[Cite as State v. Ramey, 2013-Ohio-665.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Sheila G. Farmer, J.
-vs-
                                                  Case No. 12 CAC 06 0034
CARLA M. RAMEY

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Delaware Municipal Court,
                                              Case No. 12 CRB 00226


JUDGMENT:                                     Affirmed


DATE OF JUDGMENT ENTRY:                        February 25, 2013


APPEARANCES:


For Plaintiff-Appellee                        For Defendant-Appellant


ELIZABETH A. MATHUNE                          JOHN R. CORNELY
Assistant Prosecuting Attorney                21 Middle Street
Delaware City Prosecutor                      P.O. Box 248
70 North Union Street                         Galena, Ohio 43021-0248
Delaware, Ohio 43015
Delaware County, Case No. 12 CAC 06 0034                                                     2

Hoffman, J.


       {¶1}   Defendant-appellant Carla M. Ramey appeals her conviction for theft

entered by the Delaware Municipal Court. Plaintiff-appellee is the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   At all times relevant herein, Appellant was an independent contractor

providing services for SFT Medical Billing Company.          In late December of 2011,

Appellant ceased affiliation with SFT, and cleaned out her desk. Among the items taken

from the desk were note cards on a ring which Appellant used while at SFT. Appellant

had transferred information onto the note cards, including password and login names for

various insurance companies for which SFT provided billing information.           Appellant

claims to have purchased the cards with her own funds, and to have kept them in a

locked drawer at her desk with other personal property.

       {¶3}   Regina Owens, the owner of SFT Medical Billing, contacted Appellant

asking her to return the note cards with the information. Appellant initially denied taking

the cards, but later returned a few cards. Appellant did not return all of the note cards.

       {¶4}   On February 7, 2012, Appellant was charged with one count of theft, in

violation of R.C. 2913.02(A)(1). Following a jury trial, Appellant was found guilty of the

charge, and sentenced to a suspended prison term in lieu of: a fine of $250.00,

suspended should Appellant pay the fine in full by August 14, 2012, make restitution of

$5.00, perform 100 hours of community service and probation.

       {¶5}   Appellant now appeals, assigning as error:

       {¶6}   “I.   THE   MISCONDUCT         OF    THE     ASSISTANT      PROSECUTING

ATTORNEY       IN   COMMENTING         ON    APPELLANT’S        PRE-ARREST       SILENCE
Delaware County, Case No. 12 CAC 06 0034                                                 3


VIOLATED APPELLANT’S RIGHTS UNDER THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION.

      {¶7}    “II. THE EVIDENCE WAS INSUFFICIENT TO CONVICT APPELLANT OF

THEFT.”

                                                I.

      {¶8}    In the first assignment of error, Appellant maintains the state's comment

on Appellant's prearrest silence amounted to prosecutorial misconduct.

       {¶9}   The following statement was made by the Assistant Prosecuting Attorney

during opening statement:

       {¶10} “***Until finally Regina is going to tell you she was pressured. She didn’t

know what to do so she called the Sheriff’s office. They came in and they started an

investigation and the deputy called Carla, the Defendant, in front of Regina and the two

of them sat there and listened to the Defendant give a couple of different stories and

finally she said, I don’t have them; no, I have them; I don’t have them anymore and then

she agreed to come into the Sheriff’s office and she did.

       {¶11} “And you’re going to hear from several people that she turned in three

cards to the Sheriff’s office. There’s going to be a couple of problems with that, folks,

and that is, first of all by turning those in, she admitted that she had something in her

possession. The second is that Regina is going to tell you that it doesn’t even really

look like these are the originals. She’ll explain to you why, but there’s reason to believe

these are recreations. So not only do we have the Defendant turning in property to the

Sheriff’s office that she’s saying is the property that she previously denied that she had.
Delaware County, Case No. 12 CAC 06 0034                                                 4


But you’re also going to hear that there’s reason to believe that she actually was

substituting that and presenting false information then to the Sheriff’s office.

       {¶12} “They attempted to talk to her again, she declined any further interviews

with them and so - -”

       {¶13} Tr. at 81.

       {¶14} Following objection by Appellant to the remarks, the trial court offered the

following limiting instruction,

       {¶15} “The Court: I just want to instruct you you’re not to consider any reference

to any evidence or suggestion that the Defendant chose or didn’t make a statement to

the police. All right. You may proceed.”

       {¶16} Tr. at 83.

       {¶17} The test for prosecutorial misconduct is whether the prosecutor's

comments and remarks were improper, and, if so, whether those comments and

remarks prejudicially affected the substantial rights of the accused. State v. Lott, 51

Ohio St.3d 160 (1990). In reviewing allegations of prosecutorial misconduct, this Court

must consider the complained of conduct in the context of the entire trial. Darden v.

Wainwright, 477 U.S. 168, 106 S.Ct. 2464 (1986).

       {¶18} In State v. Shaffer, Richland App. No. 2003-CA-0108, 2004-Ohio-3717,

this Court held,

       {¶19} "During the appeal of the case at bar, the Ohio Supreme Court has held

'that use of a defendant's pre-arrest silence as substantive evidence of guilt violates the

Fifth Amendment privilege against self-incrimination.' State v. Leach (2004), 102 Ohio

St.3d 135, 807 N.E.2d 335, 2004–Ohio–2147. In Leach the prosecutor presented
Delaware County, Case No. 12 CAC 06 0034                                               5


evidence that the appellant agreed to talk to the police, makes an appointment, but then

calls back and says he wants an attorney. Id. at ¶ 4, 807 N.E.2d 335. The court noted:

'[h]owever, we do not find the testimony that Leach stated that he wanted to speak with

an attorney before speaking with police to be a statement explaining the course of the

investigation. The information was not material to the jury's determination of guilt or

innocence. Rather, the state now concedes that it intended to lead the jury to one

conclusion by using evidence of Leach's pre-arrest silence in its case-in-chief: that

innocent people speak to police to clear up misunderstandings, while guilty people

consult with their attorneys.' Id. at ¶ 32, 807 N.E.2d 335. The court found reversible

error because '[t]he introduction of this evidence was not inadvertent. In its opening

statement, the state mentioned that Leach had refused to speak with law enforcement

without an attorney. Later, the state introduced testimony regarding his pre-arrest, pre-

Miranda invocation of his right to counsel when the prosecutor commented that after

agreeing to meet with the police, Leach called back and said that he 'wanted an

attorney.' Still later, the state highlighted the evidence again in Sergeant Corbett's

testimony.' Id. at ¶ 32, 807 N.E.2d 335. The court reversed the conviction '[b]ecause the

evidence of guilt was not overwhelming in this case; the admission of defendant's pre-

arrest, pre- Miranda silence was clearly prejudicial.' Id. at ¶ 38, 807 N.E.2d 335.

       {¶20} "In light of the Supreme Court's decision in Leach, supra the testimony

that appellant's mother called back and stated an attorney advised appellant not to

speak with the police and that the appellant failed to appear for an appointment to

speak to the police were error."
Delaware County, Case No. 12 CAC 06 0034                                                6


       {¶21} Upon review of the prosecutor's remarks in this case, we find the same to

be improper.      However, in light of the limiting instruction and the strength of the

evidence, we find the prosecutorial error was not prejudicial. The trial court immediately

ordered the jury to disregard the statement, and the issue was not revisited.

       {¶22} The first assignment of error is overruled.

                                                    II.

       {¶23} In the second assignment of error, Appellant argues the evidence was

insufficient to support her conviction for theft.

       {¶24} Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether

“after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id.; see also, McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d

582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 2010–Ohio–

1017, 926 N.E.2d 1239,¶ 146; State v. Clay, 187 Ohio App.3d 633, 2010–Ohio–2720,

933 N.E.2d 296, ¶ 68.

       {¶25} Appellant was convicted of theft, in violation of R.C. 2913.02(A)(1). The

statute reads,

       {¶26} "(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:
Delaware County, Case No. 12 CAC 06 0034                                                       7


          {¶27} "(1) Without the consent of the owner or person authorized to give

consent;"

          {¶28} The complaint herein states Appellant took "20-30 index cards containing

log-in, passwords, and security information to several private insurance companies"

without the permission of the owner, Regina Owens.

          {¶29} Appellant asserts the State failed to introduce evidence Regina Owens or

SFT Medical Billings was the owner of the index cards. Rather, Appellant argues, she,

as an independent contractor, purchased the note cards for her own personal purposes

and they remained her own personal property.

          {¶30} R.C. 2901.01(A)(10)(A) defines property as:

          {¶31} "(10)(a) 'Property' means any property, real or personal, tangible or

intangible, and any interest or license in that property. 'Property' includes, but is not

limited      to,   cable   television    service,      other      telecommunications    service,

telecommunications devices, information service, computers, data, computer software,

financial instruments associated with computers, other documents associated with

computers, or copies of the documents, whether in machine or human readable form,

trade secrets, trademarks, copyrights, patents, and property protected by a trademark,

copyright, or patent. 'Financial instruments associated with computers' include, but are

not limited to, checks, drafts, warrants, money orders, notes of indebtedness,

certificates of deposit, letters of credit, bills of credit or debit cards, financial transaction

authorization      mechanisms,    marketable        securities,   or   any   computer    system

representations of any of them."
Delaware County, Case No. 12 CAC 06 0034                                                 8


       {¶32} Appellant purchased the note cards for her own use.          However, upon

transferring the passwords and log-in information for SFT's billing clients onto the cards,

the cards contained "data" which was the property of SFT and Regina Owens. We find

the log-in, password and security information for the private insurance companies

constitutes "data" as defined in R.C. 2901.01(A)(10). Upon transferring the information

to the note cards, Appellant caused the note cards to become the property of SFT and

Regina Owens. Accordingly, we find there is sufficient evidence to support Appellant's

conviction for theft.

       {¶33} The second assignment of error is overruled.

       {¶34} The judgment of the Delaware Municipal Court is affirmed.

By: Hoffman, J.

Delaney, P.J. and

Farmer, J. concur

                                             s/ William B. Hoffman _________________
                                             HON. WILLIAM B. HOFFMAN


                                             s/ Patricia A. Delaney _________________
                                             HON. PATRICIA A. DELANEY


                                             s/ Sheila G. Farmer __________________
                                             HON. SHEILA G. FARMER
Delaware County, Case No. 12 CAC 06 0034                                          9


           IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
CARLA M. RAMEY                             :
                                           :
       Defendant-Appellant                 :         Case No. 12 CAC 06 0034


       For the reasons stated in our accompanying Opinion, the   judgment   of   the

Delaware Municipal Court is affirmed. Costs to Appellant.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ Patricia A. Delaney _________________
                                           HON. PATRICIA A. DELANEY


                                           s/ Sheila G. Farmer __________________
                                           HON. SHEILA G. FARMER
