[Cite as State v. Newrones , 2012-Ohio-710.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97216



## STATE OF OHIO

PLAINTIFF-APPELLEE

vs. 

## WILLIAM NEWRONES

DEFENDANT-APPELLANT



## JUDGMENT:

AFFIRMED

Criminal Appeal from the Cuyahoga County Common Pleas Court Case No. CR-546288

BEFORE: E. Gallagher, J., Rocco, P.J., and Kilbane, J.

RELEASED AND JOURNALIZED: February 23, 2012ATTORNEY FOR APPELLANT

Ruth Fischbein-Cohen 3552 Severn Road Suite 613 Cleveland Hts., Ohio 44118

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor By: T. Allan Regas Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113

EILEEN A. GALLAGHER, J.: {¶1} Defendant-appellant William Newrones appeals his conviction entered in the Cuyahoga County Court of Common Pleas, arguing th at the trial court e rred in convicting him of a fifth-degree felony because there was insufficient evidence to satisfy the elements of the crime. Appellant alleges that the evidence was sufficient only to prove that $500.00 in merchandise had been stolen, while the statute under which he was convicted requires a minimum of $1,000.00 in stolen goods to qualify as a fifth-degree felony. For the following reasons, we affirm. {¶2} Appellant was indicted for theft in violation of R.C. 2913.02(A)(1). The indictment provides that on or about September 2, 2010, appellant sought to deprive Sears of Xbox video games and/or Xbox accessories and that the value of the stolen property was $500 or more. On March 3, 2011, a ppellant entered a plea of no contest to that charge.{¶3} Immediately following appellant’s change in plea, the State pre-sented a brief factual account of the evidence against the appellant , stating that the appe llant had stolen more than $500.00 in merchandise from Sears. The State further submitted that they were able to identify the appellant through fingerprinting, a photo lineup, a nd other information. The trial court found appellant guilty of a fifth-degree felony and sent enced appellant to a prison term of

ten months. {¶4} In his sole assignment of error, appe llant states that “[t]he Court erred in convicting William Newr ones of a felony five theft, thereby violating his Due Process Rights.” Appellant argues that a fifth- degree felony theft under R.C. 2913.02 requires that the value of the stolen property be $1,000.00 or more and because the State only presented evidence of theft

of merchandise valued at mo re than $500.00, a fifth-degree fel ony conviction was improper. {¶5} Appellant’s argument rests on an in correct recitation of R.C. 2913.02 as it existed at the time of his offense, plea, and c onviction. Appellant relie s on the text of R.C. 2913.02 as it presently exists. However, the statute as properly applied by the trial court at the time of appellant’s conviction, read: (A) No person, with purpose to deprive th e 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 owne r or person authorized to give consent * * * (B) (1) Whoever violates this section is guilty of theft. (2) Except as otherwise provided in this division or division (B)(3), (4), (5), (6), (7), or (8) of this section, a violation of this section is petty theft, a misdemeanor of the first degree. If the value of the property or services stolen is five hundred dollars or more and is less than five thous and dollars or if the property stolen is any of the property listed in section 2913.71 of theRevised Code, a violation of this s ection is theft, a felony of the fifth degree

. R.C. 2913.02 (Eff. Nov. 10, 1999.) {¶6} R.C. 2913.02 was amended as part of House Bill 86, which took effect on September 30, 2011, more than six months after appellant’s Ma rch 3, 2011 conviction.

Am.Sub.H.B. No. 86. The new statut e amended the elements of a fifth-degree felony theft to require $1,000.00 or more in stolen property ra ther than $500.00. R.C. 2913.02 now reads “[i]f the value of the property or services stolen is one thousand dollars or more and is less than seven

thousand five hundred dollars * * * a vi olation of this section is theft, a felony of the fifth degree.” R.C. 2913.02 (Eff. Sept. 30, 2011.) In short, appellant is arguing that his conviction cannot be justified under a statut e that came into existence six months after his conviction — this argument is without merit. {¶7} Notwithstanding appellant’s failure to correctly identify the appropriate statute that applied to his case, this court still must determine whether, following appellant’s plea of no contest, the trial court was presented with sufficient evidence to satisfy all the essential elements of the crime for a finding of gu ilt under the appropriate statute. {¶8} The effect of a no contest plea is set fo rth in Crim.R. 11(B)(2), which states: The plea of no contest is not an admission of defendant’s guilt [as is the effect of a guilty plea], but is an admission of the truth of the facts alleged in the indictment, information, or complaint, and the plea or admission shall not be used against the defendant in any subs equent civil or criminal proceeding. {¶9} The Ohio Supreme Court explained in State v. Bird , 81 Ohio St.3d 582, 584, 1998-Ohio-606, 692 N.E.2d 1013, according to Crim.R. 11(B)(2), a no contest plea is “not an admission of defendant’s guilt, but is an admission of the truth of the facts alleged in the indictment * * *.” Therefore, we ha ve held that where the indictment, information, or complaint contains sufficien t allegations to state a felony offenseand the defendant pleads no contest, the court must find the defendant guilty of the charged offense. {¶10} The trial court possesses the discretion to determine whether the facts alleged in the indictment are sufficient to jus tify conviction of the offense charged. State v. Thorpe , 9 Ohio App.3d 1, 3, 457 N.E.2d 912 (8th Dist.1983). If the court determines that the alleged facts are insufficient to state the charged offense, it may dismiss the charge and find the defendant guilty of a lesser offense. State ex rel. Stern v. Mascio , 75 Ohio St.3d 422, 423-424, 1996-Ohio-93, 662 N.E.2d 370. Thus, the only issue is whether the facts alleged in the complaint or the indictments state a crime; if the answer to the question is in the affirmative,

both the trial and a ppellate inquiry cease. State v. Baumgartner , 8th Dist. Nos. 89190, 91207, 91208, 2009-Ohio-624, 2009 WL 344988, at ¶ 15. {¶11} We find that the trial court possessed suffi cient evidence to justify a conviction of fifth-degree felony theft under R.C. 2913.02. The indi ctment, to which the appellant stipulated by pleading no contest, alleges all of the essential elements of the crime for which he was

convicted: The Jurors of the Grand Jury of the Stat e of Ohio * * * do find and present that [William Newrones] * * * did with purpose to deprive the owner, Sears Grand, of Xbox video games and/or an Xbox acce ssories pack and/or other merchandise or services, knowingly obtain or exert c ontrol over either the property or the services without the consent of the owne r or person authorized to give consent and the property or services stolen is valued at $500 or more and less than $5,000. {¶12} Moreover, the trial court elicited its own explanation of the circumstances before making a finding of guilt. The trial court questioned the State, “if this matter had gone to trial, what factual basis would there be for establishing this charge of theft?” The State elaborated on

the facts contained within the indictment, declaringon September 2nd, 2010, the defendant entere d the Sears Grand in Solon, stole over $500 in merchandise * * * Through fingerprinting the receipts and other information, they were able to estab lish it was him with a photo lineup, and he was ID’d as the person taking these items out of the store. On this record, the facts alleged in the indictment and at the plea hearing were sufficient to justify a finding of guilt. {¶13} We find that the trial court possessed sufficient evidence to satisfy all the elements of the crime charged. Both the indictment and the explanation presented to the court clearly allege that the value of the goods stolen by appellant totaled mo re than $500.00, enough to satisfy the requirement for fift h-degree felony theft under R.C. 2913.02 as it existed at the time of appellant’s conviction. {¶14} For the foregoing reasons, this court affi rms appellant’s convic tion of fifth-degree felony theft under R.C. 2913.02.

It is ordered that appellee recove r from appellant costs herein taxed. It is ordered that a special mandate be sent to said lower court to carry this judgment into

execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appella te Procedure.

KENNETH A. ROCCO, P.J., and MARY EILEEN KILBANE, J., CONCUR