Supreme Court of OhioMar 27, 1974
37 Ohio St. 2d 157 (Ohio 1974)

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No. 73-540

Decided March 27, 1974.

Criminal law — Evidence — Circumstantial — Must be irreconcilable with any reasonable theory of innocence — Embezzlement — Executor charged with embezzlement from estate — Evidence necessary to convict.

Circumstantial evidence relied upon to prove an essential element of a crime must be irreconcilable with any reasonable theory of an accused's innocence in order to support a finding of guilt.

APPEAL from the Court of Appeals for Cuyahoga County.

Appellant was convicted of embezzling personal property valued at $100 from an estate of which he was executor. A part of the estate consisted of sundry household items located in the decedent's house, including a number of radio and television sets. Decedent had directed in his will that no appraisement of his household goods be made, and bequeathed all such property to the Salvation Army.

In discharging his duties as executor of the estate, appellant had on several occasions gone into the decedent's house. On one such occasion, September 30, 1971, while accompanied by a representative of the Salvation Army, appellant called the Cleveland police department to report the theft of certain personal property which, on the previous day, he had noticed was missing from the house, and which he had seen there the last time he was in the house prior to discovering the theft. Appellant identified a Realtone 10-band solid state portable radio, black and silver trim, bearing model number 2930, and a Panasonic 11-inch black and white television set, as being among the stolen property. He testified that although there had been no inventory made of the household goods, he knew, from his earlier visits to the house, what had been there, and thus what was missing.

In the course of investigating the theft, the police queried residents of the decedent's neighborhood and learned that appellant had been seen on September 2 removing from the house a television set, a radio and a brown box. The police were also told that appellant had been seen at the house on several occasions between September 7 and September 30.

On October 4, a search warrant was obtained, pursuant to a hearing before a judge of the Court of Common Pleas, which authorized a search of appellant's office, auto and home for the property he had earlier reported stolen. Shortly thereafter, the warrant was served on him at his office. There is conflicting testimony concerning appellant's reply to a police officer, when asked whether he had any of the property contained in the warrant, but he turned over to the police a portable television set he had in his office and a short-wave radio from his home. Receipts signed by the officers serving the warrant and given to appellant, identified the seized items as a Sony television set and a Panasonic radio.

Appellant was indicted for embezzlement, and, upon trial, was found guilty. The prosecution had entered in evidence a Sony television set, which it claimed was in fact the television reportedly stolen, and a Realtone radio which matched the description of the radio appellant had also reported as stolen from the house. The prosecutor contended that these two items were the ones turned over to the police the previous October, and both bore the initials of a defective who was present when the warrant was served.

Appellant's contention throughout has been that he removed from the decedent's house on September 2, 1971, the Sony television set in question and a brown Panasonic radio for the purpose of cleaning and testing them to arrive at some estimate of their worth. He maintains that both items were rightfully in his possession as executor of the estate; that, in any event, neither had been included among the items he had reported stolen. Appellant contends further that, as the receipt given him by the police indicated, it was a Panasonic radio and not the Realtone entered as evidence by the prosecution which he turned over to the police at the time the search warrant was served.

Upon appeal to the Court of Appeals, appellant alleged that the trial court committed error by misinterpreting the law of embezzlement, by failing to give the jury a charge requested by appellant, and by failing to exclude a statement given by appellant prior to trial. The Court of Appeals affirmed the judgment, and the cause is now before this court pursuant to the allowance of a motion for leave to appeal.

Mr. John T. Corrigan, prosecuting attorney, and Mr. Peter H. Hull, for appellee.

Mr. Gordon T. Canning, Jr., for appellant.

Appellant was tried and convicted of embezzling the property of an estate of which he was the executor. Although it is not ordinarily the function of this court to weigh evidence developed at trial, it may do so in order to determine whether that evidence is of sufficient probative force to support a finding of guilt beyond a reasonable doubt, which is required for conviction in a criminal case. State v. Murphy (1964), 176 Ohio St. 385; State v. Petro (1947), 148 Ohio St. 473; Atkins v. State (1926), 115 Ohio St. 542. An examination of the record in this case discloses a serious lack of evidence, direct or circumstantial, regarding the issue of appellant's intent to convert estate property to his own use. Intent is an essential element of the crime of embezzlement (see, generally, 26 American Jurisprudence 2d, 570, Embezzlement, Section 19), and this evidentiary flaw compels us to reverse the judgment of conviction.

As executor of the estate to which the property in question belonged, and the one in whom responsibility for the goods rested, appellant was properly in possession of estate property as long as his purpose in holding it was not contrary to the rights and interest of the estate. Accordingly, proof of possession, standing alone, is insufficient to support a conviction for embezzlement, since such fact is equally consistent with the conclusion that appellant was acting properly within the framework of his authority as executor.

What little evidence there is in the record touching upon appellant's intent in holding the property is circumstantial in nature. 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. State v. Sheppard (1955), 100 Ohio App. 345; Carter v. State (1915), 4 Ohio App. 193. 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. State v. Channer (1926), 115 Ohio St. 350.

Our conclusion as to the lack of evidence to support appellant's conviction renders it unnecessary to discuss the constitutional and procedural points assigned as error.

The judgment of the Court of Appeals is, therefore, reversed and the defendant discharged.

Judgment reversed.


I concur in the reversal of appellant's conviction, but am convinced by the record that the cause should be remanded for a new trial. for a new trial.

If the trial court had more fully instructed the jury concerning appellant's rights and duties as a fiduciary, a verdict of guilty would have been legally permissible under the evidence adduced.

Additionally, I must disagree with the majority's appraisal of State v. Murphy (1964), 176 Ohio St. 385, 199 N.E.2d 884; State v. Petro (1947), 148 Ohio St. 473, 76 N.E.2d 355; and Atkins v. State (1926), 115 Ohio St. 542, 155 N.E. 189. As I read those cases, they do not stand for the proposition that this court will weigh evidence in a criminal case. They hold that we will examine the record of a criminal trial to determine whether evidence was presented, "which, if believed, would convince the average mind of defendant's guilt beyond a reasonable doubt." (Emphasis added.) Atkins v. State, supra, at page 545.

Weighing evidence is not synonymous with determining its legal sufficiency. See Ace Steel Baling v. Porterfield (1969), 19 Ohio St.2d 137, 249 N.E.2d 892; O'Day v. Webb (1972), 29 Ohio St.2d 215, 280 N.E.2d 896; Citizens Financial Corp. v. Porterfield (1971), 25 Ohio St.2d 53, 58, 266 N.E.2d 828.

Where the review has been of a criminal conviction, this court has often stated that it will examine the evidence to determine whether the rule of law requiring a higher quantum of proof in such cases has been followed. E. g., Atkins, Murphy and Petro, supra. However, the court has never before agreed to weigh the evidence in making that determination. Fortunately, the statement in the case at bar, concerning the weighing of evidence, is dicta.