COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78336 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION DARNEL DOBSON : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JULY 5, 2001 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-386054. JUDGMENT: CONVICTION VACATED; DEFENDANT DISCHARGED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: William D. Mason, Esq. Cuyahoga County Prosecutor Terese M. Tiburzio, Esq. Assistant County Prosecutor Justice Center - Courts Tower 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Jeffrey S. Richardson, Esq. Richardson & Schneiberg Co., L.P.A. 1419 West 9th Street, Second Floor Cleveland, OH 44113 TIMOTHY E. McMONAGLE, J.: Defendant-appellant, Darnel Dobson, appeals the judgment of the Cuyahoga County Court of Common Pleas, rendered after a bench trial, finding him guilty of receiving stolen property in violation -2- of R.C. 2913.51. Appellant contends that the trial court erred in not suppressing a statement he made while in custody. Appellant also contends that his conviction was against the manifest weight of the evidence. We reverse the judgment of the trial court and discharge the defendant. Appellant was indicted on January 19, 2000 on one count of receiving stolen property in violation of R.C. 2913.51. Appellant pled not guilty at his arraignment on February 11, 2000. Appellant subsequently waived his right to a jury trial and the trial judge conducted a bench trial on May 17, 2000. The state called three witnesses. Sandra Martin testified that she and her husband purchased a 1999 Chevy Ventura van in June 1999. According to Martin, one morning in October 1999, as she was preparing to leave for work, she carried some belongings out to the van and started the engine. Martin left the van running in the driveway by the side door of her house and went back into her house to gather her children. While she was inside, her twelve-year-old son suddenly yelled, Someone is stealing our van. Martin testified that she chased her van down the street but could not catch it. Martin testified further that she did not get a good look at the person who stole her van. According to Martin, when the van was eventually recovered and returned to her, there were scrapes all over the van, the front bumper was scratched and the rear windshield wiper was broken off. In addition, Martin testified, the van looked as if it had been partied in. There were burn marks, ashes and stains throughout -3- the van. Martin testified that between the time the van was stolen and it was returned to her, it was driven approximately one- thousand miles. Cleveland Police Officer Douglas Hunt testified that he and his partner were on routine patrol in a marked car at approximately one o'clock a.m. on October 30, 1999 when a green Chevy Ventura van drove past their car. The officers determined that the license plates on the van were listed on their hot sheet, a listing of stolen vehicles that is provided daily by the Cleveland Police Department to its officers. Hunt then confirmed through radio contact with the police department that the van was indeed stolen. The officers then followed the van to a driveway on East 154th Street, where the officers activated the lights and siren in their car. The officers arrested the driver, Mr. Montford, and appellant, who was a passenger in the front seat of the van. Hunt testified that he advised both suspects of their Miranda rights but did not question them. Hunt and his partner then took appellant and Montford to the police station for booking. Joseph Ferenec testified that he is a detective in the auto theft unit of the Cleveland Police Department. Ferenec testified that as part of his investigation of appellant's arrest, he attempted to question appellant several days after his arrest. Prior to questioning him, Ferenec read appellant his Miranda rights. Ferenec testified that he then asked appellant if he would like to speak to him. Appellant responded, No, not if you want to -4- know where I got the car from. Ferenec then terminated the interrogation. No witnesses testified for the defense. In closing argument, the state commented upon appellant's statement to Detective Ferenec as follows: In this case, the statement that he made, that the defendant Darnel Dobson made to the detective, Not if you want to know where I got the car from, is so telling. It is a complete admission. It is an admission that he knew the car was stolen and the fact that he is the one who had it. If he had gotten it from a legal source he wouldn't have any problem talking about it. *** In this case you have what is basically an admission by the defendant to the officer. No, not if you want to know where I got the car from. Do you want to talk to me about this? No, not if you want to know where I got the car from. You know, maybe he was saying no, I don't want to talk to you, but he was admitting his guilt in the same breath. After denying appellant's Rule 29 motion to dismiss, the trial court found appellant guilty of receiving stolen property. The trial judge stated: [H]is words are sinking him. If he had said No, I don't want to talk, period, that would have been great. But he said, No, not if you want to know where I got the car, which tells me he was in possession of the car. The trial court sentenced appellant to two years of community- control sanctions and also ordered appellant to obtain and maintain full-time employment, obtain his GED and make restitution to the victim for any damage done to the van. -5- Appellant timely appealed, raising two assignments of error for our review. Appellant's first assignment of error states: I. DEFENDANT'S DUE PROCESS RIGHTS WERE VIOLATED WHEN THE PROSECUTION SUBMITTED EVIDENCE OF THE DEFENDANT'S INVOCATION OF HIS RIGHT TO SILENCE AND EMPHASIZED THAT INVOCATION IN CLOSING ARGUMENT. THIS VIOLATED DEFENDANT'S RIGHTS AS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS UNDER THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 2, 10 AND 16 OF THE OHIO CONSTITUTION. In his first assignment of error, appellant asserts that the trial court erred in admitting his statement, No, not if you want to know where I got the car from, into evidence because admission of the statement violated his right against compelled self- incrimination. The state contends that appellant waived any error with respect to admission of his statement. Crim.R. 12(B) provides: Prior to trial, any party may raise by motion any defense, objection, evidentiary issue, or request that is capable of determination without the trial of the general issue. The following must be raised before trial: *** (3) Motions to suppress evidence, including but not limited to statements and identification testimony ***. Crim.R. 12(G) provides further, in pertinent part: Failure by the defendant to raise defenses or objections or to make requests that must be made prior to trial *** shall constitute waiver thereof ***. Here, appellant did not file a pretrial motion seeking to suppress his statement. Pursuant to Crim.R. 52(B), however, this -6- court can always recognize plain error or defects affecting substantial rights even though they were not brought to the attention of the trial court. State v. Long (1978), 53 Ohio St.2d 91. Notice of plain error under Crim.R. 52(B) is to be taken with utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. Id. at paragraph three of the syllabus. In order to warrant reversal of his conviction, appellant must establish that the outcome of the trial would clearly have been different but for the trial court's allegedly improper actions. State v. Waddell (1996), 75 Ohio St.3d 163, 166. Moreover, we note that although appellant did not file a motion to suppress, defense counsel objected several times during trial to the prosecutor's use of the fact that appellant invoked his right to remain silent. Defense counsel's first objection was made during opening argument when the prosecutor commented that before interviewing appellant, Detective Ferenec advised him of his constitutional rights: MR. AGOPIAN: Your Honor, I am going to object to this. This is going to present an issue where I believe the statement made to the court is going to be that the detective attempted to question the defendant in this case and the defendant chose to exercise his constitutional right to remain silent under U.S. versus Kennedy. This court can't entertain, nor can it hear, any evidence of that since that would be a violation of his constitutional rights. The trial court overruled appellant's objection. Defense counsel again objected to the admission of appellant's statement during direct examination of Detective Ferenec by the prosecutor: -7- Q. Did you interview Mr. Dobson? A. Yes. Q. Did you read Mr. Dobson his rights before you interviewed him? A. Yes, I did. Q. Actually-- MR. AGOPIAN: Your Honor, objection to this whole line of questioning. Now we are back into the issues. We know that he exercised his constitutional right. MS. TIBURZIO: Judge, there has not been any testimony yet. Q. Did you-- MR. AGOPIAN: I will make my objection before the testimony. THE COURT: Overruled. Q. Did you read him his rights? A. Yes, I did. Q. And those are the Miranda warnings regarding specific-- A. Right. Q. And once you read him his rights did you ask him a question? A. I asked if he would like to speak to me. Q. And what if anything did he say? A. His response, No, not if you want to know where I got the car from. MR. AGOPIAN: Your Honor, the same objection. Move to strike. THE COURT: It is the same ruling. -8- In light of defense counsel's repeated objections, we hold that appellant adequately preserved an objection to the prosecutorial comment upon his statement exercising his right to remain silent. The Fifth Amendment to the United States Constitution guarantees that no person *** shall be compelled in any criminal case to be a witness against himself. This privilege is protected, pursuant to Miranda v. Arizona (1966), 384 U.S. 436, by advising a person subject to custodial interrogation, in clear and unequivocal language, that he has the right to remain silent. Id. at 467-68. Pursuant to Miranda, once a person in custody indicates that he wishes to remain silent, the interrogation must cease. Id. at 473-74. Statements obtained after an initial exercise of the right to remain silent are admissible only where the individual's right to cut off questioning has been scrupulously honored. U.S. v. Lopez-Diaz (1980), 630 F.2d 661, 664, citing Michigan v. Mosley (1975), 423 U.S. 96, 103-04. A defendant may selectively waive his Miranda rights by indicating that he will respond to some questions, but not to others. Mosley, supra. Once a person has indicated that he does not wish to talk about a particular subject, all questioning on that topic must cease. Lopez-Diaz, supra at 664. Here, appellant clearly invoked his right to remain silent regarding the subject of the stolen van by answering No, not if you want to know where I got the car from to Detective Ferenec's question regarding whether appellant wanted to speak to him. Indeed, Detective Ferenec testified that he understood that -9- appellant was invoking his right to silence by his statement and immediately terminated his interrogation of appellant. The state contends that appellant invoked his right to remain silent by saying No, but then voluntarily waived that right in the same breath by stating not if you want to know where I got the car from. The state asserts that appellant's inculpatory statement was not made in response to any interrogation by Detective Ferenec and, therefore, was a voluntary statement properly admissible to prove appellant's guilt. We disagree. First, the state's argument that appellant's statement not if you want to know where I got the car from was voluntary because Detective Ferenec did not ask appellant any questions after he indicated that he wanted to remain silent is specious. Clearly, the statement was made in the same sentence in which appellant indicated his desire to remain silent. There obviously would have been no opportunity for Detective Ferenec to ask appellant a question in the less than one second between the word, No, and his statement, not if you want to know where I got the car from. Moreover, Detective Ferenec testified that he terminated his questioning of appellant immediately after hearing appellant's statement. Thus, Detective Ferenec clearly understood that appellant's statement meant that he was exercising his right to remain silent. -10- Appellant's statement was not, as the state contends, a voluntary confession. Rather, it was a clear and unequivocal1 statement regarding the topic that appellant would not discuss with Detective Ferenec: the stolen van. The state would turn this constitutional shield into a prosecutorial sword based simply upon the words that a defendant chooses in exercising his right to remain silent. Mitchell v. United States (1999), 526 U.S. 314, 322. We refuse, however, to render the Fifth Amendment effective only to those defendants who choose the words necessary to invoke their constitutional right to silence carefully enough. As the United States Supreme Court recognized in Mosley, supra, a defendant may selectively assert his right to remain silent by indicating that he will not discuss the offense for which he is being held, but may waive that right with respect to other offenses. In United States v. Soliz (1997), 129 F.3d 499, 504, the Ninth Circuit Court of Appeals discussed the ways in which a suspect can selectively waive his right to silence: We do not read these cases as imposing a requirement that a suspect in custody can selectively waive his right to remain silent only by providing the police with a list of subjects which are taboo for purposes of interrogation. Rather, a suspect may selectively waive his right to remain silent in one of two ways. He may either tell the police that he will not discuss certain subjects, see Mosley, 423 U.S. at 103-05; Lopez-Diaz, 630 F.2d at 664, or the suspect may *** inform the police that he is willing to discuss only specific subjects. Both approaches effectuate Miranda's requirement 1It was, however, equivocal as an admission. See discussion on p. 14. -11- that a suspect in custody have the right to remain silent or, at his discretion, to limit questioning. (Emphasis added.) Here, appellant's statement to Detective Ferenec that he would not discuss how he came to possess the van clearly and unambiguously invoked his right to remain silent regarding that topic. We agree with appellant that allowing the state to make use of appellant's exercise of his right in obtaining his conviction against him penalized him for exercising that right. Moreover, it violated the Due Process Clause of the Fourteenth Amendment. As the United States Supreme Court held in Doyle v. Ohio (1976), 426 U.S. 610, Miranda warnings contain an implied promise, rooted in the Constitution, that `silence will carry no penalty.' Wainwright v. Greenfield (1986), 474 U.S. 284, 295. Thus, in Doyle, the Supreme Court concluded that it was an affront to the fundamental fairness that the Due Process Clause requires for a prosecutor to breach that promise by using a defendant's post-arrest, post-Miranda warning silence to impeach his trial testimony. Similarly, in Wainwright, supra at 295, the United States Supreme Court, in applying Doyle, stated, what is impermissible is the evidentiary use of an individual's exercise of his constitutional rights after the state's assurance that the invocation of those rights will not be penalized. Likewise, we think it fundamentally unfair in this case for the state to have used appellant's statement invoking his right to remain silent as affirmative proof of appellant's guilt in its case in chief. The state gave a warning to appellant to protect his -12- constitutional rights and implicitly promised that any exercise of those rights would not be penalized. The state then argued at trial, however, that appellant's statement exercising that right was an admission of his guilt. The fundamental unfairness and consequent deprivation of due process that flowed from the state's breach of its implied assurance in using appellant's exercise of his right to obtain his conviction is obvious. Moreover, contrary to the state's assertion, appellant's statement is not necessarily an admission of his guilt. Although arguably inculpatory, the words No, not if you want to know where I got the car from, could also have an innocent meaning. Accordingly, appellant's equivocal statement does not constitute a confession. Appellant's first assignment of error is therefore sustained. Appellant's second assignment of error states: II. THE DECISION OF THE TRIAL COURT FINDING DEFENDANT GUILTY OF RECEIVING STOLEN PROPERTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In his second assignment of error, appellant argues that his conviction was against the manifest weight of the evidence. When reviewing a claim that the judgment in a criminal case is against the manifest weight of the evidence, this court reviews 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 trier of fact clearly lost its way and created such a manifest miscarriage of justice that the -13- conviction must be reversed and a new trial ordered. State v. Thompkins (1997), 78 Ohio St.3d 380, 387, citing State v. Martin (1983), 20 Ohio App.3d 172, 175. An appellate court should not disturb a verdict as contrary to the manifest weight of the evidence if it is supported by some competent, credible evidence. State v. Kimbrough (Feb. 18, 1988), Cuyahoga App. No. 53473, unreported, citing State v. Mattison (1985), 23 Ohio App.3d 10, 14. R.C. 2913.51(A) defines the offense of receiving stolen property: 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. Therefore, in order to find a defendant guilty of receiving stolen property, the state must prove that 1) the defendant received, retained or disposed of property 2) with knowledge that it was stolen. Appellant contends that the evidence offered by the state was insufficient to demonstrate either element of the crime. We agree. First, we find no evidence to indicate that appellant knew or had reason to believe that the van was stolen. The typical indicia of a stolen vehicle were not present in this case: the steering column was not peeled ; there were no tools for starting the van without an ignition key in the van; there were no broken windows or other damage to the van demonstrating a forced entry; and there was no personal property of the owner in the van. Rather, the keys to the van were in the ignition and, with the exception of two bottles -14- of beer, there were no items commonly associated with criminal activity in the van. Moreover, contrary to the state's argument, the fact that Montford and appellant may have been using the van to smoke dope or ingest other illegal drugs does not demonstrate that appellant knew or should have known that the van was obtained illegally. Finally, appellant did not exhibit any suspicious behavior prior to the stop nor did he try to flee from arrest. Thus, appellant's conduct did not indicate any knowledge that the vehicle was stolen. On these facts, the state failed to prove that appellant knew or had reasonable cause to believe that the van was stolen. The state also failed to prove that appellant received, retained or attempted to dispose of the stolen van. The state argues that a passenger who aids and abets a driver in the possession of a stolen vehicle is guilty of receiving stolen property and that appellant's statement not if you want to know where I got the car from demonstrates that he was part of a joint enterprise to receive, retain or dispose of the van. This argument is without merit. As discussed earlier, appellant's statement should have been suppressed and, therefore, is not evidence that he participated in a joint enterprise to receive or dispose of the van. Moreover, there was no evidence in this case that appellant assisted or encouraged the driver, Mr. Montford, in the possession or retention of the stolen van. -15- In State v. Sims (1983), 10 Ohio App.3d 56, this court held that mere association with the principal offender is insufficient to convict a defendant as an aider and abettor. We stated: To aid is to assist. To abet is to incite or encourage. Mere association with the principal is not enough. *** In the absence of a conspiracy or some preceding connection with the transaction, one does not aid and abet if he merely sees a crime being committed. Mere approval or acquiescence, without expressed concurrence or the doing of something to contribute to the unlawful act, is not an aiding or abetting of the act. Here, there was no evidence that appellant assisted or encouraged Montford, the driver of the van, in stealing the van. Indeed, Sandra Martin, the owner of the van, testified that she did not get a good look at the person who stole her van from her driveway. Moreover, there was no evidence that appellant assisted, counseled or encouraged Montford in his retention of the stolen vehicle. In short, without appellant's inculpatory statement, the only evidence in this case was that appellant was a passenger in a stolen van. Appellant's conviction for receiving stolen property was therefore against the manifest weight of the evidence. Sims, supra; State v. Tuttle (July 2, 1987), Cuyahoga App. No. 52237, unreported. Appellant's second assignment of error is well- taken. Appellant's conviction is vacated and he is hereby discharged. -16- Appellant's conviction is vacated and he is hereby discharged. It is, therefore, ordered that appellant recover from appellee costs herein. 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. TIMOTHY E. McMONAGLE JUDGE DIANE KARPINSKI, A.J. and JAMES J. SWEENEY, J., CONCUR. 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. 22. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .