[Cite as State v. Taylor, 2014-Ohio-5074.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                       WOOD COUNTY


State of Ohio                                    Court of Appeals No. WD-13-044

        Appellee                                 Trial Court No. 2013CR0051

v.

Steven Taylor                                    DECISION AND JUDGMENT

        Appellant                                Decided: November 14, 2014

                                             *****

        Paul A. Dobson, Wood County Prosecuting Attorney, Aaron T.
        Lindsey and David T. Harold, Assistant Prosecuting Attorneys,
        for appellee.

        Eric Allen Marks, for appellant.

                                             *****

        PIETRYKOWSKI, J.

        {¶ 1} Defendant-appellant, Steven Taylor, appeals the June 11, 2013 judgment of

the Wood County Court of Common Pleas which, following a trial to the court and a

finding of guilt as to the charges of receiving stolen property and possession of criminal
tools, sentenced appellant to 11 months of imprisonment. Because we find that the court

did not err, we affirm.

       {¶ 2} On February 7, 2013, appellant was indicted on one count of receiving

stolen property, R.C. 2913.51(A), (C), and one count of possession of criminal tools, R.C.

2923.24(A), (C). The charges stemmed from two incidents on January 19, 2013,

involving the Findlay and Perrysburg, Ohio, Best Buy stores. Appellant entered not

guilty pleas to the charges.

       {¶ 3} The case proceeded to trial on March 22, 2013, and the following relevant

evidence was presented. Perrysburg Township Police Officer, David Molter, testified

that he responded to a call that a theft had occurred at Best Buy in Perrysburg, Wood

County, Ohio. The suspects had left the store and Officer Molter observed the vehicle

described by Best Buy’s asset protection department pulling out of the parking lot.

Molter testified that he followed the vehicle with an additional police cruiser behind him.

Once the vehicle stopped he and the other officer, Officer Nixon, walked up to the

vehicle and asked the driver to exit.

       {¶ 4} The driver, identified as Jerimiah Johnson, exited the vehicle and was patted

down for weapons. Appellant was the passenger in the vehicle. Officer Molter testified

that he observed pills on the driver’s seat which were later identified as oxycodone.

Molter then observed needle-nosed pliers in the driver’s door pocket. A search of the

vehicle was then conducted. In addition to the pliers, officers found a large magnet on a

key chain, a large pocket knife, and a razor blade.




2.
       {¶ 5} On cross-examination, Officer Molter agreed that at no time was appellant in

control of the vehicle. He further agreed that the pliers were in the driver’s side door and

the magnet was attached to the keychain containing the ignition key. Further, Molter

stated that appellant sat quietly in the car; he made no statements or furtive movements.

The driver, on the other hand, made some incriminating statements.

       {¶ 6} Perrysburg Township Police Officer, James Nixon, testified next. Officer

Nixon stated that after Officer Molter initiated the traffic stop, Nixon approached the

driver’s side and asked the driver to exit the vehicle. The driver did not immediately

comply, instead he began “fidgeting” in the center console of the vehicle. The vehicle

began rolling forward; it eventually stopped and Johnson exited.

       {¶ 7} Officer Nixon similarly testified regarding the oxycodone pills, the pliers,

knife and magnet. Nixon stated that the magnet is a tool commonly used to remove

security wrap from an item in a store so the alarm does not go off when exiting. As to the

knife and pliers, Nixon stated that they are tools commonly used to cut off tags or other

wraps on merchandise.

       {¶ 8} Officer Nixon testified that he searched the trunk of the vehicle and

discovered two computer tablets and three Apple iPods all in their original packaging.

They were not bagged and no receipts were found. Nixon testified that he took them to

the Best Buy store to see if it they were taken from there. Nixon stated that he left them

at the store.




3.
         {¶ 9} Acacia Bland testified that she is the asset protection lead at the Best Buy in

Findlay, Handcock County, Ohio. Bland stated that she received a call from the

Perrysburg store regarding some items recovered from police. Bland checked the store

inventory and determined that the items came from that store. The total value of the

items, pre-tax, was $1,329.95. Bland testified regarding the video surveillance system at

the store and a recording from the system. After getting a description of the suspects,

Bland testified that she recovered a video recording which depicted appellant and

Johnson entering the store and visiting the aisle where the items were stolen. Bland

narrated the viewing of the video for the court; the disc was admitted into evidence.

Bland stated that the cases and wrapping from the items were found discarded in multiple

aisles. Bland stated that the two entered the store on January 19, 2013, at approximately

3:50 p.m., and left at approximately 4:00 p.m. They did not purchase anything while in

the store.

         {¶ 10} During cross-examination, Bland acknowledged that appellant and Johnson

parted company for a good part of the time they were in the store. She also

acknowledged that she never saw the stolen items in either appellant’s or Johnson’s

hands.

         {¶ 11} Danica Erdman testified that she is a sales associate at Best Buy in

Perrysburg, Ohio. Erdman testified that on January 19, 2013, she observed two men in

the MP3 or iPod area of the store. Erdman stated that appellant was standing up and was

“blocking her” while the other man was kneeling down and “fidgeting” with the security




4.
device at the top of an iPod case. Specifically, Erdman stated that appellant was weaving

back and forth in response to her movements. After offering help and being told it was

not needed, Erdman, suspecting that a theft was in process, left to find her manager.

       {¶ 12} During cross-examination, Erdman indicated that appellant’s blocking or

mirroring maneuver lasted approximately one and one-half to two minutes. Reviewing

the security video, Erdman acknowledged that appellant weaved back and forth for

approximately 15 seconds. Erdman explained that she was not visible in the video

because, at only five-foot two inches, she was blocked by the shelves.

       {¶ 13} Brandi Hintze, lead asset protection at the Perrysburg store, testified that on

January 19, 2013, at approximately 5:00 p.m., the manager came into the security office

and informed her that an employee felt that there was suspicious activity in the iPod

department. Hintze then focused her video surveillance on that area. Hintze testified that

she observed two men, one of whom was appellant, in the department. Continuing her

live surveillance she observed the two talking together while looking at an iPod that

Johnson had picked up. Johnson then put the iPod under his hat. Johnson also took an

iPod and hid it under a sales advertisement. Once the men separated, Hintze stated that

she chose to watch Johnson because he had the merchandise. Johnson walked over to the

car audio department.

       {¶ 14} Once Johnson was in the audio department, Hintze testified that she

announced a “security page” over the loudspeaker in the hopes that he would abandon the

merchandise. After Johnson failed to react to the page, Hintze decided to make contact




5.
with him and offer her assistance. When she arrived she found an iPod, minus its case,

right where Johnson had been standing. Hintze stated that Johnson still had an iPod

under the sales ad and was holding an iPod case. Johnson denied needing any help.

Hintze stated that she left and called police.

       {¶ 15} Continuing to observe Johnson, she watched him move to the CD aisle

where he put down the iPod and the case. Hintze stated that she did not know where

appellant was during this time. Johnson proceeded to the checkout, with a CD, where he

reunited with appellant. He set the CD down and the two left the store.

       {¶ 16} Hintze’s testimony was accompanied by the surveillance video. Once the

two left the store, Hintze stated that she visually observed them make a large detour to

the right before coming back to the left to get in their vehicle.

       {¶ 17} Hintze stated that the police eventually returned with iPod Nanos and

computer tablets. After determining that they were not from the Perrysburg store’s

inventory she checked with local stores. Eventually, Hintze identified the merchandise as

being from the Findlay store.

       {¶ 18} On cross-examination, Hintze agreed that during her surveillance of

Johnson, appellant left the store for eight to ten minutes and rejoined Johnson in the

checkout line. Hintze also agreed that the appellant’s alleged “blocking” of Erdman

lasted only 15 seconds. Hintze also had no personal knowledge of the tools recovered in

the vehicle Johnson was operating.




6.
       {¶ 19} Hintze stressed that upon leaving the store, appellant and Johnson initially

went in the “opposite direction” from the vehicle. Hintze stated that the two did not open

the trunk prior to leaving.

       {¶ 20} At this point, the state rested and trial counsel made a Crim.R. 29 motion

for acquittal arguing that the state failed to prove complicity in the possession of criminal

tools and receiving stolen property. The state countered that the fact that some of the

tools were in plain view, combined with the suspicious activity of appellant, provided

ample evidence that appellant was a part of the criminal activities. The court denied the

motion.

       {¶ 21} In rendering its decision, the court first noted that in a complicity charge,

the state need not first establish that the principal has been charged with the offense. The

court next determined that the fact that the criminal activity began in another county had

no bearing on the ability to prosecute in a different county so long as there is a criminal

connection to the charging county. Finally, the court determined that appellant and

Johnson were together in the Findlay Best Buy, proceeded to Perrysburg, and were

together for a time in Best Buy, which included appellant’s attempt to block a sales

associate from discovering their criminal act. Taken together, the court found appellant

guilty of the crimes charged. The conviction was journalized on March 29, 2013.

       {¶ 22} On June 11, 2013, appellant was sentenced to 11 months as to each charge

to be served concurrently. This appeal followed.




7.
       {¶ 23} Appellant raises the following assignment of error for our review:

              The trial court erred in finding appellant guilty of receiving stolen

       property and possession of criminal tools.

       {¶ 24} In appellant’s sole assignment of error, he raises two arguments. First,

appellant contends that he could not be found guilty of complicity to the possession of

criminal tools charge where the principal offender was never indicted for the offense.

Next, appellant argues that his convictions were not supported by sufficient evidence.

       {¶ 25} Regarding appellant’s first argument, R.C. 2923.03 provides: “(B) It is no

defense to a charge under this section that no person with whom the accused was in

complicity has been convicted as a principal offender.” Appellant contends that because

this section only applies to convictions, the fact that Johnson had not been charged is a

defense. We disagree.

       {¶ 26} The Supreme Court of Ohio has stressed the lack of distinction between the

culpability of the principal offender and the aider and abettor:

              Each crime is equal in status and punishment, yet separate and

       distinct in identity. This allows, and even requires, the characterization of

       the aider and abettor as a principal offender. It is illogical to propose that

       the prosecution must show that the principal who is not on trial, violated the

       statute beyond a reasonable doubt. The issue at trial was not the absent

       principal’s guilt, but rather the appellant’s guilt. State v. Graven, 52 Ohio

       St.2d 112, 116, 369 N.E.2d 1205, 1208 (1977).




8.
       {¶ 27} Citing Graven, this court has held that in order to convict a defendant as a

complicitor, the state is not required to identify or charge an individual as the principal

offender. State v. Gowdy, 6th Dist. Erie No. E-06-071, 2009-Ohio-385, ¶ 21. Accord

State v. Ojile, 1st Dist. Hamilton Nos. C-110677, C-110678, 2012-Ohio-6015.

       {¶ 28} Appellant next contends that his convictions for receiving stolen property

and possession of criminal tools were not supported by legally sufficient evidence. In

reviewing a sufficiency of the evidence claim, the relevant inquiry is whether any rational

factfinder, viewing the evidence in a light most favorable to the state, could have found

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

90 Ohio St.3d 403, 417, 739 N.E.2d 300 (2000), citing Jackson v. Virginia, 443 U.S. 307,

319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶ 29} Whether the evidence is legally sufficient is a question of law, not fact.

State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). On review for

sufficiency, courts do not assess “whether the state’s evidence is to be believed, but

whether, if believed, the evidence against a defendant would support a conviction.” Id. at

390. In determining the sufficiency of the evidence, an appellate court must give “full

play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Consequently, a verdict will not be disturbed based upon insufficient evidence unless,




9.
after viewing the evidence in the light most favorable to the prosecution, it is apparent

that reasonable minds could not reach the conclusion reached by the trier of fact. State v.

Treesh, 90 Ohio St.3d 460, 484, 739 N.E.2d 749 (2001); Jenks, supra, at 273.

       {¶ 30} In the present case, in order to convict appellant of receiving stolen

property, R.C. 2913.51, the state was required to prove that appellant received, retained,

or disposed “of property of another knowing or having reasonable cause to believe that

the property ha[d] been obtained through commission of a theft offense.” Also, as to

appellant, they had to prove that the property involved was valued at more than $1,000.

       {¶ 31} As to the possession of criminal tools charge, R.C. 2923.24, the state was

required to prove that appellant possessed or had under his control “any substance,

device, instrument, or article, with purpose to use it criminally.”

       {¶ 32} Further, the complicity statute, R.C. 2923.03, prohibits a person “acting

with the kind of culpability required for the commission of an offense” from aiding or

abetting another in committing an offense.

       {¶ 33} Regarding the receiving stolen property charge, at trial evidence was

presented that appellant was with Johnson from their trip to the Findlay Best Buy through

their arrest in Perrysburg. The items in the trunk came from the Findlay Best Buy; at that

store, appellant entered and left with Johnson. Further, approximately 50 minutes had

elapsed from the time they exited the Findlay store until the time they arrived at the

Perrysburg store. Based on the distance between the two locations, the evidence

established that they proceeded from Findlay, directly to Perrysburg. At the Perrysburg




10.
store, appellant was with Johnson in the iPod aisle when he took two iPods. Appellant

also attempted to block Johnson’s activities from the view of the sales associate.

       {¶ 34} Regarding the possession of criminal tools charge, it is well established that

possession can be constructive or actual. Constructive possession is shown when a

person “knowingly exercises dominion and control over an object, even though that

object may not be within his immediate physical possession.” State v. Hankerson, 70

Ohio St.2d 87, 434 N.E.2d 1362 (1982), syllabus. While close proximity to contraband is

insufficient alone to prove constructive possession, it can be used as circumstantial

evidence to establish constructive possession. State v. Chapman, 73 Ohio App.3d 132,

138, 596 N.E.2d 612 (3d Dist.1992). Constructive possession can be inferred from a

totality of the circumstances. State v. Norman, 10th Dist. Franklin No. 03AP-298, 2003-

Ohio-7038, ¶ 31.

       {¶ 35} Viewing the evidence in a light most favorable to the state, we find that

legally sufficient evidence was presented to demonstrate that the tools found in the

vehicle were possessed by appellant and Johnson for use during the commission of the

theft offense in Findlay and the attempted theft in Perrysburg. As detailed above,

appellant was a partner in the criminal plan to steal electronics from the Best Buy stores;

the use of the tools was an integral part of the execution of that plan.

       {¶ 36} Based on the foregoing, we find no error in the state’s prosecution of

appellant for possession of criminal tools and appellant’s convictions were supported by

legally sufficient evidence. Appellant’s assignment of error is not well-taken.




11.
       {¶ 37} On consideration whereof, we find that appellant was not prejudiced or

prevented from having a fair trial and the judgment of the Wood County Court of

Common Pleas is affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs

of this appeal.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Stephen A. Yarbrough, P.J.
                                               _______________________________
James D. Jensen, J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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