State v. Dotson , 114 N.E.3d 390 ( 2018 )

[Cite as State v. Dotson, 2018-Ohio-2481.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
BRYAN M. DOTSON,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 16 MA 0105.
Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 15 CR 613.
BEFORE:
Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed in Part. Reversed in Part. Remanded.
Atty. Richard Ferrara, 2077 East Fourth Street, Second Floor, Cleveland, Ohio 44114,
for Defendant-Appellant and,
Atty. Paul Gains, Mahoning County Prosecutor and Atty. Ralph M. Rivera, Office
Mahoning County Prosecutor, 21 W. Boardman Street, 6th Floor, Youngstown, Ohio
44503, for Plaintiff-Appellee.
Dated:
June 22, 2018
–2–
Donofrio, J.
{¶1} Defendant-appellant, Bryan Dotson, appeals from a Mahoning County
Common Pleas Court judgment convicting him of receiving stolen property in the form of
a vehicle and tampering with vehicle identifying numbers, following a jury trial.
{¶2} On May 22, 2014, Ohio State Highway Patrol Trooper Erik Golias initiated
a traffic stop of appellant on State Route 46 in Mahoning County, Ohio. Trooper Golias
initiated the traffic stop due to appellant’s truck not displaying a front-end license plate.
Appellant was operating a Dodge Ram pickup truck.
{¶3} Upon approaching appellant’s vehicle, Trooper Golias noticed that the
truck’s steering column had been “peeled,” meaning that the plastic around the ignition
had been pulled away from the steering column to access the ignition mechanisms. He
was then under the suspicion that the truck appellant was operating may have been
stolen or tampered with. Upon noticing the peeled steering column, he removed
appellant from the truck, conducted a consensual pat-down, and placed appellant in his
police cruiser. Trooper Golias then attempted to identify the public vehicle identification
number (VIN), which is located on the dashboard, but was unable to do so because
there was black spray paint on the windshield which covered the VIN. Trooper Golias
also discovered a secondary VIN on the truck inside the door frame that was also
covered with black spray paint. Eventually, Trooper Golias was able to scrape away
enough of the spray paint on the windshield to ascertain the public VIN. The public VIN
indicated that the truck belonged to appellant.
{¶4} There were several other factors that lead to Trooper Golias’ suspicion
that the truck appellant was operating was stolen, which lead to a continued search.
These factors included: a cracked dashboard, missing screws from the dashboard,
appellant’s apparent level of nervousness, appellant’s overtalkative nature, and
appellant’s explanation that he changed out the dashboard but the newly installed
dashboard was damaged. Appellant attempted to explain that he purchased the truck
inexpensively and had replaced many components including the interior and the
windshield. Trooper Golias contacted Trooper Skaggs, who was a specialist in stolen
vehicles, to assist with the investigation.
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{¶5} Upon Trooper Skaggs’ arrival at the scene, he began to investigate the
truck. First, he noted that an anonymous tip was reported stating that there was a
Dodge Ram pickup truck matching the description of the truck appellant was operating
that was possibly a retagged vehicle. Trooper Skaggs also noted that: the door
markings identified the truck as a Dodge 1500 series but the chassis was a Dodge 2500
series; the dashboard itself was a different color than the rest of the interior of the truck;
and the truck’s engine was missing its body tag. Furthermore, Trooper Skaggs noticed
that the truck’s VIN indicated that the truck contained a 5.9 liter gas engine but the truck
had a 5.9 liter turbo Cummins intercooled diesel engine.
{¶6} At the conclusion of Trooper Skaggs’ inspection, Troopers Golias and
Skaggs impounded appellant’s truck in order to perform a more thorough investigation.
But they decided not to arrest appellant at that time. They gave appellant the option of
transporting the truck to the highway patrol post himself or having the troopers call for a
tow truck. Appellant opted to drive the truck to the highway patrol post himself.
Appellant was then free to leave after he left the truck in the troopers’ possession.
{¶7} The next day, Trooper Skaggs continued his investigation of the vehicle.
He located the secondary concealed VIN on the truck. The secondary VIN did not
match the public VIN located on the dashboard. When he ran the secondary VIN
through the National Insurance Crime Bureau (NICB) and the National Crime
Information Center (NCIC) databases, he discovered that the secondary VIN was for a
Dodge 2500 series truck reported as stolen from Cornerstone Motors (Cornerstone) in
Columbiana, Ohio. Trooper Skaggs also followed up with the public VIN on the
dashboard and discovered the original owner, Amanda Varney. Varney told him that
she had sold appellant a maroon Dodge Ram 1500.
{¶8} Trooper Skaggs also noted that the truck registered as stolen indicated it
had approximately 141,000 miles on it. Appellant’s odometer at the time he was
stopped by Trooper Golias read 145,213 miles. But the title of the vehicle when Varney
sold the truck to appellant indicated that the truck she sold had almost 250,000 miles on
it. Trooper Skaggs then concluded that the VIN of the vehicle appellant purchased from
Varney was placed on the stolen vehicle from Cornerstone in order to conceal the fact
that it was stolen.
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{¶9} Appellant was then charged and indicted with one count of receiving
stolen property in the form of a vehicle, a fourth-degree felony in violation of R.C.
2913.51(A), and one count of tampering with vehicle identifying numbers, a fifth-degree
felony in violation of R.C. 4549.62(A).
{¶10} Appellant filed a motion to suppress seeking to exclude virtually all
evidence police obtained in this case. In his supporting memorandum, appellant argued
that all evidence should be suppressed due to: a lack of reasonable suspicion to
conduct a traffic stop, a lack of reasonable suspicion to continue appellant’s detention
and the investigation of the truck, and any and all statements made by appellant were
obtained prior to appellant being read his Miranda rights. At the suppression hearing,
Trooper Golias testified that a video tape of appellant’s stop and detention existed. But
the video had not been produced because it was erased by the Ohio State Highway
Patrol.
{¶11} After the suppression hearing, the trial court gave appellant leave to file a
motion addressing the missing tape. Appellant filed a motion to dismiss on the basis
that the erased video tape contained potentially exculpatory evidence and should have
been preserved and disclosed by the prosecution. Appellant requested a hearing with
the trial court on his motion to dismiss. The trial court overruled both appellant’s motion
to suppress and motion to dismiss without further hearing.
{¶12} The matter proceeded to a jury trial. Troopers Golias and Skaggs were
the only witnesses. The jury returned guilty verdicts on both counts. The trial court
subsequently sentenced appellant to five years of community control, which included six
months of incarceration on each count to be served consecutively for a total jail
sentence of one year. The court also ordered appellant to pay restitution of $1,000 to
Cornerstone and $10,713.38 to Auto Owner’s Insurance, Cornerstone’s insurance
company.
{¶13} Appellant timely filed this appeal on July 15, 2016. He now raises ten
assignments of error.
{¶14} Appellant’s first assignment of error states:
THE TRIAL COURT ERRED IN FAILING TO SUPPRESS ALL
EVIDENCE, INCLUDING OBSERVATIONS AND CONCLUSIONS, FROM
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THE UNCONSTITUTIONAL STOP, SEIZURE, AND SEARCH OF
APPELLANT AND HIS VEHICLE.
{¶15} Appellant makes several arguments concerning this assignment of error.
First, appellant argues that he was arrested as a result of his original traffic stop and
such arrest and subsequent search of the truck was not supported by probable cause.
Next, appellant argues that he was unconstitutionally seized when Troopers Golias and
Skaggs prolonged his traffic stop. Finally, appellant argues that the seizure of the truck
was unconstitutional because it was done so without a warrant or an exception to the
warrant requirement.
{¶16} A motion to suppress presents a mixed question of law and fact. When
considering a motion to suppress, the trial court assumes the role of trier of fact and is
therefore in the best position to resolve factual questions and evaluate witness
credibility. State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, 797 N.E.2d 71,
¶ 8. The appellate court must accept the trial court’s findings of fact if they are
supported by competent and credible evidence. Id. Accepting these facts as true, the
appellate court must then independently determine, without deference to the conclusion
of the trial court, whether the facts satisfy the applicable legal standard. Id.
{¶17} The only witness who testified at the suppression hearing was Trooper
Golias. He testified that he initiated the traffic stop for failure to display a front license
plate on an Ohio-registered motor vehicle. (Supp. Tr. 14-15, 33, Exhibit 1). This
testimony was not contradicted throughout the suppression hearing. As operating a
motor vehicle without a front license plate is a violation of R.C. 4503.21, sufficient
reasonable suspicion existed for Trooper Golias to stop appellant.
{¶18} Next, appellant argues that he was arrested without probable cause when
Trooper Golias immediately removed him from the truck and placed him in the police
cruiser. An arrest involves four elements: (1) an intent to arrest; (2) under a real or
pretended authority; (3) an actual or constructive seizure or detention of a person; and
(4) the intent is understood by the person arrested. State v. Darrah, 64 Ohio St. 2d 22,
412 N.E.2d 1328 (1980).
{¶19} Appellant points out the following portion of the suppression hearing
transcript during Trooper Golias’ cross examination:
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Q I understand that. I understand that. But that’s what was told to
you. And at this time, there was a key in the ignition; correct?
A I don’t recall, but I believe so.
***
Q Okay. Okay. And I notice that the - - so then you opened the door,
and you look in the side to see if you see a VIN number; is that what you
said?
A No. I said Federal Identification.
Q Federal Identification number. Okay. Now, up to this point you still
haven’t asked him his name, have you?
A No, I have not.
Q You haven’t asked him for any identification, proof of insurance,
registration; correct?
A No. Right now I’m worried about a felony of a stolen vehicle.
***
Q So just by looking at - - so you don’t ask him name, anything about
him until later on, nine minutes later by your notes; right?
A I believe that’s when I asked him, after I had the scene secured.
Q Okay. And as far as you ordered him out of the car; right?
A Correct.
Q Okay. And where was he placed at that time?
A He was taken to the front of my patrol car.
Q Okay. And he was put in your patrol car?
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A Yes, he was.
Q He wasn’t free to leave at that time; correct?
A No, he was not.
(Supp. Tr. 35-37).
{¶20} According to this passage, Trooper Golias pulled appellant over, noticed a
peeled steering column and spray paint on the windshield covering the VIN on the
dashboard, and then immediately placed appellant in the front seat of his police cruiser.
The state argues that this was not an arrest but an investigatory detention.
{¶21} Generally, an investigatory detention is reasonable and, thus, passes
constitutional muster when the officer performing the investigatory detention has
reasonable and articulable suspicion of criminal activity. State v. Warner, 7th Dist. No.
15 CO 0026, 2016-Ohio-4660 ¶ 33 citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868
(1968). An investigatory detention constitutes a seizure which implicates the Fourth
Amendment. State v. Walker, 7th Dist. No. 03 MA 0238, 2004-Ohio-5790 ¶ 14 citing
State v. Taylor, 106 Ohio App. 741, 667 N.E.2d 60 (2d Dist.1995). An investigatory
detention is limited in duration and purpose and can only last as long as it takes for a
police officer to confirm or dispel his suspicions. Id. quoting Taylor, 106 Ohio App.3d at
748. The actions of a police officer in asking a person to sit in the police car do not
automatically transform an investigatory detention into a formal arrest. State v. Pickett,
8th Dist. No. 76295, 2000 WL 1060653 (Aug. 3, 2000).
{¶22} This Court has addressed investigatory detentions in State v. Coleman,
7th Dist. No. 06 MA 0041, 2007-Ohio-1573. In that case, Coleman was pulled over for
speeding and could not produce his license, registration, or proof of insurance. Id. at ¶
5. Coleman was then placed in a police squad car while the officer determined
Coleman’s identity. Id. at ¶ 6. This Court held that the act of relocating a person to a
police car did not elevate the traffic stop to the level of an arrest. Id. at ¶ 38. This rule
has also been adopted by the Ninth District. See State v. Carlson, 102 Ohio App. 3d
585, 596, 657 N.E.2d 591 (9th Dist.1995).
{¶23} In this case, appellant was lawfully pulled over for failure to display a front
license plate on an Ohio registered vehicle. (Supp. Tr. 14-15, 33, Exhibit 1). Upon
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arriving at the truck, Trooper Golias noticed that there was paint over the VIN and that
the steering column was peeled, which indicated that the truck was stolen. (Supp. Tr.
15-17). Furthermore, appellant made statements concerning the VIN, which indicated
to Trooper Golias that appellant knew what he was searching for and where those
numbers were located. (Supp. Tr. 19-21). Finally, like the defendant in Coleman,
appellant did not have his driver’s license on him when Trooper Golias initiated the
traffic stop. (Supp. Tr. 22). Ultimately, when Trooper Golias relocated appellant to his
squad car, this was an investigatory detention and not a warrantless arrest.
{¶24} Next, appellant argues that his detention was unreasonably prolonged,
which ultimately resulted in an unconstitutional seizure. The scope of a detention must
be carefully tailored to its underlying justification and last no longer than is necessary to
effectuate the purpose of the stop. State v. Blackburn, 115 Ohio App. 678, 685 N.E.2d
1327 (7th Dist.1996). The reasonable and articulable standard applied to a prolonged
traffic stop encompasses the totality of the circumstances and a court may not evaluate
each articulated reason for the stop. State v. Batchili, 113 Ohio St. 3d 403, 2007-Ohio-
2204, 865 N.E.2d 1282, at paragraph two of the syllabus citing United States v. Arvizu,
534 U.S. 266, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002).
{¶25} For the reasons previously set forth, there was sufficient reasonable
suspicion to initiate the traffic stop and sufficient reasonable articulable suspicion cause
to expand the scope from that of a minor traffic offense to an investigation into a
possible stolen vehicle. This would include Trooper Golias requesting another officer’s
presence who specializes in the investigation of stolen vehicles. Ultimately, appellant’s
prolonged detention was reasonable under the totality of the circumstances.
{¶26} Finally, appellant argues that Troopers Golias and Skaggs did not have a
warrant to seize his car and there was no valid warrant exception. Appellant cites R.C.
4549.63(A), which states that law enforcement may seize a vehicle based on probable
cause to believe that any vehicle identification number has been covered but the
seizure must be pursuant to a warrant unless the circumstances are within one of the
warrant exceptions established by the Ohio Supreme Court or the United States
Supreme Court. The state argues that the automobile exception excused the warrant
requirement.
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{¶27} Once a law enforcement officer has probable cause to believe that a
vehicle contains contraband, he or she may search a validly stopped automobile based
on the automobile exception. State v. Moore, 90 Ohio St. 3d 47, 51, 734 N.E.2d 804
(2000) citing Maryland v. Dyson, 527 U.S. 465, 119 S. Ct. 2013, 144 L. Ed. 2d 442
(1999). “The automobile exception allows police to conduct a warrantless search of a
vehicle if there is probable cause to believe that the vehicle contains contraband or
other evidence that is subject to seizure, and exigent circumstances necessitate a
search or seizure.” State v. Mills, 62 Ohio St. 3d 357, 367, 582 N.E.2d 972 (1992) citing
Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970). The
mobility of automobiles often creates exigent circumstances, and is the traditional
justification for this exception to the warrant requirement of the Fourth Amendment. Id.
citing California v. Carney, 471 U.S. 386, 105 S. Ct. 2066, 85 L. Ed. 2d 406 (1985).
{¶28} For the reasons previously stated, Trooper Golias’ stop of appellant was
valid. Also for the reasons previously stated, there was probable cause to believe that
the truck was stolen due to the peeled steering column, missing screws in the
dashboard, cracked dashboard, and the concealed identification numbers. The fact that
appellant was not arrested when Troopers Golias and Skaggs seized the truck does not
negate the fact that there was sufficient probable cause for the troopers to seize the
truck. Ultimately, because the contraband at issue was the truck and sufficient probable
cause to believe it was stolen existed, the troopers’ seizure of the truck was not a
violation of appellant’s Fourth Amendment right to be free from an unreasonable seizure
as it was pursuant to the automobile exception of the warrant requirement.
{¶29} Accordingly, appellant’s first assignment of error is without merit and is
overruled.
{¶30} Appellant’s second assignment of error states:
THE TRIAL COURT ERRED IN ADMITTING HEARSAY
TESTIMONY AND DOCUMENTS, AS WELL AS OPINION TESTIMONY
BY AN OFFICER, FOR WHICH NO EXCEPTION EXISTED UNDER THE
RULES OF EVIDENCE.
{¶31} Appellant argues that the opinions and evidence that led the troopers to
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conclude that the truck was stolen constituted hearsay and should have been excluded
at trial. Furthermore, appellant argues that the trial court inappropriately allowed
Trooper Skaggs to testify about his personal opinion that appellant committed a crime.
{¶32} The admission of evidence is within the discretion of the trial court and the
court’s decision will only be reversed upon a showing of abuse of discretion. State ex
rel. Sartini v. Yost, 96 Ohio St. 3d 37, 2002-Ohio-3317, 770 N.E.2d 584. This includes
rulings on hearsay. State v. Rupp, 7th Dist. No. 05 MA 0166, 2007-Ohio-1561, ¶ 78.
Abuse of discretion implies that the court acted in an unreasonable, arbitrary, or
unconscionable manner. State ex rel. Sartini at ¶ 21, citing State v. Herring, 94 Ohio St.
3d 246, 2002-Ohio-796, 762 N.E.2d 940.
{¶33} As appellant raise numerous challenges, we will examine each in turn.
{¶34} First, appellant challenges testimony from Trooper Skaggs regarding the
condition the truck was in at the time appellant purchased it from Varney. (Trial Tr. 309-
310, 316). Trooper Skaggs testified that the truck was maroon when Varney sold it to
appellant. (Trial Tr. 309). He further testified that the VIN on the truck indicated that it
should have had a different engine than the engine that was actually in the truck. (Trial
Tr. 310). And he testified that a photograph of the truck provided by Varney showed
that the truck did not have a gap between the headlights and the bumper at the time of
the sale. (Trial Tr. 316). Appellant objected to the trooper’s testimony as to what
Varney told him on the basis of hearsay. (Trial Tr. 309, 310, 316).
{¶35} Hearsay is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted. Evid.R. 801(C). Generally, hearsay is inadmissible. Evid.R. 802.
{¶36} Varney told Trooper Skaggs about the physical description of the truck
when she sold it to appellant. This physical description of the truck when Varney sold it
to appellant was used to prove the truth of the matter asserted. In other words, it was
used to prove that the truck at the time of the sale was maroon, had a different engine,
and did not have gap between the headlights and the bumper. Moreover, the state then
used this hearsay to show that Varney’s truck’s identity was placed on the Cornerstone
truck in order to conceal the fact that the Cornerstone truck was stolen.
{¶37} Trooper Skaggs’ testimony about the physical characteristics of the truck
Case No. 16 MA 105
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when Varney sold the truck to appellant was hearsay. Importantly, the state used this
hearsay to establish a significant aspect of its case. Without evidence of what the truck
registered to the public VIN was supposed to look like, the jury would not be able to
ascertain whether the truck appellant was driving belonged to him or not. Thus, we
conclude that the trial court erred in admitting this testimony over appellant’s objection.
{¶38} Second, appellant argues that any reference regarding information
Trooper Skaggs recovered from the NICB and the NCIC databases was inadmissible
hearsay. Appellant did not object to these references to the two databases. (Trial Tr.
294-295, 300). Failure to object to trial testimony waives all but plain error review.
State v. Lang, 129 Ohio St. 3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 108. Plain error
is one in which but for the error, the outcome of the trial would have been different.
State v. Long, 53 Ohio St. 2d 91, 97, 372 N.E.2d 804 (1978).
{¶39} The Twelfth District has held that evidence from a national database is
admissible as non-hearsay as long as it was admitted for a purpose other than to prove
the truth of the matter asserted. See State v. Beltran, 12th Dist. No. CA2004-11-015,
2005-Ohio-4194, ¶ 21-22. Trooper Skaggs testified that he ran the VINs through the
databases as he was describing the steps he took in his investigation. (Trial Tr. 294-
295, 300). The trooper’s testimony regarding his investigation as a whole, including
results from the NICB and the NCIC, was meant to show the continuing course of the
investigation into the truck. Ultimately, the trial court did not commit plain error by
allowing the testimony concerning these two databases.
{¶40} Third, appellant challenges Trooper Skaggs’ testimony as to the contents
of a Columbiana Police Report dated March 10, 2014. (Trial Tr. 304; State’s Ex. 22).
Trooper Skaggs testified that the police report concerned a vehicle stolen from
Cornerstone and that the VIN number of the stolen vehicle matched the VIN number
from the truck at issue. (Trial Tr. 304-305). Appellant did not object. The state
withdrew Exhibit 22 during the introduction of exhibits noting that “it was not drafted by
one of the witnesses.” (Trial Tr. 364).
{¶41} Trooper Skaggs’ testimony as to the information contained in the
Columbiana Police Report was inadmissible hearsay. The Columbiana Police Report
was drafted by an officer who did not testify at appellant’s trial and the statements in the
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report were used to prove the truth of the matter asserted. Officer Skaggs’ testimony
regarding the contents of the report was offered to prove that the VIN located on
appellant’s truck matched a VIN for a truck reported stolen from Cornerstone. It was
plain error for the trial court to allow Trooper Skaggs to testify as to the contents of this
report.
{¶42} Fourth, appellant challenges Trooper Skaggs’ testimony concerning
statements made by Chad Zwingler from Cornerstone to him. Specifically, appellant
challenges the following testimony:
Q Were you able to ascertain any information regarding the tires on
this vehicle after speaking with Cornerstone?
A The information that the Cornerstone Chad Zwingler provided to me
--
Mr. Joltin: Objection.
The Court: Sustained.
***
Q Give me a minute. After following up on your investigation with
Cornerstone, pursuant to your investigation, were you able to determine
the type of tires that this vehicle had?
A Yes. And the tires were consistent with what the vehicle had on it at
the time that they were stolen.
(Trial Tr. 306).
{¶43} This testimony is also hearsay as it is based on statements from
Cornerstone’s representative. Trooper Skaggs never testified that he personally
investigated or saw the truck stolen from Cornerstone. Any information regarding the
type of tires on that truck was gained from statements conveyed to him by Zwingler,
who did not testify. These statements were used to show that the tires on appellant’s
truck were consistent with the tires on the truck stolen from Cornerstone. Thus, the trial
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court abused its discretion in allowing Trooper Skaggs’ testimony as to what he learned
from Cornerstone.
{¶44} Fifth, appellant challenges Trooper Skaggs’ testimony that an anonymous
tip was called in regarding a “black semi-gloss primer Dodge Ram pickup truck which
frequented the Mineral Ridge, Austintown area that was possibly a retagged vehicle
specifically involving Bryan Dotson.” (Trial Tr. 290). This statement is not hearsay as it
was offered to show the effect on the listener. Responding to the very next question,
Trooper Skaggs testified that he relayed that information to Trooper Golias so Trooper
Golias could keep an eye out for a vehicle matching that description. (Trial Tr. 290).
{¶45} Finally, appellant argues that it was improper to allow Troopers Skaggs
and Golias to testify regarding their opinions about whether appellant was guilty of a
crime. Appellant cites two specific instances where he claims this happened. The first
instance occurred during Trooper Golias’ testimony where the trooper testified:
The Federal Identification decal looks like this. You probably will all
recognize them after you look at your car. It has the full VIN number that’s
on it. When it’s - - you cannot alter, tamper or destroy that because just
like a public VIN number, it identifies that vehicle. It cannot be removed.
It can’t be covered. When it’s covered like this we’ve got to make sure we
have the true identity of the vehicle. This is the picture of it with the black
spray paint over it.
(Trial Tr. 257-258). The second instance was during Trooper Skaggs’ testimony when
asked what he noticed during his initial investigation. The trooper stated, “I opened the
door to look at the Federal Identification decal, and it had been partially painted over, in
violation of the Ohio Revised Code. The dashboard VIN, public VIN.” (Trial Tr. 292).
{¶46} “If the witness is not testifying as an expert, the witness’ testimony in the
form of opinions or inferences is limited to those opinions or inferences which are (1)
rationally based on the perception of the witness and (2) helpful to a clear
understanding of the witness’ testimony or the determination of a fact at issue.” State v.
Davis, 116 Ohio St. 3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 120 quoting Evid.R. 701. As
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both of these pieces of testimony from Troopers Skaggs and Golias identify the fact that
a VIN in the truck was concealed and this was a violation of the Ohio Revised Code,
which ultimately led to the investigation of the truck at issue being stolen, the elements
of Evid.R. 701 are satisfied and it was not an abuse of discretion to permit this
testimony.
{¶47} Given the substantial amount of inadmissible hearsay that the trial court
admitted, appellant was denied his right to fair a trial. While the state did introduce
other admissible evidence that may have proved the elements of receiving stolen
property, we cannot overlook the potential effect the significant amount of inadmissible
hearsay likely had on the jury.
{¶48} We note, however, the inadmissible hearsay evidence did not impact
appellant’s tampering with vehicle identification numbers conviction. The inadmissible
hearsay evidence was offered to prove the elements of receiving stolen property. Thus,
our resolution of this assignment of error only affects appellant’s receiving stolen
property conviction.
{¶49} Accordingly, appellant’s second assignment of error has merit in part and
is sustained in part.
{¶50} Appellant’s third assignment of error states:
THE TRIAL COURT VIOLATED APPELLANT’S RIGHTS UNDER
THE CONFRONTATION CLAUSE BY ALLOWING PREJUDICIAL
HEARSAY STATEMENTS TO OVERWHELM APPELLANT’S TRIAL.
{¶51} In addition to the arguments raised in his second assignment of error,
appellant argues Trooper Skaggs’ testimony as to what others told him regarding the
truck and as to the Columbiana Police Report violated his right to confront the witnesses
against him.
{¶52} The Confrontation Clause prohibits the introduction of testimonial
statements by a non-testifying witness (unless that witness is unavailable to testify and
the defendant had a prior opportunity for cross examination). State v. Grabe, 7th Dist.
No. 16 MA 0061, 2017-Ohio-1017, ¶ 20 citing Crawford v. Washington, 541 U.S. 36, 54,
124 S. Ct. 1354, 158 L.Ed.3d 177 (2004).
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{¶53} The question here is whether the statements by Varney and Zwingler to
the troopers constituted testimonial statements. For Confrontation Clause purposes, a
testimonial statement includes one made “under circumstances which would lead an
objective witness reasonably to believe that the statement would be available for trial.”
State v. Stahl, 111 Ohio St. 3d 186, 855 N.E.2d 834, 2006-Ohio-5482, ¶ 36 quoting
Crawford, 541 U.S. at 52.
{¶54} In determining whether a statement is testimonial, courts should focus on
the expectation of the declarant at the time of making the statement; the intent of the
questioner is relevant only if it could affect a reasonable declarant’s expectations. Id. In
making the determination if a statement is testimonial, “the ‘primary purpose’ of the
conversation was to ‘creat[e] an out-of-court substitute for trial testimony.’” Ohio v.
Clark, -- U.S. --, 135 S. Ct. 2173, 2180, 192 L. Ed. 2d 306 (2015), quoting Michigan v.
Bryant, 562 U.S. 344, 358, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011). Statements are
non-testimonial when made in the course of a police interrogation under circumstances
which objectively show that the primary purpose of the statements was to enable police
assistance to meet an ongoing emergency. Id. citing Hammon v. Indiana, 547 U.S. 813,
822, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). Statements are testimonial when the
circumstances objectively indicate that there is no such ongoing emergency, and that
the primary purpose of the interrogation is to establish past events potentially relevant to
later criminal prosecution. Id. citing Hammon.
{¶55} The statements made by Varney and Zwingler that were admitted at trial
were testimonial in nature. The conversations Trooper Skaggs had with both of these
people took place after appellant’s truck was impounded. There was no ongoing
emergency that Trooper Skaggs was responding to when these conversations took
place. The statements Trooper Skaggs obtained from these people were meant to
establish past events that would be potentially relevant to a later criminal prosecution.
{¶56} Thus, the trial court’s admission of Trooper Skaggs’ testimony regarding
what Varney and Zwingler told him about the trucks violated appellant’s right to confront
these witness against him. The state should have subpoenaed Varney and Zwingler to
testify so that appellant could cross-examine them.
{¶57} Again, we note the inadmissible evidence did not impact appellant’s
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tampering with vehicle identification numbers conviction. Trooper Skaggs’ testimony
regarding what Varney and Zwingler told him was offered to prove the elements of
receiving stolen property. Thus, our resolution of this assignment of error also only
affects appellant’s receiving stolen property conviction.
{¶58} Accordingly, appellant’s third assignment of error has merit and is
sustained.
{¶59} Appellant’s fourth assignment of error states:
INSUFFICIENT EVIDENCE SUPPORTED APPELLANT’S
CONVICTIONS.
{¶60} Appellant argues that the state failed to prove all of the elements of the
charges it brought against him.
{¶61} Sufficiency of the evidence is the legal standard applied to determine
whether the case may go to the jury or whether the evidence is legally sufficient as a
matter of law to support the verdict. State v. Dickson, 7th Dist. No. 12 CO 50, 2013-
Ohio-5293, ¶ 10 citing State v. Thompkins, 80 Ohio St. 3d 89, 113, 684 N.E.2d 668
(1997). Sufficiency is a test of adequacy. Id. Whether the evidence is legally sufficient
to sustain a verdict is a question of law. Id. In reviewing the record for sufficiency, the
relevant inquiry is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements proven
beyond a reasonable doubt. Id. citing State v. Goff, 82 Ohio St. 3d 123, 138, 694 N.E.2d
916 (1998).
{¶62} Appellant was convicted of receiving stolen property and tampering with
vehicle identification numbers.
{¶63} Receiving stolen property is defined as receiving, retaining, or disposing of
property of another knowing or having reasonable cause to believe that the property has
been obtained through commission of a theft offense. R.C. 2913.51(A). If the property
at issue is a motor vehicle, receiving stolen property is a felony of the fourth degree.
R.C. 2913.51(C).
{¶64} Sufficient evidence existed to warrant appellant’s conviction for receiving
stolen property. When reviewing the sufficiency of the evidence on appeal, we must
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consider whether the evidence that the state offered and the trial court admitted,
whether the trial court admitted the evidence erroneously or not, would have been
sufficient to sustain a guilty verdict. State v. Grabe, 7th Dist. No. 16 MA 0061, 2017-
Ohio-1017, ¶ 15, citing State v. Brewer, 121 Ohio St. 3d 202, 2009-Ohio-593, 903
N.E.2d 284, ¶ 17, and Lockhart v. Nelson, 488 U.S. 33, 35, 109 S. Ct. 285, 102 L. Ed. 2d
265 (1988). Thus, in conducting our sufficiency review, we must consider all of the
evidence offered by the state in this case, including the inadmissible hearsay evidence
{¶65} The evidence at trial showed that appellant was operating a truck with
two VINs concealed with black spray paint (Trial Tr. 270), appellant was the one who
spray painted the truck black (Trial Tr. 252), and the public VIN was different from the
secondary VIN (Trial Tr. 299-300). Moreover, the evidence indicated that the truck
Varney sold to appellant was a different color than the truck he was driving (Trial Tr.
309), did not have a gap between the headlights and bumper (Trial Tr. 316), and had a
different engine than it did (Trial Tr. 310). And the evidence demonstrated that a police
report was filed regarding a stolen vehicle with the same VIN that was located on the
truck appellant was driving. (Trial Tr. 304-305). When construing this evidence in the
light most favorable to the state, as we are required to do, sufficient evidence existed to
prove receiving stolen property.
{¶66} The tampering with vehicle identifying numbers statute provides: “No
person, with purpose to conceal or destroy the identity of a vehicle part, shall remove,
deface, cover, alter, or destroy any vehicle identification number or derivative of a
vehicle identification number on a vehicle or vehicle part.” R.C. 4549.62(A). Appellant
essentially contends that the state failed to prove the element that he acted “with
purpose to conceal or destroy the identity of a vehicle.”
{¶67} Appellant does not contest the fact that the two VINs on the truck were
concealed with black paint. (Trial Tr. 247, 249). The question is whether sufficient
evidence showed that appellant acted purposefully to conceal or destroy the identity of
the truck. Since intent goes to a person’s state of mind, it must be gathered from the
surrounding facts and circumstances. See In re Washington, 81 Ohio St. 3d 337, 340,
691 N.E.2d 285 (1998), quoting State v. Huffman, 131 Ohio St. 27, 1 N.E.2d 313
(1936).
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{¶68} Trooper Golias testified that appellant was driving a truck with at least two
VINs concealed with black paint. (Trial Tr. 247, 249). The truck was spray painted
black by appellant. (Trial Tr. 252). The paint that was covering the VINs was also
black. (Trial Tr. 247, 249). The two different VINs on the truck being concealed with
black paint, which appellant admitted using on the truck, was sufficient evidence to
establish the intent for this offense.
{¶69} Accordingly, appellant’s fourth assignment of error is without merit and is
overruled.
{¶70} Appellant’s fifth assignment of error states:
THE MANIFEST WEIGHT OF THE EVIDENCE DID NOT
SUPPORT APPELLANT’S CONVICTIONS.
{¶71} Appellant argues that his convictions are against the manifest weight of
the evidence.
{¶72} We have already determined that appellant’s conviction for receiving
stolen property must be reversed since the jury’s verdict was likely affected by the
amount of inadmissible hearsay testimony. Therefore, we will only review his conviction
for tampering with vehicle identifying numbers in this assignment of error.
{¶73} The claim that a verdict is against the manifest weight of the evidence
concerns whether a jury verdict is supported by “the greater amount of credible
evidence.” State v. Merritt, 7th Dist. No. 09 JE 26, 2011-Ohio-1468 ¶ 45 citing State v.
Thompkins, 78 Ohio St. 3d 380, 678 N.E.2d 541 (1997). The reviewing court weighs the
evidence and all reasonable inferences and considers the credibility of the witnesses.
Thompkins at 387. Although the appellate court acts as the proverbial “thirteenth” juror
under this standard, it rarely substitutes its own judgment for that of the jury’s. Id. This
is because the trier of fact is in the best position to determine the credibility of the
witnesses and the weight to be given to the evidence. Id. citing State v. Higinbotham,
5th Dist. No. 2005CA00046, 2006-Ohio-635. Only when “it is patently apparent that the
factfinder lost its way,” should an appellate court overturn a jury verdict. Id. citing State
v. Woullard, 158 Ohio App. 3d 31, 2001-Ohio-3395, 813 N.E.2d 964 (2d Dist.). “No
judgment resulting from a trial by jury shall be reversed on the weight of the evidence
Case No. 16 MA 105
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except by the concurrence of all three judges hearing the cause.” State v. Miller, 96
Ohio St. 3d 384, 2002-Ohio-4931, 775 N.E.2d 498, ¶ 36, quoting Ohio Constitution,
Article IV, Section 3(B)(3).
{¶74} In addition to the evidence set out above, Trooper Golias testified that
while he was able to remove the paint from the public VIN on the dashboard in order to
read it, he did not feel he was able to clean the paint off of the VIN decals in the door
frame out of fear that he would destroy them. (Trial Tr. 272). The public VIN revealed
that the truck was registered to appellant. (Trial Tr. 272). Trooper Skaggs testified that
when he first inspected appellant’s truck, there was a VIN missing in the interior engine
compartment. (Trial Tr. 322). Furthermore, he testified that the missing VIN in the
engine compartment in and of itself constituted a concealed identity. (Trial Tr. 322-323).
He also testified about a secondary concealed VIN that is located on cars whose
location is not known to the general public and how he received training in locating that
VIN. (Trial Tr. 324-325).
{¶75} Appellant’s conviction for tampering with vehicle identifying numbers was
not against the manifest weight of the evidence. The evidence demonstrated that
appellant was operating a truck with two different VINs concealed with black spray paint
and that appellant had spray-painted the truck black. The evidence does not show that
the jury clearly lost its way in convicting appellant.
{¶76} Accordingly, appellant’s fifth assignment of error is without merit and is
overruled.
{¶77} Appellant’s sixth assignment of error states:
DEFENSE COUNSEL PROVIDED CONSTITUTIONALLY
INEFFECTIVE ASSISTANCE BY FAILURE TO OBJECT TO OBVIOUS,
INADMISSIBLE HEARSAY EVIDENCE.
{¶78} Appellant argues that because his trial counsel failed to object to hearsay
and confrontation issues concerning evidence pointed out in previous assignments of
error, his trial counsel was ineffective.
{¶79} When a convicted defendant complains of the ineffectiveness of counsel’s
assistance, the defendant must show that counsel’s representation fell below an
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objective standard of reasonableness. State v. Sanders, 94 Ohio St. 3d 150, 2002-
Ohio-350, 761 N.E.2d 18 citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). Furthermore, the defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Id. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. Id. Strickland charges reviewing
courts to apply a heavy measure of deference to counsel’s judgments and to indulge a
strong presumption that counsel’s conduct falls within a wide range of reasonable
professional assistance. Id.
{¶80} Appellant’s counsel lodged numerous objections to multiple instances of
hearsay throughout appellant’s trial. (Trial Tr. 306, 309, 310, 316). Thus, counsel was
aware of, and objected to numerous hearsay issues. Additionally, two of the items
appellant takes issue with in this appeal that he asserts his counsel should have
objected to (the reference to the national databases and the troopers’ opinions), we
have found to be admissible statements. Thus, no objection was warranted. The only
item counsel failed to object to that this court found to be inadmissible hearsay was
Trooper Skaggs’ testimony regarding the contents of the Columbiana Police Report.
The failure to make one hearsay objection in this case does not establish that counsel
fell below an objective standard of reasonableness.
{¶81} Accordingly, appellant’s sixth assignment of error is without merit and is
overruled.
{¶82} Appellant’s seventh assignment of error states:
THE TRIAL COURT ERRED BY DENYING APPELLANT’S
MOTION TO DISMISS WITHOUT A HEARING ON THE EXPLANATION
FOR MISSING DASHCAM VIDEO.
{¶83} Appellant argues the trial court erred in dismissing his motion to dismiss
without a hearing. Appellant argues that by denying his motion without a hearing, the
trial court failed to allow him to meet his burden that the tape contained exculpatory
evidence that was improperly destroyed.
{¶84} A trial court’s decision on a motion to dismiss on the basis that the state
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failed to disclose to the defense materially exculpatory evidence is subject to a de novo
standard of review. State v. Whalen, 9th Dist. No. 08CA009317, 2008-Ohio-6739, ¶ 7-
8.
{¶85} Pursuant to Crim.R. 12(F), “a court may adjudicate a motion based upon *
* * a hearing, or other appropriate means.” A strict reading of Crim.R. 12(F) states that
a hearing on pretrial motions is granted at the trial court’s discretion. A hearing is not
mandatory as appellant argues.
{¶86} With regard to the videotape potentially containing exculpatory evidence,
the Due Process Clause of the Fourteenth Amendment to the United States protects a
criminal defendant from being convicted of a crime where the state fails to preserve
materially exculpatory evidence. State v. Tarleton, 7th Dist. No. 02-HA-541, 2003-Ohio-
3492, ¶ 10 citing California v. Trombetta, 467 U.S. 479, 489, 104 S. Ct. 2528, 81 L. Ed. 2d
413 (1984). This also applies to potentially useful evidence the state destroys in bad
faith. Id. citing Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 102 L. Ed. 2d 281
(1988). Evidence is materially exculpatory if: (1) the evidence possesses an
exculpatory value that was apparent before the evidence was destroyed and (2) is of
such a nature that the defendant would be unable to obtain comparable evidence by
other means. State v. Benton, 136 Ohio App. 3d 801, 737 N.E.2d 1046 (6th Dist. 2000)
citing Trombetta, 467 U.S. at 489. The burden is on the defendant to show that the
evidence is both favorable and material to the defense and that there is a reasonable
probability that the outcome would have been different had the evidence been
presented. State v. Whalen, 2008-Ohio-6739 at ¶ 8 citing State v. Davis, 116 Ohio
St.3d 404, 449, 2008-Ohio-2, 880 N.E.2d 31, ¶ 338-339. A reasonable probability is a
probability that is sufficient to undermine the confidence in the outcome. State v.
Johnston, 39 Ohio St. 3d 48, 61, 529 N.E.2d 898, 911 (1988), citing Pennsylvania v.
Ritchie, 480 U.S. 39, 57, 107 S. Ct. 989, 94 L. Ed. 2d 40.
{¶87} Appellant argues that the tape only potentially contained useful evidence.
As such, it is incumbent on appellant to show that the tape’s unavailability was the result
of bad faith on the part of the state. See Tarleton at ¶ 10. Appellant’s argument is that
because the trial court denied appellant’s motion without a hearing, appellant was
unable to ascertain necessary facts to determine if the tape was destroyed in bad faith.
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{¶88} On August 5, 2015, appellant filed a motion for discovery and to examine
exculpatory and mitigatory material with the trial court. This motion requested, among
other things, “[a]ll statements of any kind within the possession of the State, made by
the Defendant and/or any co-Defendants.” On the same day, appellant filed a motion to
disclose and made specific requests for exculpatory evidence. The first time appellant
or his trial counsel learned of the existence of a videotape was on January 28, 2016, the
date of appellant’s suppression hearing. At that hearing, Trooper Golias testified on
cross-examination that there was in fact an audiotape or videotape of appellant’s traffic
stop. (Supp. Tr. 43). Said tape was not provided to the prosecutor’s office. (Supp. Tr.
43-44). After a brief recess, it was concluded that any recording of appellant’s traffic
stop was overwritten pursuant to the Ohio State Highway Patrol’s standard retention
policy. (Supp. Tr. 45). According to the state, this was done because “it was not
requested by any party to be retained.” (Supp. Tr. 45). The court then granted
appellant two weeks to prepare a motion regarding the deleted recording. (Supp. Tr.
46).
{¶89} Appellant’s original traffic stop occurred on May 22, 2014. (Supp. Tr.
state’s exhibit 1). Appellant was indicted on July 9, 2015, over 13 months after his
traffic stop. Appellant filed his discovery requests almost one month after that on
August 5, 2015. While a hearing on appellant’s motion to dismiss may have provided
more evidence relevant to the tape, it was appellant’s burden to show a reasonable
probability that the information on the tape would to undermine the confidence of the
outcome or that the tape was erased due to bad faith.
{¶90} Appellant’s motion to dismiss alleged no specific facts about what was
allegedly on the tape that was exculpatory in nature. Appellant’s brief in this appeal is
also silent on what the tape may have contained that was potentially exculpatory. The
only thing known for certain from the record is that a tape existed and was erased
pursuant to the Ohio State Highway Patrol’s retention policy.
{¶91} Nevertheless, appellant cites two cases where other districts have held
that when the state breaches its duty to respond in good faith to a defense request to
preserve evidence, the appropriate remedy is to shift the burden of proof to the state as
to the exculpatory value of the evidence. See City of Columbus v. Forest, 36 Ohio
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App.3d 169, 173, 522 N.E.2d 52 (10th Dist.1987) see also State v. Benton, 136 Ohio
App.3d 801, 805-806, 737 N.E.2d 1046, 1049 (6th Dist.2000). But this Court has held
that Forest and Benton do not apply when the defendant does not file a specific and
immediate request, where there was no indication that the state acted in bad faith, and
the value of the tape was only questionable. See Tarleton at ¶ 22. Moreover, this Court
held that the burden shifting approach set forth in Forest and Benton only applied when
the state fails to respond in good faith to a defendant’s request to preserve evidence.
State v. Wolf, 154 Ohio App. 3d 293, 2003-Ohio-4885, 797 N.E.2d 109, ¶ 11-15 (7th
Dist.). Ultimately, because appellant makes no arguments concerning the contents of
the tape and there is no evidence that the state acted in bad faith when it erased the
tape, appellant failed to meet his burden that the tape would have had a reasonable
probability to affect the outcome of his trial.
{¶92} Accordingly, appellant’s seventh assignment of error is without merit and
is overruled.
{¶93} Appellant’s eighth assignment of error states:
THE STATE COMMITTED PROSECUTORIAL MISCONDUCT BY
DELIBERATELY ADMITTING INADMISSIBLE HEARSAY EVIDENCE TO
THE JURY ONLY TO WITHDRAW THAT EVIDENCE ONCE
INADMISSIBLE HEARSAY TESTIMONY HAD BEEN ELICITED
REGARDING THE SAME.
{¶94} Appellant argues that, in two instances, the state committed prosecutorial
misconduct by eliciting testimony concerning two proposed exhibits only to later
withdraw those proposed exhibits.
{¶95} Given our resolution of appellant’s second and third assignments of error,
appellant’s eighth assignment of error is moot.
{¶96} Appellant’s ninth assignment of error states:
THE TRIAL COURT ACTED CONTRARY TO LAW IN
SENTENCING APPELLANT TO CONSECUTIVE JAIL TERMS AS PART
OF A COMMUNITY CONTROL SANCTION.
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{¶97} Appellant argues that his sentence was contrary to law in that the trial
court ordered him to serve two six month jail terms consecutively as part of a
community control sanction. Furthermore, appellant argues that a jail term of 12 months
is contrary to law.
{¶98} The trial court sentenced appellant to five years of community control with
the Adult Parole Authority. As a condition of community control, the court ordered
appellant to serve the first six months of each count in jail and for those two jail terms to
run consecutively.
{¶99} Because we are reversing appellant’s conviction for receiving stolen
property, his sentence on that count is necessarily vacated. The only sentence that
remains, therefore, is appellant’s sentence for tampering with vehicle identifying
numbers. Thus, there is no issue concerning consecutive sentences.
{¶100} Accordingly, appellant’s ninth assignment of error is moot.
{¶101} Appellant’s tenth assignment of error states:
THE TRIAL COURT ERRED IN ISSUING A RESTITUTION
ORDER NOT AUTHORIZED BY LAW.
{¶102} The trial court ordered two restitution payments. It ordered appellant to
make restitution to Auto Owner’s Insurance in the amount of $10,713.38 and it ordered
appellant to make restitution to Cornerstone in the amount of $1,000.00.
{¶103} The restitution order was necessarily based on the receiving stolen
property in the form of a vehicle conviction. Because we are reversing that conviction,
appellant’s tenth assignment of error is now moot.
{¶104} For the reasons previously stated, appellant’s conviction for tampering
with vehicle identifying numbers is hereby affirmed. Appellant’s conviction for receiving
stolen property in the form of a vehicle is reversed, his sentence on that conviction is
vacated, and the matter is remanded for further proceedings pursuant to law and
consistent with this opinion. Additionally, the restitution order is vacated.
Waite, J., concurs
Robb, P. J., concurs
Case No. 16 MA 105
[Cite as State v. Dotson, 2018-Ohio-2481.]
For the reasons stated in the Opinion rendered herein, appellant’s first, fourth,
fifth, sixth, and seventh assignments of error are without merit and are overruled.
Appellant’s second assignment of error has merit in part and is sustained in part.
Appellant’s third assignment of error has merit and is sustained. Appellant’s eighth,
ninth, and tenth assignments of error are moot. It is the final judgment and order of this
Court that the judgment of the Common Pleas Court, Mahoning County, Ohio, is hereby
affirmed as to appellant’s tampering with vehicle identifying numbers conviction. It is
reversed as to appellant’s receiving stolen property in the form of a vehicle conviction,
his sentence on that conviction is vacated, and the matter is remanded for further
proceedings according to law and consistent with the opinion herein. The restitution
order is also vacated. Costs taxed against appellee.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.