COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69585 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION LAMAR BOLDEN AKA KEMP : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : AUGUST 15, 1996 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-318478 JUDGMENT : Judgment vacated; appellant discharged forthwith. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones Patrick Lavelle Cuyahoga County Prosecutor 3214 Prospect Avenue, East By: Ronald James Cleveland, Ohio 44115-2600 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -3- HARPER, P.J.: The Cuyahoga County Grand Jury returned a one-count indictment against defendant-appellant, Lamar Bolden, aka Kemp ("appellant") for theft, a violation of R.C. 2913.02, a felony in the third degree. The jury rendered a guilty verdict. Appellant contends the lower court erred when it denied his Crim.R. 29 motion for acquittal, because the state proffered insufficient evidence to sustain a conviction for theft. The apposite facts were adduced at trial: The state of Ohio first prosecution witness was Dale Schwanek ("Mr. Schwanek"). Mr. Schwanek was appellant's immediate supervisor at U.S.A. Mobile Pager Company ("U.S.A. Mobile"). U.S.A. Mobile is a business specializing in selling and servicing pagers. Mr. Schwanek was responsible for training appellant in U.S.A. Mobile's procedures and policies for shipping and logging out inventory to its customers. Mr. Schwanek was also responsible for tracking new and reconditioned pagers. Appellant's responsibilities included logging in and shipping out all pagers requested by customers and recording shipping entries in the "U.P.S. log books." Approximately one month after appellant had been employed by U.S.A. Mobile, a regularly scheduled audit was conducted. The audit revealed that a large number of pagers, approximately 495, were unaccounted for. Mr. Schwanek's exhaustive search to locate the pagers was unsuccessful. He began to monitor the shipment entries in the U.P.S. log books and noticed that "Sam's Mini Mart" -4- was frequently listed. However, according to Mr. Schwanek, Sam's Mini Mart was not a U.S.A. Mobile customer. Mr. Schwanek confirmed that a U.S.A. Mobile employee, during a routine check, found a package containing one hundred pagers with the address of Sam's Mini Mart. The Sam's Mini Mart address label was revealed when a U.S.A. Mobile employee peeled off one of the address labels. Mr Schwanek checked the U.P.S. log book and found that a Sam's Mini Mart entry had been scratched out. However, this package was to be shipped to Motorola Corporation for servicing and then returned to U.S.A. Mobile. Appellant, according to Mr. Schwanek, changed the shipment label to Motorola Corporation. After further investigation, U.S.A. Mobile confirmed that appellant had written numerous entries for Sam's Mini Mart. Dr. Philip Boufferd, director of Lake County Prosecutor's Regional Forensic Laboratory, compared the Sam Mini Mart entries in the U.S.P. log book to a handwriting sample provided by appellant. Dr. Boufferd opined that Sam's Mini Mart entries matched appellant's handwriting sample. Detective Donald Spera ("Det. Spera"), employed by the Warrensville Heights Police Department, testified that he investigated the theft. As part of his investigation, Det. Spera collected appellant's employment application and a box of one hundred U.S.A. Mobile pagers which had been addressed to Sam's Mini Mart. Det. Spera later located appellant and advised him of his rights. Appellant told Det. Spera that he was simply doing his job -5- and that he did not know anything about Sam's Mini Mart, or its proprietor, Sam Chambers. At the conclusion of the state's case, appellant moved for acquittal. Appellant asserted the state failed to present evidence that indicated the pagers value. The state responded that the testimony had been offered that the pagers were valued at $37,000. The trial court denied appellant's motion, and appellant rested his case. The state requested an additional jury instruction specifically to allow the jury to convict appellant of theft with a value of three hundred dollars but less than five thousand dollars. The trial court denied the state's request. The trial court indicated that such a jury instruction would have required the jury to speculate as to the value of the items allegedly stolen when no evidence had been presented. The matter was given to the jury for deliberation and the jury returned a guilty verdict. In addition, the jury found that the value of the pagers was $5,000 or more. Appellant appeared for sentencing. The trial court received a presentence report from the probation department and a letter from Atlantic Mutual Company indicating that it paid U.S.A. Mobile $47,611 as a result of the theft. Atlantic Mutual Company requested restitution in that amount. Appellant addressed the court, denied the theft and charged that other people had access to the U.P.S. log book. In addition, appellant informed the court about the status of his employment, appellant was sentenced. -6- The trial court sentenced appellant to two years at Lorain Correctional Institution. However, appellant's sentence was suspended and he was placed on five years probation. Appellant was ordered to pay full restitution of the $47,611 on a monthly payment plan. The trial court informed appellant that his probation would be rescinded if he failed to make restitution. Appellant timely appeals and raises the following assignments of error for this court to review: I. THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION FOR ACQUITTAL PURSUANT TO RULE 29 OF THE OHIO RULES OF CIVIL PROCEDURE. II. THE JURY DETERMINATION IN THE LOWER COURT WAS AGAINST THE MANIFEST WEIGHT OF EVIDENCE. III. DEFENDANT'S CONVICTION VIOLATES THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT EACH ELEMENT OF ITS CASE. In the first assignment of error, appellant charges the trial court improvidently denied his Crim.R. 29 motion for acquittal. In State v. Bridgeman (1978), 55 Ohio St.2d 261, the Supreme Court of Ohio announced the standard under which a Crim.R. 29(A) motion for acquittal must be considered, as follows: [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. Id. at syllabus. Appellant argues that the state failed to proffer sufficient evidence that the property involved was worth more than $5,000. Consequently, appellant submits that no reasonable person could -7- have come to the conclusion that the value of the stolen pagers was in excess of $5,000. R.C. 2913.02 sets forth the material elements that must be proved to sustain a conviction for theft: (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. (B) Whoever violates this section is guilty of theft. If the value of the property or services stolen is less than three hundred dollars, a violation of this section is petty theft, a misdemeanor of the first degree. If the value of the property or services stolen is three hundred dollars or more and is less than five thousand dollars, or if the property stolen is any of the property listed in section 2913.71 of the Revised Code, or if the offender previously has been convicted of a theft offense, a violation of this section is theft, a felony of the fourth degree. If the value of the property or services stolen is five thousand dollars or more and is less than one hundred thousand dollars, or if the offender previously has been convicted of two or more theft offenses, a violation of this section is grand theft, a felony of the third degree ***." R.C. 2913.61 sets forth the criteria to be utilized when determining the value of stolen property and states in pertinent part: (A) When a person is charged with a theft offense involving property or services valued at five hundred dollars or more, a theft offense involving property or services valued at five hundred dollars or more and less than five thousand dollars, a theft offense involving property or services valued at five thousand dollars or more and less than one hundred thousand dollars, or a theft offense involving property or services valued at one hundred thousand dollars or more, the jury or court -8- trying the accused shall determine the value of the property or services as of the time of the offense and, if a guilty verdict is returned, shall return the finding of value as part of the verdict. In any case in which the jury or court determines that the value of the property or services at time of the offense was five hundred dollars or more, it is unnecessary to find and return the exact value, and it is sufficient if the finding and return is to the effect that the value of the property or services involved was, five hundred dollars or more and less than five thousand dollars, was five thousand dollars or more and less than one hundred thousand dollars, or was one hundred thousand dollars or more. R.C. 2913.61(D)(2) sets forth the criteria to be used to determine the value of property or services involved in a theft offense: [T]he value of personal effects and household goods, and of materials, supplies, equipment, and fixtures used in the profession, business, trade, occupation, or avocation of its owner, which properly is not covered under division (D)(1) of this section and which retains substantial utility for its purpose regardless of its age or condition, is the cost of replacing the property with new property of like kind and quality. To establish the value of the property stolen, there must be evidence demonstrating cost of replacing the property with new property of same kind and quality. State v. Eastland (Sept. 15, 1995), Tuscarawas App. No. 94 AP120087, unreported; State v. Heard (July 24, 1975), Cuyahoga App. No. 34011, unreported. With the applicable rule of law set forth, we turn to the facts. Mr. Schwanek testified that appellant was the inventory manager and was primarily responsible for making the U.P.S. log entries. Within one month of appellant's employment, U.S.A. Mobile discovered approximately 495 pagers were missing. However, Mr. Schwanek did not testify as to the cost of replacing the -9- missing pagers with new pagers of like kind and quality. R.C. 2913.61(D)(2). The letter from Atlantic Mutual Insurance requesting restitution of the $47,611 was not offered into evidence by the state. Moreover, the state, in its opening statement, indicated that the worth of the 495 missing pagers was $37,500. However, the state did not introduce evidence that the cost of replacing pagers with new pagers of like kind and quality was $37,500. Given the foregoing, appellant's argument is well taken. Accordingly, appellant's assignment of error is sustained. In view of our disposition of appellant's first assignment of error, we need not address his second and third assignments of error. App.R. 12(A). Judgment vacated; appellant discharged forthwith. -10- It is ordered that appellant recover of appellee his 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, J., AND JOHN T. PATTON, 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 .