State v. EmeryState v. Emery
Tim A. Dugan, for appellant.
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YARBROUGH, J.
{¶ 1} Defendant-appellant, Edward Emery, appeals his conviction following a one-day jury trial for receiving stolen property in violation of
{¶ 2} The material facts are not in dispute. The story begins on January 23, 2011, when Roque Brown, an off-duty Toledo police officer, was returning a landscaping trailer that he had borrowed to Yoder Machinery Sales, located in Holland, Ohio. Before Brown became a police officer, he had once worked there and knew the owner and several of the employees. The business, housed in a large warehouse, buys and sells metal-shaping equipment such as dies, rollers, lathes and stamping devices. When Brown arrived, it was 11:15 a.m. on a Sunday morning, a light snow was falling, and Yoder Machinery was closed. From the front parking lot, a narrow road runs alongside the warehouse and then around behind it to an area where unused trailers are kept and scrap metals stored. Brown was maneuvering his truck to get the trailer parked next to the building when a “burnt orange Mazda Miata” came out from the back and started up the road.
{¶ 3} The Miata slowed to a stop about five feet from the passenger side of Brown‘s truck. The driver started to speak and Brown, because it was hard to hear, got out and came around to get closer. Brown testified that the driver said “[he was] just using the bathroom, that [he] had to go, and they were just leaving right away.” The driver was “an older white male, had white hair, and was kind of scruffy looking. Had a beard, unshaven in appearance.” Brown added that the man‘s “hair was wild and wavy, looked like a lion‘s mane and he was unshaven - looked unkempt.”
{¶ 5} Later that morning at the warehouse, Yoder met Holland police officer, Jon Dellabona, and related Brown‘s information as they went to the back. Checking the ground carefully, Dellabona could detect no “yellow snow” or other telltale trace of anyone having “used the facilities” earlier that morning. Yoder, however, discovered something. A large industrial wire basket that had been filled with triangle-shaped aluminum castings, called “chucks” or “chuck jaws,” was now empty. There were fresh footprints in the snow around the basket as well as tire tracks nearby. The pattern of the tire tracks indicated that a vehicle had been backed up to the basket.1
{¶ 6} Eventually Dellabona traced the license plate number to Emery‘s wife, Hedwig, and obtained the address of their home in Sylvania, Ohio. Arriving there early on the morning of January 24, Dellabona observed a large number of aluminum chucks scattered around the yard, although the recent snowfall had covered some of them. Some chucks were lying in piles, while others were strewn about individually near the
{¶ 7} After Coates left, an orange Mazda Miata pulled into the driveway bearing the same license plate number Brown had given Yoder some twenty hours earlier. Dellabona confronted the male driver, asked for identification, and found that he was not Emery but a man named David Post. The officer, checking further, soon learned that Post had active warrants for his arrest as well as a suspended driver‘s license. He was taken into custody and placed in Dellabona‘s vehicle. Other officers arrived to help secure the scene and Coates soon returned with the search warrant. Before proceeding on the warrant, however, Dellabona summoned both Brown and Yoder to the residence. Once there, Yoder confirmed that the chucks in Emery‘s yard were the same ones missing from his business. Brown likewise identified the Miata as the same vehicle he saw at Yoder‘s, but indicated that Post had not been its driver.
{¶ 8} At that point it was now mid-morning, and Dellabona and Coates decided to act on the warrant. When yelling and repeatedly banging on the rear door of the home prompted no response, the officers kicked in the door and entered the kitchen. This commotion flushed out Emery and his wife from an adjacent bedroom. Emery was now clean-shaven. Dellabona described him as having “the appearance of a man [who] is carrying a beard for some time and then shaves it off suddenly. There [were] slight tear
{¶ 9} The officers explained why they were there and armed with the search warrant. Emery denied knowing how Yoder‘s chucks got on his property. He indicated that he did sculpturing and people often left materials at his house. In a written statement to Dellabona, Emery stated that the Miata had “mechanical problems” and that early on the evening of January 22 he had given Post the car to repair.
{¶ 10} At trial, Brown identified Emery, now sans beard, as the driver of the orange Miata he encountered at Yoder Machinery. Yoder testified that as many as 75 chucks had been in the basket before the theft, although only 22 were recovered from Emery‘s yard. More than 50 were still missing. He explained that each matching set of three chucks has a value between $900 and $1,000, while an individual chuck is worth about $250. No one had been given permission to remove the chucks from company property. When the state concluded its case-in-chief, Emery moved for a
II. Analysis
{¶ 11} Emery has assigned two errors for our review:
1) Appellant‘s conviction was not supported by legally sufficient evidence.
2) Appellant‘s conviction fell against the manifest weight of the evidence.
A. Sufficiency
{¶ 12} A sufficiency review entails an elements-based analysis of the evidence. “In essence, sufficiency is a test of adequacy.” State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). An appellate court must determine whether the state presented enough evidence on each element of the crime to allow the case to go to the jury. Id. No assessment of weight—persuasive force—is involved. “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.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1981), paragraph two of the syllabus, superseded by constitutional amendment on other grounds, State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668 (1997).
{¶ 13}
{¶ 14} “(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.”2
{¶ 15} This reasonably plain language means that the state need establish only two elements to gain a conviction for this offense: (1) the defendant received, retained or
{¶ 16} Emery does not challenge the fact that the chucks were removed from Yoder Machinery by theft nor their value. Instead, Emery argues that the state‘s evidence failed to show he “received” the chucks within the meaning of the first element above. He highlights the fact that the chucks were recovered outside his home, not within it, and he was not seen handling any of the chucks. But if these points purport to create some distinction, they are without a relevant legal difference. Emery does not deny his awareness of the chucks, nor that they arrived in his yard en mass the day after being stolen.
{¶ 17} “‘Receive’ is not defined in the statute, but a generally accepted definition of receive is to acquire ‘control in the sense of physical dominion over or the apparent legal power to dispose of said property.‘” State v. Rivers, 9th Dist. No. 10CA009772, 2011-Ohio-2447, ¶ 6, quoting State v. Jackson, 20 Ohio App.3d 240, 242, 485 N.E.2d 778 (1984). Further, we have held that a conviction for this crime may be based on the defendant‘s “constructive possession of the property. Constructive possession exists when an individual exercises dominion and control over an object, even though that object may not be within his immediate physical possession.” State v. Rodriguez, 6th
{¶ 18} Emery next maintains there was no direct evidence that he knew or would have had a reasonable basis for believing the chucks were the product of a theft offense—the second element above. When a disputed element of an offense is not susceptible of proof by direct evidence, circumstantial evidence may be used to provide an inference of guilt. State v. Hollenstein, 6th Dist. No. L-08-1164, 2009-Ohio-4773, ¶ 27. In a prosecution for receiving stolen property, the jury may infer guilty knowledge when the defendant‘s possession of recently stolen property either goes unexplained or is not satisfactorily explained in the context of the surrounding circumstances, as shown by the evidence. State v. Arthur, 42 Ohio St.2d 67, 68-69, 325 N.E.2d 888 (1975).3
{¶ 20} On this record there is little question that sufficient evidence was presented from which the jury could infer, beyond a reasonable doubt, that Emery knew or had reasonable cause to believe the chucks were stolen property. Emery was in receipt of a substantial number of the chucks less than 24 hours after they went missing from Yoder Machinery. The chucks themselves are a unique type of material—by shape, weight, and the role they serve in fabrication work—and, being aluminum, their inherent value for resale is an obvious attraction.
{¶ 21} More important is the utter weakness of Emery‘s explanation for their sudden presence at his home. Because Emery neither testified nor presented any witnesses, the only explanation the jury heard came from Officers Dellabona and Coates. They relayed Emery‘s pithy statement that went no further than to blame unknown
{¶ 22} Undoubtedly strengthening these circumstantial considerations was the license plate match that led to Emery‘s wife and the direct evidence Brown provided in his identification testimony. Emery‘s statement that he gave Post the car on January 22 implied that Post had been driving the orange Miata the morning the chucks disappeared. This set up a direct conflict with Brown‘s testimony, given that he placed Emery in the car after it emerged from behind the warehouse, and his testimony went unrebutted. If believed, as it indeed was, it more than sufficed to strengthen the reasonableness of
{¶ 23} Accordingly, the first assigned error is not well-taken.
B. Manifest Weight
{¶ 24} In criminal appeals challenging the jury‘s verdict on manifest-weight grounds, the issue is whether the state met its burden of persuasion. Thompkins, 78 Ohio St.3d at 390, 78 N.E.2d 541 (Cook, J. concurring). “Weight is not a question of mathematics, but depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387. Sitting as the putative “thirteenth juror,” the appeals court must “examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether 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.‘” (Internal citations omitted.) State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 81.
{¶ 25} Where conflicts or gaps exist in the testimonial evidence that plainly bear on what the jury could reasonably believe or disbelieve, the standard to be met before overturning a guilty verdict based on manifest weight is necessarily a high one. State v. Fell, 6th Dist. L-10-1162, 2012-Ohio-616. Because guilty knowledge may be inferred
{¶ 26} Emery‘s jury obviously attached little credibility to his claim that he did not know how the chucks got to his home—except, possibly, as material passed on to a self-described sculptor by an unknown patron in a random act of largesse. We see no reason to second-guess their assessment.
{¶ 27} This case, moreover, is somewhat unique in that the weight of Brown‘s identification testimony impacts what would otherwise be a purely circumstantial case. Notwithstanding Emery‘s haphazard removal of his beard, Brown confirmed that he was behind the wheel of the Miata, not Post. The jury was fully entitled to believe Brown and to infer that Emery had tried to alter his appearance shortly before the police descended on him with the search warrant.
{¶ 29} Accordingly, the second assigned error is not well-taken.
III. Conclusion
{¶ 30} On consideration whereof, the judgment of the Lucas County Court of Common Pleas is hereby affirmed. Pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
JUDGE
Arlene Singer, P.J.
JUDGE
Stephen A. Yarbrough, J.
JUDGE
CONCUR.
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.