[Cite as State v. Seidowsky,
2019-Ohio-2610.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 18CA0059-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JOSEPH M. SEIDOWSKY WADSWORTH MUNICIPAL COURT
COUNTY OF MEDINA, OHIO
Appellant CASE No. 18CRB00096
DECISION AND JOURNAL ENTRY
Dated: June 28, 2019
SCHAFER, Judge.
{¶1} Defendant-Appellant, Joseph Seidowsky, appeals from his convictions in the
Wadsworth Municipal Court. This Court affirms.
I.
{¶2} One afternoon, Seidowsky entered the Target in Wadsworth and drew the
attention of the store’s asset protection team leader. The team leader followed Seidowsky to the
electronics department and watched as he took two DVDs from the shelves and used a pair of
scissors to cut a prepaid cell phone from its locked peg hook. The team leader then returned to
his office and called the police while monitoring Seidowsky on video surveillance.
{¶3} Once Seidowsky exited the store without paying for the items from the electronics
department, two officers stopped him. The officers decided to handcuff Seidowsky for officer
safety, but he repeatedly interfered with their attempts to secure his arms. Eventually, one of the
officers was forced to execute a knee strike in order to subdue him. Once they finally
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handcuffed him and lowered him to the ground, two DVDs and a prepaid cell phone fell from his
clothing. Inside one of his pockets, the officers also discovered a small pair of scissors.
{¶4} As a result of the foregoing incident, Seidowsky was charged with theft,
possession of criminal tools, and resisting arrest. A jury trial ensued, at the conclusion of which
the jury found him guilty on all three counts. The court sentenced him to a total of 110 days in
jail.
{¶5} Seidowsky now appeals from his convictions, raising two assignments of error for
review.
II.
Assignment of Error I
Seidowsky’s convictions for theft, criminal tools, and resisting arrest were
based on insufficient evidence as a matter of law, and the Court erred by
denying Seidowsky’s Crim.R. 29 Motion.
{¶6} In his first assignment of error, Seidowsky argues that his convictions are based
on insufficient evidence. We disagree.
{¶7} 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. A sufficiency challenge of a criminal conviction presents a question of law, which we
review de novo. State v. Thompkins,
78 Ohio St.3d 380, 386 (1997). “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. Although we conduct
de novo review when considering a sufficiency of the evidence challenge, “we neither resolve
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evidentiary conflicts nor assess the credibility of witnesses, as both are functions reserved for the
trier of fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570, C-120751, 2013-Ohio-4775, ¶
33.
{¶8} A person is guilty of theft if he, “with purpose to deprive [an] owner of
property[,] … knowingly obtain[s] or exert[s] control over [] the property … [w]ithout the
consent of the owner ….” R.C. 2913.02(A)(1). A person is guilty of possessing criminal tools
if he “possess[es] or [has] under [his] control any … device, instrument, or article, with
purpose to use it criminally.” R.C. 2923.24(A). Finally, a person is guilty of resisting arrest if
he, “recklessly or by force, [] resist[s] or interfere[s] with [his] lawful arrest ….” R.C.
2921.33(A).
{¶9} S.G. testified that he is the asset protection team leader at the Target in
Wadsworth. It is his job to identify suspicious behavior that he has learned to associate with
theft and to prevent thefts from occurring. To do so, he conducts both physical surveillance and
live video surveillance of the store. He testified that Target has numerous cameras positioned
throughout its store and those cameras are linked to the monitors in his office.
{¶10} S.G. testified that Seidowsky aroused his suspicions as soon as he entered the
store because he was walking at a fast pace, did not get a cart, and proceeded directly to the
electronics department. S.G. identified the electronics department as a high theft area and
testified that he decided to follow Seidowsky on foot to watch him. As he watched, he saw
Seidowsky select two DVDs before walking over to the prepaid phone section. S.G. explained
that the store’s prepaid phones hang from boxes on a wall and the store secures them with
locking peg hooks and “spider wrap.” Spider wrap consists of metal wires that encase the phone.
The wires are linked to a loud alarm that is meant to activate if the spider wrap is removed
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incorrectly. Ordinarily, to purchase a prepaid phone, a customer must ask a store employee to
unlock its peg hook, pay for the phone at the register, and wait for the cashier to remove the
spider wrap. S.G. testified, however, that it is possible to pull off spider wrap without activating
the alarm. He also testified that it is possible to remove a box from the prepaid phone wall by
cutting it from its hook.
{¶11} S.G. stated that he watched Seidowsky play with one of the prepaid phones before
removing some type of cutting device from his pocket and using it to cut the phone from its peg
hook. Once Seidowsky did so, he walked over to the toy department, and S.G. returned to his
office to call the police. S.G. lost sight of Seidowsky as he walked to his office, but used the
surveillance cameras to track him once he arrived there. As he spoke with the police, he
continued to monitor Seidowsky via the cameras. He watched Seidowsky walk to a different
section of the store, select some paper plates, pay for the plates, and leave the store.
{¶12} Officer Tim Reed and Sergeant Michael Patterson were dispatched to Target as a
result of S.G.’s call. Both officers testified that they remained outside when they arrived,
covering separate doors and waiting for Seidowsky to exit the store. Seidowsky exited nearest
Sergeant Patterson, so the sergeant approached him first and asked to speak with him. Sergeant
Patterson testified that, as soon as he asked Seidowsky whether he was carrying a knife,
Seidowsky became angry and began raising his voice. Officer Reed then arrived, and he too
noted that Seidowsky was angry, sounded aggressive, and was not listening to Sergeant
Patterson. Because they had reason to believe that Seidowsky had stolen items from the store
and had some type of cutting device in his possession, the officers decided to handcuff him for
officer safety.
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{¶13} Both officers testified that Seidowsky resisted as they attempted to handcuff him.
They both stated that Seidowsky became rigid, kept pulling away, and refused to put his arms
behind his back despite numerous commands for him to do so. They also testified that one of his
hands kept drifting near his waistband, a safety concern to them both due to the possibility of a
weapon. The officers stated that they were unable to secure Seidowsky until Officer Reed
executed a knee strike. Seidowsky then stopped resisting long enough for them to handcuff him.
{¶14} Officer Reed testified that, once they had Seidowsky in handcuffs, he began
shaking violently, so they helped him to the ground and called for an ambulance. As the officers
lowered Seidowsky to the ground, two DVDs and a prepaid cell phone box fell from his clothing.
There was no spider wrap on the cell phone box, and S.G. identified the DVDs and cell phone as
the items he saw Seidowsky take from the store. Before the paramedics arrived, Officer Reed
and Sergeant Patterson searched Seidowsky for any sharp items. Inside one of his pockets, they
discovered a small pair of scissors.
{¶15} Seidowsky argues that each of his convictions are based on insufficient evidence.
As to his theft conviction, he notes that S.G. never saw him remove the spider wrap from the
prepaid phone or conceal the items he allegedly stole. Although two DVDs and a cell phone fell
from his clothing when the police arrested him, he argues that it is unclear from the record
whether he had those items with him when he entered the store. Because the State failed to set
forth any direct evidence that he stole the items, he argues that his theft conviction cannot stand.
Likewise, because the State failed to prove that a theft occurred, he argues that there was no
evidence he had scissors in his possession for a criminal purpose.
{¶16} As to his conviction for resisting arrest, Seidowsky argues that there was no
evidence he recklessly disobeyed the commands of the officers who confronted him. He asserts
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that his failure to comply was the result of a medical condition (i.e., a seizure), not a volitional
act. Because his actions were strictly the result of a health emergency, he argues that his
conviction for resisting arrest is based on insufficient evidence.
{¶17} Viewing the evidence in a light most favorable to the State, a rational trier of fact
could have found that the State proved, beyond a reasonable doubt, that Seidowsky committed
the crimes of theft, possessing criminal tools, and resisting arrest. See Jenks, 61 Ohio St.3d 259
at paragraph two of the syllabus. S.G. saw Seidowsky pick up two DVDs and use a cutting
device to remove a cell phone box from the store’s prepaid phone wall. He identified the two
DVDs and cell phone box that fell from Seidowsky’s clothes as the ones taken from the store.
Although he never saw Seidowsky conceal those items in his clothing, the jury reasonably could
have inferred that he did so at some point before leaving the store. See
id. at paragraph one of
the syllabus (“Circumstantial evidence and direct evidence inherently possess the same probative
value ….”). Further, because officers found a pair of scissors in Seidowsky’s pocket, the jury
reasonably could have inferred that he used the scissors to cut the prepaid cell phone box from its
peg hook. Upon review, Seidowsky has not shown that his convictions for theft and possessing
criminal tools are based on insufficient evidence.
{¶18} As to Seidowsky’s conviction for resisting arrest, the jury heard testimony that he
repeatedly ignored the commands of two officers, pulled away from them, and refused to place
his hands behind his back as they attempted to handcuff him. Both officers testified that
Seidowsky started violently shaking after they had secured him in the handcuffs. They both
described him as uncooperative, angry, and uncompliant. Based on their testimony, the jury
reasonably could have concluded that Seidowsky interfered with his lawful arrest either by force
or in a reckless manner. See R.C. 2921.33. Accordingly, we reject his argument that his
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convictions are based on insufficient evidence. Seidowsky’s first assignment of error is
overruled.
Assignment of Error II
Seidowsky’s convictions for theft, criminal tools and resisting arrest were
against the manifest weight of the evidence in violation of the due process
clause of the Constitution (Clause XIV, Section 1, United States
Constitution).
{¶19} In his second assignment of error, Seidowsky argues that his convictions are
against the manifest weight of the evidence. We disagree.
{¶20} When considering an argument that a criminal conviction is against the manifest
weight standard, this Court is required to
review the entire 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,
78 Ohio St.3d at 387.
{¶21} Seidowsky argues that the jury lost its way when it convicted him because no one
saw him remove the spider wrap from the prepaid cell phone box or conceal the phone or DVDs
before leaving the store. Further, he argues the jury lost its way when it convicted him of
resisting arrest, as his actions were strictly the result of a medical condition.
{¶22} Having reviewed the record, we cannot conclude that the jury lost its way when it
determined that Seidowsky committed the crimes of theft, possessing criminal tools, and
resisting arrest. Seidowsky did not testify at trial, but the jury heard testimony that he became
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angry and uncooperative when confronted by Officer Reed and Sergeant Patterson. They heard
testimony that he actively resisted the officers, ignored their commands, forced them to apply a
measure of physical force, and only experienced an apparent medical issue after he was
handcuffed. The jury heard testimony that Seidowsky took DVDs from the shelves inside the
store and cut a prepaid cell phone from the store’s wall. S.G. specifically identified the items
that fell from Seidowsky’s clothing, none of which had been paid for at the register, as the items
he took from the store. Although he never saw Seidowsky conceal those items, the jury
reasonably could have concluded that Seidowsky did so at some point before he left the store.
Seidowsky has not shown that this is the exceptional case where the jury lost its way by
convicting him. See Otten at 340. We, therefore, reject his argument that his conviction is
against the manifest weight of the evidence. Seidowsky’s second assignment of error is
overruled.
III.
{¶23} Seidowsky’s assignments of error are overruled. The judgment of 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.
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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.
JULIE A. SCHAFER
FOR THE COURT
CALLAHAN, P. J.
CARR, J.
CONCUR.
APPEARANCES:
DAVID V. GEDROCK, Attorney at Law, for Appellant.
THOMAS J. MORRIS, Director of Law, for Appellee.
