APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 12 03 0590 (A)
RICHARD P. KUTUCHIEF, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
DONNA J. CARR, Judge.
(¶1} Appellant Michael Jordan appeals his conviction in the Summit County Court of Common Pleas. This Court affirms.
(¶2} Minutes after Jordan helped Sharda Elmore load two large boxed flat screen televisions onto a shopping cart in WalMart, Elmore pushed the cart out of the store without paying for the televisions as Jordan engaged the store's elderly greeter in conversation. Jordan was later indicted on one count of theft of property worth $1000.00 or more but less than $7500.00, a felony of the fifth degree. He pleaded not guilty and the matter was tried to a jury that found him guilty. The trial court sentenced him to 12 months in prison. Jordan appealed and raises four assignments of error for review. This Court consolidates some assignments of error and rearranges others to facilitate review.
ASSIGNMENT OF ERROR I
THE STATE OF OHIO FAILED TO ESTABLISH BEYOND A REASONABLE DOUBT WHEN VIEWED BY THE MANIFEST WEIGHT OF THE EVIDENCE THAT MICHAEL D. JORDAN EITHER PARTICIPATED OR WAS AN ACCOMPLICE IN THE THEFT AT THE WALMART STORE; THERE IS INSUFFICIENT EVIDENCE TO SUPPORT MR. JORDAN'S CONVICTION OF THEFT AND THUS APPELLANT'S CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND BASED ON INSUFFICIENT EVIDENCE AS PERTAINS TO THE FINDING THAT HE COMMITTED THEFT. THE COURT ERRED IN OVERRULING MR. JORDAN'S RULE 29 MOTION FOR ACQUITTAL.
ASSIGNMENT OF ERROR II
THE COURT ERRED IN DENYING DEFENDANT'S CRIMINAL RULE 29 MOTION FOR ACQUITTAL ON THIS CHARGE.
(¶3} Jordan argues that his conviction was not supported by sufficient evidence, that the trial court erred by denying his motions for acquittal pursuant to Crim.R. 29, and that his conviction was against the manifest weight of the evidence. This Court disagrees.
(¶4} Jordan was charged with theft in violation of R.C. 2913.02(A)(1) which provides: "No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services * * * [w]ithout the consent of the owner or person authorized to give consent[.]" Pursuant to R.C. 2901.22(A): "A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature." "A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist." R.C. 2901.22(B).
(¶5} "Deprive" means to do any of the following:
(1) Withhold property of another permanently, or for a period that appropriates a substantial portion of its value or use, or with purpose to restore it only upon payment of a reward or other consideration;
(2) Dispose of property so as to make it unlikely that the owner will recover it;
(3) Accept, use, or appropriate money, property, or services, with purpose not to give proper consideration in return for the money, property, or services, and without reasonable justification or excuse for not giving proper consideration.
R.C. 2913.01(C). An "owner" is "any person, other than the actor, who is the owner of, who has possession or control of, or who has any license or interest in property or services, even though the ownership, possession, control, license, or interest is unlawful." R.C. 2913.01(D).
(¶6} Theft from a retail establishment is completed not only upon the defendant's leaving the premises with the merchandise. State v. Cadle, 9th Dist. Summit No. 24064, 2008-Ohio-3639, ¶ 7. This Court, along with several others, has recognized that "[t]he state need only prove that appellant exerted control over the merchandise with the intent to deprive the store owner of its property, regardless of whether [the defendant] was still in the store. The slightest act of removal or hiding of property, coupled with the requisite intent, is a sufficient asportation in the eyes of the law." (Alteration in original.) Id., quoting State v. Arthur, 4th Dist. Scioto No. 01CA2818, 2002-Ohio-3764, ¶ 17, and citing State v. McGhee, 6th Dist. Lucas No. L-06-1210, 2007-Ohio-6527, ¶ 23; State v. Bean, 2d Dist. Montgomery Nos. 22035, 22036, 2007-Ohio-6132, ¶ 19-20; State v. Peak, 11th Dist. Lake No. 2004-L-124, 2005-Ohio-6422, ¶ 33-34; State v. Randazzo, 8th Dist. Cuyahoga No. 79667, 2002-Ohio- ...