State v. Metheney

I concur in affirming the defendant-appellant's conviction of dereliction of duty but I dissent from the reversal of her conviction of theft in office.

I believe the majority has misinterpreted the Committee Comment to R.C. 2913.02 and, thus, the provisions of the statute itself, and has overlooked certain facts as well.

The pertinent Committee Comment to R.C. 2913.02 reads in full:

"The section expands upon the common law requirement that the taking of property must occur simultaneously with a purpose to deprive the owner of the property. Formerly, a wrongful conversion or embezzlement could not constitute larceny, since the intent to deprive was formed after the property came into the offender's possession. Berry v. State, 31 Ohio St. 219, 27 Am.Rep. 506 (1877); Porter v. State, 8 Ohio App. 231 (Scioto Co.App., 1917). Under the new section, the basic elements of the offense must still coincide, but conversion or embezzlement now constitutes theft, since the section defines theft as exertingcontrol (as opposed to initially gaining control over property orservices) beyond the scope of the owner's consent, and with purpose to deprive the owner of the same." (Emphasis added.)

I believe there is sufficient evidence that Matheney exerted control over the electrical services of the village through the use of her office. She did not have to "obtain" the property (or services) as the majority asserts. Further, the village did not authorize her to receive as much electricity "as she could use," but rather to receive all she could use and would pay for. That is what she confined everyone else to.

Certainly, the law does not limit theft to what you receive yourself. A person can surely steal for another's benefit, especially a spouse or an employer.

Additionally, merely because a thief later pays for the stolen property or services does not invalidate the crime if the elements are there at the time of its commission.

Finally, there is ample evidence over and above the mere "nonpayment" for the electricity to present a question of purpose to deprive the owner. Metheney concealed the nonpayment, lied about it to others, prevented anyone else, including the other members of the board, from reviewing the records. And, it would appear, she cut off the service of all other delinquent customers except her husband and her employer.

I would affirm the judgment below in total.