State v. Dukes , 2018 Ohio 3002 ( 2018 )

[Cite as State v. Dukes, 2018-Ohio-3002.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-17-39
v.
TONIA D. DUKES, OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court
Trial Court No. CRB 1701003
Judgment Affirmed
Date of Decision: July 30, 2018
APPEARANCES:
W. Alex Smith for Appellant
Richard H. Palau for Appellee
Case No. 13-17-39
ZIMMERMAN, J.
{¶1} Defendant-appellant, Tonia Dukes (“Dukes”), appeals the November
29, 2017 judgment of the Tiffin-Fostoria Municipal Court journalizing her theft
conviction by a jury. For the reasons set forth below, we affirm the judgment of the
trial court.
Facts and Procedural History
{¶2} On July 28, 2017, Elizabeth Miller (“Miller”), an “Asset Protection
Associate” with Wal-Mart, observed Dukes, along with Lester Miller (“Lester”),
exit the perfume aisle. Miller noticed several boxes of high-dollar perfume hidden
under a pillow in the cart being pushed by Lester. Miller decided to follow Dukes
and Lester throughout the store.
{¶3} Miller followed the couple to the boy’s department. There, she
observed Dukes remove the perfume from their boxes. Miller also observed another
female, Kay Rauch (“Rauch”), join Dukes and Lester at this time. Miller saw Dukes
remove four perfume bottles from their boxes and hand the bottles to Rauch. Rauch,
in turn, concealed the perfume bottles into her purse.
{¶4} Thereafter, Miller followed Rauch throughout Wal-Mart, approaching
her when Rauch passed the “last point of sale” near the grocery doors, identifying
herself as Wal-Mart security. Rauch dropped her purse and ran from the store.
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Thereupon, Miller contacted Tiffin Police Department to report the theft in which
Dukes and Rauch were implicated.
{¶5} Ultimately, Dukes was charged with theft, in violation of R.C.
2913.02(A)(1), for her involvement with Rauch. Dukes pled not guilty to the charge
in the trial court.
{¶6} On November 29, 2017, a jury trial was held in the trial court. Miller
testified for the prosecution, along with Officer Kyle Illig. The testimony of Officer
Illig included the statement he obtained from Rauch implicating Dukes in the theft.
The state also introduced a video from Wal-Mart of the incident. Rauch testified in
Duke’s defense, testifying that she was “high on marijuana” at the time she gave her
statement to the Tiffin officers that arrested her and Dukes at Wal-Mart. Rauch
refuted her statement (given to police) at trial and testified that she was the sole
person that took the perfume from Wal-Mart. Dukes did not testify. Ultimately, the
jury found Dukes guilty of theft.
{¶7} The trial court sentenced Dukes to serve 180 days in jail and to pay a
fine of $150.00, however, the trial court suspended 90 days of the jail time. The
trial court also placed Dukes on probation for a period of three years.
{¶8} Dukes now appeals, asserting the following assignments of error.
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ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED BY MAKING A COMMENT TO
THE JURY THAT WAS PREJUDICIAL AGAINST THE
DEFENDANT.
ASSIGNMENT OF ERROR NO. II
THE JURY ERRED BY CONVICTING THE DEFENDANT
AGAINST THE MANIFEST WEIGHT OF TH EVIDENCE.
{¶9} For ease of discussion, we elect to address the assignments of error out
of the order in which they appear, addressing the second assignment of error first.
Second Assignment of Error
{¶10} In her second assignment of error, Dukes maintains that the jury’s
verdict convicting her of theft was against the manifest weight of the evidence
because Rauch testified at trial that she alone committed the theft. Dukes further
argues that she did not have possession of the perfume in question.
Standard of Review
{¶11} When determining whether a conviction is against the manifest weight
of the evidence, we “will not reverse a conviction where there is substantial evidence
upon which the court could reasonably conclude that all the elements of an offense
have been proven beyond a reasonable doubt”. State v. Eskridge, 38 Ohio St.3d 56(1988), at paragraph two of the syllabus.
{¶12} In reviewing whether a conviction is against the manifest weight of
the evidence, a reviewing court must examine the entire record, “‘[weigh] the
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evidence and all inferences, consider the credibility of the witnesses and [determine]
whether in resolving conflicts in the evidence, the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered’”. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997),
quoting State v. Martin, 20 Ohio App.3d 172, 175 (1983). However, a reviewing
court must allow the trier of fact the appropriate discretion on matters relating to the
weight of the evidence and the credibility of the witnesses. State v. DeHass, 10
Ohio St.2d 230, 231 (1967).
Analysis
{¶13} R.C. 2913.02 states, in its pertinent part:
(A) No person, with purpose to deprive the owner of property or
services, shall knowingly obtain or exert control over either the
property or services in any of the following ways:
(1) Without the consent of the owner or person authorized to
give consent;
{¶14} In the case at hand, Dukes argues that the prosecution failed to prove
that she “knowingly obtained or exerted control” over the perfume. Moreover, she
contends that while Rauch was guilty of theft, Dukes, at best, could have only been
convicted of complicity, but not the actual theft.
{¶15} In our review of the record, we find the following evidence was
presented at trial. Elizabeth Miller, an Asset Protection Associate at Wal-Mart
testified that while walking the floor at Wal-Mart, she observed Dukes and Lester
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walk out of the perfume aisle with several high-dollar perfume bottles in their cart.
Miller followed the two throughout the store, noticing that they stopped in the boys’
department. There, Miller testified that she witnessed Dukes go “between two
displays of jeans where she started to open some perfume”. (Tr. 81). At this time,
Rauch joined Dukes and Lester in the boys’ wear department. Miller observed
Dukes open the hard plastic containers (containing the perfume bottles) with a sharp
object; remove the perfume from the hard plastic; remove the security tag from the
bottles; and hand the bottles to Rauch, who concealed them in her purse. (Tr. 81-
82). Miller also testified to the Wal-Mart video, (Exhibit D), which verified that
Dukes and Rauch were together in the store.
{¶16} Tiffin police officer Illig testified that he interviewed Dukes after the
theft. In her statement to Officer Illig, Dukes confirmed that Rauch was with her
and Lester when they arrived at Wal-Mart. Officer Illig also testified that while he
was conducting his investigation of the theft, an assisting Tiffin police officer
located Rauch (who fled from the store after being confronted by Miller) in Wal-
Mart’s parking lot in a vehicle registered to Dukes’ sister. Officer Illig further
testified that Rauch admitted that Dukes’ was a participant in the theft of perfume
by stating “the lady gave me stuff to put in my bag”. (Doc. 9). However, in Dukes’
defense, Rauch testified that she was solely guilty of theft of the perfume bottles.
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{¶17} “[A]n appellate court’s function when reviewing the weight of the
evidence is to determine whether the greater amount of credible evidence supports
the verdict.” State v. Schaeffer, 3d Dist. Seneca No. 13-14-34, 2015-Ohio-3531,
¶15, citing Thompkins. In reviewing whether the conviction was against the
manifest weight of the evidence, the appellate court sits as a “thirteenth juror” and
examines the conflicting testimony. Id. In doing so, this Court must review the
entire record, weigh the evidence and all of the reasonable inferences, consider the
credibility of the witnesses, and determine whether in resolving conflicts in the
evidence, the factfinder “‘clearly lost its way and created such a manifest
miscarriage of justice that a conviction must be reversed and a new trial ordered’”.
State v. Holmes, 3d Dist. Hancock No. 5-15-06, 2015-Ohio-5050, ¶46, quoting
Thompkins.
{¶18} In the case sub judice, competent and credible evidence exists in the
record to convict Dukes of theft. The jury chose to believe the testimony of Miller
instead of the testimony of Rauch as to whether Dukes was a participant in the theft.
Because the jury was in the best position to weigh the credibility of the witnesses,
we find that the jury’s verdict was not against the manifest weight of the evidence
in light of Miller’s testimony, Rauch’s statement to police (at the scene), and the
Wal-Mart video offered into evidence. Accordingly, Dukes’ second assignment of
error is overruled.
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First Assignment of Error
{¶19} In her first assignment of error, Dukes contends that the trial court
erred and she was prejudiced, when the trial court judge commented on the state’s
evidence. Specifically, the trial court made the following statement when ruling on
Dukes objection to an exhibit (i.e. photograph) of the Wal-Mart perfume:
“Ladies and gentlemen, the argument, basically, revolves around
Ms. Beckley saying, geez, why do we have pictures? Why don’t
we have the actual items? I don’t know what the answer to that
is. You don’t know what it is. But I think a photograph of them
is pretty good evidence. I suspect you’ll want to cross-examine
her, Ms. Miller a little bit more about that. While it’s not ideal,
it’s okay. The objection will be overruled. And the jury will be
permitted to see it.”
Standard of Review
{¶20} In State v. Scott (1986), 26 Ohio St.3d 92, 96, the Supreme Court of
Ohio analyzed the comments of a trial judge to determine whether they were
“prejudicial so as to require a mistrial,” utilizing the following criteria: “(1) The
burden of proof is placed upon the defendant to demonstrate prejudice, (2) it is
presumed that the trial judge is in the best position to decide when a breach is
committed and what corrective measures are called for, (3) the remarks are to be
considered in light of the circumstances under which they were made, (4)
consideration is to be given to their possible effect upon the jury, and (5) to their
possible impairment of the effectiveness of counsel”. Id. (quoting State v.
Wade [1978], 53 Ohio St.2d 182, 188).
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Analysis
{¶21} While the trial court should not have commented on what could be
construed as the quality of the evidence, we find that the remark made by the trial
judge to be harmless. Reviewing the criteria for determining prejudicial effect set
forth by the Supreme Court and under the circumstances presented here, we find:
that no one objected to the remark made by the trial judge; that Dukes has failed to
demonstrate how she was prejudiced by the remark; that the remark, taken in
context, was probably lightly considered by anyone, if at all; and, most importantly,
the evidence of Dukes’ involvement in the theft was overwhelming.
{¶22} Additionally, prior to the jury’s deliberation, the trial court included in
its instruction to the jury the following admonitions:
“Now, if during the course of the trial I said or did anything which
you consider an indication of my views on the facts, you’re
instructed to disregard it. The Judge must be and sincerely
desires to be impartial in presiding over this and every other trial
before a jury and without a jury”. (Tr. 140-141).
{¶23} In this case, the trial judge’s comments to the jury (when admitting a
photograph into evidence) were not appropriate. However, we find no evidence that
such comments influenced the jury on the weight of the evidence in light of the
defense presented (that) Rauch, not Dukes, solely stole the perfume. Stated clearer,
at no time was it disputed that perfume was the object involved in the theft. Hence,
we cannot see how Dukes was prejudiced (as to the weight of the evidence) when
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her defense was that Rauch alone stole the perfume. Thus, Duke’s first assignment
of error is not well taken and overruled.
{¶24} Having found no error prejudicial to the Appellant herein in the
particulars assigned and argued, we affirm the Appellant’s conviction in the trial
court.
Judgment Affirmed
WILLAMOWSKI, P.J. and SHAW, J., concur.
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