State v. Spencer

[Cite as State v. Spencer, 2016-Ohio-5304.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. William B. Hoffman, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
BRANDO SPENCER : Case No. 2015CA00188
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Alliance Muncipal
Court, Case No. 2015CRB606
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 8, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MATTHEW S. KUHN CRISTIN ROUSH
Alliance City Prosecutor Stark County Public Defender
470 East Market Street 201 Cleveland Ave. SW, Suite 104
Alliance, Ohio 44601 Canton, Ohio 44702
Stark County, Case No. 2015CA00188 2
Baldwin, J.
{¶1} Appellant Brando Spencer appeals a judgment of the Alliance Municipal
Court convicting him of one count of theft in violation of Ohio Revised Code §
2913.02(A)(1). Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On September 29, 2014, an individual named Brenda Haywood was
dropped off by Defendant-Appellant Brando Spencer in front of the Lowe’s store located
at 2595 W. State Street, Alliance, Ohio. At the time of her drop-off and entrance into the
garden center portion of the store, Ms. Haywood was empty-handed. Ms. Haywood then
acquired a shopping cart and proceeded through the Lowe’s. At some point during her
time in the Lowe’s, Ms. Haywood acquired a rug valued at $286.00. Shortly thereafter,
Appellant entered the Lowe’s, also empty-handed, and met up with Ms. Haywood. The
two then proceeded to the returns register where they returned the rug Ms. Haywood had
acquired from somewhere within the store, having never paid for it.
{¶3} In order to make a return without a receipt, which Appellant and Ms.
Haywood did not possess, store policy requires that the returnee provide a valid driver’s
license in order to keep a record of returns that, when checked, allow Lowe’s to identify
those who have previously made fraudulent returns. When asked to provide a driver’s
license, Ms. Haywood was unable to do so, leaving Appellant to provide his license to go
on the record as the one initiating the return. The Lowe’s employee completed the return
and gave a merchandise card containing the “refund” to Ms. Haywood. Appellant and Ms.
Haywood then left the store.
Stark County, Case No. 2015CA00188 3
{¶4} Later, Lowe’s Loss Prevention and Safety worker, Conner Fry, while
reviewing all returns to Lowe’s over $150.00 in value, determined that the return of the
$268.00 rug was fraudulent. In reviewing the video footage of the return, he saw that Ms.
Haywood acquired the rug while in the store before fraudulently returning it. Mr. Fry also
recognized Ms. Haywood because of company emails he received regarding her previous
criminal activity at another Lowe’s. Further video footage showed Appellant dropping Ms.
Haywood off, meeting her in the store, and providing his driver’s license in order to
complete the return transaction to acquire the merchandise card. Having identified both
parties, Mr. Fry then notified the police of Ms. Haywood’s and Appellant’s involvement in
the theft of Lowe’s property.
{¶5} Appellant was arrested on a warrant on May 11, 2015. After a trial by jury
on September 17, 2015, Appellant was found guilty of theft, a misdemeanor, resulting in
a fine of $400.00 that included restitution of $268.00 to the Lowe’s, banishment from the
Lowe’s store for one year, a sentence of 180 days in jail with 175 days suspended, and
a requirement a year of good behavior.
{¶6} Appellant assigns one error on appeal arising from the September 17, 2015,
jury trial, having found Appellant guilty of theft:
{¶7} “THE TRIAL COURT ERRED IN ADOPTING THE GUILTY FINDING AS
THE FINDING WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE
EVIDENCE.”
{¶8} Appellant’s only assignment of error claims that the judgment was against
the manifest weight and sufficiency of the evidence. Specifically, appellant suggests that
(1) the State failed to prove beyond a reasonable doubt that Appellant knew Ms. Haywood
Stark County, Case No. 2015CA00188 4
was committing a fraudulent return, (2) the State failed to prove beyond a reasonable
doubt that Appellant obtained or exerted control over property involved in the fraudulent
return, and (3) the State failed to properly identify Appellant as the “Brando Spencer” who
was charged with committing the theft.
{¶9} To determine whether a verdict is against the manifest weight of the
evidence, the appellate court, “in reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses, and determines whether in
resolving conflicts in evidence 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.’” State
v. Thompkins, 78 Ohio St. 3d 380, 387, 1997–Ohio–52, 678 N.E.2d 541, quoting State v.
Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983).
{¶10} An appellate court's function when reviewing the sufficiency of the evidence
is to determine 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,
paragraph two of the syllabus (1991).
{¶11} Appellant was convicted of theft in violation of O.R.C. § 2913.02(A)(1):
(A) 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;
Stark County, Case No. 2015CA00188 5
{¶12} Appellant’s first argument that the State failed to prove that Appellant knew
that Ms. Haywood was making a fraudulent return is not persuasive. Appellant’s counsel
states that Appellant would not have freely given his personal identification if he had
known that Ms. Haywood was committing fraud. However, it was clearly reasonable for
the jury to draw the conclusion from Mr. Fry’s testimony that Appellant had such
knowledge of the fraudulent return. Fry testified that after Appellant dropped off Ms.
Haywood, who carried nothing into Lowe’s, Appellant later met up with her to initiate a
return of an item she previously could not have possessed without attracting Appellant’s
notice. Without evidence or testimony contradicting this testimony, the jury could have
rationally concluded that Appellant “knowingly” participated in the theft and that no
mistake or accident occurred. The inference made by the jury that Appellant had
knowledge of the fraudulent return because of the involved role he played is not against
the manifest weight or the sufficiency of the evidence.
{¶13} Appellant’s second argument that the State failed to prove that Appellant
obtained or exerted control over the stolen property is also unpersuasive. Appellant
argues that he never touched the rug, he was not the one who signed for the card, he
was not the one who took the merchandise card, and he never held the merchandise card
while on video surveillance. However, in reviewing all evidence and reasonable
inferences, it is clear that but for Appellant providing his driver’s license, Ms. Haywood
would never have had an opportunity to sign for or possess the merchandise card, as Ms.
Haywood was unable to give her own license because it had been “shut down.” Tr. at 83.
This was also not Ms. Haywood’s first time fraudulently returning something to Lowe’s,
as company security had been notified as to her identity for a similar transgression, as
Stark County, Case No. 2015CA00188 6
testified to by Mr. Fry. The jury’s conclusion was not against the manifest weight and
sufficiency of the evidence. The Appellant, by providing his identification to engage in the
fraudulent return, did obtain or exert control over the stolen merchandise card through
providing his identification to enact the fraudulent return. The jury, after considering the
evidence including testimony and video, did not further a “miscarriage of justice”.
{¶14} Finally, Appellant argues that the State failed to identify the Appellant as the
“Brando Spencer” charged with committing theft. This argument turns on the fact that
when Mr. Fry described the accused as a “slender black male. Uh, mid-fifties, maybe
early sixties. Short, dark black hair,” Mr. Fry failed to properly identify Appellant as Brando
Spencer, only stating that “He’s the guy over there.” Tr. 75:25-76:11. Appellant alleges
that because the record does not reflect who Mr. Fry was pointing to or where the accused
was sitting, Appellant was not properly identified. However, the evidence presented at
trial could still have led a reasonably prudent jury to identify Appellant as the “Brando
Spencer” that was accused of theft. Not only did Mr. Fry testify as to the physical
description of Appellant, but video evidence of Appellant completing the fraudulent return
and the receipt from the transaction that was labelled with Appellant’s name and address
were also provided for the jury. The finding that Appellant was properly identified and
confirmed to be the Brando Spencer originally charged is not against the manifest weight
or sufficiency of the evidence.
{¶15} Further, an appellant bears the burden of showing error by reference to the
matters in the record. E.g., City of Columbus v. Hodge, 37 Ohio App. 3d 68, 523 N.E.2d
515, 516 (10th Dist.1987). The record does not reflect that Mr. Fry’s in-court identification
of appellant was erroneous.
Stark County, Case No. 2015CA00188 7
{¶16} In conclusion, when the evidence is viewed in a light most favorable to the
prosecution, a rational trier of fact could have found that the State proved all essential
elements of the crime of theft under O.R.C. § 2913.02(A)(1) and properly identified
Appellant as the offender. The judgment is not against the manifest weight or sufficiency
of the evidence.
{¶17} Appellant’s assignment of error is overruled. Accordingly, the judgment of
the Alliance County Municipal Court is affirmed. Costs are assessed to Appellant.
By: Baldwin, J.
and Gwin, P.J. concur.
Hoffman, J. concurs in part
and dissents in part.
Stark County, Case No. 2015CA00188 8
Hoffman, J., concurring in part and dissenting in part
{¶18} I concur in the majority’s analysis and decision rejecting Appellant’s claim
the jury’s verdict was against the manifest weight of the evidence regarding Appellant’s
knowledge about Ms. Haywood committing a fraudulent return and regarding Appellant’s
identification.
{¶19} I respectfully, albeit somewhat reluctantly, dissent from the majority’s
conclusion the evidence supported the jury’s verdict Appellant obtained or exerted control
over the property involved in the fraudulent return. I say reluctantly because I believe
Appellant could have been convicted of complicity to theft had such been charged and/or
the jury so instructed under the theory of aiding or abetting another in the commission of
an offense. However, because Appellant was not so charged nor did the prosecution
argue such theory, nor was the jury so instructed,1 my analysis is limited to review of the
evidence used to establish Appellant, and not Ms. Haywood, obtained or exerted control
over the rug or merchandise card.
{¶20} There is no evidence to establish Appellant obtained or exerted control over
either. I readily agree with the majority “it is clear that but for Appellant providing his
driver’s license, Ms. Haywood would never have had an opportunity to sign for or possess
the merchandise card.” (Maj. Op. at ¶13, emphasis added).2 The majority then
concludes, “The Appellant, by providing his identification to engage in the fraudulent
1 Appellee conceded the same during oral argument.
2 The majority additionally references the fact this was not Ms. Haywood’s first time
fraudulently returning something to Lowe’s in its discussion of Appellant’s assertion the
evidence failed to show he obtained or exerted control over the stolen property. While
the majority’s statement is accurate, I find it irrelevant to the analysis on this issue.
Stark County, Case No. 2015CA00188 9
return, did obtain or exert control over the stolen merchandise card…” (Majority Opinion
at ¶13). I disagree.
{¶21} While Appellant did exert control over his driver’s license, the license was
only used to facilitate Ms. Haywood’s obtaining the merchandise card. The fact remains
it was Ms. Haywood who obtained or exerted control over both the rug and the
merchandise card, not Appellant. While the evidence would support a verdict Appellant
was complicit in the commission of the theft, it is insufficient to establish Appellant’s guilt
as a principal offender as he was charged and as presented by the prosecution to the
jury.