[Cite as State v. Turner,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 27210

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE JAY E. TURNER COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 13 07 1924

DECISION AND JOURNAL ENTRY

Dated: October 8, 2014

WHITMORE, Judge.

{¶1} Appellant, Jay Turner, appeals from his conviction in the Summit County Court

of Common Pleas. This Court affirms in part, reverses in part, and remands for resentencing.

I

{¶2} On June 4, 2013, Larry Hern’s credit card disappeared from the Winking Lizard

Tavern (“Winking Lizard”). Michelle Mondozzi, a server at the Winking Lizard, had swiped the

card for payment but then could not locate it despite searching the restaurant. The Winking

Lizard has a policy that, if an employee finds a credit card, it must be turned in to the manager’s

office.

{¶3} Hern’s credit card was not turned in to the office and the assistant manager called

Scott Bassett, the general manager of the Winking Lizard. The next day, Bassett reviewed the

restaurant’s video surveillance tapes. In addition to Mondozzi, the videos show Turner, who 2

had been working as a dishwasher, and Megan Chapin, who had been training as a server on that

date.

{¶4} The video of the kitchen server area shows Turner picking up the credit card and

setting it on a counter next to Chapin. Chapin, then, picks up the credit card, looks at it, and sets

it back down. Later, Turner comes back and again picks up the credit card. According to

Chapin, Turner told her that he was going to turn it in to the manager’s office. The video of the

front foyer shows the door to the manager’s office, but Turner is not seen walking in that

direction. Rather, he is seen leaving the building carrying some food.

{¶5} Detective Joseph Krunich from the Copley Police Department investigated the

matter. He reviewed the surveillance footage and spoke with employees of the Winking Lizard.

He called and spoke with Turner. During that phone conversation, Turner denied picking up the

credit card a second time. In a subsequent interview, Turner admitted that he might have taken

the credit card when he left because he was carrying out some food that he was not supposed to

remove from the establishment.

{¶6} A grand jury indicted Turner for theft of the credit card, in violation of R.C.

2913.02(A)(1), a fifth-degree felony. Following unsuccessful plea negotiations, the matter

proceeded to a jury trial and Turner was convicted. The trial court sentenced Turner to 12

months in prison. Turner now appeals and raises three assignments of error for our review. To

facilitate the analysis, we rearrange some assignments of error.

II

Assignment of Error Number One

THE TRIAL COURT ERRED BY DENYING THE CRIMINAL RULE 29 MOTION BECAUSE THE STATE FAILED TO PRODUCE SUFFICIENT EVIDENCE TO MEET THE BURDEN OF PRODUCTION. 3

{¶7} In his first assignment of error, Turner argues that the trial court should have

granted his Crim.R. 29 motion because there was insufficient evidence to convict him of theft.

We disagree.

{¶8} An appellate court reviews the denial of a Crim.R. 29 motion for acquittal under

a sufficiency-of-the-evidence standard. State v. Glunt, 9th Dist. Medina No. 13CA0050-M,

, citing State v. Slevin, 9th Dist. Summit No. 25956,

.

A sufficiency challenge questions whether the state met its burden of production at trial. Glunt

at ¶ 5. Sufficiency is “that legal standard which is applied to determine whether the case may go

to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of

law.” State v. Thompkins,

(1997). Whether a conviction is supported by

sufficient evidence is a question of law, which is reviewed de novo.

“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,

(1991), paragraph two of the syllabus.

{¶9} Turner was convicted of theft in violation of R.C. 2913.02(A)(1). R.C.

2913.02(A)(1) provides, in pertinent part, “[n]o person, with purpose to deprive the owner of

property or services, shall knowingly obtain or exert control over either the property or services *

* * [w]ithout the consent of the owner * * *.” The definition of “deprive” includes: “(1) [to

w]ithold property of another permanently * * *; [or] (2) [to d]ispose of property so as to make it

unlikely that the owner will recover it * * *.” R.C. 2913.01(C). When the property involved is a

credit card, a theft offense is a fifth-degree felony “[r]egardless of the value of the property

involved.” R.C. 2913.71(A). 4

{¶10} Larry Hern, the owner of the credit card, testified that he gave his credit card to a

waitress at the Winking Lizard to pay his bill, but when she returned, she no longer had his credit

card. He further testified that he did not know Turner and did not give Turner permission to

have his credit card. As soon as he got home that evening, Hern called and canceled his credit

card. Hern was unaware of any unauthorized charges on his credit card, but stated that his credit

card was never returned to him.

{¶11} Michelle Mondozzi waited on Hern on the night in question. She testified that

Hern gave her his credit card to pay his bill. She remembered swiping it for payment but later

could not find it. Mondozzi testified that, while she was searching for the credit card, another

server told her it had been turned in to the manager’s office. Mondozzi went to the manager’s

office, but the credit card was not there, so she resumed her search. Mondozzi stated that she

“looked everywhere for the card,” including the kitchen area where she had swiped the credit

card, the bar area, underneath tables, and in the trash cans. The credit card, however, was not

found.

{¶12} Megan Chapin testified that, at the time of the incident, she was training as a

server at the Winking Lizard. She saw Turner pick up the credit card and place it on the server’s

table. She admitted that she also picked it up and looked at it, but then set it back down. She

further testified that Turner came back, picked up the credit card again, and told her that he was

going to turn it in to the manager’s office. She stated that, when she saw Mondozzi searching for

the card, she relayed to her that it had been turned in to the manager.

{¶13} Scott Bassett, the general manager of the Winking Lizard, testified that he was not

working on the night in question, but received a telephone call from the assistant manager who

was. The following day, Bassett reviewed video surveillance tapes of the restaurant from the 5

time in question. Copies of the videos showing the kitchen server area, front foyer, and exit were

played for the jury.1 Bassett testified that, in the video, he observed Mondozzi drop the credit

card. Then, Turner picked it up and set it down on a table in the kitchen area. Next, Chapin

picked up the card, looked at it, and set it back down. Finally, Turner picked up the card a

second time and walked out of the kitchen area while holding a box of food in his other hand.

Approximately ten seconds later, Turner is seen entering the front foyer and exiting the building.

While Bassett conceded that, if Turner set the card down again, it was possible that someone else

could have picked it up, “[t]he state is not required to eliminate all possibilities regarding

interpretations of the evidence to meet the sufficiency standard.” See State v. Powell, 8th Dist.

Cuyahoga No. 82054,

, ¶ 15.

{¶14} Bassett further explained that the Winking Lizard has a procedure contained

within its employee handbook that, if a credit card is found in the restaurant, it is to be turned in

to the manager right away. To his knowledge, Hern’s credit card was never turned in to the

manager’s office. He testified to the location of the door to the manager’s office in the video of

the front foyer and that Turner is not seen entering or exiting the manager’s office.

{¶15} According to Bassett, Turner called him the day after the incident and inquired if

he was being fired and, if so, the reason for his termination. During that phone conversation,

Bassett asked Turner about the credit card, and Turner denied having it. Bassett also questioned

why Turner left without checking out with a manager, as is the standard procedure at the end of

the shift. According to Bassett, Turner stated the reason was that he was taking food home

against the restaurant’s rules for its employees.

1 Still photographs made from these videos were also admitted into evidence. 6

{¶16} Detective Joseph Krunich of the Copley Police Department testified that he

investigated the theft. As part of his investigation, he reviewed the surveillance videos and

spoke with employees of the Winking Lizard. His initial contact with Turner was by telephone.

Krunich recorded that conversation and it was played for the jury. During that conversation,

Krunich advised Turner that he had video evidence of Turner picking up the credit card, putting

it on the counter, and then coming back, picking it up again and walking out of the restaurant.

Turner responded that “[he] came back, but * * * never picked it back up * * * never touched it

again.”

{¶17} Krunich requested that Turner come to the police station to discuss the matter and

view the video. Turner agreed to meet with Krunich the following day at the police station.

According to Krunich, during that interview, Turner admitted that he “may have slipped up and

took it out of the restaurant” because he was taking food and was in a hurry.

{¶18} On cross-examination, Krunich conceded that Turner mentioned that he did not

intend to steal the credit card. According to Krunich, Turner said, on one occasion, that he

intended to give it back to the manager and, on another occasion, that “he was trying to give it

back to the people.” Krunich spoke with Turner on multiple occasions and found his responses

to be inconsistent with the video evidence. Overall, Krunich did not believe Turner was being

truthful with him.

{¶19} In addition to the surveillance videos and telephone call with the detective,

excerpts of telephone calls placed by Turner from jail were played for the jury. During one of

those telephone calls, Turner is conversing with a woman. When she mentions the lack of

physical evidence and the lack of evidence of him using the credit card, Turner states, “H***, no,

I got rid of that [m]***f***er.” 7

{¶20} Viewing the evidence in the light most favorable to the State, a rational juror

could have found that Turner, without Hern’s consent, knowingly obtained his credit card with

the purpose to deprive him of it. See R.C. 2913.02(A)(1). Consequently, there was sufficient

evidence to convict Turner of theft. Turner’s first assignment of error is overruled.

Assignment of Error Number Three

THE TRIAL COURT ERRED BY IMPOSING A MAXIMUM SENTENCE ON DEFENDANT BECAUSE HE EXERCISED HIS RIGHT TO TRIAL INSTEAD OF PLEADING GUILTY.

{¶21} In his third assignment of error, Turner argues that the trial court sentenced him

more harshly because he exercised his right to a jury trial. Based on the record before us, we

agree.

{¶22} “[A] defendant is guaranteed the right to a trial and should never be punished for

exercising that right or for refusing to enter into a plea agreement.” State v. O’Dell,

(1989), paragraph two of syllabus. While a defendant is free to engage in plea

negotiations with the State, a trial court must refrain from creating the appearance that the failure

to plead will result in a more severe sanction. State v. Jackson, 9th Dist. Lorain No.

12CA010155,

. There is a distinction between a trial court placing a plea

offer on the record and a trial court pressuring a defendant to accept a plea offer. Compare State

v. Paige, 9th Dist. Summit No. 22377,

(affirming sentence where trial

court made no reference whatsoever as to how defendant would be sentenced if plea was

accepted or rejected) with Jackson at ¶ 9-10 (vacating plea where court commented on evidence

and guaranteed prison time if convicted at trial). If a court makes statements from which it can

be inferred that the sentence was increased due to a defendant’s decision to proceed to trial, then

that sentence must be vacated unless the record contains unequivocal evidence that the decision 8

to proceed to trial was not considered when sentencing the defendant. State v. Chapman,

,

, ¶ 30 (9th Dist.). The “prohibition on increased punishment

applies ‘no matter how overwhelming the evidence of [defendant’s] guilt.’” (Alteration sic.) Id.

at ¶ 29, quoting State v. Morris,

,

(4th Dist.).

{¶23} In the instant matter, prior to the trial, counsel “had some discussions regarding

this case in chambers about potential sentences.” On the record, the prosecutor summarized the

plea offer as follows: if Turner pleaded guilty, the State would agree to either (1) an eight-month

prison sentence or (2) a presentence investigation with the State arguing for a ten-month prison

sentence and the defendant for community control sanctions. Turner’s counsel responded that

Turner “still would like to exercise his right to a jury trial.” The trial judge warned Turner:

When someone refuses to accept responsibility and if the jury convicts them, I take that into account, so I indicated to your attorney that, if you were to plead guilty and accept responsibility, then I will probably give you [c]ommunity [c]ontrol and maybe some house arrest, but that, after a trial, if you are convicted, in light of your record, that would not be the case. You know, it would be more likely you would be going to prison, so that’s the way it is.

The trial judge further remarked, “I’ve heard a little bit of the evidence, I don’t know what will

happen, * * * [b]ut I have a feeling there might be [a video] in this case.” Turner reiterated that

he was “prepared for trial.” His counsel noted that Turner had seen the video and heard his

recorded telephone conversation with the detective. The trial judge again questioned, “You are

rejecting the offer of [c]ommunity [c]ontrol2 with house arrest?” and Turner responded that he

was.

{¶24} At the sentencing hearing, the trial judge referenced back to the items she

mentioned prior to the trial, namely that (1) by going to trial, Turner was not accepting

2 We note that community control was not the agreement offered by the State; rather, that was offered by the court. 9

responsibility; (2) there was video evidence; and (3) he had a prior criminal record. The trial

judge chastised Turner for his failure to “accept full responsibility * * * despite * * * [the] video

evidence.” The trial judge remarked on “the stress” the victim and the witnesses went through.

Contrast State v. Collmar, 9th Dist. Summit No. 26496,

(wherein trial

court expressly stated it would not consider statements regarding what the defendant was offered

or that he put the victim through a trial). Noting that Turner claimed to accept responsibility

only after being convicted, the judge did not find Turner’s “remorse to be sincere.” Ultimately,

the judge sentenced Turner to twelve months of incarceration, the maximum prison term

authorized for his fifth-degree theft offense. See R.C. 2929.14(A)(5).

{¶25} The trial judge’s statements both before the trial and at the sentencing hearing

created the appearance that she sentenced Turner to prison, rather than community control,

because he chose to proceed to trial rather than accept a plea offer. Based on the record before

us, the inference that Turner’s sentence was increased due to his decision to proceed to trial

remains unrebutted. See Chapman,

, at ¶ 32. Accordingly, Turner’s sentence

must be vacated and this matter remanded for resentencing.

{¶26} Turner’s third assignment of error is sustained.

Assignment of Error Number Two

THE TRIAL COURT IMPOSED A TWELVE MONTH SENTENCE ON A FIFTH DEGREE FELONY IN VIOLATION OF STATUTORY LAW.

{¶27} In his second assignment of error, Turner argues that the trial court failed to

comply with R.C. 2929.13(B)(1) when sentencing him. In light of our resolution of Turner’s

third assignment of error, this argument is not yet ripe for our review. 10

III

{¶28} Turner’s assignment of error number one is overruled. His conviction for theft is

affirmed. Turner’s assignment of error number three is sustained. His sentence is vacated.

Turner’s assignment of error number two is not yet ripe for our review. The judgment of the

Summit County Court of Common Pleas is affirmed in part, reversed in part, and this matter is

remanded for resentencing consistent with this opinion.

Judgment affirmed in part, reversed in part, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, 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 equally to both parties.

BETH WHITMORE FOR THE COURT 11

HENSAL, P. J. MOORE, J. CONCUR.

APPEARANCES:

DONALD GALLICK, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.