State v. Colon

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[Cite as State v. Colon, 2011-Ohio-3446.] COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee JUDGES: Hon. William B. Hoffman, P.J. Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J. -vsPATTI L. COLON Defendant-Appellant Case No. 2011CA00018 OPINION CHARACTER OF PROCEEDING: Appeal from Alliance Municipal Court, Case No. 2010CRB01124 JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: July 11, 2011 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant WILLIAM F. MORRIS 470 East Market Street Alliance, OH 44601 AARON KOVALCHIK 116 Cleveland Avenue North Suite 808 Canton, OH 44702 Stark County, Case No. 2011CA00018 2 Farmer, J. {¶1} On September 2, 2010, appellant, Patti Colon, was charged with one count of theft in violation of R.C. 2913.02. Said charge arose from an incident wherein appellant was stopped while exiting a Wal-Mart with unpaid merchandise (Cricut cartridges) inside her purse. {¶2} A jury trial commenced on December 16, 2010. The jury found appellant guilty as charged. By judgment entry filed same date, the trial court sentenced appellant to three days in jail and ordered her to pay a fine of $100.00 plus court costs. {¶3} Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows: I {¶4} "APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE." I {¶5} Appellant claims her conviction for theft was against the manifest weight and sufficiency of the evidence. We disagree. {¶6} On review for sufficiency, a reviewing court is to examine the evidence at trial to determine whether such evidence, if believed, would support a conviction. State v. Jenks (1991), 61 Ohio St.3d 259. "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." Jenks at paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307. On review for manifest weight, a reviewing court is to examine the entire record, weigh the Stark County, Case No. 2011CA00018 3 evidence and all reasonable inferences, consider the credibility of witnesses and determine "whether in resolving conflicts in the 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. Martin (1983), 20 Ohio App.3d 172, 175. See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new trial "should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Martin at 175. We note the weight to be given to the evidence and the credibility of the witnesses are issues for the trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182, certiorari denied (1990), 498 U.S. 881. The trier of fact "has the best opportunity to view the demeanor, attitude, and credibility of each witness, something that does not translate well on the written page." Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260. {¶7} Appellant argues the evidence that she knowingly committed a theft offense was insufficient to support a conviction beyond a reasonable doubt, and the testimony of Tobias Young, Wal-Mart's loss prevention employee, lacked credibility. Appellant was convicted of theft in violation of R.C. 2913.02(A) which states the following: {¶8} "(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: {¶9} consent; "(1) Without the consent of the owner or person authorized to give Stark County, Case No. 2011CA00018 4 {¶10} "(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent; {¶11} "(3) By deception; {¶12} "(4) By threat; {¶13} "(5) By intimidation." {¶14} Appellant argues her testimony that she had previously purchased the Cricut cartridges at Wal-Mart on a different date was more credible than Mr. Young's testimony. {¶15} Mr. Young testified he first observed appellant in the craft department, hunched over her shopping cart and digging into her purse. T. at 22-23. She then took plastic bags out of her purse and threw them in the bottom of her cart. T. at 23. This caused Mr. Young to continue watching appellant until she left the store to make sure she was not going to place anything within the bags and try to leave the store. T. at 2425. Mr. Young observed appellant take three Cricut cartridges off the shelf and place them in the top part of her cart. Id. She proceeded to the electronics department and picked up a movie, and walked over to the girls department near the socks display. T. at 25. While in the girl's department, he observed appellant open her purse, place the three Cricut cartridges inside, and "zipped it shut." T. at 26. Appellant then proceeded to the register, paid for the movie, and exited the store. T. at 26. The door "dinged" as the security tags on the Cricut cartridges had not been de-activated. T. at 45-46. Mr. Young stopped appellant and informed her she was being stopped for the Cricut cartridges in her purse to which she responded "okay you got me." T. at 27. Diana Knipp, customer service manager, overheard appellant's statement. T. at 45, 49. Stark County, Case No. 2011CA00018 5 {¶16} Appellant testified when she entered the Wal-Mart store, the three Cricut cartridges were in her purse and the door "dinged." T. at 63-64. She showed the cartridges to the greeter and he told her not to worry "I'll get you on the way out if it goes off." T. at 63. Appellant admitted to going to the craft department and looking at the Cricut cartridges, but put everything back. T. at 64. While in the girls department, she pulled things from her purse looking for "chap stick." T. at 65-66. She pulled the Cricut cartridges out then put them back in. T. at 66. Appellant testified she purchased the cartridges at Wal-Mart some weeks prior and they were never properly de-activated. T. at 73, 75. The cartridges were in her purse because she intended to use them later that day. T. at 66. Appellant denied saying "okay you got me" after she was stopped, just "okay." T. at 68. {¶17} As we noted earlier, credibility is within the province of the triers of fact. The jury was given two versions of the events. Both Mr. Young and Ms. Knipp testified appellant stated "you got me." Appellant's argument that she had previously purchased the Cricut cartridges was not supported by any independent evidence. {¶18} The jury had before it Mr. Young's personal observations as to appellant's activity as well as her spontaneous admission when stopped which was testified to by both Mr. Young and Ms. Knipp. Upon review, we find sufficient credible evidence in the record to support the jury's verdict, and no manifest miscarriage of justice. {¶19} The sole assignment of error is denied. Stark County, Case No. 2011CA00018 6 {¶20} The judgment of the Alliance Municipal Court is hereby affirmed. By Farmer, J. Hoffman, P.J. and Delaney, J. concur. _s/ Sheila G. Farmer_________________ _s/ William B. Hoffman________________ _s/ Patricia A. Delaney________________ JUDGES SGF/sg 0622 Stark County, Case No. 2011CA00018 7 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsPATTI L. COLON Defendant-Appellant : : : : : : : : : JUDGMENT ENTRY CASE NO. 2011CA00018 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Alliance Municipal Court is affirmed. Costs to appellant. _s/ Sheila G. Farmer_________________ _s/ William B. Hoffman________________ _s/ Patricia A. Delaney________________ JUDGES

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