State v. Lollar-Owens

2011 Ohio 3568

• Court: Ohio Court of Appeals
• Decided: July 20, 2011
• Docket: 25538
• Status: Published

Opinion

[Cite as State v. Lollar-Owens, 2011-Ohio-3568.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 25538

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE CINDY L. LOLLAR-OWENS COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 09 11 3341

DECISION AND JOURNAL ENTRY

Dated: July 20, 2011

CARR, Presiding Judge.

{¶1} Appellant, Cindy Lollar-Owens, appeals her conviction out of the Summit County

Court of Common Pleas. This Court affirms.

I.

{¶2} This case stems from two incidents that occurred on August 17 and 19, 2009,

when the home of Ms. Deborah Miller was burglarized. On August 22, 2009, Lollar-Owens

pawned several pieces of jewelry, which were subsequently identified as jewelry that was

missing from Ms. Miller’s home after the burglaries. On November 16, 2009, Lollar-Owens was

indicted on one count of receiving stolen property in violation of R.C. 2913.51(A), a felony of

the fifth degree. Lollar-Owens pleaded not guilty.

{¶3} The case was tried to the bench on June 1, 2010. At the conclusion of the State’s

evidence, Lollar-Owens made a motion for acquittal. The trial court denied the motion. Lollar-

Owens did not put on a defense. Lollar-Owens was found guilty of receiving stolen property. 2

{¶4} On October 15, 2010, Lollar-Owens moved this Court for leave to file a delayed

appeal, which this court granted on October 20, 2010. Lollar-Owens raises two assignments of

error for review.

II.

ASSIGNMENT OF ERROR I

“THE TRIAL COURT ERRED IN DENYING APPELLANT’S CRIM. R. 29 MOTION AS THE STATE PRESENTED INSUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION.”

ASSIGNMENT OF ERROR II

“THE COURT CREATED A MANIFEST MISCARRIAGE OF JUSTICE AS [THE] VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

{¶5} Lollar-Owens argues that her conviction for receiving stolen property was not

supported by sufficient evidence and was against the manifest weight of the evidence. This

Court disagrees.

{¶6} Crim.R. 29 provides, in relevant part:

“(A) The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state’s case.”

{¶7} A review of the sufficiency of the State’s evidence and the manifest weight of the

evidence adduced at trial are separate and legally distinct determinations. State v. Gulley (Mar.

15, 2000), 9th Dist. No. 19600. “While the test for sufficiency requires a determination of

whether the state has met its burden of production at trial, a manifest weight challenge questions

whether the state has met its burden of persuasion.” Id., citing State v. Thompkins (1997), 78

Ohio.St.3d 380, 390 (Cook J., concurring). When reviewing the sufficiency of the evidence, this 3

Court must review the evidence in a light most favorable to the prosecution to determine whether

the evidence before the trial court was sufficient to sustain a conviction. State v. Jenks (1991),

61 Ohio St.3d 259, 279.

“An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. 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.” Id. at paragraph two of the syllabus.

{¶8} A determination of whether a conviction is against the manifest weight of the

evidence, however, does not permit this Court to view the evidence in the light most favorable to

the State to determine whether the State has met its burden of persuasion. State v. Love, 9th Dist.

No. 21654, 2004-Ohio-1422, at ¶11. Rather,

“an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact 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. Otten (1986), 33 Ohio App.3d 339, 340.

“Weight of the evidence concerns the tendency of a greater amount of credible evidence to support one side of the issue more than the other. Thompkins, 78 Ohio St.3d at 387. Further when reversing a conviction on the basis that it was against the manifest weight of the evidence, an appellate court sits as a ‘thirteenth juror,’ and disagrees with the factfinder’s resolution of the conflicting testimony. Id.” State v. Tucker, 9th Dist. No. 06CA0035-M, 2006-Ohio-6914, at ¶5.

This discretionary power should be exercised only in exceptional cases where the evidence

presented weighs heavily in favor of the defendant and against conviction. Thompkins, 78 Ohio

St.3d at 387.

{¶9} Lollar-Owens was charged with receiving stolen property in violation of R.C.

2913.51(A) which states that “[n]o person shall receive, retain, or dispose of property of another

knowing or having reasonable cause to believe that the property has been obtained through 4

commission of a theft offense.” Receiving stolen property is a felony of the fifth degree if the

value of the property involved is five hundred dollars or more and is less than five thousand

dollars. R.C. 2913.51(C).

{¶10} “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.” R.C.

2901.22(B).

{¶11} Fair market value of personal property is defined as “the money consideration that

a buyer would give and a seller would accept for property or services, assuming that the buyer is

willing to buy and the seller is willing to sell, that both are fully informed as to all facts material

to the transaction, and that neither is under any compulsion to act.” R.C. 2913.61(D)(3).

{¶12} “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. Brewer (July 19, 2000), 9th Dist. No. 99CA007483,

quoting State v. Jackson (1984), 20 Ohio App.3d 240, 242.

{¶13} The Supreme Court of Ohio and the United States Supreme Court have concluded

that, “‘[p]ossession of recently stolen property, if not satisfactorily explained, is ordinarily a

circumstance from which you may reasonably draw the inference and find, in the light of the

surrounding circumstances shown by the evidence in the case, that the person in possession knew

the property had been stolen.’” State v. Arthur (1975), 42 Ohio St.2d 67, 68, quoting Barnes v.

United States (1973), 412 U.S. 837. 5

Sufficiency of the Evidence

{¶14} Lollar-Owens argues that there was insufficient evidence to establish that the

value of the property was over $500.00 to warrant a felony conviction and that she knowingly

received stolen property.

{¶15} On August 17 and 19, 2009, Ms. Deborah Miller’s home in Akron, Ohio was

burglarized. Televisions, jewelry, a computer, and cars were taken. In regards to the jewelry,

Ms. Miller testified that three gold Omega chains and four rings were taken. She testified that

she did not give anyone permission to take these items from her. She explained that detectives

found her missing jewelry at a pawn store, Pawn Brokers of America, in Akron, Ohio.

{¶16} Ms. Miller testified that she paid $465.00 for the Patroke Kunzite ring, the receipt

for which was admitted into evidence without objection. She testified that she recently bought

one of the chains from her niece for $385. She also explained that one of the rings was her

mother’s diamond engagement ring.

{¶17} Mr. David Johnson testified that he has worked at Pawn Brokers of America for

nearly ten years. He testified that Lollar-Owens was a customer at Pawn Brokers of America for

several years. He testified that Lollar-Owens pawned six pieces of jewelry to the store. These

six pieces were subsequently determined by Sergeant David Garro of the Akron Police

Department to have been the jewelry taken from Ms. Miller.

{¶18} Mr. Johnson testified that customers are required to sign a “police card” for each

item that they pawn. He explained that the ‘police cards’ contain a description of the item

pawned and the amount the pawn store paid for each item. He testified that these cards are

picked up by the Akron Police Department several times a week. He testified that the “police 6

cards” for six pieces of jewelry that belonged to Ms. Miller were signed by Lollar-Owens on

August 22, 2009.

{¶19} Mr. Johnson further explained that the amount the pawn store pays for each item

is “a small percentage” of the actual value of the item, but that it is not part of his job to

determine the retail value of items pawned. He testified that the store does not ask customers

where their items came from, because it is impossible to determine if pawned items were stolen

property.

{¶20} Sergeant Garro testified that the following course of events occurred during his

investigation of one of the home invasions of Ms. Miller. He came to believe that Clifford Dion

Walters was involved in the home invasions. He discovered one of Ms. Miller’s larger chains

that had been stolen had been pawned by Ms. Diamond Roberts, who was Mr. Walters’ niece.

Ms. Roberts told Sergeant Garro that she “pawned [the chain] at the request of Clifford Dion

Walters.” Upon execution of a search warrant, some of Ms. Miller’s property was discovered at

Mr. Walters’ house. He began investigating all of Mr. Walters’ acquaintances and discovered

that Lollar-Owens was Mr. Walters’ aunt. He then went over pawn lists and discovered the

jewelry pawned by Lollar-Owens. He photographed the jewelry at the pawn store and showed

the photographs to Ms. Miller. Ms. Miller identified the jewelry as hers and correctly stated the

sizes of all the rings, convincing him the jewelry was her property.

{¶21} Lollar-Owens gave a recorded statement to Sergeant Garro which was admitted

into evidence without objection. Lollar-Owens admitted that she could not remember how she

had acquired the jewelry. Lollar-Owens also acknowledged that Mr. Walters was her nephew.

{¶22} Reviewing the evidence in a light most favorable to the State, this Court

concludes that any rational trier of fact could have found the essential elements of the charge of 7

receiving stolen property were proved beyond a reasonable doubt. See Jenks at paragraph two of

the syllabus. The receipt for the Patroke Kunzite ring and Ms. Miller’s testimony demonstrates

that the fair market value of one of the rings was $456.00, since that is the amount Ms. Miller

was willing to pay for the ring and the seller accepted. Likewise, Ms. Miller testified that she

had recently purchased one of the gold Omega chains from her niece for $385.00. The combined

value of these two pieces of jewelry exceeds $500.00. Accordingly, there was sufficient

evidence to establish that the fair market value of the jewelry pawned by Lollar-Owens exceeded

$500.00.

{¶23} Furthermore, the State proved beyond a reasonable doubt that Lollar-Owens

knowingly received stolen property. Ms. Miller testified that the jewelry had been taken from

her home without her permission. Lollar-Owens had physical dominion over the jewelry, as she

pawned the jewelry a few days after the home invasion. The State presented evidence that the

jewelry pawned by Lollar-Owens did belong to Ms. Miller. Lollar-Owens could not

satisfactorily explain how she obtained the jewelry. Accordingly, there was sufficient evidence

to establish that Lollar-Owens knowingly received stolen property. Lollar-Owens’ first

assignment of error is overruled.

Manifest Weight of the Evidence

{¶24} Although Lollar-Owens told the police that she lawfully possessed the jewelry

that she pawned and that she did not buy it from Mr. Walters or pawn it for him, this Court will

not overturn the trial court’s verdict on a manifest weight of the evidence challenge only because

the trier of fact chose to believe certain witness’ testimony over the testimony of others. State v.

Crowe, 9th Dist. No. 04CA0098-M, 2005-Ohio-4082, at ¶22. 8

{¶25} A thorough review of the record indicates that this is not the exceptional case,

where the evidence weighs heavily in favor of Lollar-Owens, and there is no indication that the

trial court lost its way and committed a manifest miscarriage of justice in convicting Lollar-

Owens of receiving stolen property. The weight of the evidence supports the conclusion that

Lollar-Owens knowingly received stolen property. The State presented evidence that the jewelry

pawned by Lollar-Owens belonged to Ms. Miller. Lollar-Owens could not explain how she had

obtained the jewelry. Ms. Miller testified that she paid $465.00 for one of the rings and $385.00

for one of the chains, the combined total of which exceeds $500.00. Accordingly, Lollar-Owens’

conviction for receiving stolen property is not against the manifest weight of the evidence.

Lollar-Owens’ second assignment of error is overruled.

III.

{¶26} Lollar-Owens’ assignments of error are overruled. The judgment of the

Summit County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is 9

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT

WHITMORE, J. DICKINSON, J. CONCUR

APPEARANCES:

MARTHA HOM, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant Prosecuting Attorney, for Appellee.