COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60419 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION LEROY GLASS : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: MAY 14, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-252018 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. PHYLLIS BROOKS, ESQ. Cuyahoga County Prosecutor 75 Public Square THOMAS CONWAY, ESQ. Suite 1210 Assistant Prosecuting Attorney Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - HARPER, J.: Defendant-appellant, Leroy Glass, was indicted by the Cuyahoga County Grand Jury for robbery in violation of R.C. 2911.02 with aggravated felony and violence specifications. Appellant pled not guilty at his arraignment on June 22, 1990. Trial by jury commenced on July 31, 1990. The jury subsequently found appellant not guilty of robbery as charged in the indictment but found him guilty of theft in violation of R.C. 2913.02, a lesser included offense. The trial court sentenced appellant to a term of three (3) to ten (10) years. Appellant now appeals his conviction and sentence. A careful review of the record compels affirmance. On April 13, 1990, at approximately 2:15 p.m., Barbara McMahon, an intake docket assistant at Juvenile Court, left her second floor office located at 2163 East 22nd Street to get some water to water her plants. The office which she shared with one other individual was then empty. Ms. McMahon's purse which carried her wallet was left in one of her desk drawers. Ms. McMahon heard a drawer slam upon her approach to the office approximately 30 seconds later. She then observed appellant who was not a court employee standing behind her desk. Appellant quickly turned his back to her when he saw her, "made a motion as to put something under his jacket", and turned back around. After failing to respond to Ms. McMahon's questions, appellant approached her while she stood in the doorway and then tried to walk past her. Ms. McMahon fell to the floor along with appellant's coat which was somehow removed from his body after a - 3 - brief skirmish with appellant. Ms. McMahon called out to a co- 1/ worker, Gregory Weimer, when appellant fled down the hallway. Mr. Weimer rushed out of his office and chased the appellant after hearing Ms. McMahon's cries for help. He observed her getting up from her knees and the appellant going through the door at the end of the hallway. Appellant stopped at Mr. Weimer's request. Mark Armbruster, a county security guard assigned to juvenile court, also heard the commotion on the second floor from his station in the main floor lobby. He observed the appellant come through a set of fire doors and then stop as Mr. Armbruster climbed the stairs to the second floor. Ms. McMahon returned to her office after the appellant was detained by Mr. Armbruster. She checked her purse which was still in her desk drawer; her wallet was missing. Ms. McMahon later discovered her wallet under another desk located right by the office door. Appellant's sole assignment of error provides: "I. THE VERDICT WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE." An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Jenks 1/ April 13, 1990 was Good Friday. Therefore, Ms. McMahon and Mr. Weimer were part of a skeleton staff that day. - 4 - (1991), 61 Ohio St. 3d 259, paragraph two of the syllabus. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Id. The essential elements of the offense of theft are as follows: "(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; "(4) By threat." R.C. 2913.02. An essential element of the offense of theft is to knowingly obtain or exert control over property. Appellant herein argues that only circumstantial evidence was offered as proof that he knowingly obtained or exerted control over Ms. McMahon's wallet since no evidence demonstrated how her wallet moved from the desk drawer to the floor under another desk. Moreover, appellant argues that the circumstantial evidence was not consistent only with the theory of guilt. Appellant's argument is premised on the assertion in State v. Kulig (1974), 37 Ohio St. 2d 257, that if a conviction is - 5 - based upon circumstantial evidence, that evidence must be irreconcilable with any reasonable theory of innocence. The Ohio Supreme Court in Jenks, supra, overturned the rule in Kulig. The Jenks court expressly stated that: "Circumstantial evidence and direct evidence inherently possess the same probative value. In some instances certain facts can only be established by circumstantial evidence. Hence, we can discern no reason to continue the requirement that circumstantial evidence must be irreconcilable with any reasonable theory of an accused's innocence in order to support a finding of guilt.***" Jenks, supra, 272. The record in the case sub judice reveals evidence which, when viewed in a light most favorable to the prosecution, would allow any rational trier of fact to find all the essential elements of theft beyond a reasonable doubt. Ms. McMahon's purse and wallet were secured in her desk drawer. She left her empty office to get some water. Ms. McMahon heard a drawer slam and then found appellant standing behind her desk upon her return. The appellant swung around, with his back facing Ms. McMahon, moved as if he were putting something under his coat, turned back around and then tried to leave the office. After a brief physical encounter with Ms. McMahon, appellant took off down the hall. Ms. McMahon checked her purse and discovered that her wallet was missing. The wallet was discovered under a desk near the door which was used by appellant to leave the office and where appellant and Ms. McMahon struggled with each other. Contrary to appellant's assertion, "[t]he only link between the - 6 - appellant and the wallet" was not "the appellant's mere presence in the room where the wallet was kept." Appellant's conviction is thus supported by sufficient evidence. Appellant's assignment of error is overruled. Judgment affirmed. - 7 - 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. DYKE, P.J., and ANN McMANAMON, J., CONCUR. SARA J. HARPER JUDGE 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. .