In re T.S.G. , 2014 Ohio 5708 ( 2014 )

[Cite as In re T.S.G., 2014-Ohio-5708.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
IN THE MATTER OF: T.S.G., : OPINION
DELINQUENT CHILD.
:
CASE NO. 2014-L-051
Criminal Appeal from the Lake County Court of Common Pleas, Juvenile Division,
Case No. 2014 DL 00061.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Appellee).
Christopher J. Boeman, 3537 North Ridge Road, Perry, OH 44081 (For Appellant).
THOMAS R. WRIGHT, J.
{¶1} This appeal is from the final dispositional order in a juvenile proceeding
before the Lake County Court of Common Pleas, Juvenile Division. Following a bench
trial, the trial court found beyond a reasonable doubt that appellant, T.S.G., was a
delinquent as a result of committing the offense of receiving stolen property, a fourth-
degree felony if committed by an adult. Appellant argues that the “true” finding is
against the manifest weight of the evidence.
{¶2} Tom and Terri Epple live in the Village of Madison, Ohio, and are the
president and vice president, respectively, of the Madison Youth Soccer League. Once
a year for over twenty-five years, the soccer league has hosted a major weekend
tournament that is attended by over 150 teams from Ohio and various adjacent states.
The tournament is played at five different locations in the village, and the teams are
bracketed according to age groups.
{¶3} In 2013, registration for the tournament was held on Friday evening,
November 1. Since each team was required to pay a registration fee, the soccer
league received over $12,000 in cash and checks over a three-hour period. These
funds were placed in four lockboxes which were returned to the Epples at the end of
the evening.
{¶4} The Epples placed the four lockboxes in their car and ultimately returned
to their home on West Main Street in Madison. Since the funds in the lockboxes had
already been counted, they decided to leave them in the car overnight. Besides the
lockboxes, Terri Epple left approximately $140 of league funds in a plastic bag inside
the vehicle’s glove compartment. She had been using those funds earlier that day to
purchase minor items needed for the tournament.
{¶5} Early the next morning, the Epples drove to one of the tournament
locations to assist in coordinating the event. However, upon their arrival, they realized
that the four lockboxes and the separate funds in the glove compartment were no
longer in the car. They further discovered that a bag of league t-shirts had been taken
from the car. After determining that the foregoing items were stolen the previous night
as the vehicle sat in their driveway, the Epples contacted the village police department,
and an investigation ensued.
{¶6} The street upon which the Epples reside, West Main, intersects with Eagle
Street a short distance from their home. Tracy Shandle lives with her son, Michael
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Zarack, at 68 Eagle Street. Despite being on a different street, the Shandle residence
is relatively close to the Epple home. During the winter months of each year, it is
possible to see the Shandle residence from the Epple’s yard, and vice versa.
{¶7} As of November 1, 2013, Michael Zarack was fifteen years old and was
attending high school. Michael had a group of friends with whom he would spend time
both at his mother’s home and in the Eagle Street neighborhood. These friends
included appellant and Trevor Coffin. On the evening of November 1, both appellant
and Trevor decided to spend the night with Michael at the Shandle home.
{¶8} Directly adjacent to the Shandle home is a four-unit apartment building.
The bottom floor of this building has an enclosed area not connected to any of the four
apartments but used by the tenants for storage. Although this “common” area has an
outside door that was latched, it was accessible to anyone, even a non-resident, once
inside the building.
{¶9} Jeremiah White and his fiancée were tenants in one of the units on the
night of the theft at the Epple residence. Prior to the incident, White’s fiancée was
friendly with Tracy Shandle and Michael Zarack. As a result, White recalled seeing
Michael and his friends “hanging out” by the door to the enclosed area.
{¶10} In the days immediately following the theft, the village police did not have
any leads. However, approximately three weeks later, White was returning Halloween
decorations to the enclosed storage area when he noticed the four lockboxes sitting in
a white garbage bag. Since White had never seen the lockboxes before, he asked the
other tenants whether they belonged to any of them. When no one claimed the
lockboxes, White instructed his fiancée to take them to the village police.
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{¶11} Upon determining that lockboxes belonged to the soccer league and that
all of the tournament registration funds had been stolen from them, the police started to
interview various individuals in the Eagle Street neighborhood, including Tracy
Shandle, Michael Zarack, appellant, and some of Michael’s other friends. At the
conclusion of the investigation in January 2014, a complaint was filed charging
appellant with six crimes relating to the theft of the soccer league property in the
Epples’ vehicle. He was charged with one count of receiving stolen property, one
count of grand theft, and four counts of safecracking. As to the count of receiving
stolen property, the complaint alleged that appellant had exercised control over the
lockboxes, and that the lockboxes contained U.S. currency and checks of a value
between $7,500 and $150,000.
{¶12} At trial, although the state presented ten witnesses, its case against
appellant was primarily based upon the testimony of Michael Zarack and Tracy
Shandle. Michael testified that, although appellant had already left his mother’s house
when he awoke on November 2, appellant came back twice to the house during that
day. The second time appellant came to the house, he was carrying four lockboxes
that were similar in color to the lockboxes taken from the Epples’ vehicle. According to
Michael, once he saw the lockboxes, he immediately asked appellant to leave his
mother’s house, and they began to argue about them. Tracy Shandle then testified
that when she heard the boys yelling at each other, she walked into the living room
and, upon seeing the lockboxes, ordered appellant to take the lockboxes and leave.
However, before appellant left, Michael got a white garbage bag from the kitchen to
assist appellant in carrying the lockboxes.
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{¶13} Another friend of Michael, Brett Harbert, testified that, while Michael was
being held in detention on a separate matter for ten days starting on November 4,
2013, he went to Tracy Shandle’s home and asked for her permission to go into
Michael’s room to retrieve a personal item he had left there. When Tracy said it was
alright, he went into the room by himself and, while looking for his item, noticed two
“black boxes” pushed inside a dresser. Brett also testified that, on another occasion
after Michael was released from detention, he again visited the Shandle home and saw
appellant and Michael counting money. Michael additionally testified that after his
release from detention, he, Brett, and appellant were sitting in a truck taking pictures of
each other on their cell phones and that appellant pulled a plastic bag from his pants
pocket containing a roll of money.
{¶14} At the close of the evidence, the trial court found that the state did not
establish beyond a reasonable doubt that appellant had committed the one count of
grand theft and the four counts of safecracking. As to the single count of receiving
stolen property, though, the trial court made a finding of “true.” After a court magistrate
held a separate sentencing hearing, the trial court issued a judgment adopting the
magistrate’s decision as to sentencing. The court ordered that appellant be
institutionalized with the Ohio Department of Youth Services for a minimum period of
six months. However, the court then suspended the foregoing order and imposed
certain conditions, including that appellant be held in the county juvenile detention
facility for ninety days.
{¶15} On appeal to this court, appellant raises one assignment of error for
review:
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{¶16} “The trial court erred to the prejudice of juvenile-appellant when it returned
a finding of “true” against the manifest weight of the evidence.”
{¶17} In challenging the “true” finding regarding the charge of receiving stolen
property, appellant first notes that, in discussing the evidence with the assistant
prosecutor during closing argument, the trial court stated that it did not find the
testimony of Tracy Shandle and Michael Zarack to be “very credible.” Building upon
this, appellant contends that if Shandle’s and Zarack’s testimony is completely
disregarded as unbelievable, there was no other evidence upon which the trial court
could predicate its ultimate “true” finding. He further argues that the trial court’s verdict
was logically inconsistent, in that if there was sufficient evidence to find that he
committed the crime of receiving stolen property, then he should have also been found
to have committed grand theft and safecracking.
{¶18} As an initial point, the trial court’s verdict on the charge of receiving stolen
property was not based upon appellant’s alleged retention of Terry Epple’s spare
money from the glove compartment or the bag of soccer league t-shirts. Instead, the
“true” finding was predicated upon his retention or possession of the four lockboxes.
As to this charge, the complaint expressly alleged that appellant “did receive, retain, or
dispose of certain property, being four (4) lockboxes containing U.S. currency and
checks, the property of another, one Terri L. Epple and/or Madison Soccer League,
* * *.” Furthermore, in stating its verdict on the record at the conclusion of the bench
trial, the trial court quoted the foregoing language from the complaint.
{¶19} Appellant’s challenge to the verdict is based upon the assumption that the
trial court had to rely upon Shandle’s or Zarack’s testimony in order to justify the “true”
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finding. Citing the trial court’s statement that both Shandle and Zarack were not
credible witnesses, he infers from this that the trial court must have rejected all aspects
of their testimony. However, other statements made by the trial court during the
parties’ closing arguments support the conclusion that the court only rejected specific
parts of their testimony. Specifically, the statements indicate that the trial court did not
believe those aspects of the testimony which was intended to show that Zarack himself
played no role in the theft.
{¶20} In addition to testifying about appellant’s two visits to his mother’s
residence on November 2, 2013, Michael Zarack also testified as to the events of the
prior evening. He stated that, after watching television with appellant and Trevor
Coffin, he went to bed at approximately 11:00 p.m. He further stated that he slept
straight through until 10:00 a.m. the next morning, and that appellant had already left
by the time he awoke. Along the same lines, Tracy Shandle also testified that, on the
night appellant and Trevor slept over, she checked on the boys twice while they were in
Michael’s bedroom. According to Tracy, when she first checked at approximately
11:00 p.m., her son was asleep, but appellant was still awake watching television.
However, when she checked the second time at 3:30 a.m., appellant was gone, but
Michael was still asleep in the bedroom.
{¶21} During closing arguments, appellant’s trial counsel noted that there were
certain discrepancies between Shandle’s testimony and Zarack’s testimony concerning
when appellant visited their home the following day. Trial counsel also noted that,
although Zarack originally testified on direct examination that appellant did not attempt
to bring the lockboxes into the home until his second visit that day, he modified his
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testimony on cross-examination by appearing to indicate that appellant brought the
lockboxes to the home on his first visit. In light of this, trial counsel asserted that the
testimony of both witnesses had to be rejected because they could not keep their
“stories” straight. In response, the trial court stated:
{¶22} “THE COURT: I think the more credible story is they saw - - he saw the
evidence, Michael saw the stolen stuff that they stole together and said, ‘Hey, get out of
here with that.’ That’s more credible to me.”
{¶23} In essence, the trial court was indicating that, while it did believe the
testimony as to appellant’s attempt to bring the four lockboxes into Shandle’s home the
next day, it did not believe the testimony of either Shandle or Zarack that Zarack never
left his room the night of the theft. In other words, the trial court concluded that
Shandle and Zarack were trying to hide Zarack’s role in the theft of the lockboxes.
However, its rejection of that aspect of the testimony did not cause the court to
discredit their entire testimony; i.e., the court still believed that both Shandle and
Zarack had seen appellant exercising control over the stolen lockboxes when he
brought them to Shandle’s residence the day after the theft.
{¶24} At another point during his closing argument, appellant’s trial counsel was
again emphasizing that, on cross-examination, Zarack appeared to indicate that
appellant brought the lockboxes with him during his first visit that day, at approximately
12:00 p.m. Trial counsel then maintained that Zarack’s version of the events was
illogical because no intelligent person would walk through the neighborhood in broad
daylight carrying the four lockboxes. In response, the trial court stated that it disagreed
with trial counsel’s argument, thereby again indicating that it found Zarack’s testimony
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credible in relation to appellant’s possession of the lockboxes.
{¶25} As noted above, the trial court did assert during the state’s closing
argument that it found Shandle’s and Zarack’s testimony to be lacking in credibility.
But that assertion must be viewed in light of the foregoing two statements made during
appellant’s closing argument. Given that the two statements indicate that the trial court
believed Shandle and/or Zarack were telling the truth as to the events of November 2,
2013, the court’s earlier assertion regarding their credibility only applied to part of their
testimony.
{¶26} As a general proposition, the assessment of witness credibility lies solely
with the trier of fact; thus, an appellate court cannot substitute its judgment for the jury
or the trial judge. State v. Teague, 11th Dist. Trumbull No. 2011-T-0012, 2012-Ohio-
983, ¶30. As part of this discretion, the trier of fact is free to believe all, part, or none of
a witness’s testimony. State v. Williams, 11th Dist. Lake No 2012-L-078, 2013-Ohio-
2040, ¶21. “The trier of fact is in the best position to evaluate inconsistencies in
testimony by observing the witness’s manner and demeanor on the witness stand –
attributes impossible to gleam through a printed record.” Id.
{¶27} Pursuant to R.C. 2913.51(A), a person has committed the offense of
receiving stolen property when he has received, retained, or disposed “of property of
another knowing or having reasonable cause to believe that the property has been
obtained through commission of a theft offense.” The evidence establishes that the
outside of the four lockboxes had stickers stating that they belonged to the Madison
Soccer League; thus, anyone retaining the lockboxes would have reasonable cause to
believe that the items had been stolen. Furthermore, the testimony of Shandle and/or
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Zarack constitutes some competent, credible evidence upon which a trier of fact could
find that appellant retained possession of all four lockboxes.
{¶28} The record also contains other circumstantial evidence supporting the trial
court’s verdict on the “receiving stolen property” charge. First, the evidence shows
that, on the evening of the theft, appellant spent the night at the Shandle residence,
which was only a short distance from the Epple home. Second, appellant did not stay
at the Shandle residence the entire night. Third, the lockboxes were in the Epples’
vehicle the entire night, making them readily accessible. Fourth, the four lockboxes
were ultimately found in a common area of an apartment building adjacent to the
Shandle residence. Fifth, the resident of the apartment building who subsequently
found the lockboxes had previously seen appellant in the building near the common
area. Sixth, a short period after the theft, a friend of both appellant and Zarack not only
saw two “black boxes” in Zarack’s bedroom, but also saw appellant and Zarack
counting a substantial amount of money in that bedroom.
{¶29} Finally, Terri Epple testified that the amount of currency and checks in the
lockboxes was greater than $7,500. Therefore, the record supports the trial court’s
“true” finding for the fourth-degree felony level of receiving stolen property.
{¶30} In addition, this court rejects appellant’s separate contention that the trial
court’s verdict was logically inconsistent. Even if it is assumed that the trial court’s
finding as to the “receiving stolen property” charge was inconsistent with the remainder
of its verdict, this is not a viable reason for reversing the “true” finding; i.e., an apparent
inconsistency in a trial judge’s verdict as to multiple criminal counts does not create an
inference of irregularity that would justify setting aside the guilty verdict. State v.
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Colopy, 5th Dist. Knox No. 2011-CA-3, 2011-Ohio-6120, ¶47. Moreover, as Shandle’s
and Zarack’s combined testimony was primarily relevant to the elements of receiving
stolen property, a finding of true as to that offense did not mandate the same finding on
the theft and the safecracking charges.
{¶31} Even though Shandle’s and Zarack’s credibility was questioned
throughout the trial, the record does not support the conclusion that the trial court erred
in finding aspects of their testimony believable. Accordingly, as the trial court’s verdict
is not against the manifest weight of the evidence, appellant’s sole assignment is
overruled.
{¶32} The judgment of the Lake County Court of Common Pleas, Juvenile
Division, is affirmed.
CYNTHIA WESTCOTT RICE, J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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