State v. Messer ( 2018 )


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  • [Cite as State v. Messer, 
    2018-Ohio-5117
    .]
    STATE OF OHIO                     )                   IN THE COURT OF APPEALS
    )ss:                NINTH JUDICIAL DISTRICT
    COUNTY OF SUMMIT                  )
    STATE OF OHIO                                         C.A. No.      28750
    Appellee
    v.                                            APPEAL FROM JUDGMENT
    ENTERED IN THE
    DARLENE MESSER                                        COURT OF COMMON PLEAS
    COUNTY OF SUMMIT, OHIO
    Appellant                                     CASE No.   CR-2016-09-3367
    DECISION AND JOURNAL ENTRY
    Dated: December 19, 2018
    TEODOSIO, Presiding Judge.
    {¶1}     Appellant, Darlene Messer, appeals from her theft conviction in the Summit
    County Court of Common Pleas. This Court affirms.
    I.
    {¶2}     The loss prevention supervisor (“M.M.”) for the Macedonia Kohl’s was watching
    surveillance cameras in the store and looking for customers who were exhibiting any number of
    common shoplifting behaviors. She began watching Ms. Messer closely after observing her
    quickly leave a “high theft” section of the store with a cart full of merchandise. According to
    M.M., Ms. Messer displayed several behaviors typically seen in shoplifters.           Ms. Messer
    gathered more items before taking the entire cart full of merchandise with her into a fitting room.
    {¶3}     Ms. Messer remained in the fitting room for 40 minutes, but eventually exited and
    placed a few items back on clothing racks. Only hangers remained in her fitting room, but her
    cart now contained a large Kohl’s bag filled with merchandise. Ms. Messer visited the women’s
    2
    restroom in the back of the store and then paid for a single shirt in the customer service area.
    She obtained another Kohl’s bag with her shirt purchase, which she then placed on top of her
    cart. According to M.M., Ms. Messer was looking around and appeared to be “fidgety.”
    {¶4}    M.M. contacted the district loss prevention manager (“J.Z.”), who happened to be
    in the store’s parking lot. M.M. and J.Z. both observed Ms. Messer as she proceeded with her
    cart past the cash registers, through the security “towers,” through the first set of exit doors, and
    into the vestibule area just inside of the building’s outer doors. J.Z. approached Ms. Messer in
    the vestibule area, identified himself, and escorted her back into the store. M.M. contacted the
    police, and Ms. Messer was arrested and charged with the theft of 57 items valued at $1,602.15.
    After a jury trial, Ms. Messer was convicted and the trial court sentenced her to 18 months of
    community control.
    {¶5}    Ms. Messer now appeals from her conviction and raises two assignments of error
    for this Court’s review.
    II.
    ASSIGNMENT OF ERROR ONE
    THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING
    APPELLANT’S OHIO CRIMINAL RULE 29 MOTION FOR ACQUITTAL
    BECAUSE THE EVIDENCE PRESENTED BY THE STATE OF OHIO WAS
    INSUFFICIENT TO SUPPORT A JURY FINDING OF GUILTY OF A
    VIOLATION OF OHIO [R.C.] 2913.02(A)(1) BY PROOF OF GUILT BEYOND
    A REASONABLE DOUBT.
    {¶6}    In her first assignment of error, Ms. Messer argues that the trial court erred in
    denying her Crim.R. 29 motion for acquittal because her theft conviction is not supported by
    sufficient evidence. Specifically, Ms. Messer argues that the evidence presented at trial is
    insufficient to prove she had the requisite mens rea to commit a theft offense because she was
    unaware she could not sit on the bench in the vestibule and make a phone call. She further
    3
    argues that she did not actually leave the store with any stolen property and there is insufficient
    evidence to prove Kohl’s had a point-of-sale policy that she violated. We disagree.
    {¶7}    “We review a denial of a defendant’s Crim.R. 29 motion for acquittal by
    assessing the sufficiency of the State’s evidence.” State v. Frashuer, 9th Dist. Summit No.
    24769, 
    2010-Ohio-634
    , ¶ 33. Whether a conviction is supported by sufficient evidence is a
    question of law, which this Court reviews de novo. State v. Thompkins, 
    78 Ohio St.3d 380
    , 386
    (1997). “Sufficiency concerns the burden of production and tests whether the prosecution
    presented adequate evidence for the case to go to the jury.” State v. Bressi, 9th Dist. Summit No.
    27575, 
    2016-Ohio-5211
    , ¶ 25, citing Thompkins at 386. “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.” 
    Id.,
     quoting
    State v. Jenks, 
    61 Ohio St.3d 259
     (1991), paragraph two of the syllabus. However, “we do not
    resolve evidentiary conflicts or assess the credibility of witnesses, because these functions
    belong to the trier of fact.” State v. Hall, 9th Dist. Summit No. 27827, 
    2017-Ohio-73
    , ¶ 10.
    {¶8}    Ms. Messer was convicted of theft under R.C. 2913.02(A)(1), which states in part:
    “No person, with purpose to deprive the owner of property * * *, shall knowingly obtain or exert
    control over * * * the property * * * [w]ithout the consent of the owner or person authorized to
    give consent * * *.” Because the total value of the property was $1,000.00 or more, but less than
    $7,500.00, Ms. Messer’s theft offense was enhanced to a felony of the fifth degree. See R.C.
    2913.02(B)(2). “A person acts purposely when it is the person’s specific intention to cause a
    certain result * * *.” R.C. 2901.22(A). The definition of “deprive” includes appropriating
    property with the purpose to not give proper consideration in return, without reasonable
    justification or excuse for not giving proper consideration. R.C. 2913.01(C)(3). “A person acts
    4
    knowingly, regardless of purpose, when the person is aware that the person’s conduct will
    probably cause a certain result or will probably be of a certain nature. A person has knowledge
    of circumstances when the person is aware that such circumstances probably exist.” R.C.
    2901.22(B).
    {¶9}    At trial, the State presented the testimony of three witnesses as well as audio from
    911 calls and video surveillance footage from inside of the store. M.M. has worked as the loss
    prevention supervisor for the Macedonia Kohl’s for 12 years. She testified at trial that she was
    working and watching the store’s security cameras on September 15, 2016. She was watching
    customers and looking for behaviors indicative of shoplifting, such as selecting items with no
    regard for price and carrying big, empty handbags, which are typically used to conceal
    merchandise.
    {¶10} M.M. testified that she observed Ms. Messer moving quickly out of the young
    men’s section with a shopping cart full of merchandise. She testified that Ms. Messer’s cart
    contained a lot of merchandise, including some merchandise draped over the top of the cart.
    According to M.M., it was an unusual amount of merchandise and was more than she typically
    sees at that time of year. M.M. testified that the young men’s area is considered a “high theft
    area” and a “high shortage area” because more items are stolen from there than are stolen from
    other sections of the store, so she watches it “heavily.” As Ms. Messer proceeded through the
    store, M.M. testified that she observed her feeling down the side of a red shirt on a rack, which is
    a common shoplifting behavior to search for a “hard tag” or device that would set off the alarm.
    M.M. continued to follow Ms. Messer on the surveillance cameras as she entered the intimate
    departments to view women’s bras. M.M. saw a tan bra as well as a black and white bra on top
    5
    of Ms. Messer’s cart.     Ms. Messer continued to move about the store through different
    departments and she soon entered the boys’ fitting rooms with her cart.
    {¶11} After remaining in the fitting room for 40 minutes, Ms. Messer eventually exited
    and placed a few items back on some clothing racks. M.M. testified that this behavior was
    concerning because shoplifters often remove tags, place them in their own pockets, and then
    place some of the merchandise back on random racks, making it harder to track what items are
    going in and coming out of the fitting rooms. Ms. Messer continued moving throughout the store
    and soon visited the women’s restroom. M.M. testified that this was also concerning because
    shoplifters will oftentimes flush recently removed merchandise tags down the toilet. M.M.
    noticed that Ms. Messer’s cart also now contained a large, gray Kohl’s bag filled with
    merchandise. Ms. Messer exited the restroom and purchased a single shirt for $9.00 at the
    customer service counter in the back of the store. The clerk provided Ms. Messer with another
    Kohl’s bag for her shirt, which Ms. Messer place on top of her cart of merchandise. Meanwhile,
    M.M. had an associate search the fitting room that Ms. Messer had recently used, and the
    associate only found empty hangers in the room. According to M.M., several items—such as the
    two bras—were now unaccounted for at that time. M.M. testified that Ms. Messer used her cell
    phone in the store, but she “appeared to look around a little bit and [was] fidgety[,]” which is
    another behavior indicative of shoplifting.
    {¶12} M.M. testified that she contacted her manager for assistance. J.Z. works as the
    district loss prevention manager for Kohl’s and oversees the security and operations of 14 stores,
    including the Macedonia location. He happened to be in the store’s parking lot when M.M.
    called him. Both M.M. and J.Z. testified that they watched Ms. Messer as she proceeded past the
    “point of sale,” through the security “towers,” through the first set of exit doors, and into a
    6
    vestibule area located between the first set of doors and the building’s exterior doors. M.M.
    testified that the cash registers at Kohl’s are considered the “point of sale.” Ms. Messer paused
    while in the vestibule area and looked at her cell phone, which M.M. testified is indicative of
    shoplifting as offenders sometimes stop to see if any alarms will sound.
    {¶13} M.M. and J.Z. both testified that, for safety purposes, it is Kohl’s policy to
    approach suspected shoplifters in the vestibule area because they are beyond the point of sale,
    but not yet outside of the building near moving cars in the parking lot. J.Z. testified that he
    approached Ms. Messer in the vestibule area, identified himself, and asked her to accompany
    him to the store’s loss prevention office. M.M. testified that Ms. Messer became agitated and
    insisted that she had a receipt for the items. Unprompted, she dumped out the entire contents of
    her purse, revealing a used bra, lip gloss from Kohl’s, and other personal items. M.M. testified
    that all of the merchandise that had not been paid for was in Ms. Messer’s large Kohl’s bag, in
    her purse, or on her person. M.M. and J.Z. both testified that Ms. Messer became physical with
    them. M.M. called the police, and an audio recording of the 911 call was introduced into
    evidence at trial. M.M. testified that her voice can be heard on the 911 recording saying, “Get
    your hands off of me” and “Stop touching me, stop touching me.” M.M. testified that she
    conducted an inventory of the merchandise and could not locate one of the bras. She asked Ms.
    Messer about the bra and Ms. Messer admitted that she was wearing it.
    {¶14} As to Ms. Messer’s arguments on appeal, we first note that the State was not
    required to prove Kohl’s had a point-of-sale policy under R.C. 2913.02(A)(1), nor was it
    required to prove that Ms. Messer actually left the store. Theft from a retail establishment may
    be completed even if the offender does not actually leave the premises with the merchandise.
    State v. Jordan, 9th Dist. Summit No. 26598, 
    2013-Ohio-4172
    , ¶ 6. This Court has recognized
    7
    that “a theft has occurred when a defendant conceals merchandi[s]e on [her] person in a retail
    establishment even if [she] is detained or discards the merchandise before leaving the premises.”
    State v. Cadle, 9th Dist. Summit No. 24064, 
    2008-Ohio-3639
    , ¶ 7. “‘The state need only prove
    that appellant exerted control over the merchandise with the intent to deprive the store of its
    property, regardless of whether [the defendant] was still in the store. The slightest act of removal
    or hiding of property, coupled with the requisite intent, is a sufficient asportation in the eyes of
    the law.’” 
    Id.,
     quoting State v. Arthur, 4th Dist. Scioto No. 01CA2818, 
    2002-Ohio-3764
    , ¶ 17.
    “The concomitant intention to deprive the owner of property is demonstrated by circumstantial
    evidence.” 
    Id.
     “[B]ecause a defendant’s mental state is difficult to demonstrate with direct
    evidence, it may be inferred from the surrounding circumstances in the case.” State v. Weese,
    9th Dist. Summit No. 23897, 
    2008-Ohio-3103
    , ¶13.
    {¶15} Upon review of the record, we conclude that the State presented sufficient
    evidence at trial, if believed, to establish that Ms. Messer committed the offense of felony theft.
    The evidence demonstrated that Ms. Messer gathered a large quantity of merchandise—valued
    over $1,600.00—into her shopping cart. She took the cart with her into a private fitting room for
    40 minutes and emerged with a majority of the merchandise now concealed in a large Kohl’s bag
    inside of the cart. She was also now wearing one of the bras that M.M. saw her take into the
    fitting room. A used bra was now in her purse, along with lip gloss from Kohl’s, which items
    were later revealed when she voluntarily dumped out the contents of her purse for M.M. and J.Z.
    to both see. After placing a few items and empty hangers back on random clothing racks, she
    visited the restroom and made a nominal purchase at the customer service counter. She placed
    her newly acquired Kohl’s bag on top of the larger bag and maintained exclusive control of the
    cart full of merchandise as she moved it past the cash registers, through the security towers, and
    8
    through the store’s first set of exit doors.        The testimony established that Ms. Messer’s
    suspicious behavior throughout the incident was indicative of shoplifting. Ms. Messer’s intent to
    deprive Kohl’s of its property could be inferred from the surrounding circumstances present in
    this case, especially her actions of entering a private fitting room to place a large amount of
    merchandise she had not paid for into a Kohl’s bag and then placing another smaller Kohl’s bag
    on top before attempting to leave the store. Therefore, we conclude that any rational trier of fact
    could have found all of the essential elements of theft proven beyond a reasonable doubt.
    {¶16} Accordingly, Ms. Messer’s first assignment of error is overruled.
    ASSIGNMENT OF ERROR TWO
    THE JURY VERDICT FINDING THE APPELLANT GUILTY OF THEFT IN
    VIOLATION OF OHIO [R.C. 2913.02(A)(1)] WAS AGAINST THE
    MANIFEST WEIGHT OF THE EVIDENCE AND REVERSAL OF THE
    CONVICTION IS REQUIRED.
    {¶17} In her second assignment of error, Ms. Messer claims that her theft conviction
    was against the manifest weight of the evidence. Because she has failed to set forth any
    argument pertaining to the manifest weight of the evidence, we must overrule this assignment of
    error.
    {¶18} This Court has stated:
    In determining whether a criminal conviction is against the manifest weight of the
    evidence, an appellate court must review the entire record, weigh the evidence
    and all reasonable inferences, consider the credibility of witnesses and determine
    whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
    and created such a manifest miscarriage of justice that the conviction must be
    reversed and a new trial ordered.
    State v. Otten, 
    33 Ohio App.3d 339
    , 340 (9th Dist.1986). “[W]hen reversing a conviction on the
    basis that it was against the manifest weight of the evidence, an appellate court sits as a
    ‘thirteenth juror,’ and disagrees with the factfinder’s resolution of the conflicting testimony.”
    9
    State v. Tucker, 9th Dist. Medina No. 06CA0035-M, 
    2006-Ohio-6914
    , ¶ 5. This discretionary
    power “should be exercised only in the exceptional case in which the evidence weighs heavily
    against the conviction.” State v. Thompkins, 
    78 Ohio St.3d 380
    , 387 (1997), quoting State v.
    Martin, 
    20 Ohio App.3d 172
    , 175 (1st Dist.1983). See also Otten at 340.
    {¶19} We first note that, in her merit brief, Ms. Messer combined her two assignments
    of error and stated that she will “argue[] both assignments of error together as the factual issues
    for each assignment of error are intertwined and the law is readily distinguishable.” However,
    “sufficiency and manifest weight are two separate, legally distinct arguments.”            State v.
    Vincente-Colon, 9th Dist. Lorain No. 09CA009705, 
    2010-Ohio-6242
    , ¶ 20. Notwithstanding her
    explicit intent to argue sufficiency and manifest weight collectively, and despite the inclusion of
    a brief statement noting the standard of review for a manifest weight challenge, we are unable to
    locate any further mention of the manifest weight of the evidence within her brief, let alone any
    actual argument challenging the evidence as being against the manifest weight of the evidence.
    See App.R. 16(A)(7) (“The appellant shall include in its brief * * * [a]n argument containing the
    contentions of the appellant with respect to each assignment of error presented for review and the
    reasons in support of the contentions, with citations to the authorities, statutes, and parts of the
    record on which appellant relies”). Accord Loc.R. 7(B)(7). App.R. 12(A)(2) permits us to
    disregard this assignment of error for that reason alone. Ms. Messer has failed to set forth any
    argument challenging the manifest weight of the evidence, and we decline to create one on her
    behalf. See State v. Sadeghi, 9th Dist. Wayne No. 14AP0051, 
    2016-Ohio-744
    , ¶ 32. See also
    Cardone v. Cardone, 9th Dist. Summit Nos. 18349 and 18673, 
    1998 Ohio App. LEXIS 2028
    ,
    *22 (May 6, 1998) (“If an argument exists that can support this assignment of error, it is not this
    [C]ourt’s duty to root it out”).
    10
    {¶20} Accordingly, Ms. Messer’s second assignment of error is overruled.
    III.
    {¶21} Ms. Messer’s first and second assignments of error are overruled. The judgment
    of the Summit County Court of Common Pleas is affirmed.
    Judgment affirmed.
    There were reasonable grounds for this appeal.
    We order that a special mandate issue out of this Court, directing the Court of Common
    Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
    of this journal entry shall constitute the mandate, pursuant to App.R. 27.
    Immediately upon the filing hereof, this document shall constitute the journal entry of
    judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
    period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
    instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
    mailing in the docket, pursuant to App.R. 30.
    Costs taxed to Appellant.
    THOMAS A. TEODOSIO
    FOR THE COURT
    HENSAL, J.
    CONCURS.
    11
    CARR, J.
    CONCURRING IN JUDGMENT ONLY.
    {¶22} The evidence presented at trial satisfied both the sufficiency and weight of the
    evidence standards. I would address the second assignment of error on the merits and conclude
    that Messer’s conviction was not against the manifest weight of the evidence.
    APPEARANCES:
    MICHAEL T. CONWAY, Attorney at Law, for Appellant.
    SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
    Prosecuting Attorney, for Appellee.
    

Document Info

Docket Number: 28750

Judges: Teodosio

Filed Date: 12/19/2018

Precedential Status: Precedential

Modified Date: 12/19/2018