State v. Yeargan

[Cite as State v. Yeargan, 2017-Ohio-1325.]

COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
STATE OF OHIO : Hon. Patricia A. Delaney, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
:
-vs- :
: Case No. 16CAA060028
SAMUEL YEARGAN :
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Delaware County
Court of Common Pleas, Case No.
15CRI110525

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 7, 2017

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CAROL O'BRIEN DAVID BIRCH
MARK SLEEPER 286 South Liberty Street
Delaware County Prosecutor’s Office Powell, OH 43065
140 North Sandusky Street
Delaware, OH 43015
Delaware County, Case No. 16CAA060028 2

Gwin, J.

{¶1} Defendant Samuel A.M. Yeargan [“Yeargan”] appeals his convictions and

sentences on four counts of Receiving Stolen Property after a jury trial in the Delaware

County Court of Common Pleas.

Facts and Procedural History

{¶2} Dr. William Wise and his wife, Dr. Elizabeth Brightman, live together at a

house in Powell, Ohio. On October 1, 2015, Dr. Brightman returned home around 3:00

pm and then contacted her husband. Dr. Wise returned home and found that a number

of items inside their home were not in the correct spot and others were missing. Doctors

Wise and Brightman were scheduled to leave that day for a vacation. Upon returning

from their trip, they completed an inventory of all of the items that had been taken from

their home. Detective Charles Gannon of the Delaware County Sheriff's Office was

assigned to the case.

{¶3} Detective Gannon tried to locate the stolen property by searching through

LEADS Online, a database of property sold to pawnshops in Ohio. Detective Gannon

began his search with a unique watch that had been stolen. He received a hit that the

watch had been sold by Yeargan. By running Yeargan’s name through LEADS Online,

Detective Gannon learned that Yeargan had sold items on four different occasions to

three different pawnshops during the period of October 1 through October 19. Detective

Gannon later met with the victims at the pawn shops to see if they could identify any of

the property.

{¶4} On October 2, 2015, Yeargan sold various jewelry to Lev's Pawn Shop on

Parsons Avenue in Columbus. One of the items sold to Lev's was a custom gold nugget
Delaware County, Case No. 16CAA060028 3

pendant with rubies and a diamond that had been commissioned by Dr. Wise for his wife.

Dr. Wise testified that he paid $4,500 for the pendant. Yeargan was paid $620 for the

items he sold on that date.

{¶5} On October 5, 2015, Yeargan sold jewelry including a Worthington High

School class ring to Lev's Pawn Shop on Parsons Avenue in Columbus. Dr. Wise

recognized that as his wife's high school class ring. Yeargan was paid $450 for the items

he sold on that date.

{¶6} On October 6, 2015, Yeargan sold jewelry to Lev's Pawn Shop on East Main

Street in Columbus. The most valuable item sold was a Patek Philippe watch. Dr. Wise

identified that watch as something he had purchased for his wife for an anniversary or

birthday. Dr. Wise said he paid $6,600 when he purchased the watch and that it was

appraised at around $10,000 for insurance purposes. Yeargan was paid $1,500 for the

items he sold on that date.

{¶7} On October 10, 2015, Yeargan sold jewelry to Luigi's Pawn Shop in

Columbus. Included in that sale was a Duke University class ring engraved with the name

William E. Wise. Dr. William Wise identified that as his class ring. Yeargan was paid

$200 for the items he sold on that date.

{¶8} Officers conducted surveillance on Yeargan and eventually obtained a

warrant for his arrest. He was arrested at his apartment. Yeargan residence was a one-

bedroom apartment that had an air mattress, a futon, and no working electricity.

{¶9} At trial, Yeargan did not testify but called Jennifer Temple an employee at

Second Chance Consignment and Fred Altevogt the owner of a large antique mall in

German Village. Both witnesses testified about doing business buying or selling jewelry
Delaware County, Case No. 16CAA060028 4

with Yeargan. Finally, Yeargan called his mother Lucia Ober who testified that he made

a living buying and selling jewelry and antiques.

Assignments of Error

{¶10} Yeargan raises two assignments of error,

{¶11} “I. THE TRIAL COURT ERRED BY OVERRULING APPELLANT'S

MOTION FOR ACQUITTAL MADE AT THE CLOSE OF THE STATES CASE.

{¶12} “II. THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.”

Law and Analysis

{¶13} Yeargan’s first and second assignments of error raise common and

interrelated issues; therefore, we will address the arguments together.

{¶14} In his first assignment of error, Yeargan alleges that the trial court erred in

not granting his Crim. R. 29 motion for acquittal. In determining whether a trial court erred

in overruling an appellant's motion for judgment of acquittal, the reviewing court focuses

on the sufficiency of the evidence. See, e.g., State v. Carter, 72 Ohio St.3d 545, 553,

651 N.E.2d 965(1995); State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492(1991),

superseded by State constitutional amendment on other grounds in State v. Smith, 80

Ohio St.3d 89, 684 N.E.2d 668(1997). In his second assignment of error, Yeargan

contends his conviction is against the manifest weight of the evidence produced by the

state at trial.

{¶15} Our review of the constitutional sufficiency of evidence to support a criminal

conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979), which requires a court of appeals to determine whether “after viewing
Delaware County, Case No. 16CAA060028 5

the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Id.; see also

McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d 582(2010) (reaffirming

this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d 1239, 2010–Ohio–1017, ¶

146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296, 2010–Ohio–2720, ¶ 68.

{¶16} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded by

constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d

89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the inclination of

the greater amount of credible evidence, offered in a trial, to support one side of the issue

rather than the other. It indicates clearly to the jury that the party having the burden of

proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall

find the greater amount of credible evidence sustains the issue which is to be established

before them. Weight is not a question of mathematics, but depends on its effect in

inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541, quoting Black's Law

Dictionary (6th Ed. 1990) at 1594.

{¶17} When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting

testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102

S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely

substitute its view for that of the jury, but must find that “‘the jury clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and
Delaware County, Case No. 16CAA060028 6

a new trial ordered.’” State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983). Accordingly,

reversal on manifest weight grounds is reserved for “‘the exceptional case in which the

evidence weighs heavily against the conviction.’” Id.

“[I]n determining whether the judgment below is manifestly against

the weight of the evidence, every reasonable intendment and every

reasonable presumption must be made in favor of the judgment and the

finding of facts. * * *

“If the evidence is susceptible of more than one construction, the

reviewing court is bound to give it that interpretation which is consistent with

the verdict and judgment, most favorable to sustaining the verdict and

judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

{¶18} Yeargan was convicted of receiving stolen property. To find Yeargan guilty

of receiving stolen property, the trier of fact would have to find that Yeargan received,

retained, or disposed of the property of another, knowing or having reasonable cause to

believe the property had been obtained through the commission of a theft offense. R.C.

2913.51(A). A theft offense includes “theft,” which involves knowingly obtaining control

over the property of another without that person’s consent. R.C. 2913.02(A)(1).

{¶19} The criteria for determining whether a defendant knew or should have

known that property has been stolen were set forth in State v. Davis, 49 Ohio App.3d 109,

550 N.E.2d 966 (8th Dist. 1988). The factors include: 1) the defendant’s unexplained
Delaware County, Case No. 16CAA060028 7

possession of the merchandise; 2) the nature of the merchandise; 3) the frequency with

which such merchandise is stolen; 4) the nature of the defendant’s commercial activities;

and 5) the relatively limited time between the theft and the recovery of the merchandise.

Id. at 112, 550 N.E.2d 966. Accord, State v. Konstantinov, 5th Dist. Delaware No. 09-

CAA-090077, 2009-Ohio-6964, ¶28-¶29.

{¶20} Knowledge that property is stolen may be inferred from circumstantial

evidence, such as a defendant's unexplained possession of stolen property. State v.

Hankerson, 70 Ohio St.2d 87, 92, 434 N.E.2d 1362 (1982).

{¶21} Ohio Revised Code Section 2901.22(B) sets forth the definition of how and

when a person acts knowingly,

A person acts knowingly, regardless of purpose, when the person is

aware that the person's conduct will probably cause a certain result or will

probably be of a certain nature. A person has knowledge of circumstances

when the person is aware that such circumstances probably exist. When

knowledge of the existence of a particular fact is an element of an offense,

such knowledge is established if a person subjectively believes that there is

a high probability of its existence and fails to make inquiry or acts with a

conscious purpose to avoid learning the fact.

{¶22} Whether a person acts knowingly can only be determined, absent a

defendant's admission, from all the surrounding facts and circumstances, including the

doing of the act itself.” State v. Johnson, 56 Ohio St.3d 35, 38,381 N.E.2d 637(1978)

citing State v. Huffman, 131 Ohio St. 27, 1 N.E.2d 313(1936): State v. Rojas, 64 Ohio

St.3d 131, 139, 592 N.E.2d 1376(1992); State v. Huff, 145 Ohio App.3d 555, 563, 763
Delaware County, Case No. 16CAA060028 8

N.E.2d 695(1st Dist. 2001). (Footnote omitted.) Thus, “[t]he test for whether a defendant

acted knowingly is a subjective one, but it is decided on objective criteria.” Id. citing State

v. Adams, 4th Dist. Ross No. 94 CA 2041, 1995 WL 360247(June 8, 1995) and State v.

Paidousis, 10th Dist. Franklin No. 00AP-118, 2001 WL 436079 (May 1, 2001). See also,

State v. Butler, 5th Dist. Holmes No. 2012-CA-7, 2012-Ohio-5030, ¶25.

{¶23} In the case at bar, it is unrefuted that Yeargan sold items stolen from the

Wise’s residence to the several pawn shops close in time to when the items were believed

to have been stolen. The theft from the Wise’s residence occurred on October 1, 2015;

on October 2, 2015 Yeargan made his first sale of the stolen property. Yeargan's

possession of the merchandise went unexplained.

{¶24} One of the items Yeargan sold was a Duke University ring engraved with

the name William E. Wise. It is undisputed that Yeargan did not purchase the ring from

William Wise. The trier of fact can find purchasing a ring engraved with a name from

someone who does not have that name is additional reasonable cause to believe the item

is stolen in the absence of any other explanation. Further, two defense witnesses

indicated that Yeargan likely had more knowledge than the average person did when it

came to the value of jewelry and watches.

{¶25} If the state relies on circumstantial evidence to prove an essential element

of an offense, it is not necessary for “such evidence to be irreconcilable with any

reasonable theory of innocence in order to support a conviction.” State v. Jenks, 61 Ohio

St.3d 259, 272, 574 N.E. 2d 492(1991), paragraph one of the syllabus, superseded by

State constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio

St.3d 89, 684 N.E.2d 668(1997). “Circumstantial evidence and direct evidence inherently
Delaware County, Case No. 16CAA060028 9

possess the same probative value [.]” Jenks, 61 Ohio St.3d at paragraph one of the

syllabus. Furthermore, “[s]ince circumstantial evidence and direct evidence are

indistinguishable so far as the jury's fact-finding function is concerned, all that is required

of the jury is that i[t] weigh all of the evidence, direct and circumstantial, against the

standard of proof beyond a reasonable doubt.“ Jenks, 61 Ohio St.3d at 272, 574 N.E. 2d

492. While inferences cannot be based on inferences, a number of conclusions can result

from the same set of facts. State v. Lott, 51 Ohio St.3d 160, 168, 555 N.E.2d 293(1990),

citing Hurt v. Charles J. Rogers Transp. Co, 164 Ohio St. 329, 331, 130 N.E.2d 820(1955).

Moreover, a series of facts and circumstances can be employed by a jury as the basis for

its ultimate conclusions in a case. Lott, 51 Ohio St.3d at 168, 555 N.E.2d 293, citing Hurt,

164 Ohio St. at 331, 130 N.E.2d 820.

{¶26} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

Yeargan committed the crimes of receiving stolen property. We hold, therefore, that the

state met its burden of production regarding each element of the crimes of receiving stolen

property and, accordingly, there was sufficient evidence to support Yeargan’s convictions

for receiving stolen property.

{¶27} As an appellate court, we are not fact finders; we neither weigh the evidence

nor judge the credibility of witnesses. Our role is to determine whether there is relevant,

competent and credible evidence, upon which the fact finder could base his or her

judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911(Feb. 10,

1982). Accordingly, judgments supported by some competent, credible evidence going

to all the essential elements of the case will not be reversed as being against the manifest
Delaware County, Case No. 16CAA060028 10

weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d 279, 376

N.E.2d 578(1978). The Ohio Supreme Court has emphasized: “‘[I]n determining whether

the judgment below is manifestly against the weight of the evidence, every reasonable

intendment and every reasonable presumption must be made in favor of the judgment

and the finding of facts. * * *.’” Eastley v. Volkman, 132 Ohio St.3d 328, 334, 972 N.E. 2d

517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80,

461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review,

Section 603, at 191–192 (1978). Furthermore, it is well established that the trial court is

in the best position to determine the credibility of witnesses. See, e.g., In re Brown, 9th

Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing State v. DeHass, 10 Ohio St .2d 230, 227

N.E.2d 212(1967).

{¶28} Ultimately, “the reviewing court must determine whether the appellant or the

appellee provided the more believable evidence, but must not completely substitute its

judgment for that of the original trier of fact ‘unless it is patently apparent that the fact

finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,

¶31, quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964

(2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of

the evidence or two conflicting versions of events, neither of which is unbelievable, it is

not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No.

99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722

N.E.2d 125(7th Dist. 1999).

{¶29} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967),
Delaware County, Case No. 16CAA060028 11

paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960

N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86

L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d

646 (1983).

{¶30} The jury as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness’s credibility. "While the jury may

take note of the inconsistencies and resolve or discount them accordingly * * * such

inconsistencies do not render defendant's conviction against the manifest weight or

sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL

29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236, 1996

WL 284714 (May 28, 1996). Indeed, the jury need not believe all of a witness' testimony,

but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin No. 02AP-

604, 2003-Ohio-958, ¶21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548

(1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889, citing State

v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although the

evidence may have been circumstantial, we note that circumstantial evidence has the

same probative value as direct evidence. State v. Jenks, supra.

{¶31} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,

quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury neither lost his way nor

created a miscarriage of justice in convicting Yeargan of the charges.

{¶32} Based upon the foregoing and the entire record in this matter, we find

Yeargan’s convictions were not against the sufficiency or the manifest weight of the
Delaware County, Case No. 16CAA060028 12

evidence. To the contrary, the jury appears to have fairly and impartially decided the

matters before them. The jury as a trier of fact can reach different conclusions concerning

the credibility of the testimony of the state’s witnesses and Yeargan’s witnesses. This

court will not disturb the jury's finding so long as competent evidence was present to

support it. State v. Walker, 55 Ohio St.2d 208, 378 N.E.2d 1049 (1978). The jury heard

the witnesses, evaluated the evidence, and was convinced of Yeargan’s guilt.

{¶33} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of each

crime beyond a reasonable doubt.

{¶34} Yeargan’s first and second assignments of error are overruled.
Delaware County, Case No. 16CAA060028 13

{¶35} The judgment of the Delaware County Court of Common Pleas is affirmed.

By Gwin, J.,

Delaney, P.J., and

Hoffman, J., concur