[Cite as State v. Rivera,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, : CASE NO. CA2012-11-220 Plaintiff-Appellee, : OPINION : 7/22/2013 - vs - :

FRANCISCO J. RIVERA, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY AREA I COURT Case No. CRB1101339

Michael T. Gmoser, Butler County Prosecuting Attorney, Kimberly L. McManus, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

McKinney & Namei Co., LPA, Paul W. Shonk, 15 East Eighth Street, Cincinnati, Ohio 45202, for defendant-appellant

M. POWELL, J.

{¶ 1} Defendant-appellant, Francisco Rivera, appeals his bench trial conviction in the

Butler County Area I Court for receiving stolen property, a first-degree misdemeanor, in

violation of R.C. 2913.51.

{¶ 2} On October 28, 2011, around 1 a.m., Taylor Seitz and her sister were standing

next to a table in the back of Brick Street Bar in Oxford, Ohio. Seitz told her sister she was Butler CA2012-11-220

going to use the restroom and that she would be right back. Seitz left her purse on the table;

her iPhone was inside the front pocket of her purse. When Seitz came back, her purse was

sitting on the table but her iPhone was missing. Her sister was also no longer at the table.

{¶ 3} After locating her sister and confirming that she did not have her iPhone, Seitz

called the police to report her phone stolen. Seitz also used a GPS tracking feature on her

sister's cell phone to track her iPhone. At the time, the iPhone "was bouncing back" between

12 South Poplar, a residence in Oxford located "right across from the police department,"

and 37 East High Street, located in the Oxford business district and "just around the corner

from the police department on High Street." The police told Seitz to contact them after the

iPhone stayed in one place for several hours.

{¶ 4} At about 7 a.m. that morning, Seitz contacted the police and advised them that

her phone had been stationary for a few hours. Seitz and two police officers went to the

location, Swing Hall, a residence hall on the campus of Miami University. All three went to

separate floors of the hall and Seitz remotely activated a loud tone on her phone. As it

turned out, Seitz's iPhone was in one of the rooms on the floor where Seitz was. As Seitz

was activating her phone, a door opened and an individual, motioning toward appellant who

was lying on a bed, asked Seitz if the ringing phone was hers. The individual then removed

the phone from appellant's pocket and gave it to Seitz.

{¶ 5} The police subsequently went to the room to talk to appellant and other persons

in the room. Appellant told the police he found the iPhone in Brick Street Bar on the floor in

the vicinity of the women's restroom, picked it up and put it in his pocket, and intended to

locate its owner the next day. Appellant could not explain how he intended to get ahold of

the owner of the phone, or why he did not bring the phone to the police department located

across the street from Brick Street Bar or give it to some other authority figure.

{¶ 6} Appellant was arrested and charged with one count of receiving stolen property. -2- Butler CA2012-11-220

A bench trial was held on September 27, 2012. At the close of the state's case, appellant

submitted a written Crim.R. 29(A) motion for acquittal which was overruled by the trial court.

Appellant did not testify or present witnesses on his behalf. The trial court found appellant

guilty as charged and sentenced him accordingly.

{¶ 7} Appellant now appeals. In a single assignment of error, appellant argues the

trial court erred in denying his Crim.R. 29(A) motion because the state failed to show he

knew or had reasonable cause to believe the iPhone was stolen.

{¶ 8} Pursuant to Crim.R. 29(A), "[t]he 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 * * *, if the evidence is insufficient to sustain a

conviction of such offense or offenses." Our review of a trial court's denial of a Crim.R. 29

motion for acquittal is governed by the same standard used for determining whether a verdict

is supported by sufficient evidence. State v. Speakman, 12th Dist. Fayette No. CA2010-06-

013,

, ¶ 14. Therefore, when reviewing a challenge to the sufficiency of the

evidence to support a criminal conviction, the relevant question is whether, after viewing 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. State v. Hancock,

,

, ¶ 34.

{¶ 9} In order to establish a violation of R.C. 2913.51 for receiving stolen property,

the state must prove that the accused received, retained, or disposed of the property of

another, while knowing or having reasonable cause to believe the property was obtained

through the commission of a theft offense. State v. Afshari,

, 2010-

Ohio-325, ¶ 16 (12th Dist.). Absent an admission by a defendant, the question of whether

the defendant had reasonable cause to believe an item was stolen can only be proved by

circumstantial evidence. State v. White, 12th Dist. Butler No. CA2002-07-161, 2003-Ohio- -3- Butler CA2012-11-220

2011, ¶ 14.

{¶ 10} "In determining whether reasonable minds could conclude that a defendant

knew or should have known that property has been stolen, the following factors are relevant:

'(a) [T]he defendant's unexplained possession of the merchandise, (b) the nature of the

merchandise, (c) the frequency with which such merchandise is stolen, (d) the nature of the

defendant's commercial activities, and (e) the relatively limited time between the thefts and

the recovery of the merchandise.'" State v. Colon, 9th Dist. Summit No. 20949, 2002-Ohio-

3985, ¶ 18-19, quoting State v. Davis,

(8th Dist. 1988).

{¶ 11} In addition, in a prosecution for receiving stolen property, a defendant may be

found guilty by inference when the defendant's possession of recently stolen property is not

satisfactorily explained in light of the surrounding circumstances developed from the

evidence. State v. Reed, 10th Dist. Franklin No. 08AP-20,

, citing State

v. Arthur,

(1975); Hamilton v. Johnson, 12th Dist. Butler No. CA2001-05-

114,

.

{¶ 12} Seitz's stolen iPhone was recovered in appellant's possession a few hours after

it was reported stolen. There was thus a relatively limited time period between the theft and

the recovery of the phone. Seitz testified she did not give permission to anyone to take or

use her phone. Appellant's explanation that he found the iPhone on the floor in the bar and

kept it with the intention of returning it to its owner the next day is patently unreasonable and

not credible. In addition, appellant could not explain how he intended to get ahold of the

owner of the phone, or why he did not bring the phone to the police department located

across the street from Brick Street Bar or give it to some other authority figure, such as the

manager of the bar.

{¶ 13} Construing the evidence in a light most favorable to the state, we conclude that

a rational trier of fact could find that appellant knew or had reasonable cause to believe the -4- Butler CA2012-11-220

iPhone was stolen. Appellant's Crim.R. 29 motion for acquittal was therefore properly

overruled by the trial court. Appellant's assignment of error is overruled.

{¶ 14} Judgment affirmed.

RINGLAND, P.J., and PIPER, J., concur.

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