COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60430 STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : : and -vs- : : OPINION DAVID EVANS : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT MAY 21, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. 252580 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones Joel H. Feld Cuyahoga County Prosecutor 5171 Mayfield Road By: Timothy Miller Lyndhurst, Ohio 44124 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - ANN McMANAMON, J.: David Evans timely appeals his conviction for receiving stolen property with a violence specification after a jury trial. He raises two assignments of error challenging the sufficiency and weight of the evidence. Upon review, we affirm. James Jackson testified for the prosecution that, on April 25, 1990, his 1983 Dodge Ram truck was stolen from him at gunpoint. He reported the vehicle stolen and filled out a police report. Four days later, Officer Michael Demchak of the Cleveland Police Department was on patrol in the Carver Park Estates when he observed a Dodge pickup parked on the street, unoccupied, with the engine running. Suspicious of the unattended vehicle, Demchak checked the vehicle's license number and discovered it was stolen. While Officer Demchak had the vehicle under surveillance, he observed a man and woman enter it. The officer followed the truck as it drove away, awaiting confirmation that it was stolen as well as additional backup units. The truck "abruptly" pulled over to the curb and the man driving it "got out of the truck right away." The woman stayed inside. Demchak ordered the man to stop and placed him under arrest. The driver identified himself as Edward Jaegers and told the police a person named "Frank" paid him fifteen dollars to use his - 2 - truck and dump garbage for him. The driver described "Frank" and told police the area in which he lived. Officer Demchak knew of a Frank Thompson who lived in that neighborhood whom he had previously arrested. The police later interviewed Frank Thompson, but did not arrest him. Frank Thompson took the stand and told the court the man who identified himself as Edward Jaegers was, in fact, David Evans a person with whom he was acquainted. Thompson said he had observed Evans days earlier with the pickup truck, and at that time, Evans told Thompson the truck belonged to his "boss." Detective Edward Prinz of the Scientific Investigation Unit testified fingerprints were taken from the pickup. They did not match those of Frank Thompson but were identified as those of David Evans. Detective Lawrence Craft also averred that the man who initially represented himself as Edward Jaegers later admitted he was David Evans. In his first and second assignments of error, Evans challenges the weight and sufficiency of the evidence. We will address these arguments concurrently. A challenge to the sufficiency of the evidence requires us to view the record in a light most favorable to the prosecution and determine whether rational minds could have found each - 3 - material element of an offense was proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St. 3d 259; Jackson v. Virginia (1979), 433 U.S. 307. Our review of a challenge to the manifest weight of the evidence is broader. State v. Martin (1983), 20 Ohio App. 3d 172. As the Martin court stated: "The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Id. at 75. (Citations omitted.) We are mindful that evaluation of witness credibility primarily lies with the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230. Evans was convicted under R.C. 2913.51 which provides in part: "(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. "(B) Whoever violates this section is guilty of receiving stolen property. "*** "If the property involved is a motor vehicle, as defined in section 4501.01 of the Revised Code, if the value of the property involved is five thousand dollars or more and is less than one hundred thousand dollars, or if the offender previously has been convicted of two or more theft offenses, receiving stolen property is a felony of the third degree." - 4 - It is well established that a defendant's unexplained possession of recently stolen property may give rise to a permissive inference that the defendant is guilty of a theft offense. State v. McAllister (1977), 53 Ohio App. 2d 176, 180; State v. Coker (1984), 15 Ohio App. 3d 97. Moreover, since the intent of an accused person is only in his mind and is not ascertainable by another, it cannot be proved by direct testimony of another person but must be determined from the surrounding facts and circumstances. State v. Flowers (1984), 16 Ohio App. 3d 313, 314 citing State v. Huffman (1936), 131 Ohio St. 27. Finally, "[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. Upon review of the record, we find there was sufficient evidence presented on each element to warrant defendant's conviction for receiving stolen property. Evans was seen operating a stolen vehicle four days after it was reported missing. Officer Demchak testified he followed Evans in the pickup and observed him "glancing in his mirror *** checking to see what we were doing" and appearing "extremely nervous." Evans abruptly pulled over to the curb and quickly got out of the truck and started walking away. Furthermore, Evans gave a fictitious name to the police and only admitted his real identity when confronted with the results of fingerprint tests. Those tests revealed his prints were on the vehicle, while Frank Thompson's were not. - 5 - These surrounding circumstances, coupled with Evans' conduct before and after his arrest, tend to show that he knew or had reasonable cause to believe the pickup was stolen. We find sufficient evidence was presented to justify the jury's verdict. Evans also argues the verdict is against the manifest weight of the evidence since: 1) his conduct was consistent with that of an innocent man; 2) there were no obvious signs that the vehicle had recently been stolen; and 3) he offered a plausible explanation for his operating the pickup. As noted previously, Evans's actions before and after his arrest indicate he knew or had reasonable cause to believe the pickup was stolen. Although there were no patent signs that the truck had recently been stolen, e.g. peeled steering column, or broken windows, the fact that Evans actively concealed his identity tends to show his culpability. Finally, we note the jury was free to believe or disbelieve Evans's explanation that he was paid fifteen dollars to dump debris with the truck. In light of the underlying circumstances, we cannot conclude the jury "clearly lost its way" in finding him guilty. Accordingly, the first and second assignments of error are overruled and the judgment of the trial court is affirmed. Judgment affirmed. - 6 - 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. DYKE, P.J. JOHN F. CORRIGAN, J., CONCUR JUDGE ANN MCMANAMON 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. .