[Cite as State v. George, 2018-Ohio-4906.]




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


State of Ohio                                    Court of Appeals No. OT-18-004

        Appellee                                 Trial Court No. 17 CR 139

v.

Jason George                                     DECISION AND JUDGMENT

        Appellant                                Decided: December 7, 2018

                                             *****

        James J. VanEerten, Ottawa County Prosecuting Attorney, and
        Barbara Gallé Rivas, Assistant Prosecuting Attorney, for appellee.

        Amanda A. Andrews, for appellant.

                                             *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, Jason A. George, appeals from the February 2, 2018 judgment of

the Ottawa County Court of Common Pleas. Appellant was indicted on five counts:

criminal damaging, R.C. 2909.06(A)(1)(B); theft, R.C. 2913.02(A)(1)(B)(2); theft of

drugs, R.C. 2913.02(A)(1)(B)(6); tampering with evidence, R.C. 2921.12(A)(1)(B); and
possession of criminal tools, R.C. 2923.24(A)(C). Following a jury trial, appellant was

found guilty of all five counts and was sentenced on February 2, 2018, to a total of 46

months of incarceration. For the reasons which follow, we affirm.

       {¶ 2} On appeal, appellant asserts the following assignments of error:

              I. APPELLANT’S CONVICTIONS ARE NOT SUPPORTED BY

       PROOF BEYOND A REASONABLE DOUBT.

              II. APPELLANT’S CONVICTIONS ARE AGAINST THE

       MANIFEST WEIGHT OF THE EVIDENCE.

              III. THE TRIAL COURT ERRED IN DENYING APPELLANT’S

       MOTION FOR ACQUITTAL WHEN THE STATE FAILED TO

       PRESENT SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION.

       {¶ 3} The following evidence was admitted at trial. A detective safety services

ranger for the Toledo Area Metroparks testified he was monitoring, pursuant to a search

warrant, a GPS tracker on a vehicle registered to appellant on September 11, 2017. The

vehicle was described as a 1996 two-door, tan Buick Riviera.

       {¶ 4} While the ranger did not know how to calibrate the tracker, he had viewed

training videos and followed the instructions of the manufacturer. He also verified the

accuracy of the tracker with regard to his own vehicle prior to placing it on appellant’s

vehicle. In his experience, the ranger knew there could be some glitches because of the

satellite system and the blocking of signals by large buildings. He further testified that he

has been involved in four different cases utilizing a tracker on a vehicle.




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       {¶ 5} The ranger tracked appellant’s vehicle as it entered the Ottawa National

Wildlife Refuge (hereinafter “Refuge”) and proceeded to the rear parking lot (by way of

the Shop Road). The tracker indicated that appellant’s vehicle stopped for a few minutes

and then proceeded to exit the park by the same route. The ranger advised the Refuge

headquarters he had appellant’s vehicle under surveillance. Appellant authenticated a

screenshot of the tracker map depicting the area where appellant’s vehicle was being

tracked. The ranger continued to monitor appellant’s vehicle as it left the Refuge, entered

the Metzger Marsh area, stopped near a small boat ramp along the dike wall area for a

few minutes, left Metzger Marsh, and stopped at Bench’s Greenhouse along Route 2.

       {¶ 6} The ranger could not determine who was driving appellant’s vehicle on this

particular day, but the ranger had observed appellant as the sole driver during past

surveillances. Furthermore, when the ranger arrived at the location where appellant was

apprehended, he observed appellant being taken into custody by wildlife officers at the

location indicated on the tracker.

       {¶ 7} A U.S. Fish and Wildlife Officer at the Refuge testified he received a

message from the ranger on September 11, 2017. He immediately exited the visitor

center and joined with another wildlife officer to investigate a vehicle in the trailhead

parking lot. Both officers testified that they drove, in a marked unit, along the access

road toward the entrance to the Refuge. They observed a vehicle parked or stopped along

the road just short of the stop sign at the exit to the park to Route 2. The vehicle was an

older, silver-tan Buick Riviera. Both wildlife officers could see one occupant in the




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vehicle, but could not describe him. At that time, one of the wildlife officers considered

whether that vehicle was the one they were coming to investigate.

       {¶ 8} The wildlife officers drove the Shop Road to the trailhead parking lot, which

is the only public area along the Shop Road. The wildlife officers observed a blue Honda

Civic parked in the parking lot with a shattered passenger side window and glass was on

the ground. One wildlife officer remembered two cars were in the lot, the other officer

only remembered the victim’s car. There are no cameras in the area. After discovering

the damage to the vehicle, the wildlife officers immediately turned around and headed

back to the Refuge exit to Route 2 and headed in the direction in which the suspected

Buick Riviera had been heading.

       {¶ 9} When the wildlife officers reached the Ottawa/Lucas County line and had

not seen the vehicle, they turned around and drove approximately a half mile back toward

the Refuge. The round trip took less than five minutes. Meanwhile the wildlife

officer/passenger was in contact with the ranger who continued to monitor appellant’s

vehicle. The ranger provided additional information which led to the wildlife officers

turning around again and heading toward Metzger Marsh.

       {¶ 10} Just before reaching the area, the wildlife officers saw the Buick Riviera

turn onto westbound Route 2 from the Metzger Marsh area and head toward Oregon,

Ohio. The wildlife officers chased appellant’s vehicle with the officer’s vehicle

emergency lights on. The wildlife officers traveled in excess of 80 m.p.h. to catch up to

appellant, who was driving at a high rate of speed and passing other vehicles in double




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yellow-lined areas. Appellant pulled off the road at Bench’s Greenhouse along Route 2.

The entire investigation had taken 12-20 minutes since the wildlife officers had first seen

the Buick Riviera.

       {¶ 11} One wildlife officer checked appellant’s license while the other wildlife

officer made contact with appellant. Appellant admitted he had been to the Refuge for

some encounter with another individual. The other wildlife officer testified he spoke to

appellant at a later point during the stop and he denied having been at the Refuge.

       {¶ 12} The first wildlife officer to question appellant testified he gave permission

for the wildlife officer to search the vehicle. The wildlife officer entered the vehicle to

retrieve appellant’s identification from the center console where appellant indicated it

would be found. In the console, the wildlife officer also found a flat-headed screwdriver,

which he believed in his experience could have been used to break a vehicle window, and

a prescription medicine bottle labeled as Percocet. The wildlife officer could see there

were pills inside, but was not trained to identify them. The wildlife officer asked

appellant if the medicine was his and appellant answered affirmatively. The label on the

medicine bottle had been partially torn off, which indicated to the officer that appellant

was attempting to hide the patient information. However, the officer was able to see the

bottom portion of the typed patient name on the label, which he later determined matched

the victim’s last name.

       {¶ 13} The victim testified she met her sister at the Refuge trailhead parking lot at

the end of the Shop Road. She recalled their cars were the only cars in the parking lot.




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They had been walking in the area for less than ten minutes when she came close to the

parking lot and observed a park officer driving away from the lot at a high rate of speed.

When she came closer, she saw her car window had been shattered and her purse had

been stolen. Her purse contained, among other items, a prescription bottle with 30-35

Percocet pills, which had a complete label from the Kroger pharmacy; a prescription

bottle filled with Valium; a bottle of ibuprofen; and a nearly full blue and white box of

Camel cigarettes. She further testified that medicine bottle with the torn label depicted in

the photograph admitted into evidence was her bottle because it had the Kroger logo and

the prescription matched. While the victim’s purse was returned to her later that day, she

was still missing credit cards, debit cards, her driver’s license, Camel cigarettes, and her

Percocet bottle. She could not recall if there was any money in the purse. The Percocet

bottle and cigarettes were recovered and returned to her shortly after the incident. She

believes she threw the medicine bottle away after it was empty.

       {¶ 14} An Ottawa County Sheriff sergeant testified he was initially contacted to

assist in locating the vehicle to the east of the Refuge and later to handle the theft incident

at the Refuge. At the Refuge, he found the car with the shattered passenger window. He

was unable to check for fingerprints because the outside of the car was covered in dust.

After speaking with the victim, the sergeant proceeded to Bench’s Greenhouse where he

spoke to the wildlife officers. The sergeant took possession of the prescription medicine

bottle and a picture taken by his body camera was admitted into evidence. The

photograph is too blurry to make out the partial name of the patient. The sergeant




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testified that, at the time of the arrest, he could see enough of the typed letters to make

out the last name. He was also able to identify the pills as Percocet through an app on his

phone and a pill the victim had in her pocket. The sergeant returned the medicine bottle

to the victim after talking with the Ottawa County prosecutor.

       {¶ 15} The sergeant arrested appellant and inventoried the car. Painting supplies

were found in the trunk as well as a tire iron, which did not appear to the sergeant to have

been used to break the car window. The sergeant also confiscated a pack of Camel

cigarettes found in the center console, which the victim identified as hers. He did not

fingerprint the pill bottle, cigarettes, or screwdriver. The victim’s purse was found by an

elderly couple. The victim initially said it was found in the Black Swamp Area, but the

sergeant later learned it was near Metzger Marsh. Although the victim was also missing

her driver’s license, Social Security card and credit cards, they were not found in

appellant’s vehicle. The sergeant also testified from his experience that it is very difficult

to break a car window with anything other than a pointed object like a screwdriver.

       {¶ 16} A sergeant with the Ottawa County Drug Task Force testified that he

obtained on December 15, 2017, a report from the Ohio Prescription Reporting System,

which indicated the victim filled a prescription on August 28, 2017, for Oxycodone,

Acetaminophen, 100 tablets, at a Kroger pharmacy, with brand name of Percocet. No

similar prescription had been filled for appellant within the last 2 years. The report

indicates, however, that the information is not warranted as accurate or complete.




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       {¶ 17} Appellant’s first and third assignments of error are interrelated and will be

addressed together. In his first assignment of error, appellant argues there was

insufficient evidence to support his conviction. In his third assignment of error, appellant

argues the trial court erred in denying his motion for acquittal because the state failed to

present sufficient evidence to sustain a conviction. Both of these claims raise a due

process issue of whether there was sufficient evidence to support the jury verdict as a

matter of law. State v. Scott, 101 Ohio St.3d 31, 2004-Ohio-10, 800 N.E.2d 1133, ¶ 31,

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

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). The appellate court

reviews the evidence admitted at trial to determine whether, “if believed, [it] would

convince the average mind of the defendant’s guilt beyond a reasonable doubt. The

relevant inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt.” State v. 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, 99

S.Ct. 2781, 61 L.Ed.2d 560 (1979). The same standard is used to review the denial of a

motion for acquittal. State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d

386, ¶ 37.

       {¶ 18} The state was required to present evidence to establish the following

elements in this case:




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              1.) Criminal damaging—“knowingly” causing “substantial risk of

       physical harm to any property of another without the other person’s

       consent.” R.C. 2909.06(A)(1).

              2.) Theft— “knowingly obtain or exert control over * * * the

       property” of another “with the purpose of depriving the owner of property”

       and “[w]ithout the consent of the owner.” R.C. 2913.02(A)(1).

              3.) Theft of drugs— “knowingly obtain or exert control over * * *

       the property” of another, “with the purpose of depriving the owner of

       property” and “[w]ithout the consent of the owner,” and the “property

       stolen is any dangerous drug.” R.C. 2913.02(A)(1)(B)(6).

              4.) Tampering with evidence— “knowing that an official

       proceeding or investigation is in progress * * * [a]lter, destroy, or remove

       any * * * thing, with the purpose to impair its value or availability as

       evidence.” R.C. 2921.12(A)(1).

              5.) Possession of criminal tools— “possess or have under the

       person’s control any substance, device, instrument, or article, with purpose

       to use it criminally.” R.C. 2923.24(A).

       {¶ 19} Appellant argues the state failed to prove every element of the charged

offenses. He did not identify what element(s) lacked sufficient evidence to establish his

guilt beyond a reasonable doubt. Appellant has the burden to “include in his brief * * *

[a]n argument containing the contentions of the appellant with respect to each assignment




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of error presented for review and the reasons in support of the contentions, with citations

to the authorities, statutes, and parts of the record on which appellant relies. The

argument may be preceded by a summary.” App.R. 16(A)(7)

       {¶ 20} The only specific argument appellant makes within his third assignment of

error is that there was no evidence appellant committed the theft offenses. We disagree.

Circumstantial evidence was presented that appellant’s vehicle was in the area during the

ten-minute interval in which the theft occurred. There was also direct evidence that

appellant’s vehicle was tracked entering the area, stopping for a moment, and then exiting

the Refuge. He was also tracked entering Metzger Marsh, stopping for a moment by the

boat ramp, and exiting the area. The wildlife officers saw appellant’s vehicle exiting both

locations. Furthermore, a Percocet prescription bottle and cigarette box which matched

the victim’s description were found in the console of appellant’s vehicle. While the label

with the name of the patient was partially defaced, two officers were able to make out the

last name of the patient, which matched the victim’s name. A screwdriver was also

found in the console, which officers testified was the type of instrument capable of

breaking a vehicle window. Finally, appellant attempted to elude the wildlife officers

after he left Metzger Marsh. We find, based on the totality of the evidence, a jury could

reasonably find beyond a reasonable doubt that appellant had committed the theft

offense.

       {¶ 21} Despite an insufficient argument, we have also considered the evidence

presented relating to all of the elements of the other offenses and find sufficient evidence




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was presented to submit this case to the jury and that there was sufficient evidence upon

which the jury could find that appellant committed each of the offenses beyond a

reasonable doubt. Appellant’s first and third assignments of error are not well-taken.

       {¶ 22} In his second assignment of error, appellant argues that his conviction is

contrary to the manifest weight of the evidence. Even when there is sufficient evidence

to support the verdict, a court of appeals may decide that the verdict is against the weight

of the evidence. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541, at paragraph two of the

syllabus. When weighing the evidence, the court of appeals must consider whether the

evidence in a case is conflicting or where reasonable minds might differ as to the

inferences to be drawn from it, consider the weight of the evidence, and consider the

credibility of the witnesses to determine if “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.” Id. at 387, quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717.

       {¶ 23} Appellant argues there was no evidence presented which proved beyond a

reasonable doubt that appellant committed the crimes alleged. He makes five specific

arguments.

       {¶ 24} First, appellant argues that while the ranger testified he was monitoring

appellant’s vehicle with a GPS tracker, the ranger also testified he had not calibrated the

tracker, nor did he know how to do so, the ranger did not know if appellant was driving

the vehicle, and the ranger never observed appellant commit a crime. We find appellant’s

argument lacks merit. The ranger testified he did not know how to calibrate the GPS




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tracker, but he had verified the tracker was accurate that day by checking it on his own

vehicle. Furthermore, the accuracy of the tracker was further established by the fact that

the wildlife officers were eventually able to find appellant’s vehicle where the ranger’s

tracking indicated and the tracker reflected appellant’s vehicle finally stopped at Bench’s

Greenhouse. This direct evidence served to establish appellant was in the area at the time

of the theft offense, along with his own statement that he had been at the Refuge.

       {¶ 25} Second, appellant asserts that the convictions were based on impermissible

double inferences because the jury had to infer appellant had committed a prior crime

from the fact that the ranger was tracking appellant’s vehicle and a second inference from

the fact that his car was in the area of the vehicle break-in for a few minutes to support a

finding that appellant committed the current break-in. We find this argument lacks merit.

       {¶ 26} Circumstantial evidence carries the same weight as direct evidence. State

v. Shabazz, 146 Ohio St.3d 404, 2016-Ohio-1055, 57 N.E.3d 1119, ¶ 18. Reasonable

inferences made from factual evidence are part of the process of evaluating the evidence.

Id.

       {¶ 27} In this case, the reason for the tracker was never discussed. The inference

that appellant was the one who committed the theft offense arises solely from the direct

evidence that: the tracker and the wildlife officers confirmed appellant was in the area at

the time of the offense and no other car was seen in the area; the time frame in which the

theft could have occurred was less than ten minutes after the victim parked her car;

appellant possessed two items that matched items which had been in the victim’s purse;




12.
the prescription bottle, although defaced, still showed the partial name of the patient

which matched the victim’s name; the missing Percocet and cigarettes were returned to

the victim and she did not reject them; the pills matched the victim’s description and a

pill she had in her pocket; the pharmacy records reported the victim had a prescription for

Percocet but appellant did not; appellant possessed a tool which could break a vehicle’s

window, which was found in the center console with the stolen items rather than in the

trunk with appellant’s work tools; and appellant fled recklessly at a high rate of speed

when the wildlife officers pursued him. We conclude that the jury could reasonably infer

from this evidence that appellant committed the theft offense.

       {¶ 28} Third, appellant argues that the wildlife officers had no reason to suspect

that appellant was involved in the theft until the ranger identified him. We find this

argument irrelevant. The wildlife officers worked with the ranger to investigate possible

criminal activity. Their reason for initiating the investigation has no bearing on their

testimony of the events that transpired.

       {¶ 29} Fourth, appellant argues the photograph of the defaced prescription

medicine bottle did not show the name of the patient because it was too blurry and the

bottle was not introduced into evidence. This argument is not supported by the evidence.

While the photograph was blurry and the words on the prescription bottle were not

legible, both officers testified they could make out a name from the bottom edge of the

typed letters which had not been removed. Furthermore, the prescription was for

Percocet, which the victim was missing; the prescription had been filled at a Kroger




13.
pharmacy (the victim’s pharmacy); appellant had not filled a prescription for Percocet in

the recent two years; the victim believed the bottle which was returned to her was the

bottle that had been in her purse.

         {¶ 30} Fifth, appellant argues the jury would have to infer that the screwdriver was

used as a criminal tool rather than in appellant’s painting work. We reject this argument

as well because that inference is a permissible inference based on direct evidence.

Several officers testified that a screwdriver is the type of tool required to break a vehicle

window and the sergeant found nothing in the vicinity of the car which could have

shattered the window. Furthermore, the screwdriver was found within appellant’s reach

and next to items missing from the victim. A reasonable inference can be drawn from

this evidence that appellant used the screwdriver to break the car window.

         {¶ 31} Sixth, appellant argues the jury would have to infer the window was broken

after appellant entered the park. We also reject that this inference was unreasonable. The

victim testified she and her sister had been in the park less than ten minutes, no other cars

were in the parking lot when the victim arrived, no one was seen leaving the park after

appellant, and appellant was tracked as driving to the parking area and remaining there

for only a few minutes before leaving. It was reasonable for the jury to infer from this

evidence that appellant was the one who committed the theft offense beyond a reasonable

doubt.

         {¶ 32} Therefore, we reject appellant’s arguments that the jury would have to

make an inference upon an inference to convict him. We find there was direct and




14.
circumstantial evidence, and reasonable inferences from those facts which supported the

convictions. Appellant’s second assignment of error is not well-taken.

       {¶ 33} Having found that the trial court did not commit error prejudicial to

appellant and that substantial justice has been done, the judgment of the Ottawa County

Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.


                                                                       Judgment affirmed.




       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
Arlene Singer, J.
                                               _______________________________
Christine E. Mayle, P.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.supremecourt.ohio.gov/ROD/docs/.




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