[Cite as State v. Schreckengost, 2012-Ohio-347.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO

        Plaintiff-Appellee

-vs-

BRION SCHRECKENGOST

        Defendant-Appellant

JUDGES:
Hon. W. Scott Gwin, P.J.
Hon. William B. Hoffman, J.
Hon. John W. Wise, J.

Case No. 2011CA00163

OPINION

CHARACTER OF PROCEEDING:                           Appeal from the Stark County Court of
                                                   Common Pleas, Case No. 2011CR1974(A)

JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            January 30, 2012

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JOHN D. FERRERO                                    BERNARD L. HUNT
PROSECUTING ATTORNEY,                              2395 McGinty Rd. NW.
STARK COUNTY, OHIO                                 North Canton, Ohio 44720

By: KATHLEEN O. TATARSKY
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Hoffman, J.


       (¶1)   Defendant-appellant Brion Schreckengost appeals his conviction entered

by the Stark County Court of Common Pleas on one count of complicity to receiving

stolen property. The State of Ohio is plaintiff-appellee.

                            STATEMENT OF THE CASE AND FACTS

       (¶2)   On February 14, 2011, Appellant was indicted on one count of complicity

to receiving stolen property, in violation of R.C. 2923.03(A)(2) or (3).

       (¶3)   During an investigation, Pam Nordquist, Appellant’s live-in girlfriend, was

observed entering several stores and engaging in shoplifting. On December 22, 2010,

Nordquist was apprehended for shoplifting at Sears in Jackson Township, Ohio. When

Alliance Police Department Detectives executed a search warrant at the apartment

Appellant shared with Nordquist they found the apartment filled with clothing, candles,

bottles of men’s cologne, flash drives, crafting items, and other miscellaneous goods

with the price tags and/or store electronic sensors still intact. The store tags indicated

the items were from Sears, J.C. Penney’s and Pat Catan’s. The items were found in

every room of the apartment. According to Detective Jim Jones, the items “dominated”

the bedroom. The detectives also found shopping lists with clothing items and sizes

written thereon. The figure inscribed next to each item was $50.00.

       (¶4)   Appellant and Nordquist were arrested and taken to the Alliance Police

Department for questioning. Nordquist admitted to the detectives she had shoplifted the

items found in the apartment, and enjoyed shoplifting because it gave her a “rush”. She

explained she would take orders over the internet for items, steal the same items and

then charge fifty dollars for the items on the list.
      (¶5)    Appellant told the detectives he had been with Nordquist on two occasions

while she shoplifted, but he did not like going and did not like what she was doing. He

acknowledged he knew what she was doing, and he took some pants and shirts from

her, cautioning her not to get caught.

       (¶6)   Additionally, Detectives found text messages on Nordquist’s phone to

Appellant such as “J.C. Penney was a bust; it wasn’t crowded enough.”

       (¶7)   The total value of the items taken from Sears approximated $700 to

$1000. The value of the items stolen from J.C. Penney’s approximated $990.00, and the

Pat Catan’s stolen items’ value approximated $1,500.00.

       (¶8)   The matter proceeded to a jury trial on June 21, 2011. The jury returned a

verdict of guilty to the charge of complicity to receiving stolen property. The trial court

sentenced Appellant to the maximum sentence of twelve months in prison.

       (¶9)   Appellant now appeals, assigning as error:

       (¶10) “I. THE CONVICTION OF THE APPELLANT WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL.

       (¶11) “II. THE APPELLANT WAS DENIED HIS RIGHT TO THE EFFECTIVE

ASSISTANCE OF COUNSEL.”

                                                I.

       (¶12) On review for manifest weight, a reviewing court is to examine 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 jury 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. Martin (1983), 20 Ohio App.3d 172, 175.
See also, State v. Thompkins, 78 Ohio St.3d 380, 1997–Ohio–52. The granting of a new

trial “should be exercised only in the exceptional case in which the evidence weighs

heavily against the conviction.” Martin at 175.

       (¶13) We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182,

certiorari denied (1990), 498 U.S. 881. The trier of fact “has the best opportunity to view

the demeanor, attitude, and credibility of each witness, something that does not

translate well on the written page.” Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997–

Ohio–260.

       (¶14) Appellant was convicted of complicity to receiving stolen property, in

violation of R.C. 2923.03(A), which reads:

       (¶15) “(A) No person, acting with the kind of culpability required for the

commission of an offense, shall do any of the following:

       (¶16) “***

       (¶17) “(2) Aid or abet another in committing the offense;

       (¶18) “(3) Conspire with another to commit the offense in violation of section

2923.01 of the Ohio Revised Code.”

       (¶19) Receiving stolen property is defined in R.C. 2913.51(A):

       (¶20) “(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.”

       (¶21) Appellant admitted he knew Nordquist, whom he lived with, obtained a

multitude of clothing and other items through the commission of thefts from Sears, J.C.
Penney and Pat Catan’s. Their residence was filled with stolen items, most with price

tags and/or electronic store monitoring devices still attached. While he may have had

limited involvement in the actual commission of the theft offenses, he knew or had

reason to know the items Nordquist gave him, including pants and shirts, were stolen

property.

       (¶22) We find Appellant’s conviction for complicity to receiving stolen property is

supported by the manifest weight of the evidence. The first assignment of error is

overruled.

                                                  II.

       (¶23) In the second assignment of error, Appellant maintains he was denied the

effective assistance of trial counsel as his counsel failed to request a motion for

acquittal, failed to call witnesses on his behalf, failed to object to an instruction on aiding

and abetting and failed to object to the valuation of the items found in the apartment.

       (¶24) An ineffective assistance of counsel claim requires a showing that

counsel's performance was deficient and the deficient performance was prejudicial.

Strickland v. Washington (1984), 466 U.S. 668. Deficient performance requires a

“showing that counsel made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Prejudice requires a

“showing that counsel's errors were so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.” Id. When determining whether counsel's performance

was deficient, “a court must indulge a strong presumption that counsel's conduct falls

within a wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might

be considered sound trial strategy.’”Id. at 689.

       (¶25) Assuming, arguendo, counsel’s performance was deficient, we find

Appellant has not demonstrated the prejudicial effect of said error deprived Appellant of

a fair trial.1   Appellant himself admitted he knew of Nordquist’s activities, and the

evidence at trial supports his knowledge. Further, he admitted Nordquist gave him

pants and shirts he knew or had reason to know had been shoplifted.

       (¶26) The second assignment of error is overruled.

       (¶27) Appellant’s conviction in the Stark County Court of Common Pleas is

affirmed.

By: Hoffman, J.

Gwin, P.J. and

Wise, J. concur

                                              s/ William B. Hoffman _________________
                                              HON. WILLIAM B. HOFFMAN


                                              s/ W. Scott Gwin _____________________
                                              HON. W. SCOTT GWIN


                                              s/ John W. Wise _____________________
                                              HON. JOHN W. WISE




1
  Appellant does not identify who would be possible witnesses on Appellant’s behalf let
alone speculate on what the testimony from such witnesses would be.
             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
BRION SCHRECKENGOST                       :
                                          :
       Defendant-Appellant                :         Case No. 2011CA00163


       For the reasons stated in our accompanying Opinion, Appellant’s conviction in

the Stark County Court of Common Pleas is affirmed. Costs to Appellant.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ W. Scott Gwin _____________________
                                          HON. W. SCOTT GWIN


                                          s/ John W. Wise______________________
                                          HON. JOHN W. WISE
