State v. Gray

[Cite as State v. Gray, 2015-Ohio-3174.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BROWN COUNTY

STATE OF OHIO, :
CASE NO. CA2015-01-004
Plaintiff-Appellee, :
OPINION
: 8/10/2015
- vs -
:

TIMOTHY MATTHEW GRAY, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS
Case No. CRI2014-2167

Jessica A. Little, Brown County Prosecuting Attorney, Mary McMullen, 510 East State Street,
Suite 2, Georgetown, Ohio 45121, for plaintiff-appellee

Timothy J. Kelly, 108 South High Street, P.O. Box 467, Mt. Orab, Ohio 45154, for defendant-
appellant

S. POWELL, J.

{¶ 1} Defendant-appellant, Timothy Matthew Gray, appeals from his conviction in the

Brown County Court of Common Pleas after a jury found him guilty of theft, receiving stolen

property, identity fraud and forgery. For the reasons outlined below, we affirm.

{¶ 2} On August 21, 2014, the Brown County Grand Jury returned an indictment

charging Gray with one count of theft in violation of R.C. 2913.02(A)(1), one count of
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receiving stolen property in violation of R.C. 2913.51(A), one count of identity fraud in

violation of R.C. 2913.49(B)(1), one count of identity fraud in violation of R.C. 2913.49(B)(2),

and one count of forgery in violation of R.C. 2913.31(A)(2), all fifth-degree felonies.

{¶ 3} According to the bill of particulars, the receiving stolen property and theft

charges stemmed from allegations that Gray stole fencing supplies belonging to John

Skinner that he then sold for scrap with his co-defendant, Erik Beckelhymer. The stolen

property involved included approximately 350 steel posts, 100 feet of electric cable, a 15-foot

grain auger, and a 12-foot culvert, all of which were alleged to have a total aggregate value in

excess of $1,000. As to the identity fraud and forgery charges, the bill of particulars alleged

Gray provided police with his brother's name and social security number after being pulled

over for a traffic violation. Gray then signed his brother's name on the traffic citation.

{¶ 4} The matter proceeded to a two-day jury trial that concluded on December 19,

2014. At trial, the jury heard testimony from both Skinner and Beckelhymer, among others.

Specifically, Skinner testified that the value of the stolen property involved was approximately

$2,100 to $2,200, which included the replacement value of the approximately 350 fence

posts at $1,400 to $1,575. The trial court also admitted, without any objection, the written

statement of Gray's brother, Nathan Gray, which he provided to police. As part of his written

statement, Gray's brother explicitly stated that Gray had used his name and identity in the

past, that he "just want[s] it to stop," and that he felt like he was a victim of forgery.

{¶ 5} Once both parties rested, the jury returned its verdict finding Gray guilty on all

charges. The trial court then sentenced Gray to serve a total aggregate sentence of 22

months in prison and ordered him to pay restitution to Skinner in the amount of $1,000. Gray

now appeals from his conviction, raising two assignments of error for review.

{¶ 6} Assignment of Error No. 1:

{¶ 7} APPELLANT'S CONVICTIONS FOR FELONY THEFT AND FELONY
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RECEIVING STOLEN PROPERTY WERE CONTRARY TO LAW BECAUSE IT WAS NOT

PROVEN BEYOND A REASONABLE DOUBT THAT THE VALUE OF THE STOLEN ITEMS

WAS ONE THOUSAND DOLLARS OR MORE.

{¶ 8} In his first assignment of error, Gray argues the state provided insufficient

evidence to support his fifth-degree felony convictions for receiving stolen property and theft

because the evidence did not establish the aggregate value of the property involved was

$1,000 or more. We disagree.

{¶ 9} Whether the evidence presented at trial is legally sufficient to sustain a verdict

is a question of law. State v. Hoskins, 12th Dist. Warren No. CA2013-02-013, 2013-Ohio-

3580, ¶ 16, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). When reviewing the

sufficiency of the evidence underlying a criminal conviction, an appellate court examines the

evidence in order to determine whether such evidence, if believed, would convince the

average mind of the defendant's guilt beyond a reasonable doubt. State v. Kinsworthy, 12th

Dist. Warren No. CA2013-06-053, 2014-Ohio-1584, ¶ 52. 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. Smith, 12th Dist. Warren Nos. CA2012-02-017 and CA2012-02-018, 2012-

Ohio-4644, ¶ 25, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the

syllabus. In other words, "the test for sufficiency requires a determination as to whether the

state has met its burden of production at trial." State v. Boles, 12th Dist. Brown No. CA2012-

06-012, 2013-Ohio-5202, ¶ 34, citing State v. Wilson, 12th Dist. Warren No. CA2006-01-007,

2007-Ohio-2298, ¶ 33. When evaluating the sufficiency of the evidence, this court defers to

the trier of fact regarding questions of credibility. State v. Kirkland, 140 Ohio St.3d 73, 2014-

Ohio-1966, ¶ 132.

{¶ 10} As noted above, Gray was convicted of receiving stolen property in violation of
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R.C. 2913.51(A) and theft in violation of R.C. 2913.02(A)(1). As relevant here, R.C.

2913.51(C) elevates a receiving stolen property charge to a fifth-degree felony when "the

value of the property involved is one thousand dollars or more and is less than seven

thousand five hundred dollars." Similarly, R.C. 2913.02(B)(2) elevates theft to a fifth-degree

felony when the "value of the property * * * stolen is one thousand dollars or more and is less

than seven thousand five hundred dollars."

{¶ 11} Pursuant to R.C. 2913.61(B), if more than one piece of property is involved in a

theft offense, such as the case here, the value of the property "is the aggregate value of all

property or services involved in the offense." As provided by R.C. 2913.61(D), the following

criteria shall be used in determining the value of property involved in a theft offense:

(1) The value of an heirloom, memento, collector's item,
antique, museum piece, manuscript, document, record, or other
thing that has intrinsic worth to its owner and that either is
irreplaceable or is replaceable only on the expenditure of
substantial time, effort, or money, is the amount that would
compensate the owner for its loss.

(2) The value of personal effects and household goods, and of
materials, supplies, equipment, and fixtures used in the
profession, business, trade, occupation, or avocation of its
owner, which property is not covered under division (D)(1) of this
section and which retains substantial utility for its purpose
regardless of its age or condition, is the cost of replacing the
property with new property of like kind and quality.

(3) The value of any real or personal property that is not covered
under division (D)(1) or (2) of this section, and the value of
services, is the fair market value of the property or services. As
used in this section, "fair market value" is 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.

{¶ 12} Gray argues his fifth-degree felony convictions for receiving stolen property and

theft must be reversed because the state "never presented any credible evidence of the

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value of Mr. Skinner's property, other than his own testimony." However, Gray has cited no

authority to support his contention that a victim's testimony is insufficient to prove the value of

the stolen property involved in order to elevate these crimes to fifth-degree felonies. Rather,

after a simple review of the applicable case law, Ohio courts have actually held the exact

opposite to be true. See State v. Bartolomeo, 10th Dist. Franklin No. 08AP-969, 2009-Ohio-

3086, ¶ 25, citing State v. Lockhart, 115 Ohio App.3d 370, 374 (8th Dist.1996) (holding

victim's testimony was sufficient to prove value of stolen property for purposes of theft

charge). This includes a number of cases from this very court on this very same issue. See,

e.g., State v. Noble, 12th Dist. Warren No. CA2014-06-080, 2015-Ohio-652, ¶ 22 (finding

victim's testimony regarding the value of property stolen was sufficient to elevate theft

offense to a fifth-degree felony); State v. Penwell, 12th Dist. Fayette No. CA2010-08-019,

2011-Ohio-2100, ¶ 67-69 (finding victim's testimony as to the replacement value of stolen

property was sufficient to elevate receiving stolen property offense to a fifth-degree felony).

{¶ 13} As noted above, Skinner testified the value of the stolen property involved was

approximately $2,100 to $2,200, which included the replacement value of approximately 350

fence posts at $1,400 to $1,575. Skinner's testimony, if believed, was sufficient to support

the jury's finding the aggregate value of the stolen property involved was $1,000 or more,

thereby elevating Gray's convictions for receiving stolen property and theft to fifth-degree

felonies. Therefore, although presented with some inconsistencies, when viewing the

evidence in a light most favorable to the state, any rational trier of fact could have found

beyond a reasonable doubt that the aggregate value of the stolen property involved was

$1,000 or more. Accordingly, Gray's first assignment of error is without merit and overruled.

{¶ 14} Assignment of Error No. 2:

{¶ 15} APPELLANT'S CONVICTION ON IDENTITY FRAUD AND FORGERY WERE

IMPROPER UNDER THE CIRCUMSTANCES OF THIS CASE.
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{¶ 16} In his second assignment of error, Gray argues the state provided insufficient

evidence to support his identity fraud and forgery convictions because the state failed to

prove he "did not have the express or implied consent of his brother, Nathan Gray, when he

provided his brother's name and social security number during a traffic stop, and signed his

brother's name to the traffic citation." However, although Gray's brother did not testify at trial,

the trial court admitted a written statement he provided to police, wherein Gray's brother

explicitly stated Gray used his name and identity in the past, that he "just want[s] it to stop,"

and that he felt like he was a victim of forgery. This evidence, which was admitted without

objection, was more than sufficient to prove Gray did not have either express or implied

consent to use his brother's name and identity when stopped by police. Gray's second

assignment of error is therefore likewise without merit and overruled.

{¶ 17} Judgment affirmed.

PIPER, P.J., and HENDRICKSON, J., concur.

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