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Date: 05-03-2021
Case Style:
STATE OF OHIO vs. CODY L. HARDEN
Case Number: C-190709
Judge: Candace C. Crouse
Court: IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
Plaintiff's Attorney: Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald Springman,
Jr., Assistant Prosecuting Attorney
Defendant's Attorney:
Description:
Cincinnati, Ohio - Criminal defense attorney represented Cody Harden with an unauthorized use
of a motor vehicle charge.
Octavia Allen and Harden worked together. Allen testified that on
August 28, 2019, she loaned her car to Harden to “grab lunch.” She expected him to
return it by the end of their one-hour lunch break. Harden did not return to work
that day. Allen called the police and filed a report. She called and texted Harden,
with no reply. Two days later, on August 30, she received a phone call from Harden.
She testified that he told her that he had left the car in a T-Mobile parking lot “that
morning.”
{¶3} Sharonville Police Officer Christopher Wilson testified that he
investigated the police report filed by Allen. He talked with Harden over the phone
on August 30. Wilson testified that Harden admitted that he had driven Allen’s car,
and that he had parked it in the T-Mobile parking lot. Allen and Wilson retrieved the
keys and car from Harden’s brother in the T-Mobile parking lot. Allen testified that
the car was damaged, smelled like marijuana, and contained marijuana residue.
Sufficiency of the Evidence
{¶4} The test for determining the sufficiency of the evidence is whether
“after viewing the probative evidence and inferences reasonably drawn therefrom in OHIO FIRST DISTRICT COURT OF APPEALS
3
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.” State v.
MacDonald, 1st Dist. Hamilton No. C-180310, 2019-Ohio-3595, ¶ 12, quoting State
v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). It is a question
of law for the court to determine, the court is not to weigh the evidence. MacDonald
at ¶ 12.
{¶5} R.C. 2913.03(A) provides, “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.” Harden
argues that the state failed to prove that he “used” or “operated” Allen’s car. He cites
State v. Smith, 1st Dist. Hamilton No. C-170076, 2018-Ohio-927.
{¶6} In Smith, Lemons, the victim, gave Smith permission to move her car
to Smith’s mother’s house, where Smith was supposed to make repairs to the car. Id.
at ¶ 4. The relationship between Lemons and Smith deteriorated, and on November
3, 2016, Lemons revoked her permission and requested that Smith return the keys so
that she could retrieve the vehicle. Id. at ¶ 5. Smith failed to comply, and Lemons
filed a police report on November 10. Id. Smith then returned the car to Lemons on
November 16 or 17. Id.
{¶7} This court found that Lemons had revoked her permission on
November 3, and that any use of the car between November 3 and November 10
would have been without Lemons’s consent and in violation of R.C. 2913.03. Id. at ¶
9. However, the court further found:
Viewing the evidence presented in the light most favorable to the
prosecution, the record demonstrates that Smith had kept Lemons’s OHIO FIRST DISTRICT COURT OF APPEALS
4
vehicle at his mother’s house from November 3 to November 10. There is
no evidence that he operated the vehicle during this time, and there are
no facts from which an inference can be drawn that he did. At most, the
evidence demonstrated that Smith had possession and/or control of the
vehicle.
Id.
{¶8} “The term ‘use’ is commonly defined as ‘[t]o employ for the
accomplishment of a purpose; to avail oneself of.’ ” Id. at ¶ 10, quoting Black’s Law
Dictionary 1776 (10th Ed.2014). “We cannot find that retaining possession of, or
having control over, a vehicle, without more, is sufficient to constitute use.” Smith at
¶ 11. The court held that there was insufficient evidence that Smith “used” the vehicle
after Lemon revoked her consent and reversed Smith’s conviction for unauthorized
use of a motor vehicle. Id. at ¶ 2.
{¶9} The present case is distinguishable from Smith. Between November 3
and November 10, the car sat in Smith’s mother’s garage. There was no evidence
that he used the car during that time.
{¶10} Here, Allen gave Harden permission to use the vehicle, but only to
“grab lunch.” Allen testified that Harden told her that he had left the car in a TMobile parking lot on the morning of August 30. Wilson testified that on August 30,
Harden told him that he parked the car at T-Mobile, that he still had the keys, and
that he would give the keys to his brother who would meet Allen at T-Mobile.
{¶11} The state presented sufficient evidence that Harden used the car after
his permission to do so had terminated. OHIO FIRST DISTRICT COURT OF APPEALS
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Manifest Weight of the Evidence
{¶12} In reviewing a claim that a conviction is against the manifest weight of
the evidence, “we review the record, weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses, and determine whether the trier
of fact, in resolving conflicts in the evidence, ‘clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be overturned.’ ” Martin 20
Ohio App.3d at 175, 485 N.E.2d 717. Reversal of a conviction and a grant of a new
trial should only be done in “exceptional cases in which the evidence weighs heavily
against the conviction.” Id. “The trier of fact is in the best position to judge the
credibility of the witnesses and the weight to be given to the evidence presented.”
State v. Carson, 1st Dist. Hamilton No. C-180336, 2019-Ohio-4550, ¶ 16.
{¶13} Harden did not testify or rebut the state’s evidence. There is nothing
indicating that the trier of fact clearly lost its way and created a manifest miscarriage
of justice.
Outcome: The sole assignment of error is overruled and the judgment of the trial
court is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: