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State v. Wedell

8/23/2001



JUDGMENT: Affirmed and Restitution Order Vacated


Defendant Randy Wedell appeals from his conviction for theft. For the reasons set forth below, we affirm defendant's conviction but vacate the order of restitution entered in connection with defendant's sentence.


On March 22, 2000, defendant was indicted for one count of theft, in violation of R.C. 2913.02. The state alleged that defendant obtained a wacker roller, valued at between $5,000 and $100,000, from ABC Rental with purpose to deprive the owner of the roller and without the consent of the owner. The matter proceeded to trial before the court on August 2, 2000.


The state presented testimony from Alan Zatik and Strongsville Police Det. Wayne Feuerstein. Zatik, the owner of ABC Rental, in Strongsville, testified that on June 4, 1999, defendant agreed to lease a wacker roller, a type of riding dirt compactor, from ABC Rental for a period of twenty-eight days. Defendant paid $1,374.09 for the rental and signed an agreement with ABC Rental that indicated that the roller was due on July 2, 1999 at 7:56 a.m. and that the lease would continue and that rental charges would continue to accrue in the event that the equipment was not returned as provided in the agreement.


Zatik further testified that the roller was not returned by the contract date and by the end of July 1999, he began calling defendant in order to obtain its return. Zatik stated that he spoke to defendant on approximately four separate occasions and requested return of the roller. Defendant did not return the roller and by November 1999, Zatik sent him statutory notice, pursuant to R.C. 2913.72, demanding return of the property. The notice was sent to defendant's home and to the address listed on the check with which defendant rented the roller. Zatik eventually contacted the Strongsville Police Department in January or February 2000 and the roller was returned on February 29, 2000.


Finally, Zatik testified that the roller is valued at just under $13,000. He also stated that he lost approximately $9,000 in rentals for the equipment.


Det. Feuerstein testified that he spoke to defendant on February 28, 2000 and warned him that charges were going to be issued in the matter.


The trial court subsequently convicted defendant of theft, as charged in the indictment. He was sentenced to three years of community control sanction and ordered to pay ABC Rental restitution in the amount of $10,900.92. Defendant now appeals and assigns four errors for our review.


Defendant's first, second and third assignments of error are interrelated and state:


THE TRIAL COURT ERRED IN CONVICTING APPELLANT OF THEFT IN SPITE OF THE STATE'S FAILURE TO SHOW THAT APPELLANT OBTAINED THE PROPERTY WITHOUT THE CONSENT OF THE OWNER. THE TRIAL COURT ERRED IN CONVICTING APPELLANT OF THEFT IN SPITE OF THE STATE'S FAILURE TO SHOW THAT AT THE TIME HE OBTAINED THE ROLLER, APPELLANT NEVER INTENDED TO RETURN IT.


THE TRIAL COURT ERRED IN CONVICTING APPELLANT OF THEFT IN LIGHT OF THE CONTRACTUAL RELATIONSHIP BETWEEN THE PARTIES.


Within these assignments of error, defendant asserts, essentially, that his conviction is not supported by sufficient evidence because the essential elements of the offense of theft were not proven by the state.


The question of whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Thompkins (1997), 78 Ohio St.3d 380, 386.


In State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, the Court described the role of the appellate court in reviewing a challenge to the sufficiency of the e

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