COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60665 IN THE MATTER OF: : : TONYA WILLIAMS, A MINOR : : Appellant : : JOURNAL ENTRY : AND : OPINION : : DATE OF ANNOUNCEMENT : OF DECISION : AUGUST 6, 1992 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas Juvenile Court Division : Case No. 9006040 JUDGMENT : REVERSED DATE OF JOURNALIZATION : APPEARANCES: For appellee: For appellant: STEPHANIE TUBBS-JONES HYMAN FRIEDMAN CUYAHOGA COUNTY PROSECUTOR CUYAHOGA COUNTY PUBLIC DEFENDER GARY DeROCCO, ASST. JOHN F. GREENE, ASST. Justice Center - 8th Floor Marion Building, Room 307 1200 Ontario Street 1276 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 - 2 - J.F. CORRIGAN, P.J., The appellant challenges the order of the Juvenile Court which adjudged her to be delinquent for receiving stolen property in violation of R.C. 2913.51. For the reasons set forth below, we reverse and vacate that adjudication. I. On May 10, 1990, the Juvenile Court issued a delinquency complaint which charged appellant with receiving a stolen motor vehicle. The matter was heard on August 6, 1990, and commenced with a stipulation that the vehicle was stolen. It was further agreed that the vehicle did not have a peeled column, punched locks or other overt manifestations of being stolen. In order to establish the charge, the prosecuting attorney presented the testimony of Cleveland Police Sgt. Anthony Vana and Patrolman Dean Rowley. Vana testified that on April 7, 1990 at approximately 9:00 p.m., he was patrolling in the area of E. 55th Street and Chester Avenue and observed a late model Chevrolet van stopped or parked on a side street. He further observed appellant, the front seat passenger, point. The driver then "snapped his head," immediately attempted to put the car in motion, then rapidly pulled out into traffic. Vana followed the van, radioed its license plate to a police dispatcher, and learned that it had been stolen. He continued to follow the van as it turned into a driveway on Hough Avenue and arrested the occupants as they began to rapidly exit the vehicle. - 3 - Rowley testified that he arrived at the Hough Avenue address in response to a call from Vana. Each of the occupants were in the van, and appellant was seated in the front passenger seat. Appellant rested following presentation of the state's case, and the trial court subsequently adjudged her to be delinquent. II. For her first assignment of error, appellant asserts that evidence supporting the adjudication of delinquency is insufficient as a matter of law. An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Jenks (1990), 61 Ohio St. 3d 259, paragraph two of the syllabus. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Id. In this case, the state suggested that appellant was delinquent for receiving stolen property because she aided and abetted the driver. The leading case regarding a passenger's culpability in aiding and abetting in receiving a stolen motor vehicle is State v. Sims (1983), 10 Ohio App. 3d 56. In Sims, this court stated: - 4 - "To aid is to assist. To abet is to incite or encourage. Mere association with the principal is not enough State v. Clifton (1972), 32 Ohio App. 2d 284 [61 O.O. 2d 348]. *** "*** "Ohio courts of appeals have previously held that, to constitute aiding and abetting, the accused must have taken a role in causing the commission of the offense. In State v. Starr (1970), 24 Ohio App. 56, 58 [53 O.O. 2d 167], the Hamilton County Court of Appeals held: "'*** Before one can be convicted as an aider or abettor it must be proven beyond a reasonable doubt that he advised, hired, incited, commanded, or counselled the principal to do the act. ***' "*** "There was no evidence that appellant assisted or encouraged Sanders, the driver of the stolen automobile, in his retention of the automobile, license plate, or screwdriver, or that he had a legal duty to object. The only evidence adduced indicated that appellant was 'associated' with Sanders, in that he was a passenger in the car with Sanders for about thirty seconds then he and his women companions were ordered out of the car by police. ****." Id., at 58-59. In State v. Tuttle (July 2, 1987), Cuyahoga App. 52237, unreported, this court again considered the culpability of an automobile passenger for receiving a stolen automobile. The court stated: "Likewise, in the instant case, there was no evidence that the appellant assisted, counselled or encouraged Crystal Ray, the driver of the automobile, in her retention of - 5 - the stolen vehicle. Officer Robertson testified that on February 15, 1986, he observed a female pulling the stolen vehicle into a store parking lot. He reported that he apprehended the appellant and the driver after they exited the car. 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. "Sergeant McMillin testified that the appellant told him that he was hitchhiking and that he had no knowledge of the theft of the car. Crystal Ray told Sgt. McMillin that she purchased the car from a man who was not the appellant. "As previously indicated, there was no evidence that the appellant aided and abetted Crystal Ray." In this case, we find insufficient evidence to establish that appellant assisted, counseled or encouraged the driver's retention of the stolen auto. The state's evidence, when viewed most favorably to the prosecution, established merely that appellant pointed, and the driver then "snapped his head" and attempted to put the van in motion. There is no basis in the record for concluding, however, that appellant pointed at the police car. There is therefore no basis for concluding that she apprised the driver of its presence, and thereby assisted the driver in his retention of the car. Accordingly, this assignment of error is overruled. III. Appellant next asserts that the delinquency adjudication is against the manifest weight of the evidence. - 6 - In considering a claim that a conviction is against the manifest weight of the evidence, an appellate court weighs the evidence, and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflict 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. State v. Martin (1983), 20 Ohio App. 3d 172, 175. In this case, the state's evidence was unrebutted, consistent, and thorough. However, as noted previously, it was insufficient as a matter of law to establish that appellant was delinquent. The judgment reversed and the adjudication is vacated. - 7 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee her costs herein taxed. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN McMANAMON, J., and PATTON, J., CONCUR. JOHN F. CORRIGAN PRESIDING 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. .