[Cite as State v. Piskac, 2022-Ohio-1209.]

IN THE COURT OF APPEALS OF OHIO

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

- v -

ALEX D. PISKAC,

Defendant-Appellant.

CASE NO. 2021-P-0051

Criminal Appeal from the

Court of Common Pleas

Trial Court No. 2020 CR 00673

O P I N I O N

Decided: April 11, 2022

Judgment: Reversed and remanded

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant 

Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

R. Tadd Pinkston, The Law Office of R. Tadd Pinkston, LLC, 441 West Bagley Road, 

#283, Berea, OH 44017 (For Defendant-Appellant).

MATT LYNCH, J.

{¶1} Defendant-appellant, Alex D. Piskac, appeals his conviction for Grand Theft 

in the Portage County Court of Common Pleas. For the following reasons, we reverse 

the conviction and remand this matter for further proceedings consistent with this opinion.

{¶2} On September 10, 2020, the Portage County Grand Jury indicted Piskac on 

a single count of Grand Theft, a felony of the fourth degree in violation of R.C. 2913.02.

{¶3} On February 24, 2021, the case was tried before a jury. The following 

witnesses testified on behalf of the State:
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{¶4} Deputy Jonathan Lavrich of the Portage County Sheriff’s Office testified 

that, on September 1, 2020, at about 8:47 a.m., he was dispatched to the residence of 

Paulette Piskac in Palmyra Township in response to a report of the theft of a 2004 Jeep 

Liberty. Upon arriving, he learned that her son, Piskac, had the vehicle and was returning 

it to an Econo Lodge in Brimfield where Piskac’s brother, Michael, was staying. Deputy 

Lavrich left for the motel and arrived at about a quarter to noon. He observed the Jeep 

arrive after a few minutes. 

{¶5} Deputy Lavrich spoke to Piskac and advised him that the vehicle had been 

reported stolen. Piskac denied stealing the vehicle and told Lavrich that he was given 

permission to borrow the vehicle but was late in returning it.

{¶6} Paulette Piskac testified that, on the date in question, she lived with Edward 

Powers, the owner of the Jeep, and Piskac. On the evening of August 31, she went to 

bed at about ten o’clock. She awoke the following morning at about seven o’clock. She 

noticed that Piskac was not at home and that Powers’ Jeep was missing. Piskac had 

previously taken her vehicle without permission to go fishing. She called Piskac but he 

did not answer. She then drove around to local fishing spots but did not find him. She 

then contacted the police and Michael. 

{¶7} Edward Powers testified that, on the evening of August 31, he arrived home 

at about eleven thirty, left his keys on the key rack, and went to sleep. He awoke before 

eight thirty the next morning and learned that his keys and the Jeep were missing. He 

did not give anyone permission to use his vehicle. He went to the Econo Lodge to recover 

his vehicle. He noted that his work tools were still in the vehicle but that the back window 

was down and would not go back up because of a “bad regulator.”
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{¶8} The jury found Piskac guilty of Grand Theft. Following a sentencing 

hearing, Piskac was sentenced to 200 days in jail followed by a period of 12 months of 

supervision by the Portage County Adult Probation Department in the Intensive 

Supervision Program and 48 months under the General Division of Adult Probation. 

Piskac’s sentence was memorialized in an April 12, 2021 Order and Journal Entry.

{¶9} On May 10, 2021, Piskac filed a Notice of Appeal. On appeal, Piskac raises 

the following assignments of error:

[1.] The trial court erred to the prejudice of Mr. Piskac when it denied 

his Motion for Acquittal under Crim.R. 29(A) as the State presented 

insufficient evidence to convict him of Grand Theft.

[2.] The trial court erred to the prejudice of Mr. Piskac when it 

returned a verdict of true against the manifest weight of the evidence.

[3.] The trial court committed plain error when it failed to provide the 

jury with instruction sua sponte as to the lesser included offense of 

Unauthorized Use.

[4.] Mr. Piskac was deprived of his right to the effective assistance of 

counsel guaranteed by the Sixth and Fourteenth Amendments to the 

United States Constitution and Section Ten, Article I of the Ohio 

Constitution.

{¶10} Under the first assignment of error, Piskac challenges the sufficiency of the 

evidence. We find this argument to have merit and to be dispositive of the appeal.

{¶11} “A claim challenging the sufficiency of the evidence invokes a due-process 

concern and raises the question whether the evidence is legally sufficient to support the 

jury verdict as a matter of law.” State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-9423, 

108 N.E.3d 1, ¶ 165; Crim.R. 29(A) (“[t]he court * * * shall order the entry of a judgment 

of acquittal * * * if the evidence is insufficient to sustain a conviction”).

An appellate court’s function when reviewing the sufficiency of the 

evidence to support a criminal conviction is to examine the evidence 
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admitted at trial to determine whether such evidence, if believed, 

would convince the average mind of the defendant’s guilt beyond a 

reasonable doubt. The relevant inquiry is whether, after viewing the 

evidence in a light most favorable to the prosecution, any rational 

trier of fact could have found the essential elements of the crime 

proven beyond a reasonable doubt.

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, 

following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). 

“Evaluation of the witnesses’ credibility is not relevant to a sufficiency analysis.” State v. 

Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 207.

{¶12} In order to convict Piskac of Grand Theft, the State had to prove, beyond a 

reasonable doubt, that he, with purpose to deprive Powers of his motor vehicle, knowingly 

obtained or exerted control over the vehicle without Powers’ consent. R.C. 2913.02(A)(1) 

and (B)(5). For present purposes, “‘[d]eprive’ means to * * * [w]ithhold property of another 

permanently, or for a period that appropriates a substantial portion of its value or use.” 

R.C. 2913.01(C)(1). The only element of Grand Theft in dispute in the present case is 

whether Piskac purposed to permanently deprive Powers of the vehicle.

{¶13} The State notes the following as circumstantial evidence that Piskac 

purposed to deprive (as defined by the statute) Powers of the vehicle: “the vehicle was 

taken in secret, to an unknown location, and for an unspecified period of time.” Brief of 

the State at 7 (so also the following quotations). In the present case, such evidence is 

not probative of Piskac’s intentions. Although Piskac took the vehicle in secret, he did 

nothing to conceal the fact that he took the vehicle. His mother readily deduced from the 

absence of Piskac and the vehicle from the home that Piskac had taken the vehicle. While 

Piskac’s destination may have been unknown, the vehicle was recovered from a prearranged location within twelve hours of its disappearance.
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{¶14} “[Piskac] used up a quantity of gas that belonged to [Powers] without 

compensation for that gas upon return of the vehicle, the back window of the Jeep was 

broken in a permanently down position due to [Piskac’s] use.” That Piskac used gas that 

did not belong to him is irrelevant. With respect to the window, Powers testified it was not 

Piskac’s fault.

{¶15} “There is nothing in the past relationship between [Piskac] and [Powers] * * 

* to indicate [Piskac’s] intention of unauthorized use and return of [Powers’] vehicle [sic].” 

The absence of evidence as to Piskac’s intentions in taking the vehicle does not permit 

an inference that he intended to deprive Powers of its use. The burden was on the State 

to introduce evidence from which the intent to deprive could be inferred.

{¶16} “[Powers] does not appear to have a close relationship with Paulette’s son 

[Piskac], he does not even have [Piskac’s] phone number.” Again, these facts are 

irrelevant with respect to Piskac’s intentions. Piskac, Powers and Paulette were residing 

together when the vehicle was taken so that it would be obvious who took the vehicle.

{¶17} “Without the sheriff[’]s intervention * * * [Powers’] Jeep might still be in some 

undisclosed location today.” This statement is not supported by the evidence. According 

to Deputy Lavrich’s testimony, by the time he spoke with Michael by phone from Paulette’s 

home, the return of the vehicle had already been arranged. While Paulette did send 

Piskac a text message threatening to call the police if he did not get in touch with her, 

there is nothing in the record indicating that this threat had any influence upon Piskac’s 

conduct.
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{¶18} The State points to nothing in the record from which it could be reasonably 

inferred that it was Piskac’s purpose to withhold the vehicle permanently or for a period 

of time sufficient to appropriate a substantial portion of its value or use.

{¶19} Piskac cites several cases illustrating situations in which it was found that 

there was insufficient evidence of an intent to deprive. In State v. Boyce, 33 Ohio App.3d 

295, 515 N.E.2d 982 (8th Dist.1986)1, Boyce took a vehicle from a friend, Bates, without 

the owner’s consent (the vehicle had been leased and was in Bates’ possession). Boyce 

was found sleeping in the vehicle two days later. The court of appeals noted: “the fact 

[Boyce] was a longtime friend of Bates and in the habit of borrowing his car, coupled with 

the fact that [Boyce] allowed himself to be seen with the car in all his usual hangouts, 

creates serious doubt the car was taken with the intent to dispose of or withhold it 

permanently or for such period as to appropriate a substantial portion of its value or use.” 

Id. at 297.

{¶20} In State v Sorrell, 4th Dist. Highland No. 767, 1991 WL 238194, Sorrell took 

a van belonging to a woman (Rains) with whom he had a long-term relationship ostensibly 

for a “business trip.” Sorrel had used Rains’ van on prior occasions, both with and without 

her permission. He was arrested with the van in another county. In reversing the theft 

conviction, the court of appeals noted that “the fact that appellant did not have permission 

to use the van and/or should have known that he had no such permission, is not indicative 

of what he intended to do with the van once he took it.” Id. at *3.

1. Although this case involves Receiving Stolen Property, the purpose to deprive another of property is the 

same.
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{¶21} In State v. Davis, 1st Dist. Hamilton No. C-040411, 2006-Ohio-4599, Davis 

had taken a vehicle belonging to a family member from a party to purchase alcohol and 

drove into a tree returning to the party. The court of appeals held “that the evidence was 

insufficient to show that Davis had the purpose to ‘deprive’ the owners of the van within 

the meaning of R.C. 2913.01(C)(1).” Id. at ¶ 12.

{¶22} In the present case, as in the preceding cases, Piskac was known by and 

had a relationship with the person from whom the vehicle was taken. As noted above, 

nothing in the record suggests that he tried to conceal the fact that he took the vehicle. 

When contacted by a family member, he arranged to return the vehicle and did so within 

a few hours. In the absence of any countervailing evidence probative of a purpose to 

deprive Powers of the vehicle, the evidence in this case is insufficient to sustain a 

conviction for Grand Theft.

{¶23} The first assignment of error is with merit.

{¶24} In the second assignment of error, Piskac argues the verdict is against the 

manifest weight of the evidence. By virtue of the fact that there was insufficient evidence 

to sustain the conviction with respect to purpose, the conviction is necessarily against the 

manifest weight of the evidence. State v. Short, 2017-Ohio-7200, 144 N.E.3d 1037, ¶ 22 

(2d Dist.) (“[w]here there is insufficient evidence to support a conviction, it will also 

necessarily be against the manifest weight of the evidence”).

{¶25} The second assignment of error is with merit.

{¶26} In the third assignment of error, Piskac contends he was entitled to a jury 

instruction on the lesser-included offense of Unauthorized Use of a Motor Vehicle and, in 

the fourth assignment, that he received ineffective assistance of counsel based largely 
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on counsel’s failure to request a jury instruction on Unauthorized Use. These 

assignments of error are rendered moot by our resolution of the first assignment of error.

{¶27} This court has recognized: “There is no doubt that the unauthorized use of 

a motor vehicle [R.C. 2913.03] is a lesser included offense of grand theft of a motor 

vehicle since the common elements to both offenses are (a) knowing use (b) of a motor 

vehicle (c) without consent. A fourth element, that of intent to deprive, is found only in the 

greater offense of grand theft of a motor vehicle.” State v. Meeks, 11th Dist. Lake No. 

2007-L-057, 2007-Ohio-6559, ¶ 29; R.C. 2913.03(A) (“[n]o person shall knowingly use or 

operate * * * [a] motor vehicle * * * without the consent of the owner”). In the present 

case, the evidence supported a conviction for Unauthorized Use of a Motor Vehicle, a 

fact not disputed by either trial or appellate counsel.

{¶28} When the evidence is insufficient to support a conviction for the indicted 

offense but sufficient to support a conviction for a lesser-included offense, the court of 

appeals may modify the verdict accordingly, even where the jury was not given an 

instruction on the lesser offense. State v. Blenman, 2021-Ohio-3076, 177 N.E.3d 1039, 

¶ 25 (11th Dist.) (“even though a jury instruction was not given upon the lesser included 

offense * * *, [appellant] is not prejudiced by entry of a conviction for that offense because 

the jury was instructed upon and considered all of the elements of the lesser included 

offense * * * and found that those elements were proved beyond a reasonable doubt”); 

State v. Petit, 12th Dist. Madison No. CA2016-01-005, 2017-Ohio-633, ¶ 29 (“Ohio 

appellate courts have routinely ordered entry of a conviction for a lesser included offense 

in [such] circumstances”); Davis, 2006-Ohio-4599, at ¶ 13 (“[w]hen the evidence shows 
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that a defendant is not guilty of the crime for which he was convicted, but is guilty of a 

lesser-included offense, this court may modify the conviction”).

{¶29} For the foregoing reasons, Piskac’s conviction for Grand Theft is reversed 

and this case is remanded with instructions for the trial court to vacate the Grand Theft 

conviction in violation of R.C. 2913.02, enter a judgment of conviction on the lesserincluded offense of Unauthorized Use of a Motor Vehicle in violation of R.C. 2913.03, and 

resentence Piskac accordingly. Costs to be taxed against the appellee.

CYNTHIA WESTCOTT RICE, J.,

JOHN J. EKLUND, J.,

concur.