[Cite as State v. Davis, 2024-Ohio-2400.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

MARION COUNTY

STATE OF OHIO,

 PLAINTIFF-APPELLEE, CASE NO. 9-23-50

 v.

BRANDON KYLE DAVIS, O P I N I O N

 DEFENDANT-APPELLANT.

Appeal from Marion County Common Pleas Court

Trial Court No. 2021CR0486

Judgment Affirmed

Date of Decision: June 24, 2024

APPEARANCES:

April F. Campbell for Appellant

Allison M. Kesler for Appellee
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WALDICK, J.

{¶1} Defendant-appellant, Brandon K. Davis (“Davis”), brings this appeal 

from the July 7, 2023 judgment of the Marion County Common Pleas Court 

sentencing him to community control after he was convicted by a jury of Receiving 

Stolen Property (“RSP”). On appeal, Davis argues that there was insufficient 

evidence presented to convict him, that his conviction was against the manifest 

weight of the evidence, that he received ineffective assistance of trial counsel, and 

that the trial court erred by providing a supplemental jury instruction regarding the 

mental culpability element of “knowingly.” For the reasons that follow, we affirm

the judgment of the trial court.

Background

{¶2} On November 3, 2021, Davis was indicted for two counts of RSP in 

violation of R.C. 2913.51, both felonies of the fourth degree. One count related to 

Davis possessing stolen firearms and another count related to his possession of 

stolen video games and video game equipment. Davis pled not guilty to the charges.

{¶3} Davis proceeded to a jury trial on May 6-7, 2023. Following the 

presentation of evidence, the jury convicted Davis of a lesser-included offense of 

RSP related to the video games and equipment in an amount between $1,000 and 

$7,500, but acquitted Davis of the RSP related to the firearms. For his fifth degree 

felony RSP conviction, Davis was sentenced to two years of community control. A 
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judgment entry memorializing his sentence was filed July 7, 2023. It is from this 

judgment that Davis appeals, asserting the following assignments of error for our 

review.

First Assignment of Error

The trial court reversibly erred in instructing the jury on 

deliberate ignorance because it lessoned [sic] the burden for the 

State to prove the mens rea for receiving stolen property.

Second Assignment of Error

The State’s evidence that Davis had knowledge or reasonable 

cause to believe, as well as the value of the property Davis 

received, was legally insufficient.

Third Assignment of Error

The evidence also weighed manifestly against convicting Davis.

Fourth Assignment of Error

Davis’s conviction should be reversed because his trial counsel 

was ineffective in a manner that prejudiced Davis.

{¶4} For ease of discussion, we elect to address the assignments of error out 

of the order in which they were raised.

Second Assignment of Error

{¶5} In his second assignment of error, Davis argues that there was 

insufficient evidence presented to convict him of RSP. Specifically, he argues that 

the State failed to establish that the value of the property exceeded $1,000 and he 

argues that the State failed to establish that he acted knowingly.
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Standard of Review

{¶6} “Whether the evidence is legally sufficient to sustain a verdict is a 

question of law.” State v. Thompkins, 78 Ohio St.3d 380, 386 (1997); State v. Groce, 

163 Ohio St.3d 387, 2020-Ohio-6671, ¶ 6. Therefore, our review is de novo. In re 

J.V., 134 Ohio St.3d 1, 2012-Ohio-4961, ¶ 3. In a sufficiency-of-the-evidence 

inquiry, the question is whether the evidence presented, when viewed in a light most 

favorable to the prosecution, would allow any rational trier of fact to find the 

essential elements of the crime beyond a reasonable doubt. State v. Jenks, 61 Ohio 

St.3d 259 (1991), paragraph two of the syllabus (superseded by constitutional 

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102, 

(1997), fn. 4) following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979). 

“In essence, sufficiency is a test of adequacy.” Thompkins at 386.

Controlling Statute

{¶7} Davis was convicted of RSP in violation of R.C. 2913.51(A)/(C), which 

reads:

(A) No person shall receive, retain, or dispose of property of another 

knowing or having reasonable cause to believe that the property has 

been obtained through commission of a theft offense.

* * *

(C) Whoever violates this section is guilty of receiving stolen 

property. * * * If the value of the property involved is one thousand 

dollars or more and is less than seven thousand five hundred dollars * 

* * receiving stolen property is a felony of the fifth degree.
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The culpable mental state for RSP, knowingly, is defined in R.C. 2901.22(B) as 

follows:

A person acts knowingly, regardless of purpose, when the person is 

aware that the person's conduct will probably cause a certain result or 

will probably be of a certain nature. A person has knowledge of 

circumstances when the person is aware that such circumstances 

probably exist. When knowledge of the existence of a particular fact 

is an element of an offense, such knowledge is established if a person 

subjectively believes that there is a high probability of its existence 

and fails to make inquiry or acts with a conscious purpose to avoid 

learning the fact.

Evidence Presented by the State

{¶8} In October of 2021, Joseph A. and his brother Zach owned and operated 

a store in Marion that sold video games, video game systems, and other collectibles.

When Joseph went to the store on October 8, 2021, he found it “destroyed” with his 

merchandise missing. Games and items had been taken from the store, “graffiti 

[was] everywhere,” and “black paint [was] dumped on everything.” (Tr. at 100). 

Joseph testified that over $10,000 in merchandise was stolen from the store. He 

provided inventory sheets for the items taken and the prices the items were selling 

for.

{¶9} After the burglary and vandalism, Joseph posted on social media that 

he would provide a reward for assistance in having his items returned. Shortly 

thereafter he was contacted by his cousin, Cody, who indicated that he knew where 

the stolen items were. 
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{¶10} Cody had been in contact with Davis on social media and Davis was 

privately offering a significant amount of video games for sale. Cody had the 

following conversation on Facebook messenger with an account belonging to Davis:

[Brandon Back Up1]:Yoo who fw video games cuz I got hella shit 

must go for the low everything I got everything no cap..

Dumb shit

[Cody]: How low and what you got

[Brandon Back Up]: Hold up finna call you here in sec

[Cody]: My phone finna die 4 percent cuz

[Brandon Back Up]: Ight I’ll hit you whenever then g

[Cody]: Ima put it on charge is what I’m saying but if I don’t answer 

I’ll call right back

[Brandon Back Up]: Ight bet

[Cody]: I’ll buy it frfr

Game systems for days lol

[Cody sends a 7 second video but the record only contains a

screenshot of the video sent]. 

Ay call me lol I’ll buy that shit fam bring it

[An icon indicates that at 00:13 there was a 3 minute video chat 

between “Brandon Back Up” and Cody.]

[The next communication is from Cody, time-stamped at 01:55].

[Cody]: Shoot me a pic so I can show my dad I gotta get a loan lol I 

ain’t coming with no small bag lol 

[Brandon Back Up]: I got some little shit pictures rn but I got so much 

lmao

1

“Brandon Back Up” is the name of the account.
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[Three pictures are sent showing some stacked games, a classic 

Nintendo and some other items].

There’s some. Yeah it’s a good business move for sure. I just can’t 

sell shit here for reasons [smiling devil emoji] lmfao

[Cody]: What we talking how much bread we thinking I can grab a 

couple gs

[Brandon Back Up]:I mean shit man there’s even more like I can place 

order through dude and mail shit to you cash on delivery whatever 

you want my guy. I probably got 4 bands worth of shit. But the prices 

will get better however much you shop no kizzy

[Cody]: You know I shop lol

[Brandon Back Up]: [fax machine emoji] bro and you know I won’t 

tax ya lol

Good deals just bc man everything gotta go lmao it’s gonna take 

months to get rid of the volume we have rn

(word usage, spelling, and punctuation in the original) (State’s Ex. 43).

{¶11} Joseph contacted the police and a search warrant was obtained for 

Davis’s residence. As the warrant was being prepared, an officer made contact with 

Davis and told him that it was suspected there were stolen video games on the 

property. Davis responded that he did not even own a video game console, 

indicating there were no video games inside. An officer told Davis that they believed 

he had stolen merchandise in his basement, but Davis told the officers that he did 

not want to go down to his basement and he did not have anything stolen.

{¶12} Shortly thereafter the search warrant was executed at Davis’s 

residence. Law enforcement officers located approximately 160 video games in the 

basement in addition to gaming consoles, controllers, and other items. Most of the 
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games were wrapped in plastic and some could even be seen with yellow pricing 

stickers.

{¶13} During the search of the residence, law enforcement officers also 

located two firearms that had been reported stolen from a residence in Wyandot 

County. The two stolen firearms were amongst numerous other firearms that Davis 

owned that were not stolen. The two stolen firearms were the subject of one of the 

RSP charges in the indictment; however, Davis was acquitted of that charge, so we 

will not address the firearms further.

{¶14} Davis voluntarily spoke with law enforcement officers and he claimed 

that the items in his basement had been brought in the night prior by his friend, 

Brandon Spears, and another individual named Matthew. Davis claimed that he had 

prior conversations with Brandon Spears about purchasing pallets of goods from 

wholesalers and reselling the items in the pallets individually. Davis stated that he 

did not look at the items Brandon put in his basement. He also stated that while the 

“Brandon Back Up” Facebook account was his, it was not Davis that sent the 

messages offering to sell the games to Cody. 

{¶15} A few days after the search warrant was executed, Davis voluntarily 

contacted the police and indicated he had a few more items that he believed were 

part of the stolen goods. Ultimately the gaming items collected from Davis’s 

residence were returned to Joseph. Joseph testified that of the $10,000 or more of 
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merchandise that was stolen from his business, he received back $6,000-7,000 in 

goods. 

Analysis

{¶16} In arguing that the evidence presented at trial was insufficient to 

convict him of RSP, Davis focuses on two elements. First, he argues that the State 

failed to establish that the value of the items exceeded $1,000. Second, he argues 

that the State failed to prove that he acted knowingly.

{¶17} With regard to the value of the property, the prosecutor specifically 

asked Joseph the value of numerous individual games that were recovered from 

Davis’s residence. Although there were no individual items that exceeded $1,000, 

the items that Joseph testified to readily exceeded $1,000 in value in the aggregate. 

{¶18} Moreover, the message from the Facebook account of “Brandon Back 

Up” attempting to sell the gaming equipment represented that there was “4 bands 

worth of shit.” An officer explained that a “band” is a known term for $1,000. Thus 

the person attempting to sell the items valued them well in excess of $1,000. 

{¶19} Furthermore, the State presented an inventory of the items taken from 

Joseph and they added up to well over $1,000. Based on all of this evidence, we do 

not find that there was insufficient evidence presented for the jury to determine 

beyond a reasonable doubt that the value of the property exceeded $1,000.

{¶20} Davis next argues that the State did not establish that he acted 

knowingly. However, the items were found in Davis’s basement. By Davis’s own 
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admission they were brought in late at night. Shortly thereafter, there were messages 

from a Facebook account that Davis admitted was his offering to sell a significant 

amount of video games. The messages specifically stated that he could not openly 

sell the items on Facebook for “reasons,” with a smiling devil emoji attached. In 

addition, when the police asked Davis about stolen video games, he claimed he did 

not have any video games or any consoles. This is all evidence from which a jury 

could determine that Davis acted knowingly.

{¶21} Although Davis contends that there was no evidence he knew that the 

items were stolen, particularly since he had talked about a “pallet” business with 

Brandon Spears, the credibility of Davis’s story is a question for weight of the 

evidence rather than sufficiency. See State v. Emery, 6th Dist. Lucas No. L-11-1228, 

2013-Ohio-208, ¶ 18 (“ ‘[i]n a prosecution for receiving stolen property, the jury 

may infer guilty knowledge when the defendant's possession of recently stolen 

property either goes unexplained or is not satisfactorily explained in the context of 

the surrounding circumstances, as shown by the evidence.”) (Emphasis added.) 

{¶22} Here we must look at the evidence in the light most favorable to the 

State. Applying that standard, we find that sufficient evidence was presented to 

establish that Davis acted knowingly. Therefore, Davis’s second assignment of error 

is overruled.

Third Assignment of Error
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{¶23} In his third assignment of error, Davis argues that even if there was 

sufficient evidence presented to convict him of RSP, his conviction was against the 

manifest weight of the evidence.

Standard of Review

{¶24} In reviewing whether a verdict was against the manifest weight of the 

evidence, the appellate court sits as a “thirteenth juror” and examines the conflicting 

testimony. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52. In doing so, 

this court must review the entire record, weigh the evidence and all of the reasonable 

inferences, consider the credibility of witnesses and determine whether in resolving 

conflicts in the evidence, the factfinder “clearly lost its way and created such a 

manifest miscarriage of justice that the conviction must be reversed and a new trial 

ordered.” Id. 

{¶25} Nevertheless, a reviewing court must allow the trier-of-fact 

appropriate discretion on matters relating to the credibility of the witnesses. State v. 

DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight 

standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against 

the conviction,’ should an appellate court overturn the trial court’s judgment.” State 

v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter, 

131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.

Evidence Presented by the Defense
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{¶26} Brandon Spears testified on Davis’s behalf. He claimed that he was 

involved with the theft and vandalism of Joseph’s store. At the time of the incident 

Brandon testified that he was regularly using methamphetamine and crack cocaine, 

and that he had a life-long history of committing crimes.

{¶27} Brandon testified that he was friends with Davis and that they had 

discussions in the past about reselling liquidated pallets together. Brandon testified 

that he took the items from Joseph’s store to Davis’s residence but Davis did not 

know that they were stolen. 

{¶28} Brandon testified he had recently been released from incarceration for 

his involvement in this matter. He testified he was not receiving any incentive for 

testifying; rather, he claimed he was trying to clear his conscience. However, he 

acknowledged on cross-examination that he had never split a pallet with Davis 

before.

{¶29} Davis testified on his own behalf in this case. He testified that Brandon

Spears had stopped at his residence in the weeks prior to dropping off the video 

games and showed Davis various items in his trunk that had purportedly come from 

a liquidated pallet. On October 8, 2021, Davis testified that Brandon knocked on his 

door and said he had pallet items. Davis testified that he did not know what items 

Brandon had brought over until he looked in the “totes” the next day.
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{¶30} Davis acknowledged that he tried to sell items to Cody, but he claimed 

that he was not the individual that messaged Cody from his Facebook account. 

Davis claimed that Brandon Spears must have sent the messages.

{¶31} Davis did acknowledge that he lied when he told police that he did not 

know what was in the “totes” downstairs. He stated he was nervous. He also testified 

that he told police he did not have stolen property because he felt he only had 

legitimate property. Davis was emphatic that he did not know the items were stolen 

and that he would not have dealt with stolen goods.

Analysis

{¶32} For the same reasons Davis argued that there was insufficient evidence 

to convict him he contends that his conviction for RSP was against the weight of the 

evidence.

{¶33} With regard to the value of the property taken, again we find there was 

a significant amount of testimony and evidence regarding the value of the property 

taken exceeding $1,000. In fact, there is no evidence to the contrary. Thus we do 

not find that the jury clearly lost its way on this issue.

{¶34} Turning to Davis’s claim that the jury clearly lost its way by finding 

that he acted knowingly, this case turns heavily on the jury’s credibility 

determinations of Davis and Brandon Spears. The jury evidently did not find their 

stories credible and we “accord great deference to the factfinder’s determination of 

witness credibility.” State v. Lawson, 10th Dist. Franklin No. 19AP-68, 2020-Ohio-
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3008, ¶ 28. Moreover, disagreement over the credibility of witnesses is not a 

sufficient reason to reverse a conviction on manifest weight grounds. Id.

{¶35} As the jury could readily determine that Davis was not credible, we do 

not find that the jury clearly lost its way by convicting him of RSP. Therefore, his 

third assignment of error is overruled. 

First Assignment of Error

{¶36} In his first assignment of error, Davis argues that the trial court erred 

by providing a jury instruction on “deliberate ignorance because it lessoned [sic] the 

burden for the State to prove the mens rea for receiving stolen property.” (Appt.’s 

Br. at 4).

Standard of Review

{¶37} “[T]he trial judge is in the best position to gauge the evidence before 

the jury and is provided the discretion to determine whether the evidence adduced 

at trial was sufficient to require an instruction.” State v. Fulmer, 117 Ohio St.3d 319, 

2008-Ohio-936, ¶ 72. Thus, we generally review alleged errors in jury instructions 

for an abuse of discretion. State v. Blanton, 3d Dist. Marion, 2015-Ohio-4620, ¶ 55, 

citing State v. Guster, 66 Ohio St.2d 266, 271 (1981). An abuse of discretion occurs 

when a trial court's decision was unreasonable, arbitrary, or capricious. Blakemore 

v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

Analysis
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{¶38} On the morning of the second day of trial, the prosecutor requested a 

supplemental jury instruction related to the “knowingly” element of RSP. The State 

sought an instruction pursuant to, inter alia, State v. McNeal, 8th Dist. Cuyahoga 

No. 91507, 2009-Ohio-3888, ¶ 26, which would state something similar to:

“Deliberate ignorance. You can further find that the defendant acted knowingly if 

she deliberately closed her eyes to what she had reason to believe were the facts.”

{¶39} Defense counsel objected and the trial court indicated it would wait to 

hear the testimony from the defense before it determined if any additional 

instruction on the element of “knowingly” was warranted.

{¶40} Following the presentation of the defense, the trial court allowed the 

parties to argue regarding the proposed additional jury instruction. After hearing the 

parties’ arguments, the trial court indicated it would provide a supplemental 

instruction as requested. The jury was then instructed as follows with regard to the 

“knowingly” element:

A person acts knowingly, regardless of his purpose when he is aware 

that his conduct will probably cause a certain result. A person has 

knowledge of circumstances when he is aware that such 

circumstances exist.

Since you cannot look into the mind of another, knowledge is 

determined from all the fact [sic] and circumstances in evidence.

* * *

As to Count II, Receiving Stolen Property, you will determine 

from these facts and circumstances whether there existed at the time 

in the mind of the Defendant an awareness of the probability that the 
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property, the video games and consoles was obtained through the 

commission of a theft offense.

In determining whether the Defendant had reasonable cause to 

believe that * * * the other property described the [v]ideo games and 

consoles you must put yourself in the position of thi[s] Defendant with 

his knowledge or lack of knowledge under th[e] circumstances and 

conditions that surrounded him/her at that time. You must consider 

the conduct of the persons involved and determine whether their acts 

and words and all the surrounding circumstances would have caused 

a person of ordinary prudence and care to believe that those items 

were stolen.

You can further find that the Defendant acted knowingly if he 

deliberately closed his eyes to what he had reason to believe were the 

facts.

(Tr. at 317-318).

{¶41} Davis argues on appeal that the trial court abused its discretion by 

providing the supplemental instruction related to knowingly. He contends that the 

“alternative definition of knowledge negates the need for the State to prove mens 

rea.” (Appt.’s Br. at 5).

{¶42} Initially, we note that this jury instruction has already been found to 

be appropriate when warranted by the evidence by the Eighth District Court of 

Appeals in McNeal, supra, and by the Fifth District Court of Appeals in State v. 

Wiseman, 5th Dist. Fairfield No. 2023 CA 00004, 2023-Ohio-4263, ¶ 41. Although

the decisions from the Eighth and Fifth Districts, are only persuasive to the case 

before us, we find that the jury instruction provided herein was accurately reflective 

of the definition of “knowingly” provided in R.C. 2901.22(B). 
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{¶43} Revised Code 2901.22(B) reads in part: “When knowledge of the 

existence of a particular fact is an element of an offense, such knowledge is 

established if a person * * * acts with a conscious purpose to avoid learning the 

fact.” While instructing the jury with the phrase “deliberately closed his eyes to what 

he had reason to believe were the facts” is colloquial and not a word-for-word 

restatement of this portion of R.C. 2901.22(B), we find, at the very least, that it was 

not an abuse of discretion for the trial court to provide the instruction here. 

Therefore, Davis’s first assignment of error is overruled.

Fourth Assignment of Error

{¶44} In his fourth assignment of error, Davis argues that he received 

ineffective assistance of counsel. Specifically, he contends that his counsel was 

ineffective for failing to object to the “inventory” lists provided by Joseph.

Standard of Review

{¶45} “[I]n Ohio, a properly licensed attorney is presumed competent.” State 

v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 62. To prove ineffective 

assistance of counsel, a defendant must establish that: (1) counsel’s performance 

was deficient, and (2) the deficient performance prejudiced the defense. Strickland 

v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). Counsel’s performance 

is deficient if it falls below an objective standard of reasonable representation. State 

v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus. Prejudice exists 

if there is “a reasonable probability that, but for counsel’s errors, the outcome of the 
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proceeding would have been different.” State v. Sowell, 148 Ohio St.3d 554, 2016-

Ohio-8025, ¶ 138.

Analysis

{¶46} At trial, the State introduced exhibits detailing the inventory that 

Joseph determined had been taken from his store. The inventory lists showed games 

and game systems and the values they were being sold for. Davis’s trial counsel did 

not object to the introduction of the inventory lists.

{¶47} Davis now argues that his trial counsel was ineffective for failing to 

object to the introduction of the inventory lists because, he claims, the lists were not 

valid business records. However, Davis’s trial strategy focused on the fact that while 

the games were stolen, he was completely unaware. If he was actually unaware, it 

would not have mattered how many games there were or how much they were 

valued at because he would not have been acting knowingly. Although the jury did 

not accept Davis’s trial strategy, it does not establish any deficient 

performance. State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, ¶ 37 (2d 

Dist.) (“Hindsight is not permitted to distort the assessment of what was reasonable 

in light of counsel’s perspective at the time, and a debatable decision concerning 

trial strategy cannot form the basis of a finding of ineffective assistance of 

counsel.”).

{¶48} Moreover, even if trial counsel did object, and even if the inventory 

lists were excluded, there was still significant evidence establishing that the property 
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involved exceeded $1,000 in value. This includes Joseph testifying item by item as 

to the value of the games until the threshold amount was met. Thus there could be 

no prejudice here. Given that we do not find that either prong of the Strickland test 

is met here, Davis’s fourth assignment of error is overruled.

Conclusion

{¶49} Having found no error prejudicial to Davis in the particulars assigned 

and argued, his assignments of error are overruled and the judgment of the Marion 

County Common Pleas Court is affirmed.

Judgment Affirmed

WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.