[Cite as State v. Moore, 2013-Ohio-2924.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-120770
TRIAL NO. B-1205835
Plaintiff-Appellee, :
O P I N I O N.
vs. :
HAROLD MOORE, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 5, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Fox & Scott, PLLC, and Bradley Fox, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} Harold Moore was convicted of two counts of receiving stolen
property: one count for a stolen SUV, and the other count for a license plate that had
been placed on the stolen vehicle. In this appeal, he argues that he was denied the
effective assistance of counsel, that his convictions were not supported by sufficient
evidence and were against the weight of the evidence, and that the trial court abused
its discretion in sentencing him to the maximum allowable prison term. We are not
persuaded, so we affirm the judgment of the trial court.
I.
{¶2} On the morning of Friday, August 24, 2012, Lawrence Kemper walked
outside to discover that the license plate on his car had mysteriously disappeared, a
circumstance he subsequently reported to the police. That same day, a 2001 Chevy
Suburban went missing from Advanced Auto Sales, a used car lot in Cheviot, Ohio.
{¶3} After discovering the vehicle missing, Cindy Devers, one of the owners
of the car lot, reviewed a video recorded by the lot’s surveillance cameras the night
before. She could see a person putting a license plate on the SUV, entering the SUV,
and driving off in the SUV, but was unable to make out the person’s face or features.
Ms. Devers showed the video to police officers, who also were unable to make out any
identifiable features of the thief.
{¶4} That night, Cincinnati Police Officer Tom DeFranco was patrolling the
Over-the-Rhine area of Cincinnati in a marked police car. He ran the license plate of
a black Suburban and learned that the license plate had been reported stolen. Before
he could pull the Suburban over, two individuals got out and started walking. Officer
DeFranco caught up with the driver, whom he subsequently identified as Mr. Moore.
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OHIO FIRST DISTRICT COURT OF APPEALS
He entered the Suburban’s vehicle identification number into his computer and
determined that the SUV also had been reported stolen by the car lot. When the
police officer asked Mr. Moore for the keys to the vehicle, Mr. Moore stated that he
had given them to his cousin, whom he refused to name. Officer DeFranco arrested
Mr. Moore and arranged for the Suburban to be towed.
{¶5} The following Monday, Ms. Devers was told that the vehicle had been
located. When the SUV was retrieved from an impound lot, the steering column had
been stripped. At trial, Ms. Devers identified Mr. Moore as a person who had come
to the car lot at least twice asking about the Suburban one or two weeks before she
discovered the vehicle missing. She remembered Mr. Moore because he had several
distinctive tattoos. After she learned that Cincinnati police had made an arrest in the
case, she viewed Mr. Moore’s photograph on the Hamilton County Clerk of Courts’
website. She recognized Mr. Moore as the person who had visited the lot and
inquired about the Suburban.
{¶6} Mr. Moore took the stand in his own defense. He denied that he had
known that the SUV and license plate had been stolen, claiming that had he known,
he would have sped away from the police officers on the night that he was stopped.
{¶7} At the conclusion of the bench trial, the court found Mr. Moore guilty
as charged and sentenced him to 18 months for one count and 12 months for the
other. The sentences were made concurrent with each other.
II.
{¶8} In his first assignment of error, Mr. Moore asserts that he was denied
the effective assistance of counsel. To succeed on this assignment, he must
demonstrate that his counsel’s performance was deficient, and that, absent his
counsel’s errors, the result of the proceedings would have been different. Strickland
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v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see State
v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989).
{¶9} Mr. Moore first contends that his counsel was ineffective because he
did not move for a mistrial based on the destruction of exculpatory evidence. Prior
to trial, Mr. Moore’s counsel inquired about the existence of the surveillance video
from the car lot. As explained by Ms. Devers during her testimony, the video was
automatically taped over every 30 days. Thus, no video was available to provide to
Mr. Moore as part of discovery. Mr. Moore claims that his counsel should have
moved for a mistrial because the video was potentially exculpatory.
{¶10} The failure to provide Mr. Moore with the surveillance video would
have violated his due process rights if the video was material to his guilt. State v.
Johnston, 39 Ohio St.3d 48, 529 N.E.2d 898 (1988), paragraph four of the syllabus.
Evidence is material “only if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been
different.” Id. at paragraph five of the syllabus. Here, we are unable to conclude that
the video was material to the issue of Mr. Moore’s guilt. Ms. Devers testified that she
had been unable to discern any features of the person seen on the videotape, and that
the police officers who reviewed the tape had not retained it as evidence because they
had been unable to make anything out.
{¶11} Even if the video was not materially exculpatory but only potentially
useful to Mr. Moore, a due process violation could have been shown if the state acted
in bad faith in failing to preserve the video. State v. Geeslin, 116 Ohio St.3d 252, 878
N.E.2d 1 (2007), syllabus. Here, however, the record does not demonstrate bad faith
on the part of the state. Rather, the police officers did not preserve the video because
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OHIO FIRST DISTRICT COURT OF APPEALS
they determined that it had no evidentiary value. We conclude that counsel was not
ineffective for failing to pursue a motion to dismiss.
{¶12} Mr. Moore next contends that counsel was ineffective because he did
not move for a Crim.R. 29 acquittal at the close of the state’s case. We disagree.
Even if counsel had made a Crim.R. 29 motion, it would have been denied by the
court, which found sufficient evidence to convict Mr. Moore of both counts in the
indictment. We therefore overrule the first assignment of error.
{¶13} We consider Mr. Moore’s second and third assignments of error
together. In the second, he asserts that his convictions were not based on sufficient
evidence. In the third, he claims that his convictions were against the manifest
weight of the evidence. Neither assignment of error is well taken.
{¶14} As to the sufficiency argument, our review of the record reveals that
the state adduced substantial, credible evidence from which the trial court could have
reasonably concluded that the state had proved beyond a reasonable doubt the
elements of the offenses for which Mr. Moore was found guilty. See State v. Jenks,
61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus; R.C.
2913.51.
{¶15} In regard to the manifest-weight argument, our review of the entire
record fails to persuade us that the trial court clearly lost its way and created such a
manifest miscarriage of justice that we must reverse Mr. Moore’s convictions and
order a new trial. See State v. Thompkins, 78 Ohio St.3d 380, 386-87, 678 N.E.2d 541
(1997). The second and third assignments of error are overruled.
{¶16} In his final assignment of error, Mr. Moore asserts that the trial court
abused its discretion when it sentenced him to the maximum allowable term for each
count. He argues that the trial court did not place on the record its consideration
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OHIO FIRST DISTRICT COURT OF APPEALS
and weighing of the statutory factors before sentencing him. See R.C. 2929.11 and
2929.12. But we may presume that the court considered the proper sentencing
factors. State v. Love, 194 Ohio App.3d 16, 2011-Ohio-2224, 954 N.E.2d 202, ¶ 14
(1st Dist.), citing State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d
124, fn. 4. Further, having reviewed the record, we are unable to conclude that the
court abused its discretion when it imposed the maximum sentence for each count.
See Kalish, supra. The final assignment of error is overruled. We therefore affirm
the judgment of the trial court.
Judgment affirmed.
H ENDON , P.J., and D INKELACKER , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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