[Cite as State v. Wear , 2021-Ohio-3384.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

State of Ohio Court of Appeals No. WD-20-042 Appellee Trial Court No. 2019CR0268

v. Tony Wear DECISION AND JUDGMENT Appellant Decided: September 24, 2021 * * * * * Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee. Emil G. Gravelle, III, for appellant. * * * * * DUHART, J. {¶ 1} This case is before the court on appeal by appellant, Tony Wear , from the May 22, 2020 judgment of the Wood County Court of Common Pleas. For the reasons that follow, we affirm, in part, and reverse, in part.2. {¶ 2} Appellant sets forth three assignments of error: A. The trial court erred in denying Appellant Tony Wear’s moti on to suppress and not suppressing all evidence gathered after the arrest. B. Appellant’s Conviction for Receiving Stolen Property was Ba sed on Insufficient Evidence. C. Appellant’s Conviction for Receiving Stolen Property was Against the Manifest Weight of Evidence. Background {¶ 3} On June 6, 2019, appellant was a passenger in a pickup truck be ing driven northbound on Interstate 75 (“I-75”) in Wood County, Ohio, when Trooper Garrett Lawson of the Ohio State Highway Patrol (“the patrol”), observe d the pickup. As the pickup passed Trooper Lawson, who was stationary in a crossover , the trooper checked the pickup’s speed and noted it was traveling at 60 m.p.h., whe n the speed limit was 70 m.p.h. The trooper pulled out, followed the pickup and attempt ed to initiate a traffic stop for impeding traffic and slow speed. {¶ 4} The pickup did not stop, it accelerated, and a chase ensued. U ltimately, the pickup was stopped and appellant and the driver were arrested. Appellant had two debit cards, which were not in his name, as well as syringes and susp ected methamphetamine in the pockets of his pants. The pickup was searched and items such as loaded firearms,3. magazines with bullets, bundles of money, digital scales and ro lling papers were discovered. {¶ 5} On July 11, 2019, appellant was indicted on numerous charges, i ncluding two counts of receiving stolen property, each with a one-year f irearm specification, in violation of R.C. 2913.51(A) and (C), each count a fifth-degree felony. {¶ 6} On July 22, 2019, appellant was arraigned and entered a plea of not guilty. {¶ 7} On October 9, 2019, appellant filed a motion to suppress, argui ng no traffic violation occurred, so any evidence was illegally seized. A su ppression hearing was held on January 9, 2020. Post-hearing memoranda were filed. {¶ 8} On February 24, 2020, the trial court issued a decision and ord er denying the motion to suppress. {¶ 9} On March 11, 2020, a jury trial commenced, and on March 13, 202 0, appellant was found guilty of, inter alia, two counts of receiv ing stolen property. {¶ 10} On May 4, 2020, appellant was sentenced to, inter alia, one yea r in prison on each count of receiving stolen property and one year in pris on for each firearm specification. The trial court ordered the sentences on the tw o counts of receiving stolen property to be served concurrently to each other but consecutiv e to appellant’s sentence for other offenses. The court further ordered the sentences fo r the firearm specifications to be served concurrently to each other but consecutive to appe llant’s sentence for other offenses. Appellant was sentenced to a total of nine years in prison. Appellant appealed.4. Motion to Suppress {¶ 11} In appellant’s motion, he sought to have the trial court suppre ss the evidence and statements obtained as a result of the initial unl awful traffic stop. Appellant argued when the pickup was in the left lane, after passing a se mi-truck, it did not impede traffic as other vehicles were able to legally pass the pickup on the right-hand side. Appellant asserted since the pickup was not impeding traffic, t he trooper lacked reasonable suspicion to initiate the traffic stop. Suppression Hearing {¶ 12} Trooper Lawson was the only witness called to testify at the mo tion to suppress hearing. In addition, the trooper’s patrol car video (“dash cam”) was played, which showed the trooper following the pickup prior to attempti ng to initiate the traffic stop, the chase and the stop. {¶ 13} Trooper Lawson testified to the following. He started with the patrol, in the academy, in May of 2012, and was a road trooper for five ye ars. He became a field training officer and took Advanced Criminal Interdiction Roadsi de Training and became a drug recognition expert. In August 2018, he moved into the c riminal interdiction team. {¶ 14} The trooper described how he looks for three phases while on th e highway: Phase 1, a vehicle approaches; Phase 2, what the person and veh icle do when in front of him; Phase 3, what the person and vehicle continue to do when t hey pass by him. The trooper picks out what are normal and not normal driving behavi ors, which he learned5. from watching thousands of vehicles. He said the biggest indic ator of criminal activity is a substantial decrease in speed when the motorist sees him, pas ses him and continues by without ever regaining speed. He said it is not normal for the motorist to keep driving at a slow speed. The trooper also stated it is not normal for mot orists to go out of their way not to acknowledge his presence. {¶ 15} On the morning of June 6, 2019, the trooper was working, and he was in uniform and in a marked cruiser. Around 11:00 a.m., he was on I-75 when he noticed the pickup in which appellant was a passenger was traveling at well below the posted speed limit, in the middle lane. As the pickup passed, the trooper n oted the driver was sitting up straight in a rigid position with his hood pulled over his f ace, attempting to conceal his identity. The passenger, appellant, was slouched low in his se at. {¶ 16} After the trooper checked the pickup’s speed, he pulled his cru iser into traffic and started to follow the pickup which “was a while up the way.” While the trooper ran the pickup’s registration, he moved the cruiser to the right lane at which point the pickup moved to the left lane. The pickup continued in the left lane and passed a semi-truck which was in the center lane. The trooper remained in the right lane and paced the pickup. Trooper Lawson saw one vehicle proceed to th e middle lane and pass the pickup, “[a]s anybody would be irritated with somebody trav eling between 60, 63 in a 70-mile zone” in the left lane. At that point, the trooper not iced traffic was starting to6. back up behind the pickup due to the slow speed in the left lan e, so he moved the cruiser to the center lane and activated his lights in an attempt to in itiate a traffic stop. {¶ 17} The pickup did not stop, and fled at a high rate of speed on I- 75. The trooper pursued the pickup and saw that a package was thrown ou t of the pickup’s right window. The pickup was eventually stopped; appellant and the dr iver were taken into custody. The pickup was searched and firearms were found. The package that was thrown out of the pickup was recovered, and it was determined t o be marijuana. {¶ 18} The dash cam video showed the trooper following the pickup, att empting to initiate the traffic stop, chasing the pickup and stopping the pickup. What was displayed on the dash cam video was consistent with the trooper’s testimo ny, although not everything to which the trooper testified was on the dash cam v ideo due to the camera’s position in the cruiser.
Trial Court’s Decision and Order {¶ 19} In its February 24, 2020 decision and order, the trial court de nied the motion to suppress. The court disagreed with appellant’s posit ion that the pickup was not impeding traffic because vehicles were able to legally pass the pickup on the right-hand side. The court set forth “[t]he fact that vehicles are permit ted to pass in the right lane does not eliminate the fact that [the pickup] impeded traffic b y traveling below the prevailing rate of speed[,] and should have moved to the right- hand lane.”7. {¶ 20} The court found Trooper Lawson’s testimony was credible and his testimony was supported by the dash cam footage, although given the position of the dash cam, the video did not capture traffic backing up behind the pi ckup. The court noted the trooper observed the actions of the driver of the pickup and ap pellant, and these observations established reasonable and articulable suspicion t hat traffic violations for both R.C. 4511.22(A) and R.C. 4511.25(B)(1) had occurred. The court therefore found the traffic stop was lawful. First Assignment of Error {¶ 21} Appellant argues the trial court erred in denying his motion to suppress. He notes that a police officer must have reasonable, articulabl e suspicion of criminal activity in order to justify an investigative stop. Appellant contends slow speed, generally, is not enough to justify a traffic stop. Appellant submits the issue is whether the pickup was seriously impeding traffic or going unreasonably slow to create a traffic risk. And, appellant insists the totality of the circumstances analysis is limited to the potential criminal activity that the leads to the violation for impeding traffic. {¶ 22} Appellant asserts “Trooper Lawson assumed drivers were irritate d behind the * * * pickup and because one vehicle passed the * * * picku p[,] Trooper Lawson found that the * * * pickup was impeding traffic.” Appellant m aintains the pickup was not seriously impeding traffic nor was it traveling unreasonabl y slow to create risk, because the pickup was passing a semi-truck and within seconds, another vehicle moved8. into the middle lane, which prevented the pickup from safely ch anging lanes. Thus, appellant claims the reason for the traffic stop was unjustifie d. {¶ 23} The state counters the pickup’s slow speed in the left-lane cou pled with the fact that traffic was being impeded resulted in a traffic viola tion, so the traffic stop was proper. The state also noted a police officer is required to h ave reasonable suspicion to lawfully effectuate a traffic stop. Traffic Stop
Search and Seizure Law {¶ 24} The Fourth Amendment to the United States Constitution and Sect ion 14, Article I of the Ohio Constitution, guarantee a person’s right to be free from unreasonable searches and seizures. State v. Orr , 91 Ohio St.3d 389, 391, 745 N.E.2d 1036 (2001). The temporary detention of a motorist during a traffic stop is a seizure. Delaware v.
Prouse , 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). {¶ 25} As we previously noted in State v. Bui , 6th Dist. Lucas No. L-19-1028, 2021-Ohio-362, ¶ 13: There has been continuing confusion over what standard applies to a traffic stop: probable cause or reasonable articulable suspicion. See State v. Mays , 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 23 (“[W] e have not held that probable cause is required [for a traffic stop]. * * * A traffic stop is constitutionally valid if the police officer has a reas onable and9. articulable suspicion that a motorist has violated the law.”). But see State v.
Turner , 2020-Ohio-6773, ¶ 2 (“[W]hen an officer believes a traffic la w has been violated, the focus of the inquiry is whether the officer had ‘probable cause to believe that a traffic violation has occurred.’”). {¶ 26} However, following the release of Bui , the Supreme Court of Ohio dispelled any uncertainty in State v. Tidwell , 2021-Ohio-2072, ¶ 19 (“[A] police officer * * * may * * * make an investigatory stop, including a traffic s top, of a person if the officer has reasonable suspicion to believe that the person is or is about to be engaged in criminal activity.”). The Tidwell court set forth that reasonable suspicion “is dependent upon both the content of information possessed by police and its degree of reliability.” Alabama v. White , 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). “Both factors-quantity and quali ty-are considered in the ‘totality of the circumstances-the whole pict ure,’ * * *, that must be taken into account when evaluating whether there i s reasonable suspicion.” Id. , quoting United States v. Cortez , 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Police officers may “draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’” United States v. Arvizu , 534 U.S. 266, 273, 12210. S.Ct. 744, 151 L.Ed.2d 740 (2002), quoting Cortez at 418, 101 S.Ct. 690.
Id. at ¶ 20. Standard on Appeal {¶ 27} Appellate review of a Crim.R. 12(C)(3) motion to suppress prese nts mixed questions of law and fact. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. When the trial court decides a motion to suppr ess, it assumes the role of trier of fact and is in the best position to resolve questions of fact and to assess witness credibility. Id. At a motion to suppress, the state bears the burden of demons trating the validity of a traffic stop. State v. Foster , 11th Dist. Lake No.2003-L-039, 2004-Ohio1438, ¶ 6. However, “the rules of evidence normally applicable in criminal trials do not operate with full force and effect in hearings before the judge to determine the admissibility of evidence.” U.S. v. Matlock , 415 U.S. 164, 172-173, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). Therefore, when ruling on a motion to supp ress, the trial court may rely on hearsay and other evidence which would not be admissibl e at trial. Id. {¶ 28} A reviewing court is bound to accept the trial court’s findings of fact if they are supported by competent, credible evidence. Burnside at ¶ 8. An appellate court must then independently decide as a matter of law whether the trial court’s conclusions satisfy the appropriate legal standard. Id.11. R.C. 4511.22 and R.C. 4511.25 {¶ 29} R.C. 4511.22(A) provides “[n]o person shall * * * operate a veh icle * * * at such an unreasonably slow speed as to impede or block the norma l and reasonable movement of traffic, except when stopping or reduced speed is n ecessary for safe operation or to comply with law.” {¶ 30} R.C. 4511.25(B) states: (1) Upon all roadways any vehicle * * * proceeding at less tha n the prevailing and lawful speed of traffic at the time and place an d under the conditions then existing shall be driven in the right-hand lane then available for traffic, and far enough to the right to allow passing by fa ster vehicles if such passing is safe and reasonable, except under any of the fo llowing circumstances: (a) When overtaking and passing another vehicle * * * proceedi ng in the same direction[.] * * * (2) Nothing in division (B)(1) of this section requires a driv er of a slower vehicle to compromise the driver’s safety to allow overt aking by a faster vehicle. {¶ 31} In State v. Gray , 6th Dist. Wood No. WD-18-067, 2019-Ohio-2662, ¶ 17, we noted that “both R.C. 4511.25(B) and R.C. 4511.22(A), supra, aim to prevent traffic12. impediments and unsafe conditions due to the unreasonably slow speed of drivers proceeding in the far-left lane.” Analysis {¶ 32} Upon review, we conclude the trial court’s finding that the tra ffic stop was lawful is supported by competent, credible evidence in the reco rd. In addition, Trooper Lawson testified to specific and articulable facts which gave r ise to a reasonable suspicion that the driver of the pickup had committed traffic o ffenses by traveling below the speed limit in the left lane and impeding traffic. The das h cam video confirms those facts which were in the camera’s view. Based upon the totality of circumstances, we conclude the trooper had reasonable suspicion to initiate the t raffic stop of the pickup, thus the traffic stop was lawful. Accordingly, the trial court did not err in denying appellant’s motion to suppress, and appellant’s first assignmen t of error is not well-taken. Second and Third Assignments of Error {¶ 33} Appellant asserts his convictions for two counts of receiving s tolen property were based on insufficient evidence and were against t he manifest weight of the evidence. Appellant contends the state never introduced any ev idence or testimony that the police investigated the two debit cards, nor did the state introduce any evidence or testimony that the cards were reported stolen or were part of a ny theft offense. Appellant argues nothing else in appellant’s possession or the pickup dri ver’s possession was determined to be stolen. Appellant maintains the state failed to present sufficient13. evidence to infer from his possession of the debit cards, that he knew or had reasonable cause to believe the cards were stolen. {¶ 34} The state contends that when appellant was interviewed “concern ing why he had credit cards in his pockets that didn’t have his name on them and where those cards came from,” he said “maybe somebody put them in his pocke t or maybe they were flying around inside the truck.” The state observes “[t]he jur y found that explanation to be a bit far-fetched.” The state further argues appellant “had no idea who either [of the individuals] were,” and neither of those individuals were in th e pickup. The state submits “[i]n light of that, a jury is not compelled to believe an impl ausible story posited by a defendant. [Appellant’s] yarn is no different.” The state ass erts this court and others have found sufficient evidence and manifest weight of the evide nce exist in receiving stolen property cases when “credit cards miraculously appear in a defendant’s pocket that logic dictates were stolen, since the defendant had no idea who the person is whose name is on the credit card.” The state cites to numerous cases in s upport of this assertion. {¶ 35} In reply, appellant observes, with respect to the cases cited b y the state when a defendant possessed a credit card which was not in defen dant’s name, either the police confirmed the credit cards were stolen or the victim of the theft testified. Appellant also notes, regarding the cases cited by the state wh ere credit cards in vehicles were assumed stolen, either the defendant used the credit cards or the victim testified.14. Sufficiency of the Evidence {¶ 36} Sufficiency of the evidence is a legal standard which tests whe ther the evidence introduced at trial is legally adequate to support a j ury verdict as to all elements of the crime. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The proper analysis is “‘whether, after viewing the evidence in a l ight most favorable to the prosecution, any rational trier of fact could have found the es sential elements of the crime proven beyond a reasonable doubt.’” State v. Williams , 74 Ohio St.3d 569, 576, 660 N.E.2d 724 (1996), quoting State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. Manifest Weight of the Evidence {¶ 37} We review a claim that a verdict is against the manifest weight of the evidence by weighing the evidence and all reasonable inferences , considering the credibility of the witnesses, and determining whether the jury lost its way in resolving evidentiary conflicts so as to create such a manifest miscarria ge of justice that the conviction must be reversed and a new trial ordered. Thompkins at 387. “[A] reviewing court asks whose evidence is more persuasive-the state’s or the defendant’s?” State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25. W e do not consider the evidence in a light most favorable to the state, r ather “we sit as a ‘thirteenth juror’ and scrutinize ‘the factfinder’s resolution of the confl icting testimony.’” State v.15. Robinson , 6th Dist. Lucas No. L-10-1369, 2012-Ohio-6068, ¶ 15, quoting Thompkins at 387. Receiving Stolen Property {¶ 38} R.C. 2913.51 provides in relevant part: (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 t housand dollars or more and is less than seven thousand five hundred dollars, i f the property involved is any of the property listed in section 2913.71 of th e Revised Code, [then] receiving stolen property is a felony of the fifth degree. {¶ 39} R.C. 2913.71(A) states in pertinent part: Regardless of the value of the property involved and regardless of whether the offender previously has been convicted of a theft o ffense, a violation of section 2913.02 or 2913.51 of the Revised Code is a felony of the fifth degree if the property involved is any of the followi ng * * * [a] credit card[.]16. {¶ 40} R.C. 2913.01(U) provides: “Credit card” includes * * * a card, code, device, or other mea ns of access to a customer’s account for the purpose of obtaining mon ey * * * on credit, or for initiating an electronic fund transfer at a poin t-of-sale terminal, an automated teller machine, or a cash dispensing mac hine. {¶ 41} “Property of another” is defined as including “property in whic h any person other than the actor has an interest which the actor is not pri vileged to infringe.” Section 223.0(7), Theft and Related Offenses, Definitions, Model Penal Code, American Law Institute (1985). {¶ 42} R.C. 2901.22 defines culpable mental states and provides in rel evant part: * * * (B) A person acts knowingly, regardless of purpose, when the pe rson is aware that the person’s conduct will probably cause a certai n result or will probably be of a certain nature. A person has knowledge o f 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 subjectiv ely 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.17. {¶ 43} “‘[H]aving reasonable cause to believe’ is essentially ‘a refin ement of the knowledge state of culpability’ * * * and * * * ‘[i]t is often proven largely through circumstantial evidence and inferences.’” (Internal citations omitted.) State v. Rich , 2d Dist. Montgomery No. 27356, 2018-Ohio-1225, ¶ 33. {¶ 44} In a prosecution for receiving stolen property, the state has t o prove more than mere physical possession of the property in order for the jury to find appellant guilty. State v. Brown , 6th Dist. Lucas No. L-97-1332, 1998 WL 614560, *2 (Nov. 19, 1999). However, the jury may infer guilty knowledge when a de fendant’s “possession of recently stolen property either goes unexplained or is not sati sfactorily explained in the context of the surrounding circumstances, as shown by the evide nce. State v. Arthur , 42 Ohio St.2d 67, 68-69, 325 N.E.2d 888 (1975).” State v. Emery , 6th Dist. Lucas No. L-11- 1228, 2013-Ohio-208, ¶ 18. Analysis {¶ 45} At trial, the state presented Trooper Lawson’s testimony which established that appellant had one orange Visa debit card and one black Vis a debit card in his pockets when he was arrested. The name on the orange card was Johnatha n Marrison and the name on the black card was William Stackhouse; neither cardhold er name matched appellant’s name or the pickup driver’s name. The trooper test ified that appellant said the cards did not belong to him.18. {¶ 46} In addition, an audio tape of appellant talking with Trooper Ry an Stewart and Lieutenant Scott Wyckhouse was introduced as evidence at tr ial. Appellant was asked “whose credit cards are those - Stackhouse?” Appellant m umbled, “I don’t know * * * in the truck * * *.” An officer said “it was in your [appe llant’s] pocket,” and appellant responded that “ain’t mine” things were “flying aroun d” in the truck and he “might have grabbed ‘em.” {¶ 47} Upon review, appellant was charged with receiving stolen proper ty. So, the state had to prove that appellant received or retained debi t cards of Johnathan Marrison and William Stackhouse knowing or having reasonable ca use to believe that the debit cards had been obtained through commission of a theft. {¶ 48} Viewing the evidence in a light most favorable to the state, we find the state failed to establish that appellant “receive[d], retain[ed ] * * * property of another.” The state introduced no evidence about Johnathan Marrison or Wi lliam Stackhouse to show who they were, and that they were actual people, not just pretend names on the debit cards. {¶ 49} We further find that the state did not establish that appellant knew or had “reasonable cause to believe that the [two debit cards had] bee n obtained through commission of a theft offense.” The state presented no evidenc e as to how or when appellant came into possession of the debit cards, other than t he account offered by appellant, and the state offered no evidence that the debit car ds were, in fact, stolen.19. {¶ 50} While the state cited to cases, in its brief, where “credit car ds miraculously appear in a defendant’s pocket * * * and the defendant has no i dea who the person is whose name is on the credit card,” in all of those cases, there was trial testimony by police, the victim or a witness verifying that the credit card was stolen. However, in the present case, no testimony was offered at appellant’s trial ver ifying the debit cards were stolen. Compare State v. Neal , 6th Dist. Lucas No. 80-286, 1981 WL 5620, *1 (June 5, 1981) (Store employee, victim, security guard and police office r testified.); State v.
Dahir , 10th Dist. Franklin No. 19AP-371, 2020-Ohio-467, ¶ 2-5 (Offic er, detective and victim testified.); State v. Quick , 5th Dist. Licking No. 2007CA00075, 2008-Ohio-2687, ¶ 1-3 (Victim testified.); State v. Hairston , 10th Dist. Franklin No. 01AP-299, 2001 WL 1242318, *1 (Oct.18, 2001) (Victim and two officers testified.) ; and State v. Fair , 8th Dist. Cuyahoga No. 74149, 1999 WL 328623, *1-2 (May 20, 1999) ( Officer testified Sunoco credit card with victim’s name found in Fair’s pocket. 800 number on the back of the card was called. Sunoco representative confirmed card w as reported lost or stolen. Victim testified.). {¶ 51} The state also cited cases in its brief where credit cards were “merely * * * found in the car” in which a defendant was traveling. In those cases, evidence was offered that the defendant used or tried to use the card or the victim testified that the card was stolen. Yet, in the present case, there was no evidence or testimony at appellant’s trial that appellant tried to use the debit cards or that the d ebit cards were stolen.20. Compare State v. Purdue , 6th Dist. Wood No. WD-88-4, 1988 WL 91339, *1 (Sept. 2, 1988) (Two wallets found under front seat of car. Victim testi fied regarding her wallet and what it contained.); State v. Cejer , 8th Dist. Cuyahoga No. 59889, 1992 WL 55455, *1 (March 19, 1992) (Credit card used. Parties stipulated cred it cards were stolen.); State v. Armstrong , 9th Dist. Summit No. 14585, 1991 WL 2011, *2-3 (Jan. 9, 1991) (Car and purse reported stolen. Victim testified.); and State v. Austin , 9th Dist. Summit No. 11298, 1984 WL 4764, *1 (Feb. 16, 1984) (Victim’s wallet with c redit cards lost or stolen. Austin tried to use victim’s card at store; clerk aler ted card was stolen, Austin arrested. Victim testified.). {¶ 52} Since the state had the burden to prove every element of the cr imes beyond a reasonable doubt, and failed to prove more than mere physical possession of the debit cards by appellant, we find the evidence introduced at trial wa s inadequate to support the jury’s verdict finding appellant guilty of two counts of receiv ing stolen property. Thus, there is insufficient evidence in the record as to all elements of the offenses, and appellant’s convictions for receiving stolen property, along wi th the attendant firearm specifications, must be reversed and vacated. {¶ 53} Having found appellant’s receiving stolen property convictions were not supported by sufficient evidence as a matter of law, appellant’ s assigned error that his convictions for receiving stolen property are against the manif est weight of the evidence21. is moot. See App.R. 12(A)(1)(c). Accordingly, appellant’s second and th ird assignments of error are well-taken. {¶ 54} On consideration, the judgment of the Wood County Court of Comm on Pleas is affirmed, in part, reversed, in part. Appellant’s con victions for receiving stolen property and the attendant firearm specifications are vacated d ue to a lack of sufficiency of the evidence. This matter is remanded to the trial court to conduct further proceedings consistent with law and with this opinion. The costs of this a ppeal are assessed to appellee pursuant to App.R. 24. Judgment affirmed, in part, and reversed, in part.

A certified copy of this entry shall constitute the mandate pu rsuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. _________________________ ___ JUDGE Christine E. Mayle, J.

____________________________ Myron C. Duhart, J. JUDGE CONCUR.

____________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.