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United States v. Stone

January 24, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ERIC STONE, DEFENDANT.



The opinion of the court was delivered by: Chief Magistrate Judge Michael R. Merz

DECISION AND ORDER

This case came on for trial to the Court sitting without a jury on charges of trespass under the Veterans Administration regulations and attempted theft under 18 U.S.C. § 13 as assimilating Ohio Revised Code § 2913.02. At the close of the Government's evidence, on Defendant's motion for judgment of acquittal under Fed. R. Crim. P. 29, Government's counsel conceded that the evidence was insufficient to support a charge of trespass. The Court concluded that the evidence was insufficient to support a charge of attempted theft, but permitted the case to proceed on the lesser included offense of unauthorized use of property in violation of Ohio Revised Code § 2913.04. Defendant then rested without presenting any evidence.

Upon considering the relevant Ohio case law, the Court finds that the evidence is insufficient for conviction of unauthorized use of property. At most, Defendant had momentary possession of some unidentified piece of the property of another. Under Ohio law, such possession is insufficient to satisfy the statutory element of "use." State v. Canellos, 91 Ohio App. 3d 701, 702 (Ohio App. 12th Dist. 1993); State v. Patel, 1997 WL 169343 (Ohio App. 2d Dist. 1997).

The Defendant is accordingly acquitted of unauthorized use of property and discharged from responding further in this case.

Michael R. Merz Chief United States Magistrate Judge

20070124

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