State v. Kanable , 2020 Ohio 4335 ( 2020 )

[Cite as State v. Kanable, 2020-Ohio-4335.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-19-060
Appellee Trial Court No. 2018 CR 468
v.
Eric Kanable DECISION AND JUDGMENT
Appellant Decided: September 4, 2020
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
Michael H. Stahl, for appellant.
*****
SINGER, J.
{¶ 1} This is an appeal from the July 3, 2019 judgment of the Wood County Court
of Common Pleas after appellant, Eric Kanable, was found guilty of theft and sentenced
to 11 months in prison. For the reasons that follow, we affirm.
{¶ 2} Appellant sets forth three assignments of error:
I. The trial court erred in allowing testimony as to the meaning of
retail shelf labels, and Walmart store[-]wide annual inventory in the context
of divining [sic] an amount of merchandise allegedly stolen on a particular
date, and other hearsay statements[.]
II. The trial court abused its discretion when it permitted testimony,
over objection, of Appellant’s suspected involvement in an uncharged
crime in another jurisdiction based upon Appellant being “similar” in looks
to the perpetrator.
III. The prosecution failed to present sufficient evidence to prove
every element of the crime charged beyond a reasonable doubt.
Facts
{¶ 3} On September 28, 2018, appellant was charged with a theft offense in
Perrysburg Municipal Court, in Wood County, Ohio. Appellant was alleged to have
stolen a trash bag full of cigarettes from the Perrysburg Walmart. The case was bound
over to the Wood County Court of Common Pleas, and on December 6, 2018, appellant
was indicted on one count of theft. Appellant pled not guilty.
{¶ 4} On June 17, 2019, a jury trial was held. Appellant was found guilty of theft,
with a finding that the property stolen was valued at more than $1,000 but less than
$7,500, a violation of R.C. 2913.02(A)(1) and (B)(2), a fifth-degree felony.
2.
{¶ 5} On July 2, 2019, a sentencing hearing was held, and appellant was sentenced
to a term of incarceration of 11 months. The trial court found “for reasons stated on the
record * * * a prison term is consistent and the [appellant] is not amendable to
community control sanctions.”
{¶ 6} Appellant timely appealed.
Trial
{¶ 7} At trial, the state presented the testimony of three witnesses. The relevant
testimony is summarized below.
Justin Swihart
{¶ 8} Swihart testified he is an asset protection associate on the loss prevention
team at the Perrysburg Walmart. On February 15, 2017, he was informed of the theft of
multiple cartons of cigarettes during the overnight hours of Valentine’s Day, and he
investigated the theft by reviewing video surveillance footage from the store’s closed
circuit surveillance system. Swihart explained the video surveillance system, which
included over 70 cameras throughout the store, was maintained by a security company
whose server stores the video for 45 days before the video starts falling off and is no
longer recoverable.
{¶ 9} Swihart testified regarding the video footage and still-shots from the store’s
cameras in the early morning of February 14, 2017, which the state introduced into
evidence. At 4:11 a.m., an unidentified man (“the man”) enters the store via the doors by
the grocery section, walks around and goes to Register 12, where the smoke shop is
3.
located. At 4:26 a.m., the man gets on his hands and knees and crawls around through a
metal gate and past a yellow security gate to where the cigarettes are situated. The man
pulls out a black garbage bag with yellow drawstrings (“the bag”), takes cartons of
cigarettes and places them into the bag. At 4:28 a.m., the man crawls out of Register 12’s
area, stands up and walks away. The bag, which is “reasonably full,” is still behind
Register 12.
{¶ 10} At 4:30 a.m., the man goes back to Register 12, retrieves the bag, walks to
Register 17, and sets the bag down. Register 17 is close to the doors by the general
merchandise section of the store. At 4:39 a.m., the man exits the store, without the bag,
using the doors by the grocery section.
{¶ 11} The man returns to the store, and at 4:58 a.m., he goes back to Register 17,
picks up the bag and walks towards Register 20, which is the closest register to the
general merchandise doors. At 5:07 a.m., there is a still-shot of the man leaving the store,
using the general merchandise doors. Swihart noted the general merchandise doors are
closed, but not locked, from 10:00 p.m. to 7:00 a.m., and the lights are turned off.
{¶ 12} Swihart then offered testimony relating to other video surveillance footage
from the store’s cameras in the early morning of February 14, 2017, which he viewed but
which footage was no longer available. Swihart described the technical difficulties he
encountered while trying to burn the video from the system to a disk, and noted the
footage automatically fell off of the system after 45 days. Swihart testified this footage
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showed the man enter the store through the general merchandise doors, pick up the bag
from Register 20, and leave the store with the bag, using the general merchandise doors.
{¶ 13} Swihart testified the amount of missing cigarettes was determined by
taking an inventory of the cigarettes section two days after the theft. An inventory is
conducted by the department manager on a weekly basis, by going through each item in a
section, scanning the shelf labels and doing a physical count of everything in one section
of the department per day. The shelf labels, which provide the price of the cigarettes,
were collected and used to calculate the amount and cost of product lost. Swihart
processed the “theft numbers” using a training receipt, which adds up the amount of
items stolen and their value, but does not affect the store’s inventory. There were more
than 73 items stolen, and the total amount of the items was $2,852.28. The state
introduced the shelf labels and training receipt into evidence.
John Growden
{¶ 14} Officer Growden, with the Village of Holland Police Department, testified
the Walmart store in Holland, Ohio, is in his jurisdiction. In the spring or summer of
2017, a theft of cigarettes occurred at the Holland Walmart. Officer Growden learned of
the theft after a loss prevention officer at the Holland Walmart was advised by an
employee that the cigarette audit was off. The loss prevention officer then viewed the
security video and found a suspect by an unmanned register who was involved in the
theft of cartons of cigarettes. The suspect was unknown at that time.
5.
{¶ 15} At a later date, a similar-looking male was reportedly seen in the Holland
Walmart. The loss prevention officer followed the male who was again at the unmanned
registered where the cigarettes are located. The male was spooked, left the store and got
into a vehicle with an Ohio license plate. The loss prevention officer was able to figure
out the license plate, and Officer Growden looked up the plate, which came back to a
female. Officer Growden conducted a search of the female on social media and found a
Facebook page with pictures of a female and a white male, who looked like the suspect.
Officer Growden pulled up an image from the Bureau of Motor Vehicles (“BMV”) of the
female owner of the vehicle, and the female connected to the registration and the female
connected to the Facebook page were similar. Officer Growden testified that based on
his training and experience, he believed the male in the Facebook page picture is
appellant. Officer Growden was shown a picture of the man suspected of theft at the
Perrysburg Walmart and the officer opined it resembled the same individual, appellant.
The state introduced into evidence the Facebook page and pictures.
Dustin Glass
{¶ 16} Detective Glass of the Perrysburg Township Police Department testified
there is a Walmart store in his jurisdiction, and road patrol officers were contacted by that
Walmart a couple of days after the February 14, 2017 theft of cigarettes. The officers
took a report but since there was no suspect information, the report was forwarded to the
detective bureau and assigned to Detective Glass.
6.
{¶ 17} An asset protection associate, Chelsea Bell, contacted Detective Glass and
provided him with a statement from Swihart, still-photos, the surveillance video and the
training receipt stating the amount of the loss. Several months later, Bell again contacted
Detective Glass, and notified him that they identified an individual at the Holland
Walmart who was doing the same thing at the Perrysburg Walmart. Detective Glass was
provided appellant’s name with a driver’s license and birth date, and ran the information
through LEADS. The detective observed a BMV picture of appellant, compared it to the
surveillance video and still-photos and concluded it was the same person. The detective
also viewed the Facebook pictures introduced into evidence by the state and opined that
in his training and experience, the male in the picture is appellant.
First Assignment of Error
{¶ 18} Appellant argues Swihart was not a qualified person to testify regarding the
reliability of shelf labels for use in determining “an acute theft.” Appellant contends the
Walmart department manager should have testified about the day-to-day reliability of on-
hand counts of products in determining that a specific loss occurred on a certain day.
Appellant maintains the state had no evidence of the quantity of cigarettes taken, and due
to the complex nature of retail loss, it is unfair and prejudicial to presume Walmart relies
on shelf labels to determine the amount of theft. Appellant queries “[m]ay the
prosecution rely upon the ‘business records’ hearsay exception to admit evidence of
weekly inventories conducted two years earlier by a different person * * *?”
7.
Standard
{¶ 19} “On appeal, challenged hearsay is subject to de novo review under the
applicable hearsay rule, rather than the more deferential review employed for
discretionary rulings.” State v. Richcreek, 196 Ohio App.3d 505, 2011-Ohio-4686, 964
N.E.2d 442 (6th Dist.), ¶ 32.
Business Records
{¶ 20} Evid.R. 803(6) provides the business records exception to the rule against
hearsay. In order for a record to qualify for admission under this rule, the business record
must comply with the following four elements:
“(i) the record must be one regularly recorded in a regularly
conducted activity; (ii) it must have been entered by a person with
knowledge of the act, event or condition; (iii) it must have been recorded at
or near the time of the transaction; and (iv) a foundation must be laid by the
‘custodian’ of the record or by some ‘other qualified witness.’” (Citation
omitted).
State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 171.
{¶ 21} A person who is qualified to lay the foundation for a business record must
possess a working knowledge of the specific record-keeping system which produced the
record, and must be able to vouch from personal knowledge that the record was kept in
the regular course of business. Deutsche Bank Natl. Tr. Co. v. Boreman, 6th Dist. Ottawa
No. OT-18-031, 2020-Ohio-3545, ¶ 40.
8.
Analysis
{¶ 22} The crux of appellant’s assigned error is that the state did not lay a
foundation for the admissibility of the shelf labels because the Walmart department
manager, who actually conducted the weekly inventory and could attest to the reliability
of using shelf labels to determine a theft, did not testify.
{¶ 23} Upon review, the record shows Swihart, in his position as a loss prevention
associate, was exposed to the regularly conducted business activities of the Perrysburg
Walmart. Swihart was familiar with and had a working knowledge of the inventory
procedures at Walmart, including the use of shelf labels. Swihart testified an inventory
was conducted two days following the theft, and the shelf labels were also gathered at
that time by the department manager, whose job duties included inventorying that
department on a weekly basis. Swihart then used the compiled information to generate a
training receipt to establish the amount and value of the cigarettes.
{¶ 24} We find Swihart was qualified to attest to Walmart’s normal business
practices of having its department manager conduct weekly inventories and using shelf
labels for inventory purposes and to determine if a theft had occurred. Swihart was also
qualified to testify to the use of a training receipt in calculating the number of items
stolen and the amount of loss incurred by Walmart. We further find the shelf labels and
training receipt meet the remaining requirements for admissibility under the Evid.R.
803(6) business-records hearsay exception, as the records were regularly recorded in a
regularly conducted activity and were entered by a person with knowledge of the act,
9.
near the time of the theft. Accordingly, appellant’s first assignment of error is not well-
taken.
Second Assignment of Error
{¶ 25} Appellant argues Officer Growden’s testimony identifying appellant based
on being “similar” in looks to a perpetrator with suspected involvement in an uncharged
crime at the Holland Walmart is inadmissible. Appellant asserts this other bad acts
evidence was poor and was the only testimony offered by the state that appellant was
involved in the theft of cigarettes at the Perrysburg Walmart. Appellant also submits
Officer Growden’s alleged identification of him relies on statements of a non-testifying
Walmart employee, which are hearsay, outside of any exception, and prejudicial, as the
only testimony which identifies appellant.
Law
{¶ 26} Evid.R. 404(B) states in relevant part:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.
{¶ 27} Evidence of another crime which is unrelated to the offense for which the
offender is on trial is admissible to establish the identity of the offender as the perpetrator
of the crime with which he is charged. State v. Woodard, 68 Ohio St.3d 70, 73, 623
10.
N.E.2d 75 (1993). The introduction of another crime gives rise to a reasonable inference
that if the offender is the perpetrator of the uncharged crime, he is also the perpetrator of
the charged crime. Id. See also State v. Johnson, 6th Dist. Lucas No. L-01-1243, 2002-
Ohio-5206, ¶ 27. Other acts evidence can be admitted “to establish the identity of a
perpetrator by showing that he has committed similar crimes and that a distinct,
identifiable scheme, plan, or system was used in the commission of the charged offense.”
State v. Smith, 49 Ohio St.3d 137, 141, 551 N.E.2d 190 (1990).
{¶ 28} In State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d
1278, ¶ 20, the Supreme Court established the following three-part test to determine
whether to admit Evid.R. 404(B) testimony:
The first step is to consider whether the other acts evidence is
relevant to making any fact that is of consequence to the determination of
the action more or less probable than it would be without the evidence.
Evid.R. 401. The next step is to consider whether evidence of the other
crimes, wrongs, or acts is presented to prove the character of the accused in
order to show activity in conformity therewith or whether the other acts
evidence is presented for a legitimate purpose, such as those stated in
Evid.R. 404(B). The third step is to consider whether the probative value
of the other acts evidence is substantially outweighed by the danger of
unfair prejudice. See Evid.R 403.
11.
{¶ 29} “[I]f the evidence arouses the jury’s emotional sympathies, evokes a sense
of horror, or appeals to an instinct to punish, the evidence may be unfairly prejudicial.”
Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172, 743 N.E.2d 890 (2001).
Analysis
{¶ 30} With respect to appellant’s complaint that Officer Growden’s testimony
regarding statements made to him by a Walmart employee identifying appellant was
inadmissible hearsay, we find the admission of this testimony, even if it was inadmissible
hearsay, was harmless error. See Crim.R. 52(A). Upon review, the record shows Officer
Growden testified that he conducted his own investigation and research after receiving
the information regarding appellant, and arrived at the same conclusion as the Walmart
employee. In addition, surveillance footage from the Perrysburg Walmart was played for
the jury, still-photos from the footage and the Facebook page with photos were provided
to the jury, and Swihart testified as to what the surveillance footage, including the footage
which had been lost, depicted. Therefore, Officer Growden’s statements as to what the
Walmart employee told him were cumulative and had no effect on appellant’s substantial
rights.
{¶ 31} Regarding the other acts evidence, after considering the Williams three-step
test, we find this evidence was properly admitted by the trial court. Officer Growden’s
testimony was relevant to the jury’s consideration of the theft charge, as the testimony
was related to the method and manner in which appellant stole or attempted to steal
cartons of cigarettes from Walmart. The male in the Holland Walmart acted in a similar
12.
fashion as the man in the Perrysburg Walmart by hanging out by the unmanned cigarette
aisle, waiting for the opportunity to steal cartons of cigarettes undetected by customers or
employees. The shared aspects between the theft at the Perrysburg Walmart and the theft
and suspected attempted theft of the Holland Walmart were pertinent to appellant’s
identity as the perpetrator of the offenses. Further, the probative value of the other acts
evidence was not substantially outweighed by the danger of unfair prejudice, since the
evidence does not tend to stir the jury’s emotional sympathies, induce a sense of horror or
appeal to an instinct to punish. In addition, the trial court gave a limiting instruction, and
there is no indication in the record that the jury was unable to comprehend and follow the
limiting instruction. Accordingly, appellant’s second assignment of error is not well-
taken.
Third Assignment of Error
{¶ 32} Appellant argues the state failed to present sufficient evidence to prove
every element of the crime beyond a reasonable doubt. Specifically, appellant contends
the state did not offer sufficient evidence that the value of cigarettes taken was over
$1,000. Appellant asserts the only evidence of the value of cigarettes stolen was the
inadmissible testimony of Swihart, which was not sufficient because it was an
extrapolation based on a weekly inventory, which was not presented in the context of
other weeks, or other instances of loss.
13.
Standard
{¶ 33} In order to determine whether the evidence is legally sufficient to support a
conviction, “[t]he 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, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
Law
{¶ 34} 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 * * * in any
of the following ways:
(1) Without the consent of the owner or person authorized to give
consent;
***
(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.
Analysis
{¶ 35} Upon review, appellant’s conviction for theft is supported by sufficient
evidence. The state presented three witnesses to testify regarding the theft which
14.
occurred at the Perrysburg Walmart during the early morning hours of February 14, 2017,
and the investigation into the theft, including the amount and value of the missing
cigarettes, and how the perpetrator was ultimately identified. The state also introduced
into evidence the video surveillance footage and still-shots from the Perrysburg
Walmart’s cameras in the early morning of February 14, 2017, the shelf labels and the
training receipt which were used to calculate the amount and value of the stolen
cigarettes, and the Facebook page and photos used to identify appellant.
{¶ 36} Viewing the evidence in a light most favorable to the state, we find the
state presented sufficient evidence for a rational trier of fact to find all of the essential
elements of the crime of theft proven beyond a reasonable doubt. Accordingly,
appellant’s third assignment of error is not well-taken.
{¶ 37} The judgment of the Wood County Court of Common Pleas is affirmed.
Appellant is ordered to pay the costs of the appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
15.
State v. Kanable
C.A. No. WD-19-060
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
16.