[Cite as State v. Colburn, 2013-Ohio-4662.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :   JUDGES:
                                               :
                                               :   Hon. William B. Hoffman, P.J.
       Plaintiff-Appellee                      :   Hon. John W. Wise, J.
                                               :   Hon. Patricia A. Delaney, J.
-vs-                                           :
                                               :   Case No. 13-CA-5
                                               :
GARY W. COLBURN                                :
                                               :
                                               :
       Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Licking County Court of
                                                   Common Pleas, Case No. 12 CR 00539



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            October 11, 2013




APPEARANCES:

For Plaintiff-Appellee:                            For Defendant-Appellant:

KENNETH W. OSWALT                                  ERIC W. BREHM
LICKING CO. PROSECUTOR                             604 E. Rich St., Suite 2100
CHRISTOPHER A. REAMER                              Columbus, OH 43215
20 S. Second St., Fourth Floor
Newark, OH 43055
Licking County, Case No.13-CA-5                                                        2



Delaney, J.

       {¶1} Appellant Gary W. Colburn appeals from the judgment entry of conviction

entered on December 14, 2012 in the Licking County Court of Common Pleas.

Appellee is the state of Ohio.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} This case arose on October 5, 2012 around 1:00 a.m. when Officer Corey

Tyson of the Newark Police Department was on routine patrol. On Third Street south of

Church, in the city of Newark, Licking County, Tyson noticed a green Plymouth Grand

Voyager minivan with no headlights on. He advised dispatch he would be stopping the

vehicle and radioed the license plate number.

       {¶3} Tyson stopped the van and made contact with the driver and front-seat

passenger; both seemed “agitated.” The driver of the van, appellant, identified himself

as “David Colburn” and provided a social security number but no driver’s license or

other physical form of identification. Tyson discovered that “David Colburn’s” operator’s

license was suspended and planned to cite the driver for D.U.S. The passenger, later

identified as Kenneth Thomas, kept trying to get out of the van and had to be told to

stay put.

       {¶4} Another Newark police officer, Jonathan Bell, arrived on the scene to

assist Tyson and began the process of impounding the van.           From dispatch, Bell

learned the plates on the van did not match the vehicle. Bell ran the VIN instead and

learned the van had been reported stolen in Adrian, MI.

       {¶5} Tyson placed appellant under arrest and questioned him regarding the

stolen van. Appellant said he had been at the Blue Raccoon bar earlier that night and
Licking County, Case No.13-CA-5                                                      3


met Kenneth Thomas. First appellant said he hitchhiked to the bar, and then he said his

girlfriend dropped him off there. Once at the bar, he met Thomas. Appellant claimed

Thomas had the van and offered to drive the pair elsewhere.            Tyson confronted

appellant about his changing stories and appellant said “OK, you got me, take me to

jail.” Tyson asked what he meant and appellant replied “You figure it out.”

      {¶6} Tyson still believed appellant to be “David Colburn.” As he prepared the

citation for the DUS, however, he realized the physical description of “David Colburn”

did not match appellant. Tyson printed photos of David Colburn and Gary Colburn and

identified appellant as Gary. Tyson approached the holding cell containing appellant

and yelled “Hey, Gary,” and appellant responded “What?” Tyson asked him if his name

was really Gary Colburn and appellant responded “You figure it out.”

      {¶7} In the meantime, the green van was impounded and searched, and the

search yielded a motel key for the Downtown Motel in Coshocton, Ohio. The motel

owner testified appellant registered there on October 3 under the name of Gary

Colburn.

      {¶8} Appellee presented the testimony of Douglas Barnes, a MI resident who

lives about ten minutes from Adrian.     Barnes is the owner of the green Plymouth

Voyager van and testified he was in the process of selling it to Dan Thompson of Maple

Motors in Adrian. Barnes dropped off the van at Maple Motors sometime during the last

week of September 2012 and was awaiting an offer from Thompson. Thompson called

about a week later to say the key was missing, so Barnes dropped off a copy of the key

on October 1, 2012. Barnes observed the van on the lot at Maple Motors that day.
Licking County, Case No.13-CA-5                                                        4


      {¶9} Barnes did not give anyone permission to take the van from Maple Motors

or to use the van to drive to Ohio. He has never met appellant and did not give him

permission to drive the van. After the van was recovered, Barnes picked it up from the

Newark impound lot and eventually consummated the sale to Thompson and Maple

Motors.

      {¶10} Appellant was charged with one count of receiving stolen property, a

felony of the fourth degree, and one count of falsification, a misdemeanor of the first

degree.   He entered pleas of not guilty and the case was scheduled for jury trial.

Immediately prior to trial, appellant’s trial counsel moved to withdraw and appellant

moved to represent himself. The trial court questioned appellant and advised him of his

rights before finding he was able to represent himself.      Defense trial counsel was

appointed standby counsel.

      {¶11} Appellee’s evidence consisted of the facts described above.         Appellee

also called Kenneth Thomas as a witness, who testified he met appellant in the Blue

Raccoon and asked him for a ride downtown. Thomas stated appellant had the van and

drove it that night; he had never met appellant before and didn’t know anything about

the van being stolen.

      {¶12} Appellee also called a social worker from the county jail who testified

appellant told him he was improperly charged with receiving stolen property because in

his understanding, he didn’t “receive” the van, he stole it, and felt he should have been

charged with theft in MI and not in Ohio. Appellant told the social worker he knows Dan

Thompson, the car lot owner, and was able to take the key, make a copy, and later
Licking County, Case No.13-CA-5                                                        5


drive off in the van. Appellant said he had “permission” from Thompson to drive the van

at one point but later took it without “permission.”

       {¶13} Appellee rested and appellant did not present any witnesses.             He

attempted to introduce a cell phone into evidence which he claimed would show a

number of calls from Dan Thompson, the owner of Maple Motors.            The trial court

explained appellant could not introduce the exhibit on its own without any supporting

witness. Appellant then rested.

       {¶14} The trial court and the parties discussed the proposed jury instructions;

appellant sought an instruction on the lesser-included offense of unauthorized use of a

motor vehicle and appellee objected, arguing appellant had presented no evidence that

would support the lesser-included offense. The parties then debated the appropriate

code section for unauthorized use and appellant offered a police report from Adrian, MI

to establish when the van was reported stolen. The trial court ruled the MI police report

had not been admitted into evidence and was inadmissible hearsay.

       {¶15} In his closing argument, appellant argued he took the van with Dan

Thompson’s “permission,” for unspecified “illegal purposes.” He admitted giving a false

name to police because he didn’t want them to find out about outstanding warrants he

had.

       {¶16} The jury was instructed upon receiving stolen property [R.C. 2913.51(A)];

the lesser-included offense of unauthorized use of property [R.C. 2913.03(B)]; and

falsification [2921.13(A)(3)]. The MI police report came up again when the jury posed a

question during deliberations.     The jury sent out a question stating “Need copy of
Licking County, Case No.13-CA-5                                                           6


Michigan police report,” and the trial court responded it was neither marked as an

exhibit nor admitted into evidence, so it would not be provided to them.

       {¶17} Appellant was thereupon found not guilty of receiving stolen property,

guilty of unauthorized use of a motor vehicle, and guilty of falsification. The trial court

sentenced appellant to an aggregate prison term of 11 months.

       {¶18} Appellant now appeals from the judgment entry of his conviction and

sentence.

       {¶19} Appellant raises two assignments of error:

                              ASSIGNMENTS OF ERROR

       {¶20} “I. THE TRIAL COURT DID ERR BY FAILING TO ADMIT A COPY OF

THE POLICE REPORT. (T. P. 148).”

       {¶21} “II. THE TRIAL COURT DID ERR WHEN IT ENTERED JUDGMENT

AGAINST THE DEFENDANT WHEN THE EVIDENCE WAS INSUFFICIENT TO

SUSTAIN A CONVICTION AND WAS NOT SUPPORTED BY THE MANIFEST

WEIGHT OF THE EVIDENCE. (T. PP. 82-133).”

                                        ANALYSIS

                                             I.

       {¶22} In his first assignment of error, appellant argues the trial court erred in

refusing to admit the MI police report during the parties’ argument about instructing the

jury on the lesser-included offense of unauthorized use of a motor vehicle.             We

disagree.

       {¶23} The admission or exclusion of evidence is a matter left to the sound

discretion of the trial court. Absent an abuse of discretion resulting in material prejudice
Licking County, Case No.13-CA-5                                                                  7


to the defendant, a reviewing court should be reluctant to interfere with a trial court’s

decision in this regard. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967).

       {¶24} R.C. 2945.10(C) specifies the order of proceedings at trial: “The state

must first produce its evidence and the defendant shall then produce his evidence.”

“The state will then be confined to rebutting evidence, but the court, for good reason, in

furtherance of justice, may permit evidence to be offered by either side out of its order.”

R.C. 2945.10(D). Appellant sought to admit the MI police report after the evidence was

closed and both sides had rested. A trial court does have discretion to have admit

evidence out of order, State v. Filiaggi, 86 Ohio St.3d 230, 241-242, 714 N.E.2d 867

(1999), cert. denied in Filiaggi v. Ohio, 528 U.S. 1090, 120 S.Ct. 821, 145 L.Ed.2d 691

(2000), but in this case appellant sought to admit the evidence after both sides had

rested. Appellant would have to demonstrate the trial court's refusal to admit the report

constitutes an abuse of discretion, which would be “more than an error of law or of

judgment;      it   implies   that   the   court's   attitude   is   unreasonable,   arbitrary   or

unconscionable.” Id., citing State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144

(1980).      Appellant has not met that burden in this case.              In light of appellant’s

admissions, the trial court’s decision not to admit the report did not result in prejudice to

appellant.

       {¶25} Moreover, the trial court specifically declined to admit the MI police report

on the basis that it is inadmissible hearsay. It is well established that police reports are

generally inadmissible hearsay and should not be submitted to the jury. State v.

Granderson, 177 Ohio App.3d 424, 894 N.E.2d 1290, 2008-Ohio-3757 (5th Dist.), ¶ 77,

citing State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229. In this
Licking County, Case No.13-CA-5                                                           8


case, particularly, appellant sought to admit the report alone, absent any foundation.

The trial court did not abuse its discretion in refusing to admit the police report.

       {¶26} Appellant’s first assignment of error is overruled.

                                                 II.

       {¶27} In his second assignment of error, appellant argues his conviction for

unauthorized use of a motor vehicle in violation of R.C. 2913.03(B) is against the

manifest weight and sufficiency of the evidence. We disagree.

       {¶28} The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio

St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard

of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,

61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which

the Ohio Supreme Court held, “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.”

       {¶29} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing

the entire record, weighs the evidence and all reasonable inferences, considers the

credibility of witnesses and determines whether in resolving conflicts in the evidence,
Licking County, Case No.13-CA-5                                                        9


the jury clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be overturned and a new trial ordered.” State v. Thompkins, supra, 78

Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of the

evidence and ordering a new trial should be reserved for only the “exceptional case in

which the evidence weighs heavily against the conviction.” Id.

      {¶30} Appellant was convicted upon one count of unauthorized use of a motor

vehicle pursuant to R.C. 2913.03(B), which states: “No person shall knowingly use or

operate an aircraft, motor vehicle, motorboat, or other motor-propelled vehicle without

the consent of the owner or person authorized to give consent, and either remove it

from this state or keep possession of it for more than forty-eight hours.” Barnes, the

owner of the van, testified he dropped the van off at Maple Motors sometime during the

last week of September, 2012. On October 1, 2012, Barnes dropped off an extra key

for the van and saw the van on the lot. Appellant checked into the Downtown Motel in

Coshocton, Ohio on October 3, 2012, and noted the van as his vehicle on the motel

registration form. Appellant was stopped driving the van in Licking County, Ohio, on

October 5, 2012.    We find the jury could reasonably conclude from this evidence

appellant kept possession of the van for longer than 48 hours.

      {¶31} Appellant’s conviction is supported by sufficient evidence and is not

against the manifest weight of the evidence. Appellant’s second assignment of error is

overruled.
Licking County, Case No.13-CA-5                                                10


                                   CONCLUSION

      {¶32} Appellant’s two assignments of error are overruled and the judgment of

the Licking County Court of Common Pleas is affirmed.

By: Delaney, J. and

Hoffman, P.J.

Wise, J., concur.



                                      HON. PATRICIA A. DELANEY




                                      HON. WILLIAM B. HOFFMAN



                                      HON. JOHN W. WISE
