[Cite as State v. Austin, 2013-Ohio-1159.]


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

STATE OF OHIO                                       C.A. No.       26385

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
CHARLES A. AUSTIN                                   COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 11 09 2678(A)

                                  DECISION AND JOURNAL ENTRY

Dated: March 27, 2013



        WHITMORE, Judge.

        {¶1}     Defendant-Appellant, Charles Austin, appeals from his convictions in the Summit

County Court of Common Pleas. This Court affirms in part and reverses in part.

                                                I

        {¶2}     During the late evening hours of September 11, 2011, a 2000 Dodge company van

went missing from the parking lot of CSR Unlimited in Solon. Curtis Wilder, the man who took

the van, then used it to pick up Austin and Austin’s friend, Brian Collins. The three drove to a

Kohl’s Department store in Springfield Township, where a crew of electricians from Electrical

Masters by MSR, Inc. (“MSR”) were working inside the store. Once the three arrived outside

Kohl’s, Wilder exited the van and gained access to a Ford F-250 truck that was parked outside

and had a construction trailer attached to it. The truck belonged to MSR and was equipped with

Telogis GPS tracking.
                                                 2


       {¶3}    With Wilder operating the F-250 truck and Austin operating the Dodge van, the

three men next traveled to Joe’s Hawg Shop in Norton. There, Wilder used the van to ram the

shop’s garage door and some type of tool to pry open the shop’s business door. He then placed

two Harley Davidson motorcycles from the shop’s garage, a strongbox from the shop, and other

various items, into the F-250 truck’s construction trailer. Before the three men left the area in

the truck, Austin parked the Dodge van in a parking lot adjacent to Joe’s Hawg Shop. The lot

belonged to Fred Martin Superstore and acted as an overflow lot, such that many different

vehicles were parked there.

       {¶4}    Even before the three men left Joe’s Hawg Shop, an employee of MSR notified

the police that the company’s F-250 truck had been stolen and provided them with the GPS

tracking information for the truck. The police began to search for the truck and identified it

heading northbound on I-77 at Everhard Road. From there, a high-speed chase ensued for 51

miles until the police successfully used spike strips to deflate the truck’s tires. The truck exited

the highway at Lee Road in Cleveland and came to a stop. Wilder and Austin then ran from the

truck on foot while Collins remained inside. The police ultimately found Austin hiding behind a

garage in the surrounding neighborhood.

       {¶5}    A grand jury indicted Austin on each of the following counts: (1) grand theft of a

1990 Harley Davidson motorcycle; (2) grand theft of a 1994 Harley Davidson motorcycle; (3)

theft of a strongbox from Joe’s Hawg Shop; (4) receiving stolen property, related to the Dodge

van; (5) breaking and entering Joe’s Hawg Shop; (6) safecracking, related to the strongbox; (7)

vandalism of Joe’s Hawg Shop; and (8) receiving stolen property, related to the Ford F-250

truck. A jury trial ensued and the jury found Austin not guilty of theft and safecracking, but
                                                3


guilty of the remaining counts. The trial court sentenced Austin on all six counts, but ran the

sentences concurrent for a total sentence of 15 months in prison.

       {¶6}    Austin now appeals and raises three assignments of error for our review.

                                                II

                               Assignment of Error Number One

       AUSTIN’S CONVICTION ON COUNT 8, WHICH CHARGED HIM WITH
       RECEIVING THE STOLEN PROPERTY OF A FORD PICKUP TRUCK, WAS
       NOT SUPPORTED BY SUFFICIENT EVIDENCE, AND MUST BE
       REVERSED.

       {¶7}    In his first assignment of error, Austin argues that his conviction for receiving

stolen property, related to the Ford F-250 truck, is based on insufficient evidence. Specifically,

he argues that there was no evidence that he ever controlled or possessed the truck or knew it

was stolen. We disagree.

       {¶8}    In order to determine whether the evidence before the trial court was sufficient to

sustain a conviction, this Court must review the evidence in a light most favorable to the

prosecution. State v. Jenks, 61 Ohio St.3d 259, 273 (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.

Id. at paragraph two of the syllabus; see also State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

“In essence, sufficiency is a test of adequacy.” Thompkins at 386.

       {¶9}    “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.” R.C. 2913.51(A). “[A] generally accepted definition of receive is to acquire
                                                    4


‘control in the sense of physical dominion over or the apparent legal power to dispose of said

property.’” State v. Brewer, 9th Dist. No. 99CA007483, 2000 WL 988766, *2 (July 19, 2000),

quoting State v. Jackson, 20 Ohio App.3d 240, 242 (12th Dist.1984).

          [A] passenger in a vehicle may be convicted for receiving stolen property where
          there is evidence the passenger knew the vehicle was stolen and fled from the
          police. While [m]ere presence in a stolen vehicle is never sufficient to convict for
          receiving stolen property, if the passenger has reasonable cause to believe that the
          vehicle is stolen and either remain[s] for some time in the vehicle after that
          knowledge or participate[s] or aid[s] in the theft itself[,] a conviction for receiving
          stolen property can stand.

(Internal quotations and citations omitted.) (Alterations sic.) State v. Rivers, 9th Dist. No.

10CA009772, 2011-Ohio-2447, ¶ 8. “Possession of recently stolen property, if not satisfactorily

explained, is ordinarily a circumstance from which you may reasonably draw the inference and

find, in the light of the surrounding circumstances shown by the evidence in the case, that the

person in possession knew the property had been stolen.” State v. Arthur, 42 Ohio St.2d 67, 68

(1975).

          {¶10} In addition to charging the jury with the elements of receiving stolen property, the

trial court here also instructed the jury on complicity. The complicity statute provides, in

relevant part, that “[n]o person, acting with the kind of culpability required for the commission

of an offense, shall * * * [a]id or abet another in committing the offense[.]” R.C. 2923.03(A)(2).

The phrase “aid or abet” means that a defendant “supported, assisted, encouraged, cooperated

with, advised, or incited the principal in the commission of the crime, and that [he] shared the

criminal intent of the principal. Such intent may be inferred from the circumstances surrounding

the crime.” State v. Johnson, 93 Ohio St.3d 240 (2001), syllabus. A person guilty of complicity

“shall be prosecuted and punished as if he were a principal offender.” R.C. 2923.03(F).
                                                5


       {¶11} Robert Leon, the owner of CSR Unlimited, testified that a 2000 Dodge van went

missing from his company’s parking lot on the night of September 11, 2011. The police later

found the van in an overflow parking lot belonging to Fred Martin Superstore.              Officer

Christopher Besse testified that he heard the van’s engine running while the police were

investigating the break-in at Joe’s Hawg Shop. He testified that the van had been backed into a

parking space in line with the other vehicles in the lot. Upon further inspection, he observed the

van was damaged. Specifically, it had damage to its back end and to its steering column.

Officer Besse testified that the plastic ring that typically would be covering the wiring in the

steering column was missing and two plastic pieces of the column had been separated such that

the wires and the ignition tumbler had been exposed. Officer Besse explained that such damage

is typical when someone steals a vehicle without the keys. Several officers testified that the

police never found the keys to the van. Leon also verified that, before it went missing, his

company’s van was undamaged. He confirmed that neither Austin nor Austin’s two companions

had permission to use his company’s van.

       {¶12} David Meeks, the project manager for MSR, testified that MSR’s employees took

a Ford F-250 truck and construction trailer with them to Kohl’s Department store on the night of

September 11th.     Meeks testified that his employees left the truck in the parking lot at

approximately 8:15 p.m. and entered the store. At about 9:00 p.m., one of the employees exited

the store with the keys to the truck to retrieve an item from it. The employee then notified

Meeks that the truck and the construction trailer had been stolen. Meeks confirmed that neither

Austin nor Austin’s two companions had permission to use the truck.

       {¶13} Detective John Canterbury testified that he interviewed Austin about two weeks

after his arrest. Austin told the detective that he and his friend Collins planned to go out with a
                                                 6


man named Curtis Wilder on the night of September 11th to smoke marijuana. According to

Austin, Wilder picked them up in a Dodge van and Austin assumed the van belonged to Wilder.

Wilder then drove to the Kohl’s in Springfield Township and told Austin and Collins that he was

picking up his truck. Wilder drove the truck to Joe’s Hawg Shop while Austin followed in the

van. Once at Joe’s Hawg Shop, Wilder parked the truck and took back control of the van.

Austin and Collins watched as Wilder rammed the garage door of Joe’s Hawg Shop with the

back of the van. According to Austin, he and Collins stood there while Wilder gained access to

the garage, removed two motorcycles and other items from inside it, broke into the business door

of the shop, and removed a strongbox from inside. Wilder placed all of the items he took from

the shop inside the construction trailer of the F-250 truck. At the time he was taking the second

motorcycle to the truck, Wilder told Austin to follow him in the van. Austin got into the van,

drove it to the adjacent parking lot, and parked it there. He and Collins then got back into the

truck with Wilder and the three left.

       {¶14} Joseph Huegle, the owner of Joe’s Hawg Shop, testified that he had two Harley

Davidson motorcycles in his shop’s garage for repairs on the night of September 11th. He also

testified that he kept a locked strongbox in his office file cabinet where he stored cash throughout

the week. Huegle was unsure of the exact amount of cash he had in his strongbox before the

break-in occurred, but believed it to be around $300. He verified that his shop’s business door

and garage door both sustained damage as a result of the break-in. Further, he testified that

Austin and his companions did not have his permission to remove the motorcycles or other items

from his shop.

       {¶15} Ohio State Highway Patrol Trooper John Beeler testified that he joined the

highway pursuit that ensued when the police identified the stolen F-250 truck that Wilder was
                                                7


driving. Once the truck stopped, Trooper Beeler began to help search the area on foot, as both

the driver and front seat passenger had fled from the truck. Trooper Beeler found Austin hiding

behind a garage in a backyard of a nearby residence after about twenty minutes of searching.

When Trooper Beeler searched Austin, he found a large amount of cash on him. Although

Trooper Beeler could not recall the exact amount he found, he believed it to be somewhere

between $150 and $500.

       {¶16} Austin argues that his receiving stolen property conviction is based on insufficient

evidence because there was no evidence that he ever drove the F-250 truck, otherwise exercised

control over it, or knew that it was stolen. Austin avers that, because he was only ever in the

truck as a passenger, there was insufficient evidence to convict him.

       {¶17} This Court addressed a similar argument in In re Bickley, 9th Dist. No. 15974,

1993 WL 216273 (June 23, 1993). In Bickley, the appellant argued that there was insufficient

evidence to find him delinquent for receiving stolen property when he knew a van was stolen,

but had merely ridden in it as a passenger. Bickley at *1. In rejecting Bickley’s argument that he

never possessed the van, we held that there was circumstantial evidence of possession under a

complicity theory. Id. at *2. We explained that:

       knowing the van was stolen, Bickley got into it and proceeded to use it for
       transportation. When the police approached, Bickley ran and hid. This was
       sufficient circumstantial evidence that Bickley, at least, aided and abetted in the
       retention of the stolen van by the driver.

Id. at *2. Consequently, we concluded that Bickley’s riding in a van he knew to be stolen and

running and hiding from the police when they approached was sufficient evidence that he

received stolen property. Id. This Court reached a similar result in State v. Rivers. Rivers,

2011-Ohio-2447, at ¶ 21-22 (sufficient evidence of receiving stolen property where
                                                 8


circumstances were such that the defendant had reason to believe the vehicle in which he was a

passenger was stolen and fled from the police after a high-speed chase ended).

       {¶18} It is undisputed that the Dodge van and F-250 truck involved in this case were

stolen. The evidence was that Wilder drove Austin and Collins to Kohl’s in the van and took the

truck from the parking lot. The three then went to Joe’s Hawg Shop. Austin admitted that he

drove the Dodge van twice; once to Joe’s Hawg shop and once at Joe’s Hawg shop when Wilder

ordered him to drive the van to the adjacent lot. There was testimony that the van’s steering

column had been peeled and no key was present. Upon viewing the condition of the van’s

steering column, a reasonable person’s suspicions should have been aroused. Even assuming

that Austin’s were not, however, Austin then witnessed Wilder use the van as a ram to break into

Joe’s Hawg Shop before taking motorcycles, a strongbox, and several other items from the shop.

Nevertheless, he drove the van to the adjacent parking lot to park it for Wilder while Wilder

moved the second motorcycle from the shop garage to the F-250 truck’s construction trailer.

There also was testimony that Austin parked the van in an inconspicuous position, backing the

van into its parking space and parking it in line with the other vehicles in the lot. The van was

still running, without a key, when the police arrived.

       {¶19} Austin returned to the F-250 truck with Wilder after the theft incident at Joe’s

Hawg Shop. When the police finally stopped the truck, Austin fled on foot along with Wilder

and hid from the police. Moreover, when the police finally apprehended him, they found a large

amount of cash on him. Huegle, the owner of Joe’s Hawg Shop, testified that he kept several

hundred dollars in cash in the strongbox that was taken from his shop. The strongbox was found,

pried open, in the F-250 truck’s construction trailer along with the other items taken from Joe’s

Hawg Shop.
                                                 9


       {¶20} Viewing the evidence in a light most favorable to the State, a rational trier of fact

could have concluded that the State proved that Austin either committed or was complicit in the

commission of the crime of receiving stolen property. The totality of the circumstances was such

that a reasonable person would have known the F-250 truck was stolen. Nevertheless, Austin

repeatedly rode in the truck and helped Wilder move the van out of the way while Wilder loaded

another stolen motorcycle onto the truck’s construction trailer. He also fled on foot from the

police when they stopped the truck. See State v. Nichols, 9th Dist. No. 24900, 2010-Ohio-5737,

¶ 11, quoting State v. Taylor, 78 Ohio St.3d 15, 27 (1997) (“It is an established principle of law

that ‘[f]light from justice * * * may be indicative of a consciousness of guilt.’”). As previously

noted, “[a] passenger in a vehicle may be convicted for receiving stolen property where there is

evidence the passenger knew the vehicle was stolen and fled from the police.” Johnson, 2007-

Ohio-4133, at ¶ 15. Austin got back into the truck after he had reasonable cause to believe it was

stolen. Rivers, 2011-Ohio-2447, at ¶ 8, quoting In re Bromfield, 1st Dist. No. C-030446, 2004-

Ohio-450, ¶ 12. Additionally, there was evidence that he aided Wilder in the theft by moving the

stolen van for Wilder while the theft was in progress. In light of all the foregoing, we cannot

conclude that Austin’s conviction for receiving stolen property, related to the F-250 truck, is

based on insufficient evidence. Austin’s first assignment of error is overruled.

                                Assignment of Error Number Two

       AUSTIN’S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF
       THE EVIDENCE, AND OUGHT TO BE REVERSED.

       {¶21} In his second assignment of error, Austin argues that his convictions are against

the manifest weight of the evidence. We disagree.

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

evidence an appellate court:
                                                10


       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). A weight of the evidence challenge

indicates that a greater amount of credible evidence supports one side of the issue than supports

the other. Thompkins, 78 Ohio St.3d at 387. Further, when reversing a conviction on the basis

that the conviction was against the manifest weight of the evidence, the appellate court sits as the

“thirteenth juror” and disagrees with the factfinder’s resolution of the conflicting testimony. Id.

Therefore, this Court’s “discretionary power to grant a new trial should be exercised only in the

exceptional case in which the evidence weighs heavily against the conviction.” State v. Martin,

20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten at 340.

       {¶23} Austin argues that his convictions are against the manifest weight of the evidence

because Wilder was solely responsible for the events that occurred while Austin was with him.

According to Austin, he was not aware that the vehicles Wilder took were stolen, he never aided

Wilder with the break-in at Joe’s Hawg Shop, and there was not a reasonable period of time

when he could have abandoned Wilder before the high-speed chase ensued.

       {¶24} Based on our review of the record, we cannot agree that Austin’s convictions are

against the manifest weight of the evidence. There was testimony that the Dodge van Austin

drove on two occasions had a damaged steering column. Although Austin claimed during his

interview with Detective Canterbury that he saw a key for the van at some point, the police never

recovered a key. Austin also left the van’s engine running when he parked it in the lot adjacent

to Joe’s Hawg Shop. The jury could have inferred that, had there been a key to the van, Austin

would have turned off the van’s engine before abandoning it. Moreover, Austin parked the van
                                                11


in such a way that it was inconspicuous; backing it into a space so that the damage to its rear was

not immediately observable and parking it in line with the other vehicles in the lot. The jury

could have inferred that, by driving the van twice and parking it in the manner that he did after

having witnessed Wilder break into Joe’s Hawg Shop, Austin intended to aid Wilder in the

commission of his crimes.

       {¶25} As for Austin’s argument that there was no reasonable time during which he

could have abandoned Wilder, Austin was present for the duration of the break-in at Joe’s Hawg

Shop. He did not walk away or refuse to remain with Wilder even after it became clear that

Wilder intended to steal items from the shop. Instead, he aided Wilder by moving the van and

then returned to the F-250 truck to leave with Wilder. When the police finally did stop the truck,

Austin fled on foot and hid behind a garage in a nearby neighborhood. Given his behavior, the

jury could have chosen to believe that Austin shared Wilder’s criminal intent.

       {¶26} Having reviewed the record, we cannot conclude that this is the exceptional case

where the jury lost its way by convicting Austin. Austin’s convictions are not against the

manifest weight of the evidence. As such, his second assignment of error is overruled.

                               Assignment of Error Number Three

       THE TRIAL COURT VIOLATED AUSTIN’S RIGHTS UNDER THE UNITED
       STATES AND OHIO CONSTITUTIONS AND COMMITTED REVERSIBLE
       ERROR WHEN IT IMPOSED SENTENCES UPON AUSTIN FOR ALLIED
       OFFENSES OF SIMILAR IMPORT.

       {¶27} In his third assignment of error, Austin argues that the trial court erred by

convicting him of allied offenses of similar import. Specifically, he argues that his breaking and

entering conviction should have merged with his conviction for vandalism.

       {¶28} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, syllabus, the Supreme

Court of Ohio held that, in determining whether two offenses are allied offenses of similar
                                               12


import, “the conduct of the accused must be considered.” The court must first determine

“whether it is possible to commit one offense and commit the other with the same conduct,” and,

if so, then “the court must determine whether the offenses were committed by the same conduct,

i.e. ‘a single act, committed with a single state of mind.’” (Emphasis omitted.) Id. at ¶ 48, 49,

quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶ 50 (Lanzinger, J., concurring).

If the answer to both inquiries is yes, then the offenses must be merged. Johnson at ¶ 50.

“Failure to merge allied offenses of similar import constitutes plain error, and prejudice exists

even where a defendant’s sentences are to run concurrently because ‘a defendant is prejudiced by

having more convictions than are authorized by law.’” State v. Asefi, 9th Dist. No. 26430, 2012-

Ohio-6101, ¶ 6, quoting State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 31.

       {¶29} The record does not support the conclusion that the trial court considered and

applied Johnson when it sentenced Austin. Neither the court, nor the parties ever discussed

Johnson or the issue of merger. Were this Court to apply Johnson to Austin’s breaking and

entering and vandalism convictions, we would be doing so in the first instance. This Court has

consistently declined to do so. See, e.g., State v. Chisholm, 9th Dist. No. 26007, 2012-Ohio-

3932, ¶ 22. The State here has acknowledged that the trial court did not consider Johnson and

has requested that this Court remand the matter. We agree that a remand is appropriate, given

our prior decisions. Therefore, this matter must be remanded to the trial court for it to apply

Johnson and determine whether Austin’s offenses should merge. “Moreover, in the event that

the offenses are allied, ‘the State also must have the opportunity to elect the offense[] upon

which it wishes to proceed to sentencing.’” Asefi at ¶ 8, quoting State v. Ziemba, 9th Dist. No.

25886, 2012-Ohio-1717, ¶ 23. Austin’s third assignment of error is sustained solely on the basis

that this matter must be remanded, consistent with the foregoing discussion.
                                                 13


                                                 III

       {¶30} Austin’s first and second assignments of error are overruled. His third assignment

of error is sustained insofar as the matter is remanded for the trial court to apply State v. Johnson

in the first instance. The judgment of the Summit County Court of Common Pleas is affirmed in

part, reversed in part, and remanded for further proceedings consistent with the foregoing

opinion.

                                                                         Judgment affirmed in part,
                                                                                  reversed in part,
                                                                              and cause remanded.




       There were reasonable grounds for this appeal.

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

Pleas, County of Summit, 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 equally to both parties.




                                                       BETH WHITMORE
                                                       FOR THE COURT
                                       14



MOORE, P. J.
CARR, J.
CONCUR.


APPEARANCES:

JACQUENETTE S. CORGAN, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
