[Cite as State v. Edmonds,
2023-Ohio-3082.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Appellant : C.A. No. 29625
:
v. : Trial Court Case No. 2022 CR 01227
:
LYNESHIA J. EDMONDS : (Criminal Appeal from Common Pleas
: Court)
Appellee :
:
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OPINION
Rendered on September 1, 2023
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MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Appellant
ARVIN S. MILLER, Attorney for Appellee
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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
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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 indicted 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 trial, 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 Roberts, 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. Therefore, the 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 court had relied. On November 29, 2022, we
sustained the motion and granted the State leave to appeal.
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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 assignments of error; (2) any potential issue is moot given that double-jeopardy
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 decision 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
discretion, 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. Montgomery
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,
151 N.E.3d 1043, ¶ 9
(2d Dist.).
{¶ 9} With the foregoing standards in mind, we see no error in our decision to grant
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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 propriety of a conviction under R.C.
2913.02(A)(1) plainly would be unreviewable 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 defendant 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, precisely 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
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to convict Edmonds under R.C. 2913.02(A)(1) because Roberts, the case upon 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 to 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 taking two window air-conditioner units from her apartment before
moving out. The evidence at trial established that the defendant had pawned the air
conditioners 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 over the property with the owner’s consent. As
found by the trial court, that consent was 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 the trial court erred in overruling
Roberts’s Crim.R. 29 motion for a judgment of acquittal. Roberts’s sole
assignment of error is Sustained.
Roberts, 2d Dist. Montgomery No. 26431, 2015-Ohio-2716, at ¶ 14-15.
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{¶ 13} In reaching its decision, this court distinguished 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 court 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 the 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 property 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
nevertheless 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 would 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
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lease, is not a matter within the scope of a landlord’s consent.
Appellant’s Brief at 6.
{¶ 15} While 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 tenant’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 “untenable” 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 fact pattern exists in Edmonds’ case. According 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, the
State claims it “made no difference” 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
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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 defendant 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 that he
had 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.
The 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 refrigerator 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 out 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 even if Edmonds removed the
appliances shortly 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.
