State v. Kiser Houston
| Decision Date | 24 December 1987 |
| Docket Number | 87-LW-4712,53109 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Kiser HOUSTON, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Criminal Appeal from Common Pleas Court, Case No. CR-204759.
John T Corrigan, Cuyahoga County Prosecutor, David Briggs, Assistant County Prosecutor, Cleveland, for plaintiff-appellee.
Diane Wynshaw-Boris, Rebecca Blair, Cleveland, for defendant-appellant.
JOURNAL ENTRY and OPINION
The defendant appeals from his jury trial convictions for receiving a stolen motor vehicle, and possessing a flat bed truck as a criminal tool. His two assignments of error challenge the weight and sufficiency of the evidence. The evidence did not establish that the stolen property was a motor vehicle, so we modify that conviction accordingly. Otherwise, we affirm the trial court's judgment.
The victim asked her mechanic friend to repair her eleven-year-old van. He drove it to a garageman's lot where he removed the engine and the transmission to replace them. He also removed the hood and grill to facilitate the engine replacement. While the vehicle remained there awaiting replacement parts, one or more other persons removed its doors, windshield, battery, radiator, drive shaft, radio, and all four wheels and tires. A city health inspector told the garageman to remove the van because it was an eyesore, but that had not occurred yet.
Approximately three weeks after the mechanic drove the van to the garageman's lot, his brother noticed that it was missing, though he had seen it there within two previous days. The mechanic reported the apparent theft to the van's owner. His brother told the victim about 10:00 p.m. on the same day that he had located it in the defendant's junkyard.
The victim promptly notified the police that her van had been stolen and taken to the defendant's junkyard. She then went to the junkyard, and saw her van strapped with other vehicles on a flat bed truck. By 2:30 a.m., she caused the police to establish surveillance of the flat bed truck. At 8:00 a.m., the police stopped the defendant as he drove that truck from his yard.
The police easily identified the remains of the victim's van, which still had its license plates and VIN plate in place. A clerk from the county auto title office testified about required procedures for a salvage yard operator who intends to junk a vehicle. The salvage yard operator must first obtain the owner's assignment of the vehicle's title, for transfer to himself or for cancellation, before junking it. See R.C. 4505.11.
The defendant's first assignment of error asserts that the court should have granted his motion for an acquittal. His second assignment argues that the jury's verdicts on the two charges were contrary to the manifest weight of the evidence.
The court should not direct an acquittal if reasonable jurors could find that the state proved each element of the offense beyond a reasonable doubt. Crim.R. 29(A); State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus. When considering that motion, the court should view the evidence in the light most favorable to the state. State v. Hancock (1976), 48 Ohio St.2d 147, 151-152. An appellate court should not disturb a verdict as contrary to the manifest weight of the evidence if some competent, credible evidence supports it. State v. Mattison (1985), 23 Ohio App.3d 10, 14.
In this case, adequate evidence supported a finding that the defendant received or retained the remains of the van "knowing or having reasonable cause to believe that the property has been obtained through commission of a theft offense." R.C. 2913.51 (). There was no dispute that he knowingly received or retained it. He carried it on a flat bed truck with other disabled vehicles in an apparent effort to dispose of it as scrap.
The defendant's unexplained possession of recently stolen property permitted a reasonable jury to infer that he had cause to believe it had been stolen. Cf. State v. Wilson (1985), 21 Ohio App.3d 171, 172; State v. Savage (Oct. 29, 1987), Cuyahoga App. No. 53166, unreported; State v. Brooks (Feb. 27, 1986), Cuyahoga App. No. 50384, unreported; State v. Stokey (Apr. 12, 1984), Cuyahoga App. No. 47391, unreported.
He could not easily obtain this large object, which had been stolen for less than two days, without having reasonable cause to believe it was stolen. Additionally, this van still had license plates which showed that it belonged to someone. The van's owner still had the title and had not assigned it to the defendant or anyone else for transfer or cancellation. As an experienced salvage yard operator, the defendant had reason to know that he would need the owner's title to scrap the remains of that vehicle.
There was also adequate evidence that the defendant used the flat bed truck as a criminal tool to retain and dispose of the stolen van. Cf. State v. Savage, supra. The jury could reasonably find that he possessed the truck "with purpose to use it criminally." R.C. 2923.24(A) (definition of possessing criminal tools).
However, the defendant correctly asserts that the evidence failed to establish that the stripped van was a "motor vehicle," for the penalty enhancing provisions of R.C. 2913.51(B). In pertinent part, that section provides:
The stripped van which the defendant possessed when the police arrested him had no capacity to be propelled by its own power. A temporary mechanical defect which renders the vehicle inoperable does not cause it to lose its status as a motor vehicle for this purpose. Cf. Schevling v. State (Fla.App.1982), 426 So.2d 580; State v. Mcgary (Wash.App.1984), 683 P.2d 1125, 1127-1128. Indeed, the temporary removal of part or all of the power train does not always have that effect. Cf. State, ex rel. Ohio Auto & Truck Wrecking Assn., Inc. v. Mainwaring (1964), 175 Ohio St. 497, 502.
Ordinarily, the decision whether a partially dismantled vehicle remains a motor vehicle for this purpose is a question of fact for the jury. However, this van was so substantially dismantled without any reasonable expectancy of its reassembly that, as a matter of law, it could not be considered a motor vehicle for this purpose. Cf. State v. Blevins (Ariz.App.1981), 128 Ariz. 357, 625 P.2d 946; United States v. Wooten (E.D.Tenn.1965), 239 F.Supp. 123; United States v. Wallace (E.D.Tenn.1965), 254 F.Supp. 653, aff'd (C.A. 6, 1966), 361 F.2d 494; but cf. Parnell v. State (Ga.App.1979), 261 S.E.2d 481. This section imposes an additional penalty on those who receive stolen cars, not those who receive stolen car parts which could be made operational with major additions. Cf. United States v. Shanks (C.A.7, 1975), 521 F.2d 83, 85.
This van remained a partially assembled collection of some motor vehicle parts. Although the state offered no proof that it had a specific value, it undoubtedly had some value. The defendant was transporting it for an apparent commercial purpose. The offense of receiving stolen property was a first degree misdemeanor here, so we sustain the defendant's assigned errors to that extent. We modify that conviction by striking the penalty enhancing determination that the property was a motor vehicle.
Otherwise, we overrule the two assigned errors and affirm the trial court's judgment as modified.
N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run.
I concur in the opinion and judgment of the court except for its...
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