COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59322 STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : : and -vs- : : OPINION RAYMOND C. WELLMAN : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT NOVEMBER 7, 1991 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. 237558 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones George L. Nyerges Cuyahoga County Prosecutor 803 United Office Building By: David Hildebrandt Cleveland, Ohio 44113 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - ANN McMANAMON, P. J.: Raymond Wellman timely appeals his conviction for one count of theft (R.C. 2913.02) after a bench trial in the common pleas court. Wellman's indictment charged that he stole money from his employer, a vending company. He raises six assignments of error,/1\ which challenge motions overruled by the court, sufficiency of the evidence and the conduct of the trial. A review of the record compels our affirmance. Raymond Wellman was a route driver for Royal Chef, a company which owned and operated vending machines throughout the Cleveland Area. He worked for the company for eight months in various capacities. As a route driver for the two months prior to this incident, his responsibilities included picking up company merchandise at the Royal Chef warehouse at 5:00 a.m. and refilling empty machines along his route. Any cash receipts which he removed from a machine were to be placed in a sack and, upon completion of the route, taken to the warehouse. Donald Gossard, former president of Royal Chef, testified he became suspicious of "unusual shortages" in both cash and merchandise after an inventory of Wellman's truck was completed during February 1989. /1\ See Appendix. - 2 - According to company records, Wellman had a cash shortage of $1,303.20 and a shortage of products valued at $2,412.90 during this period. The products largely missing were canned soda and cigarettes. On the basis of his suspicions, Gossard followed Wellman early in the morning of March 6, 1989. Wellman loaded his truck at 5:00 a.m. and proceeded to Libby's Ivy Inn, a bar on the near west side. Wellman's first stop of the morning was scheduled on the east side. Unknown to Wellman, Gossard parked on the opposite side of the street and watched Wellman unload some cases of canned soda from his truck and bring them into the bar. Gossard returned to Libby's Ivy Inn later that morning and went inside. He noticed the bar merchandised cigarettes by the carton as well as canned drinks and a special St. Patrick's day cookie which happened to be a new brand carried by Royal Chef. Gossard had Kenneth Kissel, another Royal Chef employee, meet him early the next morning to observe Wellman firsthand. Both Gossard and Kissel averred they followed Wellman to Libby's Ivy Inn and observed him removing boxes from the trucks and placing them in a van parked nearby. Armed with this information, Gossard reported Wellman's activities to the Cuyahoga Heights police department. As a result, Patrolman John Reiger set up a surveillance of Wellman the following day. The officer followed Wellman from the Royal Chef warehouse to Libby's Ivy Inn. Again Wellman unloaded cases - 3 - of soda from the rear of the truck and carried them into the bar. Later that morning, after Wellman completed his route, Officer Reiger arrested him. A search of his person revealed three hundred thirty-nine dollars in bills, including forty-four singles. He also had nearly thirty dollars in change, including twenty-three dollars and fifty cents in quarters, four dollars and forty cents in dimes, one dollar and forty cents in nickels and thirty-four pennies. Evidence at trial disclosed that Wellman lived near Libby's Ivy Inn, was a frequent patron there, and knew Libby, the owner. Wellman took the stand and admitted stopping at Libby's to deliver soda and foodstuffs, but claimed he purchased those items with his own money from another vendor as a favor to Libby. He denied taking any merchandise belonging to Royal Chef. As for the cash on his person, Wellman claimed he recently cashed a tax refund check for his son at Libby's, where he received an unusual number of dollar bills. As for the change, which the court found weighed nearly ten pounds, Wellman explained he kept it available for his children and as a convenience for co-workers. Although the trial judge could not determine exactly how much money Wellman had taken, since he had prior convictions for receiving stolen property and uttering, the court found Wellman guilty of theft, a fourth degree felony. - 4 - In defendant's fourth and fifth assignments of error, he disputes the sufficiency and manifest weight of the evidence supporting his conviction. We initially will address these arguments. A challenge to the sufficiency of the evidence requires us to view the record in a light most favorable to the prosecution and determine whether rational minds could have found each material element of an offense was proven beyond a reasonable doubt. Jackson v. Virginia (1979), 433 U.S. 307. Our review of a challenge to the manifest weight of the evidence is broader. State v. Martin (1983), 20 Ohio App. 3d 172. As the Martin court stated: "The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." (citations omitted). Id. at 75. The court in State v. Jenks (1991), 61 Ohio St. 3d 259, 273 however, in dicta applies the same test in reviewing both weight and sufficiency of the evidence challenges. Since this language is only dicta, we will apply the different standards for challenges to manifest weight and sufficiency of the evidence as set forth in Jackson v. Virginia and State v. Martin. We are - 5 - mindful that evaluation of witness credibility primarily lies with the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230. R.C. 2913.02 defines theft and 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; "(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent; "(3) By deception; "*** "(B) Whoever violates this section is guilty of theft. *** [I]f the offender previously has been convicted of a theft offense, a violation of this section is theft, a felony of the fourth degree.***" The record supports defendant's conviction for theft beyond a reasonable doubt. He was observed in an area not part of his route during company time, delivering soda and other boxes from his truck to a non-customer. Company records revealed a substantial shortage of cash and products in Wellman's account and the non-customer was observed selling bulk products of a similar kind at its bar. The testimony we have noted concerning the cash and currency also was compelling for the prosecution. We agree with the trial judge's determination that, when arrested, defendant had at least sixty dollars in cash belonging to his employer. Since Wellman had two previous theft - 6 - convictions, a finding of the theft as a fourth degree felony pursuant to R.C. 2913.02(B) was proper. We hold the state proved each element of R.C. 2913.02 beyond a reasonable doubt and further hold defendant's conviction was not against the manifest weight of the evidence. The fourth and fifth assignments of error are not well taken. In his third assignment, Wellman claims the court erred in refusing his request for a grand jury transcript. In State v. Laskey (1970), 21 Ohio St. 187, the Supreme Court set forth the standard in considering such a request. "*** Generally, proceedings before a grand jury are secret and an accused is not entitled to inspect grand jury minutes before trial [nor at trial] ***. This rule is relaxed only when the ends of justice require it, such as when the defense shows that a particularized need exists for the minutes which outweighs the policy of secrecy." Id. at 191. In State v. Greer (1981), 66 Ohio St. 2d 139, the court expounded this rule, stating: "Whether particularized need for disclosure of grand jury testimony is shown is a question of fact; but, generally, it is shown where from a consideration of all the surrounding circumstances it is probable that the failure to disclose the testimony will deprive the defendant of a fair adjudication of the allegations placed in issue by the witness' trial testimony." Id. at paragraph three of syllabus. Defendant sought the grand jury testimony of Donald Gossard, former president of Royal Chef. During pre-trial discussions, the - 7 - state assured the court and counsel that Gossard did not testify at the grand jury. The trial judge then stated: "But, in light of the fact that it has been indicated to the Court that no witness who testified at the Grand Jury will testify at the trial, I cannot see the necessity for having a Grand Jury transcript for the purpose of this trial." Since Gossard did not testify before the grand jury, defendant's request was moot. Accordingly, this assignment of error is overruled. In his second assignment, Wellman contends the court improperly permitted the prosecutor to ask leading questions. Defendant lists six instances where the court permitted the prosecutor to ask a leading question over his objection. Four of the questions did not elicit new testimony from the witness, but only re-stated or highlighted a particular point from the witnesses' prior testimony. For example, the prosecutor asked: "Q. And you previously testified that all of his routes were on the east side? "MR. NYERGES: I object to framing of answers. "THE COURT: Overruled. Go ahead." "*** and "Q. Mr. Gossard, now, is this the 6th or the 7th? "MR. NYERGES: I object to the leading nature, you Honor. He's already answered that question. - 8 - "THE COURT: He can tell. You can answer the question." Moreover, we find the other instances of leading questions resulted in harmless error. The prosecutor queried: "Q. Now, I'm going to take you to the first week of March of 1989, probably approximately the 6th of March. Did you see anything unusual that morning on your way to work? "A. Yes, I -- "MR. NYERGES: Object. "THE COURT: Overruled. Go ahead. "*** and "Q. Did you have an opportunity to drive by the Ivy Inn that day? "A. Yes, I did. "MR. NYERGES: I'm going to object to the leading nature of the questions. "THE COURT: Overruled. He can go ahead." These questions did not substantively add to the witness' testimony since in both instances the witness testified in depth as to these matters later on. Thus, no resulting prejudice to defendant occurred. It is within the court's discretion to control the interrogation of witnesses. See Evid. R. 611(A). Although the prosecutor should refrain from asking such questions, we do not find the court abused its discretion in permitting them. This assignment of error is overruled. - 9 - Since defendant's first and sixth assignments of error are only listed in the brief and not separately argued they do not conform with App. R. 12 (A) which states, "[e]rrors not specifically pointed out in the record and separately argued by brief may be disregarded." See Contel Credit Corporation v. Rosenblatt (1988), 43 Ohio App. 3d 113. The first and sixth assignments of error are overruled and the judgment of the trial court is affirmed. Judgment affirmed. - 10 - 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. PATTON, J., BLACKMON, J., CONCUR. PRESIDING JUDGE ANN McMANAMON 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. - 11 - APPENDIX Appellant's assignments of error are: I "The trial court erred to the prejudice of the defendant- appellant in denying his following motions: "(1) To suppress eyewitness identification testimony; "(2) For all Bill of particulars; "(3) To suppress; "(4) For production of truck inventory and merchandise lists. "(5) For dismissal; all despite the unreliability of testimony due to financial interestedness of the witnesses, and lack by the defendant of an attorney at the time of his arrest on March 9, 1989, when he returned from his route. The defendant never had any prior notice of any financial problems or any alleged wrongdoing, all to the great prejudice of the defendant." II "The trial court erred to the prejudice of the defendant appellant in denying his objections to numerous leading questions on the part of the prosecutor. The prosecutor never was sworn to testify." III "The trial court erred to the prejudice of the defendant- appellant in refusing to permit discovery of prior testimony by the bankrupt witness Donald Gossard before the grand jury, inconsistent with his testimony to the trial court, all to the great prejudice of the defendant." IV "The trial court erred to the prejudice of the defendant- appellant in its opinion and verdict by inconsistently ruling that there was not sufficient evidence to convict the defendant- appellant, and yet guessing that said defendant-appellant embezzled at least sixty dollars of value on March 9, 1989, all to the great prejudice of the defendant-appellant." - 12 - V "The trial court erred to the prejudice of the defendant- appellant in finding, contrary to the great weight of the evidence, that the defendant-appellant was guilty of embezzling a quantity of money unknown to the trial court, which said trial court guessed to be at least sixty dollars." VI "The trial court erred to the prejudice of the defendant- appellant in failing to grant to the defendant-appellant a fair and impartial hearing, without any preconceived notions as to the defendant-appellant's guilt, all to the great prejudice of the defendant-appellant." .