[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 Appell ee : : : : : : : : : : C.A. No. 29625 Trial Court Case No. 2022 CR 01227 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N
Rendered on September 1, 2023

. . . . . . . . . . . MATHIAS H. HECK, JR., by ANDREW T. FRENCH , Attorney for Appell ant ARVIN S. MILLER , Attorney for Appell ee

. . . . . . . . . . . . . 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- 2

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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 indicte d 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 t rial, 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 Rob erts , 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. T herefore, t he 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 cour t had relied. On November 29, 2022, we sustained the motion and granted the State leave to appeal.- 3

- 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 assignment s of error; (2) any potential issue is moot given that double

- jeo pardy 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 decis ion 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
discreti on, 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. Mont gomery 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

- Ohio

3518, 179 N.E.3d 208, ¶ 16 (2d Dist.); In re G.W ., 2020

- Ohio

- 300, 1 51 N.E.3d 1043, ¶ 9 (2d Dist.). {¶ 9} With the foregoing standards in mind, we see no error in our decision to grant- 4

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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 propriet y of a conviction under R.C.
29 13.02(A)(1) plainly would be un reviewable 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 defend ant 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, p recisely 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- 5

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to convict Edmonds under R.C. 2913.02(A)(1) because Roberts , the case u pon 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 t o 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 t aking two window air

- conditioner units from her apartment before moving out. The evidence at trial established that the defendant had pawned the air cond itioners 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 o ver the property with the owner’ s consent. As found by the trial court, that consent wa s 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 th e trial co urt erred in overruling Roberts’ s Crim.R. 29 motion for a judgment of acquittal. Roberts’ s sole

as signment of error is Sustained.
Roberts , 2d Dist. Montgomery No. 26431, 2015

- Ohio

- 2716, at ¶ 14

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.- 6

- {¶ 13} In reaching its decision, this court distinguish ed 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 c ourt 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 th e 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 prop erty 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

neve rtheless 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 wo uld 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- 7

- lease, is not a matter within the scope of a landlord’s consent. Appellant’s Brief at 6. {¶ 15} W hile 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 ten ant’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 “untenabl e” 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 f act pattern exist s in Edmonds’ case . Accordi ng 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, t he State claims it “made no differenc e” 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- 8

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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 defendan t 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 th at he ha d 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.
Th e 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 refrigerat or 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 ou t 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 e ven if Edmonds removed the appliances short ly 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.