[Cite as State v. Thompson, 2016-Ohio-7343.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY

State of Ohio                                      Court of Appeals No. L-15-1199

        Appellee                                   Trial Court No. CR0201501088

v.

Jerome Thompson                                    DECISION AND JUDGMENT

        Appellant                                  Decided: October 14, 2016


                                               *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Steven Casiere, for appellant.

                                               *****

        SINGER, J.

        {¶ 1} Appellant, Jerome Thompson, appeals the July 2, 2015 judgment of the

Lucas County Court of Common Pleas convicting him of one count of grand theft of a

motor vehicle. For the reasons that follow, we affirm.
       {¶ 2} Appellant sets forth two assignments of error:

              The State of Ohio Failed to Produce Legally Sufficient Evidence that

       Appellant Committed Grand Theft of a Motor Vehicle

              Appellant Was Denied Due Process And A Fair Trial By The Trial

       Court’s Refusal To Instruct the Jury As to Attempted Theft

       {¶ 3} On January 6, 2015, at approximately 7:00 p.m., Anthony Williams, the

owner of Exclusive Auto Sales and Tony’s Auto Salon, located at 1720 Monroe Street in

Toledo, Ohio, was in the process of closing his business for the night. Williams had a

concealed carry permit for a gun and always carried his gun when leaving his business

for the night. Williams walked outside and started the 2000 Mercedes he drove (“the

car”), which was owned by his mother, and pulled it to the front of the business. He

parked the car, but left it running. Williams then went back into the business to finish

some work.

       {¶ 4} Later, as Williams left the building with another man, he heard the car’s

engine racing. Williams looked into the car but did not see anyone since the windows

were tinted and no lights were on in the parking lot. As Williams opened the driver’s

side door, a man jumped out of the car and lunged at Williams. Williams said the man

had a knife, so Williams fired a shot from his gun. The man ran away. After the man

jumped out of the car, it began to roll backwards. Williams got in the car, which was in

neutral, and put it in park. Williams noticed a bottle of liquor on the floor of the car. The

liquor did not belong to Williams because he does not drink. Williams did not know the

man and never gave the man permission to be in the car or drive the car.

2.
       {¶ 5} Williams called 911 and Toledo police responded. Shortly thereafter, the

police located the man, who was appellant. Appellant had been shot. Appellant did not

have a knife, nor did the police locate a knife. After initially refusing medical treatment,

appellant was treated for the gunshot wound.

       {¶ 6} On January 16, 2015, appellant was indicted on one count of aggravated

robbery. He pled not guilty.

       {¶ 7} On June 15, 2015, a jury trial commenced. The jury was instructed on the

charge of aggravated robbery as well as the lesser included offense of grand theft of a

motor vehicle. On June 17, 2015, the jury found appellant guilty of grand theft of a

motor vehicle. He was sentenced to 18 months in prison. Appellant timely appealed.

                                First Assignment of Error

       {¶ 8} In his first assignment of error, appellant argues his conviction for grand

theft of a motor vehicle is not supported by sufficient evidence as the state failed to

present proof that he knowingly obtained or exerted control over Williams’ car.

Appellant contends a person obtains or exerts control over a vehicle when the person

knowingly renders the vehicle immediately capable of moving, and “[u]ntil a defendant

has knowingly caused the vehicle to be immediately capable of moving,” the effort is no

more than an attempt. Appellant asserts no evidence was presented that he knowingly

rendered Williams’ car immediately capable of movement, therefore he did not

knowingly obtain or exert control over the car. Appellant relies on State v. Hope, 9 Ohio

App.3d 65, 458 N.E.2d 414 (8th Dist.1983), in support of his position.



3.
       {¶ 9} Whether evidence presented at trial is legally sufficient to sustain a verdict is

a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

When reviewing the sufficiency of the evidence underlying a criminal conviction, “[t]he

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.” (Internal citations omitted.) State v. Smith, 80 Ohio

St.3d 89, 113, 684 N.E.2d 668 (1997). In making that determination, an appellate court

does not weigh the evidence or evaluate the credibility of the witnesses. State v. Walker,

55 Ohio St.2d 208, 212, 378 N.E.2d 1049 (1978).

       {¶ 10} Appellant was convicted of grand theft of a motor vehicle in violation of

R.C. 2913.02(A)(1) and (B)(5), which provides in relevant part that:

              [n]o person, with purpose to deprive the owner of property * * *

       shall knowingly obtain or exert control over * * * the property * * *

       [w]ithout the consent of the owner or person authorized to give consent. * *

       * If the property stolen is a motor vehicle, a violation of this section is

       grand theft of a motor vehicle, a felony of the fourth degree.

       {¶ 11} In Hope, the court found “theft of a motor vehicle is not completed until the

defendant has rendered the vehicle immediately capable of movement * * *. Until the car

is rendered immediately capable of movement, the criminal’s efforts amount to no more

than an attempt to obtain or exert control over the vehicle.” Id. at 66.




4.
       {¶ 12} “A person acts knowingly, regardless of purpose, when the person is aware

that the person’s conduct will probably cause a certain result or will probably be of a

certain nature.” R.C. 2901.22(B).

       {¶ 13} Here, the evidence shows Williams started the car and moved it to the front

of his business. He left the car’s engine running while he went back inside his business.

When Williams later returned to the car, he heard the car’s engine racing and opened the

driver’s door. Appellant jumped from the car and the car rolled backwards. According

to Williams’ testimony, “[o]bviously, he had put it in gear.” Williams climbed into the

car and found it was in neutral. He put the car back in park to prevent it from rolling

further. This evidence clearly established appellant knowingly exerted control over the

car since appellant was in the driver’s seat of the car with the engine racing and shifted

the gear from park to neutral. Appellant’s first assignment of error is not well-taken.

                               Second Assignment of Error

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

not instructing the jury on the lesser offense of attempted grand theft since there was no

evidence that appellant knowingly did anything to render the car capable of movement.

       {¶ 15} An instruction on a lesser offense is required only when the evidence at

trial would reasonably support both an acquittal of the crime charged and a conviction of

the lesser included offense. State v. Robb, 88 Ohio St.3d 59, 74, 723 N.E.2d 1019

(2000). If under any reasonable view of the evidence it is possible for the trier of fact to

find the accused not guilty of the greater offense and guilty of the lesser offense, the



5.
instruction on the lesser included offense must be given. State v. Wilkins, 64 Ohio St.2d

382, 388, 415 N.E.2d 303 (1980). The evidence must be considered in the light most

favorable to accused. Id.

       {¶ 16} Here, the evidence established that Williams left the car running in front of

his business. Later, when Williams returned to the car he heard the engine racing.

Appellant then jumped out of the driver’s side of the car and the car rolled backwards.

Williams got in the car and found it was in neutral. Williams had to shift the car into

park to prevent it from moving any further. This evidence clearly established appellant

knowingly exerted control over the car, since he got into a running car, caused the engine

to race and shifted the gear from park to neutral. Appellant moved well past a mere

attempt to steal the vehicle, and the jury could reasonably have concluded that appellant

was knowingly exercising control over the car. Appellant’s second assignment of error is

not well-taken.

       {¶ 17} Having found the trial court did not commit error prejudicial to appellant,

the judgment of the Lucas County Court of Common Pleas is affirmed. Pursuant to

App.R. 24, appellant is hereby ordered to pay the court costs incurred on appeal.



                                                               Judgment affirmed.




6.
                                                                      L-15-1199
                                                                      State v. Thompson




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Arlene Singer, J.                              ____________________________
                                                       JUDGE
Thomas J. Osowik, J.
                                               ____________________________
James D. Jensen, P.J.                                  JUDGE
CONCUR.
                                               ____________________________
                                                       JUDGE




          This decision is subject to further editing by the Supreme Court of
      Ohio's Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court's web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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