STATE OF OHIO v. DESTINY ROBERTS
Appellate Case No. 26431
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
July 2, 2015
[Cite as State v. Roberts, 2015-Ohio-2716.]
FAIN, J.
Trial Court Case No. 14-CRB-4931 (Criminal Appeal from Dayton Municipal Court)
OPINION
Rendered on the 2nd day of July, 2015.
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LYNN DONALDSON, Atty. Reg. No. 0041507, and STEPHANIE L. COOK, Atty. Reg. No. 0067101, by JOSHUA T. SHAW, Atty. Reg. No. 0087456, Dayton City Prosecutor’s Office, 335 West Third Street, Room 37, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
CHRISTOHER W. THOMPSON, Atty. Reg. No. 0055379, Law Office of the Public Defender, 117 South Main Street, Suite 400, Dayton, Ohio 45422
Attorney for Defendant-Appellant
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FAIN, J.
{¶ 1} Defendant-appellant Destiny Roberts appeals from her conviction for Theft, a
{¶ 2} We conclude that the court did err in convicting Roberts of violating
I. Roberts Pawns her Landlord’s Air Conditioner
{¶ 3} In December 2013, Roberts entered into a one-year lease with David Oliver for a residential apartment located at 1361 Florence Street, Dayton, Ohio. The lease was not admitted in evidence, but Oliver testified that in exchange for monthly rent of $500, Roberts had consent to occupy the premises and to use the appliances provided in the apartment, including two window air-conditioning units. Oliver testified that Roberts paid all of her monthly rent late, and as a result, he commenced eviction proceedings against her, requiring her to move out by June 14th. Oliver testified that he inspected the apartment after Roberts moved out in mid-June, and discovered the two window air-conditioning units were missing. Oliver contacted Roberts numerous times, then contacted the police to report the missing units. He learned that Roberts had taken the units to Mr. Pawnbroker in April and used them to secure a loan. After Roberts was called to the police station to make a statement, her mother went to Mr. Pawnbroker, settled the debt, and returned the air-conditioning units in good working order to Oliver. Oliver agreed that Roberts had consent to use the air-conditioning units to cool the apartment,
II. The Course of Proceedings
{¶ 4} The day after the units were returned, Roberts was charged with Theft, a violation of
{¶ 5} A bench trial was conducted, during which testimony was received from two police officers, the pawnbroker and the landlord, Oliver. At the completion of the State’s case, Roberts moved for a judgment of acquittal pursuant to
The Court finds that Defendant went beyond the consent given by the owner. The Court further finds that it can reasonably infer from the owner’s testimony that the Defendant went beyond the owner’s consent and converted the air conditioner and pawned it for cash without authorization by the owner.
The Court does find that Defendant had a limited consent to use the air conditioner for its normal purpose which was to cool the property the Defendant rented. The Court further finds that this is not a case of embezzlement or a situation where a person acquired possession by reason of employment or a position of trust. The action by Defendant went beyond the limited consent given by the owner. The Defendant’s actions also violated a tenant’s duty to preserve and protect the property of her owner and landlord.
Dkt. at 24.
{¶ 6} Based on these findings, the trial court concluded there was sufficient evidence to establish all the elements of
III. The Evidence Is Insufficient to Support a Conviction of R.C. 2913.02(A)(1)
{¶ 7} Roberts’s sole assignment of error states as follows:
THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S CRIM. R. 29 MOTION AS THE EVIDENCE WAS NOT SUFFICIENT TO SUSTAIN A CONVICTION.
{¶ 9} When a defendant challenges the sufficiency of the evidence, she is arguing that the State presented inadequate evidence on at least one element of the offense to sustain the verdict as a matter of law. State v. Hawn, 138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d Dist. 2000). “ ‘An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.’ ” State v. Morefield, 2d Dist. Montgomery No. 26155, 2015-Ohio-448, ¶ 18, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 10} The elements of the offense of Theft 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:
(1) Without the consent of the owner or person authorized to give consent;
(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent;
(3) By deception;
(4) By threat;
(5) By intimidation.
{¶ 11} The sole assignment of error focuses on the issue of whether the evidence is sufficient to prove the elements of the crime charged in the complaint,
{¶ 12} In some circumstances, when the evidence supports a conviction of an offense that is different than the offense identified in the charging document,
The court may at any time before, during, or after a trial amend the indictment, information, complaint, or bill of particulars, in respect to any defect, imperfection, or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged. * * * unless it clearly appears from the whole proceedings that the defendant has not been misled or prejudiced by the defect or variance in respect to which the amendment is made.
{¶ 13} We have previously cited with approval a case in which the First District Court of Appeals held that a trial court erred by amending Theft charges, pursuant to
We agree with the First District‘s holding that these two provisions of the statute are separate crimes requiring proof of different elements. State v. Woody (1986), 29 Ohio App.3d 364, 365, 505 N.E.2d 646. More specifically, the provision that is violated depends on whether the individual ever had consent to control the property. Once a person lawfully has control over property with consent, that person cannnot thereafter exert control for a different purpose. That person already has control. Instead, what changes is whether or not the individual [acted] within the scope of the consent. If the individual begins to use the property for something outside what the owner specifically authorized, the individual has gone beyond the owner‘s consent. The statute allows for this precise situation in
R.C. 2913.02(A)(2) .
{¶ 14} In State v. Frezgi, we distinguished our holding in Dortch, in a case where the defendant failed to return his employer’s cell phone, after he was terminated from his job. State v. Frezgi, 2d Dist. Montgomery No. 22439, 2008-Ohio-4732. We concluded that the State had proved all the elements of
{¶ 15} Therefore, we conclude that the trial court erred in overruling Roberts’s
IV. Conclusion
{¶ 16} Roberts’s sole assignment of error having been sustained, the judgment of the trial court is Reversed, and Roberts is discharged of the offense of Theft.
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FROELICH, P.J., and DONOVAN, J., concur.
Copies mailed to:
Lynn Donaldson
Stephanie L. Cook
Joshua T. Shaw
Christopher W. Thompson
Hon. John S. Pickrel