COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68645 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION HENRY WHITE : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : DEC. 7, 1995 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 287861 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones, Esq. David L. Doughten, Esq. Cuyahoga County Prosecutor 4403 St. Clair Avenue By: Diane Smilanick, Esq. Cleveland, Ohio 44103-1125 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- HARPER, P.J.: Defendant-appellant, Henry White, was assigned to work as a security guard for A & W Foods ("A & W") located at 4900 Crayton Road, Cleveland, Ohio by his employer, Security Systems, Inc. He and Stanley Powell, an A & W truck driver, were responsible for counting the money which was collected from Powell's deliveries on August 29, 1992, and placing the money into an A & W safe. A cashier for A & W, Jenny Massimiani, discovered on August 31, 1992 that $2,249.17 was missing from the cash envelope placed into the safe by appellant and Powell on August 29, 1992. A Cuyahoga County Grand Jury indicted appellant for one count of theft, in violation of R.C. 2913.02, in connection with the missing funds. Appellant was convicted as charged following a jury trial in the Court of Common Pleas of Cuyahoga County. The trial court, on March 17, 1993, sentenced appellant to a one-year term of imprisonment. The court suspended the term, placed him on a one-year probation, and ordered him to reimburse A & W in the amount of $2,249.17. Appellant now appeals from his conviction and submits that it is against the manifest weight of the evidence, or, in the alternative, he is entitled to a new trial based upon the state's violation of Crim.R. 16. A careful review of the record compels affirmance. I. Thomas Kennedy, A & W's Chief Financial Officer, explained to the jury at appellant's trial how deliveries are made and how funds -3- are received for the deliveries. A & W terminated its receipt of customer orders at 6:00 p.m. every business day for the following day's deliveries. The computer then generated order tickets for dock personnel to "pick and stage," i.e., select a customer's item and write the item's weight on a "pink ticket." The night billing office next invoiced the customer by ensuring that the weights listed on the pink ticket coincided with the weights for which it charged the customer. Customers orders were loaded onto delivery trucks starting at approximately 8:00 p.m. on the night before delivery. The delivery trucks left A & W's premises as early as 4:00 a.m., depending on the location of the customer. Local deliveries, however, usually commenced between 6:30 and 8:00 a.m. After arriving at work, a driver received the invoice and a copy of the "runner" or route for the day. The runner also provided the driver with information regarding a particular customer's method of payment, either C.O.D. cash, C.O.D. check, or credit. The driver provided the customer with a copy of the invoice upon delivery after indicating thereon the method of payment; the driver also recorded the method of payment on the runner. The driver returned to the guard shack at A & W after all deliveries, with the invoices and the monies collected from the customers. The driver and the security guard on duty then counted the cash. If they were both in agreement, the driver and security guard signed off on the driver's check-in slip which specified the -4- amount of cash received on deliveries that day, as well as the number of checks. The money was then deposited into the company's safe through a slot located inside the guard shack. According to Kennedy, once the cash envelope was placed in the slot, it was not retrievable through the slot, or even while in the guard shack. Rather, the cash envelope slid to the safe which was located inside the main office building. An A & W cashier, either Jenny Massimiani or Donna Steward, arrived at the office between 5:00 and 5:30 a.m. and used a key to enter the closet which housed the safe. A second key and the combination to the safe were needed to open it, at which time Massimiani or Steward balanced the previous day's cash receipts. The only other person who had the necessary keys and combination to the safe out of two-hundred seventy-five other employees was Kennedy. A & W generally closed its main office building and adjacent building every Saturday at 3:00 p.m., and re-opened them at 2:00 p.m. on Sunday. The guard shack, however, was manned twenty-four hours a day, seven days a week. With regard to the incident which led to appellant's indictment and subsequent conviction, Kennedy testified that he left the premises of A & W at about 3:00 p.m. on August 29, 1992, a Saturday, returning only on the morning of Monday, August 31, 1992. Kennedy testified further that on August 31, 1992, he learned of a $2,249.17 shortage in Powell's cash envelope for deliveries made on August 29, 1992. Powell's check-in slip for August 29, 1992 -5- indicated that the envelope should have contained $2,249 in currency, $.17 in coins, and three checks. All the envelope contained, however, was the three checks. Kennedy also offered testimony pertaining to state's Ex. 2, a "selection report" for the telephone extension in the guard shack, which listed telephone activity for August 29, 1992. The report disclosed that a telephone call was made from the guard shack at 8:15 p.m. and lasted fifty-seven minutes. Powell's check-in slip from August 29, 1992 revealed that he arrived at work at 8:36 a.m., and returned from his day's deliveries to Pennsylvania later that evening. Powell testified that appellant, the security guard on duty that day, was on the telephone at the time. Powell informed appellant that he was going to place returned goods on a semi-trailer left for that purpose, after which he returned to the guard shack. Powell then gave appellant the previously counted money for that day, $2,249.17, and both men recounted the money. Appellant remained on the telephone throughout the counting. After Powell and appellant signed the receipt for the money, Powell went into the restroom briefly, and then exited the guard shack. Appellant was still on the telephone at this time. Powell knew that the money was still on the desk of the guard shack while it was being counted, and while he signed the receipt. He explained that it was not his responsibility to place the cash envelope in the drop-safe, and the last time he saw it, it was still on the desk in the guard shack. The first time Powell -6- learned of the missing cash was when he arrived at work on August 31, 1992. Defense counsel questioned Powell during cross-examination as to whether it was company policy to watch the cash envelope being placed into the drop-safe. Powell responded that this procedure was most likely a preferred company policy, but since he was tired, and appellant was on the telephone at the time, he decided not to interrupt appellant's conversation to inquire about the cash envelope drop. However, he rejected defense counsel's suggestion that he was asked to drop the envelope, testifying, "[a] driver doesn't take his own envelope and drop it in the safe. That's a no-no." Powell admitted during cross-examination that he was questioned by investigating officers as to the missing funds. He could not recall, however, whether he provided a written statement to them. The state used Powell's September 11, 1992 written statement to the police to refresh his recollection in re-direct examination. Over defense counsel's objection, Powell testified that appellant told him on August 31, 1992 that he placed the cash envelope in the drop-safe on August 29, 1992. Powell testified further that throughout his eighteen years of employment with A & W, he never touched the money after signing for it, nor dropped the cash envelope in the safe. Jenny Massimiani testified that she generally arrived to work between 5:00 and 5:30 a.m. On August 31, 1992, she retrieved the -7- runners and the cash envelopes from the safe for the August 29, 1992 deliveries in order to reconcile them. She was the only cashier on duty at the time. Massimiani testified that Powell's check-in slip for August 29, 1992 indicated receipt of $2,249 in currency, but the cash envelope did not contain the cash. She immediately notified her superiors of the missing cash upon its discovery at about 7:00 a.m. Detective Ignatius Sowa, a member of the Third District Strike Force, assisted Detective Frank Bova in the investigation of the missing $2,249.17. Sowa testified that he, Bova and Detective Joseph Krych, arrested appellant at his apartment on the afternoon of September 16, 1992. Sowa testified further that en route to the police station, and after advising appellant of his Miranda rights and the reason for his arrest, appellant stated, "'You can't prove I took that money.'" Appellant also stated that the A & W driver saw him put the money into the safe. Appellant offered a few more statements, including, "'I have $400 in my pocket. You probably figure I took the money.'" Sowa testified that $360 was discovered on appellant's person at the time of his booking; appellant explained to him that he won the money in the lottery. Appellant testified on his own behalf after the trial court denied his Crim.R. 29 motion for acquittal. He stated that he began working, part-time, as a security guard for A & W in June 1992. Appellant generally worked Monday thru Friday, 4:00 to 8:00 p.m., and on Saturdays, 3:00 to 11:00 p.m. -8- Appellant testified that his duties were different on Saturdays when he would "handle the whole thing." In other words, appellant operated the gate into the premises, and counted the leftover goods in the trucks, upon the trucks' arrival. If three or more drivers arrived at the same time, appellant took possession of their cash, and requested them to log their own miles and check their own trucks for damage. Appellant testified that his desk in the guard shack always faced the gate so that he could see the arrival of a truck. Appellant testified with regard to August 29, 1992, that he arrived at work at about 2:50 p.m. He recalled that Powell returned to A & W at approximately 8:25 p.m. Appellant opened the gate for Powell, but asked him to write down his mileage because he was on the telephone. Appellant moreover asked Powell to record the leftover goods, and remove them from the truck's trailer. Powell returned to the guard shack after recording all of the pertinent information. Both Powell and appellant then counted the checks, coins and currency which Powell collected during the day. Appellant testified that he and Powell counted $2,249.17 and recorded this figure on the A & W check-in slip for August 29, 1992. Appellant and Powell then signed the check-in slip. Appellant testified that since he was still on the telephone, he told Powell to "'go ahead and drop it,'" meaning Powell should drop the cash envelope into the drop-safe. Powell walked toward the drop-safe and then entered the rest room. He exited the rest room and stood by appellant's -9- desk for a few minutes until he was clocked out for the day at around 8:55 p.m. Appellant testified that he assumed Powell inserted the envelope into the drop safe, but admitted that he did not see actually see the act. Appellant left work at the end of his shift at 11:00 p.m. Appellant denied that he placed the cash envelope into the drop-safe on August 29, 1992, explaining that it was in Powell's possession when he last saw it. He conceded that it was a mistake in judgment to allow Powell to take the cash envelope without accompanying him to the drop-safe. Appellant testified that the company policy in effect in August 1992 required the security guard and driver to place the envelope into the drop-safe. However, he explained that when he was busy with other drivers, he usually requested at least some of the drivers to drop their cash envelopes. Appellant returned to A & W on Sunday, August 30, 1992, and worked the same shift, 3:00 to 11:00 p.m. He testified that no A & W drivers were present on this day, only a couple of computer operators. On Monday, August 31, 1992, appellant arrived for his shift which started at 7:00 a.m. He testified that Powell approached him while he was logging trucks, and informed him that some money was missing from the cash envelope. Appellant then returned to logging trucks because they were accumulating. He received a telephone call from Massimiani at 7:25 a.m., but did not leave the guard -10- shack until around 8:45 a.m. when he was called to the main office building. Appellant testified that he was met by the head of security, later identified as Alan Chapman, who explained the procedure when cash was missing from an envelope: the security guard was sent home and contacted later. Appellant testified that he told Chapman he would take a lie detector test. Chapman, meanwhile, wrote as they spoke and subsequently asked appellant to sign the final statement, which he wrote, without reading it. Appellant testified that Chapman sent him home after he refused to sign the statement. He next heard of the missing cash after his arrest. Appellant testified further that he was never advised of his rights at the time of his arrest. Additionally, he stated that he was never even told the reason for his arrest. Appellant denied that he ever took or borrowed in excess of $2,200 from A & W. He testified that he won the $360 found on his person in the three-digit lottery, specifically betting on "732." During cross-examination, appellant testified that Powell often inserted cash envelopes into the drop-safe at A & W. He stated that Powell's testimony to the contrary was a lie. Appellant testified further that Massimiani was also mistaken in her testimony when she related the removal of a staple prior to checking Powell's cash envelope for August 29, 1992. Appellant testified that the envelope was not stapled because a stapler was not present in the guard shack. Appellant also labeled Det. Sowa's testimony pertaining to appellant's statements to him as lies. -11- The state questioned appellant at length with regard to why he refused to sign the statement provided to him on August 31, 1992. Appellant explained that the statement contained an inference that he took the $2,249.17 since it set forth that Powell did not take the cash. He, therefore, refused to sign it. Appellant's re-direct examination included additional references to the accuracy of the statement. He testified that he did not prepare the statement, and reiterated the reason for refusing to sign it, primarily because it contained falsities. The state proceeded to question appellant further about the statement during re-cross examination. When questioned as to the exact false statements, appellant offered the following statements as false: (1) he put his telephone call on hold when Powell arrived in the guard shack; (2) he stapled the cash envelope twice, walked over to the drop-safe and inserted the envelope; (3) Powell watched him as he inserted the envelope; (4) he returned to his telephone call after inserting the envelope; (5) the entire cash deposit was in the safe when Powell left the guard shack; (6) Powell did not take the money and did not offer any portion of the money to appellant in exchange for appellant's cooperation in the theft. The state offered Alan Chapman as a rebuttal witness. Chapman was an investigator for Research Associates, the parent company of Security Systems. Chapman was also a state-commissioned peace officer at the time of the incident. -12- Chapman testified that he interviewed Massimiani, Powell and appellant on August 31, 1992 after the discovery of the missing cash from Powell's cash envelope. In conformance with his standard procedure, he took notes during the interviews, prepared written statements, and requested each interviewee to sign the statement pertaining to them. Chapman testified he prepared a written statement based upon the information provided by appellant in his interview, including appellant's stapling of Powell's cash envelope. However, appellant refused to sign the statement when he learned from Chapman that he was a suspect in the theft. II. Appellant assigns the following errors for this court's review: I. The trial court erred by allowing the state to use oral statements made by the appellant that were not provided to defense counsel in a timely manner as required by Criminal Rule 16 II. The verdicts [sic] are against the weight of the evidence Appellant presents a two-part argument in his first assignment of error with regard to the state's purported violation of the rules of discovery as set forth in Crim.R. 16. Appellant focuses on Det. Sowa's testimony that appellant made statements following his arrest, and the statement prepared by Chapman as to what he learned from appellant during his interview on August 31, 1992. Crim.R. 16(B) reads as follows in material part: (B) Disclosure of evidence by the prosecuting attorney. (1) Information subject to disclosure. -13- (a) Statement of defendant or co-defendant. Upon motion of the defendant, the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph any of the following which are available to, or within the possession, custody, or control of the state, the existence of which is known or by the exercise of due diligence may become known to the prosecuting attorney: (i) Relevant written or recorded statements made by the defendant or co-defendant, or copies thereof; (ii) Written summaries of any oral statement, or copies thereof, made by the defendant or co-defendant to a prosecuting attorney or any law-enforcement officer; *** (Emphasis sic.) Crim.R. 16(E) reads as follows: If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances. Crim.R. 16(E)(3) governs the regulation of discovery and permits a trial court to exercise discretion in the selection of the appropriate sanction for a discovery violation. See, State v. Bidinost (1994), 71 Ohio St.3d 443, 456; State v. Wiles (1991), 59 Ohio St.3d 71, 78; State v. Parson (1983), 6 Ohio St.3d 442, 445; State v. Edwards (1976), 49 Ohio St.2d 31, 42. "Reversible error exists only where the exercise of such authority by the trial court constitutes an abuse of discretion." Wiles, 78. See, Parson, 445; State v. Apanovitch (1987), 33 Ohio St.3d 19, 26. The Supreme Court of Ohio held as follows in Parson with regard to the applicable abuse of discretion standard: -14- Where, in a criminal trial, the prosecution fails to comply with Crim.R. 16(B)(1)(a)(ii) by informing the accused of an oral statement made by a co-defendant to a law enforcement officer, and the record does not demonstrate (1) that the prosecution's failure to disclose was a willful violation of Crim.R. 16, (2) that foreknowledge of the statement would have benefited the accused in the preparation of his defense, or (3) that the accused was prejudiced by admission of the statement, the trial court does not abuse its discretion under Crim.R. 16(E)(3) by permitting such evidence to be admitted. A. The record demonstrates that the state provided defense counsel with appellant's statement to the police, to the effect, "'you're going to have to prove it,'" eight days prior to the commencement of trial. Defense counsel decided not to pursue a motion to suppress this statement; rather, he decided to deal with the statement as part of his trial strategy. However, following the selection of the jury, but before trial, defense counsel learned from the state about other statements made by appellant. The specific statements were: "'You're the detectives, try to prove it'"; "'the driver saw me put the money in the safe'"; and "'You probably think I took it because I have $400.00 in my pocket because I won the lottery.'" Appellant argues that these statements were extremely prejudicial, and had he and his defense counsel known about them, defense counsel would have changed his trial strategy, conducted voir dire in a different manner, and perhaps, gone forward with a motion to suppress. Regarding the first statement about appellant's challenge to the detectives that they would have to prove he committed the -15- theft, appellant's counsel conceded at trial that he was fully aware of the gist of this statement. As stated supra, counsel knew that appellant taunted the officers with the statement, "you're going to have to prove it" eight days before trial. Counsel even informed the trial court that he only wished to exclude the statements other than "you have to prove it" at trial. Therefore, this court finds that the state complied with Crim.R. 16(B) as to the disclosure of this statement. The remaining two statements attributed to appellant were that Powell saw appellant put the money in the safe, and the presence of the $400 on his person probably led the police to suspect him of the crime. Det. Sowa was aware of these statements when they were made by appellant on September 16, 1992. Since "'[t]he police are a part of the state and its prosecutional machinery,' State v. Tomblin (1981), 3 Ohio App.3d 17, 18 3 OBR 18, 20, 443 N.E.2d 529, 531, such knowledge on the part of a law enforcement officer must be imputed to the state." Wiles, 78, citing State v. Sandlin (1983), 11 Ohio App.3d 84, 89. Crim.R. 16(B)(1)(a)(ii) required Det. Sowa to reduce these statements to writing, in summary form, to be furnished to the defense during discovery. See, Bidinost, 456; State v. DeLeon (1991), 76 Ohio App.3d 68, 77; State v. Lang (Mar. 29, 1995), Hamilton App. No. C-920748, unreported. The prosecutor, therefore, was not in compliance with Crim.R. 16(B) when he failed to disclose these two statements to appellant. See, Bidinost; Wiles. -16- Notwithstanding this noncompliance, the knowledge imputed to the prosecutor does not conclusively demonstrate a willful violation of Crim.R. 16. Wiles, 79. It is the prosecutor's actions which must be evaluated in order to conclude that the nondisclosure was willful. Id. In the present case, appellant's counsel stated the following, in pertinent part, after learning of the additional statements: [T]ere is no doubt in my mind that Mr. Spellacy [the prosecutor] provided this [the additional statements] to me as soon as he received [them], but nonetheless, it's my understanding that [they were] probably in the police file rather than the prosecutor's file, so there is still a responsibility to provide [them] to me before trial. While appellant's counsel is correct in stating that the prosecutor should have provided the statements because they were either in the police file or within Sowa's knowledge, this responsibility does not necessitate a finding of a willful violation of Crim.R. 16(B). Therefore, since appellant's counsel did not doubt that the prosecutor provided the statements as soon as possible, and we find no evidence to the contrary, the state did not willfully fail to disclose these two statements. As to the second prong of Parson, this court cannot, with confidence, conclude that foreknowledge of these statements would have benefited the defense. Appellant's counsel set forth in the record that had he known of these statements earlier, he possibly would have conducted voir dire differently, changed his trial strategy, and/or proceeded on a previously filed, but not argued, motion to suppress. However, these bald assertions fail to -17- convince us that the trial court committed reversible error in permitting Det. Sowa to offer these statements at trial. See, Wiles, 79; Lang; State v. Tyree (Sept. 29, 1993), Clark App. No. 3009, unreported. Moreover, defense counsel only sought the most stringent remedy under Crim.R. 16(E), the exclusion of the statements at issue. Counsel never requested a continuance. When an objection is made at trial to the admission of discoverable nondisclosed evidence on the basis of surprise, but no motion to continue is presented at the time, no prejudice results to a criminal defendant. State v. Edwards (1976), 49 Ohio St.2d 31, 42-43; see, Bidinost, 457; Wiles, 80; State v. Weind (1977), 50 Ohio St.2d 224, 235; State v. Howard (1978), 56 Ohio St.2d 328, 333; Lang. In conclusion, the record reveals that the violation of Crim.R. 16 was not willful, the foreknowledge of the withheld information would not have benefited appellant's defense, and no prejudice resulted to appellant as a result of the nondisclosure. The trial court's failure to exclude the two statements does not constitute reversible error. B. Appellant next charges that the trial court abused its discretion in permitting the introduction of the "statement" prepared by Chapman into evidence. The record reveals that defense counsel twice moved for a mistrial, arguing that the "statement" was not provided to him in a timely fashion. -18- [I]n the common parlance of the criminal law and at least within the context of Crim.R. 16, the term "statement" includes: (a) a written statement actually signed, or otherwise adopted or approved, by a witness or party; (b) a mechanical recording of the witness's words or transcription thereof; or (c) a substantially verbatim recital of such statement in a continuous narrative form [citations omitted]. A "summary" of a witness' oral conversation becomes a "statement" only if he has reviewed and signed, or otherwise adopted it, or if it is a nearly verbatim account as opposed to being merely the investigator's own selections, interpretations, or interpolations [citations omitted]. State v. Moore (1991), 74 Ohio App.3d 334, 340-341. See, State v. Cummings (1985), 23 Ohio App.3d 40; State v. Johnson (1978), 62 Ohio App.2d 31; State v. Smith (Dec. 9, 1991), Fayette App. No. CA91-05-008, unreported. In the instant case, the state did not misrepresent the statement prepared by Chapman following his interview with appellant, as appellant's statement. It was abundantly clear throughout trial that appellant refused to sign this statement because, according to him, it contained inaccuracies. Neither appellant nor the state contended that appellant signed or otherwise adopted the statement as his own. This statement was not a statement as contemplated under Crim.R. 16, and was not, therefore, discoverable pursuant to this rule. See, Smith. It is unclear from appellant's argument as to whether he is attacking the introduction of Chapman's direct testimony at trial as a rebuttal witness, or just the introduction of the written statement. However, defense counsel stated during his first motion for mistrial, which followed appellant's examination and preceded -19- the rebuttal testimony of Chapman, that he had no problem with Chapman testifying about the statement. Appellant's first assignment of error is accordingly overruled. III. In his second assignment of error, appellant proposes that his conviction for theft is against the manifest weight of the evidence. Specifically, he suggests that since there is no direct evidence to demonstrate he took the money from the safe, and at least two other people had access to the money, a reasonable juror could not find beyond a reasonable doubt, that he, and not someone else, stole the money. In State v. Martin (1983), 20 Ohio App.3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence: [T]he 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. *** (Citations omitted.) Id., 175. See, Tibbs v. Florida (1982), 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652. Moreover, this court "'may weigh evidence only to determine whether it is of sufficient probative force to support a finding of guilt.'" State v. Hawkins (1993), 66 Ohio St.3d 339, 344, quoting State v. Tyler (1990), 50 Ohio St.3d 24, 33. Therefore, it must be stressed that the weight of the evidence and the credibility of the -20- witnesses are issues properly left to the trier of fact. State v. Grant (1993), 67 Ohio St.3d 465, 476; State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. The trier of fact is entitled to believe or disbelieve the testimony of either the state's witnesses and/or the defense witnesses. State v. Antill (1964), 176 Ohio St. 61; State v. Harriston (1989), 63 Ohio App.3d 58, 63. Appellant's contention herein that there is no direct evidence either through eyewitness testimony or physical exhibition which shows that he took the money is accurate. However, the law is clear that circumstantial evidence carries the same weight as direct evidence. See, State v. Jenks (1991), 61 Ohio St.3d 259. Testimony at trial established that once the cash envelope was inserted into the opening in the drop-safe located in the guard shack, it could not be retrieved through the same slot. Rather, the only means to access the envelope was to enter the main building, open a closet to the safe with a key, and use a second key and combination to open the safe. The only individuals who could access the safe were Kennedy, Massimiani and another cashier. Neither appellant nor Powell could possibly retrieve the envelope once it was placed into the drop-safe. Massimiani testified that when she retrieved Powell's envelope from the safe, she immediately suspected missing contents. Her check of the invoices and the contents of the envelope revealed missing cash. Based upon this testimony, and Massimiani's testimony that she did not take the money, a reasonable juror could -21- presume that the cash was missing at the point either Powell or appellant inserted the cash envelope into the safe at the guard shack. Both appellant and Powell testified that the other was responsible for placing the envelope into the safe. Considering a witness' credibility is left to the discretion of the trier of fact, Grant, the jury was free to believe Powell's testimony that when he left the guard shack, appellant had the cash in his possession and had not yet placed the envelope into the drop-safe. Circumstantial evidence thus exists that appellant removed the cash prior to placing the envelope into the drop safe. The record, when taken as a whole, amply demonstrates that reasonable inferences would allow the trier of fact to find appellant was the individual who knowingly obtained the property of A & W, with purpose to deprive A & W of the property, without A & W's consent. We, therefore, fail to find that the jury clearly lost its way when it convicted appellant of theft under R.C. 2913.02. Martin. Appellant's second assignment of error is overruled. Judgment affirmed. -22- 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 Cuyahoga County 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. JAMES M. PORTER, J. AND JOSEPH J. NAHRA, J., CONCUR. PRESIDING JUDGE SARA J. HARPER 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 .