State v. CollinsState v. Collins
Rendered on February 2, 2012
Ron O‘Brien, Prosecuting Attorney, and Sarah W. Creedon, for appellee.
Steven A. Larson, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
DORRIAN, J.
{¶1} Defendant-appellant, Joseph R. Collins, Sr. (“appellant“), appeals from his convictions in the Franklin County Court of Common Pleas on charges of two counts of receiving stolen property. For the reasons that follow, we affirm.
{¶2} On Monday, June 8, 2009, Jan Lenko, an engineer for American Electric Power (“AEP“), arrived for work at AEP‘s Dolan Lab electrical laboratory in Groveport to discover that, during the previous weekend, someone had cut the security fence and stolen a significant amount of copper wire. Carrie Kim Campbell, AEP‘s regional security coordinator, received a report that copper wire had also been stolen from AEP‘s adjacent
{¶3} Two days prior to the discovery of the thefts, on Saturday, June 6, 2009, appellant sold 113 pounds of copper wire to Recycling Exchange on Westerville Road. He was paid $1.55 per pound for a total of $175.15. At the same time, appellant‘s son, Joseph R. Collins, Jr. (“Cоllins Jr.“), sold 840 pounds of copper wire to Recycling Exchange for the same price per pound, for a total of $1,302. Jerry Vanderkooi was working at Recycling Exchange when these transactions took place. He identified the wire sold by appellant as bare bright copper wire as depicted in State‘s Exhibits 1 and 2. Lenko testified that the wire depicted in Exhibits 1 and 2 is not wire from Dolan Lab; however, AEP does use that type of copper wire. These transactions were videotaped. Although she cаnnot be seen on the videotape, Vanderkooi testified that an unidentified woman accompanied appellant and his son during the transaction. All three individuals arrived and departed in the same vehicle bearing license plate number EPJ 7238. Vanderkooi testified that appellant had sold copper wire at Recycling Exchange previously with no problems.
{¶4} On Monday, June 8, 2009, the same day Lenko discovered the theft of copper wire at Dolan Lab, Rachel Munn (“Munn“), sold 74 pounds of number two insulated wire and 477 pounds of number one bare bright copper wire to IH Schlezinger,
{¶5} Lenko and Campbell identified the wire sold to IH Sсhlezinger and seized by the police as AEP wire. (Tr. 117-23; 158-66.) Lenko estimated the value of the wire stolen from Dolan Lab to be $2,850. (Tr. 123-24.)
{¶7} A jury trial was held, and the jury was instructed on complicity. Appellant was found guilty of two counts of receiving stolen property. The jury made a specific finding, as to both counts, that the value of the property involved was $500 or more and less than $5,000.
{¶8} Appellant appeals the guilty verdicts, setting forth the following two assignments of error for this court‘s review:
I. THE TRIAL [COURT] EERRED [sic] WHEN IT ENTERED JUDGMENT AGAINST THE APPELLANT WHEN THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A CONVICTION OF TWO COUNTS OF RECEIVING STOLEN PROPERTY.
II. THE TRIAL COURT VIOLATED JOSEPH R. COLLINS, SR. RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN IT ENTERED JUDGMENT OF CONVICTION FOR TWO COUNTS OF RECEIVING STOLEN PROPERTY WHEN THE EVIDENCE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THE FIFTH AND FORUTEENTH [sic] AMENDMENTS TO THE U. S. CONSTITUTION, AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.
{¶10} In reviewing a challenge to the sufficiency of the evidence, an appellate court must determine “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.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded by constitutional amendment on other grounds as recognized in State v. Smith, 80 Ohio St.3d 89, 102, 684 N.E.2d 668 (1997). In reviewing a сhallenge to the manifest weight of the evidence, ” ‘[t]he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines 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. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder‘s resolution of the conflicting testimony.” Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 17 L.Ed.2d 652 (1982). This discretionary authority ” ‘should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.’ ” Thompkins at 387, quoting Martin at 175.
{¶11} The receiving stolen property statute prohibits an individual from “receiv[ing], retain[ing], or dispos[ing] of property of another knowing or having reasonable cause to believe that the property has been obtained through cоmmission of a theft offense.”
{¶12} ” ‘[A] person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist.’ ” State v. Skinner, 10th Dist. No. 08AP-561, 2008-Ohio-6822, 2008 WL 5381930, ¶12, quoting
{¶13} Appellаnt did not testify in this case. This is significant because: (1) the possession of stolen copper wire was never satisfactorily explained; and (2) there was no direct evidence that appellant knew or had reasonable cause to believe that the copper wire had been obtained through theft. Therefore, the jury was left to consider only evidence of surrounding circumstances.
{¶14} In a case involving water meters stolen from the City of Cleveland Water Department which were received by the defendant and ultimately sold as scrap, the Eighth District Court of Appeals outlined four factors, or surrounding circumstances, to consider when determining whether reasonable minds could conclude whether a defendant knew or should have known property has been stolen: ” ‘(a) the defendant‘s unexplained possession of the merchandise, (b) the nature of the merchandise, (c) the frequency with which such merchandise is stolen, (d) the nature of the defendant‘s commercial activities, and (e) the relatively limited time betwеen the thefts and the recovery of the merchandise.’ ” State v. Davis, 49 Ohio App.3d 109, 112, 550 N.E.2d 966 (8th Dist.1988), quoting State v. Brooks, 8th Dist. No. 50384, 1986 WL 2677, *3 (Feb. 27, 1986).
{¶15} Here, neither the appellant, Collins Jr., Munn, Jason Collins, nor any other person involved in the three transactions at the Recycling Exchange and IH Schlezinger, provided a satisfactory explanation for the possession of the copper wire. Campbell testified that the nature of the copper wire was that it was used “mostly in utilities, a lot of times in big industrial commercial construction * * * [not in homes].” (Tr. 166.) She also
{¶16} Other surrounding circumstances also point to appellant knowing or having reasonable cause to believe that the copper wire was stolen. Campbell testified that the individuals who steal сopper wire often will “burn the rubber coating off of it because of its value or they will cut it and remove it before they take it in for scrap.” (Tr. 167.) Detective Jack E. Addington, a 20-year veteran of the Columbus Police Department and a detective for three years in the property crimes/recovery unit of the department, testified that he is responsible for investigating thefts of copper and other scrap metals. As part of his job, he patrols metal scrap yards. Detective Addington testified that sometimes thieves “try to throw you off by burning the insulation off of it. It takes the name of whatever it says on it. It‘s harder to identify copper that‘s had the insulation burned off of it.” (Tr. 139.) Detective Addington further testified that scrap yard operators are required to electronically provide reports of their transactions to the police department. When investigating the attempted
{¶17} Thus, there was direct evidence of several significant facts common to the three transactions at the Recycling Exchange and IH Schlezinger. First, the same vehicle was used. Second, a member of the Collins family was involved. Third, the copper wire involved was identified as copper wire used by AEP.
{¶18} Furthermore, there is indirect evidence of even more significant facts common to the threе transactions. First, although direct evidence only pointed to her involvement in the transactions at IH Schlezinger, a jury could infer that Munn was also
{¶19} Therefore, taking all the direct and indirect evidence into consideration, we find there was both sufficient evidence and that it was reasonable for the jury to infer and find that appellant had knowledge or reasonable cause to believe that the property involved in Counts 1 and 2 was obtained through a theft offense.
{¶20} Next, we consider the question of whether appellant aided or abetted Collins Jr. and Munn because it is central to the determination of value.
{¶22} The same evidence we outlined above regarding whether appellant had knowledge or reasonable cause to believe that the copper wire had been stolen also constitutes surrounding circumstances we must consider in determining whether appellant aided and abetted Collins Jr. and Munn. Considering the same evidence, as well as the fact that appellant actually sold copper wire with his son, Collins Jr., at the Recycling Exchange and unloaded the copper wire for Munn to sell the copper wire at IH Schlezinger, we find there was sufficient evidence and that it was reasonable for the jury to find that appellant aided and abetted both Collins Jr. as to Count 1 and Munn as to Count 2.
{¶24} As to both counts, the jury made special findings that the value of the property involved was more than $500 and less than $5,000. Appellant challenges these findings. Although the state suggests in its brief that value should be determined by fair market value (appellee‘s brief at 4), the jury was instructed that value should be determined pursuant to
{¶25} The only evidence presented regarding the replacement cost of the copper wire was the testimony of Lenko that the value of the wire stolen from Dolan Lab was roughly $2,850. However, Lenko did not specifically testify as to how much of that figure was attributable to the copper sold by appellant and Collins Jr. at the Recycling Exchange and how much was attributable to the copper sold by Munn at IH Schlezinger. Lenko also testified that 4/0 solid wire costs AEP $4.22 per pound (Tr. 123), but it is not clear from
{¶26} Appellant‘s challenge to the sufficiency and manifest weight of the evidence pertains tо the issue of whether appellant aided and abetted Collins Jr. and Munn, not to whether evidence of fair market value can be used to determine replacement cost.4 Furthermore, Lenko testified that the value of copper wire sold for scrap is less than the replacement value of the same copper wire. (Tr. 124.) Finally, again we note that the state suggests in its brief that this court use a fair market value approach to determine the value of the copper wire involved. Therefore, we focus our discussion on the evidence of fair market value presented for the copper wire involved in Counts 1 and 2.
{¶27} Appellant argues that, at the Recycling Exchange, he sold 113 pounds of wire for a total price of $175.15; whereas, his son Collins Jr., sold wire for a total price of $1,302.00. Appellant posits that, even though he and his son came together and left together, Recycling Exchange wrote him a separate ticket and paid him with a separate check. He argues that this evidence is not sufficient to infer that appellant was aiding and abetting the sale of the wire sold by his son in the amount of $1,302 or that his separate transaction was somehow part of a greater scheme. Appellant argues that, at best, the evidence only supports a conviction for a misdemeanor.
{¶28} Obviously, the fair market value of the copper wire which appellant himself sold, $175.15, does not equal or exceed $500.00. Therefore, as appellant suggests, the
{¶29} IH Schlezinger paid Munn $897.40 for the wire that she sold on June 8, 2009. Here, again, the real question is whether appellant aided and abetted Munn in the sale of wire. Appellant argues that he did not participate in this sale and that the evidence of his presence at the time is not sufficient to infer that he aided and abetted Munn. He challenges the evidence that Kerek saw him helping Munn unload material from a van and the testimony of Kerek that he had been on the lookout for specific stolen wire because AEP had notified him of the theft earlier that day. We reject these arguments, and for the reаsons explained above, we find that there was both sufficient evidence and that it was reasonable for the jury to find the value of copper wire involved in Count 2 equals or exceeds $500.
{¶30} For the foregoing reasons, both of appellant‘s assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.
BROWN, P.J., and KLATT, J., concur.
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