## Facts

- A shoplifter stole a carton of cigarettes from a grocery store and was apprehended by store security; the carton was turned over to police.
- The shoplifter agreed to act as a police informant in a sting aimed at suspected purchasers of stolen goods.
- A Cincinnati police officer obtained exclusive control of the recovered carton and held it for about four hours while arranging the operation.
- Acting with police direction, the informant sold multiple cartons of cigarettes, including the recovered carton, to Donald Diephaus.
- Diephaus believed he was buying stolen cigarettes for resale, but he was not involved in the original shoplifting.
- Diephaus was charged with receiving stolen property under R.C. 2913.51(A).

## Issues

1. Whether goods fully recovered by police and used as sting “bait” remain “stolen property” for purposes of R.C. 2913.51(A) when received by a defendant who did not participate in the original theft.
2. Whether a conviction for receiving stolen property is contrary to law when the defendant receives recovered property under the mistaken belief that it is still stolen.

## Decision

- The court reversed the conviction and ordered Diephaus discharged from further prosecution on the charge.
- The evidence was legally insufficient because the cigarettes were no longer “stolen property” at the time of receipt.
- The recovery and exclusive police control of the carton before the controlled sale extinguished the property’s “stolen” status for R.C. 2913.51(A) purposes.
- The defendant’s belief that the goods were stolen did not satisfy the statutory element requiring that the property actually be stolen when received, at least where the defendant was not part of an original theft-and-sale scheme.

## Legal Principles

- After stolen property has been recovered by the owner or police, receiving it under the false belief that it remains stolen does not violate R.C. 2913.51(A), at least when the recipient was not part of an original plan to steal and sell the property.
- A receiving-stolen-property conviction is contrary to law when the record shows the goods were recovered and placed under exclusive police control before being transferred to the defendant in a sting.
- R.C. 2913.51(A) requires proof that the property received was “stolen property” at the time of receipt; a defendant’s mistaken belief cannot substitute for the missing element in these circumstances.

## Conclusion

The appellate court held that recovered goods used in a police sting are not “stolen property” for R.C. 2913.51(A) once police have regained exclusive control, so a defendant not involved in the original theft cannot be convicted merely for receiving the goods while believing they were stolen.


State v. Diephaus, 55 Ohio App. 3d 90 (Ohio Ct. App. 1989)