COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60196 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : REGINALD BARNES : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MARCH 26, 1992 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CR-239087 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES CUYAHOGA COUNTY PROSECUTOR JOSEPH RUSSO ASSISTANT PROSECUTING ATTORNEY THE JUSTICE CENTER 1200 ONTARIO STREET CLEVELAND, OHIO 44113 For Defendant-Appellant: RONALD C. BALBIER 400 TERMINAL TOWER 50 PUBLIC SQUARE CLEVELAND, OHIO 44113-2203 SPELLACY, J.: -2- SPELLACY, J.: On August 25, 1989, defendant-appellant Reginald Barnes ("appellant") was indicted for receiving stolen property, in violation of R.C. 2913.51, and possessing criminal tools, in violation of R.C. 2923.24. A bench trial commenced on May 30, 1990. At trial the following pertinent evidence was adduced: On March 18, 1989, Police Officer Calvin Cook discovered appellant and his co-defendant James Williams in a garage connected to a residence, located at 1204 East 85th Street in Cleveland, in the process of removing the engine from a Cadillac Seville. Officer Cook testified that the engine was attached to a hoist rented from ABC Rental. He also found a toolbox and a bag containing various tools. Officer Cook further testified that the Cadillac's steering column had been "peeled" and that the Cadillac had been "stripped". After a radio check revealed that the Cadillac had been reported stolen, Officer Cook placed appellant and Williams under arrest. Detective Jerome Oberstar, who investigated the case, testified that the owner of the Cadillac, John Story, had moved to Florida and that he had been unable to speak with him. James Price, the insurance adjuster who handled Story's claim, testified that the Cadillac was stolen from Story's residential garage, located at 13518 Cedar Road in University Heights, and that it was reported stolen on August 13, 1988. Price further testified that he settled Story's claim on -3- September 15, 1988, and that the title to the Cadillac transferred to American Select Insurance Co., on May 23, 1989. Appellant testified that Williams, who had bought the engine from an individual named "Jim Jam", had asked him to help remove the engine. Appellant went on to state that he and Williams had been about to remove the engine when Officer Cook arrived. Appellant further testified that the steering column on the Cadillac had not been peeled, but he confirmed Officer Cook's testimony that the car had been stripped. At the conclusion of the trial, the trial court found appellant guilty on both counts and sentenced him to terms of two years on each count. The trial court then suspended the execution of time and placed appellant on probation for five years. Appellant appeals and raises the following assignments of error: I. THE TRIAL COURT ERRED IN CONVICTING DEFENDANT BARNES ON THE RECEIVING STOLEN PROPERTY CHARGE, SINCE IT WAS INCUMBENT UPON THE STATE TO PROVE, AMONG OTHER THINGS, THAT THE AUTOMOBILE WHICH WAS THE SUBJECT OF THAT CHARGE WAS, IN FACT, STOLEN, AND SINCE THE ONLY "EVIDENCE" OF AN ACTUAL THEFT CONSISTED OF INADMISSIBLE HEARSAY TESTIMONY. II. THE STATE'S RELIANCE UPON THE HEARSAY STATEMENTS OF AN UNAVAILABLE--AND EFFECTIVELY UNREACHABLE--OUT-OF STATE DECLARANT AS THE EXCLUSIVE EVIDENCE OF AN ESSENTIAL ELEMENT OF THE CHARGED OFFENSE VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHT OF CONFRONTATION UNDER THE UNITED STATES AND OHIO CONSTITUTIONS. III. THE TRIAL COURT ERRED IN CONVICTING BARNES OF THE CHARGE OF POSSESSING CRIMINAL TOOLS. -4- SINCE THERE WAS NO ADMISSIBLE EVIDENCE OF THE FACT THAT THE CAR HAD BEEN STOLEN, BARNES NECESSARILY COULD NOT HAVE USED THE OTHERWISE INNOCUOUS MECHANIC'S TOOLS AT THE SCENE WITH THE "PURPOSE TO USE [THEM] CRIMINALLY". IV. THE TRIAL COURT'S ERRONEOUS ALLOWANCE OF HEARSAY TESTIMONY IN SUPPORT OF THE STATE'S CASE CONSTITUTED REVERSIBLE ERROR, AS WELL AS PLAIN ERROR, SINCE THERE WAS NO EVIDENCE OF AN UNDERLYING THEFT OTHER THAN INADMISSIBLE, OUT-OF-COURT STATEMENTS. V. THE TRIAL COURT ERRED IN CONVICTING THIS DEFENDANT SINCE THE COURT'S JUDGMENT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. I. We address appellant's first, second, and fourth assignments of error together. In these assignments of error, appellant contends that his conviction for receiving stolen property was based upon inadmissible hearsay testimony. Appellant's assignments of error lack merit. R.C. 2913.51 provides in pertinent part "[n]o 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." One of the necessary elements under R.C. 2913.51 is that the property must be obtained through the commission of a theft offense. State v. Boyce (1986), 33 Ohio App. 3d 295, 297. Appellant argues the only evidence adduced at trial estab- lishing that the Cadillac was stolen was Price's testimony and that this testimony constituted inadmissible hearsay. Specifically, he argues that Price's statements that the -5- Cadillac was stolen from Story's Garage, that the Cadillac was reported stolen, and that Price settled Story's claim constitute inadmissible hearsay. Evid. R. 801(C) defines "hearsay" as "*** a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Hearsay evidence is inadmissible unless otherwise exempted. Evid. R. 801. We agree with appellant that Price's statement that the Cadillac was stolen from Story's garage constituted hearsay. We find, however, that Price's statements that the Cadillac was reported stolen and that he settled Story's claim are not hearsay because Price had actual knowledge of this information. We further find that the admission of Price's inadmissible hearsay statement was harmless. Reviewing the record, we find that Price's admissible testimony, in conjunction with Officer Cook's testimony, clearly demonstrates that the Cadillac was stolen. See, State v. Ray (March 22, 1990), Cuyahoga App. No. 56704, unreported, page 6; State v. Tisdale (Nov. 10, 1988), Cuyahoga App. No. 54605, unreported, page 5. Accordingly, appellant's first, second, and fourth assignments of error are not well taken. II. In his third assignment of error, appellant contends he was improperly convicted of possessing criminal tools. Appellant's assignment of error lacks merit. -6- Appellant supports his contention by arguing that the tools he was using to remove the Cadillac's engine could not be considered criminal tools because no admissible evidence was adduced which demonstrates the Cadillac was stolen. As we found above, however, admissible evidence was adduced which demonstrated the Cadillac had been stolen. Accordingly, appellant's third assignment of error is not well taken. III. In his fifth assignment of error, appellant contends his conviction was against the manifest weight of the evidence. Appellant's assignment of error lacks merit. Again, appellant supports his contention by arguing that the evidence demonstrating the Cadillac was stolen consisted entirely of the inadmissible testimony of Price. As we found above, however, admissible evidence was adduced at trial which demonstrated the Cadillac had been stolen. Accordingly, appellant's fifth assignment of error is not well taken. 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. ANN MCMANAMON, P.J., and KRUPANSKY, J., CONCUR. LEO M. SPELLACY JUDGE 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. .