[Cite as State v. Cheatham, 2026-Ohio-3679.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
CASE NO. CA2025-06-048
Appellee, :
OPINION AND
vs. : JUDGMENT ENTRY
9/21/2026
RASHON L. CHEATHAM, :
Appellant. :
:
CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT
Case No. 2023 CRB 3452
Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas A. Horton,
Assistant Prosecuting Attorney, for appellee.
W. Stephen Haynes, Clermont County Public Defender, Matthew V. Faris, Assistant Public Defender, for appellant.
OPINION
BYRNE, P.J.
{¶ 1} Rashon L. Cheatham appeals from his conviction in the Clermont County
Municipal Court of one count of first-degree misdemeanor theft in violation of R.C.
Clermont CA2025-06-048
2913.02(A)(2). For the reasons discussed below, we reverse the judgment of the trial
court and vacate Cheatham's conviction.
I. Factual and Procedural Background
{¶ 2} Cheatham was required to wear a Secure Continuous Remote Alcohol
Monitoring ("SCRAM") bracelet in connection with an alleged offense that is unrelated to
this appeal. While he was still required to wear the SCRAM bracelet, Cheatham
absconded. After nearly a year and a half, police found Cheatham and arrested him
pursuant to outstanding bench warrants. The municipal court arraigned Cheatham on a
charge of theft of the SCRAM bracelet, to which he pleaded not guilty. Later, Cheatham's
theft charge was amended from a fifth-degree felony to a first-degree misdemeanor.
{¶ 3} The Clermont County Municipal Court held a one-day bench trial on the
amended theft charge. We summarize the relevant trial testimony below.
A. Dan Malott's Testimony
{¶ 4} The State's only witness at trial was Clermont County Municipal Court
Electronic Probation Officer Dan Malott. Malott testified that he was assigned as
Cheatham's probation officer after Cheatham was placed on a reporting bond for the
previously-mentioned alleged offense that is unrelated to this case. Malott reviewed the
conditions of Cheatham's bond with him. At trial, Malott described those bond conditions
as "No drugs. No alcohol. Submit to tox screens if requested. Wear a SCRAM bracelet at
[Cheatham's] expense and no driving."
{¶ 5} Cheatham received the SCRAM bracelet on August 4, 2023. Malott testified
that Cheatham signed a SCRAM bracelet agreement before Malott placed the SCRAM
bracelet on him. Malott described that agreement as stating that Cheatham "was to wear
the SCRAM bracelet at his cost until the Court decided to . . . well, until the case was
disposed of, bond was over or the bond was modified by the Court." (Ellipsis in original.).
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{¶ 6} Malott testified he "believed," but was "not sure," that Cheatham failed to
report on October 5, 2023 and that the court issued a bench warrant as a result. On crossexamination, Malott admitted he was uncertain as to the reason for the bench warrant
and its date.
{¶ 7} Malott also testified that when Cheatham did not appear for his October 11,
2023 probation appointment, Malott filed a complaint with the municipal court for theft
because he could not locate Cheatham or the SCRAM bracelet.
{¶ 8} The court inquired whether Malott eventually received the SCRAM bracelet
back from Cheatham or someone else. Malott answered that "a female" returned the
SCRAM bracelet to Malott at Cheatham's bond hearing on March 24, 2025.
B. The Defense's First Crim.R. 29 Motion
{¶ 9} After the State rested its case-in-chief, the defense moved for an acquittal
pursuant to Crim.R. 29, arguing that "[t]here was actually no evidence of [Cheatham's]
purpose to deprive." The State responded that Cheatham acted with purpose to deprive
because "he made no effort to return the device" and because "[he] signed an entry asking
to be hooked to this device as a condition of bond."
{¶ 10} The court denied the defense's Crim.R. 29 motion and held that "[t]aken in
the light most favorable to the state" there was "sufficient evidence of [Cheatham's]
intention to deprive probation of their SCRAM unit."
C. Cheatham's Testimony and Renewed Crim.R. 29 Motion
{¶ 11} Cheatham testified in his defense. But because Cheatham's testimony is
not relevant to the resolution of this appeal (for reasons explained below), we will not
summarize that testimony here.
{¶ 12} After the defense rested, the defense again moved for acquittal under
Crim.R. 29. The court denied the defense's motion and proceeded to closing arguments.
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D. Conviction and Sentencing
{¶ 13} After hearing the trial testimony and closing arguments, the trial judge stated
orally that she found Cheatham guilty and explained her reasoning. That reasoning was
based in large part on Cheatham's testimony. The court then issued a judgment entry
finding Cheatham guilty of theft under R.C. 2913.02(A)(2) and imposing a sentence that
included a jail term and court costs.
{¶ 14} Cheatham appealed, raising two assignments of error.
II. Law and Analysis
A. Sufficiency of the Evidence
{¶ 15} Cheatham's first assignment of error states:
APPELLANT'S CONVICTION IS BASED UPON
INSUFFICIENT EVIDENCE.
{¶ 16} In support of his first assignment of error, Cheatham challenges the
sufficiency of the evidence. He specifically argues that the trial court erred on this basis
(1) when it denied his first Crim.R. 29 motion, which was made at the conclusion of the
State's case; (2) when it denied his second Crim.R. 29 motion, which was made at the
conclusion of his defense case; and (3) when it convicted him of theft. In all three
instances, he argues there was insufficient evidence to prove two specific elements of
theft, which he describes as the "purpose" element and a separate "deprive" element.
Prior to analyzing any of these putative errors, we will describe the applicable law and
standard of review, and address a misconception in Cheatham's overall argument.
1. Sufficiency of the Evidence Standard
{¶ 17} An appeal "challenging the sufficiency of the evidence invokes a due
process concern and raises the question whether the evidence is legally sufficient to
support the verdict as a matter of law." State v. Brummett, 2024-Ohio-2332, ¶ 9 (12th
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Dist.), citing State v. Clinton, 2017-Ohio-9423, ¶ 165. "When reviewing the sufficiency of
the evidence underlying a conviction, an appellate court examines the evidence to
determine whether such evidence, if believed, would convince the average mind of the
defendant's guilt beyond a reasonable doubt." State v. Madden, 2024-Ohio-2851, ¶ 31
(12th Dist.), citing State v. Paul, 2012-Ohio-3205, ¶ 9 (12th Dist.). Therefore, "[t]he
relevant inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph
two of the syllabus. "'If the state fails to present sufficient evidence on every element of
an offense, then convicting a defendant for that offense violates the defendant's right to
due process of law.'" State v. Thompson, 2023-Ohio-559, ¶ 34 (12th Dist.), quoting State
v. Messenger, 2022-Ohio-4562, ¶ 13.
2. Applicable Law: Theft
{¶ 18} Ohio's criminal theft statute, R.C. 2913.02(A) lists five ways a person can
commit the criminal offense of theft. The statute states that:
(A) No person, with purpose to deprive the owner of property or services,
shall knowingly obtain or exert control over either the property or services
in any of the following ways:
(1) Without the consent of the owner or person authorized to give
consent;
(2) Beyond the scope of the express or implied consent of the
owner or person authorized to give consent;
(3) By deception;
(4) By threat;
(5) By intimidation.
Whether a theft offense is a misdemeanor or felony, and the degree of such misdemeanor
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or felony, is determined by factors described in R.C. 2913.02(B)(2).
{¶ 19} In the case before us, Cheatham initially had the probation department's
consent to possess the SCRAM bracelet before he arguably exceeded that consent by
absconding while still retaining the SCRAM bracelet. As a result, he was charged and
convicted of first-degree misdemeanor theft in violation of R.C. 2913.02(A)(2). As stated
above, that form of theft applies when an offender obtains or exerts control over property
"[b]eyond the scope of the express or implied consent of the owner or person authorized
to give consent." R.C. 2913.02(A)(2).
{¶ 20} In this appeal, Cheatham does not dispute that he knowingly obtained or
exerted control over the SCRAM bracelet, which is one of the elements of theft described
in R.C. 2913.02(A). Cheatham's appellate brief is unclear on whether he disputes that he
obtained or exerted control over the SCRAM bracelet "beyond the scope of the express
or implied consent" of the probation department, which is another element of theft
described in R.C. 2913.02(A)(2). Regardless, he does not develop an argument with
regard to the "beyond the scope" element. Because Cheatham either does not contest or
does not develop an argument to contest these two elements of his theft offense, we will
not analyze these elements. See Dudley v. Dudley, 2019-Ohio-4309, ¶ 10 (12th Dist.),
citing In re G.E.S., 2008-Ohio-2671, ¶ 53 (9th Dist.) (finding that an appellate court will
not "create arguments on behalf of an appellant because it is not the duty of an Ohio
appellate court to raise arguments for the parties.").
{¶ 21} Instead, Cheatham argues that the State did not produce sufficient evidence
to prove (1) that he "deprived" the probation department of the SCRAM bracelet, or (2)
that he did so with the required "purpose" of depriving the probation department of the
SCRAM bracelet. The words "deprive" and "purpose" are found in R.C. 2913.02(A). We
will address Cheatham's two sufficiency arguments in turn.
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3. "Deprive"
{¶ 22} First, Cheatham argues that the State failed to present sufficient evidence
at trial to prove that he "deprive[d]" the probation department of the SCRAM bracelet
under any of the statutory definitions of "deprive" set forth in R.C. 2913.01(C). As part of
this argument, Cheatham argues that the State failed to prove that the probation
department suffered a "hardship."
{¶ 23} This argument is based on an incorrect reading of the statute. The elements
of the theft offense do not include "depriv[ing]" the owner of the owner's property. R.C.
2913.02(A)(2). Instead, "deprive" only appears as part of the following phrase: "with
purpose to deprive the owner of property or services." (Emphasis added.) Id. Thus
"deprive" describes the specific kind of "purpose"—that is, the mens rea—that an offender
must have to violate the theft statute, but "deprive" is not itself an independent element
of theft. See State v. Faircloth, 2025-Ohio-878, ¶ 27 (12th Dist.), quoting R.C. 2913.02(A)
(describing the phrase "with purpose to deprive" as "indicat[ing] the mens rea with which
a 'person' must act to violate the statute"); State v. Goldberg, 2023-Ohio-2633, ¶ 36 (12th
Dist.) (finding sufficient evidence of "purposely deprived" element of R.C. 2913.02(A)(2)
theft offense).
{¶ 24} Because "deprive" is not an element of R.C. 2913.02(A)(2), we decline to
examine whether Cheatham "deprived" the probation department of its SCRAM bracelet.
We find no merit to Cheatham's argument about the word "deprive" as used in the theft
statute.
4. "Purpose to Deprive" Element
{¶ 25} Next, Cheatham argues that the State failed to present sufficient evidence
to prove that he acted with the "purpose" to deprive the probation department of its
SCRAM bracelet.
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{¶ 26} As explained above, the theft statute requires the State to prove that the
offender had the "purpose to deprive" the owner of property or services. R.C. 2913.02(A).
"[T]he phrase 'with purpose to deprive the owner of property or services' modifies 'person,'
and indicates the mens rea with which a 'person' must act to violate the statute." Faircloth,
2025-Ohio-878 at ¶ 27 (12th Dist.), quoting R.C. 2913.02(A).
{¶ 27} Because the relevant mens rea is not simply "with purpose," but rather "with
purpose to deprive," we must review the meaning of both "purpose" and "deprive" as used
in the theft statute.
{¶ 28} First, the mens rea of "purpose" is defined by statute: "A person acts
purposely when it is the person's specific intention to cause a certain result . . ." (Emphasis
added.) R.C. 2901.22(A).
{¶ 29} Second, as used in the theft statute and as relevant to the facts of this case,
"deprive" means to "[w]ithhold property of another permanently, or for a period that
appropriates a substantial portion of its value or use . . ." R.C. 2913.01(C)(1).1
{¶ 30} Thus, to prove theft under R.C. 2913.02(A)(2) under the circumstances in
this case, the State had an obligation to prove beyond a reasonable doubt that Cheatham
had the "specific intention" to "withhold" the SCRAM bracelet "permanently" or "for a
period that appropriate[d] a substantial portion of its value or use" when he exerted control
over the SCRAM bracelet beyond the scope of the probation department's consent. See
R.C. 2901.22(A); R.C. 2913.01(C)(1). The Seventh District Court of Appeals has
explained that R.C. 2913.02(A)(2) "requires evidence of intent to deprive at the time that
consent is withdrawn" to prove the offense of theft. (Emphasis added.) State v. Wieder,
2025-Ohio-2128, ¶ 47 (7th Dist.). Stated more precisely, theft under R.C. 2913.02(A)(2)
1. The statute contains other definitions of "deprive" that apply in circumstances not relevant to this case.
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requires evidence of purpose to deprive at the time the offender acts "[b]eyond the scope
of the express or implied consent of the owner or person authorized to give consent."
{¶ 31} "'Because, aside from an admission of guilt, no direct evidence of a
defendant's purpose can exist, the state must rely upon inferences from the surrounding
facts and circumstances to prove purpose.'" (Cleaned up.) State v. Jackson, 2014-Ohio3779, ¶ 19 (12th Dist.), quoting State v. Sidders, 2009-Ohio-409, ¶ 26 (3d Dist.). "An
individual's purpose or intent may . . . be established by circumstantial evidence." Jackson
at ¶ 19, citing State v. Widmer, 2012-Ohio-4342, ¶ 99 (12th Dist.). "'Circumstantial
evidence is the proof of facts by direct evidence from which the trier of fact may infer or
derive by reasoning other facts.'" (Cleaned up.) State v. Raleigh, 2010-Ohio-2966, ¶ 46
(12th Dist.), quoting State v. Wells, 2007-Ohio-1362, ¶ 11 (12th Dist.).
B. Cheatham's First Argument and Crim.R. 29 Motion
{¶ 32} We will first address Cheatham's argument that the trial court erred when it
denied the Crim.R. 29 motion for acquittal his counsel made after the State rested its
case-in-chief. Crim.R. 29(A) provides that the court "shall order the entry of a judgment
of acquittal . . . if the evidence is insufficient to sustain a conviction." "An appellate court
reviews the denial of a Crim.R. 29(A) motion under the same standard as that used to
review a sufficiency-of-the-evidence claim." State v. Creech, 2024-Ohio-5245, ¶ 92 (12th
Dist.), citing State v. Maloney, 2023-Ohio-2711, ¶ 40 (12th Dist.). In reviewing Cheatham's
first Crim.R. 29 motion, we are limited to reviewing the evidence that was presented by
the State before it rested its case, and we may not consider evidence offered by
Cheatham during his defense case-in-chief. State v. Fader, 2024-Ohio-3212, ¶ 11 (2d
Dist.), citing State v. Bailey, 2017-Ohio-2679, ¶ 17 (2d Dist.) ("Where a defendant
challenges the denial of a Crim.R. 29[A] motion made at the conclusion of the State's
case-in-chief, however, our review is limited to the evidence then available to the trial
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court."); State v. Harrell, 2024-Ohio-981, ¶ 74 (2d Dist.), citing Bailey at ¶ 17 ("We are
cognizant that an appellate court's review of a trial court's denial of a Crim.R. 29 motion
for acquittal at the end of the State's case is limited to the evidence then available to the
trial court."); State v. Miley, 114 Ohio App.3d 738, 742 (4th Dist. 1996). A court of appeals
may reverse a conviction when the State provided insufficient evidence during its casein-chief, even if the defendant later presented his or her own defense case that included
the admission of additional evidence. Miley at 741-42, 745.
{¶ 33} At the conclusion of the State's case, the only evidence in the record was
Malott's testimony. We conclude that Malott’s testimony, if believed, failed to prove beyond
a reasonable doubt that Cheatham had the "purpose to deprive" the probation department
of the SCRAM bracelet. This is because Malott only testified about the circumstances in
which Cheatham received the SCRAM bracelet, the rules that applied to his possession
of the SCRAM bracelet, the time period during which he possessed the SCRAM bracelet
and absconded, and the circumstances of the SCRAM bracelet's eventual return.
{¶ 34} Malott offered no testimony that would allow a factfinder to infer Cheatham's
state of mind in not returning the SCRAM bracelet. The closest Malott came to testifying
about information that might allow a factfinder to make an inference about Cheatham's
mens rea was his testimony about the length of time Cheatham retained the SCRAM
bracelet after he absconded. But evidence about the mere passage of time does not, by
itself, demonstrate that Cheatham had the "specific intention" to withhold the SCRAM
bracelet "permanently" or "for a period that appropriates a substantial portion of its value
or use" from the probation department. See R.C. 2913.01(C)(1). This is so because the
mere passage of time during which an offender retains the property beyond the consent
of its owner may be explained by any number of reasons. Some potential reasons may
be innocent and non-criminal, such the alleged offender simply forgetting that he
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possesses the property. Other explanations could be evidence of criminal offenses. But
without more facts in the record than simply the general time period in which the offender
possessed the property, it is impossible to infer what an offender's mental state was in
retaining the property, let alone prove the offender’s mental state beyond a reasonable
doubt. And that was the case here, where nothing in Malott's testimony was relevant to
Cheatham's mens rea.
{¶ 35} As a result, the trial court erred when it denied Cheatham's Crim.R. 29
motion for acquittal at the conclusion of the State's case. At that point in the trial, the
evidence was insufficient to sustain a conviction of theft and the court should have granted
the Crim.R. 29 motion for acquittal. Miley, 114 Ohio App.3d at 742. We therefore do not
need to analyze Cheatham's arguments concerning his second Crim.R. 29 motion or his
conviction, as the resolution of his first argument renders his subsequent arguments
moot. Id.
{¶ 36} We sustain Cheatham's first assignment of error.
C. Manifest Weight of the Evidence
{¶ 37} Cheatham's second assignment of error states:
THE TRIAL COURT ERRED IN ENTERING A FINDING OF
GUILTY BECAUSE SUCH VERDICT WAS AGAINST THE
MANIFEST WEIGHT OF EVIDENCE.
{¶ 38} In support of his second assignment of error, Cheatham argues that his theft
conviction should be reversed because it was against the manifest weight of the evidence.
However, our resolution of Cheatham's first assignment of error—on the basis of the lack
of sufficient evidence—renders Cheatham's manifest weight challenge moot. See State
v. Short, 2017-Ohio-7200, ¶ 22 (2d Dist.) ("Where there is insufficient evidence to support
a conviction, it will also necessarily be against the manifest weight of the evidence.");
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App.R. 12(A)(1)(c). We therefore decline to address Cheatham's second assignment of
error.
III. Conclusion
{¶ 39} We hold that there was insufficient evidence to find that Cheatham had the
purpose to deprive the State of its SCRAM bracelet, and therefore insufficient evidence
supporting his theft conviction. This holding renders Cheatham's manifest weight
argument moot.
{¶ 40} Judgment reversed and Cheatham's conviction for theft is vacated.
M. POWELL, J., concur.
PIPER, P.J., dissents.
PIPER, P.J., dissenting.
{¶ 41} By reversing the trial court's decision denying Cheatham's Crim.R. 29(A)
motion for acquittal made at the conclusion of the State's case-in-chief, my respected
colleagues inadvertently fail to recognize the correct law to apply and confuse what is
otherwise required when faced with a challenge to the sufficiency of the evidence. Our
review should not involve weighing or interpreting the State's evidence. For these
reasons, I must respectfully dissent.
The Applicable Law
{¶ 42} Given how the majority opinion applies the law to the facts, I am compelled
to offer my own rule-of-law statement.
Crim.R. 29(A) Standard
{¶ 43} Crim.R. 29(A) permits a motion for judgment of acquittal to be made by the
defendant or, on the trial court's own motion, at the close of either party's case. State v.
King, 2026-Ohio-2656, ¶ 11. Such a motion "tests the adequacy of the state's evidence
and requires a court to determine whether the state has met its burden of production at
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trial." State v. Schwartz, 2023-Ohio-1424, ¶ 11 (12th Dist.). "A motion for judgment of
acquittal under Crim.R. 29(A) must be granted by the trial court 'if the evidence is
insufficient to sustain a conviction of such offense or offenses.'" State v. Coker, 2025-Ohio-2051, ¶ 13, quoting Crim.R. 29(A). "An appellate court reviews the denial of a
Crim.R. 29(A) motion under the same standard as that used to review a sufficiency-ofthe-evidence claim." State v. Chisenhall, 2025-Ohio-4893, ¶ 39 (12th Dist.).
Sufficiency of the Evidence Standard
{¶ 44} A claim challenging the sufficiency of the evidence concerns "'that legal
standard which is applied to determine whether the case may go to the jury or whether
the evidence is legally sufficient to support the jury verdict as a matter of law.'" State v.
Thompkins, 1997-Ohio-52, ¶ 23, quoting Black's Law Dictionary (6th Ed. 1990). This is
why, as the majority noted, "a conviction based on legally insufficient evidence constitutes
a denial of due process." State v. Brinkman, 2026-Ohio-3190, ¶ 135. The relevant inquiry,
however, "'does not involve how the appellate court might interpret the evidence.'" State
v. Craver, 1991 Ohio App. LEXIS 4068, *4 (12th Dist. Aug. 26, 1991), quoting State v.
Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus, superseded by state
constitutional amendment on other grounds as stated in State v. Smith, 1997-Ohio-355,
¶ 49, fn. 4.
{¶ 45} Rather, when reviewing a sufficiency-of-the-evidence challenge, "[t]he
relevant inquiry is 'whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.'" State v. Roper, 2022-Ohio-244, ¶ 39 (12th Dist.),
quoting Jenks at paragraph two of the syllabus. Therefore, as is now well established,
"[i]n a sufficiency of the evidence inquiry, appellate courts do not assess whether the
prosecution's evidence is to be believed but whether, if believed, the evidence supports
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the conviction." State v. Carter, 2018-Ohio-29, ¶ 7 (8th Dist.), citing State v. Yarbrough,
2002-Ohio-2126, ¶ 79-80. "This court merely determines whether there exists any
evidence in the record that the trier of fact could have believed, construing all evidence in
favor of the state, to prove the elements of the crime beyond a reasonable doubt." State
v. Brummett, 2024-Ohio-2332, ¶ 9 (12th Dist.).
Theft in Violation of R.C. 2913.02(A)(2)
{¶ 46} The trial court found Cheatham guilty of theft in violation of R.C.
2913.02(A)(2). Under that statute, no person "with purpose to deprive the owner of
property or services" shall knowingly obtain or exert control over property or services
"[b]eyond the scope of the express or implied consent of the owner or person authorized
to give consent."
{¶ 47} "Deprive" means, among other things, to "[w]ithhold property of another
permanently, or for a period that appropriates a substantial portion of its value or use, or
with purpose to restore it only upon payment of a reward or other consideration." R.C.
2913.01(C)(1). "Purposely" is defined by R.C. 2901.22(A) as a person's "specific intention
to cause a certain result, or, when the gist of the offense is a prohibition against conduct
of a certain nature, regardless of what the offender intends to accomplish thereby, it is the
offender's specific intention to engage in conduct of that nature." "'This bifurcated
definition of "purpose" is intended to encompass both those crimes where the result must
be intended, such as causing death, in the crime of murder, and those offenses where
the act itself is all that must be intended, such as engaging in sexual conduct in the crime
of rape.'" State v. Ward, 2026-Ohio-305, ¶ 33 (12th Dist.), quoting State v. Wilkins, 64
Ohio St.2d 382, 386 (1980).
{¶ 48} "With respect to intent, '[t]he law recognizes that [it] can be determined from
the surrounding facts and circumstances, and persons are presumed to have intended
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the natural, reasonable, and probable consequences of their voluntary acts.'" State v.
Baldwin, 2024-Ohio-2397, ¶ 46 (12th Dist.), quoting State v. Garner, 1995-Ohio-168, ¶
41. "An individual's purpose or intent may, therefore, be established by circumstantial
evidence." State v. Goldberg, 2023-Ohio-2633, ¶ 35 (12th Dist.). "Circumstantial evidence
is sometimes defined as proof of facts by direct evidence from which the trier of fact may
infer or derive by reasoning other facts in accordance with the common experience of
mankind." State v. Roberts, 2025-Ohio-5120, ¶ 140. "Circumstantial evidence is not less
probative than direct evidence, and, in some instances, is even more reliable." State v.
Dunn, 2024-Ohio-5742, ¶ 32. This is why, as has long been established, "circumstantial
evidence is sufficient to sustain a conviction" so long as "that evidence would convince
the average mind of the defendant's guilt beyond a reasonable doubt." State v. McKnight,
2005-Ohio-6046, ¶ 75.
The Majority's Flawed Analysis
{¶ 49} I agree with the majority that, when reviewing the trial court's decision at
issue in this case, we may not consider the evidence Cheatham presented as part of his
defense case-in-chief. See State v. Harris, 2025-Ohio-2796, ¶ 17 (1st Dist.) ("Where a
defendant challenges the denial of a Crim.R. 29[A] motion made at the conclusion of the
State's case-in-chief, however, our review is limited to the evidence then available to the
trial court."). Thus, when reviewing the trial court's denial of Cheatham's Crim.R. 29(A)
motion for acquittal, we are limited to the evidence available from the trial testimony
elicited from the State's sole witness, Clermont County Municipal Court Electronic
Probation Officer Dan Malott.
{¶ 50} Upon taking the stand, Malott testified about the circumstances under which
Cheatham received the SCRAM bracelet, the rules governing Cheatham's possession of
the SCRAM bracelet, and the period during which Cheatham possessed the SCRAM
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bracelet. This testimony included the 18 months during which Cheatham had absconded
and was unaccounted for, and the circumstances surrounding the SCRAM bracelet's
eventual return to Malott, which, it should be noted, was not done by Cheatham himself,
but by an unnamed and unidentified "female."
{¶ 51} The majority claims that Malott's trial testimony lacks any evidence "that
would allow a factfinder to infer Cheatham's state of mind in not returning the SCRAM
bracelet." ¶ 34 above. The majority claims that the "closest" Malott came to testifying
about "information that might allow a factfinder to make an inference about Cheatham's
mens rea" was his testimony regarding "the length of time" that Cheatham retained the
SCRAM bracelet after he absconded. Id. While acknowledging that the unexplained
lengthy period of time is evidence, the majority finds this evidence "does not, by itself,
demonstrate" that Cheatham had the specific intent to "deprive" the probation department
of the SCRAM bracelet, as that term is defined by R.C. 2913.01(C)(1), by either
withholding it "permanently" or "for a period that appropriates a substantial portion of its
value or use." Id. The majority opinion arbitrarily dismisses the evidence of the
unaccounted-for, lengthy period of time Cheatham absconded with the probation
department property on the speculative belief that "the mere passage of time during which
an offender retains the property beyond the consent of its owner may be explained by
any number of reasons," some of which "may be innocent and non-criminal, such [as] the
alleged offender simply forgetting that he possesses the property." Id.
{¶ 52} The opinion goes on to concede that "[o]ther explanations could be
evidence of criminal offenses," including the theft he was found guilty of committing.
Viewed in the light most favorable to the prosecution, this clearly means the existing
testimony is sufficient to sustain Cheatham's conviction, as the trial court, acting as factfinder, determined. The majority opinion acknowledges that without innocent explanations
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or reasons, the inference of criminal intent remains reasonable. Not cognizant of
competing inferences, the majority opinion finds that "without more facts in the record
than simply the general time period in which the offender possessed the property, it is
impossible to infer what an offender's mental state was in retaining the property, let alone
prove the offender's mental state beyond a reasonable doubt. And that was the case here,
where nothing in Malott's testimony was relevant to Cheatham's mens rea." Id. Stated
differently, the majority holds that when the evidence at trial is as consistent with a theory
of innocence as with a theory of guilt, the doubt must be resolved in favor of innocence,
thereby requiring reversal of Cheatham's conviction on sufficiency-of-the-evidence
grounds.
{¶ 53} Although seemingly unaware, as evidenced by the absence of a direct case
citation, the majority's holding in this case is identical to the sufficiency-of-the-evidence
standard set forth in State v. Kulig, 37 Ohio St.2d 157 (1974), a case in which the Ohio
Supreme Court held:
It is settled that where circumstantial evidence alone is relied
upon to prove an element essential to a finding of guilt, it must
be consistent only with the theory of guilt and irreconcilable
with any reasonable theory of innocence. If such evidence is
as consistent with a theory of innocence as with a theory of
guilt, the doubt must be resolved in favor of the theory of
innocence. In this case, we find that the prosecutor failed to
develop probative evidence of appellant's intent which was
inconsistent with a reasonable theory of innocence. In the
absence of evidence to prove an essential element of the
crime, the trial court should have directed a verdict for
appellant at the conclusion of the state's case.
(Internal citations omitted.) Id. at 160.
{¶ 54} The problem with the majority's application of the Kulig standard is that the
Ohio Supreme Court expressly overruled this type of sufficiency-of-the-evidence analysis
in Jenks, 61 Ohio St.3d 259. Specifically, as the Ohio Supreme Court stated in Jenks:
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We hold that when the state relies on circumstantial evidence
to prove an element of the offense charged, there is no
requirement that the evidence must be irreconcilable with any
reasonable theory of innocence in order to support a
conviction.
Id. at 273.
{¶ 55} The Ohio Supreme Court has therefore overruled Kulig and its sufficiencyof-the-evidence analysis "to the extent it is inconsistent" with its holding in Jenks. Id. That
being, when reviewing a sufficiency-of-the-evidence challenge, "[t]he relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven beyond
a reasonable doubt." Id. at paragraph two of the syllabus. This is in addition to the Ohio
Supreme Court disapproving "all other cases adhering to the Kulig rule . . . to the extent
they conflict with this opinion." Id. at 273.
{¶ 56} Cheatham was found guilty following a bench trial. In a bench trial, the trial
court judge serves as the trier of fact. State v. Edwards, 1992 Ohio App. LEXIS 2394, *2
(12th Dist. May 11, 1992). In this case, viewing the evidence in the light most favorable
to the State, the trial court judge found "sufficient evidence of [Cheatham's] intention to
deprive probation of their SCRAM unit." Thus, given its verdict, the trial court judge clearly
agreed with the State's argument that Cheatham had acted with the requisite purpose to
deprive when "he made no effort to return the device" during the 18 months he had
absconded after signing "an entry asking to be hooked to this device as a condition of
bond."
{¶ 57} Therefore, although Cheatham's theory of innocence may also be plausible,
i.e., that he was not acting with the requisite purpose to deprive the probation department
of the SCRAM bracelet simply because he did not return it in a timely manner, "where
reasonable minds can reach different conclusions upon conflicting evidence,
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determination as to what occurred is a question for the trier of fact. It is not the function
of an appellate court to substitute its judgment for that of the factfinder." Jenks at 279.
This is because, as noted above, "the relevant inquiry does not involve how the appellate
court might interpret the evidence." Id. at 273. "Rather, the inquiry is, after viewing the
evidence in the light most favorable to the prosecution, whether any reasonable trier of
fact could have found the essential elements of the crime proven beyond a reasonable
doubt." Id.
Conclusion
{¶ 58} For a substantial and unexplained period of time, while avoiding the
authority and consent of his probation, uncontradicted circumstantial evidence
reasonably supports the inference that Cheatham intended to deprive the probation
department of its property. Therefore, unlike the majority, I would find that the trial court
did not err in denying Cheatham's Crim.R. 29(A) motion for acquittal made at the
conclusion of the State's case-in-chief. I would also find that Cheatham's conviction was
not against the manifest weight of the evidence. Accordingly, because I find no merit in
either of Cheatham's two assignments of error, I believe that Cheatham's conviction
should be affirmed. With respect to my two colleagues in the majority, I dissent.
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JUDGMENT ENTRY
The assignments of error properly before this court having been ruled upon, it is the order of this court that the judgment or final order appealed from be, and the same hereby is, reversed and conviction is vacated. Appellant is hereby discharged.
It is further ordered that a mandate be sent to the Clermont County Municipal Court for execution upon this judgment and that a certified copy of this Opinion and Judgment Entry shall constitute the mandate pursuant to App.R. 27.
Costs to be taxed in compliance with App.R. 24.
/s/ Matthew R. Byrne, Presiding Judge
/s/ Mike Powell, Judge
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