State v. George

[Cite as State v. George, 2018-Ohio-4906.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
OTTAWA COUNTY
State of Ohio Court of Appeals No. OT-18-004
Appellee Trial Court No. 17 CR 139
v.
Jason George DECISION AND JUDGMENT
Appellant Decided: December 7, 2018
*****
James J. VanEerten, Ottawa County Prosecuting Attorney, and
Barbara Gallé Rivas, Assistant Prosecuting Attorney, for appellee.
Amanda A. Andrews, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} Appellant, Jason A. George, appeals from the February 2, 2018 judgment of
the Ottawa County Court of Common Pleas. Appellant was indicted on five counts:
criminal damaging, R.C. 2909.06(A)(1)(B); theft, R.C. 2913.02(A)(1)(B)(2); theft of
drugs, R.C. 2913.02(A)(1)(B)(6); tampering with evidence, R.C. 2921.12(A)(1)(B); and
possession of criminal tools, R.C. 2923.24(A)(C). Following a jury trial, appellant was
found guilty of all five counts and was sentenced on February 2, 2018, to a total of 46
months of incarceration. For the reasons which follow, we affirm.
{¶ 2} On appeal, appellant asserts the following assignments of error:
I. APPELLANT’S CONVICTIONS ARE NOT SUPPORTED BY
PROOF BEYOND A REASONABLE DOUBT.
II. APPELLANT’S CONVICTIONS ARE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
III. THE TRIAL COURT ERRED IN DENYING APPELLANT’S
MOTION FOR ACQUITTAL WHEN THE STATE FAILED TO
PRESENT SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION.
{¶ 3} The following evidence was admitted at trial. A detective safety services
ranger for the Toledo Area Metroparks testified he was monitoring, pursuant to a search
warrant, a GPS tracker on a vehicle registered to appellant on September 11, 2017. The
vehicle was described as a 1996 two-door, tan Buick Riviera.
{¶ 4} While the ranger did not know how to calibrate the tracker, he had viewed
training videos and followed the instructions of the manufacturer. He also verified the
accuracy of the tracker with regard to his own vehicle prior to placing it on appellant’s
vehicle. In his experience, the ranger knew there could be some glitches because of the
satellite system and the blocking of signals by large buildings. He further testified that he
has been involved in four different cases utilizing a tracker on a vehicle.
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{¶ 5} The ranger tracked appellant’s vehicle as it entered the Ottawa National
Wildlife Refuge (hereinafter “Refuge”) and proceeded to the rear parking lot (by way of
the Shop Road). The tracker indicated that appellant’s vehicle stopped for a few minutes
and then proceeded to exit the park by the same route. The ranger advised the Refuge
headquarters he had appellant’s vehicle under surveillance. Appellant authenticated a
screenshot of the tracker map depicting the area where appellant’s vehicle was being
tracked. The ranger continued to monitor appellant’s vehicle as it left the Refuge, entered
the Metzger Marsh area, stopped near a small boat ramp along the dike wall area for a
few minutes, left Metzger Marsh, and stopped at Bench’s Greenhouse along Route 2.
{¶ 6} The ranger could not determine who was driving appellant’s vehicle on this
particular day, but the ranger had observed appellant as the sole driver during past
surveillances. Furthermore, when the ranger arrived at the location where appellant was
apprehended, he observed appellant being taken into custody by wildlife officers at the
location indicated on the tracker.
{¶ 7} A U.S. Fish and Wildlife Officer at the Refuge testified he received a
message from the ranger on September 11, 2017. He immediately exited the visitor
center and joined with another wildlife officer to investigate a vehicle in the trailhead
parking lot. Both officers testified that they drove, in a marked unit, along the access
road toward the entrance to the Refuge. They observed a vehicle parked or stopped along
the road just short of the stop sign at the exit to the park to Route 2. The vehicle was an
older, silver-tan Buick Riviera. Both wildlife officers could see one occupant in the
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vehicle, but could not describe him. At that time, one of the wildlife officers considered
whether that vehicle was the one they were coming to investigate.
{¶ 8} The wildlife officers drove the Shop Road to the trailhead parking lot, which
is the only public area along the Shop Road. The wildlife officers observed a blue Honda
Civic parked in the parking lot with a shattered passenger side window and glass was on
the ground. One wildlife officer remembered two cars were in the lot, the other officer
only remembered the victim’s car. There are no cameras in the area. After discovering
the damage to the vehicle, the wildlife officers immediately turned around and headed
back to the Refuge exit to Route 2 and headed in the direction in which the suspected
Buick Riviera had been heading.
{¶ 9} When the wildlife officers reached the Ottawa/Lucas County line and had
not seen the vehicle, they turned around and drove approximately a half mile back toward
the Refuge. The round trip took less than five minutes. Meanwhile the wildlife
officer/passenger was in contact with the ranger who continued to monitor appellant’s
vehicle. The ranger provided additional information which led to the wildlife officers
turning around again and heading toward Metzger Marsh.
{¶ 10} Just before reaching the area, the wildlife officers saw the Buick Riviera
turn onto westbound Route 2 from the Metzger Marsh area and head toward Oregon,
Ohio. The wildlife officers chased appellant’s vehicle with the officer’s vehicle
emergency lights on. The wildlife officers traveled in excess of 80 m.p.h. to catch up to
appellant, who was driving at a high rate of speed and passing other vehicles in double
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yellow-lined areas. Appellant pulled off the road at Bench’s Greenhouse along Route 2.
The entire investigation had taken 12-20 minutes since the wildlife officers had first seen
the Buick Riviera.
{¶ 11} One wildlife officer checked appellant’s license while the other wildlife
officer made contact with appellant. Appellant admitted he had been to the Refuge for
some encounter with another individual. The other wildlife officer testified he spoke to
appellant at a later point during the stop and he denied having been at the Refuge.
{¶ 12} The first wildlife officer to question appellant testified he gave permission
for the wildlife officer to search the vehicle. The wildlife officer entered the vehicle to
retrieve appellant’s identification from the center console where appellant indicated it
would be found. In the console, the wildlife officer also found a flat-headed screwdriver,
which he believed in his experience could have been used to break a vehicle window, and
a prescription medicine bottle labeled as Percocet. The wildlife officer could see there
were pills inside, but was not trained to identify them. The wildlife officer asked
appellant if the medicine was his and appellant answered affirmatively. The label on the
medicine bottle had been partially torn off, which indicated to the officer that appellant
was attempting to hide the patient information. However, the officer was able to see the
bottom portion of the typed patient name on the label, which he later determined matched
the victim’s last name.
{¶ 13} The victim testified she met her sister at the Refuge trailhead parking lot at
the end of the Shop Road. She recalled their cars were the only cars in the parking lot.
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They had been walking in the area for less than ten minutes when she came close to the
parking lot and observed a park officer driving away from the lot at a high rate of speed.
When she came closer, she saw her car window had been shattered and her purse had
been stolen. Her purse contained, among other items, a prescription bottle with 30-35
Percocet pills, which had a complete label from the Kroger pharmacy; a prescription
bottle filled with Valium; a bottle of ibuprofen; and a nearly full blue and white box of
Camel cigarettes. She further testified that medicine bottle with the torn label depicted in
the photograph admitted into evidence was her bottle because it had the Kroger logo and
the prescription matched. While the victim’s purse was returned to her later that day, she
was still missing credit cards, debit cards, her driver’s license, Camel cigarettes, and her
Percocet bottle. She could not recall if there was any money in the purse. The Percocet
bottle and cigarettes were recovered and returned to her shortly after the incident. She
believes she threw the medicine bottle away after it was empty.
{¶ 14} An Ottawa County Sheriff sergeant testified he was initially contacted to
assist in locating the vehicle to the east of the Refuge and later to handle the theft incident
at the Refuge. At the Refuge, he found the car with the shattered passenger window. He
was unable to check for fingerprints because the outside of the car was covered in dust.
After speaking with the victim, the sergeant proceeded to Bench’s Greenhouse where he
spoke to the wildlife officers. The sergeant took possession of the prescription medicine
bottle and a picture taken by his body camera was admitted into evidence. The
photograph is too blurry to make out the partial name of the patient. The sergeant
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testified that, at the time of the arrest, he could see enough of the typed letters to make
out the last name. He was also able to identify the pills as Percocet through an app on his
phone and a pill the victim had in her pocket. The sergeant returned the medicine bottle
to the victim after talking with the Ottawa County prosecutor.
{¶ 15} The sergeant arrested appellant and inventoried the car. Painting supplies
were found in the trunk as well as a tire iron, which did not appear to the sergeant to have
been used to break the car window. The sergeant also confiscated a pack of Camel
cigarettes found in the center console, which the victim identified as hers. He did not
fingerprint the pill bottle, cigarettes, or screwdriver. The victim’s purse was found by an
elderly couple. The victim initially said it was found in the Black Swamp Area, but the
sergeant later learned it was near Metzger Marsh. Although the victim was also missing
her driver’s license, Social Security card and credit cards, they were not found in
appellant’s vehicle. The sergeant also testified from his experience that it is very difficult
to break a car window with anything other than a pointed object like a screwdriver.
{¶ 16} A sergeant with the Ottawa County Drug Task Force testified that he
obtained on December 15, 2017, a report from the Ohio Prescription Reporting System,
which indicated the victim filled a prescription on August 28, 2017, for Oxycodone,
Acetaminophen, 100 tablets, at a Kroger pharmacy, with brand name of Percocet. No
similar prescription had been filled for appellant within the last 2 years. The report
indicates, however, that the information is not warranted as accurate or complete.
7.
{¶ 17} Appellant’s first and third assignments of error are interrelated and will be
addressed together. In his first assignment of error, appellant argues there was
insufficient evidence to support his conviction. In his third assignment of error, appellant
argues the trial court erred in denying his motion for acquittal because the state failed to
present sufficient evidence to sustain a conviction. Both of these claims raise a due
process issue of whether there was sufficient evidence to support the jury verdict as a
matter of law. State v. Scott, 101 Ohio St.3d 31, 2004-Ohio-10, 800 N.E.2d 1133, ¶ 31,
citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997), and State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). The appellate court
reviews the evidence admitted at trial to determine whether, “if believed, [it] 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, following Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979). The same standard is used to review the denial of a
motion for acquittal. State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d
386, ¶ 37.
{¶ 18} The state was required to present evidence to establish the following
elements in this case:
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1.) Criminal damaging—“knowingly” causing “substantial risk of
physical harm to any property of another without the other person’s
consent.” R.C. 2909.06(A)(1).
2.) Theft— “knowingly obtain or exert control over * * * the
property” of another “with the purpose of depriving the owner of property”
and “[w]ithout the consent of the owner.” R.C. 2913.02(A)(1).
3.) Theft of drugs— “knowingly obtain or exert control over * * *
the property” of another, “with the purpose of depriving the owner of
property” and “[w]ithout the consent of the owner,” and the “property
stolen is any dangerous drug.” R.C. 2913.02(A)(1)(B)(6).
4.) Tampering with evidence— “knowing that an official
proceeding or investigation is in progress * * * [a]lter, destroy, or remove
any * * * thing, with the purpose to impair its value or availability as
evidence.” R.C. 2921.12(A)(1).
5.) Possession of criminal tools— “possess or have under the
person’s control any substance, device, instrument, or article, with purpose
to use it criminally.” R.C. 2923.24(A).
{¶ 19} Appellant argues the state failed to prove every element of the charged
offenses. He did not identify what element(s) lacked sufficient evidence to establish his
guilt beyond a reasonable doubt. Appellant has the burden to “include in his brief * * *
[a]n argument containing the contentions of the appellant with respect to each assignment
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of error presented for review and the reasons in support of the contentions, with citations
to the authorities, statutes, and parts of the record on which appellant relies. The
argument may be preceded by a summary.” App.R. 16(A)(7)
{¶ 20} The only specific argument appellant makes within his third assignment of
error is that there was no evidence appellant committed the theft offenses. We disagree.
Circumstantial evidence was presented that appellant’s vehicle was in the area during the
ten-minute interval in which the theft occurred. There was also direct evidence that
appellant’s vehicle was tracked entering the area, stopping for a moment, and then exiting
the Refuge. He was also tracked entering Metzger Marsh, stopping for a moment by the
boat ramp, and exiting the area. The wildlife officers saw appellant’s vehicle exiting both
locations. Furthermore, a Percocet prescription bottle and cigarette box which matched
the victim’s description were found in the console of appellant’s vehicle. While the label
with the name of the patient was partially defaced, two officers were able to make out the
last name of the patient, which matched the victim’s name. A screwdriver was also
found in the console, which officers testified was the type of instrument capable of
breaking a vehicle window. Finally, appellant attempted to elude the wildlife officers
after he left Metzger Marsh. We find, based on the totality of the evidence, a jury could
reasonably find beyond a reasonable doubt that appellant had committed the theft
offense.
{¶ 21} Despite an insufficient argument, we have also considered the evidence
presented relating to all of the elements of the other offenses and find sufficient evidence
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was presented to submit this case to the jury and that there was sufficient evidence upon
which the jury could find that appellant committed each of the offenses beyond a
reasonable doubt. Appellant’s first and third assignments of error are not well-taken.
{¶ 22} In his second assignment of error, appellant argues that his conviction is
contrary to the manifest weight of the evidence. Even when there is sufficient evidence
to support the verdict, a court of appeals may decide that the verdict is against the weight
of the evidence. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541, at paragraph two of the
syllabus. When weighing the evidence, the court of appeals must consider whether the
evidence in a case is conflicting or where reasonable minds might differ as to the
inferences to be drawn from it, consider the weight of the evidence, and consider the
credibility of the witnesses to determine if “the jury clearly lost its way and created such
a manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered.” Id. at 387, quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717.
{¶ 23} Appellant argues there was no evidence presented which proved beyond a
reasonable doubt that appellant committed the crimes alleged. He makes five specific
arguments.
{¶ 24} First, appellant argues that while the ranger testified he was monitoring
appellant’s vehicle with a GPS tracker, the ranger also testified he had not calibrated the
tracker, nor did he know how to do so, the ranger did not know if appellant was driving
the vehicle, and the ranger never observed appellant commit a crime. We find appellant’s
argument lacks merit. The ranger testified he did not know how to calibrate the GPS
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tracker, but he had verified the tracker was accurate that day by checking it on his own
vehicle. Furthermore, the accuracy of the tracker was further established by the fact that
the wildlife officers were eventually able to find appellant’s vehicle where the ranger’s
tracking indicated and the tracker reflected appellant’s vehicle finally stopped at Bench’s
Greenhouse. This direct evidence served to establish appellant was in the area at the time
of the theft offense, along with his own statement that he had been at the Refuge.
{¶ 25} Second, appellant asserts that the convictions were based on impermissible
double inferences because the jury had to infer appellant had committed a prior crime
from the fact that the ranger was tracking appellant’s vehicle and a second inference from
the fact that his car was in the area of the vehicle break-in for a few minutes to support a
finding that appellant committed the current break-in. We find this argument lacks merit.
{¶ 26} Circumstantial evidence carries the same weight as direct evidence. State
v. Shabazz, 146 Ohio St.3d 404, 2016-Ohio-1055, 57 N.E.3d 1119, ¶ 18. Reasonable
inferences made from factual evidence are part of the process of evaluating the evidence.
Id.{¶ 27} In this case, the reason for the tracker was never discussed. The inference
that appellant was the one who committed the theft offense arises solely from the direct
evidence that: the tracker and the wildlife officers confirmed appellant was in the area at
the time of the offense and no other car was seen in the area; the time frame in which the
theft could have occurred was less than ten minutes after the victim parked her car;
appellant possessed two items that matched items which had been in the victim’s purse;
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the prescription bottle, although defaced, still showed the partial name of the patient
which matched the victim’s name; the missing Percocet and cigarettes were returned to
the victim and she did not reject them; the pills matched the victim’s description and a
pill she had in her pocket; the pharmacy records reported the victim had a prescription for
Percocet but appellant did not; appellant possessed a tool which could break a vehicle’s
window, which was found in the center console with the stolen items rather than in the
trunk with appellant’s work tools; and appellant fled recklessly at a high rate of speed
when the wildlife officers pursued him. We conclude that the jury could reasonably infer
from this evidence that appellant committed the theft offense.
{¶ 28} Third, appellant argues that the wildlife officers had no reason to suspect
that appellant was involved in the theft until the ranger identified him. We find this
argument irrelevant. The wildlife officers worked with the ranger to investigate possible
criminal activity. Their reason for initiating the investigation has no bearing on their
testimony of the events that transpired.
{¶ 29} Fourth, appellant argues the photograph of the defaced prescription
medicine bottle did not show the name of the patient because it was too blurry and the
bottle was not introduced into evidence. This argument is not supported by the evidence.
While the photograph was blurry and the words on the prescription bottle were not
legible, both officers testified they could make out a name from the bottom edge of the
typed letters which had not been removed. Furthermore, the prescription was for
Percocet, which the victim was missing; the prescription had been filled at a Kroger
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pharmacy (the victim’s pharmacy); appellant had not filled a prescription for Percocet in
the recent two years; the victim believed the bottle which was returned to her was the
bottle that had been in her purse.
{¶ 30} Fifth, appellant argues the jury would have to infer that the screwdriver was
used as a criminal tool rather than in appellant’s painting work. We reject this argument
as well because that inference is a permissible inference based on direct evidence.
Several officers testified that a screwdriver is the type of tool required to break a vehicle
window and the sergeant found nothing in the vicinity of the car which could have
shattered the window. Furthermore, the screwdriver was found within appellant’s reach
and next to items missing from the victim. A reasonable inference can be drawn from
this evidence that appellant used the screwdriver to break the car window.
{¶ 31} Sixth, appellant argues the jury would have to infer the window was broken
after appellant entered the park. We also reject that this inference was unreasonable. The
victim testified she and her sister had been in the park less than ten minutes, no other cars
were in the parking lot when the victim arrived, no one was seen leaving the park after
appellant, and appellant was tracked as driving to the parking area and remaining there
for only a few minutes before leaving. It was reasonable for the jury to infer from this
evidence that appellant was the one who committed the theft offense beyond a reasonable
doubt.
{¶ 32} Therefore, we reject appellant’s arguments that the jury would have to
make an inference upon an inference to convict him. We find there was direct and
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circumstantial evidence, and reasonable inferences from those facts which supported the
convictions. Appellant’s second assignment of error is not well-taken.
{¶ 33} Having found that the trial court did not commit error prejudicial to
appellant and that substantial justice has been done, the judgment of the Ottawa County
Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Christine E. Mayle, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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