[Cite as State v. Spencer, 2016-Ohio-5304.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : Hon. W. Scott Gwin, P.J. 

 Plaintiff - Appellee : Hon. William B. Hoffman, J. 

 : Hon. Craig R. Baldwin, J. 

-vs- : 

 : 

BRANDO SPENCER : Case No. 2015CA00188 

 : 

 Defendant - Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Alliance Muncipal 

Court, Case No. 2015CRB606 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: August 8, 2016 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

MATTHEW S. KUHN CRISTIN ROUSH 

Alliance City Prosecutor Stark County Public Defender 

470 East Market Street 201 Cleveland Ave. SW, Suite 104 

Alliance, Ohio 44601 Canton, Ohio 44702 
Stark County, Case No. 2015CA00188 2 

Baldwin, J.

{¶1} Appellant Brando Spencer appeals a judgment of the Alliance Municipal 

Court convicting him of one count of theft in violation of Ohio Revised Code § 

2913.02(A)(1). Appellee is the State of Ohio. 

STATEMENT OF THE FACTS AND CASE 

{¶2} On September 29, 2014, an individual named Brenda Haywood was 

dropped off by Defendant-Appellant Brando Spencer in front of the Lowe’s store located 

at 2595 W. State Street, Alliance, Ohio. At the time of her drop-off and entrance into the 

garden center portion of the store, Ms. Haywood was empty-handed. Ms. Haywood then 

acquired a shopping cart and proceeded through the Lowe’s. At some point during her 

time in the Lowe’s, Ms. Haywood acquired a rug valued at $286.00. Shortly thereafter, 

Appellant entered the Lowe’s, also empty-handed, and met up with Ms. Haywood. The 

two then proceeded to the returns register where they returned the rug Ms. Haywood had 

acquired from somewhere within the store, having never paid for it. 

{¶3} In order to make a return without a receipt, which Appellant and Ms. 

Haywood did not possess, store policy requires that the returnee provide a valid driver’s 

license in order to keep a record of returns that, when checked, allow Lowe’s to identify 

those who have previously made fraudulent returns. When asked to provide a driver’s 

license, Ms. Haywood was unable to do so, leaving Appellant to provide his license to go 

on the record as the one initiating the return. The Lowe’s employee completed the return 

and gave a merchandise card containing the “refund” to Ms. Haywood. Appellant and Ms. 

Haywood then left the store. 
Stark County, Case No. 2015CA00188 3 

{¶4} Later, Lowe’s Loss Prevention and Safety worker, Conner Fry, while 

reviewing all returns to Lowe’s over $150.00 in value, determined that the return of the 

$268.00 rug was fraudulent. In reviewing the video footage of the return, he saw that Ms. 

Haywood acquired the rug while in the store before fraudulently returning it. Mr. Fry also 

recognized Ms. Haywood because of company emails he received regarding her previous 

criminal activity at another Lowe’s. Further video footage showed Appellant dropping Ms. 

Haywood off, meeting her in the store, and providing his driver’s license in order to 

complete the return transaction to acquire the merchandise card. Having identified both 

parties, Mr. Fry then notified the police of Ms. Haywood’s and Appellant’s involvement in 

the theft of Lowe’s property. 

{¶5} Appellant was arrested on a warrant on May 11, 2015. After a trial by jury 

on September 17, 2015, Appellant was found guilty of theft, a misdemeanor, resulting in 

a fine of $400.00 that included restitution of $268.00 to the Lowe’s, banishment from the 

Lowe’s store for one year, a sentence of 180 days in jail with 175 days suspended, and 

a requirement a year of good behavior. 

{¶6} Appellant assigns one error on appeal arising from the September 17, 2015, 

jury trial, having found Appellant guilty of theft: 

{¶7} “THE TRIAL COURT ERRED IN ADOPTING THE GUILTY FINDING AS 

THE FINDING WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE 

EVIDENCE.” 

{¶8} Appellant’s only assignment of error claims that the judgment was against 

the manifest weight and sufficiency of the evidence. Specifically, appellant suggests that 

(1) the State failed to prove beyond a reasonable doubt that Appellant knew Ms. Haywood 
Stark County, Case No. 2015CA00188 4 

was committing a fraudulent return, (2) the State failed to prove beyond a reasonable 

doubt that Appellant obtained or exerted control over property involved in the fraudulent 

return, and (3) the State failed to properly identify Appellant as the “Brando Spencer” who 

was charged with committing the theft. 

{¶9} To determine whether a verdict is against the manifest weight of the 

evidence, the appellate court, “in reviewing the entire record, weighs the evidence and all 

reasonable inferences, considers the credibility of witnesses, and determines whether in 

resolving conflicts in evidence the jury ‘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. Thompkins, 78 Ohio St.3d 380, 387, 1997–Ohio–52, 678 N.E.2d 541, quoting State v. 

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983). 

{¶10} An appellate court's function when reviewing the sufficiency of the evidence 

is to determine 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, 574 N.E.2d 492, 

paragraph two of the syllabus (1991). 

{¶11} Appellant was convicted of theft in violation of O.R.C. § 2913.02(A)(1): 

(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; 
Stark County, Case No. 2015CA00188 5 

{¶12} Appellant’s first argument that the State failed to prove that Appellant knew 

that Ms. Haywood was making a fraudulent return is not persuasive. Appellant’s counsel 

states that Appellant would not have freely given his personal identification if he had 

known that Ms. Haywood was committing fraud. However, it was clearly reasonable for 

the jury to draw the conclusion from Mr. Fry’s testimony that Appellant had such 

knowledge of the fraudulent return. Fry testified that after Appellant dropped off Ms. 

Haywood, who carried nothing into Lowe’s, Appellant later met up with her to initiate a 

return of an item she previously could not have possessed without attracting Appellant’s 

notice. Without evidence or testimony contradicting this testimony, the jury could have 

rationally concluded that Appellant “knowingly” participated in the theft and that no 

mistake or accident occurred. The inference made by the jury that Appellant had 

knowledge of the fraudulent return because of the involved role he played is not against 

the manifest weight or the sufficiency of the evidence. 

{¶13} Appellant’s second argument that the State failed to prove that Appellant 

obtained or exerted control over the stolen property is also unpersuasive. Appellant 

argues that he never touched the rug, he was not the one who signed for the card, he 

was not the one who took the merchandise card, and he never held the merchandise card 

while on video surveillance. However, in reviewing all evidence and reasonable 

inferences, it is clear that but for Appellant providing his driver’s license, Ms. Haywood 

would never have had an opportunity to sign for or possess the merchandise card, as Ms. 

Haywood was unable to give her own license because it had been “shut down.” Tr. at 83. 

This was also not Ms. Haywood’s first time fraudulently returning something to Lowe’s, 

as company security had been notified as to her identity for a similar transgression, as 
Stark County, Case No. 2015CA00188 6 

testified to by Mr. Fry. The jury’s conclusion was not against the manifest weight and 

sufficiency of the evidence. The Appellant, by providing his identification to engage in the 

fraudulent return, did obtain or exert control over the stolen merchandise card through 

providing his identification to enact the fraudulent return. The jury, after considering the 

evidence including testimony and video, did not further a “miscarriage of justice”. 

{¶14} Finally, Appellant argues that the State failed to identify the Appellant as the 

“Brando Spencer” charged with committing theft. This argument turns on the fact that 

when Mr. Fry described the accused as a “slender black male. Uh, mid-fifties, maybe 

early sixties. Short, dark black hair,” Mr. Fry failed to properly identify Appellant as Brando 

Spencer, only stating that “He’s the guy over there.” Tr. 75:25-76:11. Appellant alleges 

that because the record does not reflect who Mr. Fry was pointing to or where the accused 

was sitting, Appellant was not properly identified. However, the evidence presented at 

trial could still have led a reasonably prudent jury to identify Appellant as the “Brando 

Spencer” that was accused of theft. Not only did Mr. Fry testify as to the physical 

description of Appellant, but video evidence of Appellant completing the fraudulent return 

and the receipt from the transaction that was labelled with Appellant’s name and address 

were also provided for the jury. The finding that Appellant was properly identified and 

confirmed to be the Brando Spencer originally charged is not against the manifest weight 

or sufficiency of the evidence. 

{¶15} Further, an appellant bears the burden of showing error by reference to the 

matters in the record. E.g., City of Columbus v. Hodge, 37 Ohio App.3d 68, 523 N.E.2d 

515, 516 (10th Dist.1987). The record does not reflect that Mr. Fry’s in-court identification 

of appellant was erroneous. 
Stark County, Case No. 2015CA00188 7 

{¶16} In conclusion, when the evidence is viewed in a light most favorable to the 

prosecution, a rational trier of fact could have found that the State proved all essential 

elements of the crime of theft under O.R.C. § 2913.02(A)(1) and properly identified 

Appellant as the offender. The judgment is not against the manifest weight or sufficiency 

of the evidence. 

{¶17} Appellant’s assignment of error is overruled. Accordingly, the judgment of 

the Alliance County Municipal Court is affirmed. Costs are assessed to Appellant. 

By: Baldwin, J. 

and Gwin, P.J. concur. 

Hoffman, J. concurs in part 

and dissents in part. 
Stark County, Case No. 2015CA00188 8 

Hoffman, J., concurring in part and dissenting in part 

{¶18} I concur in the majority’s analysis and decision rejecting Appellant’s claim 

the jury’s verdict was against the manifest weight of the evidence regarding Appellant’s 

knowledge about Ms. Haywood committing a fraudulent return and regarding Appellant’s 

identification. 

{¶19} I respectfully, albeit somewhat reluctantly, dissent from the majority’s 

conclusion the evidence supported the jury’s verdict Appellant obtained or exerted control 

over the property involved in the fraudulent return. I say reluctantly because I believe 

Appellant could have been convicted of complicity to theft had such been charged and/or 

the jury so instructed under the theory of aiding or abetting another in the commission of 

an offense. However, because Appellant was not so charged nor did the prosecution 

argue such theory, nor was the jury so instructed,1 my analysis is limited to review of the 

evidence used to establish Appellant, and not Ms. Haywood, obtained or exerted control 

over the rug or merchandise card. 

{¶20} There is no evidence to establish Appellant obtained or exerted control over 

either. I readily agree with the majority “it is clear that but for Appellant providing his 

driver’s license, Ms. Haywood would never have had an opportunity to sign for or possess 

the merchandise card.” (Maj. Op. at ¶13, emphasis added).2 The majority then 

concludes, “The Appellant, by providing his identification to engage in the fraudulent 

 

1 Appellee conceded the same during oral argument. 

2 The majority additionally references the fact this was not Ms. Haywood’s first time 

fraudulently returning something to Lowe’s in its discussion of Appellant’s assertion the 

evidence failed to show he obtained or exerted control over the stolen property. While 

the majority’s statement is accurate, I find it irrelevant to the analysis on this issue. 
Stark County, Case No. 2015CA00188 9 

return, did obtain or exert control over the stolen merchandise card...” (Majority Opinion 

at ¶13). I disagree. 

{¶21} While Appellant did exert control over his driver’s license, the license was 

only used to facilitate Ms. Haywood’s obtaining the merchandise card. The fact remains 

it was Ms. Haywood who obtained or exerted control over both the rug and the 

merchandise card, not Appellant. While the evidence would support a verdict Appellant 

was complicit in the commission of the theft, it is insufficient to establish Appellant’s guilt 

as a principal offender as he was charged and as presented by the prosecution to the 

jury.