State v. Johnson

[Cite as State v. Johnson, 2012-Ohio-5450.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : Patricia A. Delaney, P.J.
: John W. Wise, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 2012 CA 0055
:
:
CHRISTINA JOHNSON : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Massillon
Municipal Court, Stark County, Case
No. 2011 CRB 2221
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 13, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ROBERT A. ZEDELL JACOB T. WILL
Massillon Law Department 116 Cleveland Ave., N.W.
Two James Duncan Plaza Suite 808
Massillon, Ohio 44646 Canton, Ohio 44702
[Cite as State v. Johnson, 2012-Ohio-5450.]
Edwards, J.
{¶1} Appellant, Christina Johnson, appeals a judgment of the Massillon
Municipal Court convicting her of one count of theft (R.C. 2913.02) and sentencing her
to 180 days in jail. Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} During the afternoon of September 15, 2012, Andrew Davis and Michael
Poland had left their apartment building in Massillon, Ohio, to get groceries. Michael
stopped at his place of employment to pick up his pay, which was $220 in cash. When
they returned, they began carrying the groceries upstairs to Michael’s apartment.
Michael laid his money, cigarettes, food stamp card and receipts on a step near the
mailboxes in the building.
{¶3} While they were unloading the groceries, appellant came to the building,
where she was also a resident. Michael looked down the stairs and saw appellant take
his money. Andrew, who was unloading groceries outside, saw appellant stoop down
and pick something up from the stairs.
{¶4} Appellant left the building and got in the passenger seat of a car. Michael
chased the vehicle, yelling for the car to stop. The driver of the vehicle did not stop the
car. Michael called the police.
{¶5} Appellant was charged with one count of theft. The case proceeded to
jury trial in the Massillon Municipal Court. She was convicted as charged and
sentenced to 180 days incarceration, fined $500.00 and ordered to pay restitution in the
amount of $220.00.
{¶6} She assigns a single error on appeal:
Stark County App. Case No. 2012 CA 0055 3
{¶7} “THE DEFENDANT’S CONVICTION FOR ONE COUNT OF THEFT IN
VIOLATION OF R.C. 2913.02 WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.”
{¶8} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “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).
{¶9} 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).
{¶10} “Theft is defined by R.C. 2913.02:
{¶11} “(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:
{¶12} “(1) Without the consent of the owner or person authorized to give
consent[.]”
Stark County App. Case No. 2012 CA 0055 4
{¶13} Davis testified that he saw appellant stoop down and pick something up
on the stairs, and earlier he saw Poland place his money on the stairs. Poland testified
that from the top of the stairs, he looked down and saw appellant take his money and
leave the building. This is sufficient evidence, if believed by the jury, to support a
finding of guilt.
{¶14} Appellant argues that Davis was 15-20 feet away from the stairs and at
“an impossible angle” to have seen the offense. She further argues that he watched her
walk past him without trying to stop her after the theft and that he has a prior record,
impugning his credibility. She also argues that Poland could not have seen the
stairway from his apartment where he was putting away groceries, and that his
testimony differed from his police statement regarding the race of the driver of the
vehicle in which appellant left the apartment building.
{¶15} Both witnesses testified that they were in a position to observe appellant
take the money from the stairs. Counsel cross-examined both witnesses concerning
their location and ability to see the stairs, and both testified that they were in a position
where the stairway was visible. Counsel cross-examined Poland regarding the
inconsistency in his statement regarding the race of the driver of the vehicle. Further,
the jury was aware of Davis’s prior record. We cannot find that the jury lost its way in
finding appellant guilty of theft.
Stark County App. Case No. 2012 CA 0055 5
{¶16} The assignment of error is overruled.
{¶17} The judgment of the Massillon Municipal Court is affirmed.
By: Edwards, J.
Delaney, P.J. and
Wise, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r0911
[Cite as State v. Johnson, 2012-Ohio-5450.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
CHRISTINA JOHNSON :
:
Defendant-Appellant : CASE NO. 2012 CA 0055
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Massillon Municipal Court, Stark County, is affirmed. Costs assessed
to appellant.
_________________________________
_________________________________
_________________________________
JUDGES