State v. Henderson

389 N.E.2d 494, 58 Ohio St. 2d 171, 12 Ohio Op. 3d 177, 1979 Ohio LEXIS 408
CourtOhio Supreme Court
DecidedMay 16, 1979
DocketNo. 78-1158
StatusPublished
Cited by146 cases

This text of 389 N.E.2d 494 (State v. Henderson) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Henderson, 389 N.E.2d 494, 58 Ohio St. 2d 171, 12 Ohio Op. 3d 177, 1979 Ohio LEXIS 408 (Ohio 1979).

Opinion

Celebkezze, C. J.

Appellant has raised a sole proposition of law that reads as follows; “When a trial judge accepts a plea of guilty of an accused, this opérales as a conviction despite the fact that the judge delays sentencing.” More specifically, the issue to be resolved on this appeal concerns the intent of the General Assembly in enacting the phrase “previously been convicted of a theft offense” as it is used in R. C. 2913.02(B).

The provisions of that statute indicate the following:

“(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either:
“(1) Without the consent of the owner or person authorized ’ to give consent;
“(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent;
“(3) By deception;
“ (4) By threat.
“(B) Whoever violates this section is guilty of theft. If the value of the property or services stolen is less than one hundred fifty dollars, violation of this section is petty [173]*173theft, a misdemeanor of the first degree. If the value of the property or services stolen is one hundred fifty dollars or more, or if "the property stolen is any of the property listed in section 2913.71 of the Revised Code, or if the offender has previously been convicted of a theft offense, then violation of this section is grand theft, a felony of the. fourth degree.” (Emphasis added.)

As illustrated by the statutory language, a critical distinction is made between the offenses of grand and petty theft. The more serious offense arises if any of three circumstances is present: (1) the value of the property is over $150, (2) R. C. 2913.71 property is involved or, as in the present appeal* (3) there has been a previous conviction for a theft offense.

In State v. Gordon (1971), 28 Ohio St. 2d 45, this court-addressed the subject of a “second offense” for purposes of enhancing tbe penalty provided by R. C. 4519.99, to be imposed for a violation of R. C. 1549.04(B) — operating a motor vehicle without tbe owner’s consent. The court concluded that the existence of a prior offense was an “ele-, ment” of the, subsequent crime and that tbe burden of proof imposed upon the state was the same as that required for any other element of the offense stating, at page 48, as follows:

“We reach the same result here. The defendant faces a possible felony conviction for a second offense, while a first offense is punishable only as a misdemeanor. The state must be put to its proof regarding the identity of the accused in the prior offense and must demonstrate the fact of such prior offense beyond a reasonable doubt. The jury must then find that fact to be established and also convict the defendant of the second violation, in order for the court to impose the greater punishment.”

That- same reasoning is equally pertinent in the present appeal and we conclude, therefore, that a prior conviction for purposes of R. C. 2913.02(B) is an element of the offense of grand theft and must be demonstrated beyond a reasonable doubt. . . • ■', •

[174]*174Moreover, since a prior conviction is' considered an integral element of the crime of grand theft, R. G. 2901.04 (A) requires that its definition “shall be strictly construed against the state, and liberally construed in favor of the accused.” With that emphasis on a liberal construction in mind, the question becomes, “How do we define the word ‘convicted’ for purposes of R. C. 2913.02 (B)?”

Appellant contends that the trial court’s-finding that a guilty'plea had been entered in the earlier case was sufficient to increase the penalty provisions of the statute. Thus, the word “convicted” should be defined as the legal ascertainment of guilt, exhibited in the record before us as the entry of a plea of guilty to the charge of receiving Stolen property.

Iii support of its argument, appellant refers us to State v. Brantley (1965), 1 Ohio St. 2d 139. In Brantley, as in Gordon, supra, the court was confronted with a statute which punished an initial violation of its provisions as a misdemeanor and raised the penalty to that of a felony “for each subsequent offense.” The issue raised’ in that appeal, however, was whether a “.subsequent offense” under the statute must occur after a conviction for a-first offense. The terms “offense” and “conviction” were analyzed and defined, at pages 141-142, in the following mhnner:

“The ordinary moaning of the word ‘offense’ is ‘the doing that which a penal Isav forbids to be done or omitting to do what it commands.’ On the other hand,’ a ‘conviction’ is ‘that légal proceeding which ascertains the guilt of the party upon which the sentence or judgment is founded.’ Bouvi'er’s: Law Dictionary (Baldwin’s Century Ed. 1940). In other words, a conviction is a legal ascertainment that an offense has been committed. A conviction is not an essential element of an offense although an offense is always a prerequisite to a, conviction.
■“'Thus, it would be necessary, in order to affirm the judgment'of the Court of Appeals, either t5 give other than their ordinary meaning to the words ‘first offense’ [175]*175in the statute or to add words to the statute which the stat-: ute does not contain.
“As stated in State v. Dale (1900), 110 Iowa 215, 217, 81 N. W. 453, ‘the statute does not, in terms, reqriire that' the convictions should antedate the offense charged * * *.. "What reason is there for adding something to the language of the statute?7
“As stated in State v. McCormick (1928), 104 N. J. Law 288, 140 A. 297:
“ ‘The “offense77 took place when the alleged criminal act was committed irrespective of the time of conviction or the plea of guilty, so long, at least, as sucli conviction or plea of guilty took place before the return of the indictment charging a similar offense as a second, offense.’ ”

Although the court in Brantley, supra, utilized the restricted definition of conviction, as urged by the appellant herein, it did so for the sole purpose of ascertaining the difference between the words “conviction” and “offense” for purposes of that particular statute. There is no indication the court intended that narrow definition to bo universally applied throughout the Criminal Code.

The opinion of the court merely stated, for purposes of the statute before it, that a “subsequent offense” need only occur after a prior offense, rather than a prior con-, vietion, to enhance the penalty contained therein. In contrast, R. C. 2913.02(B) does not merely refer to a theft ‘•offense,” but further qualifies that term by indicating that a conviction is also required to increase the punishment.

Guided by. the mandate of R. C. 2901.04(A) and the fact that a prior conviction is an element of the crime of grand theft, we are convinced the General Assembly, intended more than the mere ascertainment of guilt when it referred to one who had been “previously convicted of a, theft offense.” Prior case law, as well as provisions found, in both the Criminal Rules and the new Criminal Code, enacted together with R. C.

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Cite This Page — Counsel Stack

Bluebook (online)
389 N.E.2d 494, 58 Ohio St. 2d 171, 12 Ohio Op. 3d 177, 1979 Ohio LEXIS 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-henderson-ohio-1979.