{¶ 1} Aрpellant, Edward Pawloski, appeals from the judgment of the Cuyahoga County Court of Common Pleas. For the reasons stated, we affirm in part and reverse and vacate in part.
{¶ 2} On May 29, 2008, a Cuyahoga County grand jury indicted Pawloski on two counts of theft and one count of breaking and entering. On March 25, 2009, the matter was tried to a jury.
{¶ 3} The state presented three witnesses. Gary Stinnett, the owner of Royalton Automotive, in North Royalton, testified that on the afternoon of March 27, 2008, Pawloski brought his 1995 Buick LeSabre into Stinnett’s automotive shop because its brakes had failed, rendering the vehicle inoperable. Stinnett drove Pawloski home and told him he would look at the car the next day. Stinnett testified he called Pawloski on March 28 and told him what repairs were needed but alsо told him that the cost of the work “was approaching” the value of the car. According to Stinnett, Pawloski gave him phone authorization to repair the brakes. A handwritten estimate for the work showed a notation that an oral estimate had been given; there was also a handwritten note on the estimate worksheet that said, “Phone auth. 3-28-08 10:42 am.” Stinnett stated that his mechaniсs performed the work on Pawloski’s car, using some used parts in order to save Pawloski money.
{¶ 4} Stinnett testified that on Saturday, March 29, when the repairs were completed, Stinnett’s receptionist contacted Pawloski to let him know that the car was repaired and ready to be picked up. The cost of the repairs, including parts and services, was $1,062. According to Stinnett, Pawloski did not come into the shop to pay for and pick up his car that morning. However, later that day, one of Stinnett’s employees noticed Pawloski’s car was missing from the lot; Stinnett thought the car might have been stolen. Stinnett testified that he reviewed his company’s security videotape in which he saw an unidentified car enter his lot and Pawloski exit that vehicle. Stinnett testified that on the videotape, he saw Pawloski get into his 1995 LeSabre, which had been repaired, and drive away. At no time did Pawloski enter the shop’s office and pay for the repairs or attempt to speak to anyone at Royalton Automotive.
{¶ 5} Stinnett testified that he attempted to reach Pawloski several times that day with regard to payment for the repairs. When his attempts to contact Pawloski were unsuccessful, Stinnett called the police and reported the car stolen. The state introduced the ignition key to Pawloski’s car, which Stinnett still had in his possession. The state also introduced the handwritten estimate and the repair bill generated by Stinnett, neither of which had been signed or initialed by
{¶ 6} On cross-examination, defense counsel questioned Stinnett about the dates and times that he was in touch with Pawloski about the needed repairs and the completed work. Stinnett could not remember whether Pawloski dropped off his car on March 26 or March 27. Defense counsel introduced into evidenсe phone records from Royalton Automotive for the dates March 26 through 29, 2008. The phone records showed a call to an unidentified number from Royalton Automotive at 10:42 a.m. on March 28. The records also showed several calls between Pawloski’s phone and Royalton Automotive on the dates in question. Stinnett testified that he was not certain whether he had called Pawloski’s home or cell phone on those occasions.
{¶ 7} Officer Christopher Johnson testified that on March 29, 2008, he was assigned to investigate the call from Stinnett about the 1995 Buick LeSabre missing from Royalton Automotive’s lot. Officer Johnson stated that he went to 8494 Wallings Road in North Royalton, because this was the address listed for the car’s registered owner. He knocked on the door and spoke with Pawloski’s brother, who indicated that Pawloski was not home. Officer Johnson noticed a 1995 Buick LeSabre matching the description of the missing car from Royalton Automotive parked behind the residence.
{¶ 8} Detective David Sword testified that he was assigned this case on April 22, 2008, to bring formal charges against Pawloski. He testified that he tried to obtain a statement from Pawloski, but Pawloski refused to provide one. Detective Sword testified that he viewed the security video from Royalton Automotive, in which he saw Pawloski enter his vehicle and drive it off the lot. He further testified that the videotape did not show Pawloski enter the shop’s office at any time prior to driving his car off the lot.
{¶ 9} At the conclusion of the state’s case, Pawloski made a Crim.R. 29 motion, which the court denied. The defense did not present any witnesses. The court denied Pawloski’s renewed Crim.R. 29 motion after the defense rested.
{¶ 10} The jury found Pawloski guilty of two counts of theft, in violation of R.C. 2913.02(A)(1) and (3), and one count of breaking and entering, in violation of R.C. 2911.13(A). The court sentenced him to 24 months of community control, 300 hours of community work service, and restitution in the amount of $1,062 to Royalton Automotivе.
{¶ 12} “I. The trial court erred when it denied appellant’s Rule 29 motion for acquittal because the state produced insufficient evidence to sustain a conviction.”
{¶ 13} In his first assignment of error, Pawloski argues that there was no evidence that a common-law lien was established giving Royalton Autоmotive ownership rights, without which Pawloski could not be convicted of committing theft against himself.
{¶ 14} A motion for acquittal under Crim.R. 29(A) is governed by the same standard used for determining whether a verdict is supported by sufficient evidence. State v. Tenace,
{¶ 15} Pawloski was convicted of one count of theft without consent, R.C. 2913.02(A)(1), and one count of theft by deception, R.C. 2913.02(A)(3).
{¶ 16} Pawloski argues that the state’s failure to present evidence that Royalton Automotive had a superior possessory right to his еar is fatal to a conviction. He also claims that if Royalton Automotive violated the Ohio Consumer Sales Practice Act (“OCSPA”), R.C. 1345.01 et seq., it cannot establish a common-law lien over his vehicle.
{¶ 17} “When a garage owner provides repairs to a motor vehicle, unless the contract between the parties provides otherwise, the garage owner may retain possession of the motor vehicle as security for the value of the repairs.” Robinson v. Barry Equip. Co. (July 23, 1982), Wood App. No. WD-82-10,
{¶ 18} However, “[pjursuant to the [OCSPA], codified at R.C. Chapter 1345, and regulations enacted thereunder, it is a deceptive consumer transaction for a motor vehicle to be serviced without a prior written estimate or work order authorizing the work to be performed without the estimate. Alexander v. Transm. by Bruce, Inc., Cuyahoga App. No. 89908,
{¶ 19} Some Ohio courts have recognized that “it is an unfair and deceptive practice under the OCSPA for a car mechanic or garageman to retain a common-law garageman’s possessory lien on a motor vehicle after he has engaged in conduct [that] violates the Act” and that such violations can act to negate the mechanic’s right to retain a possessory lien over the vehicle. Mannix v. DCB Serv., Inc., Montgomery App. No. 19910,
{¶ 20} We find that the facts in Vitale, which the state relies on, are sufficiently distinguishable from the facts in this case. In Vitale, the garageman voluntarily relinquished possession of Vitale’s car, thereby dissolving his possessory interest in the vehicle. This did not occur here, where at all times Stinnett retained possession of Pawloski’s car until Pawloski removed it from the lot.
{¶ 21} However, in State v. Ames,
{¶ 23} In dicta, the Ames court indicated that had the case been charged as theft of services by deception, under R.C. 2913.02(A)(3), and had the state proved that Ames never had the intent to pay for services he had requested, its analysis would have been different. Id. Likewise, in State v. Pritchett (Nov. 12, 1992), Cuyahoga App. No. 61072,
{¶ 24} We find that the state presented sufficient evidence of theft of services by deception. Stinnett’s employee notified Pawloski that the car was ready. There was evidence that Pawloski сame onto the Royalton Automotive lot and took his car' without making any attempt to pay his bill or speak with Stinnett. Stinnett also testified that he tried to reach Pawloski on several occasions to pay for the repairs and Pawloski never returned Stinnett’s phone calls or paid his bill.
{¶ 25} This evidence is sufficient to support a finding that Pawloski had the purpose to deprive Stinnett by deception of the amount due and owing for the car repairs.
{¶ 26} Therefore, we find that Pawloski’s Crim.R. 29 motion should have been grantеd as to Count 1 and denied as to Counts 2 and 3. His first assignment of error is sustained in part and overruled in part. His conviction for theft in violation of R.C. 2913.02(A)(1) is vacated.
{¶ 28} In light of our decision that the state failed to present sufficient evidence of a common-law lien, Pawloski’s second assignment of error is moot.
{¶ 29} “III. The state improperly withheld the video evidence of the defendant dropping his ear off at Royalton Automotive in violation of defendant’s due process rights.”
{¶ 30} In his third assignment of error, Pawloski argues that the state’s failure to produce the security videotape violated his due-process rights because its production would have eliminated inconsistencies in the witnesses’ testimony. Specifically, he points to Stinnett’s failure to remember certain dates related to the work on Pawloski’s car. We are not persuaded.
{¶ 31} We note at the outset that Pawloski does not cite any case law in support of his argument. Having failed to raise this issue before now, we understand that Pawloski is arguing that the videotape may have been exculpatory, but he offers no explanation as to how. Yet, the crux of his argument is that the videotape evidence would undermine Stinnett’s credibility regarding the dates of his interаction with Pawloski.
{¶ 32} The state’s failure to preserve materially exculpatory evidence violates a defendant’s due-process rights under the Fourteenth Amendment to the United States Constitution. See Arizona v. Youngblood (1988),
{¶ 33} In contrast, evidence is not materially exculpatory if it is merely potentially useful. See State v. Lewis (1990),
{¶ 34} Our inquiry here is what standard should apply in evaluating an alleged due-process violation based on lost or destroyed evidence. We find that Pawloski has not persuaded us that the videotape would have been materially exculpatory, i.e., he was not the person who drove his car off the Royalton Automotive lot.
{¶ 35} Having concludеd that the missing videotape could not have been exculpatory but, rather, may have been useful to Pawloski in undermining the credibility of the state’s key witness, we must next determine whether the state acted in bad faith.
{¶ 36} Pawloski can demonstrate a violation of his due-process rights under these circumstances only upon a showing of bad faith in the destruction of the evidence. See Youngblood,
{¶ 37} Stinnett’s testimony was that he viewed the videotape and saw Pawloski dropped off in his lot, look around the lot, enter the 1995 LeSabre, and drive off the lot without making any attempt to speak with an employee of the company. The jury was free to believe Stinnett or not whether he viewed Pawloski take his car off the lot without paying for the repairs.
{¶ 38} Furthermore, the jury was free to believe Stinnett’s testimony about the date Pawloski dropped his car off for repairs, the dates Stinnett called Pawloski
{¶ 39} We do not find that the state improperly withheld the videotape evidence in light of the fact that the tape was erased accidentally. Nor do we find that the failure to produce the videotape violated Pawloski’s due-process rights because there was no showing of bad faith. Pawloski’s third assignment of error is overruled.
{¶ 40} The judgment is affirmed in part and reversed in part to vacate Pawloski’s theft conviction under R.C. 2913.02(A)(1).
Judgment affirmed in part and reversed in part, and conviction vacated in part.
Notes
. The state produced other Royalton Automotive work orders with Pawloski’s name on them. Two had been signed or initialed by him; two had not.
. Pawloski was also convicted of breaking and entering. See R.C. 2911.13(A). However, if both theft convictions were overturned, the breaking-and-entering conviction could not stand alone.
. Ohio Adm.Code 109:4-3-13 states: “(A) It shall be а deceptive act or practice in connection with a consumer transaction involving the performance of either repairs or any service upon a motor vehicle where the anticipated cost exceeds twenty-five dollars and there has been face to face contact at the supplier’s place of business during the hours suсh repairs or services are offered, between the consumer or his representative and the supplier or his representative, prior to the commencement of the repair or service for a supplier to: (1) Fail, at the time of the initial face to face contact and prior to the commencement of any repair or service, to provide the consumer with a form which indicates the date, the identity of the supplier, the consumer’s name and telephone number, the reasonably anticipated completion date and, if requested by the consumer, the anticipated cost of the repair or service.”
. We also note that the evidence showed that the car was inoperable рrior to the repairs being made. Had Pawloski not intended to deprive Stinnett of his services, he should have assumed that the car was not repaired and could not be driven off the lot.
. Although not in evidence, the state referred to a complaint made to the Better Business Bureau ("BBB”) by Pawloski against Royalton Automotive. The state introduced the response from Stinnett to the BBB and elicited from Stinnett that the complaint was dismissed.
. See Orange Village v. Woolfolk (Oct. 5, 2000) Cuyahoga App. No. 77451,
. In fact, defense counsel stated to the court while arguing his Crim.R. 29 motion: "I admit that [Pawloski] did not handle the situation in a good way. He did go pick up his own car