[Cite as State v. Jones, 2016-Ohio-7293.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                     Court of Appeals Nos. L-15-1217
                                                                        L-15-1218
        Appellee
                                                  Trial Court Nos. CR0201403003
v.                                                                 CR0201501449

Tyrell Jones                                      DECISION AND JUDGMENT

        Appellant                                 Decided: October 7, 2016

                                            *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Tim A. Dugan, for appellant.

                                            *****

        YARBROUGH, J.

        {¶ 1} In this consolidated appeal, appellant, Tyrell Jones, appeals the judgments of

the Lucas County Court of Common Pleas, convicting him of one count of burglary in

violation of R.C. 2911.12(A)(3), a felony of the third degree, in case No. CR0201403003,

and one count of receiving stolen property in violation of R.C. 2913.51(A), a felony of

the fifth degree, in case No. CR0201501449. For the reasons that follow, we affirm, in

part, and reverse, in part.
                          I. Facts and Procedural Background

       {¶ 2} On June 3, 2015, a bench trial was held on the two charges, which are

related to the same incident. At trial, the state presented several witnesses, including

E.S., who is the neighbor of the victim. E.S. testified that on December 3, 2014, he was

returning home to his apartment at 3575 Stickney in Toledo, Lucas County, when he

noticed that the door of the apartment next to his was cracked. He then saw three young

black males wearing black jump suits exit the apartment building carrying “toys,” i.e.

televisions, computers, video games, etc. He observed the young men head down the

street towards the Salvation Army. E.S. went upstairs and saw that his neighbor’s

apartment had been broken into; the door was broken as if someone had tried to kick it in,

and a window was shattered. One of the three young men returned and said that

“Someone had broken in my buddy’s apartment,” and left with some other toys. E.S.

knew that the person was lying because he had never seen those men before.

Immediately thereafter, E.S. called the police. At trial, E.S. was not able to identify

appellant as one of the three young black men because “it’s been a long time.”

       {¶ 3} Three Toledo police officers also testified. Officer Andrew Pennington

testified that at 1:25 p.m., he responded to a call of a burglary at the apartment in

question. His partner, Officer Kevin Currie, testified that he observed damage to the door

of the apartment, and that the window had been broken in from the outside. Officer Jeff

Violanti testified that he also responded to the call, and while canvassing the area for the

suspects, he was able to interview a postal worker.




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       {¶ 4} The postal worker, B.H., testified next. B.H. stated that between noon and

2:00 p.m. on December 3, 2014, he was taking a ten-minute break in the Salvation Army

parking lot, when he observed a car pull up and three young black males jump out. The

young men returned two minutes later carrying one or two televisions or monitors. B.H.

described the car as a white Oldsmobile Aurora.

       {¶ 5} The state next called J.C., who is the owner of a store called “Guy Buys

Books,” which is in the business of reselling textbooks, smart phones, video games, and

other electronics like iPads or laptops. The store is located on the corner of Secor and

Central. J.C. testified that on December 3, 2014, he remembered purchasing a couple of

laptops. He remembered that particular purchase because after the transaction, the sellers

“dumped a bunch of stuff in the parking lot.” J.C. testified that he had a security camera

in the store, after which video from the camera was played in court. The video shows

that on December 3, 2014, at 1:41 p.m., three young black males entered the store. Two

of them were wearing black, and the third was wearing tan overalls. They attempted to

sell two laptops. J.C. testified that the sale could not be completed at that time because

they did not have identification. At 2:56 p.m., the three men returned with appellant’s

identification and the sale was completed. J.C. testified that several weeks later the

police came and confiscated the laptops. The video and purchase sheet containing

appellant’s information were entered into evidence.

       {¶ 6} The state next called L.K., the victim in this case. L.K. testified that his

apartment was broken into and an Alienware laptop and an HP laptop were stolen, as well




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as two televisions. L.K. was shown pictures of the laptops that were confiscated from

Guys Buys Books, and he identified them as his laptops. L.K. testified that he got the

laptops back from a detective, but he did not recover the televisions. Combined, the

laptops and televisions had a purchase value of $5,000.

       {¶ 7} Finally, the state called Toledo Police Detective Andre Cowell. Cowell

testified that he interviewed appellant about some items that appellant had pawned.

Cowell asked appellant if he had pawned some computers, and appellant replied that he

had not. Cowell then showed appellant a picture of appellant and some other gentleman

pawning the computer at Guy Buys Books. Appellant then admitted that he had pawned

the laptops, but he was not involved in the burglary. Instead, appellant stated that he got

the laptops from a drug addict. During the interview, appellant also admitted to owning

or having a white, four-door, Oldsmobile. On cross-examination, Cowell admitted that

he did not check with the Bureau of Motor Vehicles whether appellant was the registered

owner of that Oldsmobile.

       {¶ 8} Thereafter, the state rested. Appellant moved for acquittal pursuant to

Crim.R. 29, which the trial court denied. The defense then rested without calling any

witnesses or presenting any evidence. After closing arguments, the trial court returned

with a finding of guilty on both the burglary and receiving stolen property charges.

       {¶ 9} The matter was continued for sentencing and the preparation of a

presentence investigation report. At sentencing, the trial court ordered appellant to serve

24 months in prison on the burglary charge, and 10 months in prison on the receiving




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stolen property charge. The court further ordered the sentences to be served concurrently

to one another, but consecutively to a two-year prison term imposed in another case, for a

total prison term of four years. In addition, the court imposed restitution. Relative to

restitution, appellant asked for a continuance because there had not yet been a

determination of L.K.’s out-of-pocket expenses. The court suggested another alternative

where it would impose restitution not to exceed a certain amount, pending verification of

any receipts or documentation. Appellant agreed with this course of action. Thus, the

trial court sentenced appellant to pay restitution “to [L.K.] not to exceed $2,130.00.”

                                 II. Assignments of Error

       {¶ 10} Appellant has timely appealed the judgment of conviction, asserting three

assignments of error for our review:

              1. The Trial Court’s sentence is contrary to law as it does not order

       an exact amount of restitution, and ordered restitution with no evidence of

       economic loss by the victim.

              2. The State of Ohio failed to produce legally sufficient evidence to

       sustain a conviction for Burglary.

              3. Appellant’s conviction for Burglary fell against the manifest

       weight of the evidence.

                                       III. Analysis

       {¶ 11} For ease of discussion, we will address appellant’s assignments of error out

of order, beginning with his second assignment of error.




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       {¶ 12} When reviewing a claim that the conviction is based on insufficient

evidence, “[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. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “In essence, sufficiency is a

test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a

question of law.” State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

       {¶ 13} In his appellate brief, appellant limits his argument to his conviction for

burglary. Furthermore, appellant does not contest that the elements of burglary were

satisfied.1 Instead, appellant argues that the state failed to provide sufficient evidence to

prove identification.

       {¶ 14} Upon reviewing the evidence in the light most favorable to the prosecution,

we hold that appellant’s conviction for burglary is supported by sufficient evidence.

Here, the evidence shows that three young black men were seen at the victim’s

apartment, and were observed carrying electronic devices from the apartment. The three

men headed towards the nearby Salvation Army. A second witness in the parking lot of

the Salvation Army observed a white Oldsmobile Aurora arrive. Three young black men

jumped out of the car, and in a few minutes returned carrying televisions or monitors.



1
  “No person, by force, stealth, or deception, shall do any of the following: * * *
(3) Trespass in an occupied structure or in a separately secured or separately occupied
portion of an occupied structure, with purpose to commit in the structure or separately
secured or separately occupied portion of the structure any criminal offense.” R.C.
2911.12(A)(3).


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This took place at approximately 1:25 p.m. Sixteen minutes later, three young black men

attempted to sell two laptops at Guy Buys Books. The men returned a little over an hour

later, and used appellant’s identification to pawn the same laptops. The laptops were

identified by the victim of the burglary as his laptops. Subsequently, appellant admitted

to Cowell that he pawned the laptops, and that he had a white Oldsmobile. Based on this

evidence, we conclude that a rational trier of fact could have found that appellant was one

of the three burglars beyond a reasonable doubt. See State v. Lowry, 4th Dist. Pickaway

No. 14CA12, 2014-Ohio-5852, ¶ 17, quoting State v. Brennan, 85 Ohio App. 175, 177-

178, 88 N.E.2d 281 (9th Dist.1949) (“It has long been the law of this state that, where a

burglary has been committed and property stolen as a party of the criminal act, the fact of

the subsequent possession is some indication that the possessor was the taker, and

therefore the doer of the whole crime.”).

       {¶ 15} Accordingly, appellant’s second assignment of error is not well-taken.

       {¶ 16} In his third assignment of error, appellant argues that the convictions are

against the manifest weight of the evidence. When reviewing a manifest weight claim,

              The court, reviewing the entire record, weighs the evidence and all

       reasonable inferences, considers the credibility of witnesses and determines

       whether in resolving conflicts in the evidence, the [trier of fact] clearly lost

       [his] way and created such a manifest miscarriage of justice that the

       conviction must be reversed and a new trial ordered. The discretionary

       power to grant a new trial should be exercised only in the exceptional case




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       in which the evidence weighs heavily against the conviction. State v. Lang,

       129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, quoting

       Thompkins at 387.

       {¶ 17} This is not the exceptional case. Three young black men in a white

Oldsmobile Aurora stole televisions and laptops from the victim’s apartment. Appellant

admitted to owning a white Oldsmobile. Approximately 16 minutes after the burglary,

three young black men attempted to pawn the laptops taken from the apartment. The

same men returned with appellant’s identification. Appellant later admitted to pawning

the laptops. Given the consistency of the descriptions, and the short passage of time

between the two events, we find that the trier of fact did not lose his way and create a

manifest miscarriage of justice in finding that appellant was one of the men that

committed the burglary. Therefore, we hold that appellant’s burglary conviction is not

against the manifest weight of the evidence.

       {¶ 18} Accordingly, appellant’s third assignment of error is not well-taken.

       {¶ 19} Finally, in his first assignment of error, appellant argues that his sentence is

contrary to law because the trial court ordered an indefinite amount of restitution when it

sentenced appellant to pay an amount “not to exceed $2,130.00.”

       {¶ 20} R.C. 2929.18(A)(1) provides, in pertinent part,

              [T]he court imposing a sentence upon an offender for a felony may

       sentence the offender to any financial sanction or combination of financial

       sanctions authorized under this section * * *. Financial sanctions that may




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       be imposed pursuant to this section include, but are not limited to, the

       following:

              (1) Restitution by the offender to the victim of the offender’s crime

       or any survivor of the victim, in an amount based on the victim’s economic

       loss. * * * If the court imposes restitution, at sentencing, the court shall

       determine the amount of restitution to be made by the offender. If the court

       imposes restitution, the court may base the amount of restitution it orders

       on an amount recommended by the victim, the offender, a presentence

       investigation report, estimates or receipts indicating the cost of repairing or

       replacing property, and other information, provided that the amount the

       court orders as restitution shall not exceed the amount of the economic loss

       suffered by the victim as a direct and proximate result of the commission of

       the offense. If the court decides to impose restitution, the court shall hold a

       hearing on restitution if the offender, victim, or survivor disputes the

       amount. (Emphasis added.)

       {¶ 21} We find that the only reasonable interpretation of the phrase “shall

determine the amount of restitution” is that the trial court is obligated to order appellant

to pay a sum certain. Here, the trial court’s order of restitution in an amount “not to

exceed $2,130.00” is not a specific and set amount of money, and is therefore in error.

       {¶ 22} Accordingly, appellant’s first assignment of error is well-taken.




9.
                                      IV. Conclusion

       {¶ 23} For the foregoing reasons, the judgments of the Lucas County Court of

Common Pleas are affirmed, in part, and reversed, in part. The matter is remanded to the

trial court for a period of 30 days to determine the amount of restitution, and if that

amount is disputed, to conduct a hearing in accordance with R.C. 2929.18(A)(1). If the

trial court fails to determine an amount of restitution within that time, that portion of the

sentence shall be considered void. Appellant and the state are ordered to split the costs of

this appeal evenly pursuant to App.R. 24.


                                                                 Judgments affirmed, in part,
                                                                       and reversed, in part.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                         _______________________________
                                                             JUDGE
Thomas J. Osowik, J.
                                                 _______________________________
Stephen A. Yarbrough, J.                                     JUDGE
CONCUR.
                                                 _______________________________
                                                             JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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