The following evidence was before the jury. On January 9, 1995, McGhee asked Richardson to open a bank account at the First National Bank of Ohio ("Bank"). Richardson did so in her name with $50 provided by McGhee. In compliance with McGhee's specific request, Richardson provided him with the ATM card. Three days later, McGhee gave Richardson a signed check apparently from the checking account of Santana, allegedly as payment for furniture McGhee had sold to Santana. Santana testified that he did not know McGhee or Richardson, and that he had closed the account and thought he had disposed of all of the checks. On January 18, 1995, the drawee bank returned the check, unpaid, to Bank with the notation "account closed." Richardson also testified that McGhee had asked her on a later date to deposit a different check into a Star Bank account, but that the Star Bank would not accept the check because it was drawn on an account that had no funds.
On January 17, 1995, Richardson withdrew $3,700 from her Bank account and gave the money to McGhee. From January 12 through January 18, McGhee made numerous ATM withdrawals from Richardson's Bank account. During the police investigation, McGhee initially denied knowing Richardson and ever having been to Bank. He later recanted, explaining that he was withdrawing the money on Richardson's behalf. Still later, he stated to investigators that Richardson solicited him to open the account. At trial, McGhee testified that he received only $10 from Richardson for gas money.
To rephrase R.C. 2913.02(A)(1), McGhee was convicted of knowingly obtaining or exerting control over Bank's property without Bank's consent, with the purpose of depriving Bank of the property. The majority characterizes McGhee's withdrawals as his exerting of control over Bank's property with Bank's consent. There is authority to the contrary.
Where an employer originates a "sting" to test the honesty of its own security guards by staging a series of mock thefts, and the security guards cooperate with the purported theft, the employer has consented to the removal of its property, and the security guards cannot be convicted of theft, in violation of R.C. 2913.02(A)(1). State v. Mehozonek (1983), 8 Ohio App. 3d 271, 8 OBR 364, 456 N.E.2d 1353. However, "`"[i]f the criminal design originates with the accused, and the owner or his agent or servant does not suggest the design or actively urge the commission of the crime, the mere fact that the owner, suspecting the accused, * * * exposes the property, neglects to protect it, or furnishes facilities for the execution of the criminal design, under the expectation that the accused will take the property or avail himself of the facilities furnished, will not amount *Page 213 in law to a consent[.]"'" Id. at 275, 8 OBR at 368,456 N.E.2d at 1357, quoting Averitt v. State (1963), 246 Miss. 49, 58-59,149 So. 2d 320, 324-325.
There is ample evidence in the record that McGhee originated his criminal designs before the "Santana" check was deposited. Had Bank been aware ex ante of McGhee's plans to deposit a bogus check and withdraw the proceeds, Bank would not be held to have consented. Bank's ignorance of McGhee's scheme cannot transform its conduct into "consent" and so excuse a defendant convicted under R.C. 2913.02(A)(1).
Nor does Bank's mistake in failing to hold the check amount until payment from the drawee bank arise to consent to defendant's control. In State v. Montes (1993), 92 Ohio App. 3d 539, 636 N.E.2d 378, the city of Cleveland was held not to have consented to appellant's unlawful taking of a car the city mistakenly released to him. By the failure of its check-holding system, Bank no more consents to theft than it would to armed robbery by hiring sleepy security guards. In Montes, the court insisted that where a victim mistakenly releases property, the focus of inquiry under the consent element of R.C. 2913.02(A)(1) is upon the defendant's lack of lawful possession. Id. at 553,636 N.E.2d at 386-387, citing State v. Rhodes (1982), 2 Ohio St. 3d 74,76, 2 OBR 629, 631, 442 N.E.2d 1299, 1301-1302. In contrast to the majority's reasoning in the case sub judice, the court's reasoning in Montes corresponds to the common-law roots of the Ohio theft statute.1
For these reasons, I dissent from the majority decision. I believe that McGhee's first assignment of error should be rejected, and the judgment of the trial court should be affirmed.
1 It was well settled at common law that the recipient of a mistaken delivery who appropriates the property commits a trespass in the taking, and so is guilty of larceny, if, realizing the mistake at the moment he makes delivery, he forms the intent to steal the property. LaFave Scott, Criminal Law (1986) 713, Section 8.2. R.C. 2913.02 was intended to cover a plethora of former offenses "of which the gist was larceny, embezzlement, conversion, fraud, or false pretense[s]." R.C.2913.02, Committee Comment to H.B. No. 511. On the consolidation of common-law crimes in theft statutes, see LaFave Scott, at 759, Section 8.8. *Page 214