State v. Cheatham

[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.). -2-  Clermont CA2025-06-048 {¶ 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 cross- examination, 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. -3-  Clermont CA2025-06-048 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 -4-  Clermont CA2025-06-048 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 -5-  Clermont CA2025-06-048 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. -6-  Clermont CA2025-06-048 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. -7-  Clermont CA2025-06-048 {¶ 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. -8-  Clermont CA2025-06-048 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-Ohio- 3779, ¶ 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 -9-  Clermont CA2025-06-048 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 case- in-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 - 10 -  Clermont CA2025-06-048 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."); - 11 -  Clermont CA2025-06-048 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 - 12 -  Clermont CA2025-06-048 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-of- the-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 - 13 -  Clermont CA2025-06-048 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 - 14 -  Clermont CA2025-06-048 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 - 15 -  Clermont CA2025-06-048 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 fact- finder, determined. The majority opinion acknowledges that without innocent explanations - 16 -  Clermont CA2025-06-048 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: - 17 -  Clermont CA2025-06-048 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 sufficiency- of-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, - 18 -  Clermont CA2025-06-048 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. - 19 -  Clermont CA2025-06-048 JUDGMENT ENTRY