[Cite as State v. Erichsen, 2012-Ohio-137.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO

        Plaintiff-Appellee

-vs-

COLIN M. ERICHSEN

        Defendant-Appellant

JUDGES:
Hon. W. Scott Gwin, P. J.
Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.

Case No. CT2011-0018

OPINION


CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. CR2010-0294


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         January 13, 2012


APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

D. MICHAEL HADDOX                              DAVID A. SAMS
PROSECUTING ATTORNEY                           Box 40
RON WELCH                                      West Jefferson, Ohio 43162
ASSISTANT PROSECUTOR
27 North Fifth Street
Zanesville, Ohio 43701
Wise, J.

       {¶1}   Defendant-Appellant Colin M. Erichsen appeals his sentence and

convictions on three counts of receiving stolen property following a jury trial in the

Muskingum County Court of Common Pleas.

       {¶2}   Plaintiff-Appellee is the State of Ohio.

                       STATEMENT OF THE CASE AND FACTS

       {¶3}    Appellant Colin Erichsen was indicted by the Muskingum County Grand

Jury on three (3) counts of Receiving Stolen Property, in violation of R.C. §2913.51.

       {¶4}   Count One concerned an Ohio State football helmet with players'

autographs, an autographed Columbus Destroyer’s jersey, and an Ohio State clothes

basket, said property having a value of more than $500 but less than $5,000, a felony of

the fifth degree.

       {¶5}   Count Two was dismissed by the State.

       {¶6}   Count Three concerned a 32-inch Samsung television, miscellaneous

jewelry, miscellaneous ammunition, and one duffel bag, said property having a value of

more than $500 but less than $5,000, a felony of the fifth degree.

       {¶7}   Count Four concerned a Glock 17, 9 millimeter semi-automatic handgun,

a Smith and Wesson Airweight .38 caliber revolver, and a Ruger 10-22 rifle, a felony of

the fourth degree.

       {¶8}   On March 22, 2011, a jury trial commenced in this matter.

       {¶9}   At trial, the State presented testimony from the two victims:             Eric

Stottsberry and Ryan Wise, and the investigating officers, among others. Appellant also

testified in his own defense.
       {¶10} Eric Stottsberry testified that his home had been broken into and that

several items had been stolen, including a 2002 Ohio State University National

Championship Helmet; a Columbus Destroyer's football jersey; a clothes hamper; and a

gift card. (T. at 214-22). He testified that the helmet was a gift from his parents and they

had paid $1,000 for it. (T. at 217). He valued the jersey at $250 to $300, but stated that

he wasn't sure as to the actual value. (T. at 217). He stated that the hamper was worth

$30 and the gift card was also worth $30 (T. at 217). All values were in terms of their

purchase price. (T. at 219-220).

       {¶11} Cross-examination as to replacement value at the time of trial was denied.

(T. at 219-220).

       {¶12} In support of Counts 3 and 4, victim Ryan Wise testified that his home had

also been broken into and that several items had likewise been stolen, including a 9 mm

Glock; a Smith .38; a television; a Smith & Wesson handbag; coins/coin cases; a pocket

watch; another coin case for a silver dollar; handgun ammunition; a car title, social

security card, birth certificates, marriage license, obituary memorial, driving certificate, a

death certificate and a diploma. (T. at 221-224). He testified that he paid approximately

$400 for the television, the coins were worth approximately $6,000 and the watch was

probably worth $100. (T. at 225, 229). He further valued the Smith and Wesson

handbag at $60. (T. at 225-226). Additionally, four boxes of ammunition valued at

$11.95 per box were missing. (T. at 226).

       {¶13} On March 22, 2011, the jury returned guilty verdicts on all counts.

       {¶14} On April 25, 2011, the trial court merged all three counts and sentenced

Appellant to eighteen (18) months incarceration.
      {¶15} Defendant-Appellant now appeals, assigning the following errors for

review:

                              ASSIGNMENTS OF ERROR

      {¶16} “I. THE INDICTMENT WAS STRUCTURALLY DEFICIENT IN VIOLATION

OF THE STATE AND FEDERAL CONSTITUTIONS.

      {¶17} “II.    THE   CONVICTION        WAS   BASED    ON      STRUCTURALLY

INSUFFICIENT       EVIDENCE    AND    WAS    OTHEREWISE    [SIC]    AGAINST   THE

MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF THE STATE AND

FEDERAL CONSTITUTIONS.

      {¶18} “III. STRUCTURAL ERROR IN AN EVIDENTIARY RULING DEPRIVED

THE DEFENDANT-APPELANT [SIC] OF THE RIGHTS OF CONFRONTATION, TO

PRESENT A DEFENSE AND TO A FAIR TRIAL IN VIOLATION OF THE STATE AND

FEDERAL CONSTITUTIONS.

      {¶19} “IV. THE JURY INSTRUCTIONS WERE STRUCTURALLY ERRONEOUS

AND ALLOWED/REQUIRED A GUILTY VERDICT BASED ON STRUCTURALLY

INSUFFICIENT EVIDENCE IN VIOLATON [SIC] OF THE STATE AND FEDERAL

CONSTITUTIONS

      {¶20} “V. DEFENDANT-APPELLANT WAS DENIED THE EFFECIVE [SIC]

ASSISTANCE         OF   COUNSEL      IN   VIOLATION   OF   THE     STATE/FEDERAL

CONSTITUTIONS

      {¶21} “VI. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS BY

STRUCTURALLY CUMULATIVE ERROR IN VIOLATION OF THE STATE AND

FEDERAL CONSTITUTUTIONS [SIC].”
                                               I.

      {¶22} In his first assignment of error, Appellant argues that his indictment was

structurally deficient. We disagree.

      {¶23} More specifically, Appellant argues that that element of “recklessness”

was not contained in the indictment and therefore such indictment was deficient.

Appellant also argues that the State failed to include the firearm element in Count Four.

      {¶24} Receiving Stolen Property, R.C.§ 2913.51(A) provides 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.” This section sets forth “knowing” as the required mens rea of receiving stolen

property. The State's indictment tracks the exact language of R.C. §2913.51. Therefore,

the mens rea element necessarily is included in an indictment for this offense

      {¶25} Further, Count Four states that Appellant “did knowingly receive, retain, or

dispose of property, to-wit: (1) Glock 17 .9mm semi automatic handung [sic], one (1)

Smith and Wesson Airweight .38 caliber revolver, and one (1) Ruger 10-22 Rifle, of

another, to wit, Ryan Wise, knowing or having reasonable cause to believe that the

property had been obtained through the commission of a theft offense, said property

being a firearm or dangerous ordnance as defined on Section 2923.11 of the Revised

Code.”

      {¶26} As the above count did in fact contain the firearm element, we find

Appellant’s first assignment of error not well-taken and hereby overrule same.


                                               II.
      {¶27} In his second assignment of error, Appellant argues that his conviction

was against the manifest weight and sufficiency of the evidence. We disagree.

      {¶28} The function of an appellate court on review is to assess the sufficiency of

the evidence “to determine whether such evidence, if believed, would convince the

average mind of the defendant's guilt beyond a reasonable doubt.” State v. Jenks

(1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. In making

this determination, a reviewing court must view the evidence in the light most favorable

to the prosecution. Id.; State v. Feliciano (1996), 115 Ohio App.3d 646, 652, 685 N.E.2d

1307, 1310-1311.

      {¶29} While the test for sufficiency requires a determination of whether the State

has met its burden of production at trial, a manifest-weight challenge questions whether

the state has met its burden of persuasion. State v. Thompkins (1997), 78 Ohio St.3d

380, 390, 678 N.E.2d 541, 548-549 (Cook, J., concurring). In making this determination,

we do not view the evidence in the light most favorable to the prosecution. Instead, we

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.

Thompkins, supra, 78 Ohio St.3d at 387, 678 N.E.2d 541. (Quoting State v. Martin

(1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720-721). Accordingly, reversal on

manifest weight grounds is reserved for “the exceptional case in which the evidence

weighs heavily against the conviction.” State v. Thompkins, supra. In State v.

Thompkins, supra the Ohio Supreme Court further held “[t]o reverse a judgment of a
trial court on the basis that the judgment is not sustained by sufficient evidence, only a

concurring majority of a panel of a court of appeals reviewing the judgment is

necessary.” 78 Ohio St.3d 380, 678 N.E.2d 541 at paragraph three of the syllabus.

       {¶30} In this case, Appellant was convicted of three counts of Receiving Stolen

Property. The elements of receiving stolen property are set forth in R.C. 2913.51(A),

which provides in pertinent part:

       {¶31} “(A) No 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.

       {¶32} “(C) Whoever violates that section is guilty of receiving stolen property.

Except as otherwise provided in this division, receiving stolen property is a

misdemeanor of the first degree. If the value of the property involved is five hundred

dollars or more and is less than five thousand dollars * * *, receiving stolen property is a

felony of the fifth degree.* * * ”

       {¶33} Appellant argues that the State failed to present sufficient evidence as to

the value of the stolen items and further failed to prove the operability of the firearm

pursuant to R.C. §2923.11.

       {¶34} As to the value of the stolen items, R.C. §2913.61states:

       {¶35} “(D) The following criteria shall be used in determining the value of

property or services involved in a theft offense:

       {¶36} “(1) The value of an heirloom, memento, collector's item, antique, museum

piece, manuscript, document, record, or other thing that has intrinsic worth to its owner
and that either is irreplaceable or is replaceable only on the expenditure of substantial

time, effort, or money, is the amount that would compensate the owner for its loss.

       {¶37} “(2) The value of personal effects and household goods, and of materials,

supplies, equipment, and fixtures used in the profession, business, trade, occupation, or

avocation of its owner, which property is not covered under division (D)(1) of this section

and which retains substantial utility for its purpose regardless of its age or condition, is

the cost of replacing the property with new property of like kind and quality.

       {¶38} “(3) The value of any real or personal property that is not covered under

division (D)(1) or (2) of this section, and the value of services, is the fair market value of

the property or services. As used in this section, “fair market value” is the money

consideration that a buyer would give and a seller would accept for property or services,

assuming that the buyer is willing to buy and the seller is willing to sell, that both are

fully informed as to all facts material to the transaction, and that neither is under any

compulsion to act.”

       {¶39} Here, the stolen football helmet and jersey clearly fall within D(1) as

collector’s items. As such, the valuation for such items was the amount that would

compensate the owner for their loss. At trial, Mr. Stottsberry testified that his parents

paid between $1,250 and $1,300 for the sports memorabilia. Further, he testified that

the stolen gift card was worth $30, as was the stolen hamper.

       {¶40} Mr. Wise testified that he paid $400 for the television in November, 2009,

approximately one year before it was stolen. (T. at 228-229). He further testified that

the $60 value he placed on the Smith and Wesson handgun case was based on what

such a case cost in average the last time he had looked online. (T. at 229). Additionally,
he stated that he paid $47 plus tax for ammunition. Id. He further testified that the

engraved pocket watch was worth approximately $100 and that it was given to him by

his parents as a gift before he deployed to Afghanistan. (T. at 223, 229). We find that

these personal effects fall within D(2), stating that the value is the replacement value of

said items.

       {¶41} Although the general rule is that one must be qualified as an expert to

testify as to value, an “owner is permitted to testify concerning the value of his property

without being qualified as an expert, because he is presumed to be familiar with it from

having purchased or dealt with it.” Tokles & Son, Inc. v. Midwestern Indemnity Co.

(1992), 65 Ohio St.3d 621, 605 N.E.2d 936, at paragraph two of the syllabus, citing

Bishop v. East Ohio Gas Co. (1944), 143 Ohio St. 541, 56 N.E.2d 164.

       {¶42} The court below gave an instruction to the jury concerning the market

valuation of stolen property instead of replacement value. Undeniably, the trial court

should have delivered a proper instruction on that subject. However, defense counsel

herein did not request such an instruction prior to the charge, nor did counsel object to

the charge as given.

       {¶43} Crim. R. 30(A) provides:

       {¶44} ‘(A) Instructions; Error; Record. At the close of the evidence or at such

earlier time during the trial as the court reasonably directs, any party may file written

requests that the court instruct the jury on the law as set forth in the requests. Copies of

such requests shall be furnished to all other parties at the time of making such requests.

The court shall inform counsel of its proposed action upon the requests prior to their
arguments to the jury, but the court shall instruct the jury after the arguments are

completed. The court need not reduce its instructions to writing.

       {¶45} ‘A party may not assign as error the giving or failure to give any

instructions unless he objects thereto before the jury retires to consider its verdict,

stating specifically the matter to which he objects and the grounds of his objection.

Opportunity shall be given to make the objection out of the hearing of the jury.’

       {¶46} An error not raised in the trial court must be plain error for an appellate

court to reverse. State v. Long (1978), 53 Ohio St.2d 91; Crim.R. 52(B). In order to

prevail under a plain error analysis, Appellant bears the burden of demonstrating that

the outcome of the trial clearly would have been different but for the error. Long, supra.

Notice of plain error “is to be taken with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” Id. at paragraph

three of the syllabus.

       {¶47} Under certain circumstances there may be plain error in an erroneous jury

instruction on valuation, notwithstanding the defendant's failure to object thereto. See

State v. Donaldson (Feb. 2, 1984), Cuyahoga App. No. 46958, unreported, at 6 (‘Even

though no objection was made to this instruction, we must consider it as prejudicial to

Appellant's right to a fair trial in view of the fact the state failed to meet its burden of

proof as to the element of value.’).

       {¶48} We find the case at bar to be distinguishable from Donaldson, supra,

because the State did not fail to meet its burden herein. The victims testified as to the

proper values of the stolen items.
       {¶49} Consequently, this Court finds the doctrine of plain error inapplicable

under the facts of the instant case.

       {¶50} Appellant also argues that the State failed to prove that the stolen firearm

met the definition of operability.

       {¶51} Revised Code 2913.51(C) provides:

       {¶52} “(C) Whoever violates this section is guilty of receiving stolen property.

Except as otherwise provided in this division, receiving stolen property is a

misdemeanor of the first degree. If …, or if the property involved is a firearm or

dangerous ordnance, as defined in section 2923.11 of the Revised Code, receiving

stolen property is a felony of the fourth degree. ***”

       {¶53} The definition of a firearm as contained in R.C. §2923.11, states:

       {¶54} “(B)(1) Firearm” means any deadly weapon capable of expelling or

propelling one or more projectiles by the action of an explosive or combustible

propellant. “Firearm” includes an unloaded firearm, and any firearm that is inoperable

but that can readily be rendered operable.

       {¶55} “(2) When determining whether a firearm is capable of expelling or

propelling one or more projectiles by the action of an explosive or combustible

propellant, the trier of fact may rely upon circumstantial evidence, including, but not

limited to, the representations and actions of the individual exercising control over the

firearm.”

       {¶56} The operability of a firearm may be inferred from the circumstances. State

v. Murphy (1990), 49 Ohio St.3d 206. Operability may be proven by circumstantial

evidence, including, but not limited to the representations and actions of the individual
exercising control over the weapon, and the testimony of lay witnesses.”        State v.

Whitted, 11th Dist. App. No. 96-A-0032.

      {¶57} Here, Appellant never objected to the admission of the firearm or

challenged its operability at trial the firearm was entered into evidence. The jury was

able to see the gun and recognize that it was, in fact, a real gun. Further, there was

evidence that ammunition for this gun was also stolen, in addition to testimony as to the

amount of money Appellant was able to get for the gun when he sold it.

      {¶58} We find that such evidence allowed the jury to find that the firearm in this

case was operable as defined in R.C. 2923.11(B).

      {¶59} Appellant’s second assignment of error is overruled.

                                              III.

      {¶60} In his third assignment of error, Appellant argues that he was deprived of

his constitutional right to confront witnesses and present a defense. Specifically,

Appellant argues that the trial court erred in barring cross-examination as to the

replacement value of the stolen items.

      {¶61} Based on our disposition of the previous assignments of error, we find that

any error in not allowing cross-examination as to the replacement value was harmless

error in that we find that the value of the items involved would still have been found to

have exceeded the threshold level on these counts.

      {¶62} Based on the foregoing, we find Appellant’s third assignment of error not

well-taken and hereby overrule same


                                              IV.
       {¶63} In his fourth assignment of error, Appellant argues that the jury

instructions were erroneous. We disagree.

       {¶64} As set forth in our disposition of Appellant’s second assignment of error,

we found that Appellant herein waived all but plain error as defense counsel did not

request an instruction on replacement value prior to the charge, nor did counsel object

to the charge as given.

       {¶65} In Neder v. United States (1999), 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d

35, the United States Supreme Court held that because the failure to properly instruct

the jury is not in most instances structural error, the harmless-error rule of Chapman v.

California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, applies to a failure to properly

instruct the jury, for it does not necessarily render a trial fundamentally unfair or an

unreliable vehicle for determining guilt or innocence.

       {¶66} Again, we do not find plain error in this case as, despite the erroneous

instruction, the jury had before it testimony and evidence as to the replacement value of

the stolen items.

       {¶67} Appellant’s fourth assignment of error is overruled.

                                                V.

       {¶68} In his fifth assignment of error, Appellant argues that he was denied the

effective assistance of counsel. We disagree.

       {¶69} Our standard of review is set forth in Strickland v. Washington (1984), 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Ohio adopted this standard in the case of

State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. These cases require a two-

pronged analysis in reviewing a claim for ineffective assistance of counsel. First, we
must determine whether counsel's assistance was ineffective; whether counsel's

performance fell below an objective standard of reasonable representation and was

violative of any of his essential duties to the client. If we find ineffective assistance of

counsel, we must then determine whether or not the defense was actually prejudiced by

counsel's ineffectiveness such that the reliability of the outcome of the trial is suspect.

This requires a showing that there is a reasonable probability that but for counsel's

unprofessional error, the outcome of the trial would have been different. Id. Trial counsel

is entitled to a strong presumption that all decisions fall within the wide range of

reasonable professional assistance. State v. Sallie (1998), 81 Ohio St.3d 673, 675, 693

N.E.2d 267.

       {¶70} Appellant raises the following two areas of alleged ineffective assistance:

(1) calling Appellant to the stand to testify; and (2) failure to object to the written jury

instructions, as outlined in Assignment of Error II and IV.

       {¶71} As to Appellant’s argument that he was prejudiced by counsel’s decision

to allow him to testify, Appellant fails to support this argument by citing this Court to

those portions of the transcript that support this argument. Further, Appellant fails to

support this argument with any case law or develop this argument in any real way to

allow this Court to understand how Appellant claims to have been prejudiced by his own

testimony.

       {¶72} If, as Appellee assumes, Appellant is claiming that he was prejudiced by

his counsel’s decision to show that Appellant admits to crimes when he is guilty,

therefore if he is denying involvement he must be telling the truth, such decision is trial

strategy.
       {¶73} “[A] court must indulge a strong presumption that counsel's conduct falls

within the wide range of reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the challenged action ‘might

be considered sound trial strategy.’ “ Id. at 689, quoting Michel v. Louisiana (1955), 350

U.S. 91, 101, 76 S.Ct. 158, 164.

       {¶74} Appellant further argues that his counsel was ineffective in failing to object

to the jury instructions as set forth in the previous assignments of error.

       {¶75} “ ‘The failure to object to error, alone, is not enough to sustain a claim of

ineffective assistance of counsel.’ ” State v. Fears (1999), 86 Ohio St.3d 329, 347, 715

N.E.2d 136, quoting State v. Holloway (1988), 38 Ohio St.3d 239, 244, 527 N.E.2d 831.

       {¶76} With regard to counsel’s failure to object to the erroneous jury instructions,

as per our previous analysis, this Court is not persuaded that the outcome of the trial

would have been different had any such objection been raised by defense counsel. We

therefore find Appellant was not prejudiced thereby.

       {¶77} Accordingly, we hold trial counsel's performance did not fall below an

objective standard of reasonable representation, and Appellant was not deprived of the

effective assistance of trial counsel.

       {¶78} Appellant's Fifth Assignment of Error is overruled.

                                                VI.

       {¶79} In his sixth and final assignment of error, Appellant argues that he was

denied due process by cumulative errors at trial. We disagree.

       {¶80} Pursuant to the doctrine of cumulative error, a judgment may be reversed

where the cumulative effect of errors deprives a defendant of his constitutional rights,
even though the errors individually do not rise to the level of prejudicial error. State v.

Garner (1995), 74 Ohio St.3d 49, 64, 656 N.E.2d 623, certiorari denied (1996), 517 U.S.

1147, 116 S.Ct. 1444, 134 L.Ed.2d 564.

        {¶81} In the present case, we do not find that there have been multiple instances

of error triggering the cumulative error doctrine.

        {¶82} Appellant’s sixth assignment of error is overruled.

        {¶83} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Muskingum County, Ohio, is affirmed.

                                                                       Judgment affirmed.

By: Wise, J.


Gwin, P. J., concurs.

Edwards, J., dissents.


EDWARDS, J., DISSENTING OPINION

        I concur with the analysis and disposition of the majority except as to the portion

of the analysis and disposition of the second assignment of error dealing with Count

Four.

        I agree that the operability of a firearm may be inferred from the circumstances,

but I disagree that the circumstances in this case created the inference beyond a

reasonable doubt that the firearm was operable.

        Therefore, I would sustain the portion of the second assignment of error dealing

with Count Four and enter a conviction for a lesser degree of Receiving Stolen Property

on Count Four.
          IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT



STATE OF OHIO                            :
                                         :
       Plaintiff-Appellee                :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
COLIN M. ERICHSEN                        :
                                         :
       Defendant-Appellant               :         Case No. CT2011-0018




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

judgment of the Court of Common Pleas of Muskingum County, Ohio, is affirmed.

       Costs assessed to Appellant.
