[Cite as State v. Renne , 2012-Ohio-3623.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vs- Case No. 11-CA-127 JEFFREY RENNE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 11 CR 00378
JUDGMENT: Reversed in part, Vacated and Remanded in part
DATE OF JUDGMENT ENTRY: August 6, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
EARL L. FROST WILLIAM T. CRAMER Assistant Prosecuting Attorney 470 Olde Worthington Road, Suite 200 Licking County Prosecutor's Office Westerville, Ohio 43082 20 S. Second St., 4th Floor Newark, Ohio 43055 Licking County, Case No. 11-CA-127 2
Hoffman, P.J.
{¶1} Defendant-appellant Jeffrey Renne appeals his conviction entered by the
Licking County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On July 14, 2011, Janet Smoke, the manager of the Granville Market, in
Granville, Ohio contacted the Granville Police Department to report her suspicions
Appellant had passed a bad check at the store. She reported a check, dated July 14,
2011, and signed "Angelia H. Conklin," looked to be signed in the handwriting of
Appellant, and had a driver's license number for an 89 year-old woman named Marjorie
Steel.
{¶3} On July 28, 2011, Appellant returned to the store, and Smoke again called
the police department. Officer Scott King responded to the call, and testified at trial he
had previous contact with Appellant prior to the date in question. Officer King observed
Appellant in the store. Upon Appellant seeing Officer King by the service desk, he got
out of line and headed to the back of the store. Appellant then returned to the service
desk with his items, and requested the clerk provide him with cigarettes from behind the
counter. Officer King advised the clerk not to take any checks from Appellant without
identification.
{¶4} Appellant retrieved a check from his pocket, filled out the "pay to" section
and handed it to the clerk. The check had the driver's license number written on it, and
the clerk handed the check to Smoke. Smoke asked Appellant for identification.
Appellant told Smoke he forgot his driver's license, and Smoke handed the check to
Officer King. Officer King asked Appellant about the check, and Appellant admitted to Licking County, Case No. 11-CA-127 3
filling out the check, but claimed the check belonged to a friend and he was authorized
to use it. The name on the check was handwritten as Jeffrey Daniels, and the signature
was that of Jeff Daniels. Officer King testified at trial “Jeff Daniels” was a name
Appellant used before. Officer King testified the third digit on the account number on
the check had been removed, and the signature was written over the removed digit.
The driver's license number written on the check was later determined to belong to a 65
year-old woman named Alice Loos.
{¶5} Appellant was taken into custody, and a blank check was found to be in
his pocket. The blank check also had the name Jeff Daniels written on it. Appellant
again claimed the check belonged to a friend, and he was authorized to use the check.
He claimed no knowledge to having a bad check.
{¶6} The July 28, 2011 check and the blank check each bore the name
"Angel's Nail Salon." Appellant told Officer King the check belonged to a friend, and she
gave him permission to use them. Officer King testified Appellant did not provide the
friend’s contact information.
{¶7} Rick Thoi, owner of "Creative Nails of Gahanna," testified at trial, the
checks had the same address as his business, but he bought the Angel's business from
a couple named Hu and Angela Tran six years prior and changed the name.
{¶8} Appellant told Officer King Conklin was the friend from whom he got the
checks. Officer King used the information on the check to attempt to contact Conklin,
but was unsuccessful. The phone number on the check actually belonged to a Dublin
Police Officer, who testified he had received several phone calls for Conklin over time. Licking County, Case No. 11-CA-127 4
{¶9} On August 5, 2011, Appellant was indicted by the Licking County Grand
Jury on two counts of forgery, in violation of R.C. 2913.31(A)(1) and (3), both fifth
degree felonies, and one count of receiving stolen property, in violation of R.C. 2913.51;
2913.71(B), also fifth degree felony.
{¶10} Following a jury trial, Appellant was convicted of the charges, and the trial
court sentenced Appellant to the maximum term of twelve months in prison on each
count, to be served consecutively, for an aggregate term of three years.
{¶11} Appellant now appeals, assigning as error:
{¶12} “I. APPELLANT WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS
AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S.
CONSTITUTION AND OHIO CONSTITUTION, ARTICLE I, SECTION 16, BECAUSE
THE PROSECUTION FAILED TO PRESENT SUFFICIENT EVIDENCE THAT THE
CHECK THAT WAS FOUND ON HIS PERSON WAS STOLEN PROPERTY.
{¶13} “II. THE JURY’S CONCLUSION THAT THE CHECK FOUND ON
APPELLANT WAS STOLEN PROPERTY WAS NOT SUPPORTED BY THE WEIGHT
OF THE EVIDENCE.
{¶14} “III. APPELLANT WAS DEPRIVED OF HIS STATE AND FEDERAL
CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN
COUNSEL FAILED TO OBJECT TO TESTIMONY THAT APPELLANT DID NOT
PROVIDE THE POLICE WITH CONTACT INFORMATION FOR THE OWNER OF THE
ALLEGEDLY STOLEN CHECKS.
{¶15} “IV. THE TRIAL COURT VIOLATED APPELLANT’S STATE AND
FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS, AND R.C. 2967.28, BY Licking County, Case No. 11-CA-127 5
IMPOSING THREE YEARS OF POST-RELEASE CONTROL AT SENTENCING FOR
FIFTH DEGREE FELONIES.”
I&II
{¶16} Appellant's first and second assignments of error raise common and
interrelated issues; therefore, we will address the arguments together.
{¶17} Appellant asserts he was deprived of his right to due process wherein the
prosecution failed to present sufficient evidence the check found on his person was
stolen property, and the jury's conclusion the check was stolen was against the manifest
weight of the evidence.
{¶18} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire
record, weighs the evidence and all reasonable inferences, considers the credibility of
witnesses, and determines whether in resolving conflicts in 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. Thompkins, 78 Ohio St.3d 380, 387, 1997–
Ohio–52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717, (1983).
{¶19} An appellate court's function when reviewing the sufficiency of the
evidence is to determine 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), ¶ two of the syllabus.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Renne , 2012-Ohio-3623.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vs- Case No. 11-CA-127 JEFFREY RENNE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 11 CR 00378
JUDGMENT: Reversed in part, Vacated and Remanded in part
DATE OF JUDGMENT ENTRY: August 6, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
EARL L. FROST WILLIAM T. CRAMER Assistant Prosecuting Attorney 470 Olde Worthington Road, Suite 200 Licking County Prosecutor's Office Westerville, Ohio 43082 20 S. Second St., 4th Floor Newark, Ohio 43055 Licking County, Case No. 11-CA-127 2
Hoffman, P.J.
{¶1} Defendant-appellant Jeffrey Renne appeals his conviction entered by the
Licking County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On July 14, 2011, Janet Smoke, the manager of the Granville Market, in
Granville, Ohio contacted the Granville Police Department to report her suspicions
Appellant had passed a bad check at the store. She reported a check, dated July 14,
2011, and signed "Angelia H. Conklin," looked to be signed in the handwriting of
Appellant, and had a driver's license number for an 89 year-old woman named Marjorie
Steel.
{¶3} On July 28, 2011, Appellant returned to the store, and Smoke again called
the police department. Officer Scott King responded to the call, and testified at trial he
had previous contact with Appellant prior to the date in question. Officer King observed
Appellant in the store. Upon Appellant seeing Officer King by the service desk, he got
out of line and headed to the back of the store. Appellant then returned to the service
desk with his items, and requested the clerk provide him with cigarettes from behind the
counter. Officer King advised the clerk not to take any checks from Appellant without
identification.
{¶4} Appellant retrieved a check from his pocket, filled out the "pay to" section
and handed it to the clerk. The check had the driver's license number written on it, and
the clerk handed the check to Smoke. Smoke asked Appellant for identification.
Appellant told Smoke he forgot his driver's license, and Smoke handed the check to
Officer King. Officer King asked Appellant about the check, and Appellant admitted to Licking County, Case No. 11-CA-127 3
filling out the check, but claimed the check belonged to a friend and he was authorized
to use it. The name on the check was handwritten as Jeffrey Daniels, and the signature
was that of Jeff Daniels. Officer King testified at trial “Jeff Daniels” was a name
Appellant used before. Officer King testified the third digit on the account number on
the check had been removed, and the signature was written over the removed digit.
The driver's license number written on the check was later determined to belong to a 65
year-old woman named Alice Loos.
{¶5} Appellant was taken into custody, and a blank check was found to be in
his pocket. The blank check also had the name Jeff Daniels written on it. Appellant
again claimed the check belonged to a friend, and he was authorized to use the check.
He claimed no knowledge to having a bad check.
{¶6} The July 28, 2011 check and the blank check each bore the name
"Angel's Nail Salon." Appellant told Officer King the check belonged to a friend, and she
gave him permission to use them. Officer King testified Appellant did not provide the
friend’s contact information.
{¶7} Rick Thoi, owner of "Creative Nails of Gahanna," testified at trial, the
checks had the same address as his business, but he bought the Angel's business from
a couple named Hu and Angela Tran six years prior and changed the name.
{¶8} Appellant told Officer King Conklin was the friend from whom he got the
checks. Officer King used the information on the check to attempt to contact Conklin,
but was unsuccessful. The phone number on the check actually belonged to a Dublin
Police Officer, who testified he had received several phone calls for Conklin over time. Licking County, Case No. 11-CA-127 4
{¶9} On August 5, 2011, Appellant was indicted by the Licking County Grand
Jury on two counts of forgery, in violation of R.C. 2913.31(A)(1) and (3), both fifth
degree felonies, and one count of receiving stolen property, in violation of R.C. 2913.51;
2913.71(B), also fifth degree felony.
{¶10} Following a jury trial, Appellant was convicted of the charges, and the trial
court sentenced Appellant to the maximum term of twelve months in prison on each
count, to be served consecutively, for an aggregate term of three years.
{¶11} Appellant now appeals, assigning as error:
{¶12} “I. APPELLANT WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS
AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S.
CONSTITUTION AND OHIO CONSTITUTION, ARTICLE I, SECTION 16, BECAUSE
THE PROSECUTION FAILED TO PRESENT SUFFICIENT EVIDENCE THAT THE
CHECK THAT WAS FOUND ON HIS PERSON WAS STOLEN PROPERTY.
{¶13} “II. THE JURY’S CONCLUSION THAT THE CHECK FOUND ON
APPELLANT WAS STOLEN PROPERTY WAS NOT SUPPORTED BY THE WEIGHT
OF THE EVIDENCE.
{¶14} “III. APPELLANT WAS DEPRIVED OF HIS STATE AND FEDERAL
CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN
COUNSEL FAILED TO OBJECT TO TESTIMONY THAT APPELLANT DID NOT
PROVIDE THE POLICE WITH CONTACT INFORMATION FOR THE OWNER OF THE
ALLEGEDLY STOLEN CHECKS.
{¶15} “IV. THE TRIAL COURT VIOLATED APPELLANT’S STATE AND
FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS, AND R.C. 2967.28, BY Licking County, Case No. 11-CA-127 5
IMPOSING THREE YEARS OF POST-RELEASE CONTROL AT SENTENCING FOR
FIFTH DEGREE FELONIES.”
I&II
{¶16} Appellant's first and second assignments of error raise common and
interrelated issues; therefore, we will address the arguments together.
{¶17} Appellant asserts he was deprived of his right to due process wherein the
prosecution failed to present sufficient evidence the check found on his person was
stolen property, and the jury's conclusion the check was stolen was against the manifest
weight of the evidence.
{¶18} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire
record, weighs the evidence and all reasonable inferences, considers the credibility of
witnesses, and determines whether in resolving conflicts in 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. Thompkins, 78 Ohio St.3d 380, 387, 1997–
Ohio–52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717, (1983).
{¶19} An appellate court's function when reviewing the sufficiency of the
evidence is to determine 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), ¶ two of the syllabus. Licking County, Case No. 11-CA-127 6
{¶20} Appellant was convicted of receiving stolen property in violation of
R.C.2913.51, which reads:
{¶21} "(A) 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.
{¶22} "(B) It is not a defense to a charge of receiving stolen property in violation
of this section that the property was obtained by means other than through the
commission of a theft offense if the property was explicitly represented to the accused
person as being obtained through the commission of a theft offense."
{¶23} R.C. 2913.71 provides,
{¶24} "Regardless of the value of the property involved and regardless of
whether the offender previously has been convicted of a theft offense, a violation of
section 2913.02 or 2913.51 of the Revised Code is a felony of the fifth degree if the
property involved is any of the following:
{¶25} "***
{¶26} "(B) A printed form for a check or other negotiable instrument, that on its
face identifies the drawer or maker for whose use it is designed or identifies the account
on which it is to be drawn, and that has not been executed by the drawer or maker or on
which the amount is blank;"
{¶27} Although the prosecution did not have to prove the check had, in fact,
been obtained by theft, it did have to prove the nature of the property was stolen
property. State v. Ray, Summit Co. No. 21233, 2003-Ohio-2159. The State does not Licking County, Case No. 11-CA-127 7
have to offer the testimony of the actual owner, but must present some evidence the
property was stolen. Id.
{¶28} In Ray, the Ninth District held,
{¶29} "Similarly, in In re Little (Feb. 25, 1998), 9th Dist. No. 18667, this Court
addressed a case in which the appellant had been convicted of receiving stolen
property and found that the state was not required to offer testimony from the owner of a
bicycle to prove that the bicycle had been stolen. In this opinion, we noted that ' ‘[t]he
nature of the property received, retained or disposed of; i.e., that it was stolen property,
must be proven by the state. The theft offense which gave rise to the property's nature
as stolen property need not be proven.’ 'Id., quoting State v. Lyons (Mar. 6, 1985), 9th
Dist. No. 11779."
{¶30} Here, we find the evidence offered at trial was insufficient to establish the
checks used by Appellant on July 28, 2011 were stolen property. Officer King's
testimony Appellant did not provide contact information for the name on the check does
not transfer the burden of proof from the State to establish the nature of the property as
stolen. We find Appellant's conviction for receiving stolen property is both against the
manifest weight and sufficiency of the evidence.
{¶31} Accordingly, Appellant's first and second assignments of error are
sustained, and Appellant's conviction for receiving stolen property is reversed.
III.
{¶32} In the third assignment of error, Appellant maintains he was deprived of
effective assistance of counsel because his trial counsel failed to object to the testimony
Appellant did not provide the police contact information for the owner of the allegedly Licking County, Case No. 11-CA-127 8
stolen checks. Appellant argues the prosecutor then used such failure to support an
inference the check was stolen.
{¶33} Based upon our analysis and disposition of Appellant's first and second
assignments of error, we find Appellant's third assignment of error to be moot.
IV.
{¶34} In the fourth assignment of error, Appellant maintains the trial court erred
in sentencing him to three years of post-release control pursuant to R.C. 2967.28.
{¶35} The trial court's November 30, 2011 Sentencing Entry states,
{¶36} "The Court sentences the defendant to a period of three (3) years of post-
release control, unless reduced by the Adult Parole Authority, following any prison
sentence imposed…"
{¶37} R.C. 2967.28 reads:
{¶38} "(C) Any sentence to a prison term for a felony of the third, fourth, or fifth
degree that is not subject to division (B)(1) or (3) of this section shall include a
requirement that the offender be subject to a period of post-release control of up to
three years after the offender's release from imprisonment, if the parole board, in
accordance with division (D) of this section, determines that a period of post-release
control is necessary for that offender. Section 2929.191 of the Revised Code applies if,
prior to July 11, 2006, a court imposed a sentence including a prison term of a type
described in this division and failed to notify the offender pursuant to division (B)(2)(d) of
section 2929.19 of the Revised Code regarding post-release control or to include in the
judgment of conviction entered on the journal or in the sentence pursuant to division
(D)(2) of section 2929.14 of the Revised Code a statement regarding post-release Licking County, Case No. 11-CA-127 9
control. Pursuant to an agreement entered into under section 2967.29 of the Revised
Code, a court of common pleas or parole board may impose sanctions or conditions on
an offender who is placed on post-release control under this division."
{¶39} This Court has previously addressed the issue raised herein in State v.
Richards, Licking App. No. 2011-CA-00074, 2012-Ohio-1115, holding:
{¶40} "Rather than void, appellant's sentence with respect to post-release
control is voidable, i.e. it is a judgment 'rendered by a court that has both jurisdiction
and authority to act, but in which the court's judgment is invalid, irregular, or erroneous.'
State v. Simpkins, 117 Ohio St.3d 420, 2008–Ohio–1197, 884 N.E.2d 568, ¶ 12,
superseded by statute on other grounds as stated in State v. Singleton, 124 Ohio St.3d
173, 2009–Ohio–6434, 920 N.E.2d 958; State v. McKenna, 11th Dist. No.2009–T–0034,
2009–Ohio–6154 at ¶ 84.
{¶41} "Accordingly, we vacate the judgment of the trial court insofar as it relates
to the imposition of post-release control for the felony of the fifth degree Gross Abuse of
a Corpse and remand this cause to the trial court to modify appellant's sentence with
respect to post release control for the felony of the fifth degree Gross Abuse of a
Corpse so that appellant's sentence shall include a requirement that appellant be
subject to a period of post-release control of up to three years after appellant's release
from imprisonment, if the parole board, in accordance with division (D) of R.C. 2967.28
determines that a period of post-release control is necessary for appellant."
{¶42} Based upon this Court's holding in Richards, we vacate Appellant's
sentence and remand this cause to the trial court for the limited purpose of modifying
Appellant's sentence with respect to the imposition of post-release control on the fifth Licking County, Case No. 11-CA-127 10
degree felonies for which Appellant was properly convicted on the charges of forgery.
Appellant's sentence shall be modified to include a requirement Appellant be subject to
a period of post-release control of up to three years after his release from imprisonment,
if the parole board, in accordance with division (D) of R.C. 2967.28 determines a period
of post-release control is necessary for Appellant.
{¶43} Appellant's fourth assignment of error is sustained.
{¶44} Appellants conviction entered by the Licking County Court of Common
Pleas on one Count of receiving stolen property is reversed. Appellant’s sentence on
two counts of forgery is vacated and the cause remanded for the limited purpose of
properly imposing post-release control in accordance with this opinion and the law.
By: Hoffman, P.J.
Farmer, J. and
Wise, J. concur
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER
s/ John W. Wise _____________________ HON. JOHN W. WISE Licking County, Case No. 11-CA-127 11
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : JEFFREY RENNE : : Defendant-Appellant : Case No. 11-CA-127
For the reasons stated in our accompanying Opinion, Appellant’s conviction
entered by the Licking County Court of Common Pleas on receiving stolen property is
reversed. Appellant’s sentence on two Counts of forgery is vacated and this cause is
remanded for the limited purpose of imposing post-release control in accordance with
our Opinion and the law. Costs to the State.
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ John W. Wise _____________________ HON. JOHN W. WISE