State v. Jennings, Unpublished Decision (12-27-2002)
Unreported Decision (2002)
Rule of Law:
For the crime of receiving stolen property, circumstantial evidence of possession, such as close proximity to stolen items, can be sufficient to sustain a conviction, and a 'money card' falls within the statutory definition of a 'credit card' for purposes of enhancing the offense to a felony.
Facts:
- On December 15, 1999, Melody Kay parked her boyfriend's unlocked car at Fluid Regulators, leaving her purse (containing a Citi Bank credit card and a Bank One money card) and a case of Miller Gold beer inside.
- Approximately five minutes later, Ms. Kay returned to her car to find her purse and the case of beer missing.
- Tammy Mapes, observing from her residence near Fluid Regulators, heard her dogs bark and saw three individuals run from the parking lot into her yard, with one alerting the others about an approaching police vehicle before they fled towards the woods.
- John Jeffrey Reed, who was walking and drinking with appellant and another unidentified individual, testified that he removed a case of beer from an unlocked car, and one of his two companions grabbed the purse, though he could not recall who took the purse.
- Officer Ryan Cueni observed appellant and two other individuals drinking Miller Gold beer in the woods, approximately six hundred feet from the Fluid Regulators parking lot.
- When officers identified themselves, appellant's two companions fled, but appellant moved approximately fifteen feet from his initial position.
- Officer Cueni discovered Ms. Kay's Citi Bank credit card and Bank One money card a few inches from appellant's feet.
- Appellant testified that he encountered Reed and another male after telling Reed he would not participate in breaking into cars, and that the two men later caught up with him, possessing a case of beer and a purse which they went through and discarded.
Procedural Posture:
- On April 21, 2000, appellant was indicted on two counts of receiving stolen property, felonies of the fifth degree, in the Lake County Court of Common Pleas.
- Appellant waived his right to be present at arraignment and entered pleas of not guilty to the charges.
- Prior to trial, the prosecution moved to call John Jeffrey Reed as a court's witness pursuant to Evid.R. 614, which the court granted over appellant's objection.
- On April 27, 2001, a jury trial commenced in the Lake County Court of Common Pleas.
- At the close of the State's case, appellant moved for acquittal pursuant to Crim. R. 29, which the trial court overruled.
- At the close of the trial, appellant again moved for acquittal pursuant to Crim. R. 29, which the trial court overruled.
- The jury returned a verdict of guilty on both counts of receiving stolen property.
- Appellant was sentenced to ninety days in the Lake County Jail by the Lake County Court of Common Pleas.
- Appellant appealed the judgment to the appellate court, raising assignments of error regarding the denial of his motion for acquittal, ineffective assistance of counsel, and the verdict being against the manifest weight of the evidence.
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Issue:
1. Does a 'money card' fall within the statutory definition of a 'credit card' under R.C. 2913.01(U), thereby enhancing a receiving stolen property offense to a felony? 2. Was there sufficient circumstantial evidence to prove beyond a reasonable doubt that the appellant received, retained, or disposed of stolen property when the items were found in the immediate vicinity of his feet, but not on his person? 3. Did trial counsel provide ineffective assistance by failing to request a limiting instruction regarding a witness's prior inconsistent statements?
Opinions:
Majority - Per Curiam
Yes, a money card falls within the statutory definition of a 'credit card' under R.C. 2913.01(U) because it constitutes a 'means of access to a customer's account for the purpose of obtaining money, property, labor, or services on credit, or for initiating an electronic fund transfer at a point-of-sale terminal, an automated teller machine, or a cash dispensing machine.' The court reasoned that money cards function similarly to credit cards, enabling electronic fund transfers, potentially allowing for withdrawals in excess of account balances due to lag times, and are often embossed with credit card logos. Yes, there was sufficient circumstantial evidence to prove beyond a reasonable doubt that the appellant received, retained, or disposed of stolen property. Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime proven. The court highlighted that appellant was seen running from the theft scene with companions, was found drinking the stolen beer, and Ms. Kay's stolen credit and money cards were discovered inches from his feet in an area within his immediate control after he had moved fifteen feet. No, trial counsel did not provide ineffective assistance by failing to request a limiting instruction. The appellant failed to demonstrate a reasonable probability that, but for counsel's alleged error, the result of the trial would have been different. The court found that despite Reed's inconsistent testimony, which a rational trier of fact would find lacking credibility, the remaining evidence against appellant was substantial, including his presence, the stolen beer, and the location of the stolen cards.
Analysis:
This case expands the interpretation of 'credit card' under Ohio law, clarifying that modern financial instruments like 'money cards' are included in the definition, which has significant implications for how theft offenses involving such cards are prosecuted and classified (e.g., as felonies). It underscores that direct physical possession is not strictly necessary to prove receiving stolen property; circumstantial evidence, such as close proximity to the items and association with those directly involved in the theft, can be sufficient. The ruling also reaffirms the high bar for proving ineffective assistance of counsel, requiring a showing that counsel's errors were not only deficient but also prejudiced the outcome of the trial to a reasonable probability.
