[Cite as State v. Jones, 2013-Ohio-3604.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.     26540

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
RAYONTE L. JONES                                     COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 12 01 0038 (A)

                                  DECISION AND JOURNAL ENTRY

Dated: August 21, 2013



        CARR, Judge.

        {¶1}     Appellant Rayonte Jones appeals his conviction in the Summit County Court of

Common Pleas. This Court affirms.

                                                I.

        {¶2}     Jones was indicted on two counts of robbery involving two teenagers; one count

of aggravated robbery and a companion gun specification; one count of receiving stolen

property; and one count of misuse of credit cards. He pleaded not guilty to the charges at

arraignment. Jones was subsequently indicted on two additional gun specifications related to the

two counts of robbery. Those two gun specifications were dismissed prior to trial. At the

conclusion of trial, the jury found Jones not guilty of two counts of robbery, but guilty of

aggravated robbery and the companion gun specification, receiving stolen property, and misuse

of credit cards. The trial court sentenced Jones to eight years in prison. Jones filed a timely

appeal and raises two assignments of error for review.
                                                2


                                               II.

                                ASSIGNMENT OF ERROR I

       THE EVIDENCE IN THIS CASE WAS INSUFFICIENT AS A MATTER OF
       LAW TO SUPPORT CONVICTIONS OF[] RECEIVING STOLEN
       PROPERTY, OR MISUSE OF CREDIT CARDS AND AS A RESULT THE
       APPELLENT’S RIGHTS AS PROTECTED BY ARTICLE I, SECTION 16 OF
       THE OHIO CONSTITUTION AND FIFTH AMENDMENT OF THE UNITED
       STATES CONSTITUTION WERE VIOLATED.

       {¶3}    Jones argues that his convictions for receiving stolen property and misuse of

credit cards were not supported by sufficient evidence. This Court disagrees.

       {¶4}    “Raising the question of whether the evidence is legally sufficient to support the

jury verdict as a matter of law invokes a due process concern.” State v. Diar, 120 Ohio St.3d

460, 2008-Ohio-6266, ¶ 113, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In

reviewing a challenge to the sufficiency of the evidence, “the relevant inquiry is 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 proven beyond a reasonable doubt.” Diar,

120 Ohio St.3d at ¶ 113, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the

syllabus, following Jackson v. Virginia, 443 U.S. 307 (1979).

       {¶5}    Jones was charged with receiving stolen property in violation of R.C. 2913.51(A),

which states that “[n]o 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.” The property at issue was credit cards belonging to Edward Hoover.


       {¶6}    R.C. 2901.22(B) states:

       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.
                                                 3


       {¶7}    Receipt and retention of property implicate possession which may be either actual

or constructive. State v. Moorer, 9th Dist. Summit No. 12980, 1987 WL 12884 (June 10, 1987).

“Constructive possession exists when an individual knowingly exercises dominion and control

over the object, even though the object may not be within his immediate physical possession.”

Id. (concluding that, even though the evidence did not establish which of the two defendants

presented the credit card for payment of gasoline, there was sufficient evidence to show that

Moorer constructively possessed the credit card as it was used to buy gasoline for his car), citing

State v. Hankerson, 70 Ohio St.2d 87 (1982).

       {¶8}    Jones was also charged with misuse of credit cards in violation of R.C.

2913.21(B)(2), which states that “[n]o person, with purpose to defraud, shall * * * [o]btain

property or services by the use of a credit card, in one or more transactions, knowing or having

reasonable cause to believe that the card has expired or been revoked, or was obtained, is

retained, or is being used in violation of law[.]” Pursuant to R.C. 2901.22(A): “A person acts

purposely when it is his specific intention to cause a certain result, or, when the gist of the

offense is a prohibition against conduct of a certain nature, regardless of what the offender

intends to accomplish thereby, it is his specific intention to engage in conduct of that nature.”

“Defraud” means “to knowingly obtain, by deception, some benefit for oneself or another, or to

knowingly cause, by deception, some detriment to another.” R.C. 2913.01(B).

       {¶9}    The jury was further instructed that it could consider whether Jones acted in

complicity with another in committing the offenses, i.e., whether Jones aided or abetted another

in committing the theft. R.C. 2923.03(A)(2). A person who is guilty of complicity is guilty as if

he were the principal offender. R.C. 2923.03(F). A criminal defendant may be charged with

complicity pursuant to the complicity statute or simply in terms of the principal offense. Id.
                                                 4


       {¶10} At trial, Edward Hoover testified that he had just backed his car into a parking

space in a lot at Akron General Hospital on January 3, 2012, around 6:45 a.m. before work when

a man, later identified as William Weems, approached him and demanded his money. After Mr.

Hoover resisted, Weems showed him the butt of a handgun in his sweatshirt pocket and then

pointed the gun at him from inside the sweatshirt. Mr. Hoover gave Weems his wallet and cell

phone as directed by Weems. The wallet contained several credit cards. Mr. Hoover testified

that Weems jogged quickly to a car parked in an adjacent lot and entered the passenger side of

the car. He testified that, while he could clearly see the car, he could not describe the driver.

After Weems entered the car, the driver quickly backed up and then sped away. Mr. Hoover

reported the theft to police and began cancelling his credit cards.

       {¶11} Williams Weems testified that he and Jones were driving around and drinking

throughout the early morning hours of January 3, 2012. Weems fell asleep in the car but awoke

around 6:00 a.m. He and Jones then began discussing their need for money and the two decided

to “hit a lick,” meaning to rob somebody. Weems testified that Jones drove to a parking lot near

Akron General Hospital and parked while Weems, after taking Jones’ handgun, approached a

man who had just parked his car in a nearby lot. Weems admitted that he robbed the man

(Edward Hoover) of his wallet and cell phone and then ran back to the car Jones was driving and

the two sped away. Weems testified that Mr. Hoover’s wallet contained various credit cards and

that he and Jones discussed going shopping and using those credit cards.

       {¶12} Weems testified that he and Jones drove to WalMart where he and Jones both

picked out merchandise to buy. Weems admitted that he is the only one who swiped the credit

cards to buy the merchandise. The State presented a copy of a receipt from WalMart evidencing
                                                 5


that $264.12 worth of merchandise was purchased at 8:01 a.m. on January 3, 2012, with one of

Mr. Hoover’s credit cards. Mr. Hoover testified that it was not his signature on the store receipt.

       {¶13} Weems testified that he and Jones left WalMart and drove to Target where each

again picked out merchandise to buy. Again, Weems admitted that he was the one who swiped

one of Mr. Hoover’s credit cards to make the purchases, although much of the merchandise was

chosen by Jones for his benefit. Specifically, Jones picked out a baby stroller for his child and

Weems used one of Mr. Hoover’s credit cards to pay for it. The State presented a photograph

taken from a security camera at Target showing Jones pushing a cart full of merchandise out of

the store at approximately 9:00 a.m. After shopping at Target with Mr. Hoover’s credit cards,

Weems testified that he and Jones drove first to Jones’ home to drop off some of the

merchandise and then to Weems’ home.

       {¶14} Drew Anderson testified that he was working on January 3, 2012, at Target as a

protection specialist. He testified that, based on information from the police regarding account

numbers for stolen credit cards reported by Mr. Hoover, he was able to locate store security

video footage for the appropriate time frame. He provided a copy of the store video to the

police. Mr. Anderson authenticated the video and still photographs taken from store security

footage. The video and photographs showed Jones pushing a cart full of merchandise throughout

and out of the store after Weems used a credit card to pay for the merchandise.

       {¶15} Mr. Anderson testified that the police notified him of fraudulent credit card

transactions at Target on January 3, 2012. When he reviewed store receipts for the times and

card numbers relevant to those fraudulent transactions, he noticed that a baby stroller had been

purchased using a stolen card. Weems testified that Jones bought a stroller for his child and put

it in the trunk. Because Weems and Jones had purchased so much merchandise at WalMart and
                                                  6


Target with Mr. Hoover’s credit cards, they could not close Jones’ car’s trunk after Jones placed

the stroller on top of everything else. Weems testified that the stroller fell out of the trunk on the

highway as they were driving to Jones’ home.

       {¶16} Mr. Anderson testified that Jones called the Target store later that day and

informed him that he had purchased a stroller but had forgotten to take it with him. Mr.

Anderson obtained a cell phone number from Jones and Jones’ assertion that his name was

“Ray.” Sergeant Teresa Davis of the Summit County Sheriff’s Office testified that she became

aware of the incident in the course of her duties. She testified that she obtained Jones’ cell phone

number from Mr. Anderson and called Jones to set up a time for him to return to Target to

retrieve the stroller. The Summit County Sheriff’s Office and the Akron Police Department

planned to wait for Jones to arrive at Target and arrest him in connection with the theft and use

of Mr. Hoover’s credit cards.        Jones arrived at Target to retrieve the stroller and was

apprehended in the parking lot by law enforcement officers.

       {¶17} Reviewing the evidence in a light most favorable to the State, this Court

concludes that any rational trier of fact could have found that the essential elements of the

charges of receiving stolen property and misuse of credit cards were proved beyond a reasonable

doubt. See Jenks, 61 Ohio St.3d at paragraph two of the syllabus.      The State presented evidence

that Jones knew that Weems robbed Mr. Hoover and, in fact, aided Weems in the theft after the

two discussed their need for money. Immediately after robbing Mr. Hoover, Jones and Weems

went shopping at two different stores where they each gathered merchandise for their personal

uses. Under these circumstances, although Jones did not touch or swipe Mr. Hoover’s credit

cards at the store registers himself, he nevertheless constructively possessed the cards by

exercising control over their use for the fraudulent purchases of merchandise for his benefit.
                                                 7


Accordingly, the State presented sufficient evidence of the crimes of receiving stolen property

and misuse of credit cards. Jones’ first assignment of error is overruled.


                                 ASSIGNMENT OF ERROR II


       THE VERDICTS IN THIS CASE WERE AGAINST THE MANIFEST
       WEIGHT [OF THE] EVIDENCE AND AS A RESULT, APPELLANT’S
       RIGHTS AS PROTECTED BY ARTICLE I, SECTION 16 OF THE OHIO
       CONSTITUTION AND FIFTH AMENDMENT OF THE UNITED STATES
       CONS[T]ITUTION WERE VIOLATED.

       {¶18} Jones argues that his convictions were against the manifest weight of the

evidence. He fails, however, to develop this argument within the body of his brief as required by

App.R. 16(A)(7) (requiring citation to “parts of the record on which appellant relies.”).

Nevertheless, upon due consideration, this Court concludes that the convictions were not against

the manifest weight of the evidence.

       In determining whether a criminal conviction is against the manifest weight of the
       evidence, an appellate court must review the entire record, weigh the evidence
       and all reasonable inferences, consider the credibility of witnesses and determine
       whether, in resolving conflicts in the evidence, the trier of fact 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).

       Weight of the evidence concerns the tendency of a greater amount of credible
       evidence to support one side of the issue more than the other. Thompkins, 78
       Ohio St.3d at 387. Further when reversing a conviction on the basis that it was
       against the manifest weight of the evidence, an appellate court sits as a “thirteenth
       juror,” and disagrees with the factfinder’s resolution of the conflicting testimony.
       Id.

State v. Tucker, 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5.                   This

discretionary power should be exercised only in exceptional cases where the evidence

presented weighs heavily in favor of the defendant and against conviction. Thompkins,

78 Ohio St.3d at 387.
                                                 8


       {¶19} The elements of the crimes of receiving stolen property and misuse of credit cards

are set out above.    Jones was also charged with aggravated robbery in violation of R.C.

2911.01(A)(1), which states that “[n]o person, in attempting or committing a theft offense, * * *

or in fleeing immediately after the attempt or offense, shall * * * [h]ave a deadly weapon on or

about the offender’s person or under the offender’s control and either display the weapon,

brandish it, indicate that the offender possesses it, or use it[.]” As with the other charges, the

trial court also instructed the jury as to complicity with regard to the aggravated robbery charge.

       {¶20} Jones does not dispute that Mr. Hoover was robbed at gunpoint and that his credit

cards were used to make unauthorized purchases. His sole argument is that the evidence

demonstrates only that Weems committed these offenses.

       {¶21} A thorough review of the record indicates that this is not the exceptional case

where the evidence weighs heavily in favor of Jones. Mr. Hoover testified that Weems displayed

a handgun when demanding his money and that Weems fled to a car driven by another person.

Weems testified that he used a handgun that belonged to Jones after the two had discussed

robbing someone because they needed money. Store receipts and video surveillance footage

indicated that Jones accompanied Weems immediately after the theft on shopping sprees at

WalMart and Target, where Jones picked out merchandise. Weems testified that Jones selected

merchandise for his personal and family’s use and that the two dropped off merchandise at

Jones’ home after using Mr. Hoover’s credit cards at two stores. The weight of the evidence

supports the conclusion that Jones aided Weems in robbing Mr. Hoover by supplying the

handgun and driving the getaway vehicle. Jones then drove directly to two stores where both he

and Weems selected merchandise which was paid for with Mr. Hoover’s stolen credit cards.

Accordingly, Jones’ convictions for aggravated robbery, receiving stolen property, and misuse of
                                                 9


credit cards are not against the manifest weight of the evidence. Jones’ second assignment of

error is overruled.

                                                III.

       {¶22} Jones’ assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       DONNA J. CARR
                                                       FOR THE COURT


MOORE, P. J.
HENSAL, J.
CONCUR
                                        10



APPEARANCES:

CHRISTOPHER R. SNYDER, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
