City of Cincinnati v. Walker, C-070770 (9-5-2008)City of Cincinnati v. Walker, C-070770 (9-5-2008)
Lead Opinion
{¶ 2} Walker now appeals his conviction. Because we conclude that Walker was properly convicted of theft, we affirm the trial court's judgment.
{¶ 3} In his single assignment of error, Walker maintains that the trial court erred by convicting him of "unauthorized use of property as a lesser included offense to the principal charge of petty theft." While Walker is correct that a defendant charged with theft cannot be convicted of unauthorized use of property, because that offense is not a lesser-included offense of theft, that is of no legal consequence here because Walker was not convicted of unauthorized use of property as defined in
{¶ 4}
{¶ 5} In State v. Reidel1 we noted that the "[t]he common practice in the Hamilton County Municipal Court is for the judge hearing the case to make, in personal handwriting, the ministerial acts that
{¶ 6} Here, the last page of the court's journal indicated that the charge was "Theft," and it also included the notations "M1F5" and "2913.02". In the plea section was written "NG" and in the finding section was written "G." At the bottom of the page, after a description of Walker's sentence, appeared the date and the judge's signature, although it is not legible. This was in keeping with the finding of guilty as noted in the transcript of the bench trial. But there was more. For reasons not discernible from the record, someone (probably the judge) had lined through the charge of "Theft" and handwritten "Unauth Use Prop" and "M4." *4
{¶ 7} In Reidel, we addressed a similar situation when "Theft" had been lined through on the judge's sheet sentencing entry and "Unauth Use Prop" had been handwritten next to "Theft." In that case, we held thatReidel had been properly convicted of theft as he stood charged. In support of our holding, we relied on the fact that the handwritten notations were undated and not accompanied by the signature of the judge.3 We also relied on the fact that there had been "neither mention nor discussion of [the offense of unauthorized use of property] anywhere in the record."4 Accordingly, we concluded that the casual notations on the judge's sheet were non sequiturs of no legal import.
{¶ 8} Similar to Reidel, the handwritten notations here were not immediately accompanied by the signature of the judge or a date. And there was no mention of "unauthorized use of property" during the presentation of evidence at trial, at closing argument, or at sentencing. In fact, the transcript of the bench trial indicates that the judge had intended to find Walker guilty of theft. The prosecutor stated in closing that "there's enough here for the court to find that beyond a reasonable doubt that the defendant did, in fact, take the money from the lockbox." Immediately after this statement, the trial judge said, "[F]inding is guilty." There is no indication in the transcript of the trial that the trial judge was finding Walker guilty of unauthorized use of property instead of theft.5 Accordingly, we are compelled, as we were in Reidel, to hold that the handwritten notations on the judge's sheet were non sequiturs and of no legal import. Accordingly, Walker's single assignment of error is overruled, and the judgment of the trial court is affirmed. *5 DINKELACKER, J., concurs.
PAINTER, J., dissents.
Judgment affirmed.
Dissenting Opinion
{¶ 9}
{¶ 10} Nowhere in the trial transcript did the trial court say that Walker was guilty of theft. As the majority has pointed out, in its closing the state said that it had proved beyond a reasonable doubt that Walker had taken the money. Immediately after this, Walker's attorney submitted the case, and the trial court then found Walker guilty, but did not specify the name or the code number of the offense for which he had been found guilty.
{¶ 11} At the hearing on the motion to dismiss, the trial court repeatedly stated that it had erred, that it did not have the authority to dismiss, and that the judgment would be reversed by this court.
{¶ 12} But what was said during the bench trial is not relevant. What is relevant is what was entered on the journal.
{¶ 13} The judge's sheet in Walker's case consisted of three pages. On all three, "Theft" and "2313.02 ORCN" were both crossed out. On two of the three pages, "Unauth Use Prop" was written beside the crossed-out lines.
{¶ 14} To determine what Walker was convicted of, we must look at the journal entry page that includes the sentence.6 This is the sentencing entry. On it, the *6 section violation level for theft, M1F5, and the word theft all have clear lines drawn through them. And in what appears to be the judge's handwriting is "Unauth Use Prop" and "M4." At that point, the theft charge ceased to exist — it had been clearly crossed out and replaced.
{¶ 15}
{¶ 16} The majority relies on State v. Reidel, 7 but in that opinion it is difficult to tell exactly which sheet the court was referring to. But to the extent that my dissent is inconsistent withReidel, Reidel should be overruled.