State v. Hauser - Theft Conviction Reversed on No-Contest Plea

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April 15, 2026 Get Citation Alerts Download PDF Add Note

State v. Hauser

Ohio Court of Appeals

• Citations: 2026 Ohio 1366
• Docket Number: C-250390

• Judges: Bock

• Opinion

• Authorities (11)

• Cited By (0)

• Summaries (0)

• Similar Cases (6.5K)

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Syllabus

NO-CONTEST PLEA — EXPLANATION OF CIRCUMSTANCES — THEFT — CONSENT: The State's explanation of circumstances prior to defendant's no-contest plea stating that defendant went to a bar, provided a credit card to open a tab, was served drinks, left without closing the tab, and her card was later declined, affirmatively negated the without-consent element of defendant's theft charge under R.C. 2913.02(A)(1) as it demonstrated that defendant had the bar owner's consent to obtain control over the drinks when defendant obtained control over the drinks; the trial court accordingly erred in accepting defendant's no-contest plea to theft under R.C. 2913.02(A)(1).

Combined Opinion

[Cite as State v. Hauser, 2026-Ohio-1366.]

IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-250390
TRIAL NO. C/22/CRB/21118
Plaintiff-Appellee, :

vs. :
JUDGMENT ENTRY
PATRICIA HAUSER, :

Defendant-Appellant. :

This cause was heard upon the appeal, the record, the briefs, and arguments.
For the reasons set forth in the Opinion filed this date, the judgment of the trial
court is reversed and the appellant discharged.
Further, the court holds that there were reasonable grounds for this appeal,
allows no penalty, and orders that costs be taxed under App.R. 24.
The court further orders that (1) a copy of this Judgment with a copy of the
Opinion attached constitutes the mandate, and (2) the mandate be sent to the trial
court for execution under App.R. 27.

To the clerk:
Enter upon the journal of the court on 4/15/2026 per order of the court.

By:_______________________
Administrative Judge
[Cite as State v. Hauser, 2026-Ohio-1366.]

IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

STATE OF OHIO : APPEAL NO. C-250390
TRIAL NO. C/22/CRB/21118
Plaintiff-Appellee, :

vs. :
OPINION
PATRICIA HAUSER, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Appellant Discharged

Date of Judgment Entry on Appeal: April 15, 2026

Connie Pillich, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Christine Y. Jones,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS

BOCK, Judge.

{¶1} The State charged defendant-appellant Patricia Hauser with theft under

R.C. 2913.02(A)(1), which prohibits a person from obtaining control over the property

of another without consent. The State alleged that Hauser left a bar without paying her

tab and when S.K., the bar’s owner, attempted to charge her credit card, it was

declined. Hauser pleaded no contest and after the State provided an explanation of

circumstances at her no-contest plea hearing, the trial court convicted Hauser.

{¶2} We reverse Hauser’s conviction. To convict Hauser of theft without the

property owner’s consent, the explanation of circumstances had to demonstrate that

S.K. did not consent to Hauser’s control over the beverages when he served Hauser the

beverages. But the State’s explanation of circumstances affirmatively negated the

without-consent element of the theft charge because it showed that S.K. consented to

Hauser’s possession of the beverages when he served them to Hauser.

{¶3} The State’s recitation of facts established that the conduct upon which

Hauser’s theft charge was based did not constitute theft under R.C. 2913.02(A)(1).

Accordingly, we sustain Hauser’s second assignment of error, reverse her conviction,

and discharge her from further prosecution. We decline to address Hauser’s first

assignment of error as moot.

I. Factual and Procedural History

{¶4} The State charged Hauser with theft in violation of R.C. 2913.02(A)(1).

Hauser moved to dismiss the charges, but the trial court denied her motion. Hauser

pleaded no contest. After the trial court asked the State for an explanation of

circumstances at the plea hearing, the State recited the elements of the offense and

explained that Hauser purposely deprived the bar of $69.33 worth of alcoholic drinks

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OHIO FIRST DISTRICT COURT OF APPEALS

“by providing a credit card that was ultimately declined for the amount of the tab [for

the drinks she had] consumed at the bar and failed to make any payment.”

{¶5} Based on those facts, the trial court convicted Hauser of theft without

the owner’s consent. Hauser appealed. This court dismissed Hauser’s first appeal for

lack of a final appealable order. On remand, the trial court sentenced Hauser to a

suspended jail sentence, imposed costs, waived fines, and placed Hauser on probation

for one year, to be terminated upon her paying court costs and $69.33 in restitution.

The trial court granted Hauser’s request for a stay pending appeal.

II. Analysis

{¶6} On appeal, Hauser initially raised a single assignment of error

challenging the trial court’s denial of her motion to dismiss. This court ordered

supplemental briefing on whether the explanation of circumstances was sufficient to

establish the elements of the offense. In her supplemental brief, Hauser raised a

second assignment of error, which asserted that the trial court erred in convicting her

where the explanation of circumstances was insufficient to establish the elements of

theft under R.C. 2919.03(A)(1).

A. No-contest pleas and the explanation of circumstances

{¶7} We review de novo a trial court’s finding of guilt following a no-contest

plea to a misdemeanor offense. State v. Johnson, 2024-Ohio-5377, ¶ 17 (1st Dist.).

{¶8} R.C. 2937.07 provides that a no-contest plea to a misdemeanor charge

“shall constitute an admission of the truth of the facts alleged in the complaint and

that the judge or magistrate may make a finding of guilty or not guilty from the

explanation of the circumstances of the offense.” Except in minor-misdemeanor cases,

a trial court may not make a guilty finding after a no-contest plea unless there is an

explanation of circumstances that provides sufficient information to establish all

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OHIO FIRST DISTRICT COURT OF APPEALS

essential elements of the offense. Johnson at ¶ 18. The State’s explanation of

circumstances “allows a judge to find a defendant not guilty or refuse to accept his plea

when the uncontested facts do not rise to the level of a criminal violation.” City of

Girard v. Giordano, 2018-Ohio-5024, ¶ 18. Where the State’s explanation of

circumstances negates an essential element of the offense, a trial court may not accept

a no-contest plea. State v. Magnone, 2016-Ohio-7100, ¶ 47 (2d Dist.); see State v.

Cohen, 60 Ohio App.2d 182 (1st Dist. 1978).

{¶9} When the State’s explanation of circumstances fails to establish the

elements of the crime, “‘[T]he defendant has a substantive right to be discharged by a

finding of not guilty.’” State v. Scudder, 2025-Ohio-1267, ¶ 12 (1st Dist.), quoting State

v. Hinds, 2024-Ohio-6042, ¶ 8 (1st Dist.), citing Cuyahoga Falls v. Bowers, 9 Ohio

St.3d 148, 150 (1984).1

B. The State’s explanation of circumstances affirmatively negated
an element of the offense

{¶10} The State charged Hauser with theft in violation of R.C. 2913.02(A)(1),

which provides, “[n]o person, with purpose to deprive the owner of property or

services, shall knowingly obtain or exert control over either the property or services . .

1 In Giordano, 2018-Ohio-5024, at ¶ 23, the Supreme Court of Ohio held that the Double-Jeopardy

Clause of the Fifth Amendment does not bar the State from retrying a defendant where the trial
court completely fails to obtain an explanation of circumstances before accepting a no-contest plea
to a misdemeanor. Courts have read Giordano as applying to cases lacking any explanation of
circumstances and have continued to discharge defendants where the explanation of circumstances
fails to establish the elements of an offense. See City of Seven Hills v. McKernan, 2019-Ohio-1001,
¶ 24 (8th Dist.); see also State v. Schuster, 2023-Ohio-3038, ¶ 21 (1st Dist.), citing McKernan at
¶ 28; Scudder at ¶ 12, fn. 2 (observing tension between Bowers and Giordano and following
Schuster and McKernan); Giordano at ¶ 18, citing Springdale v. Hubbard, 52 Ohio App.2d 255
(1st Dist. 1977) (explaining that had the appellate court determined that the explanation of
circumstances revealed that defendant used protected First Amendment speech, “the court would
have reversed the conviction and discharged him from further prosecution due to insufficiency of
the evidence.”). Considering Giordano’s citation to Springdale, we believe discharge to be the
correct remedy in cases like this. Where the State provides facts that negate an element of an
offense, discharge is appropriate because the State cannot return to the trial court and abandon the
facts to which it already has committed.

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OHIO FIRST DISTRICT COURT OF APPEALS

. [w]ithout the consent of the owner or person authorized to give consent.” To prove

theft under R.C. 2913.02(A)(1), the State must establish that the defendant lacked the

property owner’s consent at the time that the defendant obtained possession over the

property. State v. Henderson, 2024-Ohio-2312, ¶ 28-30 (1st Dist.).

{¶11} During the explanation of circumstances, the State explained that

Hauser purposely deprived S.K. and his bar of $69.33 worth of property and services,

without S.K.’s consent, “by providing a credit card that was ultimately declined for the

amount of the tab that she had rang [sic] up and consumed at the bar and failed to

make any payment for those drinks consumed.”

{¶12} But this explanation of circumstances affirmatively negated the lack-of-

consent element because it reveals that Hauser had the owner’s consent to obtain

control over the drinks at the time that she came into possession of them. See

Henderson at ¶ 30; see also City of Whitehall v. White, 2000 Ohio App. LEXIS 3232,

*5 (10th Dist. July 20, 2000) (insufficient evidence to convict defendant of theft

without consent based on defendant’s refusal to pay for a smaller-than-anticipated

quantity of oatmeal a restaurant had provided him because “there is absolutely no

question that defendant obtained possession of the bowl of oatmeal with the consent”

of the owner, as “the defendant asked . . . for an order of oatmeal, which was then freely

given to him.”).

{¶13} Viewing the facts provided by the State in its explanation of

circumstances in the State’s favor, no reasonable inference would support finding that

S.K. did not consent to Hauser’s obtaining control over the beverages when the

bartender handed the drinks to her. Indeed, common experience cuts against finding

that the owner did not consent to Hauser possessing the drinks.

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OHIO FIRST DISTRICT COURT OF APPEALS

{¶14} After the trial court found Hauser guilty, S.K. explained that he believed

Hauser “purposely gave us a credit card that she knew was in default.” If this was the

case, the State charged Hauser under the wrong statutory section. Instead, it should

have charged Hauser with theft by deception under R.C. 2913.02(A)(3).

{¶15} Therefore, we sustain Hauser’s second assignment of error and reverse

Hauser’s theft conviction under R.C. 2913.02(A)(1) because the State’s explanation of

circumstances negated an element of the offense.

III. Conclusion

{¶16} For the foregoing reasons, we sustain Hauser’s second assignment of

error, reverse her conviction, and discharge her from further prosecution. We decline

to address Hauser’s first assignment of error because it is moot.

Judgment reversed and appellant discharged.

KINSLEY, P.J., and ZAYAS, J., concur.

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