State v. Woodruff, 07 Ca 2972 (3-4-2008)State v. Woodruff, 07 Ca 2972 (3-4-2008)
{¶ 1} After being convicted of receiving stolen property for possessing two license plates that belonged to a neighbor, Thomas Woodruff appeals and claims the state failed to prove he possessed the plates while knowing, or having reasonable cause to believe, they were stolen. We conclude his conviction is supported by the weight of the evidence because one of the stolen plates was on Woodruff‘s van and he rеtrieved the other one from under his trash can after being confronted by the police. Moreover, reasonable minds could find Woodruff knew, or should have known, the plates were stolen because: 1) he offered no explanation for having them; 2) the nature of licеnse plates is such that they are issued to specific vehicles; 3) he was seen near the plates on the day they were stolen; and 4) he retrieved one of the plates from underneath a trash can where he apparently tried to hide it.
{¶ 2} Woodruff also contеnds the trial court abused its discretion when it sentenced him to prison rather than finding he was suitable for community control sanctions. He bases this assertion on the court‘s failure to order a presentence investigation and its questions about Woodruff‘s prior record. However, a trial court is not required to order a presentence investigation prior to imposing a sentence. While the record does indicate there was concern by the court over whether the state had Woodruff‘s complete criminal history, the record cleаrly indicates the court considered the appropriate factors and conducted the proper analysis in imposing its sentence. Because Woodruff did in fact have prior felony convictions for trafficking in marijuana and possessing a weapon under а disability, the court could properly rely on those indicators of recidivism in imposing a prison term. And because the sentence was within the range provided by the statute, we cannot say it is contrary to law.
{¶ 3} Thus, we affirm his conviction and sentence.
I. Facts
{¶ 4} George Stevens took his car across the street so his neighbor, Tim Bevins, could give it a tune-up after work. The car remained at Bevins’ house for at least four or five days. However, before Bevins finished working on it, someone stole the license plates off the vehicle. Stevens filed a report with the police department, and a mоnth later saw one of the missing plates on the vehicle of Thomas Woodruff, who lived about a block away on the same street. After Stevens contacted the police, Officer Netter went to Woodruff‘s residence where he initially observed a license platе on Woodruff‘s van. Before he could contact Woodruff, he responded to two individuals across the street who asked him some questions. When he returned to Woodruff‘s
{¶ 5} Although Woodruff chose not to testify, he used cross-examination and testimony from his witnesses to establish that the victim, Stevens, had a long-term, live-in relationship with Woodruff‘s sister, Ruth Rhoades. He also introduced evidence that there was “bad blood” between Woodruff and Rhoades over the disposition of their mother‘s home upon her death. Woodruff received the home because he lived with his mother; Rhoades wanted him out and threatened to have him put in jail to acсomplish that goal. Thus, Woodruff‘s primary defense was that Stevens and Rhoades were framing him. In fact, the defense provided a witness who heard Rhoades say she was going to walk down to Woodruff‘s and put the plates on his vehicle. In spite of this testimony, the jury convicted Woodruff and the court sentenced him to ten months imprisonment.
II. Assignments of Error
{¶ 6} Woodruff raises two assignments of error in this appeal:
1) Appellant‘s conviction is against the manifest weight of the evidence.
2) The trial court abused its discretion in sentencing appellant to jail time when the record failed to justify the sentence.
III. Substantial Credible Evidence
{¶ 7} In his first assignment of error, Woodruff claims the jury‘s verdict is against the manifest weight of the evidence. In reviewing a claim that a judgment is against the manifest weight of the evidence, we will not reverse a conviction where there is substantial evidence upon which the trier of fact could reasonably conclude that all of the elements of an offense have been proven beyond a reasonable doubt. State v. Eskridge (1988), 38 Ohio St.3d 56, 526 N.E.2d 304. “On the trial of a case, either civil or criminal, the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts.” State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus. See, also, State v. Thomas (1982), 70 Ohio St.2d 79, 434 N.E.2d 1356:
In determining whether the verdict was against 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. Davis (1988), 49 Ohio App.3d 109, 113, 550 N.E.2d 966. (Citations omitted).
(A) No person shall receive, retain, or dispose of property оf another knowing or having reasonable cause to believe that the property has been obtained through commission of a theft offense.
{¶ 8} Woodruff contends the state failed to prove he retained or received the license plates and that he did so either knowingly or having reasonable cause to believe
{¶ 9} Woodruff‘s argument concerning knowledge or a reasonable belief that the plates were stolen fails because of circumstantial rather than direct evidence. See State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph one of the syllabus (holding circumstantial and direct evidence have equal probative value). Absent an admission by a defendant, the state must rely on circumstantial evidence to satisfy the reasonable cause to beliеve element. See, e.g., State v. Reine, Scioto App. No. 06CA3102, 2007-Ohio-7221, at ¶ 23. This element of the crime involves an objective test of the accused‘s knowledge. Thus, the jury must look at all the facts and circumstances to determine whether a person of ordinary prudence should have known the property was stolеn. See State v. Hill, Pickaway App. No. 02CA11, 2002-Ohio-7368, at ¶ 11. Some of the circumstances the fact finder can consider are listed in Davis, at 112. They include: 1) the accused‘s unexplained possession of the property; 2) the nature of the property; 3) the frequency with which such property is stolen; 4) the nature of the accused‘s commercial activity; and 5) the length of time between the theft and recovery of the property.
{¶ 10} Here we are dealing with stolen license plates. They are a type of property that the state issues to specific vehicles; they are not interchangeable. Thus, it is clear that the owner of a vehicle should know he cannot have possession of someone else‘s plates or use them on his vehicle. Likewise, the true owner of the plates is not likely to throw them away while they are still good, nor loan them to a third party who might give them to the accused.
{¶ 11} Woodruff contends his lack of an explanation for having Stevens’ plates is not entitled to much persuasive value because Netter never asked why he had them. Even if this is true, there is more to the story of Woodruff‘s contact with Netter. Someone removed one of the plates from Woodruff‘s van in an apparent attempt to hide it from Netter after he parked his cruiser behind the van. Woodruff was near the van in his driveway shortly after the plate disappeared. And, he retrieved the plate from under his garbage can after being confronted by Netter. An attempt to hide property that does not belong to you is indicative of knowledge it may have been stolen. Not only did Woodruff attempt to hide the plate when Netter showed up, Bevens saw him looking at the vеhicle it came from shortly before the plates were discovered missing.
{¶ 12} Based upon the totality of the circumstances in the record, the jury could have reasonably inferred that Woodruff either knew or should have known the license plates had been obtained by а theft offense. Thus, the manifest weight of the evidence support its verdict.
IV. Sentencing
{¶ 13} Woodruff contends the trial court abused its discretion in sentencing him to ten months imprisonment. Notwithstanding the Supreme Court of Ohio decision in
{¶ 14} Here, Woodruff complains that the trial court did not order a presentence investigation before imposing sentencing. However,
In felony cases the court shall, and in misdemeanor cases the court may, order a presentence investigation and report bеfore imposing community control sanctions or granting probation.
{¶ 15} Thus, a presentence investigation is not mandatory where the court orders imprisonment rather than community control sanctions. See State v. Cyrus (1992), 63 Ohio St.3d 164, 386 N.E. 2d 94, syllabus, and State v. Furr, Licking App. No. 07CA00020, 2007-Ohio-5548, at ¶ 69.
{¶ 16} He also complains that the court failed to “individually look at the requirements of 2929.12 or 2929.13.” However, the court indicated at the sentencing hearing that it had considered
{¶ 17} Finally, Woodruff argues that the trial court acted solely on the basis of his prior record in deciding prison rather than community control was the appropriate sanction. In light of the trial court‘s foregoing references to
{¶ 18} Thus, we affirm his conviction and sentence.
JUDGMENT AFFIRMED.
It is ordеred that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgmеnt into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Ohio Supreme Court an application for a stay during the pendеncy of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Ohio Supreme Court in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Abele, P.J. McFarland, J.: Concur in Judgment and Opinion.