COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72763 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION GINGER HASAN : : Defendant-appellant : : : DATE OF ANNOUNCEMENT : OF DECISION : OCTOBER 1, 1998 : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CR-345193 : JUDGMENT : VACATED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: REBECCA J. MALECKAR, ESQ. Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 JOHN P. PARKER, ESQ. The Brownhoist Building 4403 St. Clair Avenue Cleveland, OH 44103 -2- JOHN T. PATTON, J.: Defendant-appellant Ginger Hasan appeals the decision of the trial court finding her guilty of grand theft. She was indicted for arson and grand theft of an automobile on December 18, 1996. Defendant then waived her right to a jury trial and proceeded to trial. At trial, plaintiff-appellee State of Ohio introduced state's exhibit 11, which is an AFFIDAVIT OF VEHICLE THEFT completed by defendant at the request of the insurance company. This affidavit indicated defendant, who is a police officer for the city of Cleveland, parked her car in front of her friend's house on April 1, 1994 at 11:30 p.m. The next day, at 8:30 a.m., she discovered the car was stolen. Defendant immediately reported the theft to the local police department. The affidavit also states the engine was in good condition and the car was last serviced at a Lube Stop a month prior to the theft. A claims investigator testified the car, a 1991 Infiniti G20, was found approximately six miles from where it was initially parked. He said the car was discovered by the defendant parked in the backyard of a residence and the car was burned. The investigator testified his insurance company paid defendant for use of a rental car, paid her $3,993.55 for value of the car, and $8,397.45 to the Cleveland Police Credit Union to settle her account. The investigator went on to say that he was present at defendant's deposition where defendant stated the car was mechanically running fine, the last work on the car was done -3- [i]n December, she took the car for work and oil changes to Lube Stop, Jiffy Lube, and the only other work she had done on the car was for brakes. The investigator continued to read defendant's deposition where she stated the car was running fine. It was running fine at it was making it was making funny sounds and she did not fix the car [b]ecause I didn't have the money to do the work that they had done. On cross-examination, the investigator stated defendant properly identified the location where the car was stolen and the time she discovered it was stolen plus she immediately reported the theft to the police. The investigator then said he recommended to his employer, the insurance company, that they not pursue any civil claims against defendant. He also said defendant stated in her deposition that she gave several sets of keys to the car to relatives and friends. A mechanic who worked on defendant's car testified the most common cause of engine failure is poor maintenance. He stated this usually results from [t]oo much time between oil changes which is evidenced by the presence of sludge in the engine. He said he examined defendant's car and found sludge in the engine. The mechanic testified the best solution for this problem is replacing the engine, which is very expensive. He stated defendant was informed of this solution but decided to make temporary repairs in order to allow the car to keep running. He also reviewed an invoice pertaining to defendant's car which revealed defendant complained about knocking and ticking in the car on March 14, -4- 1994. The mechanic stated this was probably a symptom of the engine failure problem and defendant was informed of this but left his garage without any work done on the car. The state also called a forensic mechanic to testify. He testified he worked for the insurance company and examines cars for fire, theft, and recovery purposes. He said he examined defendant's car after it was burned and stolen and found sludge in the engine. He also stated the steering column was locked and that the car had been disassembled before it was burned. The mechanic testified it was his opinion defendant's car was pushed to the location where it was found and he based this opinion on certain marks he found on the exterior of the car. After completion of the state's case, the defense did not call any witnesses. However, defendant did make a Crim.R. 29 motion for acquittal regarding the arson which the trial court granted. Thereinafter, both parties made closing arguments and the trial court rendered its decision. The trial court found defendant guilty of grand theft. In support of this decision the trial court made several findings on the record. The trial court referred to the Affidavit of Vehicle Theft which defendant signed and had notarized and her knowledge of the poor condition of her car. The trial court stated [t]he evidence is clear that Ginger Hasan knew as early as November 19, 1993, that the camshafts on her Infiniti had to be replaced, that even this repair was only a temporary fix. Furthermore, the trial court said defendant knew permanent repairs would be expensive as a result of her replacing the oil and -5- that a month before the theft she was told the engine had failed. The trial court noted defendant described in the affidavit the condition of her engine as good, and said, [a]t the very least, the defendant displayed an incredible lack of candor that could have had only one intention, and that was to mislead the insurer, State Farm, into paying an inflated value for the car. Defendant filed a timely notice of appeal from this decision and submits three assignments of error. We will address her second assignment of error first which states: THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant argues the weight of the evidence warrants a reversal. She claims the state only proved she thought her car was in good condition when she knew it had engine problems. Defendant maintains the car was driveable until the time it was stolen and burned and thus there is no evidence to prove she had the intent to defraud. Lastly, defendant contends she did not withhold records and did nothing but state her opinion as to the condition of the car. The state maintains defendant intentionally misled the insurance company about the condition of her engine so as to receive a larger insurance pay-out. The state bases this argument on defendant stating the car was running fine and noting in her affidavit that the engine was in good condition, when in fact defendant knew this was not true. In support, the state submits defendant knew the engine was on the brink of failing because she was told this by her mechanic who discovered sludge in the engine. -6- The state claims the mechanic then informed defendant the cost of repairing the engine would be exorbitant. As a result, the state argues defendant knew the value of the car had been diminished by a substantial amount so when she indicated the engine was running fine and in good condition she was intentionally misleading the insurance company in order to receive a larger pay-out, which amounts to grand theft. It is well-settled law that a reviewing court will not reverse a conviction where there is substantial evidence upon which the court could reasonably conclude that all elements of an offense have been proven beyond a reasonable doubt. State v. Seiber (1990), 56 Ohio St.3d 4, 13. Moreover, in reviewing a claim that a conviction is against the manifest weight of the evidence, the conviction cannot be reversed unless it is obvious that the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Garrow (1995), 103 Ohio App.3d 368, 370-371. R.C. 2913.02 is the codification of grand theft and it states: (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; (B) Whoever violates this section is guilty of theft. If the value of the property or services stolen is three hundred dollars or more and is less than five thousand dollars, * * * a violation of this section is theft, a felony of the fourth degree. * * * -7- The issue before this court is whether there was substantial evidence upon which the court could reasonably conclude that all elements of grand theft have been proven beyond a reasonable doubt. In order to be found guilty of grand theft in violation of R.C. 2913(A)(1), a defendant must have knowingly obtained or exerted control over the property of another, with intent to deprive the owner of the property, without an owner's consent. R.C. 2901.22 defines knowingly and states: (B) A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist. We do not believe the state proved defendant knowingly intended to deprive the insurance company of the value in her car by misleading them. The state claims defendant intentionally misled the insurance company about the condition of her engine based on her deposition testimony and notation on her affidavit. Although it is true defendant was not entirely accurate when relating the service history of her car, a review of the record does not support the proposition that she was intentionally misleading. During her deposition, defendant related she was in one automobile accident in which the hood on the engine was bent a little bit and the paint was scratched and spotted in places on her car. She was then asked several questions about the history of her car: Q. All right. At the time of this loss how was the car running mechanically? A. Fine. -8- * * * Q. Do you recall having any mechanical problems with the car in, say, the three months just prior to this loss occurring? A. Mechanical problems? I mean, it was running fine. It was running at - - it was making - - it was making funny sounds. Q. What kind of funny sounds? A. It was making a lot of knocking in the car, knocking. Q. Did you take it anywhere to have it checked on? A. The Infinity dealer. Q. Did they do anything to fix it? A. They checked it out. They didn't fix it, they didn't do any fixing on it. They just - - Q. Why didn't they fix it, do you know? A. Because I didn't have the money to do the work that they had done. I really never had the work, do most the work they had - - they were going to charge me a lot of money to have to go in and look and see. They didn't know why it was making the noise it was making. Q. They told you, at least your recollection is they told you they didn't know why the car was making the noise and it would cost you a lot of money? A. They figured just coming from the engine they said it was probably coming from the engine, and that's the price they gave me to go inside. Defendant did testify the car was running fine, as the state claims but she did qualified that answer by saying there may have been potential engine problems. Indicative of the fact that defendant was not intentionally misleading is how forthcoming she was when specifically testifying about the car engine. When asked specifically about the engine, she stated it was making knocking sounds so she took it to the Infinity dealership. She then disclosed it was only at the dealership that she discovered the knocking sounds were coming from the engine and it would cost a lot to repair. If defendant was intending to mislead the insurance company about the condition of her engine, it would be illogical for her to -9- disclose where she had the car serviced and that the engine was making knocking sounds which would cost a lot to repair. By admitting in her deposition that it would cost a lot to repair the engine, defendant was revealing the engine may have been in need of serious repair and the value of the car might have been correspondingly diminished. In addition, defendant's deposition testimony is consistent with the mechanic's testimony that she knew there was an engine problem that would be expensive to repair but she did not have it repaired because of the cost. Moreover, defendant admitted to a prior accident and scratched paint. Thus, when her testimony is read in its totality, it is obvious she was disclosing all the negative aspects of her car and not intentionally or knowingly misleading the insurance company to over value the car. Regarding the affidavit, there is a section in the affidavit where defendant was given three choices to describe the condition of the engine. The three choices were fair, good, and excellent. Defendant chose good. The state maintains this answer is misleading and in conjunction with her depositional testimony amounts to grand theft. We disagree. On the affidavit, defendant disclosed the prior accident and paint damage and also where the car was serviced. There were no specific questions about the car engine, only a general question about its condition. Therefore, defendant was not even provided the opportunity to disclose the engine was knocking or to repair the engine would be costly. This general question merely asked defendant her opinion about the -10- engine's condition. Relying on the fact that the car was driveable and had no major breakdowns, defendant's lay opinion was that the engine was in good condition. Describing the engine condition as good may not be the most accurate description, but it may have been the most accurate of the three choices offered. It does not arise to knowingly misleading in light of defendant not being a mechanical expert and not being told exactly what was wrong with the engine by the Infiniti mechanics. She simply gave her opinion and this does not amount to knowingly depriving the insurance company of the value of the car for the purposes of grand theft in R.C. 2913.02. Certainly, the actions of the insurance company do not indicate it believed defendant was guilty of grand theft, a fact which contravenes the state's assessment of the evidence. Defendant's car was stolen on April 3, 1994. She completed the insurance company's affidavit on April 18, 1994 and a week later she was interviewed by an insurance agent. Subsequently, the insurance company issued checks to defendant reimbursing her for the loss of her car. Then in September 1994, the insurance company had a forensic mechanic inspect the car. Six months after this inspection, the insurance company deposed defendant and asked her specific questions about the condition of the car engine. By that time defendant had not seen the car in almost a year or heard the knocking noises for more than a year. Finally in March, 1995 the insurance company decided not to pursue a civil claim against defendant. -11- After the theft of defendant's car the insurance company had the opportunity to inspect the car and determine if fraud was involved. By not conducting an immediate inspection, it is obvious the insurance company had no reason to dispute defendant's testimony and notations in her affidavit because it then issued checks to her reimbursing her for the value of the car. Next, the insurance company deposed her and had a forensic mechanic inspect the car. Even after the occurrence of these two investigatory events, the insurance company apparently did not detect any fraud because it decided not to pursue a civil claim against defendant. It is apparent from the insurance company's actions that its own investigation did not reveal evidence that defendant acted fraudulently. Based on the foregoing analysis, we find the evidence does not prove defendant knowingly intended to deprive the insurance company of the value of her car and there is not substantial evidence upon which the trial court could reasonably conclude that all elements of grand theft have been proven beyond a reasonable doubt. Accordingly, defendant's second assignment of error is sustained. Pursuant to App.R. 12(A)(1)(c) we need not address plaintiff's remaining two assignments of error. Judgment vacated. -12- 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 Court of Common Pleas 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. PATRICIA A. BLACKMON, A.J. JAMES D. SWEENEY, J.,CONCUR. -13- JUDGE JOHN T. PATTON 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 reconsidera-tion 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 .