COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71238 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION GREGORY BILICK : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : JUNE 26, 1997 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 336333 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones, Esq. Stephen L. Miles, Esq. Cuyahoga County Prosecutor 20800 Center Ridge Road By: Eleanore Hilow, Esq. Suite 217 Assistant Prosecuting Rocky River, Ohio 441165 Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- ROCCO, J.: Appellant appeals his conviction in the trial court on one count of unauthorized use of a motor vehicle in violation of R.C. 2913.03. As there is sufficient evidence in the record to support the jury's determination, we affirm. Appellant Gregory W. Bilick took a 1992 Mercury automobile, titled to Susan Bilick, on February 4, 1996 from 6683 Hathaway Road, Valley View, Ohio. Susan Bilick contacted the police to report that her car was missing. At the time of the incident, the couple had been separated for thirteen months, and a divorce action was pending. The car had been purchased in May 1992, with money from both Susan Bilick and appellant, although the loan was in appellant's name. On February 5, 1996, appellant took the car to Cross Roads Lincoln Mercury, where he left it so that a technician could look at the car and prepare an estimate for the cost of repairs. On February 7, 1996, Susan Bilick received a letter from appellant, wherein he told her the car was in a safe place, and he also stated that they needed to discuss repairs that were necessary to the car. Also on February 7, 1996, appellant went to the Village of Valley View Police Department and reported to Patrolman Eric Sims that the car that he believed his wife had reported stolen was safe. However, he refused to tell Patrolman Sims where the car was located. Patrolman Sims then arrested appellant for Grand Theft Auto. -3- After he was arrested, in conversation with Patrolman Sims, appellant told him that the car was at Cross Roads Lincoln Mercury. The next day, Detective Mark Sierleja, accompanied by Susan Bilick, went to Cross Roads Lincoln Mercury. Ms. Bilick identified her car, and Det. Sierleja obtained the service order on the car. Appellant was indicted by the Cuyahoga County Grand Jury on March 20, 1996 on a one count indictment of felony theft, in violation of R.C. 2913.02. A jury trial commenced on June 5, 1996. On June 6, 1996, the jury returned a verdict of not guilty on the charge of felony theft, but found appellant guilty of unauthorized use of a motor vehicle, in violation of R.C. 2913.03. The court sentenced appellant to six months in County Jail, suspended the sentence, and placed appellant on two years probation. Appellant appeals from his conviction. ASSIGNMENT OF ERROR In his sole assignment of error, appellant states: THE EVIDENCE WAS INSUFFICIENT TO CONVICT THE APPELLANT OF UNAUTHORIZED USE OF A MOTOR VEHICLE. Appellant contends that he was convicted based on insufficient evidence. The test used by this court when reviewing whether a conviction is supported by the sufficiency of the evidence has been defined as follows: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have -4- found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259, at paragraph 2 of the syllabus; see, also, State v. Waddy (1992), 63 Ohio St.3d 424, 430. R.C. 2913.03(A) states that: No person shall knowingly use or operate an aircraft, motor vehicle, motorcycle, motorboat, or other motor- propelled vehicle without the consent of the owner or person authorized to give consent. It is appellant's position that appellee failed to submit any evidence to indicate that he used or operated the car without the consent of an owner. R.C. 2913.01(D) defines "owner" as used in chapter 2913 as: any person, other than the actor, who is the owner of, or who has possession or control of, or any license or interest in property or services, even though the ownership, possession, control, license, or interest is unlawful. Appellant relies on the definition of "marital property" to support his contention that he is an owner of the car. R.C. 3105.171(A) (3)(a) defines marital property as: (i) All real and personal property that is currently owned by either or both the spouses, including, but not limited to, the retirement benefits of the spouses, and that was acquired by either or both of the spouses during the marriage; (ii) All interest that either or both of the spouses currently has in any real or personal property, including, but not limited to the retirement benefits of the spouses, and that was acquired by either or both of the spouses during the marriage ***. Appellant contends that as he is also an owner of the car, he did not need Susan Bilick's consent in order to drive it. Although -5- a restraining order had been issued against appellant to prevent him from contacting Susan, she acknowledged that appellant still had keys and there was no order preventing his access to the car. However, the record reveals that the title to the car was in Susan's name. Appellant had sole title to a 1987 Toyota pick-up truck. Appellant and Susan had been living apart since January 1995. The couple had not spoken with each other since August 1995. Further, beginning in August 1995, Susan took over the majority of the car payments. Since September 1995, Susan had sole possession of the car, while appellant had possession of the truck. Susan stated that she had not given permission to anyone to drive the car on February 4, 1996. The ownership of the car was not in question until after the February 4, 1996 incident. The trier of fact is responsible for determining the credibility of the witnesses, and the weight to be given the evidence. State v. DeHass (1967), 10 Ohio St.2d 230. The record reveals that there was sufficient evidence to support the jury's verdict. When viewing the evidence in a light most favorable to the prosecution, there is ample evidence to illustrate that Susan Bilick was the owner of the car, and that she had not given her consent to appellant to drive the car. See State v. Jenks, supra. This court would like to laud the jury on their wise determination that the charge of felony theft was unsupported by the evidence. In fact, the record reveals that the facts did not indicate that a charge of felony theft was appropriate at any stage of the proceedings. R.C. 2913.02 reads: -6- (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. R.C. 2913.01 codifies a variety of terms essential to defining "theft", including the former concept of "deprive", an essential element of larceny. Legislative Comment to Am. Sub.H.B. 511. 2913.01 expands the definition of "deprive". Id. Pursuant to R.C. 2913.01(C), "deprive" means to: (1) Withhold property of another permanently, or for such period as to appropriate a substantial portion of its value or use, or with purpose to restore it only upon payment of a reward or other consideration; (2) Dispose of property so as to make it unlikely that the owner will recover it; (3) Accept, use, or appropriate money, property, or services, with purpose not to give proper consideration in return for the money, property, or services, and without reasonable justification or excuse for not giving proper consideration. There is no evidence in the record that indicates appellant ever intended to "deprive" Susan of her property in a way that conforms to any part of the definition. There is no indication that appellant intended to withhold the car permanently; he had taken it in for repairs, had informed the police where the car was soon after he was arrested, and the police had verified that the -7- car was, in fact, at Cross Roads Lincoln Mercury. There is also no indication that he planned to dispose of the car, or that he planned to use the car and fail to give proper consideration. At the time of the indictment, in this court's view, the state had three options given the facts of this matter. The state could have deferred to the domestic relations division, and allowed that court to determine whether appellant was in contempt. The state could have deferred to the municipal prosecutor on a misdemeanor charge. Or, the state could have indicted appellant only on the misdemeanor charge. Given the record in the matter, sub judice, the state failed to charge appellant appropriately, appellant never should have been indicted on the charge of felony theft. Moreover, the trial judge denied appellant's motion for a Crim.R. 29(A) acquittal on the indictment. This rule provides: [t]he court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of 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. *** The trial judge denied appellant's motion. However, it was evident from the record that the trial judge should have granted appellant's motion on the charge of felony theft, and instructed the jury only on the lesser included offense of unauthorized use of a motor vehicle. Appellant's actions are not typical of auto theft, nor of an ordinary "joyride", which is frequently grounds for a charge of unauthorized use of a motor vehicle. Sadly, appellant's actions -8- are consistent with the antics of many estranged spouses during divorce. This court believes that the matter, sub judice, should never have been before the trial court on a felony charge. However, the evidence presented to the jury was sufficient to support the verdict on the lesser included offense. Regarding the concurring opinion written in this matter, there is no disagreement that "this court must be vigilant in refusing to trivialize crimes which involve spouses or former spouses." 1 Certainly, six months in jail is not trivial. Furthermore, it should be noted that an estranged marital relationship is not a statutory enhancing factor which elevates that which is otherwise a misdemeanor to a felony. Indeed, to treat the appellant's antics as felonious as suggested in the concurring opinion, may be considered to trivialize felonious conduct. Appellant's assignment of error is overruled. This matter is affirmed. 1 The maximum sentence for a violation of R.C. 2913.03, a misdemeanor of the first degree, is six months imprisonment. -9- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, C.J., CONCURS; ANN DYKE, J., CONCURS IN JUDGMENT ONLY. (SEE ATTACHED CONCURRING OPINION) JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71238 : STATE OF OHIO : : : Plaintiff-Appellee : : C O N C U R R I N G -vs- : : O P I N I O N GREGORY BILICK : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 26, 1997 DYKE, J. CONCURRING IN JUDGMENT ONLY: I concur with the majority's affirmance of defendant's conviction herein but I do not accept dicta within the majority opinion that "the facts did not indicate that a charge of felony theft was appropriate at any stage of the proceedings" Felony theft is defined by R.C. 2913.02 as follows: (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- (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. "Deprive" is defined as: (1) Withhold property of another permanently, or for such period as to appropriate a substantial portion of its value or use, or with purpose to restore it only upon payment of a reward or other consideration; (2) Dispose of property so as to make it unlikely that the owner will recover it; (3) Accept, use, or appropriate money, property, or services, with purpose not to give proper consideration in return for the money, property, or services, and without reasonable justification or excuse for not giving proper consideration. R.C. 2913.01(C). Thus, the common law definition of "deprive" has been statutorily broadened to include the withholding of the property of another for such period as to "appropriate a substantial portion of its value or use." The law is clear that a defendant need not intend to "permanently" deprive the owner of his or her property in order to be found guilty of theft, see State v. Breaston (1982), 8 Ohio App.3d 144, 145; accord 1974 Committee Comment to House Bill 511: The definition of "deprive" in this section is also broadened to include a temporary deprivation of property resulting in some substantial loss to the owner. See, also, State v. Pritchett (November 12, 1992), Cuyahoga App. No 61072, unreported. -3- The majority has concluded that the facts fail to demonstrate that defendant ever intended to deprive Susan Bilick of the vehicle within the meaning of this statute because he had taken it in for repairs, had informed the police where the car was soon after he was arrested, and the police had verified that the car was, in fact, at Cross Roads Lincoln Mercury. There is also no indication that he planned to dispose of the car, or that he planned to use the car and fail to give proper consideration. (Maj. opinion at 6-7). I cannot accept this characterization of the evidence. The transcript reveals that the car was taken on February 4, 1996, and on February 7, 1996, Susan Bilick received a letter from defendant which stated "the car is in a safe place *** we need to communicate about this now." (Tr. 20-22) The next day, while Susan Bilick was reporting her receipt of the letter to the police, defendant arrived at the police station to state that the car was not stolen. (Tr. 47) He refused to tell the police where it was, however, and remained uncooperative with the police until after he was arrested. (Tr. 47) The record further reveals that defendant had not seen the car in eight months and had no knowledge concerning the functioning of the car or whether it was mechanically sound. (Tr. 32) Defendant nonetheless took the car to the dealership and claimed that "he was having problems with his car." (Tr. 43) He then requested that a mechanic check various systems in the car. (Tr. 43) The dealership checked the car then attempted to reach defendant over the course of the next two days. (Tr. 43) After finally reaching him, defendant authorized the repairs, and the -4- "dash was ripped apart." (Tr. 44) There is no evidence, however, that defendant offered to pay for any of the repairs, and Susan Bilick could not complete the repairs because she did not have enough money to do so. (Tr. 29-30) Further, a duffel bag containing documents which Susan Bilick needed for her job was missing from the car and was never recovered. (Tr. 57) In my view, this evidence is more than sufficient to support the Grand Jury's determination that there was probable cause to believe that defendant intended to deprive Susan Bilick of her car within the meaning of R.C. 2913.02. Cf. State v. Vitale (1994), 96 Ohio App.3d 695, 699, (pursuant to Section 10, Article I, Ohio Constitution, a defendant must be tried on the same essential facts on which the grand jury found probable cause). I therefore conclude that this matter was properly charged by the grand jury. Moreover, I do not believe that the fact that Susan Bilick and the defendant were involved in divorce proceedings at the time defendant took the car should in any manner insulate defendant from criminal liability. The undisputed evidence established that the parties agreed that during their separation defendant would retain the Toyota truck titled in his name, and Susan Bilick would retain possession of this vehicle. (Tr. 37) Thus, Susan Bilick remained in sole possession of this vehicle since September 1995, (Tr. 37) and she was certainly entitled to rely on the parties' agreement, subject to any subsequent division of property by the domestic relations court. -5- This court must be vigilant in refusing to trivialize crimes which involve spouses or former spouses. For, statistics show that a woman is at an increased risk of criminal victimization when she attempts to leave a relationship. See State v. Thomas (1997), 77 Ohio St.3d 323, 332 (Stratton, concurring). I believe that the state acted entirely properly in taking due .