¶1dissenting.
¶2{¶ 18} I respectfully dissent from the majority’s conclusion that the value of stolen property is a “special finding” instead of an element of a theft offense.
¶3*412{¶ 19} Here, the trial court convicted Smith of fifth-degree felony theft as a lesser included offense of second-degree felony robbery, even though the indictment for robbery did not include the value of the property allegedly taken.
¶4{¶ 20} The majority opinion states that “R.C. 2913.02(A) defines theft without reference to value and sets forth all that the state must prove to secure a conviction.” Majority opinion at ¶ 6. This is an incorrect statement. R.C. 2913.02(B)(2) defines the levels of theft offenses and sets forth an additional element, that of the value of the stolen goods, that the state must prove to convict a defendant of any theft offense greater than first-degree misdemeanor petty theft. That subsection begins, “Except as otherwise provided …, a violation of this section is petty theft, a misdemeanor of the first degree.” R.C. 2913.02(B)(2).
¶5(¶ 21} As felony theft is defined, the value of the stolen property is an essential element. R.C. 2913.02(B)(2) categorizes the levels of felony theft offenses on the basis of the value of the property stolen: if the property is worth $500 or more but less than $5,000, the theft is a felony of the fifth degree; if it is worth $5,000 or more but less than $100,000, the theft is a felony of the fourth degree; $100,000 or more but less than $500,000, the crime is aggravated theft and is a felony of the third degree; $500,000 or more but less than one million dollars, the crime is aggravated theft and is a felony of the second degree; one million dollars or more, the crime is aggravated theft of one million dollars or more and is a felony of the first degree. Because the value of the property stolen affects the degree of the offense and not just the punishment available upon conviction for the offense, it is an essential element of theft. See State v. Allen (1987), 29 Ohio St.3d 53, 55, 29 OBR 436, 506 N.E.2d 199 (an element elevates the degree of the offense; an enhancement provision increases only the penalty).
¶6{¶ 22} No statute or case is offered to support the majority’s conclusion that the value element, which is part of the definition of the offense itself and affects the level of the offense and potential punishment, is a “special finding.” We have, in fact, held to the contrary. State v. Edmondson (2001), 92 Ohio St.3d 393, 398, 750 N.E.2d 587, citing State v. Henderson (1979), 58 Ohio St.2d 171, 173-174, 12 O.O.3d 177, 389 N.E.2d 494 (a factor that enhances the degree of the theft offense is an element that must be proved beyond a reasonable doubt).
¶7{¶ 23} The' indictment in this case did allege robbery rather than theft, as the majority points out. But this did not place Smith on notice that she could be convicted of more than petty theft as a lesser included offense, because the indictment did not allege the value of the property that was stolen. Unless the charging document states a specific degree of the offense or alleges additional elements that would raise the level of the offense, the charging document charges only the least degree of the offense. R.C. 2945.75(A)(1). The least degree of *413theft is petty theft, a misdemeanor of the first degree. My analysis of this case would be different if the robbery indictment had alleged a property value of $500 or more. In that event, depending on the amount specified, Smith would have been on notice that she could be convicted of a lesser included offense of felony theft.
¶8{¶ 24} Therefore, upon reconsideration of this case, I would hold that theft is a lesser included offense of robbery but that unless the charging document alleges the additional element of the value of the property stolen, the theft conviction may be for only the least level of the offense, that being a misdemeanor of the first degree.