[Cite as State v. Moore, 2012-Ohio-2426.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

STATE OF OHIO                                         C.A. No.       11CA0025

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
CHRISTOPHER G. MOORE                                  WAYNE COUNTY MUNICIPAL COURT
                                                      COUNTY OF WAYNE, OHIO
        Appellant                                     CASE No.   CRB-10-10-01458

                                 DECISION AND JOURNAL ENTRY

Dated: June 4, 2012



        MOORE, Judge.

        {¶1}     Appellant, Christopher Moore, appeals from the judgment of the Wayne County

Municipal Court. This Court affirms.

                                                 I.

        {¶2}     In the early morning hours of August 3, 2010, a silver Jeep pulled up to a private

gasoline pump owned by and located at Bauman Orchards in Rittman, Ohio. After an occupant

of the Jeep began to pump gasoline from the pump’s nozzle, the Jeep was discovered by one of

the owners of the Orchards. The Jeep left the scene. Shortly thereafter, police officers located

the Jeep parked behind a multi-unit residence on Salt Street in Rittman. Several individuals were

present at the Salt Street location, including Christopher Moore and his then girlfriend Ashley

Holler. Holler ultimately reported to police that Moore had driven the Jeep to the Orchards and

pumped the gas from the private pump. Moore was charged with theft in violation of R.C.

2913.02(A)(1).
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       {¶3}    After a trial to a magistrate, the court found Moore guilty of theft and sentenced

him to ninety days of incarceration. Moore timely filed a notice of appeal and raises two

assignments of error for our review.

                                                II.

                              ASSIGNMENT OF ERROR NO. 1

       [MOORE] WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AS
       GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES
       CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO
       CONSTITUTION.

       {¶4}    In his first assignment of error, Moore argues that his trial counsel was ineffective

for failing to move the trial court to dismiss the complaint due to insufficient evidence. We do

not agree.

       {¶5}    This Court must analyze claims of ineffective assistance of counsel under a

standard of objective reasonableness. See Strickland v. Washington, 466 U.S. 668, 688 (1984);

State v. Bradley, 42 Ohio St.3d 136, 142 (1989). Under this standard, a defendant must show (1)

deficiency in the performance of counsel “so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment,” and (2) that the errors made by

counsel were “so serious as to deprive the defendant of a fair trial[.]” Strickland, 466 U.S. at

687. A defendant must demonstrate prejudice by showing that, but for counsel’s errors, there is

a reasonable possibility that the outcome of the trial would have been different. Id. at 694. In

applying this test, “a court must indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance[.]” Id. at 689.

       {¶6}    The basis of Moore’s ineffective assistance argument is that his trial counsel

waived the issue of sufficiency of the evidence by failing to move to dismiss pursuant to Crim.R.

29. However, in State v. Thornton, 9th Dist. No. 23417, 2007-Ohio-3743, ¶ 13, we held that a
                                                3


defendant’s failure to move for a Crim.R. 29 dismissal at the close of evidence does not waive a

sufficiency argument on appeal. However, because there was sufficient evidence to support

Moore’s conviction, Moore’s argument fails.

       {¶7}    The issue of whether a conviction is supported by sufficient evidence is a question

of law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). When

considering a challenge to the sufficiency of the evidence, the court must determine whether the

prosecution has met its burden of production. Id. at 390 (Cook, J. concurring). In making this

determination, an appellate court must view the evidence in the light most favorable to the

prosecution:

       An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, would convince the average mind
       of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
       whether, after viewing the evidence in a light most favorable to the prosecution,
       any rational trier of fact could have found the essential elements of the crime
       proven beyond a reasonable doubt.

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

       {¶8}    Moore was convicted of theft in violation of R.C. 2913.02(A)(1), which provides

that “[n]o person, with purpose to deprive the owner of property or services, shall knowingly

obtain or exert control over either the property or services * * * [w]ithout the consent of the

owner or person authorized to give consent[.]” Moore limits his sufficiency of the evidence

argument to the element of obtaining or exerting control over the property of another. We shall

limit our discussion accordingly.

       {¶9}    As part of the State’s case in chief, it presented the testimony of Bill Bauman,

who is a part-owner of Bauman Orchards in Rittman, Ohio, and lives across the street from the

Orchards. On August 3, 2010, Bauman’s wife woke him early in the morning, having heard a
                                                4


car pull into the Orchards. Bauman went across the street and saw a car at the Orchards’ private

gas pump. The dome light was on inside the car, and he could see three or four passengers

inside. Another individual was standing outside the car, appearing to pump gas into the car.

Bauman called 9-1-1, but the car left. Bauman went over to observe the gas pump and saw the

nozzle to the pump on the ground. He could tell that the hose had been pried open because gas

was still “flowing out of the nozzle.” Bauman stopped the gas flow, and noticed a knife and a

blue glove on the ground.

       {¶10} After police arrived, an officer escorted Bauman to Salt Street, where another

officer had located what he believed to be the car involved. Bauman there identified the car as

the same car he had witnessed in the Orchards, noting it was the same make and model and it had

a temporary tag instead of a license plate. Bauman identified several photographs from the

Orchards’ security camera, portraying the car he observed on the morning at issue and several

photographs of the car he later identified on Salt Street. Bauman also identified the knife and

pictures of the knife that he observed on the ground near the pump.

       {¶11} Ashley Holler testified that she is Moore’s ex-girlfriend. While they were dating,

on August 3, 2010, she and Moore were staying at a friend’s house on Salt Street in Rittman.

Holler owned a silver Jeep Cherokee, on which she had thirty-day tags. At some point during

the late evening of August 2 or early morning of August 3, Moore, Holler, and two other

individuals at the gathering, named Tasha and Mikey, left to go get cigarettes. Moore drove

Holler’s vehicle.   However, instead of getting cigarettes, Moore drove them to Bauman

Orchards. When they arrived, Moore removed blue medical gloves from the glove compartment.

He then used his pocket knife on the nozzle of a gas pump, and attempted to fill Holler’s

vehicle’s gas tank as well as some empty gasoline containers. However, Moore stated that the
                                                 5


owner of the Orchards had walked out, and he threw the gasoline containers into the car through

the driver’s side door, causing the car to smell of gasoline and causing gasoline to get on some of

the occupants. Moore took off the blue gloves, but dropped one on the ground.

       {¶12} Holler identified the knife admitted into evidence by the State as Moore’s knife.

She also identified the car in the photos from the Orchards’ security camera and the photos of the

car that Bauman had seen on Salt Street as her vehicle. She identified the glove in the picture as

one of her gloves that was in her glove compartment, which Moore had used when pumping the

gasoline.

       {¶13} Officer Rodney Martin of the City of Rittman Police Department testified that he

was on duty in the early morning hours of August 3, 2010. He and Officer Paul Fiocca were

dispatched to the Orchards following a report of a suspicious car and possible theft. When they

arrived, Officer Martin noticed the gas tank nozzle was down, and a lot of gas had spilled on the

ground. There was a strong odor of gasoline present. He then left the Orchards to patrol the

surrounding area for suspicious cars while Officer Fiocca stayed and spoke with Bauman at the

Orchards. While Officer Martin was patrolling, Officer Fiocca called in Bauman’s description of

the suspected car to Officer Martin. Officer Martin recalled a similar car, about which he had

received a report approximately one week before. At that time, the car was associated with a

Christopher Moore who frequented the Salt Street area. Officer Martin located the car behind an

apartment complex on Salt Street. The car engine was warm, and there was a strong odor of

gasoline surrounding it.    After the officer arrived, individuals began exiting the complex,

including Moore and Holler. Holler admitted her ownership of the Jeep, and the officer stated

that Holler was going to be charged with receiving stolen property, at which point Moore stated,

“I did it, I did it. Just arrest me.” The officer noted that Moore smelled of gasoline.
                                                  6


        {¶14} Officer Fiocca testified that when he arrived at the Salt Street complex to join

Officer Martin, he approached the Jeep and noticed a very strong odor of gasoline. After a few

minutes of speaking with the individuals at the complex, Officer Fiocca did not feel like they

were making progress, and he returned to speak with Bauman. Bauman showed him the security

camera video footage, and the officer could see a silver Jeep Cherokee with a slightly discolored

area and several dents, which he recognized as Holler’s Jeep that he had just seen at Salt Street.

However, the officer could not discern the identity of the Jeep’s occupants due to the poor

picture quality of the footage. The officer returned to the gas pump, where he could see that

there was a “huge amount” of fuel that spilled, and a knife and glove on the ground. The officer

then returned to Salt Street. While speaking with the group, he indicated that he was going to

tow the Jeep and Holler would be charged, at which point Moore said, “Okay, I did it.” But

when the officer replied that they would still have to tow the vehicle, Moore stated, “Nah, I

didn’t do it.”

        {¶15} Based upon the evidence provided by the State, Moore argues that there was no

evidence demonstrating that he obtained any of the gasoline from the private pump. However,

Bauman testified that the offender was attempting to pump gasoline and that the nozzle was still

leaking gasoline after the offender left the scene. Bauman and the officers testified that the

ground area around the pump was soaked in gasoline and the area smelled strongly of gasoline.

Further, the officers testified that the Jeep and Moore smelled strongly of gasoline. Thus, there

was sufficient evidence presented from which a reasonable trier of fact could have determined

that Moore obtained or exerted control over the gasoline. Further, a person need not “obtain” the

property of another to be in violation of the statute, so long as there is sufficient evidence that the

person exerted control over another’s property with the intent to deprive the owner of the
                                                 7


property. State v. Brienzo, 9th Dist. No. 3209-M, 2001 WL 1475808 (Nov. 21, 2001) (defendant

committed a theft where he exerted control over DVDs in a department store although he did not

leave with the DVDs). Accordingly, Moore’s first assignment of error is overruled.

                              ASSIGNMENT OF ERROR NO. 2

       [MOORE]’S CONVICTION FOR THEFT WAS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE.

       {¶16} When a defendant asserts that his conviction is against the manifest weight of the

evidence,

       an appellate court 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). In making this determination, this

Court is mindful that “[e]valuating the evidence and assessing credibility are primarily for the

trier of fact.” State v. Shue, 97 Ohio App.3d 459, 466 (9th Dist.1994), citing Ostendorf-Morris

Co. v. Slyman, 6 Ohio App.3d 46, 47 (8th Dist.1982) and Crull v. Maple Park Body Shop, 36

Ohio App.3d 153, 154 (12th Dist.1987).

       {¶17} In his merit brief, Moore limits his second assignment of error to challenging the

weight of the evidence in respect to proof of the identity of the offender, and argues that the

weight of the evidence did not establish the element of obtaining or exerting control over the

gasoline. Accordingly, we shall limit our discussion to those elements of the offense.

       {¶18} At trial, the defense presented the testimony of Michelle Jason and Tasha Malott.

Jason testified that, on the evening of August 2, 2010, she was having a gathering at her house on

Salt Street, and Moore and Holler were present at this gathering. Moore left her house twice.

The first time, Moore went with Holler to purchase some drinks in the late afternoon, early
                                                8


evening hours of August 2, 2010, and they returned to her home directly afterward. The second

time, Moore went outside and moved Holler’s car from the front of the complex to the back of

the complex. Jason explained that Moore moved the vehicle because the last time it had been

parked in front of the complex, $40.00 had been taken from the visor. Moore moved the vehicle

just prior to the police arriving. At some point during the gathering, Jason recalled that Holler

left to get cigarettes, and Jimmy Walker, Jason’s boyfriend, went with her.

       {¶19} Malott testified that she was present at Jason’s gathering on the day at issue. She

did not leave the gathering. Malott recalled Moore leaving once that evening with Holler to get

drinks. Holler later left without Moore to get cigarettes. Malott further recalled that Moore had

driven Holler’s Jeep from its location in front of the complex to behind the complex just shortly

before police arrived. Malott further testified that she did not leave Jason’s home at any time

during the gathering.

       {¶20} However, as set forth in our discussion of Moore’s first assignment of error,

Holler testified that she, Moore, and Malott and another individual left in her Jeep to purchase

cigarettes, but, instead, Moore drove her Jeep to the Orchards. There he used his pocket knife

and blue gloves to obtain gasoline from the Orchards’ private pump. The officers testified that

Moore smelled of gasoline shortly after the theft. Bauman and the officers testified that gasoline

had soaked the area around the pump.

       {¶21} On appeal, Moore points to alleged bias in the testimony of Holler, arguing that

she was attempting to remove culpability from Walker and place it on Moore. In support, Jason

testified at trial that shortly after this incident, Holler and Walker began dating. However, the

trial court had the opportunity to consider the conflicting testimony and potential bias, and “is

free to believe all, part, or none of the testimony of each witness.” Prince v. Jordan, 9th Dist.
                                                 9


No. 04CA008423, 2004-Ohio-7184, ¶ 35, citing State v. Jackson, 86 Ohio App.3d 29, 33 (4th

Dist.1993). We cannot say the trial court’s resolution of the testimonial inconsistencies was

unreasonable. See State v. Peasley, 9th Dist. No. 25062, 2010-Ohio-4333, ¶ 18, citing State v.

Morgan, 9th Dist. No. 22848, 2006-Ohio-3921, ¶ 35 (“A conviction is not against the manifest

weight because the [trier of fact] chose to credit the State’s version of events.”). Therefore, we

cannot say that the trial court clearly lost its way in determining that Moore left the gathering to

drive to the Orchards.

       {¶22} Further, as set forth in our discussion of Moore’s first assignment of error, a

person need not “obtain” the property of another to be convicted of theft; instead, the State could

prove that Moore exerted control over the Orchards’ gasoline with the intent to deprive the

Orchards of the gasoline. See Brienzo at *1. Through Holler’s testimony, the State presented

evidence that Moore exerted control over the gasoline intending to deprive the Orchards of its

property by his actions in beginning to fill the gasoline containers and the Jeep’s gas tank.

Additionally, Bauman and the officers testified that the Orchards’ gasoline had spilled on the

ground as a result of these actions, thus depriving the Orchards of the gasoline.

       {¶23} After reviewing the entire record, weighing the inferences and examining the

credibility of witnesses, we cannot say that the trial court clearly lost its way and created a

manifest miscarriage of justice in finding Moore guilty of theft.

                                                III.

       {¶24} Accordingly, Moore’s first and second assignments of error are overruled, and the

judgment of the Wayne County Municipal Court is affirmed.

                                                                               Judgment affirmed.
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       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Wayne County

Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     CARLA MOORE
                                                     FOR THE COURT



WHITMORE, P. J.
CARR, J.
CONCUR.


APPEARANCES:

BRIAN L. SUMMERS, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and LATECIA E.WILES, Assistant Prosecuting
Attorney, for Appellee.
