dissenting. The main issue in the instant cause (although the majority treats it as an evidentiary question1) is what constitutes theft by deception under the new general theft provision. Because the effect of the majority opinion is to uphold the conviction of an accused for theft by deception when there is no evidence that the accused deceived anyone, I must dissent.
R. C. 2913.02 provides, in pertinent part:
“(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either:
“* * *
“ (3) By deception;”
Under the statute the state must prove: (1) that the accused knowingly obtained or exerted control over property or services; (2) that the accused did so with purpose to deprive the owner of the property or services of that property or those services; and (3) that the accused exerted or obtained such control by deception. Since the accused cashed the checks sent him by the state, he did knowingly exert control over that property. Therefore, in the instant cause the key element is deception. “Deception” is defined in R. C. 2913.01 in the following manner:
“(A) ‘Deception’ means knowingly deceiving another or causing another to be deceived, by any false or misleading representation, by withholding information, by preventing another from acquiring information, or by any other conduct, act, or omission which creates, confirms, or perpetuates a false impression in another, including a false impression as to law, value, state of mind, or other objective or subjective fact.” (Emphasis added.)
*127The statutory definition of “ deception ” falls into two parts. The first sets forth the proscribed behavior (knowingly deceiving another).2 The second lists the criminal “means or instrumentality”3 by which such knowing deception may be carried out — “by * * * misleading representation, by withholding information, by preventing another from acquiring information, or by any other conduct * * * whieh creates, confirms, or perpetuates a false impression in another * * (Emphasis added.)
Therefore, under the combination of R. C. 2913.02(A) (3) and 2913.01(A), the state, in order to prove theft by deception, must establish: (1) that the accused knowingly obtained or exerted control over property or services; (2) that the accused obtained or exerted such control with purpose to deprive; (3) that the accused obtained or exerted such control by knowing deception; and (4) that such knowing deception was the result of misrepresentation or other conduct creating a false impression in another.
The fact that the theft by deception statutes require all four elements to be proved is clear from the language of the statutes themselves. Moreover, interpreting R. C. 2913.02(A)(3) and 2913.01(A) to require proof both of knowing deception and of the prohibited conduct causing that deception gives effect to every word in the statutes and insures that an individual cannot be found guilty of theft by deception on- proof of less culpability than that required in the fraud provisions of R.-C. Chapter 2913 which are designed to curb conduct similar to deception. This interpretation also places the Ohio theft by . deception statute in line with similar- provisions in other jurisdictions. (See Model Penal Code Section 223.3[3].)
On the facts of the instant cause, the majority is able to uphold the accused’s conviction only, by telescoping the third and fourth elements listed above. The only activity delineated in R. C. 2913.01(A) which the accused was *128proved to have been engaged in was perpetuating a false impression by cashing his payroll checks. However, R. C. 2913.01(A) calls not only for proof of the types of conduct which might cause deception but also for proof of knowing deception itself. Since there was no evidence that the accused had anything to do with or knew of the deception practiced on the state when he was signed up on the payroll, and since there was evidence that he did state-related work for which he may well have thought he was being recompensed, the state did not prove beyond a reasonable doubt that, with awareness that his conduct would probably cause a certain result (R. C. 2901.22), the accused caused another to believe something false. In other words, the state failed, under R. C. 2913.02(A) (3) and 2913.01(A), to prove knowing deception beyond a reasonable doubt.
I, therefore, dissent.
A definition- of “deceive” which appears in Webster’s Third New International Dictionary. is “to cause to believe' the false.”
See the definition of “by” in Webster’s, supra (No. 4a).