Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office
THEFT OFFENSES (157)
Also see Forgery;
Passing Bad Checks; Ownership, Proof of;
Allied Offenses of Similar Import;
Lesser Included Offenses.
Valuation; Number of separate offenses
theft and grand theft
Unauthorized use of a vehicle or property
Theft in office
Other theft offenses
R.C. 2913.01(K) -- "Theft offense" defined.
R.C. 2913.02 -- Theft.
R.C. 2913.03 -- Unauthorized use of a vehicle.
R.C. 2913.04 -- Unauthorized use of property;
R.C. 2913.41 -- Defrauding a livery of
R.C. 2913.46 -- Trafficking in or illegal use
of food stamps.
R.C. 2913.47 -- Insurance fraud.
R.C. 2913.51 -- Receiving stolen property.
R.C. 2913.61 -- Value of stolen property.
R.C. 2913.71 -- Degree of offense when certain
R.C. 2921.41 -- Theft in office.
R.C. 2945.75(B) -- Proof of prior conviction.
State v. Smith,
117 Ohio St. 3d 447,
2008-Ohio-1260 – Syllabus: "(1) In determining whether an offense is a
lesser included offense of another when a statute sets forth mutually exclusive
ways of committing the greater offense, a court is required to apply the second
part of the test established in State v. Deem
(1988), 40 Ohio St. 3d 205, 533 N.E. 2d 294, paragraph three of the syllabus, to
each alternative method of creating the greater offense. (2) Theft, as defined
in R.C. 2913.02,
is a lesser included offense of robbery, as defined in
From the body of the opinion it appears this does not apply to robbery premised
on attempted theft which is a mutually exclusive way of committing the greater
offense. The degree of the theft conviction is not limited to M-1 theft as the
court views value as a special finding to determine the degree of the offense
and not a part of the definition of the crime.
Smith, 121 Ohio St. 3d 409,
2009-Ohio-787 – Same case as 117 Ohio St. 3d 447 on
reconsideration. The elements of theft are as set forth in
2913.02(A). Additional matters affecting punishment are
deemed "special findings" and are not elements. In an indictment
for theft due process requires such matters be alleged, but the
fact the defendant has been indicted for robbery is sufficient
to place him on notice that if found guilty of the lesser
included offense of theft his penalty might be increased by
"special findings" such as value.
v. Greg‘s Pawn Shop, 181 Ohio App. 3d 217,
2009-Ohio-713 – The true owner of stolen property that has
been pawned is entitled to its return by the pawn shop without
paying any charge. Judgment on the pleadings properly granted.
Barnes v. United States (1973), 412 U.S.
837 -- A jury instruction regarding a permissive inference of guilty knowledge
from unexplained possession of recently stolen property satisfies due process if
it does not serve to excuse the prosecution from its burden of proof beyond a
reasonable doubt. Also see State v. Arthur (1975), 42 Ohio St. 2d 67;
State v. Giles (August 7, 1980), Franklin Co. App. No. 80AP-297, unreported
(1980 Opinions 2296); State v. McAllister (1977), 53 Ohio App. 2d 176.
State v. Snowden (1982), 7 Ohio App. 3d
358 -- Headnote 2: "Mistake of fact can, in an appropriate circumstance, negate
either the 'knowingly' or 'purposely' elements of specific intent crimes such as
Nichols v. United States (1994), 511 U.S.
738 -- A prior uncounselled misdemeanor conviction, constitutional under Scott v. Illinois (1979), 440 U.S. 367 because no sentence of imprisonment
was imposed, may be used to enhance the sentence for a later offense, even
though that sentence entails imprisonment. Baldasar v. Illinois (1980),
446 U.S. 222, overruled. Opinion leaves standing the rule that an uncounselled
prior conviction may not be used to increase the degree of an offense, where
proof of the conviction is an element of the crime rather than a sentencing
consideration. See Burgett v. Texas (1967), 389 U.S. 109.
State v. Henderson (1979), 58 Ohio St. 2d
171 -- Syllabus: "Where an accused has entered a plea of guilty to a theft
offense but has not been sentenced by the court on that charge, such offender
has not been previously convicted of a theft offense within the meaning of
2913.01(B). (2) To constitute a prior conviction for a theft offense, there must
be a judgment of conviction, as defined in Crim. R. 32(B), for the prior
offense." Also see State v. Johnson (1995), 101 Ohio App. 3d 129.
State v. Bolan (1971), 27 Ohio St. 2d 15
-- Syllabus: Where, pursuant to
R.C. 2935.041, an employee of a merchant has
detained a person whom he has probable cause to believe has unlawfully taken
items offered for sale by the mercantile establishment, an admission or
confession made during such detention is not rendered inadmissible by the
failure of such employee to fully explain to such detained person those
constitutional rights set forth in Miranda v. Arizona, 384 U.S. 436."
Columbus v. Barger (June 16, 1977),
Franklin Co. App. No. 77AP-137, unreported (1977 Opinions 2248) --
allows a merchant to detain a shoplifter to recover stolen items, though without
search or undue restraint, or until an arrest can be made by a police officer,
however, even if the merchant exceeds his authority, conviction is not
East Cleveland v. Odetellah (1993), 91
Ohio App. 3d 787 -- A merchant may not detain a person suspected of theft for
seven hours, handcuffed to a chair. Under
R.C. 2935.041 the detention was not
reasonable. Construed as a citizen's arrest, the delay was unnecessary. Unlawful
restraint conviction upheld.
State v. Phillips (1993), 84 Ohio App. 3d
836, 841 -- While customer may have permission of store owner to carry
merchandise about while deciding whether to make a purchase, this consent does
not extend to movement of merchandise within the store in order to facilitate
State v. Brown (1995), 108 Ohio App. 3d
489 -- Disbarred attorney could be convicted of theft for having continued to
practice law. R.C. 4705.07, proscribing falsely representing oneself to be an
attorney, is not a specific statute precluding prosecution under the general
State v. Mehozonek (1983), 8 Ohio App. 3d
271 -- Defendant cannot be convicted of theft resulting from a sting operation
by employer to test honesty of employees, since by setting up the sting employer
has consented to removal of the property.
State v. Diephaus (1989), 55 Ohio App. 3d
90 -- Receiving conviction reversed where person who stole carton of cigarettes
was used by the police to conduct a sting operation after being caught.
Defendant who purchased recovered carton of cigarettes, did not receive stolen
property, though he may have mistakenly believed he was doing so.
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Valuation; Number of separate offenses
State v. Preztak,
181 Ohio App. 3d 106,
2009-Ohio-621 – (1) When a theft offense is premised on a continuing course
of conduct, such as embezzlement, time does not begin to run for purposes of the
statute of limitations until the final theft occurs.
required offenses within the employment relationship be aggregated. They could
not be prosecuted as separate counts. (2) Case remanded for more accurate
determination of restitution as amount in judgment entry was different from
amount stated in court. Defendant further contended some restitution had already
been paid into the probation department.
State v. Cooper,
168 Ohio App. 3d 378,
2006-Ohio-4004 -- A shoplifter who enters a store lawfully is a thief, not a
burglar. But the situation changes if he enters a separately secured part of the
State v. Colquitt, Montgomery App. No.
2003-Ohio-4318 -- Conviction for unauthorized use of property does
not bar prosecution for robbery based on the same facts.
State v. Rivera, Cuyahoga App. No.
2004-Ohio-6648 -- Restitution in the amount of the value of a car is
improper when the indictment charged F-4 RSP of an engine. Since the upper limit
of F-4 RSP is $5,000, the order was improper.
State v. Reese, 165 Ohio App. 3d 21,
2005-Ohio-7075 -- Owner of stolen ring testified that her mother had told he the
ring was purchased by her father for $3,500. There is no Crawford
violation because the statement was nontestimonial, but the statement was not
admissible under the family history exception set forth in Evidence Rule
804(B)(4). Conviction reduced to a misdemeanor.
State v. Chaney (1984), 11 Ohio St. 3d 208
-- Applying R.C. 2913.61(D), stolen car parts are not "personal effects" and
thus value is to be determined on the basis of fair market value and not cost of
replacement with comparable new items.
State v. Russell (June 24, 1980), Franklin
Co. App. No. 79AP-923, unreported (1980 Opinions 1776, 1779) -- Marked price of
goods offered for retail sale is prima facie evidence of fair market value. Also
see State v. Cunningham (1990), 67 Ohio App. 3d 366.
State v. Clark (November 19, 1981),
Franklin Co. App. No. 81AP-555, unreported (1981 Opinions 3731) -- The value of
a purse stolen from its owner is replacement cost.
State v. Adams (1988), 39 Ohio St. 3d 186
-- Sales tax is not to be included in calculating replacement cost. ($295 radar
State ex rel. Jones v. Garfield Heights
Municipal Court (1997), 77 Ohio St. 3d 447 -- Defendant brought a
prohibition action challenging the jurisdiction of the municipal court where he
was charged with petty theft because a police report indicated that in addition
to the theft of $249 worth of beef he was charged with, he had also stolen $89
worth of pork, bringing the total over the $300 line between misdemeanor and
felony theft. Complaint was properly dismissed. Prosecutor acted within his
State v. Doll (1970), 24 Ohio St. 2d 130
-- Multiple embezzlements within the same employment relationship are a single
offense. See R.C. 2913.61(C).
State v. Rice (1995), 103 Ohio App. 3d
388, 402 -- Multiple schemes to extract money from disability and pension fund
(not amounting to theft in office because the defendant was an outside
contractor) were in the nature of embezzlement and merged into a single theft
State v. Krutz (1986), 28 Ohio St. 3d 36
-- "Theft in office offenses, as defined in
R.C. 2921.41, are not 'theft
offenses' which must be tried as a single offense under
State v. Wilson (1996), 113 Ohio App. 3d
737, 744-745 -- Seven counts of RSP did not merge where checks taken from a
single owner were separately retained and disposed of.
State v. Coffman (1984), 16 Ohio App. 3d
200 -- Theft counts merge when based on theft from two purses left in the same
State v. Fisher (1977), 52 Ohio App. 2d 53
-- Headnote 2: "The act of stealing a motor vehicle containing personal property
constitutes one offense and a defendant may not be additionally convicted of
stealing the personalty."
State v. Woody (1986), 29 Ohio App. 3d 364
-- Amendment of theory of culpability in a theft indictment from "without" the
owner's consent to "beyond" the owner's consent changed the identity of the
crime. Defendant ordered discharged.
State v. Perkins (1994), 93 Ohio App. 3d
672 -- The combination to a safe constitutes property for purposes of
establishing a theft offense.
State v. Coburn (1992), 84 Ohio App. 3d
170 -- Indictment charging RSP of a motor vehicle does not have to allege the
value of the vehicle. Allegation that a motor vehicle is the property involved
is sufficient to establish the degree of the offense.
State v. Burton (1983), 11 Ohio App. 3d
261 -- Headnote: "Where the defendant was arrested prior to the amendment of the
theft statute, but pleaded guilty and was sentenced subsequent to the effective
date of the amended theft statute,
R.C. 1.58 requires that defendant receive the
benefit of the lesser sentence (based on valuation) provided in the amended
statute." Also see State v. Coffman (1984), 16 Ohio App. 3d 200.
State v. Warren (1998), 125 Ohio App. 3d
298 -- Defendant was found guilty of grand theft, based on prior theft
conviction, as a lesser included offense to robbery. Stipulation forestalled
claim of lack of notice that lesser would be grand theft and not petty theft.
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Petty theft and grand theft
State v. Pawloski, 188 Ohio App. 3d
2010-Ohio-3504 – Car owner picked his repaired vehicle up after hours
without paying, leading to charges of B&E, theft based on lack of consent, and
theft by deception. The theft by lack of consent charge required proof of a
valid mechanic’s or garage man’s lien. Because the repairs were performed
without a written estimate, or a written waiver of the right to an estimate, as
required by Ohio Adm. Code 109:4-3-13, the lien was not perfected. Thus the
evidence does not support conviction. But the theft by deception count does as
the evidence allowed the inference the defendant never intended to pay for
State v. Ames, 182
Ohio App. 3d 736,
2009-Ohio-3509 – Owner of a pickup truck was charged with theft after his
nephew removed it from the premises of a repair shop without paying the bill.
Charge was theft of services premised on the shop‘s common law lien. The shop
had not provided a written estimate as to the cost of repairs as required by the
Ohio Consumer Sales Practice Act. Reversed. An unfair or deceptive practice
under the OCSPA negates a mechanic‘s lien. Defendant claimed he had asked for a
diagnostic test and had not authorized repairs.
v. Whiteaker, 188 Ohio App. 3d 489,
2010-Ohio-3502 – In a family melodrama involving coins from
washers and driers, dementia, milk cans, a trip to South Dakota,
and maybe an admission, conviction was not supported by
State v. Dorsey, Lucas App. Nos.
L-01-1257, 1258, 1259 and 1260,
2002-Ohio-5196, ¶40-45 -- For theft to be
elevated to a felony, auto titles must be blank. Auto titles which were
completely filled in, but not signed by the transferee were not blank. Companion
receiving stolen property conviction reversed as well.
State v. Black on Black Crime, Inc.
(2000), 136 Ohio App. 3d 436 -- City mistakenly wired in excess of $600,000 to
the account of a nonprofit corporation, which was dissipated before mistake was
discovered and return demanded. Theft conviction of the corporation itself
State v. Williams (1984), 16 Ohio App. 3d
168 -- (1) The actual stolen property does not have to be introduced at trial.
Compare State v. Farmer (1951), 156 Ohio St. 214. (2) Property does not
have to be removed from the premises.
State v. Arnold (1983), 9 Ohio Misc. 2d 14
-- Headnote: "Renunciation of criminal purpose is not voluntary if it is
motivated, in whole or in part, by circumstances, not present or apparent at the
inception of the actor's course of conduct, which increase the probability of
detection or apprehension or which make more difficult the accomplishment of the
State v. Griffin (November 4, 1980),
Franklin Co. App. No. 80AP-311, unreported (1980 Opinions 3424) -- Indictment
charged receiving stolen property as a felony based on value. Verdict form
referred to offense as charged in the indictment, but the jury was never
instructed as to the enhanced charge. Verdict was only sufficient to find the
defendant guilty of a misdemeanor. Compare State v. Woods (1982), 8 Ohio
App. 3d 56 where the court read the elements set forth in the indictment as a
part of instructions. Also see State v. Park
(1962), 174 Ohio St. 81; State v. Ridgeway (1972), 35 Ohio App. 2d 381.
State v. Lavandera (1986), 34 Ohio App. 3d
83 -- Headnote: "When a customer at a gasoline service station mistakenly pumps
his own gasoline from a full-service pump instead of a self-service pump, and
pays at the lower self-service price, a conviction for theft cannot stand if
based on a complaint for theft of 'property' in the amount of the price
difference, where the price difference represents only the value of services not
State v. Jacobozzi (1983), 6 Ohio St. 3d
86 -- Theft proven where established contractor received money for a substantial
amount of work that had not been completed.
State v. Vitale (1994), 96 Ohio App. 3d
695 -- Theft conviction reversed as against the weight of the evidence where
body shop owner filed theft charges based on unpaid and disputed bill for
repairs of a car which he had voluntarily returned to its owner.
State v. Luna (1994), 96 Ohio App. 3d 207
-- A theft by deception count of an indictment is insufficient when it fails to
allege essential facts showing the element of deception, or to allege that the
deception occurred. The indictment must also allege that the offense occurred
within the jurisdiction of the court.
State v. Fyffe (1990), 67 Ohio App. 3d 608
-- Shoddy and overpriced home repairs did not amount to theft by deception.
State v. Baumgarden (1988), 49 Ohio App.
3d 24 -- Theft by deception not proven where checks written by auto dealership
sales manager to himself were properly entered in the company's books, which
were always available to anyone who might have wanted to examine them.
State v. Bakies (1991), 71 Ohio App. 3d
810 -- Theft by deception not proven where it was not established that the
defendant did not intend to repay a loan. Defendant was also charged with using
bronze statutes offered as collateral as criminal tools.
State v. Barker (1998), 128 Ohio App. 233,
244-245 -- Theft by deception convictions affirmed where one customer ended up
with something other than a 20-pound "cockapoo," notwithstanding breeder's civil
judgment for the balance of the purchase price, and papers for another dog were
State v. McGee (1996), 112 Ohio App. 3d
208 -- Rule 29 motion should have been granted where facts might have supported
theft by deception, but not theft as charged in terms of a taking without the
State v. Brown (1994), 99 Ohio App. 3d 604
-- In a Medicaid fraud prosecution deception was established by showing doctor
billed separately for supplies which were covered by reimbursement for normal
office visits, even though supplies may have been used.
State v. Jackson (1993), 90 Ohio App. 3d
702 -- Aider and abettor could not be prosecuted for grand theft based on the
principal's five prior theft convictions. While an aider and abettor may be
punished as if he or she committed every act committed by the principal, the
principal's criminal record may not be attributed to the aider and abettor.
State v. Burrows (1992), 80 Ohio App. 3d
404 -- Missing business funds were traced to control of bookkeeper charged with
theft. Since she was authorized to exert control over the funds in question, and
the basis of the indictment was
R.C. 2913.02(A)(1) which proscribes control
"without the consent of the owner or person authorized to give consent,"
conviction was not supported by the evidence. While the evidence might have
supported a conviction for theft under another subdivision relating to exceeding
the scope of consent: "It is not within the province of a reviewing court to
amend the indictment to conform to the evidence." (p. 408.)
State v. Alexander (1975), 50 Ohio App. 2d
55 -- It is proper to submit the question of a prior conviction to the jury when
it enhances the degree of the offense.
State v. Brandon (1989), 45 Ohio St. 3d 85
-- Syllabus: "Where questions arise concerning a prior conviction, a reviewing
court must presume all underlying proceedings were conducted in accordance with
the rules of law and a defendant must introduce evidence to the contrary in
order to establish a prima-facie showing of constitutional infirmity." Compare
State v. Elling (1983), 11 Ohio Misc. 2d 13.
State v. Porter (1976), 49 Ohio App. 2d
227 -- Prior conviction may be used for enhancement of subsequent offense even
though when plea was entered the defendant was not advised of this consequence.
In re Russell (1984), 12 Ohio St. 3d 304
-- In delinquency proceedings, a prior adjudication of delinquency predicated on
a theft offense constitutes a previous conviction of a theft offense under
2913.02 for purposes of determining disposition by the juvenile court. Also see
In re Hayes (1986), 29 Ohio App. 3d 162 -- Evidence of prior theft
adjudication admissible notwithstanding
State v. Glenn (1990), 56 Ohio Misc. 2d 1
-- Retention of furniture obtained under a rent to own contract without
continued payment is not theft.
State v. King (1983), 10 Ohio App. 3d 93
-- Headnote 1: "A partner who is authorized by the partnership to transfer title
to partnership property cannot be held criminally liable for theft of that
property, even assuming he embezzled the proceeds or the transferee did not pay
for the property." (Case involved used cars.)
State v. Hope (1983), 9 Ohio App. 3d 65 --
Headnote: "A defendant 'knowingly obtain(s) control over' a motor vehicle for
purposes of committing a theft offense...when the defendant has rendered the
vehicle immediately capable of movement."
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Receiving stolen property
State v. Chappell, 127 Ohio St. 3d
2010-Ohio-5991 – Search warrant turned up more than 1,000 bootleg CD’s and
DVD’s in the trunk of the defendant’s car. Among the charges was possessing
criminal tools. The question was whether the purpose to use these recordings
criminally had to come under Ohio law. The state argued they would be used to
violate federal copyright law. Syllabus: “In accordance with the plain and
ordinary meaning of he term ‘criminally,’ as the term s used in
the purpose to use an item criminally can arise from an intended violation of
State v. Bennett, 185 Ohio App. 3d 54,
2009-Ohio-6092 – Defendant was convicted of RSP as a felony for possession
of a license plate annual validation sticker. Construing
R.C. 2913.71 and
sticker is not the equivalent of a plate. Remanded for resentencing for
State v. Apshari, 187 Ohio App. 3d 151,
2010-Ohio-325 – One count of RSP pertained to a wallet and a stereo. Second
count involved a credit card. All were obtained in a single transaction or
occurrence. Offenses merged. Rance era case. Began as an intervention
in lieu of conviction case and merger was argued at the time the guilty pleas
were entered. Ruling was deferred until the defendant was sentenced as a
In re B.C., 191 Ohio App. 3d 739,
2010-Ohio-6377 – Japanese exchange student lost his billfold. Other students
found it under the bleachers, and despite a P.A. announcement regarding the
missing wallet tried to cash Japanese currency at a bank. Evidence supported
delinquency finding based on receiving stolen property. Opinion discusses common
law on found property and larceny, and the code provision focusing on exertion
of control to deprive the owner of property. Circumstances known to the finders
indicated the property could be returned.
State v. Black,
181 Ohio App. 3d 821,
2009-Ohio-1629 – Defendant was said to match the description of the person
suspected of stealing a car that was later the subject of a receiving stolen
property charge. Evidence was properly received pursuant to Evid. R. 404(B) to
show knowledge. It was improper for the prosecutor to argue to the jury that it
was up to them to determine whether the defendant could have been charged with
theft as well as RSP and for the court to exclude testimony someone else may
have stolen the car, though neither warrants reversal.
State v. Awad, 164 Ohio App. 3d 528,
2005-Ohio-5861 -- Cigarettes used in a sting operation were in fact not obtained
through the commission of a theft offense. But three times the undercover
officer represented that they were stolen.
R.C. 2913.51(B) holds defendant
responsible in such circumstances. Price list from before and after the date of
the incident are sufficient to establish value.
State v. Buzzard, 163 Ohio App. 3d 591,
2005-Ohio-5270, ¶32 -- Laptop was not proven stolen based on officer's hearsay
statement he had talked to the owner in Colorado and confirmed it had been
reported stolen in a call to local police.
State v. McKinney, Defiance App. No.
2004-Ohio-5518 -- RSP conviction was not supported by the evidence
where the only evidence the vehicle stolen was a police report erroneously
admitted under the business records exception.
State v. Steward, Washington App. No.
2003-Ohio-4082 -- Receiving stolen property is a continuing offense.
Defendant was properly prosecuted as an adult for possession of stolen property
which came into his possession while he was a juvenile.
In re Bromfield, Hamilton App. No.
2004-Ohio-450 -- While mere presence in a stolen vehicle is not enough
to prove receiving stolen property, "(a) passenger's use of a stolen vehicle for
transportation, combined with his running and hiding when police approach,
amounts to sufficient circumstantial evidence that the passenger aided and
abetted the driver."
State v. Davis (1988), 49 Ohio App. 3d 109
-- Headnote 1: "Factors to be considered in determining whether reasonable minds
could conclude whether a defendant knew or should have known property has been
stolen include: (a) the defendant's unexplained possession of the merchandise,
(b) the nature of the merchandise, (c) the frequency with which such merchandise
is stolen, (d) the nature of the defendant's commercial activities, and (e) the
relatively limited time between the thefts and the recovery of the merchandise."
(Case involved brass water meters.)
State v. Hankerson (1982), 70 Ohio St. 2d
87 -- Syllabus: "Possession of stolen property for purposes of the receiving
stolen property statute,
R.C. 2913.51, may be constructive as well as actual.
Constructive possession exists when an individual knowingly exercises dominion
and control over an object, even though that object may not be within his
immediate physical possession. (State v. Wolery, 46 Ohio St. 2d 316,
explained and followed.)"
State v. Jackson (1984), 20 Ohio App. 3d
240 -- To receive stolen property means more than mere temporary physical
possession. Conviction reversed where defendant handled stolen gun an associate
had taken in a burglary.
State v. Boyce (1986), 33 Ohio App. 3d 295
-- Conviction reversed where defendant took off in a car rented for a friend to
go to the prom in. The defendant had not concealed his use of the car and there
was no proof that he had taken it with the intention of disposing of it or of
withholding it permanently or for such period as to appropriate a substantial
portion of its value.
State v. Schnitzler (1990), 56 Ohio Misc.
2d 14 -- Headnote: "Where a person shares an apartment with another and stolen
property is left at that apartment for several hours, she cannot be convicted of
receiving stolen property at the apartment where...she repeatedly demanded that
the stolen property be removed from the apartment, and did not take any steps to
exercise any control over the property."
State v. Wilson (1985), 21 Ohio App. 3d
171 -- Though property was taken from three individuals in two separate
burglaries, three counts of receiving stolen property merge when the evidence
was that the defendant disposed of the property in a single transaction. Also
see State v. Sanders (1978), 59 Ohio App. 2d 187; Smith v. State
(1898), 59 Ohio St. 350.
State v. Jacobs (1995), 108 Ohio App. 3d
328, 334-335 -- Amplification of statutory definitions in jury instructions is
inadvisable, hence it was not error to refuse to give requested special
instruction on "receiving." However, court's subsequent failure to respond to a
jury question concerning definition of receiving was prejudicial error
State v. Hendking (1993), 91 Ohio App. 3d
137 -- For purposes of elevating receiving stolen property to a felony because a
credit card was involved, the state need not prove that the account was open.
State v. Wright (1993), 91 Ohio App. 3d 71
-- Defendant was charged with receiving a bag of securities valued at over
$100,000, but the jury found against the state on the issue of value. Defendant
was properly convicted of a misdemeanor violation of the statute.
State v. Homer (1992), 78 Ohio App. 3d 477
-- Defendant who stole a snowmobile while a juvenile, and retained possession
past his eighteenth birthday, could be prosecuted for RSP as an adult.
State v. Webb (1991), 72 Ohio App. 3d 749,
753-754 -- In a receiving stolen property prosecution seeking an enhanced
penalty because the property was a firearm, operability must be proven. See State v. Gaines (1989), 46 Ohio St. 3d 65;
State v. Murphy (1990), 49
Ohio St. 3d 206. Same result would follow in a theft prosecution when an
enhanced penalty is sought.
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Unauthorized use of a vehicle or property
State v. Whited, Champaign App. No.
2003-Ohio-5747 -- Grand theft and unauthorized use of a motor vehicle
are not allied offenses of similar import.
State v. Breaston (1982), 8 Ohio App. 3d
144 -- Definition of "deprive" construed to reach not giving proper
consideration in return for use of property, thus supporting conviction for
receiving stolen property instead of joyriding.
State v. Rose (1992), 63 Ohio St. 3d 585
-- A defendant may be convicted of unauthorized use of a vehicle where he
continues to use a borrowed automobile beyond the scope of the initial consent.
State v. Perry (1998), 83 Ohio St. 3d 41
-- "...(P)rosecution of state charges of unauthorized use (of computer property
pursuant to R.C. 2913.04) that are based solely upon the unauthorized uploading,
downloading, and posting of software on a computer bulletin board is preempted
by the federal copyright laws."
State v. Peek (1996), 110 Ohio App. 3d 165
-- Unauthorized use of a motor vehicle is not a lesser included offense to
receiving stolen property, when the property involved is a motor vehicle.
State v. Canellos (1993), 91 Ohio App. 3d
701 -- Unauthorized use of property is not a lesser included offense of theft as
it requires proof of use or operation, which is beyond the mere possession or
control, which is an element of theft. Case involves Oxford city ordinances.
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State v. Edmondson 92 Ohio St. 3d 393,
2001-Ohio-210 -- When a welfare recipient is charged with theft by deception,
for purposes of determining the degree of the offense the amount stolen is the
total value of the benefits and not the excess over the amount the recipient
would legitimately have been entitled to. Also see State v. Woods (2001),
145 Ohio App. 3d 751 (conviction affirmed though deception caused no actual
McGhee, Franklin App. No. 07AP-216,
2007-Ohio-6537 -- Medicaid fraud is not among those offenses
where, pursuant to
R.C. 2913.61, a continuing course of conduct
may be prosecuted as a single offense.
State v. King, 151 Ohio App. 3d 346,
2003-Ohio-208 -- Defendant claimed he asked a Department of Job and Family
Services worker if he had to report benefit checks for his daughter as his
income and was incorrectly told he did not. Ineffective assistance of counsel
not to request instruction on mistake.
State v. Wallace, 160 Ohio App. 3d 528,
2005-Ohio-1746 -- (1) Though parent could be prosecuted under federal law for
misuse of Social Security benefits, prosecution under an Ohio theft statute was
not preempted. (2)The government qualifies as the owner of funds within the
meaning of the theft statute. (3) Statute of limitations did not begin to run
until the end of the continuing course of conduct, here depriving the
defendant's son of his Social Security benefits.
State v. Washington (1998), 126 Ohio App.
3d 264 -- Theft in office prosecution was premised on unauthorized use of a
computer system which posted food stamp benefits on cards bearing a microchip
which were issued to beneficiaries. (1) It was not necessary to prove a lack of
consent on the part of the cardholders as owners, as the ownership interest
violated was established with respect to the central computer, whether or not
the imbedded chips meant the cards by themselves qualified as a computer, system
or network. (2) Assistance by welfare department personnel not construed as
consent. Also, interoffice memos defendant was obligated to read are used to
rebut the claim she mistakenly believed she was authorized to access the system
using cards issued to others. (3) Unauthorized use of property statute may be
State v. Cooper (1990), 66 Ohio App. 3d
551 -- In circumstances involving welfare fraud, defendant could be prosecuted
for theft. Prosecution was not limited to falsification.
State v. Lester (1996), 111 Ohio App. 3d
736 -- Information that welfare recipient was employed, reflected by state tax
returns and investigation by the state auditor, could not be imputed to county
welfare department until it received report from the auditor.
State v. Luna (1994), 94 Ohio App. 3d 653
-- Welfare fraud prosecution was based of defendant's failure to disclose an
interest in real estate. Appeals court affirms tampering with records
conviction, but overturns for theft by deception and securing writings by
State v. Bolar (1987), 39 Ohio App. 3d 194
-- Headnote 1: "Section 2011, Title 7, U.S. Code does not preempt concurrent
enforcement of supplementary state statutes outlawing the misuse of federal food
stamps." Also see State v. Gill (1992), 63 Ohio St. 3d 53.
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State v. Lozano, 90 Ohio St. 3d 560,
2001-Ohio-224 -- Syllabus: "A public employee is a 'public official' for
purposes of the theft in office statute,
R.C. 2921.41." Water and sewer
department employee sold meters to scrap dealer.
State v. Rousseau, 159 Ohio App. 3d 34,
2004-Ohio-5949 -- For purposes of the unlawful interest in a public contract
statute, a member of the county board of elections is "connected" with the
county. Argument was that the board of elections was connected with the state.
Court follows Ethics Commission opinions and discounts opinions of the Attorney
State v. Bowsher (1996), 116 Ohio App. 3d
170 -- Police officer was charged with theft in office based on taking funds
from a benefit organization. No contest plea preserved the issue whether there
was the necessary nexus between his public office as a police officer and the
theft. Court concludes that there was not a sufficient link.
State v. Collier (1998), 131 Ohio App. 3d
530 -- Defendant was charged with theft in office based on hours worked while
employed as a "special constable" by a landowners association which overlapped
hours worked for other entities. While law enforcement officers, including
constables, are public officials, special constables are not included in the
State v. Metheney (1993), 87 Ohio App. 3d
562 -- Theft in office not proven where city official did not take prescribed
steps to collect on unpaid electric bills of her husband and her place of
State v. Sanchez (1992), 79 Ohio App. 3d
133 -- Theft in office charges were premised on Municipal Court clerks revealing
license plate registration information contrary to instructions. Indictment
properly dismissed as clerks are construed to have an obligation to do so under
the Public Records Law.
State v. Washington (1998), 126 Ohio App.
3d 264, 275-277 -- Defendant was convicted of theft in office, but acquitted on
predicate offense. No reversal because verdicts are inconsistent.
State v. Blagajevic (1985), 21 Ohio App.
3d 297 -- A participant in a government funded job training program is not an
"employee" subject to prosecution for theft in office.
State v. Head (1986), 32 Ohio App. 3d 70
-- Theft in office established where defendant failed to return unused funds
advanced to cover travel expenses.
State v. McGhee (1987), 37 Ohio App. 3d 54
-- Theft and theft in office may merge if committed with a single animus.
State v. McCool (1988), 46 Ohio App. 3d 1
-- Bribery and theft in office merge for purposes of sentencing.
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Skilling v. United States (2010), 130
S.Ct. 2896 – 18 U.S.C. ¶1386 is found unconstitutionally vague as applied in the
prosecution of an Enron defendant under the honest services doctrine. The
provision should be confined to prosecution for bribery and kickback schemes.
Also see Black v. United States (2010), 130 S.Ct. 2963.
State v. Cierchi,
182 Ohio App. 3d 753,
2009-Ohio-2249, ¶50-54 – Securing writings by deception in violation of
requires introduction of the actual writing. Charge was based on issuance of
State v. Primous, 164 Ohio App. 3d 26,
2005-Ohio-5586 -- Criminal simulation as proscribed by
R.C. 2913.32 relates to
objects, not documents. It does not encompass passing bad checks.
State v. Farah, Cuyahoga App. No. 82443,
2003-Ohio-5936 -- Use of a worthless check as security for chips at a charity
gambling function construed as deception.
State v. Scott (1983), 8 Ohio App. 3d 1 --
Due process violation found in presumption of elements of theft of cable
services from unreported possession of equipment capable of doing so.
Columbus v. Stennett (1980), 70 Ohio App.
2d 123 -- In a prosecution for defrauding a livery,
R.C. 2913.41(B)(5) provides
it is prima facie evidence of a purpose to defraud if the hired property (here
an auto) is not returned as required by the contract of hire. However, when
those terms are set forth on the reverse side of the hire contract, and that
portion of the document is not introduced in evidence, the defendant is entitled
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State v. Leach, 195 Ohio App. 3d 433,
2011-Ohio-4745 – After a new computer system revealed pilfering, a gun store
employee was convicted of theft by deception of firearms, tampering with
records, and theft from a federally licensed firearm dealer. The theft by
deception and tampering counts constitute allied offenses of similar import, or
at least that issue was not disputed on appeal. But they were committed
separately. The theft was committed when the property was removed from the
store. The tampering occurred when sales records were manipulated.
State v. Wilson (2001), 145 Ohio App. 3d
374 -- Plea was entered to receiving. Factual proffer indicated defendant was
the actual thief. Conviction stands. While recognizing the general principal
that a thief may not be also convicted of receiving, the remedy is through
merger. Court did not err in accepting plea and finding the defendant guilty of
State v. Barnette, Mahoning App. No. 02
2004-Ohio-7211 -- Aggravated robbery and RSP involving the same property
State v. Johnson (1983), 6 Ohio St. 3d 420
-- Paragraph one of the syllabus: "Aggravated robbery, as defined by
2911.01, is an 'allied offense of similar import' to theft, as defined by
2913.02. (R.C. 2941.25[A], applied.) Also see
State v. Gates (1981), 2
Ohio App. 3d 485 (attempted theft by threat a lesser included offense to
robbery); State v. Parsons
(1983), 6 Ohio St. 3d 442, 446; State v. Nelson (1977), 51 Ohio App. 2d
31 (petty theft and robbery).
State v. Gest (1995), 108 Ohio App. 3d
248, 261-263 -- Aggravated robbery, theft, and receiving stolen property charges
arising from the same carjacking merged.
State v. Harris (1979), 58 Ohio St. 2d 257
-- Syllabus: "Where a conviction of grand theft in violation of
does not require proof of any element not required to be proved for a conviction
of robbery in violation of
R.C. 2911.02, both are the same offense for purposes
of double jeopardy." Compare State v. Reyna (1985), 24 Ohio App. 3d 79,
82 (car stolen from garage after robbery had been completed).
Maumee v. Geiger (1976), 45 Ohio St. 2d
238 -- Theft and receiving stolen property charges involving the same property
merge for purposes of sentencing. Also see State v. Botta (1971), 27 Ohio
St. 2d 196.
State v. Baer (1981), 67 Ohio St. 2d 220
-- Related charges of theft and tampering with a coin machine merge.
State v. Mitchell (1983), 6 Ohio St. 3d
416 -- Syllabus: "The elements of aggravated burglary,
R.C. 2911.11 (A), and
theft, R.C. 2913.02(A), do not correspond to such a degree as to constitute
allied offenses of similar import under
R.C. 2941.25(A)." Also see
Brown (1981), 3 Ohio App. 3d 131.
State v. Dunihue (1984), 20 Ohio App. 3d
210 -- Breaking and entering and theft do not merge.
State v. Hunter (1983), 12 Ohio App. 3d 75
-- Theft and forgery do not merge.
State v. Talley (1985), 18 Ohio St. 3d 152
-- Syllabus: "Pursuant to
R.C. 2941.25, the offenses of breaking and entering,
grand theft, and possessing criminal tools are not allied offenses of similar
import inasmuch as these offenses have elements which do not correspond to such
a degree that the commission of one will result in the commission of the other.
Accordingly, inquiry into whether the crimes were committed with a separate
animus as to each is unnecessary. (State v. Mitchell , 6 Ohio St.
3d 415, followed.)"
State v. Chadwick (February 1, 1994),
Franklin Co. App. Nos. 93APA08-1207, 93APA09-1243, unreported (1994 Opinions
276) -- Theft in office and theft of an amount in excess of $100,000 are not
allied offenses of similar import.
State v. Liston (1991), 70 Ohio App. 3d
663 -- Defendant was convicted of theft in Cuyahoga County based on use of a
stolen credit card to obtain various items. Charges in Lake county were
attempted theft, based on an attempt to exchange some of property for cash, and
RSP based on possession of the other items. Held that the theft and attempted
theft charges were committed separately and did not merge, but the RSP charge
merged with the theft conviction in the first county. Also see State v. Stone
(1990), 69 Ohio App. 3d 383, 389-390.
State v. Wolfe (1983), 10 Ohio App. 3d 324
-- Related charges of forgery and theft by deception merge. Compare State v.
Hunter (1983), 12 Ohio App. 3d 75, 78.
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