State v. Marshall, Unpublished Decision (6-22-2005)
State v. Marshall, Unpublished Decision (6-22-2005)
Opinion of the Court
Following a bench trial, defendant-appellant, Tony Marshall, was convicted of eight counts of receiving stolen property pursuant to R.C.
Though Marshall claimed that the computers were brought to his business for repairs, no paperwork at all existed to show who owned the computers or what repairs were to be made. The owners of the computers all testified that they had not given Marshall permission to possess their computers. Diana Carter testified that she bought a used computer from Marshall. When she took it home, she found information belonging to a University of Cincinnati student on it. She contacted the police and the police determined that the student's computer had been stolen.
Marshall presents four assignments of error for review, which we address out of order. In his third assignment of error, he states that the trial court erred in allowing the state to present testimony regarding a hearsay statement by Rodney Anderson. The record shows that the state called Anderson, who was serving prison terms for burglary, receiving stolen property, and misuse of a credit card, as a witness. After the court declared Anderson a hostile witness, the state asked him if he had told Ball that he had sold stolen computers to Marshall's business and if Marshall knew that they had been stolen. Anderson stated that he did not remember making those statements and that he was high on marijuana when he spoke with Ball. Ball testified that Anderson did not appear to be high when he talked to him and that Anderson had stated that he and others he knew had taken computers to Marshall's store on a regular basis.
Much of Ball's testimony came into evidence without objection to its substance. When Marshall finally did object, the court sustained his objections. When defense counsel objected to the prosecutor's reference to Anderson's statement in the prosecutor's closing argument, the trial court overruled that objection. The court stated, "You let much of that get in before you objected. When you did object, I sustained it, but much of this was already in the record before then."
Marshall's failure to object precludes him from raising the issue on appeal unless plain error exists. On the record before us, we cannot hold that but for any error in the admission of the evidence, the result of the trial clearly would have been otherwise, particularly given the strength of the evidence against Marshall and the trial court's failure to make any reference to Anderson's statement in finding Marshall guilty of the charged offenses. Therefore, the error did not rise to the level of plain error. See State v. Wickline (1990),
In his first assignment of error, Marshall states that the trial court erred in overruling his Crim.R. 29 motions for a judgment of acquittal. He contends that the state failed to prove that he knew or had reasonable cause to believe that the computers had been obtained through commission of a theft offense.
In his second assignment of error, Marshall states that "[t]he trial court erred in construing bailment for the purpose of repair as reception, retention, or disposition of the property of another as contemplated [by] O.R.C. Section 2913.51." He argues that customers left the stolen computers at his business for repair, creating a bailment. Thus, he contends, he only had physical possession of the computers, not actual dominion and control, which is an essential element of the offense of receiving stolen property. See State v. Jackson (1984),
R.C.
The charges in this case involved laptop computers, items that are easily and frequently stolen. All the computers had been reported stolen in the weeks previous to the date police found them in Marshall's store. Three were recovered from Marshall's store within a week of their reported thefts. Marshall sold the stolen computer to Carter the day after it had been reported stolen.
Though Marshall claimed that computers had been brought to his store by seemingly legitimate customers, he had no invoices or receipts to show that he had purchased the computers, nor did he have repair tags or other paperwork to suggest that he ran a legitimate repair business. Even Marshall's own expert witness and business associate testified that when a customer brought a computer in for repairs, he would prepare a repair tag on which he would record the date and the customer's information. The expert also stated that if a transaction was suspicious, he would take the customer's name and driver's license number to protect himself against future problems. Additionally, all the stolen computers recovered from Marshall's business were in working condition, and no evidence showed that they had been repaired or needed repairs.
Under the circumstances, the evidence was such that reasonable minds could have reached different conclusions as to whether each of the material elements of each of the eight counts of receiving stolen property had been proved beyond a reasonable doubt. Therefore, the trial court did not err in overruling Marshall's Crim.R. 29 motions for a judgment of acquittal. See State v. Bridgeman (1978),
We do not find Marshall's bailment argument to be persuasive. It would require that the trier of fact have believed Marshall's claim that seemingly legitimate customers had brought the computers in for repair. But the state presented evidence to rebut that claim, and his credibility was in question. Issues as to the credibility of evidence are for the trier of fact to decide. State v. Bryan,
In his fourth assignment of error, Marshall contends that evidence was insufficient to show that the value of the stolen items was over $500. All the offenses for which Marshall was convicted were fifth-degree felonies, which required the state to prove that the value of the property involved was more than $500, but less than $5,000. R.C.
The state must present some evidence of value, however minimal. Statev. Loch, 10th Dist. No. 02AP-1065, 2003-Ohio-4701. Courts determine the value of stolen property pursuant to R.C.
R.C.
R.C.
Because the owners of the computers testified to the purchase prices, the state presented some evidence of the replacement value pursuant to section (D)(2). Marshall argues that section (D)(2) did not apply to seven of the charges, because the state failed to prove that the property was used in the profession, business, trade, occupation or avocation of its owner. This argument ignores much of the language of this section. Computers, which are so commonplace in this day and age, are household goods, and laptop computers have such an intimate association with their owners as to be personal effects. See State v. Adams (1988),
But another court has valued a computer under section (D)(3) without much explanation. See State v. Corley (Apr. 26, 1999), 5th Dist. No. 1998CA00169. We need not reach the issue of which section applies because we hold that even if the computers were valued under section (D)(3), the state presented evidence to show that the fair market value of each computer was over $500. Despite Marshall's claim to the contrary, his expert did not testify that the computers were worth between $150 and $450. The state, on the other hand, presented the owners' testimony about each computer's purchase price. Most of them were recent purchases with a cost of at least $1,100. The jury could have reasonably inferred that the computers had a fair market value of over $500. See State v. Brown (Nov. 7, 1996), 4th Dist. No. 95CA869. The only offense where value based solely on the purchase price might have been questionable given the age of the computer was that involving the computer belonging to the college student that was sold to Carter. But the evidence showed that Marshall had sold that computer to Carter for $849. Thus the evidence showed that its fair market value was over $500.
Under the circumstances, we hold that the state's evidence, when viewed in a light most favorable to the prosecution, could have convinced a rational trier of fact that the value of the property involved in each of the offenses was between $500 and $5000. Therefore, the evidence was sufficient to support Marshall's convictions for receiving stolen property as a fifth-degree felony. See Sate v. Jenks (1991),
We note that Marshall has also raised the issue of whether his sentence was appropriate under Blakely v. Washington (2004), ___ U.S. ___,
Further, a certified copy of this Judgment Entry shall constitute the mandate, which shall be sent to the trial court under App.R. 27. Costs shall be taxed under App.R. 24.
Gorman and Painter, JJ.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.