State v. Austin, 2013 Ohio 1159

A 2000 Dodge van owned by CSR Unlimited was stolen the night of Sept. 11, 2011; Wilder drove the van with Austin and Collins as passengers to Kohl’s, then to Joe’s Hawg Shop where Wilder used the van to help steal items including motorcycles and a strongbox, later loading them into a Ford F-250 truck with a construction trailer.
MSR employees left the Ford F-250 and trailer at Kohl’s; the truck and trailer were later discovered missing after MSR reported the theft.
Police connected the stolen van and truck to the suspects via GPS tracking; a high-speed pursuit followed the truck for 51 miles ending with a stop in a Cleveland neighborhood, where Austin fled on foot.
Austin, Wilder, and Collins were indicted on eight counts including grand theft of motorcycles, theft of a strongbox, receiving stolen property (van and truck), breaking and entering, safecracking, and vandalism; the jury found Austin not guilty on two counts and guilty on the remaining six; sentence was 15 months concurrent.
The trial court did not merge allied offenses; on appeal, the court remanded to apply Johnson v. State to determine merger and potential election of the offense by the State.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Austin’s count 8 conviction for receiving stolen property was supported by sufficient evidence	Austin argues no evidence he controlled or knew the truck was stolen	Austin contends he was merely a passenger with no knowledge of theft	Conviction supported; sufficient evidence under complicity theory
Whether the convictions were against the manifest weight of the evidence	Austin claims the evidence overwhelmingly favored him	State argues evidence supported the jury’s verdict	Convictions not against the manifest weight; supported by the record
Whether allied offenses should have merged under Johnson v. Brown/Johnson principles	Trial court failed to consider Johnson for merger	Remand appropriate to apply merger analysis	Remand for Johnson-based merger determination; State may elect the offense; proceed accordingly

State v. Jenks, 61 Ohio St.3d 259 (1991) (standard for sufficiency review; reasonable doubt standard)
State v. Thompkins, 78 Ohio St.3d 380 (1997) (sufficiency is a test of adequacy; beyond a reasonable doubt)
State v. Johnson, 128 Ohio St.3d 153 (2010) (allied offenses of similar import; conduct and same conduct test; merger if applicable)
State v. Asefi, 9th Dist. No. 26430, 2012-Ohio-6101 (2012) (remand where merger not previously determined; election of offense by State)
State v. Ziemba, 9th Dist. No. 25886, 2012-Ohio-1717 (2012) (merger and election procedures for allied offenses)