         [Cite as State v. Smith, 2018-Ohio-927.]

                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                                      :   APPEAL NO. C-170076
                                                        TRIAL NO. 16CRB-30729
        Plaintiff-Appellee,                         :
                                                           O P I N I O N.
  vs.                                               :

TERRILL SMITH,                                      :

    Defendant-Appellant.                            :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Appellant Discharged

Date of Judgment Entry on Appeal: March 14, 2018



Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and
Christopher Liu, Appellate Director, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann,
Assistant Public Defender, for Defendant-Appellant.
                       OHIO FIRST DISTRICT COURT OF APPEALS




MYERS, Presiding Judge.

        {¶1}     Defendant-appellant Terrill Smith has appealed from the trial court’s

judgment convicting him, following a bench trial, of unauthorized use of a motor

vehicle.

        {¶2}     Because the record contains no evidence that Smith used the vehicle as

is required by R.C. 2913.03, we hold that his conviction was not supported by

sufficient evidence and that the trial court’s judgment must be reversed.

                          Factual and Procedural Background


        {¶3}     A complaint charging Smith with unauthorized use of a motor vehicle

under R.C. 2913.03(A) alleged that he had used a vehicle belonging to Monic Lemons

without Lemons’s consent on or about November 3, 2016, through November 10,

2016.

        {¶4}     At trial, Lemons testified that in late August or early September 2016,

she moved from her cousin’s home into her mother’s home. As a result of the move,

she needed to relocate her 2004 Chevrolet Impala, which was in need of repairs.

Smith, Lemons’s former fiancé, offered to take the vehicle to his mother’s house and

perform the necessary repairs. Lemons gave Smith permission to take the vehicle

and repair it.

        {¶5}     The friendship between Lemons and Smith deteriorated, and on

November 3, Lemons sent Smith a text message that instructed him to put the

vehicle’s keys in her mother’s mailbox. She stated that she would either have the

vehicle towed or pick it up. Smith responded, “OK Monic,” and he offered to give

Lemons approximately $1,500 in car parts that he had purchased for the repairs. On



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                     OHIO FIRST DISTRICT COURT OF APPEALS



November 10, Lemons and Smith exchanged further messages regarding the vehicle,

which had not yet been returned to Lemons or retrieved by her. Lemons messaged

Smith on November 10 that a friend was coming to get the car by the upcoming

weekend, and Smith responded, “What car?” Lemons testified that after receiving

Smith’s message, as well as being informed by Smith’s brother-in-law that Smith had

told his family that Lemons had given him the vehicle, she filed a police report.

Lemons explained that Smith eventually returned the vehicle to her father’s home on

November 16 or 17.

                            Sufficiency of the Evidence


       {¶6}   We address Smith’s second assignment of error first, as it is dispositive

of this appeal. In his second assignment of error, Smith argues that his conviction

was based on insufficient evidence and was contrary to law.

       {¶7}   When reviewing a challenge to the sufficiency of the evidence, we must

view all evidence and reasonable inferences in the light most favorable to the

prosecution and determine whether a rational trier of fact could have found the

elements of the offense proven beyond a reasonable doubt. State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶8}   Smith was convicted of unauthorized use of a motor vehicle in

violation of R.C. 2913.03(A), which provides that “[n]o person shall knowingly use or

operate an aircraft, motor vehicle, motorcycle, motorboat, or other motor-propelled

vehicle without the consent of the owner or person authorized to give consent.”

Smith specifically argues that the state failed to prove that he “used” Lemons’s

vehicle during the period November 3-10.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶9}   The evidence presented at trial established that Lemons had initially

given Smith permission to take possession of her vehicle for the purpose of repairing

it, but had revoked that permission on November 3. From that point on, any use of

the vehicle by Smith during the time period specified in the complaint would have

been without Lemons’s consent and in violation of R.C. 2913.03. See State v. Rose,

63 Ohio St.3d 585, 589, 589 N.E.2d 1315 (1992). Viewing the evidence presented in

the light most favorable to the prosecution, the record demonstrates that Smith had

kept Lemons’s vehicle at his mother’s house from November 3 to November 10.

There is no evidence that he operated the vehicle during this time, and there are no

facts from which an inference can be drawn that he did. At most, the evidence

demonstrated that Smith had possession and/or control of the vehicle. We must

determine whether his actions constituted “use” of the vehicle.

       {¶10} The term “use” is commonly defined as “[t]o employ for the

accomplishment of a purpose; to avail oneself of.” Black’s Law Dictionary 1776

(10th Ed.2014). In State v. Jones, 2d Dist. Montgomery No. 5745, 1978 WL 216208

(Mar. 1, 1978), the court considered whether the defendant’s actions had constituted

“use” for purposes of R.C. 2913.03. It explained that “[t]he presence in the statute of

the alternatives—use or operation—includes application of the vehicle to purposes

other than operation.” Id. at *2. Typically, courts have interpreted or expanded the

term “use” to include passengers who knowingly ride in a vehicle without the owner’s

permission. Id.; State v. Bennett, 1st Dist. Hamilton No. C-800345, 1981 WL 9753,

*2 (Apr. 29, 1981); State v. Daugherty, 10th Dist. Franklin No. 91AP-1499, 1992 WL

142340 (June 18, 1992).




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                        OHIO FIRST DISTRICT COURT OF APPEALS



         {¶11} We cannot find that retaining possession of, or having control over, a

vehicle, without more, is sufficient to constitute use. The record indicates that the

vehicle remained at Smith’s mother’s house from November 3 to November 10, and

there is no evidence that Smith used or operated Lemons’s vehicle in any manner

during that time. Consequently, the trial court erred in finding all the elements of

the offense of unauthorized use of a motor vehicle proven beyond a reasonable

doubt.

         {¶12} Because Smith’s conviction was not supported by sufficient evidence,

the second assignment of error is sustained. Smith’s first assignment of error, in

which he contends that the trial court committed prejudicial error by admitting

hearsay evidence, is rendered moot by our resolution of the second assignment of

error.

         {¶13} The judgment of the trial court is reversed, and Smith is discharged

from further prosecution.

                                            Judgment reversed and appellant discharged.



MILLER and DETERS, JJ., concur.



Please note:
         The court has recorded its own entry on the date of the release of this opinion.




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