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

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 vs. 

ANNA GIBERT, 

 Defendant-Appellant. 

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APPEAL NO. C-160857 

TRIAL NO. B-1603074 

 

 O P I N I O N.

 

 

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 

2

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. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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.