COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72227 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION BRYANT CHAPPELL : : Defendant-appellant : : : FEBRUARY 19, 1998 DATE OF ANNOUNCEMENT : OF DECISION : : CHARACTER OF PROCEEDINGS : Criminal appeal from : Court of Common Pleas : Case No. CR-344319 : JUDGMENT : AFFIRMED IN PART AND REVERSED IN PART DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: WILLIAM B. VODREY, ESQ. JAMES P. MCGOWAN, ESQ. Assistant County Prosecutor 11510 Buckeye Road 8th Floor, Justice Center Cleveland, OH 44104 1200 Ontario Street Cleveland, OH 44113 PATTON, J. Defendant-appellant Bryant Chappell was convicted in a jury trial of three counts of receiving stolen property in violation of -2- R.C. 2913.51. Defendant was sentenced to a term of six months in jail on counts one and two, to be served consecutively, and six months on count 3 to be served concurrently with counts one and two. At trial, Gregory King, a detective for the Cleveland Police Department, testified that he was at home early in the morning on August 17, 1996 making his daughter breakfast when he went upstairs and noticed a window screen out in his bedroom. King immediately went down stairs and removed his daughter from the house. Upon returning he discovered someone had broken in and stolen jewelry and his service revolver. King stated the value of the stolen jewelry was almost $16,000. A few days later, King received a call from the East Cleveland Police Department informing him some of his jewelry had been recovered. King testified he went to the police station and claimed the jewelry, which was less than a quarter of the total amount stolen. The next witness to testify was Deborah Bowling. She stated she arrived home from work on August 17, 1996 and saw that her front window was open. Bowling entered her home and discovered someone had stolen her VCR, a video game machine, and a gold chain. She testified the East Cleveland Police later recovered her VCR but not her gold chain. After Bowling testified, the state called a hotel clerk to testify. The clerk stated the police came to his hotel on August 17, 1996 with a description of a man. The clerk told the police a man fitting the description had rented a room. The police went up -3- to the room and returned telling the clerk the man was not there but if he returned to call them. The clerk stated the man returned later that day, so he called the police who came and arrested the man. The clerk stated he entered the room at the time of the arrest and saw a lot of stuff on the floor which did not belong to the hotel, including a VCR and some radios. Both an East Cleveland police officer and detective testified. The officer stated he received a phone call from a hotel clerk who stated a man described to him earlier by other officers as a suspect had returned to the hotel. The officer and several other policemen returned to the hotel and arrested the suspect; i.e. defendant, who they found hiding under the bed. While in the room the officer found several pieces of jewelry and some VCRs. The detective then testified that several of the items found in defendant's room were later reclaimed by their rightful owners: Deborah Bowling, Greg King, and Greg Davis. On direct-examination the detective was presented a photograph, state's exhibit #5, depicting some of the stolen property recovered from defendant's hotel room. The officer stated all three of the property owners had been to the police station to claim their property, including Davis whose property was shown in the photograph. After hearing all the evidence, the jury returned a verdict finding defendant guilty of three counts of receiving stolen property. Defendant now appeals and submits three assignments of error. In his first assignment of error, defendant states as follows: -4- THE TRIAL COURT ERRED IN ADMITTING EVIDENCE PRESENTED BY THE STATE WITHOUT PROPER FOUNDATION AND OVER OBJECTION OF DEFENSE COUNSEL. Defendant argues the trial court erred in admitting as evidence state's exhibit #5, a photograph which shows the stolen property of Greg Davis, who did not testify at trial. Defendant claims the state failed to lay the proper foundation for the admission of the photograph by not having Davis testify at trial regarding whether the property in the photograph was stolen or not. In addition, defendant complains, there was no direct testimony regarding the photograph and as a result the state did not meet the minimal requirement of Evid.R. 1007 which allows the testimony of the actual victim *** to authenticate the contents of a photo- graph. The state counter-argues the East Cleveland Police detective's testimony properly authenticated the photograph. The state supports this argument with the fact that Davis came to the East Cleveland police station and told the detective in person the property in the photograph was his. Moreover, the state maintains the photograph was properly admitted under Evid.R. 803(6) which relates to public records and reports. Lastly, the state claims the photograph was not prejudicial to defendant because other evidence such as the testimony of the detective was enough to establish defendant's guilt. The admission of photographic evidence is left to the discretion of the trial court. State v. Awkal (1996), 76 Ohio St.3d 324, 333. A photograph is not objectionable if it is -5- properly identified, is relevant and competent, and is an accurate representation of the scene which it portrays. A proper foundation is required in which there must be testimony that the photograph is a fair and accurate representation of that which it is purported to be. See Heldman v. Uniroyal, Inc. (1977), 53 Ohio App.2d 21, 31, citing State v. Hill (1967), 12 Ohio St.2d 88, 90. At trial, the detective was shown a photograph of stolen property. The detective stated he recognized the property as that belonging to Davis. The detective described the actual property in the photograph as: a VCR, pen and pencil set that had the University Hospital logo on it, a remote control, and green tin can containing numerous different currency of change. Next, the detective stated Davis came to the East Cleveland police station and identified the property. The detective then testified he spoke with the owner regarding identification of the property and personally took the picture of the property. The detective identified the property in the photograph as Davis', the photograph was relevant because it identified reported stolen property which was later found in defendant's possession, and the detective testified the photograph accurately represented the stolen property. Based on the foregoing analysis and case law, we believe the trial court did not abuse its discretion in admitting the photograph of the stolen property as evidence. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error states as follows: -6- THE TRIAL COURT ERRED IN NOT GRANTING THE DEFENDANT'S MOTION FOR ACQUITTAL PURSUANT TO RULE 29 OF THE OHIO RULES OF CRIMINAL PROCEDURE. Defendant argues the trial court improperly denied his Crim.R. 29 motion for judgment of acquittal because the state did not meet its burden of proof regarding defendant's convictions for receiving stolen property. Defendant complains the state did not prove each and every element of receiving stolen property because the alleged stolen items were never produced in court, and the only piece of identifying evidence, the photograph, was never properly identified by the victim. In contrast, the state maintains the trial court did not err in overruling defendant's Crim.R. 29 motion for acquittal. The state claims the evidence was enough to prove each and every element of receiving stolen property. The evidence the state cites is the testimony of Greg King and Deborah Bowling, who testified their property was stolen. In addition, the state cites the testimony of the officer indicating the stolen property was found in defendant's possession in a hotel room where defendant was discovered hiding under the bed. The standard of review under Crim.R. 29 is sufficiency. State v. Lebron (1994), 97 Ohio App.3d 155, 158. A motion for judgment of acquittal will not be granted if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proven beyond a reasonable doubt. Id., quoting State v. Bridgeman (1978), 55 Ohio St.2d 261. In determining whether reasonable minds can differ, the evidence -7- must be construed most strongly in favor of the prosecution. State v. Fyffe (1990), 67 Ohio App.3d 608. Defendant was charged with three counts of receiving stolen property, which is codified in R.C. 2913.51 as follows: (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. Deborah Bowling and Gregory King testified both their homes were broken into on August 17, 1996. They stated specific items such as jewelry, VCRs, and a video game were stolen. Next, an officer from East Cleveland testified defendant was found hiding under a bed in a hotel room and in plain view in the hotel room were jewelry and VCRs. An East Cleveland detective testified Bowling, King, and Davis, came to the station and identified the property recovered from defendant's room as the property stolen from them. Construing the evidence most strongly in favor of the prosecution, we believe reasonable minds could reach different conclusions regarding whether each material element of receiving stolen property had been proven. Accordingly, defendant's second assignment of error is overruled. Defendant's third assignment of error states as follows: THE DEFENDANT'S GUILTY VERDICT ON COUNT THREE OF THE INDICTMENT IS AGAINST THE WEIGHT OF THE EVIDENCE. Defendant argues the state failed to prove its case in count three beyond a reasonable doubt. He complains the state presented -8- no victim, no direct evidence identifying the alleged stolen property, and no basis for the jury to determine that the defendant knew or had reason to know that the items were stolen. In support of this argument, defendant claims only a photograph depicting the stolen property was offered by the state, but no direct proof demonstrating ownership was offered. Further support for the state failing to prove ownership of the property was the fact that the owner of the alleged stolen property did not testify or identify the items at trial. The state claims the jury had more than enough evidence to convict defendant on each and every count. This evidence includes the testimony of the East Cleveland police officer who discovered defendant under a bed in a hotel room full of stolen merchandise, plus the testimony of the detective about his investigation and conversation with Davis relating the fact that Davis came to the police station and identified the property stolen from him. The detective's testimony also indicated Davis was the owner of the property and estimated the value of the property over $500. It is well settled law that a reviewing court will not reverse a conviction where there is substantial evidence upon which the court could reasonably conclude that all the elements of an offense have been prove beyond a reasonable doubt. State v. Seiber (1990), 56 Ohio St.3d 4, 13. The narrow question presented for review by defendant is whether the detective's testimony properly established the property in the photograph belonged to Davis or, was it necessary to have -9- Davis actually testify at trial regarding ownership of the property? On direct-examination the detective was shown State's Exhibit #5, a photograph depicting property allegedly stolen from Davis. The detective testified as follows: Q. Showing you what has been marked for the purpose of identification as State's Exhibit 5, would you please look at it closely. Do you recognize it? A. Yes, I do. Q. What is it? A. This is the property (sic) belonged to Greg Davis, Gregory Davis. Q. Who is Mr. Davis? A. Mr. Davis was another gentleman who made a report that his house was broken into. Q. Another East Cleveland native? A. Yes. Q. What property if you could describe for the jury is shown in that picture? A. A VCR, pen and pencil set that had the University Hospital Logo on it, a remote control, and green tin can containing numerous different currency of change. Q. Did you have occasion to speak to Mr. Davis? A. Yes, I did. Q. And did he come to the police station? A. Yes, he did. Q. Did he identify this property as being his? A. Yes, he did. Evid.R. 801(C) defines hearsay as a statement other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. If, however, it is shown that a statement is offered for some purpose other than to prove the truth of the matter asserted, admissibility should be governed by the standard of relevancy and prejudice. State v. Maurer (1984), 15 Ohio St.3d 239, 263. Thus, where extrajudicialstatements are offered to explain a police officer's -10- conduct while investigating a crime, rather than to prove the truth of the matter asserted therein, such statements are not hearsay. State v. Blevins (1987), 36 Ohio App.3d 147, 149. Such testimony is admissible, however, only when the officer's conduct is at issue and needs to be explained. Id. The detective testified Davis came to the station and identified the property in the photograph as belonging to Davis. This is an extrajudicial statement made other than by the declarant to prove the truth of the matter asserted; i.e., that the property in the photograph belonged to Davis. Therefore, it is hearsay and inadmissible. Moreover, the statement by the detective stating Davis said he owned the property did not concern the detective's conduct while investigating this crime. The only evidence the state presented regarding the third count of receiving stolen property was the inadmissible testimony of the detective. Without this testimony there is no evidence proving the items in the photograph were the property of another. R.C. 2913.51(A). Thus, there is not substantial evidence upon which the jury could reasonably conclude that all the elements of the offense of receiving stolen property in count three have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. Accordingly, defendant's third assignment of error is sustained and we vacate the conviction on the third count of the indictment. Judgment affirmed in part, reversed in part. -11- -12- This cause is affirmed in part and reversed in part and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellee recover of said appellant its costs herein. It is ordered that a special mandate be sent to said 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. O'DONNELL, P.J. JAMES D. SWEENEY, J., CONCUR. JUDGE JOHN T. PATTON N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .