[Cite as State v. Sherfey, 2014-Ohio-1717.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. John W. Wise, J.
                          Plaintiff-Appellee   :       Hon. Patricia A. Delaney, J.
                                               :
-vs-                                           :
                                               :       Case No. 13-CA-37
TODD N. SHERFEY                                :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Fairfield County
                                                   Court of Common Pleas, Case No. 2012-
                                                   CR-388




JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            April 21, 2014



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

DARREN L. MEADE                                    SCOTT P. WOOD
Fairfield County Prosecutor's Office               144 East Main Street
239 West Main Street, Suite 101                    P.O. Box 667
Lancaster, OH 43130                                Lancaster, OH 43130
[Cite as State v. Sherfey, 2014-Ohio-1717.]


Gwin, P.J.

         {¶1}    Appellant Todd N. Sherfey [“Sherfey”] appeals his conviction and

sentence for one count of receiving stolen property a felony of the fifth degree in

violation of R.C. 2913.51 following a jury trial in the Fairfield County Court of Common

Pleas.

                                        Facts and Procedural History

         {¶2}    Sherfey was a business owner in Lancaster, Fairfield County, Ohio,

operating a precious metals brokerage. In addition to buying and selling precious

metals, Sherfey also bought and sold gift cards. With regard to both precious metals

and gift cards, Sherfey would profit by buying low and selling high. Typically, Sherfey

would sell the gift cards to an Internet clearinghouse. Although there are no

governmental regulations regarding the buying and selling of gift cards, Sherfey applied

the regulations and documentation relating to the buying and selling of precious metals

to the buying and selling of gift cards, including documenting personal information

regarding the seller and photocopying governmental identification, usually a driver's

license, and providing that information to law enforcement.

         {¶3}    T.J. Maxx, a retail chain store, through its loss prevention department,

discovered that there were a number of individuals who were running a theft ring. These

individuals would steal merchandise and other individuals would exchange the

merchandise for gift cards. The gift cards would be sold or traded for illegal drugs.

When a number of individuals involved in the theft ring were apprehended by law

enforcement, one member of the theft ring, Shane Stoughton, in exchange for immunity

from prosecution, implicated Sherfey. Stoughton claimed that Sherfey knew the gift
Fairfield County, Case No. 13-CA-37                                                      3


cards were generated from stolen property and that he purchased the gift cards for

cash. Stoughton agreed to cooperate with police to obtain incriminating information

about Sherfey during a sting operation police conducted on December 30, 2011.

1. Events Leading up to the Sting Operation.

       {¶4}   Prior to the sting operation, Lt. Shane Wilson of the Lancaster Police

Department talked to Sherfey about concerns that Stoughton was involved in a theft ring

that illegally obtained gift cards from various stores, including T.J. Maxx, that Stoughton

then sold to Sherfey. The participants in the theft ring sold approximately $15,000 worth

of gift cards at Sherfey's store in 2011. In the three months leading up to the sting

operation on December 30, 2011, Stoughton made 15 transactions involving gift cards

at Sherfey’s business. Stoughton sold $4,500 worth of gift card at Sherfey’s business as

a result of these transactions.

       {¶5}   T.J. Maxx conducted its own internal investigation. This investigation

uncovered the theft ring. Company investigator Andrew Holloway conducted

surveillance in which he observed Stoughton and his associates conducting the activity

at the Lancaster T.J. Maxx store. The investigation revealed that Stoughton and the

other participants would then go to Sherfey's store apparently to sell the gift cards.

Holloway determined that between September and December 2011, T.J. Maxx lost

approximately $14,000 as a result of thefts. Holloway made contact with the Lancaster

Police Department. On December 29, 2011, officers apprehended persons involved in

the theft ring, including Stoughton.

       {¶6}   Though Sherfey was not always the person Stoughton conducted the

transactions with, Sherfey did on occasion conduct business with Stoughton. Sherfey
Fairfield County, Case No. 13-CA-37                                                     4


was "right there" "almost all of the time" and would almost always be involved in the

transactions by discussing with his wife (who worked at the store) what percentage of

the face value of the gift cards they would pay Stoughton, counting out cash, or calling

in cards to a 1-800 number to verify the amount of the cards. In addition to the

transactions at his store, Sherfey met Stoughton or his cohorts a couple of times at a

nearby parking lot to exchange gift cards for cash, with the dollar amount being

approximately $200-$300. Sherfey would engage in suspicious activity when the theft

ring participants would sell gift cards at his store. For example, he would direct the

sellers to remove the batteries from their cell phones and place them in a refrigerator in

the store, go to a back room to discuss matters, and turn the volume on a radio up

louder apparently to avoid detection.

      {¶7}   Stoughton would use terms commonly understood to relate to theft to

explain how he had obtained the gift cards, such as “hit a lick, hustled up some cards.”

Sherfey considered Stoughton to be a friend. Sherfey implored Stoughton to “get legit.”

He further advised Stoughton to get help for Stoughton’s heroin addiction.

      {¶8}   Approximately two days before the sting operation, Sherfey told Stoughton

that Stoughton was on a "do not buy" list kept by the Lancaster Police Department. The

following day, Sherfey told Stoughton that if Stoughton wanted to sell gift cards to him

Stoughton "would have to bring somebody else in to do it."

2. The Sting Operation

      {¶9}   After the Lancaster Police Department apprehended Stoughton on

December 29, 2011, Stoughton agreed to cooperate with the police as a confidential

informant to gather incriminating information about Sherfey. On December 30, 2011,
Fairfield County, Case No. 13-CA-37                                                    5


after initial police protocols to ensure the operation was controlled, Stoughton went to

Sherfey’s store with a gift card T.J. Maxx created and the police gave him. There, he

talked with Sherfey in a back room after Sherfey turned up the volume on a radio.

Sherfey told Stoughton he could not buy gift cards from Stoughton, and that Stoughton

could figure out what to do. Sherfey then loaned Stoughton $170, stating to Stoughton,

“I can loan you money. It “don't matter if I know what you do. I'm just a man loaning you

money. There's nothing illegal about that."

       {¶10} After his initial contact with Sherfey, Stoughton met with police. Karlee

Cumbo, one of the other participants in the theft ring, also agreed to cooperate with

police. The police and Stoughton placed a recorded call to Sherfey. Stoughton told

Sherfey he had "hustled up some more cards" and wanted to know if Sherfey would buy

them. Sherfey stated he could not buy the cards from Stoughton, but he would be able

to buy cards "from people" that day. Stoughton told Sherfey that he and his girlfriend

would be there shortly.

       {¶11} The police issued Stoughton three gift cards purporting to be from T.J.

Maxx and valued at more than $1,000. Stoughton walked with Cumbo into Sherfey’s

store with the cards in his hand. Sherfey stated he could not buy the cards from

Stoughton. Stoughton then handed the cards to Cumbo. Sherfey directed Stoughton

outside, saying “Let’s go talk.”

       {¶12} While outside, Sherfey made statements that indicated his knowledge of

the illegal nature of the cards Stoughton was selling and had been selling. Sherfey told

Stoughton he would prefer it if Stoughton would “send in" another person rather than

bringing the other person inside the business. Sherfey had previously told Stoughton
Fairfield County, Case No. 13-CA-37                                                     6


that Stoughton was on a "do not buy" list he believed the Lancaster Police Department

was keeping. While outside the store, Sherfey talked about how his business associate

advised him not to buy gift cards from people on the list. At that point, Stoughton

indicated to Sherfey that was the reason he brought Cumbo. Sherfey and Stoughton

also discussed T.J. Maxx becoming aware of the fraudulent gift card activity. Sherfey

told Stoughton if he did not stop, Stoughton was "going to get caught."

      {¶13} Sherfey explained that as a result of the police and T.J. Maxx becoming

aware of the fraudulent gift card activity, he was lowering the amount he would pay for

T.J. Maxx cards as opposed to gift cards from other stores. This was Sherfey’s attempt

to dissuade people from selling the cards to him. Stoughton also talked to Sherfey about

Stoughton's addiction to illegal drugs and how that was causing him to engage in

"illegal" activity. Cumbo sold the gift cards to Sherfey’s wife inside the business while

Sherfey and Stoughton talked outside. Sherfey’s wife Olga Sherfey, worked at the

business. Olga documented the transaction as with any other gift card transaction. After

Olga purchased the gift cards from Cumbo, she put them in the business drawer.

      {¶14} Immediately after the transaction, law enforcement entered the store,

seized the cards from the business drawer where Olga had placed them and arrested

Sherfey and charged him with receiving stolen property.

      {¶15} On August 24, 2012, Sherfey was indicted with two counts of receiving

stolen property in violation of R.C. 2913.51. In Count 1 of the Indictment, the state

alleged that the theft offense involved property listed in R.C. 2913.71 and, therefore,

was a felony of the fifth degree. In Count 2 of the Indictment, the state alleged that the
Fairfield County, Case No. 13-CA-37                                                      7


value of the property involved was $1,000 or more, making the offense a felony of the

fifth degree.

       {¶16} Prior to the beginning of the jury trial, the state dismissed Count 1 of the

Indictment and the trial proceeded on Count 2 only (referenced throughout the trial as

Count A). After the presentation of evidence and deliberations, the jury returned a

verdict of guilty to receiving stolen property and additionally found that the value of the

property exceeded $1,000.

       {¶17} On April 15, 2013, Sherfey was sentenced to 11 months in a state penal

institution, suspended for 3 years of community control, with the condition that he serve

30 days in the Fairfield County Jail.

                                        Assignments of Error

       {¶18} Sherfey has raised two assignments of error,

       {¶19} “I. THERE WAS INSUFFICIENT EVIDENCE TO CONVICT SHERFEY OF

RECEIVING STOLEN PROPERTY AS A FELONY OF THE FIFTH DEGREE AND THE

JURY'S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶20} “II. THE TRIAL COURT ERRED BY INSTRUCTING THE JURY ON THE

INCORRECT DEFINITION OF VALUE, ENHANCING THE OFFENSE TO A FELONY

OF THE FIFTH DEGREE.”

                                                 I.

       {¶21} Sherfey contends that his conviction is against the manifest weight of the

evidence.

       {¶22} Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
Fairfield County, Case No. 13-CA-37                                                        8


2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether

“after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d

582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d

1239, 2010–Ohio–1017, ¶146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296,

2010–Ohio–2720, ¶68.

       {¶23} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded

by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio

St.3d 89, 684 N.E.2d 668, 1997-Ohio–355. 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. It indicates clearly to the jury that the party

having the burden of proof will be entitled to their verdict, if, on weighing the evidence in

their minds, they shall find the greater amount of credible evidence sustains the issue,

which is to be established before them. Weight is not a question of mathematics, but

depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541,

quoting Black's Law Dictionary (6th Ed. 1990) at 1594.

       {¶24} When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting

testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102

S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely
Fairfield County, Case No. 13-CA-37                                                           9


substitute its view for that of the jury, but must find that “‘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, supra, 78 Ohio St.3d at 387, quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983).

Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case

in which the evidence weighs heavily against the conviction.’” Id.

              “[I]n determining whether the judgment below is manifestly against

       the weight of the evidence, every reasonable intendment and every

       reasonable presumption must be made in favor of the judgment and the

       finding of facts.

                                             ***

               “If the evidence is susceptible of more than one construction, the

       reviewing court is bound to give it that interpretation which is consistent

       with the verdict and judgment, most favorable to sustaining the verdict and

       judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

       {¶25} In the case at bar, Sherfey argues that the evidence presented at trial fails

to prove that he was a party to the transaction that sold the gift cards; the evidence

failed to prove that Sherfey ever possessed the sting gift cards, either actually or

constructively; and the evidence failed to show that the sting gift cards were explicitly

represented to be stolen.
Fairfield County, Case No. 13-CA-37                                                      10


       {¶26} In the case at bar, the transaction took place at the business owned by

Sherfey. Sherfey’s wife participated in the exchange of the gift cards while Sherfey and

Stoughton talked outside the store. Prior to the exchange Stoughton telephoned

Sherfey and told him that he, Stoughton had some more cards. (2T. at 374-375; State’s

Exhibit T). Sherfey replied that he could not buy cards from Stoughton. (Id.) Stoughton

responded that they were not from him they were from his girlfriend and she was

coming in. (Id.) Sherfey responded that he had money and he could buy cards from

people that day. (Id.) Stoughton told Sherfey that he and his girl would be in just a little

bit, fifteen to twenty minutes. (Id.)

       {¶27} Stoughton testifed that he had the gift cards in his hand when he and

Karlee entered Sherfey’s establishment. (2T. at 377; 379). Sherfey told Stoughton that

he could not buy from him. (Id.; State’s Exhibit T) Stoughton then handed the gift cards

to Karlee and told Sherfey “I’m not selling them, she is.” (2T. at 379; State’s Exhibit T)

At that point Sherfey tells Stoughton, “come talk to me.” (State’s Exhibit T) The pair then

left the store. Sherfey tells Stoughton while outside the he cannot buy from him.

Stoughton tells Sherfey “that’s why I brought – you know what I’ saying.” (State’s Exhibit

T) Sherfey responses “I do, I do, absolutely.” (T. at 386; State’s Exhibit T.) Also during

this conversation Sherfey tells Stoughton “don’t bring her in, send her in.” (T. at 382;

State’s Exhibit T.)

       {¶28} During the conversation that took place outside the store, Stoughton told

Sherfey “doing the return game is about done” because T.J. Maxx is “getting hip.”

(State’s Exhibit T) Sherfey responded that eventually Stoughton is going to be caught

and that he should not do it anymore. (Id.). He further told Stoughton that Stoughton has
Fairfield County, Case No. 13-CA-37                                                        11


helped him pay his mortgage for the past few months. (Id.). When Sherfey tells

Stoughton that he now is only paying 30% for T.J. Maxx gift cars, Stoughton responds,

“That’s my easiest hustle. They got lack security and a no hassle return policy.” (Id.).

       {¶29} Karlee came out to tell Stoughton that they were only paying 30% on the

T.J. Maxx gift cards Sherfey, Stoughton, and Karlee then go inside the business where

Stoughton asks Sherfey if that is all they are going to do now. Sherfey replies,

“Remember what we were talking about.” (Id.) Karlee handed Stoughton the cash while

inside the store in the presence of Sherfey (T. at 381:389)

       {¶30} Sherfey was convicted of receiving stolen property. R.C. 2913.51 states,

in part,

              (A) 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.

       {¶31} R.C. 2901.22 defines “knowingly” as follows:

              (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.

       {¶32} Whether a person acts knowingly can only be determined, absent a

defendant's admission, from all the surrounding facts and circumstances, including the

doing of the act itself.” (Footnotes omitted). State v. Huff, 145 Ohio App.3d 555, 563,

763 N.E.2d 695(1st Dist. 2001). Thus, “[t]he test for whether a defendant acted

knowingly is a subjective one, but it is decided on objective criteria.” State v. McDaniel,
Fairfield County, Case No. 13-CA-37                                                  12

2nd Dist. Montgomery No. 16221, 1998 WL 214606 (May 1, 1998) (citing State v. Elliott,

104 Ohio App.3d 812, 663 N.E.2d 412(10th Dist. 1995)).

      {¶33} R.C. 2925.01(K) defines possession as follows: “ ‘Possess' or ‘possession’

means having control over a thing or substance, but may not be inferred solely from

mere access to the thing or substance through ownership or occupation of the premises

upon which the thing or substance is found.” R.C. 2901.21 provides the requirements

for criminal liability and provides that possession is a “voluntary act if the possessor

knowingly procured or received the thing possessed, or was aware of the possessor's

control of the thing possessed for sufficient time to have ended possession.” R.C.

2901.21(D)(1).

      {¶34} Possession may be actual or constructive. State v. Butler, 42 Ohio St.3d

174, 176, 538 N.E.2d 98(1989); State v. Haynes, 25 Ohio St.2d 264, 267 N.E.2d

787(1971); State v. Hankerson, 70 Ohio St.2d 87, 434 N.E.2d 1362(1982), syllabus. To

establish constructive possession, the evidence must prove that the defendant was able

to exercise dominion and control over the contraband. State v. Wolery, 46 Ohio St.2d

316, 332, 348 N.E.2d 351(1976). Dominion and control may be proven by circumstantial

evidence alone. State v. Trembly, 137 Ohio App.3d 134, 738 N.E.2d 93(8th Dist. 2000).

Circumstantial evidence that the defendant was located in very close proximity to the

contraband may show constructive possession. State v. Butler, supra; State v. Barr, 86

Ohio App.3d 227, 235, 620 N.E.2d 242, 247-248(8th Dist. 1993); State v. Morales, 5th

Dist. Licking No. 2004 CA 68, 2005-Ohio-4714, ¶50; State v. Moses, 5th Dist. Stark No.

2003CA00384, 2004-Ohio-4943,¶9. Ownership of the contraband need not be

established in order to find constructive possession. State v. Smith, 9th Dist. Summit
Fairfield County, Case No. 13-CA-37                                                         13

No. 20885, 2002-Ohio-3034, ¶13, citing State v. Mann, (1993) 93 Ohio App.3d 301,

308, 638 N.E.2d 585(8th Dist. 1993). Furthermore, possession may be individual or

joint. Wolery, 46 Ohio St.2d at 332, 348 N.E.2d 351. Multiple individuals may

constructively possess a particular item of contraband simultaneously. State v. Pitts, 4th

Dist. Scioto No. 99 CA 2675, 2000-Ohio-1986. The Supreme Court has held that

knowledge of illegal goods on one's property is sufficient to show constructive

possession. State v. Hankerson, 70 Ohio St.2d 87, 91, 434 N.E.2d 1362, 1365(1982),

certiorari denied, 459 U.S. 870, 103 S.Ct. 155, 74 L.Ed.2d 130(1982).

       {¶35} If the state relies on circumstantial evidence to prove an essential element

of an offense, it is not necessary for “such evidence to be irreconcilable with any

reasonable theory of innocence in order to support a conviction.” State v. Jenks, 61

Ohio St.3d 259, 272, 574 N.E. 2d 492(1991), paragraph one of the syllabus,

superseded by State constitutional amendment on other grounds as stated in State v.

Smith, 80 Ohio St.3d 89, 684 N.E.2d 668(1997). “Circumstantial evidence and direct

evidence inherently possess the same probative value [.]” Jenks, 61 Ohio St.3d at

paragraph one of the syllabus. Furthermore, “[s]ince circumstantial evidence and direct

evidence are indistinguishable so far as the jury's fact-finding function is concerned, all

that is required of the jury is that i[t] weigh all of the evidence, direct and circumstantial,

against the standard of proof beyond a reasonable doubt.“ Jenks, 61 Ohio St.3d at 272,

574 N.E. 2d 492. While inferences cannot be based on inferences, a number of

conclusions can result from the same set of facts. State v. Lott, 51 Ohio St.3d 160, 168,

555 N.E.2d 293(1990), citing Hurt v. Charles J. Rogers Transp. Co, 164 Ohio St. 329,

331, 130 N.E.2d 820(1955). Moreover, a series of facts and circumstances can be
Fairfield County, Case No. 13-CA-37                                                       14

employed by a jury as the basis for its ultimate conclusions in a case. Lott, 51 Ohio

St.3d at 168, 555 N.E.2d 293, citing Hurt, 164 Ohio St. at 331, 130 N.E.2d 820.

       {¶36} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

Sherfey committed the crime of receiving stolen property. We hold, therefore, that the

state met its burden of production regarding each element of the crime of receiving

stolen property and, accordingly, there was sufficient evidence to support Sherfey's

conviction for receiving stolen property.

       {¶37} As an appellate court, we are not fact finders; we neither weigh the

evidence nor judge the credibility of witnesses. Our role is to determine whether there is

relevant, competent and credible evidence upon which the fact finder could base his or

her judgment. Cross Truck v. Jeffries, 5th Dist. No. CA–5758, 1982 WL 2911(Feb. 10,

1982). Accordingly, judgments supported by some competent, credible evidence going

to all the essential elements of the case will not be reversed as being against the

manifest weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d

279, 376 N.E.2d 578(1978). The Ohio Supreme Court has emphasized: “‘[I]n

determining whether the judgment below is manifestly against the weight of the

evidence, every reasonable intendment and every reasonable presumption must be

made in favor of the judgment and the finding of facts. * * *.’” Eastley v. Volkman, 132

Ohio St.3d 328, 334, 972 N.E. 2d 517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc.

v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio

Jurisprudence 3d, Appellate Review, Section 603, at 191–192 (1978). Furthermore, it is

well established that the trial court is in the best position to determine the credibility of
Fairfield County, Case No. 13-CA-37                                                           15

witnesses. See, e.g., In re Brown, 9th Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing

State v. DeHass, 10 Ohio St .2d 230, 227 N.E.2d 212(1967).

       {¶38} Ultimately, “the reviewing court must determine whether the appellant or

the appellee provided the more believable evidence, but must not completely substitute

its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact

finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,

¶31, quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964

(2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of

the evidence or two conflicting versions of events, neither of which is unbelievable, it is

not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning

No. 99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197,

201, 722 N.E.2d 125(7th Dist. 1999).

       {¶39} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d

212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-

Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80,

62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct.

843, 74 L.Ed.2d 646 (1983).

       {¶40} The jury as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness’s credibility. "While the jury may

take note of the inconsistencies and resolve or discount them accordingly * * * such

inconsistencies do not render defendant's conviction against the manifest weight or

sufficiency of the evidence." State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL
Fairfield County, Case No. 13-CA-37                                                     16

29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236,

1996 WL 284714 (May 28, 1996). Indeed, the jury need not believe all of a witness'

testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin

No. 02AP-604, 2003-Ohio-958, ¶21, citing State v. Antill, 176 Ohio St. 61, 67, 197

N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889,

citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992).

Although the evidence may have been circumstantial, we note that circumstantial

evidence has the same probative value as direct evidence. State v. Jenks, supra.

      {¶41} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,

quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury neither lost his way

nor created a miscarriage of justice in convicting Sherfey of the charges.

      {¶42} Based upon the foregoing and the entire record in this matter, we find

Sherfey’s convictions were not against the sufficiency or the manifest weight of the

evidence. To the contrary, the jury appears to have fairly and impartially decided the

matters before them. The jury as a trier of fact can reach different conclusions

concerning the credibility of the testimony of the state’s witnesses. This court will not

disturb the jury's finding so long as competent evidence was present to support it. State

v. Walker, 55 Ohio St.2d 208, 378 N.E.2d 1049 (1978). The jury heard the witnesses,

evaluated the evidence, and was convinced of Sherfey’s guilt.

      {¶43} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of the

crime beyond a reasonable doubt.
Fairfield County, Case No. 13-CA-37                                                        17


       {¶44} Sherfey first assignment of error is overruled.

                                                 II.

       {¶45} In the case at bar, value enhanced the offense from a first-degree

misdemeanor to a felony of the fifth degree. In his second assignment of error, Sherfey

contends that the trial judge erred by not instructing the jury that the definition of “value”

was fair market value, pursuant to R.C. 2913.61(D)(3), or, in the alternative, the trial

court should have used the definition of value under R.C. 2913.61(E)(5).

       {¶46} The trial court, over objection by Sherfey, instructed the jury on value,

pursuant to R.C. 2913.61(E)(6) as follows:

              When the property involved is an instrument entitling the holder or

       bearer to receive property, the face value, or, if there is no face value, the

       value of the property that may be received by the instrument is prima facie

       evidence of the value of the instrument. (5T. at 922).

       {¶47} Sherfey objected to this instruction and requested the trial court to instruct

the jury that the appropriate definition of value was fair market value, pursuant to R.C.

2913.61(D)(3), or, in the alternative, the trial court should have used the definition of

value under R.C. 2913.61(E)(5). (5 T. at 941-943).

       {¶48} R.C. 2913.61(D) provides,

              (3) The value of any real or personal property that is not covered

       under division (D)(1) or (2) of this section, and the value of services, is the

       fair market value of the property or services. As used in this section, “fair

       market value” is the money consideration that a buyer would give and a

       seller would accept for property or services, assuming that the buyer is
Fairfield County, Case No. 13-CA-37                                                       18


      willing to buy and the seller is willing to sell, that both are fully informed as

      to all facts material to the transaction, and that neither is under any

      compulsion to act.

      {¶49} R.C. 2913.61(E)(5) states,

             (E) Without limitation on the evidence that may be used to establish

      the value of property or services involved in a theft offense:

                                            ***

             (5) When the property involved is a warehouse receipt, bill of

      lading, pawn ticket, claim check, or other instrument entitling the holder or

      bearer to receive property, the face value or, if there is no face value, the

      value of the property covered by the instrument less any payment

      necessary to receive the property is prima-facie evidence of the value of

      the instrument.

      {¶50} The giving of jury instructions is within the sound discretion of the trial

court and will not be disturbed on appeal absent an abuse of discretion. State v.

Martens, 90 Ohio App.3d 338, 629 N.E.2d 462 (3rd Dist.1993). In order to find an abuse

of that discretion, we must determine the trial court's decision was unreasonable,

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140(1983). Jury instructions must be

reviewed as a whole. State v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792(1988).

      {¶51} “Error in refusing to give a special request to charge before argument

must be prejudicial in order to support reversal of a judgment rendered against a party

complaining of such error.” Smith v. Flesher, 12 Ohio St.2d 107, 233 N.E.2d 137(1967),
Fairfield County, Case No. 13-CA-37                                                         19


syllabus. It is well established that the trial court will not instruct the jury where there is

no evidence to support an issue. Riley v. Cincinnati, 46 Ohio St.2d 287, 348 N.E.2d

135(1976). “In reviewing a record to ascertain the presence of sufficient evidence to

support the giving of a[n] * * * instruction, an appellate court should determine whether

the record contains evidence from which reasonable minds might reach the conclusion

sought by the instruction.” Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 591, 575

N.E.2d 828, 832 (1991).

       {¶52} R.C. 2913.61(D). That section provides:

              The following criteria shall be used in determining the value of

       property or services involved in a theft offense:

              (1) The value of an heirloom, memento, collector’s item, antique,

       museum piece, manuscript, document, record, or other thing which has

       intrinsic worth to its owner and which is either irreplaceable or is

       replaceable only on the expenditure of substantial time, effort, or money,

       is the amount which would compensate the owner for its loss.

              (2) The value of personal effects and household goods, and of

       materials, supplies, equipment, and fixtures used in the profession,

       business, trade, occupation, or avocation of its owner, which property is

       not covered under division (D)(1) of this section, and which retains

       substantial utility for its purpose regardless of its age or condition, is the

       cost of replacing such property with new property of like kind and quality.

              (3) The value of any property, real or personal, not covered under

       division (D)(1) or (2) of this section, and the value of services, is the fair
Fairfield County, Case No. 13-CA-37                                                        20


       market value of such property or services. As used in this section, ‘fair

       market value’ is the money consideration which a buyer would give and a

       seller would accept for property or services, assuming that the buyer is

       willing to buy and the seller is willing to sell, that both are fully informed as

       to all facts material to the transaction, and that neither is under any

       compulsion to act.

       {¶53} The Ohio Supreme court has reviewed R.C. 2913.61(D) and concluded,

              There are three methods for valuing property under this section,

       which correspond to three different descriptions, or classifications of

       property. In order to value an item in any given case the logical approach

       is to compare it in successive order with each of the descriptions. When

       the description which matches it is reached, the corresponding method of

       valuation should be used.

State v. Chaney, 11 Ohio St.3d 208, 210, 465 N.E.2d 53.(1984). The Court further

cautioned not more than one division may apply to any particular item. 11 Ohio St.3d at

255,465 N.E.2d 53.

       {¶54} Division (D)(1) pertains to heirlooms and other items of intrinsic or unusual

worth. It is readily apparent that the gift cards in the case at bar do not meet these

qualifications.

       {¶55} Division (D)(2) covers personal effects, household goods, and material,

supplies, equipment and fixtures used in the profession, business, trade, occupation or

avocation of the owner. Such property must not have been covered under division

(D)(1) and must be of a kind which retains substantial utility for its age and condition.
Fairfield County, Case No. 13-CA-37                                                           21


The corresponding method of valuation is the cost of replacing the items with new ones

of like kind and quality. The gift cards in the case at bar do not meet this definition.

       {¶56} Division (D)(3) is the catchall provision. Chaney, 11 Ohio St.3d at 210, 465

N.E.2d 53. The corresponding method of valuation is the fair market value of such

property. As used in this section, “‘fair market value’ is the money consideration which a

buyer would give and a seller would accept for property or services, assuming that the

buyer is willing to buy and the seller is willing to sell, that both are fully informed as to all

facts material to the transaction, and that neither is under any compulsion to act.”

Sherfey argues first that the trial court should have instructed the jury that fair market

value is the correct valuation method. In the alternative Sherfey contends that under

R.C. 2913.16(E)(5) the value of the gift cards would be the face value of $1,162.48 less

the $348.00 he paid Stoughton for the gift cards. Sherfey argues under either definition,

the “value” would be less than the $1,000.00 needed to elevate the crime to a felony

offense.

       {¶57} Although the evidence established that Sherfey paid 30% of the face value

of the cards to Stoughton, there is no evidence as to the amount Sherfey received for

the stolen gift cards. Nor does Sherfey point to any evidence in the record to establish

the price that a willing buyer would pay in the secondary gift card market.

       {¶58} We do not subtract the cost of pulling off the caper when we calculate the

value of stolen property. The general test for determining the market value of stolen

property is the price a willing buyer would pay a willing seller at the time and place the

property was stolen.
Fairfield County, Case No. 13-CA-37                                                    22


      {¶59} In this case, there is no buyer, only a fence and there is no seller, only a

thief, so there is no way to determine what someone would have actually paid for the

gift cards in good faith. Cf. State v. Reese, 165 Ohio App.3d 21, 2005-Ohio-7075, 844

N.E.2d 873(7th Dist. 2005), ¶30.

      {¶60} The gift cards in this case were shown to have a face value the aggregate

of which exceeded $1,000.00. That is persuasive evidence of the potential value. United

States v. Perry, 638 F.2d 862, 865 (5th Cir.1981). When merchandise is stolen from a

merchant, market value is the sales price the merchant would have obtained for the

merchandise. United States v. Cummings, 798 F.2d 413, 416(10th Cir. 1986); United

States v. Robinson, 687 F.2d 359, 360(11th Cir. 1982). Thus, where the victim is a retail

merchant, the market value is the retail sales price. United States v. Wasz, 450 F.2d

720, 727-728(7th Cir. 2006); Cave v. United States, 390 F.2d 58, 67 (8th Cir.1968), cert.

denied, 392 U.S. 906, 88 S.Ct. 2059, 20 L.Ed.2d 1365 (1968).

      {¶61} In the case at bar, an individual possessing a gift card could take that card

to the retailer and redeem it for the full face value of the card. The retailer would then

lose cash or merchandise equal to the face value of the gift card.

      {¶62} The trial court’s instruction on “value” did not prejudice Sherfey because

there was no evidence to support Sherfey’s requested instructions.

      {¶63} Sherfey’s second assignment of error is overruled.
Fairfield County, Case No. 13-CA-37                                          23


      {¶64} The judgment of the Court of Common Pleas, Fairfield County, Ohio is

affirmed.


By Gwin, P.J.,

Wise, J., and

Delaney, J., concur
