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State v. Hart

Court of Appeals of Ohio, Fifth District, Coshocton

April 3, 2017

STATE OF OHIO, Plaintiff - Appellee
v.
THOMAS M. HART, Defendant-Appellant

         Appeal from the Coshocton Municipal Court, Case No. CRB1500884.

          For Plaintiff-Appellee RICHARD J. SKELTON Assistant Law Director, JAMES R. SKELTON Police Prosecutor

          For Defendant-Appellant ROBERT E. WEIR

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, Jr, J.

          OPINION

          Baldwin, J.

         {¶1} 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.

         STATEMENT OF THE FACTS AND CASE

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} Appellant now raises the following assignments of error on appeal:

         {¶8} THE TRIAL COURT ERRED WHEN IT DENIED APPELLANTS CRIM.R. 29 MOTION FOR JUDGMENT OF ACQUITTAL ...


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