[Cite as State v. Edmonds, 2023-Ohio-3082.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

MONTGOMERY COUNTY

STATE OF OHIO 

 Appellant

v. 

LYNESHIA J. EDMONDS

 Appellee

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C.A. No. 29625

Trial Court Case No. 2022 CR 01227

(Criminal Appeal from Common Pleas 

Court)

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O P I N I O N

Rendered on September 1, 2023

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Appellant

 

ARVIN S. MILLER, Attorney for Appellee

 . . . . . . . . . . . . .

TUCKER, J.

{¶ 1} The State of Ohio appeals pursuant to R.C. 2945.67(A) and App.R. 5(C) from 

the trial court’s judgment entry acquitting defendant-appellee Lyneshia Edmonds of theft 

in violation of R.C. 2913.02(A)(1). 

{¶ 2} The State contends the legal reasoning in State v. Roberts, 2d Dist. 

Montgomery No. 26431, 2015-Ohio-2716, upon which the trial court relied, is untenable 
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and should be reconsidered.

{¶ 3} We conclude that our reasoning in Roberts was sound, and we decline the 

State’s invitation to overrule that decision. 

I. Background

{¶ 4} A grand jury indicted Edmonds on one count of theft in violation of R.C. 

2913.02(A)(1). In relevant part, the indictment alleged that she knowingly had obtained 

or exerted control over appliances without the consent of the owner, a fifth-degree felony. 

At a subsequent bench trial, the State presented evidence that Edmonds had removed 

the stove and refrigerator from her apartment after receiving an eviction notice and had 

not returned the appliances. 

{¶ 5} Relying on Roberts, the trial court sustained Edmonds’ Crim.R. 29 motion for 

acquittal. It reasoned that she had had consent to exercise control over the appliances 

during her tenancy and that her removal of the appliances simply exceeded the scope of 

the consent. Therefore, the trial court opined that she should have been charged under 

R.C. 2913.02(A)(2), which involves obtaining or exerting control over property “[b]eyond 

the scope of the express or implied consent of the owner or person authorized to give 

consent,” rather than R.C. 2913.02(A)(1), which requires an offender to act “[w]ithout the 

consent of the owner.”

{¶ 6} Following Edmonds’ acquittal, the State moved for leave to appeal the legal 

reasoning behind the trial court’s decision. In particular, the State sought to challenge the 

rationale of Roberts, upon which the trial court had relied. On November 29, 2022, we 

sustained the motion and granted the State leave to appeal. 
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II. Analysis

{¶ 7} Before turning to the merits of the State’s argument, we must address 

Edmonds’ assertion that we improvidently granted the State leave to appeal. She 

contends we lack jurisdiction over the appeal for three reasons: (1) the State has not set 

forth any assignments of error; (2) any potential issue is moot given that double-jeopardy 

principles preclude retrying her; and (3) the State failed to comply with the requirement in 

App.R. 5(C) to identify an error made by the trial court. 

{¶ 8} Upon review, we conclude that jurisdiction exists, and we see no basis for 

reconsidering our decision to grant the State leave to appeal. Under R.C. 2945.67(A), the 

State may appeal a decision in a criminal case, except the final verdict, after obtaining

leave from this court. The statute “provides a court of appeals with jurisdiction, and the 

discretion, to grant the State leave to appeal from a decision of the trial court on * * * 

‘substantive law rulings made in a criminal case which result in a judgment of acquittal so 

long as the judgment itself is not appealed.’ ” Dayton v. Johnson, 2d Dist. Montgomery 

No. 29057, 2021-Ohio-3519, ¶ 12, quoting State v. Bistricky, 51 Ohio St.3d 157, 555 

N.E.2d 644 (1990), syllabus. As we recognized in Johnson, the State also must satisfy 

procedural requirements in App.R. 5(C), which include setting forth one or more errors 

that are claimed to have occurred in the trial court. Some, if not all, of the requirements 

of App.R. 5(C) have been characterized as “jurisdictional.” Dayton v. Stewart, 2021-Ohio3518, 179 N.E.3d 208, ¶ 16 (2d Dist.); In re G.W., 2020-Ohio-300, 151 N.E.3d 1043, ¶ 9

(2d Dist.).

{¶ 9} With the foregoing standards in mind, we see no error in our decision to grant 
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the State leave to appeal. The State is appealing from the trial court’s substantive-law 

ruling, based on Roberts, that the evidence was legally insufficient to convict Edmonds 

and that she should have been charged under R.C. 2913.02(A)(2) rather than R.C. 

2913.02(A)(1). Although that issue may be moot as between the State and Edmonds in 

this case, the purpose of R.C. 2945.67(A) is to give appellate courts discretionary 

authority to hear an appeal by the State involving a discrete substantive issue or legal 

conclusion notwithstanding a judgment of acquittal. Bistricky at 159-160. Our exercise of 

such discretion is appropriate here. 

{¶ 10} Absent an appeal by the State, there is no realistic way for the rationale of 

our prior decision in Roberts to be re-examined. The propriety of a conviction under R.C. 

2913.02(A)(1) plainly would be unreviewable if the State instead had charged Edmonds 

under R.C. 2913.02(A)(2), as suggested by the trial court. The only other way to obtain 

appellate review would require a defendant to be convicted of violating R.C. 

2913.02(A)(1) under facts analogous to those here. In such a case, the defendant could 

appeal and challenge the legal sufficiency of the evidence. In light of this court’s ruling in 

Roberts, however, we find it unlikely that a defendant in Edmonds’ position would be 

found guilty under R.C. 2913.02(A)(1). This is, of course, precisely why the State sought 

leave to appeal to challenge the legal reasoning in Roberts.

{¶ 11} Finally, we are unpersuaded by Edmonds’ arguments about the lack of an 

assignment of error or any identified errors. Although the State has failed to recite a formal

“assignment of error,” the error it alleges is unmistakable and apparent in its argument. 

In essence, the State contends the trial court erred in finding legally insufficient evidence 
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to convict Edmonds under R.C. 2913.02(A)(1) because Roberts, the case upon which it 

relied, was wrongly decided. For obvious reasons, the State could not prevail on this 

argument below, so it sought leave to appeal to urge us to re-examine and overrule 

Roberts. Having reviewed the State’s brief, we find the error it alleges to be clear. 

Accordingly, we turn to the merits of the issue. 

{¶ 12} In Roberts, the defendant was charged with theft in violation of R.C. 

2913.02(A)(1) after taking two window air-conditioner units from her apartment before 

moving out. The evidence at trial established that the defendant had pawned the air 

conditioners during her tenancy. The trial court found the defendant guilty. This court 

reversed, reasoning: 

* * * In the case before us, the State alleged that Roberts engaged in 

a violation of R.C. 2913.02(A)(1), on April 14, 2014, at a time when the lease 

was in effect and had not yet been terminated, so at the time of the alleged 

offense Roberts had control over the property with the owner’s consent. As 

found by the trial court, that consent was limited in scope, and Roberts’s 

actions went beyond that scope. Under these facts, we conclude that the 

State proved a violation of R.C. 2913.02(A)(2), but there is not sufficient 

evidence to prove a violation of R.C. 2913.02(A)(1).

Therefore, we conclude that the trial court erred in overruling 

Roberts’s Crim.R. 29 motion for a judgment of acquittal. Roberts’s sole 

assignment of error is Sustained.

Roberts, 2d Dist. Montgomery No. 26431, 2015-Ohio-2716, at ¶ 14-15.
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{¶ 13} In reaching its decision, this court distinguished State v. Frezgi, 2d Dist. 

Montgomery No. 22439, 2008-Ohio-4732. In Frezgi, the defendant had failed to return his 

employer’s cell phone after being terminated from his job. In affirming the defendant’s 

conviction for violating R.C. 2913.02(A)(1), this court reasoned that he “had consent to 

possess the phone when he was employed by the AIDS Resource Center, but that 

consent ended, entirely, with the termination of his employment, well before the time of 

the alleged offense.” Id. at ¶ 8. “At the time of the theft, Frezgi was exerting control over 

the property without any consent at all.” Id. We distinguished Frezgi in Roberts on the 

basis that the air-conditioner theft in Roberts had occurred during the lease term, while 

the tenant had control over the property with the owner’s consent, whereas the phone 

theft in Frezgi had occurred after the employee’s termination, when he had no consent at 

all to possess the phone. Roberts at ¶ 14.

{¶ 14} In the present case, it appears that Edmonds’ alleged theft of the stove and 

refrigerator occurred during her lease term and prior to her eviction. The State concedes 

that “the facts of Edmonds’s case are very similar to those in Roberts[.]” The State 

nevertheless argues:

Giving a tenant permission to use the appliances in the apartment 

during the term of the lease is one thing. But allowing a tenant to remove 

and sell the appliance from the apartment completely, for any purpose, is 

something no landlord would consent to under any circumstances. Since it 

is something that should never occur, the removal and sale of appliances 

by a tenant from a rented apartment, even if it occurs during the term of the 
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lease, is not a matter within the scope of a landlord’s consent. 

Appellant’s Brief at 6.

{¶ 15} While we agree with the State’s argument, it fails to demonstrate any 

erroneous reasoning in Roberts. If anything, the State’s position supports the outcome in 

Roberts. Without question, no landlord would consent to a tenant’s removal and sale of 

appliances under the circumstances before us. Therefore, the State correctly suggests 

that the occurrence of such an event, even during a lease term, would fall outside the 

scope of a landlord’s consent. In other words, the State contends such an occurrence 

would involve obtaining or exerting control over the appliances “beyond” the scope of the 

owner’s consent, which Roberts recognizes is a crime, namely a violation of R.C. 

2913.02(A)(2). 

{¶ 16} The State also characterizes as “untenable” this court’s attempt in Roberts

to distinguish Frezgi. The State notes that the defendant in Frezgi claimed his cell phone 

had been stolen during his employment, but he did not report the alleged theft until after 

his termination and did not return the phone after his termination. The State contends the 

same fact pattern exists in Edmonds’ case. According to the State, Edmonds claimed that 

she took the appliances to be repaired during her lease term but did not report doing so 

until after her lease ended and did not return the appliances after her eviction. Finally, the 

State claims it “made no difference” in Frezgi whether the property “went missing” before 

or after the defendant’s termination. By the same token, the State maintains that it should 

have made no difference in Roberts whether the air conditioners were removed and 

pawned during or after the lease term. Therefore, the State urges us to reconsider the 
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rationale of Roberts. 

{¶ 17} We find the foregoing argument to be unpersuasive. The fact pattern in 

Frezgi is not analogous to the facts in Roberts or the facts in Edmonds’ case. In Frezgi, 

the defendant claimed at trial that his phone had been stolen prior to his termination. If 

this assertion had been believed, the defendant would not have been guilty of theft at all. 

By convicting the defendant, the jury necessarily rejected his testimony and found that he 

had committed theft after his termination by failing to return his phone. In our appellate 

decision, we also recognized that the defendant’s theft offense did not occur until after 

his termination. 

{¶ 18} Unlike Frezgi, the act of theft in Roberts occurred during the term of the 

defendant’s lease. Contrary to the State’s argument, the timing of the thefts in Roberts

and Frezgi made all the difference with respect to the divergent outcomes. The theft in 

Roberts occurred during the defendant’s tenancy, meaning that she had control over the 

air conditioners with the owner’s consent and simply exceeded the scope of that consent. 

The theft in Frezgi occurred after the defendant’s termination, meaning that he exercised 

control over the cell phone with no consent at all. We see nothing untenable about this 

distinction, which was the basis for this court’s opinion in Roberts. 

{¶ 19} Finally, although the State cannot challenge Edmonds’ acquittal, we note 

that the facts in her case appear to align with Roberts rather than Frezgi. The alleged 

theft seems to have occurred during Edmonds’ tenancy when she had control over the 

stove and refrigerator with the landlord’s consent and exceeded the scope of that consent 

by removing the appliances. The record reflects that Edmonds’ landlord gave her a 10-
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day notice, ordering her to vacate her apartment by March 8, 2022. Edmonds had the 

utilities taken out of her name effective March 3, 2022, suggesting that she left prior to 

the 10-day deadline. She had vacated when her landlord entered the apartment on March 

24, 2022, and discovered the appliances missing. But even if Edmonds removed the 

appliances shortly after her tenancy ended, that fact would establish nothing more than a 

misapplication of Roberts and Frezgi in her case. It would provide no justification for 

reconsidering Roberts. 

{¶ 20} Having found no deficiency in the legal reasoning underlying Roberts, we 

decline the State’s request to overrule it. 

III. Conclusion

{¶ 21} The judgment of the Montgomery County Common Pleas Court is affirmed.

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WELBAUM, P.J. and EPLEY, J., concur.