[Cite as State v. Chessman,

.]

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24451

vs. : T.C. CASE NO. 10CRB1279

STEPHANIE CHESSMAN : (Criminal Appeal from Municipal Court) Defendant-Appellant :

. . . . . . . . .

O P I N I O N

Rendered on the 30th day of March, 2012.

. . . . . . . . .

Ryan L. Brunk, Atty. Reg. No. 0079237, 125 W. Main Street, New Lebanon, OH 45345 Attorney for Plaintiff-Appellee

Michael Hallock, Atty. Reg. No. 0084630, P.O. Box 292017, Dayton, OH 45429 Attorney for Defendant-Appellant

. . . . . . . . .

GRADY, P.J.:

{¶ 1} On December 9, 2010, following a bench trial, the trial court found Defendant

Stephanie Chessman guilty of the offense of petty theft, R.C. 2913.02(A)(1). Defendant was

sentenced to thirty days in jail, which were suspended by the court. She was also fined two

hundred dollars, one hundred and fifty of which was also suspended, and ordered to pay costs. 2

The court also imposed a five-year term of community control.

{¶ 2} Defendant filed a timely notice of appeal from her judgment of conviction.

She presents two assignments of error for review:

FIRST ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED BY SUSTAINING APPELLANT’S

CONVICTION BECAUSE THE STATE’S EVIDENCE WAS

INSUFFICIENT TO SATISFY ITS BURDEN TO PROVE EACH AND

EVERY ELEMENT OF THE CRIME BEYOND A REASONABLE DOUBT.

SECOND ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

CRIMINAL 29 MOTION TO DISMISS.

{¶ 3} Because they are interrelated, these assignments of error will be considered

together. In State v. Haggerty, 2d Dist. Montgomery No. 24405,

, we wrote:

When considering a Crim.R. 29 motion for acquittal, the trial court

must construe the evidence in a light most favorable to the State and determine

whether reasonable minds could reach different conclusions on whether the

evidence proves each element of the offense charged beyond a reasonable

doubt. State v. Bridgeman (1978),

. The motion will be

granted only when reasonable minds could only conclude that the evidence

fails to prove all of the elements of the offense. State v. Miles (1996),

. 3

A Crim.R. 29 motion challenges the legal sufficiency of the evidence.

A sufficiency of the evidence argument challenges whether the State has

presented adequate evidence on each element of the offense to allow the case

to go to the jury or sustain the verdict as a matter of law. State v. Thompkins,

(1997),

. The proper test to apply to such an inquiry is the

one set forth in paragraph two of the syllabus of State v. Jenks (1991),

:

“An appellate court's function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence 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.”

{¶ 4} Defendant was found guilty of theft in violation of R.C. 2913.02(A)(1), which

provides:

No person, with purpose to deprive the owner of property or services,

shall knowingly obtain or exert control over either the property or services in

any of the following ways: Without the consent of the owner or person

authorized to give consent.

{¶ 5} The evidence presented by the State at Defendant’s trial shows that on July 19,

2010, Defendant Stephanie Chessman, her brother and co-defendant Scott Chessman, and one 4

or perhaps two unidentified males entered the unlocked basement of a duplex apartment

building at 1925 West Main Street, New Lebanon, Ohio. Tenants of the building stored

personal property in the basement. While making between eight to ten trips into and out of

the basement, the group took some bags and boxes of property to their vehicle and then drove

away. The group’s conduct was seen by Brandy Miller, a resident of the building, who was

in the basement doing laundry.

{¶ 6} The group removed no property belonging to Miller. However, they did

remove property belonging to her fiancé: a positional level and a tool box. They also

removed property belonging to another resident of the duplex, Cody Ridenauer. Miller

contacted Ridenauer after the group left. Ridenauer came to the basement and determined

that several baseball bats and gloves as well as an electric sander he kept there were gone.

Ridenauer promptly called the police.

{¶ 7} The owner of the duplex, Jerry Huffman, testified that Scott Chessman had

lived there from October to December of 2008. Scott Chessman also kept property in the

basement, which he left there after he moved out. Huffman said that he didn’t give

permission to the Chessmans to enter the basement on July 19, 2010, “that I recall.” (Tr. 11.)

He also denied ever giving them permission at all.

{¶ 8} Robert Ridenauer testified that approximately one and one-half years after

Scott Chessman moved out of the duplex, Huffman asked Ridenauer to dispose of property

Scott Chessman had left in the basement. Ridenauer and a friend removed bags and boxes of

Scott Chessman’s property and left it at the front curb.

{¶ 9} Brandy Miller testified that on one day in 2010, the Chessmans knocked on the 5

door of her apartment and asked for permission to “get their stuff.” (Tr. 21.) Miller told

them to talk to Huffman, the landlord. Miller testified that about two weeks later, on the day

the Chessmans removed Ridenauer’s property from the basement, Defendant Stephanie

Chessman again knocked on her door, after Scott Chessman had gone to the basement.

Miller did not relate what conversation, if any, she had with Stephanie Chessman on that

occasion.

{¶ 10} Neither Defendant Stephanie Chessman nor her brother and co-defendant Scott

Chessman offered any testimony or other evidence at the trial.

{¶ 11} Defendant argues that the State failed to prove that she did not have the

consent of the owner of the property to take or possess that property. In support of that claim,

Defendant points out that the owner of the property that was taken, Cody Ridenauer, never

testified that he did not give permission to Defendant, Scott Chessman, or anyone else to take

or possess his property.

{¶ 12} We previously rejected this same claim in the appeal of Defendant’s brother,

Scott Chessman. In State v. Chessman, 2d Dist. Montgomery No. 24454,

, we stated:

This court has previously held that although the State has an affirmative

obligation to present evidence supporting every element of an offense, it is not

required to present direct evidence regarding the lack of consent as long as

there is sufficient evidence to permit the trier of fact to infer the lack of

consent. State v. Miller (May 24, 1990), Montgomery App. No. 11734.

{¶ 13} Cody Ridenauer did not testify that the Chessmans lacked his permission to 6

take his property that they removed: baseball equipment and an electric sander. However, the

fact that Ridenauer called the police to report those items of property stolen is a fact from

which reasonable minds could infer that Ridenauer gave no permission to anyone, including

the Chessmans, to remove his property from the basement.

{¶ 14} Defendant Stephanie Chessman further argues that the evidence was

insufficient to prove the other essential element of R.C. 2913.02(A)(1): that she acted “with

purpose to deprive the owner of [the] property” Defendant and the others removed from the

basement. R.C. 2901.22(A) states:

A person acts purposely when it is his specific intention to cause a

certain result, or, when the gist of the offense is a prohibition against conduct

of a certain nature, regardless of what the offender intends to accomplish

thereby, it is his specific intention to engage in conduct of that nature.

{¶ 15} The State responds to this argument with the assertion that “[Brandy] Miller

testified that after she told the Appellant that a positional level was her fiance’s[,] the

Appellant or her co-defendant still stole the level.” (Brief, p. 4.) That assertion is partially

incorrect. Miller testified:

Well, there was some Louisville slugger bats and there was a level on

my - - the - - I guess its pronounced [sic] level, it’s the yellow thing that you

use to level stuff out because my fiancé used to be a construction worker.

Well, I believe the man walked over and said something about that

looked like his. And I put my foot on it and I said, everything over here is my

old man’s or my fiance’s. 7

And I seen someone with a daw - - Dewalt drill. I don’t remember if it

was a guy or a girl. And they probably made ten trips up and down the steps.

(Tr. 21.)

{¶ 16} Miller’s testimony demonstrates that her statement was addressed to Scott

Chessman or another of the males with him. It does not demonstrate that Stephanie

Chessman heard or was otherwise aware of Miller’s statement. The court inquired of Miller

whether “[t]hese people[,] whether it be three males and a female or two males and a female,

they were acting together; they were talking to one another?” Miller responded; “yes sir.”

(Tr. 33.) The court’s inquiry is indicative of the State’s theory of Stephanie Chessman’s

criminal liability: that she was complicit in committing the theft offense in which her brother

engaged. We previously affirmed her brother’s conviction for petty theft. State v.

Chessman, 2d Dist. Montgomery No. 24454,

.

{¶ 17} R.C. 2923.03(A)(2) states: “No person, acting with the kind of culpability required for

the commission of an offense, shall * * * [a]id or abet another in committing the offense.”

When the degree of culpability is purposeful conduct, the aider and abettor must assist the

principal with that purpose, and therefore, “must intend to aid, abet, solicit, procure, or cause

the principal to commit the offense.” Katz & Gianelli, Criminal Law, Baldwin’s Ohio

Practice (3d Ed.), Section 92:3. That requires the State to prove “that the defendant shared

the criminal intent of the principal. Such intent may be inferred from the circumstances

surrounding the crime.” State v. Johnson,

,

,

, syllabus.

{¶ 18} A defendant’s admitted knowledge may be used to infer purpose. State v. Hill, 70

,

(1994). In the case of a theft offense, the defendant’s

purpose to deprive another of his property may also be inferred from the defendant’s

knowledge that, because it is not owned by him, the property taken is instead owned by

another. Thus, in the case of Scott Chessman, his intent to deprive the owner of the property

he took may be inferred from proof that another person owned the property. The same does

not necessarily apply to Stephanie Chessman.

{¶ 19} Stephanie Chessman accompanied her brother to the duplex where he formerly

resided and where he had left personal property in the basement when he moved out. Two

weeks before, Stephanie Chessman told Brandy Miller that Defendant and her brother had

come there to “get their stuff.” Miller told them to get the permission of Huffman, the owner

and landlord. Huffman testified that he gave no permission to the Chessmans to enter the

duplex. However, that does not demonstrate that Stephanie Chessman, when she helped her

brother remove property from the basement, acted with the purpose or specific intent to

deprive its owner of that property. For that purpose to be found, there must be positive

evidence, direct or circumstantial, that Stephanie Chessman knew that someone other than her

brother owned that property. No such evidence was offered, and the fact is not otherwise

shown by the circumstances.

{¶ 20} Our duty is to determine, after viewing the evidence in a light most favorable

to the prosecution, whether any rational trier of fact could have found the essential elements of

the offense of petty theft, R.C. 2913.02(A)(1), proven beyond a reasonable doubt. State v.

Jenks. We conclude that, on this record, a rational trier of fact could speculate that it was

Stephanie Chessman’s purpose or specific intent to deprive the owner of the property she and 9

her brother took. However, for the reasons discussed above, we further conclude that the

proposition does not satisfy the reasonable doubt standard. Therefore, the trial court erred

when it found Stephanie Chessman guilty of petty theft.

{¶ 21} The assignments of error are sustained. Defendant’s conviction for a violation

of R.C. 2913.02(A)(1) will be reversed and vacated.

FAIN, J., And FROELICH, J., concur.

Copies mailed to:

Ryan L. Brunk, Esq. Michael Hallock, Esq. Hon. James L. Manning