[Cite as State v. Milem, 2016-Ohio-1096.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   C.A. CASE NO. 2015-CA-65
                                                  :
 v.                                               :   T.C. NO. 14CR0792
                                                  :
 CHRIS MILEM                                      :   (Criminal appeal from
                                                  :    Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                   Rendered on the ___18th___ day of ___March___, 2016.

                                             ...........

RYAN A. SAUNDERS, Atty, Reg. No. 0091678, Assistant Prosecuting Attorney, 50 E.
Columbia Street, Suite 449, Springfield, Ohio 45502
     Attorney for Plaintiff-Appellee

CHRISTOPHER T. HERMAN, Atty. Reg. No. 0076894, 232 Greendale Drive, Kettering,
Ohio 45429
      Attorney for Defendant-Appellant

                                            .............

DONOVAN, P.J.

        {¶ 1} This matter is before the Court on the Notice of Appeal of Chris Milem, filed

June 23, 2015. Milem appeals from his June 18, 2015 Judgment Entry of Conviction,

issued following a trial by jury, on one count of receiving stolen property (at a value equal
                                                                                           -2-


to or greater than $1,000.00, but less than $7,500.00), namely a utility trailer, in violation

of R.C. 2913.51, a felony of the fifth degree. The trial court sentenced Milem to a prison

term of 12 months, to be served consecutively to a sentence he was currently serving in

another matter. We hereby affirm the judgment of the trial court.

       {¶ 2} Milem was indicted on December 22, 2014, and he entered a plea of not

guilty on January 21, 2015. Trial commenced on June 15, 2015. Brent Hughes testified

that he is employed at Tetra Mold and Tool (“Tetra”) in New Carlisle. Hughes stated that

he owned a utility trailer that he intended to sell, and that he took the trailer to Tetra in

order to clean it up and then display it on the corner of the Tetra lot. He stated that it was

a red, dual axle, open, 2012 model with a lift gate on the back. According to Hughes, he

purchased the trailer in “around 2007.” He identified a photo of the trailer. Hughes also

identified another photo of the rear of the trailer depicting a decal with the serial number

of the trailer removed, and he stated that when he placed the trailer on the lot to sell, the

decal was intact. Hughes stated that he planned to ask “[a]pproximately $1,500” for the

trailer. Hughes stated that he noticed that the trailer was missing from the lot on a

Monday, and that he called the Sheriff’s Department to report the loss. He stated that

the trailer was located two weeks later, and that he retrieved it. Hughes identified his bill

of sale for the trailer, which reflects that he purchased it for $2,022.06 in 2007.

       {¶ 3} Deputy Laurie Beard testified that she is employed at the Clark County

Sheriff’s Department. She stated that on October 6, 2014, she was dispatched to 51

Quick Road, New Carlisle, on the report of Hughes’ stolen trailer. Ashley Fischer testified

that she is employed by the Englewood Police Department. She stated that on October

28, 2014, she was dispatched to what was then a Super 8 Motel, at 1515 Rockridge Road,
                                                                                               -3-


on a “peace officer call,” to assist Nancy Grill retrieve her property from the motel.

According to Fischer, Grill had been staying at the motel with Milem, but she did not have

a key to get into their room, which was in his name. Fischer stated that she contacted

Milem and arranged for him to leave a key for Grill. Fischer stated that while she was at

the motel, Grill informed her that there was a stolen trailer on the hotel parking lot.

Fischer stated that she observed the trailer on the north side of the lot.

       {¶ 4} Fischer testified that she “ran the VIN through LEADS,” which is the Law

Enforcement Automated Data System, and determined that the trailer had been reported

stolen. Fischer identified the photos identified by Hughes as depicting the trailer she

observed. She noted that the decal on the trailer had been altered, but she stated that

“we could make out pretty much everything except for, I think there was one or two letters

or numbers, but it was obvious from the way it was scratched, we were able to tell it was

either this one or that one, so when we ran it, it returned as stolen and it matched the

description of this trailer.” Fischer stated that she arranged for the trailer to be towed

from the lot so that “Clark County could take possession of it.”

       {¶ 5} Nancy Grill testified that she and Milem used to be in a relationship. She

stated that she resided with him at the motel for a month or two, and that while living

there, Milem brought a utility trailer to the location to “haul brush and trees.” Grill identified

the photos identified by Hughes and Fischer as the trailer she observed at the hotel. She

testified that Milem had use of the trailer for a couple of weeks.

       {¶ 6} David Perks testified that he is employed at the Clark County Sheriff’s Office

as a detective, and that he was involved in the investigation of a trailer that was reported

stolen from Quick Road. Perks stated that the “original report was taken on October the
                                                                                          -4-


6th and then on October 13th the case was assigned to me for a follow-up.” Perks stated

that on November 4th he learned that the trailer had been located at the Super 8 Motel.

Perks stated that he proceeded to the lot where the trailer had been stored, photographed

it, made contact with Hughes at Tetra, confirmed that the trailer was his, and advised him

how to recover it. Perks identified a photograph taken by him of the trailer.

       {¶ 7} Perks stated that in the course of his investigation, Milem became a suspect

in the trailer’s theft. He stated that, after speaking with Grill, he “made contact with Mr.

Milem on December the 5th and asked him to come in for an interview.” Perks testified

that he interviewed Milem on December 10, 2014. Perks stated that he advised Milem of

his rights, and he identified the form he used to do so, as well as a DVD of the interview,

which was played for the jury. Perks testified that in the course of the interview, Milem

admitted using the trailer but stated that he did not know the identity of its owner. On

cross-examination, Perks testified that Milem “advised he’d taken the license off his [own]

trailer and used it on the trailer in question.” Perks testified that in the interview, Milem

stated that the trailer belonged to a man who stayed downstairs in the motel, and that he

did not know his name.

       {¶ 8} At the close of the State’s case, Milem moved the court for an acquittal,

pursuant to Crim.R. 29, arguing that the State failed to prove the value of the trailer,

pursuant to R.C. 2913.61(D). According to Milem, the statute “requires some testimony

to show what the seller is going to sell it for and what the buyer is willing to buy it for.

And while Mr. Hughes told us what he was selling it for, there was no evidence what

someone might have bought it for. There is no way of determining what the fair market

value of the property would be.” The State responded, “not only do we have an invoice,
                                                                                           -5-


we also have him stating what he’d sell it for.” The court overruled the motion, noting, “I

think it’s a good argument for closing arguments. And perhaps it might carry more weight

in a Rule 29 motion if it was the type of property I think would depreciate.” The court

further noted that it was “sure there is some wear and tear on the trailer, but I am not so

sure if it would depreciate substantially. It was bought for approximately $2,000. He

offered to sell it for $1,500.” Finally, the court noted, “fair market value is determined

probably more adequately when a perspective (sic) buyer comes back with maybe a

counteroffer, but I think it will be a jury decision.”

       {¶ 9} Milem asserts two assignments of error herein. His first assigned error is as

follows:

               APPELLANT’S         CONVICTION            FOR   RECEIVING     STOLEN

       PROPERTY WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.

       {¶ 10} According to Milem, the State “introduced a copy of a bill of sale for the

trailer to prove its fair market value. * * * In 2007, Mr. Hughes purchased the trailer new

for $2,022.06. * * * This amount, however, is irrelevant to the determination of the trailer’s

fair market value because it merely represents the retail value for which Mr. Hughes

purchased the trailer.” Noting that Hughes intended to sell the trailer for “[approximately

$1,500,” Milem asserts that this “amount is relevant to the determination of the trailer’s

fair market value, but it represents only half of the evidence the jury needed to make such

a determination.” Milem further notes in a footnote that Hughes “qualified his selling price

with the word ‘approximately,’ ” and he argues that “the fact finder could infer that his

selling price could have been higher or lower than $1,500. His response adversely

affected the fact finder’s ability to determine what the seller would be willing to sell his
                                                                                           -6-


property for because the fact finder was left to speculate about the money consideration

that Mr. Hughes, as the seller, would accept for the property.” Milem further asserts in a

footnote that “should this Court rule in his favor, the proper remedy is to reverse the felony

conviction and remand the matter for sentencing on a first degree misdemeanor.”

       {¶ 11} Milem directs our attention to State v. Griffin, 1st Dist. Hamilton No. C-

080392, 2009-Ohio-2482, and State v. Reese, 165 Ohio App.3d 21, 2005-Ohio-7075, 844

N.E.2d 873 (7th Dist.). In Griffin, Michael Griffin was convicted of receiving stolen

property, namely a global-positioning system (“GPS”), a felony of the fifth degree. Id. ¶

1. The owner of the GPS, David Warner, upon discovering its absence from his garage,

“looked for the unit on Craigslist, an Internet website on which people sell used items.”

Id. ¶ 2. “Warner saw a GPS unit similar to the one that had been stolen, and he arranged

to meet the seller. Before going to the appointed place, Warner alerted the police.

Police Officer Carlos Sherman arrived before Warner and spoke to a person later

identified as Griffin.” Id., ¶ 3. While Griffin advised Sherman that he had “arranged to

meet someone so that he could purchase a GPS unit,” Sherman learned upon

investigation that “Griffin was in possession of Warner’s GPS unit.” Id., ¶ 4.

       {¶ 12} Warner testified at trial that he bought the GPS unit for “around $800

several months before it had been stolen. He produced a more recent advertisement for

the device that listed a retail price for a new unit of the same model as $589.27.” Id., ¶

5. The First District determined that while “the finding of guilt was proper, Griffin could

have been properly convicted of only a misdemeanor of the first degree.” Id., ¶ 14. The

Court noted that “under R.C. 2913.61(D)(3), the value of personal property is determined

by its ‘fair market value’ * * *,” as distinguished in the statute from “replacement value,
                                                                                         -7-


which is the measure of value for heirlooms and collector’s items, and for items that are

used in the victim’s profession, business, trade or occupation.” Id., ¶s 11, 12. The First

District determined as follows:

              In this case, the state did not present evidence of the “fair market

       value” of the GPS unit. Warner's testimony established only that he had paid

       $800 for the item and that, at the time of the trial, he could have replaced it

       with a new device for $598.27. The state did not establish what a willing

       buyer would have paid a willing seller for a used GPS device. And in light

       of the evidence that the model owned by Warner was rapidly depreciating

       in value, the trial court could not have reasonably inferred that a used model

       would have retained a value of at least $500.

Id., ¶ 13.

       {¶ 13} In Reese, Antwuan Reese was convicted on one count of theft, in violation

of R.C. 2913.02(A)(1), a felony of the fifth degree. Id., ¶ 1. Reese phoned Gena Schiff

in response to an ad she placed in the Youngstown Vindicator to sell a ring for $1,500.

Id., ¶ 2. The ring had been given to her by her mother, who told Schiff “before she died

seven years ago, that the ring was purchased by Schiff’s father ‘a lot of years ago’ for

$3,500.00.” Id. Schiff and her fiancé met Reese at the address he provided, and after

discussing the ring, they decided to leave. Id., ¶ 3. Before they could do so, Reese

fled with the ring and was later apprehended, without the ring but with the Youngstown

Vindicator advertisement for it in his possession. Id., ¶ 3-4.

       {¶ 14} On appeal, Reese objected to Schiff’s testimony about the value of the

ring, as related to her by her mother. Id., ¶ 16. The Seventh District determined that the
                                                                                           -8-

testimony was hearsay, and that the trial court erred in admitting it. Id., ¶ 19. Reese

further asserted that his conviction was not supported by the sufficiency of the evidence.

Id., 24. The Seventh District noted that the “most direct testimony given about the value

of the ring was the statement made by Schiff,” noting that “we have already concluded

that it was error for the trial court to have admitted that testimony, as it was hearsay that

did not fall into any exception.” Id., ¶ 28. The State responded that the error was harmless

“because there were other ways of determining the value of the ring,” explaining that the

“jury heard evidence that the ring was advertised in the Youngstown Vindicator for

$1,500,” and it was instructed that “if it found the piece of jewelry to be an heirloom, the

value would be equal to the expenditure of time, effort, or money that would adequately

compensate Schiff for her loss.” Id. Finally, the State suggested “that the value could

be implied, as Schiff testified it was a diamond-and emerald ring.”      Id.

       {¶ 15} The Seventh District first determined that “the advertisement constitutes

hearsay,” and “does nothing more than echo Schiff’s personal belief that this ring is worth

a certain amount of money because her deceased mother told her so.” Id., ¶ 29. The

Seventh District further stated as follows:

              We liken this situation to someone's attempting to sell an item on

       eBay or at a garage sale. Although someone may expect to be offered

       substantial sums of money for something he is offering to sell, he will never

       know its true market value until someone starts placing good-faith bids on

       and offers to buy the item. Here, we have no evidence of what a good-faith

       purchaser would have paid for the ring. It is possible that someone may

       have offered $1,500 for the ring, but it is just as likely that Schiff would have
                                                                                          -9-


       received offers much lower than the requisite $500 required by the statute.

       We simply cannot allow a conviction to stand on mere speculation as to

       what someone might have paid for this ring.

Id., ¶ 31.

       {¶ 16} Citing a dictionary definition of heirloom, the Seventh District also

determined that “a ring being sold in the local newspaper’s classified section for less than

half of what the owner claims it to be worth is not a (sic) heirloom by this standard or the

legal standard as described in the statute.” Id., ¶ 33. Finally, noting in part that there

was no testimony about the carat weight of the stones in the ring or their composition, the

court found that “this placed the jury in the position of speculating as to the value of this

ring.” Id., ¶ 34. The court reversed Reese’s sentence and remanded the matter to the

trial court for resentencing on misdemeanor theft. Id., ¶ 36

       {¶ 17} In response to Milem’s arguments, the State cites Hughes’ testimony that

he bought the trailer in 2007 for $2,022.66 and notes that his sales receipt was admitted

into evidence. The State further cites Hughes’ testimony that he wanted $1,500.00 for

the trailer at the time it was stolen.    According to the State, Hughes’ testimony, if

believed, “was sufficient to support the jury’s finding that the value of the stolen property

was $1,000.00 or more, thereby elevating Milem’s conviction for receiving stolen property

to a fifth-degree felony.” The State in part relies upon State v. Gray, 12th Dist. Brown

No. CA2015-01-004, 2015-Ohio-3174, and it further asserts that this Court “has

determined that a detective’s testimony as to value is probative of the item[’]s fair market

value for purposes of R.C. 2913.61(D)(3),” in reliance upon State v. Hanke, 2d Dist. Clark

No. 08CA0053, 2009-Ohio-3023.
                                                                                            -10-

       {¶ 18} In Gray, Timothy Gray was convicted in part of theft and receiving stolen

property, namely fencing supplies. Id., ¶ 2-3. Gray argued on appeal that there was

insufficient evidence to support his fifth-degree felony convictions for receiving stolen

property and theft. Id., ¶ 7. In affirming the judgment of the trial court, the Twelfth District

determined as follows:

              Gray argues his fifth-degree felony convictions for receiving stolen

       property and theft must be reversed because the state “never presented

       any credible evidence of the value of Mr. Skinner's property, other than his

       own testimony.” However, Gray has cited no authority to support his

       contention that a victim's testimony is insufficient to prove the value of the

       stolen property involved in order to elevate these crimes to fifth-degree

       felonies. Rather, after a simple review of the applicable case law, Ohio

       courts have actually held the exact opposite to be true. See State v.

       Bartolomeo, 10th Dist. Franklin No. 08AP–969, 2009–Ohio–3086, ¶ 25,

       citing State v. Lockhart, 115 Ohio App.3d 370, 374 (8th Dist.1996) (holding

       victim's testimony was sufficient to prove value of stolen property for

       purposes of theft charge). This includes a number of cases from this very

       court on this very same issue. See, e.g., State v. Noble, 12th Dist. Warren

       No. CA2014–06–080, 2015–Ohio–652, ¶ 22 (finding victim's testimony

       regarding the value of property stolen was sufficient to elevate theft offense

       to a fifth-degree felony); State v. Penwell, 12th Dist. Fayette No. CA2010–

       08–019, 2011–Ohio–2100, ¶ 67–69 (finding victim's testimony as to the

       replacement value of stolen property was sufficient to elevate receiving
                                                                                         -11-


       stolen property offense to a fifth-degree felony).

Gray, ¶ 12.

       {¶ 19} In Hanke, Donald Hanke was convicted of fifth-degree felony theft, in

violation of R.C. 2913.02(A)(1); he and an accomplice removed the exhaust system from

Monte Tabb’s 1997 Nissan Maxima, including the vehicle’s catalytic converter, Id., ¶ 1-

2. At trial, Tabb testified that after paying a deductible of $100.00, he received $1,600.00

from his insurance company to replace the Nissan’s exhaust system as a result of the

theft and damage to his car, and that $600.00 “of that amount represented the cost of a

new catalytic converter, an aftermarket unit being unavailable.”          Id., ¶ 12. Also,

“Detective Gregory Ashworth testified that on the street the ‘scrap value’ of a catalytic

converter can be as much as one hundred and fifty dollars.” Id.

       {¶ 20} This Court determined as follows:

              Tabb's testimony fails to establish the fair market value of the

       property that was stolen under the criteria in R.C. 2913.61(D)(3). The cost

       of replacing stolen property does not demonstrate what a willing buyer

       would give and a willing seller would take for it. Detective Ashworth's

       testimony that the scrap value on the street of a catalytic converter is up to

       one hundred and fifty dollars is probative of its fair market value for

       purposes of R.C. 2913.61(D)(3). However, that amount is less than the

       minimum value of five hundred dollars that R.C. 2913.02(B)(2) establishes

       as a basis to increase a misdemeanor theft offense to a fifth degree felony.

Id.,, ¶ 13. This Court reversed Hanke’s conviction and sentence and remanded the

matter “for the sole purpose of entering a conviction for petty theft and resentencing
                                                                                       -12-

Defendant accordingly.” Id., ¶ 14.

      {¶ 21} As this Court has previously noted:

             A sufficiency of the evidence argument challenges whether the State

      has presented adequate evidence on each element of the offense to allow

      the case to go to the jury or sustain the verdict as a matter of law. State v.

      Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). The proper test to

      apply to such an inquiry is the one set forth in paragraph two of the syllabus

      of State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991):

                    “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. Gilliam, 2d Dist. Clark No. 09CA0075, 2012-Ohio-834, ¶ 8-9.

      {¶ 22} R.C. 2913.51provides as follows:

             (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.

             ***
                                                                                             -13-


              (C) Whoever violates this section is guilty of receiving stolen

       property. Except as otherwise provided in this division or division (D) of this

       section, receiving stolen property is a misdemeanor of the first degree. If

       the value of the property involved is one thousand dollars or more and is

       less than seven thousand five hundred dollars, * * * receiving stolen property

       is a felony of the fifth degree. * * *.

       {¶ 23} R.C. 2913.61(D) sets forth the criteria to be used in determining the value

of property in relevant part as follows:

              ***

              (3) The value of any real or personal property that is not covered

       under division (D)(1) or (2) of this section, * * * is the fair market value of the

       property * * *. As used in this section, “fair market value” is the money

       consideration that a buyer would give and a seller would accept for property

       or services, assuming that the buyer is willing to buy and the seller is willing

       to sell, that both are fully informed as to all facts material to the transaction,

       and that neither is under any compulsion to act.

       {¶ 24} Having examined the evidence in a light most favorable to the State, we

conclude that any rational trier of fact could have found, beyond a reasonable doubt, that

the fair market value of Hughes’ trailer was equal to or greater than $1,000.00, and that

Milem’s conviction of a fifth degree felony was accordingly supported by sufficient

evidence. In addition to the authorities cited by the State, we note that the Supreme

Court of Ohio has indicated that “Ohio law has long recognized that an owner of either

real or personal property is, by virtue of such ownership, competent to testify as to the
                                                                                          -14-

market value of the property.” Smith v. Padgett, 32 Ohio St. 3d 344, 513 N.E.2d 737

(1987). Further, as noted by the Fifth District, “[a]lthough the general rule is that one

must be qualified as an expert to testify as to value, an ‘owner is permitted to testify

concerning the value of his property without being qualified as an expert, because he is

presumed to be familiar with it from having purchased or dealt with it.’ (citations omitted).”

State v. Erichsen, 5th Dist. Muskingum No. CT2011-0018, 2012-Ohio-137, ¶ 41.

       {¶ 25} As noted above, Hughes testified that he bought the trailer in 2007 for

$2,022.06, and his authenticated sales receipt was entered into evidence. He testified

that he intended to sell the trailer for $1,500.00. The photograph of the trailer reflects

that it was in good condition. We note that counsel for Milem failed to cross-examine

Hughes regarding the value of the trailer.

       {¶ 26} We find that Milem’s reliance upon Griffin and Reese is misplaced. In

Griffin, there was evidence that the model of the GPS owned by Warner was rapidly

depreciating in value, and there is no evidence herein that the trailer was subject to

substantial depreciation. In Reese, Schiff’s testimony about the value of the ring, and

the advertisement in the Youngstown Vindicator, were found to be inadmissible hearsay,

and given the lack of evidence regarding the weight and composition of the stones in the

ring, the jury was accordingly placed in the position of speculating as to the ring’s value.

There is no such lack of evidence in the matter before us.

       {¶ 27} Since Hughes was competent to testify about the value of his trailer (and

his testimony was uncontroverted), we conclude that the essential elements of fifth-

degree-felony receiving stolen property were proven beyond a reasonable doubt.

Accordingly, Milem’s first assignment of error is overruled.
                                                                                           -15-


       {¶ 28} Milem’s second assignment of error is as follows:

              THE COURT ERRED IN OVERRULING APPELLANT’S MOTION

       FOR ACQUITTAL PURSUANT TO CRIM.R. 29.

       {¶ 29} Milem again asserts that, since “the State failed to present evidence about

what a willing buyer would pay for Mr. Hughes’ used trailer, either through witness

testimony or the admission of exhibits, it failed to prove that the trailer’s fair market value

was equal to or greater than $1,000.”

       {¶ 30} As this Court has previously noted: “ ‘Reviewing the denial of a Crim. R. 29

motion * * * requires an appellate court to use the same standard as is used to review a

sufficiency of the evidence claim.’ State v. Cokes, 2d Dist. Montgomery No. 26223, 2015–

Ohio–619, ¶ 23 (internal citation omitted).” State v. Roberts, 2d Dist. Montgomery No.

26431, 2015-Ohio-2716, ¶ 8.        Having determined above that Milem’s conviction is

supported by the sufficiency of the evidence, Milem’s second assignment of error is

overruled.

       {¶ 31} The judgment of the trial court is affirmed.

                                         ..........

FAIN, J. and WELBAUM, J., concur.

Copies mailed to:

Ryan A. Saunders
Christopher T. Herman
Hon. Douglas M. Rastatter
