COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70784 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION YOLANDA ISOM : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 5, 1997 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-328625 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor BY: ALISON LITTLE (#0061568) Assistant County Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES A. DRAPER Cuyahoga County Public Defender BY: SCOTT ROGER HURLEY (#0063858) Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113 - 2 - SPELLACY, J.: Defendant-appellant Yolanda Isom ("appellant") appeals from her conviction for theft, in violation of R.C. 2913.02(A)(1). Appellant assigns the following error for review: THE TRIAL COURT ERRED IN OVERRULING APPEL- LANT'S RULE 29 MOTION FOR ACQUITTAL WHERE THE STATE FAILED TO PROVE EACH AND EVERY ELEMENT OF THE CRIME CHARGED IN THE INDICTMENT BEYOND A REASONABLE DOUBT. THEREBY VIOLATING APPEL- LANT'S FIFTH AND FOURTEENTH AMENDMENT RIGHTS TO DUE PROCESS OF LAW. Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. On June 5, 1995, appellant was employed as a cashier at Murray's Discount Automotive Store at 4852 Lee Road in Cleveland. Appellant was beginning the last week of her employment at the store. Appellant's shift ended at 4:00 p.m. At approximately 3:30 p.m., Assistant Manager James Krasula told appellant to close her register and check out for the day. In order to check out, a cashier signs out electronically from her register. The cash drawer and drop box are removed from the register. The drop box is a separate lock box into which any amount over $400 is deposited in envelopes by the cashier during the day. A manager first opens one vault to allow the removal of a second vault which actually holds the money. The cashier has the key to open the second vault. - 3 - Appellant removed her cash drawer and drop box and went into the cash office to count the money. The cash office is a separate small room in the store which is enclosed and locked. Appellant then came out of the room and called to Krasula to check her out. This involved matching her figures with what the computer showed she should have in her register. Krasula discovered a discrepancy between appellant's monies and what the computer had recorded. Appellant was $438 short. Krasula then counted out the monies kept in the safe and discovered it was $10 over. That amount was credited to appellant leaving a $428 discrepancy. Krasula notified Manager Michael Pierzynski about the problem. Pierzynski recounted both appellant's register and the safe. His figures matched those of Krasula. Krasula and Pierzynski checked appellant's register area in a vain effort to locate the missing funds. Pierzynski reviewed the video surveil- lance tape but found nothing unusual. Krasula searched the back of the store including the locker room and bathrooms. After these efforts to locate the missing monies were unsuccessful, Pierzynski stated he needed to call the police and corporate counsel and went to a back room to do so. Appellant asked to use the rest room. Krasula followed her to the ladies rest room and waited outside until appellant emerged. Appellant went into the rest room only a minute or two after it had been searched. - 4 - After appellant exited the rest room, Krasula re-entered the rest room to search it again. He noticed that rolls of toilet paper were no longer haphazardly placed upon a shelf but were now in a neat row on the shelf. Krasula put his finger in each roll. His finger struck something in the last roll. Krasula picked up the roll and saw rolled up money inside the tube. Krasula did not remove the money but took the roll into the office where Pierzynski and appellant were and placed it on the office counter. At that point, the police already had been called and they arrived shortly thereafter. Pierzynski and Krasula showed the two officers the computer tape and register tape. One officer removed the money from inside the roll of toilet paper and counted out either $427 or $428. Appellant was arrested at the scene. The case went to trial. A jury convicted appellant of theft in violation of R.C. 2913.02(A)(1). II. In her assignment of error, appellant contends the trial court erred in overruling her Crim.R. 29 motion. Appellant argues that the prosecution failed to prove she violated R.C. 2913.02(A)(1) because she had the consent of her employer to obtain or exert control over the cash transactions. A motion for acquittal will be sustained if the evidence presented is insufficient as a matter of law to permit a conviction. Crim.R. 29(A). It will not be granted "if the evidence is such that reasonable minds can reach different - 5 - conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt." State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus. A trial court must construe the evidence most strongly in favor of the prosecution. State v. Fyffe (1990), 67 Ohio App.3d 608, 613. R.C. 2913.02 governs theft. It provides in pertinent part: (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; *** . The thrust of appellant's argument is that she did not violate this provision as she had the consent of the property owner to obtain or exert control over the property. Appellant relies on State v. Burrows (1992), 80 Ohio App.3d 404, in which this court held a bookkeeper did not violate this same statutory provision because the defendant was authorized by the owner of the property to obtain or exert control over the cash transactions. The employer, a management company for several apartment complexes, used an elaborate system to collect rental payments which ultimately left the bookkeeper responsible for the payments received. The chain of custody for the relevant cash transactions ended with the bookkeeper. Therefore, it was held the defendant could not have violated R.C. 2913.02(A)(1) because she obtained or exerted control over the property with her employer's consent. The defendant was indicted incorrectly. - 6 - However, in Burrows, the defendant had more authority over the stolen property than in the instant case. An employee who simply collects money for an employer and immediately places it in a cash register as belonging to the employer has never been granted permission to actually possess or exert control over the money. Appellant's task was limited to collecting money from the store's patrons, placing it in the cash register or drop box and then counting the money at the end of her shift. Therefore, the state did present sufficient evidence to support appellant's conviction under R.C. 2913.02(A)(1). 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. JOHN T. PATTON, P.J. and THOMAS J. PARRINO, J.* CONCUR. (*Thomas J. Parrino, Retired Judge of the Eighth Appellate District, Sitting by Assignment) LEO M. SPELLACY JUDGE N.B. This is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(B) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .