{¶ 2} Davis was charged with theft of a motor vehicle, in violation of R.C.
{¶ 3} The jury found Davis guilty, and he was sentеnced as appears of record. He has appealed, raising one assignment of error, which essentially alleges that his conviction for theft of a motor vehicle was based upon insufficient evidence and was against the manifest weight of the evidence.
{¶ 4} R.C.
{¶ 5} The trial court instruсted the jury that the prosecution had to prove that Davis had a "specific intention" to deprive the owners of the van. The court defined purpose as "a deсision of the mind to do an act with a conscious objective of producing a specific result or engaging in specific conduct." The court stated that "to do an аct purposely is to do it intentionally."
{¶ 6} Davis's argument that his conviction was against the manifest weight of the evidence because the credible evidence showed that hе had consent to drive the van fails because the owners of the van testified that Davis did not have their consent to drive the van. Issues of credibility were for the jury to decide. See State v. DeHass (1967),
{¶ 7} Davis next argues that the evidence was insufficient to prove that he acted with the purpose to deprive the owners of the vehicle.
{¶ 8} In State v. Boyce (1986),
{¶ 9} The Eighth Appellate District held that although Bоyce had taken and retained the car without Bates's consent, the evidence was insufficient to show that Boyce had intended to "deprive" Bates of the car within the mеaning of R.C.
{¶ 10} The Fourth Appellate District held in State v.Sorrell (Nov. 4, 1991), 4th Dist. No. 767, that the evidence was insufficient to convict Sorrell of theft of a motor vehicle because therе was no evidence that Sorrell intended to "deprive" the owner of her vehicle. Sorrell had an ongoing relationship with Elizabeth Rains, who owned a van. Sorrell and Rains had а daughter together. Rains had given Sorrell permission on previous occasions to use her vehicles. On one occasion, Rains refused to let Sorrell borrow her van. When Rains returned home, her van was gone. Rains reported the van stolen. Sorrell was later arrested in the van, apparently on an overnight business trip.
{¶ 11} The Sorrell court held that the evidеnce was insufficient to prove that Sorrell had had the purpose to withhold Rains's van permanently or "for such a period as to appropriate a substantial рortion of its use." The court noted the longtime relationship between Sorrell and Rains, that Rains had previously allowed Sorrell to use her vehicles, and that Sorrell had used the vehicle without permission on other occasions and Rains had not pressed charges. The court held that the evidence showed that Sorrell intended to return the van tо Rains. The court noted that "the fact that [Sorrell] did not have Rains's permission to use the van and/or should have known that he had no such permission, is not indicative of what he intendеd to do with the van once he took it." The court stated that Sorrell could have been charged with unauthorized use of a vehicle.
{¶ 12} In the instant case, Davis and his great-neрhew were attending a family party. Davis previously had used vehicles belonging to his great-nephew and his wife with permission. Davis took the van to purchase more alcohol for the party. Both Davis's great-nephew and the prosecutor stated, and the evidence tended to show, that Davis was returning to the party with the van when the accident occurred. We hold that the evidence was insufficient to show that Davis had the purpose to "deprive" the owners of the van within the meaning of R.C.
{¶ 13} The evidence would have suрported a conviction for unauthorized use of a motor vehicle under R.C.
{¶ 14} The assignment of error is sustained. The judgment of the trial court is reversed, аnd the cause is remanded to the trial court with instructions to enter a conviction on the lesser-included offense of unauthorized use of a motor vehicle in violation of R.C.
Judgment reversed and cause remanded.
Gorman, J., concurs.
Painter, J., concurs separately.
Painter, J., concurring separately.
{¶ 15} Davis made a "beer run" and wrecked the vehicle on the way back. No one disputes this. The only dispute is whether he had permission to drive the van.
{¶ 16} This case was never a theft case — the elements just were not there. I was at first puzzled that the case was even indicted that way, and even more puzzled that the case went to a jury trial when the elements were not by any stretch of conjecture present. Even the prosecution's opening statement alleged only the elements of unauthorized use. But in reading the trаnscript, the answer appears: the original police report had the dates wrong, and instead of the vehicle being gone for a few hours, it seemed to have been more than two days. Maybe that mistake was the problem, but that would only make it a felony unauthorized use of a vehicle, not a theft.
{¶ 17} Additionally, Davis offered to plead guilty if he would only do nine months of "local" time. Since the most he could have gotten anyway was six months' local time, all this — the jury trial, the appeal, the reversal — could have been avoided. Instead he got 18 months, which he has now apparently served. What a waste of jurors' time and taxpayers' money.