[Cite as State v. Tusing, 2012-Ohio-5945.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 13-12-24

        v.

TRACY L. TUSING,                                          OPINION

        DEFENDANT-APPELLANT.




                           Appeal from Tiffin Municipal Court
                           Trial Court No. CRB 1100697A&B

                                      Judgment Affirmed

                          Date of Decision:   December 17, 2012




APPEARANCES:

        Kelle M. Saull for Appellant

        Drew E. Wood for Appellee
Case No. 13-12-24


WILLAMOWSKI, J.

       {¶1} Defendant-Appellant, Tracy L. Tusing (“Tusing”), appeals the

judgment entry of the Tiffin Municipal Court, finding him guilty of theft and

criminal trespass after a jury trial. On appeal, Tusing contends that the verdicts

were based on insufficient evidence and were against the manifest weight of the

evidence. For the reasons set forth below, the judgment is affirmed.

       {¶2} On August 10, 2011, James Hoffert, a farmer, was driving his tractor

when he observed a man driving a truck with what appeared to be some old farm

equipment, or scrap metal, in the back. Mr. Hoffert was concerned that this might

be his property, so he returned to his farm where he discovered that some pieces of

his equipment were missing. Mr. Hoffert then went to Danner’s Auto Wrecking

nearby where he found Tusing attempting to sell the property at the scrap yard.

Mr. Hoffert asserted that the farm equipment belonged to him and the sheriff’s

department was called. Mr. Hoffert identified many distinguishing features of the

equipment, in great detail, and it was returned to him.

       {¶3} On August 16, 2011, a complaint and summons was filed alleging that

Tusing had committed theft in violation of R.C. 2913.02(A), a misdemeanor of the

first degree, and criminal trespass in violation of R.C. 2911.21(A)(1), a

misdemeanor of the fourth degree. Tusing pled not guilty, and a jury trial was

held on April 24, 2012.


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       {¶4} Mr. Hoffert testified that he was driving his tractor when he happened

to take a “quick glance” at a green pickup truck on the road, being driven by a man

with brown hair and a brown mustache; he noticed that the truck had some “scrap

steel” in the back. (Tr. 78-79) When he got to the lane by his farm, he saw that

there were mud tire tracks from a pick-up truck on the road from the lane to his

barn. At that point, he went to check on his equipment. When Mr. Hoffert arrived

at the barn, he noticed that he was missing a farm harrow and some other items.

Mr. Hoffert went to Danner’s Auto Wrecking, a nearby scrapyard, and came upon

Tusing trying to sell the missing harrow and other equipment.

       {¶5} Mr. Hoffert testified that he was able to recognize the harrow as his

because of the galvanized steel extensions that he had installed himself, almost

twenty years earlier. Mr. Hoffert had also added train rails to the harrow, to give it

more weight, and he tied the railroad iron to the harrow with green clothesline.

Mr. Hoffert testified that he saw a train rail and a piece of green clothesline in the

bed of Tusing’s truck. Mr. Hoffert also noticed a “rope wick” in the truck which

he recognized because his father and brother had built it by hand, sometime

around 1975. He also identified a cultivator, which he knew was his because it

was the same sixty-year-old cultivator that Mr. Hoffert had used as a child when

he was working on the farm. (Tr. 83-85)




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      {¶6} Mr. Hoffert further testified that when he confronted Tusing about the

property, Tusing claimed to be the owner. Tusing told Mr. Hoffert, “Well, it’s

going to be your word against mine.” (Tr. 86)

      {¶7} Two officers from the Wyandot County Sheriff’s Department,

Lieutenant Neil Riedlinger and Deputy Dennis Wilkinson, also testified as to what

occurred when they responded to the call at Danner’s. Most of the equipment was

still in Tusing’s truck, or lying nearby, when they arrived. They obtained a

statement from Mr. Hoffert describing how he had noticed that equipment was

missing from his farm and how he had discovered Tusing at Donners and in the

process of unloading his harrow, cultivator, and other items. (Def. Ex. 1)

      {¶8} Both of the officers testified that Tusing had claimed that the

equipment was his property and that it had been located in his driveway before he

had decided to bring it to the scrap yard. When Lt. Riedlinger pointed out that

there were weeds hanging on the harrow, Tusing told Lt. Riedlinger that there

were weeds in his driveway and he could show him where the harrow had been

sitting. Deputy Wilkinson testified that when he went to Tusing’s home the

following day, he saw that his driveway was mostly hard-packed mud with some

stone in it, and there were no weeds growing in the driveway.

      {¶9} When Deputy Wilkinson went to Mr. Hoffert’s farm to see where the

equipment had been, he could see the grass had been matted down and was caked


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with mud from a vehicle’s tires, where it appeared as if a truck had been driven up

to the areas where the piles of equipment had been. He also noticed that there was

still dried mud on the roadway where someone had driven out of the driveway.

Deputy Wilkinson testified that the tire tracks appeared to be from a truck, not a

car or a tractor.

       {¶10} Defense counsel did not call any witnesses, but attempted to discredit

the State’s witnesses on cross-examination by questioning them concerning some

discrepancies between their testimony at trial and what they had originally

reported. Mr. Hoffert had testified that the truck he had originally seen driving on

the roadway was green. However, Tusing’s truck that had the farm equipment in

it at Donners was black. Furthermore, Mr. Hoffert had stated that the mustached-

man driving the green truck had brown hair.         Although Tusing did have a

mustache, his hair color was described as “sandy-blond.” (Tr. 109)

       {¶11} The jury found Tusing guilty on both counts.          The trial court

sentenced Tusing to 180 days in jail, with 30 days suspended. Tusing now brings

this appeal, raising the following two assignments of error for our review. His

sentence has been stayed pending the appeal.

                           First Assignment of Error

       The Jury Verdict of Guilty to the theft was based on insufficient
       evidence and was against the manifest weight of the evidence.



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                             Second Assignment of Error

       The Jury Verdict of Guilty to criminal trespass was based on
       insufficient evidence and was against the manifest weight of the
       evidence.

       {¶12} Both of Tusing’s assignments of error allege that there was

insufficient evidence to support the jury’s verdicts and that the judgments were

against the manifest weight of the evidence. Because both of the assignments of

error are interrelated and involve some of the same testimony and evidence, we

shall address them together.

       {¶13} When reviewing the sufficiency of the evidence, our inquiry focuses

primarily upon the adequacy of the evidence; that is, whether the evidence

submitted at trial, if believed, could reasonably support a finding of guilt beyond a

reasonable doubt. See State v. Thompkins, 78 Ohio St.3d 380, 386, 1997–Ohio–52

(stating, “sufficiency is the test of adequacy”); State v. Jenks, 61 Ohio St.3d 259,

273 (1991). The standard of review is whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found

all the essential elements of the offense beyond a reasonable doubt. Jenks, supra;

Jackson v. Virginia, 443 U.S. 307 (1979). This test raises a question of law and

does not allow the court to weigh the evidence. State v. Martin, 20 Ohio App.3d

172, 175 (1st. Dist.1983).




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       {¶14} A challenge to a conviction based on the manifest weight of the

evidence concerns “the inclination of the greater amount of credible evidence,

offered in a trial to support one side of the issue rather than the other. It indicates

clearly to the jury that the party having the burden of proof will be entitled to their

verdict, if, on weighing the evidence in their minds, they shall find the greater

amount of credible evidence sustains the issue which is to be established before

them. Weight is not a question of mathematics, but depends on its effect in

inducing belief.” (Emphasis sic.) State v. Thompkins, 78 Ohio St.3d at 387.

       {¶15} In determining if a conviction is against the manifest weight of the

evidence, an appellate court “review[s] the entire record, weighs the evidence and

all reasonable inferences, considers the credibility of witnesses and determines

whether in resolving conflicts in the evidence, the jury clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed

and a new trial ordered.” (Emphasis added.) State v. Mendoza, 137 Ohio App.3d

336, 346–347 (3d Dist.2000), quoting State v. Martin, 20 Ohio App.3d at 175, see,

also, State v. Thompkins, supra.      A new trial should be granted only in the

exceptional case in which the evidence weighs heavily against conviction.

Thompkins at 387.

       {¶16} Although the appellate court acts as a “thirteenth juror” when

reviewing for manifest weight, it still must give due deference to the findings


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made by the fact-finder. State v. Thompson, 127 Ohio App.3d 511, 529 (8th

Dist.1998). The fact-finder, being the jury, occupies a superior position in

determining credibility. Id. When examining witness credibility, “[t]he choice

between credible witnesses and their conflicting testimony rests solely with the

finder of fact and an appellate court may not substitute its own judgment for that

of the finder of fact.” State v. Awan, 22 Ohio St.3d 120, 123 (1986).

       {¶17} In his first assignment of error, Tusing asserts that there was

insufficient evidence to find him guilty of theft and that the jury’s decision was

against the manifest weight of the evidence. Tusing challenges the jury’s findings

because of the discrepancy between Mr. Hoffert’s testimony in that Mr. Hoffert

stated he saw a green truck carrying scrap metal, and yet Tusing’s truck was black.

And, Mr. Hoffert stated that the green truck’s driver had brown hair, and

apparently, Tusing’s hair was closer to “blond.” Tusing further complains about

the fact that the officers did not try to “match” the tire tracks to Tusing’s vehicle;

nor did they do any further investigation as to whether the equipment actually

belonged to Mr. Hoffert; nor did they question Mr. Hoffert’s hired worker to find

out whether he might have taken the equipment.

       {¶18} In order to obtain a conviction for theft in violation of R.C.

2913.02(A), the State was required to prove that Tusing knowingly obtained or

exerted control over Mr. Hoffert’s property, without his consent, with an intent to


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deprive Mr. Hoffert of the property. Mr. Hoffer testified that the equipment was

his property and that it had been taken without his knowledge or permission.

Tusing was found at the scrap yard with Mr. Hoffer’s equipment in his truck, and

he was trying to sell the property for scrap value. Tusing knowingly exerted

control over the property, and even tried to claim that it belonged to him. Viewing

these facts in a light most favorable to the prosecution, there is no question that the

State had sufficient evidence of each of the elements of the offense required for a

theft conviction.

       {¶19} Finding that there was sufficient evidence to support Tusing’s

conviction for theft, we look at the second part of his assignment of error, claiming

that the decision was against the manifest weight of the evidence. Although there

was some discrepancy as to the color of the truck and Tusing’s hair, that still does

not change the fact that it was Tusing who was found at Donner’s exerting control

over Mr. Hoffert’s property.      There could be various explanations as to the

discrepancies in Mr. Hoffert’s testimony and statement. He specifically testified

that he only had a “quick glance” at the truck driving down the road. At that time,

he had no reason to be concerned about identifying the driver because he had not

yet learned that his equipment was missing. Although Mr. Hoffert admitted that

he could not positively identify Tusing as the driver of the green pickup, he also

testified that he couldn’t rule him out. (Tr. 81)


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      {¶20} Furthermore, Tusing did not offer any explanation to the officers as

to how he might have innocently come into possession of the farm equipment.

Instead, he boldly asserted that it was his property, and even challenged Mr.

Hoffert, stating that it would be his word against Mr. Hoffert’s. Tusing’s claim

was contradicted by Mr. Hoffert’s testimony describing very specific details about

the farm equipment that had been in his family for years, and how it was

distinguishable from any other harrow or piece of equipment because of the

custom modifications that had been done by Mr. Hoffert and his family. Tusing’s

claim that the harrow had weeds hanging from it because it had been sitting in his

weed-laden driveway was contradicted by Deputy Wilkinson’s testimony.

      {¶21} The jury was in a superior position to judge credibility, and we

cannot say that its conclusion that the farm equipment belonged to Mr. Hoffert

was against the weight of the evidence. Tusing had Mr. Hoffert’s equipment in his

truck, without permission, and there was no logical explanation as to how he

might have innocently obtained it that would have been consistent with his

behavior and claims. It was reasonable for the jury to infer that Tusing was guilty

of theft, and we cannot say that there was any evidence that would weigh heavily

against conviction.

      {¶22} There was sufficient evidence of theft presented in this case that, if

believed, would convince a jury of Tusing’s guilt beyond a reasonable doubt.


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Furthermore, we do not find that the jury’s decision was against the manifest

weight of the evidence. Tusing’s first assignment of error is overruled.

       {¶23} In the second assignment of error, Tusing argues that the State failed

to present sufficient evidence that Tusing knowingly entered on the land of Mr.

Hoffert without privilege to do so, in order to find him guilty of criminal trespass

beyond a reasonable doubt. See R.C. 2911.21(A)(1). Tusing argues that there was

no evidence that Tusing was on the farmer’s property; nobody saw him there;

there was no evidence that his vehicle was on the property; and, there was no

testimony that there was fresh mud on his truck or that the tire tracks were a

match. He asserts that there was nothing to indicate that Tusing had ever entered

onto the farmer’s land.

       {¶24} We agree with Tusing that there was no eye-witness testimony that

placed him on Mr. Hoffert’s property, nor was there any physical evidence that

would prove that his truck had been on the property. However, “[i]t is a well-

settled rule of law that direct evidence is not necessary for the trier of fact to make

a finding; circumstantial evidence has the same probative value.”               State v.

Shoopman, 3d Dist. No. 14-10-17, 2011-Ohio-2340, ¶ 35. Direct evidence of a fact

is not a prerequisite for a trial court to make a finding of that fact. State v. Lott, 51

Ohio St.3d 160, 167 (1990).

       In fact, circumstantial evidence and direct evidence have the same
       probative value, State v. Gillman, 3d Dist. No. 14–08–08, 2008–

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       Ohio–2606, ¶ 17, and “‘[c]ircumstantial evidence * * * may also be
       more certain, satisfying and persuasive than direct evidence .’” Lott,
       51 Ohio St.3d at 167, 555 N.E.2d 293, quoting Michalic, 364 U.S. at
       330. Furthermore, “[w]hen the state relies on circumstantial
       evidence to prove an essential element of the offense charged, there
       is no need for such evidence to be irreconcilable with any reasonable
       theory of innocence in order to support a conviction.” State v.
       Williams, 73 Ohio St.3d 153, 165, 652 N.E.2d 721, 1995–Ohio–275
       (internal citations omitted).

State v. Fisher, 3d Dist. No. 02–10–09, 2010–Ohio–5192, ¶ 26, 27. Therefore, the

lack of direct evidence in this case does not warrant reversal.

       {¶25} The trial court gave the jury the following instructions concerning

circumstantial evidence and making inferences:

       Circumstantial evidence is the proof of facts or circumstances by
       direct evidence from which you may reasonably infer other related
       or connected facts which naturally and logically follow according to
       the common experience of mankind.

       To infer or to make an inference is to reach a reasonable conclusion
       or deduction of fact which you may, but are not required to, make
       from other facts which you find have been established by direct
       evidence. Whether an inference is made rests entirely with you.

(Tr. 131-132) See, also, State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, ¶ 179-

181.

       {¶26} Mr. Hoffert’s farm equipment should have been on his farm, where

he had left it. Mr. Hoffert observed that it was missing; he saw that there were

fresh tire tracks from a truck in the area where the equipment had been; and he

discovered the equipment in Tusing’s truck at the scrapyard, less than an hour


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later. It was certainly reasonable for the jury to infer that the circumstantial

evidence indicated that Tusing had come onto Mr. Hoffert’s land, without

permission, and taken the equipment.

       {¶27} And, the above evidence was uncontroverted. Although, Tusing’s

counsel suggested alternate theories as to how the equipment might have ended up

in his truck without Tusing having trespassed on Hoffert’s property, there was no

evidence at trial to provide any basis for the jury to infer or conclude that Tusing

had not gone to Mr. Hoffert’s farm and taken the equipment to sell for scrap. And,

even if there had been evidence of alternate theories of innocence, there is no

requirement that the circumstantial evidence indicating guilt must be

irreconcilable with any reasonable theory of innocence in order to support a

conviction. See State v. Williams, 73 Ohio St.3d 153, ¶ 23.

       {¶28} Based on the above, we find that there was sufficient circumstantial

evidence that Tusing had committed criminal trespass to sustain his conviction,

and that the conviction was not against the manifest weight of the evidence. The

second assignment of error is overruled.

       {¶29} Having found no error prejudicial to the Tusing herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

SHAW, P.J. and PRESTON, J., concur.
/jlr

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