Prosecutors used the wrong law to charge a Dayton woman for pawning the air conditioning units in her rental home before she was evicted, ruled an Ohio appeals court, which vacated the charges against her.

The Second District Court of Appeals recently ruled that Destiny Roberts was not guilty of first-degree misdemeanor theft of the two window air conditioning units she pawned and then replaced before her eviction because Dayton city prosecutors failed to prove she did not have consent to possess the units. The appeals court explained that both the prosecutors and the trial court had the opportunity, but didn’t take it, to change the charges to theft for using property in a way for which she had no permission.

In December 2013, Roberts signed a one-year lease with landlord David Oliver that included the right to use the appliances in the apartment, including the two air conditioning units. Accusing Roberts of being habitually late with rent payments, Oliver sought in July 2014 to evict her. When inspecting the apartment, he found the air conditioners were missing and made several unsuccessful attempts to contact Roberts about them.

He filed a police report and learned from the police that Roberts had taken the units to Mr. Pawnbroker, a Dayton business, in April. Roberts’ mother settled the debt at Mr. Pawnbroker and returned the units to Oliver in good working condition. Although the units were returned, police charged Roberts with theft for violating R.C. 2913.02(A)(1) and receiving stolen property.

In municipal court, Roberts argued she did not violate the statute because section (A)(1) indicates no person shall knowingly obtain or control property “without the consent of the owner or person authorized to give consent.” She conceded at trial the state could prove her guilty of 2913.02(A)(2), which does not allow the control of property “beyond the scope of the express or implied consent of the owner or person authorized to give consent.”

The trial court found her guilty of theft, but not for receiving stolen property. It sentenced her to 60 days in jail, and suspended 56 of the days. Roberts appealed to the Second District.

Writing for the Second District, Judge Mike Fain noted the state did not seek to amend the complaint to charge her with violating (A)(2), instead of (A)(1), or charge her with unauthorized use of property.

Judge Fain noted Roberts argued that when she signed the lease she was given consent to control the property and she cannot be found guilty of violating that section of the law against controlling property without consent. He wrote that the state argued Roberts only had consent to use the air conditioners to cool the apartment, but not to take them out and pawn them without the consent of the owner.

He explained there are circumstances where the evidence supports a conviction for an offense that was not in the original charge and Criminal Rule 7 allows a court “at any time before, during or after a trial” to amend the charges, unless it is clearly unfair to the person charged.

He cited a First District Court of Appeals 1986 ruling in State v. Woody where theft charges were amended from (A)(1) to (A)(2) because the person was given consent to control the property, but used it beyond the scope granted.

At the time Roberts pawned the units, she had a valid lease and, by the terms of it, did have Oliver’s consent to control the apartment and the appliances, Judge Fain concluded. Because she was only charged with the law make possession illegal, the appellate court vacated the charges.

“As found by the trial court, that consent was limited in scope, and Robert’s went beyond that scope,” he wrote.

Judges Jeffrey E. Froelich and Mary E. Donovan concurred in the decision.

State v. Roberts, 2015-Ohio-2716.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2015/2015-Ohio-2716.pdf
Criminal  Appeal From: Dayton Municipal Court
Judgment Appealed From Is: Reversed
Date of Judgment Entry on Appeal: July 2, 2015

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