State v. Plunkett

2011 Ohio 5071

• Court: Ohio Court of Appeals
• Decided: September 30, 2011
• Docket: 2010 CA 38
• Status: Published

Opinion

[Cite as State v. Plunkett, 2011-Ohio-5071.]

IN THE COURT OF APPEALS FOR MIAMI COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 2010 CA 38

v. : T.C. NO. 10CR207A

COREY PLUNKETT : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 30th day of September , 2011.

JAMES D. BENNETT, Atty. Reg. No. 0022729, Assistant Prosecuting Attorney, 201 W. Main Street, Safety Building, Troy, Ohio 45373 Attorney for Plaintiff-Appellee

P. J. CONBOY II, Atty. Reg. No. 0070073, 5613 Brandt Pike, Huber Heights, Ohio 45424 Attorney for Defendant-Appellant

DONOVAN, J.

{¶ 1} This matter is before the Court on the Notice of Appeal of Corey Plunkett,

filed December 30, 2010. On August 11, 2010, Plunkett and Joshua Penny were each

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

of the fifth degree. Following a jury trial on October 26, 2010, they were found guilty, with 2

a specific finding that the value of the property involved was more than $500.00 but less

than $5,000.00. On December 6, 2010, Plunkett was sentenced to a term of 11 months.

{¶ 2} At the trial, Dustin Hughes testified that he, in connection with the above

offenses, was originally charged with complicity to burglary, a felony of the second degree,

and that pursuant to an agreement with the State, he pled guilty to an amended charge of

breaking and entering, a felony of the fifth degree, in exchange for his testimony at the trial

of Plunkett and Penny. According to Hughes, on the afternoon of June 12, 2010, he,

Chelsea Grubb, Plunkett and Penny drove around Piqua in his car, “smoking dope.” They

stopped at Z’s bar for a few drinks, then they returned to the car, and he drove Grubb home.

Plunkett and Penny then asked him if he could “get rid of” a Play Station 3 for them, and he

agreed to do so. Hughes testified that he drove to the home of Nicholas Edmiston,

dropping Plunkett and Penny off, knowing that they were going to take the Play Station 3

and some pain pills. Shortly thereafter, Hughes received a text message from Plunkett,

telling him to drive around the corner and pick him and Penny up. According to Hughes,

the men were carrying the Play Station 3 and a box containing video games,. They told

Hughes that Edmiston was not at home.

{¶ 3} Hughes drove to Plunkett’s home, and they put the items in Plunkett’s car.

Hughes testified that Plunkett and Penny wanted to return to Edmiston’s house to steal his

60 inch television, but Hughes was “too scared.” The men then returned to Z’s for a while,

and encountered Edmiston there. Hughes, Plunkett, Penny and Edmiston then drove to a

motel in Troy to continue drinking, picking up Grubb on the way. Later, Hughes and Penny

stayed at the motel while Grubb drove the others back to Piqua. 3

{¶ 4} Hughes testified that his uncle, Mike Hughes, had indicated to him that he

wanted to buy a Play Station 3, and he contacted him and told him that he knew of one for

sale. A couple of days after the theft, Hughes drove Penny and Plunkett to Sidney to Mike

Hughes’ home, and all three men went inside and set up the Play Station 3. Hughes

testified that his uncle gave Penny and Plunkett $260.00 for the Play Station 3 and some

games. Later, Hughes testified that he observed a gold ring with diamonds in Plunkett’s

possession, and Plunkett indicated that he had retrieved it from Edmiston’s house.

{¶ 5} Several days later, Hughes testified that Detective Richard Byron of the Piqua

Police Department interviewed him about the Play Station 3, and Hughes testified that he

initially lied to Byron before telling him the truth about what happened.

{¶ 6} Mike Hughes testified that he had been looking for a Play Station 3 for his

children, and that he told Hughes to call him if he knew of one for sale. Following a phone

conversation, Mike Hughes stated that, Hughes, Penny and Plunkett arrived at his home on

June 14, 2010. All three men entered the home together, according to Mike Hughes. He

testified that he was told that the Play Station 3 belonged to Penny’s cousin. Mike Hughes

stated he gave $260.00 to Penny for the system, two controllers, a power cord and 8 games,

plus $20.00 for gas money. According to Mike Hughes, he asked the men three times if the

items were stolen. Mike Hughes stated that a week or ten days later, Detective Byron came

to his residence, asked him about the items and retrieved them from him.

{¶ 7} Nick Edmiston testified that his home was burglarized and his front door was

damaged. Edmiston testified that he went to Z’s bar at around 10:00 p.m. on the night of

the incident, and that he did not return home until 2:30 a.m. Edmiston reported to the 4

police that his Play Station 3, two remotes, 12 to 15 games, a necklace and bracelet set, a

gold diamond ring and an Ipod Touch were missing from his home. Edmiston stated that he

knew Plunkett and Penny, but not Hughes. On the night of the burglary, Edmiston testified

that he “had gotten in contact with Josh through Corey’s phone, * * * to come to Z’s and

play pool. They didn’t show up for a while so I called back and ask[ed] if they were coming

and yeah they did show up but it was a while after, I don’t know, maybe a couple hours after

I talked to them.” Edmiston stated that Penny and Plunkett arrived with Hughes, and the

men played pool for two hours and then went to the motel in Troy.

{¶ 8} Edmiston identified his Play Station 3 and eight games at trial, and he

testified that he received an insurance check for $2137.51 for everything that was taken. He

stated that he received $285.01 for the Play Station 3, “thirty to forty apiece” for some of

the games, and $29.96 for the controller. Edmiston testified that he originally paid $60.00

for most of the games that were taken. On cross-examination, Edmiston testified that he

never observed Plunkett with the Play Station 3 or the games. Edmiston testified that after

Plunkett arrived at Z’s, Edmiston did not lose sight of him. Regarding his games, Edmiston

specifically stated that he received from his insurance company $29.96 for “NBA 2K9,”

$29.99 for “Need for Speed,” $60.00 for “Tiger Woods Golf 2010,” $59.99 for “XXX

Street,” $49.99 for “Fall Out Three,” and $59.96 for “USB 2009.”

{¶ 9} Detective Richard Byron testified that as a result of receiving anonymous

information in a phone call, he proceeded to the home of Mike Hughes, where he retrieved

the Play Station 3, power cord, two controllers and some games. Byron stated that he then

interviewed Hughes, and then he went to Plunkett’s parents’ residence where he was given 5

permission to search Plunkett’s bedroom and car. Nothing was recovered as a result of the

search.

{¶ 10} Plunkett testified that on June 11, 2010, he, Grubb, Hughes and Penny were

riding around, and they decided to go the mud bogs in Shelby County. Plunkett stated they

were in Sidney when Edmiston called and asked them to come play pool and drink beer at

Z’s bar. They drove to Z’s and arrived 20-30 minutes later, according to Plunkett. When

they arrived, Plunkett and Penny entered the bar, and Hughes and Grubb left so that Grubb

could change clothes. Plunkett stated that Hughes and Grubb were gone for about an hour,

and then they returned to the bar. Plunkett stated that he had a friend who was managing a

Comfort Suites motel in Troy, and the group of men and Grubb, along with an additional

fried of Edmiston’s, went there to swim until around 3:00 a.m. At that time, Plunkett and

Grubb drove Plunkett’s car back to Edmiston’s house, where they dropped off Edmiston and

his friend.

{¶ 11} Plunkett testified that a couple of days later, Hughes told him that he was

selling a Play Station for a friend of his to his uncle, and he told Plunkett that he would give

him money for gas if Plunkett drove him to the home of his uncle. Plunkett stated that he

drove Hughes, along with Penny, to Mike Hughes’ home. Upon arrival, Plunkett testified

that Hughes told him and Penny to stay in the car, and he carried a box containing the Play

Station inside. After a few minutes, Plunkett testified that Hughes came to the door and

waived him and Penny inside. Plunkett testified that he did not receive any money from the

sale of the items, and that Hughes put ten dollars worth of gas in his car. Plunkett stated

that he did not know that the Play Station 3 and the games were stolen, and he denied that 6

Mike Hughes was told that the Play Station belonged to Penny’s cousin.

{¶ 12} Grubb testified that Hughes is the father of her children, and that Plunkett is

one of her best friends. She stated that on the date of the incident, she got off work at 2:00

p.m., and that she, Hughes, Plunkett and Penny drove around and then headed to the mud

bogs in Sidney. She testified that they drove to Z’s bar at around 10:00 p.m. Grubb stated

that she and Hughes were at the bar for five or ten minutes, and then they left so that she

could go home and change her clothes. She testified that she and Hughes left Plunkett and

Penny at the bar with Edmiston. Grubb stated that Hughes then left her at her house, and he

returned an hour later, after she took a shower, to pick her up. Grubb and Hughes then

returned to the bar and drove Edmiston and a friend of his to the hotel in Troy, according to

Grubb. Later, she stated that she and Plunkett drove Edmiston and his friend home and then

returned to the hotel to pick up the rest of the group.

{¶ 13} Penny testified that Plunkett is his cousin. Penny’s testimony was consistent

with Plunkett’s regarding the sequence of events, namely that Penny, Plunkett, Hughes and

Grubb drove from Sidney to Z’s bar after receiving a phone call from Edmiston, in “20, 25

minutes.” Penny testified that he and Plunkett were with Edmiston the remainder of the

evening, and that Hughes and Grubb left so that Grubb could take a shower, and that they

later returned. Penny testified that the group went to the motel in Troy.

{¶ 14} Penny further stated that he accompanied Hughes, along with Plunkett, to

Mike Hughes’ house so that Hughes could sell the Play Station 3 items “for his friend.”

Penny stated that he did not know that the items were stolen. According to Penny, he and

Plunkett initially remained in the car at Mike Hughes’ house until Hughes waived them 7

inside. Penny stated that Mike Hughes handed cash to Hughes in the driveway as the men

were leaving.

{¶ 15} Plunkett asserts one assignment of error as follows:

{¶ 16} “THE TRIAL COURT ERRED IN CONVICTING APPELLANT OF

RECEIVING STOLEN PROPERTY.”

{¶ 17} Plunkett asserts that his conviction was against the manifest weight of the

evidence and not supported by sufficient evidence. According to Plunkett, he “did not

receive, retain or dispose of the property at issue herein, Dustin Hughes did,” and Plunkett

had no reason to believe that the property was stolen. Further, Plunkett asserts, the State did

not meet its burden of proving that the property was valued at more than $500.00.

{¶ 18} “When an appellate court analyzes a conviction under the manifest weight of

the evidence standard it must review the entire record, weigh all of the evidence and all the

reasonable inferences, consider the credibility of the witnesses and determine whether in

resolving conflicts in the evidence, the fact finder 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). Only in exceptional cases, where the evidence ‘weighs heavily

against the conviction,’ should an appellate court overturn the trial court’s judgment.” State

v. Dossett, Montgomery App. No. 20997, 2006-Ohio-3367, ¶ 32.

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

are matters for the trier of facts to resolve. State v. DeHass (1997), 10 Ohio St.2d 230, 231.

“Because the factfinder * * * has the opportunity to see and hear the witnesses, the cautious

exercise of the discretionary power of a court of appeals to find that a judgment is against the 8

manifest weight of the evidence requires that substantial deference be extended to the

factfinder’s determinations of credibility. The decision whether, and to what extent, to

credit the testimony of particular witnesses is within the peculiar competence of the

factfinder, who has seen and heard the witness.” State v. Lawson (Aug. 22, 1997),

Montgomery App. No. 16288.

{¶ 20} This court will not substitute its judgment for that of the trier of facts on the

issue of witness credibility unless it is patently apparent that the trier of fact lost its way in

arriving at its verdict. State v. Bradley (Oct. 24, 1997), Champaign App. No. 97-CA-03.

{¶ 21} “In reviewing a claim of insufficient evidence, ‘[t]he relevant inquiry is

whether, after reviewing 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 (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph

two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61

L.Ed.2d 560; see, also, State v. Thompkins (1997), 78 Ohio St.3d 380, 386, * * * .” State v.

McKnight, 107 Ohio St.3d 101, 112, 2005-Ohio-6046, ¶ 70.

{¶ 22} R.C. 2913.51(A) provides, “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.” Receiving stolen property is a

misdemeanor of the first degree. However, R.C. 2913.51(C) provides that if the value of

the property at issue is five hundred dollars or more and is less than five thousand dollars,

receiving stolen property is a felony of the fifth degree.

{¶ 23} R.C. 2913.61(D)(1)-(3) set forth alternative criteria to be used in determining 9

the value of property involved in a theft offense. That section provides in relevant part:

{¶ 24} “(2) The value of personal effects and household goods * * * , which property

is not covered under division (1) of this section and which retains substantial utility for its

purpose regardless of its age or condition, is the cost of replacing the property with new

property of like kind and quality.”

{¶ 25} After thoroughly reviewing the entire record, weighing all the evidence and

reasonable inferences, we conclude that the jury could reasonably conclude that Plunkett

committed the offense of receiving stolen property. Edmiston described the items taken

from his home. He testified that he waited for Penny and Plunkett for two hours at Z’s bar.

Edmiston communicated with Penny and Plunkett from the bar, and they knew that

Edmiston was not at home. Hughes testified that he drove Plunkett and Penny to

Edmiston’s home, where they obtained the property and later placed it in Plunkett’s car.

Hughes stated that Mike Hughes gave Penny and Plunkett $260.00 for the Play Station

items, which was consistent with Mike Hughes’ testimony. Hughes further stated that

Plunkett showed him a diamond ring that Plunkett stated he obtained from Edmiston’s

home. The jury did not lose its way simply because it chose to believe the State’s version of

events, rather than the self-serving version of events presented by the defense. We defer to

the jury’s assessment of credibility.

{¶ 26} Since the evidence does not weigh heavily against conviction, and upon

reviewing the evidence in a light most favorable to the State, any rational juror could have

found the essential elements of receiving stolen property proven beyond a reasonable doubt,

Plunkett’s conviction is not against the manifest weight of the evidence, and it is supported 10

by sufficient evidence.

{¶ 27} Regarding Plunkett’s assertion that he is entitled to a reduction in the degree

of offense to a misdemeanor due to the State’s alleged failure to prove the value of the

property, we disagree. Edmiston testified that he paid $60.00 for most of the 12-15 video

games that were stolen. Additionally, the jury viewed eight games that were recovered, as

well as the Play Station 3. Although the trial court did not admit the insurance settlement

document, Edmiston testified without objection that his insurance company valued the Play

Station 3 at $285.00, and that he received approximately $290.00 for six games, plus

$29.96 for the controller. Thus, the evidence was sufficient for the jury to conclude that the

value of the property was over $500.00.

{¶ 28} Accordingly, Plunkett’s assigned error is overruled. Judgment affirmed.

GRADY, P.J. and WAITE, J., concur.

(Hon. Cheryl L. Waite, Seventh District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

James D. Bennett P. J. Conboy II Hon. Robert J. Lindeman