COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59529 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION THOMAS SNYDER : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : DECEMBER 12, 1991 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-245568 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS-JONES JAMES R. WILLIS, ESQ. CUYAHOGA COUNTY PROSECUTOR Bond Court Building, Suite 610 THOMAS E. CONWAY, ASST. 1300 East Ninth Street Justice Center, 8th Floor Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 - 2 - J.F. CORRIGAN, J., Appellant, Thomas Snyder, appeals from his convictions for grand theft and possession of criminal tools. For the reasons set forth below, we affirm. I. Appellant wad indicted by a Cuyahoga County Grand Jury on October 26, 1989. Count one of the indictment charged appellant with grand theft in violation of R.C. 2913.02. Counts two through five charged appellant with possession of criminal tools on December 14, 22, and 27, 1988 and January 12, 1989, all in violation of R.C. 2923.24. Appellant pled not guilty to these charges and filed a notice of proof of alibi with the trial court. The matter proceeded to jury trial on January 24, 1990. For its case, the state presented the testimony of: Kevin Perry, a co-worker of appellant at the Cleveland Electric Illumi- nating Company (CEI); William Wiers and Ronald Horner, witnesses to several alleged thefts; Lawrence Goodwin and David Koski of the Lakeside Scrap Metal Company; Daniel MacDowell, supervisor of CEI's Miles Road warehouse; and Thomas Bader, a CEI security adviser. The state's first witness, Kevin Perry, testified that he and appellant conspired to steal copper wire from their employer, CEI, on two or three occasions after November of 1988, and that he stole copper wire on two or three other occasions and pled guilty in court to theft charges. Perry's testimony continued - 3 - that on at least two occasions appellant drove his black van to the scrap yard to sell the stolen copper wire and that he used appellant's van once for the same purpose. Finally, Perry testified that each time he and appellant stole copper wire from CEI they stole two spools, and that appellant was in charge of splitting up the cash received from each sale. The state's second witness, William Wiers, testified that he and his crew were subcontractors inspecting two petroleum lines in the yard at CEI's Miles Road warehouse in January of 1989. Wiers testified that on several occasions he observed a CEI employee drive a forklift to the yard fence, dump spools of copper wire over the fence, and observed others load the copper wire into a black van, or sometimes into a white or brown truck. Wiers was shown a picture of appellant's van at trial and testi- fied that it "could very well be the van" he saw during some of the thefts. The state's third witness, Ronald Horner, testified that he was working for William Wiers in the CEI yard in January of 1989, and that he witnessed the theft of copper wire from CEI three times. Horner's testimony continued that on two occasions, while he was standing approximately two hundred yards away, he observed men loading copper wire into a customized van. Horner first identified the van as "dark green" but someone in the yard named "Bill" told him the van was actually black. At trial Horner identified pictures of appellant's van as the one he observed by - 4 - the CEI fence, stating that he remembered it because of its custom windows and wheels. Horner also identified a person he felt was the fork lift operator, but was told that he pointed out the wrong person. Finally, Horner testified that on one occasion he observed a white pickup truck performing the same task that the black van had previously performed. The state's fourth witness, Lawrence Goodwin, testified that he is the manager of the Lakeside Scrap Metal Company. Goodwin identified records kept by Lakeside which indicated that on December 14, 22, and 27, 1988 and January 12, 1989 someone driving a black custom van, license plate number E244AA, sold large quantities of high quality copper wire to Lakeside. Goodwin identified appellant as the driver of that van for the December 27 and January 12 sales. The state's fifth witness, David Koski, testified that he is an employee of Lakeside and identified appellant as the driver of the black custom van, license plate number E244AA, on December 14th and 22nd. The state's sixth witness, Daniel MacDowell, testified that he is the supervisor at CEI's Miles Road warehouse. MacDowell testified that he conducted an inventory in January of 1989 and determined that the warehouse was missing $33,900 worth of copper wire and that each spool of copper wire is worth approximately $2,500. - 5 - The state's final witness, Thomas Bader, testified that he is a security advisor for CEI and investigated this matter. On February 2, 1989, Bader apprehended Perry and another gentleman as they attempted to steal copper wire from CEI. Bader's in- vestigation of the February 2nd incident led him to Lakeside Scrap Metal Co. At the close of the state's case, appellant moved for acquittal pursuant to Crim. R. 29. That motion was denied. For his case, appellant presented the testimony of: Alan Youngman, president of Lakeside; Otis Redding, a neighbor; Patricia Murchison, appellant's sister; Thomas Reznik, a co- worker; Raymond Horgas, a co-worker; and appellant. Alan Youngman identified various invoice books which indi- cated that Lakeside has received other large shipments of scrap metals. Youngman explained the invoice procedure used by Lakeside. Otis Redding testified that he is appellant's landlord and that appellant usually traveled to Michigan every year around December 18 and stayed for a week. Redding specifically remem- bered that appellant made this trip in 1988. Patricia Murchison, appellant's sister, testified that she lives in Lansing, Michigan and that appellant visited her from December 22 to 28, 1988. Thomas Reznik, a co-worker at CEI, testified that he had no knowledge of appellant's stealing copper wire from CEI. Reznik - 6 - further testified that appellant usually drives a small fork lift, not the large one used in the February 2nd theft. Ray Horgas, another co-worker, testified that appellant was a good worker. Appellant took the stand in his own defense and denied any involvement in the series of thefts from CEI. Appellant demon- strated through CEI records that he was on vacation from December 16 through 29, 1988. Appellant further testified that he loaned his black van to Perry in early December, 1988, so that Perry could move some furniture. Finally, appellant identified the black custom van, license plate number E244AA, as his, but testified that the license plates expired December 18, 1988, and were not renewed because appellant owns another van. At the close of the case, appellant once again moved for acquittal pursuant to Crim. R. 29. That motion was denied. The matter was presented to the jury, who found appellant guilty on three counts: count one, grand theft; count two, possession of criminal tools on December 14, 1988; and count five, possession of criminal tools on January 12, 1989. This appeal timely follows. II. For his first assignment of error, appellant contends that the jury verdict was against the manifest weight of the evidence. The primary task of weighing the evidence and judging the credibility of witnesses is left for the trier of fact. State v. - 7 - DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. Thus, a reviewing court will reverse on the weight of the evi- dence only in an exceptional case. State v. Woods (1985), 25 Ohio App. 3d 35, 38. A reviewing court will not reverse where there is substantial, competent, and credible evidence supporting the conviction beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169, syllabus. Appellant was found guilty of grand theft under count one of the indictment. Grand theft is defined by R.C. 2913.02 as fol- lows: "(A) No person, with purpose to deprive the owner of property or services, shall knowing- ly obtain or exert control over either the property or services in any of the following ways: "*** "(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent; "(B) *** If the value of the property or services stolen is five thousand dollars or more and is less than one hundred thousand dollars, *** a violation of this section is grand theft a felony of the third degree." Appellant was further found guilty of possession of criminal tools under counts two and five of the indictment. Possession of criminal tools is defined in R.C. 2923.24 as follows: "(A) No person shall possess or have under his control any substance, device, instru- ment, or article, with purpose to use it criminally." - 8 - Appellant's argument is based upon a belief that the testi- mony presented by the state was inconsistent with that provided by the defendant. The evidence presented by the state, particu- larly the testimony of Kevin Perry, Ronald Horner, Lawrence Goodwin, and David Koski, together with the Lakeside invoices, indicates that appellant was stealing copper wire from CEI and selling it to Lakeside. Testimony contradicting this finding was offered by Patricia Murchison and appellant. The fact that the jury acquitted appellant of charges of possession of criminal tools for December 22 and 27, however, does not necessarily indicate a lack of credibility on the part of the state's witnesses. These findings merely demonstrate that the state did not meet the standard of guilty "beyond a reasonable doubt" as to counts three and four. Therefore, a finding of guilty of posses- sion of criminal tools on December 14 and January 12 is not against the manifest weight of the evidence simply because con- tradictory evidence challenging key state witnesses was offered by the defense. We find that substantial, competent and credible evidence was presented which supports the verdict of guilty beyond a reasonable doubt on counts one, two, and five in the indictment. Therefore, we find that appellant's first assignment of error is without merit. - 9 - III For his second assignment of error, appellant contends that the trial court erred in denying the motion for acquittal he made after both parties had rested. A motion for judgment of acquittal is governed by Crim. R. 29(A), which provides: "The court on motions of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case." A court shall not grant an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proven beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St. 2d 261, syllabus. Further, the evidence is to be viewed in a light most favorable to the government. Cin- cinnati v. Robben (1982), 8 Ohio App. 3d 203, 204. At trial the state presented testimony and evidence that appellant dumped copper wire over the fence in the CEI yard on several occasions and that on several occasions appellant trans- ported stolen copper wire to Lakeside using his black van. Appellant presented testimony and evidence in defense of these allegations. However, at no time was the state's evidence so - 10 - insufficient as to warrant judgment of acquittal under Crim. R. 29. This matter was properly presented to the jury where, as here, reasonable minds, viewing the evidence most strongly in favor of the prosecution, could have reached different conclu- sions as to appellant's guilt or innocence under each separate count in the indictment. Therefore, we find that appellant's second assignment of error is without merit. Judgment affirmed. - 11 - 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 Court of Common Pleas 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. DAVID T. MATIA, P.J., and JAMES D. SWEENEY, J., CONCUR. JUDGE JOHN F. CORRIGAN N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .