Summary
In State v. Rose, 589 N.E.2d 1315 (Ohio 1992), the Ohio Supreme Court considered the application of Ohio Rev. Code Sec. 2913.03(A) under an almost identical set of facts.
Summary of this case from Overstreet v. CommonwealthOpinion
Nos. 91-1458 and 91-1591
Submitted February 19, 1992 —
Decided May 6, 1992.
APPEAL from and CERTIFIED by the Court of Appeals for Clermont County, No. CA90-09-084.
Sometime in November 1989, Tim Nadeau, after becoming acquainted with defendant-appellee, Anthony R. Rose, invited appellee to stay with him and his wife, Patricia Hein, at their residence in New Richmond, Ohio. While appellee was living with Nadeau and Hein, he was given permission on certain occasions to borrow their automobiles (1979 Cougar, 1979 Pinto, 1979 Chevy Pickup) when his vehicle would break down or give him trouble. Apparently, appellee used the vehicles borrowed from Nadeau and Hein to go to work and to visit his girlfriend.
On Wednesday, November 15, 1989, appellee borrowed Nadeau and Hein's 1979 Cougar automobile in order to go to work. Nadeau informed appellee that he was required to return the vehicle that night.
Appellee did not return the automobile as requested by Nadeau. Consequently, on Friday, November 17, 1989, both Nadeau and Hein attempted to contact appellee at work in order to inquire as to the disposition of the borrowed automobile. Nadeau also contacted his insurance agent who referred him to the Clermont County Sheriff's Office. Nadeau contacted the sheriff's office which informed him to wait twenty-four hours before filing a report. Appellee finally contacted Nadeau and Hein at approximately 6:00 p.m. on Friday and indicated he would not be able to return the vehicle that evening. Nadeau informed appellee at that time that he had already contacted his insurance company and the sheriff, and charges would be filed against appellee within twenty-four hours if the vehicle was not returned.
After appellee was informed that charges might be filed against him, he drove the borrowed vehicle to the house of a friend and told his friend to contact Nadeau and give him the location of the vehicle in the event appellee could not return the vehicle himself. On Saturday, November 18, Nadeau completed a police report on the vehicle taken by appellee.
The person with whom appellee left the borrowed vehicle contacted Hein on Wednesday, November 22, 1989, informing her that her vehicle was sitting in his driveway. Nadeau and Hein retrieved their vehicle on Thursday, November 23, 1989, from an impounding lot in Butler County, Ohio.
The Clermont County Grand Jury indicted appellee, on February 14, 1990, for the unauthorized use of a motor vehicle in violation of R.C. 2913.03. The indictment stated that appellee "knowingly used or operated a motor vehicle without the consent of the owner or person authorized to give consent, kept possession of it for more than forty-eight hours, and the defendant was previously convicted of two (2) theft offenses * * *."
Following opening statements from counsel at trial, the trial court raised the issue as to which portion of R.C. 2913.03, division (A) or (B), was charged in the indictment. After reviewing the indictment along with the opening statements, the court concluded, without objection from defense counsel, that:
"THE COURT: Counsel, based on the opening statements here, just so we're all on the same wave length, the indictment is for a violation of 2913.03 and I presume, even though it's in the conjunctive, for purposes of this discussion I've given the State the benefit of the doubt, it would be either A or B based on no consent with a prior or no consent for more than forty-eight hours."
Thus, appellee was on notice that he could be convicted of either division (B) of R.C. 2913.03, or the lesser included offense, division (A) with an attached specification for a prior theft. The trial court found appellee guilty of violating both R.C. 2913.03(A), with the attached specification, and R.C. 2913.03(B). However, the court sentenced appellee only for violating R.C. 2913.03(A) with a specification of a prior theft. The offense was classified as a fourth-degree felony, which was the same classification for violating R.C. 2913.03(B). See R.C. 2913.03(D).
The trial court found appellee guilty and sentenced him to one year of incarceration. The court of appeals reversed the conviction holding, inter alia, that once consent was given by the owners of the vehicle, appellee's conduct could not have been proscribed by R.C. 2913.03(B), the joyriding statute. The court of appeals found its judgment to be in conflict with the decision of the Second District Court of Appeals in State v. Staley (Mar. 24, 1983), Miami App. No. 82-CA-56, unreported, 1983 WL 4869. Consequently, it certified the record of this case to this court for review and final determination. Also, this cause is before the court upon the allowance of a motion for leave to appeal and is consolidated for purposes of resolution.
The actual entry granting certification to this court inadvertently referred to R.C. 2913.02(B) as the unauthorized-use-of-motor-vehicles statute; nevertheless, we find R.C. 2913.03 to be the pertinent statute referring to the unauthorized use of motor vehicles.
Donald W. White, Prosecuting Attorney, and David Henry Hoffmann, for appellant. R. Daniel Dannon, County Public Defender, and Kendra L. Daugherty, for appellee.
The issue certified to this court is whether a defendant can be convicted of R.C. 2913.03, unauthorized use of a motor vehicle, where the defendant's possession or use was initially authorized by the owner of the vehicle, but possession or use thereafter extended beyond the scope of the owner's consent. For the reasons that follow, we answer such query in the affirmative.
R.C. 2913.03 provides:
"(A) No 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.
"(B) No person shall knowingly use or operate * * * [a] motor vehicle * * * without the consent of the owner or person authorized to give consent, and either remove it from this state, or keep possession of it for more than forty-eight hours.
"(C) The following are affirmative defenses to a charge under this section:
"(1) At the time of the alleged offense, the actor, though mistaken, reasonably believed that he was authorized to use or operate the property.
"(2) At 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.
"(D) Whoever violates this section is guilty of unauthorized use of a vehicle. Violation of division (A) of this section is a misdemeanor of the first degree. If the offender has previously been convicted of a violation of this section or of any other theft offense, violation of division (A) of this section is a felony of the fourth degree. Violation of division (B) of this section is a felony of the fourth degree."
In State v. Staley (Mar. 24, 1983), Miami App. No. 82-CA-56, unreported, 1983 WL 4869, the Miami County Court of Appeals was presented with a somewhat analogous case to the one at bar. In Staley, the defendant was given permission only to clean the victim's automobile; instead, the defendant took a one-hundred-mile unauthorized trip. The Staley court reviewed R.C. 2913.03 and stated:
"The gravamen of the `joyriding statute' is the unauthorized use of the vehicle by the party using it and the offender does not intend to permanently deprive the owner of his property. * * * Consenting to one type of use of an automobile would not be consent to another type of use." Id. at 5.
The Hamilton County Court of Appeals in State v. Williams (1943), 74 Ohio App. 370, 29 O.O. 518, 59 N.E.2d 58, syllabus, found in essence that:
"Where an automobile is entrusted to an employee for certain purposes, the use thereof by such employee for his own purposes not connected with any of the purposes for which the car was entrusted, constitutes a taking, driving or operating of a motor vehicle without the consent of the owner, within the purview of Section 12619, General Code."
G.C. 12619 provided in pertinent part:
"* * * [W]hoever purposely takes, drives or operates any motor vehicle without the consent of the owner thereof * * * shall be imprisoned * * *." See former R.C. 4549.04, a predecessor to R.C. 2913.03.
In Williams, the defendant was permitted to use his employer's automobile for the purpose of traveling to and from locations where his services were required by the employer. The defendant drove the automobile on an excursion of his own, and was apprehended the following day in the vehicle. Id. at 371, 29 O.O. at 518, 59 N.E.2d at 59. The Williams court held:
"When the defendant departed from the use of the car for which the consent and permission of his employer had been given, and thereafter proceeded to use the car for his own purposes entirely disassociated with any business of his employer, he most certainly drove and operated it without the consent of the owner.
"* * *
"The original taking of the car may in one sense be considered lawful — even so, the driving and operating were unlawful and in violation of the statute, as such procedure was wholly without the consent of the owner. The provisions of the statute are in the disjunctive and severable. In another sense, however, when the defendant proceeded upon his misuse of the car, employing it for his own purposes, and for reasons entirely separate from the use originally permitted, this in itself constituted a taking as well as a driving and operation without the consent of the owner." Id. at 371-372, 29 O.O. at 518-519, 59 N.E.2d at 59.
In attempting to determine the legislative intent behind R.C. 2913.03, we note that the Committee Comment to House Bill No. 511 (which was the bill enacting R.C. 2913.03) provides:
"This section defines two degrees of the offense commonly known as `joyriding.' For some years auto theft has been an increasing problem, and in this type of offense it is often difficult to prove that the offender intended to permanently deprive the owner of the car. The offense of joyriding was designed to alleviate the enforcement problem this creates, and the gist of the offense is simply an unauthorized use of a vehicle. It is unnecessary to prove an intent to permanently deprive the owner. * * *"
We observe from a review of the Committee Comment to R.C. 2913.03, as well as the cases interpreting the statute, that the legislative intent in passing the statute was to hold individuals accountable for the unauthorized use of a motor vehicle where such specific use was without the owner's consent. Clearly, where an individual uses a motor vehicle beyond the scope of the owner's consent, he or she has violated R.C. 2913.03 because no consent has been given for the particular use. Furthermore, even though consent may be given for a specific purpose, the owner may revoke consent after notifying the borrower he or she is no longer entitled to use the vehicle. Thus, R.C. 2913.03 prohibits the use or operation of a motor vehicle without, beyond, or after revocation of the owner's consent.
In the case sub judice appellee had permission to use Nadeau and Hein's vehicle only to go to work and he was required to return it that evening. However, appellee kept the borrowed vehicle beyond the time limit imposed by Nadeau and Hein and contacted them two days later. On the third day after appellee borrowed the vehicle he left it with another individual who in turn contacted Nadeau and Hein. Clearly, the record supports not only the fact that appellee used the borrowed vehicle beyond the scope of consent given to him, but as the trial court found, he "maintain[ed] possession of the car after the consent had been expressly withdrawn by a person who was authorized to do that[.]"
The court of appeals in this case rejected the holdings in Staley and Williams and found that the conduct attributed to appellee fell under R.C. 2913.02(A)(2), which designates the use of a motor vehicle beyond the scope of the owner's consent to be a theft offense. It appears that the court of appeals misconstrued the facts and law as applied in this case.
R.C. 2913.02(A) provides in pertinent part:
"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:
"* * *
"(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent * * *."
R.C. 2913.02(A) clearly requires that the accused intended to permanently deprive the owner of the property rather than merely use the property beyond the owner's consent. In the present case the record is devoid of any evidence, and the prosecution has failed to assert, that appellee intended to deprive Nadeau and Hein of their vehicle. Therefore, appellee could not have been convicted of violating R.C. 2913.02(A)(2) under the facts presented to the trial court. Rather, the record as discussed herein shows appellee knowingly used or operated the borrowed vehicle in a manner that was beyond the consent of the owners. In fact, appellee could not even have raised an affirmative defense in this case because the owners expressly withdrew their limited consent.
Accordingly, for the foregoing reasons, the decision of the court of appeals is reversed and the trial court's judgment is reinstated.
Judgment reversed.
MOYER, C.J., SWEENEY, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.