State v. Messer
2017 Ohio 1223
Ohio Ct. App.2017Background
- Messer, a contractor, was hired by Moorman in Nov. 2014 to remodel a bathroom for $27,500; she paid $25,750 in three installments. Messer had represented he was licensed, bonded, insured, and would obtain permits.
- Messer started work in January 2015 but repeatedly missed appointments, became difficult to contact, and provided many excuses; the project remained substantially unfinished by August 2015.
- Moorman discovered Messer was not licensed in Lucas County, had not applied for permits, and had not paid a granite supplier; she subsequently paid another contractor $22,000 to finish the job.
- Police photographed the unfinished bathroom; evidence showed some work was done (tiling, cabinet frame, countertop) but key fixtures (toilet, faucets, Jacuzzi tub) were not installed and pipes remained exposed.
- Messer was indicted for grand theft by deception (R.C. 2913.02(A)(3), (B)(2)); a jury convicted him and the court sentenced him to 14 months’ imprisonment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence / denial of Crim.R. 29 | State: Evidence (payments, unfinished work, missed appointments, false licensure claim, avoidance) permits a rational jury to find intent to deprive and deception beyond a reasonable doubt. | Messer: He performed work; evidence shows completion of significant work so state failed to prove purpose to deprive and deception; also argues trial court erred in denying Crim.R. 29. | Court: No waiver of sufficiency claim despite no renewed Crim.R. 29; viewing evidence in favor of prosecution, there was sufficient circumstantial evidence of intent to deprive and deception. |
| Manifest weight of the evidence | State: Jury reasonably credited Moorman and other evidence showing Messer avoided contact, failed to complete work, and misrepresented licensure. | Messer: Jury lost its way; testimony of his laborer showed 90% completion and contradicts Moorman; verdict against manifest weight. | Court: As thirteenth juror, it defers to jury credibility findings; evidence does not weigh heavily against conviction—affirmed. |
Key Cases Cited
- Jenks, 61 Ohio St.3d 259 (circumstantial evidence has same probative value as direct evidence)
- Thompkins, 78 Ohio St.3d 380 (manifest-weight standard and reversal reserved for exceptional cases)
- Jones, 91 Ohio St.3d 335 (not guilty plea preserves right to challenge sufficiency on appeal)
- Carter, 64 Ohio St.3d 218 (prosecution must prove every element beyond a reasonable doubt)
- Franklin, 62 Ohio St.3d 118 (conviction may be sustained on circumstantial evidence)
- Nicely, 39 Ohio St.3d 147 (circumstantial evidence can uphold a conviction)