[Cite as State v. Lollar-Owens, 2011-Ohio-3568.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 25538
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CINDY L. LOLLAR-OWENS COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 09 11 3341
DECISION AND JOURNAL ENTRY
Dated: July 20, 2011
CARR, Presiding Judge.
{¶1} Appellant, Cindy Lollar-Owens, appeals her conviction out of the Summit County
Court of Common Pleas. This Court affirms.
I.
{¶2} This case stems from two incidents that occurred on August 17 and 19, 2009,
when the home of Ms. Deborah Miller was burglarized. On August 22, 2009, Lollar-Owens
pawned several pieces of jewelry, which were subsequently identified as jewelry that was
missing from Ms. Miller’s home after the burglaries. On November 16, 2009, Lollar-Owens was
indicted on one count of receiving stolen property in violation of R.C. 2913.51(A), a felony of
the fifth degree. Lollar-Owens pleaded not guilty.
{¶3} The case was tried to the bench on June 1, 2010. At the conclusion of the State’s
evidence, Lollar-Owens made a motion for acquittal. The trial court denied the motion. Lollar-
Owens did not put on a defense. Lollar-Owens was found guilty of receiving stolen property.
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{¶4} On October 15, 2010, Lollar-Owens moved this Court for leave to file a delayed
appeal, which this court granted on October 20, 2010. Lollar-Owens raises two assignments of
error for review.
II.
ASSIGNMENT OF ERROR I
“THE TRIAL COURT ERRED IN DENYING APPELLANT’S CRIM. R. 29
MOTION AS THE STATE PRESENTED INSUFFICIENT EVIDENCE TO
SUSTAIN A CONVICTION.”
ASSIGNMENT OF ERROR II
“THE COURT CREATED A MANIFEST MISCARRIAGE OF JUSTICE AS
[THE] VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.”
{¶5} Lollar-Owens argues that her conviction for receiving stolen property was not
supported by sufficient evidence and was against the manifest weight of the evidence. This
Court disagrees.
{¶6} Crim.R. 29 provides, in relevant part:
“(A) The court on motion of a defendant or on its own motion, after the evidence
on either side is closed, shall order the entry of a judgment of acquittal of one or
more offenses charged in the indictment, information, or complaint, if the
evidence is insufficient to sustain a conviction of such offense or offenses. The
court may not reserve ruling on a motion for judgment of acquittal made at the
close of the state’s case.”
{¶7} A review of the sufficiency of the State’s evidence and the manifest weight of the
evidence adduced at trial are separate and legally distinct determinations. State v. Gulley (Mar.
15, 2000), 9th Dist. No. 19600. “While the test for sufficiency requires a determination of
whether the state has met its burden of production at trial, a manifest weight challenge questions
whether the state has met its burden of persuasion.” Id., citing State v. Thompkins (1997), 78
Ohio.St.3d 380, 390 (Cook J., concurring). When reviewing the sufficiency of the evidence, this
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Court must review the evidence in a light most favorable to the prosecution to determine whether
the evidence before the trial court was sufficient to sustain a conviction. State v. Jenks (1991),
61 Ohio St.3d 259, 279.
“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.” Id. at paragraph two of the syllabus.
{¶8} A determination of whether a conviction is against the manifest weight of the
evidence, however, does not permit this Court to view the evidence in the light most favorable to
the State to determine whether the State has met its burden of persuasion. State v. Love, 9th Dist.
No. 21654, 2004-Ohio-1422, at ¶11. Rather,
“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 (1986), 33 Ohio App.3d 339,
340.
“Weight of the evidence concerns the tendency of a greater amount of credible
evidence to support one side of the issue more than the other. Thompkins, 78
Ohio St.3d at 387. Further when reversing a conviction on the basis that it was
against the manifest weight of the evidence, an appellate court sits as a ‘thirteenth
juror,’ and disagrees with the factfinder’s resolution of the conflicting testimony.
Id.” State v. Tucker, 9th Dist. No. 06CA0035-M, 2006-Ohio-6914, at ¶5.
This discretionary power should be exercised only in exceptional cases where the evidence
presented weighs heavily in favor of the defendant and against conviction. Thompkins, 78 Ohio
St.3d at 387.
{¶9} Lollar-Owens was charged with receiving stolen property in violation of R.C.
2913.51(A) which states that “[n]o person shall receive, retain, or dispose of property of another
knowing or having reasonable cause to believe that the property has been obtained through
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commission of a theft offense.” Receiving stolen property is a felony of the fifth degree if the
value of the property involved is five hundred dollars or more and is less than five thousand
dollars. R.C. 2913.51(C).
{¶10} “A person acts knowingly, regardless of his purpose, when he is aware that his
conduct will probably cause a certain result or will probably be of a certain nature. A person has
knowledge of circumstances when he is aware that such circumstances probably exist.” R.C.
2901.22(B).
{¶11} Fair market value of personal property is defined as “the money consideration that
a buyer would give and a seller would accept for property or services, assuming that the buyer is
willing to buy and the seller is willing to sell, that both are fully informed as to all facts material
to the transaction, and that neither is under any compulsion to act.” R.C. 2913.61(D)(3).
{¶12} “Receive is not defined in the statute, but a generally accepted definition of
receive is to acquire ‘control in the sense of physical dominion over or the apparent legal power
to dispose of said property.’” State v. Brewer (July 19, 2000), 9th Dist. No. 99CA007483,
quoting State v. Jackson (1984), 20 Ohio App.3d 240, 242.
{¶13} The Supreme Court of Ohio and the United States Supreme Court have concluded
that, “‘[p]ossession of recently stolen property, if not satisfactorily explained, is ordinarily a
circumstance from which you may reasonably draw the inference and find, in the light of the
surrounding circumstances shown by the evidence in the case, that the person in possession knew
the property had been stolen.’” State v. Arthur (1975), 42 Ohio St.2d 67, 68, quoting Barnes v.
United States (1973), 412 U.S. 837.
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Sufficiency of the Evidence
{¶14} Lollar-Owens argues that there was insufficient evidence to establish that the
value of the property was over $500.00 to warrant a felony conviction and that she knowingly
received stolen property.
{¶15} On August 17 and 19, 2009, Ms. Deborah Miller’s home in Akron, Ohio was
burglarized. Televisions, jewelry, a computer, and cars were taken. In regards to the jewelry,
Ms. Miller testified that three gold Omega chains and four rings were taken. She testified that
she did not give anyone permission to take these items from her. She explained that detectives
found her missing jewelry at a pawn store, Pawn Brokers of America, in Akron, Ohio.
{¶16} Ms. Miller testified that she paid $465.00 for the Patroke Kunzite ring, the receipt
for which was admitted into evidence without objection. She testified that she recently bought
one of the chains from her niece for $385. She also explained that one of the rings was her
mother’s diamond engagement ring.
{¶17} Mr. David Johnson testified that he has worked at Pawn Brokers of America for
nearly ten years. He testified that Lollar-Owens was a customer at Pawn Brokers of America for
several years. He testified that Lollar-Owens pawned six pieces of jewelry to the store. These
six pieces were subsequently determined by Sergeant David Garro of the Akron Police
Department to have been the jewelry taken from Ms. Miller.
{¶18} Mr. Johnson testified that customers are required to sign a “police card” for each
item that they pawn. He explained that the ‘police cards’ contain a description of the item
pawned and the amount the pawn store paid for each item. He testified that these cards are
picked up by the Akron Police Department several times a week. He testified that the “police
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cards” for six pieces of jewelry that belonged to Ms. Miller were signed by Lollar-Owens on
August 22, 2009.
{¶19} Mr. Johnson further explained that the amount the pawn store pays for each item
is “a small percentage” of the actual value of the item, but that it is not part of his job to
determine the retail value of items pawned. He testified that the store does not ask customers
where their items came from, because it is impossible to determine if pawned items were stolen
property.
{¶20} Sergeant Garro testified that the following course of events occurred during his
investigation of one of the home invasions of Ms. Miller. He came to believe that Clifford Dion
Walters was involved in the home invasions. He discovered one of Ms. Miller’s larger chains
that had been stolen had been pawned by Ms. Diamond Roberts, who was Mr. Walters’ niece.
Ms. Roberts told Sergeant Garro that she “pawned [the chain] at the request of Clifford Dion
Walters.” Upon execution of a search warrant, some of Ms. Miller’s property was discovered at
Mr. Walters’ house. He began investigating all of Mr. Walters’ acquaintances and discovered
that Lollar-Owens was Mr. Walters’ aunt. He then went over pawn lists and discovered the
jewelry pawned by Lollar-Owens. He photographed the jewelry at the pawn store and showed
the photographs to Ms. Miller. Ms. Miller identified the jewelry as hers and correctly stated the
sizes of all the rings, convincing him the jewelry was her property.
{¶21} Lollar-Owens gave a recorded statement to Sergeant Garro which was admitted
into evidence without objection. Lollar-Owens admitted that she could not remember how she
had acquired the jewelry. Lollar-Owens also acknowledged that Mr. Walters was her nephew.
{¶22} Reviewing the evidence in a light most favorable to the State, this Court
concludes that any rational trier of fact could have found the essential elements of the charge of
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receiving stolen property were proved beyond a reasonable doubt. See Jenks at paragraph two of
the syllabus. The receipt for the Patroke Kunzite ring and Ms. Miller’s testimony demonstrates
that the fair market value of one of the rings was $456.00, since that is the amount Ms. Miller
was willing to pay for the ring and the seller accepted. Likewise, Ms. Miller testified that she
had recently purchased one of the gold Omega chains from her niece for $385.00. The combined
value of these two pieces of jewelry exceeds $500.00. Accordingly, there was sufficient
evidence to establish that the fair market value of the jewelry pawned by Lollar-Owens exceeded
$500.00.
{¶23} Furthermore, the State proved beyond a reasonable doubt that Lollar-Owens
knowingly received stolen property. Ms. Miller testified that the jewelry had been taken from
her home without her permission. Lollar-Owens had physical dominion over the jewelry, as she
pawned the jewelry a few days after the home invasion. The State presented evidence that the
jewelry pawned by Lollar-Owens did belong to Ms. Miller. Lollar-Owens could not
satisfactorily explain how she obtained the jewelry. Accordingly, there was sufficient evidence
to establish that Lollar-Owens knowingly received stolen property. Lollar-Owens’ first
assignment of error is overruled.
Manifest Weight of the Evidence
{¶24} Although Lollar-Owens told the police that she lawfully possessed the jewelry
that she pawned and that she did not buy it from Mr. Walters or pawn it for him, this Court will
not overturn the trial court’s verdict on a manifest weight of the evidence challenge only because
the trier of fact chose to believe certain witness’ testimony over the testimony of others. State v.
Crowe, 9th Dist. No. 04CA0098-M, 2005-Ohio-4082, at ¶22.
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{¶25} A thorough review of the record indicates that this is not the exceptional case,
where the evidence weighs heavily in favor of Lollar-Owens, and there is no indication that the
trial court lost its way and committed a manifest miscarriage of justice in convicting Lollar-
Owens of receiving stolen property. The weight of the evidence supports the conclusion that
Lollar-Owens knowingly received stolen property. The State presented evidence that the jewelry
pawned by Lollar-Owens belonged to Ms. Miller. Lollar-Owens could not explain how she had
obtained the jewelry. Ms. Miller testified that she paid $465.00 for one of the rings and $385.00
for one of the chains, the combined total of which exceeds $500.00. Accordingly, Lollar-Owens’
conviction for receiving stolen property is not against the manifest weight of the evidence.
Lollar-Owens’ second assignment of error is overruled.
III.
{¶26} Lollar-Owens’ assignments of error are overruled. The judgment of the
Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, 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(E). The Clerk of the Court of Appeals is
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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.
DONNA J. CARR
FOR THE COURT
WHITMORE, J.
DICKINSON, J.
CONCUR
APPEARANCES:
MARTHA HOM, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.