State v. Hankerson
| Decision Date | 19 May 1982 |
| Docket Number | No. 81-1399,81-1399 |
| Citation | 24 O.O.3d 155,434 N.E.2d 1362,70 Ohio St.2d 87 |
| Parties | , 24 O.O.3d 155, 30 A.L.R.4th 479 The STATE of Ohio, Appellee, v. HANKERSON et al., Appellants. |
| Court | Ohio Supreme Court |
Syllabus by the Court
Possession of stolen property for purposes of the receiving stolen property statute, R.C. 2913.51, may be constructive as well as actual. Constructive possession exists when an individual knowingly exercises dominion and control over an object, even though that object may not be within his immediate physical possession. (State v. Wolery, 46 Ohio St.2d 316, 348 N.E.2d 351, explained and followed.)
Joseph and Lorette Hankerson, defendants-appellants, were indicted and charged with two counts of receiving stolen property in violation of R.C. 2913.51. The first count alleged that the Hankersons received, retained or disposed of two Speaker Lab stereo speakers with knowledge or reasonable cause to believe the speakers had been obtained through commission of a theft offense. The second count accused the Hankersons of similar conduct with respect to a JVC CB4 stereo turntable.
Following entry of a not guilty plea, the defendants waived their right to trial by jury and elected to be tried by the court.
Testimony elicited by the prosecution indicated that the Cincinnati police searched the Hankerson home at 5858 Valley View, in the Kennedy Heights area of Cincinnati, on January 13, 1980. The search was carried out under the authority of a search warrant issued after the police received a tip that two stolen stereo speakers were in the Hankerson home. The officers found and confiscated that equipment, the JVC turntable, as well as other property not identified in the warrant including 12 or 13 televisions and 5 turntables. Only the two Speaker Lab speakers and JVC turntable were subsequently identified as being stolen. The speakers were described as being 30 inches tall, 12-14 inches wide and weighing approximately 30 to 40 pounds each. Officer Charles Beebe, who participated in the execution of the search warrant, testified that the speakers and turntable were found in a second floor bedroom and were in plain view. He also testified that in May 1979, the defendants' son Donald had been arrested for aggravated burglary, and that he had discussed that situation with the defendants at that time.
Ernestine Enystrand, an employee of the Kennedy Heights Community Council, testified that she talked to Joseph Hankerson in her office in the summer of 1979, and told him that Donald was rumored in the neighborhood to be a thief. She also testified that in a telephone conversation with Mrs. Hankerson after the January 13 search and seizure, Mrs. Hankerson indicated that Donald had told her that he found the confiscated property "in the woods down near the railroad tracks." On cross-examination Enystrand testified that during the conversation, Mrs. Hankerson did not indicate whether Donald told her before or after the January 13 search where he had obtained the stolen stereo equipment.
The owner of the stolen stereo speakers testified that they were removed from his home on December 29, 1979. The owner of the JVC turntable testified it was stolen on November 3, 1979.
The defense called Lorette Hankerson to testify in her own behalf. She testified that she was a full-time student at Northern Kentucky University and had been on medical leave of absence from the Ford Motor Co. since September 1979. She testified that her husband was in the moving and hauling business, and that, as a result, their home was cluttered with objects, including furniture and broken electronic equipment which her husband sometimes sent out for repairs. She testified that she and her husband slept in a bedroom on the first floor of the house with the door closed and that their son Donald was the sole occupant of the second floor. * Mrs. Hankerson expressly denied that she knew that the subject speakers and turntable were stolen.
Mrs. Hankerson testified that after the search she asked Donald where he had obtained the stolen equipment and that he told her he found the speakers on Congrove Avenue and the turntable in the woods of Kennedy Park. He explained their presence in his room to her by stating that he brought them into the house on a dolly one morning around 3-4 a. m. Mrs. Hankerson claimed that she had not gone into Donald's room to check his possessions on the second floor, nor did she enter his room to clean it, as her doctor had advised her not to do domestic work for health reasons. She testified that the children, including Donald, were responsible for cleaning their own rooms.
Joseph Hankerson testified that in connection with his moving and hauling junk business he kept televisions, speakers, stoves, and furniture in his home, and that in November and December of 1979 and January of 1980 he had 30 to 35 televisions, stereos or turntables in his home. He said he had never owned a speaker 30 inches high, had never heard one played, and that although he had bought a stereo for his son and knew his son had a stereo, he had never heard loud music being played in his son's room. He further testified that he had not seen the stolen Speaker Lab speakers and JVC turntable in his son's room. Joseph Hankerson admitted that his son could not afford to buy stereo equipment such as the 30-inch speakers and the JVC turntable.
Donald Hankerson testified that the Speaker Lab speakers and JVC turntable were not connected and that he never played them. He testified that his parents did not know that he had the stolen stereo equipment in his room, and that it had been in his bedroom for about two days before being seized by the police. He further testified that he found the equipment in a woods in Woolper Center Park near some railroad tracks, and that he brought them in the house through the back door and up to his bedroom while his parents were sleeping. He said he put the equipment in an attic off his room behind a door, and that they were not out in the open. Donald also admitted that in his room were an RCA stereo, a pellet gun, a CB radio, a nine-inch Sony television, a Dynaco stereo preamplifier, and an Antrex three-way speaker, but stated that of those items several had been owned by the family for a long period of time and others were found by him. At the time of the trial Donald was confined in an Ohio Youth Commission facility as a result of being adjudicated delinquent for an unrelated breaking and entering offense.
Officer Beebe was recalled by the prosecution. He testified that upon searching Donald's bedroom the officers found stereo equipment including the stolen speakers and turntable wired together, and that one stereo receiver was "on," but that he did not hear the speakers play. He testified that while the officers were surveying Donald's room and removing objects from it, Mrs. Hankerson came up the stairs and said "('w)e bought this stuff for our son and you can't prove we didn't.' "
The prosecution called Michael J. Harman, an attorney who resided in the Kennedy Heights area. He testified that on December 27, 1979, he visited the Hankerson home to inform the parents that people in the community believed Donald was involved in neighborhood burglaries. He testified that Mrs. Hankerson assured him that she had no reason to believe her son was involved in burglaries, that there was no property in her house to lead her to believe her son had been involved in such activity and that she would check her home for suspicious items and report them if found. Harman also stated that during the conversation he was accused of having a racist motivation for believing Donald to be a thief.
The court found defendants each guilty of two counts of receiving stolen property, and sentenced each of them to serve two to five years on each count, the counts to run consecutively.
The Court of Appeals, in a split decision, affirmed the convictions, but held that the two counts of the indictment constituted offenses of similar import. The cause was remanded to the trial court for resentencing on one count only of receiving stolen property.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
Simon L. Leis, Jr., Pros. Atty., Christian J. Schaefer and Leo Hildebrandt, Jr., Cincinnati, for appellee.
H. Fred Hoefle, Cincinnati, for appellants.
In State v. Wolery (1976), 46 Ohio St.2d 316, 348 N.E.2d 351, this court acknowledged the prevailing rule that actual physical possession of stolen property...
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