COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61126 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION TAMARA RUIZ : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 15, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. 252410. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Frank C. Gasper Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Daniel L. Kalk, Esq. Valore, Moss and Kalk 6116 West Creek Road Independence, Ohio 44131 - 2 - SWEENEY, JAMES D., J.: Defendant-appellant Tamara Ruiz, after a trial to the bench, was convicted of theft in violation of R.C. 2913.02. A one-year term of incarceration was imposed. The sentence was suspended, and appellant was placed on probation for one and one-half years and ordered to pay restitution. The State presented testimony from two witnesses, Ms. Catherine Ademescu and Ms. Gayle Wagner, both of whom are employees of Brooks Fashion Corporation. Appellant was employed by a division of this corporation, T. Edwards, as a manager in training at the Galleria store. Ms. Ademescu testified that as a district manager she made monthly unannounced visits to the Galleria store, and that it was her responsibility to perform routine audits on the store. To perform an audit, the daily journal tapes from the terminal are reviewed. All transactions are recorded through the terminal, such as sales, voids, returns, gift certificates or lay-away items. (T. 23.) All-purpose forms, or APF's, hold the information on return and void transactions (T. 23, 24). There are three copies of each APF. On each APF is a code number which designates which individual is performing the transaction, and appellant's code number was 23. The audit of March, 1990, revealed returns which were effected against company policy. Ms. Ademescu testified that she found returns without receipts, returns without witnesses, - 3 - returns without reasons, and returns which did not have the customer's signature. (T. 34.) There was also missing paperwork. Ms. Ademescu explained that every return must be witnessed by a management person and another employee, and both must sign the APF form. To investigate these irregular transactions, Ms. Ademescu tried to contact the customers on the APF forms. She called the telephone numbers listed, and when there was none, called directory assistance. She was unable to locate any of the customers on the irregular transactions. Ms. Ademescu estimated she tried to verify fifteen transactions. On each of these transactions the number 23 was the entered code number, and each form Ms. Ademescu identified the signature as that of the appellant (T. 43.). The witness signatures were made by various employees. All of the irregular transactions unearthed by Ms. Ademescu were signed by the appellant. (T. 47.) After concluding her investigation, Ms. Ademescu contacted the security department in New York and spoke with Ms. Gayle Wagner. Ms. Wagner came to Cleveland and conducted her own independent audit. As a result, Ms. Wagner confronted the appellant with the results of the audit. Ms. Ademescu testified that she was present in the front of the store while Ms. Wagner was interviewing the appellant in the back room, and was asked by Ms. Wagner to join them as they went through the documents which revealed the discrepancies. Ms. Ademescu identified appellant's - 4 - confession, State's Exhibit 12, as the document she witnessed appellant initial and sign. When asked to describe the conditions and circumstances of the interview as she entered the room, Ms. Ademescu testified: A. When I came into the room, Tammy was sitting with her back to me and was crying. And when I walked into the room, she looked up and said, "I'm sorry I let you down." MR. KALK: Objection. THE COURT: Overruled. Q. And would you describe to the Court, what was the tone of the interview from the time on that you entered? A. We made sure Tammy was comfortable. She wanted a pop, Gayle got her a pop. We let her smoke a cigarette. Let her be at ease, I guess you would say, as much as could be at that point. Q. To your knowledge, were any threats or promises made in your presence? A. None whatsoever. Q. While you were in the room? A. No. (T. 58-59.) On cross-examination, Ms. Ademescu testified that she had not personally seen appellant fill out the APF forms, did not personally see whether or not a customer was present, and was not present to actually see where the refunded money went. Ms. Ademescu stated that her knowledge was derived from her investigation, and the recognition of appellant's signature on the various forms. She also stated anyone who knew appellant's - 5 - code number could have used it; that she never asked appellant whether or not she signed the APF forms; that she was not certain exactly which customers she tried to locate; and that the only method used to locate customers was a call to directory assistance. She testified that each form was countersigned by a witness to show the returned merchandise was actually received in stock; that some of the employees who countersigned were never questioned; that the ones who were questioned simply acknowledged signing the form but said they frequently sign documents without seeing a customer or the merchandise. Ms. Ademescu further testified that the appellant had contacted her with complaints about the manager and co-manager of the store. The State called Ms. Gayle Wagner. As a security officer, she performs inventory investigations and routine audits. Ms. Wagner testified that she was requested to investigate problems in the Galleria store. Ms. Wagner testified that she performed her own independent audit and found missing APF's, APF's without a second signature, and one APF without a customer signature (T. 10.); that she tried to locate customers through directory assistance; and that she was unable to contact any of the customers found on the suspicious transactions. After informing her superior of her findings, she interviewed the appellant. Ms. Wagner stated that after reviewing all of the paperwork with the appellant, she gave appellant an opportunity to write a - 6 - written statement. (T. 109.) Ms. Wagner indicated that her entire interview with the appellant lasted twenty to thirty minutes (T. 110.); and that appellant was not reluctant to making a written statement; and that after appellant actually began writing, she left the room for four or five minutes; that she returned with Ms. Ademescu; and the three of them went through the paperwork. Ms. Wagner testified that when appellant was asked about the missing paperwork, she responded that she had thrown it out because she was afraid. (T. 116.) The appellant proceeded to initial the documents on the irregular transactions she performed, and then wrote down the date, the transaction number, and the amount of each of these transactions. Ms. Wagner stated there were other questionable transactions, but the only ones included on the list were ones the appellant admitted. (T. 121.) Ms. Wagner testified that when appellant completed her written statement she asked appellant to re-read it, and then initialed her errors. Upon completion, appellant was asked if she had any further deletions or additions, and when she responded that she did not, the document was signed and dated. The police were called, but made no arrest at the scene. On cross-examination, Ms. Wagner also testified that she had not personally seen appellant take any money, was not present to see whether or not a customer was present or whether merchandise was returned. Ms. Wagner could not identify appellant's - 7 - signature on the APF forms, and as she was not in the store at the time of signature, she has no knowledge of whose signature is on them. Ms. Wagner questioned only one employee, the store manager, who countersigned the paperwork verifying the merchandise was returned by a customer on one transaction. The manager could not recall the specific transaction, and stated that she frequently signed documents without seeing the merchandise or the customer. Ms. Wagner admitted that her investigation could not disprove or prove whether merchandise was returned. (T. 145.) Appellant testified on her own behalf. She stated that she was a manager in training at the T. Edwards store located in the Galleria; that the signatures on the APF forms in State's Exhibits 3, 4, 6 and 7 were not hers; and that she had no knowledge of those transactions. She also testified that the customers in Exhibits 10 and 11 were known to her; that the actual merchandise was returned and the refund given to the customer; and that these two transactions are the only ones listed in the confession which she performed. Ms. Ruiz testified that she never filled out a false APF form; never created false voids; never gave a refund without receiving the merchandise. Ms. Ruiz stated that she had contacted Ms. Ademescu on several occasions to discuss irregularities and thefts in the store by the manager and a co-manager; that these employees found out about her complaints and retaliated by cutting her working - 8 - hours and giving her less desirable hours to work. Appellant testified that the code numbers assigned to each employee were taped to the register; that other employees used her number; that she found forms with her number and name on them that she had not processed; that she had informed Ms. Ademescu, but no ultimate changes resulted. In describing the circumstances surrounding her confession, appellant stated that the back office of the store is a four foot by five foot room with no windows and one door. Ms. Ruiz identified Exhibit 12 as her confession, but stated that Ms. Wagner helped her "through it word by word" (T. 181); that during the interview Ms. Wagner told her that as all of the evidence pointed towards her, she should confess and make it easier on everyone; that she was not shown the APF forms; that Ms. Wagner knew she had a small son at a babysitter's; and that she was threatened with prosecution and jail. Appellant specifically testified: A. She had told me at the time, your Honor that if I wasn't able to pick up my son and that I was in jail, the juvenile authorities would be contacted, that my son would be take (sic) from my babysitter and put in a foster home, and that I would have to petition the Court that I was worthy to get my son back. So at that time I said, "Okay, what do I need to do." Because when my son is being put on the line like that, I felt I had no choice, and I know it was a stupid mistake. But at the time I felt I had no choice. I did not want my son put in a foster home, and I did not want him taken away from me. - 9 - Q. So what did you do? A. So I told her I would confess, say whatever she wanted me to, which she told me that if I did confess to it, that I probably wold be demoted. I wouldn't get promoted to a manager and that, everything would be cleared up after a little while, and that was it. (T. 184.) Appellant emphatically testified that her confession was not voluntary. On cross-examination, appellant testified the signature on some of the forms in her personnel file were not hers; that the initials placed on the APF forms themselves were not hers; that the initials on the confession were not hers; and that she was never given the confession to re-read or correct. Appellant sets forth three assignments of error. Appellant's first assignment of error. I THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING THE ALLEGED WRITTEN CONFESSION OF THE DEFENDANT AND ANY TESTIMONY OF THE CONTENTS OF THE ALLEGED WRITTEN CONFESSION IN THE ABSENCE OF THE STATE FIRST ESTABLISHING THE CORPUS DELECTI (SIC) OF THE CRIME BY INDEPENDENT EVIDENCE. Before a confession is admissible, there must be some evidence in addition to the confession tending to establish the corpus delicti of the crime. The corpus delicti of a crime is defined as the body or substance of the crime, and contains two elements. The first element is the act itself, and the second is - 10 - the criminal agency of the act. State v. Edwards (1976), 49 Ohio St.2d 31. In State v. Van Hook (1988), 39 Ohio St.3d 256, the court stated: The corpus delicti of a crime consists of two elements: the act and the criminal agency of the act. State v. Maranda (1916), 94 Ohio St. 364, 114 N.E.1038. Before an out-of-court confession will be admitted, the corpus delicti must be established by evidence outside the confession. However, "[i]t is sufficient if there is some evidence outside of the confession that tends to prove some material element of the crime charged." (Emphasis sic.) Maranda, supra, at paragraph two of the syllabus. * * * * We hasten to point out, however, that the standard of proof is not a demanding one. The prosecution need only adduce "some proof * * * tending to prove [the act and its agency]," but not necessarily such evidence as would rise to the level of a prima facie case. (Emphasis added in part.) Maranda, supra, at 370-371, 114 N.E. at 1040. Also, as previously mentioned, Ohio does not require evidence upon all elements of the crime but only "some material element." Maranda, supra, at paragraph two of the syllabus. Turning to the case sub judice, the prosecution submitted evidence that there were transactions which could not be substantiated. On each of these transactions, appellant's employee code number and signature appeared. Ms. Ademescu testified that sufficient evidence existed to precipitate an audit, and when the audit was unsatisfactory, a second independent audit was performed by the security department. Both - 11 - audits arrived at the same conclusion. This testimony constituted some evidence, outside of the confession, and the prosecution sufficiently established the corpus delicti of the crime. Appellant's first assignment of error is overruled. Appellant's second assignment of error. II THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING THE ALLEGED WRITTEN CONFESSION OF THE DEFENDANT AND ANY TESTIMONY OF THE CONTENTS OF THE ALLEGED WRITTEN CONFESSION DUE TO THE FACT THAT THE CONFESSION WAS NOT MADE VOLUNTARILY BY THE DEFENDANT AND WAS IN FACT OBTAINED THROUGH COERCION, INTIMIDATION AND FALSE REPRESENTATIONS. The prosecution bears the burden of proving that a confession was voluntarily given. In State v. Golphin (January 24, 1991), Cuyahoga App. No. 57870, unreported, this court held: In resolving the issue of voluntariness of a confession or statement, the court must consider the totality of the circumstances. State v. Edwards (1976), 49 Ohio St.2d 31, 40-41. "When statements made by an accused are challenged as being the product of coercion, the state must prove the voluntariness of those statements by a preponderance of the evidence." See State v. Samuel Simmons (Jan. 18, 1990), Cuyahoga App. No. 56253, unreported, citing Colorado v. Connelly (1986), 107 S.Ct. 515; State v. Garcia (1986), 32 Ohio App.3d 38, paragraph two of the syllabus. - 12 - Various circumstances which may be considered when determining the voluntariness of a statement were set forth in Cleveland Heights v. Stross (1983), 10 Ohio App.3d 246. This court held: In determining whether a confession was made voluntarily, the court is to consider the totality of the circumstances surrounding the confession. State v. Barker (1978), 53 Ohio St.2d 135 [7 O.O.3d 213], certiorari denied (1978), 439 U.S. 913. Physical mistreatment is not the only circumstance to be considered; the length of detention as well as isolation from family and counsel are also factors. Reck v. Pate (1961), 367 U.S. 433, at 441-444. Refusing to allow the accused to make telephone calls to family or counsel is a factor to be considered. Haynes v. Washington (1963), 373 U.S. 503, at 513-514. The court must also consider the age of the accused, Haley v. Ohio (1948), 332 U.S. 596, as well as the psychological impact of any coercive influences on the accused's ability to make a free choice. State v. Cowans (1967), 10 Ohio St.2d 96, at 101 [39 O.O.2d 97]. Other circumstances to be considered include the prior criminal experience of the accused, the existence of physical deprivation, and the - 13 - existence of threat or inducement. State v. Edwards (1976), 49 Ohio St.2d 31, at 40-41 [3 O.O.3d 18]. In the case sub judice, the appellant was detained for a very short period of time, twenty to thirty minutes. The record does not indicate any deprivation of food, drink, restroom facilities, or contact with family members. Although the appellant testified that her confession was coerced, the testimony of both Ms. Ademescu and Ms. Wagner indicate otherwise. Ms. Ademescu testified that appellant was given a soft drink, and was allowed to smoke; that she was allowed to be at her ease as much as possible; and that no threats or promises were made. Ms. Wagner testified that appellant was not reluctant to make a written statement; that she had an opportunity to review the statement; and that she actually left the room for several minutes while appellant was writing. Given the surrounding circumstances in evidence on these particular facts, the prosecution met its burden of showing, by a preponderance of the evidence, that the confession was voluntary. Appellant's second assignment of error is overruled. Appellant's third assignment of error. III THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING THE DEFENDANT GUILTY DUE TO THE FACT THAT THE STATE FAILED TO PROVE ITS CASE AGAINST THE DEFENDANT BEYOND A REASONABLE - 14 - DOUBT AND THE DECISION OF THE COURT IS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE. The test for reviewing sufficiency of the evidence is set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, as follows: Pursuant to Crim. R. 29(A), a court shall not order 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 proved beyond a reasonable doubt. The scope of review to be used where a party alleges the judgment of the trial court is against the manifest weight of the evidence was recently stated by this court in State v. Scott (Mar. 23, 1989), Cuyahoga App. No. 55114, unreported, at p. 7-8: The primary task of weighing evidence and judging the credibility of witnesses is left to the trier of fact, in this case the jury. State v. DeHass (1967), 10 Ohio St.2d 230, at syllabus number 1. Therefore, a reversal of a judgment based on manifest weight of the evidence will only be done in exceptional cases. State v. Woods (1985), 25 Ohio App.3d 35. A reviewing court will not reverse where there is substantial, competent and credible evidence supporting the criminal conviction. State v. Eley (1978), 56 Ohio St.2d 169, syllabus. The appellant's signed confession specifically states that she made "false refunds," and lists the date of the transactions, - 15 - the transaction number, and the dollar amount of each transaction. This competent, credible evidence, properly admitted as set forth in the prior assignments of error, was sufficient to sustain a conviction. Appellant's third assignment of error is overruled. Judgment affirmed. - 16 - 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. JOSEPH J. NAHRA, P.J., and JOHN F. CORRIGAN, J., CONCUR. JAMES D. SWEENEY 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. .