In re T.S.G.

2014 Ohio 5708

• Court: Ohio Court of Appeals
• Decided: December 29, 2014
• Docket: 2014-L-051
• Status: Published

Opinion

[Cite as In re T.S.G., 2014-Ohio-5708.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

IN THE MATTER OF: T.S.G., : OPINION DELINQUENT CHILD. : CASE NO. 2014-L-051

Criminal Appeal from the Lake County Court of Common Pleas, Juvenile Division, Case No. 2014 DL 00061.

Judgment: Affirmed.

Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Appellee).

Christopher J. Boeman, 3537 North Ridge Road, Perry, OH 44081 (For Appellant).

THOMAS R. WRIGHT, J.

{¶1} This appeal is from the final dispositional order in a juvenile proceeding

before the Lake County Court of Common Pleas, Juvenile Division. Following a bench

trial, the trial court found beyond a reasonable doubt that appellant, T.S.G., was a

delinquent as a result of committing the offense of receiving stolen property, a fourth-

degree felony if committed by an adult. Appellant argues that the “true” finding is

against the manifest weight of the evidence.

{¶2} Tom and Terri Epple live in the Village of Madison, Ohio, and are the

president and vice president, respectively, of the Madison Youth Soccer League. Once

a year for over twenty-five years, the soccer league has hosted a major weekend tournament that is attended by over 150 teams from Ohio and various adjacent states.

The tournament is played at five different locations in the village, and the teams are

bracketed according to age groups.

{¶3} In 2013, registration for the tournament was held on Friday evening,

November 1. Since each team was required to pay a registration fee, the soccer

league received over $12,000 in cash and checks over a three-hour period. These

funds were placed in four lockboxes which were returned to the Epples at the end of

the evening.

{¶4} The Epples placed the four lockboxes in their car and ultimately returned

to their home on West Main Street in Madison. Since the funds in the lockboxes had

already been counted, they decided to leave them in the car overnight. Besides the

lockboxes, Terri Epple left approximately $140 of league funds in a plastic bag inside

the vehicle’s glove compartment. She had been using those funds earlier that day to

purchase minor items needed for the tournament.

{¶5} Early the next morning, the Epples drove to one of the tournament

locations to assist in coordinating the event. However, upon their arrival, they realized

that the four lockboxes and the separate funds in the glove compartment were no

longer in the car. They further discovered that a bag of league t-shirts had been taken

from the car. After determining that the foregoing items were stolen the previous night

as the vehicle sat in their driveway, the Epples contacted the village police department,

and an investigation ensued.

{¶6} The street upon which the Epples reside, West Main, intersects with Eagle

Street a short distance from their home. Tracy Shandle lives with her son, Michael

2 Zarack, at 68 Eagle Street. Despite being on a different street, the Shandle residence

is relatively close to the Epple home. During the winter months of each year, it is

possible to see the Shandle residence from the Epple’s yard, and vice versa.

{¶7} As of November 1, 2013, Michael Zarack was fifteen years old and was

attending high school. Michael had a group of friends with whom he would spend time

both at his mother’s home and in the Eagle Street neighborhood. These friends

included appellant and Trevor Coffin. On the evening of November 1, both appellant

and Trevor decided to spend the night with Michael at the Shandle home.

{¶8} Directly adjacent to the Shandle home is a four-unit apartment building.

The bottom floor of this building has an enclosed area not connected to any of the four

apartments but used by the tenants for storage. Although this “common” area has an

outside door that was latched, it was accessible to anyone, even a non-resident, once

inside the building.

{¶9} Jeremiah White and his fiancée were tenants in one of the units on the

night of the theft at the Epple residence. Prior to the incident, White’s fiancée was

friendly with Tracy Shandle and Michael Zarack. As a result, White recalled seeing

Michael and his friends “hanging out” by the door to the enclosed area.

{¶10} In the days immediately following the theft, the village police did not have

any leads. However, approximately three weeks later, White was returning Halloween

decorations to the enclosed storage area when he noticed the four lockboxes sitting in

a white garbage bag. Since White had never seen the lockboxes before, he asked the

other tenants whether they belonged to any of them. When no one claimed the

lockboxes, White instructed his fiancée to take them to the village police.

3 {¶11} Upon determining that lockboxes belonged to the soccer league and that

all of the tournament registration funds had been stolen from them, the police started to

interview various individuals in the Eagle Street neighborhood, including Tracy

Shandle, Michael Zarack, appellant, and some of Michael’s other friends. At the

conclusion of the investigation in January 2014, a complaint was filed charging

appellant with six crimes relating to the theft of the soccer league property in the

Epples’ vehicle. He was charged with one count of receiving stolen property, one

count of grand theft, and four counts of safecracking. As to the count of receiving

stolen property, the complaint alleged that appellant had exercised control over the

lockboxes, and that the lockboxes contained U.S. currency and checks of a value

between $7,500 and $150,000.

{¶12} At trial, although the state presented ten witnesses, its case against

appellant was primarily based upon the testimony of Michael Zarack and Tracy

Shandle. Michael testified that, although appellant had already left his mother’s house

when he awoke on November 2, appellant came back twice to the house during that

day. The second time appellant came to the house, he was carrying four lockboxes

that were similar in color to the lockboxes taken from the Epples’ vehicle. According to

Michael, once he saw the lockboxes, he immediately asked appellant to leave his

mother’s house, and they began to argue about them. Tracy Shandle then testified

that when she heard the boys yelling at each other, she walked into the living room

and, upon seeing the lockboxes, ordered appellant to take the lockboxes and leave.

However, before appellant left, Michael got a white garbage bag from the kitchen to

assist appellant in carrying the lockboxes.

4 {¶13} Another friend of Michael, Brett Harbert, testified that, while Michael was

being held in detention on a separate matter for ten days starting on November 4,

2013, he went to Tracy Shandle’s home and asked for her permission to go into

Michael’s room to retrieve a personal item he had left there. When Tracy said it was

alright, he went into the room by himself and, while looking for his item, noticed two

“black boxes” pushed inside a dresser. Brett also testified that, on another occasion

after Michael was released from detention, he again visited the Shandle home and saw

appellant and Michael counting money. Michael additionally testified that after his

release from detention, he, Brett, and appellant were sitting in a truck taking pictures of

each other on their cell phones and that appellant pulled a plastic bag from his pants

pocket containing a roll of money.

{¶14} At the close of the evidence, the trial court found that the state did not

establish beyond a reasonable doubt that appellant had committed the one count of

grand theft and the four counts of safecracking. As to the single count of receiving

stolen property, though, the trial court made a finding of “true.” After a court magistrate

held a separate sentencing hearing, the trial court issued a judgment adopting the

magistrate’s decision as to sentencing. The court ordered that appellant be

institutionalized with the Ohio Department of Youth Services for a minimum period of

six months. However, the court then suspended the foregoing order and imposed

certain conditions, including that appellant be held in the county juvenile detention

facility for ninety days.

{¶15} On appeal to this court, appellant raises one assignment of error for

review:

5 {¶16} “The trial court erred to the prejudice of juvenile-appellant when it returned

a finding of “true” against the manifest weight of the evidence.”

{¶17} In challenging the “true” finding regarding the charge of receiving stolen

property, appellant first notes that, in discussing the evidence with the assistant

prosecutor during closing argument, the trial court stated that it did not find the

testimony of Tracy Shandle and Michael Zarack to be “very credible.” Building upon

this, appellant contends that if Shandle’s and Zarack’s testimony is completely

disregarded as unbelievable, there was no other evidence upon which the trial court

could predicate its ultimate “true” finding. He further argues that the trial court’s verdict

was logically inconsistent, in that if there was sufficient evidence to find that he

committed the crime of receiving stolen property, then he should have also been found

to have committed grand theft and safecracking.

{¶18} As an initial point, the trial court’s verdict on the charge of receiving stolen

property was not based upon appellant’s alleged retention of Terry Epple’s spare

money from the glove compartment or the bag of soccer league t-shirts. Instead, the

“true” finding was predicated upon his retention or possession of the four lockboxes.

As to this charge, the complaint expressly alleged that appellant “did receive, retain, or

dispose of certain property, being four (4) lockboxes containing U.S. currency and

checks, the property of another, one Terri L. Epple and/or Madison Soccer League,

* * *.” Furthermore, in stating its verdict on the record at the conclusion of the bench

trial, the trial court quoted the foregoing language from the complaint.

{¶19} Appellant’s challenge to the verdict is based upon the assumption that the

trial court had to rely upon Shandle’s or Zarack’s testimony in order to justify the “true”

6 finding. Citing the trial court’s statement that both Shandle and Zarack were not

credible witnesses, he infers from this that the trial court must have rejected all aspects

of their testimony. However, other statements made by the trial court during the

parties’ closing arguments support the conclusion that the court only rejected specific

parts of their testimony. Specifically, the statements indicate that the trial court did not

believe those aspects of the testimony which was intended to show that Zarack himself

played no role in the theft.

{¶20} In addition to testifying about appellant’s two visits to his mother’s

residence on November 2, 2013, Michael Zarack also testified as to the events of the

prior evening. He stated that, after watching television with appellant and Trevor

Coffin, he went to bed at approximately 11:00 p.m. He further stated that he slept

straight through until 10:00 a.m. the next morning, and that appellant had already left

by the time he awoke. Along the same lines, Tracy Shandle also testified that, on the

night appellant and Trevor slept over, she checked on the boys twice while they were in

Michael’s bedroom. According to Tracy, when she first checked at approximately

11:00 p.m., her son was asleep, but appellant was still awake watching television.

However, when she checked the second time at 3:30 a.m., appellant was gone, but

Michael was still asleep in the bedroom.

{¶21} During closing arguments, appellant’s trial counsel noted that there were

certain discrepancies between Shandle’s testimony and Zarack’s testimony concerning

when appellant visited their home the following day. Trial counsel also noted that,

although Zarack originally testified on direct examination that appellant did not attempt

to bring the lockboxes into the home until his second visit that day, he modified his

7 testimony on cross-examination by appearing to indicate that appellant brought the

lockboxes to the home on his first visit. In light of this, trial counsel asserted that the

testimony of both witnesses had to be rejected because they could not keep their

“stories” straight. In response, the trial court stated:

{¶22} “THE COURT: I think the more credible story is they saw - - he saw the

evidence, Michael saw the stolen stuff that they stole together and said, ‘Hey, get out of

here with that.’ That’s more credible to me.”

{¶23} In essence, the trial court was indicating that, while it did believe the

testimony as to appellant’s attempt to bring the four lockboxes into Shandle’s home the

next day, it did not believe the testimony of either Shandle or Zarack that Zarack never

left his room the night of the theft. In other words, the trial court concluded that

Shandle and Zarack were trying to hide Zarack’s role in the theft of the lockboxes.

However, its rejection of that aspect of the testimony did not cause the court to

discredit their entire testimony; i.e., the court still believed that both Shandle and

Zarack had seen appellant exercising control over the stolen lockboxes when he

brought them to Shandle’s residence the day after the theft.

{¶24} At another point during his closing argument, appellant’s trial counsel was

again emphasizing that, on cross-examination, Zarack appeared to indicate that

appellant brought the lockboxes with him during his first visit that day, at approximately

12:00 p.m. Trial counsel then maintained that Zarack’s version of the events was

illogical because no intelligent person would walk through the neighborhood in broad

daylight carrying the four lockboxes. In response, the trial court stated that it disagreed

with trial counsel’s argument, thereby again indicating that it found Zarack’s testimony

8 credible in relation to appellant’s possession of the lockboxes.

{¶25} As noted above, the trial court did assert during the state’s closing

argument that it found Shandle’s and Zarack’s testimony to be lacking in credibility.

But that assertion must be viewed in light of the foregoing two statements made during

appellant’s closing argument. Given that the two statements indicate that the trial court

believed Shandle and/or Zarack were telling the truth as to the events of November 2,

2013, the court’s earlier assertion regarding their credibility only applied to part of their

testimony.

{¶26} As a general proposition, the assessment of witness credibility lies solely

with the trier of fact; thus, an appellate court cannot substitute its judgment for the jury

or the trial judge. State v. Teague, 11th Dist. Trumbull No. 2011-T-0012, 2012-Ohio-

983, ¶30. As part of this discretion, the trier of fact is free to believe all, part, or none of

a witness’s testimony. State v. Williams, 11th Dist. Lake No 2012-L-078, 2013-Ohio-

2040, ¶21. “The trier of fact is in the best position to evaluate inconsistencies in

testimony by observing the witness’s manner and demeanor on the witness stand –

attributes impossible to gleam through a printed record.” Id.

{¶27} Pursuant to R.C. 2913.51(A), a person has committed the offense of

receiving stolen property when he has received, retained, or disposed “of property of

another knowing or having reasonable cause to believe that the property has been

obtained through commission of a theft offense.” The evidence establishes that the

outside of the four lockboxes had stickers stating that they belonged to the Madison

Soccer League; thus, anyone retaining the lockboxes would have reasonable cause to

believe that the items had been stolen. Furthermore, the testimony of Shandle and/or

9 Zarack constitutes some competent, credible evidence upon which a trier of fact could

find that appellant retained possession of all four lockboxes.

{¶28} The record also contains other circumstantial evidence supporting the trial

court’s verdict on the “receiving stolen property” charge. First, the evidence shows

that, on the evening of the theft, appellant spent the night at the Shandle residence,

which was only a short distance from the Epple home. Second, appellant did not stay

at the Shandle residence the entire night. Third, the lockboxes were in the Epples’

vehicle the entire night, making them readily accessible. Fourth, the four lockboxes

were ultimately found in a common area of an apartment building adjacent to the

Shandle residence. Fifth, the resident of the apartment building who subsequently

found the lockboxes had previously seen appellant in the building near the common

area. Sixth, a short period after the theft, a friend of both appellant and Zarack not only

saw two “black boxes” in Zarack’s bedroom, but also saw appellant and Zarack

counting a substantial amount of money in that bedroom.

{¶29} Finally, Terri Epple testified that the amount of currency and checks in the

lockboxes was greater than $7,500. Therefore, the record supports the trial court’s

“true” finding for the fourth-degree felony level of receiving stolen property.

{¶30} In addition, this court rejects appellant’s separate contention that the trial

court’s verdict was logically inconsistent. Even if it is assumed that the trial court’s

finding as to the “receiving stolen property” charge was inconsistent with the remainder

of its verdict, this is not a viable reason for reversing the “true” finding; i.e., an apparent

inconsistency in a trial judge’s verdict as to multiple criminal counts does not create an

inference of irregularity that would justify setting aside the guilty verdict. State v.

10 Colopy, 5th Dist. Knox No. 2011-CA-3, 2011-Ohio-6120, ¶47. Moreover, as Shandle’s

and Zarack’s combined testimony was primarily relevant to the elements of receiving

stolen property, a finding of true as to that offense did not mandate the same finding on

the theft and the safecracking charges.

{¶31} Even though Shandle’s and Zarack’s credibility was questioned

throughout the trial, the record does not support the conclusion that the trial court erred

in finding aspects of their testimony believable. Accordingly, as the trial court’s verdict

is not against the manifest weight of the evidence, appellant’s sole assignment is

overruled.

{¶32} The judgment of the Lake County Court of Common Pleas, Juvenile

Division, is affirmed.

CYNTHIA WESTCOTT RICE, J.,

COLLEEN MARY O’TOOLE, J.,

concur.