[Cite as State v. Colon, 2011-Ohio-3446.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. Patricia A. Delaney, J.
-vs-
PATTI L. COLON Case No. 2011CA00018
Defendant-Appellant 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 AARON KOVALCHIK
470 East Market Street 116 Cleveland Avenue North
Alliance, OH 44601 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} "(1) Without the consent of the owner or person authorized to give
consent;
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 24-
25. 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 :
:
-vs- : JUDGMENT ENTRY
:
PATTI L. COLON :
:
Defendant-Appellant : 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