State v. Bachtel , 2022 Ohio 361 ( 2022 )

[Cite as State v. Bachtel, 2022-Ohio-361.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-210259
TRIAL NO. C-20CRB-20224
Plaintiff -Appellee, :
vs. :
O P I N I O N.
ANDREA BACHTEL, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: February 9, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald Springman,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffman, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Defendant-appellant Andrea Bachtel appeals her conviction for theft
under R.C. 2913.02(A)(1). Bachtel contends that the trial court committed
evidentiary errors, that the evidence was insufficient to support her conviction, and
that her conviction was against the manifest weight of the evidence. We disagree and
affirm the trial court’s judgment.
I. Facts and Procedure
{¶2} In October 2020, Bachtel went shopping at Dillard’s, a department
store in Kenwood, Ohio. Cheyenne Rheingold worked in the store’s security room
and recorded Bachtel on the store surveillance cameras.
{¶3} The surveillance video, which was admitted into evidence, depicts
Bachtel, with a purse and large shopping bag in hand, as she gathered ten items of
clothing from the store shelves. Rheingold focused the camera on the clothes to
discern their characteristics. Bachtel entered the store’s fitting room with the ten
items of clothing, her purse, and the large shopping bag. After several minutes,
Bachtel exited with “five items in her hand.” Bachtel returned three clothing items to
the store shelves before purchasing a dress and a black sweater.
{¶4} After Bachtel left the store, security and store managers escorted her
back into the store and brought her into the store’s apprehension room. The
apprehension room adjoined Rheingold’s office, but Rheingold could not see Bachtel
in the apprehension room. Bachtel was arrested and charged with petty theft under
R.C. 2913.02(A)(1).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} At trial, the state introduced the surveillance videos, photographs of
clothes allegedly stolen from the store, and testimony from both Rheingold and the
arresting officer.
{¶6} Rheingold testified that store managers recovered five articles of
clothing from Bachtel in the apprehension room and delivered the clothes to
Rheingold’s office. Bachtel twice objected and argued that Rheingold lacked the
requisite first-hand knowledge to testify that the merchandise had been recovered
from Bachtel. The court overruled those objections.
{¶7} Rheingold identified the merchandise delivered to her as the same
merchandise that she watched Bachtel collect from the store’s clothing racks earlier
in the day. Rheingold testified that she photographed clothing identical to those
recovered from Bachtel pursuant to a store policy because the tags had been removed
from the five items of clothing.
{¶8} At the close of the state’s case, Bachtel moved for an acquittal under
Crim.R. 29 and argued that the state had failed to present any evidence that unpaid
Dillard’s merchandise was recovered from Bachtel. The trial court denied the motion.
{¶9} Following closing arguments, the trial court found Bachtel guilty of
theft in violation of R.C. 2913.02(A)(1) and reasoned that it was “allowed to draw
inferences[,] and direct and circumstantial evidence can carry equal weight or
whatever weight I attach to them.”
{¶10} Bachtel appeals.
II. Law and Analysis
{¶11} In her first assignment of error, Bachtel contends that the trial court
committed prejudicial error when it allowed Rheingold to testify that store managers
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OHIO FIRST DISTRICT COURT OF APPEALS
recovered store merchandise from Bachtel in the apprehension room. In her second
assignment of error, Bachtel challenges the evidence underlying her conviction for
theft under R.C. 2913.02(A)(1) as against the manifest weight of the evidence and
insufficient as a matter of law.
A. Lay Witness Testimony
{¶12} Trial courts have broad discretion over the admission of lay testimony.
State v. Lavender, 2019-Ohio-5352, 141 N.E.23d 1000, ¶ 9 (1st Dist.), citing State v.
Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 175, ¶ 61, quoting State
v. Issa, 93 Ohio St.3d 49, 64, 752 N.E.2d 904 (2001). We review a trial court’s ruling
on evidentiary issues for an abuse of discretion and proof of material prejudice.
(Citations omitted.) Lavender at ¶ 9. A trial court abuses its discretion when “the
court’s attitude is unreasonable, arbitrary, or unconscionable.” Hensel v. Childress,
2019-Ohio-3934, 145 N.E.3d 1159, ¶ 6 (1st Dist.), quoting Thoma Opticians, Inc. v.
Barnes, Dennig & Co., 151 Ohio App.3d 566, 2003-Ohio-673, 784 N.E.2d 1207, ¶ 13
(1st Dist.). To determine if the defendant was materially prejudiced, we “consider
both the impact that the offending evidence had on the verdict and the strength of
the remaining evidence.” State v. Carson, 1st Dist. Hamilton No. C-180336, 2019-
Ohio-4550, ¶ 29.
{¶13} Rheingold testified that store managers recovered merchandise from
Bachtel in the apprehension room and delivered that merchandise to Rheingold’s
office. Bachtel argues that Rheingold could not see into the apprehension room and
therefore lacked personal knowledge to testify that the merchandise delivered to her
office was recovered from Bachtel.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶14} In Ohio, a lay witness can testify to “opinions or inferences which are
(1) rationally based on the perception of the witness and (2) helpful to a clear
understanding of the witness’ testimony or the determination of a fact in issue.”
Evid.R. 701. Testimony is rationally based on the perception of a witness if the
opinion is one that a rational person would form based on the observed facts. Lee v.
Baldwin, 35 Ohio App.3d 47, 49, 519 N.E.2d 662 (1st Dist.1987). Put another way,
“lay testimony results from a process of reasoning familiar in everyday life.”
Lavender at ¶ 95, citing State v. McKee, 91 Ohio St.3d 292, 297, 744 N.E.2d 737(2001), fn. 2.
{¶15} After our review of Rheingold’s testimony, we find that it satisfied the
requirements of Evid.R. 701. That testimony consisted of inferences based on
observed facts. Rheingold observed Bachtel as she gathered ten items from the store
shelves and entered the fitting room. Rheingold watched as Bachtel returned three
items to the store’s shelves and paid for two items. Rheingold witnessed store
managers as they accompanied Bachtel through the store and into the apprehension
room. Rheingold watched as those managers exited from the apprehension room
with merchandise and delivered merchandise to her office. That merchandise was
sold by the store and matched the merchandise that Rheingold witnessed Bachtel
selecting from the store shelves. Those observed facts create a rational inference for
Rheingold that the merchandise delivered to her was recovered from Bachtel.
{¶16} Therefore, the trial court did not abuse its discretion when it allowed
Rheingold to testify that store managers recovered store merchandise from Bachtel.
Finding no abuse of discretion, we need not address Bachtel’s prejudice argument.
Bachtel’s first assignment of error is overruled.
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OHIO FIRST DISTRICT COURT OF APPEALS
B. Sufficiency of the Evidence
{¶17} Turning to her second assignment of error, Bachtel maintains that the
evidence presented at trial was insufficient to support her conviction for theft under
R.C. 2913.02(A).
{¶18} A challenge to the sufficiency of the evidence presents this court with a
question of law that we review de novo. State v. Dent, 163 Ohio St.3d 390, 2020-
Ohio-6670, 170 N.E.3d 816, ¶ 15, quoting State v. Thompkins, 78 Ohio St.3d 380,
386, 678 N.E.2d 541 (1997). This court views the evidence in a light most favorable to
the prosecution and asks if the evidence would convince a rational trier of fact that
the defendant committed the essential elements of the crime beyond a reasonable
doubt. State v. Anderson, 1st Dist. Hamilton No. C-160920, 2017-Ohio-8641, ¶ 10,
quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of
the syllabus. We assume that testimony from a state’s witness was truthful and
determine if the elements of that testimony satisfied the elements of the crime. State
v. Bankston, 10th Dist. Franklin No. 08-AP-668, 2009-Ohio-754, ¶ 14.
{¶19} R.C. 2913.02(A)(1) states, in relevant part, that “[n]o person, with the
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.” Thus, the state must prove that the accused
knowingly exerted control over the property, without consent, and with the purpose
to deprive the owner of that property. State v. Jennings, 8th Dist. Cuyahoga No.
99631, 2013-Ohio-5428, ¶ 25. Direct or circumstantial evidence will suffice. Id.6
OHIO FIRST DISTRICT COURT OF APPEALS
{¶20} Bachtel contends that the state relied on improper testimony from
Rheingold to establish the elements of theft under R.C. 2913.02(A)(1). Bachtel
repeats the argument made in her first assignment of error—that Rheingold lacked
first-hand knowledge to testify that she was handed merchandise recovered from
Bachtel. We disagree.
{¶21} As discussed above, the surveillance footage and testimony sufficiently
established that Bachtel gathered ten items from the store’s shelves, paid for two
items, and returned three to the store’s shelves. Further, it established that store
managers recovered the other five items of clothing from Bachtel. Rheingold testified
that Bachtel took these items without the consent of Dillard’s. As a result, we find
that there was sufficient evidence to support Bachtel’s conviction.
{¶22} According to Bachtel, inferring that the merchandise delivered to
Rheingold was the same merchandise that Bachtel had gathered from the clothing
racks constitutes impermissible inference stacking. Inference stacking exists when an
inference is drawn solely from an initial inference and is unsupported by additional
facts. State v. Johnson, 1st Dist. Hamilton No. C-170371, 2018-Ohio-4131, ¶ 52,
quoting State v. Hill, 1st Dist. Hamilton No. C-030678, 2004-Ohio-2275, ¶ 9,
quoting Hurt v. Charles J. Rogers Transp. Co., 164 Ohio St. 329, 130 N.E.2d 820(1955), paragraph two of the syllabus. But a trier of fact can draw parallel inferences,
where an inference is reasonably based, in part, on an inference and, in part, on
facts. (Citations omitted.) Johnson at ¶ 52. The inference that the merchandise
delivered to Rheingold was gathered by Bachtel before entering the fitting room
relies on Rheingold’s identification of the merchandise based on the surveillance
footage.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶23} Therefore, a rationale trier of fact could find, based on Rheingold’s
testimony and the surveillance footage in the record, that the essential elements of
theft under R.C. 2913.02(A)(1) were proven beyond a reasonable doubt.
C. Manifest Weight
{¶24} Bachtel maintains that her conviction was against the manifest weight
of the evidence. We will reverse a conviction as against the manifest weight of the
evidence if the record demonstrates that the trial court lost its way and created a
miscarriage of justice when it found the defendant guilty. State v. Wilson, 113 Ohio
St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,¶ 25, quoting Thompkins, 78 Ohio
St.3d at 387, 67 N.E.2d 541. Our review of the record consists of weighing the
evidence and all reasonable inferences and considering the credibility of witnesses.
Wilson at ¶ 25, quoting Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. A
manifest-weight challenge “addresses the evidence’s effect of inducing belief” and we
ask “whose evidence is more persuasive—the state’s or the defendant’s?” Wilson at ¶
25, citing Thompkins at 386-387.
{¶25} Bachtel argues that Rheingold’s contradictory testimony on cross-
examination compromised her credibility. Specifically, Bachtel reasons that
Rheingold failed to disclose that the photographs entered into evidence depicted
duplicates of the merchandise delivered from the apprehension room. But Rheingold
explained that she did so to comply with the store’s policy that Dillard’s tags must be
attached to merchandise in photographs. Based on the evidence presented by the
state and the store policy, we cannot say that the trial court lost its way and created a
manifest miscarriage of justice when it found Bachtel guilty of theft. Therefore, we
overrule Bachtel’s second assignment of error.
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OHIO FIRST DISTRICT COURT OF APPEALS
Conclusion
{¶26} Bachtel’s two assignments of error are overruled. The trial court’s
judgment is affirmed.
Judgment affirmed.
CROUSE, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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