      The State of Ohio, Appellee, v. Joy, Appellant.


      [Cite as State v. Joy (1995), ___ Ohio St.3d ___.]


Criminal law -- Aggravated theft by deception -- Trial court did not err in

           failing to instruct jury on one of the statutory definitions of

           “deprive,” an element of aggravated theft by deception, when.

      (No. 94-651 -- Submitted October 11, 1995 -- Decided December 20,


1995.)


      Appeal from the Court of Appeals for Lucas County, No. L-93-032.


      On June 24, 1992, appellant, Lowell Joy, was indicted in Lucas County


for one count of aggravated theft pursuant to R.C. 2913.02(A)(2), and for one


count of aggravated theft pursuant to R.C. 2913.02(A)(3). The following facts


were adduced at his jury trial.


      In 1991, appellant was President of REMSNO, a not-for-profit agency


that provided a multi-county communications system between life squads and


hospitals. REMSNO was funded in large part by a tax levy in Lucas County.


However, in November 1991, REMSNO lost its major funding when the Lucas


County tax levy was defeated. At that time, REMSNO had a balance on


deposit of $500,000.
      In early January 1992, appellant approached Operations Director, John


Mason, and asked him how much it would cost to run REMSNO for 1992 and


what the interest rate was for the funds on deposit. Mason told appellant that it


would cost between $125,000 to $150,000 to run REMSNO and that the


interest rate they were receiving was about four percent. Appellant said that he


could get a much more favorable interest rate at his bank in Marblehead


because of the volume of business that his companies did with that bank.


      Appellant and Mason met again on January 21, 1992. According to


Mason, appellant said he would deposit REMSNO’s money in the bank at


Marblehead and that REMSNO would receive seven and a quarter percent


interest on those funds. Mason then issued a check for $350,000, as directed


by appellant, made payable to Motivation Enterprises, a company owned solely


by appellant. The check, which was postdated to January 24, 1992, contained


the notation, “Investment Deposit.”


      On January 22, 1992, Mason typed up a memorandum for the file


evidencing that appellant would deposit this check “with the Marblehead


[B]ank as an investment at a rate of approximately seven percent.”           The




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memorandum further stated that the funds belong to REMSNO and that


REMSNO would receive interest payments on a monthly or quarterly basis.


      In mid-February, Mason received the first interest check and a document


that he understood to be a verification of the above transaction. In actuality, it


indicated that the money was being loaned to appellant.          Mason did not


discover that the money was being used as a “loan” until it was brought to his


attention in a March audit. Mason told accountants from Ernst & Young that


the money was being invested and was not a loan.


      Upon reading the audit, Mason contacted REMSNO’s attorney, Frank


Pizza. On April 1, 1992, a meeting was held at REMSNO’s office with Pizza,


appellant, and Mason. Pizza asked appellant where the money was located, but


appellant did not really answer him. At the end of the meeting, appellant said


he would look into whether or not he could pay the money back. Pizza testified


there was another meeting on May 13, 1992, at his office. At that meeting,


REMSNO’s Executive Director, Dr. Robert Hauman, told appellant to pay the


money back right away. Appellant then responded that the money was invested


in a real estate transaction and he could not get the money out right now.




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Subsequently, Dr. Hauman had a phone conversation with appellant and was


told by him that the money was in one of appellant’s businesses.


      Instead of placing the money in an interest bearing account at


Marblehead Bank, it was discovered that appellant had placed the money in a


noninterest paying checking account of Motivation Enterprises. As of early


January 1992, Motivation Enterprises had a balance of only $574.75. After the


deposit of $350,000, the money was then almost immediately transferred to a


checking account of a second business owned by appellant, a marina. The


money was then dissipated from this account within several weeks to pay off


the bills of the marina. According to appellant, this money was finally paid


back to REMSNO one day before sentencing in this case, which was


approximately one year after it was taken. This was also the date that the


principal was required to be paid back under the terms of the alleged note.


      At the conclusion of the trial, the jury returned a verdict of not guilty for


aggravated theft, but guilty for aggravated theft by deception. Appellant was


fined $7,500 and sentenced to a term of three to ten years in a correctional


facility. The trial court then issued a nunc pro tunc entry stating that the




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sentence was a term of three to fifteen years in a correctional facility. The


court of appeals affirmed the conviction and sentence.


      This matter is now before this court upon an allowance of a discretionary


appeal.


                                    __________


      Anthony G. Pizza, Lucas County Prosecuting Attorney, Curtis E. Posner


and George J. Conklin, Assistant Prosecuting Attorneys, for appellee.


      Fritz Byers, for appellant.


                                    __________


      Francis E. Sweeney, Sr., J.      The issue before this court is whether the


trial court erred in failing to instruct the jury on one of the statutory definitions


of “deprive,” an element of aggravated theft by deception. For the following


reasons, we find that the trial court did not err in refusing to give this requested


instruction. Accordingly, the judgment of the court of appeals is affirmed.


      The elements of aggravated theft by deception are found in R.C.


2913.02(A)(3), which reads:




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      “(A) 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:


      “***


      “(3) By deception ***.”


      R.C. 2913.01(C) lists the definitions of “deprive” as follows:


      “(C) ‘Deprive’ means to:


      “(1) Withhold property of another permanently, or for such period as to


appropriate a substantial portion of its value or use, or with purpose to restore it


only upon payment of a reward or other consideration;


      “(2) Dispose of property so as to make it unlikely that the owner will


recover it;


      “(3) Accept, use, or appropriate money, property, or services, with


purpose not to give proper consideration in return for the money, property, or


services, and without reasonable justification or excuse of not giving proper


consideration.”




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The trial court instructed the jury as to the first two definitions of “deprive,”


but omitted the third definition on the ground that it was superfluous.


      The rule regarding jury instructions is that requested instructions in a


criminal case must be given when they are correct, pertinent, and timely


presented. Cincinnati v. Epperson (1969), 20 Ohio St.2d 59, 49 O.O.2d 342,


253 N.E.2d 785, paragraph one of the syllabus.           The court must give all


instructions that are relevant and necessary for the jury to weigh the evidence


and discharge its duty as the factfinder. State v. Comen (1990), 50 Ohio St.3d


206, 553 N.E.2d 640, paragraph two of the syllabus.


      In the present case, the state had to prove that appellant intended to


deprive REMSNO of money based on only one of the three alternate


definitions of “deprive.” Appellant argued at the court of appeals level, and


now to this court, that the third definition of “deprive” was also part of the


state’s presentation of the case and, thus, the trial court’s failure to instruct the


jury on this definition constituted reversible error. However, at the outset we


note that had this instruction been given it could not have benefited the


appellant, as it would only have given the jury a third independent basis upon




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which to find that he intended to deprive REMSNO of money. Thus, appellant


is not prejudiced by this alleged error.


      Furthermore, we agree with the state’s contention that the evidence


before the jury supported only the first two definitions of “deprive.”


Specifically, the state argues that the evidence supported the second clause of


the first definition of “deprive” that appellant had withheld the money “for such


period as to appropriate a substantial portion of its value or use."        R.C.


2913.01(C)(1).


      Based on our review of the record, we find that the trial court properly


refused to give the third definition of “deprive” dealing with consideration.


The state’s presentation of the case, including opening and closing arguments,


did not rest on a theory that appellant failed to provide consideration for the


“note.” Likewise, the trial court did not discuss whether appellant provided


consideration for the “note.”     Instead, in overruling appellant’s Civ.R. 29


motion for acquittal, the court reasoned that “there is evidence from which the


jury could reasonably infer a purpose to deprive, and in that respect I would


stress that purpose to deprive does not require demonstration of permanent




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deprivation but rather a purpose to withhold for such a period as to appropriate


a substantial portion of the value of the property in question.” Thus, the trial


court agreed with the state’s theory of the case, as the court found evidence to


support the second clause of the first definition of “deprive.” At the conclusion


of trial, the court found that the third definition of “deprive” was not relevant to


the case and, thus, refused to give this instruction, as it would only confuse the


jury.


        In addition, appellant does not challenge the sufficiency of the evidence


to support the conviction based on the instructions of purpose to deprive which


were properly given to the jury. Thus, appellant’s conviction is supported by


the jury’s finding appellant guilty of one or both of these instructions.


Specifically, we find that sufficient evidence was presented to the jury for it to


conclude beyond a reasonable doubt that appellant intended to deprive


REMSNO of money based on the first definition of “deprive,” i.e., that the


appellant intended to withhold money “for such period as to appropriate a


substantial portion of its value or use.”




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      The record reflects that appellant told REMSNO that the money would


be invested at approximately seven percent interest at Marblehead Bank.


Instead, appellant appropriated all of this money for his own use by placing the


money in a noninterest bearing account of one of his businesses and then


immediately transferring the money to another business he owned, a marina.


Appellant then used the money to pay his marina bills, thus depriving


REMSNO of the value and use of the money. When REMSNO personnel


discovered that they had been deceived and that the money was not safely


placed in an interest bearing account at the bank, they asked appellant to return


the money immediately. However, appellant initially stated that he would look


into whether he could pay the money back and then he lied about the


whereabouts of the money. Appellant finally admitted that he could not return


the money. REMSNO was deprived of the money’s use until it was apparently


returned one day before sentencing in this case, which was approximately one


year after it was taken. Based on the above and the other evidence presented at


trial, we conclude that the jury could have found beyond a reasonable doubt




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that appellant had withheld the money for such period as “to appropriate a


substantial portion of its value or use.”


      Finally, we agree with appellant’s contention that the court of appeals


erred in concluding that sufficient evidence existed to support his conviction


based on the third definition of “deprive” dealing with consideration. In so


finding, the appellate court incorrectly interpreted the law of contracts by


stating that evidence of inadequate collateral in this case was proof of lack of


consideration. Collateral is not a requirement of consideration. Restatement of


the Law 2d, Contracts (1981) 172, Section 71. Thus, the court of appeals’


conclusion that appellant’s conviction was supported by the third definition of


“deprive” was misguided. As we have previously stated, appellant’s conviction


was supported by at least one of the two definitions of “deprive” which were


properly given to the jury.


      In conclusion, the third definition of “deprive” dealing with the issue of


whether appellant gave consideration in exchange for receiving the money was


not the theory behind the state’s presentation of this case and, thus, an


instruction on this definition would have served only to confuse the jury. The




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trial court properly instructed the jury only on the first two definitions of


“deprive.” We conclude that sufficient evidence existed to support appellant’s


conviction based on the first definition of “deprive” which was properly given


to the jury. Accordingly, we affirm the judgment of the court of appeals


upholding appellant’s conviction.


                                                          Judgment affirmed.


      MOYER, C.J., WRIGHT, HOFFMAN, PFEIFER and COOK, JJ., CONCUR.


      DOUGLAS, J., not participating.


      WILLIAM B. HOFFMAN, J., of the Fifth Appellate District, sitting for


RESNICK, J.




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