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State v. Brogden

Court of Appeals of Ohio, First District, Hamilton

February 28, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
ASHLEY BROGDEN, Defendant-Appellant.

         Criminal Appeal From: Hamilton County Municipal Court TRIAL NO. 16CRB-30238

         Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause

          Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and Christopher Liu, Assistant City Prosecutor, for Plaintiff-Appellee,

          Raymond T. Faller, Hamilton County Public Defender, and Demetra Stamatakos, Assistant Public Defender, for Defendant-Appellant.

          OPINION

          Zayas, Judge.

         {¶1} Ashley Brogden appeals her conviction, following a bench trial, for theft, in violation of R.C. 2913.02(A)(1). In two assignments of error, she challenges the sufficiency and manifest weight of the evidence supporting her conviction, and argues that the trial court erred by denying her the right of allocution. The state concedes the allocution error. We affirm the finding of guilt, but reverse the sentence, and remand the matter for resentencing.

         Facts and Procedural History

         {¶2} On October 31, 2016, Brogden was charged with one count of theft, a misdemeanor of the first degree, for refusing to return a set of car keys to her neighbor, Jessica Wilson, who had previously allowed her to borrow the car. Brogden entered a not-guilty plea, and the case proceeded to a bench trial.

         {¶3} At trial, Wilson testified that she owned the car and identified the Ohio Certificate of Title that confirmed she owned the car. Hassan Dunn, Brogden's father, had given Wilson the car in 2015. Wilson further testified that she had allowed Brogden to use the car for purposes of work and childcare since Wilson owned it. After an argument, their friendship ended and Wilson no longer allowed Brogden to drive her car.

         {¶4} Wilson called the police, and Officers Zucker and Eve responded. Eve testified that he spoke with Wilson and learned that Brogden had Wilson's car keys. Eve accompanied Zucker to Brogden's apartment.

         {¶5} Zucker testified that he knocked on Brogden's apartment door, asked her several times to give him the keys, and she refused. Brogden presented a copy of a title to Zucker, claiming the car was hers. Zucker explained to Brogden that the car was titled to Wilson and belonged to her.

          {¶6} Ultimately, Zucker arrested Brogden for theft, retrieved the keys, and allowed her to remove her personal belongings from the car, because there was only one set of car keys for the car. Afterwards, he returned the keys to Wilson.

         {¶7} The trial court found Brogden guilty of theft because she had repeatedly refused to return the keys. At the sentencing hearing, the trial court addressed Brogden's counsel, but did not address Brogden and give her an opportunity to speak. The trial court sentenced Brogden to 60 days in jail and court costs. The sentence was stayed pending appeal.

         Sufficiency and ...


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