State v. Sherfey , 2014 Ohio 1717 ( 2014 )

[Cite as State v. Sherfey, 2014-Ohio-1717.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 13-CA-37
TODD N. SHERFEY :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Fairfield County
Court of Common Pleas, Case No. 2012-
CR-388
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 21, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DARREN L. MEADE SCOTT P. WOOD
Fairfield County Prosecutor's Office 144 East Main Street
239 West Main Street, Suite 101 P.O. Box 667
Lancaster, OH 43130 Lancaster, OH 43130
[Cite as State v. Sherfey, 2014-Ohio-1717.]
Gwin, P.J.
{¶1} Appellant Todd N. Sherfey [“Sherfey”] appeals his conviction and
sentence for one count of receiving stolen property a felony of the fifth degree in
violation of R.C. 2913.51 following a jury trial in the Fairfield County Court of Common
Pleas.
Facts and Procedural History
{¶2} Sherfey was a business owner in Lancaster, Fairfield County, Ohio,
operating a precious metals brokerage. In addition to buying and selling precious
metals, Sherfey also bought and sold gift cards. With regard to both precious metals
and gift cards, Sherfey would profit by buying low and selling high. Typically, Sherfey
would sell the gift cards to an Internet clearinghouse. Although there are no
governmental regulations regarding the buying and selling of gift cards, Sherfey applied
the regulations and documentation relating to the buying and selling of precious metals
to the buying and selling of gift cards, including documenting personal information
regarding the seller and photocopying governmental identification, usually a driver's
license, and providing that information to law enforcement.
{¶3} T.J. Maxx, a retail chain store, through its loss prevention department,
discovered that there were a number of individuals who were running a theft ring. These
individuals would steal merchandise and other individuals would exchange the
merchandise for gift cards. The gift cards would be sold or traded for illegal drugs.
When a number of individuals involved in the theft ring were apprehended by law
enforcement, one member of the theft ring, Shane Stoughton, in exchange for immunity
from prosecution, implicated Sherfey. Stoughton claimed that Sherfey knew the gift
Fairfield County, Case No. 13-CA-37 3
cards were generated from stolen property and that he purchased the gift cards for
cash. Stoughton agreed to cooperate with police to obtain incriminating information
about Sherfey during a sting operation police conducted on December 30, 2011.
1. Events Leading up to the Sting Operation.
{¶4} Prior to the sting operation, Lt. Shane Wilson of the Lancaster Police
Department talked to Sherfey about concerns that Stoughton was involved in a theft ring
that illegally obtained gift cards from various stores, including T.J. Maxx, that Stoughton
then sold to Sherfey. The participants in the theft ring sold approximately $15,000 worth
of gift cards at Sherfey's store in 2011. In the three months leading up to the sting
operation on December 30, 2011, Stoughton made 15 transactions involving gift cards
at Sherfey’s business. Stoughton sold $4,500 worth of gift card at Sherfey’s business as
a result of these transactions.
{¶5} T.J. Maxx conducted its own internal investigation. This investigation
uncovered the theft ring. Company investigator Andrew Holloway conducted
surveillance in which he observed Stoughton and his associates conducting the activity
at the Lancaster T.J. Maxx store. The investigation revealed that Stoughton and the
other participants would then go to Sherfey's store apparently to sell the gift cards.
Holloway determined that between September and December 2011, T.J. Maxx lost
approximately $14,000 as a result of thefts. Holloway made contact with the Lancaster
Police Department. On December 29, 2011, officers apprehended persons involved in
the theft ring, including Stoughton.
{¶6} Though Sherfey was not always the person Stoughton conducted the
transactions with, Sherfey did on occasion conduct business with Stoughton. Sherfey
Fairfield County, Case No. 13-CA-37 4
was "right there" "almost all of the time" and would almost always be involved in the
transactions by discussing with his wife (who worked at the store) what percentage of
the face value of the gift cards they would pay Stoughton, counting out cash, or calling
in cards to a 1-800 number to verify the amount of the cards. In addition to the
transactions at his store, Sherfey met Stoughton or his cohorts a couple of times at a
nearby parking lot to exchange gift cards for cash, with the dollar amount being
approximately $200-$300. Sherfey would engage in suspicious activity when the theft
ring participants would sell gift cards at his store. For example, he would direct the
sellers to remove the batteries from their cell phones and place them in a refrigerator in
the store, go to a back room to discuss matters, and turn the volume on a radio up
louder apparently to avoid detection.
{¶7} Stoughton would use terms commonly understood to relate to theft to
explain how he had obtained the gift cards, such as “hit a lick, hustled up some cards.”
Sherfey considered Stoughton to be a friend. Sherfey implored Stoughton to “get legit.”
He further advised Stoughton to get help for Stoughton’s heroin addiction.
{¶8} Approximately two days before the sting operation, Sherfey told Stoughton
that Stoughton was on a "do not buy" list kept by the Lancaster Police Department. The
following day, Sherfey told Stoughton that if Stoughton wanted to sell gift cards to him
Stoughton "would have to bring somebody else in to do it."
2. The Sting Operation
{¶9} After the Lancaster Police Department apprehended Stoughton on
December 29, 2011, Stoughton agreed to cooperate with the police as a confidential
informant to gather incriminating information about Sherfey. On December 30, 2011,
Fairfield County, Case No. 13-CA-37 5
after initial police protocols to ensure the operation was controlled, Stoughton went to
Sherfey’s store with a gift card T.J. Maxx created and the police gave him. There, he
talked with Sherfey in a back room after Sherfey turned up the volume on a radio.
Sherfey told Stoughton he could not buy gift cards from Stoughton, and that Stoughton
could figure out what to do. Sherfey then loaned Stoughton $170, stating to Stoughton,
“I can loan you money. It “don't matter if I know what you do. I'm just a man loaning you
money. There's nothing illegal about that."
{¶10} After his initial contact with Sherfey, Stoughton met with police. Karlee
Cumbo, one of the other participants in the theft ring, also agreed to cooperate with
police. The police and Stoughton placed a recorded call to Sherfey. Stoughton told
Sherfey he had "hustled up some more cards" and wanted to know if Sherfey would buy
them. Sherfey stated he could not buy the cards from Stoughton, but he would be able
to buy cards "from people" that day. Stoughton told Sherfey that he and his girlfriend
would be there shortly.
{¶11} The police issued Stoughton three gift cards purporting to be from T.J.
Maxx and valued at more than $1,000. Stoughton walked with Cumbo into Sherfey’s
store with the cards in his hand. Sherfey stated he could not buy the cards from
Stoughton. Stoughton then handed the cards to Cumbo. Sherfey directed Stoughton
outside, saying “Let’s go talk.”
{¶12} While outside, Sherfey made statements that indicated his knowledge of
the illegal nature of the cards Stoughton was selling and had been selling. Sherfey told
Stoughton he would prefer it if Stoughton would “send in" another person rather than
bringing the other person inside the business. Sherfey had previously told Stoughton
Fairfield County, Case No. 13-CA-37 6
that Stoughton was on a "do not buy" list he believed the Lancaster Police Department
was keeping. While outside the store, Sherfey talked about how his business associate
advised him not to buy gift cards from people on the list. At that point, Stoughton
indicated to Sherfey that was the reason he brought Cumbo. Sherfey and Stoughton
also discussed T.J. Maxx becoming aware of the fraudulent gift card activity. Sherfey
told Stoughton if he did not stop, Stoughton was "going to get caught."
{¶13} Sherfey explained that as a result of the police and T.J. Maxx becoming
aware of the fraudulent gift card activity, he was lowering the amount he would pay for
T.J. Maxx cards as opposed to gift cards from other stores. This was Sherfey’s attempt
to dissuade people from selling the cards to him. Stoughton also talked to Sherfey about
Stoughton's addiction to illegal drugs and how that was causing him to engage in
"illegal" activity. Cumbo sold the gift cards to Sherfey’s wife inside the business while
Sherfey and Stoughton talked outside. Sherfey’s wife Olga Sherfey, worked at the
business. Olga documented the transaction as with any other gift card transaction. After
Olga purchased the gift cards from Cumbo, she put them in the business drawer.
{¶14} Immediately after the transaction, law enforcement entered the store,
seized the cards from the business drawer where Olga had placed them and arrested
Sherfey and charged him with receiving stolen property.
{¶15} On August 24, 2012, Sherfey was indicted with two counts of receiving
stolen property in violation of R.C. 2913.51. In Count 1 of the Indictment, the state
alleged that the theft offense involved property listed in R.C. 2913.71 and, therefore,
was a felony of the fifth degree. In Count 2 of the Indictment, the state alleged that the
Fairfield County, Case No. 13-CA-37 7
value of the property involved was $1,000 or more, making the offense a felony of the
fifth degree.
{¶16} Prior to the beginning of the jury trial, the state dismissed Count 1 of the
Indictment and the trial proceeded on Count 2 only (referenced throughout the trial as
Count A). After the presentation of evidence and deliberations, the jury returned a
verdict of guilty to receiving stolen property and additionally found that the value of the
property exceeded $1,000.
{¶17} On April 15, 2013, Sherfey was sentenced to 11 months in a state penal
institution, suspended for 3 years of community control, with the condition that he serve
30 days in the Fairfield County Jail.
Assignments of Error
{¶18} Sherfey has raised two assignments of error,
{¶19} “I. THERE WAS INSUFFICIENT EVIDENCE TO CONVICT SHERFEY OF
RECEIVING STOLEN PROPERTY AS A FELONY OF THE FIFTH DEGREE AND THE
JURY'S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶20} “II. THE TRIAL COURT ERRED BY INSTRUCTING THE JURY ON THE
INCORRECT DEFINITION OF VALUE, ENHANCING THE OFFENSE TO A FELONY
OF THE FIFTH DEGREE.”
I.
{¶21} Sherfey contends that his conviction is against the manifest weight of the
evidence.
{¶22} Our review of the constitutional sufficiency of evidence to support a
criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
Fairfield County, Case No. 13-CA-37 8
2781, 61 L. Ed. 2d 560 (1979), which requires a court of appeals to determine whether
“after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S. Ct. 665, 673, 175 L.Ed.2d
582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St. 3d 163, 926 N.E.2d
1239, 2010–Ohio–1017, ¶146; State v. Clay, 187 Ohio App. 3d 633, 933 N.E.2d 296,
2010–Ohio–2720, ¶68.
{¶23} Weight of the evidence addresses the evidence's effect of inducing belief.
State v. Thompkins, 78 Ohio St. 3d 380, 386-387, 678 N.E.2d 541 (1997), superseded
by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio
St.3d 89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the
inclination of the greater amount of credible evidence, offered in a trial, to support one
side of the issue rather than the other. It indicates clearly to the jury that the party
having the burden of proof will be entitled to their verdict, if, on weighing the evidence in
their minds, they shall find the greater amount of credible evidence sustains the issue,
which is to be established before them. Weight is not a question of mathematics, but
depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541,
quoting Black's Law Dictionary (6th Ed. 1990) at 1594.
{¶24} When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a
“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting
testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102
S. Ct. 2211, 72 L. Ed. 2d 652 (1982). However, an appellate court may not merely
Fairfield County, Case No. 13-CA-37 9
substitute its view for that of the jury, but must find that “‘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, supra, 78 Ohio St.3d at 387, quoting State v.
Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983).
Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case
in which the evidence weighs heavily against the conviction.’” Id.
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts.
***
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent
with the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273 (1984), fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
{¶25} In the case at bar, Sherfey argues that the evidence presented at trial fails
to prove that he was a party to the transaction that sold the gift cards; the evidence
failed to prove that Sherfey ever possessed the sting gift cards, either actually or
constructively; and the evidence failed to show that the sting gift cards were explicitly
represented to be stolen.
Fairfield County, Case No. 13-CA-37 10
{¶26} In the case at bar, the transaction took place at the business owned by
Sherfey. Sherfey’s wife participated in the exchange of the gift cards while Sherfey and
Stoughton talked outside the store. Prior to the exchange Stoughton telephoned
Sherfey and told him that he, Stoughton had some more cards. (2T. at 374-375; State’s
Exhibit T). Sherfey replied that he could not buy cards from Stoughton. (Id.) Stoughton
responded that they were not from him they were from his girlfriend and she was
coming in. (Id.) Sherfey responded that he had money and he could buy cards from
people that day. (Id.) Stoughton told Sherfey that he and his girl would be in just a little
bit, fifteen to twenty minutes. (Id.)
{¶27} Stoughton testifed that he had the gift cards in his hand when he and
Karlee entered Sherfey’s establishment. (2T. at 377; 379). Sherfey told Stoughton that
he could not buy from him. (Id.; State’s Exhibit T) Stoughton then handed the gift cards
to Karlee and told Sherfey “I’m not selling them, she is.” (2T. at 379; State’s Exhibit T)
At that point Sherfey tells Stoughton, “come talk to me.” (State’s Exhibit T) The pair then
left the store. Sherfey tells Stoughton while outside the he cannot buy from him.
Stoughton tells Sherfey “that’s why I brought – you know what I’ saying.” (State’s Exhibit
T) Sherfey responses “I do, I do, absolutely.” (T. at 386; State’s Exhibit T.) Also during
this conversation Sherfey tells Stoughton “don’t bring her in, send her in.” (T. at 382;
State’s Exhibit T.)
{¶28} During the conversation that took place outside the store, Stoughton told
Sherfey “doing the return game is about done” because T.J. Maxx is “getting hip.”
(State’s Exhibit T) Sherfey responded that eventually Stoughton is going to be caught
and that he should not do it anymore. (Id.). He further told Stoughton that Stoughton has
Fairfield County, Case No. 13-CA-37 11
helped him pay his mortgage for the past few months. (Id.). When Sherfey tells
Stoughton that he now is only paying 30% for T.J. Maxx gift cars, Stoughton responds,
“That’s my easiest hustle. They got lack security and a no hassle return policy.” (Id.).
{¶29} Karlee came out to tell Stoughton that they were only paying 30% on the
T.J. Maxx gift cards Sherfey, Stoughton, and Karlee then go inside the business where
Stoughton asks Sherfey if that is all they are going to do now. Sherfey replies,
“Remember what we were talking about.” (Id.) Karlee handed Stoughton the cash while
inside the store in the presence of Sherfey (T. at 381:389)
{¶30} Sherfey was convicted of receiving stolen property. R.C. 2913.51 states,
in part,
(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.
{¶31} R.C. 2901.22 defines “knowingly” as follows:
(B) 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.
{¶32} Whether a person acts knowingly can only be determined, absent a
defendant's admission, from all the surrounding facts and circumstances, including the
doing of the act itself.” (Footnotes omitted). State v. Huff, 145 Ohio App. 3d 555, 563,
763 N.E.2d 695(1st Dist. 2001). Thus, “[t]he test for whether a defendant acted
knowingly is a subjective one, but it is decided on objective criteria.” State v. McDaniel,
Fairfield County, Case No. 13-CA-37 12
2nd Dist. Montgomery No. 16221, 1998 WL 214606 (May 1, 1998) (citing State v. Elliott,
104 Ohio App. 3d 812, 663 N.E.2d 412(10th Dist. 1995)).
{¶33} R.C. 2925.01(K) defines possession as follows: “ ‘Possess' or ‘possession’
means having control over a thing or substance, but may not be inferred solely from
mere access to the thing or substance through ownership or occupation of the premises
upon which the thing or substance is found.” R.C. 2901.21 provides the requirements
for criminal liability and provides that possession is a “voluntary act if the possessor
knowingly procured or received the thing possessed, or was aware of the possessor's
control of the thing possessed for sufficient time to have ended possession.” R.C.
2901.21(D)(1).
{¶34} Possession may be actual or constructive. State v. Butler, 42 Ohio St. 3d
174, 176, 538 N.E.2d 98(1989); State v. Haynes, 25 Ohio St. 2d 264, 267 N.E.2d
787(1971); State v. Hankerson, 70 Ohio St. 2d 87, 434 N.E.2d 1362(1982), syllabus. To
establish constructive possession, the evidence must prove that the defendant was able
to exercise dominion and control over the contraband. State v. Wolery, 46 Ohio St. 2d
316, 332, 348 N.E.2d 351(1976). Dominion and control may be proven by circumstantial
evidence alone. State v. Trembly, 137 Ohio App. 3d 134, 738 N.E.2d 93(8th Dist. 2000).
Circumstantial evidence that the defendant was located in very close proximity to the
contraband may show constructive possession. State v. Butler, supra; State v. Barr, 86
Ohio App. 3d 227, 235, 620 N.E.2d 242, 247-248(8th Dist. 1993); State v. Morales, 5th
Dist. Licking No. 2004 CA 68, 2005-Ohio-4714, ¶50; State v. Moses, 5th Dist. Stark No.
2003CA00384, 2004-Ohio-4943,¶9. Ownership of the contraband need not be
established in order to find constructive possession. State v. Smith, 9th Dist. Summit
Fairfield County, Case No. 13-CA-37 13
No. 20885, 2002-Ohio-3034, ¶13, citing State v. Mann, (1993) 93 Ohio App. 3d 301,
308, 638 N.E.2d 585(8th Dist. 1993). Furthermore, possession may be individual or
joint. Wolery, 46 Ohio St. 2d at 332, 348 N.E.2d 351. Multiple individuals may
constructively possess a particular item of contraband simultaneously. State v. Pitts, 4th
Dist. Scioto No. 99 CA 2675, 2000-Ohio-1986. The Supreme Court has held that
knowledge of illegal goods on one's property is sufficient to show constructive
possession. State v. Hankerson, 70 Ohio St. 2d 87, 91, 434 N.E.2d 1362, 1365(1982),
certiorari denied, 459 U.S. 870, 103 S. Ct. 155, 74 L.Ed.2d 130(1982).
{¶35} If the state relies on circumstantial evidence to prove an essential element
of an offense, it is not necessary for “such evidence to be irreconcilable with any
reasonable theory of innocence in order to support a conviction.” State v. Jenks, 61
Ohio St. 3d 259, 272, 574 N.E.2d 492(1991), paragraph one of the syllabus,
superseded by State constitutional amendment on other grounds as stated in State v.
Smith, 80 Ohio St. 3d 89, 684 N.E.2d 668(1997). “Circumstantial evidence and direct
evidence inherently possess the same probative value [.]” Jenks, 61 Ohio St.3d at
paragraph one of the syllabus. Furthermore, “[s]ince circumstantial evidence and direct
evidence are indistinguishable so far as the jury's fact-finding function is concerned, all
that is required of the jury is that i[t] weigh all of the evidence, direct and circumstantial,
against the standard of proof beyond a reasonable doubt.“ Jenks, 61 Ohio St. 3d at 272,
574 N.E.2d 492. While inferences cannot be based on inferences, a number of
conclusions can result from the same set of facts. State v. Lott, 51 Ohio St. 3d 160, 168,
555 N.E.2d 293(1990), citing Hurt v. Charles J. Rogers Transp. Co, 164 Ohio St. 329,
331, 130 N.E.2d 820(1955). Moreover, a series of facts and circumstances can be
Fairfield County, Case No. 13-CA-37 14
employed by a jury as the basis for its ultimate conclusions in a case. Lott, 51 Ohio
St.3d at 168, 555 N.E.2d 293, citing Hurt, 164 Ohio St. at 331, 130 N.E.2d 820.
{¶36} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Sherfey committed the crime of receiving stolen property. We hold, therefore, that the
state met its burden of production regarding each element of the crime of receiving
stolen property and, accordingly, there was sufficient evidence to support Sherfey's
conviction for receiving stolen property.
{¶37} As an appellate court, we are not fact finders; we neither weigh the
evidence nor judge the credibility of witnesses. Our role is to determine whether there is
relevant, competent and credible evidence upon which the fact finder could base his or
her judgment. Cross Truck v. Jeffries, 5th Dist. No. CA–5758, 1982 WL 2911(Feb. 10,
1982). Accordingly, judgments supported by some competent, credible evidence going
to all the essential elements of the case will not be reversed as being against the
manifest weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St. 2d
279, 376 N.E.2d 578(1978). The Ohio Supreme Court has emphasized: “‘[I]n
determining whether the judgment below is manifestly against the weight of the
evidence, every reasonable intendment and every reasonable presumption must be
made in favor of the judgment and the finding of facts. * * *.’” Eastley v. Volkman, 132
Ohio St. 3d 328, 334, 972 N.E.2d 517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc.
v. Cleveland, 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio
Jurisprudence 3d, Appellate Review, Section 603, at 191–192 (1978). Furthermore, it is
well established that the trial court is in the best position to determine the credibility of
Fairfield County, Case No. 13-CA-37 15
witnesses. See, e.g., In re Brown, 9th Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing
State v. DeHass, 10 Ohio St .2d 230, 227 N.E.2d 212(1967).
{¶38} Ultimately, “the reviewing court must determine whether the appellant or
the appellee provided the more believable evidence, but must not completely substitute
its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact
finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,
¶31, quoting State v. Woullard, 158 Ohio App. 3d 31, 2004-Ohio-3395, 813 N.E.2d 964
(2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of
the evidence or two conflicting versions of events, neither of which is unbelievable, it is
not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning
No. 99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App. 3d 197,
201, 722 N.E.2d 125(7th Dist. 1999).
{¶39} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. DeHass, 10 Ohio St. 2d 230, 227 N.E.2d
212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St. 3d 67, 2011-
Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80,
62 S. Ct. 457, 86 L. Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S. Ct.
843, 74 L. Ed. 2d 646 (1983).
{¶40} The jury as the trier of fact was free to accept or reject any and all of the
evidence offered by the parties and assess the witness’s credibility. "While the jury may
take note of the inconsistencies and resolve or discount them accordingly * * * such
inconsistencies do not render defendant's conviction against the manifest weight or
sufficiency of the evidence." State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL
Fairfield County, Case No. 13-CA-37 16
29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236,
1996 WL 284714 (May 28, 1996). Indeed, the jury need not believe all of a witness'
testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin
No. 02AP-604, 2003-Ohio-958, ¶21, citing State v. Antill, 176 Ohio St. 61, 67, 197
N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889,
citing State v. Caldwell, 79 Ohio App. 3d 667, 607 N.E.2d 1096 (4th Dist. 1992).
Although the evidence may have been circumstantial, we note that circumstantial
evidence has the same probative value as direct evidence. State v. Jenks, supra.
{¶41} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” Thompkins, 78 Ohio St. 3d at 387, 678 N.E.2d 541,
quoting Martin, 20 Ohio App. 3d at 175, 485 N.E.2d 717. The jury neither lost his way
nor created a miscarriage of justice in convicting Sherfey of the charges.
{¶42} Based upon the foregoing and the entire record in this matter, we find
Sherfey’s convictions were not against the sufficiency or the manifest weight of the
evidence. To the contrary, the jury appears to have fairly and impartially decided the
matters before them. The jury as a trier of fact can reach different conclusions
concerning the credibility of the testimony of the state’s witnesses. This court will not
disturb the jury's finding so long as competent evidence was present to support it. State
v. Walker, 55 Ohio St. 2d 208, 378 N.E.2d 1049 (1978). The jury heard the witnesses,
evaluated the evidence, and was convinced of Sherfey’s guilt.
{¶43} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crime beyond a reasonable doubt.
Fairfield County, Case No. 13-CA-37 17
{¶44} Sherfey first assignment of error is overruled.
II.
{¶45} In the case at bar, value enhanced the offense from a first-degree
misdemeanor to a felony of the fifth degree. In his second assignment of error, Sherfey
contends that the trial judge erred by not instructing the jury that the definition of “value”
was fair market value, pursuant to R.C. 2913.61(D)(3), or, in the alternative, the trial
court should have used the definition of value under R.C. 2913.61(E)(5).
{¶46} The trial court, over objection by Sherfey, instructed the jury on value,
pursuant to R.C. 2913.61(E)(6) as follows:
When the property involved is an instrument entitling the holder or
bearer to receive property, the face value, or, if there is no face value, the
value of the property that may be received by the instrument is prima facie
evidence of the value of the instrument. (5T. at 922).
{¶47} Sherfey objected to this instruction and requested the trial court to instruct
the jury that the appropriate definition of value was fair market value, pursuant to R.C.
2913.61(D)(3), or, in the alternative, the trial court should have used the definition of
value under R.C. 2913.61(E)(5). (5 T. at 941-943).
{¶48} R.C. 2913.61(D) provides,
(3) The value of any real or personal property that is not covered
under division (D)(1) or (2) of this section, and the value of services, is the
fair market value of the property or services. As used in this section, “fair
market value” is the money consideration that a buyer would give and a
seller would accept for property or services, assuming that the buyer is
Fairfield County, Case No. 13-CA-37 18
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.
{¶49} R.C. 2913.61(E)(5) states,
(E) Without limitation on the evidence that may be used to establish
the value of property or services involved in a theft offense:
***
(5) When the property involved is a warehouse receipt, bill of
lading, pawn ticket, claim check, or other instrument entitling the holder or
bearer to receive property, the face value or, if there is no face value, the
value of the property covered by the instrument less any payment
necessary to receive the property is prima-facie evidence of the value of
the instrument.
{¶50} The giving of jury instructions is within the sound discretion of the trial
court and will not be disturbed on appeal absent an abuse of discretion. State v.
Martens, 90 Ohio App. 3d 338, 629 N.E.2d 462 (3rd Dist.1993). In order to find an abuse
of that discretion, we must determine the trial court's decision was unreasonable,
arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.
Blakemore, 5 Ohio St. 3d 217, 450 N.E.2d 1140(1983). Jury instructions must be
reviewed as a whole. State v. Coleman, 37 Ohio St. 3d 286, 525 N.E.2d 792(1988).
{¶51} “Error in refusing to give a special request to charge before argument
must be prejudicial in order to support reversal of a judgment rendered against a party
complaining of such error.” Smith v. Flesher, 12 Ohio St. 2d 107, 233 N.E.2d 137(1967),
Fairfield County, Case No. 13-CA-37 19
syllabus. It is well established that the trial court will not instruct the jury where there is
no evidence to support an issue. Riley v. Cincinnati, 46 Ohio St. 2d 287, 348 N.E.2d
135(1976). “In reviewing a record to ascertain the presence of sufficient evidence to
support the giving of a[n] * * * instruction, an appellate court should determine whether
the record contains evidence from which reasonable minds might reach the conclusion
sought by the instruction.” Murphy v. Carrollton Mfg. Co., 61 Ohio St. 3d 585, 591, 575
N.E.2d 828, 832 (1991).
{¶52} R.C. 2913.61(D). That section provides:
The following criteria shall be used in determining the value of
property or services involved in a theft offense:
(1) The value of an heirloom, memento, collector’s item, antique,
museum piece, manuscript, document, record, or other thing which has
intrinsic worth to its owner and which is either irreplaceable or is
replaceable only on the expenditure of substantial time, effort, or money,
is the amount which would compensate the owner for its loss.
(2) The value of personal effects and household goods, and of
materials, supplies, equipment, and fixtures used in the profession,
business, trade, occupation, or avocation of its owner, which property is
not covered under division (D)(1) of this section, and which retains
substantial utility for its purpose regardless of its age or condition, is the
cost of replacing such property with new property of like kind and quality.
(3) The value of any property, real or personal, not covered under
division (D)(1) or (2) of this section, and the value of services, is the fair
Fairfield County, Case No. 13-CA-37 20
market value of such property or services. As used in this section, ‘fair
market value’ is the money consideration which 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.
{¶53} The Ohio Supreme court has reviewed R.C. 2913.61(D) and concluded,
There are three methods for valuing property under this section,
which correspond to three different descriptions, or classifications of
property. In order to value an item in any given case the logical approach
is to compare it in successive order with each of the descriptions. When
the description which matches it is reached, the corresponding method of
valuation should be used.
State v. Chaney, 11 Ohio St. 3d 208, 210, 465 N.E.2d 53.(1984). The Court further
cautioned not more than one division may apply to any particular item. 11 Ohio St.3d at
255,465 N.E.2d 53.
{¶54} Division (D)(1) pertains to heirlooms and other items of intrinsic or unusual
worth. It is readily apparent that the gift cards in the case at bar do not meet these
qualifications.
{¶55} Division (D)(2) covers personal effects, household goods, and material,
supplies, equipment and fixtures used in the profession, business, trade, occupation or
avocation of the owner. Such property must not have been covered under division
(D)(1) and must be of a kind which retains substantial utility for its age and condition.
Fairfield County, Case No. 13-CA-37 21
The corresponding method of valuation is the cost of replacing the items with new ones
of like kind and quality. The gift cards in the case at bar do not meet this definition.
{¶56} Division (D)(3) is the catchall provision. Chaney, 11 Ohio St. 3d at 210, 465
N.E.2d 53. The corresponding method of valuation is the fair market value of such
property. As used in this section, “‘fair market value’ is the money consideration which 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.”
Sherfey argues first that the trial court should have instructed the jury that fair market
value is the correct valuation method. In the alternative Sherfey contends that under
R.C. 2913.16(E)(5) the value of the gift cards would be the face value of $1,162.48 less
the $348.00 he paid Stoughton for the gift cards. Sherfey argues under either definition,
the “value” would be less than the $1,000.00 needed to elevate the crime to a felony
offense.
{¶57} Although the evidence established that Sherfey paid 30% of the face value
of the cards to Stoughton, there is no evidence as to the amount Sherfey received for
the stolen gift cards. Nor does Sherfey point to any evidence in the record to establish
the price that a willing buyer would pay in the secondary gift card market.
{¶58} We do not subtract the cost of pulling off the caper when we calculate the
value of stolen property. The general test for determining the market value of stolen
property is the price a willing buyer would pay a willing seller at the time and place the
property was stolen.
Fairfield County, Case No. 13-CA-37 22
{¶59} In this case, there is no buyer, only a fence and there is no seller, only a
thief, so there is no way to determine what someone would have actually paid for the
gift cards in good faith. Cf. State v. Reese, 165 Ohio App. 3d 21, 2005-Ohio-7075, 844
N.E.2d 873(7th Dist. 2005), ¶30.
{¶60} The gift cards in this case were shown to have a face value the aggregate
of which exceeded $1,000.00. That is persuasive evidence of the potential value. United
States v. Perry, 638 F.2d 862, 865 (5th Cir.1981). When merchandise is stolen from a
merchant, market value is the sales price the merchant would have obtained for the
merchandise. United States v. Cummings, 798 F.2d 413, 416(10th Cir. 1986); United
States v. Robinson, 687 F.2d 359, 360(11th Cir. 1982). Thus, where the victim is a retail
merchant, the market value is the retail sales price. United States v. Wasz, 450 F.2d
720, 727-728(7th Cir. 2006); Cave v. United States, 390 F.2d 58, 67 (8th Cir.1968), cert.
denied, 392 U.S. 906, 88 S. Ct. 2059, 20 L. Ed. 2d 1365 (1968).
{¶61} In the case at bar, an individual possessing a gift card could take that card
to the retailer and redeem it for the full face value of the card. The retailer would then
lose cash or merchandise equal to the face value of the gift card.
{¶62} The trial court’s instruction on “value” did not prejudice Sherfey because
there was no evidence to support Sherfey’s requested instructions.
{¶63} Sherfey’s second assignment of error is overruled.
Fairfield County, Case No. 13-CA-37 23
{¶64} The judgment of the Court of Common Pleas, Fairfield County, Ohio is
affirmed.
By Gwin, P.J.,
Wise, J., and
Delaney, J., concur