Court of Appeals of Ohio, Sixth District, Sandusky
Court No. CRB 1600295.
A. Klimkowsky, for appellant.
DECISION AND JUDGMENT
1} This is an Anders appeal. Appellant,
Malcolm Machin, appeals the judgment of the Fremont Municipal
Court, following a jury trial, convicting him of one count of
receiving stolen property in violation of R.C. 2913.51(A),
misdemeanor of the first degree. For the reasons that follow,
April 8, 2016, a criminal complaint was filed against
appellant, charging him with one count of receiving stolen
property. At his initial appearance on May 16, 2016,
appellant was appointed counsel and entered a plea of not
guilty to the charge. Appellant was released on his own
recognizance. On June 30, 2016, a final pretrial hearing was
held. Appellant attended the final pretrial hearing, but was
intoxicated, with a blood alcohol content level of .267. The
trial court found appellant in contempt and placed him in
custody. The next day, the trial court sentenced appellant to
five days in jail, with credit for one day served. While in
jail on July 2, 2016, appellant was observed sweating
profusely, out of touch with reality, and displaying
hallucinations. Appellant was transported to a hospital where
he was admitted. On July 7, 2016, after being released from
the hospital, appellant appeared before the court. At the
time, appellant had a blood alcohol content level of .048.
Thus, the trial court found that appellant had violated the
terms of his bond and remanded him to jail pending the jury
trial that was scheduled for July 22, 2016. On July 15, 2016,
appellant appeared before the trial court again, and was
released from jail on his own recognizance, with the order
that he attend Alcoholics Anonymous meetings. On July 22,
2016, the jury trial was held.
trial, the state called Officer Clayton Holskey of the
Fremont Police Department as its first witness. Holskey
testified that on April 4, 2016, he received a report of a
missing gold necklace with an anchor and cross pendant filed
by Guy Crispen. Holskey spoke with Crispen and advised him to
check with local pawn shops to see if his necklace had been
traded in. The following day, Crispen contacted Holskey from
Overmyer Jewelers in Fremont, Ohio. The staff member at
Overmyer Jewelers indicated that appellant was the person who
traded in the necklace. Holskey then interviewed appellant,
during which appellant stated that he did trade in a
necklace, but that it was a necklace that he owned. Appellant
also denied stealing Crispen's pendant, but stated that
he had one just like it from a fishing trip years ago.
state then called Katherine Jones, the manager of Overmyer
Jewelers, as its next witness. Jones testified that she was
the one who purchased the gold chain from appellant, and that
she paid him $160 for it.
then testified as the final witness for the state. Crispen
testified that on Saturday, April 3, 2016, he was painting an
apartment above his, in a building that he owns. Crispen saw
appellant, whom he had known for years, outside the building.
Crispen offered to pay appellant for his help in painting the
apartment, which appellant accepted. Appellant returned on
Sunday, April 4, 2016, to finish the job.
Monday, April 5, 2016, Crispen noticed that his necklace was
missing. He described the necklace as a gold chain with a
seaman cross pendant. A picture of the necklace was entered
into evidence. Crispen testified that he remembered taking it
off on Saturday, and setting it on the vanity in his
bathroom. Crispen contacted the police on Tuesday, April 6,
2016, when he could not find the necklace after thoroughly
searching his apartment.
Crispen began visiting jewelry stores, and found the gold
chain from his necklace at Overmyer Jewelers. Crispen
testified that he immediately recognized the chain as his
based on the clasp. Crispen paid Overmyer Jewelers $160 and
reclaimed his gold chain. He testified that the pendant was
the state's presentation of evidence, appellant moved for
acquittal pursuant to Crim.R. 29, arguing that the element of
a theft offense for purposes of the charge of receiving
stolen property had not been proven. The trial court denied
then testified in his own defense. Appellant testified that
he did sell a gold chain to Overmyer Jewelers, but that it
was a chain that he purchased approximately 20 years ago
while he was vacationing in Key West. Appellant stated that
he had lost his wallet, and while he was looking through his
clothes and dresser he came across the gold chain. Since he
was not working at the time, appellant sold the gold chain
for $160. Appellant testified that has absolutely no
knowledge of what happened to Crispen's chain and
pendant. On cross-examination, appellant testified that he
told Holskey that he also had a pendant, but his was a
sailfish, which he bought to remember the sailfish he had
caught while on vacation.
instructions, the jury retired to deliberate. The jury
returned with a verdict of guilty. Thereafter, the trial
court proceeded immediately to sentencing, and sentenced
appellant to 90 days in jail, with credit for 17 days served,
and the remaining 73 days suspended with three years of
non-reporting probation. The trial court also imposed a $100
fine and court costs, and ordered appellant to pay $160 in
restitution to Crispen. The trial court stayed the imposition
of the sentence pending appeal.
appointed counsel for appellant filed a brief and requested
leave to withdraw pursuant to Anders v. California,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Under
Anders, if counsel, after a conscientious
examination of the case, determines it to be wholly
frivolous, counsel should so advise the court and request
permission to withdraw. Id. at 744. This request,
however, must be accompanied by a brief identifying anything
in the record that could arguably support the appeal.
Id. Counsel must also furnish the client with a copy
of the brief and request to withdraw and allow the client
sufficient time to raise additional matters. Id.
Once these requirements have been satisfied, the appellate
court must then conduct a full examination of the proceedings
held below to determine if the appeal is indeed frivolous. If
the appellate court ...