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State v. Scott

Court of Appeals of Ohio, Tenth District

December 21, 2017

State of Ohio, Plaintiff-Appellee,
v.
Lillie A. Scott, Defendant-Appellant.

         APPEAL from the Franklin County Court of Common Pleas, C.P.C. No. 15CR-2437

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for appellee.

          Wolfe Van Wey & Associates, LLC, and Stephen T. Wolfe, for appellant.

          DECISION

          HORTON, J.

         {¶ 1} Defendant-appellant, Lillie A. Scott ("Scott"), appeals from a jury verdict finding her guilty of theft, in violation of R.C. 2913.02, of rent money owed to WC Management, a property management company. For the reasons set forth below, we reverse Scott's conviction.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         {¶ 2} A grand jury indicted Scott on one count of theft, in violation of R.C. 2913.02, on May 19, 2015. The indictment alleged that between September 2 and September 12, 2014, Scott:

[D]id with purpose to deprive the owner, WC Management, of property or services, to wit: U.S. currency, did knowingly obtain or exert control over the property or services without the consent of the owner or person authorized to give consent and/or beyond the scope of the express or implied consent of the owner or person authorized to give consent and/or by deception.

         {¶ 3} Because the indictment alleged that Scott had stolen property or services valued at more than $1, 000, but less than $7, 500, the theft was charged as a fifth degree felony. R.C. 2913.02(B)(2). (May 19, 2015 Indictment.)

         {¶ 4} Trial commenced on February 22, 2016. After the jury was empaneled, but before opening arguments, Scott's attorney moved to exclude any mention of Close to Home Realty, another property management company, as a victim in the case. She noted that the indictment only identified WC Management as the victim of the alleged theft. (Feb. 23, 2016 Tr. Vol. 2 at 28-29.)

         {¶ 5} The prosecutor argued that Scott had worked as an employee for both entities and that WC Management was the ultimate victim because both companies "were meshed together in such a way that WC Management did suffer the loss" from the theft. (Tr. Vol. 2 at 30.) Scott's attorney countered that the state was attempting to allow a third party, WC Management, to step into the shoes of the actual victim, Close to Home Realty, after reimbursing it for its loss. (Tr. Vol. 2 at 30-32.)

         {¶ 6} The state then asserted that Scott's motion was untimely under Crim.R. 12(C)(2), and offered to amend the indictment under Crim.R. 7 so that Close to Home Realty would also be named as a victim. Scott's attorney noted that allowing such an amendment would prejudice the defense because she had been "not allowed to get any information off of that second subpoena, which was specifically for Close to Home." (Tr. Vol. 2 at 38.) The trial court expressed concern that if Close to Home Realty were the actual victim, "it would be prejudicial to your client to add that company now as a victim, " and declined to allow an amendment of the indictment under Crim.R. 7. (Tr. Vol. 2 at 39.) After this discussion, Scott's trial began.

         {¶ 7} Deborah Shannon, a bookkeeper, testified that WC Management was owned by Steve Close, while Close to Home Realty was owned by his son, Alex Close. (Tr. Vol. 2 at 68.) She testified that Steve Close received "all the income" from Close to Home Realty. (Tr. Vol. 2 at 72.) Shannon testified that although she had previously handled the books for Close to Home Realty while another bookkeeper, Sharon Halloy, kept the WC Management books, Shannon now handled the books for both companies. (Tr. Vol. 2 at 73-74.)

         {¶ 8} Shannon described Scott as a receptionist who sat at the front desk and "took applications, greeted people when they came in the door, took work orders from tenants for maintenance, " and received rent payments from tenants. (Tr. Vol. 2 at 74-75.) The process for accepting rent payments involved writing a receipt from a receipt book and then placing the money and a copy of the receipt in the upstairs accounting office. (Tr. Vol. 2 at 75.) The employee accepting payment placed the money in a safe. The same safe was used for the money for both WC Management and Close to Home Realty, but the bookkeepers would then separate the money before making each company's bank deposits, as the companies had accounts at separate banks. (Tr. Vol. 2 at 76, 135.) The office was locked when the bookkeepers left. Although the office had a security camera, it ...


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