[Cite as State v. Emler, 2016-Ohio-5162.]


                                       COURT OF APPEALS
                                   COSHOCTON COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                               :       JUDGES:
                                            :       Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                  :       Hon. W. Scott Gwin, J.
                                            :       Hon. William B. Hoffman, J.
-vs-                                        :
                                            :
CHAD A. EMLER                               :       Case No. 2016-CA-0004
                                            :
        Defendant-Appellant                 :       OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. 2015-CR-0123




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   July 27, 2016




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

BENJAMIN E. HALL                                    JEFFREY A. MULLEN
318 Chestnut Street                                 239 North Fourth Street
Coshocton, OH 43812                                 Coshocton, OH 43812
Coshocton County, Case No. 2016-CA-0004                                                   2

Farmer, P.J.

       {¶1}    On November 20, 2015, the Coshocton County Grand Jury indicted

appellant, Chad Emler, on one count of theft of a motor vehicle in violation of R.C.

2913.02. Said charge arose after appellant was found behind a house asleep in a

vehicle that had been reported stolen that morning.

       {¶2}    A bench trial was held on February 23, 2016. During the trial, the state

presented six exhibits, one of which was the narrative of the investigating officer (State's

Exhibit 6). Appellant stipulated to the admission of the exhibits and the facts contained

therein. No testimony was taken. By judgment entry filed March 1, 2016, the trial court

found appellant guilty as charged. By judgment entry filed March 2, 2016, the trial court

sentenced appellant to seventeen months in prison.

       {¶3}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                              I

       {¶4}    "THE TRIAL COURT'S VERDICT WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE."

                                              I

       {¶5}    Appellant claims the trial court's verdict was against the manifest weight of

the evidence. Appellant claims based on the stipulated facts, the conviction should

have been for unauthorized use of a motor vehicle. We disagree.

       {¶6}    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

witnesses and determine "whether in resolving conflicts in the evidence, the jury clearly
Coshocton County, Case No. 2016-CA-0004                                                3


lost its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175 (1st

Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The

granting of a new trial "should be exercised only in the exceptional case in which the

evidence weighs heavily against the conviction." Martin at 175.

      {¶7}   Appellant was convicted of theft of a motor vehicle in violation of R.C.

2913.02(A)(1) which states: "(A) No person, with purpose to deprive the owner of

property or services, shall knowingly obtain or exert control over either the property or

services in any of the following ways: (1) Without the consent of the owner or person

authorized to give consent."

      {¶8}   Appellant argues the facts reflect that he was only guilty of unauthorized

use of a motor vehicle in violation of R.C. 2913.03 which states in 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."

      {¶9}   The essential difference between the two offenses is the "purpose to

deprive the owner of property" language contained in R.C. 2913.02(A).               R.C.

2913.01(C) defines "deprive" as follows in part:



             (1) Withhold property of another permanently, or for a period that

      appropriates a substantial portion of its value or use, or with purpose to

      restore it only upon payment of a reward or other consideration;
Coshocton County, Case No. 2016-CA-0004                                                 4


              (3) Accept, use, or appropriate money, property, or services, with

       purpose not to give proper consideration in return for the money, property,

       or services, and without reasonable justification or excuse for not giving

       proper consideration.



       {¶10} Appellant argues there is nothing in the record to suggest he had any

purpose to deprive the owner of his vehicle. Appellant argues it was merely a "joy ride."

       {¶11} In its March 1, 2016 judgment entry finding appellant guilty, the trial court

found from the stipulated facts that the vehicle was found "approximately 4 miles driving

distance from its original location" and "parked so that it was hidden from view." When

the police asked appellant why he took the vehicle, appellant stated "he 'doesn't have

anything' and 'his life is shit.' " The trial court determined the following:



              11. The Court finds that the facts as set forth above support the

       determination that the defendant acted with purpose to deprive the owner

       of the Ford Explorer.

              12. Because there is no way to look into the mind of the defendant

       to determine his intent, the Court must rely on inferences from the

       surrounding facts and circumstances to prove purpose.

              13. In this case the defendant was found sleeping in the Ford

       Explorer while the vehicle was hidden from view. These two facts show

       that the defendant had not abandoned the Explorer, and intended to
Coshocton County, Case No. 2016-CA-0004                                                5


       continue using it.     When combined with the defendant's inculpatory

       statement, there is no doubt as to the defendant's purpose.



       {¶12} During the verdict announcement/sentencing hearing, the trial court

specifically stated the following (March 1, 2016 T. at 5-6):



              The court finds that the defendant's request for conviction of a

       lesser included offense is not warranted. The defendant has requested a

       conviction for unauthorized use of a motor vehicle, in violation of Revised

       Code Section 2913.03. The lesser included offense is not appropriate

       because it was the defendant's purpose to deprive the owner of the

       Explorer. The defendant was sleeping in the Explorer when it was found,

       and the Explorer was hidden from view. Moreover, the defendant did not

       abandon the vehicle or take other action consistent with what is often

       referred to as joyriding.



       {¶13} We find the evidence supports the trial court's determination.          The

stipulated evidence, State's Exhibit 6, established the vehicle was missing overnight and

later found parked behind a house with appellant sleeping inside. Appellant was getting

out of the vehicle when the police approached. Appellant saw the police and fled. The

police caught him and when questioned, appellant admitted to taking the vehicle. The

evidence established the vehicle was hidden behind a house to deprive the owner of his

property.
Coshocton County, Case No. 2016-CA-0004                                        6


      {¶14} Upon review, we find the trial court did not lose its way and find no

manifest miscarriage of justice.

      {¶15} The sole assignment of error is denied.

      {¶16} The judgment of the Court of Common Pleas of Coshocton County, Ohio

is hereby affirmed.

By Farmer, P.J.

Gwin, J. and

Hoffman, J. concur.




SGF/sg 707
