STATE OF OHIO, PLAINTIFF-APPELLEE, v. MALLORY FISHER, DEFENDANT-APPELLANT.
CASE NO. 2-10-09
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
October 25, 2010
[Cite as State v. Fisher, 2010-Ohio-5192.]
Appeal from Auglaize County Municipal Court, Trial Court No. 09-CRB-153. Judgment Affirmed.
APPEARANCES:
Quentin M. Derryberry, II, for Appellant
Darren L. Meade, for Appellee
{¶1} Defendant-Appellant, Mallory Fisher, appeals the judgment of the Municipal Court of Auglaize County convicting her of theft in violation of
{¶2} In March 2009, Fisher was charged via complaint with theft in violation of
{¶3} In October 2009, the case proceeded to a bench trial, and the following testimony was heard.
{¶4} Diane Blackburn testified that she was the office manager for the City of Wapakoneta and oversaw the utility department; that, in February 2009, Fisher was receiving utility service from the city at 911 Middle Street, Apartment B, in Wapakoneta; that, on February 1, 2009, the utility department sent Fisher a
{¶5} Barry Erb, an electrical lineman with the Wapakoneta electric department, testified that, on February 19, 2009, he disconnected the electric at 911 Middle Street, Apartment B; that, in order to disconnect the electric, he receives a work order, breaks the meter seal, removes the meter cover, pulls the
{¶6} Bill Lambert, the Superintendent of the City of Wapakoneta electrical department, testified that he had both disconnected and reconnected electrical service as part of his job; that he inspected the meter at Fisher‘s apartment after a meter reader reported it appeared suspicious; that the meter was running and the meter seal was missing; that he called the police department to request an officer; that, after removing the meter, he discovered the “boots” were laying on the bottom of the socket; and, that it is very simple for someone to reconnect a disconnected meter by removing the “boots” and breaking the seal
{¶7} Lieutenant Calvin Schneider testified that he was a police officer with the City of Wapakoneta; that he responded to a complaint regarding meter tampering on March 13, 2009, at Fisher‘s apartment; that he observed the meter was running; that he took photographs of the meter and then the electric department employees disconnected and removed the meter; that he spoke to Fisher and asked her if her power was on, and she responded that it was not; that Fisher stated her power had been on the prior evening; that he inquired whether she knew why her power was no longer on, and she replied it was because she did not pay her bill; that he asked Fisher if she had tampered with the meter, and she replied that she had not; that he inquired whether she was married or had a boyfriend, and she indicated that she lived alone and that she did not have a boyfriend and did not have anyone tamper with the electric for her; that he told Fisher she was responsible for her meter and the fact that she was receiving electricity illegally, and she stated that she understood; that, approximately three weeks later, Fisher came to the police department and asked him “if she would pay the [electric bill] amount in full if [he] would drop the charges” (trial tr., vol. I, p. 85); and, that he told her he did not have the power to do that. On cross-
{¶8} Thereafter, the State rested and Fisher moved for acquittal, which the trial court denied.1
{¶9} Fisher then testified that she was twenty-two years old; that she had lived at the Middle Street apartment for approximately one year; that, during that time, she could not remember any period during which she did not have electricity; that, on March 13, 2009, soon after she awoke, a police officer came to her apartment and asked her if her electric had been turned off; that she looked at her radio and responded that she did not have electric, but had it the night before; that the officer inquired as to if she knew why she had no electric, and she replied that she had forgotten to pay her bill; that the officer asked her if she had anyone turn her electric back on, and she did not know what he was talking about; that, after leaving for work several hours later, she never returned to the apartment except to retrieve her belongings; that, on March 27, 2009, she went to the police
{¶10} On cross-examination, Fisher testified that she was the responsible party for the utilities at her apartment; that she did not recall her utilities being turned off on February 19, 2009; that she did not dispute that she had not paid her bill; that she was behind on her electric bill by $477.24 in February; that she had made several payments between November 2008 and January 2009, but that for some reason they were not reflected on her February 2009 bill; that she did not remember noticing her payments were not reflected on the February bill; that she did not remember seeing the disconnection notice mailed to her in February 2009; that she did not think it was unusual that she was still receiving electric power in March even though she had a delinquent balance and had not paid her February bill; that she did not think the electric company gave away power for free; that she
{¶11} Thereafter, Lieutenant Schneider testified on recall that Fisher told him she did not have a boyfriend, and that he advised Fisher that her power had been turned off and reconnected illegally and that she was responsible for any tampering with the meter. The trial then concluded.
{¶12} In November 2009, the trial court found Fisher guilty2 of theft in violation of
{¶13} In December 2009, the trial court sentenced Fisher to community control until January 1, 2012, ordered her to serve one-hundred hours of community service, and ordered her to pay restitution in the amount of $111.82, plus “any other expenses related to the 2nd disconnect.” (Dec. 2009 Sentencing Entry, p. 1).
{¶14} In January 2010, Fisher appealed the judgment of the trial court. Thereafter, this Court dismissed Fisher‘s appeal for lack of jurisdiction because the judgment entry failed to comply with
{¶15} It is from her conviction and sentence that Fisher appeals, presenting the following assignments of error for our review.
Assignment of Error No. I
DEFENDANT HAS BEEN DENIED DUE PROCESS BECAUSE THE COMPLAINT FAILS TO STATE THE ESSENTIAL ELEMENTS OF ANY OFFENCE [SIC] AS PRESCRIBED BY OHIO R. CRIM. P. 3
Assignment of Error No. II
THE COURT ERRED IN ALLOWING THE PROSECUTION TO FIRST INTERJECT A RELIANCE ON
Assignment of Error No. III
THE VERDICT3 WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶16} Due to the nature of Fisher‘s arguments, we elect to address her first and second assignments of error together.
Assignments of Error Nos. I & II
{¶17} In her first assignment of error, Fisher contends that she was denied due process because the complaint failed to state the essential elements of the
{¶18} In her second assignment of error, Fisher contends that the trial court erred in allowing the State to first interject a reliance on
{¶19} If a charging instrument contains the elements of the offense charged and fairly informs the defendant of the charge against which she must defend and enables her to present an acquittal or conviction of the charge as a bar to future prosecutions for the same offense, it will satisfy federal and state constitutional requirements. State v. Reinhart, 3d Dist. No. 15-06-07, 2007-Ohio-2284, ¶14, citing State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, ¶9. Specifically, “an indictment or, in this case, an information must allege all elements of the crime intended[.] * * * If an essential and material element identifying the offense is omitted from the information, it is insufficient to charge an offense.” State v. Daniels, 3d Dist. No. 12-03-12, 2004-Ohio-2063, ¶3, quoting State v. Keplinger, 12th Dist. No. CA2002-07-013, 2003-Ohio-3447, ¶7. See, also, State v. Cimpritz
{¶20} Here, Fisher was charged with and convicted of theft in violation of
(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways:
* * *
(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent;
Additionally,
In a prosecution for a theft offense, as defined in section 2913.01 of the Revised Code, that involves the alleged reconnection of a gas, electric, steam, or water meter, conduit, or attachment of a utility that has been disconnected by the utility, proof that a meter, conduit, or attachment disconnected by a utility has been reconnected without the consent of the utility is prima-facie evidence that the person in possession or control of the meter, conduit, or attachment at the time of the reconnection has reconnected the meter, conduit, or attachment with intent to commit a theft offense.
{¶22} Further, it is clear that
{¶23} Accordingly, we overrule Fisher‘s first and second assignments of error.
Assignment of Error No. III
{¶24} In her third assignment of error, Fisher argues that the guilty verdict was against the manifest weight of the evidence. Specifically, Fisher contends that none of the city employees testifying as witnesses had any personal knowledge that Fisher had reconnected her electrical service.
{¶25} When an appellate court analyzes a conviction under the manifest weight standard, it must review the entire record, weigh all of the evidence and all of the reasonable inferences, consider the credibility of the witnesses, and determine whether, in resolving conflicts in the evidence, the fact finder clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, superseded by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175. Only in exceptional cases, where the evidence “weighs heavily against the conviction,” should an appellate court overturn the trial court‘s judgment. Id.
{¶27} Direct evidence of a fact is not a prerequisite for a trial court to make a finding of that fact. See State v. Lott (1990), 51 Ohio St.3d 160, 167; Michalic v. Cleveland Tankers, Inc. (1960), 364 U.S. 325, 330. In fact, circumstantial evidence and direct evidence have the same probative value, State v. Gillman, 3d Dist. No. 14-08-08, 2008-Ohio-2606, ¶17, citing State v. Jenks (1991), 61 Ohio St.3d 259, 272, and ““[c]ircumstantial evidence * * * may also be more certain, satisfying and persuasive than direct evidence.“” Lott, 51 Ohio St.3d at 167, quoting Michalic, 364 U.S. at 330. Furthermore, ““[w]hen the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction.“” State v. Williams, 73 Ohio St.3d
{¶28} Here, although none of the witnesses could testify that he or she had personal knowledge that Fisher had reconnected her electrical service, a large amount of circumstantial evidence supported this conclusion. Testimony was heard that Fisher was the responsible party for the utilities at her apartment; that she was mailed a disconnection notice and a bill for $492.70, including arrearages, on February 1, 2009; that her electricity was disconnected on February 19, 2009; that Fisher lived alone; that a March 13, 2009 reading of the meter revealed over $100 worth of electricity had been consumed at the apartment after the disconnection; that the meter was running on March 13, 2009, the seal had been broken, and the “boots” had been removed; that it was not difficult for a layperson to reconnect electricity after it had been disconnected; that Fisher told a police officer she did not have electricity because she did not pay her bill; that the officer informed her that she was responsible for the meter and was receiving electricity illegally, which she stated she understood; that Fisher went to the police department and asked them to “drop the charges“; and, that Fisher told the trial court judge she wanted to plead guilty because “she knew what she did.” We cannot find that, based on the preceding, Fisher‘s conviction was against the manifest weight of the evidence.
{¶30} Having found no error prejudicial to the appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J., and PRESTON, J., concur.
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