Court of Appeals of Ohio, Fifth District, Coshocton
from the Coshocton Municipal Court, Case No. CRB1500884.
Plaintiff-Appellee RICHARD J. SKELTON Assistant Law Director,
JAMES R. SKELTON Police Prosecutor
Defendant-Appellant ROBERT E. WEIR
JUDGES: Hon. W. Scott Gwin, P.J. Hon. Craig R. Baldwin, J.
Hon. Earle E. Wise, Jr, J.
Defendant-appellant Thomas M. Hart appeals his conviction and
sentence from the Coshocton Municipal Court on one count of
theft. Plaintiff-appellee is the State of Ohio.
OF THE FACTS AND CASE
On December 2, 2015, appellant was charged with theft in
violation of R.C. 2913.02(A) (1), a misdemeanor of the first
degree. At his arraignment on May 19, 2016, appellant entered
a plea of not guilty.
Subsequently, a bench trial was held on July 6, 2016. At the
bench trial, Deputy Matt Woitel of the Coshocton County
Sheriffs Office testified that, on November 20, 2015, he was
dispatched to Dollar General in response to the theft of a
Sega gaming system. The Deputy spoke with the manager,
Heather Powell, who showed him a video. Powell told him that
a man had come into the store on November 18th
with his girlfriend, looked at the system and then left. The
same man came back the next day wearing the same red
sweatshirt and hat, walked in and grabbed the same Sega
gaming system off of the shelf, and then walked out of camera
view for a few minutes. He then came back without the Sega
and left after paying for another item. The Sega gaming
system came up missing during an inventory on November 20.
2015. Videos from both November 18, 2015 and November 19,
2015 were played at trial.
Deputy Woitel testified that he spoke with appellant, who was
wearing the same hat and who, in the video, was wearing the
red sweatshirt, and that while appellant admitted to being in
the store that day, he denied taking the item. According to
the Deputy, appellant told him that, on November 19, 2015, he
put the gaming system down in the deodorant aisle. The Deputy
testified that the video showed that appellant had never
entered the deodorant aisle. The game was never recovered.
When asked at trial if he was able to identify appellant
coming into the store on the videos, the Deputy answered
affirmatively. He further testified that, on the video from
November 19, 2015, there appeared to be something near the
front pocket of appellant's sweatshirt.
Heather Powell, the manager at Dollar General, testified that
she reviewed the store's video system on November 20,
2015 and noticed that the Sega system was missing. After
watching the video from the store, Powell observed that, on
November 18, 2015, appellant was shopping with Eternity
Tidrick and picked up the box that the system was in, talked
to Tidrick about it, and then put the box back on the shelf.
She testified that she then watched the video from the next
night and that "it was the same person…that was
with Eternity the night before" Transcript at 25. Powell
testified that appellant came in, took the box off of the
shelf, and went to another area. When he came back, appellant
did not have the box. According to her, appellant never went
to the deodorant aisle. Powell further testified that the
videos showed that from the time appellant was in the store
until the time the game was discovered missing, no one other
than appellant touched a Sega game.
At the conclusion of the testimony, appellant moved for a
judgment of acquittal. The trial court overruled
appellant's motion and found appellant guilty. The trial
court, as memorialized in a Judgment Entry filed on July 6,
2016, sentenced appellant to 60 days in jail, but suspended
50 of those days provided that appellant complied with
specified conditions, The trial court also fined appellant
$250.00 and ordered him to pay restitution in the amount of
$49.00 to Dollar General.
Appellant now raises the following assignments of error on
THE TRIAL COURT ERRED WHEN IT DENIED APPELLANTS CRIM.R. 29
MOTION FOR JUDGMENT OF ACQUITTAL ...