[Cite as State v. Harden, 2021-Ohio-600.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 vs. 

CODY L. HARDEN 

 Defendant-Appellant. 

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APPEAL NO. C-190709 

TRIAL NO. C19CRB-23003 

 

 

 O P I N I O N.

 

 

Criminal Appeal From: Hamilton County Municipal Court 

 

Judgment Appealed From Is: Affirmed 

Date of Judgment Entry on Appeal: March 5, 2021 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald Springman, 

Jr., Assistant Prosecuting Attorney, for Plaintiff-Appellee, 

Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant 

Public Defender, for Defendant-Appellant. 
OHIO FIRST DISTRICT COURT OF APPEALS 

2

CROUSE, Judge.

{¶1} Defendant-appellant Cody Harden was convicted of unauthorized use 

of a motor vehicle in violation of R.C. 2913.03(A). He has appealed, arguing in one 

assignment of error that his conviction was based upon insufficient evidence and 

against the manifest weight of the evidence. We overrule the sole assignment of error 

and affirm the judgment of the trial court. 

Factual Background 

{¶2} Octavia Allen and Harden worked together. Allen testified that on 

August 28, 2019, she loaned her car to Harden to “grab lunch.” She expected him to 

return it by the end of their one-hour lunch break. Harden did not return to work 

that day. Allen called the police and filed a report. She called and texted Harden, 

with no reply. Two days later, on August 30, she received a phone call from Harden. 

She testified that he told her that he had left the car in a T-Mobile parking lot “that 

morning.” 

{¶3} Sharonville Police Officer Christopher Wilson testified that he 

investigated the police report filed by Allen. He talked with Harden over the phone 

on August 30. Wilson testified that Harden admitted that he had driven Allen’s car, 

and that he had parked it in the T-Mobile parking lot. Allen and Wilson retrieved the 

keys and car from Harden’s brother in the T-Mobile parking lot. Allen testified that 

the car was damaged, smelled like marijuana, and contained marijuana residue. 

Sufficiency of the Evidence 

{¶4} The test for determining the sufficiency of the evidence is whether 

“after viewing the probative evidence and inferences reasonably drawn therefrom in 
OHIO FIRST DISTRICT COURT OF APPEALS 

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the light most favorable to the prosecution, any rational trier of fact could have found 

all the essential elements of the offense beyond a reasonable doubt.” State v. 

MacDonald, 1st Dist. Hamilton No. C-180310, 2019-Ohio-3595, ¶ 12, quoting State 

v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). It is a question 

of law for the court to determine, the court is not to weigh the evidence. MacDonald

at ¶ 12. 

{¶5} R.C. 2913.03(A) provides, “No person shall knowingly use or operate 

an aircraft, motor vehicle, motorcycle, motorboat, or other motor-propelled vehicle 

without the consent of the owner or person authorized to give consent.” Harden 

argues that the state failed to prove that he “used” or “operated” Allen’s car. He cites 

State v. Smith, 1st Dist. Hamilton No. C-170076, 2018-Ohio-927. 

{¶6} In Smith, Lemons, the victim, gave Smith permission to move her car 

to Smith’s mother’s house, where Smith was supposed to make repairs to the car. Id.

at ¶ 4. The relationship between Lemons and Smith deteriorated, and on November 

3, 2016, Lemons revoked her permission and requested that Smith return the keys so 

that she could retrieve the vehicle. Id. at ¶ 5. Smith failed to comply, and Lemons 

filed a police report on November 10. Id. Smith then returned the car to Lemons on 

November 16 or 17. Id.

{¶7} This court found that Lemons had revoked her permission on 

November 3, and that any use of the car between November 3 and November 10 

would have been without Lemons’s consent and in violation of R.C. 2913.03. Id. at ¶ 

9. However, the court further found: 

Viewing the evidence presented in the light most favorable to the 

prosecution, the record demonstrates that Smith had kept Lemons’s 
OHIO FIRST DISTRICT COURT OF APPEALS 

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vehicle at his mother’s house from November 3 to November 10. There is 

no evidence that he operated the vehicle during this time, and there are 

no facts from which an inference can be drawn that he did. At most, the 

evidence demonstrated that Smith had possession and/or control of the 

vehicle. 

Id. 

{¶8} “The term ‘use’ is commonly defined as ‘[t]o employ for the 

accomplishment of a purpose; to avail oneself of.’ ” Id. at ¶ 10, quoting Black’s Law 

Dictionary 1776 (10th Ed.2014). “We cannot find that retaining possession of, or 

having control over, a vehicle, without more, is sufficient to constitute use.” Smith at 

¶ 11. The court held that there was insufficient evidence that Smith “used” the vehicle 

after Lemon revoked her consent and reversed Smith’s conviction for unauthorized 

use of a motor vehicle. Id. at ¶ 2. 

{¶9} The present case is distinguishable from Smith. Between November 3 

and November 10, the car sat in Smith’s mother’s garage. There was no evidence 

that he used the car during that time. 

{¶10} Here, Allen gave Harden permission to use the vehicle, but only to 

“grab lunch.” Allen testified that Harden told her that he had left the car in a TMobile parking lot on the morning of August 30. Wilson testified that on August 30, 

Harden told him that he parked the car at T-Mobile, that he still had the keys, and 

that he would give the keys to his brother who would meet Allen at T-Mobile. 

{¶11} The state presented sufficient evidence that Harden used the car after 

his permission to do so had terminated. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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Manifest Weight of the Evidence 

{¶12} In reviewing a claim that a conviction is against the manifest weight of 

the evidence, “we review the record, weigh the evidence and all reasonable 

inferences, consider the credibility of the witnesses, and determine whether the trier 

of fact, in resolving conflicts in the evidence, ‘clearly lost its way and created such a 

manifest miscarriage of justice that the conviction must be overturned.’ ” Martin 20 

Ohio App.3d at 175, 485 N.E.2d 717. Reversal of a conviction and a grant of a new 

trial should only be done in “exceptional cases in which the evidence weighs heavily 

against the conviction.” Id. “The trier of fact is in the best position to judge the 

credibility of the witnesses and the weight to be given to the evidence presented.” 

State v. Carson, 1st Dist. Hamilton No. C-180336, 2019-Ohio-4550, ¶ 16. 

{¶13} Harden did not testify or rebut the state’s evidence. There is nothing 

indicating that the trier of fact clearly lost its way and created a manifest miscarriage 

of justice. 

Conclusion 

{¶14} The sole assignment of error is overruled and the judgment of the trial 

court is affirmed. 

Judgment affirmed. 

BERGERON, P.J., and WINKLER, J., concur. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.