Theft Offenses


Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office

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; computer property.
R.C. 2913.41 -- Defrauding a livery of hostelry.
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 property involved.
R.C. 2921.41 -- Theft in office.
R.C. 2945.75(B) -- Proof of prior conviction.

In General

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 R.C. 2911.02." 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.
State v. 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 R.C. 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.
Gessner 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 theft.
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 R.C. 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) -- R.C. 2935.041 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 precluded.
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 theft.
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 theft statute.
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.

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. R.C. 2913.61(C)(1) 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 premises.
State v. Colquitt, Montgomery App. No. 02-CR-2295, 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. 84379, 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 detector.)
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 discretion.
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 offense.
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 R.C. 2913.61(C)."
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 automobile.
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.

Petty Theft and Grand Theft

State v. Pawloski, 188 Ohio App. 3d 267, 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 repairs.
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.
State 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 sufficient evidence.
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 affirmed.
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 criminal purpose."
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 rendered."
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 suspect.
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 owner's consent.
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 R.C. 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 R.C. 2151.358(H).
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."

Receiving Stolen Property

State v. Chappell, 127 Ohio St. 3d 376, 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 R.C. 2923.24(A), the purpose to use an item criminally can arise from an intended violation of federal law.”
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 4503.22, a sticker is not the equivalent of a plate. Remanded for resentencing for misdemeanor RSP.
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 violator.
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. 4-04-12, 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. 02CA43, 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. C-030446, 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.

Unauthorized Use of a Vehicle or Property

State v. Whited, Champaign App. No. 02CA38, 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.

Benefit Fraud

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 loss).
State v. 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 constitutionally infirm.
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 deception.
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.

Theft in Office

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 General.
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 statutory definition.
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 employment.
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.

Other Theft Offenses

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 R.C. 2913.43 requires introduction of the actual writing. Charge was based on issuance of mortgage.
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 to acquittal.


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 receiving.
State v. Barnette, Mahoning App. No. 02 CA 65, 2004-Ohio-7211 -- Aggravated robbery and RSP involving the same property merge.
State v. Johnson (1983), 6 Ohio St. 3d 420 -- Paragraph one of the syllabus: "Aggravated robbery, as defined by R.C. 2911.01, is an 'allied offense of similar import' to theft, as defined by R.C. 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 R.C. 2913.01 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 State v. 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 [1983], 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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Published by Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
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