State v. Moore

[Cite as State v. Moore, 2012-Ohio-2426.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 11CA0025
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CHRISTOPHER G. MOORE WAYNE COUNTY MUNICIPAL COURT
COUNTY OF WAYNE, OHIO
Appellant CASE No. CRB-10-10-01458
DECISION AND JOURNAL ENTRY
Dated: June 4, 2012
MOORE, Judge.
{¶1} Appellant, Christopher Moore, appeals from the judgment of the Wayne County
Municipal Court. This Court affirms.
I.
{¶2} In the early morning hours of August 3, 2010, a silver Jeep pulled up to a private
gasoline pump owned by and located at Bauman Orchards in Rittman, Ohio. After an occupant
of the Jeep began to pump gasoline from the pump’s nozzle, the Jeep was discovered by one of
the owners of the Orchards. The Jeep left the scene. Shortly thereafter, police officers located
the Jeep parked behind a multi-unit residence on Salt Street in Rittman. Several individuals were
present at the Salt Street location, including Christopher Moore and his then girlfriend Ashley
Holler. Holler ultimately reported to police that Moore had driven the Jeep to the Orchards and
pumped the gas from the private pump. Moore was charged with theft in violation of R.C.
2913.02(A)(1).
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{¶3} After a trial to a magistrate, the court found Moore guilty of theft and sentenced
him to ninety days of incarceration. Moore timely filed a notice of appeal and raises two
assignments of error for our review.
II.
ASSIGNMENT OF ERROR NO. 1
[MOORE] WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AS
GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO
CONSTITUTION.
{¶4} In his first assignment of error, Moore argues that his trial counsel was ineffective
for failing to move the trial court to dismiss the complaint due to insufficient evidence. We do
not agree.
{¶5} This Court must analyze claims of ineffective assistance of counsel under a
standard of objective reasonableness. See Strickland v. Washington, 466 U.S. 668, 688 (1984);
State v. Bradley, 42 Ohio St.3d 136, 142 (1989). Under this standard, a defendant must show (1)
deficiency in the performance of counsel “so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment,” and (2) that the errors made by
counsel were “so serious as to deprive the defendant of a fair trial[.]” Strickland, 466 U.S. at
687. A defendant must demonstrate prejudice by showing that, but for counsel’s errors, there is
a reasonable possibility that the outcome of the trial would have been different. Id. at 694. In
applying this test, “a court must indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance[.]” Id. at 689.
{¶6} The basis of Moore’s ineffective assistance argument is that his trial counsel
waived the issue of sufficiency of the evidence by failing to move to dismiss pursuant to Crim.R.
29. However, in State v. Thornton, 9th Dist. No. 23417, 2007-Ohio-3743, ¶ 13, we held that a
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defendant’s failure to move for a Crim.R. 29 dismissal at the close of evidence does not waive a
sufficiency argument on appeal. However, because there was sufficient evidence to support
Moore’s conviction, Moore’s argument fails.
{¶7} The issue of 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 (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 view the evidence in the light most favorable to the
prosecution:
An appellate court’s function when reviewing the sufficiency of the evidence to
support a criminal conviction is to 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 (1991), paragraph two of the syllabus.
{¶8} Moore was convicted of theft in violation of 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[.]” Moore limits his sufficiency of the evidence
argument to the element of obtaining or exerting control over the property of another. We shall
limit our discussion accordingly.
{¶9} As part of the State’s case in chief, it presented the testimony of Bill Bauman,
who is a part-owner of Bauman Orchards in Rittman, Ohio, and lives across the street from the
Orchards. On August 3, 2010, Bauman’s wife woke him early in the morning, having heard a
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car pull into the Orchards. Bauman went across the street and saw a car at the Orchards’ private
gas pump. The dome light was on inside the car, and he could see three or four passengers
inside. Another individual was standing outside the car, appearing to pump gas into the car.
Bauman called 9-1-1, but the car left. Bauman went over to observe the gas pump and saw the
nozzle to the pump on the ground. He could tell that the hose had been pried open because gas
was still “flowing out of the nozzle.” Bauman stopped the gas flow, and noticed a knife and a
blue glove on the ground.
{¶10} After police arrived, an officer escorted Bauman to Salt Street, where another
officer had located what he believed to be the car involved. Bauman there identified the car as
the same car he had witnessed in the Orchards, noting it was the same make and model and it had
a temporary tag instead of a license plate. Bauman identified several photographs from the
Orchards’ security camera, portraying the car he observed on the morning at issue and several
photographs of the car he later identified on Salt Street. Bauman also identified the knife and
pictures of the knife that he observed on the ground near the pump.
{¶11} Ashley Holler testified that she is Moore’s ex-girlfriend. While they were dating,
on August 3, 2010, she and Moore were staying at a friend’s house on Salt Street in Rittman.
Holler owned a silver Jeep Cherokee, on which she had thirty-day tags. At some point during
the late evening of August 2 or early morning of August 3, Moore, Holler, and two other
individuals at the gathering, named Tasha and Mikey, left to go get cigarettes. Moore drove
Holler’s vehicle. However, instead of getting cigarettes, Moore drove them to Bauman
Orchards. When they arrived, Moore removed blue medical gloves from the glove compartment.
He then used his pocket knife on the nozzle of a gas pump, and attempted to fill Holler’s
vehicle’s gas tank as well as some empty gasoline containers. However, Moore stated that the
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owner of the Orchards had walked out, and he threw the gasoline containers into the car through
the driver’s side door, causing the car to smell of gasoline and causing gasoline to get on some of
the occupants. Moore took off the blue gloves, but dropped one on the ground.
{¶12} Holler identified the knife admitted into evidence by the State as Moore’s knife.
She also identified the car in the photos from the Orchards’ security camera and the photos of the
car that Bauman had seen on Salt Street as her vehicle. She identified the glove in the picture as
one of her gloves that was in her glove compartment, which Moore had used when pumping the
gasoline.
{¶13} Officer Rodney Martin of the City of Rittman Police Department testified that he
was on duty in the early morning hours of August 3, 2010. He and Officer Paul Fiocca were
dispatched to the Orchards following a report of a suspicious car and possible theft. When they
arrived, Officer Martin noticed the gas tank nozzle was down, and a lot of gas had spilled on the
ground. There was a strong odor of gasoline present. He then left the Orchards to patrol the
surrounding area for suspicious cars while Officer Fiocca stayed and spoke with Bauman at the
Orchards. While Officer Martin was patrolling, Officer Fiocca called in Bauman’s description of
the suspected car to Officer Martin. Officer Martin recalled a similar car, about which he had
received a report approximately one week before. At that time, the car was associated with a
Christopher Moore who frequented the Salt Street area. Officer Martin located the car behind an
apartment complex on Salt Street. The car engine was warm, and there was a strong odor of
gasoline surrounding it. After the officer arrived, individuals began exiting the complex,
including Moore and Holler. Holler admitted her ownership of the Jeep, and the officer stated
that Holler was going to be charged with receiving stolen property, at which point Moore stated,
“I did it, I did it. Just arrest me.” The officer noted that Moore smelled of gasoline.
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{¶14} Officer Fiocca testified that when he arrived at the Salt Street complex to join
Officer Martin, he approached the Jeep and noticed a very strong odor of gasoline. After a few
minutes of speaking with the individuals at the complex, Officer Fiocca did not feel like they
were making progress, and he returned to speak with Bauman. Bauman showed him the security
camera video footage, and the officer could see a silver Jeep Cherokee with a slightly discolored
area and several dents, which he recognized as Holler’s Jeep that he had just seen at Salt Street.
However, the officer could not discern the identity of the Jeep’s occupants due to the poor
picture quality of the footage. The officer returned to the gas pump, where he could see that
there was a “huge amount” of fuel that spilled, and a knife and glove on the ground. The officer
then returned to Salt Street. While speaking with the group, he indicated that he was going to
tow the Jeep and Holler would be charged, at which point Moore said, “Okay, I did it.” But
when the officer replied that they would still have to tow the vehicle, Moore stated, “Nah, I
didn’t do it.”
{¶15} Based upon the evidence provided by the State, Moore argues that there was no
evidence demonstrating that he obtained any of the gasoline from the private pump. However,
Bauman testified that the offender was attempting to pump gasoline and that the nozzle was still
leaking gasoline after the offender left the scene. Bauman and the officers testified that the
ground area around the pump was soaked in gasoline and the area smelled strongly of gasoline.
Further, the officers testified that the Jeep and Moore smelled strongly of gasoline. Thus, there
was sufficient evidence presented from which a reasonable trier of fact could have determined
that Moore obtained or exerted control over the gasoline. Further, a person need not “obtain” the
property of another to be in violation of the statute, so long as there is sufficient evidence that the
person exerted control over another’s property with the intent to deprive the owner of the
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property. State v. Brienzo, 9th Dist. No. 3209-M, 2001 WL 1475808 (Nov. 21, 2001) (defendant
committed a theft where he exerted control over DVDs in a department store although he did not
leave with the DVDs). Accordingly, Moore’s first assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 2
[MOORE]’S CONVICTION FOR THEFT WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶16} When a defendant asserts that his conviction is against the manifest weight of the
evidence,
an appellate court must review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses and determine
whether, in resolving conflicts in the evidence, the trier of fact 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). 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 (9th Dist.1994), citing Ostendorf-Morris
Co. v. Slyman, 6 Ohio App.3d 46, 47 (8th Dist.1982) and Crull v. Maple Park Body Shop, 36
Ohio App.3d 153, 154 (12th Dist.1987).
{¶17} In his merit brief, Moore limits his second assignment of error to challenging the
weight of the evidence in respect to proof of the identity of the offender, and argues that the
weight of the evidence did not establish the element of obtaining or exerting control over the
gasoline. Accordingly, we shall limit our discussion to those elements of the offense.
{¶18} At trial, the defense presented the testimony of Michelle Jason and Tasha Malott.
Jason testified that, on the evening of August 2, 2010, she was having a gathering at her house on
Salt Street, and Moore and Holler were present at this gathering. Moore left her house twice.
The first time, Moore went with Holler to purchase some drinks in the late afternoon, early
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evening hours of August 2, 2010, and they returned to her home directly afterward. The second
time, Moore went outside and moved Holler’s car from the front of the complex to the back of
the complex. Jason explained that Moore moved the vehicle because the last time it had been
parked in front of the complex, $40.00 had been taken from the visor. Moore moved the vehicle
just prior to the police arriving. At some point during the gathering, Jason recalled that Holler
left to get cigarettes, and Jimmy Walker, Jason’s boyfriend, went with her.
{¶19} Malott testified that she was present at Jason’s gathering on the day at issue. She
did not leave the gathering. Malott recalled Moore leaving once that evening with Holler to get
drinks. Holler later left without Moore to get cigarettes. Malott further recalled that Moore had
driven Holler’s Jeep from its location in front of the complex to behind the complex just shortly
before police arrived. Malott further testified that she did not leave Jason’s home at any time
during the gathering.
{¶20} However, as set forth in our discussion of Moore’s first assignment of error,
Holler testified that she, Moore, and Malott and another individual left in her Jeep to purchase
cigarettes, but, instead, Moore drove her Jeep to the Orchards. There he used his pocket knife
and blue gloves to obtain gasoline from the Orchards’ private pump. The officers testified that
Moore smelled of gasoline shortly after the theft. Bauman and the officers testified that gasoline
had soaked the area around the pump.
{¶21} On appeal, Moore points to alleged bias in the testimony of Holler, arguing that
she was attempting to remove culpability from Walker and place it on Moore. In support, Jason
testified at trial that shortly after this incident, Holler and Walker began dating. However, the
trial court had the opportunity to consider the conflicting testimony and potential bias, and “is
free to believe all, part, or none of the testimony of each witness.” Prince v. Jordan, 9th Dist.
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No. 04CA008423, 2004-Ohio-7184, ¶ 35, citing State v. Jackson, 86 Ohio App.3d 29, 33 (4th
Dist.1993). We cannot say the trial court’s resolution of the testimonial inconsistencies was
unreasonable. See State v. Peasley, 9th Dist. No. 25062, 2010-Ohio-4333, ¶ 18, citing State v.
Morgan, 9th Dist. No. 22848, 2006-Ohio-3921, ¶ 35 (“A conviction is not against the manifest
weight because the [trier of fact] chose to credit the State’s version of events.”). Therefore, we
cannot say that the trial court clearly lost its way in determining that Moore left the gathering to
drive to the Orchards.
{¶22} Further, as set forth in our discussion of Moore’s first assignment of error, a
person need not “obtain” the property of another to be convicted of theft; instead, the State could
prove that Moore exerted control over the Orchards’ gasoline with the intent to deprive the
Orchards of the gasoline. See Brienzo at *1. Through Holler’s testimony, the State presented
evidence that Moore exerted control over the gasoline intending to deprive the Orchards of its
property by his actions in beginning to fill the gasoline containers and the Jeep’s gas tank.
Additionally, Bauman and the officers testified that the Orchards’ gasoline had spilled on the
ground as a result of these actions, thus depriving the Orchards of the gasoline.
{¶23} After reviewing the entire record, weighing the inferences and examining the
credibility of witnesses, we cannot say that the trial court clearly lost its way and created a
manifest miscarriage of justice in finding Moore guilty of theft.
III.
{¶24} Accordingly, Moore’s first and second assignments of error are overruled, and the
judgment of the Wayne County Municipal Court is affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Wayne County
Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A
certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
WHITMORE, P. J.
CARR, J.
CONCUR.
APPEARANCES:
BRIAN L. SUMMERS, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and LATECIA E.WILES, Assistant Prosecuting
Attorney, for Appellee.