State v. WagnerState v. Wagner
PLAINTIFF-APPELLEE vs. DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-519755
RELEASED: May 20, 2010
ATTORNEY FOR APPELLANT
Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113-2098
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Daniel A. Cleary
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court’s decision. See
{¶ 1} Appellant Clifford Wagner appeals his conviction and sentence by the Cuyahoga County Court of Common Pleas. For the reasons outlined below, we affirm.
{¶ 2} On January 14, 2009, a Cuyahoga County grand jury indicted Wagner on one count of theft, in violation of
{¶ 3} The state presented four witnesses: two Sears employees from its loss prevention deрartment and two officers from the North Olmsted Police Department. On August 16, 2008, Sears employee Dennis McCafferty witnessed Wagner take several items of merchandise he had not paid for and leave the Sears store at Great Northern Mall. McCafferty testified he recognized Wagner from a previous day when Wagner was in the store and appeared to shoplift items, but McCafferty was unable to detain him on that occasion. McCafferty stated that, upon seeing Wagner, he alerted his loss prevention manager, Elaine Dickie, about Wagner’s presence in the store, and he then continued to follow Wagner throughout the store.
{¶ 4} McCafferty testified he saw Wagner carrying several videos, then saw him walk into an aisle in the housewares department, but shortly thereafter, exit the aisle carrying only a boxed knife set. When McCafferty went to this aisle in housewares, he could not find the video games Wagner
{¶ 5} Dickie testified McCafferty alerted her to Wagner’s presence in the store. Dickie then monitored the store’s surveillance cameras, which she set to follow Wagner as he walked through various departments in the store. Through the store’s cameras, Dickie noticed Wagner carrying several video games; she later saw him carrying a boxed knife set. The next time Dickie saw Wagner on camera, he was with another female, and he had a Sears bag in his possession. Dickie testified that the surveillance camera showed Wagner and his sister carrying several bags and a basket, and then exiting the store. Neither Dickie nor McCafferty saw Wagner stop at a point of sale and pay for any of the merchandise. The videotapes were played to the jury during the trial.
{¶ 7} Two North Olmsted police officers, Stephen Dombeck and Michael Gasdick, testified they reported to Sears after receiving a call about suspected shoplifters. When the officers arrived at the store, they spoke with McCafferty and Dickie, inventoried the merchandise, and arrested Wagner and his sister. Officer Stephen Dombeсk stated that because the value of the merchandise exceeded $500, as noted by Dickie’s inventory list and the corresponding cash register receipt, the case was filed as a felony theft.
{¶ 8} At the close of the state’s case, defense counsel made a
{¶ 9} The jury returned a guilty verdict on the theft offense, as well as a furthеr finding that the value of the goods was greater than $500, making it a felony offense. The trial court sentenced Wagner to five years’ community control sanctions and a $2,500 fine. Wagner was ordered not to have contact with any Sears store. Upon Wagner’s motion to waive the fine, the court ordered that Wagner pay $50 per month until the fine was paid in full.
{¶ 10} Wagner raises nine assignments of error for our review. Where appropriate, we address related assignments of error together.
{¶ 11} “I. Defendant was denied due process of law and a fair trial when the court permitted evidence of another alleged theft.”
{¶ 12} “II. Defendant was denied due process of law when the court failed to give any instruction concerning other acts evidence.”
{¶ 13} Wagner argues the court violated
{¶ 14} “[A] triаl court’s decision to admit or exclude evidence ‘will not be reversed unless there has been a clear and prejudicial abuse of discretion.’”
{¶ 15}
{¶ 16} The testimony at issue was as follows:
“State: Did you see him in the store prior to [August 16, 2008]?
McCafferty: Yes. The reason I started watching him on camera–
Mr. Mancino: Objection.
The Court: Overruled.
McCafferty: When I was watching him, I noticed that he looked familiar as a person that had been in the store several weeks prior, that I had watched him take some items with another white female and a couple young girls. However, I was not able to apprehend him. By the time I got outside to the parking lot, he was already gone.
State: In that first time that you first recognized him, what type of items were they taking?
Mr. Mancino: Objection. The Court: Overruled.
McCafferty: Clothing, video games, DVD’s, belts.
State: You witnessed all that?
McCafferty: Yes.”
{¶ 17} We find that the trial court violated
{¶ 19} Nonetheless, we find that admission of evidеnce pertaining to Wagner’s alleged theft was harmless because its admission did not affect the outcome of the trial. See State v. Williams (1988), 55 Ohio App.3d 212, 563 N.E.2d 346. Separate and apart from the other acts testimony, the state offered ample evidence of Wagner’s guilt, including videotape footage of Wagner carrying items he had not paid for out of the store and testimony from two loss prevention employees who watched him take the merchandise and exit Sears. Accordingly, we find the trial court’s erroneous admission of evidence relating to a past alleged theft was not prejudicial error. Wagner’s first and second assignments of error are overruled.
{¶ 20} “III. Defendant was denied his right of confrontation and cross-examination when the court allowed an unverified register tape into evidence.”
{¶ 21} “IV. Defendant was denied due process of law when he was not allowed to present his defense.”1
{¶ 23} As stated above, the trial court has broad discretion in the admission or exclusion of evidence, and unless it has clearly abused its discretion and the defendant has been materially prejudiced thereby, an appellate court should be slow to interfere. State v. Hancock, supra.
{¶ 24}
{¶ 25} The phrase “other qualified witness” should be broadly interpreted. See State v. Patton (Mar. 5, 1992), Allen App. No. 1-91-12, unreported, citing 1 Weissenberger’s Ohio Evidence (1985) 75, Section 803.79. Further, it is not necessary that the witness have firsthand knowledge of the transaction giving rise to the record. State v. Vrona (1988), 47 Ohio App.3d 145, 547 N.E.2d 1189, paragraph two of the syllabus. “Rather, it must be demonstrated that: the witness is sufficiently familiar with the operation of the business and with the circumstances of the record’s preparation, maintenance and retrieval, that he can reasonably testify on the basis of this knowledge that the record is what it purports to be, and that it was made in the ordinary course of business consistent with the elements of
{¶ 26} With respect to the sales receipt, McCafferty, as a loss prevention employee, and Dickie, as the loss prevention manager, testified that a sales
{¶ 27} We find that McCafferty, a 29-year Sears loss prevention employee, and Dickie, a 10-year Sears loss prevention manager, qualify as “other qualified witnesses” as contemplated by
{¶ 28} On the other hand, Wagner attempted to introduce a letter, which he claims was sent from a Sears agent, identified as “Sears Holding.” The state objected to its admission on the basis that no one was being called as a witness to authenticate the letter, and that no one from Sears was willing to testify that it was a record kept in the ordinary course of business. The court refused to admit the letter because there was no testimony from any witness regarding its authenticity or the authenticity of its contents. We find that in light of the fact that no witness whatsoever was available to testify to the letter’s authenticity, the trial court’s decision to grant the state’s motion to exclude the letter was not error.
{¶ 30} “V. Defendant was denied due process of law when the prosecutor changed his theory of the case to one of aiding and abetting.”
{¶ 31} In his fifth assignment of error, Wagner argues that the state changed its theory of the case at the end of the trial, resulting in a denial of his due process rights. Neither our review of the record nor Ohio law supports Wagner’s argument.
{¶ 32} In State v. Keenan, 81 Ohio St.3d 133, 1998-Ohio-459, 689 N.E.2d 929, the Ohio Supreme Court held that “one who ‘[c]onspire[s] with anоther to commit [an] offense in violation of [R.C.] 2923.01 is also guilty of complicity under
{¶ 33}
{¶ 34} First, we note that from the trial’s inception, the state’s theory was that Wagner, working with his sister, committed theft of over $800 worth of merchandise from Sears. The evidence supported both the underlying theft offense and that the two individuals aided and abetted one another to steal merchandise. Furthermore, Wagner’s attorney focused much of the defense, in the event the jury should convict, on proving Wagner should only be convicted of a misdemeanor theft offense because he was carrying less than $500 worth оf merchandise. Wagner’s defense demonstrates he was on notice of the state’s theory that Wagner and his sister aided and abetted each other in the commission of theft.
{¶ 35} The state never changed the name or identity of the underlying offense. Under the rules, Wagner was at all times on notice that the state could and was proceeding on a theory of aiding and abetting. His fifth assignment of error is overruled.
{¶ 36} “VI. Defendant was denied a fair trial by improper prosecutorial argument.
{¶ 38} “A defendant is entitled to a new trial when a prosecutor makes improper remarks that substantially prejudice him. In order to reverse appellant’s conviction because of prosecutorial misconduct, we must find that the remarks were improper and that the remarks prejudiced appellant.” (Internal citations omitted.) State v. Fears, Cuyahoga App. No. 89989, 2008-Ohio-2661. Moreover, “[i]t must be clear beyond a reasonable doubt that, аbsent the prosecutor’s comments, the jury would have found defendant guilty.” State v. Smith (1984), 14 Ohio St.3d 13, 470 N.E.2d 883. “To determine prejudice, the record must be reviewed in its entirety.” State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, at ¶ 170.
{¶ 39} We have reviewed the record in its entirety and do not find the comments the prosecutor made during his closing argument were improper.
{¶ 40} Wagner’s sixth assignment of error is overruled.
{¶ 41} “VII. Defendant was denied due process of law when the court gave an incomplete aiding and abetting instruction.”
{¶ 42} Wagner argues that the trial court neglected to instruct the jury on the culpable mental state for aiding and abetting. He contends this error allowed the jury to find him guilty solely on the basis of whether he was part of a common design. We disagree.
{¶ 43} A trial court is provided the discretion to determine whether the evidence adduced at trial was sufficient to require an instruction. State v. Fulmer, 117 Ohio St.3d 319, 326, 2008-Ohio-936, 883 N.E.2d 1052. Jury instructions are reviewed in their entirety to determine whether they contain prejudicial error. State v. Getsy, 84 Ohio St.3d 180, 196, 1998-Ohio-533, 702 N.E.2d 866. An appellate court must view the jury instructions in the context of the overall charge rather than in isolation. State v. Price (1979), 60 Ohio St.2d 136, 398 N.E.2d 772.
{¶ 45} Wagner’s seventh assignment of error is overruled.
{¶ 46} “VIII. Defendant was denied due process of law when the court improperly imposed a fine without considering defendant’s ability to pay.”
{¶ 47} In his eighth assignment of error, Wagner argues that nothing in the record indicates the trial court considered his present or future ability to pay the $2,500 fine it imposed as part of his sentence. We are not persuaded, especially in light of the fact that the court restructured its original order when it considered Wagner’s separately filed motion to waive the fine.
{¶ 49} In this case, the trial court acknowledged that Wagner held a full-time job that he had hеld for many years, that he paid taxes, and that he was the sole financial support for his family. When questioned by defense counsel, the court stated that it would not waive the fine because Wagner was working and because shoplifting resulted in stores charging higher prices to customers.
{¶ 50} The court reconsidered Wagner’s argument to waive the fine upon the filing of his motion and attached affidavit of indigency. In denying Wagner’s motion, the court restructured the payment schedule from $200 per month as originally ordered to $50 per month.
{¶ 51} As such, we find the court did consider Wagner’s present and future ability to pay the $2,500 fine. Wagner’s eighth assignment of error is overruled.
{¶ 53} Wagner argues that there was insufficient evidence that he personally stole all the merchandise and that its value exceeded $500.
{¶ 54} A motion for acquittal under
{¶ 55}
{¶ 56} The state presented evidence from two loss prevention employees at Sears that Wagner picked up Sears merchandise, secreted it away in bags, and then left the store without paying for any of it. In addition to the witnesses’ testimony, the state presented surveillance videotаpe showing
{¶ 57} Wagner further argues that the videotape shows him carrying the four videotapes and a knife set, with a combined value under $500. However, the state presented sufficient evidence, through exhibits 7 and 9, that the value of all items taken by Wagner and his sister exceeded $500; under a theory of aiding and abetting, the total value could be attributed to Wagner.
{¶ 58} We are satisfied that the state presented sufficient evidence on all elements of theft, including that the value of the goods exceeded $500. Wagner’s ninth assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant’s
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
ANN DYKE, J., and
JAMES J. SWEENEY, J., CONCUR