[Cite as State v. Welch, 2015-Ohio-3203.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 14 CAA 09 0061
STEPHAN M. WELCH

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Delaware County Court of
                                               Common Pleas, Case No. 14 CRI 03 0123


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         August 7, 2015


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


CAROL HAMILTON O'BRIEN                         ELIZABETH E. OSORIO
Delaware County Prosecuting Attorney           The Law Offices of Brian Jones
MARK C. SLEEPER                                2211 U.S. Highway 23 North
Assistant Prosecuting Attorney                 Delaware, Ohio 43015
140 N. Sandusky St., 3rd Floor
Delaware, Ohio 43015
Delaware County, Case No. 14 CAA 09 0061                                              2

Hoffman, P.J.


       {¶1}   Defendant-appellant Stephan M. Welch appeals his conviction entered by

the Delaware County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   In December, 2014, Appellant purchased a MacBook Pro laptop from a

friend, Matthew Fleming. Appellant purchased the new laptop for $300.00. Appellant

testified he asked his friend if "there was anything funny" about the computer, and was

told there was not. Later Appellant posted the computer for sale on Craigslist. He did

not "wipe" the computer, or remove any communications or identifiers from it. Appellant

then decided to pawn the computer at Cashland in Delaware, Ohio.

       {¶3}   Seven years prior, Appellant had bought an iPhone from a friend, which

had been stolen property. Appellant had entered a plea of guilty to a misdemeanor

charge of receiving stolen property.      At the time of Appellant's conviction herein,

Appellant was undergoing treatment in a program of Intervention in Lieu of Conviction

for a drug charge.

       {¶4}   The MacBook Pro laptop at issue herein belonged to Gregory Wolfson,

who loaned the laptop to Eric Goodman. The laptop was stolen from Goodman's car.

Goodman was able to identify the laptop from the Cashland pawn shop.           Wolfson

testified he paid $1,800 for the laptop at the time of purchase.

       {¶5}   Detective Ryan Pentz of the Powell Police Department testified at trial he

received a report of a stolen laptop. He entered the serial number for the laptop into

LEADS online which connected him to activity at area pawn shops.
Delaware County, Case No. 14 CAA 09 0061                                                3


       {¶6}      Detective Pentz later received information a laptop with a serial number

matching the stolen MacBook Pro had been pawned at Cashland in Delaware, Ohio.

He went to the store, and confirmed the serial number matched the laptop information

provided. Both Wolfson and Goodman later confirmed the laptop at Cashland was the

stolen laptop.

       {¶7}      Detective Pentz interviewed Appellant who admitted to pawning the

laptop. Appellant stated he did not know where the laptop came from and did not ask

Fleming at the time he purchased it. He admitted he eventually learned the laptop was

worth $1,300 brand new.

       {¶8}      Amber Munday, an employee of the Cashland pawn shop, testified as to

the serial number and other identifying features of the laptop. She testified the pawn

shop paid Appellant $650.00 for the computer.

       {¶9}      On March 28, 2014, Appellant was charged with one count of receiving

stolen property, in violation of R.C. 2913.51(A), a felony of the fifth degree.       The

indictment alleged the value of the property stolen was greater than $1,000.00, but less

than $7,500.00.

       {¶10} On July 21, 2014, the matter proceeded to a jury trial.       Following the

presentation of evidence, the jury returned a finding of guilty. The trial court sentenced

Appellant to a period of three years of community control, including court costs and

fees, as well as forty-five days in jail with release for work purposes.

       {¶11} Appellant appeals, assigning as error:

       {¶12} "I. MR. WELCH'S CONVICTION OF RECEIVING STOLEN PROPERTY

WAS BASED UPON INSUFFICIENT EVIDENCE AS THE STATE FAILED TO PROVE
Delaware County, Case No. 14 CAA 09 0061                                                4


BEYOND A REASONABLE DOUBT THAT MR. WELCH KNEW OR REASONABLY

SHOULD HAVE KNOWN THE LAPTOP WAS STOLEN AND FURTHER FAILED TO

PROVE THE LAPTOP AT ISSUE WAS STOLEN, THEREBY VIOLATING MR.

WELCH'S RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH

AMENDMENT AND ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION.

      {¶13} "II. MR. WELCH'S CONVICTION FOR RECEIVING STOLEN PROPERTY

WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE RESULTING IN A

MISCARRIAGE OF JUSTICE, IN VIOLATION OF SECTION 3, ARTICLE IV OF THE

OHIO CONSTITUTION, BECAUSE THE MANIFEST WEIGHT OF THE EVIDENCE

ESTABLISHED MR. WELCH'S INQUIRIES REGARDING THE LAPTOP WERE

REASONABLE UNDER THE CIRCUMSTANCES.

      {¶14} "III. TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE WHEN

COUNSEL FAILED TO SUBPOENA A WITNESS NECESSARY TO THE DEFENSE

AND FURTHER FAILED TO OBJECT TO THE STATE'S FAILURE TO ESTABLISH

BEYOND A REASONABLE DOUBT THAT THE LAPTOP AT ISSUE WAS STOLEN."

                                            I. and II.

      {¶15} Appellant's first and second assignments of error raise common and

interrelated issues; therefore, we will address the arguments together.

      {¶16} Our standard of reviewing a claim a verdict was not supported by sufficient

evidence is to examine the evidence presented at trial to determine whether the

evidence, if believed, would convince the average mind of the accused's guilt beyond a

reasonable doubt. 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
Delaware County, Case No. 14 CAA 09 0061                                                5

essential elements of the crime proven beyond a reasonable doubt. State v. Jenks

(1991), 61 Ohio St.3d 259, 574 N.E.2d 492.

       {¶17} The Supreme Court has explained the distinction between claims of

sufficiency of the evidence and manifest weight. Sufficiency of the evidence is a

question for the trial court to determine whether the State has met its burden to produce

evidence on each element of the crime charged, sufficient for the matter to be submitted

to the jury.

       {¶18} Manifest weight of the evidence claims concern the amount of evidence

offered in support of one side of the case, and is a jury question. We must determine

whether the jury, in interpreting the facts, so lost its way that its verdict results in a

manifest miscarriage of justice. State v. Thompkins (1997), 78 Ohio St.3d 387, citations

deleted. On review for manifest weight, a reviewing court is “to examine the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of the

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 judgment

must be reversed. The discretionary power to grant a new hearing should be exercised

only in the exceptional case in which the evidence weighs heavily against the

judgment.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541, 1997-Ohio-52,

citing State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. Because the

trier of fact is in a better position to observe the witnesses' demeanor and weight their

credibility, the weight of the evidence and the credibility of the witnesses are primarily

for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212,

syllabus 1.
Delaware County, Case No. 14 CAA 09 0061                                                6


      {¶19} Appellant was convicted of receiving stolen property, in violation of R.C.

2913.51(A), which reads, "(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."

      {¶20} The criteria for whether a defendant knew or should have known property

has been stolen was set forth in State v. Davis, 49 Ohio App.3d 109, 550 N.E.2d 966

(1988).   The factors include: 1) the defendant's unexplained possession of the

merchandise; 2) the nature of the merchandise; 3) the frequency with which such

merchandise is stolen; 4) the nature of the defendant's commercial activities; and 5) the

relatively limited time between the theft and the recovery of the merchandise. Id. at 112.

“Knowledge that property is stolen may be inferred from circumstantial evidence.” State

v. Beasley (Feb. 21, 1991) Cuyahoga App. No. 58054.

      {¶21} Gregory Wolfson testified at trial he paid $1,800 for the laptop. He lent the

computer to Eric Goodman to use for work purposes, and the computer was stolen from

the back of Goodman's car. They contacted the Powell Police Department.

      {¶22} Amber Munday testified at trial on December 19, 2013, Appellant brought

in a MacBook Pro and pawned it. She testified as to the serial number and the amount

of the transaction being $650.00. Tr. at 96-97.

      {¶23} Detective Pentz testified upon learning of the theft of the laptop from the

car, he entered the serial number into LEADS online. Upon learning of a match on

LEADS at Cashland in Delaware, he went to the store and confirmed the serial numbers

matched. Tr. at 110. After confirming it was Wolfson's laptop, he contacted him and let

him know of the procedures to pick up the computer.
Delaware County, Case No. 14 CAA 09 0061                                             7


      {¶24} Detective Pentz learned Appellant had pawned the laptop, and he

obtained a copy of the pawn slip and the surveillance video.         He also checked

Appellant's information through the BMV. Tr. at 110-111.

      {¶25} Wolfson testified upon having the laptop returned, he found other

information on the computer in addition to his personal information. He immediately let

the detectives working on the case know, and they retrieved the information. Tr. At 88.

Detective Pentz testified he found numerous emails, messages and photographs on the

computer belonging to Appellant, including pictures of the computer itself. Detective

Pentz obtained information relating to the Craigslist advertisement as well as where

Appellant was trying to sell the computer. Tr. at 114. One of the ads lists a MacBook

Pro computer for sale at $1,299, new plus tax. Tr. at 116.

      {¶26} Detective Pentz testified Appellant was not cooperative at first, but later

stated he purchased the computer for $300.00 from a Matt Fleming. He would not offer

any information on Fleming.

      {¶27} Appellant testified herein,

               Q. And nowhere in there after he texted you that did you ask him

      where he got it or anything; is that right?

               A. Right.

               Q. All you said is that you wanted it?

               A. Yeah.

               Q. Showing you State's Exhibit 2. You took those photographs,

      right?

               A. Yes.
Delaware County, Case No. 14 CAA 09 0061                                           8


            Q. And those are photographs you took with your phone in order to

     sell this laptop on Craig's List?

            A. Yes.

            Q. State's Exhibit 3. That's the Craig's List ad that you posted; is

     that correct?

            A. Yes.

            Q. And you listed a purchase price of $950, right?

            A. Yes.

            Q. Which by your own estimation is three times what you paid for it;

     is that correct?

            A. Yes.

            Q. You also then put in the description that you had a 13-inch

     MacBook Pro that was purchased in May of this year; is that right?

            A. Yes.

            Q. And you indicated the software that was on it; is that right?

            A. Yes.

            Q. And you said that it was $1,299 new plus tax; is that right?

            A. Yes.

            Q. So at the time you went to sell the laptop, you knew you were in

     the possession of at least a $1,300 laptop that you had purchased for

     $300; is that right?

            A. Yes.
Delaware County, Case No. 14 CAA 09 0061                                               9


              Q. After you found out how much it was worth and how little it had

     been sold to you for, did you go back to Matt Fleming and ask him where

     he got it from?

              A. No.

              Q. Because, again, you didn't care where he got it from; is that

     right?

              A. Yeah.

              Q. Showing you State's Exhibit 4. Top left corner there's some

     instant messaging back and forth. You remember using the computer to

     do instant messaging?

              A. Yes.

              Q. So you were aware of how the laptop worked enough to set it up

     with your account to start using your instant messenger?

              A. Yes.

              Q. The bottom left, do you recall being asked by potential

     purchasers from Craig's List about the specifications of the laptop?

              A. Yes.

              Q. And you were able to provide that information to them; is that

     correct?

              A. It's on the laptop.

              Q. So you knew enough about the laptop in order to get on to it and

     locate that information in order to be able to provide it to a potential buyer?

              A. It's pretty simple to find.
Delaware County, Case No. 14 CAA 09 0061                                                      10


              Q. Okay. You tried unsuccessfully to sell the laptop on Craig's List;

     is that right?

              A. I had people call, I just - - honestly, I didn't really want to sell it. I

     was kinda desperate. I wanted some money for Christmas, but I didn't

     really want to get rid of it all the way.

              Q. So then you then took it to the pawnshop - -

              A. Yes.

              Q. - - is that right?

              A. Yes.

              Q. Now, you said in the past you have a prior conviction for

     Receiving Stolen Property, right?

              A. Yes.

              Q. And in that case it was an iPhone that you purchased from a

     friend; is that right?

              A. Yes.

              Q. And it was your testimony today that you had no idea that that

     phone was stolen at the time you purchased it?

              A. Right.

              Q. And back then you didn't ask where it came from; is that right?

              A. Right.

              Q. And if I'm not mistaken, then you said on direct examination that

     because of that you always want to ask where stuff comes from; is that

     right?
Delaware County, Case No. 14 CAA 09 0061                                                 11


              A. I always want to ask whether or not it's stolen or what kind - -

              Q. Were you not asked the question whether or not you always

       want to ask where property comes from before you purchase it, were you

       asked that question; do you recall?

              A. I don't recall.

              Q. If you were asked that question, would your answer have been,

       yes, you always do want to know where stuff comes from?

              A. I generally like to.

              Q. But it's true that in this case you didn't bother to ask the question

       where it came from; is that correct?

              A. Yes.

       Tr. at 148-152.

       {¶28} Upon review of the testimony, we find there was competent, credible

evidence presented for the jury to find Appellant guilty of the charge of receiving stolen

property, and Appellant's conviction is not against the manifest weight nor based upon

insufficient evidence. The jury had competent credible evidence to find Appellant knew

or had reasonable cause to believe the property had been stolen.

       {¶29} The first and second assignments of error are overruled.

                                                III.

       {¶30} In the third assigned error, Appellant maintains he was denied effective

assistance of trial counsel.

       {¶31} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently. See,
Delaware County, Case No. 14 CAA 09 0061                                                 12

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In

assessing such claims, “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, 104 S.Ct.

2052, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).

       {¶32} “There are countless ways to provide effective assistance in any given

case. Even the best criminal defense attorneys would not defend a particular client in

the same way.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. The question is whether

counsel acted “outside the wide range of professionally competent assistance.” Id. at

690, 104 S.Ct. 2052.

       {¶33} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the defendant must show that “there is a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

       {¶34} The United States Supreme Court and the Ohio Supreme Court have held

a reviewing court “need not determine whether counsel's performance was deficient

before examining the prejudice suffered by the defendant as a result of the alleged

deficiencies.” Bradley, supra at 143, quoting Strickland at 697, 104 S.Ct. 2052.

Accordingly, we will direct our attention to the second prong of the Strickland test.

       {¶35} Appellant maintains counsel failed to subpoena a witness necessary to the

defense.    Specifically, Appellant argues counsel's failure to subpoena an Apple
Delaware County, Case No. 14 CAA 09 0061                                              13


representative resulted in grave prejudice to Appellant as Appellant could not

demonstrate the laptop was not registered.

       {¶36} Upon review of the evidence and the testimony presented at trial, we find

a reasonable probability does not exist the outcome of the case would have been

different had this evidence been presented. Appellant has not demonstrated prejudice

as a result of Appellant's alleged error.

       {¶37} Additionally, Appellant asserts trial counsel did not argue the State failed

to establish a theft offense. Upon review of the trial testimony, the evidence presented

adequately establishes the laptop was lent to Goodman and was stolen from his

vehicle. Detective Pentz tracked the computer's serial number to the pawn shop, and

learned Appellant had pawned the laptop at Cashland. Wolfson and Goodman both

confirmed the laptop at Cashland had the same serial number and identifying markers

as the stolen laptop. Accordingly, there was sufficient evidence presented at trial to

establish a theft offense.

       {¶38} Appellant has not demonstrated prejudice as a result of counsel's alleged

failure.

       {¶39} The third assigned error is overruled.
Delaware County, Case No. 14 CAA 09 0061                                       14


      {¶40} Appellant's conviction in the Delaware County Court of Common Pleas is

affirmed.

By: Hoffman, P.J.

Wise, J. and

Delaney, J. concur
