[Cite as State v. Faircloth, 2025-Ohio-878.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2024-02-028
: OPINION - vs - 3/17/2025 :
TIEASURE T. FAIRCLOTH, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY AREA III COURT Case No. CRB 2301213
Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael Greer, Assistant Prosecuting Attorney, for appellee.
Repper-Pagan Law, Ltd., and Christopher Pagan, for appellant.
PIPER, J.
{¶ 1} Appellant, Tieasure T. Faircloth, appeals her conviction in the Butler County
Area III Court for one count of first-degree misdemeanor theft in violation of R.C.
2913.02(A)(3). For the reasons outlined below, we affirm the trial court's guilt finding but
reverse and remand for the limited purpose of resentencing to afford Faircloth her right to
allocution as provided by Crim.R. 32(A)(1). Butler CA2024-02-028
Facts and Procedural History
{¶ 2} On October 6, 2023, a complaint was filed charging Faircloth with the
above-named first-degree misdemeanor offense after it was alleged she had engaged in
a deceptive scheme to get a Wal-Mart store to give her money in exchange for an area
rug that she had not paid for.
{¶ 3} On January 9, 2024, the matter proceeded to a one-day bench trial. During
trial, the trial court heard testimony from a total of three witnesses. These three witnesses
were West Chester Police Officer Ryan Akins, Alex Renner, one of the Wal-Mart store's
asset protection investigators, and Faircloth.
{¶ 4} Upon hearing each of these three witnesses' testimonies, the trial court
issued its verdict finding Faircloth guilty as charged. The trial court then immediately
proceeded to sentencing where it sentenced Faircloth to a 180-day suspended jail
sentence conditioned on her receiving no further theft convictions for one year. The trial
court also ordered Faircloth to pay a $200 fine plus court costs.
{¶ 5} On February 6, 2024, Faircloth filed a notice of appeal. Following briefing,
on December 11, 2024, the matter was submitted to this court for consideration.
Faircloth's appeal now properly before this court for decision, Faircloth has raised two
assignments of error for review.
Assignment of Error No. 1:
{¶ 6} THE TRIAL COURT ERRED BY CONVICTING FAIRCLOTH OF PETTY
THEFT UNDER R.C. 2913.02(A)(3).
{¶ 7} In her first assignment of error, Faircloth argues the trial court erred by
finding her guilty of first-degree misdemeanor theft in violation of R.C. 2913.02(A)(3). She
suggests the complaint merely charged her with a second-degree misdemeanor
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attempted theft. This, according to Faircloth, resulted in a violation of Crim.R. 7(D), a
question that this court reviews de novo. See State v. McGlothin, 2015-Ohio-2992, ¶ 19.
The complaint, however, did not charge Faircloth with a violation of this state's attempt
statute, R.C. 2923.02(A). Up-ending Faircloth's suggestion is the fact that the complaint
clearly states that Faircloth was being charged with a first-degree misdemeanor theft in
violation of R.C. 2913.02(A)(3).
{¶ 8} Pursuant to R.C. 2913.02(A)(3), "[n]o person, with purpose to deprive the
owner of property or services, shall knowingly obtain or exert control over either the
property or services . . . [b]y deception." Therefore, contrary to Faircloth's claim, the trial
court's decision finding Faircloth guilty of a theft in violation of R.C. 2913.02(A)(3) was not
error, plain or otherwise, as it was not violative of Crim.R. 7(D).1 To the extent Faircloth
claims otherwise, such argument lacks merit.
{¶ 9} Also lacking merit is Faircloth's claim that the trial court's verdict was not
supported by sufficient evidence. We review de novo a challenge to the sufficiency of the
evidence. State v. Samamra, 2025-Ohio-126, ¶ 6 (9th Dist.). A claim challenging the
sufficiency of the evidence "requires a determination as to whether the state has met its
burden of production at trial." State v. Boles, 2013-Ohio-5202, ¶ 34 (12th Dist.). When
making such a determination, "[t]he relevant inquiry is 'whether, after viewing the
evidence in a 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.
Roper, 2022-Ohio-244, ¶ 39 (12th Dist.), quoting State v. Jenks, 61 Ohio St.3d 259
(1991), paragraph two of the syllabus. "A reversal based on insufficient evidence leads
1. Crim.R. 7(D) provides, in pertinent part, that "[t]he court may at any time before, during, or after a trial amend the indictment, information, complaint, or bill of particulars, in respect to any defect, imperfection, or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged."
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to an acquittal that bars a retrial." State v. Powers, 2024-Ohio-1521, ¶ 25 (12th Dist.).
{¶ 10} The record in this case, when viewed in a light most favorable to the
prosecution, contains ample evidence to support the trial court's findings as to each
essential element of the offense. This includes the element of deception. As noted
above, theft by deception requires obtaining control over property with the purpose of
depriving the owner of the property through the means of trickery. State v. Wilson, 2007-
Ohio-5187, ¶ 9 (12th Dist.). Thus, for the state to prove theft by deception in violation of
R.C. 2913.02(A)(3), the state was required to show "that the defendant had the intent to
permanently deprive the owner of the property at the time appellant obtained control over
it." State v. Keith, 2008-Ohio-348, ¶ 21 (12th Dist.). When viewing the evidence in a light
most favorable to the prosecution, that is exactly what Faircloth did in this case by
executing a deceptive scheme to obtain money from Wal-Mart in exchange for an item
that she had never purchased nor paid for.2
{¶ 11} The fact that Faircloth was interrupted in the midst of her possession and
deception is also immaterial. This is because, as it is now well established, "property
need not be removed from the premises of the owner in order to constitute theft."
Cleveland v. Flynn, 2018-Ohio-3585, ¶ 19-24 (8th Dist.). To hold otherwise places an
unnecessary burden on Wal-Mart's customer service associates—essentially elevating
entry level employees to store detectives—by requiring them to sniff out unlawfully
deceptive schemes like the one executed by Faircloth in this case. Despite the implication
from the dissent's reasoning, store employees must not be required to let merchandise
be possessed outside the store before confronting someone in the middle a theft
2. It is undeniable Faircloth's explanations during the investigation and at trial morphed in substance several times in an effort to create confusion and avoid culpability.
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offense.3
{¶ 12} In a strained analysis of statutory text, the dissent suggests that Faircloth's
possession of the rug at the customer service desk with a deceptive purpose was not an
"act."4 The dissent finds evidentiary that after Faircloth purchased merchandise—other
merchandise except for the area rug at issue—and exited the points of sale, Faircloth had
the consent of Wal-Mart to take the unpaid rug to customer service for purposes of her
deceptive scheme, and that other customers do the same. However, there was no factual
basis for the dissent to impose an inference Faircloth had "consent" to possess the rug
by her deception.
{¶ 13} The dissent suggests a statutory interpretation that permits a conclusion
that retention of the rug for presentation to the customer service desk by way of a false
narrative of deception was not an "act" sufficient to comprise theft by deception. Yet, the
dissent acknowledges in its first footnote that Faircloth's "actions" at the customer service
desk were sufficient to establish deception. In other words, Faircloth's false presentation
of the area rug to customer service was an act she undertook to for her deceptive
purpose.
{¶ 14} Alternatively, the dissent suggests elsewhere in its reasoning that
Faircloth's conviction is based upon insufficient evidence because her deception was
3. Our dissenting colleague constructions an argument under a misapprehension. In other words, Faircloth never argued for an application of the dissent's statutory construction of the theft by deception statute, R.C. 2913.02(A)(3), nor did Faircloth suggest that there was no "act." Although it generally goes without saying, it is well established that it is not this court's duty to "root out" arguments that can support an assignment of error, nor will this court "conjure up questions never squarely asked . . . ." State v. Fields, 2009-Ohio- 6921, ¶ 7 (12th Dist.); App. R. 16(A)(7). Faircloth did not make the argument suggested by the dissent. This court will not construct such on Faircloth's behalf. See State v. Armbruster, 2024-Ohio-2763, ¶ 45 (12th Dist.). Thus, we decline to join the dissent's creation and analysis of an issue not raised.
4. While not the dissent's intention, it reassigns the weight given to Faircloth’s actions to determine under a sufficiency analysis that there was no “act” to support her conviction. The dissent then applies the weight of the evidence and orders the trial court to substitute its original conviction to a judgment the dissent approves of. We find this ill-advised.
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unsuccessful. With the record thoroughly reviewed and for reasons stated previously, we
respectfully find neither suggestion appropriate.
{¶ 15} The dissent adopts Faircloth's conclusion that the state did not produce
sufficient evidence to support her conviction which requires it to be vacated. Then the
dissent orders a remand for the trial court to enter a conviction for a different offense. A
determination that the state's evidence was insufficient as a matter of law has the same
effect as a not guilty finding because it means no rational factfinder would have convicted
the defendant. State v. Thompkins, 1997-Ohio-52, ¶ 2,3 citing Tibbs v. Florida, 457 U.S.
31, 45-47 (1982).
{¶ 16} Furthermore, it would be erroneous for an appellate court to subsequently
order a conviction to a different degree misdemeanor with a different penalty based upon
its interpretation of the evidence. The dissent's interpretation of the evidence is
misapplied in a sufficiency analysis because it is not the only interpretation – and not an
interpretation favorable to the state, which is required when reviewing a challenge to the
sufficiency of the evidence. Accordingly, finding no merit to any of the arguments raised
by Faircloth herein, and unpersuaded by the dissent's overly narrow interpretation of the
law as applied to Faircloth's conduct, Faircloth's first assignment of error lacks merit and
is overruled.
Assignment of Error No. 2:
{¶ 17} THE TRIAL COURT ERRED BY IMPOSING A SENTENCE THAT WAS
CONTRARY TO LAW.
{¶ 18} In her second assignment of error, Faircloth argues the trial court's decision
sentencing her to a 180-day suspended jail sentence was contrary to law. But, contrary
to Faircloth's claim, the trial court's decision sentencing her to a suspended 180-day jail
term was not contrary to law as that sentence falls within the statutory range available for
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first-degree misdemeanor offenses like theft in violation of R.C. 2913.02(A)(3). See R.C.
2929.24(A)(1) ("[f]or a misdemeanor of the first degree, not more than one hundred eighty
days"). It was error, however, for the trial court not to afford Faircloth her right to allocution
prior to issuing its sentencing decision as required by Crim.R. 32(A)(1). See, e.g., State
v. Faircloth, 2021-Ohio-1514, ¶ 7-13 (2d Dist.) (reversing and remanding for resentencing
where the trial court failed to afford appellant an opportunity to address the court before
it imposed its sentencing decision as required by Crim.R. 32[A][1]). Therefore, to the
extent stated herein, Faircloth's second assignment of error is sustained. Accordingly,
finding merit to Faircloth's second assignment of error, the trial court's sentence must be
reversed and this matter remanded for the limited purpose of resentencing to afford
Faircloth her right to allocution as provided by Crim.R. 32(A)(1).
{¶ 19} Judgment affirmed in part, reversed in part, and remanded for resentencing.
HENDRICKSON, J., concurs.
BYRNE, P.J., dissents.
BYRNE, P.J., dissenting.
{¶ 20} I respectfully dissent. Based on the discussion below, I would find that the
state submitted sufficient evidence to prove that Faircloth committed attempted theft by
deception, but insufficient evidence to prove theft by deception.
{¶ 21} There was testimony at trial that Faircloth entered a Walmart store with only
personal items and a shopping cart. She then obtained a $95 area rug from a shelf and
took the rug to the store's customer service desk, passing the store's point-of-sale
terminals.
{¶ 22} According to Faircloth, upon approaching the Walmart store's customer
service desk she asked to be able to take the rug home as a "replacement" for a rug she
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had previously purchased from the same store and which she had discovered was
damaged when she took it home. She testified that after discovering the first rug's
damage she had called Walmart's corporate customer service department, where
someone told her she could keep the damaged rug and come into the store to receive a
second, "replacement" rug, and that this arrangement would be noted in Walmart's
computer system.
{¶ 23} The state did not call any Walmart customer service employees to testify as
to their recollection of what Faircloth said when she presented the rug to the customer
service desk. Instead, the state called West Chester Township Police Officer Ryan Akins
as a witness. Officer Akins, who responded to a call of a theft in progress at Walmart,
initially testified that Faircloth told him that Walmart's corporate customer service
department told her she could "keep the damaged merchandise, as well as get a return
for it." However, he later clarified that Faircloth told him that "[s]he was just advised by
an unknown party via telephone that she could come up to customer service with the
merchandise, as well as get a—to keep the damaged product, as well as get an additional
item because the item was damaged." Officer Akins further clarified, "I did ask her if [the
rug] was store property that was in her cart and she stated yes."
{¶ 24} The state also called Walmart asset protection investigator Alex Renner.
Renner testified regarding Walmart's investigation, including his review of surveillance
video. But Renner did not testify to what Faircloth told him about what she said to the
customer service desk.
{¶ 25} The state's witnesses pointed out multiple problems with Faircloth's story.
First, Faircloth had no receipt for the purchase of the purported damaged rug. Second,
a search of credit or debit card records tied to Faircloth did not show that she purchased
the damaged rug. Third, contrary to Faircloth's assertion, there was no notation in
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Walmart's computer system that she had permission from corporate customer service to
either take the second, "replacement" rug or receive a refund for the first, "damaged" rug.
{¶ 26} The theft statute at issue in this case states in relevant part:
(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: ...
(3) By deception. . .
R.C. 2913.02(A)(3).
{¶ 27} In the theft statute, the phrase "with purpose to deprive the owner of
property or services" modifies "person," and indicates the mens rea with which a "person"
must act to violate the statute. R.C. 2913.02(A). A person "acts purposely when it is the
person's specific intention to cause a certain result . . . ." R.C. 2901.22(A). However, the
word "knowingly" in the theft statute's phrase "No person…shall knowingly obtain or exert
control…" provides a second mens rea. A person "acts knowingly, regardless of purpose,
when the person is aware that the person's conduct will probably cause a certain result
or will probably be of a certain nature." R.C. 2901.22(B). Because "knowingly" is defined
to apply "regardless of purpose," it is a bit jarring that the different mens rea terms
"knowingly" and "with purpose" are used together in the statute.
{¶ 28} Regardless, in the case before us, viewing the evidence in the light most
favorable to the state—as we are required to do in a sufficiency analysis, State v. Helton,
2019-Ohio-4399, ¶ 16 (12th Dist.)—there was sufficient evidence at trial to establish that
Faircloth acted with the required mens rea. Specifically, there was evidence at trial
establishing that Faircloth acted both "with purpose to deprive" Walmart of the rug (or its
cash value) and acted "knowingly" when she approached the customer service desk with
a false story about having permission from Walmart's corporate customer service
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department to obtain a replacement rug (or a refund). But this analysis only establishes
that Faircloth acted with the mens rea necessary to violate the statute; it does not address
whether she performed the acts required to violate the statute.
{¶ 29} Returning to the statute, the phrase "[b]y deception" modifies the phrase
"knowingly obtain or exert control over either the property or services." R.C.
2913.02(A)(3). This means that to violate the (A)(3) subsection of the statute a person
must "obtain or exert control" over the property by an act of deception. The act of
deception must be the means by which the act of obtaining or exerting control is
performed. Id.
{¶ 30} If Faircloth's act of deception—her story about corporate customer service
giving her permission to take a second rug or obtain a refund—had been successful and
had resulted in her obtaining or exerting control over the rug, there would be sufficient
evidence to convict Faircloth of theft by deception under R.C. 2913.02(A)(3).5 However,
that is not the evidence with which the trial court was presented, as Faircloth's deception
was unsuccessful and did not result in her obtaining or exerting control over the rug.
{¶ 31} Instead, Faircloth obtained or exerted control over the rug by a different
method: she simply picked up the rug, placed it in her shopping cart, and took the
shopping cart and rug to the customer service desk, past the point-of-sale terminals. The
evidence in the record indicates she performed these acts openly and without any
deception, with the rug in her shopping cart in plain view of anyone in the store. The act
of doing so was not unlawful, as Walmart, like other retail stores, permits customers to
5. The statutory definition of "deception" is "knowingly deceiving another or causing another to be deceived by any false or misleading representation, by withholding information, by preventing another from acquiring information, or by any other conduct, act, or omission that creates, confirms, or perpetuates a false impression in another, including a false impression as to law, value, state of mind, or other objective or subjective fact." R.C. 2913.01(A). Based on the state's evidence, Faircloth's actions at the customer service desk are sufficient to establish deception.
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place items in their cart and transport them around the store, including to customer
service.6 There is nothing in the record indicating that Walmart does not permit customers
to take unpurchased items past the point-of-sale terminals and to the customer service
desk. This is presumably why the state did not charge Faircloth with theft under R.C.
2913.02(A)(1) (which makes it a crime to obtain or exert control over property "[w]ithout
the consent of the owner or person authorized to give consent") or R.C. 2913.02(A)(2)
(which makes it a crime to obtain or exert control over property "[b]eyond the scope of the
express or implied consent of the owner or person authorized to give consent"). From
when she picked up the rug and at least until Faircloth told her false story at the customer
service desk, she obtained or exerted control over the rug within the scope of Walmart's
consent.7
{¶ 32} In my view, the offense of theft by deception under R.C. 2913.02(A)(3) could
not be completed unless Faircloth used deception to obtain or exert control over the rug,
but the testimony and other evidence in the record lends no support for the conclusion
that this is what occurred here. Faircloth initially obtained or exerted control over the rug
without the use of deception when she placed the rug in her cart; only later did she arrive
at the customer service desk and attempt to convince customer service to either give her
a refund or permission to remove the rug from the store as a "replacement" for the
"damaged" rug she claimed to have previously purchased. Faircloth's deception did not
6. One district court of appeals has described a customer’s possession of a sales item in a store as “conditional temporary possession.” State v. Shanks, 1981 Ohio App. LEXIS 10127, *5 (4th Dist. Sep. 24, 1981).
7. The facts of this case are unlike those in one of the cases cited by the majority, Cleveland v. Flynn, 2018- Ohio-3585 (8th Dist.). In that case, the Eighth District held that the appellant committed theft by deception when she hid video games under her coat, walked around the store, and attempted to leave the store with the video games still hidden under her coat. Id. at ¶ 20-24. In Flynn the deceptive act of hiding the video games under her coat was the means by which the appellant obtained or exerted control over the video games. Id. Not so here, where Faircloth’s deceptive act only occurred after she obtained or exerted control over the rug, and was not the means by which she obtained or exerted control.
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contribute in any way to her obtaining control over the rug.8 As a result, the evidence
presented was insufficient to prove that Faircloth committed theft by deception under R.C.
2913.02(A)(3).
{¶ 33} The evidence was sufficient, however, to prove that Faircloth attempted to
commit theft by deception under R.C. 2913.02(A)(3). The trial court should have
convicted Faircloth of attempted theft by deception. R.C. 2923.02(A) ("No person,
purposely or knowingly, and when purpose or knowledge is sufficient culpability for the
commission of an offense, shall engage in conduct that, if successful, would constitute or
result in the offense."). Attempt crimes need not be included within the charging
document for the complete offense. See State v. Deem, 40 Ohio St.3d 205, 208 (1988)
("Attempts, as criminal offenses, arise from R.C. 2923.021 and need not be included
within the indictment for the completed offense. Rather, if during the course of trial the
defendant presents sufficient evidence that his conduct was unsuccessful in constituting
the indicted offense, an instruction to the jury on attempt would be proper.") Furthermore,
Crim.R. 31(C) provides that a "defendant may be found not guilty of the offense charged
but guilty of an attempt to commit it if such an attempt is an offense at law." Accord State
v. Russell, 2000 Ohio App. LEXIS 4852, *9-14 (2d Dist. Oct. 20, 2000) (holding that the
trial court was allowed to permit amendment of the indictment to charge the defendant
with an attempt to commit the specific offense with which he was originally indicted without
violating Crim.R. 7[D]); State v. Burnside, 2009-Ohio-2653, ¶ 7-8 (7th Dist.).
{¶ 34} In any event, I note that while the complaint explicitly charged Faircloth with
theft by deception in violation of R.C. 2913.02(A)(3), it also explicitly charged her with
"attempt[ing] to commit theft by deception of merchandise," which it alleged she did when
8. For example, Faircloth’s act of deception did not result in her being allowed to leave the story with the rug; nor did it result in her being provided with the cash equivalent of the rug’s value while in the store.
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she "removed an item from the store shelf, did not purchase the item, and attempted to
deceive employees by returning it." (Emphasis added.)
{¶ 35} I disagree with the majority's sufficiency analysis, which I read as assuming
that merely because there was evidence that Faircloth obtained or exerted control over
the rug, and because there was evidence that Faircloth at that point in time intended to
deceive Walmart, the factfinder did not err in convicting her of violating R.C.
2913.02(A)(3). This analysis seems to overlook the statutory text, which expressly
provides that the act of deception must be the means "by" which the person obtained or
exerted control over the property. In other words, the statute requires not simply that the
offender exert control over property while having the intent to commit deception, but
requires obtaining control over the property "by" means of deception.
{¶ 36} The majority opinion cites State v. Keith, 2008-Ohio-348 (12th Dist.), for the
proposition that the state could prove theft by deception through evidence establishing
"that the defendant had the intent to permanently deprive the owner of the property at the
time appellant obtained control over it." Id. at ¶ 21. This quote from Keith implies that
the state need not prove that an act of deception occurred in conjunction with obtaining
or exerting control over the property. The quote suggests that simply having a guilty mind
state at the time of obtaining possession would establish the offense. But the majority
opinion did not quote the first sentence from the same paragraph in Keith, which lists the
following elements of the offense: "Thus, in order to prove theft by deception, the state
needed to prove that appellant (1) knowingly obtained control over the property (2)
by knowingly deceiving (3) with the purpose of depriving the owner of the property."
(Boldface added.) Id. The sentence of Keith that the majority cites is simply an imprecise
and inaccurate summary of the very elements laid out in the immediate prior sentence in
Keith. The majority also cites State v. Wilson, 2007-Ohio-5187 (12th Dist.), describing
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that case as standing for the proposition that "theft by deception requires obtaining control
over property with the purpose of depriving the owner of the property through the means
of trickery." (Majority Opinion at ¶ 10.) But I read Wilson differently, as Wilson applies
the same nexus requirement between obtaining control of property and the act of
deception that I apply here. Wilson at ¶ 9 (explicitly stating that R.C. 2913.02[A][3]
"provides that no person shall, with purpose to deprive the owner of property or services,
knowingly obtain or exert control over property or services by deception.") (Emphasis
added.).
{¶ 37} The majority opinion also implies that my analysis "places an unnecessary
burden on Wal-Mart's [sic] customer service associates—essentially elevating entry level
employees to store detectives—by requiring them to sniff out unlawfully deceptive
schemes like the one executed by Faircloth in this case." I do not agree with this
characterization of my analysis, but even if it were correct, my analysis merely applies the
words the General Assembly enacted in the text of the statute. If the statute has an ill
effect, the General Assembly can amend the statute. In any event, it is for an employer
to decide what actions it should require, permit, or prohibit its employees from taking with
regard to confronting potential thieves, and a holding that the state only proved attempted
theft by deception in this case would be unlikely to impact such decisions. The majority
also states that "Despite the implication from the dissent's reasoning, store employees
must not be required to let merchandise be possessed outside the store before
confronting someone in the middle [of] a theft offense." I have stated nothing of the sort,
and I do not believe the statute requires store employees to wait until someone committing
a theft offense is leaving the store to confront them. On the contrary, the Walmart
employees in this case appropriately confronted Faircloth while still in the store for her
criminal offense of attempted theft. My analysis turns not on whether Faircloth
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successfully deceived anyone or when she was confronted by Walmart employees, but
rather on whether she obtained or exerted control over property "by deception." She did
not do so when she put the rug in her cart, but she did attempt to do so when she
attempted to convince someone at the customer service desk to either give her $95 cash
or allow her to take the rug from the store, and it is for that attempted crime that she
should be convicted.
{¶ 38} It is easy to imagine other scenarios in which a customer may be confronted
for a perceived violation of R.C. 2913.02(A) prior to the customer leaving the store,
including for deceptive acts that violate R.C. 2913.02(A)(3). For example, a customer
who, as in Cleveland v. Flynn, 2018-Ohio-3585, hid video games under her coat would
have obtained or exerted control over the property by a deceptive act and could be
convicted under R.C. 2913.02(A)(3) even if store personnel confronted and stopped the
customer before the customer left the store.
{¶ 39} I would therefore sustain Faircloth's Assignment of Error No. 1, vacate
Faircloth's theft conviction, dismiss Assignment of Error No. 2 as moot, and remand for
the trial court to enter a conviction for attempted theft by deception, and for sentencing
and such other further proceedings as may be appropriate.
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