[This decision has been published in Ohio Official Reports at
90 Ohio St.3d 560.]
THE STATE OF OHIO, APPELLEE, v. LOZANO, APPELLANT.
[Cite as State v. Lozano, 2001-Ohio-224.]
Criminal law—Theft in office—Public employee is a “public official” for purposes
of the theft-in-office statute, R.C. 2921.41.
(No. 00-151–Submitted November 15, 2000–Decided January 17, 2001.)
APPEAL from the Court of Appeals for Lorain County, No. 98CA007143.
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SYLLABUS OF THE COURT
A public employee is a “public official” for purposes of the theft-in-office statute,
R.C. 2921.41.
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LUNDBERG STRATTON, J.
{¶ 1} Angel L. Lozano, defendant-appellant, was convicted of theft in
office in violation of R.C. 2921.41. At the time of the offense, defendant was
employed in the utilities department as a line mechanic in the water and sewer
division for the city of Lorain. One of defendant’s responsibilities was assisting in
the removal and replacement of water meters. In removing and replacing water
meters, defendant was required to enter residences in the city of Lorain.
{¶ 2} Sometime in early December 1996, the superintendent of distribution
for the city of Lorain learned that several of the brass water meters that had been
removed and placed in storage were missing from the warehouse where they had
been stored. After an investigation, which included several trips to local scrap
yards, a box of 1,820 pounds of brass Lorain City water meters and parts was
recovered from a local scrap yard. Two workers from the scrap yard were charged
with receiving stolen property. Further investigation revealed that defendant sold
the box containing the 1,820 pounds of brass to the scrap yard for $546. Defendant
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did not have permission to remove the brass meters from the warehouse. Defendant
was subsequently convicted of theft in office.
{¶ 3} The Court of Appeals for Lorain County affirmed the holding that
defendant was a public official. However, the court found that the state had not
proven that the value of the stolen items was more than $500, and, therefore, the
evidence did not support the elevation of defendant’s conviction from a fifth-degree
to a fourth-degree felony. The court remanded the cause for resentencing.
{¶ 4} The cause is now before this court upon the allowance of a
discretionary appeal.
{¶ 5} The issue presented to this court is whether a city employee is a
“public official” for purposes of the theft-in-office statute, R.C. 2921.41. For the
following reasons, we answer in the affirmative and we therefore affirm the
judgment of the court of appeals.
{¶ 6} The theft-in-office statute provides:
“(A) No public official or party official shall commit any theft offense *
… when either of the following applies:
“(1) The offender uses the offender’s office in aid of committing the offense
or permits or assents to its use in aid of committing the offense;
“(2) The property or service involved is owned by this state, any other state,
the United States, a county, a municipal corporation, a township, or any political
subdivision, department, or agency of any of them ….
“(B) Whoever violates this section is guilty of theft in office. Except as
otherwise provided in this division, theft in office is a felony of the fifth degree. If
the value of property or services stolen is five hundred dollars or more and is less
than five thousand dollars, theft in office is a felony of the fourth degree. If the
value of property or services stolen is five thousand dollars or more, theft in office
is a felony of the third degree.” R.C. 2921.41.
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January Term, 2001
{¶ 7} “Public official” is defined as “any elected or appointed officer, or
employee, or agent of the state or any political subdivision, whether in a temporary
or permanent capacity, and includes, but is not limited to, legislators, judges, and
law enforcement officers.” R.C. 2921.01(A).
{¶ 8} Defendant asserts that R.C. 2921.01(A) is ambiguous. He contends
that if the General Assembly had intended the term “public official” to include all
public employees, it could have simply defined the term as “any employee of the
state or any political subdivision.” By providing examples of public employees
who are included in the class “public official,” i.e., legislators, judges, and law
enforcement officers, defendant maintains, the General Assembly intended the
statute to apply only to public employees who share the same characteristics as
legislators, judges, and law enforcement. We disagree.
{¶ 9} The plain language of R.C. 2921.01(A) includes “any elected or
appointed officer, or employee, or agent of the state or any political subdivision.”
The statute could not be clearer. The fact that the statute mentions a specific class
of employees does not definitively indicate an intent on the part of the General
Assembly to limit the definition to employees with those characteristics. Rather,
the language “includ[ing] but … not limited to” indicates that what follows is a
nonexhaustive list of examples. Henley v. Youngstown Bd. of Zoning Appeals
(2000), 90 Ohio St.3d 142, 156,
735 N.E.2d 433, 444 (Lundberg Stratton, J.,
dissenting). In fact, the General Assembly might have added those particular
employees to make clear that legislators, judges, and law enforcement are to be
included. Regardless of the legislative intent regarding those particular employees,
the statute, by its plain language, clearly includes all employees of political
subdivisions.
{¶ 10} Defendant points to case law where this court has held that “[a]
public officer, as distinguished from an employee, must be invested by law with a
portion of the sovereignty of the state and authorized to exercise functions either of
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an executive, legislative, or judicial character.” State ex rel. Newman v. Skinner
(1934), 128 Ohio St. 325,
191 N.E. 127, paragraph one of the syllabus. However,
Newman involved the removal of the State Librarian. The issue was “whether the
State Librarian is an ‘officer’ within the contemplation of” Section 38, Article II of
the Ohio Constitution.
Id. at 327,
191 N.E. at 127. By contrast, the issue in the
present case is whether the defendant is a “public official” within the meaning of
R.C. 2921.41 and 2921.01. Thus, Newman is clearly inapplicable to this case.
{¶ 11} Further, defendant sets forth the argument that “[a] public official
has a fiduciary duty to the citizens of the state.” State v. McKelvey (1967), 12 Ohio
St.2d 92,
41 O.O.2d 372,
232 N.E.2d 391, paragraph one of the syllabus. McKelvey
is also inapplicable. It was not a theft-in-office case. It did not involve either R.C.
2921.41, 2921.01, or any analogous provisions. Whether the county auditor in that
case was a “public official” was not even contested and, therefore, not at issue.
Again, McKelvey has no application to this case.
{¶ 12} Defendant contends as a result of Newman and McKelvey that he is
not a “public official” since he was not required to take an oath of fidelity to the
government before taking office, and because he does not represent the sovereign.
Because neither case set forth by defendant involves R.C. 2921.41, the theft-inoffice statute, and neither case relates to the definition of “public official” as
defined in R.C. 2921.01(A), they are not relevant. “Absent ambiguity, a statute is
to be construed without resort to a process of statutory construction.” Ohio Dental
Hygienists v. Ohio State Dental Bd. (1986), 21 Ohio St.3d 21, 23, 21 OBR 282,
284,
487 N.E.2d 301, 303; R.C. 1.49.
{¶ 13} We conclude that the term “public official,” which is defined in R.C.
2921.01(A) as “any elected or appointed officer, or employee, or agent of the state
or any political subdivision,” is free from ambiguity and clearly includes a city
employee. (Emphasis added.) It is undisputed that defendant was an employee of
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January Term, 2001
the city of Lorain at the time of this offense. Thus, under the plain language of R.C.
2921.01(A), defendant is a public official.
{¶ 14} Defendant contends that to read the statute as we have is overly
expansive and will lead to absurd results such as a public employee being charged
with a felony for pilfering a pencil or legal pad. When a public employee takes
public property, it deprives the taxpayers of the state of Ohio of the value of that
property, no matter how great or how small. However, certainly a prosecutor has
discretion and it is unlikely that the state would prosecute such minor infractions.
Regardless, in applying a statute, it is the duty of this court to give effect to the
words used. Cleveland Elec. Illum. Co. v. Cleveland (1988), 37 Ohio St.3d 50,
524
N.E.2d 441, paragraph three of the syllabus. If the General Assembly intended a
different result, it is free, of course, to amend the statute to redefine the definition
of “public official.”
{¶ 15} Accordingly, we hold that a public employee is a “public official”
for purposes of the theft-in-office statute, R.C. 2921.41. Thus, we affirm the
judgment of the court of appeals.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ.,
concur.
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Gregory A. White, Lorain County Prosecuting Attorney, and Robert F.
Corts, Assistant Prosecuting Attorney, for appellee.
James M. Burge Co., L.P.A., and James M. Burge, for appellant.
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