Opinion
C.A. No. 17CA0079-M
06-29-2018
STATE OF OHIO Appellee v. DANIELLE HOFFMEIER Appellant
APPEARANCES: JAMES L. DYE, Attorney at Law, for Appellant. THOMAS J. MORRIS, Assistant Law Director, for Appellee.
APPEAL FROM JUDGMENT ENTERED IN THE WADSWORTH MUNICIPAL COURT COUNTY OF MEDINA, OHIO
CASE No. 17CRB00597-A
DECISION AND JOURNAL ENTRY
SCHAFER, Presiding Judge.
{¶1} Danielle M. Hoffmeier appeals her conviction from the Wadsworth Municipal Court. For the reasons that follow, this Court affirms.
I.
{¶2} On July 14, 2017, Hoffmeier went to the Walmart located in Wadsworth, Ohio. Hoffmeier used the self-checkout kiosk to purchase a Peg-Perego John Deere 12-volt battery powered ride-on toy. The ride-on toy was priced at $249.00. However, upon checkout Hoffmeier did not scan the UPC barcode for the ride-on toy. Instead, she scanned a price tag for a different item that had been removed from a store shelf and placed over the UPC barcode. The price tag Hoffmeier scanned was for a significantly less expensive toy priced at $79.97. Hoffmeier paid the $79.97 price and attempted to leave the store with the ride-on toy before she was confronted by a Walmart employee.
{¶3} Upon inquiry from the Walmart employee, Hoffmeier denied that she had covered the item's barcode or attempted to change the price of the ride-on toy. At Hoffmeier's request, Walmart contacted the police. After an investigation, police arrested Hoffmeier and charged her with one count of theft by deception in violation of R.C. 2913.02(A)(3), a misdemeanor of the first degree.
{¶4} The matter proceeded to a jury trial, and the jury found Hoffmeier guilty of theft by deception. The trial court entered judgment on the jury's verdict and sentenced Hoffmeier according to law. Hoffmeier now timely appeals her conviction, raising three assignments of error for our review.
II.
Assignment of Error I
The trial court erred and thereby deprived [Hoffmeier] of due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and comparable provisions of the Ohio Constitution by overruling [Ms. Hoffmeier]'s [Crim.R.] 29 motion for judgment of acquittal, as the prosecution failed to prove all the element[s] of the charge of theft by deception
{¶5} In her first assignment of error, Hoffmeier contends that the trial court erred by denying her Crim.R. 29 motion for acquittal. Hoffmeier believes that the evidence presented during the State's case was insufficient to establish guilt beyond a reasonable doubt. We disagree.
{¶6} Pursuant to Crim.R. 29(A):
The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the * * * complaint, if the evidence is insufficient to sustain a conviction of such offense * * *.This Court reviews the denial of a defendant's Crim.R. 29 motion for acquittal by assessing the sufficiency of the State's evidence. State v. Smith, 9th Dist. Summit No. 27389, 2015-Ohio-2842, ¶ 17, quoting State v. Frashuer, 9th Dist. Summit No. 24769, 2010-Ohio-634, ¶ 33. Whether a conviction is supported by sufficient evidence is a question of law, which this Court reviews de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The function of this Court
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. 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.State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. However, this Court does not resolve evidentiary conflicts or assess the credibility of witnesses as those functions belong to the trier of fact. State v. Tucker, 9th Dist. Medina No. 14CA0047-M, 2015-Ohio-3810, ¶ 7.
{¶7} Hoffmeier argues that the State failed to establish that she "intentionally deceived the owner of the property" and failed to establish that anyone witnessed her change the price of the item. Hoffmeier asserts that none of the witnesses claimed to have seen her "take tape from one aisle and tape a new price over the old." Additionally, she protests that the "fraudulent" price sticker was not introduced at trial.
{¶8} Hoffmeier was charged with a crime of theft by deception pursuant to R.C. 2913.02. R.C. 2913.02(A)(3) states that "[n]o person, with the purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services * * *[b]y deception[.]" "Deception" is defined as
knowingly deceiving another or causing another to be deceived by any false or misleading representation, by withholding information, by preventing another from acquiring information, or by any other conduct, act, or omission that creates,
confirms, or perpetuates a false impression in another, including a false impression as to law, value, state of mind, or other objective or subjective fact.R.C. 2913.01(A). "Knowingly" is defined in R.C. 2901.22(B) as follows:
A person acts knowingly, regardless of purpose, when the person is aware that the person's conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact."Proof of intent is often derived from circumstantial evidence, as direct evidence will seldom be available." State v. Warfel, 9th Dist. Medina No. 16CA0062-M, 2017-Ohio-5766, ¶ 11, citing State v. Tarver, 9th Dist. Summit No. 22057, 2004-Ohio-6748, ¶ 10.
{¶9} At trial, Walmart Loss Prevention Associate, Rachel Semonin, testified that a fellow store associate initially alerted her to Hoffmeier's suspicious behavior—changing price tags—in the clearance aisle of the store. Pursuant to her duties as a Loss Prevention Associate, Ms. Semonin proceeded to the clearance aisle to surveil Hoffmeier's activities. Based on her observations, Ms. Semonin decided to inconspicuously trail Hoffmeier throughout the store to monitor her actions. Hoffmeier made her way to the toy section of the store where Ms. Semonin observed Hoffmeier remove a price tag from its plastic holder on the shelf. Thereafter, Ms. Semonin testified, she witnessed Hoffmeier affix that price tag to the box containing the ride-on toy and place that box into her cart.
{¶10} Ms. Semonin continued to follow Hoffmeier throughout the store until she eventually reached the self-checkout kiosk. Ms. Semonin testified that she watched while Hoffmeier scanned the ride-on toy and the item displayed on the checkout screen not as a ride-on toy priced at $249.99, but as a "play ball" toy priced at $79.97. Ms. Semonin confronted Ms. Hoffmeier after she completed her purchase, passed all points of sale, and proceeded to exit. Wadsworth police responded to Ms. Semonin's call and handled the situation from that point.
{¶11} Ms. Semonin took the shopping cart containing the ride-on toy into the store office. She testified as to State's Exhibits 3 and 4, which depict the price tag for a "play ball climber" priced at $79.97 placed over the UPC barcode for the ride-on toy. The price tag was affixed to the box with a single piece of tape that Ms. Semonin described as "Scotch [t]ape or something similar."
{¶12} Officer Andrew Blubaugh of the Wadsworth Police Department also testified in the State's case, stating that he was dispatched to Walmart to investigate a report of shoplifting. He spoke with Ms. Semonin to determine the nature of the complaint, and then he questioned Hoffmeier. Officer Blubaugh testified that Hoffmeier was "argumentative" and "adamant that she had no idea what was going on," explaining that she had been price matching and that she had not done anything to change the price of the ride-on toy.
{¶13} After obtaining statements, Officer Blubaugh inspected the aisles to observe the price tags mounted to the shelves. He testified that he located the spot on the shelf with the "missing placard" that holds the tag for the play ball toy. He identified State's Exhibit 5 as a photograph he took, which depicts the empty tag holder. Officer Blubaugh described the play ball toys as being located near the ride-on toys.
{¶14} Further, Officer Blubaugh testified that he believed the price tag had been taped to the box with Scotch tape. He inspected the aisle in which the store displayed Scotch tape for sale. He observed that all of the rolls of tape comparable to the tape used on the price tag each "had a little starter piece on it" except for one roll from which the starter piece "had been pulled off, torn and then stuck to the shelf nearby." Officer Blubaugh determined that the type of tape on this roll that had been started was similar to the piece of tape used on the price tag, as shown in the photograph marked as State's Exhibit 4.
{¶15} Based on the evidence presented in the State's case, the trial court concluded that the State had made a prima facie showing and overruled Hoffmeier's Crim.R. 29 motion. Having reviewed the evidence, this Court concludes that the State presented sufficient evidence to demonstrate that Hoffmeier knowingly affixed the price tag of another item onto the box containing the ride-on toy. We determine that the evidence was sufficient to show that Hoffmeier, by deception, used the false price tag to obtain the ride-on toy, thereby depriving Walmart of the property without paying the full $249.00 price for the item. Accordingly, this Court concludes that the trial court did not err by overruling Hoffmeier's motion for acquittal pursuant to Crim.R. 29.
Assignment of Error II
The trial court erred and thereby deprived [Hoffmeier] of due process of law as guaranteed by the Fourteenth Amendment [to the] United States Constitution and comparable provisions of the Ohio Constitution by finding [Hoffmeier] guilty, as the verdict for the charges of receiving stolen property and complicity to grand theft were against the manifest weight of the evidence[.]
{¶16} In her second assignment of error, Hoffmeier contends that the jury's verdict "was against the manifest weight of the evidence as the court should have acquitted [Hoffmeier] because the State failed to prove all of the essential elements of the crimes charged." Hoffmeier asserts "that the critical element in the charges of theft" is her knowledge or state of mind, and argues that "[t]here was overwhelming evidence that [she] had no knowledge that the [ride-on toy] had its price changed." We disagree.
{¶17} A sufficiency challenge is legally distinct from a manifest weight challenge. Thompkins, 78 Ohio St.3d at 387. While "[a] challenge to the sufficiency of evidence supporting a conviction requires a court to determine whether the state has met its burden of production at trial", a manifest weight challenge questions whether the State has met its burden of persuasion. Id. at 390 (Cook, J. concurring). When applying the manifest weight standard, we are required to consider the whole record, "weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Courts are cautioned to only reverse a conviction on manifest weight grounds "in exceptional cases," State v. Carson, 9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340, where the evidence "weighs heavily against the conviction," Thompkins at 387.
{¶18} Initially, we note that the assignment of error does not comport with the facts of this case. The assigned error purports to challenge a verdict for the charges of "receiving stolen property" and "complicity to grand theft" as being against the manifest weight of the evidence. However, in this case Hoffmeier was not charged or convicted for either of those theft offenses. Rather, Hoffmeier was charged and convicted with a single count of theft by deception in violation of R.C. 2913.02(A)(3). The argument within this section of the brief does nothing to clarify this apparent mistake.
{¶19} In her brief, Hoffmeier makes a vague claim that the State failed to prove a critical element of theft. In support of this claim, Hoffmeier references a portion of her testimony explaining that she went to Walmart expecting to find the ride-on toy as a "glitched" item, incorrectly priced by Walmart at $25.00. This Court determined in the previous assignment of error that Hoffmeier's conviction for theft by deception is supported by sufficient evidence. Hoffmeier has failed to present any argument to demonstrate how her claimed belief—that the ride-on toy might have a price glitch that would cause it to register a price of $25.00—weighs against any of the State's evidence that she intentionally affixed a false price tag over the UPC barcode for the ride-on toy in order to obtain it for $79.97 instead of the price of $249.99. Upon our review, this Court concludes that the record does not support Hoffmeier's claim that her conviction is against the weight of the evidence.
{¶20} Hoffmeier's second assignment of error is overruled.
Assignment of Error III
[Hoffmeier] was denied the effective representation of counsel as guaranteed by the Sixth Amendment to the [United States] Constitution as well as Article I, Sec. 10 of the Ohio Constitution[.]
{¶21} In her third assignment of error, Hoffmeier argues that she was denied effective assistance of counsel. Hoffmeier cites to several instances during trial, alleging ineffective representation by trial counsel. We disagree.
{¶22} To establish ineffective assistance of counsel, Hoffmeier must satisfy a two-prong test demonstrating (1) that counsel's performance was deficient, in that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" and (2) that her defense was prejudiced by this deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate deficient performance, a defendant must show that the representation fell below an objective standard of reasonableness. Id. at 687-688. To show prejudice, a "defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different." State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph three of the syllabus. However, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Strickland at 689. Further, this Court "need not address both prongs of the Strickland test should it find that [Hoffmeier] failed to prove either." State v. Ray, 9th Dist. Summit No. 22459, 2005-Ohio-4941, ¶ 10.
{¶23} First, Hoffmeier asserts that trial counsel failed to object to a statement made by the State during voir dire. She argues that the State "improperly informed the prospective jurors (and therefore the ultimate jury) that [j]ury [n]ullification exists and it is '[i]llegal' in Ohio." Specifically, Hoffmeier takes issue with the following remarks by counsel on behalf of the State during an exchange with a prospective juror:
* * * there's this concept called Jury nullification that's illegal in the State of Ohio, it's not legal, and that just says, he's guilty, but we're going to find him not guilty, and there's nothing I can do about that, it's not right, but there's nothing I can do about that if you find them not guilty, they're not guilty, I can't appeal a not guilty. So are you okay making the finding of guilty, assuming that if there's a legal defense or something else that would be taken care of by a Judge or Court of Appeals or the Supreme Court or the Legislature or some other branch, that's not your role as a Jury, these are tough, I understand. I'm making people convict Rosa Parks up here, I'm not feeling good about this, but this is what I have to do. Do you struggle with that a little bit?Hoffmeier contends that "trial [c]ounsel did not object, clarify or even address this glaring error." Even if we were to assume trial counsel was deficient in that regard, Hoffmeier has not developed any argument to explain how the failure to object to an alleged mischaracterization of law during voir dire prejudiced her defense.
{¶24} Hoffmeier goes on to claim deficient performance by trial counsel for failing to make a record summarizing sidebar discussions, and for failing to object to the admission of a photograph as evidence in lieu of the actual "price indicator" it depicted. Further, Hoffmeier makes an unsubstantiated claim that trial counsel "apparently" had, but failed to introduce, photographs to disprove a claim that large items sold at Walmart have barcodes, but are not individually labeled with tags stating the price of the item. Finally, Hoffmeier claims that trial counsel "had to be reminded" to make a Crim.R. 29 motion, failed to offer the trial court a basis for granting the motion, and failed to renew the motion at the conclusion of the case. With respect to each of these issues Hoffmeier has raised, she failed to develop any argument to show that she was prejudiced by trial counsel's performance in any way.
{¶25} We conclude that Hoffmeier failed to establish ineffective assistance of counsel. Accordingly, her third assignment of error is overruled.
III.
{¶26} Hoffmeier's three assignments of error are overruled. The judgment entry of conviction from the Wadsworth Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Wadsworth Municipal Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
/s/_________
JULIE A. SCHAFER
FOR THE COURT CARR, J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
JAMES L. DYE, Attorney at Law, for Appellant. THOMAS J. MORRIS, Assistant Law Director, for Appellee.