State v. Wilson, 11736

• Decision Date: 13 February 1985
• Docket Number: No. 11736,11736
• Parties: , 21 O.B.R. 182 The STATE of Ohio, Appellee, v. WILSON, Appellant.
• Court: Ohio Court of Appeals

Page 171

21 Ohio App.3d 171

486 N.E.2d 1242, 21 O.B.R. 182

The STATE of Ohio, Appellee, v. WILSON, Appellant.

No. 11736.

Court of Appeals of Ohio, Ninth District, Summit County.

Feb. 13, 1985.

Syllabus by the Court

1. When a defendant is charged on multiple counts of receiving stolen property under R.C. 2913.51, the trial court shall merge the counts into a single count when it is shown that the defendant received, retained or disposed of all the items of property at one time in a single transaction or occurrence.

2. A defendant's unexplained possession of stolen property may give rise to the permissive inference that the defendant is guilty of a theft offense.

Lynn Slaby, Pros. Atty., for appellee.

Ida L. MacDonald, Akron, for appellant.

GEORGE, Judge.

The defendant-appellant, Paul Wilson, appeals his conviction on three counts of receiving stolen property. This court affirms in part and reverses in part.

Wilson was arrested on February 17, 1984, in connection with a series of burglaries in the University of Akron area. He was indicted on nineteen counts of aggravated burglary, and twenty counts of receiving stolen property.

On May 4, 1984, Wilson filed a motion to suppress the evidence seized at his apartment. A hearing was held on May 15, 1984, and one of the state's witnesses was unable to attend. The trial court deferred its ruling on this motion and ruled that the state could proceed to trial on those counts which did not pertain to the evidence seized at Wilson's apartment.

A trial by jury commenced May 17, 1984, concerning three counts of receiving stolen property, in violation of R.C. 2913.51, plus the specification under R.C. 2941.143; and three counts of aggravated burglary, in violation of R.C. 2911.11(A)(3), plus the specification under R.C. 2941.142. Wilson was found guilty only on the three counts of receiving stolen property, plus the specifications.

Assignment of Error 1

"The trial court erred in denying defendant's motion to consolidate the three counts of stolen property into one count since the evidence showed that: (A) defendant engaged in one act of disposition; (B) that there was no evidence as to when, how or in what manner defendant acquired possession of the stolen property."

Wilson argues that the three counts of receiving stolen property should have been merged into a single count. This issue was considered by this court in State v. Austin (Feb. 16, 1984), Summit App. No. 11298, unreported. In that case, this court ruled that a defendant's conviction on two separate counts of receiving stolen property under R.C. 2913.51 should have been merged, stating at 3-4:

" * * * If [the defendant] received, retained or disposed of all the items of property at one time in a single transaction or occurrance [sic ], both counts are allied offenses of similar import and should have been merged for sentencing purposes. * * *."

In this case, the record reveals that on February 16, 1984, Wilson sold various items of jewelry to Dale Forster of C.E. Forster & Sons Jewelers. It was subsequently determined that the jewelry had been reported stolen in two separate burglaries. The state put on evidence to demonstrate that these items belonged to three different individuals. However, the state failed to prove that Wilson...