[Cite as State v. Dahir, 2020-Ohio-467.]


                              IN THE COURT OF APPEALS OF OHIO
                                   TENTH APPELLATE DISTRICT

State of Ohio,                                   :

                 Plaintiff-Appellee,             :
                                                                       No. 19AP-371
v.                                               :                  (C.P.C. No. 18CR-715)

Zakaria A. Dahir,                                :            (REGULAR CALENDAR)

                 Defendant-Appellant.            :



                                           D E C I S I O N

                                    Rendered on February 11, 2020


                 On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
                 Prichard, for appellee.

                 On brief: Brian J. Rigg, for appellant.

                  APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
        {¶ 1} Defendant-appellant, Zakaria A. Dahir, appeals a judgment of the Franklin
County Court of Common Pleas entered on May 9, 2019, convicting him following a bench
trial of one count of receiving stolen property and sentencing him to serve three years of
community control. Because Dahir's conviction was sufficiently supported and not against
the manifest weight of the evidence, we overrule both his assignments of error and affirm.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On February 12, 2018, a Franklin County Grand Jury indicted Dahir for one
count of receiving stolen property based on the allegation that he possessed a credit card
owned by Andrea Black while knowing or having reasonable cause to believe that the card
had been obtained through the commission of a theft offense. (Feb. 12, 2018 Indictment.)
After pleading "not guilty," Dahir waived his right to a jury and the case proceeded to trial
before a judge of the Franklin County Court of Common Pleas. (Feb. 26, 2018 Plea Form;
Mar. 20, 2019 Jury Waiver; Tr., filed June 26, 2019.)
No. 19AP-371                                                                                2


       {¶ 3} The first witness to testify was a Bexley Police officer who stopped Dahir on
November 11, 2017 because Dahir was driving at night with his headlights off. (Tr. at 13-
14.) During the stop, the officer searched the vehicle and Dahir's person because the officer
smelled marijuana. (Tr. at 15.) The police officer found marijuana residue in the car. (Tr.
at 16.) In the course of the search of Dahir's person, the officer found two credit cards that
did not have Dahir's name on them. (Tr. at 17.) The officer testified that he could not recall
if Dahir had a wallet but thought that, whether Dahir did or not, the cards in question were
loose in Dahir's pocket. (Tr. at 17-18.) The officer recounted that Dahir explained his
possession of the cards by stating that he worked security at a building in downtown
Columbus, had found the cards in a wallet, and was intending to return them the following
day at work. (Tr. at 17.) The officer took the cards for safekeeping and entered them into
the property room for potential follow-up by detectives. (Tr. at 18, 22.) Dahir was
cooperative and was permitted to leave the stop without being charged or arrested. (Tr. at
20.)
       {¶ 4} The next witness was a detective sergeant with the Bexley Police Department.
(Tr. at 26.) The detective testified that during the course of his investigation, he determined
that the card at issue in this case (the card bearing the name, "Andrea Black") was stolen.
(Tr. at 29-31.) He was aware Dahir had given an explanation for having the cards but did
not further investigate that explanation or attempt to get Dahir's side of the story. (Tr. at
35-38.) He charged Dahir with receiving stolen property. (Tr. at 32.)
       {¶ 5} The final witness was Andrea Black. (Tr. at 39.) Black testified that on
November 5, 2017, she received a notification from her bank that someone was using her
card. (Tr. at 47.) She immediately had the bank deactivate the card and, to her knowledge,
no one tried to use the card further after that point. (Tr. at 44-47.) She said no one had
permission to use her card and that she had not lent it to anyone. (Tr. at 42.) She stated
that she did not know Dahir. Id. She explained that it appeared her card had been stolen
along with her wallet and purse from her vehicle some time the day before, on November 4.
(Tr. at 42-45.) She testified that she had reported the theft to the Columbus Police
Department. (Tr. at 40.)
       {¶ 6} At the close of the plaintiff-appellee's, State of Ohio's, case, Dahir through
counsel moved for dismissal under Crim.R. 29. (Tr. at 48-51.) The trial court denied
No. 19AP-371                                                                              3


Dahir's motion. Id. Thereafter, without presenting any witnesses or evidence, the defense
rested. (Tr. at 51.) After listening to closing arguments, the trial court called a 20-minute
recess. (Tr. at 56.) The trial court then reconvened and delivered a decision and verdict
from the bench as follows:
               I have reviewed the trial testimony offered in this case as well
               as the sole exhibit, Exhibit E, the credit card. It does appear to
               be in the name of an Andrea Black. She identified this card as
               being the one that was stolen out of her car and reported stolen
               to Columbus Police on November 5 of 2017.

               It was Ms. Black's testimony that she received a notification
               from her financial institution that there were unauthorized or
               unusual transactions being placed on it, and it was at that time
               she realized the card had been stolen, and she filed a report
               with the Columbus Police Department.

               The Court also heard the testimony of Officer Fleming, the
               Bexley police officer who conducted the stop of the defendant.
               He testified that he smelled the odor of burnt marijuana
               emanating from the car and that based on that, he removed the
               operator, who he identified as the defendant, had found more
               evidence of marijuana usage in the car and, therefore,
               conducted a search of the defendant based on probable cause.

               At that time, Officer Fleming testified he found two credit cards
               loose-leaf in the defendant's pockets on his person.

               We also heard from Sergeant Holdren who testified about the
               follow-up investigation that was done in light of that report.

               The State of Ohio must prove in order to prove a charge of
               receiving stolen property that the defendant retained, received,
               or disposed of in this case a credit card with the knowledge or
               having reasonable cause to believe that that property was
               obtained through a theft offense.

               Courts in Ohio have defined reasonable cause to believe as
               being similar to knowledge in that the knowledge must be
               sufficient to show that the offender knew that the property at
               issue was likely to be of a certain nature or that there were
               certain circumstances surrounding the property as to put them
               on notice.

               The Tenth District Court of Appeals has held that in regards to
               having reasonable cause to believe that the property is stolen,
               one has reasonable cause to believe that it was obtained
No. 19AP-371                                                                      4


               through a theft offense when after putting oneself in the
               position of the defendant with his knowledge, lack of
               knowledge, and under the circumstances and conditions that
               surrounded him at the time, the acts and words and all the
               surrounding circumstances would have caused a person of
               ordinary prudence and care to believe that the property had
               been obtained through the commission of a theft offense.

               That comes from State v. Kirby, 2006-Ohio-5952. That's a
               Tenth District case interpreting several older cases from the
               '80s and '90s.

               The circumstances of this case indicate that the defendant did
               know or had reasonable cause to believe that the card was
               stolen in considering the recency of the theft report; the fact
               that the card was used without -- there were unauthorized uses
               of the card after it had been stolen; the fact that the card was
               found loose-leaf in his pockets in the evening when he was not
               working security; he was not working at his job or in his
               employment; he was driving down the street when these cards
               were recovered. These all indicate that the defendant should
               have known that the card was stolen.

               It is not in the defendant's name. It belongs to someone who
               has absolutely no idea or knowledge of who the defendant is.
               Together with all those facts and circumstances, it indicates
               that the defendant knew and the Court finds that the defendant
               knew or had reasonable cause to believe that the card was
               obtained through the commission of a theft offense.

               Furthermore, there was testimony from Officer Fleming that
               there was a second credit card belonging to a second individual
               also in the defendant's pockets. Although the Court did not
               allow testimony about that card because it was related to an
               unindicted issue or a victim, the Court has considered that
               pursuant to Evidence Rule 404(B), showing the defendant's
               knowledge that these cards were stolen.

               I do think that is a proper use of that information. Even though
               we didn't get the name of the individual involved in that second
               card, the fact that the defendant is carrying around two cards
               that are in other individual's names who did not belong to him
               in his pants pocket at nighttime while he's not at work, the
               Court will consider that for knowledge that the defendant knew
               these credit cards or had reasonable cause to believe these
               credit cards were stolen.
No. 19AP-371                                                                            5


                  The Court finds that that is a proper limited use of that
                  information pursuant to Evidence Rule 404(B), but even
                  without that information, the Court finds that there is sufficient
                  factual information and circumstances in the circumstances
                  surrounding the investigation to indicate that the defendant is
                  guilty of the offense of receiving stolen property as indicted.

                  Therefore, the Court will find that the defendant -- the State of
                  Ohio has met their burden of proof. They have proven beyond
                  a reasonable doubt that the defendant did commit the offense
                  as charged in Count 1.

                  You know, just to comment on the defendant's explanation, you
                  know, his explanation is not completely innocent. If the
                  defendant had been working at a security agency in a building,
                  there would have been a protocol regarding the recovery of lost
                  items. There would have been a process that should have been
                  followed.

                  And so even if we believe the offender's explanation that he
                  made to Officer Fleming that night, the fact that the cards
                  weren't turned in, the cards weren't reported to management,
                  the fact that they were taken and in his possession when he's
                  not working, when he's not on shift, when he's not on the
                  grounds where he claims to have worked, just because the
                  defendant made an innocent statement doesn't mean that that
                  is worthy of belief.

                  The circumstances, when considering all of that, in putting
                  myself in the defendant's position for what he knew or didn't
                  know and in consideration of all the circumstances, the Court
                  finds that the State of Ohio has proven the charge beyond a
                  reasonable doubt.

(Tr. at 57-61.)
       {¶ 7} On May 9, 2019, the trial court convened a sentencing hearing and ordered
Dahir to serve three years of community control. (Sent. Tr. at 8-9; May 9, 2019 Jgmt. Entry
at 1.) Dahir now appeals.
II. ASSIGNMENTS OF ERROR
       {¶ 8} Dahir presents two assignments of error for our review:
                  1. THE TRIAL COURT ERRED WHEN IT DENIED
                  DEFENDANT-APPELLANT'S R. 29 MOTION FOR
                  ACQUITTAL.
No. 19AP-371                                                                                 6


               2. THE VERDICT OF RECEIVING STOLEN PROPERTY WAS
               AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

Because resolution of these assignments of error involves some of the same analysis, we
discuss them together.
III. DISCUSSION
       {¶ 9} "A motion for acquittal under Crim.R. 29(A) is governed by the same
standard as the one for determining whether a verdict is supported by sufficient evidence."
State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, ¶ 37, citing State v. Carter, 72 Ohio
St.3d 545, 553 (1995); State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is:
               "[A] term of art meaning 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." * * * In essence, sufficiency is a test of adequacy.
               Whether the evidence is legally sufficient to sustain a verdict is
               a question of law.

Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 11, quoting Thompkins at 386;
Black's Law Dictionary 1433 (6th Ed.1990). "In reviewing a record for sufficiency, '[t]he
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. Monroe, 105 Ohio St. 3d 384, 2005-Ohio-
2282, ¶ 47, quoting State v. Jenks, 61 Ohio St.3d 259 (1991) paragraph two of the syllabus.
       {¶ 10} The Supreme Court of Ohio has "carefully distinguished the terms
'sufficiency' and 'weight' * * *, declaring that 'manifest weight' and 'legal sufficiency' are
'both quantitatively and qualitatively different.' " Eastley at ¶ 10, quoting Thompkins at
380, paragraph two of the syllabus.
               Weight of the evidence concerns "the inclination of the greater
               amount of credible evidence, offered in a trial, to support one
               side of the issue rather than the other. * * * . Weight is not a
               question of mathematics, but depends on its effect in inducing
               belief."

(Emphasis sic.) Eastley at ¶ 12, quoting Thompkins at 387; Black's at 1594. In manifest
weight analysis, "the appellate court sits as a 'thirteenth juror' and disagrees with the jury's
resolution of the conflicting testimony." Thompkins at 388, quoting Tibbs v. Florida, 457
U.S. 31, 42 (1982). " 'The court, reviewing the entire record, weighs the evidence and all
No. 19AP-371                                                                               7


reasonable inferences, considers the credibility of witnesses and determines whether in
resolving conflicts in the 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.' "
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
       {¶ 11} The Ohio Revised Code defines the offense of receiving stolen property as
follows:
               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
               offense.

R.C. 2913.51(A).    This case hinges on what the evidence shows Dahir knew or had
reasonable cause to believe. There are several different articulations of how the trial judge,
as factfinder in the stead of a jury, was to make that analysis.
       {¶ 12} This Court has often remarked that "one has reasonable cause to believe
property was obtained through a theft offense when, after putting oneself in the position of
this defendant, with his knowledge, lack of knowledge, and under the circumstances and
conditions that surrounded him at the time, the acts and words and all the surrounding
circumstances would have caused a person of ordinary prudence and care to believe that
the property had been obtained through the commission of a theft offense." (Internal
quotation marks omitted.) State v. Collins, 10th Dist. No. 11AP-130, 2012-Ohio-372, ¶ 12,
quoting State v. Skinner, 10th Dist. No. 08AP-561, 2008-Ohio-6822, ¶ 12; State v. Kirby,
10th Dist. No. 06AP-297, 2006-Ohio-5952, ¶ 11. We have also stated that there are a
number of factors, "to consider when determining whether reasonable minds could
conclude whether a defendant knew or should have known property has been stolen: (a) the
defendant's unexplained possession of the merchandise, (b) the nature of the merchandise,
(c) the frequency with which such merchandise is stolen, (d) the nature of the defendant's
commercial activities, and (e) the relatively limited time between the thefts and the recovery
of the merchandise." (Citations and internal quotation marks omitted.) Collins at ¶ 14; see
also State v. Caldwell, 10th Dist. No. 99AP-1107, 2000 WL 1707841, 2000 Ohio App.
LEXIS 5294, *18 (Nov. 16, 2000). In addition, the United States Supreme Court, the
Supreme Court of Ohio, and this Court have all agreed that, "possession of recently stolen
property, if not satisfactorily explained, is ordinarily a circumstance from which you may
No. 19AP-371                                                                                8


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." Barnes v. United States, 412 U.S. 837, 839-40, 848 (1973); accord State v.
Arthur, 42 Ohio St.2d 67, 68-69 (1975); Caldwell at *17.
       {¶ 13} In this case, on November 11, 2017, a police officer conducting a probable
cause search for marijuana during a traffic stop discovered Dahir had a credit card in the
name of a stranger in his pocket. (Tr. at 15-17.) Further investigation revealed that that
same card had been stolen and illicitly used less than a week before the stop. (Tr. at 29-31,
40-47.) Dahir explained to the officer that he had found the card in a wallet in the course
of his duties as a security guard at a building in downtown Columbus and planned to return
the card the next day. (Tr. at 17.) However, Dahir presented nothing at trial to substantiate
that explanation which is facially questionable and was questioned by the trial judge as
factfinder. For example, it makes little sense that a professional security officer, on finding
a wallet, would remove the credit cards from it and carry them around on his person while
off duty rather than, for example, placing the wallet and its contents in a designated location
for lost property or at a secure storage on the building site. To put it another way, Dahir
had possession of recently stolen property of a kind that is frequently stolen and which, by
nature of bearing the cardholder's name, is facially identifiable as lost or stolen. Yet, his
explanation for that circumstance was not satisfactory to the factfinder. (Tr. at 60-61.)
       {¶ 14} In applying this analysis to Dahir's first assignment of error, a review of the
trial court's denial of his motion for directed verdict, "viewing the evidence in a light most
favorable to the prosecution," we must conclude that a "rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt." Monroe,
2005-Ohio-2282, at ¶ 47. Thus, we find no error and overrule Dahir's first assignment of
error that the trial court erred in not granting his motion for directed verdict.
       {¶ 15} We turn to Dahir's second assignment of error, that the conviction was
against the manifest weight of the evidence. When we consider the trial court's conclusions
from the evidence, including its discussion of Dahir's credibility, and when we draw such
inferences as a juror or factfinder might, we cannot go so far as to say that the factfinder
here " 'clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.' " Thompkins, 78 Ohio St.3d at 387,
No. 19AP-371                                                                                 9


quoting Martin, 20 Ohio App.3d at 175. Thus, we find that Dahir's conviction was not
against the manifest weight of the evidence and we overrule Dahir's second assignment of
error.
IV. CONCLUSION
         {¶ 16} The trial court therefore did not err in overruling Dahir's motion for acquittal
under Crim.R. 29 or in finding him guilty, and Dahir's conviction was not against the
manifest weight of the evidence. We overrule both of Dahir's assignments of error and
affirm the judgment of the Franklin County Court of Common Pleas.
                                                                          Judgment affirmed.
                            DORRIAN and NELSON, JJ., concur.
