind or other objective or subjective fact. R.C. 2913.01(A). To
"deprive" means to "[w]ithold property of another permanently," to "[d]ispose of
property so as to make it unlikely that the owner will recover it," or to "[a]ccept, use, or
appropriate money, property or services, with purpose not to give proper consideration
in return for the money, property or services, and without reasonable justification or
excuse for not giving proper consideration." R.C. 2913.01(C)(1) through (3).
{¶ 18} Defendant asserts that there is insufficient evidence to show that he acted
knowingly or that he had the specific purpose to deprive Jameson of property. "A person
acts knowingly, regardless of his purpose, when he is aware that his conduct will probably
cause a certain result or will probably be of a certain nature. A person has knowledge of
circumstances when he is aware that such circumstances probably exist." R.C. 2901.22(B).
"A person acts purposely when it is his specific intention to cause a certain result, or,
when the gist of the offense is a prohibition against conduct of a certain nature, regardless
of what the offender intends to accomplish thereby, it is his specific intention to engage in
conduct of that nature." R.C. 2901.22(A). Because intent lies within the privacy of a
person's own thoughts and is therefore not susceptible to objective proof, intent is
No. 13AP-594 7
determined from the surrounding facts and circumstances, and persons are presumed to
have intended the natural, reasonable, and probable consequences of their voluntary
acts. State v. Garner, 74 Ohio St.3d 49, 60 (1995).
{¶ 19} The evidence was sufficient to convict defendant of theft by deception.
Jameson's testimony established that defendant and another male approached Jameson
and asked Jameson if he needed tickets. Jameson stated that he would consider an
upgrade, and the men heckled over the price. Jameson stated that he started to walk
away from the encounter, but "it was [defendant] who said, Hey, what will you take?"
(Tr. 45.) Ultimately, defendant accepted Jameson's offer for $250 cash and his two valid
tickets, in exchange for defendant's two tickets for seats purportedly located in Section
105. Jameson "exchanged tickets" with defendant and "paid the cash to [defendant's]
partner." (Tr. 15.) Jameson stated that, when he exchanged money and tickets with
defendant, he believed he was "getting real tickets as opposed to counterfeit." (Tr. 26.)
{¶ 20} This evidence established that defendant, acting with the purpose to
deprive Jameson of his two valid tickets and $250, knowingly exerted control over at
least Jameson's valid tickets by perpetuating the false impression that Jameson was
receiving two authentic tickets for good seats located in Section 105. Defendant did not
sell Jameson two valid tickets for Section 105; rather, he gave him two counterfeit
tickets which were worthless. Accordingly, sufficient evidence supports defendant's
conviction.
{¶ 21} Defendant's second assignment of error asserts that the manifest weight of
the evidence does not support his conviction. Defendant notes that he testified at trial,
and denied any involvement in the transaction with Jameson. Defendant further asserts
that, because the "counterfeit tickets in question were described as 'good fakes,' whose
illegality was not readily apparent," even if defendant had been involved in the sale of
the counterfeit tickets, there was no proof that he acted knowingly in deceiving
Jameson.
{¶ 22} Reviewing the entire record, the court did not lose its way or create a
manifest miscarriage of justice in this action. There is no evidence indicating that
defendant believed the tickets for Section 105 were valid tickets. Defendant denied
having any part in the transaction to sell Jameson the Section 105 tickets. Defendant
No. 13AP-594 8
testified that he never even touched a ticket on January 13, 2013. Accordingly,
defendant's assertion that he did not act knowingly in deceiving Jameson because he
could not have known if the tickets were fake, lacks merit.
{¶ 23} Although, under a manifest weight of the evidence analysis, we are able to
consider the credibility of the witnesses, "in conducting our review, we are guided by the
presumption that the jury, * * * is best able to view the witnesses and observe their
demeanor, gestures and voice inflections, and use these observations in weighing the
credibility of the proffered testimony." State v. Tatum, 10th Dist. No. 10AP-626, 2011-
Ohio-907, ¶ 5, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). The
trial court was in the best position to judge the credibility of the witnesses, and the court
found Jameson to be a credible witness, as it was entitled to do. Jameson's testimony
demonstrated that defendant initiated and completed the ticket transaction with
Jameson, and that defendant provided Jameson with two fake tickets in exchange for
Jameson's two valid tickets and $250. Accordingly, the manifest weight of the evidence
also supports defendant's conviction.
{¶ 24} Based on the foregoing, defendant's first and second assignments of error
are overruled.
III. DISPOSITION
{¶ 25} Having overruled defendant's two assignments of error, we affirm the
judgment of the Franklin County Municipal Court.
Judgment affirmed.
KLATT and T. BRYANT, JJ., concur.
T. BRYANT, J., retired, of the Third Appellate District,
assigned to active duty under authority of the Ohio
Constitution, Article IV, Section 6(C).
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