         [Cite as State v. Dorsey, 2012-Ohio-4043.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                        :   APPEAL NO. C-110623
                                                          TRIAL NO. 10CRB-35308-B
        Plaintiff-Appellee,                           :

  vs.                                                 :     O P I N I O N.

DIONTE DORSEY,                                        :

    Defendant-Appellant.                              :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed from is: Reversed and Appellant Discharged

Date of Judgment Entry on Appeal: September 7, 2012


John Curp, City Solicitor, Charles Rubenstien, City Prosecutor, and Marva K.
Benjamin, Assistant City Prosecutor, for Plaintiff-Appellee,

Michaela M. Stagnaro, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                          OHIO FIRST DISTRICT COURT OF APPEALS




C UNNINGHAM , Judge.

          {¶1}      Defendant-appellant Dionte Dorsey appeals from the judgment of the

Hamilton County Municipal Court convicting him of possessing criminal tools, in

violation of R.C. 2923.24(A). He argues that the trial court erroneously admitted

other-acts testimony over his objection and that his conviction was not supported by

sufficient evidence. We find merit to both arguments, and we reverse the trial court’s

judgment.

                                         Background Facts

          {¶2}      Around midnight on October 27, 2010, Cincinnati Police Officer Ron

Schultz received a radio broadcast concerning the theft of food items from a nearby

United Dairy Farmers (“UDF”) store. According to Schultz, Dorsey and his younger

brother, who were walking along the street two or three blocks away, matched the

description of the suspects. Schultz testified that as he approached he observed

Dorsey throw on the ground food items, such as a bag of chips, and a roofing

hammer.          Schultz then arrested Dorsey for possessing criminal tools.1         When

questioned, Dorsey admitted to throwing the food items, but he denied throwing the

hammer. After a search, Schultz found two screwdrivers in Dorsey’s pocket. Dorsey

declined to answer Schultz’s inquiry as to why he had the screwdrivers.

          {¶3}      At trial, Schultz testified that in many of the automobile thefts that he

had investigated through the years, a screwdriver had been shoved into the stripped

steering column and used as the key, and a hammer had been found on the floor

board. Schultz also testified, over Dorsey’s objection, that he had had contact with

Dorsey sometime in the summer of 2010, when he had “charged” him with receiving



1   Dorsey was also charged with theft, but that offense is not at issue on appeal.


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stolen property for being in a stolen automobile with a stripped steering column.

The officer admitted on cross-examination that he had not observed Dorsey breaking

into an automobile on October 27, 2010, that he was not aware that an automobile

theft had been attempted or had occurred on that date, and that he had never known

anyone to use a screwdriver or hammer to steal food from a store shelf.

       {¶4}    Schultz was the only witness who testified at trial.            After his

testimony, Dorsey moved for an acquittal. The trial court overruled Dorsey’s motion

and convicted him of possessing criminal tools. Dorsey then appealed.

       {¶5}    In two assignments of error, Dorsey argues that the trial court erred

by admitting Schultz’s challenged testimony, and that his conviction for possessing

criminal tools was not supported by sufficient evidence and was against the manifest

weight of the evidence.

       {¶6}    Before addressing the merits of the appeal, we note that the state did

not file an appellate brief. App.R. 18(C) gives us the discretion to “accept [Dorsey’s]

statement of the facts and issues as correct and reverse the judgment if [Dorsey’s]

brief reasonably appears to sustain such action.”

                          Possessing-Criminal-Tools Statute

       {¶7}    Both of Dorsey’s assignments of error implicate the evidence to

sustain a conviction for possessing criminal tools. R.C. 2923.24, possessing criminal

tools, states: “(A) No person shall possess or have under the person’s control any

substance, device, instrument, or article, with purpose to use it criminally.” The

statue requires “both control of the article and the specific intention to use the article

to commit a crime.” State v. McDonald, 31 Ohio St.3d 47, 49, 509 N.E.2d 57 (1987).

       {¶8}    To more easily establish the element of criminal intent, the legislature

has enacted the following statutory presumptions, which may be rebutted:



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              (B) Each of the following constitutes prima-facie

              evidence of criminal purpose:

               (1) Possession or control of any dangerous ordnance,

              or the materials or parts for making [a] dangerous

              ordnance, in the absence of circumstances indicating

              the dangerous ordnance, materials, or parts are

              intended for legitimate use;

              (2) Possession or control of any substance, device,

              instrument, or article designed or specifically adapted

              for criminal use;

              (3) Possession or control of any substance, device,

              instrument, or article commonly used for criminal

              purposes, under circumstances indicating the item is

              intended for criminal use.

R.C. 2923.24(B).

      {¶9}    A criminal purpose in possessing certain items may “reasonably be

inferred” from this evidence. See 1974 Committee Comment to R.C. 2923.24.

      {¶10}   Where the evidence does not fall within one of these three

circumstances, the state must prove criminal purpose beyond a reasonable doubt

without the benefit of the statutory inference. State v. Anderson, 1 Ohio App.3d 62,

64, 439 N.E.2d 450 (1st Dist.1981). See also State v. Hicks, 186 Ohio App.3d 528,

2009-Ohio-5302, 929 N.E.2d 461, ¶ 12 (2d Dist.). “Mere suspicion” of a criminal

intent is not enough. Anderson at 64.




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                                 Other-Act Evidence

       {¶11}   In his first assignment of error, Dorsey argues that the trial court

erred by admitting Schultz’s testimony involving other acts that occurred in the

summer of 2010. He argues the testimony was neither probative of his intent on

October 27, 2010, nor was it admitted for any purpose other than an attempt to show

Dorsey’s general propensity to commit crimes, a purpose specifically prohibited by

Evid.R. 404(A) and R.C. 2945.59.

       {¶12}   Evid.R. 404 codifies the common law with respect to other-act

evidence. State v. Morris, ___ Ohio St.3d ___, 2012-Ohio-2407, ___ N.E.2d ___,

syllabus.   Evidence of other acts, crimes, or wrongs is not admissible to prove the

character of a person to show acts in conformity on a particular occasion, but it may

be admissible for other purposes, such as those listed in Evid.R. 404(B) and R.C.

2945.59. See Evid.R. 404(A) and (B); State v. Griffin, 142 Ohio App.3d 65, 71-72,

753 N.E.2d 967 (1st Dist.2001). Other bad acts may be admissible “to establish

circumstantially either an element of the crime or a material fact at issue.” Griffin at

71.

       {¶13}   The trial court must strictly construe this evidence against

admissibility. See State v. DeMarco, 31 Ohio St.3d 191, 194, 509 N.E.2d 1256 (1987).

The other-act evidence must also meet the other requirements of admissibility set

forth in the rules of evidence. See Evid.R. 403; Evid.R. 402.

       {¶14}   We apply an abuse-of-discretion standard in our review of a trial

court’s decision to admit other-act evidence under Evid.R. 404(B). Morris, ___

Ohio St.3d ___, 2012-Ohio-2407, ___ N.E.2d ___, syllabus. The Ohio Supreme

Court has declared that “[t]he term ‘abuse of discretion’ connotes more than an error

of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or



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unconscionable.” State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).

And the court has defined an “unreasonable” decision as one that is not supported by

a “sound reasoning process.” AAAA Enterprises, Inc. v. River Place Community

Urban Redev. Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990), cited in Morris,

at ¶ 14.

           {¶15}   In applying the abuse of discretion standard, we are not free to

substitute our judgment for that of the trial judge. See Morris at ¶ 14.

           {¶16}   At trial, the state argued that the other-acts testimony was probative

of Dorsey’s intent to use the hammer and screwdrivers for a criminal purpose—an

element of the offense of possessing criminal tools—and, therefore, admissible as an

exception set forth in Evid.R. 404(B). The trial court implicitly agreed and admitted

the evidence over Dorsey’s objection.

           {¶17}   But the challenged testimony was not probative of the statutory

inference set forth in R.C. 2923.24(B)(3), because it did not demonstrate the

circumstances under which Dorsey possessed the hammer and screwdrivers in late

October 2010.

           {¶18}   Further, the testimony involved Dorsey’s mere presence in a stolen

automobile with a stripped steering column one-to-four months before Schultz found

him in possession of the hammer and screwdrivers. Dorsey was not “charged” with

automobile theft at that time and there was no testimony that anyone, including

Dorsey, had used a screwdriver or hammer to steal that automobile. At best, the

state’s theory of relevance involved an impermissible inference upon an inference.

See State v. Cowans, 87 Ohio St.3d 68, 78-79, 717 N.E.2d 298 (1999). As such, it was

not admissible to demonstrate Dorsey’s intent or for any of the purposes recognized




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in Evid.R. 404(B), especially without any nexus between those facts and Dorsey’s

possession of the articles in late October 2010.

       {¶19}   From the record before us, we are unable to discern a sound

reasoning process to support the trial court’s admission of Schultz’s testimony.

Therefore, we conclude that the court’s decision to admit the challenged testimony

was unreasonable and an abuse of discretion. See, e.g., State v. Huff, 145 Ohio

App.3d 555, 566, 763 N.E.2d 695 (1st Dist.2001); State v. Zamorski, 141 Ohio App.3d

521, 525, 752 N.E.2d 288 (1st Dist.2000); State v. Echols, 128 Ohio App.3d 677,

698-699; 716 Ohio App.3d 728, (1st Dist.1998); Eckert v. Jacobs, 1st Dist. No. C-

910445, 1992 Ohio App. LEXIS 5920.

       {¶20}   And, the error was not harmless, because the trial court must have

relied on the challenged testimony to determine Dorsey’s criminal intent, in the

absence of other evidence on that element. Accordingly, we sustain the first

assignment of error.

                 Sufficiency and Weight-of-the-Evidence Claims

       {¶21}   In his second assignment of error, Dorsey argues that his conviction

was not supported by sufficient evidence. Alternatively, he contends that if the

record contains sufficient evidence, then his conviction was against the manifest

weight of that evidence.

       {¶22}   On a sufficiency-of-the-evidence review, the relevant inquiry is

whether, after viewing the evidence in the light most favorable to the state, any

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

reasonable doubt.      State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 319, 99

S.Ct. 2781, 61 L.Ed.2d 560 (1979).



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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶23}   In this case, the state attempted to establish a prima-facie case under

the statutory inference set forth in R.C. 2923.24(B)(3). That statutory inference

would apply if the state established (1) that the hammer or screwdrivers were

commonly used for criminal purposes and (2) that Dorsey possessed the article

under circumstances indicating that he intended to put it to that criminal use. See,

e.g., State v. Sanders, 9th Dist. No. 23504, 2007-Ohio-2898, ¶ 15; State v. Castle,

9th Dist. No. 19324, 1999 Ohio App. LEXIS 4726; State v. Colon, 9th Dist. No.

91CA005003, 1992 Ohio App. LEXIS 1536; State v. Liddell, 8th Dist. No. 37134, 1978

Ohio App. LEXIS 9838.

       {¶24}   Although Schultz testified that screwdrivers and hammers are

commonly used to commit automobile theft, there was no evidence at trial linking

Dorsey to an actual or planned automobile theft in October 2010, near the time of

possession.

       {¶25}   The state argued the circumstances demonstrated Dorsey’s intent to

use the screwdrivers and hammer criminally because Schultz had once “charged”

Dorsey with receiving stolen property, after finding him in a stolen automobile with a

stripped steering column. Further, Dorsey had not explained why he was carrying

those items when Schultz arrested him in October 2010.

       {¶26}   But as discussed under the first assignment of error, Dorsey’s mere

presence in a stolen automobile with a stripped steering column sometime in the

summer of 2010 was not probative of his intent to use the screwdriver or hammer in

late October 2010 to commit automobile theft. The trial court should not have

admitted this testimony for that purpose. And Dorsey did not have to rebut the

inference that can arise under R.C. 2923.24(B)(3), by explaining his possession of




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                     OHIO FIRST DISTRICT COURT OF APPEALS



the articles, until after the state had presented prima-facie evidence of his criminal

purpose, which it failed to do.

       {¶27}   Because the state failed to present the necessary facts to establish

prima-facie evidence of a criminal purpose, the state had to prove the element of

criminal purpose without the benefit of the statutory inference.

       {¶28}   Ultimately, the evidence was not sufficient to permit reasonable

minds to conclude beyond a reasonable doubt that Dorsey possessed the hammer

and screwdrivers with purpose to use them to commit any crime. As noted by

Dorsey, the offense occurring near the time of Dorsey’s possession was the theft of

food items from a shelf at UDF, and Schultz’s testimony provided no reasonable

basis to conclude that Dorsey used or attempted to use the articles to commit that

offense.

       {¶29}   Without this evidence, the state failed to establish that Dorsey

possessed criminal tools. Accordingly, we sustain the second assignment of error on

the ground that the conviction was not supported by sufficient evidence.

                                     Conclusion

       {¶30}   The trial court erred by allowing Shultz to testify to his prior contact

with Dorsey where the testimony involved a prior bad act and was not admissible

under Evid.R. 404(B). Further, the state failed to present facts necessary to gain the

benefit of the statutory inference of criminal intent and otherwise failed to establish

that Dorsey possessed a hammer and two screwdrivers with purpose to use them

criminally. We reverse the judgment of conviction, and we discharge Dorsey from

further prosecution for possessing criminal tools.

                                        Judgment reversed and appellant discharged.

HILDEBRANDT, P.J., and DINKELACKER, J., concur.


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                    OHIO FIRST DISTRICT COURT OF APPEALS




Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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