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A 5th District Court of Appeals panel upholds shoplifting conviction
KEITH ARNOLD
Special to the Legal News
Published: December 7, 2023
A three-judge appellate panel rejected a Delaware man’s arguments that his conviction on a misdemeanor theft charge was not supported by the evidence and it violated his right to due process.
The Fifth District Court of Appeals upheld the Delaware County Municipal Court’s conviction, overruling both claims made by Jeffrey Razey, whose image was captured by surveillance video while in the process of taking merchandise valued at $219.97 from a Meijer store in Westerville.
On appeal, Razey argued that prosecutorial misconduct occurred when the prosecutor asked the Meijer loss prevention employee if she knew the defendant by name and the woman responded that she did.
The trial court had granted a motion in limine, excluding evidence regarding prior incidents of alleged theft from Meijer that involved Razey and an associate that the prosecutor had intended to use to prove identity and absence of mistake pursuant to criminal law, case summary provided.
Razey’s attorney raised an objection to the question and the court sustained it, the case summary continued.
The court provided a standard instruction to jury members that they must not speculate as to why the court sustained objections, what the answers to those questions would have been or on the truth of any suggestions included in a question that was not answered.
Additionally, the jury was instructed it must disregard any statements or answers that were stricken by the court.
“Whether statements made by a prosecutor amount to misconduct and whether such statements render a trial fundamentally unfair are mixed questions of law and fact, which we review de novo,” Judge John Wise wrote for the Fifth District court. “Upon review, we find that alleged misconduct was just a single question to which appellant’s counsel objected and the trial court sustained the objection. The trial court instructed the jury not to speculate as to why it sustained any objections. A presumption always exists that the jury followed the trial court’s instructions.
“Further, based on our review of the entire case, we do not find that the contested question was outcome determinative or denied appellant a fair trial. We cannot conclude, based on all of the evidence produced at trial, that there was a reasonable probability that, but for the prosecutor’s question, the result of the trial would have been different.”
In consideration of Razey’s claim that the theft conviction was against the manifest weight of the evidence, Wise noted that the trial court’s decision should not be disturbed as against the manifest weight of the evidence if the decision is supported by competent and credible evidence.
“A reviewing court should not reverse a decision simply because it holds a different opinion concerning the credibility of the witnesses and evidence submitted before the trial court,” he wrote.
The appellate judge reasoned that the prosecutor presented testimony and evidence from which the jury could have found all the essential elements of theft, proven beyond a reasonable doubt.
The jury heard the witnesses, watched the video surveillance tapes, evaluated the evidence and was convinced of appellant’s guilt, he continued.
“Upon review of the entire record, weighing the evidence and all reasonable inferences as a 13th juror, including considering the credibility of witnesses, we cannot reach the conclusion that the jury, as the trier of fact, lost its way and created a manifest miscarriage of justice,” Wise wrote. “Taken as a whole, the testimony and record contains ample evidence of appellant’s involvement in the alleged crime.
“The record is devoid of any evidence the jury lost its way in resolving conflicts in the evidence, and appellee’s evidence supports the guilty verdict of the jury.”
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