[Cite as State v. Thompson, 2012-Ohio-3540.]


                                       COURT OF APPEALS
                                   GUERNSEY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. John W. Wise, J.
                        Plaintiff-Appellee     :       Hon. Julie A. Edwards, J.
                                               :
-vs-                                           :
                                               :       Case No. 2011-CA-40
KENNY E. THOMPSON                              :
                                               :
                    Defendant-Appellant        :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Cambridge
                                                   Municipal Court, Case No. 11CRB00692



JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            July 30, 2012



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

WILLIAM FERGUSON                                   MICHAEL GROH
150 Highland Avenue                                919 Wheeling Avenue
Cambridge, OH 43725                                Cambridge, OH 43725
[Cite as State v. Thompson, 2012-Ohio-3540.]


Gwin, P.J.

          {¶1}   Appellant Kenny E. Thompson [“Thompson”] appeals from the November

4, 2011 entry of the Cambridge Municipal Court convicting him after a bench trial of one

count of unauthorized use of a motor vehicle.

                                               FACTS

          {¶2}   On April 29, 2011, the Ohio State Highway Patrol [“OSHP”] responded to

a fatal accident that occurred in Guernsey County, Ohio. The decedent was Richard

Grafton. The decedent's mother is Stacey Towe and the decedent's father is Mark

Grafton. The decedent was operating a 2002 Kia motor vehicle that is the subject of this

action.

          {¶3}   Two cars were involved in the fatal accident, including the 2002 Kia. Two

separate towing companies were called to remove the vehicles from the scene, Lloyd's

Towing and A & C Towing. The OSHP requires in every accident involving a fatality that

the vehicles in question be taken to a locked building until their investigation is

concluded. A & C Towing did not have such a facility and towed the 2002 Kia to the

facility owned by Lloyd's Towing. The vehicles were towed approximately two miles from

the crash scene to Lloyd's Towing facility.

          {¶4}   The OSHP concluded their investigation in approximately one week and

notified the tow truck companies. A & C Towing retrieved the 2002 Kia vehicle. The

OSHP did not make immediate notification to the family members of the victim that the

vehicle had been released. Trooper Cunningham returned the original title to the 2002

Kia to the decedent's mother Stacey Towe approximately 2 weeks after the accident.
Guernsey County, Case No. 2011-CA-40                                                    3


       {¶5}   While the Kia was at the indoor garage, Mark Grafton removed his son's

personal items from the vehicle as well as the car's license plates.

       {¶6}   The Kia was subsequently spotted in the yard of the personal residence of

Thompson. Thompson did not have the permission of Stacey Towe or Mark Grafton to

be in possession of the vehicle.

       {¶7}   The owner of A & C Towing, Andrew Mizisin, believed that he had a

mechanic's lien on the vehicle and he sold it to Thompson. A receipt reflecting that sale,

dated May 9, 2011 was admitted at trial as Defendant's Exhibit 1. Testimony at trial was

adduced that Lloyd McGuilton, the owner of Lloyd’s Towing, had told Andrew Mizisin

that Mark Grafton had stated that he wanted the towing company to keep the vehicle for

the towing bill. However, prior to scrapping the vehicle, Thompson was told by Mizisin

that he would need to contact Mr. Grafton and obtain permission and a title for the

vehicle.

       {¶8}   Thompson scrapped the motor vehicle and retained the proceeds.

                                   PROCEDURAL HISTORY

       {¶9}   On June 9, 2011, a Complaint was filed in the Cambridge Municipal Court

charging Thompson with one count of theft, a misdemeanor of the first degree in

violation of R.C. 2913.02, and one count of unauthorized use of a motor vehicle, a

misdemeanor of the first-degree in violation of R.C. 2913.03. This case proceeded to a

bench trial on September 12, 2011. The Trial Court took the case under advisement at

the conclusion of the presentation of the evidence to allow both sides to brief the

applicable law in the case. Thompson filed a Memorandum on September 26, 2011,

and the state filed a Supplemental Brief on September 23, 2011.
Guernsey County, Case No. 2011-CA-40                                                  4


      {¶10} The Trial Court held a sentencing hearing on November 4, 2011, finding

Thompson not guilty of theft, but guilty of unauthorized use. Thompson was sentenced

to pay a $250 fine.

                                 ASSIGNMENTS OF ERROR

      {¶11} Thompson raises two assignments of error,

      {¶12} “I. THE DECISION OF THE TRIAL COURT CONVICTING APPELLANT

OF UNAUTHORIZED USE WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AS

APPELLANT HAD PROPERTY RIGHTS TO THE VEHICLE.

      {¶13} “II. THE DECISION OF THE TRIAL COURT CONVICTING APPELLANT

OF UNAUTHORIZED USE WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE AS APPELLANT HAD PROPERTY RIGHTS TO THE VEHICLE.”

                                             I & II

      {¶14} Thompson’s two assignments of error raise issues involving the

sufficiency and manifest weight of the evidence presented below. Because we find the

issues raised in Thompson’s first and second assignments of error are closely related

for ease of discussion we shall address the assignments of error together.

      {¶15} 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.

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, _U.S._, 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
Guernsey County, Case No. 2011-CA-40                                                          5

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

2010–Ohio–2720, ¶ 68.

       {¶16} 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.

       {¶17} 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

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).
Guernsey County, Case No. 2011-CA-40                                                   6


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

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

      {¶18} In the case at bar, Thompson was convicted of unauthorized use of a

vehicle. R.C. 2913.03 provides, in relevant part,

             (A) No person shall knowingly use or operate an aircraft, motor

      vehicle, motorcycle, motorboat, or other motor-propelled vehicle without

      the consent of the owner or person authorized to give consent.

             (B) No person shall knowingly use or operate an aircraft, motor

      vehicle, motorboat, or other motor-propelled vehicle without the consent of

      the owner or person authorized to give consent, and either remove it from

      this state or keep possession of it for more than forty-eight hours.

             (C) The following are affirmative defenses to a charge under this

      section:

             (1) At the time of the alleged offense, the actor, though mistaken,

      reasonably believed that the actor was authorized to use or operate the

      property.

             (2) At the time of the alleged offense, the actor reasonably believed

      that the owner or person empowered to give consent would authorize the

      actor to use or operate the property.

             (D)(1) Whoever violates this section is guilty of unauthorized use of

      a vehicle.

      {¶19} R.C. 2901.22(B) provides that "a person acts knowingly, regardless of his

purpose when he is aware that his conduct will probably cause a certain result or will be
Guernsey County, Case No. 2011-CA-40                                                    7


of a certain nature. A person has knowledge of the circumstances when he is aware

that such circumstances probably exist."

       {¶20} “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.” State v. Huff, 145 Ohio App.3d 555, 563, 763 N.E.2d 695(2001).

(Footnote omitted.) Thus, “[t]he test for whether a defendant acted knowingly is a

subjective one, but it is decided on objective criteria.” State v. McDaniel, 2nd Dist.

No.6221, 1998 WL 214604, (citing State v. Elliott, 104 Ohio App.3d 812, 663 N.E.2d

412(1995)).

       {¶21} Thompson argues that he believed that he had lawful possession of the

vehicle based upon any one of three scenarios. First, Andrew Mizisin gave Thompson a

receipt for the car, stating that Thompson purchased the vehicle from Andrew Mizisin for

$175.00 on May 9, 2011. Second, Thompson contends that a valid artisan's lien existed

because the OSHP called for the car to be removed from the accident scene and stored

pending conclusion of its investigation. Finally, Thompson argues Mark Grafton

removed personal items from the vehicle along with the license plates and Andrew

Mizisin stated that he had been told by Lloyd's Towing that Mark Grafton wanted to

exchange the car for the tow bill.

       {¶22} Under R.C. 4513.63 an “abandoned junk vehicle” is defined as a vehicle

that is left on private property for forty-eight hours or longer without the permission of

the person having the right to the possession of the property; the vehicle is three years

old, or older; there is extensive damage to the vehicle; the vehicle is apparently
Guernsey County, Case No. 2011-CA-40                                                     8


inoperable; and the vehicle has a fair market value of one thousand five hundred dollars

or less.

       {¶23} In the case at bar, Richard Grafton owned the vehicle, which is evidenced

by a Certificate of Title in his name. Neither A & C Towing nor Thompson ever

contacted Mark Grafton or Stacey Towe as the next-of-kin to the title owner to inform

them of the money owed for the tow or storage bill. Neither Thompson nor A&C Towing

ever acquired a certificate of title to the motor vehicle.

       {¶24} Thompson contends that because Mark Grafton removed personal

property from the vehicle and Mizisin testified that someone at Lloyd’s Towing that Mark

had told him wanted to exchange the vehicle for the tow bill his actions were justifiable,

either because the vehicle had been abandoned or because he had an artisan’s lien for

towing the vehicle.

       {¶25} However, during a discussion between Thompson and Mezisin regarding

disposition of the vehicle Mezisin also advised Thompson,

       Well, on ah, the 9th of May Mr. Thompson had asked me what, what was

       A and C [sic.] going to do with the vehicle because by the 9th we hadn't

       heard from anybody ah, in fact ah, ah, I, I knew that the ah, guess the

       driver of the vehicle was in the hospital and ah, ah, I never bothered to call

       anybody because I felt, you know, that was the least of their worries, is the

       car. But anyhow, Mr. Thompson asked me what, what I was going to do

       with the vehicle and could he buy it. And ah, we pay our drivers on a ah,

       ah, percentage basis. They don't work on an hourly basis. So I told him, I

       said, well, ah, if you want to pay A and C's [sic.] portion of the bill ah that
Guernsey County, Case No. 2011-CA-40                                                           9


       would, you know we could do that. And ah, Mr. Thompson had told me

       that he knew Mr. Grafton and ah, they had grown up together and the one

       thing that I told him at that time, that if we did that that he needed to see

       Mr. Grafton about getting the title for the vehicle.

T. at 67-68.

       {¶26} Pursuant to R.C. Section 4513.61, if a vehicle is stored in possession of

law enforcement officers, law enforcement must send notice to an owner or lien holder

of the vehicle by certified mail. If the vehicle is not claimed within ten days of the date of

mailing notice and the vehicle is to be disposed of at public auction, then a salvage

certificate of title may be issued to law enforcement. Here, law enforcement had

released the vehicle because the investigation was completed. There is no dispute

notice was never sent to Mark Grafton or Stacey Towe as the next-of-kin to the title

owner. No salvage title was ever acquired for the vehicle.

       {¶27} 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

Thompson had committed the crime of unauthorized use of a vehicle. We hold,

therefore, that the state met its burden of production regarding each element of the

crime and, accordingly, there was sufficient evidence to support Thompson’s conviction.

       {¶28} 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. 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, ¶ 81.
Guernsey County, Case No. 2011-CA-40                                                    10


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. No. 99 CA 149, 2002-Ohio-1152,

at ¶ 13, citing State v. Gore (1999), 131 Ohio App.3d 197, 201, 722 N.E.2d 125.

      {¶29} 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). The jury 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. No. 99AP-739, 1999 WL 29752

(Mar 23, 2000) citing State v. Nivens, 10th Dist. No. 95APA09-1236, 1996 WL 284714

(May 28, 1996). Indeed, the [judge] need not believe all of a witness' testimony, but may

accept only portions of it as true. State v. Raver, 10th Dist. 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. No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell (1992), 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.
Guernsey County, Case No. 2011-CA-40                                                   11


             “[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).

      {¶30} In Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118 (1954),

the Supreme Court further cautioned,

      The mere number of witnesses, who may support a claim of one or the

      other of the parties to an action, is not to be taken as a basis for resolving

      disputed facts. The degree of proof required is determined by the

      impression which the testimony of the witnesses makes upon the trier of

      facts, and the character of the testimony itself. Credibility, intelligence,

      freedom from bias or prejudice, opportunity to be informed, the disposition

      to tell the truth or otherwise, and the probability or improbability of the

      statements made, are all tests of testimonial value. Where the evidence is

      in conflict, the trier of facts may determine what should be accepted as the

      truth and what should be rejected as false. See Rice v. City of Cleveland,

      114 Ohio St. 299, 58 N.E.2d 768.
Guernsey County, Case No. 2011-CA-40                                                  12


161 Ohio St. at 477-478. (Emphasis added).

       {¶31} 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 judge as the trier of fact

was in the best position to evaluate this competent, credible evidence, and we will not

substitute our judgment for that of the trier of fact. The judge neither lost his way nor

created a miscarriage of justice in convicting Thompson of the charge.

       {¶32} Thompson’s first and second assignments of error are overruled in their

entirety.
Guernsey County, Case No. 2011-CA-40                                          13


       {¶33} The judgment of the Cambridge Municipal Court, Guernsey County, Ohio

is affirmed.

By Gwin, P.J.,

Wise, J., and

Edwards, J., concur




                                         _________________________________
                                         HON. W. SCOTT GWIN


                                         _________________________________
                                         HON. JOHN W. WISE


                                         _________________________________
                                         HON. JULIE A. EDWARDS




WSG:clw 0709
[Cite as State v. Thompson, 2012-Ohio-3540.]


             IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
KENNY E. THOMPSON                                :
                                                 :
                                                 :
                       Defendant-Appellant       :       CASE NO. 2011-CA-40




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Cambridge Municipal Court, Guernsey County, Ohio is affirmed. Costs to appellant.




                                                     _________________________________
                                                     HON. W. SCOTT GWIN


                                                     _________________________________
                                                     HON. JOHN W. WISE


                                                     _________________________________
                                                     HON. JULIE A. EDWARDS
