         [Cite as State v. Rodgers, 2017-Ohio-9191.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :   APPEAL NO. C-170057
                                                       TRIAL NO. 15CRB-6908
        Plaintiff-Appellee,                        :

  vs.                                              :
                                                        O P I N I O N.
DAVID RODGERS,                                     :

    Defendant-Appellant.                           :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Appellant Discharged

Date of Judgment Entry on Appeal: December 22, 2017


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

Arenstein & Gallagher, William Gallagher and Elizabeth Conkin, for
Defendant-Appellant.
                  OHIO FIRST DISTRICT COURT OF APPEALS



ZAYAS, Judge.
       {¶1}    David Rodgers appeals his conviction in the Hamilton County

Municipal Court for theft in violation of R.C. 2913.02(A)(1). Because the state

failed to prove that Rodgers acted with purpose to deprive the owners of the

property, we reverse the conviction and discharge Rodgers from further

prosecution.

                                    Facts

       {¶2}    Rodgers was charged with theft in violation of R.C.

2913.02(A)(1) for withdrawing $1,360 from the bank account of Maxine

Jeffries after her death.

       {¶3}    At the bench trial, the state presented evidence from Ryan

Goodman, the branch manager at the Hyde Park Key Bank, who testified that

Rodgers and Jeffries had come into the bank together to give Rodgers the

authority to manage Jeffries’s savings account. Goodman had them sign the

required documents, and Rodgers was added to the account as a power of

attorney. However, Goodman testified that the account was not converted to

a joint account, and Rodgers’s authority ended upon Jeffries’s death.

       {¶4}    The state presented evidence that Jeffries had died without a

will, and that her two daughters, Stacy and Marsha, were the sole heirs to the

Key Bank account. Each daughter testified that she had not given Rodgers

permission to withdraw any funds.

       {¶5}    Rodgers testified that he and Jeffries had recently become

engaged and had been in a committed relationship for the past 14 years.

During that time, they lived together and shared the living expenses. After

she was diagnosed with cancer, he took care of her and made sure she had her



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                  OHIO FIRST DISTRICT COURT OF APPEALS



medicines, took her to treatment, and ensured she followed all of the doctor’s

instructions.

       {¶6}     In July 2014, Jeffries was admitted to the hospital. Upon her

release, she was transferred to a nursing home because she could not walk.

Rodgers stayed with her every day in the hospital and nursing home. After

her hospitalization, Rodgers continued to pay all the bills, including their

credit card debt, by himself.

       {¶7}     Rodgers testified that Jeffries had instructed him to withdraw

her share of the bills from her account. Before Rodgers could withdraw the

funds, Jeffries suffered a medical emergency and was transferred to a hospital

where she died two days later. The following week, Rodgers withdrew the

funds. He testified that he thought he was authorized to make the withdrawal

because the account had been converted to a joint savings account. He also

stated that he was in the process of transferring his account from Cincinnati

Central Credit Union to the joint account and having his checks deposited

into the joint account.

       {¶8}     The trial court found him guilty because the account was not a

joint account despite Rodgers’s genuine belief that it was.

                                Legal Analysis

       {¶9}     In his first assignment of error, Rodgers asserts that the trial

court erred in overruling his motions for acquittal under Crim.R. 29(A) on the

ground that the evidence was insufficient to sustain a theft conviction.

Specifically, he contends that the state failed to prove he had the purpose to

deprive the owner of the property because he reasonably believed that the

funds were in a joint account, and therefore belonged to him.



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                 OHIO FIRST DISTRICT COURT OF APPEALS



       {¶10} Motions for an acquittal are reviewed under the same standard

as a sufficiency-of-the-evidence claim. State v. Benton, 1st Dist. Hamilton

Nos. C-130556, C-130557 and C-130558, 2014-Ohio-2163, ¶ 17. The relevant

inquiry for the appellate court “is 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 proven beyond a reasonable

doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph

two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979).

       {¶11} R.C. 2913.02(A)(1) provides, in relevant part, that “no person,

with purpose to deprive the owner of property or services, shall knowingly

obtain or exert control over either the property or services * * * without

consent of the owner or person authorized to give consent.” Purposely refers

to a “specific intention to cause a certain result * * * .” R.C. 2901.22(A). Thus,

“[t]heft is a specific intent crime.” State v. LeMasters, 11th Dist. Lake No.

2007-L-129, 2008-Ohio-2139, ¶ 42.

       {¶12} A “[m]istake of fact is widely recognized as a defense to specific

intent crimes 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. Cooper, 10th Dist. Franklin No. 09AP-511, 2009-Ohio-

6275, ¶ 9; State v. Snowden, 7 Ohio App.3d 358, 363, 455 N.E.2d 1058 (10th

Dist.1982). A mistake of fact can negate the intent element by showing that

the person reasonably believed that what he took belonged to him. Snowden

at 363; State v. Griffin, 6th Dist. Lucas No. L-11-1283, 2013-Ohio-411, ¶ 25.

       {¶13} When issuing its decision, the trial court specifically stated,

“[Rodgers] believed he had a joint account with Ms. Jeffries, but in actuality

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                 OHIO FIRST DISTRICT COURT OF APPEALS



and under the law, he did not.” Since this court is left with the trial court’s

statement, we must conclude that Rodgers believed that he owned the funds

and had the right to withdraw the funds. Because he had an honest purpose

in withdrawing the funds that negated any criminal intent, the state failed to

establish that Rodgers intended to deprive the owner of the funds. Rodgers’s

first assignment of error is well-taken, which renders his second assignment

of error moot.

       {¶14} Accordingly, we sustain the first assignment of error.        The

judgment of the trial court is reversed and Rodgers is discharged from further

prosecution.

                                Judgment reversed and defendant discharged.

MOCK, P.J., and MYERS, J., concur.




Please note:
       The court has recorded its own entry this date.




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