[Cite as State v. Rivers, 2011-Ohio-2447.]


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

STATE OF OHIO                                         C.A. No.       10CA009772

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
DOUGLAS EDWARD RIVERS                                 COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellant                                     CASE No.   09CR078383

                                  DECISION AND JOURNAL ENTRY

Dated: May 23, 2011



        CARR, Judge.

        {¶1}     Douglas Rivers appeals the judgment of the Lorain County Court of Common

Pleas. This Court affirms.

                                                 I.

        {¶2}     This case stems out of a carjacking which occurred on February 26, 2009, at the

Midway Mall in Elyria, Ohio. On June 4, 2009, Douglas Rivers was indicted by the Lorain

County Grand Jury on one count of receiving stolen property in violation of R.C. 2913.51(A), a

felony of the fourth degree. The indictment specified that the property received was a motor

vehicle as defined by R.C. 4501.01. The case was assigned Case No. 09CR078383. Rivers had

previously been indicted in Case No. 09CR077819 on one count of robbery in violation of R.C.

2911.02(A)(2), and two counts of theft in violation of R.C. 2913.02(A)(1). On June 9, 2009, the

State filed a motion to consolidate Case No. 09CR078383 and Case No. 09CR077819. On June

15, 2009, the trial court issued an order granting the motion to consolidate.
                                                2


       {¶3}    The matter proceeded to jury trial on June 22, 2009. On June 24, 2009, Rivers

was found guilty of receiving stolen property and acquitted of all other charges. On August 25,

2009, Rivers was sentenced to 18 months imprisonment and ordered to pay a fine of $2,500. On

September 2, 2009, Rivers filed a notice of appeal. On December 9, 2009, this Court issued a

journal entry indicating that Rivers’ sentence was void due to an error in the imposition of post-

release control. This Court vacated Rivers’ sentence and remanded the matter to the trial court

for a new sentencing hearing. The trial court subsequently conducted a de novo sentencing

hearing on January 28, 2010, and issued a new sentencing entry on January 29, 2010. Rivers

filed his second notice of appeal on February 18, 2010.

       {¶4}    On appeal, Rivers raises two assignments of error.

                                               II.

                             ASSIGNMENT OF ERROR I

       “THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT APPELLANT’S
       CONVICTION OF RECEIVING STOLEN PROPERTY.”

                                ASSIGNMENT OF ERROR II

       “APPELLANT’S CONVICTION FOR RECEIVING STOLEN PROPERTY
       WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN
       VIOLATION OF ARTICLE IV, SECTION 3, OF THE OHIO
       CONSTITUTION.”

       {¶5}    In his first assignment of error, Rivers argues that his receiving stolen property

conviction was not supported by sufficient evidence. In his second assignment of error, Rivers

argues that his conviction for receiving stolen property was against the manifest weight of the

evidence. This Court disagrees with both contentions.

       {¶6}    The elements of receiving stolen property are set forth in R.C. 2913.51(A), which

provides, “No person shall receive, retain, or dispose of property of another knowing or having

reasonable cause to believe that the property has been obtained through commission of a theft
                                                3


offense.” “If the property involved is a motor vehicle, as defined in [R.C.] 4501.01, ***

receiving stolen property is a felony of the fourth degree.” R.C. 2913.51(C). The Revised Code

defines “motor vehicle” as “any vehicle, including mobile homes and recreational vehicles, that

is propelled or drawn by power other than muscular power or power collected from overhead

electric trolley wires.” R.C. 4501.01(B). “A person acts knowingly, regardless of his purpose,

when he is aware that his conduct will probably cause a certain result or will probably be of a

certain nature.   A person has knowledge of circumstances when he is aware that such

circumstances probably exist.” R.C. 2901.22(B). “Receive is not defined in the statute, but a

generally accepted definition of receive is to acquire ‘control in the sense of physical dominion

over or the apparent legal power to dispose of said property.’” State v. Brewer (July 19, 2000),

9th Dist. No. 99CA007483, quoting State v. Jackson (1984), 20 Ohio App.3d 240, 242.

       {¶7}    The Supreme Court of Ohio and the United States Supreme Court have concluded

that, “‘[p]ossession of recently stolen property, if not satisfactorily explained, is ordinarily a

circumstance from which you may reasonably draw the inference and find, in the light of the

surrounding circumstances shown by the evidence in the case, that the person in possession knew

the property had been stolen.’” State v. Arthur (1975), 42 Ohio St.2d 67, 68, quoting Barnes v.

United States (1973), 412 U.S. 837. “Possession of stolen property may be individual or joint,

actual or constructive. Proof of control or dominion is essential. But control or dominion may

be achieved through the instrumentality of another.” State v. Wolery (1976), 46 Ohio St.2d 316,

332. See, also, State v. Colon, 9th Dist. No. 20949, 2002-Ohio-3985, at ¶14.

       {¶8}    This Court has stated that “[a] passenger in a vehicle may be convicted for

receiving stolen property where there is evidence the passenger knew the vehicle was stolen and

fled from the police.” State v. Johnson, 9th Dist. No. 23515, 2007-Ohio-4133, ¶15, citing In re
                                                 4


Bickley (June 23, 1993), 9th Dist. No. 15974, and Matter of Windle (Dec. 2, 1993), 10th Dist.

No. 93AP-746. “While ‘[m]ere presence in a stolen vehicle is never sufficient to convict for

receiving stolen property,’ if the passenger has ‘reasonable cause to believe that the vehicle is

stolen and either remain[s] for some time in the vehicle after that knowledge or participate[s] or

aid[s] in the theft itself[,]’ a conviction for receiving stolen property can stand.” Id., quoting In

re Bromfield, 1st Dist. No. C-030446, 2004-Ohio-450, at ¶12.

Sufficiency of the Evidence

       {¶9}    The law pertaining to a challenge to the sufficiency of the evidence is well settled:

       “An appellate court’s function 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. Galloway (Jan. 31, 2001), 9th Dist.
       No. 19752.

The test for sufficiency requires a determination of whether the State has met its burden of

production at trial. State v. Walker (Dec. 12, 2001), 9th Dist. No. 20559; see, also, State v.

Thompkins (1997), 78 Ohio St.3d 380, 390.

       {¶10} In support of his first assignment of error, Rivers argues that the State failed to

submit any evidence of constructive possession of the automobile, other than the fact that Rivers

was inside the automobile. Rivers contends that there was no evidence presented that he

exercised dominion or control over the automobile. In support of his position, Rivers cites to the

Eighth District’s decision in State v. Sims (1983), 10 Ohio App.3d 56, for the proposition that a

mere passenger in a vehicle cannot be convicted of receiving stolen property. Rivers also

emphasizes that he was acquitted of the companion charges of robbing the owner of the

automobile and theft of an automobile.
                                                  5


       {¶11} Like the Eighth District, this Court has also held that more than simply being

present is required for a passenger to be convicted of receiving stolen property. Johnson at ¶15.

If the passenger has reasonable cause to believe the vehicle is stolen, however, and either

remains in the vehicle for some time or participates or aids in the theft, a conviction for receiving

stolen property is proper. Id. On this last point, Rivers emphasizes that he was not convicted of

theft of the vehicle. His acquittal on this count is not determinative of whether there was

sufficient evidence to prove his guilt of receiving stolen property. Even though the jury found

that there was not evidence beyond a reasonable doubt that he committed all of the elements of

theft of the vehicle, that does not mean that Rivers did not participate or aid in the theft. With

these legal principles in mind, we turn to the evidence presented at trial.

       {¶12} The story begins before Ms. Mayo-Silvey was shoved to the Midway Mall

parking lot and her vehicle stolen late on a February afternoon. Several hours earlier, a Macy’s

security officer watched two young men, Rivers and David Washington, on store security

monitors. She watched them because of the number of shoplifting incidents where people grab

merchandise and run out the door to a waiting car. She monitored them because they stood at the

south doors at Macy’s, looking outside as if they were waiting for a car. Rivers and the other

youth left Macy’s after about thirty minutes.

       {¶13} Rivers and his accomplice returned to Macy’s about 4:15 pm. They stood in the

vestibule of the west doors where they stared into the parking lot. Shortly after the Macy’s

security officer observed Rivers and his co-defendant at the west doors, a carjacking occurred in

the west parking lot just outside of Macy’s. The Macy’s security officer did not see the two men

at the mall again that day.
                                                 6


       {¶14} Ms. Mayo-Silvey was shopping at the Midway Mall Macy’s on a February

afternoon. She left the store around 4:19 p.m., exiting through west-facing doors. She was

attacked from the side and shoved to the ground. As he choked her, her assailant demanded her

keys. She felt something – an elbow or a gun – pressing in her back as she struggled. After she

gave up her keys, her assailant got into Ms. Mayo-Silvey’s car and drove away. He drove

toward the Sears Automotive Center and then toward Interstate 90.           Police arrived within

minutes and pursued the stolen car.

       {¶15} Police officers from multiple agencies chased the car. The driver fled on I-90,

exceeding 100 m.p.h. at times. The car weaved in and out of traffic. After running over “stop

sticks,” devices intended to deflate the tires, the car continued its reckless driving. The vehicle

exited the highway by driving in the wrong direction up an interstate on-ramp. During this time,

one of the officers was able to identify that Rivers was a passenger in the fleeing auto, and the

defendant stipulated that he was present in the vehicle.

       {¶16} The vehicle eventually exited the interstate, turned down a side street, sideswiping

a car in the process, and turned in to a wooded area. Rivers and the driver fled from the car.

Rivers was caught in the woods.

       {¶17} Rivers’ general position on appeal is that the State never demonstrated that he was

in possession of the stolen vehicle. In viewing the evidence presented at trial in the light most

favorable to the State, however, we conclude that the State presented sufficient evidence to prove

that Rivers was guilty of receiving stolen property.

       {¶18} Although Rivers focuses on possession, he does so too narrowly. We agree that

mere presence may not be sufficient, but this case does not stand on mere presence alone. Rivers

and the driver were observed together at the mall two hours before the carjacking. Just moments
                                                7


before the carjacking, Rivers and his accomplice stood at a west-facing door in Macy’s, staring

into the parking lot. Moments later, Ms. Mayo-Silvey was pushed to the ground, an object

shoved in her back, and her keys taken from her. Moments after the attacker drove the car away,

as she still sat on the ground, she called 911. She reported the attack and theft of her car. She

also described her car driving toward Sears Auto Center and then leaving the mall parking lot

toward I-90.

       {¶19} This sequence of events demonstrates that Rivers appeared with Ms. Mayo-

Silvey’s attacker at Macy’s where they stayed for several hours without making any purchases.

Shortly before the carjacking, they were together, watching the parking lot where the crime

occurred. Moments after the carjacking, Ms. Mayo-Silvey watched her car drive away from her

and exit the parking lot.

       {¶20} Considering the evidence in the light most favorable to the State, there was

sufficient evidence to prove that Rivers assisted the driver in watching for a carjacking victim.

Because of the speed of the attack, and the quick getaway of the car, the evidence supports the

conclusion that Rivers stood by as his accomplice attacked Ms. Mayo-Silvey. Rivers could not

have been unaware of the attack because Ms. Mayo-Silvey reported that, after the attack, the car

drove away and left the mall parking lot; there was no evidence that the car stopped to pick up

Rivers, who would have been unaware of the attack and theft of the auto.

       {¶21} We are also not persuaded that the jury’s acquittal of Rivers on counts related to

theft of the car requires an acquittal on receiving stolen property. The evidence, considered in a

light most favorable to the State, proves that Rivers was a passenger, as he admitted at trial, in

the stolen vehicle after participating or aiding in the theft of the property. Further, Rivers’

subsequent flight from law enforcement on foot is “evidence of consciousness of guilt, and thus
                                                8


of guilt itself.” State v. Kiley, 9th Dist. No. 10CA009757, 2011-Ohio-1156, at ¶28, quoting State

v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, at ¶167.         The State demonstrated that the two

individuals who were apprehended after the chase had been seen together earlier in the day at the

Midway Mall. Under these circumstances where Rivers had reason to believe that the vehicle

was stolen and fled from law enforcement, the evidence presented at trial was sufficient to find

Rivers guilty of receiving stolen property. See Johnson at ¶15.

       {¶22} Furthermore, Rivers’ argument that he was not in possession of the vehicle does

not take into account the fact that the jury could have found that he was complicit in receiving

stolen property. The jury was given a complicity instruction with respect to all four charges

against Rivers.   In order to convict someone of complicity, the State must prove that the

defendant supported, assisted, encouraged, cooperated with, advised, or incited the principal in

the commission of the crime. State v. Johnson (2001), 93 Ohio St.3d 240, 245. The defendant’s

participation may be inferred from his behavior before and after the offense occurs. Id. As

noted above, Rivers was seen with the driver of the stolen vehicle at Macy’s approximately five

minutes before the carjacking occurred. As the two young men were in the west vestibule of

Macy’s, they stared into the parking lot where the carjacking subsequently occurred. There is no

dispute that Rivers was a passenger in the vehicle. After the vehicle was the subject of a high

speed car chase and eventually drove into a wooded area off of Clemens Rd., Rivers attempted to

flee from law enforcement on foot. Given the evidence presented in this case, the jury could

have determined that Rivers was, at a minimum, complicit in receiving of the stolen vehicle.

       {¶23} It follows that Rivers’ first assignment of error is overruled.
                                                 9


Manifest Weight of the Evidence

       {¶24} An appellate court’s review of the sufficiency of the evidence and the manifest

weight of the evidence adduced at trial are separate and legally distinct determinations. State v.

Gulley (Mar. 15, 2000), 9th Dist. No. 19600.          “While the test for sufficiency requires a

determination of 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., citing Thompkins,

78 Ohio St.3d at 390 (Cook J., concurring).

       {¶25} A determination of whether a conviction is against the manifest weight of the

evidence, however, does not permit this Court to view the evidence in the light most favorable to

the State to determine whether the State has met its burden of persuasion. State v. Love, 9th Dist.

No. 21654, 2004-Ohio-1422, at ¶11. Rather,

       “an appellate court must 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 (1986), 33 Ohio App.3d 339,
       340.

       “Weight of the evidence concerns the tendency of a greater amount of credible
       evidence to support one side of the issue more than the other. Thompkins, 78
       Ohio St.3d at 387. Further, when reversing a conviction on the basis that it was
       against the manifest weight of the evidence, an appellate court sits as a ‘thirteenth
       juror,’ and disagrees with the factfinder’s resolution of the conflicting testimony.
       Id.” State v. Tucker, 9th Dist. No. 06CA0035-M, 2006-Ohio-6914, at ¶5.

This discretionary power should be exercised only in exceptional cases where the evidence

presented weighs heavily in favor of the defendant and against conviction. Thompkins, 78 Ohio

St.3d at 387.

       {¶26} In support of his position that his conviction was against the manifest weight of

the evidence, Rivers resubmits the arguments made in support of his first assignment of error
                                               10


where he argued that his conviction was not supported by sufficient evidence. After setting out

the pertinent law in his merit brief, Rivers states, “It is submitted that Rivers’ conviction was

against the manifest weight of the evidence, and in support the arguments in Section I are

resubmitted.”

       {¶27} Based on the aforementioned evidence, we conclude that the jury in this case did

not clearly lose its way and create such a manifest miscarriage of justice that Rivers’ conviction

must be reversed. The State presented credible evidence which tended to show that Rivers had

reason to know that vehicle was stolen, remained in the vehicle throughout the pursuit, and fled

from the police on foot after abandoning the vehicle. As was the case in Johnson, 2007-Ohio-

4133, a reasonable juror here could have concluded that Rivers was involved in stealing the

vehicle, was with the individual who stole and drove the vehicle, or at least knew the vehicle was

stolen when he got into it and/or ran from law enforcement. Johnson at ¶25. “This is enough to

convict him of receiving stolen property.” Id., citing State v. Lombardi, 9th Dist. No. 22435,

2005-Ohio-4942, at ¶20. As Rivers has not pointed to any evidence which would outweigh the

evidence presented by the State, we conclude that the jury did not clearly lose its way in finding

him guilty of receiving stolen property. Rivers’ second assignment of error is overruled.

                                               III.

       {¶28} Rivers’ first and second assignments of error are overruled. The judgment of the

Lorain County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                11


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

Pleas, County of Lorain, 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(E). 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.




                                                     DONNA J. CARR
                                                     FOR THE COURT




DICKINSON, P. J.
CONCURS

BELFANCE, J.
CONCURS IN JUDGMENT ONLY


APPEARANCES:

ERIN A. DOWNS, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and AMY IOANNIDIS BARNES, Assistant
Prosecuting Attorney, for Appellee.
