State v. Burrell
2011 Ohio 5655
Ohio Ct. App.2011Background
- Defendant Burrell was convicted of one count of theft by deception under R.C. 2913.02(A)(3), a felony of the fifth degree; judgment included six months in jail, a $2,000 fine, costs, and restitution of $1,130 to Anna Woods.
- Prosecution theory: Burrell, claiming to represent Woods, entered into a lease with tenants and collected rent, depriving Woods of control and use of her property at 1414 E. 221st St., Euclid, which Woods owned since 1992.
- Woods testified she never rented the property, believed she still owned it, and that a foreclosure/ownership dispute and bankruptcy filings did not transfer ownership to Burrell or authorize rental.
- Burrell maintained a management agreement with Woods and later claimed verbal permission to rent; he signed an Application for Certificate of Rental Occupancy alleging to be Woods’s legal agent.
- Evidence showed Burrell received $1,130 in rent from tenants; Woods did not receive any of the rents.
- The trial court’s restitution order appeared in the journal entry but not in open court, triggering the appellate review on due process for restitution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the theft by deception evidence | State contends Burrell’s deception enabled theft by renting without Woods’s permission. | Burrell argues he lacked knowledge of Woods and any unlawful deprivation of her property. | Sufficient evidence supported theft by deception |
| Ineffective assistance regarding bankruptcy argument | State maintains closing arguments on bankruptcy impact were properly limited by the court’s restrictions. | Burrell claims his counsel was precluded from arguing bankruptcy ownership effects. | No reversible error; arguments within court’s discretionary bounds |
| Restitution ordered in journal entry but not in open court | State concedes restitution was not addressed in open court. | Burrell argues due process was violated by restitution issuance outside open court. | Remanded to address restitution in open court |
| Whether restitution was proper given Woods’s economic loss | Woods suffered economic loss as she did not receive rent; Burrell wrongfully controlled property. | Burrell asserts no valid economic loss to Woods existed due to ownership questions. | Restitution proper in amount reflecting Woods’s economic loss |
| Imposition of court costs and fines in light of open-court requirements | Costs and fine were imposed; restitution issue was the only non-open-court matter. | Burrell claims improper imposition without proper open-court procedures for all components. | Costs and fine proper where court advised in open court; remanded on restitution |
Key Cases Cited
- State v. Thompkins, 78 Ohio St.3d 380 (1997) (standard for testing sufficiency of evidence)
- State v. Jones, 2010-Ohio-902 (Ohio App. Dist. 8 (Cuyahoga...) 2010) (ownership/possession focus in theft by deception)
- State v. Rhodes, 2 Ohio St.3d 74 (1982) (ownership vs. possession; gist of theft offense)
- State v. Joseph, 125 Ohio St.3d 76 (2010) (open-court pronouncement of costs and restitution; indigency questions)
- Threatt, 2006-Ohio-905 (Ohio) (open-court requirements for costs)
- Pang v. Minch, 53 Ohio St.3d 186 (1990) (trial court's discretion in closing arguments)
- Hall v. Burkert, 117 Ohio App.2d 527 (1962) (limits on closing argument and conduct)