Jambs M. Porter, Judge.
Defendant-appellant Steven Vitale appeals from his conviction for theft (R.C. 2913.02) following a bench trial. This case arose out of a dispute over defendant’s failure to pay for car repairs which he claimed were not properly performed. Defendant argues that he was convicted on evidence that was not presented to the grand jury; that the state’s evidence was insufficient to prove the elements of theft; that his conviction was against the manifest weight of the evidence; and that the judgment of the trial court cannot stand because it is duplicitous, inconsistent and repugnant. For the reasons hereinafter stated, we find that defendant’s appeal has merit and reverse.
The defendant was indicted for theft alleged to have occurred on June 14, 1991. The indictment recited that on or about that date defendant:
“Unlawfully and knowingly did obtain or exert control over car repairs with the purpose to deprive the owner, National Auto Body, of said property or service, without the consent of the owner or person authorized to give consent and/or knowingly and by deception obtained or exerted control over car repairs with the purpose to deprive the owner, National Auto Body, of said property or services.
“The value of said property or services being $5,000.00 or more.”
The state’s bill of particulars confirmed that the offense occurred “on or about June 14, 1991, at approximately 12:00 p.m., at the location of 1869 East 79th Street in the City of Cleveland.”
The evidence at trial disclosed that in February 1991, defendant purchased a 1990 Grand Prix “pace car” with turbo power for $27,500. The car was involved in an accident on April 25, 1991, and defendant took it to National Auto Body
(“National”) for repairs on May 1, 1991. National was owned an operated by James Amos.
Amos testified that defendant told him that, in order to get the repair job, National would have .to save defendant the $1,000 deductible on his car insurance policy.
Shortly thereafter, an appraiser for defendant’s insurer inspected the damaged car at National and estimated the repair cost at $6,049.27. Amos contacted defendant and said he would repair the car for the estimate. Defendant again expressed concern about the deductible. Amos said the only way he could lessen the cost was “to rob Peter to pay Paul,” but finally agreed to the repairs for $5,049.27. Defendant was insistent that the most important thing was that the repairs were properly made with original factory parts because of the unique value of the car.
National went ahead and repaired the car using a standard factory hood rather than an original equipment turbo hood. Amos testified he saved defendant $700 by converting the standard hood rather than paying for the more expensive turbo hood.
On June 14, 1991, defendant came to National to pick up the car. Defendant had not yet received the repair check from the carrier. Amos called defendant’s insurer who confirmed it had not yet sent out the repair check and was told that it would go out the following week. Amos gave defendant a bill for $6,042.27 and defendant took the ear home.
When Amos didn’t receive the check, he called the insurer who told him the check had been sent to defendant. On June 21, 1991 defendant went to Amos’ house and complained that the repairs were not done properly,
i. e.,
front bumper alignment, the side molding and slight chips in the roof paint. Defendant testified he also complained to Amos about not installing an original turbo hood, but Amos denied that, saying that defendant said nothing about the hood. In any event, defendant left his car with Amos and drove off in Amos’ mother-in-law’s car as a loaner. However, after a few minutes, he returned and reclaimed his car which he needed to go out of town to a reunion. Defendant testified that he did need his car to go to a reunion, but he also decided he couldn’t trust Amos to do the repairs because he had lied to him about the hood. The trial court specifically found that Amos had lied about the hood both to defendant and in court. Defendant never took the car back to Amos but later obtained estimates from three other body shops to fix the car. All three submitted estimates of approximately $3,000.
In July 1991, Amos contacted a Cleveland police detective to see what he could do about collecting the repair bill. The detective, an admitted personal friend
and partner of Amos, testified to putting pressure on defendant,
ie.,
if he didn’t pay up he would face criminal charges. The detective testified that he declined to listen to defendant’s complaints about the repair work.
Defendant eventually offered to pay $2,500 to $3,000 to National, but Amos insisted on “not a penny less” than $6,047.27 and the matter lingered on until criminal action was commenced.
At the conclusion of the state’s case, the state moved to amend the indictment to show the theft offense was committed from “June 14, 1991 through June 21, 1991 inclusive.” Over objection, at the conclusion of all the evidence, the court allowed the amendment, overruled defendant’s Crim.R. 29(A) motion for acquittal and found defendant guilty of felony theft between $300 and $5,000.
This timely appeal followed.
“I. The trial court erred in permitting the state to amend the indictment under Criminal Rule 7(D) to reflect essential facts not in the indictment presented to the grand jury, over the objection of appellant.”
We find that the trial court erred in allowing the state to amend the indictment pursuant to Crim.R. 7(D) to change the date of the offense from June 14, 1991 to “June 14, 1991 through June 21, 1991 inclusive.” The court stated that the defendant “wouldn’t be misled or prejudiced by at least correcting that defect in that limited fashion.” Despite the court’s assurances, there is a grave risk in this case that defendant was convicted by the trial court of a felony on evidence that was not presented to the grand jury. “[N]o person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a grand jury * * Section 10, Article I, Ohio Constitution. This provides an inalienable protection to the defendant that he will be tried on the same essential facts on which the grand jury found probable cause. As stated in
State v. Headley
(1983), 6 Ohio St.3d 475, 478-479, 6 OBR 526, 529, 453 N.E.2d 716, 720:
“This provision guarantees the accused that the essential facts constituting the offense for which he is tried will be found in the indictment of the grand jury.
Harris v. State
(1932), 125 Ohio St. 257, 264 [181 N.E. 104, 106]. Where one of the vital elements identifying the crime is omitted from the indictment, it is defective and cannot be cured by the court as such a procedure would permit the court to convict the accused on a charge essentially different from that found by the grand jury.
Id.; State v. Wozniak
(1961), 172 Ohio St. 517, 520, [18 O.O.3d 58, 59], 178 N.E.2d 800, 802.”
The indictment herein only specified the date of the offense as on or about June 14, 1991. The defense sought a bill of particulars. “[T]he state must, in
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Jambs M. Porter, Judge.
Defendant-appellant Steven Vitale appeals from his conviction for theft (R.C. 2913.02) following a bench trial. This case arose out of a dispute over defendant’s failure to pay for car repairs which he claimed were not properly performed. Defendant argues that he was convicted on evidence that was not presented to the grand jury; that the state’s evidence was insufficient to prove the elements of theft; that his conviction was against the manifest weight of the evidence; and that the judgment of the trial court cannot stand because it is duplicitous, inconsistent and repugnant. For the reasons hereinafter stated, we find that defendant’s appeal has merit and reverse.
The defendant was indicted for theft alleged to have occurred on June 14, 1991. The indictment recited that on or about that date defendant:
“Unlawfully and knowingly did obtain or exert control over car repairs with the purpose to deprive the owner, National Auto Body, of said property or service, without the consent of the owner or person authorized to give consent and/or knowingly and by deception obtained or exerted control over car repairs with the purpose to deprive the owner, National Auto Body, of said property or services.
“The value of said property or services being $5,000.00 or more.”
The state’s bill of particulars confirmed that the offense occurred “on or about June 14, 1991, at approximately 12:00 p.m., at the location of 1869 East 79th Street in the City of Cleveland.”
The evidence at trial disclosed that in February 1991, defendant purchased a 1990 Grand Prix “pace car” with turbo power for $27,500. The car was involved in an accident on April 25, 1991, and defendant took it to National Auto Body
(“National”) for repairs on May 1, 1991. National was owned an operated by James Amos.
Amos testified that defendant told him that, in order to get the repair job, National would have .to save defendant the $1,000 deductible on his car insurance policy.
Shortly thereafter, an appraiser for defendant’s insurer inspected the damaged car at National and estimated the repair cost at $6,049.27. Amos contacted defendant and said he would repair the car for the estimate. Defendant again expressed concern about the deductible. Amos said the only way he could lessen the cost was “to rob Peter to pay Paul,” but finally agreed to the repairs for $5,049.27. Defendant was insistent that the most important thing was that the repairs were properly made with original factory parts because of the unique value of the car.
National went ahead and repaired the car using a standard factory hood rather than an original equipment turbo hood. Amos testified he saved defendant $700 by converting the standard hood rather than paying for the more expensive turbo hood.
On June 14, 1991, defendant came to National to pick up the car. Defendant had not yet received the repair check from the carrier. Amos called defendant’s insurer who confirmed it had not yet sent out the repair check and was told that it would go out the following week. Amos gave defendant a bill for $6,042.27 and defendant took the ear home.
When Amos didn’t receive the check, he called the insurer who told him the check had been sent to defendant. On June 21, 1991 defendant went to Amos’ house and complained that the repairs were not done properly,
i. e.,
front bumper alignment, the side molding and slight chips in the roof paint. Defendant testified he also complained to Amos about not installing an original turbo hood, but Amos denied that, saying that defendant said nothing about the hood. In any event, defendant left his car with Amos and drove off in Amos’ mother-in-law’s car as a loaner. However, after a few minutes, he returned and reclaimed his car which he needed to go out of town to a reunion. Defendant testified that he did need his car to go to a reunion, but he also decided he couldn’t trust Amos to do the repairs because he had lied to him about the hood. The trial court specifically found that Amos had lied about the hood both to defendant and in court. Defendant never took the car back to Amos but later obtained estimates from three other body shops to fix the car. All three submitted estimates of approximately $3,000.
In July 1991, Amos contacted a Cleveland police detective to see what he could do about collecting the repair bill. The detective, an admitted personal friend
and partner of Amos, testified to putting pressure on defendant,
ie.,
if he didn’t pay up he would face criminal charges. The detective testified that he declined to listen to defendant’s complaints about the repair work.
Defendant eventually offered to pay $2,500 to $3,000 to National, but Amos insisted on “not a penny less” than $6,047.27 and the matter lingered on until criminal action was commenced.
At the conclusion of the state’s case, the state moved to amend the indictment to show the theft offense was committed from “June 14, 1991 through June 21, 1991 inclusive.” Over objection, at the conclusion of all the evidence, the court allowed the amendment, overruled defendant’s Crim.R. 29(A) motion for acquittal and found defendant guilty of felony theft between $300 and $5,000.
This timely appeal followed.
“I. The trial court erred in permitting the state to amend the indictment under Criminal Rule 7(D) to reflect essential facts not in the indictment presented to the grand jury, over the objection of appellant.”
We find that the trial court erred in allowing the state to amend the indictment pursuant to Crim.R. 7(D) to change the date of the offense from June 14, 1991 to “June 14, 1991 through June 21, 1991 inclusive.” The court stated that the defendant “wouldn’t be misled or prejudiced by at least correcting that defect in that limited fashion.” Despite the court’s assurances, there is a grave risk in this case that defendant was convicted by the trial court of a felony on evidence that was not presented to the grand jury. “[N]o person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a grand jury * * Section 10, Article I, Ohio Constitution. This provides an inalienable protection to the defendant that he will be tried on the same essential facts on which the grand jury found probable cause. As stated in
State v. Headley
(1983), 6 Ohio St.3d 475, 478-479, 6 OBR 526, 529, 453 N.E.2d 716, 720:
“This provision guarantees the accused that the essential facts constituting the offense for which he is tried will be found in the indictment of the grand jury.
Harris v. State
(1932), 125 Ohio St. 257, 264 [181 N.E. 104, 106]. Where one of the vital elements identifying the crime is omitted from the indictment, it is defective and cannot be cured by the court as such a procedure would permit the court to convict the accused on a charge essentially different from that found by the grand jury.
Id.; State v. Wozniak
(1961), 172 Ohio St. 517, 520, [18 O.O.3d 58, 59], 178 N.E.2d 800, 802.”
The indictment herein only specified the date of the offense as on or about June 14, 1991. The defense sought a bill of particulars. “[T]he state must, in
response to a request for a bill of particulars * * * supply specific dates and times with regard to an alleged offense where it possesses such information * * *.”
State v. Sellards
(1985), 17 Ohio St.3d 169, 17 OBR 410, 478 N.E.2d 781, syllabus. In response, the state’s bill of particulars further specified that the offense occurred “on or about June 14, 1991 at approximately 12:00 p.m., at the location of 1869 East 79th Street, in the City of Cleveland, Ohio.” If the state had knowledge that the offense charged could also have occurred on June 21 at Amos’ home, then it was obliged to so state. Since it didn’t, it must be presumed that the evidence presented to the grand jury was limited to the June 14 episode identified in the state’s bill of particulars and not some other date, time or place to which no reference is made. As this court stated in
State v. Bernstein
(1937), 25 Ohio Law Abs. 291, 303:
“In considering the questions raised by the first assignment of error, it is well to keep in mind that when the prosecuting attorney files a bill of particulars, the state is confined to the items therein set down. 14 R.C.L. 191. This rule applies to each count of the indictment.”
Thus, the defendant herein was entitled to a bill of particulars that presented the ultimate facts upon which the state relied to establish its case, and the state “should be restricted in its proof to the indictment and the particulars as set forth in the bill.”
State v. Miller
(1989), 63 Ohio App.3d 479, 485-486, 579 N.E.2d 276, 281;
State v. Collett
(App.1944), 44 Ohio Law Abs. 225, 233, 58 N.E.2d 417, 419. But, the trial court herein acquitted the defendant of any offense occurring on or about the June 14th date: (“But I find there was no theft on that day * * * ”). Instead, the trial court convicted the defendant of theft which it found occurred on June 21,1991 at the alleged victim’s house, not his place of business. The risk then is squarely presented that defendant was convicted of an offense on evidence that was never presented to the grand jury. In applying the similar protection of the Fifth Amendment, this potential must be considered critical, as in
United States v. Ford
(C.A.6, 1989), 872 F.2d 1231, 1236:
“Absent language indicating the grand jury’s intent to permit a conviction based on more than one incident of criminal conduct, a court cannot assume that a grand jury would have included in its indictment an additional incident of criminal conduct.
See [Ex parte
]
Bain,
[ (1887) ], 121 U.S. [1] at 10, 7 S.Ct. [781] at 786 [30 L.Ed. 849 at 852]. It is therefore possible that the jury convicted Ford based on an incident of possession not intended by the grand jury to be part of the charge. This frustrates the fifth amendment grand jury indictment guarantee.”
Under such circumstances, we find the conviction cannot stand and must be reversed. Under Crim.R. 7(D), the trial court had discretion to amend the indictment “provided no change is made in the name or identity of the crime charged.” Obviously, if the identity of the crime moves from events on June 14
to different events on June 21, at a different time and place, the identity of the crime has been improperly changed. Where the amendment to an indictment requires proof of an essential factual element which the original indictment did not, “the amendment of the indictment changed the identity of the crime charged in contravention of Crim.R. 7(D).”
State v. Woody
(1986), 29 Ohio App.3d 364, 365, 29 OBR 493, 494, 505 N.E.2d 646, 647;
United States v. Ford, supra.
The issue is not, as the state argues, and the trial court found, that defendant was not surprised or prejudiced by the belated amendment — the issue is whether he was convicted on the same evidence on which he was indicted. See
State v. Barnecut
(1988), 44 Ohio App.3d 149, 542 N.E.2d 353. In that case, the court stated:
“Appellant’s due process rights to a fair trial were violated when the trial court allowed the indictment to be amended with regard to the first two counts after the state’s case-in-chief was completed. If no evidence is presented that the alleged offenses occurred within the bracketed time frames specified in the indictment, the counts in the. indictment relating to those offenses should be dismissed. Any variance of proof outside the parameters of time established by the indictment may constitute a separate offense. This analysis suggests a bright-line test,
i.e.,
that an accused be tried for the crimes alleged in the indictment, and that any evidence outside the time period established in the indictment may constitute a separate offense requiring separate process * * *. Final judgment, per App.R. 12(B) is entered dismissing those two counts.”
Id.
at 153, 542 N.E.2d at 356-357.
Finally, the Supreme Court made clear in
State v. Dilley
(1989), 47 Ohio St.3d 20, 546 N.E.2d 937, that when the identity of the crime is changed, it does not matter whether the defendant can show prejudice. The purpose of the rule is to avoid the potential of prosecutorial abuse. The court held:
“In general terms, whether Dilley suffered prejudice because of the amendment to the indictment has no bearing on the resolution of this case. R.C. 2941.143 is mandatory and cannot be circumvented in this manner. While the record of this case does not blatantly suggest prosecutorial abuse, to permit such amendments could possibly lead to such abuse, and intervention by the grand jury process is thus necessary.
“We therefore hold that the state may not amend an indictment so as to include a specification contained in R.C. 2941.143 without first presenting the specification to the grand jury or following the other alternatives contained therein. The state may not avoid the clear mandates of R.C. 2941.143 and circumvent the grand jury process, as was done in this case.”
Id.
at 22-23, 546 N.E.2d at 939.
Since the state, by amendment to the indictment herein, changed the identity of the crime, the trial court erred in permitting the amendment. We cannot allow a procedure which would “permit the court to convict the accused on a charge essentially different than that found by the grand jury.”
State v. Headley, supra.
See, also,
Russell v. United States
(1962), 369 U.S. 749, 770, 82 S.Ct. 1038, 1050, 8 L.Ed.2d 240, 254-255, which summarizes the point as follows:
“To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him.”
This assignment of error is sustained.
“II. The verdict of the trial court is against the manifest weight and sufficiency of the evidence and must be reversed.”
We also find from the evidence presented that the state failed to prove several essential elements of the crime of theft beyond a reasonable doubt under R.C. 2913.02(A)(1) and (A)(3). The trial court should have granted defendant’s Crim.R. 29(A) motion to acquit at the conclusion of all the evidence.
A charge of theft under R.C. 2913.02 required the state to prove, beyond a reasonable doubt, that defendant, with purpose to deprive National Auto of property or services, knowingly obtained or exerted control over either the property or services without the consent of National Auto or its authorized agent or by deception.
We find the evidence was insufficient, as a matter of law, to establish that: (1) the alleged victim was the owner or had property or services subject to theft by defendant; (2) defendant possessed the purpose to deprive the alleged victim of his property without reasonable justification; (3) defendant knowingly obtained or exerted control over the property without the owner’s consent; and (4) defendant obtained the property by deception.
A garageman’s right to retain possession of a repaired car pending payment depends on his common law lien.
Commonwealth Loan Co. v. Berry
(1965), 2 Ohio St.2d 169, 170, 31 O.O.2d 321, 321, 207 N.E.2d 545, 546. Therefore, the state was obliged to prove that the garageman had a superior possessory right to the vehicle over the registered owner in order for the repairs to be subject to theft. It is elementary that an artisan must retain possession of the property in order to assert a possessory interest or lien thereon. If he voluntarily surrenders the improved chattel, his possessory lien is lost. See
Baum v. Handy
(1889), 46 Ohio St. 560, 22 N.E. 869;
Cleveland Auto Top & Trimming
Co. v. Am. Finance Co.
(1931), 124 Ohio St. 169, 172, 177 N.E. 217, 218. By relinquishing possession, the lien and his possessory interest is lost and he becomes a general creditor. Repossession cannot reestablish the lien.
Am. Sec. Corp. v. Martin
(1948), 83 Ohio App. 477, 38 O.O. 497, 84 N.E.2d 306. In
Church of Bible Understanding v. Bill Swad Leasing Co.
(1981), 2 Ohio App.3d 382, 2 OBR 455, 442 N.E.2d 78, paragraph one of the syllabus states:
“The voluntary surrender of possession of a chattel, by one attempting to assert an artisan’s lien thereon, results in the loss of said lien forever. If the lien claimant is improperly deprived of his possession, however, as for instance by fraud, the lien is not lost.”
In the instant case, the trial court specifically found that the garageman, James Amos, voluntarily returned possession of the car on the date of first delivery, June 14, 1991 without any deceptive inducement by defendant. The trial court stated: “I find there was no theft that day because the check clearly had not been issued to the defendant.” Thus, on June 14,1991, defendant legally reclaimed full possession of his own car free of the lien, and Amos correspondingly relinquished any interest in said car which could be the subject of theft.
His momentary repossession of June 21, 1991, by defendant’s leave, did not operate to reestablish a lien once extinguished because he made no further repairs to the vehicle at that time. The defendant was within his rights to change his mind about letting National cure the repairs and retaking possession of his car. Since National had no possessory right to the vehicle on June 21, there was nothing for defendant to steal.
The state also failed to show beyond a reasonable doubt that defendant had the requisite criminal purpose to deprive National of any property. Defendant was the owner of a rare “pace car” worth $27,500. National had returned it to him and presented a repair bill for over $6,000. Defendant was dissatisfied with the repairs and felt National had cheated and lied to him by installing a standard hood rather than a “turbo” hood necessary to preserve the value of the car. The trial court agreed that Amos was lying about the hood and that, in fact, defendant’s suspicions were justified. There was no evidence that defendant had the “purpose to deprive” required by the statute. R.C. 2913.01(C)(3) defines “deprive” as: “accept, use, or appropriate money, property, or services, with purpose not to give proper consideration in return therefor, [for the money, property or services,] and without reasonable justification or excuse for not giving proper consideration.”
Defendant offered to pay Amos $2,500 to $3,000 for the repairs that had been properly made which clearly evidenced his offer of “proper consideration.” He had “reasonable justification or excuse” for not giving more;
i.e.,
Amos was lying
about the hood and defendant would have to expend at least $3,000 to put the right hood on the car and fix the other repairs. Even if defendant was mistaken in his belief, there was no evidence that he had a criminal intent to cheat Amos out of the cost of legitimate repairs, especially when Amos was insisting on full payment for work, some of which (the false hood) the court found was improperly done.
There is also no evidence that defendant knowingly obtained or exerted control over the property without the owner’s consent. When defendant picked up the car at National on June 14, National gave up its possessory lien and became a general creditor. The labor and parts constituting the repairs became part of the car which was released with the consent of the owner. Furthermore, the burden was on the state to show that when defendant picked up the car he had no intention of paying for the repairs. There was no such evidence. Compare
State v. Bakies
(1991), 71 Ohio App.3d 810, 814, 595 N.E.2d 449, 452, where this court stated:
“The issue is not, as the state claims, whether appellant deceived the victim by telling her the money would be paid back two to three weeks later; rather, the issue is whether the state showed that, at the time appellant borrowed the money he never intended to pay it back.” (Footnote omitted.)
On June 21, when defendant dropped the car off at Arnos’’» house and then took it back, no new right to possession arose because National did not work on it or make any improvement creating a new lien. There again, National consented to the release of the car. It was no fraud for defendant to say he needed the car to go to his reunion when the evidence was undisputed that he went to the reunion. Furthermore, this was not a material deception because defendant had an absolute right to possession of the vehicle at that time. It was his car — he could take it back at any time.
Finally, we note that the criminal process is a blunt instrument to solve civil or commercial disputes. It should only be invoked under extraordinary circumstances, which we do not find here. If every repairman or vendor can hold the threat of criminal prosecution over the heads of his dissatisfied customers, the overburdened criminal justice system will have to be greatly expanded to assist in collection efforts. See, also,
State v. Fyffe
(1990), 67 Ohio App.3d 608, 588 N.E.2d 137, where a home repair contractor was indicted for grand theft (R.C. 2913.02[A][3]) for knowingly obtaining or exerting control over $6,566 by deception by charging a homeowner for repairs which were not done. The court held that the contractor’s Crim.R. 29(A) motion for acquittal should have been granted.
“Simply because appellant charged more for his work than someone else might have, and simply because appellant did not complete the work in accordance with Grashel’s standards, does not prove that appellant knowingly deprived [the homeowner] of services or her money by deceiving her.”
Id.
at 615, 588 N.E.2d at 141-142. By the same token, simply because defendant refused to pay the agreed sum for unsatisfactory repairs does not prove a violation of the offense charged.
“If anything, the evidence at trial presents a typical breach of contract action where the alleged breach constitutes a failure of substantial performance of the contract by appellant.”
Id.
at 617, 588 N.E.2d at 142.
In short, we find that the evidence was insufficient to sustain the state’s case beyond a reasonable doubt and a judgment of acquittal should have been entered in defendant’s favor.
In view of our disposition of the first two assignments of error, it is not necessary to address Assignment of Error III. See App.R. 12(A)(1)(c).
Judgment reversed and defendant discharged.
David T. Matia, P.J., concurs.
Nugent, J., dissents.