[Cite as State v. Colburn, 2013-Ohio-4662.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 13-CA-5
:
GARY W. COLBURN :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 12 CR 00539
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: October 11, 2013
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
KENNETH W. OSWALT ERIC W. BREHM
LICKING CO. PROSECUTOR 604 E. Rich St., Suite 2100
CHRISTOPHER A. REAMER Columbus, OH 43215
20 S. Second St., Fourth Floor
Newark, OH 43055
Licking County, Case No.13-CA-5 2
Delaney, J.
{¶1} Appellant Gary W. Colburn appeals from the judgment entry of conviction
entered on December 14, 2012 in the Licking County Court of Common Pleas.
Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose on October 5, 2012 around 1:00 a.m. when Officer Corey
Tyson of the Newark Police Department was on routine patrol. On Third Street south of
Church, in the city of Newark, Licking County, Tyson noticed a green Plymouth Grand
Voyager minivan with no headlights on. He advised dispatch he would be stopping the
vehicle and radioed the license plate number.
{¶3} Tyson stopped the van and made contact with the driver and front-seat
passenger; both seemed “agitated.” The driver of the van, appellant, identified himself
as “David Colburn” and provided a social security number but no driver’s license or
other physical form of identification. Tyson discovered that “David Colburn’s” operator’s
license was suspended and planned to cite the driver for D.U.S. The passenger, later
identified as Kenneth Thomas, kept trying to get out of the van and had to be told to
stay put.
{¶4} Another Newark police officer, Jonathan Bell, arrived on the scene to
assist Tyson and began the process of impounding the van. From dispatch, Bell
learned the plates on the van did not match the vehicle. Bell ran the VIN instead and
learned the van had been reported stolen in Adrian, MI.
{¶5} Tyson placed appellant under arrest and questioned him regarding the
stolen van. Appellant said he had been at the Blue Raccoon bar earlier that night and
Licking County, Case No.13-CA-5 3
met Kenneth Thomas. First appellant said he hitchhiked to the bar, and then he said his
girlfriend dropped him off there. Once at the bar, he met Thomas. Appellant claimed
Thomas had the van and offered to drive the pair elsewhere. Tyson confronted
appellant about his changing stories and appellant said “OK, you got me, take me to
jail.” Tyson asked what he meant and appellant replied “You figure it out.”
{¶6} Tyson still believed appellant to be “David Colburn.” As he prepared the
citation for the DUS, however, he realized the physical description of “David Colburn”
did not match appellant. Tyson printed photos of David Colburn and Gary Colburn and
identified appellant as Gary. Tyson approached the holding cell containing appellant
and yelled “Hey, Gary,” and appellant responded “What?” Tyson asked him if his name
was really Gary Colburn and appellant responded “You figure it out.”
{¶7} In the meantime, the green van was impounded and searched, and the
search yielded a motel key for the Downtown Motel in Coshocton, Ohio. The motel
owner testified appellant registered there on October 3 under the name of Gary
Colburn.
{¶8} Appellee presented the testimony of Douglas Barnes, a MI resident who
lives about ten minutes from Adrian. Barnes is the owner of the green Plymouth
Voyager van and testified he was in the process of selling it to Dan Thompson of Maple
Motors in Adrian. Barnes dropped off the van at Maple Motors sometime during the last
week of September 2012 and was awaiting an offer from Thompson. Thompson called
about a week later to say the key was missing, so Barnes dropped off a copy of the key
on October 1, 2012. Barnes observed the van on the lot at Maple Motors that day.
Licking County, Case No.13-CA-5 4
{¶9} Barnes did not give anyone permission to take the van from Maple Motors
or to use the van to drive to Ohio. He has never met appellant and did not give him
permission to drive the van. After the van was recovered, Barnes picked it up from the
Newark impound lot and eventually consummated the sale to Thompson and Maple
Motors.
{¶10} Appellant was charged with one count of receiving stolen property, a
felony of the fourth degree, and one count of falsification, a misdemeanor of the first
degree. He entered pleas of not guilty and the case was scheduled for jury trial.
Immediately prior to trial, appellant’s trial counsel moved to withdraw and appellant
moved to represent himself. The trial court questioned appellant and advised him of his
rights before finding he was able to represent himself. Defense trial counsel was
appointed standby counsel.
{¶11} Appellee’s evidence consisted of the facts described above. Appellee
also called Kenneth Thomas as a witness, who testified he met appellant in the Blue
Raccoon and asked him for a ride downtown. Thomas stated appellant had the van and
drove it that night; he had never met appellant before and didn’t know anything about
the van being stolen.
{¶12} Appellee also called a social worker from the county jail who testified
appellant told him he was improperly charged with receiving stolen property because in
his understanding, he didn’t “receive” the van, he stole it, and felt he should have been
charged with theft in MI and not in Ohio. Appellant told the social worker he knows Dan
Thompson, the car lot owner, and was able to take the key, make a copy, and later
Licking County, Case No.13-CA-5 5
drive off in the van. Appellant said he had “permission” from Thompson to drive the van
at one point but later took it without “permission.”
{¶13} Appellee rested and appellant did not present any witnesses. He
attempted to introduce a cell phone into evidence which he claimed would show a
number of calls from Dan Thompson, the owner of Maple Motors. The trial court
explained appellant could not introduce the exhibit on its own without any supporting
witness. Appellant then rested.
{¶14} The trial court and the parties discussed the proposed jury instructions;
appellant sought an instruction on the lesser-included offense of unauthorized use of a
motor vehicle and appellee objected, arguing appellant had presented no evidence that
would support the lesser-included offense. The parties then debated the appropriate
code section for unauthorized use and appellant offered a police report from Adrian, MI
to establish when the van was reported stolen. The trial court ruled the MI police report
had not been admitted into evidence and was inadmissible hearsay.
{¶15} In his closing argument, appellant argued he took the van with Dan
Thompson’s “permission,” for unspecified “illegal purposes.” He admitted giving a false
name to police because he didn’t want them to find out about outstanding warrants he
had.
{¶16} The jury was instructed upon receiving stolen property [R.C. 2913.51(A)];
the lesser-included offense of unauthorized use of property [R.C. 2913.03(B)]; and
falsification [2921.13(A)(3)]. The MI police report came up again when the jury posed a
question during deliberations. The jury sent out a question stating “Need copy of
Licking County, Case No.13-CA-5 6
Michigan police report,” and the trial court responded it was neither marked as an
exhibit nor admitted into evidence, so it would not be provided to them.
{¶17} Appellant was thereupon found not guilty of receiving stolen property,
guilty of unauthorized use of a motor vehicle, and guilty of falsification. The trial court
sentenced appellant to an aggregate prison term of 11 months.
{¶18} Appellant now appeals from the judgment entry of his conviction and
sentence.
{¶19} Appellant raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶20} “I. THE TRIAL COURT DID ERR BY FAILING TO ADMIT A COPY OF
THE POLICE REPORT. (T. P. 148).”
{¶21} “II. THE TRIAL COURT DID ERR WHEN IT ENTERED JUDGMENT
AGAINST THE DEFENDANT WHEN THE EVIDENCE WAS INSUFFICIENT TO
SUSTAIN A CONVICTION AND WAS NOT SUPPORTED BY THE MANIFEST
WEIGHT OF THE EVIDENCE. (T. PP. 82-133).”
ANALYSIS
I.
{¶22} In his first assignment of error, appellant argues the trial court erred in
refusing to admit the MI police report during the parties’ argument about instructing the
jury on the lesser-included offense of unauthorized use of a motor vehicle. We
disagree.
{¶23} The admission or exclusion of evidence is a matter left to the sound
discretion of the trial court. Absent an abuse of discretion resulting in material prejudice
Licking County, Case No.13-CA-5 7
to the defendant, a reviewing court should be reluctant to interfere with a trial court’s
decision in this regard. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967).
{¶24} R.C. 2945.10(C) specifies the order of proceedings at trial: “The state
must first produce its evidence and the defendant shall then produce his evidence.”
“The state will then be confined to rebutting evidence, but the court, for good reason, in
furtherance of justice, may permit evidence to be offered by either side out of its order.”
R.C. 2945.10(D). Appellant sought to admit the MI police report after the evidence was
closed and both sides had rested. A trial court does have discretion to have admit
evidence out of order, State v. Filiaggi, 86 Ohio St.3d 230, 241-242, 714 N.E.2d 867
(1999), cert. denied in Filiaggi v. Ohio, 528 U.S. 1090, 120 S.Ct. 821, 145 L.Ed.2d 691
(2000), but in this case appellant sought to admit the evidence after both sides had
rested. Appellant would have to demonstrate the trial court's refusal to admit the report
constitutes an abuse of discretion, which would be “more than an error of law or of
judgment; it implies that the court's attitude is unreasonable, arbitrary or
unconscionable.” Id., citing State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144
(1980). Appellant has not met that burden in this case. In light of appellant’s
admissions, the trial court’s decision not to admit the report did not result in prejudice to
appellant.
{¶25} Moreover, the trial court specifically declined to admit the MI police report
on the basis that it is inadmissible hearsay. It is well established that police reports are
generally inadmissible hearsay and should not be submitted to the jury. State v.
Granderson, 177 Ohio App.3d 424, 894 N.E.2d 1290, 2008-Ohio-3757 (5th Dist.), ¶ 77,
citing State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229. In this
Licking County, Case No.13-CA-5 8
case, particularly, appellant sought to admit the report alone, absent any foundation.
The trial court did not abuse its discretion in refusing to admit the police report.
{¶26} Appellant’s first assignment of error is overruled.
II.
{¶27} In his second assignment of error, appellant argues his conviction for
unauthorized use of a motor vehicle in violation of R.C. 2913.03(B) is against the
manifest weight and sufficiency of the evidence. We disagree.
{¶28} The legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio
St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard
of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,
61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which
the Ohio Supreme Court held, “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.”
{¶29} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing
the entire record, weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence,
Licking County, Case No.13-CA-5 9
the jury clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be overturned and a new trial ordered.” State v. Thompkins, supra, 78
Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of the
evidence and ordering a new trial should be reserved for only the “exceptional case in
which the evidence weighs heavily against the conviction.” Id.
{¶30} Appellant was convicted upon one count of unauthorized use of a motor
vehicle pursuant to R.C. 2913.03(B), which states: “No person shall knowingly use or
operate an aircraft, motor vehicle, motorboat, or other motor-propelled vehicle without
the consent of the owner or person authorized to give consent, and either remove it
from this state or keep possession of it for more than forty-eight hours.” Barnes, the
owner of the van, testified he dropped the van off at Maple Motors sometime during the
last week of September, 2012. On October 1, 2012, Barnes dropped off an extra key
for the van and saw the van on the lot. Appellant checked into the Downtown Motel in
Coshocton, Ohio on October 3, 2012, and noted the van as his vehicle on the motel
registration form. Appellant was stopped driving the van in Licking County, Ohio, on
October 5, 2012. We find the jury could reasonably conclude from this evidence
appellant kept possession of the van for longer than 48 hours.
{¶31} Appellant’s conviction is supported by sufficient evidence and is not
against the manifest weight of the evidence. Appellant’s second assignment of error is
overruled.
Licking County, Case No.13-CA-5 10
CONCLUSION
{¶32} Appellant’s two assignments of error are overruled and the judgment of
the Licking County Court of Common Pleas is affirmed.
By: Delaney, J. and
Hoffman, P.J.
Wise, J., concur.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. JOHN W. WISE
State v. Colburn
Combined Opinion