[Cite as State v. Plunkett , 2011-Ohio-5071.]

IN THE COURT OF APPEALS FOR MIAMI COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 2010 CA 38

v. : T.C. NO. 10CR207A COREY PLUNKETT : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

. . . . . . . . . . O P I N I O N

Rendered on the 30th day of September , 2011.

. . . . . . . . . . JAMES D. BENNETT, Atty. Reg. No. 0022729, Assistant Prosecuting Attorney, 201 W. Main Street, Safety Building, Troy, Ohio 45373 Attorney for Plaintiff-Appellee P. J. CONBOY II, Atty. Reg. No. 0070073, 5613 Brandt Pike, Huber Heights, Ohio 45424 Attorney for Defendant-Appellant

. . . . . . . . . . DONOVAN, J. {¶ 1} This matter is before the Court on th e Notice of Appeal of Corey Plunkett, filed December 30, 2010. On August 11, 2010, Plunkett and Joshua Penny were each

indicted on one count of receivi ng stolen property, in viola tion of R.C. 2913.51(A), a felony of the fifth degree. Following a jury tria l on October 26, 2010, they were found guilty, with2 a specific finding that the value of the property involve d was more than $500.00 but less than $5,000.00. On December 6, 2010, Plunkett was se ntenced to a term of 11 months. {¶ 2} At the trial, Dustin Hughes testified that he, in connection with the above offenses, was originally charge d with complicity to burglary, a felony of the second degree, and that pursuant to an agreement with the State, he pled guilty to an amended charge of breaking and entering, a felony of the fifth degr ee, in exchange for his testimony at the trial of Plunkett and Penny. According to Hu ghes, on the afternoon of June 12, 2010, he, Chelsea Grubb, Plunkett and Penny drove around Piqua in his car, “smoking dope.” They stopped at Z’s bar for a few drinks, then they returned to the car, and he drove Grubb home. Plunkett and Penny then asked him if he could “get rid of” a Pl ay Station 3 for them, and he agreed to do so. Hughes testified that he drove to the home of Nicholas Edmiston, dropping Plunkett and Penny off, knowing that they were going to take the Play Station 3 and some pain pills. Shortly thereafter, Hughes received a text message from Plunkett, telling him to drive around the corner and pick him and Penny up. According to Hughes, the men were carrying the Play Station 3 and a box containing video games,. They told Hughes that Edmiston was not at home. {¶ 3} Hughes drove to Plunkett’s home, and th ey put the items in Plunkett’s car. Hughes testified that Plunkett a nd Penny wanted to return to Edmiston’s house to steal his 60 inch television, but Hughes was “too scared.” The men then returned to Z’s for a while, and encountered Edmiston there. Hughes, Pl unkett, Penny and Edmiston then drove to a motel in Troy to continue drinking, picking up Grubb on the way. Later, Hughes and Penny stayed at the motel while Grubb dr ove the others back to Piqua.3 {¶ 4} Hughes testified that his uncle, Mike Hughes, had indicated to him that he wanted to buy a Play Station 3, and he contact ed him and told him that he knew of one for sale. A couple of days after the theft, Hugh es drove Penny and Plunke tt to Sidney to Mike Hughes’ home, and all three men went inside and set up the Play Station 3. Hughes testified that his uncle ga ve Penny and Plunkett $260.00 for th e Play Station 3 and some games. Later, Hughes testified that he obs erved a gold ring with diamonds in Plunkett’s possession, and Plunkett indicated that he had retrieved it from Edmiston’s house. {¶ 5} Several days later, Hughes testified that Detective Richard Byron of the Piqua Police Department inte rviewed him about the Play Station 3, and Hughes testified that he initially lied to Byron befo re telling him the truth about what happened. {¶ 6} Mike Hughes testified that he had been looking for a Play Station 3 for his children, and that he told Hughes to call him if he knew of one for sale. Following a phone conversation, Mike Hughes stated that, Hugh es, Penny and Plunkett arrived at his home on June 14, 2010. All three men entered the home together, according to Mike Hughes. He testified that he was told that the Play Stati on 3 belonged to Penny’s cousin. Mike Hughes stated he gave $260.00 to Penny for the system, two controllers, a power cord and 8 games, plus $20.00 for gas money. According to Mike Hughes, he asked the men three times if the items were stolen. Mike Hughes stated that a week or ten days later, Detective Byron came to his residence, asked him about the items and retrieved them from him. {¶ 7} Nick Edmiston testified that his home was burglarized and his front door was damaged. Edmiston testified th at he went to Z’s bar at around 10:00 p.m. on the night of the incident, and that he did not return home until 2:30 a.m. Edmiston reported to the4 police that his Play Station 3, two remotes, 12 to 15 games, a necklace and bracelet set, a gold diamond ring and an Ipod Touch were missi ng from his home. Edmiston stated that he knew Plunkett and Penny, but not Hughes. On th e night of the burglary, Edmiston testified that he “had gotten in contact with Josh th rough Corey’s phone, * * * to come to Z’s and play pool. They didn’t show up for a while so I called back and ask[ed] if they were coming and yeah they did show up but it was a while after, I don’t know, maybe a couple hours after

I talked to them.” Edmiston stated that Penny and Plunkett arrived with Hughes, and the men played pool for two hours and th en went to the motel in Troy. {¶ 8} Edmiston identified his Play Station 3 and eight games at trial, and he

testified that he received an insurance check for $2137.51 for everything that was taken. He stated that he received $285.01 for the Play St ation 3, “thirty to fort y apiece” for some of the games, and $29.96 for the controller. Edmis ton testified that he originally paid $60.00 for most of the games that were taken. On cross-examination, Edmist on testified that he

never observed Plunkett with the Pl ay Station 3 or the games. Edmiston testified that after Plunkett arrived at Z’s, Edmiston did not lose si ght of him. Regarding his games, Edmiston specifically stated that he received from his insurance company $29.96 for “NBA 2K9,” $29.99 for “Need for Speed,” $60.00 for “Tiger Woods Golf 2010,” $59.99 for “XXX Street,” $49.99 for “Fall Out Three,” and $59.96 for “USB 2009.” {¶ 9} Detective Richard Byron testified that as a result of receiving anonymous information in a phone call, he proceeded to the home of Mike Hughes, where he retrieved the Play Station 3, power cord, two controllers a nd some games. Byron stated that he then interviewed Hughes, and then he went to Pl unkett’s parents’ residen ce where he was given5 permission to search Plunkett’s bedroom and car. Nothing was recovered as a result of the

search. {¶ 10} Plunkett testified that on June 11, 2010, he, Grubb, Hughes and Penny were riding around, and they decided to go the mud bogs in Shelby County. Plunkett stated they were in Sidney when Edmiston ca lled and asked them to come play pool and drink beer at Z’s bar. They drove to Z’s and arrived 20- 30 minutes later, according to Plunkett. When they arrived, Plunkett and Penny entered the bar, and Hughes and Grubb left so that Grubb could change clothes. Plunkett stated that Hu ghes and Grubb were gone for about an hour, and then they returned to the bar. Plunkett st ated that he had a friend who was managing a

Comfort Suites motel in Troy, and the group of men and Grubb, along with an additional fried of Edmiston’s, went there to swim until around 3:00 a.m. At that time, Plunkett and

Grubb drove Plunkett’s car back to Edmiston’s house, where they dropped off Edmiston and

his friend. {¶ 11} Plunkett testified that a coupl e of days later, Hughes told him that he was selling a Play Station for a friend of his to his uncle, and he told Plunke tt that he would give him money for gas if Plunkett drove him to the home of his uncle. Plunkett stated that he drove Hughes, along with Penny, to Mike Hu ghes’ home. Upon arri val, Plunkett testified that Hughes told him and Penny to stay in the car, and he carried a box containing the Play

Station inside. After a few minutes, Plunkett testified that Hughes came to the door and waived him and Penny inside. Plunkett testified that he did not receive any money from the sale of the items, and that Hughes put ten do llars worth of gas in his car. Plunkett stated that he did not know that the Play Station 3 a nd the games were stole n, and he denied that6 Mike Hughes was told that the Play St ation belonged to Penny’s cousin. {¶ 12} Grubb testified that Hughes is the father of her children, and that Plunkett is

one of her best friends. She st ated that on the date of the in cident, she got off work at 2:00 p.m., and that she, Hughes, Plunkett and Penny drove around and then headed to the mud bogs in Sidney. She testified that they dr ove to Z’s bar at around 10:00 p.m. Grubb stated that she and Hughes were at the bar for five or ten minutes, and then they left so that she could go home and change her clothes. She te stified that she and Hu ghes left Plunkett and Penny at the bar with Edmiston. Grubb stated that Hughes then left her at her house, and he returned an hour later, after she took a show er, to pick her up. Grubb and Hughes then returned to the bar and drove Edmiston and a friend of his to the hotel in Troy, according to Grubb. Later, she stated that she and Plunke tt drove Edmiston and his friend home and then returned to the hotel to pick up the rest of the group. {¶ 13} Penny testified that Plunkett is his cousin. Penny’s testimony was consistent with Plunkett’s regarding the sequence of even ts, namely that Penny, Plunkett, Hughes and Grubb drove from Sidney to Z’s bar after r eceiving a phone call from Edmiston, in “20, 25 minutes.” Penny testified th at he and Plunkett were with Edmiston the remainder of the evening, and that Hughes and Grubb left so th at Grubb could take a shower, and that they later returned. Penny tes tified that the group went to the motel in Troy. {¶ 14} Penny further stated that he accompan ied Hughes, along with Plunkett, to Mike Hughes’ house so that Hughes could sell the Play Station 3 items “for his friend.” Penny stated that he did not know that the ite ms were stolen. Acco rding to Penny, he and Plunkett initially remained in the car at Mi ke Hughes’ house until Hughes waived them7 inside. Penny stated that Mike Hughes handed cash to Hughes in the driveway as the men were leaving. {¶ 15} Plunkett asserts one assignme nt of error as follows: {¶ 16} “THE TRIAL COURT ERRED IN CONVICTING APPELLANT OF

RECEIVING STOLEN PROPERTY.” {¶ 17} Plunkett asserts that his conviction was against the manifest weight of the evidence and not supported by sufficient eviden ce. According to Plunkett, he “did not receive, retain or dispose of the property at issue herein, Dustin Hughes did,” and Plunkett

had no reason to believe that th e property was stolen. Further, Plunkett asserts, the State did not meet its burden of proving that the property was valued at more than $500.00. {¶ 18} “When an appellate court analyzes a c onviction under the manifest weight of the evidence standard it must review the entire record, weigh all of the evidence and all the reasonable inferences, consider the credibility of the witnesses and determine whether in resolving conflicts in the evidence, the fact finder clearly lost its way and created such a manifest miscarriage of justice th at the conviction must be reve rsed and a new trial ordered. (Internal citations omitted). Only in exceptional cases, where the evidence ‘weighs heavily against the conviction,’ should an appellate court overturn the trial c ourt’s judgment.” State

v. Dossett , Montgomery App. No. 20997, 2006-Ohio-3367, ¶ 32. {¶ 19} The credibility of the witnesses and the weight to be given to their testimony

are matters for the trier of facts to resolve. State v. DeHass (1997), 10 Ohio St.2d 230, 231. “Because the factfinder * * * has the opportunity to see and hear the witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a judgment is against the8 manifest weight of the evidence requires that substantial deferen ce be extended to the factfinder’s determinations of credibility. The decision whether, and to what extent, to credit the testimony of particular witnesses is within the peculiar competence of the factfinder, who has seen and heard the witness.” State v. Lawson (Aug. 22, 1997), Montgomery App. No. 16288. {¶ 20} This court will not substitute its judgment for that of the trier of facts on the issue of witness credibility unless it is patently apparent that the trier of fact lost its way in arriving at its verdict. State v. Bradley (Oct. 24, 1997), Champaign App. No. 97-CA-03. {¶ 21} “In reviewing a claim of insufficient ev idence, ‘[t]he relevant inquiry is whether, after reviewing the evidence in a light most favorable to the prosecution, any

rational trier of fact could ha ve found the essential elements of the crime proven beyond a

reasonable doubt.’ State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; see, also, State v. Thompkins (1997), 78 Ohio St.3d 380, 386, * * * .” State v. McKnight , 107 Ohio St.3d 101, 112, 2005-Ohio-6046, ¶ 70. {¶ 22} R.C. 2913.51(A) provides, “No person sha ll receive, retain, or dispose of property of another knowing or ha ving reasonable cause to believe that the property has been obtained through commission of a theft offense.” Receiving stolen property is a misdemeanor of the first degree. However, R.C. 2913.51(C) provides that if the value of the property at issue is five hundred dollars or more and is less than five thousand dollars, receiving stolen property is a felony of the fifth degree. {¶ 23} R.C. 2913.61(D)(1)-(3) set forth alternative criteria to be used in determining9 the value of property involved in a theft offens e. That section provi des in relevant part: {¶ 24} “(2) The value of personal effects a nd household goods * * * , which property is not covered under division (1) of this secti on and which retains subs tantial utility for its purpose regardless of its age or condition, is th e cost of replacing the property with new property of like kind and quality.” {¶ 25} After thoroughly reviewing the entire record, weighing all the evidence and reasonable inferences, we conc lude that the jury could r easonably conclude that Plunkett committed the offense of receiving stolen prope rty. Edmiston descri bed the items taken

from his home. He testified th at he waited for Penny and Pl unkett for two hours at Z’s bar. Edmiston communicated with Penny and Pl unkett from the bar, and they knew that Edmiston was not at home. Hughes testif ied that he drove Plunkett and Penny to Edmiston’s home, where they obtained the pr operty and later placed it in Plunkett’s car. Hughes stated that Mike Hughes gave Penny and Plunkett $260.00 for the Play Station items, which was consistent with Mike Hughes’ testimony. Hughes further stated that Plunkett showed him a diamond ring that Pl unkett stated he obtained from Edmiston’s home. The jury did not lose its way simply b ecause it chose to believe the State’s version of events, rather than the self-servi ng version of events presented by the defense. We defer to the jury’s assessment of credibility. {¶ 26} Since the evidence does not weigh heavily against conviction, and upon reviewing the evidence in a light most favorable to the State, any rational juror could have found the essential elements of receiving st olen property proven beyond a reasonable doubt, Plunkett’s conviction is not agains t the manifest weight of th e evidence, and it is supported10 by sufficient evidence. {¶ 27} Regarding Plunkett’s a ssertion that he is entitled to a reduction in the degree

of offense to a misdemeanor due to the State’ s alleged failure to prove the value of the property, we disagree. Edmis ton testified that he paid $60.00 for most of the 12-15 video games that were stolen. Additionally, the jury viewed eight games that were recovered, as well as the Play Station 3. Although the tria l court did not admit th e insurance settlement document, Edmiston testified w ithout objection that his insura nce company valued the Play Station 3 at $285.00, and that he received a pproximately $290.00 for six games, plus $29.96 for the controller. Thus, the evidence was su fficient for the jury to conclude that the value of the property was over $500.00. {¶ 28} Accordingly, Plunkett’s assigned erro r is overruled. Judgment affirmed.

. . . . . . . . . . GRADY, P.J. and WAITE, J., concur. (Hon. Cheryl L. Waite, Seventh District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio). Copies mailed to:

James D. Bennett P. J. Conboy II Hon. Robert J. Lindeman