State v. Joy - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State of Ohio, Appellee, v. Joy, Appellant.

[Cite as State v. Joy (1995), ___ Ohio St.3d ___.]
Criminal law -- Aggravated theft by deception -- Trial court did not err in
failing to instruct jury on one of the statutory definitions of
"deprive," an element of aggravated theft by deception, when.

(No. 94-651 -- Submitted October 11, 1995 -- Decided December 20,
1995.)
Appeal from the Court of Appeals for Lucas County, No. L-93-032.

On June 24, 1992, appellant, Lowell Joy, was indicted in Lucas County
for one count of aggravated theft pursuant to R.C. 2913.02(A)(2), and for one
count of aggravated theft pursuant to R.C. 2913.02(A)(3). The following facts
were adduced at his jury trial.

In 1991, appellant was President of REMSNO, a not-for-profit agency
that provided a multi-county communications system between life squads and
hospitals. REMSNO was funded in large part by a tax levy in Lucas County.
However, in November 1991, REMSNO lost its major funding when the Lucas
County tax levy was defeated. At that time, REMSNO had a balance on
deposit of $500,000.

In early January 1992, appellant approached Operations Director, John
Mason, and asked him how much it would cost to run REMSNO for 1992 and
what the interest rate was for the funds on deposit. Mason told appellant that it
would cost between $125,000 to $150,000 to run REMSNO and that the
interest rate they were receiving was about four percent. Appellant said that he
could get a much more favorable interest rate at his bank in Marblehead
because of the volume of business that his companies did with that bank.

Appellant and Mason met again on January 21, 1992. According to
Mason, appellant said he would deposit REMSNO's money in the bank at
Marblehead and that REMSNO would receive seven and a quarter percent
interest on those funds. Mason then issued a check for $350,000, as directed
by appellant, made payable to Motivation Enterprises, a company owned solely
by appellant. The check, which was postdated to January 24, 1992, contained
the notation, "Investment Deposit."

On January 22, 1992, Mason typed up a memorandum for the file
evidencing that appellant would deposit this check "with the Marblehead
[B]ank as an investment at a rate of approximately seven percent." The
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memorandum further stated that the funds belong to REMSNO and that
REMSNO would receive interest payments on a monthly or quarterly basis.

In mid-February, Mason received the first interest check and a document
that he understood to be a verification of the above transaction. In actuality, it
indicated that the money was being loaned to appellant. Mason did not
discover that the money was being used as a "loan" until it was brought to his
attention in a March audit. Mason told accountants from Ernst & Young that
the money was being invested and was not a loan.

Upon reading the audit, Mason contacted REMSNO's attorney, Frank
Pizza. On April 1, 1992, a meeting was held at REMSNO's office with Pizza,
appellant, and Mason. Pizza asked appellant where the money was located, but
appellant did not really answer him. At the end of the meeting, appellant said
he would look into whether or not he could pay the money back. Pizza testified
there was another meeting on May 13, 1992, at his office. At that meeting,
REMSNO's Executive Director, Dr. Robert Hauman, told appellant to pay the
money back right away. Appellant then responded that the money was invested
in a real estate transaction and he could not get the money out right now.
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Subsequently, Dr. Hauman had a phone conversation with appellant and was
told by him that the money was in one of appellant's businesses.

Instead of placing the money in an interest bearing account at
Marblehead Bank, it was discovered that appellant had placed the money in a
noninterest paying checking account of Motivation Enterprises. As of early
January 1992, Motivation Enterprises had a balance of only $574.75. After the
deposit of $350,000, the money was then almost immediately transferred to a
checking account of a second business owned by appellant, a marina. The
money was then dissipated from this account within several weeks to pay off
the bills of the marina. According to appellant, this money was finally paid
back to REMSNO one day before sentencing in this case, which was
approximately one year after it was taken. This was also the date that the
principal was required to be paid back under the terms of the alleged note.

At the conclusion of the trial, the jury returned a verdict of not guilty for
aggravated theft, but guilty for aggravated theft by deception. Appellant was
fined $7,500 and sentenced to a term of three to ten years in a correctional
facility. The trial court then issued a nunc pro tunc entry stating that the
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sentence was a term of three to fifteen years in a correctional facility. The
court of appeals affirmed the conviction and sentence.

This matter is now before this court upon an allowance of a discretionary
appeal.
__________

Anthony G. Pizza, Lucas County Prosecuting Attorney, Curtis E. Posner
and George J. Conklin, Assistant Prosecuting Attorneys, for appellee.

Fritz Byers, for appellant.
__________
Francis E. Sweeney, Sr., J. The issue before this court is whether the
trial court erred in failing to instruct the jury on one of the statutory definitions
of "deprive," an element of aggravated theft by deception. For the following
reasons, we find that the trial court did not err in refusing to give this requested
instruction. Accordingly, the judgment of the court of appeals is affirmed.

The elements of aggravated theft by deception are found in R.C.
2913.02(A)(3), which reads:
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"(A) No person, with purpose to deprive the owner of property or
services, shall knowingly obtain or exert control over either the property or
services in any of the following ways:
"***

"(3) By deception ***."

R.C. 2913.01(C) lists the definitions of "deprive" as follows:

"(C) `Deprive' means to:

"(1) Withhold property of another permanently, or for such period as to
appropriate a substantial portion of its value or use, or with purpose to restore it
only upon payment of a reward or other consideration;

"(2) Dispose of property so as to make it unlikely that the owner will
recover it;

"(3) Accept, use, or appropriate money, property, or services, with
purpose not to give proper consideration in return for the money, property, or
services, and without reasonable justification or excuse of not giving proper
consideration."
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The trial court instructed the jury as to the first two definitions of "deprive,"
but omitted the third definition on the ground that it was superfluous.

The rule regarding jury instructions is that requested instructions in a
criminal case must be given when they are correct, pertinent, and timely
presented. Cincinnati v. Epperson (1969), 20 Ohio St.2d 59, 49 O.O.2d 342,
253 N.E.2d 785, paragraph one of the syllabus. The court must give all
instructions that are relevant and necessary for the jury to weigh the evidence
and discharge its duty as the factfinder. State v. Comen (1990), 50 Ohio St.3d
206, 553 N.E.2d 640, paragraph two of the syllabus.

In the present case, the state had to prove that appellant intended to
deprive REMSNO of money based on only one of the three alternate
definitions of "deprive." Appellant argued at the court of appeals level, and
now to this court, that the third definition of "deprive" was also part of the
state's presentation of the case and, thus, the trial court's failure to instruct the
jury on this definition constituted reversible error. However, at the outset we
note that had this instruction been given it could not have benefited the
appellant, as it would only have given the jury a third independent basis upon
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which to find that he intended to deprive REMSNO of money. Thus, appellant
is not prejudiced by this alleged error.

Furthermore, we agree with the state's contention that the evidence
before the jury supported only the first two definitions of "deprive."
Specifically, the state argues that the evidence supported the second clause of
the first definition of "deprive" that appellant had withheld the money "for such
period as to appropriate a substantial portion of its value or use." R.C.
2913.01(C)(1).

Based on our review of the record, we find that the trial court properly
refused to give the third definition of "deprive" dealing with consideration.
The state's presentation of the case, including opening and closing arguments,
did not rest on a theory that appellant failed to provide consideration for the
"note." Likewise, the trial court did not discuss whether appellant provided
consideration for the "note." Instead, in overruling appellant's Civ.R. 29
motion for acquittal, the court reasoned that "there is evidence from which the
jury could reasonably infer a purpose to deprive, and in that respect I would
stress that purpose to deprive does not require demonstration of permanent
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deprivation but rather a purpose to withhold for such a period as to appropriate
a substantial portion of the value of the property in question." Thus, the trial
court agreed with the state's theory of the case, as the court found evidence to
support the second clause of the first definition of "deprive." At the conclusion
of trial, the court found that the third definition of "deprive" was not relevant to
the case and, thus, refused to give this instruction, as it would only confuse the
jury.

In addition, appellant does not challenge the sufficiency of the evidence
to support the conviction based on the instructions of purpose to deprive which
were properly given to the jury. Thus, appellant's conviction is supported by
the jury's finding appellant guilty of one or both of these instructions.
Specifically, we find that sufficient evidence was presented to the jury for it to
conclude beyond a reasonable doubt that appellant intended to deprive
REMSNO of money based on the first definition of "deprive," i.e., that the
appellant intended to withhold money "for such period as to appropriate a
substantial portion of its value or use."
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The record reflects that appellant told REMSNO that the money would
be invested at approximately seven percent interest at Marblehead Bank.
Instead, appellant appropriated all of this money for his own use by placing the
money in a noninterest bearing account of one of his businesses and then
immediately transferring the money to another business he owned, a marina.
Appellant then used the money to pay his marina bills, thus depriving
REMSNO of the value and use of the money. When REMSNO personnel
discovered that they had been deceived and that the money was not safely
placed in an interest bearing account at the bank, they asked appellant to return
the money immediately. However, appellant initially stated that he would look
into whether he could pay the money back and then he lied about the
whereabouts of the money. Appellant finally admitted that he could not return
the money. REMSNO was deprived of the money's use until it was apparently
returned one day before sentencing in this case, which was approximately one
year after it was taken. Based on the above and the other evidence presented at
trial, we conclude that the jury could have found beyond a reasonable doubt
10

that appellant had withheld the money for such period as "to appropriate a
substantial portion of its value or use."

Finally, we agree with appellant's contention that the court of appeals
erred in concluding that sufficient evidence existed to support his conviction
based on the third definition of "deprive" dealing with consideration. In so
finding, the appellate court incorrectly interpreted the law of contracts by
stating that evidence of inadequate collateral in this case was proof of lack of
consideration. Collateral is not a requirement of consideration. Restatement of
the Law 2d, Contracts (1981) 172, Section 71. Thus, the court of appeals'
conclusion that appellant's conviction was supported by the third definition of
"deprive" was misguided. As we have previously stated, appellant's conviction
was supported by at least one of the two definitions of "deprive" which were
properly given to the jury.

In conclusion, the third definition of "deprive" dealing with the issue of
whether appellant gave consideration in exchange for receiving the money was
not the theory behind the state's presentation of this case and, thus, an
instruction on this definition would have served only to confuse the jury. The
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trial court properly instructed the jury only on the first two definitions of
"deprive." We conclude that sufficient evidence existed to support appellant's
conviction based on the first definition of "deprive" which was properly given
to the jury. Accordingly, we affirm the judgment of the court of appeals
upholding appellant's conviction.
Judgment affirmed.

MOYER, C.J., WRIGHT, HOFFMAN, PFEIFER and COOK, JJ., CONCUR.

DOUGLAS, J., not participating.

WILLIAM B. HOFFMAN, J., of the Fifth Appellate District, sitting for
RESNICK, J.

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