State v. Vitale , 96 Ohio App. 3d 695 ( 1994 )

I respectfully dissent from the majority's decision to reverse appellant's conviction. After a thorough review of the record before this court, I believe the trial court did not err 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 through June 21, 1991, inclusive. I also believe that the state presented evidence which, if believed, could convince the average mind of appellant's guilt beyond a reasonable doubt.

To fully understand my position, it is necessary to revisit the facts of this case.

I The record reveals that in approximately February 1991, appellant purchased a 1990 Grand Prix pace car with turbo power from its original owner for $27,500. On April 25, 1991, appellant was involved in an automobile accident, during which the car sustained extensive damage. Upon the recommendation of his friend, Paul Formicelli, appellant took the car to National Auto Body ("National") for an estimate of the cost of repair. National is owned and operated by James Amos, who at the time was Formicelli's future father-in-law.

Amos testified that on May 1, 1991, appellant and Formicelli came to Amos' body shop, located at 1869 East 79th Street in Cleveland, Ohio, for the purpose of obtaining a quote of the cost of repairing appellant's car. According to Amos, appellant was very concerned about his $1,000 insurance deductible and told Amos that in order for National to get the repair job, it would somehow have to save him the cost of the deductible. Amos said he agreed to this term, and they then entered into an oral agreement for National to perform the repairs. Amos did not give appellant a written estimate of the cost of repair at this time.

Shortly thereafter, an appraiser for appellant's insurer, Bankers and Shippers, went to National, inspected the damage to appellant's car, and estimated the total cost of repair to be $6,049.27. Relying on this estimate as a working guideline, Amos contacted appellant and told him he could repair the car for $6049.27. Amos said appellant again expressed concern about his $1,000 deductible. Amos told appellant the only way he knew to lessen the cost of the repair job was to "rob Peter to pay Paul." Amos said that after some further discussions, he agreed to perform the repairs for the amount of the insurance check,i.e., $5,049.27. Amos also said that appellant gave him no instructions on where he was to cut corners in order to save the deductible. Amos claimed he never assured appellant he would perform every item of repair listed in the appraiser's report.

Amos also testified regarding the repairs made to the car. Specifically at issue were the repairs made to the hood of the car. Amos testified that he originally ordered a new factory turbo hood for the car, at a cost of $1,621, but was having trouble getting the hood from the supplier because of back orders at the factory. After waiting several weeks for the turbo hood, Amos said he canceled the order because when the damaged hood was removed, he discovered that it was not a turbo hood but, rather, was a standard factory Grand Prix hood that had been converted into a turbo hood. Based on this discovery, Amos said he replaced the damaged non-turbo hood with a new factory standard hood, which he converted into a turbo hood by cutting two holes in it and inserting vents. By converting the standard Grand Prix hood to a turbo hood, Amos saved appellant approximately $700. Although he could not specify when, Amos claimed he told appellant he was using a converted hood instead of a factory turbo hood.

On June 14, 1991, the repairs were completed, and appellant went to National to pick up his car. Amos said after appellant inspected the entire car, he expressed great pleasure with the quality of the repairs. Upon inquiring about payment, appellant told Amos he thought Bankers and Shippers had sent the insurance check directly to National. Amos then telephoned Bankers and Shippers and was told the check had not been sent out yet but would be mailed directly to National the following week. According to Amos, approximately ninety-nine percent of the insurance companies National deals with send the insurance proceeds directly to National and not to the insured. Based on these factors, Amos said he allowed appellant to leave with the car. As appellant was leaving, Amos gave him a final bill for $6,049.27. Amos said the bill did not account for the deductible and that appellant only owed $5,049.27 for the repairs.

When Amos did not receive the insurance check the following week, he called Bankers and Shippers and was told the check had been sent to appellant. Amos spoke to appellant about his outstanding bill on June 21, 1991, when appellant showed up at his home complaining about four or five repairs with which he was not satisfied. According to Amos, appellant said he would pay the bill when all of the repairs were completed to his satisfaction.

Amos said the repairs about which appellant complained included the front bumper alignment, the side molding, and some slight chips in the paint on the roof. Amos said appellant did not say anything about the replacement hood. Anxious to receive payment and satisfy appellant, Amos said he told appellant he would make the requested repairs but that it would take a couple of days. Amos said he offered appellant the use of his mother-in-law's car as a "loaner" until the repairs were finished.

Appellant left in the "loaner," but returned within a few minutes claiming he had a family reunion to attend that day out-of-town. Not wanting appellant to take his mother-in-law's car out-of-town, Amos agreed to give appellant his car back, but made appellant promise he would bring the car back for the repairs so he could get paid. Amos said appellant never brought his car back and that when he called appellant to inquire, appellant told him one of his friends was going to make the repairs. Amos said he made numerous efforts thereafter to contact appellant about his outstanding bill, to no avail. Amos said appellant never offered him any amount of money for the repairs he had performed.

Consequently, in July 1991, Amos met with Cleveland Police Detective David Hancock, a personal friend, to see what could be done to get appellant to pay his bill. Amos did not file criminal charges against appellant at this time because Hancock suggested Amos give appellant more time to make restitution.

Hancock testified that Amos contacted him again in September 1991 to inform him appellant had still not paid the bill. In response, Hancock contacted the county prosecutor's office, related the facts to them, and then contacted appellant and asked to meet with him.

Hancock met with appellant at the Fifth District Detective Bureau. During their meeting, appellant told Hancock he was not happy with the repairs. Hancock told appellant he was not interested in hearing about his dissatisfaction. After some further discussion, Hancock said appellant told him he would pay National within the next few days. Hancock said he told appellant that he had spoken with the county prosecutor's office and that if payment were not made within thirty days, he was going to take the matter to the grand jury.

After thirty days, Hancock contacted Amos and learned that appellant told Amos he was not going to pay the bill. Hancock tried several more times to contact appellant, but appellant never returned any of his telephone calls.

The state also called as a witness David Jacofsky. Jacofsky is an appraiser for Crawford and Company, specializing in automobile appraisals. Sometime around May 1, 1991, he received an assignment from Bankers and Shippers to go to National to do an appraisal of the damage to appellant's car. Jacofsky examined the car and found extensive damage to its left front. Jacofsky said the turbo hood needed to be replaced, and the cost of replacing a turbo hood was $1,621, which was the amount he authorized. Jacofsky did not know whether the hood that was damaged was an original factory turbo hood or a converted standard factory hood.

Jacofsky did not see the car again until sometime after he was subpoenaed to appear as a witness at trial. At the request of appellant's attorney, he met with appellant approximately one month before trial to re-examine the car. Jacofsky looked at the car for ten minutes and found that the paint on the front bumper did not match and was peeled and that a washer bottle and the hood were not original factory parts. Jacofsky did not find any alignment problem, although he did observe some problems with the roof and some of the moldings. Jacofsky stated, however, that he had never authorized any repairs for roof or molding damage. Jacofsky also stated that, in his experience, it was common for auto body shops to "cut corners" in order to save customers all or part of their deductible.

At the close of the state's case, the state renewed its pretrial motion to amend the indictment. Specifically, the state moved to amend the date of the offense listed on the indictment, June 14, 1991, to June 14, 1991 through October 15, 1991 or, in the alternative, from June 14, 1991 through June 21, 1991, inclusive. Appellant then moved the court for a judgment of acquittal pursuant to Crim.R. 29(A). The court took both motions under advisement. When trial reconvened, the court granted the state's motion to amend the indictment to conform to the evidence, changing the date of the offense from June 14, 1991 to June 14, 1991 through June 21, 1991, inclusive. Appellant did not request a continuance of the trial based upon the amendment. Appellant's motion for judgment of acquittal was granted in part. The court found the state's evidence insufficient to support a conviction of grand theft (value over $5,000) but sufficient to support a conviction for felony theft under R.C. 2913.02 (value between $300 and $5,000).

Appellant elected to present a defense case and to testify. Appellant testified that when he initially met with Amos, he agreed to let Amos repair his car but told Amos he had to use all factory parts. Appellant explained that the car was a limited edition collectible, and, therefore, it was extremely important that only factory parts be used to maintain the car's full value. Appellant said that when Amos told him it could take a while to receive some of the parts, he told Amos that was not a problem as his primary concern was to have the job done right. Appellant said he was going to pay Amos whatever it cost to have the job done properly. Appellant denied that it was part of their agreement that Amos save him his insurance deductible. Appellant said Formicelli told Amos that appellant had a $1,000 deductible and inquired whether Amos could save appellant this expense. Appellant said when Amos indicated that he might be able to save him some money, he told Amos that would be fine, but he wanted the car fixed properly because of its value as a collector's item.

Appellant said when he picked up his car on June 14, 1991, he cursorily inspected it and was generally pleased with the repairs. Appellant said Amos gave him a bill for $6,049.27 and demanded that he pay the full amount. After telling Amos he thought Bankers and Shippers sent the check directly to National, appellant said he offered Amos $2,000 so he could have the car for the weekend. Appellant said he intended to pay Amos the other $4,000 when the insurance check came. Appellant claimed Amos did not want the $2,000 at that time but allowed him to take the car anyway. Appellant said Amos never agreed to accept the $5,049.27 proceeds check as payment in full.

Appellant testified that sometime between June 14, 1991, the day he picked up his car, and June 21, 1991, he took the car to a friend, who was an experienced auto body worker, and learned that Amos had replaced the damaged hood with a converted, standard Grand Prix hood, that the paint on the front bumper did not match and was peeling, and that the bumper was out of alignment. On June 21, 1991, appellant said he drove the car to Amos' home to inform him about these problems. According to appellant, when he complained about the hood not being an original, Amos denied it and told him he had sent an employee to Detroit, Michigan specifically to pick up the hood.

Appellant told Amos he had not yet received the insurance check but that he would not pay him until these problems were fixed. Appellant said Amos told him he could fix the problems in about fifteen minutes, but he needed to take the car into the shop.

Appellant said after he drove away in the "loaner," he thought about Amos' claim that the hood was an original, decided he could not trust him, and decided to retrieve his car and take it to another body shop. To this end, appellant returned to Amos' home and told Amos he had a family reunion to attend later that day in Geneva, Ohio and that he needed his car. Appellant said he did, in fact, attend his family reunion later that day.

A few days later, appellant said he telephoned Amos and told him he had taken the car to three other body shops and had proof the hood was not a factory turbo hood. Appellant said Amos continued to deny the hood was not an original and demanded that he pay him $6,049.27. Appellant said he also told Amos that the car's frame had not been straightened out, that the bumper was probably an after-market, and that the bumper's surface had not been properly primed. Appellant claimed Amos told him these repairs were unnecessary. Relying on these other estimates, appellant said he offered to pay Amos between $2,500 and $3,000 for the repairs he did but that Amos said he would not take a penny less than $6,049.27.

Upon cross-examination, appellant acknowledged that he did not receive these other estimates until August 9, 1991. Appellant said he waited until then to give Amos a chance to resolve the dispute. Appellant further acknowledged that he had negotiated the insurance check shortly after he brought the car to Amos' home on June 21, 1991.

Appellant claimed that when he met with Hancock, Hancock told him "Jim Amos is his partner" and appellant had "better pay his partner the full $6049.27" or he would face criminal charges. Appellant said he called Amos after this meeting to try to resolve the matter. Appellant said Amos said, "Pay me the $6049.27 and this will be over." Appellant said he offered Amos $2,500 because the car still needed $3,000 worth of repairs but that Amos said, "It would be a cold day in hell before I take a penny less." Appellant said when he told Amos that perhaps the matter should be settled in civil court, Amos became angry and hung up on him.

At the close of the evidence, appellant renewed his Crim.R. 29 motion for judgment of acquittal. The trial court reserved ruling on the motion and indicated that it would rule as part of its overall decision. On July 20, 1992, the trial court overruled appellant's Crim.R. 29 motion and found appellant guilty of felony theft as in the amended indictment.

II I simply cannot agree with the majority's conclusion that appellant was denied his rights under Article I, Section 10 of the Ohio Constitution¹ when the trial court allowed the state, pursuant to Crim.R. 7(D), to amend the indictment to change the date of the offense from June 14, 1991 to June 14, 1991 through June 21, 1991, inclusive, to conform to the evidence.

Crim.R. 7(D), which sets forth the procedure for amending indictments, provides in pertinent part as follows:

"The court may at any time before, during, or after a trialamend the indictment, * * * 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 thename or identity of the crime charged. If any amendment is made to the substance of the indictment * * * or to cure a variance between the indictment * * * and the proof, the defendant is entitled to a * * * reasonable continuance, unless it clearly appears from the whole proceedings that the defendant has not been misled or prejudiced by the defect or variance in respect to which the amendment is made, or that the defendant's rights will be fully protected by proceeding with the trial * * *[.]" (Emphasis added.)

In accord with Crim.R. 7, an indictment may be amended during trial provided the name or identity of the offense with which a defendant is charged does not change. State v. O'Brien (1987),30 Ohio St. 3d 122, 30 OBR 436, 508 N.E.2d 144. The majority is of the opinion that an amendment to the date of a theft offense,ipso facto, is a substantive change in the identity of that offense requiring further grand jury action. Such a position, however, is inconsistent with the weight of decisional law holding that an indictment is not per se invalid when dates and times are not included, or are stated incorrectly, if such information is not material to the conduct charged or necessary to the defendant in preparation of a defense. See State v.Lawrinson (1990), 49 Ohio St. 3d 238, 239, 551 N.E.2d 1261, 1262;State v. Sellards (1985), 17 Ohio St. 3d 169, 171, 17 OBR 410, 411-412, 478 N.E.2d 781, 784 ("Ordinarily, precise times and dates are not essential elements of offenses. Thus, the failure to provide dates and times in an indictment will not alone provide a basis for dismissal of the charges. A certain degree of inexactitude of averments, where they relate to matters other than elements of the offense, is not per se impermissible or necessarily fatal to a prosecution."); State v. Wilson (1972),29 Ohio St. 2d 203, 58 O.O.2d 409, 280 N.E.2d 915; State v.Murrell (1991), 72 Ohio App. 3d 668, 672, 595 N.E.2d 982, 984;State v. Ambrosia (1990), 67 Ohio App. 3d 552, 557,587 N.E.2d 892, 895; State v. Miller (Dec. 6, 1993), Washington App. No. 92 CA 34, unreported, 1993 WL 524973; see, also, R.C. 2941.08 ("An indictment or information is not made invalid, and the trial, judgment, or other proceedings * * * affected: * * * (C) For stating the time imperfectly * * *.").

To successfully prove the theft charge in this case, the state was required to prove that appellant, with purpose to deprive National of property or services, knowingly obtained or exerted control over either the property or services without the consent of National or its authorized agent, or by deception. Time is not a substantive element of this theft offense and, therefore, was not an essential part of the indictment. Moreover, as far as any amendment to the date of the offense stated in the indictment is concerned, it was essential only that the amendment not change the name or identity of the offense charged. Unlike the majority, I do not believe that the date of a theft offense is inherently tied to the identity of that offense. In my opinion, there is simply no basis from which the conclusion can be reached, as does the majority, that by permitting the state to amend the indictment to expand its time frame by one week, the court, in effect, permitted the state to charge an additional, separate and distinct theft offense, i.e., one on June 21, 1991. Both before and after the amendment of the date of the offense, the indictment charged the same offense, theft of car repairs from National without its consent and/or by deception. Therefore, I would find that no further action by the grand jury was required.

Finally, I am unable to agree with the majority's statement that it is irrelevant under Crim.R. 7(D) whether the defendant suffers prejudice as a result of the amendment. See State v.O'Brien (1987), 30 Ohio St. 3d 122, 30 OBR 436, 508 N.E.2d 144 (Ohio Supreme Court affirmed defendant's conviction for child endangering, holding that amendment to indictment to include the requisite element of recklessness did not change the nature or identity of the offense. Court said under such circumstances amendment is permitted absent a showing of demonstrated prejudice to the defendant).

Nor do I believe that State v. Dilley (1989), 47 Ohio St. 3d 20, 546 N.E.2d 937, compels a different conclusion. Simply put,Dilley is the exception rather than the rule. In Dilley, the court held that the state cannot circumvent R.C. 2941.43, which requires the state to include in an indictment certain specifications as a mandatory condition to the imposition of an indefinite term of imprisonment, by resorting to Crim.R. 7. It was reasoned that R.C. 2941.43 was designed to preclude any question of prejudice to a defendant being placed in issue. It is in this situation, and this situation only, that the Ohio Supreme Court has dispensed with a showing of prejudice under Crim.R. 7. See State v. Richard (June 17, 1993), Cuyahoga App. No. 62645, unreported, 1993 WL 215382; Cleveland v. McClendon (Apr. 8, 1993), Cuyahoga App. No. 62045, unreported, 1993 WL 106953; State v. Bragg (June 27, 1991), Cuyahoga App. No. 58859, unreported, 1991 WL 127135; State v. Johnson (Mar. 28, 1991), Cuyahoga App. No. 57987, unreported, 1991 WL 41684.

In this case, there has been no showing that appellant was prejudiced by the amendment. I am compelled to point out that during the proceedings below, appellant did not even request a continuance after the court granted the motion to amend. Moreover, the record does not support the conclusion that the failure to provide appellant with the correct date of the theft was a material detriment to the preparation of his defense. Appellant's defense at trial was that he did not act with criminal purpose. In this regard, evidence of the date or time an offense is committed is irrelevant to the issue of whether a defendant charged with a theft offense acted with the requisite mental culpability.

Inasmuch as the amendment of the indictment did not change either the name or the identity of the offense charged and did not prejudice appellant by interfering with his ability to defend against the charge, the court acted properly when it permitted the amendment to be made. Accordingly, I would overrule appellant's first assignment of error.

III I also disagree with the majority's determination that the evidence was insufficient to support the theft conviction. It is now well settled that an appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to:

"[E]xamine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The 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." (Citation omitted). State v. Jenks (1991), 61 Ohio St. 3d 259, 574 N.E.2d 492, paragraph two of the syllabus. It is equally well settled that the credibility of the testimony and the weight of the evidence are primarily matters for the trier of fact. State v. DeHass (1967), 10 Ohio St. 2d 230, 39 O.O.2d 366, 227 N.E.2d 212.

In this case, the trial court found, beyond a reasonable doubt, that when appellant went to Amos' home on June 21, 1991 and retrieved his car, he knowingly obtained or exerted control over the car repairs and parts with the purpose to deprive National Auto of said property or services without its consent, in violation of R.C. 2913.02(A)(1). The court similarly found, beyond a reasonable doubt, that on June 21, 1991, appellant also knowingly and by deception obtained control over the car repairs and parts with the purpose to deprive National of said property or services, in violation of R.C. 2913.02(A)(3). My review of the record reveals sufficient probative evidence to support the judgment of the trial court.

In my opinion, the fact that National never obtained a lien on the car is of no consequence to the determination of whether National was the "owner" of any "property or services" which could have been the subject of a theft offense. R.C.2913.02(A)(1) does not require a mechanic to obtain a lien on a repaired car before it can be held that the mechanic owns the parts replaced or the services performed.

An "owner," for purposes of R.C. 2913.02, is defined in R.C.2913.01(D) as:

"[A]ny person, other than the actor, who is the owner of, or who has possession or control of, or any license or interest in property or services * * *."

"Services," for purposes of R.C. 2913.02, include "[l]abor, personal services, [or] professional services * * *." R.C.2913.01(E).

The state offered the testimony of Amos and a series of invoices from Classic Pontiac to demonstrate that Amos, on behalf of National, ordered and paid for parts which he then used to repair appellant's car. Indeed, appellant acknowledged that Amos performed at least $3,000 worth of work to his car. This evidence is sufficient to support the trial court's findings that National was the owner of property and services which were the subject of a theft offense.

I also disagree with the majority's opinion that the state failed to prove that appellant possessed the culpability necessary to commit theft, i.e., that he acted with "purpose" to "deprive" National of any property or services.

A person acts purposely, under R.C. 2913.02, when it is his specific intention to cause a certain result. R.C. 2901.22(A). The purpose with which a person does an act is determined from the manner in which it is done, the means used, and all other facts and circumstances in evidence. State v. Johnson (1978),56 Ohio St. 2d 35, 10 O.O.3d 78, 381 N.E.2d 637.

The element of "deprive," as used in R.C. 2913.02, is defined in R.C. 2913.01(C) as the "accept[ance], use, or appropriat[ion of] money, property, or services, with purpose not to give proper consideration in return for the money, property or services, and without reasonable justification or excuse of not giving proper consideration."

Appellant testified that on June 21, 1991, after he drove away in the "loaner," he thought about Amos' claim that the hood was an original, decided he could not trust him, and decided to retrieve his car and take it to another body shop. Thus, appellant returned to Amos' home and told Amos he had a family reunion to attend later that day in Geneva, Ohio and needed his car for this purpose.

Appellant then telephoned Amos and falsely told him he had taken the car to three other body shops and had proof the hood was not a factory turbo hood, that the frame had not been straightened out, that the bumper was probably an aftermarket, and that the bumper's surface had not been properly primed. Appellant said he then offered to pay Amos between $2,500 and $3,000 for the repairs. Appellant acknowledged that he had negotiated the insurance check shortly after he brought the car to Amos' home on June 21, 1991.

One entirely reasonable inference to be drawn from this testimony is that appellant, who at that point had no idea what other repairs needed to be done to the car, if any, did not intend to pay National the agreed upon price for the repairs.

It was the function of the factfinder to weigh the evidence and assess the credibility of the witnesses in arriving at its finding as to this element of the offense. Where reasonable minds can reach different conclusions upon conflicting evidence, determination as to what occurred is a question for the factfinder. It is not the function of an appellate court to substitute its judgment for that of the factfinder. State v.DeHass, supra. Even assuming, for argument purposes only, that appellant's theory of innocence was reasonable, the factfinder was free to believe or disbelieve that theory. By finding appellant guilty, there is no question that the factfinder did not believe his theory of innocence. Thus, in applying the appropriate standard of appellate review, I conclude that a rational trier of fact could have found this essential element of the crime proven beyond a reasonable doubt.

I also disagree with the majority's finding that there is no evidence that appellant knowingly obtained or exerted control over any property or services without National's consent. Appellant asserts that when Amos relinquished the car to him on June 21, 1991 to attend his family reunion, National relinquished any and all interest it had in the car which could be the subject of a theft offense.

Appellant testified that when he returned to Amos' home on June 21, 1991, it was his intent to retrieve the car to have the outstanding repairs performed by someone other than National because he did not trust Amos. Rather than tell this to Amos, appellant told him he needed his car to attend a family reunion out-of-town. Not wanting appellant to drive his mother-in-law's car out-of-town, Amos did as appellant asked and gave him back his car. Before doing so, however, Amos made appellant promise to bring the car back for the repairs appellant said were needed. Appellant, by his own admission, told Amos he would pay his bill when these repairs were completed. This evidence is sufficient to support the trial court's findings that appellant knowingly obtained or exerted control over property or services without National's consent.

From a review of all of the evidence, it is my opinion that there was sufficient evidence going to each and every element of the crime of theft which, if believed, could convince the average mind that appellant was guilty beyond a reasonable doubt. Therefore, I would overrule appellant's second assignment of error.

IV Although not addressed by the majority, I would also overrule appellant's third assignment of error, wherein appellant contends that his due-process rights were violated when he was charged in a one-count indictment with theft without consent in violation of R.C. 2913.02(A)(1) and theft by deception in violation of R.C. 2913.02(A)(3). Appellant argues that charging him in this duplicitous manner rendered the indictment fatal because it failed to place him on notice that he was being charged with both types of theft since a charge for theft without consent is inconsistent with a charge of theft by deception which, according to appellant, is larceny with the consent of the owner.

It must be noted, at the outset, that appellant did not raise an objection to the adequacy of the indictment at the trial level. Under the provisions of Crim.R. 12(B),² it is incumbent upon the defendant, in order to preserve his right on appeal, to object to the indictment, before trial, on the grounds it was defective.

Where a party fails to interpose a specific objection to an indictment prior to trial, the purported error, if any, is waived, absent a finding of plain error. Crim.R. 52(B); State v.Miranda (Apr. 16, 1992), Cuyahoga App. Nos. 59924 and 59925, unreported, 1992 WL 79763; State v. Maynard (June 18, 1989), Cuyahoga App. No. 55413, unreported, 1989 WL 62042; Cleveland v.Macasek (Jan. 15, 1987), Cuyahoga App. No. 51441, unreported, 1987 WL 5446.

The Ohio Supreme Court has made it clear that courts of appeals should take notice of plain error charily, see State v.Long (1978), 53 Ohio St. 2d 91, 7 O.O.3d 178, 372 N.E.2d 804, to correct only particularly egregious errors — those errors that "seriously affect the fairness, integrity or public reputation of judicial proceedings," United States v. Atkinson (1936),297 U.S. 157, 160, 56 S. Ct. 391, 392, 80 L. Ed. 555, 557, and then only when it can be said that, "but for the error, the outcome of the trial clearly would have been different." State v. Watson (1991), 61 Ohio St. 3d 1, 6, 572 N.E.2d 97, 103; State v. Craft (1977), 52 Ohio App. 2d 1, 6 O.O.3d 1, 367 N.E.2d 1221.

Turning now to consider the issue of whether the purported defect in the indictment at issue herein rendered appellant's theft conviction invalid, the Ohio Supreme Court has recognized that where a single offense may be committed in any one of two or more different ways, a count in an indictment which charges the commission of the offense conjunctively in two or more ways is not duplicitous, provided there is no repugnancy between the ways charged. State v. Daniels (1959), 169 Ohio St. 87, 8 O.O.2d 56, 157 N.E.2d 736.

In this case, there is no repugnancy between the averment that appellant purposely deprived National of property or services without its consent and the averment that appellant purposely deprived National of property or services by deception. Both averments may be true at the same time. SeeState v. King (July 18, 1989), Franklin App. Nos. 88AP-665 and 88AP-1082, unreported, 1989 WL 83577. A clear reading of R.C.2913.02 and case law reveals that consent is not an element of, nor a defense to, the offense of theft by deception. State v.Clifton (1989), 65 Ohio App. 3d 117, 583 N.E.2d 326; State v.Richards (Dec. 29, 1988), Cuyahoga App. No. 54888, unreported, 1988 WL 140558; State v. Schnuck (Jan. 26, 1983), Hamilton App. No. C-820232, unreported, 1983 WL 5402; State v. Welles (Oct. 2, 1985), Montgomery App. No. 8845, unreported, 1985 WL 6939.

Nevertheless, even if the indictment were duplicitous, the defect was not fatal. R.C. 2941.28 provides that "[no] indictment or information shall be quashed, set aside, or dismissed for any of the following defects: * * * (B) That there is a misjoinder of the offenses charged in the indictment or information, or duplicity therein."

To the extent that appellant argues that the indictment failed to adequately put him on notice that he was being charged with violations of both R.C. 2913.02(A)(1) and (A)(3), the indictment and the bill of particulars clearly apprised appellant that he was being charged with multiple violations of R.C. 2913.02 and that he would be required to defend against the charges that he committed theft without consent and/or theft by deception.

In light of the above, I would find that no error occurred, let alone plain error, and, accordingly, I would overrule appellant's third assignment of error.

For all the foregoing reasons, I would affirm the trial court's judgment.

¹ Section 10, Article I, Ohio Constitution provides, in part, as follows:

"[N]o person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury * * *."

² Crim.R. 12(B) provides, in relevant part, as follows:

"(2) Defenses and objections based on defects in the indictment, information, or complaint (other than failure to show jurisdiction in the court or to charge an offense, which objections shall be noticed by the court at any time during the pendency of the proceeding) * * *[.]"