COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59904 STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : : and -vs- : : OPINION BRIAN SINGLETON : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. 239681(B) JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones Avery H. Fromet Cuyahoga County Prosecutor 28001 Chagrin Boulevard By: Patric Mary O'Brien Cleveland, Ohio 44122 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - JOHN V. CORRIGAN, J.: Brian Singleton timely appeals his conviction for receiving stolen property (R.C. 2913.51). He raises three assignments of error: I. "The court erred in denying the defendant's motion for acquittal as there was no evidence to prove the defendant was in possession, control or exercised dominion of the vehicle, a primary element of the crime of receiving stolen property." II. "The court erred in denying the defendant's motion for acquittal as there was no evidence to prove the defendant was in complicity with another to possess, control or exercise dominion of the vehicle." III. "The court erred, and the defendant- appellant's constitutional rights were abridged, due to the court's failure to properly instruct the jury regarding the relationship between the principal crime and the complicity statute, O.R.C. section 2923.03." Upon a review of the record, we affirm. Aaron Young testified that on the evening of March 28, 1989, he visited a friend on Elderwood Avenue in Cleveland. Young parked his father's Buick Regal in front of the friends' house. Between 10:30 and 11:00 p.m, Young heard a loud noise and saw a red truck run into the Buick. According to Young, the driver backed up the truck and then hit the Buick a second time. Young told the jury four to five people were in the truck and he identified the defendant as the man who left the passenger side of the vehicle. Young recognized the driver as Johnny Mitchell. - 2 - The defendant and Mitchell ran from the area. Lynnette Lyons, Young's friend, corroborated his testimony. Jerome Johnson, a detective with the East Cleveland Police, received a number of complaints about the red truck on the evening of March 28, 1989. It was reported that the occupants of the truck were causing a disturbance on Doan Avenue; the truck's occupants were involved in a possible auto theft; they were causing a disturbance on Elderwood and Euclid Avenues; and, finally, that the truck was involved in the accident with Young's Buick on Elderwood Avenue. When police arrived at Elderwood Avenue, they found the red truck with the driver's side door lock broken and the steering column "peeled." Detective Johnson arrested the defendant and Mitchell on a nearby street. East Cleveland Police Officer James Hughey testified the defendant denied riding in the truck. Andrew Poploske, president of City Auto Supply, Inc. in East Cleveland, testified that the company owned the red truck the police found on Elderwood Avenue. According to Poploske, the vehicle was parked in the company garage on March 28, 1989 between 5:00 and 5:30 p.m. Poploske told the jury that neither the defendant nor Mitchell had permission to use the truck. In his first and second assignments of error, Singleton challenges the sufficiency of the evidence supporting his - 3 - convictions. Specifically, he argues the state failed to prove he exercised any control over the vehicle, or that he acted in complicity with Mitchell. When reviewing the sufficiency of the evidence, an appellate court must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found that each element of the offense was proven beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307; State v. Jenks (1991), 61 Ohio St. 3d 259, paragraph two of the syllabus. Further, the assessment of witness credibility lies primarily with the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230. R.C. 2913.51 prohibits receiving stolen property and provides: "(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." R.C. 2923.03 defines complicity and states, in relevant part: "(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following: "*** "(2) Aid or abet another in committing the offense." In State v. Sims (1983), 10 Ohio App. 3d 56, 58, this court held that mere association with the principal offender is insufficient to convict a defendant as an aider or abettor. - 4 - However, evidence of aiding and abetting may be established by circumstantial evidence. State v. Stoutmire (December 31, 1987), Cuyahoga App. No. 53256, unreported at 5. Furthermore, "[P]articipation in criminal intent may be inferred from presence, companionship and conduct before and after the offense is committed." State v. Pruett (1971), 28 Ohio App. 2d 29, 34. The defendant argues he was merely a passenger in the truck and, thus, he cannot be convicted for receiving stolen property. The record demonstrates the truck was stolen sometime after 5:00 p.m. on March 28, 1989. During the course of the evening police received calls about disturbances at various locations involving the occupants of the red truck with the final complaint informing police of the incident with Young's Buick on Elderwood Avenue. After the driver of the truck hit the Buick for the second time, the defendant fled from the scene with the driver. In light of the record, we find sufficient evidence for a jury to conclude that the defendant acted with Mitchell in receiving, retaining and disposing of the truck. See R.C. 2913.51(A). The state was not required to prove that the defendant drove the stolen vehicle. See State v. Trammell (February 4, 1988), Cuyahoga App. No. 53839, unreported at 3. Finally, there was sufficient evidence presented that the defendant had reasonable cause to believe the vehicle was stolen. The truck's steering column was "peeled" and the door lock was broken. - 5 - Accordingly, we overrule the defendant's first and second assignments of error. In his third assignment of error the defendant asserts the court erred by not adequately charging the jury on the relationship between aiding and abetting and acting as a principal. The court gave the following jury charge: "Now, what is an aider and abettor? If you find that the defendant knowingly and purposely aided, helped, assisted, encouraged, directed, [sic] or directed another for the purpose of committing a crime, he is regarded as if he were the principal offender and is just as guilty as if he personally performed every act constituting the offense. "When two or more persons have a common purpose to commit a crime and one does one part and a second performs another, those acting together are equally guilty of the crime. "Now, mere presence at the scene of a crime, of an alleged crime does not in itself constitute aiding and abetting. "The defendant is charged in the indictment with receiving stolen property in violation of Revised Code 2913.51. Before you can find the defendant guilty you must find beyond a reasonable doubt that on or about the 28th day of March 1989, and in Cuyahoga County, Ohio, the defendant did purposely receive, retain or dispose of a 1986 GMC pick-up truck, the property of City Auto Parts, knowing or having reasonable cause to believe that it had been obtained through the commission of a theft offense." (Tr. 82-83). The court then defined each of the elements of receiving stolen - 6 - property and charged the jury that the state has the burden of proving the defendant's guilt beyond a reasonable doubt. Viewing the jury instructions in their totality, we find the court properly charged the jury on the elements of the crime and the definition of aiding and abetting. State v. Price (1979), 60 Ohio St. 2d 136. Thus, we reject the defendant's argument and overrule the assignment of error. The judgment of the trial court is affirmed. Judgment affirmed. - 7 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, P.J., SPELLACY, J., CONCUR. JUDGE *JOHN V. CORRIGAN (*Sitting by Assignment: Judge John V. Corrigan, retired from the Eighth District Court of Appeals). N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .