Appeal from Seneca County Common Pleas Court Trial Court No. 12-CR-0097
Randy F. Hoffman for Appellant.
Heather N. Jans for Appellee.
(¶1} Defendant-Appellant, Seth A. Carter, appeals the judgment of the Court of Common Pleas of Seneca County, finding him guilty of one count of theft and sentencing him to 170 days in jail. On appeal, Carter contends that the trial court erred by: (1) denying his motion for acquittal at the end of the State's evidence; and (2) entering a guilty verdict that was against the manifest weight of the evidence. For the reasons that follow, we affirm the trial court's judgment.
(¶2} On July 11, 2012, the Seneca County Grand Jury returned a one count indictment against Carter charging him with one count of theft of a credit card in violation of R.C. 2913.02(A)(1), (B)(2), a felony of the fifth degree.
(¶3} A jury trial was held in this matter on January 17 and 18, 2013. The following relevant evidence was adduced during the State's case-in-chief
(¶4} On April 26, 2012, Tiffin police responded to a report of a residential burglary at 32 Hall Street, the home of Robert ("Robert") and Michelle ("Michelle") Smith (collectively "the Smiths"). At approximately 5:00 a.m. that day, Robert was finishing his morning routine of prayers and physical therapy when he noticed Michelle's keys on the floor. Upon further inspection, Robert observed that his office window was open and discovered muddy footprints going across the office floor. Robert then woke Michelle up and together they looked for her purse. The Smiths were unable to find Michelle's purse and immediately called the Tiffin Police Department. The police arrived shortly after and began to process the crime scene. The police asked the Smiths for some documentation, which they usually kept inside a small safe in their office. When Robert went to retrieve the information, he discovered that the safe was also missing.
(¶5} Michelle's purse contained $800.00 in cash, various credit cards, rosaries, medication, and other miscellaneous items. Inside the safe were several personal documents, such as birth certificates, the Smiths' marriage license, pictures of their deceased daughter, the deed to their burial plot, backups to their computers, and approximately $1, 000.00 in cash.
(¶6} On the morning of April 30, 2012, the Smiths received a phone call from a private number. Carter later admitted that he had called the Smiths that day. What was said during this phone call was disputed at trial. Robert testified that Carter said he had found some items that he believed belonged to the Smiths. Carter then asked Robert if there was a reward. Robert claimed that he told Carter that there was not a reward available, but he would appreciate it if Carter turned their property into the police department, as it was part of a burglary investigation.
(¶7} According to Robert, Carter then told Robert that he needed some money to pay some bills. Robert replied that he could probably give Carter $50.00 if he returned the property, but Carter was unsatisfied and told Robert he needed $70.00. Robert said he would try to obtain the $70.00 and give it to Carter. Robert first tried to convince Carter to drop the property off at the police department, but Carter refused. Robert then asked if Carter could drop it off at a nearby church, which Carter also refused. Eventually, Robert and Carter agreed the two would meet at Noble School. Carter repeatedly asked Robert not to get the police involved, and Robert promised he would not. Robert then went to Noble School to meet Carter. However, Carter never showed up. After waiting for an hour, Robert returned home and told Michelle that he was going to look for their property on Davis Street, which is where Carter claimed to have found the Smiths' stolen property. Robert told Michelle not to answer the phone if it came up as a private number.
(¶8} Robert did not find anything at the end of Davis Street except "a lot of mud." Trial Tr., p. 136. He then testified that it had rained and snowed between the date the Smiths' property went missing and the date Carter made his phone call. While searching for their stolen property, Michelle called Robert and told him that a private number had called their house three times. By the time Robert got home, Carter had called the Smiths five times. The Smiths called the police department again and they arrived as Carter called the Smiths for the sixth time. The officer at the Smiths was able to record part of the phone conversation.
(¶9} At trial, the State offered this phone recording into evidence as State's Exhibit 1 and played it for the jury. On the recording, Carter can be heard telling Robert not to call the police and arranging to drop off the property at the Smiths' residence. After the phone called ended, the police officer left the Smiths' residence and Michelle went to her bedroom and locked the door. Shortly thereafter, Carter arrived at the Smiths. Robert helped Carter get the Smiths' property from the trunk of Carter's car and then Robert gave Carter $70.00. Robert testified that as Carter was leaving, he told Robert to invest in a security system.
(¶10} After Carter left, the Smiths took their recovered property to the police department and gave a description of Carter and his car. The police were able to locate Carter at his residence at 107 Olive Street. Robert was shown a photo lineup and he was able to pick Carter from the lineup.
(¶11} On cross-examination, Robert testified that inside Michelle's purse was a letter to the editor of a Tiffin newspaper stating that if someone had found his wife's missing rosary the Smiths would offer a reward for the rosary. Robert explained that this letter was from a previous incident, where Michelle's rosary was taken from her car. Although this separate incident happened several months ago, Michelle still had the letter in her purse. Robert also admitted to lying to Carter about not calling the police.
(¶12} Michelle then testified and corroborated much of Robert's testimony. She also elaborated on the letter that was found in her purse concerning a previous, stolen rosary. Unlike her husband, she denied that the letter offered a reward for the missing rosary. Instead, she explained that the letter asked whoever borrowed her rosary to return it to her and she would give them another rosary, but not a reward.
(¶13} Detective Rob Bour also testified for the State about his involvement in the investigation. He testified that he and Detective David Horn interviewed Carter. During the interview, Carter told the detectives that he had found the purse and safe down by the river while he was fishing. Further, Detective Bour testified when asked about the reward money, Carter originally told him he was only paid $50.00, but eventually admitted to receiving $70.00.
(¶14} Detective Horn corroborated Detective Bour's testimony. Detective Horn also testified that during the interview, Carter changed his story on where he found the stolen property many times. First, Carter stated he found the property while walking his dog down the street. Then Carter told Detective Horn that he had found it while fishing with a friend. Finally, Carter told Detective Horn that he had found the property at the house of John Smith, one of his acquaintances.
(¶15} At the close of the State's evidence, Carter moved for a Crim.R. 29 motion for acquittal, which the trial court denied. During Carter's case-in-chief, the following relevant evidence was adduced.
(¶16} Carter testified, explaining that he had found the Smiths' property when he was walking his dog on Water Street. Carter stated that when he started to look through the purse he found a letter that talked about a reward. Carter claimed that this letter had all of the Smiths' contact information and said that if any of their possessions were found to return them for a reward. Subsequently, Carter called Robert and told him that he had found his safe and purse. Carter asserted that he never demanded a reward for the Smiths' property and "could care less about it." Trial Tr., p. 219.
(¶17} Carter confirmed that he had set up a meeting with Robert to give back the property at Noble School. When Carter arrived at Noble School he saw police officers and decided not to meet with Robert. Carter then testified that he called Robert again and made the arrangement to meet Robert at his house. When Carter arrived, Robert helped him retrieve his property from Carter's trunk. Robert promptly thanked Carter and handed him his reward money. Subsequently, police officers arrived at Carter's residence and took him to the police station. At the police station, Carter denied having any involvement in the residential burglary and denied knowing who did do it. Carter testified that from the beginning of the interview, Detective Horn would not believe anything Carter would say.
(¶18} On cross-examination, the State elicited testimony regarding changes in Carter's story as follows:
Q. Now, during this interview that you had with the officers, didn't you tell the police that you found the ...