Calvin McGhee was indicted for theft in violation of R.C.2913.02(A)(1). After a jury trial, he was found guilty as indicted. McGhee now appeals his conviction. For the reasons that follow, we reverse.
The state introduced the following evidence at trial. On January 9, 1995, McGhee asked a friend, Tawana Richardson, to open up an account at a local bank in her name. McGhee told her that he could not open the account himself because he did not have the proper identification. As a result, Richardson opened a savings account at First National Bank in Akron with $50 McGhee had given her. After opening the account, Richardson gave McGhee "the whole package" she had received from the bank, including an ATM card.
On January 12, 1995, McGhee presented Richardson with a $4,700 check drawn on Kerry Santana's account and made payable to Richardson. McGhee told Richardson that he received the check as payment for some furniture he had sold to Santana. Richardson deposited the check into the account at First National Bank. Over the next several days, McGhee withdrew over $1,000 from the Richardson account using several ATMs. On January 17, 1995, Richardson withdrew $3,700 from the savings account at McGhee's request. Richardson gave the $3,700 to McGhee and in return, McGhee gave her $100 for "helping him out."
On January 18, 1995, the $4,700 check that had been deposited into the Richardson account was returned to First National Bank marked "account closed." Because the returned check was so large and money had been withdrawn from the Richardson account, the bank conducted an investigation. The bank investigators questioned Richardson and learned that McGhee was involved. McGhee, however, refused to cooperate with the bank investigators, and the *Page 210 matter was referred to the Akron Police Department. During the course of their investigation, the police discovered that Santana had not been involved in the check fraud scheme and ruled him out as a suspect. McGhee was eventually charged with theft in violation of R.C. 2913.02(A)(1).
At the conclusion of the state's case, McGhee moved for acquittal pursuant to Crim.R. 29. The trial court, however, denied the motion. The defense then presented only one witness, McGhee himself. McGhee denied asking Richardson to open the savings account for him and claimed he knew nothing about the $4,700 check. McGhee admitted to making several ATM withdrawals from the Richardson account, but claimed he had her permission to use the card.
Based on the evidence produced at trial, McGhee was found guilty as indicted. McGhee now appeals his conviction, raising two assignments of error for our review:
"I. The trial court erred in overruling appellant's Rule 29 motion for acquittal where the state of Ohio failed to prove each element of a violation of R.C. 2913.02(A)(1) beyond a reasonable doubt, thereby violating appellant's right to due process of law under the Fourteenth Amendment to the United States Constitution and Article I, Section 16 of the Ohio Constitution.
"II. The jury verdict finding appellant guilty of theft was against the manifest weight of the evidence in violation of appellant's right to due process of law under theFourteenth Amendment to the United States Constitution and Article I, Section 16 of the Ohio Constitution."
McGhee first argues the state failed to prove all the elements of the crime charged in the indictment and, therefore, the trial court should have granted his motion for acquittal pursuant to Crim.R. 29. We agree.
Crim.R. 29 states:
"The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. * * *"
In reviewing the appropriateness of such a motion, "a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt." State v. Bridgeman (1978), 55 Ohio St. 2d 261, 9 O.O.3d 401, 381 N.E.2d 184, syllabus. In the present case, the *Page 211 evidence presented at trial was insufficient to sustain McGhee's conviction for the offense presented in the indictment,i.e., theft in violation of R.C. 2913.02(A)(1).
The theft statute, R.C. 2913.02, provides:
"(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways:
"(1) Without the consent of the owner or person authorized to give consent;
"(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent;
"(3) By deception;
"(4) By threat."
Here, the state failed to establish, beyond a reasonable doubt, the essential elements necessary to uphold McGhee's conviction for theft. There was no evidence that McGhee deprived the victim, First National Bank, of its property without its consent. The bank clearly allowed Richardson and McGhee to make numerous withdrawals from the Richardson account before the $4,700 check had cleared. While the evidence may have established that McGhee violated R.C. 2913.02(A)(3) (theft by deception), our decision must be based upon the offense for which McGhee was indicted, tried, and convicted. McGhee obtained or exerted control over the bank's property with the bank's consent. He was indicted incorrectly.
Because the evidence was insufficient to support McGhee's conviction for theft under R.C. 2913.02(A)(1), the trial court erred in failing to grant McGhee's motion for acquittal. Accordingly, McGhee's first assignment of error is well taken, and his conviction must be reversed.
Given our treatment of McGhee's first assignment of error, we find that McGhee's second assignment of error is moot and is therefore overruled.
Judgment reversed.
EDWARD J. MAHONEY, J., concurs.
SLABY, J., dissents.
EDWARD J. MAHONEY, J., retired, of the Ninth Appellate District, sitting by assignment. *Page 212