[Cite as State v. Thaxton, 2012-Ohio-4184.]




         IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                     :

        Plaintiff-Appellee                        :       C.A. CASE NO. 24868

vs.                                               :       T.C. CASE NO. 11-CRB-2820

ELVIS THAXTON                                     :       (Criminal Appeal from the
                                                           Common Pleas Court)
        Defendant-Appellant                       :

                                              .........

                                              OPINION

                         Rendered on the 14th day of September, 2012.

                                              .........

Troy B. Daniels, Atty. Reg. No. 0084957, 335 West Third Street, Room 372, Dayton,
Ohio 45402
      Attorney for Plaintiff-Appellee

Andrew D. Lucia, Atty. Reg. No. 0067191, P.O. Box 122, Troy, Ohio 45373
     Attorney for Defendant-Appellant

                                              .........

GRADY, P.J.:

        {¶ 1} Defendant Elvis Thaxton appeals from his conviction and sentence for theft,

R.C. 2913.02(A)(1), and criminal trespass, R.C. 2911.21(A)(2).

        {¶ 2} In the early morning hours of April 5, 2011, while Defendant was driving

Richard McElfresh and Brian Barnett home from work, as he often did, Defendant decided to
stop to pick up some scrap metal.        Defendant pulled into the parking lot of Venture

Manufacturing, which was closed for the night. He saw a man and woman loading scrap

metal from a red hopper into their truck. Defendant confronted the couple and asked them if

they had permission to take the scrap metal.         When they admitted that they did not,

Defendant told the couple to transfer the scrap metal from their truck to his own.

       {¶ 3} After the scrap metal was transferred, the couple drove away. Dayton Police

Officer Grieshop saw the truck speeding away from the closed business and followed it. In

the meantime, Defendant and his passengers pulled out of the lot after the first truck, falling

in behind the police cruiser. Officer Grieshop initiated a traffic stop of the first truck, using

his cruiser to block the road in order to stop Defendant as well.             Officer Grieshop

approached Defendant’s truck and saw the scrap metal in the bed of the truck.

       {¶ 4} Officer Grieshop placed Defendant in his cruiser while he went to speak with

the two occupants of the first truck. After other officers arrived, Officer Grieshop spoke

with Defendant, who told Officer Grieshop that he had caught the couple taking scrap metal

and he was going to call the police. Defendant explained that he told the couple to unload

their truck and put the metal into his truck because he had permission to remove the metal,

while they did not.

       {¶ 5} Officer Grieshop was able to contact two representatives of Venture, Merle

Cyphers, Venture’s tool room leader, and Joseph Zak, the vice president of sales and

marketing and part owner of Venture. Cyphers explained that all scrap metal is placed in

and around the red hoppers in the parking lot. Cyphers and Zak advised the officer that no

one is allowed to take the scrap metal because the company sells it to Franklin Iron and Metal

for recycling.   Only Franklin has permission to remove the scrap metal.             All Venture
supervisors are fully aware of this policy, which has been in effect for several years, and they

are periodically reminded of the policy whenever scrap metal prices rise.

       {¶ 6} Defendant was arrested and charged by criminal complaint with criminal

trespass, R.C. 2911.21(A)(2), a fourth degree misdemeanor, and petty theft, R.C.

2913.02(A)(1), a first degree misdemeanor. Defendant pled not guilty to the charges. The

case was tried to the court. At trial, Merle Cyphers and Joseph Zak testified, consistent with

their statements to Officer Grieshop.

       {¶ 7} Defendant testified that a year or two earlier he had seen two well-dressed

men leaving the Venture building. He spoke with the men in the parking lot, and they

identified themselves as Tim and Scott. As a result of his conversation with the men,

Defendant began to occasionally remove scrap metal from Venture’s parking lot. Cyphers

and Zak stated that there had been no employees named Tim or Scott over the past two or

three years.

       {¶ 8} Defendant admitted on cross-examination that he never asked Tim or Scott for

their last names, nor did he ask what their job titles were or if they even worked for Venture.

He acknowledged that people who do not work for Venture could be found in the company’s

parking lot. Finally, Defendant admitted that he knew that Venture was closed at the time

that he was in the lot and that no one should be on the company’s property after hours

without permission.

       {¶ 9} At the close of the State’s case, Defendant made a Crim.R. 29 motion for

acquittal, which was denied. The trial court found Defendant guilty of both charges and

sentenced him to 180 days in jail, which was suspended. Defendant was also ordered to

complete the theft prevention program.
       {¶ 10} Defendant appeals, raising two assignments of error, both of which challenge

the sufficiency of the State’s evidence.

       {¶ 11} First Assignment of Error:

“THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FINDING APPELLANT

GUILTY      OF     ALL       CHARGES       BECAUSE     THE     STATE’S     EVIDENCE      WAS

INSUFFICIENT TO SUSTAIN CONVICTIONS.”

       {¶ 12} Second Assignment of Error:

“THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT OVERRULED

THE APPELLANT’S RULE 29 MOTION.”

       {¶ 13} In State v. Haggerty, 2d Dist. Montgomery No. 24405, 2011-Ohio-6705, ¶

19-21, 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), 55 Ohio St.2d 261. 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), 114

                 Ohio App.3d 738.

                         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), 78 Ohio

               St.3d 380. 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), 61

               Ohio St.3d 259:

                      “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.”

       {¶ 14} Defendant was convicted of theft in violation of R.C. 2913.02(A)(1), which

states: “No person, with purpose to deprive the owner of property or services, shall

knowingly obtain or exert control over either the property or services * * * [w]ithout the

consent of the owner or person authorized to give consent.” Defendant was also convicted

of criminal trespass in violation of R.C. 2911.21(A)(2), which states: “No person, without

privilege to do so, shall * * * [k]nowingly enter or remain on the land or premises of another,

the use of which is lawfully restricted to certain persons, purposes, modes, or hours, when the

offender knows the offender is in violation of any such restriction or is reckless in that

regard.”

       {¶ 15} With regard to his challenge of each conviction, Defendant bases his
arguments on the issue of consent. He insists that he had been granted permission to enter

the Venture premises and remove the scrap metal from Venture by Tim and Scott, and had

never been restricted as to the time of day he could remove the metal.

       {¶ 16} However, the State’s evidence showed that only Venture’s three owners have

the authority to allow someone to remove scrap metal from the company’s property. And,

because Venture sells its scrap metal for profit, only Franklin has been given permission to

remove scrap metal from the red hoppers on Venture’s property. From that evidence,

reasonable minds could find, beyond a reasonable doubt, that Defendant lacked the consent

of its owners to exert control over the scrap metal in his truck, and was not privileged to enter

Venture’s property for the purpose of acting as he did.

       {¶ 17} If “Tim and Scott” existed and, in circumstances in which a reasonable person

would believe them, told the Appellant that he could be on the premises and take the scrap, a

trier of fact could have found that the State did not prove the necessary mens rea - i.e., that

the Appellant acted without consent and with purpose to deprive the owner of the property.

Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952).

       {¶ 18} “Mistake of fact is widely recognized as a defense to a specific intent crime

such as theft since, when the defendant has an honest purpose, such a purpose provides an

excuse for an act that would otherwise be deemed criminal.” State v. Feltner, Greene 2d

Dist. App. No. 06-CA-20, 2007-Ohio-866, ¶ 10 (internal citations omitted).

       {¶ 19} Appellant’s testimony about the alleged consent came after the State’s case

and is, therefore, not encompassed in the assignment of error dealing with a Rule 29 motion

at the conclusion of the State’s case.      Regardless, given the facts of the offense, the

testimony of the employees, and the vagueness of the circumstances surrounding the alleged
consent, the trier of fact was certainly justified in rejecting any such defense and in finding

the Appellant acted with the requisite mens rea.

          {¶ 20} “Even if we accept [Defendant’s] belief that [his] actions were justified, the

sincerity of this belief did not create a privilege to engage in otherwise criminal conduct.”

Cincinnati v. Flannery, 176 Ohio App.3d 181, 2008-Ohio-1437, 891 N.E.2d 775, ¶ 7 (1st

Dist.).    The evidence, when viewed in a light most favorable to the prosecution, was

sufficient to support each element of the offenses of theft and criminal trespass.

          {¶ 21} Defendant’s first and second assignments of error are overruled.          The

judgment of the trial court will be Affirmed.




Fain, J., And Froelich, J., concur.




Copies mailed to:

Troy B. Daniels, Esq.
Andrew D. Lucia, Esq.
Hon. Christopher D. Roberts
