        [Cite as State v. Moore, 2013-Ohio-2924.]
                IN THE COURT OF APPEALS
            FIRST APPELLATE DISTRICT OF OHIO
                 HAMILTON COUNTY, OHIO



STATE OF OHIO,                                      :   APPEAL NO. C-120770
                                                        TRIAL NO. B-1205835
    Plaintiff-Appellee,                             :
                                                            O P I N I O N.
  vs.                                               :

HAROLD MOORE,                                       :

    Defendant-Appellant.                            :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: July 5, 2013


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Fox & Scott, PLLC, and Bradley Fox, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




D E W INE , Judge.

       {¶1}     Harold Moore was convicted of two counts of receiving stolen

property: one count for a stolen SUV, and the other count for a license plate that had

been placed on the stolen vehicle. In this appeal, he argues that he was denied the

effective assistance of counsel, that his convictions were not supported by sufficient

evidence and were against the weight of the evidence, and that the trial court abused

its discretion in sentencing him to the maximum allowable prison term. We are not

persuaded, so we affirm the judgment of the trial court.

                                          I.

       {¶2}     On the morning of Friday, August 24, 2012, Lawrence Kemper walked

outside to discover that the license plate on his car had mysteriously disappeared, a

circumstance he subsequently reported to the police. That same day, a 2001 Chevy

Suburban went missing from Advanced Auto Sales, a used car lot in Cheviot, Ohio.

       {¶3}     After discovering the vehicle missing, Cindy Devers, one of the owners

of the car lot, reviewed a video recorded by the lot’s surveillance cameras the night

before. She could see a person putting a license plate on the SUV, entering the SUV,

and driving off in the SUV, but was unable to make out the person’s face or features.

Ms. Devers showed the video to police officers, who also were unable to make out any

identifiable features of the thief.

       {¶4}     That night, Cincinnati Police Officer Tom DeFranco was patrolling the

Over-the-Rhine area of Cincinnati in a marked police car. He ran the license plate of

a black Suburban and learned that the license plate had been reported stolen. Before

he could pull the Suburban over, two individuals got out and started walking. Officer

DeFranco caught up with the driver, whom he subsequently identified as Mr. Moore.




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He entered the Suburban’s vehicle identification number into his computer and

determined that the SUV also had been reported stolen by the car lot. When the

police officer asked Mr. Moore for the keys to the vehicle, Mr. Moore stated that he

had given them to his cousin, whom he refused to name. Officer DeFranco arrested

Mr. Moore and arranged for the Suburban to be towed.

       {¶5}    The following Monday, Ms. Devers was told that the vehicle had been

located. When the SUV was retrieved from an impound lot, the steering column had

been stripped. At trial, Ms. Devers identified Mr. Moore as a person who had come

to the car lot at least twice asking about the Suburban one or two weeks before she

discovered the vehicle missing. She remembered Mr. Moore because he had several

distinctive tattoos. After she learned that Cincinnati police had made an arrest in the

case, she viewed Mr. Moore’s photograph on the Hamilton County Clerk of Courts’

website.   She recognized Mr. Moore as the person who had visited the lot and

inquired about the Suburban.

       {¶6}    Mr. Moore took the stand in his own defense. He denied that he had

known that the SUV and license plate had been stolen, claiming that had he known,

he would have sped away from the police officers on the night that he was stopped.

       {¶7}    At the conclusion of the bench trial, the court found Mr. Moore guilty

as charged and sentenced him to 18 months for one count and 12 months for the

other. The sentences were made concurrent with each other.

                                          II.

       {¶8}    In his first assignment of error, Mr. Moore asserts that he was denied

the effective assistance of counsel.     To succeed on this assignment, he must

demonstrate that his counsel’s performance was deficient, and that, absent his

counsel’s errors, the result of the proceedings would have been different. Strickland



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v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see State

v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989).

       {¶9}    Mr. Moore first contends that his counsel was ineffective because he

did not move for a mistrial based on the destruction of exculpatory evidence. Prior

to trial, Mr. Moore’s counsel inquired about the existence of the surveillance video

from the car lot. As explained by Ms. Devers during her testimony, the video was

automatically taped over every 30 days. Thus, no video was available to provide to

Mr. Moore as part of discovery. Mr. Moore claims that his counsel should have

moved for a mistrial because the video was potentially exculpatory.

       {¶10}   The failure to provide Mr. Moore with the surveillance video would

have violated his due process rights if the video was material to his guilt. State v.

Johnston, 39 Ohio St.3d 48, 529 N.E.2d 898 (1988), paragraph four of the syllabus.

Evidence is material “only if there is a reasonable probability that, had the evidence

been disclosed to the defense, the result of the proceeding would have been

different.” Id. at paragraph five of the syllabus. Here, we are unable to conclude that

the video was material to the issue of Mr. Moore’s guilt. Ms. Devers testified that she

had been unable to discern any features of the person seen on the videotape, and that

the police officers who reviewed the tape had not retained it as evidence because they

had been unable to make anything out.

       {¶11}   Even if the video was not materially exculpatory but only potentially

useful to Mr. Moore, a due process violation could have been shown if the state acted

in bad faith in failing to preserve the video. State v. Geeslin, 116 Ohio St.3d 252, 878

N.E.2d 1 (2007), syllabus. Here, however, the record does not demonstrate bad faith

on the part of the state. Rather, the police officers did not preserve the video because




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they determined that it had no evidentiary value. We conclude that counsel was not

ineffective for failing to pursue a motion to dismiss.

       {¶12}   Mr. Moore next contends that counsel was ineffective because he did

not move for a Crim.R. 29 acquittal at the close of the state’s case. We disagree.

Even if counsel had made a Crim.R. 29 motion, it would have been denied by the

court, which found sufficient evidence to convict Mr. Moore of both counts in the

indictment. We therefore overrule the first assignment of error.

       {¶13}   We consider Mr. Moore’s second and third assignments of error

together. In the second, he asserts that his convictions were not based on sufficient

evidence. In the third, he claims that his convictions were against the manifest

weight of the evidence. Neither assignment of error is well taken.

       {¶14}   As to the sufficiency argument, our review of the record reveals that

the state adduced substantial, credible evidence from which the trial court could have

reasonably concluded that the state had proved beyond a reasonable doubt the

elements of the offenses for which Mr. Moore was found guilty. See State v. Jenks,

61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus; R.C.

2913.51.

       {¶15}   In regard to the manifest-weight argument, our review of the entire

record fails to persuade us that the trial court clearly lost its way and created such a

manifest miscarriage of justice that we must reverse Mr. Moore’s convictions and

order a new trial. See State v. Thompkins, 78 Ohio St.3d 380, 386-87, 678 N.E.2d 541

(1997). The second and third assignments of error are overruled.

       {¶16}   In his final assignment of error, Mr. Moore asserts that the trial court

abused its discretion when it sentenced him to the maximum allowable term for each

count. He argues that the trial court did not place on the record its consideration



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and weighing of the statutory factors before sentencing him. See R.C. 2929.11 and

2929.12. But we may presume that the court considered the proper sentencing

factors. State v. Love, 194 Ohio App.3d 16, 2011-Ohio-2224, 954 N.E.2d 202, ¶ 14

(1st Dist.), citing State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d

124, fn. 4. Further, having reviewed the record, we are unable to conclude that the

court abused its discretion when it imposed the maximum sentence for each count.

See Kalish, supra. The final assignment of error is overruled. We therefore affirm

the judgment of the trial court.

                                                                  Judgment affirmed.




H ENDON , P.J., and D INKELACKER , J., concur.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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