THE STATE OF OHIO, APPELLEE, v. JOY, APPELLANT.
No. 94-651
Supreme Court of Ohio
December 20, 1995
[Cite as State v. Joy (1995), 74 Ohio St.3d 178.]
Submitted October 11, 1995
Nevertheless, we conclude that the respondents’ violations of DR 5-105(A) and 7-102(A) are sufficiently serious in themselves to warrant the sanctions recommended by the board. Accordingly, we suspend respondents from the practice of law for six months and tax costs to them.
Judgment accordingly.
DOUGLAS, Acting C.J., HARSHA, WRIGHT, RESNICK, F.E. SWEENEY and COOK, JJ., concur.
PFEIFER, J., dissents and would dismiss the causes.
WILLIAM H. HARSHA, III, J., of the Fourth Appellate District, sitting for MOYER, C.J.
Fritz Byers, for appellant.
FRANCIS E. SWEENEY, SR., J. The issue before this court is whether the trial court erred in failing to instruct the jury on one of the statutory definitions of “deprive,” an element of aggravated theft by deception. For the following reasons, we find that the trial court did not err in refusing to give this requested instruction. Accordingly, the judgment of the court of appeals is affirmed.
The elements of aggravated theft by deception are found in
“(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:
“* * *
“(3) By deception * * *”
“(C) ‘Deprive’ means to:
“(1) Withhold property of another permanently, or for such period as to appropriate a substantial portion of its value or use, or with purpose to restore it only upon payment of a reward or other consideration;
“(2) Dispose of property so as to make it unlikely that the owner will recover it;
“(3) Accept, use, or appropriate money, property, or services, with purpose not to give proper consideration in return for the money, property, or services, and without reasonable justification or excuse of not giving proper consideration.”
The rule regarding jury instructions is that requested instructions in a criminal case must be given when they are correct, pertinent, and timely presented. Cincinnati v. Epperson (1969), 20 Ohio St.2d 59, 49 O.O.2d 342, 253 N.E.2d 785, paragraph one of the syllabus. The court must give all instructions that are relevant and necessary for the jury to weigh the evidence and discharge its duty as the factfinder. State v. Comen (1990), 50 Ohio St.3d 206, 553 N.E.2d 640, paragraph two of the syllabus.
In the present case, the state had to prove that appellant intended to deprive REMSNO of money based on only one of the three alternate definitions of “deprive.” Appellant argued at the court of appeals level, and now to this court, that the third definition of “deprive” was also part of the state‘s presentation of the case and, thus, the trial court‘s failure to instruct the jury on this definition constituted reversible error. However, at the outset we note that had this instruction been given it could not have benefited the appellant, as it would only have given the jury a third independent basis upon which to find that he intended to deprive REMSNO of money. Thus, appellant is not prejudiced by this alleged error.
Furthermore, we agree with the state‘s contention that the evidence before the jury supported only the first two definitions of “deprive.” Specifically, the state argues that the evidence supported the second clause of the first definition of “deprive” that appellant had withheld the money “for such period as to appropriate a substantial portion of its value or use.”
Based on our review of the record, we find that the trial court properly refused to give the third definition of “deprive” dealing with consideration. The state‘s presentation of the case, including opening and closing arguments, did not rest on a theory that appellant failed to provide consideration for the “note.” Likewise, the trial court did not discuss whether appellant provided consideration for the “note.” Instead, in overruling appellant‘s Civ.R. 29 motion for acquittal, the court reasoned that “there is evidence from which the jury could reasonably infer a purpose to deprive, and in that respect I would stress that purpose to deprive does not require demonstration of permanent deprivation but rather a purpose to withhold for such a period as to appropriate a substantial portion of the value of the property in question.” Thus, the trial court agreed with the state‘s theory of the case, as the court found evidence to support the second clause of the first definition of “deprive.” At the conclusion of trial, the court found that the third definition of “deprive” was not relevant to the case and, thus, refused to give this instruction, as it would only confuse the jury.
The record reflects that appellant told REMSNO that the money would be invested at approximately seven percent interest at Marblehead Bank. Instead, appellant appropriated all of this money for his own use by placing the money in a noninterest bearing account of one of his businesses and then immediately transferring the money to another business he owned, a marina. Appellant then used the money to pay his marina bills, thus depriving REMSNO of the value and use of the money. When REMSNO personnel discovered that they had been deceived and that the money was not safely placed in an interest bearing account at the bank, they asked appellant to return the money immediately. However, appellant initially stated that he would look into whether he could pay the money back and then he lied about the whereabouts of the money. Appellant finally admitted that he could not return the money. REMSNO was deprived of the money‘s use until it was apparently returned one day before sentencing in this case, which was approximately one year after it was taken. Based on the above and the other evidence presented at trial, we conclude that the jury could have found beyond a reasonable doubt that appellant had withheld the money for such period as “to appropriate a substantial portion of its value or use.”
Finally, we agree with appellant‘s contention that the court of appeals erred in concluding that sufficient evidence existed to support his conviction based on the third definition of “deprive” dealing with consideration. In so finding, the appellate court incorrectly interpreted the law of contracts by stating that evidence of inadequate collateral in this case was proof of lack of consideration. Collateral is not a requirement of consideration. Restatement of the Law 2d, Contracts (1981) 172, Section 71. Thus, the court of appeals’ conclusion that appellant‘s conviction was supported by the third definition of “deprive” was misguided. As we have previously stated, appellant‘s conviction was supported by at least one of the two definitions of “deprive” which were properly given to the jury.
In conclusion, the third definition of “deprive” dealing with the issue of whether appellant gave consideration in exchange for receiving the money was not the theory behind the state‘s presentation of this case and, thus, an instruction on
Judgment affirmed.
MOYER, C.J., WRIGHT, HOFFMAN, PFEIFER and COOK, JJ., concur.
DOUGLAS, J., not participating.
WILLIAM B. HOFFMAN, J., of the Fifth Appellate District, sitting for RESNICK, J.