COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 60605, 60606 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION SHERMAN SHERRILLS : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 4, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case Nos. 250324 & 250862 JUDGMENT: Affirmed DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS-JONES, ESQ. JO ANNE FRENCH CUYAHOGA COUNTY PROSECUTOR 330 Standard Building BY: RONALD JAMES, ESQ. Cleveland, Ohio 44113 ASSISTANT COUNTY PROSECUTOR 1200 Ontario Street Cleveland, Ohio 44113 - 1 - DYKE, J.: Appellant was indicted in May of 1990 on one count of receiving stolen property stemming from an incident which occurred on March 14, 1990. Later that month, appellant was indicted on four other counts relating to an incident which occurred on March 2, 1990. Of those four counts appellant was convicted of two, attempted theft of a motor vehicle and possession of criminal tools. Appellant was also convicted of the charge contained in the first indictment, receiving stolen property, in the same trial proceeding, July of 1990. Appellant received sentences of one and a half years for each of the convictions of attempted theft of a motor vehicle and possession of criminal tools and a sentence of two years for the receiving stolen property conviction. Each of the terms are to run consecutively to one another. On March 2, 1990, detectives from the Cleveland Police Department were setting up a surveillance of the area known as The Flats. The detectives were part of a unit designed to prevent auto theft. The detectives were using two cars on the ground and one officer in a lookout perch under the Main Avenue Bridge. They kept in constant contact with one another through radio communication. On this particular evening the detectives noticed a maroon Pontiac driving slowly through the area, passing up available parking spaces and slowing down near late model General Motors cars. This behavior was suspicious so the - 2 - detectives followed the car. At one point the Pontiac stopped and appellant got out of the passenger side. He approached a Chevrolet Camaro, tried both door handles, rocked the car to detect whether it had an alarm, then took a long bladed screwdriver out of his sweatshirt and crouched down beside the passenger door. Several pedestrians interrupted him, so appellant returned to the Pontiac which had been waiting. The two men then drove on. The detectives radioed ahead to the other ground car and the Pontiac was intercepted. The two men were arrested and several screwdrivers with bent tips were recovered from their car. The Camaro was inspected and found to have small scratch marks around the lock on the passenger's side. Twelve days later several of the officers who participated in that arrest were car pooling to work on the Innerbelt. Traffic was backed up and the driver noticed a Buick station wagon approaching them from the rear at a high rate of speed. They heard a screech behind them and saw the car go around them on the berm. Several of the police officers noticed at the same time that the driver of the car was Antonio Delgado, the man arrested with appellant for the attempted auto theft. The police officers followed the station wagon off the highway. Both cars stopped at a red light at East 30th Street, the police officers' car to the right of the Buick station wagon. The police noticed that the passenger door of the station wagon had a hole punched in it, indicative of its having been broken into and stolen. - 3 - Appellant was the passenger in the station wagon and looked over to see three police officers staring at him from the next car. He shoved Delgado, the driver, in the shoulder and they took off through the red light and down Superior at a rate of speed estimated by the police officers at approximately 80 miles per hour. The police did not choose to engage in a high speed chase in a personal vehicle without lights or a siren, so they returned to the station. At the station they ran a computer check on the station wagon. It had been reported stolen the day before. The detectives knew where Delgado and appellant lived from previous encounters with them. They drove around the neighborhood and found the station wagon two blocks from Delgado's house. The police lab personnel dusted the station wagon for prints and found two that matched the appellant. The police also recovered a sweatshirt from the vehicle which looked identical to the sweatshirt appellant was wearing the night of the attempted auto theft in The Flats, several audio tapes and a pair of sunglasses. Delgado identified the items at trial as belonging to him. Delgado and appellant both testified at trial, against the advice of their respective attorneys. The testimony of these two men was quite different from the facts as related by the police. Appellant claimed that he and Delgado went to The Flats with two women with the idea of having a good time. They dropped the women off at a disco and were looking for a parking space when - 4 - the police jumped them. The police brutally struck them and made racist comments before arresting them. One of the young women testified to coming out of the disco to see what was taking the men so long to park the car. She indicated that the police removed something from the trunk of the Pontiac driven by Delgado. Delgado testified that he kept his toolbox full of tools in his trunk. Appellant also testified that there were no screwdrivers in the interior of the Pontiac. Upon inventory of the car's contents at the impound lot, no toolbox was found. Nor was appellant exactly dressed up for an evening in The Flats in the company of women. He wore a gray hooded sweatshirt with jeans and tennis shoes. Appellant testified that he had taken $70 - $80 with him that evening but had no money on him when he was booked. Delgado had $16 in his pocket but the record did not indicate what he was wearing that evening. Appellant admits that he was a passenger in the Buick station wagon twelve days later. However, he says that the driver was not Delgado. Appellant claimed that he had just accepted a ride from this other man named "Nukie" who was Hispanic like Delgado. Appellant's testimony is that he didn't know that the car was stolen. He had not noticed the hole in the passenger door. Appellant makes two assignments of error. I - 5 - THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR SEVERANCE BASED ON MISJOINDER AND MOTION FOR SEVERANCE BASED ON PREJUDICIAL JOINDER. Appellant argues that the trial court abused its discretion in allowing the two indictments stemming from the two separate incidents to be tried together. Appellant argues that even if Crim. R. 8(A) allows it, he was prejudiced by being tried for the two offenses in the same trial. Crim. R. 14 requires the court to grant a motion for severance once prejudice to the defendant is shown. The Ohio Supreme Court has outlined the law with respect to joinder of offenses in a recent case, State v. Franklin (1991), 62 Ohio St. 3d 118, 122: The law favors joining multiple criminal offenses in a single trial under Crim. R. 8(A). State v. Lott (1990), 51 Ohio St. 3d 160, 163 ... Two or more offenses can be joined if they are of the same or similar character. State v. Torres (1981), 66 Ohio St. 2d 340, 343 ... An accused may move to sever under Crim. R. 14 if he can establish prejudice to his rights. State v. Lott, 51 Ohio St. 3d at 163 ...; State v. Wiles (1991), 59 Ohio St. 3d 71, 76 ... For the appellate court to reverse a trial court ruling that denies severance, the accused must show that the trial court abused its discretion. State v. Lott, 51 Ohio St. 3d at 163 ...; State v. Torres, supra, at syllabus. The prosecutor may counter the claim of prejudice in two ways. State v. Lott, 51 Ohio St. 3d at 163 ... The first is the "other - 6 - acts" test, where the state can argue that it could have introduced evidence of one offense in the trial of the other, severed offense under the "other acts" portion of Evid.R. 404(B). ... The second is the "joinder" test, where the state is merely required to show that evidence of each of the crimes joined at trial is simple and direct. State v. Lott, supra; State v. Roberts (1980), 62 Ohio St. 2d 170, 175 ...; State v. Torres, 66 Ohio St. 2d at 343-344 ... If the state can meet the joinder test, it need not meet the stricter "other acts" test. Thus, an accused is not prejudiced by joinder when simple and direct evidence exists, regardless of the admissibility of evidence of other crimes under Evid.R. 404(B). State v. Lott, supra; State v. Roberts, supra; State v. Torres, supra. In this case joinder was proper under Crim.R. 8(A). The two incidents were of the same or similar character. Both involved the same two defendants. Both incidents involved the same police officers. Both charges related to the theft of vehicles. Any evidence of prejudice to appellant is negated by the "joinder" test. The evidence in this case was simple and direct as to both incidents. The evidence consisted primarily of the police officers' testimony of what they had witnessed in The Flats and on the Innerbelt. Fingerprints and items found in the stolen vehicle and Delgado's Pontiac made up the remaining evidence linking appellant to the crimes charged. Because appellant chose to testify over his counsel's advice it is difficult to imagine how he has been prejudiced in the - 7 - conviction on one charge by evidence of the other charges. By testifying the appellant rendered his credibility vulnerable to attack. Because appellant has been convicted eleven times previously, the jury does not need to use the evidence that he might have attempted to steal a car twelve days before being seen as a passenger in a stolen car, to conclude that appellant is a career criminal and probably committed both offenses, if he was guilty of either. Appellant's choice to testify was far more prejudicial than allowing evidence of both incidents before the jury. This court also finds that reasonable jurors could have found appellant guilty of both offenses even if each incident had been considered in a separate trial. Evidence exists as to all the elements of the crimes charged such that he could have been found guilty of one offense without the evidence of the other offense. We find that the trial court did not abuse its discretion in denying appellant's motion for severance of the offenses. Appellant's first assignment of error is overruled. II THE VERDICT OF GUILTY OF RECEIVING STOLEN PROPERTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues that the guilty verdict was based on circumstantial evidence that appellant knew or had reason to believe that the car he was riding in was stolen. For a verdict based upon circumstantial evidence to stand, appellant argues, - 8 - reasonable minds must find that appellant's theory of innocence was excluded because the circumstantial evidence was consistent only with guilt. The circumstantial evidence that he knew the car was stolen existed in the fact that a hole was punched in the passenger door lock and that he alerted the driver when he noticed the car full of police next to them at the stop light. Under an assignment of error asserting that the verdict is against the manifest weight of the evidence: 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. State v. Martin (1983), 20 Ohio App. 3d 172, at paragraph 3 of the syllabus. R.C. 2913.51(A) defines the crime of receiving stolen property. It requires that appellant did "receive, retain or dispose" of the Buick station wagon, "knowing or having reasonable cause to believe that it had been obtained through a theft offense." Evidence exists from which reasonable minds could conclude that appellant had reasonable cause to believe the station wagon - 9 - was stolen. He entered from the passenger side where a hole was punched in the lock. Because he has a record containing a conviction for receiving stolen property, a motor vehicle, appellant should be aware of the implications of a hole in the lock of a car door based on this previous experience. However, no evidence exists to support the first element of the crime charged. When asked if appellant was seen operating the car, one of the detectives at trial indicated that Delgado had been driving. (transcript p. 120) When asked if appellant had been seen disposing of the vehicle, the answer was no. (tr. p. 120) When asked, "Did you ever see Mr. Sherrills steal that car, receive that car, or in any way exert any control over that car except being a simple passenger?" the answer was, "Well, I saw him inside the car." (tr. p. 120) This is clearly not enough to convict appellant of receiving stolen property under appellant's manifest weight theory. See, State v. Boyce (1986), 33 Ohio App. 3d 295, out of this court; and, State v. Jackson (1984), 20 Ohio App. 3d 240. The parties to this appeal neglected to acknowledge that appellant was most likely not convicted because he received, retained or disposed of that station wagon. One can be indicted and convicted as a principal for aiding and abetting the crime. The jury was instructed by the court on the elements of aiding and abetting at the end of instructions on all the indicted offenses. - 10 - To aid and abet is defined in State v. Sims (1983), 10 Ohio App. 3d 56, 58, "To aid is to assist. To abet is to incite or encourage. Mere association with the principal is not enough." citing, State v. Clifton (1972), 32 Ohio App. 2d 284. In State v. Sims the defendant accepted a ride from someone at a bar. He was in the car for half of a minute when the police arrested him and the driver. Defendant claimed that he didn't know the car was stolen and didn't notice the damage to the steering column. This court held, "There was no evidence that appellant assisted or encouraged Sanders, the driver of the stolen automobile, in his retention of the automobile." State v. Sims, at 59. This court relied on its prior holding in Sims to reverse a conviction for receiving stolen property in another case. In State v. Tuttle (July 2, 1987) Cuyahoga Co. App. No. 52237, unreported, the court held, "there was no evidence that the appellant assisted, counselled or encouraged Crystal Ray, the driver of the automobile, in her retention of the stolen vehicle. ... According to Officer Robertson's testimony, the appellant was a mere passenger in the car and the keys to the car were found on the female and not the appellant." State v. Tuttle, at 10. The case at issue here is distinguishable from the two cases cited above. In this case, appellant aided Delgado in his retention of the stolen station wagon by notifying him that they - 11 - were next to a car containing three police officers who were apparently interested in them. The case at hand is similar to State v. Tisdel (January 30, 1992), Cuyahoga Co. App. No. 59805, unreported. In Tisdel the appellant was the passenger in a car which had been stolen one and a half to two hours prior to his being a passenger in it. The car had apparently run out of gas and the appellant was carrying a gas can as he left the car. The driver was a female. When the car was stolen, a male and female were seen driving away with it, the female in the passenger's seat. The court states in Tisdel, "In Sims and Tuttle, the presence of the defendants in the stolen vehicles was merely incidental; Sims was taking a ride home from a bar and Tuttle was hitchhiking. In this case, there was evidence to reveal that the appellant knew or should have known that the vehicle was stolen." Tisdel, at 6. The jury, given the court's instructions on aiding and abetting, had enough evidence before it that a guilty verdict for receiving stolen property is well supported. The jury did not clearly lose its way nor did a manifest miscarriage of justice take place in this case. The appellant's second assignment of error is overruled. The jury's verdict is affirmed. - 12 - 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. JAMES D. SWEENEY, J., AND HARPER, J., CONCUR. PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .