State v. Gibert

[Cite as State v. Gibert, 2017-Ohio-7676.]

IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-160857
TRIAL NO. B-1603074
Plaintiff-Appellee, :

vs. : O P I N I O N.

ANNA GIBERT, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded

Date of Judgment Entry on Appeal: September 20, 2017

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and David Hoffman,
Assistant Public Defender, for Defendant-Appellant.
 OHIO FIRST DISTRICT COURT OF APPEALS

MYERS, Judge.

{¶1} Following a jury trial, Anna Gibert was convicted of receiving stolen

property after she failed for a period of several weeks to return a rental car to the

rental agency. She now appeals.

Factual and Procedural Background

{¶2} The evidence at trial demonstrated that Gibert rented a car from

Alamo on March 28, 2016. She paid $197.53 to rent the car for three days. When

she failed to return the car on the third day, Alamo began to charge her credit card

for the rental.

{¶3} On April 3, the credit card was declined. On April 5 and 8, Gibert

called to extend her rental, but was informed that she would need to return to the

rental office to do so, because her credit card had been declined.

{¶4} On April 14, Alamo called Gibert to inform her that she had to return

to the rental office to pay her rental balance. She failed to do so.

{¶5} On April 17, an Alamo representative tried unsuccessfully to contact

Gibert. On April 20, a representative left Gibert a telephone message reminding her

that her rental payment was overdue, that she had to return to a rental office to

extend the rental, and that Alamo would begin a conversion process, whereby the car

would be reported as stolen if she failed to pay.

{¶6} On April 25, Alamo sent Gibert a written demand for the immediate

return of the car. The letter stated that Gibert’s authorization to operate the car had

ceased on April 15. Alamo then reported the car stolen. Still Gibert still did not

return the car.

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{¶7} On June 3, a sheriff’s deputy stopped Gibert after determining that she

was driving a car that had been reported stolen. Gibert told the deputy that the car

was not stolen, that she had rented it in March, and that someone had been paying

the rental bill for her. The deputy described the car as a “wreck,” because it had

sustained damage. The damaged car was returned to Alamo.

{¶8} Alamo’s business records indicated that the repair costs for the car

were over $500. An invoice noted that Gibert had made several payments toward

the total rental costs for the 28-day period from March 28 to April 25, but a balance

of over $360 remained.

{¶9} The jury found Gibert guilty of receiving stolen property. The trial

court sentenced her to community control and ordered restitution. Gibert now

appeals.

Weight and Sufficiency of the Evidence

{¶10} In her first assignment of error, Gibert challenges the weight and

sufficiency of the evidence supporting her conviction for receiving stolen property.

{¶11} When reviewing the manifest weight of the evidence, this court must

review the entire record, weigh the evidence, and consider the credibility of the

witnesses to determine whether the jury lost its way and committed such a manifest

miscarriage of justice in convicting Gibert that her conviction must be reversed.

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

{¶12} When reviewing the sufficiency of the evidence, this court may not

weigh the evidence, but must view all evidence and reasonable inferences in the light

most favorable to the prosecution to determine whether the jury could have found

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the elements of the offense proven beyond a reasonable doubt. State v. Martin, 20

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶13} To find Gibert guilty of receiving stolen property as charged in the

indictment, the jury was required to find that she received, retained, or disposed of

property of another, that being a motor vehicle, knowing or having reasonable cause

to believe that the property was obtained through the commission of a theft offense.

See R.C. 2913.51. The trial court instructed the jury without objection that “theft

offense” meant:

with purpose to deprive the owner of property, [a person] knowingly

obtained or exerted control over the property, without the consent of

the owner or the person authorized to give consent; or beyond the

scope of the express [or] implied consent of the owner or person

authorized to give consent; or by deception; by threat[;] or

intimidation.

See R.C. 2913.02(A).

{¶14} Gibert now argues that the “theft offense” was really unauthorized use

of a motor vehicle under R.C. 2913.03(B), rather than general theft under R.C.

2913.02. The jury, however, was not instructed under R.C. 2913.03(B), and Gibert

made no objection at trial. Thus, the jury did not, and could not under the court’s

instruction, have found that unauthorized use of a motor vehicle was the predicate

theft offense. We therefore review the evidence under the predicate offense of theft

and not another predicate offense. We note, however, that the focus of the analysis

under either theft offense remains the same—whether there was sufficient evidence

to establish Gibert’s knowledge of Alamo’s revocation of consent. See State v.

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Bryant, 1st Dist. Hamilton No. C-110484, 2012-Ohio-3909, ¶ 15-16 (a conviction for

unauthorized use of a motor vehicle is supported by sufficient evidence if, after the

original use of a rental car was authorized by contract, a rental company withdraws

consent).

{¶15} In this case, the state presented evidence that by the end of April 2016,

Alamo had unequivocally and expressly withdrawn its consent to use the car and had

notified Gibert that she was no longer entitled to use it. But Gibert continued to

retain possession of Alamo’s car without consent until she was stopped by police on

June 3, 2016. Consequently, we hold that the state presented sufficient evidence that

Gibert had committed the offense of receiving stolen property. We further hold that

the conviction was not against the manifest weight of the evidence. We overrule the

first assignment of error.

The Verdict Form

{¶16} In her second assignment of error, Gibert argues that the trial court

erred by convicting her of receiving stolen property as a felony of the fourth degree.

She maintains that the verdict form failed to comply with R.C. 2945.75(A)(2), by not

stating the degree of the offense or indicating that the property involved in the

offense was a motor vehicle.

{¶17} Receiving stolen property is generally a misdemeanor of the first

degree, but if the property involved is a motor vehicle, the offense is a felony of the

fourth degree. See R.C. 2913.51(C). Because the aggravating circumstance of the

property being a motor vehicle changes the crime by increasing the degree of the

offense and not just the penalty, that circumstance is an essential element of the

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offense of which the defendant must be found guilty. See State v. Gwen, 134 Ohio

St.3d 284, 2012-Ohio-5046, 982 N.E.2d 626, ¶ 11; State v. Allen, 29 Ohio St.3d 53,

54, 506 N.E.2d 199 (1987).

{¶18} Under R.C. 2945.75(A)(2), when the presence of an additional element

makes the offense one of a more serious degree, the guilty verdict must state either

the degree of the offense for which the defendant was found guilty or that the

additional element is present. State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256,

860 N.E.2d 735, syllabus; State v. McDonald, 137 Ohio St.3d 517, 2013-Ohio-5042, 1

N.E.3d 374, ¶ 13. Strict compliance with the dictates of R.C. 2945.75 is required.

McDonald at ¶ 14; State v. Johnson, 2016-Ohio-781, 60 N.E.3d 661, ¶ 12 (1st Dist.).

Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the

offense charged. R.C. 2945.75(A)(2). Pelfrey at ¶ 13; McDonald at ¶ 14.

{¶19} The state directs us to the Supreme Court of Ohio’s decision in State v.

Eafford, 132 Ohio St.3d 159, 2012-Ohio-2224, 970 N.E.2d 891, where the court

upheld a defendant’s conviction for possession of cocaine, a felony of the fifth degree,

even though the verdict form contained neither the degree of the offense nor

specified that Eafford had possessed cocaine. The court noted that the indictment

charged Eafford with possession of cocaine, the least degree of the offense being a

felony of the fifth degree; trial evidence proved that Eafford possessed cocaine; and

the trial court instructed the jury that it could find Eafford guilty only if it found the

drug involved to be cocaine. Eafford at ¶ 2.

{¶20} The state contends in its brief that the jury instructions in this case

were like those in Eafford: “just as the trial court in Eafford instructed the jury that

it had to find that cocaine was involved, the trial court here instructed the jury that it

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had to find that a motor vehicle was involved[.]” Therefore, the state asserts, the

only way that the jury could have found Gibert guilty of receiving stolen property was

if they found that she had knowingly received, retained, or disposed of a motor

vehicle.

{¶21} This argument is not persuasive. After its Eafford decision, the

Supreme Court of Ohio made clear in McDonald that “in cases involving offenses for

which the addition of an element or elements can elevate the offense to a more

serious degree, the verdict form itself is the only relevant thing to consider in

determining whether the dictates of R.C. 2945.75 have been followed.” McDonald,

137 Ohio St.3d 517, 2013-Ohio-5042, 1 N.E.3d 374, at ¶ 17; Johnson, 2016-Ohio-781,

60 N.E.3d 661, at ¶ 13. We find McDonald and Johnson to be controlling in this

case. See State v. Robinson, 1st Dist. Hamilton No. C-150346, 2016-Ohio-3330, ¶

29. Therefore, in determining whether the verdict form in this case complied with

R.C. 2945.75, we consider only the verdict form, and not the jury instructions. See

McDonald at ¶ 18.

{¶22} In this case, Gibert’s offense of receiving stolen property would have

constituted a misdemeanor but for the aggravating element that the property

involved was a motor vehicle, a circumstance that elevates the crime to a felony of

the fourth degree under R.C. 2913.51(C). See Pelfrey at ¶ 13. However, the verdict

form included neither the degree of the offense for which she was convicted, nor a

statement that an aggravating element—that the property involved was a motor

vehicle—was found. Therefore, Gibert can be convicted only of a misdemeanor of the

first degree, which is the least degree under R.C. 2913.51 of the offense of receiving

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stolen property. Id.; State v. Brown, 12th Dist. Clermont No. 1133, 1983 WL 4303

(Feb. 23, 1983).

{¶23} We therefore sustain Gibert’s second assignment of error, reverse the

judgment of the trial court convicting her of receiving stolen property as a felony of

the fourth degree, and remand the cause for the trial court to enter a judgment

convicting Gibert of receiving stolen property as a misdemeanor of the first degree.

Gibert’s third assignment of error pertaining to a sentencing issue is moot.

Conclusion

{¶24} The portion of the trial court’s judgment convicting Gibert of receiving

stolen property as a felony of the fourth degree is reversed, and this cause is

remanded for the trial court to enter a judgment convicting Gibert of receiving stolen

property as a misdemeanor of the first degree. The trial court’s judgment is affirmed

in all other respects.

Judgment affirmed in part, reversed in part, and cause remanded.

MOCK, P.J., and ZAYAS, J., concur.

Please note:

The court has recorded its own entry on the date of the release of this opinion.

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