[Cite as State v. Emler,
2016-Ohio-5162.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. William B. Hoffman, J.
-vs- :
:
CHAD A. EMLER : Case No. 2016-CA-0004
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2015-CR-0123
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 27, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BENJAMIN E. HALL JEFFREY A. MULLEN
318 Chestnut Street 239 North Fourth Street
Coshocton, OH 43812 Coshocton, OH 43812
Coshocton County, Case No. 2016-CA-0004 2
Farmer, P.J.
{¶1} On November 20, 2015, the Coshocton County Grand Jury indicted
appellant, Chad Emler, on one count of theft of a motor vehicle in violation of R.C.
2913.02. Said charge arose after appellant was found behind a house asleep in a
vehicle that had been reported stolen that morning.
{¶2} A bench trial was held on February 23, 2016. During the trial, the state
presented six exhibits, one of which was the narrative of the investigating officer (State's
Exhibit 6). Appellant stipulated to the admission of the exhibits and the facts contained
therein. No testimony was taken. By judgment entry filed March 1, 2016, the trial court
found appellant guilty as charged. By judgment entry filed March 2, 2016, the trial court
sentenced appellant to seventeen months in prison.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶4} "THE TRIAL COURT'S VERDICT WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE."
I
{¶5} Appellant claims the trial court's verdict was against the manifest weight of
the evidence. Appellant claims based on the stipulated facts, the conviction should
have been for unauthorized use of a motor vehicle. We disagree.
{¶6} On review for manifest weight, a reviewing court is to examine the entire
record, weigh the evidence and all reasonable inferences, consider the credibility of
witnesses and determine "whether in resolving conflicts in the evidence, the jury clearly
Coshocton County, Case No. 2016-CA-0004 3
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, 20 Ohio App.3d 172, 175 (1st
Dist.1983). See also, State v. Thompkins,
78 Ohio St.3d 380,
1997-Ohio-52. The
granting of a new trial "should be exercised only in the exceptional case in which the
evidence weighs heavily against the conviction."
Martin at 175.
{¶7} Appellant was convicted of theft of a motor vehicle in violation of R.C.
2913.02(A)(1) which states: "(A) No person, with purpose to deprive the owner of
property or services, shall knowingly obtain or exert control over either the property or
services in any of the following ways: (1) Without the consent of the owner or person
authorized to give consent."
{¶8} Appellant argues the facts reflect that he was only guilty of unauthorized
use of a motor vehicle in violation of R.C. 2913.03 which states in part: "(A) No person
shall knowingly use or operate an aircraft, motor vehicle, motorcycle, motorboat, or
other motor-propelled vehicle without the consent of the owner or person authorized to
give consent."
{¶9} The essential difference between the two offenses is the "purpose to
deprive the owner of property" language contained in R.C. 2913.02(A). R.C.
2913.01(C) defines "deprive" as follows in part:
(1) Withhold property of another permanently, or for a period that
appropriates a substantial portion of its value or use, or with purpose to
restore it only upon payment of a reward or other consideration;
Coshocton County, Case No. 2016-CA-0004 4
(3) Accept, use, or appropriate money, property, or services, with
purpose not to give proper consideration in return for the money, property,
or services, and without reasonable justification or excuse for not giving
proper consideration.
{¶10} Appellant argues there is nothing in the record to suggest he had any
purpose to deprive the owner of his vehicle. Appellant argues it was merely a "joy ride."
{¶11} In its March 1, 2016 judgment entry finding appellant guilty, the trial court
found from the stipulated facts that the vehicle was found "approximately 4 miles driving
distance from its original location" and "parked so that it was hidden from view." When
the police asked appellant why he took the vehicle, appellant stated "he 'doesn't have
anything' and 'his life is shit.' " The trial court determined the following:
11. The Court finds that the facts as set forth above support the
determination that the defendant acted with purpose to deprive the owner
of the Ford Explorer.
12. Because there is no way to look into the mind of the defendant
to determine his intent, the Court must rely on inferences from the
surrounding facts and circumstances to prove purpose.
13. In this case the defendant was found sleeping in the Ford
Explorer while the vehicle was hidden from view. These two facts show
that the defendant had not abandoned the Explorer, and intended to
Coshocton County, Case No. 2016-CA-0004 5
continue using it. When combined with the defendant's inculpatory
statement, there is no doubt as to the defendant's purpose.
{¶12} During the verdict announcement/sentencing hearing, the trial court
specifically stated the following (March 1, 2016 T. at 5-6):
The court finds that the defendant's request for conviction of a
lesser included offense is not warranted. The defendant has requested a
conviction for unauthorized use of a motor vehicle, in violation of Revised
Code Section 2913.03. The lesser included offense is not appropriate
because it was the defendant's purpose to deprive the owner of the
Explorer. The defendant was sleeping in the Explorer when it was found,
and the Explorer was hidden from view. Moreover, the defendant did not
abandon the vehicle or take other action consistent with what is often
referred to as joyriding.
{¶13} We find the evidence supports the trial court's determination. The
stipulated evidence, State's Exhibit 6, established the vehicle was missing overnight and
later found parked behind a house with appellant sleeping inside. Appellant was getting
out of the vehicle when the police approached. Appellant saw the police and fled. The
police caught him and when questioned, appellant admitted to taking the vehicle. The
evidence established the vehicle was hidden behind a house to deprive the owner of his
property.
Coshocton County, Case No. 2016-CA-0004 6
{¶14} Upon review, we find the trial court did not lose its way and find no
manifest miscarriage of justice.
{¶15} The sole assignment of error is denied.
{¶16} The judgment of the Court of Common Pleas of Coshocton County, Ohio
is hereby affirmed.
By Farmer, P.J.
Gwin, J. and
Hoffman, J. concur.
SGF/sg 707
