State v. Dobbins
2011 Ohio 6777
Ohio Ct. App.2011Background
- Dobbins, employed as Corvus Recycling's bookkeeper, had authority to possess company checks and to fill in checks (except signature).
- She wrote two checks to herself, numbers 1301 ($3,000) and 1304 ($3,200), during/after employment; 1301 was while employed, 1304 after termination.
- Owner Bringardner testified Dobbins had permission to possess checks and to fill out sections, but not to sign or take checks.
- The bank notified insufficient funds for 1301, leading to termination; 1304 was dated after termination, and Bringardner suspected but did not authorize it.
- Jury found Dobbins guilty of two theft counts and two forgery counts; court sentenced, then appellate review ensued.
- The indictment alleged violations of R.C. 2913.02(A)(1)-(3) and 2913.71(B); the jury liability included multiple subsections for each count.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Count 1 theft under 2913.02(A)(1) was against the manifest weight | Dobbins had consent to obtain and exert control as bookkeeper | Consent allowed only the performance of duties; misappropriation exceeded consent | Partially sustained; Count 1 under (A)(1) reversed; Count 2 under (A)(1) affirmed |
| Whether convictions under 2913.02(A)(2) and (A)(3) must be reversed for lack of jury instruction | Convictions premised on these subsections | Jury not instructed on (A)(2) and (A)(3) | Sustained; convictions under (A)(2) and (A)(3) reversed; remand for discharge of Count 2 under those subsections; Count 1 entirely discharged on remand |
| Whether trial court's failure to instruct on (A)(2) and (A)(3) amounted to plain error | Error not outcome-determinative since conviction existed under (A)(1) | Plain error because jury not instructed on elements | Sustained; plain error found; remand to discard (A)(2)/(A)(3) bases; resentence Count 2 based solely on (A)(1) |
| Whether ineffective assistance of counsel claims become moot | Moot; elevated by reversal of (A)(2)/(A)(3) convictions |
Key Cases Cited
- State v. Healy, 156 Ohio St. 229 (1951) (definition of 'obtain' and 'control' in theft statute)
- State v. Eskridge, 38 Ohio St.3d 56 (1988) (elements and standard for theft offenses)
- State v. Thompkins, 78 Ohio St.3d 380 (1997) (weight of the evidence standard; for jury credibility)
- State v. Adams, 62 Ohio St.2d 151 (1980) (requirement to instruct on all elements; Crim.R. 2945.11)