State v. Jennings ( 2013 )

[Cite as State v. Jennings, 2013-Ohio-5428.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99631
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
KIMBRELL JENNINGS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
FOR RESENTENCING
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-565749
BEFORE: Boyle, P.J., Jones, J., and Blackmon, J.
RELEASED AND JOURNALIZED: December 12, 2013
ATTORNEY FOR APPELLANT
Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Nicole Ellis
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:
{¶1} Defendant-appellant, Kimbrell Jennings, appeals his conviction and
sentence. He raises three assignments of error for our review:
1. The trial court erred in denying appellant’s motion for acquittal as to the
[theft] charge when the state failed to present sufficient evidence to sustain
a conviction.
2. Appellant’s conviction is against the manifest weight of the evidence.
3. The trial court erred in ordering restitution in the amount of $3,300
without holding a hearing and without holding a hearing on appellant’s
ability to pay.
{¶2} Finding some merit to his appeal, we affirm in part, reverse in part, and
remand for resentencing.
Procedural History and Factual Background
{¶3} In August 2012, Jennings was charged with four counts: burglary in
violation of R.C. 2911.12(A)(2); theft in violation of R.C. 2913.02(A)(1) with a
furthermore clause that the victim was elderly and the value of the property stolen was
between $1,000 and $7,500; vandalism in violation of R.C. 2909.05(A); and possessing
criminal tools in violation of R.C. 2923.24(A). He pleaded not guilty to the charges and
waived his right to a jury trial. The following evidence was presented to the bench.
{¶4} Kathy Stewart testified that in August 2012, she was living at 4348 East
141st Street, in Cleveland, Ohio. Stewart stated that on August 8, 2012, at around 10:00
or 11:00 a.m., she saw a man, who she knew as “K.B.,” carrying lamps from her
neighbor’s house, “two doors up from her house,” to another house across the street —
from 4340 East 141st Street to 4347 East 141st Street. She identified Jennings as the
man she knows as K.B. Stewart testified that K.B. also lives two houses away from her,
but in the opposite direction. Stewart said that her neighbors who lived at 4340 East
141st Street were on vacation at the time their home was being burglarized.
{¶5} Stewart called 911. She identified her voice on the 911 tape that was
played in court. On the 911 tape, Stewart described what K.B. was wearing. When
police arrived about ten minutes later, she told them where K.B. was.
{¶6} Ethel Crowder, the victim, testified that she owned the home at 4340 East
141st Street, in Cleveland, Ohio, but she no longer lived there. She explained that she
rented the house out to her granddaughter, her granddaughter’s friend, and her
great-granddaughter.
{¶7} Crowder testified that police told her on August 8, 2012, that her house at
4340 East 141st Street had been burglarized. Crowder testified that her granddaughter
and great-granddaughter had gone to North Carolina approximately five days before the
burglary; they were supposed to be gone for one week. Crowder said that she went by
the house every day to check on it while they were gone.
{¶8} Crowder testified that when she went to her home at 4340 East 141st Street
with police, many items were missing, including a window air conditioner, copper pipes
to the hot water tank and kitchen sink, the kitchen counter, sink, and faucet, and a storm
door on the back of the house. Crowder further testified that many other items were
damaged, including her front door, an interior door, custom blinds, kitchen walls, and a
window on the back of the house. Her bathroom was also completely “tore up.” She
said that her bathroom sink was lying on the floor and “everything was gone.”
{¶9} Crowder testified that her granddaughter never came back to live at the
house again because it was damaged from the burglary.
{¶10} On cross-examination, Crowder denied that her granddaughter had
abandoned the house. She further denied that she ever told police that her
granddaughter did not intend to come back to the house.
{¶11} Officer Brent Scaggs testified that on August 8, 2012, he responded to
reports of a burglary on East 141st Street. When he and his partner arrived to the area,
his partner saw two or three men running. They got out of their police vehicle and
chased the men. Officer Scaggs stated that he saw a man wearing clothes that matched
the description given to the radio dispatcher — blue pants and a gray top. Officer
Scaggs stated that the man looked like he was trying to get away from the police, but he
was limping. Officer Scaggs yelled to the man, who then stopped. The man “sighed,”
like he knew he “screwed up.” Officer Scaggs handcuffed the man. He identified
Jennings as the man he caught that day.
{¶12} Officer Scaggs said that they found an air conditioning unit lying in the
backyard of the house across the street (4337 East 141st Street) from Crowder’s house.
The woman who lived at 4337 East 141st Street had no idea about the burglary or who
was involved.
{¶13} Officer Scaggs testified on cross-examination that when he arrived on the
scene, he did not see Jennings with anything in his hands. He further testified that the
house that had been burglarized had a lot of damage. He opined that it “looked like it
was lived in at one time.” He further stated that it looked like someone just went in the
house and started “dismantling stuff.” Officer Scaggs testified that neighbors told him
that “as of three weeks previous, there had been people living in the house.”
{¶14} Officer Richard Varndell testified that Officer Scaggs is his partner.
Officer Varndell said that he and Officer Scaggs responded to the call at 4340 East 141st
Street. He recalled that the description given over the radio was a black male wearing a
gray shirt and blue pants. As they approached the area, he saw two males run toward the
driveway of 4337 East 141st Street. Officer Varndell ran one way and Officer Scaggs
ran another way. Officer Varndell did not catch any of the males.
{¶15} Officer Varndell stated that they secured Jennings in the back of the police
vehicle. They then walked to the house that had been burglarized. He said that the
interior of the house had been “trashed” and that items were “thrown throughout every
room.” He said that they did find some mail in the living room; some of it was “only a
few weeks old.” Officer Varndell stated that they learned “that the occupant of that
home had moved.” But he also said that he had heard that the people who lived there
were out of town.
{¶16} Officer Varndell testified that after they left the burglarized house, they
went back to 4337 East 141st Street. They found “a window air conditioner unit, a blue
tub full of cut out copper piping, some sinks, faucet.”
{¶17} Officer Varndell admitted on cross-examination that he and his partner
never took the items they found in the backyard of 4337 East 141st Street to the house
that had been burglarized to see if they “fit” in the missing places. He further admitted
that he could not say for sure that the items that they found were from the burglarized
home.
{¶18} At the close of the state’s case, Jennings moved for a Crim.R. 29 acquittal
on all counts. The trial court granted it with respect to Count 1, burglary, but denied it
with respect to Counts 2, 3, and 4 (theft, possessing criminal tools, and vandalism).
{¶19} After Jennings rested, the trial court found him guilty of theft as charged in
the indictment, but not guilty of vandalism or possessing criminal tools.
{¶20} The trial court sentenced Jennings to one-and-a-half years of community
control supervision (Group C) and ordered him to pay $3,300 in restitution to the victim.
It is from this judgment that Jennings appeals.
Sufficiency of the Evidence
{¶21} In his first assignment of error, Jennings maintains that the trial court erred
when it denied his Crim.R. 29 motion with respect to theft. He argues that the state
failed to present sufficient evidence to establish that he stole anything, nor was there any
evidence regarding the value of the property stolen.
{¶22} Whether a conviction is supported by sufficient evidence is a question of
law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d
541 (1997). When considering a challenge to the sufficiency of the evidence, the court
must determine whether the prosecution has met its burden of production. Id. at 390
(Cook, J., concurring). In making this determination, an appellate court must:
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.
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶23} Jennings was convicted of theft under R.C. 2913.02(A)(1), 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.” The theft count included a
furthermore clause (which elevated the offense to a fourth-degree felony) that the victim
of the offense was an elderly person and that the value of the property stolen was between
$1,000 and $7,500.
{¶24} Jennings first challenges the state’s evidence that he committed a theft. He
maintains that the state failed to prove that he stole anything out of the victim’s home.
{¶25} The state presented evidence from Crowder’s neighbor, Stewart, that she
saw Jennings (who she knew as her neighbor, K.B.) carrying a lamp out of Crowder’s
home to a house across the street. The police found several items — that Crowder
identified as taken from her home — in the backyard of the house across the street from
Crowder’s. Jennings acknowledges that police found several items, but maintains that
police never found a lamp with the other property items that were found. While this is
true, it does not mean that the state failed to present sufficient evidence of theft. The
statute does not require the state to enter the stolen items into evidence. It merely
requires the state to prove, through direct or circumstantial evidence, that Jennings
knowingly exerted control over Crowder’s property, without her consent, and with the
purpose to deprive Crowder of that property. The state did so here.
{¶26} Jennings next argues that the state did not prove the value of the property
taken. We disagree.
{¶27} Under R.C. 2913.61(D), “the following criteria shall be used in determining
the value of property or services involved in a theft offense: (2) The value of personal
effects and household goods, * * * is the cost of replacing the property with new property
of like kind and quality.” “[C]ircumstantial evidence, including photographs of personal
property, may be used to prove the value of stolen items in a theft offense.” State v.
Pesec, 11th Dist. Portage No. 2006-P-0084, 2007-Ohio-3846, ¶ 40. See also State v.
Jones, 5th Dist. Tuscarawas No. 2002-AP-05-0041, 2003-Ohio-445 (finding trial court
properly admitted victim testimony regarding value of the stolen property); State v. Allen,
5th Dist. Stark No. 2002CA00059, 2003-Ohio-229 (finding trial court properly permitted
witnesses to testify to value of stolen items); and In re Lame, 11th Dist. Portage Nos.
96-P-0256, 96-P-0266, and 96-P-0267, 1998 Ohio App. LEXIS 4532 (Sept. 25, 1998)
(finding proper replacement value based on trial testimony from theft victims).
{¶28} The state introduced numerous photos of Crowder’s home where fixtures
and copper piping were missing, as well as photos of property that were found in the
neighbor’s yard. Crowder identified the items in the photos that were missing, as well as
items that were found in the yard. She testified that the items found lying the yard had
been taken out of her home.
{¶29} Further, Crowder testified that she obtained an estimate as to what it would
cost to replace and fix everything in her home; it was $10,000. Although some of this
money was for repairs, this evidence was sufficient — in a light most favorable to the
state — to establish that Crowder had at least $1,000 of property taken from her home.
{¶30} At oral argument, Jennings raised an issue with respect to sufficiency of the
evidence that he did not raise in his brief. He argued that the state failed to present
sufficient evidence regarding the elderly specification because it failed to establish
Crowder’s age. We agree.
{¶31} To convict Jennings of theft from an elderly person, the state, in addition to
establishing the theft offense and the value of the property, was required to prove that the
victim was 65 years of age or older. R.C. 2913.01(CC). Although Crowder testified
that she owned her home for 50 years, that does not establish that she is at least 65 years
old. Accordingly, the state only presented sufficient evidence of the theft offense and the
value of the property being between $1,000 and $7,500. This makes Jennings’s theft
offense a fifth-degree felony instead of a fourth-degree felony. R.C. 2913.02(B).
{¶32} Accordingly, Jennings’s first assignment of error is sustained in part and
overruled in part.
Manifest Weight of the Evidence
{¶33} In his second assignment of error, Jennings contends that his conviction for
theft was against the manifest weight of the evidence. He argues that there was no
credible evidence “linking” him to the crime of theft. He claims that a “miscarriage of
justice occurred.”
{¶34} In reviewing a claim challenging the manifest weight of the evidence:
[t]he question to be answered is whether there is substantial evidence upon
which a jury could reasonably conclude that all the elements have been
proved beyond a reasonable doubt. In conducting this review, we must
examine the entire record, weigh the evidence and all reasonable inferences,
consider the credibility of the witnesses, and determine whether the
[factfinder] clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial ordered.
(Quotes and citations omitted.)
State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 81. In making
this determination, this court is mindful that “[e]valuating the evidence and assessing
credibility are primarily for the trier of fact.” State v. Shue, 97 Ohio App.3d 459, 466,
646 N.E.2d 1156 (9th Dist.1994).
{¶35} After review, we disagree with Jennings’s argument that his theft conviction
is against the manifest weight of the evidence. The trial court heard evidence from
Stewart, Crowder’s neighbor, that Stewart saw “K.B.” taking things out of Crowder’s
house and carrying them across the street. Stewart identified “K.B.” in court as Jennings,
stating that she knew him because he was her neighbor; he lived two doors down from her
in the opposite direction from where Crowder lived.
{¶36} Crowder also testified that many items had been taken from her house,
including copper piping throughout the house, a window air-conditioning unit, and
several kitchen fixtures. Police found many of these items in the backyard of the
neighbor who lived across the street from Crowder — exactly where Stewart saw
Jennings walking with items from Crowder’s house.
{¶37} Accordingly, after reviewing the entire record, weighing the evidence and
all reasonable inferences, and considering the credibility of the witnesses, we find that the
trial court, as the factfinder, did not clearly lose its way and create such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.
{¶38} Jennings second assignment of error is overruled.
Restitution
{¶39} In his third assignment of error, Jennings maintains that the trial court erred
when it ordered him to pay $3,300 in restitution to the victim without a hearing and when
it failed to determine in a hearing that he had the ability to pay the restitution.
{¶40} We review an order of restitution for an abuse of discretion. State v.
Marbury, 104 Ohio App.3d 179, 181, 661 N.E.2d 271 (8th Dist.1995).
{¶41} Jennings argues that his trial counsel informed the court that he was
applying for social security disability. Jennings further points out that the trial court was
aware that he was indigent because it appointed counsel for him at his arraignment and
for purposes of appeal.
{¶42} R.C. 2929.18(A)(1) authorizes the trial court to impose restitution, based
upon the victim’s economic loss, as a financial sanction. The statute provides, in
pertinent part:
If the court imposes restitution, at sentencing, the court shall determine the
amount of restitution to be made by the offender. If the court imposes
restitution, the court may base the amount of restitution it orders on an
amount recommended by the victim, the offender, a presentence
investigation report, estimates or receipts indicating the cost of repairing or
replacing property, and other information, provided that the amount the
court orders as restitution shall not exceed the amount of the economic loss
suffered by the victim as a direct and proximate result of the commission of
the offense. If the court decides to impose restitution, the court shall hold
a hearing on restitution if the offender, victim, or survivor disputes the
amount.
{¶43} Ohio courts have expressly held that the fact that a defendant is indigent
does not prohibit trial courts from imposing financial sanctions, including restitution.
See State v. Cooper, 11th Dist. Lake No. 2002-L-091, 2004- Ohio-529, ¶ 16; State v.
Moore, 12th Dist. Butler No. CA2002-12-307, 2003-Ohio- 6255, ¶ 37; State v. Coleman,
8th Dist. Cuyahoga No. 82394, 2004-Ohio-234, ¶ 35. Thus, the fact that appellant is
indigent is not a bar to the imposition of restitution.
{¶44} Prior to imposing restitution, a trial court “shall consider the offender’s
present and future ability to pay the amount of the sanction or fine.” R.C.
2929.19(B)(6). There must be some evidence in the record the trial court considered
defendant’s present and future ability to pay the sanction. State v. Cosme, 8th Dist.
Cuyahoga No. 90075, 2008-Ohio-2811, ¶ 34. “‘While a court is neither required to hold
a hearing to make this determination nor to indicate in its judgment entry that it
considered a criminal defendant’s ability to pay, there must be some evidence in the
record to show that the court did consider this question.’” Id., quoting State v. Berry,
6th Dist. Lucas No. L05-1048, 2007-Ohio-94.
{¶45} At Jennings’s sentencing hearing, defense counsel informed the court:
As Mr. Jennings stands here now he is really, he’s on a disability, your
Honor. He is trying to get this disability for social security. He’s been
trying to get it for 18 months and he has not been able to get it. He is
receiving SSI. There is a lump sum of money they owe him he is trying to
get.
{¶46} Jennings then spoke to the court, admitting that he “made some very bad
decisions” in his past. But Jennings explained that he is “trying to do better,” and stated
he has “a stable income now” and a “stable residence.”
{¶47} The trial court imposed one-and-a-half years of community control sanctions
and ordered that Jennings pay $3,300 in restitution to the victim. Defense counsel
objected to the restitution, arguing that there was no evidence in the record that the victim
had $3,300 in economic loss. The state responded that the victim provided the court
with a letter for sentencing where she listed the cost to replace the items that were stolen
from her home, including $3,300 for copper piping. The state further stated that the trial
court made a specific finding that Jennings removed copper piping from the victim’s
home. The trial court overruled Jennings’s objection and ordered that he pay $3,300 in
restitution.
{¶48} After review, we find that there was “some evidence” in the record that the
trial court considered Jennings’s present and future ability to pay the restitution. We
further find that the trial court based the amount of restitution on an amount
recommended by the victim in her letter, i.e., the amount it would cost her to replace the
copper piping.
{¶49} Accordingly, Jennings’s third assignment of error is overruled.
{¶50} Because we sustained Jennings first assignment of error in part, which
makes his theft offense a fifth-degree felony rather than a fourth-degree felony, Jennings
must be resentenced.
{¶51} Judgment affirmed in part and reversed in part with respect to the elderly
specification and remanded for resentencing on a fifth-degree felony theft offense.
It is ordered that appellee and appellant share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
LARRY A. JONES, SR., J., and
PATRICIA ANN BLACKMON, J., CONCUR