COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59098 STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : : and -vs- : : OPINION : DONALD BAKER : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OCTOBER 3, 1991 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. 236299 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones David L. Doughten Cuyahoga County Prosecutor 2000 Standard Building By: William D. Mason 1370 Ontario Street Assistant Prosecuting Attorney Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - ANN McMANAMON, P.J.: Donald Baker appeals his conviction for theft (R.C. 2913.02) with a violence specification after a bench trial in the common pleas court. Baker raises one assignment of error challenging the manifest weight of the evidence. After reviewing the record, we affirm his conviction. Baker told the judge he was shopping for a three-way telephone pack at the Sears Department store on February 3, 1989. He and his brother-in-law entered the television department where telephone accessories are located. Meanwhile Sears security guards Robert Stefanov and James Riley monitored and taped Baker's activities in a separate room using a closed circuit camera. A review of the videotape shows the defendant taking a small package from the display shelf, opening the package, removing the item inside, secreting the empty container behind a "compact disc" display and putting the item into his pocket. The defendant and his brother-in-law then walked over to the counter, apparently waiting for assistance from a store clerk. Stefanov testified that, after reviewing this sequence of tape, he left the room and entered the television department where defendant and his companion were standing. Stefanov was dressed in plain clothes. He immediately located the empty package defendant had left behind. Stefanov told the court the box had contained a two-way AT&T modular coupler or phone jack - 2 - valued at $2.99. The guard then walked past the two men and waited at a nearby counter. At this point the videotape shows defendant walking out of the television department into an adjacent area, again apparently waiting for service while his brother-in-law remained in the television department. Stefanov and another man approached the defendant, and led him to a point off the screen. According to Stefanov, after he found the empty package, he radioed for backup. When Riley arrived shortly thereafter, they confronted the defendant. As they were about to apprehend him, defendant pulled his hands out of his pockets and the phone jack "dropped out of his right pants pocket." The defendant had no receipt upon his person. The state's rebuttal witness, Robert Chilton, the arresting officer, averred that defendant admitted he took the phone jack - but only did so in order to make calls to find a job. The defendant acknowledged on the stand that he took the jack and put it in his pocket in order to ask the clerk a question about it. He swore he intended to pay for it. Defendant was indicted, tried and convicted on one count of theft (R.C. 2913.02) with a violence specification, which provides in 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; - 3 - "(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent; "(3) By deception; "(4) By threat." The theft charge was a felony of the fourth degree by reason of Baker's nine previous theft convictions to which counsel stipulated. The violence specification also was undisputed. Baker contends that, although he took the object from the package and placed it in his pocket, he did not intend to steal it. Thus, the evidence does not support his conviction. In reviewing a challenge to the manifest weight of the evidence, this court must view the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether "the [trier of fact] 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. Martin (1983), 20 Ohio App. 3d 172, 175. A new trial should be granted only where the evidence weighs heavily against conviction. Id. Further, we are mindful that the evaluation of witness credibility primarily lies with the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230. Defendant claims he took the phone jack out of the package in order to examine it more closely. He maintains he opened the package because he couldn't tell if the item he selected was a two-way jack. He also stated he regularly opens packaged items at - 4 - stores. Nevertheless, defendant posits he had no intent to steal the item, but took it for the purpose of questioning a clerk about it. In support, Baker states that he calmly waited at two sales counters for clerks to assist him. He concludes "[t]he only reasonable interpretation for these actions is that he did in fact wait to speak to the representatives about the phone jack in his possession." We disagree and find that the record overwhelmingly indicates defendant's guilt beyond a reasonable doubt. The videotape clearly corroborates the testimony of the state's witnesses. As to whether defendant intended to steal the item, we note the trial judge's statements prior to her verdict: "Now, the Defendant has testified and he stated that he opened it up in order to see if it would accommodate three phone lines. "This Court notes that it's very interesting, once he learned it was not what he wanted, he at no time put it back. He put in his pocket. And that, simply, doesn't make any sense. If you open it up for the purpose of determining if it's what you want and not what he wanted -- he wanted a three phone line-- it's, obviously, only a -- the purpose of this is to accommodate a two phone line. Common sense would tell you you would, then, put it back, even if this Court were to believe it was opened for that purpose. He didn't do that. He put it in his pocket." The trial judge continued: "In addition, this Court notes that the Defendant, as an aside, did state that he had to learn to read and write all over again, which indicates to me he can read and write now." "And right on the back, it indicates it's for two modular telephone line cords and there's a picture showing two cords, so it didn't even have to be opened - 5 - up in order to determine the purpose of State's Exhibit No. 2. "Therefore, this Court does not find the testimony of the Defendant credible whatsoever, and I'm going to go so far as to say this Court is convinced beyond all doubt that the Defendant is guilty of the crime of theft." The defendant admitted on the stand that he did take the phone jack and put it in his pocket. Viewing all the evidence together as a whole, we find that defendant's conviction was not against the manifest weight of the evidence. Accordingly, we overrule his assignment of error and affirm his conviction. Judgment affirmed. - 6 - It is ordered that appellee recover of appellant its 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 conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SARA J. HARPER, J., and *SAUL G. STILLMAN, J., CONCUR. PRESIDING JUDGE ANN McMANAMON *Sitting By Assignment: Judge Saul G. Stillman, Retired, Eighth District Court of Appeals. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .