State v. John Adams, 87-LW-2381

• Decision Date: 13 July 1987
• Docket Number: 87-LW-2381,CA87-01-001
• Parties: STATE OF OHIO, Plaintiff-Appellee, v. JOHN ADAMS, Defendant-Appellant.
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-Appellee, v. JOHN ADAMS, Defendant-Appellant.

No. CA87-01-001.

87-LW-2381 (12th)

Court of Appeals of Ohio, Twelfth District, Warren County.

July 13, 1987

Timothy A. Oliver, Prosecuting Attorney, and David E. Ernst Assistant Prosecuting Attorney, Lebanon, for plaintiff-appellee.

Richard E. West, Spring-boro, for defendant-appellant.

OPINION

HENDRICKSON Judge.

On November 5, 1986, defendant-appellant, John Adams, entered a plea of no contest to a charge of receiving stolen property a felony of the fourth degree, contrary to R.C. 2913.51. The indictment described the stolen property as a "Passport' radar detector, which according to the evidence, is manufactured by Cincinnati Microwave, Inc.

Although the grand jury found the value of the radar detector to be $300 or more, the evidence at trial established that Cincinnati Microwave advertised this particular radar detector for sale for $295. (The advertisement stated that Ohio residents were to add $16.23 sales tax.) Upon a showing that the total cost, including sales tax, exceeded $300 or more, the trial judge entered a finding of guilty of a felony in response to appellant's plea.

This appeal followed, and appellant, for his assignment of error contends that the trial court erred in including sales tax to establish a value in excess of $300 for the purpose of determining whether the offense was a felony or a misdemeanor.

R.C. 2913.61 provides in pertinent part:

"] 2913.61 Value of stolen property.

"(A) When a person is charged with a theft offense involving property or services valued at three hundred dollars or more, a violation of * * * 2913.51, * * * the jury or court trying the accused shall determine the value of such property or services as of the time of the offense and, if a guilty verdict is returned, shall return the finding of value as part of the verdict. In any such case, it is unnecessary to find and return exact value, and it is sufficient if, * * * in a case involving a violation of section * * * 2913.51, * * * of the Revised Code, the finding and return is to the effect that the value of the property or services involved * * * was three hundred dollars or more and less than five thousand dollars, * * *.

* * *

"(D) The following criteria shall be used in determining the value of property or services involved in a theft offense:

* * *

"(2) The value of personal effects and household goods, and of materials, supplies, equipment, and fixtures used in the profession, business, trade, occupation, or avocation of its owner, * * * is the cost of replacing such property with new property of like kind and quality.'

Since there is no indication that the radar detector was used in a profession, business, trade or occupation, the question then is whether it can be determined to be a "personal effect.' If an automobile and a CB radio or cassette installed therein is included in the term "personal effect,' then it is logical that a radar detector is also a "personal effect.' See State v. Wiggins (1980), 68 Ohio App. 2d 146, 148. Thus, the value of the stolen merchandise which determines whether or not the offense is a felony, is the cost of new property of like kind and quality.

Appellant contends that even so, the manufacturer's price is $295. As a result, appellant contends he should have been found guilty of a misdemeanor instead of a felony. It is appellant's argument that if a tax such as the sales tax enhances the replacement cost to the point that the value exceeds $300, then other taxes such as federal, state and local income taxes should also affect the determination of whether or not an offense is a felony or a misdemeanor. Thus, appellant contends that the value for purposes of determining the nature of the offense should be only...