         [Cite as State v. Bryant, 2012-Ohio-3909.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                        :   APPEAL NO. C-110484
                                                          TRIAL NO. 10CRB-36240
        Plaintiff-Appellee,                           :

  vs.                                                 :       O P I N I O N.

KEMYA BRYANT,                                         :

    Defendant-Appellant.                              :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed from is: Affirmed

Date of Judgment Entry on Appeal: August 29, 2012


John Curp, City Solicitor, Charles Rubenstien, City Prosecutor, and Christopher Liu,
Assistant City Prosecutor, for Plaintiff-Appellee,

Rayvert J. Clark, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                          OHIO FIRST DISTRICT COURT OF APPEALS




Per Curiam.

        {¶1}     Kemya Bryant appeals from the judgment of the Hamilton County

Municipal Court, after a bench trial, convicting her on one count of unauthorized use

of a motor vehicle. The conviction arose out of Bryant’s use of a vehicle that she had

rented from Enterprise Rent-a-Car (“Enterprise”) but had failed to return. For the

reasons that follow, we affirm the trial court’s judgment.

                                         The Facts

        {¶2}     Bryant had been renting vehicles from the same Enterprise location

for over a year when she signed a rental agreement for the use of a 2010 Hyundai

Elantra.   The written contract specified a lease term of August 28, 2010, until

September 27, 2010.         Bryant failed to return the vehicle on that date. After a few

days an Enterprise representative contacted her and told her to either return the

Elantra or make a payment for the previous rental period. Bryant made a payment of

$305, and Enterprise informally extended the contract until October 22, 2010.

        {¶3}     After October 22, 2010, Enterprise’s business records indicated that

Bryant failed to return the Elantra. An Enterprise representative contacted her on

October 26, 2010, and told her to return the Elantra the next morning. The records

also indicated that the representative had informed her that she could not rent

another vehicle until she paid the balance owed for the Elantra, and that Bryant

indicated that she wanted the opportunity to make a payment. Bryant did not return

the Elantra on October 27, 2010, or make any additional payments. She failed to

return a phone call made the following day urging her to return the Elantra and to

call the rental office.




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          {¶4}   When Bryant failed to return the call, Enterprise sent her a written

demand letter, by certified mail, informing her that it would report the Elantra as

stolen, if she failed to contact Enterprise within the next five days. Bryant failed to

contact Enterprise, and on November 4, 2010, Enterprise reported the Elantra as

stolen.    A warrant was issued for Bryant’s arrest.     The complaint and affidavit

supporting the warrant indicted that Bryant had failed to return the rental car on

September 27, 2010, at the end of her contract, and that she had yet to return it,

despite several demands for it.

          {¶5}   The police recovered the Elantra while Bryant was driving it on her

way to work in early January 2011. She was arrested and later indicted for the

unauthorized use of the vehicle in violation of R.C. 2913.03(A), a first-degree

misdemeanor. The indictment indicated that the offense occurred “on or about”

September 27, 2010.

          {¶6}   Jamin Johnson, the manager of the Enterprise branch where Bryant

had rented the Elantra, testified that Enterprise had a long and often informal

renting relationship with Bryant, in that return dates on her written contracts would

be extended to suit her needs if Enterprise did not need the vehicle for another

customer. To that end, Johnson said that if Bryant had failed to return a vehicle on

a due date, Enterprise would contact her within a few days and give her the

opportunity to bring in the vehicle or to make a payment to extend the rental period.

According to Johnson, he had a good relationship with Bryant and she had always

complied. But she did not return the Elantra on October 22, 2010, and Johnson

testified that Enterprise had not expressly authorized her to use the Elantra after that

date, except to return it.




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       {¶7}     Ryan King, another employee of Enterprise, confirmed that the return

date on Bryant’s written contract was September 27, 2010, and that it was extended

until October 22, 2010. King authenticated the records demonstrating that, at a

minimum, by the beginning of November, Enterprise had unequivocally revoked

Bryant’s authority to use the Elantra.

       {¶8}      Bryant defended the charge by emphasizing that she had a contract

with Enterprise concerning the Elantra and that she believed she had Enterprise’s

continued consent to use the Elantra because of this contract and her “good

relationship” with the company.           Additionally, she denied receiving any

communication, oral or written, from Enterprise after it agreed to extend the original

return date. She had been authorized in the past to use a rental vehicle until told to

return it. She conceded, however, that she had to return the Elantra “sometime,”

and that the $305 payment did not extend her contract for more than 30 days.

                                Due-Process Claims

       {¶9}     In her first assignment of error, Bryant argues that her conviction was

obtained in violation of her due-process rights. Specifically, she contends that the

evidence was insufficient to establish her unauthorized use of the Elantra on

September 27, 2010, the date set forth in the indictment, and that a conviction based

on her conduct after that date was constitutionally infirm because she was not

provided notice and an opportunity to present a defense.

       {¶10}    We first address the sufficiency of the evidence to support Bryant’s

conviction. Bryant was convicted of unauthorized use of a vehicle in violation of R.C.

2913.03(A). This statute provides that “[n]o person shall knowingly use or operate

a[] * * * motor vehicle * * * without the consent of the owner or person authorized to

give consent.



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       {¶11}    The statute’s prohibition reaches “the use or operation of a motor

vehicle without, beyond, or after revocation of the owner’s consent.” State v. Rose,

63 Ohio St.3d 585, 589 N.E.2d 1315 (1992), syllabus; see also State v. Cornish, 2d

Dist. No. 95-CA-65, 1996 Ohio App. LEXIS 3164 (July 26, 1996).

       {¶12}    Two affirmative defenses to the offense of unauthorized use of a

vehicle are set forth in the statute: (1) “[a]t the time of the alleged offense, the actor,

though mistaken, reasonably believed that the actor was authorized to use or operate

the property;” and (2) “[a]t the time of the alleged offense, the actor reasonably

believed that the owner or person empowered to give consent would authorize the

actor to use or operate the property.” R.C. 2913.03(C)(1) and (2).

       {¶13}    Byrant’s original taking of the Elantra was authorized, as

demonstrated by the written rental agreement that expired on September 27, 2010.

Bryant responded to Enterprise’s conditional demand for the return of the vehicle by

paying enough on the contract to extend the return date until October 22, 2010.

Both of the state’s witnesses testified that she had full authority to use the vehicle

through that date.

       {¶14}    We agree with Bryant that a conviction for unauthorized use of the

Elantra on September 27, 2010, would not be supported by sufficient evidence on

every element of the offense and, therefore, a conviction based on her use of the

Elantra on that date would be a violation of her due-process rights. See Jackson v.

Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v.

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

       {¶15}    In this case, where the original use or operation was authorized by a

written contract, and the parties undisputedly had a history of an informal renting

relationship both before and thereafter, the conviction for the unauthorized use of



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the rented vehicle could be sustained only if the rental company had expressly

withdrawn the consent. See generally Rose, 63 Ohio St.3d at 589, 589 N.E.2d 1315

(“holding that an owner may revoke consent after notifying the borrower he or she is

no longer entitled to use the vehicle.”) Thus, the state failed to demonstrate Bryant’s

unauthorized use of the Elantra on September 27, 2010.

       {¶16}   But the state did present overwhelming evidence that by at least early

November 2010, Bryant had lost Enterprise’s consent to use the Elantra and she had

been notified that she was no longer entitled to use the vehicle.

       {¶17}   As Bryant acknowledges, the trial court recognized a variance

between the evidence at trial and the date of the crime specified in the indictment.

This was demonstrated by the court’s comments at trial, although the court did not

formally amend the indictment. We note that the date and time are not essential

elements of a violation of R.C. 2913.03(A), and the variance did not change the name

or identity of the crime charged.

       {¶18}   Bryant does not cite any case law to support her argument that she

was denied notice and an opportunity to defend. However, notions of due process

require that an indictment contain the elements of the offense charged and

sufficiently notify the defendant of the charges against which he must defend. See

Russell v. United States, 369 U.S. 749, 763-764, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962).

And the Sixth Amendment to the United States Constitution provides in part that

“[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be informed

of the nature and cause of the accusation.” See also Ohio Constitution, Article I,

Section 10.

       {¶19}   Generally, if specific times and dates are not essential elements of a

charged offense, the omission of specific dates and times in an indictment or bill of



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particulars or the stating of the time “imperfectly” is without prejudice or

constitutional consequence, provided that the failure to provide times and dates does

not materially deprive the defendant of an opportunity to prepare a defense. See

R.C. 2941.08(B) and (C); R.C. 2941.26; Crim.R. 7(D); State v. Gingell, 7 Ohio App.3d

364, 455 N.E.2d 1066 (1st Dist.1982); see also Cincinnati v. Woods, 322 N.E.2d 303,

304 (1st Dist.1974)(explaining Crim.R. 7[D].)

       {¶20}   Further, a judgment of conviction shall not be reversed because of a

“variance between the allegations and the proof thereof unless the accused is misled

or prejudiced thereby.” R.C. 2945.83(B); Crim.R. 33(E)(2); State v. Frambach, 81

Ohio App.3d 834, 846, 612 N.E.2d 424 (9th Dist.1992). Ultimately, the issue is

whether the variance in the date affected the defendant’s ability to fairly defend

herself for the offense of unauthorized use of the Elantra. See Woods at 304; See

also Gingell at 368.

       {¶21}   The record demonstrates that Bryant had notice that she was on trial

for her use of the Elantra from the time of the first return date until the police

recovered it in early January 2011. Although the indictment stated only “on or about

September 27,” the complaint and affidavit accompanying the arrest warrant

indicated that it was a continuing offense as of November 4, 2010, the date the

affidavit was sworn. Further, at trial, the state stressed that she never returned the

Elantra despite repeated demands.      Bryant did not object to this evidence. The

proof at trial established the same offense involving the same vehicle and rental

agreement, only on a date subsequent to the date listed in the indictment.

       {¶22}    And the record contains no evidence that the variance in the dates

deprived Bryant of an opportunity to prepare a defense. If Bryant was misled by the

date included in the indictment, she could have requested a continuance at trial. See



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Crim.R. 7(D). She did not. Instead, she defended the allegation that at some point

after September 27, 2010, she lost Enterprise’s consent to use the Elantra. For

example, she testified that she received no communications from Enterprise after

October 2, 2010, and that her relationship with Enterprise led her to believe that her

continued use during the next months was authorized or would be authorized. The

date of the offense was not material.

       {¶23}   Finally, Bryant provides no explanation of how her defense would

have been different. Thus, Bryant has failed to demonstrate the necessary prejudice

to establish a due-process claim resulting from the variance in the date of the

offense.

       {¶24}   Ultimately, the trial court was free to determine that Bryant’s

testimony was not credible and to reject as unreasonable her belief that she had

consent or that Enterprise would give her consent.

       {¶25}   Thus, we conclude that the trial court did not violate Bryant’s due-

process rights by convicting her of unauthorized use of the Elantra. Accordingly, we

overrule the first assignment of error.

                     Ineffective-Assistance-of-Counsel Claim

       {¶26}   In her second assignment of error, Bryant argues that she was denied

the effective assistance of trial counsel. She contends counsel was ineffective for

failing to raise the statutory defenses to unauthorized use of a motor vehicle and

failing to object to the admission of the written rental agreement.

       {¶27}   To prevail on a claim of ineffective assistance of counsel, Bryant must

demonstrate that counsel’s performance was deficient and that she was prejudiced

because of the deficient performance. Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d



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373 (1989), paragraph two of the syllabus. If there is a reasonable probability that

the outcome of the proceeding would have been different if not for counsel’s errors,

the trial court’s judgment will be reversed.       Bradley at paragraph three of the

syllabus.

       {¶28}   According to Bryant, trial counsel’s performance was deficient

because counsel failed to raise the affirmative defenses set forth in R.C. 2913.03(C).

Bryant relies on State v. Kole, 92 Ohio St.3d 303, 750 N.E.2d 148 (2001). In that

case, the Supreme Court reversed the convictions of Kole, a bounty hunter, based on

the ineffective assistance of trial counsel, who failed to raise a statutory defense. The

state’s abduction, burglary and weapons charges against Kole arose from Kole’s entry

into a third-party’s apartment with his gun drawn to apprehend a fugitive that he

had been hired to recover. Id. at 303-304.

       {¶29}   Although trial counsel raised a common law privilege in defense to

the charges, that privilege was narrower than the statutory privilege that R.C.

2713.22 provided a bail-bonding agent to surrender a defendant. Id. at 305. The

Supreme Court found that the outcome of the trial would likely have been different if

the jury had been instructed in accordance with the broad privilege provided under

R.C. 2713.33, and thus, it sustained Kole’s ineffective assistance of counsel claim.

       {¶30}   In this case, however, trial counsel did present the statutory defenses;

he just failed to specify that they were “statutory.” Regarding the first defense, that

“the actor * * * reasonably believed that [she] was authorized to use or operate the

vehicle,” trial counsel elicited testimony that Bryant had a written contract with

Enterprise that authorized her to drive the Elantra in the first instance, and a

subsequent informal and open-ended arrangement, under which she believed that




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                     OHIO FIRST DISTRICT COURT OF APPEALS



she was authorized to keep the vehicle until Enterprise contacted her to bring it in or

to make an additional payment.

       {¶31}   With respect to the second defense, that “the actor reasonably

believed that the owner or person empowered to give consent would authorize the

actor to use or operate the property,” trial counsel elicited testimony from Johnson

that Enterprise always contacted Bryant when she needed to return the rental

vehicle. Further, counsel elicited testimony from Bryant that she did not receive any

communication from Enterprise after October 2, 2010, when her contract was

extended.

       {¶32}   Further, we presume that the trial court, as fact finder, applied the

law correctly and properly considered Bryant’s statutory defenses.        Under these

circumstances, any failure by trial counsel to specify that Bryant was presenting

“statutory defenses” was nonprejudicial.

       {¶33}   Next Bryant argues that trial counsel was ineffective for failing to

object to the admission of the written rental agreement. According to Bryant, this

document was inadmissible because Bryant’s purported signature was not

specifically authenticated by any of the state’s witnesses and the document was

irrelevant to the state’s case.   Further, she contends that the admission of the

document was “extremely prejudicial” because the state’s case depended upon her

violation of the terms of the written rental agreement, which required Bryant to

return the Elantra on September 27, 2010. These arguments are feckless.

       {¶34}   Bryant’s argument essentially attacks trial counsel’s tactic of using the

written rental agreement to help establish Bryant’s defense.        There is a strong

presumption that trial counsel rendered adequate assistance and exercised

reasonable professional judgment. See Strickland, 466 U.S. at 689-690, 104 S.Ct.



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2052, 80 L.Ed.2d 674. In light of King’s and Johnson’s testimony that the written

rental agreement authorized Bryant to use the Elantra in the first instance, and that

Enterprise had a conditional, open-ended relationship with her after the expiration

of the contract, we conclude that trial counsel’s failure to object to the admission of

the written rental agreement and her reliance on the written agreement to set up her

defense was well within the wide range of professionally competent assistance.

       {¶35}   In sum, Bryant has failed to meet her burden to establish that trial

counsel’s performance was deficient and that this deficient performance prejudiced

her. Accordingly, we overrule the second assignment of error.

                  Admissibility of the Written Rental Agreement

       {¶36}   In her third assignment of error, Bryant contends that the trial court

committed plain error by admitting the written rental agreement. Bryant again

argues that this document was inadmissible because Bryant’s purported signature

was not specifically authenticated by any of the state’s witnesses and the document

was not relevant to any issues in the case. We reject both arguments.

       {¶37}   First, Bryant testified that she was a party to the written rental

agreement, and thus, any deficiency in the state’s authentication testimony related to

her signature was corrected by this testimony. Further, as already discussed, the

written rental agreement was relevant to the state’s case and to Bryant’s defense.

Thus, Bryant has failed to demonstrate plain error in the admission of the written

rental agreement. The assignment of error is meritless, and we overrule it.

       {¶38}   Accordingly, we affirm the trial court’s judgment.

                                                                    Judgment affirmed.

HILDEBRANDT, P.J., CUNNINGHAM and DINKELACKER, JJ.

Please note:


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              OHIO FIRST DISTRICT COURT OF APPEALS



The court has recorded its own entry on the date of the release of this decision.




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