[Cite as State v. Scott, 2017-Ohio-9193.]

                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT

State of Ohio,                                    :

                 Plaintiff-Appellee,              :
                                                                    No. 16AP-233
v.                                                :             (C.P.C. No. 15CR-2437)

Lillie A. Scott,                                  :           (REGULAR CALENDAR)

                 Defendant-Appellant.             :



                                            D E C I S I O N

                                    Rendered on December 21, 2017


                 On brief: Ron O'Brien, Prosecuting Attorney, and Michael P.
                 Walton, for appellee.

                 On brief: Wolfe Van Wey & Associates, LLC, and Stephen T.
                 Wolfe, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas

HORTON, J.
        {¶ 1} Defendant-appellant, Lillie A. Scott ("Scott"), appeals from a jury verdict
finding her guilty of theft, in violation of R.C. 2913.02, of rent money owed to WC
Management, a property management company. For the reasons set forth below, we
reverse Scott's conviction.
I. FACTUAL AND PROCEDURAL BACKGROUND
        {¶ 2} A grand jury indicted Scott on one count of theft, in violation of R.C.
2913.02, on May 19, 2015. The indictment alleged that between September 2 and
September 12, 2014, Scott:
                 [D]id with purpose to deprive the owner, WC Management, of
                 property or services, to wit: US currency, did knowingly
                 obtain or exert control over the property or services without
                 the consent of the owner or person authorized to give consent
No. 16AP-233                                                                               2

               and/or beyond the scope of the express or implied consent of
               the owner or person authorized to give consent and/or by
               deception.

       {¶ 3} Because the indictment alleged that Scott had stolen property or services
valued at more than $1,000, but less than $7,500, the theft was charged as a fifth degree
felony. R.C. 2913.02(B)(2). (May 19, 2015 Indictment.)
       {¶ 4} Trial commenced on February 22, 2016. After the jury was empaneled, but
before opening arguments, Scott's attorney moved to exclude any mention of Close to
Home Realty, another property management company, as a victim in the case. She noted
that the indictment only identified WC Management as the victim of the alleged theft.
(Feb. 23, 2016 Tr. Vol. 2 at 28-29.)
       {¶ 5} The prosecutor argued that Scott had worked as an employee for both
entities and that WC Management was the ultimate victim because both companies "were
meshed together in such a way that WC Management did suffer the loss" from the theft.
(Tr. Vol. 2 at 30.) Scott's attorney countered that the state was attempting to allow a third
party, WC Management, to step into the shoes of the actual victim, Close to Home Realty,
after reimbursing it for its loss. (Tr. Vol. 2 at 30-32.)
       {¶ 6} The state then asserted that Scott's motion was untimely under Crim.R.
12(C)(2), and offered to amend the indictment under Crim.R. 7 so that Close to Home
Realty would also be named as a victim. Scott's attorney noted that allowing such an
amendment would prejudice the defense because she had been "not allowed to get any
information off of that second subpoena, which was specifically for Close to Home." (Tr.
Vol. 2 at 38.) The trial court expressed concern that if Close to Home Realty were the
actual victim, "it would be prejudicial to your client to add that company now as a victim,"
and declined to allow an amendment of the indictment under Crim.R. 7. (Tr. Vol. 2 at 39.)
After this discussion, Scott's trial began.
       {¶ 7} Deborah Shannon, a bookkeeper, testified that WC Management was owned
by Steve Close, while Close to Home Realty was owned by his son, Alex Close. (Tr. Vol. 2
at 68.) She testified that Steve Close received "all the income" from Close to Home Realty.
(Tr. Vol. 2 at 72.) Shannon testified that although she had previously handled the books
for Close to Home Realty while another bookkeeper, Sharon Halloy, kept the WC
No. 16AP-233                                                                              3

Management books, Shannon now handled the books for both companies. (Tr. Vol. 2 at
73-74.)
        {¶ 8} Shannon described Scott as a receptionist who sat at the front desk and
"took applications, greeted people when they came in the door, took work orders from
tenants for maintenance," and received rent payments from tenants. (Tr. Vol. 2 at 74-75.)
The process for accepting rent payments involved writing a receipt from a receipt book
and then placing the money and a copy of the receipt in the upstairs accounting office. (Tr.
Vol. 2 at 75.) The employee accepting payment placed the money in a safe. The same safe
was used for the money for both WC Management and Close to Home Realty, but the
bookkeepers would then separate the money before making each company's bank
deposits, as the companies had accounts at separate banks. (Tr. Vol. 2 at 76, 135.) The
office was locked when the bookkeepers left. Although the office had a security camera, it
did not work. (Tr. Vol. 2 at 76-77.) After sending several emails to her coworkers stating
that she was ill in September 2014, Scott left her employment at WC Management at the
end of that month. (Tr. Vol. 2 at 84.)
        {¶ 9} The month after Scott left, WC Management sent out eviction notices to
several tenants who subsequently came to the office with receipts showing that they had
paid the rent in question. (Tr. Vol. 2 at 89-92.) The tenant at 101 Woodcliff brought in a
receipt numbered 329386 showing a payment of $386 on September 2, 2014. (State's Ex.
A-3.) A tenant from 55 Woodcliff brought a receipt numbered 333246 showing that
payment was made on September 2, 2014, in the amount of $773. (State's Ex. C-3.) A
receipt numbered 333261 stated that $773 had been paid for rent at 97 Midcliff on
September 5, 2014. (State's Ex. D-2.) A fourth receipt, numbered 333268 and dated
September 5, 2014, showed payment for rent at 106 Woodcliff in the amount of $663.
(State's Ex. B-2.)
        {¶ 10} All the receipts were signed by Scott. Close to Home Realty had only one
receipt in its records for these rent payments, numbered 329766 for the property at 55
Woodcliff, and it demonstrated partial payment in the amount of $200. It was also signed
by Scott. (Feb. 24, 2016 Tr. Vol. 3 at 208.) The receipts were all from tenants who leased
their properties from Close to Home Realty. (Feb. 23, 2016 Tr. Vol. 2 at 110.) The
properties in question were owned and managed by Close to Home Realty. (Tr. Vol. 2 at
175.)
No. 16AP-233                                                                               4

       {¶ 11} Andrew Lawless also testified. He began working for WC Management at
the end of September 2014 as Scott's replacement. (Feb. 24, 2016 Tr. Vol. 2 at 189-91.)
Lawless sent out eviction notices in mid-October. (Tr. Vol. 2 at 192.) After tenants began
bringing in the receipts to prove they had paid their rent, he began an "internal
investigation" of the discrepancies. (Feb. 24, 2016 Tr. Vol. 3 at 206.) In addition to not
finding any record of the payments on the tenants' receipts, Lawless also determined that
the receipt book from which the receipts bearing the "333" prefix was missing from the
office. (Tr. Vol. 3 at 213.) According to Lawless, the total amount of money that was
missing was $2,375. (Tr. Vol. 3 at 214.)
       {¶ 12} Sharon Halloy worked as an accountant for WC Management for two years
until leaving in April 2015. (Tr. Vol. 3 at 241.) She left because she did not like how
accounting procedures were handled there and because she did not approve of how Alex
Close treated the tenants. (Tr. Vol. 3 at 241-42.) Halloy also stated that no one had been
able to find the receipt book from which the receipts issued by Scott had been written. (Tr.
Vol. 3 at 248.)
       {¶ 13} Scott's defense consisted of two witnesses. First, she called Joe Durham, an
attorney for the city of Whitehall that had been involved in litigation involving WC
Management and its properties. (Tr. Vol. 3 at 298.) Durham testified that he had called
Scott to testify in a contempt proceeding alleging that WC Management, Alex Close, and
Steve Close had violated a court order not to rent or lease housing units without a
certificate of occupancy issued by the city of Whitehall. (Tr. Vol. 3 at 301-02.)
       {¶ 14} Second, Scott testified in her own defense. She stated that she worked for
WC Management and Close to Home Realty from January until September 2014. (Tr. Vol.
3 at 305-06.) Scott unsuccessfully tried to get Alex Close and his father to take care of the
tenants' maintenance issues. (Tr. Vol. 3 at 306-07.) She testified that rent collection was
among her duties, and that she was often told by accountants to write up receipts in
particular amounts after sending rent up to them. (Tr. Vol. 3 at 315-16.) Multiple receipts
would indicate that a tenant's payment went towards something like a water bill in
addition to rent. (Tr. Vol. 3 at 335.) Scott denied taking any of the money she was accused
of, denied knowing where the receipt book was, and stated that she turned all amounts
into the accounting office after receiving them from tenants. (Tr. Vol. 3 at 234, 338.) Scott
believed that her accusers were motivated by the fact that Close to Home Realty lost its
No. 16AP-233                                                                                  5

business managing a number of properties to the company that she immediately went to
work for. (Tr. Vol. 3 at 334-35.)
         {¶ 15} Scott's attorney moved the trial court for a judgment of acquittal under
Crim.R. 29, which was denied. (Tr. Vol. 3 at 290-93.) The jury returned a verdict of guilty
on the charge of theft, but as a first degree misdemeanor, as the jury found that the
amount in question was less than $1,000. (Feb. 26, 2016 Verdict.) Scott received no jail
time or fine, but was ordered to pay court costs. (Mar. 10, 2016 Am. Jgmt. Entry.)
         {¶ 16} Scott filed a timely notice of appeal and asserts the following assignments of
error:
                [I.] THE EVIDENCE PRESENTED AT TRIAL                       WAS
                INSUFFICIENT TO SUPPORT THE CONVICTIONS.

                [II.] THE TRIAL COURT ERRED WHEN IT OVERRULED
                APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO
                CRIMINAL RULE 29.

                [III.] THE JURY'S VERDICTS WERE AGAINST THE
                MANIFEST WIGHT OF THE EVIDENCE.

II. FIRST AND SECOND ASSIGNMENTS OF ERROR
         {¶ 17} Because appellate review of "the denial of a Crim.R. 29 motion and of the
sufficiency of the evidence apply the same standard," we jointly consider Scott's first two
assignments of error. State v. Diggs, 10th Dist. No. 14AP-18, 2014-Ohio-3340, ¶ 29, citing
State v. Fugate, 10th Dist. No. 12AP-194, 2013-Ohio-79, ¶ 5.
         {¶ 18} Under Crim.R. 29(A), a trial court must "order the entry of a judgment of
acquittal of one or more offenses charged in the indictment, information, or complaint, if
the evidence is insufficient to sustain a conviction of such offense or offenses." Whether
the evidence is legally sufficient to sustain a verdict is a question of law. State v. Jennings,
10th Dist. No. 09AP-70, 2009-Ohio-6840, ¶ 37, citing State v. Thompkins, 78 Ohio St.3d
380, 386 (1997). "Sufficiency is a test of adequacy." Id., citing Thompkins. "The standard
when testing the sufficiency of the evidence ' "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." ' " State v. Beverly,
143 Ohio St.3d 258, 2015-Ohio-219, ¶ 15, quoting State v. McKnight, 107 Ohio St.3d 101,
2005-Ohio-6046, ¶ 70, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of
No. 16AP-233                                                                               6

the syllabus. A reviewing court "will not disturb a verdict on appeal on sufficiency grounds
unless 'reasonable minds could not reach the conclusion reached by the trier-of-fact.' "
State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, ¶ 94, quoting State v. Dennis, 79
Ohio St.3d 421, 430 (1997).
        {¶ 19} Scott makes two arguments to support her contention that the evidence was
legally insufficient to support her conviction. First, she argues that the evidence was
insufficient to demonstrate that she was responsible for the missing rent payments.
(Appellant's Brief at 7.) Second, she argues that the evidence was insufficient to prove that
any theft from WC Management occurred. (Appellant's Brief at 8.)
        {¶ 20} A challenge to the legal sufficiency of the evidence implicates a defendant's
right to due process. Tibbs v. Florida, 457 U.S. 31, 45 (1982); State v. Draper, 10th Dist.
No. 01AP-237 (2001). Among the due process protections enumerated in Article I, Section
10 of the Ohio Constitution is the following: "no person shall be held to answer for a
capital, or otherwise infamous, crime, unless on presentment or indictment of a grand
jury." The purpose of this provision is to guarantee "the accused that the essential facts
constituting the offense for which he is tried will be found in the indictment of the grand
jury." State v. Headley, 6 Ohio St.3d 475, 478 (1983). The charging statement of the
indictment may be made "in the words of the applicable section of the statute, provided
the words of that statute charge an offense, or in words sufficient to give the defendant
notice of all the elements of the offense with which the defendant is charged." Crim.R.
7(B).
        {¶ 21} In certain instances, "a material variance between the allegations in the
indictment and the proof at trial" may be cause for dismissal. State v. Overholt, 9th Dist.
No. 02CA0108-M, 2003-Ohio-3500, ¶ 55, citing State v. Pittman, 9 Ohio St.2d 186
(1967). However, a verdict may not be "set aside, nor shall any judgment of conviction be
reversed" based on any "variance between the allegations and the proof thereof, unless the
defendant is misled or prejudiced thereby." Crim.R. 33(E).
        {¶ 22} In language that largely tracked the statutory definition of theft, Scott's
indictment alleged that she did "knowingly obtain or exert control over the property or
services without the consent of the owner or person authorized to give consent and/or
beyond the scope of the express or implied consent of the owner or person authorized to
give consent and/or by deception." See R.C. 2913.02(A)(1) through (3). This language
No. 16AP-233                                                                                              7

gave Scott sufficient "notice of all the elements of the offense" in question under Crim.R.
7(B).
        {¶ 23} However, the indictment identified "the owner" of the stolen "property or
services" as WC Management. This differed from the evidence of theft at trial. Close to
Home Realty was the only entity owed the rent that Scott was charged with taking. She
wrote receipts for rent to tenants of Close to Home Realty after accepting rent, and that
entity, not WC Management, owned and managed those tenants' properties. Close to
Home Realty and WC Management were unquestionably separate entities. In spite of the
state's attempt to characterize them as intermingled, they were distinct entities with
different owners, as well as separate bank accounts. For this reason, the state's evidence
varied from the indictment.1
        {¶ 24} Standing alone, however, this variance is insufficient grounds to reverse
Scott's conviction because a victim's name is not an element of the offense of theft. In
State v. Shoemaker, 96 Ohio St. 570 (1917), the Supreme Court of Ohio reversed a trial
court that had dismissed an indictment for vehicle theft that named the incorrect owner of
the vehicle and held that the variance was "not fatal" without a showing of prejudice to the
defendant, as "[t]he gist of the offense was not the particular ownership of the property,
but the 'wrongful' taking."
        {¶ 25} Similarly, in Overholt at ¶ 57, a defendant charged with receiving stolen
property under R.C. 2913.51 argued that his indictment should have been dismissed
because a variance between the indictment's misidentification of a vehicle's owner as his
father and the evidence at trial was "material in nature." The Ninth District rejected this
argument because "this minor variation, if a variation at all, made no difference to the
nature of the charge. The identity of the owner of the stolen property is not an element of
the offense and an addition or change thereof does not generally change the name or
identity of the crime charged." Id. Here, as well, the victim's name is not an element of
theft, the offense Scott was charged with. See R.C. 2913.02(A).
1 Typically, such variance is cured by amending the indictment, as Crim.R. 7(D) states that "[a] court may
at any time before, during, or after a trial amend the indictment * * * in respect to any defect,
imperfection, or omission in form or substance, or of any variance with the evidence, provided no change
is made in the name or identity of the crime charged." With a theft offense, such amendment is allowable
because "[t]he identity of the owner of the stolen property is not an element of the offense and an addition
or change thereof does not generally change the name or identity of the crime charged." State v. Overholt,
9th Dist. No. 02CA0108-M, 2003-Ohio-3500, ¶ 57. In this case, the trial court overruled the state's
request to amend the indictment.
No. 16AP-233                                                                                                  8

        {¶ 26} As Crim.R. 33(E) states, a defendant must show that she was "misled or
prejudiced" by the variance before a court may reverse her conviction. Scott's brief
mentions one troubling circumstance. (Appellant's Brief at 1-2.) After finding out that the
actual victim of the theft alleged against Scott was Close to Home Realty, her attorney
subpoenaed, and was denied, records regarding that entity. (Feb. 23, 2016 Tr. Vol. 2 at 37-
39.) The trial court stated that if Close to Home Realty was the actual victim of the theft,
"then we have a dilemma because [Scott's attorney] was not provided full information
with respect to Close to Home pursuant to her request." (Tr. Vol. 2 at 39-40.) The
evidence at trial demonstrated that Close to Home Realty was the victim of the theft.
Thus, Scott not only had a discovery request regarding the actual victim of the theft
denied because the indictment named another victim, but had to mount a defense at trial
after that denial. The state's brief is silent on these issues, and simply asserts that "the
victim being WC Management is not an element of the offense." (Appellee's Brief at 8.)
        {¶ 27} Accepting the trial court's assessment of this situation, we conclude that
Scott suffered sufficient prejudice to warrant reversal of her conviction. Because reversal
is warranted on these grounds, we need not reach her second argument in support of the
first and second assignments of error, and her third assignment of error is moot.2
        {¶ 28} For the foregoing reasons, we sustain the first and second assignments of
error and find the third assignment of error is rendered moot. Accordingly, Scott's
conviction is reversed and this case is remanded.
                                                                 Judgment reversed; case remanded.

                                         DORRIAN, J., concurs.
                                         SADLER, J., dissents.




2 The dissent's position that we have "addressed an issue not raised or preserved by appellant on appeal"
is not supported by our opinion or the record. (Dissent at ¶ 1.) The dissent asserts that we have failed to
"address the issues raised by appellant in her first and second assignments of error." Id. at ¶ 2. But the
sole ground for reversal is the insufficiency of the evidence, the issue raised by the first and second
assignments of error. Scott specifically argues in her brief that it was legally insufficient to convict her for
theft from WC Management because the evidence only pertained to Close to Home Realty. (Appellant's
Brief at 8.) The dissent appears to take issue with the reliance on Crim.R. 33(E)'s requirement of a
showing of prejudice, but Scott's brief specifically mentions the prejudice she suffered by the denial of the
discovery motion, which was argued in the trial court. (Appellant's Brief at 1-2; Feb. 23, 2016 Tr. at 38-
39.)
No. 16AP-233                                                                              9

SADLER, J., dissenting.
       {¶ 29} Because I believe the majority has addressed an issue not raised or
preserved by appellant on appeal, I respectfully dissent.
       {¶ 30} "This court rules on assignments of error, not mere arguments."
Huntington Natl. Bank v. Burda, 10th Dist. No. 08AP-658, 2009-Ohio-1752, ¶ 21,
quoting App.R. 12(A)(1)(b) (stating that " 'a court of appeals shall * * * [d]etermine the
appeal on its merits on the assignments of error set forth in the briefs' "); Williams v.
Barrick, 10th Dist. No. 08AP-133, 2008-Ohio-4592, ¶ 28 (holding that appellate courts
"rule[] on assignments of error only, and will not address mere arguments").
       {¶ 31} After finding that the identity of the owner of the stolen property is not an
element of the offense, the majority reverses appellant's theft conviction finding that
appellant suffered "sufficient prejudice to warrant reversal of her conviction." (Majority
Decision at ¶ 27.) This stated basis for reversal and discussion of Crim.R. 33 does not
address an issue preserved or argued on appeal by appellant. Simply put, appellant did
not file a motion for a new trial in the trial court, and this is not an appeal from a trial
court decision denying a motion for new trial. Appellant does not argue in her first or
second assignments of error that she was prejudiced by a variance between the allegations
in the indictment and the proof at trial, nor does appellant cite Crim.R. 33 as a basis for
this appeal.
       {¶ 32} Because appellant's first and second assignments of error challenge only the
sufficiency of the evidence and the appropriateness of the court's overruling of appellant's
motion for acquittal, I would consider only these questions when ruling on those
assignments of error.
       {¶ 33} Accordingly, I would address fully appellant's three assignments of error.
Because the majority does not, I respectfully dissent.

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