[Cite as State v. Funderburke , 2020-Ohio-3847.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY

STATE OF OHIO, : Plaintiff-Appellee, : CASE NO. 19CA3689

vs. : DWAYNE K. FUNDERBURKE, : DECISION & JUDGMENT ENTRY Defendant-Appellant. :

_______________________________________________________________ APPEARANCES: R. Jessica Manungo, Colum bus, Ohio, for appellant 1

. Jeffrey C. Marks, Ross County Pr osecuting Attorney, Chillicothe , Ohio, for appellee.
CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED: 7-17-20 ABELE, J. {¶ 1} This is an appeal from a Ross C ounty Common Pleas Court judgmen t of conviction and sentence. A jury found Dwayne F underburke, defendant below and appellant herein, guilty of receiving stolen property in violation of R.C. 2913.51(A). {¶ 2} Appellant assigns one error for review:
“THE TRIAL COURT VIOLATED DWAYNE FUNDERBURKE’S RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN IT ENTERED A JUDGMENT OF CONVICTION FOR RECEIVING STOLEN PROPERTY AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. FIFTH AND FOURTEENTH AMENDMENTS, UNITED STATES CONSTITUTION; ARTICLE I, SECTIONS 10 AND 16, OHIO CONSTITUTION; STATE v. THOMPKINS, 78 OHIO

1 Different counsel represented appellant during the trial cour t proceedings.ROSS, 19CA3689 2 ST.3D 38, 387, 678 N.E.2D 541 (1997); T.P. 112-116, 126; SENTENCING T.P. 4.”

{¶ 3} In December 2018, a Ross County Grand Jury returned an indictme nt that charged appellant with one count of receivi ng stolen property in violat ion of R.C. 2913.51, a fourth-degree felony. At trial, Tammy Ellis testified that in the early morn ing hours of November 13, 2018, she could not find her Ford Focus in her apartment complex parking lot. Ellis explained that she had come home very late the previous night and may have dropped her keys, but the next morning did not see her keys or her vehicle. Ellis then called police. El lis also did not know appellant and did not permit him to take her vehicle. {¶ 4} Robert Bixler testified that he lives in Chillicothe and owns a 2005 Subaru with a temporary license plate. On November 21, 2018, Bixler’s Subaru sat in his driveway when police informed him that they found his te mporary tag attached to a st olen 2003 Ford Focus. Bixler did not know appellant and did not pe rmit him to use hi s temporary tag. {¶ 5} Chillicothe Police Officer Matthew Shipley testified that, whil e on patrol on November 21, 2018, he observed a 2003 Ford Focus westbound on Main Stree t when it “immediately hit the first available street.” Shipley initially lost sight of the v ehicle, but located it again within minutes. When the vehicle turned onto a dead end street, Shipley followe d. Appellant then backed into a private drive, exited the vehicle, knelt at the rear of the veh icle, then walked toward Shipley. Shipley stated that appellant “appeared very nervous” and “advi sed that he was there to pick up a child in the area and had to go.” Shipley testified that he st ood with appellant 40 to 50 feet from the vehicle and, after a brief conve rsation, Shipley stated “I beli eve I said car stolen is it?” After Shipley advised appella nt that he intended to check the license plate, appellant immediately walkedROSS, 19CA3689 3 away and out of sight. Officer S hipley soon discovered that Ro bert Bixler owned the temporary tag and Tammy Ellis owned the Ford Focus. Shipley also testified t hat the vehicle’s interior electronic window door panel had been pulled from the door and the stereo had been removed from the dashboard. {¶ 6} At the close of the state’s evidence, appellant made a Crim.R. 29 motion for judgment of acquittal. The trial court overruled the motion. After del iberation, the jury found appellant guilty as charged. The trial court sentenced appellant to serv e twelve months in prison, with 79 days of jail credit. This appeal followed. {¶ 7} In his sole assignment of error, appellant asserts that his rec eiving stolen property conviction is against the manife st weight of the evidence. {¶ 8} “In determining whether a crimin al conviction is against the ma nifest weight of the evidence, an appellate court must review the entire record, wei gh the evidence and all reasonable inferences, consider the credibility of the witnesses, and dete rmine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and create d such a manifest miscarriage of justice that the conviction m ust be reversed.” State v. Burris , 4th Dist. Athens No. 16CA7, 2017-Ohio-454, ¶ 25, quoting State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541, ¶ 11 (1997) and State v.
Hunter , 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119. “W eight of the evidence concerns the inclination of the g reater amount of credible evid ence, offered in a trial, to support one side of the issue rather than the other.” State v. Dunn , 4th Dist. Jackson No. 15CA1, 2017-Ohio-518, citations omitted. A reviewing court should fin d a conviction against the manifest weight of the evidence only in the “‘exceptional case in which the evidence weighs heavily against the conviction.’” Thompkins , quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717ROSS, 19CA3689 4 (1st Dist.1983); accord State v. Lindsey , 87 Ohio St.3d 479, 483, 721 N.E.2d 995 (2000) and State v. Waller , 4th Dist. Scioto No. 15CA3683, 2016-Ohio-3077, ¶ 20. {¶ 9} The offense of receiving stole n property is set forth in R.C. 2 913.51:
(A) No person shall receive, retain, or dispose of property of another knowing or having reasonable cause to believe that the property has been o btained through commission of a theft offense. {¶ 10} In the case at bar, appellant admits that he possessed the vehi cle, but asserts that he did not have “reasonable cause to believe” the vehicle had been stolen. In partic ular, appellant argues that knowledge that a vehicle is stolen may not be imput ed from the mere possession of the vehicle. Furthermore, appellant contends that his behavior sup ports his claim that he did not know that the vehicle had been stolen. {¶ 11} Although appellant argues that knowledge that the vehicle had b een stolen should not be imputed from his mere posse ssion of the vehicle, the United States Supreme Court, and the Supreme Court of Ohio, have bot h agreed that “possession of rec ently stolen property, if not satisfactorily explained, is ordinarily a circumstance from whi ch you may reasonably draw the inference and find, in the light of the surrounding circumstanc es shown by the evidence in the case, that the person in possession kne w the property had been stolen .” Barnes v. United States, 412 U.S. 837, 839-40, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); accord State v. Arthur, 42 Ohio St.2d 67, 68-69, 325 N.E.2d 888 (1975). Thus, in a prosecution for receiving st olen property, a jury may arrive at a finding of guilt when an accused’s possession of recently stole n property is not satisfactorily explained in light of surrounding circumstances developed from the evidence. Arthur , supra, at 68.
In State v. Woodruff , 4th Dist. Ross No. 07CA2972, 2008-Ohio-967, ¶ 9, citing State v. Davis , 49ROSS, 19CA3689 5 Ohio App.3d 109, 112, 550 N.E.2d 966, we stated that “[a]bsent an admission by a defendant, the state must rely on circumstantial evidence to satisfy the reaso nable cause to belie ve element. This element of the crime involves an objective test of the accused’ s knowledge. Thus, the jury must look at all the facts and circum stances to determine whether a person of ordinary prudence should have known the property was stole n. Some of the circumstances the fact finder can consider * * * are: 1) the accused’s unexplained possession of the property; 2 ) the nature of the property; 3) the frequency with which such propert y is stolen; 4) the nature of the accused’s commercial activity; and 5) the length of time between the theft and recovery of the pro perty.” It is important to recognize that a defendant may be convicted solely on the basis of circum stantial evidence. State v. Nicely , 39 Ohio St.3d 147, 529 N.E.2d 1236 (1998). Circumstantial evidenc e is defined as testimony not based on actual persona l knowledge or observation of the facts in controversy, but of other facts from which deductions are drawn, showing indirectly the facts s ought to be proved. Id. Intent must be inferred from the act and surrounding circumstances, in cluding the acts and statements of a defendant surrounding the time of the offense. State v. Wilson , 12 th Dist. Warren No. CA2006-01-007, 2007-Ohio-2298. {¶ 12} In Woodruff, the defendant possessed two li cense plates that belonged to a neighbor, but argued that the state failed to prove knowledge, or a reaso nable belief, that the plates had been stolen. We wrote that “[t]his element of the crime involves an objective test of the accused’s knowledge. Thus, the jury must look at all the facts and circu mstances to determine whether a person of ordinary prudence shoul d have known the property was stolen.” Woodruff at ¶ 9, citing
State v. Hill , 4th Dist. Pickaway No. 02CA11, 2002-Ohio-7368, ¶ 11. Althoug h Woodruff asserted that his lack of an explanation for his possession of the stole n plates had no persuasive value becauseROSS, 19CA3689 6 the officer did not ask why he possessed the plates, we observe d that Woodruff’s attempt to conceal the plates after the police had arrived is a fact from which th e jury could reasonably infer that Woodruff either knew, or should have known, that the license pl ates had been obtained by a theft offense. Woodruff at ¶ 12. Similarly, in the case at bar appellant backed into a private driveway and Officer Shipley testified th at after appellant exited the v ehicle, he “walked to the rear of the vehicle, knelt down, then stood [a nd] walked [in] Officer Shipl ey’s direction.” {¶ 13} Appellant also contends that the fact that he did not immediate ly flee from the encounter indicates that he had no “reasonable cause to believe ” that the vehicle had been stolen. In support, appellant cites State v. Doyle, 4th Dist. Pickaway No. 04CA23, 2005-Ohio-4072, when, after police observed Doyle driving a stolen truck, Doyle sped off and attempted to escape, first in the truck then on foot. Doyle at ¶ 35. We concluded that Doyle ’s behavior indicated that he knew, or had reasonable cause to believe, that the truck had been obt ained in a theft offense. Here, although appellant did not immediately flee the encounter, appe llant chose to leave the area after the officer’s comment about the stolen vehicle. {¶ 14} Appellant also cites State v. Hill , 2002-Ohio-7368, ¶ 3, when police signaled Hill to stop, Hill sped off, drove to a gas station, exited the vehicle and hid the ignition key. Hill, could not provide an address, phone number, or other information to conta ct the vehicle’s owner to verify his claim that he had, in fact, per mission to drive the vehicle. W e determined that Hill’s unexplained possession of property pr ovided a sufficient basis for the trie r of fact to infer guilty knowledge on the part of someone charged wit h receiving stolen property. Hill at ¶ 11. {¶ 15} Appellant argues that, in the cas e sub judice, his behavior, un like Doyle and Hill, does not indicate that he had reasonabl e cause to believe that the p roperty has been obtained throughROSS, 19CA3689 7
commission of a theft offense. A ppellant points out that (1) h e initially walked toward Officer Shipley and engaged in a short c onversation; (2) when Shipley a sked if the car had been stolen, at trial Shipley could not recall appellant’s response; and (3) a reasonable officer would not permit appellant to simply wal k away if he truly suspected the car had been stolen. However, our review of the evidence reveals that appellant first turned onto a street for no apparent reason, backed into a private driveway, and when asked if the car was stolen, walked away from the officer and the area entirely. {¶ 16} Appellant also seeks to distinguish his case from State v. Dahir , 10th Dist. Franklin No. 19AP-371, 2020-Ohio-467. In Dahir , a law enforcement officer stopped the defendant, a security guard, for a traffic infraction. After smelling marij uana, police searched Dahir and found a stolen credit card. D ahir claimed that he found the card in a wallet during the cour se of his duties as a security guard and that he planned to return the card the nex t day. Dahir, however, “presented nothing at trial to substantiate that explanation which is faci ally questionable a nd was questioned by the trial judge as fact finder.” Id. at ¶ 13. The court noted that Dahir’s explanation for his possession of the recently stolen property, property frequently stolen and bears a cardholder’s name, and is facially identifiable as lost or stolen, did not persuad e the trier of fact. Similarly, in the case sub judice we find no viable exp lanation for appellant’s posses sion of Ellis’s vehicle with Bixler’s temporary tag. {¶ 17} Finally, appellant asserts that t he absence of damage to the st eering column, or damage to the vehicle’s exteri or, supports his claim that he di d not know that the vehicle had been stolen. We recognize, however, that the vehicle did exhibit a dangling power wi ndow switch panel and a missing radio, facts that could alert a reasonable person that a vehicle may be stolen.ROSS, 19CA3689 8 Moreover, in State v. Edwards, 8th Dist. Cuyahoga No. 85937, 2005-Ohio-6027, the defendant ma de a similar claim that the absence of steering column damage gave no “outward sign” that the vehicle had been stolen. The Eighth Dist rict concluded that the absenc e of steering column damage had little value because the vehicle’s key had also been stolen. I n the case sub judice, we point out that Ellis testified that she could not find her key. Thus, the key could have been taken along with the vehicle. {¶ 18} In State v. Jones, 9th Dist. Summit No. 21789, 2004-Oh io-4326, the defendant drov e a stolen vehicle and claimed that he purchased the vehicle for th irty dollars from a man named Donny. The court, however, observed that the car had been stolen a few nights before appellant’s arrest, and that appellant’s statements to the police, as well as appellant ’s unreasonable explanation that surrounded his possession of the v ehicle, indicated that he had knowledge of the stolen vehicle.
Jones at ¶ 10-12. {¶ 19} In the case sub judice, after our review of the evidence we con clude that the evidence reveals that Officer Shipley recovered the stolen vehicle in ap pellant’s possession, that Ellis did not give appellant permission to posse ss her vehicle, and Bixler di d not give appellant permission to possess his temporary tag. Furth ermore, although appellant arg ues that he did not attempt to escape, Officer Shipley testified that a ppellant did, in fact, take eva sive action, both in the vehicle and when appellant walked away when Shipley asked que stions about the st olen vehicle. {¶ 20} Therefore, after our review of t he entire record, we conclude t hat ample competent, credible evidence supports the j ury’s verdict that appellant re ceived stolen property. The prosecution presented substantia l credible evidence upon which the trier of fact reasonably could conclude, beyond a reasonable doubt , that the essential element s of the offense had been established.ROSS, 19CA3689 9 Moreover, a conviction is not aga inst the manifest weight of th e evidence even if the evidence is subject to different i nterpretation, or simply because the jury believed the prosecution testimony. State v. Cooper , 170 Ohio App.3d 418, 2007-Ohio-1186, 867 N.E.2d 493, State v. Adams , 2 nd Dist. Greene Nos. 2013CA61, 2013-CA-62, 2014-Ohio-3432. {¶ 21} Accordingly, based upon the foregoing reasons, we overrule appe llant’s assignment of error and affirm the tri al court’s judgment.
JUDGMENT AFFIRMED.ROSS, 19CA3689 10

JUDGMENT ENTRY It is ordered that the judgment be affirmed and that appellee r ecover of appellant the costs herein taxed. The Court finds there were reas onable grounds for this appeal. It is ordered that a special m andate issue out of this Court di recting the Ross County Common Pleas Court to carry this judgment into execution. If a stay of execution of sente nce and release upon bail has be en previously granted by the trial court or this court, it is tem porarily continued for a period n ot to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the s ixty day period, or the failure of the appellant to file a notice of appeal with the Su preme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Pract ice of the Supreme Court of Ohio. Additionally, if the Supreme Cour t of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of t he date of suc h dismissal. A certified copy of this entry shall constitute that mandate pu rsuant to Rule 27 of the Rules of Appellate Procedure. Smith, P.J. & Hess, J.: Conc ur in Judgment & Opinion For the Court

BY: Peter B. Abele, JudgeROSS, 19CA3689 11

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, thi s document constitutes a fina l judgment entry and the time period for further app eal commences from th e date of filing wit h the clerk.