[Cite as State v. Tusing,
2012-Ohio-5945.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-12-24
v.
TRACY L. TUSING, OPINION
DEFENDANT-APPELLANT.
Appeal from Tiffin Municipal Court
Trial Court No. CRB 1100697A&B
Judgment Affirmed
Date of Decision: December 17, 2012
APPEARANCES:
Kelle M. Saull for Appellant
Drew E. Wood for Appellee
Case No. 13-12-24
WILLAMOWSKI, J.
{¶1} Defendant-Appellant, Tracy L. Tusing (“Tusing”), appeals the
judgment entry of the Tiffin Municipal Court, finding him guilty of theft and
criminal trespass after a jury trial. On appeal, Tusing contends that the verdicts
were based on insufficient evidence and were against the manifest weight of the
evidence. For the reasons set forth below, the judgment is affirmed.
{¶2} On August 10, 2011, James Hoffert, a farmer, was driving his tractor
when he observed a man driving a truck with what appeared to be some old farm
equipment, or scrap metal, in the back. Mr. Hoffert was concerned that this might
be his property, so he returned to his farm where he discovered that some pieces of
his equipment were missing. Mr. Hoffert then went to Danner’s Auto Wrecking
nearby where he found Tusing attempting to sell the property at the scrap yard.
Mr. Hoffert asserted that the farm equipment belonged to him and the sheriff’s
department was called. Mr. Hoffert identified many distinguishing features of the
equipment, in great detail, and it was returned to him.
{¶3} On August 16, 2011, a complaint and summons was filed alleging that
Tusing had committed theft in violation of R.C. 2913.02(A), a misdemeanor of the
first degree, and criminal trespass in violation of R.C. 2911.21(A)(1), a
misdemeanor of the fourth degree. Tusing pled not guilty, and a jury trial was
held on April 24, 2012.
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{¶4} Mr. Hoffert testified that he was driving his tractor when he happened
to take a “quick glance” at a green pickup truck on the road, being driven by a man
with brown hair and a brown mustache; he noticed that the truck had some “scrap
steel” in the back. (Tr. 78-79) When he got to the lane by his farm, he saw that
there were mud tire tracks from a pick-up truck on the road from the lane to his
barn. At that point, he went to check on his equipment. When Mr. Hoffert arrived
at the barn, he noticed that he was missing a farm harrow and some other items.
Mr. Hoffert went to Danner’s Auto Wrecking, a nearby scrapyard, and came upon
Tusing trying to sell the missing harrow and other equipment.
{¶5} Mr. Hoffert testified that he was able to recognize the harrow as his
because of the galvanized steel extensions that he had installed himself, almost
twenty years earlier. Mr. Hoffert had also added train rails to the harrow, to give it
more weight, and he tied the railroad iron to the harrow with green clothesline.
Mr. Hoffert testified that he saw a train rail and a piece of green clothesline in the
bed of Tusing’s truck. Mr. Hoffert also noticed a “rope wick” in the truck which
he recognized because his father and brother had built it by hand, sometime
around 1975. He also identified a cultivator, which he knew was his because it
was the same sixty-year-old cultivator that Mr. Hoffert had used as a child when
he was working on the farm. (Tr. 83-85)
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{¶6} Mr. Hoffert further testified that when he confronted Tusing about the
property, Tusing claimed to be the owner. Tusing told Mr. Hoffert, “Well, it’s
going to be your word against mine.” (Tr. 86)
{¶7} Two officers from the Wyandot County Sheriff’s Department,
Lieutenant Neil Riedlinger and Deputy Dennis Wilkinson, also testified as to what
occurred when they responded to the call at Danner’s. Most of the equipment was
still in Tusing’s truck, or lying nearby, when they arrived. They obtained a
statement from Mr. Hoffert describing how he had noticed that equipment was
missing from his farm and how he had discovered Tusing at Donners and in the
process of unloading his harrow, cultivator, and other items. (Def. Ex. 1)
{¶8} Both of the officers testified that Tusing had claimed that the
equipment was his property and that it had been located in his driveway before he
had decided to bring it to the scrap yard. When Lt. Riedlinger pointed out that
there were weeds hanging on the harrow, Tusing told Lt. Riedlinger that there
were weeds in his driveway and he could show him where the harrow had been
sitting. Deputy Wilkinson testified that when he went to Tusing’s home the
following day, he saw that his driveway was mostly hard-packed mud with some
stone in it, and there were no weeds growing in the driveway.
{¶9} When Deputy Wilkinson went to Mr. Hoffert’s farm to see where the
equipment had been, he could see the grass had been matted down and was caked
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Case No. 13-12-24
with mud from a vehicle’s tires, where it appeared as if a truck had been driven up
to the areas where the piles of equipment had been. He also noticed that there was
still dried mud on the roadway where someone had driven out of the driveway.
Deputy Wilkinson testified that the tire tracks appeared to be from a truck, not a
car or a tractor.
{¶10} Defense counsel did not call any witnesses, but attempted to discredit
the State’s witnesses on cross-examination by questioning them concerning some
discrepancies between their testimony at trial and what they had originally
reported. Mr. Hoffert had testified that the truck he had originally seen driving on
the roadway was green. However, Tusing’s truck that had the farm equipment in
it at Donners was black. Furthermore, Mr. Hoffert had stated that the mustached-
man driving the green truck had brown hair. Although Tusing did have a
mustache, his hair color was described as “sandy-blond.” (Tr. 109)
{¶11} The jury found Tusing guilty on both counts. The trial court
sentenced Tusing to 180 days in jail, with 30 days suspended. Tusing now brings
this appeal, raising the following two assignments of error for our review. His
sentence has been stayed pending the appeal.
First Assignment of Error
The Jury Verdict of Guilty to the theft was based on insufficient
evidence and was against the manifest weight of the evidence.
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Second Assignment of Error
The Jury Verdict of Guilty to criminal trespass was based on
insufficient evidence and was against the manifest weight of the
evidence.
{¶12} Both of Tusing’s assignments of error allege that there was
insufficient evidence to support the jury’s verdicts and that the judgments were
against the manifest weight of the evidence. Because both of the assignments of
error are interrelated and involve some of the same testimony and evidence, we
shall address them together.
{¶13} When reviewing the sufficiency of the evidence, our inquiry focuses
primarily upon the adequacy of the evidence; that is, whether the evidence
submitted at trial, if believed, could reasonably support a finding of guilt beyond a
reasonable doubt. See State v. Thompkins, 78 Ohio St.3d 380, 386, 1997–Ohio–52
(stating, “sufficiency is the test of adequacy”); State v. Jenks,
61 Ohio St.3d 259,
273 (1991). The standard of review is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found
all the essential elements of the offense beyond a reasonable doubt.
Jenks, supra;
Jackson v. Virginia,
443 U.S. 307 (1979). This test raises a question of law and
does not allow the court to weigh the evidence. State v. Martin,
20 Ohio App.3d
172, 175 (1st. Dist.1983).
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{¶14} A challenge to a conviction based on the manifest weight of the
evidence concerns “the inclination of the greater amount of credible evidence,
offered in a trial to support one side of the issue rather than the other. It indicates
clearly to the jury that the party having the burden of proof will be entitled to their
verdict, if, on weighing the evidence in their minds, they shall find the greater
amount of credible evidence sustains the issue which is to be established before
them. Weight is not a question of mathematics, but depends on its effect in
inducing belief.” (Emphasis sic.) State v. Thompkins, 78 Ohio St.3d at 387.
{¶15} In determining if a conviction is against the manifest weight of the
evidence, an appellate court “review[s] 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.” (Emphasis added.) State v. Mendoza, 137 Ohio App.3d
336, 346–347 (3d Dist.2000), quoting State v. Martin,
20 Ohio App.3d at 175, see,
also, State v.
Thompkins, supra. A new trial should be granted only in the
exceptional case in which the evidence weighs heavily against conviction.
Thompkins at 387.
{¶16} Although the appellate court acts as a “thirteenth juror” when
reviewing for manifest weight, it still must give due deference to the findings
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made by the fact-finder. State v. Thompson, 127 Ohio App.3d 511, 529 (8th
Dist.1998). The fact-finder, being the jury, occupies a superior position in
determining credibility.
Id. When examining witness credibility, “[t]he choice
between credible witnesses and their conflicting testimony rests solely with the
finder of fact and an appellate court may not substitute its own judgment for that
of the finder of fact.” State v. Awan,
22 Ohio St.3d 120, 123 (1986).
{¶17} In his first assignment of error, Tusing asserts that there was
insufficient evidence to find him guilty of theft and that the jury’s decision was
against the manifest weight of the evidence. Tusing challenges the jury’s findings
because of the discrepancy between Mr. Hoffert’s testimony in that Mr. Hoffert
stated he saw a green truck carrying scrap metal, and yet Tusing’s truck was black.
And, Mr. Hoffert stated that the green truck’s driver had brown hair, and
apparently, Tusing’s hair was closer to “blond.” Tusing further complains about
the fact that the officers did not try to “match” the tire tracks to Tusing’s vehicle;
nor did they do any further investigation as to whether the equipment actually
belonged to Mr. Hoffert; nor did they question Mr. Hoffert’s hired worker to find
out whether he might have taken the equipment.
{¶18} In order to obtain a conviction for theft in violation of R.C.
2913.02(A), the State was required to prove that Tusing knowingly obtained or
exerted control over Mr. Hoffert’s property, without his consent, with an intent to
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Case No. 13-12-24
deprive Mr. Hoffert of the property. Mr. Hoffer testified that the equipment was
his property and that it had been taken without his knowledge or permission.
Tusing was found at the scrap yard with Mr. Hoffer’s equipment in his truck, and
he was trying to sell the property for scrap value. Tusing knowingly exerted
control over the property, and even tried to claim that it belonged to him. Viewing
these facts in a light most favorable to the prosecution, there is no question that the
State had sufficient evidence of each of the elements of the offense required for a
theft conviction.
{¶19} Finding that there was sufficient evidence to support Tusing’s
conviction for theft, we look at the second part of his assignment of error, claiming
that the decision was against the manifest weight of the evidence. Although there
was some discrepancy as to the color of the truck and Tusing’s hair, that still does
not change the fact that it was Tusing who was found at Donner’s exerting control
over Mr. Hoffert’s property. There could be various explanations as to the
discrepancies in Mr. Hoffert’s testimony and statement. He specifically testified
that he only had a “quick glance” at the truck driving down the road. At that time,
he had no reason to be concerned about identifying the driver because he had not
yet learned that his equipment was missing. Although Mr. Hoffert admitted that
he could not positively identify Tusing as the driver of the green pickup, he also
testified that he couldn’t rule him out. (Tr. 81)
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Case No. 13-12-24
{¶20} Furthermore, Tusing did not offer any explanation to the officers as
to how he might have innocently come into possession of the farm equipment.
Instead, he boldly asserted that it was his property, and even challenged Mr.
Hoffert, stating that it would be his word against Mr. Hoffert’s. Tusing’s claim
was contradicted by Mr. Hoffert’s testimony describing very specific details about
the farm equipment that had been in his family for years, and how it was
distinguishable from any other harrow or piece of equipment because of the
custom modifications that had been done by Mr. Hoffert and his family. Tusing’s
claim that the harrow had weeds hanging from it because it had been sitting in his
weed-laden driveway was contradicted by Deputy Wilkinson’s testimony.
{¶21} The jury was in a superior position to judge credibility, and we
cannot say that its conclusion that the farm equipment belonged to Mr. Hoffert
was against the weight of the evidence. Tusing had Mr. Hoffert’s equipment in his
truck, without permission, and there was no logical explanation as to how he
might have innocently obtained it that would have been consistent with his
behavior and claims. It was reasonable for the jury to infer that Tusing was guilty
of theft, and we cannot say that there was any evidence that would weigh heavily
against conviction.
{¶22} There was sufficient evidence of theft presented in this case that, if
believed, would convince a jury of Tusing’s guilt beyond a reasonable doubt.
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Furthermore, we do not find that the jury’s decision was against the manifest
weight of the evidence. Tusing’s first assignment of error is overruled.
{¶23} In the second assignment of error, Tusing argues that the State failed
to present sufficient evidence that Tusing knowingly entered on the land of Mr.
Hoffert without privilege to do so, in order to find him guilty of criminal trespass
beyond a reasonable doubt. See R.C. 2911.21(A)(1). Tusing argues that there was
no evidence that Tusing was on the farmer’s property; nobody saw him there;
there was no evidence that his vehicle was on the property; and, there was no
testimony that there was fresh mud on his truck or that the tire tracks were a
match. He asserts that there was nothing to indicate that Tusing had ever entered
onto the farmer’s land.
{¶24} We agree with Tusing that there was no eye-witness testimony that
placed him on Mr. Hoffert’s property, nor was there any physical evidence that
would prove that his truck had been on the property. However, “[i]t is a well-
settled rule of law that direct evidence is not necessary for the trier of fact to make
a finding; circumstantial evidence has the same probative value.” State v.
Shoopman, 3d Dist. No. 14-10-17, 2011-Ohio-2340, ¶ 35. Direct evidence of a fact
is not a prerequisite for a trial court to make a finding of that fact. State v. Lott,
51
Ohio St.3d 160, 167 (1990).
In fact, circumstantial evidence and direct evidence have the same
probative value, State v. Gillman, 3d Dist. No. 14–08–08, 2008–
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Ohio–2606, ¶ 17, and “‘[c]ircumstantial evidence … may also be
more certain, satisfying and persuasive than direct evidence .’” Lott,
51 Ohio St.3d at 167,
555 N.E.2d 293, quoting Michalic, 364 U.S. at
330. Furthermore, “[w]hen the state relies on circumstantial
evidence to prove an essential element of the offense charged, there
is no need for such evidence to be irreconcilable with any reasonable
theory of innocence in order to support a conviction.” State v.
Williams, 73 Ohio St.3d 153, 165,
652 N.E.2d 721, 1995–Ohio–275
(internal citations omitted).
State v. Fisher, 3d Dist. No. 02–10–09, 2010–Ohio–5192, ¶ 26, 27. Therefore, the
lack of direct evidence in this case does not warrant reversal.
{¶25} The trial court gave the jury the following instructions concerning
circumstantial evidence and making inferences:
Circumstantial evidence is the proof of facts or circumstances by
direct evidence from which you may reasonably infer other related
or connected facts which naturally and logically follow according to
the common experience of mankind.
To infer or to make an inference is to reach a reasonable conclusion
or deduction of fact which you may, but are not required to, make
from other facts which you find have been established by direct
evidence. Whether an inference is made rests entirely with you.
(Tr. 131-132) See, also, State v. Davis, 116 Ohio St.3d 404,
2008-Ohio-2, ¶ 179-
181.
{¶26} Mr. Hoffert’s farm equipment should have been on his farm, where
he had left it. Mr. Hoffert observed that it was missing; he saw that there were
fresh tire tracks from a truck in the area where the equipment had been; and he
discovered the equipment in Tusing’s truck at the scrapyard, less than an hour
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later. It was certainly reasonable for the jury to infer that the circumstantial
evidence indicated that Tusing had come onto Mr. Hoffert’s land, without
permission, and taken the equipment.
{¶27} And, the above evidence was uncontroverted. Although, Tusing’s
counsel suggested alternate theories as to how the equipment might have ended up
in his truck without Tusing having trespassed on Hoffert’s property, there was no
evidence at trial to provide any basis for the jury to infer or conclude that Tusing
had not gone to Mr. Hoffert’s farm and taken the equipment to sell for scrap. And,
even if there had been evidence of alternate theories of innocence, there is no
requirement that the circumstantial evidence indicating guilt must be
irreconcilable with any reasonable theory of innocence in order to support a
conviction. See State v. Williams, 73 Ohio St.3d 153, ¶ 23.
{¶28} Based on the above, we find that there was sufficient circumstantial
evidence that Tusing had committed criminal trespass to sustain his conviction,
and that the conviction was not against the manifest weight of the evidence. The
second assignment of error is overruled.
{¶29} Having found no error prejudicial to the Tusing herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J. and PRESTON, J., concur.
/jlr
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