State v. Newman

2019 Ohio 3394

• Court: Ohio Court of Appeals
• Decided: August 23, 2019
• Docket: 2018-CA-131
• Status: Published

Opinion

[Cite as State v. Newman, 2019-Ohio-3394.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2018-CA-131 : v. : Trial Court Case No. 2017-CR-796 : NATHANIEL S. NEWMAN : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 23rd day of August, 2019.

JOHN M. LINTZ, Atty. Reg. No. 0097715, Clark County Prosecutor’s Office, Appellate Division, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

BRYAN SCOTT HICKS, Atty. Reg. No. 0065022, P.O. Box 359, Lebanon, Ohio 45036 Attorney for Defendant-Appellant

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FROELICH, J. -2-

{¶ 1} Nathaniel Newman appeals from a Clark County Common Pleas Court

judgment that convicted him of grand theft under R.C. 2913.02. The judgment of the trial

court will be affirmed.

I. Facts and Procedural History

{¶ 2} The State’s evidence at trial established the following facts. At approximately

6:40 a.m. on December 4, 2017, Newman and Kevin Bowshier entered a Lowe’s home

improvement store and walked empty-handed to the outdoor power equipment

department. As seen on surveillance video, after some discussion, each man brought a

chainsaw from the shelf to the front return desk. Bowshier attempted to return one

chainsaw in exchange for the other. Newman waited beside Bowshier, then eventually

walked away. Head cashier Karly Schwenn would not complete the return because

Bowshier could not produce a receipt or the credit card used for the alleged purchase.

Bowshier picked up a chainsaw and walked out, setting off the security tag alarm, and

prompting Schwenn to file a theft report with loss prevention manager Joseph Derringer.

Derringer assembled a theft report including the video surveillance footage of Newman

and Bowshier, and he called the police.

{¶ 3} At approximately 9:40 a.m. on the same date, Newman and Bowshier pulled

into the lot of Sunbelt Rentals, adjacent to Lowe’s. Sunbelt service mechanic Marvin

Epperson was near the parking lot repairing a piece of equipment when the two men

pulled up in a red Ford F-150 with a spare tire installed on the right-front. Newman exited

the truck’s passenger side, approached Epperson, and stated that they were “supposed

to get that loader right there today,” indicating a trailer and Bobcat loader. Epperson

directed him to the storefront rental office. Newman returned to the vehicle, spoke with -3-

Bowshier, then proceeded around the corner in the direction of the rental office.

{¶ 4} A few minutes later, Epperson watched as the two men hooked their truck to

the trailer and Bobcat. Epperson noticed that the trailer’s right rear tire was flat and the

Bobcat had no chains or tie-downs, which was against regulations. Epperson also noted

that the Ford F-150 was not legally permitted to tow the weight of the trailer and Bobcat.

{¶ 5} Once they left, Epperson quickly asked his manager, Ted Jeremy

Sendlebach, if the men had rented the trailer and Bobcat. Sendlebach verified that no

one had rented that equipment, and that the chains securing the Bobcat had been cut

earlier.

{¶ 6} Springfield Police Officer Doug Green arrived and approached Epperson and

Sendlebach about the incident at Sunbelt. Derringer came from next door, believing

Officer Green had come for the incident at Lowe’s. Hearing the description of Newman

and Bowshier, Derringer retrieved from his office his theft report with still shots of the pair

and the Ford F-150 in the parking lot. Epperson immediately confirmed that they were the

two men he saw take the trailer and Bobcat.

{¶ 7} Sendlebach gave the police the relevant identifiers on the equipment and

estimated the value of the trailer to be $9,000 and the Bobcat to be $41,000. Springfield

Detective Ronnie Terry was able to identify Bowshier from the video surveillance and past

familiarity. Detective Terry identified Newman through a police photo taken by Brookville

police. Terry noted that the surveillance video showed that Bowshier was the driver and

Newman was the passenger of the Ford F-150 in the parking lot and leaving with the

trailer.

{¶ 8} On December 9, 2017, Officer Greene found the trailer and Bobcat in an alley -4-

with the Sunbelt identifiers painted over.

{¶ 9} Newman was arrested and charged with one count of grand theft of the trailer

and Bobcat pursuant to R.C. 2913.02(A)(1), a felony of the fourth degree. Bowshier was

charged with one count of grand theft of the trailer and Bobcat and one count of theft of

the chainsaw. Newman and Bowshier were tried together on September 18, 2018. After

two days of testimony, the jury returned with a guilty verdict on all charges against

Newman and Bowshier.

{¶ 10} On September 24, 2018, Newman did not appear for sentencing. After he

was found and arrested, he was sentenced to 18 months in prison.

{¶ 11} On appeal, Newman’s sole assignment of error argues that his conviction

was not supported by sufficient evidence. Specifically, Newman argues that the State

failed to prove beyond a reasonable doubt that he intended to steal the trailer and Bobcat

from Sunbelt.

II. Sufficiency of the Evidence

{¶ 12} A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to sustain the verdict as a

matter of law. State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10,

citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “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 (1991),

paragraph two of the syllabus.

{¶ 13} Newman was convicted of grand theft in violation of R.C. 2913.02(A)(1), -5-

which provides that “[n]o person, with purpose to deprive the owner of property or

services, shall knowingly obtain or exert control over either the property or services * * *

[w]ithout the consent of the owner or person authorized to give consent.” If the value of

the property stolen is between $7,500 and $150,000, the offense constitutes grand theft,

a felony of the fourth degree. R.C. 2913.02(B)(2).

{¶ 14} “The purpose with which a person does an act is determined from the

manner in which it is done, the means or weapon used, and all the other facts and

circumstances in evidence.” State v. Hudson, 2018-Ohio-423, 106 N.E.3d 205, ¶ 22 (2d

Dist.), quoting State v. Johnson, 11th Dist. Lake No. 2006-L-259, 2007-Ohio-5783, ¶ 40.

“A person acts knowingly, regardless of purpose, when the person is aware that the

person’s conduct will probably cause a certain result or will probably be of a certain

nature. A person has knowledge of circumstances when the person is aware that such

circumstances probably exist.” R.C. 2901.22(B).

{¶ 15} R.C. 2923.03 provides: “No person, acting with the kind of culpability

required for the commission of an offense, shall * * * [a]id or abet another in committing

the offense. * * * Whoever violates this section is guilty of complicity in the commission of

an offense, and shall be prosecuted and punished as if he were a principal offender.”

{¶ 16} Having reviewed the record in the light most favorable to the State, we

conclude that the evidence presented was sufficient to prove beyond a reasonable doubt

that Newman was guilty of grand theft. The evidence showed that Newman was present

with Bowshier at Lowe’s and Sunbelt on the morning of December 4, 2017. Newman

concedes that he was the truck passenger at the scene. (Appellant’s Brief at 6). The Ohio

Supreme Court has held that “ ‘the mere presence of an accused at the scene of a crime -6-

is not sufficient to prove, in and of itself, that the accused was an aider and abettor.’ ”

State v. Johnson, 93 Ohio St.3d 240, 243, 754 N.E.2d 796 (2001), quoting State v.

Widner, 69 Ohio St.2d 267, 269, 431 N.E.2d 1025 (1982). “This rule is to protect innocent

bystanders who have no connection to the crime other than simply being present at the

time of its commission.” Id. However, “ ‘[p]articipation in criminal intent may be inferred

from presence, companionship and conduct before and after the offense is committed.’ ”

Id. at 244, quoting State v. Pruett, 28 Ohio App.2d 29, 34, 273 N.E.2d 884, 887 (4th Dist.

1971).

{¶ 17} Here, evidence showed that Newman had been in communication with

Bowshier since the early morning of December 4, 2017, and at least two hours before

arriving at Sunbelt. At Lowe’s, Newman assisted Bowshier in carrying chainsaws

belonging to Lowe’s that Bowshier attempted to return. At Sunbelt, Newman claimed to

Epperson that the Bobcat with the cut chain was reserved for him. After Epperson directed

him to the rental office, he spoke to Bowshier before he (Newman) proceeded to walk

toward the rental office. However, no transaction at the rental office took place. Newman

later was seen by Epperson hooking up the trailer and Bobcat to the truck and leaving.

Newman was not merely present during theft of the equipment, but actually participated

in its removal.

{¶ 18} Viewing the evidence in the light most favorable to the prosecution, we find

that evidence sufficient to support an inference that Newman purposefully assisted in

committing the theft of the trailer and Bobcat. Pursuant to R.C. 2923.03, he could be

prosecuted as a principal offender of the theft.

{¶ 19} Newman’s assignment of error is overruled. -7-

III. Manifest Weight of the Evidence

{¶ 20} Newman also argues that he had no knowledge of a theft taking place when

he hooked the trailer to the truck. According to him, the evidence supported an inference

“that after Newman [was] told by Epperson that you have to go around front, he talked to

Bowshier who informed him that he had already taken care of everything.” (Appellant’s

Brief at 7). Although not expressly stated as such in his assignment of error, Newman’s

argument raises a weight-of-the-evidence challenge.

{¶ 21} A weight-of-the-evidence argument “challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.” State v. Jones, 2d Dist. Montgomery No. 28179, 2019-Ohio-

2940, ¶ 13, quoting State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525,

¶ 12. When evaluating whether a conviction was against the manifest weight of the

evidence, the appellate court must review the entire record, weigh the evidence and all

reasonable inferences, consider witness credibility, 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.”

Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶ 22} The credibility of the witnesses and the weight to be given to their testimony

are matters for the trier of fact to resolve. Jones at ¶ 14, citing State v. DeHass, 10 Ohio

St.2d 230, 231, 227 N.E.2d 212 (1967). This court will not substitute its judgment for that

of the trier of fact on the issue of witness credibility unless it is patently apparent that the

trier of fact lost its way in arriving at its verdict. Id., citing State v. Bradley, 2d Dist. -8-

Champaign No. 97-CA-03, 1997 WL 691510, * 4 (Oct. 24, 1997).

{¶ 23} We find no manifest miscarriage of justice that requires the conviction of

grand theft to be reversed. The jury had the opportunity to hear from multiple State’s

witnesses, including Schwenn and Derringer, regarding Newman’s companionship with

Bowshier in Lowe’s. It also heard from Sendlebach regarding the unsecured Bobcat and

from Epperson regarding his encounter with Newman. Based on the entire record, the

jury could have reasonably concluded that Newman and his co-defendant, Bowshier,

collaborated in a plan to take the trailer and Bobcat from Sunbelt that morning. Therefore,

Newman’s conviction was not against the manifest weight of the evidence.

IV. Conclusion

{¶ 24} The judgment of the trial court will be affirmed.

WELBAUM, P. J. and DONOVAN, J., concur.

Copies sent to:

John M. Lintz Bryan Scott Hicks Hon. Douglas M. Rastatter