*1 Tweed, living evidence, he is at the and in and with whom this case child or for in' parent, by death of such this court time of the not be disturbed will le- parent maintenance such whose mandamus. at the time of his death.”
gally liable The commission was warranted of circumstances concluding In the absence the children of decedent wholly depen- a claimant is dicating upon him for wholly dependent were presumption sup- dent within support. There is some evidence statute, provided: it is further finding, either on the basis of port such cases, obliga-
“In all other presumption from decedent’s part, or in shall be dependency, whole for the maintenance of provide tion to with the facts determined in accordance of the facts totality the children or existing case at the Thus, in each there has been no resulting in the death injury time of the abuse of discretion demonstrated person shall be employee, but no dependency commission’s award dependent unless such benefits, considered as requested and the writ of man- family person is member damus is therefore denied. to him the employee, deceased or bears lineal surviving spouse,
relation of Writ denied. descendant, ancestor, or brother or has final discre- sister. The commission Stillman, Whiteside solely to
tion to award death benefits cur. wholly dependent those who are wholly J.,
apportion among retired, such benefits Stillman, Eighth dependent persons dependent District, other assigned Appellate equit- deems persons commission duty authority tive under of Section par- IV, in the circumstances of each 6(C), able Article Constitution. ticular case.” case,
In this the commission deter-
mined that the children of decedent wholly dependent upon
were
support. This factual determination supported by the fact that decedent was Appellee, The State per legally obligated provide Appellant. child, per additionally pay week expenses, all their medical and dental of their significant
well as a amount is thus expenses.
school tuition This case case,
factually different from the Tweed legal obliga-
where the decedent’s sole per
tion to his two children $17.50 child. per
week
Notwithstanding any factual distinc-
tions, however, the ultimate answer controlling
the assertion that Tweed enjoys a
herein is that the commission determining range of discretion
broad
dependency issues under R.C. hold the or not this court would
Whether commission, discretionary same as the (No. CA83-12-026 Decided some supported 1984.) decision which is September once occasions:
weapon on three examination, once when initial pur- pants in his placed *2 Roszmann, appellee. John H. taken, and having snapshot of poses Sehwart, appellant. JayC. out discharged when he again they were of the car while the window of Per Curiam. This cause came on However, countryside. driving about the appeal heard from the Court be court demon- Fayette County. Pleas of of Common all times Jackson that at strates Appellant, Billy eigh- burglary to of the spoils sidered teen-year-old prior felony man without a that burglar and of the property record, charged violating was with posses- ownership or claimed 2913.51 in that he re- received and/or clearly did therein. Jackson sory interest tained certain wit: stolen per- dispose any of retain or photographic equipment worth three occa- on the property sonal a .32 caliber semi-automatic phys- actual he had during which sions A pistol. jury found Jackson guilty of weapon, possession ical offense and he was a term sentenced to purpose for a limited possession year in of one the Mansfield Refor- duration. momentary of matory. appeal raising A timely was initiated II following single assign- two issues in the problem facing this court is to The ment of error: intended what determine “The prej- trial court erred to the receiving scope the offense of of in Defendant-appellant udice of overrul- R.C. 2913.51 property stolen be. ing his motion for instructions and the elements of the crime and failing grant Defendant-appel- -for provides that: lant’s motion for a directed verdict of receive, re- “(A) person shall No quittal, because his brief association tain, another, of of the property with in was no having knowing or reasonable cause sufficient, law, as a matter of [sic] has ob- been receipt constitute the or retainment of through commission of theft of- tained property.” said added.) (Emphasis fense.” As criminal statutes in with all The facts are not in strictly R.C. 2913.51 is to be construed dispute. 2901.04(A). against the state. R.C. Jackson and three friends were driv- Washington ing Court House area vehicle, Wolery Jackson, citing one of the occupants
when State Umstead, 316, at 329 Thomas the driver to (1976), asked (1976), him denied 366], let out at location and to certiorari Hankerson and State v. pick up some time later. Umstead’s 429 U.S. intentions at that time were unknown to 459 U.S. occupants 155], denied of car. certiorari Umstead extrapolate he “picked up,” announced endeavors burglary holdings committed a rule
had exhibited therein dominion possession fruits of his misdeed for all to ex- without cannot stolen control amine. over receiving the criminal acknowledged in ac- primarily deal physical possession Though tual of these cases sense. It concept receiving of with crime imagination great take a Jackson’s does not deal possession,” Paul W. Brown’s wherein support develop Justice circumstances facing at supra, person could find opinion Wolery, nocent opines: charges merely possessing wherein he * * *, prop- momentarily mere an item he had reason “The fact stolen, state’s of the defen- under the erty was believe was fact, dant, if such of R.C. analysis should be proof alone constitute the control proof purpose receipt example, had no au- that he not innocent. For wrongful, thority, power right anything purpose to do it to any of the return it to detect returning but to its owner or If actual criminal act. Umstead. thief should not be a tantamount weapon of the .32 caliber mere Nor should naked *3 patent it is to to be sufficient recently the record that all elements satisfy R.C. in this Obviously, have been established one is in actual who beyond tangible personal a reasonable doubt. How- that, ever, ex- argues Jackson is in an excellent to statutory judicial prop- of a defini- absence ercise dominion control over the word as used in so. If the erty tion of “receive” should he choose to do revolver, 2913.51, it a necessary apply is to a loaded caliber is .32 commonly high used and a definition which is “mere” indicates its ability to control as degree understood. well ordinary guarantee continuity An of the term virtually “accept” is to or to desire possessor “receive” “take” or that control should the New Inter “acquire,” Webster’s Third to do so. pos- or to Dictionary (1976) unquestionably
national While “ posses into one’s hand or one’s .32 momen- sessed the caliber revolver ‘tak[e] ” state, 27 exer- argued sion.’ State v. Botta Ohio as tarily 119]; directing Maumee v. in- restraining 200 O.O.2d “a cised [56 Geiger (1976), gun, St. 2d over the fluence” Dictionary something required Black’s Law before is 380]. 1979) 1140, the term (5 responsible Ed. held criminally he can be mean, into “receive” to take property. this stolen “[t]o control; accept custody and Jackson’s condonation of Umstead’s of; act, To collect.” receive stolen his failure to disassociate criminal acquiring act, has also been held to mean and control in the sense peers becoming his aware apparent legal power act, to over or and his suc- Umstead’s criminal handle, peer pressure of said States ex- cumbing United 1973), (E.D. amine, gun 384 F. discharge v. Walker Tenn. the stolen 262, 263. en Supp. This definition little to enhance his stature. does above, visages possession or control as discussed establishing essential element. Id. absence of evidence necessary This court that the definition mens rea for the of- required finds charged, element of not Walker best describes the fense Jackson’s acts would dominion and control believe the a violation R.C. 2913.51. we required defining the intent is ob- The lack of a matter of such viously defense jury would “We like a definition of element prosecution, in- receiving stolen To this specifically necessary to be averred or responded by the trial court quiry, proven by the state. the basis of On rereading original herein. us, we there was find that reinstructed, jury so by the presented sufficient evidence their and re- continued deliberations from which Jackson’s state of state guilty turned with their verdict. circumstantially mind could have been object While we proved, and must conclude special given, request for a error, assignment as it Jackson’s sole instruction, denied, tanta- which was is overruling of relates to the trial court’s objection mount acquittal pursuant his motion for Additionally, given. as this court 29(A), R. on Crim. not well-taken trial given by the instruction have basis as reasonable minds could inade- to the incorrect different as to reached conclusions cir- unique quate somewhat each the crime was whether element of cause, objection of this cumstances beyond a doubt. State proved reasonable necessary inasmuch as such Bridgeman 55 Ohio plain charge would be error. 401]. pro- While obtained, different result bar, tool to both bench a useful vides however, in considering the trial nevertheless it is as it relates of error court, after full consideration special presented evidence testimony and charge to the jury. properly jury, pro- cannot find We that Jackson’s fairly and they may so that posed special proper, instruction was apply law and telligently understand essentially clarifying instruction as it This the facts law to *4 possession.” defined opinion that the court is of simply There was testimony below, in view of the actually handled presented, inap- involved and prejudicial and was posite. we also cannot con- must Accordingly, we terest of Jackson. presentation that the trial clude er- sole sustain Jackson’s in 4 of the standard found this basis. ror on (1984) Section 513.51, sufficient in the cause sub It is the order appealed judice. This sets forth the final order herein judgment or is, re- ap- be, hereby and was elements of same fur- accompanied propriately by definitions the cause remanded versed “reasonable “property,” of the terms not inconsistent proceedings ther believe,” “theft.” Effec- cause to this decision. trial court tively, the allowed Judgment reversed remanded. was sufficient to Jones, a further concur. necessity
criminal sense. Koehler of “receive and/or retain” Hendrickson, P.J., dissenting. jury’s demonstrated wrote, information. The additional dissent.