{¶ 39} I would sustain defendant-appellant's second assignment of error.
{¶ 40} R.C. 2909.05(B)(1) prohibits physical harm to property that is owned or possessed by another, and imposes two further alternative circumstances for its violation. Paragraph (a) applies when the property is "used" by the owner in his business and the value of the loss is $500 or more. Paragraph (b) applies "[r]egardless of the value of the property or the amount of damage done," but only when "the property or its equivalent is necessary in order for its owner or possessor to engage in the owner or possessor's profession, business, trade, or occupation." (Emphasis added)
{¶ 41} "Necessary" is an adjective, denoting an article or matter "that cannot be done without: that must be done or had: (is) absolutely required." Webster's Third International New Dictionary (1969). The American Heritage Dictionary defines necessary to mean "absolutely essential." It was the state's burden to prove, beyond a reasonable doubt, that the sheriff's cruiser defendant damaged was necessary to the sheriff in discharging the duties of his office. R.C. 2901.05(A).
{¶ 42} The stipulated evidence demonstrates that the cruiser was unavailable for use by the sheriff, due to the physical harm defendant had caused, between 9:30 p.m. on the date of his alleged offense until 12:30 p.m. the following day. That result does not, however, likewise demonstrate that during those hours the sheriff's use of the cruiser was necessary in order for him to perform or discharge his duties. To prove that matter, the state was required to offer evidence showing that no alternative to his use of the damaged cruiser was readily available to the sheriff during those hours.
{¶ 43} The stipulated evidence also demonstrates that, during those same hours, the sheriff possessed eleven other cruisers. The state offered no evidence *Page 246 that those other cruisers were not then available for the sheriff's use in the same way or for the same purpose for which the damaged cruiser would have been, but for the physical harm defendant caused.
{¶ 44} The state's position is that, because his fleet of cruisers is necessary for the sheriff's performance of his duties, each and every one of his cruisers is likewise necessary for purposes of R.C. 2909.05(B)(1)(b). However, defendant was not convicted of causing physical harm to a class of property, but instead of committing physical harm to the particular cruiser that he damaged. The standard the state urges us to employ would permit the state to prove a violation of R.C. 2909.05(B)(1)(b), for which no proof of the value of the loss is required when the property is necessary, on the more lenient "use" standard of R.C. 2909.05(B)(1)(a), for which proof of damages valued at $500 or more is required. Any doubt concerning which ought to apply is resolved by R.C. 2901.04(A), which provides that "sections of the Revised Code defining offenses or penalties shall be strictly construed against the state, and liberally construed in favor of the accused."
{¶ 45} I would reverse and vacate defendant's conviction and sentence on a finding that the evidence before the court was insufficient as a matter of law to support a finding that he violated R.C. 2909.05(B)(1)(b), the offense of which he was convicted.