As Passed by the House

125th General Assembly Regular Session 2003-2004

Sub. H. B. No. 536

Representatives Schlichter, Latta, Wolpert, McGregor, Reidelbach, Aslanides, S. Smith, Webster, Hollister, Hoops, DeWine, Setzer, Daniels, Schaffer, Collier, Buehrer, Faber, Seaver, Grendell, Gilb, Barrett, Book, Calvert, Core, Domenick, C. Evans, D. Evans, Flowers, Gibbs, Hughes, Niehaus, Perry, Schmidt, Wagner, Widener, Willamowski 

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A BILL

To amend sections 2913.01 and 2913.02 of the Revised

1

Code to make the penalty for theft of anhydrous

2

ammonia a felony of the third degree.

3

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1.  That sections 2913.01 and 2913.02 of the Revised	4
Code be amended to read as follows:	5

Sec. 2913.01.  As used in this chapter, unless the context	6
requires that a term be given a different meaning:	7

(A) "Deception" means knowingly deceiving another or causing	8
another to be deceived by any false or misleading representation,	9
by withholding information, by preventing another from acquiring	10
information, or by any other conduct, act, or omission that	11
creates, confirms, or perpetuates a false impression in another,	12
including a false impression as to law, value, state of mind, or	13
other objective or subjective fact.	14

(B) "Defraud" means to knowingly obtain, by deception, some	15
benefit for oneself or another, or to knowingly cause, by	16
deception, some detriment to another.	17

(C) "Deprive" means to do any of the following:

18

(1) Withhold property of another permanently, or for a period	19
that appropriates a substantial portion of its value or use, or	20
with purpose to restore it only upon payment of a reward or other	21
consideration;	22

(2) Dispose of property so as to make it unlikely that the	23
owner will recover it;	24

(3) Accept, use, or appropriate money, property, or services,	25
with purpose not to give proper consideration in return for the	26
money, property, or services, and without reasonable justification	27
or excuse for not giving proper consideration.	28

(D) "Owner" means, unless the context requires a different	29
meaning, any person, other than the actor, who is the owner of,	30
who has possession or control of, or who has any license or	31
interest in property or services, even though the ownership,	32
possession, control, license, or interest is unlawful.	33

(E) "Services" include labor, personal services, professional	34
services, public utility services, common carrier services, and	35
food, drink, transportation, entertainment, and cable television	36
services and, for purposes of section 2913.04 of the Revised Code,	37
include cable services as defined in that section.	38

(F) "Writing" means any computer software, document, letter,	39
memorandum, note, paper, plate, data, film, or other thing having	40
in or upon it any written, typewritten, or printed matter, and any	41
token, stamp, seal, credit card, badge, trademark, label, or other	42
symbol of value, right, privilege, license, or identification.	43

(G) "Forge" means to fabricate or create, in whole or in part	44
and by any means, any spurious writing, or to make, execute,	45
alter, complete, reproduce, or otherwise purport to authenticate	46
any writing, when the writing in fact is not authenticated by that	47
conduct.	48

(H) "Utter" means to issue, publish, transfer, use, put or	49
send into circulation, deliver, or display.	50

(I) "Coin machine" means any mechanical or electronic device	51
designed to do both of the following:	52

(1) Receive a coin, bill, or token made for that purpose;

53

(2) In return for the insertion or deposit of a coin, bill,	54
or token, automatically dispense property, provide a service, or	55
grant a license.	56

(J) "Slug" means an object that, by virtue of its size,	57
shape, composition, or other quality, is capable of being inserted	58
or deposited in a coin machine as an improper substitute for a	59
genuine coin, bill, or token made for that purpose.	60

(K) "Theft offense" means any of the following:

61

(1) A violation of section 2911.01, 2911.02, 2911.11,	62
2911.12, 2911.13, 2911.31, 2911.32, 2913.02, 2913.03, 2913.04,	63
2913.041, 2913.05, 2913.06, 2913.11, 2913.21, 2913.31, 2913.32,	64
2913.33, 2913.34, 2913.40, 2913.42, 2913.43, 2913.44, 2913.45,	65
2913.47, former section 2913.47 or 2913.48, or section 2913.51,	66
2915.05, or 2921.41 of the Revised Code;	67

(2) A violation of an existing or former municipal ordinance	68
or law of this or any other state, or of the United States,	69
substantially equivalent to any section listed in division (K)(1)	70
of this section or a violation of section 2913.41, 2913.81, or	71
2915.06 of the Revised Code as it existed prior to July 1, 1996;	72

(3) An offense under an existing or former municipal	73
ordinance or law of this or any other state, or of the United	74
States, involving robbery, burglary, breaking and entering, theft,	75
embezzlement, wrongful conversion, forgery, counterfeiting,	76
deceit, or fraud;	77

(4) A conspiracy or attempt to commit, or complicity in	78
committing, any offense under division (K)(1), (2), or (3) of this	79
section.	80

(L) "Computer services" includes, but is not limited to, the	81
use of a computer system, computer network, computer program, data	82
that is prepared for computer use, or data that is contained	83
within a computer system or computer network.	84

(M) "Computer" means an electronic device that performs	85
logical, arithmetic, and memory functions by the manipulation of	86
electronic or magnetic impulses. "Computer" includes, but is not	87
limited to, all input, output, processing, storage, computer	88
program, or communication facilities that are connected, or	89
related, in a computer system or network to an electronic device	90
of that nature.	91

(N) "Computer system" means a computer and related devices,	92
whether connected or unconnected, including, but not limited to,	93
data input, output, and storage devices, data communications	94
links, and computer programs and data that make the system capable	95
of performing specified special purpose data processing tasks.	96

(O) "Computer network" means a set of related and remotely	97
connected computers and communication facilities that includes	98
more than one computer system that has the capability to transmit	99
among the connected computers and communication facilities through	100
the use of computer facilities.	101

(P) "Computer program" means an ordered set of data	102
representing coded instructions or statements that, when executed	103
by a computer, cause the computer to process data.	104

(Q) "Computer software" means computer programs, procedures,	105
and other documentation associated with the operation of a	106
computer system.	107

(R) "Data" means a representation of information, knowledge,	108
facts, concepts, or instructions that are being or have been	109
prepared in a formalized manner and that are intended for use in a	110
computer, computer system, or computer network. For purposes of	111
section 2913.47 of the Revised Code, "data" has the additional	112
meaning set forth in division (A) of that section.	113

(S) "Cable television service" means any services provided by	114
or through the facilities of any cable television system or other	115
similar closed circuit coaxial cable communications system, or any	116
microwave or similar transmission service used in connection with	117
any cable television system or other similar closed circuit	118
coaxial cable communications system.	119

(T) "Gain access" means to approach, instruct, communicate	120
with, store data in, retrieve data from, or otherwise make use of	121
any resources of a computer, computer system, or computer network,	122
or any cable service or cable system both as defined in section	123
2913.04 of the Revised Code.	124

(U) "Credit card" includes, but is not limited to, a card,	125
code, device, or other means of access to a customer's account for	126
the purpose of obtaining money, property, labor, or services on	127
credit, or for initiating an electronic fund transfer at a	128
point-of-sale terminal, an automated teller machine, or a cash	129
dispensing machine. It also includes a county procurement card	130
issued under section 301.29 of the Revised Code.	131

(V) "Electronic fund transfer" has the same meaning as in 92	132
Stat. 3728, 15 U.S.C.A. 1693a, as amended.	133

(W) "Rented property" means personal property in which the	134
right of possession and use of the property is for a short and	135
possibly indeterminate term in return for consideration; the	136
rentee generally controls the duration of possession of the	137
property, within any applicable minimum or maximum term; and the	138
amount of consideration generally is determined by the duration of	139
possession of the property.	140

(X) "Telecommunication" means the origination, emission,	141
dissemination, transmission, or reception of data, images,	142
signals, sounds, or other intelligence or equivalence of	143
intelligence of any nature over any communications system by any	144
method, including, but not limited to, a fiber optic, electronic,	145
magnetic, optical, digital, or analog method.	146

(Y) "Telecommunications device" means any instrument,	147
equipment, machine, or other device that facilitates	148
telecommunication, including, but not limited to, a computer,	149
computer network, computer chip, computer circuit, scanner,	150
telephone, cellular telephone, pager, personal communications	151
device, transponder, receiver, radio, modem, or device that	152
enables the use of a modem.	153

(Z) "Telecommunications service" means the providing,	154
allowing, facilitating, or generating of any form of	155
telecommunication through the use of a telecommunications device	156
over a telecommunications system.	157

(AA) "Counterfeit telecommunications device" means a	158
telecommunications device that, alone or with another	159
telecommunications device, has been altered, constructed,	160
manufactured, or programmed to acquire, intercept, receive, or	161
otherwise facilitate the use of a telecommunications service or	162
information service without the authority or consent of the	163
provider of the telecommunications service or information service.	164
"Counterfeit telecommunications device" includes, but is not	165
limited to, a clone telephone, clone microchip, tumbler telephone,	166
or tumbler microchip; a wireless scanning device capable of	167
acquiring, intercepting, receiving, or otherwise facilitating the	168
use of telecommunications service or information service without	169
immediate detection; or a device, equipment, hardware, or software	170
designed for, or capable of, altering or changing the electronic	171
serial number in a wireless telephone.	172

(BB)(1) "Information service" means, subject to division	173
(BB)(2) of this section, the offering of a capability for	174
generating, acquiring, storing, transforming, processing,	175
retrieving, utilizing, or making available information via	176
telecommunications, including, but not limited to, electronic	177
publishing.	178

(2) "Information service" does not include any use of a	179
capability of a type described in division (BB)(1) of this section	180
for the management, control, or operation of a telecommunications	181
system or the management of a telecommunications service.	182

(CC) "Elderly person" means a person who is sixty-five years	183
of age or older.	184

(DD) "Disabled adult" means a person who is eighteen years of	185
age or older and has some impairment of body or mind that makes	186
the person unfit to work at any substantially remunerative	187
employment that the person otherwise would be able to perform and	188
that will, with reasonable probability, continue for a period of	189
at least twelve months without any present indication of recovery	190
from the impairment, or who is eighteen years of age or older and	191
has been certified as permanently and totally disabled by an	192
agency of this state or the United States that has the function of	193
so classifying persons.	194

(EE) "Firearm" and "dangerous ordnance" have the same	195
meanings as in section 2923.11 of the Revised Code.	196

(FF) "Motor vehicle" has the same meaning as in section	197
4501.01 of the Revised Code.	198

(GG) "Dangerous drug" has the same meaning as in section	199
4729.01 of the Revised Code.	200

(HH) "Drug abuse offense" has the same meaning as in section	201
2925.01 of the Revised Code.	202

(II)(1) "Computer hacking" means any of the following:

203

(a) Gaining access or attempting to gain access to all or	204
part of a computer, computer system, or a computer network without	205
express or implied authorization with the intent to defraud or	206
with intent to commit a crime;	207

(b) Misusing computer or network services including, but not	208
limited to, mail transfer programs, file transfer programs, proxy	209
servers, and web servers by performing functions not authorized by	210
the owner of the computer, computer system, or computer network or	211
other person authorized to give consent. As used in this division,	212
"misuse of computer and network services" includes, but is not	213
limited to, the unauthorized use of any of the following:	214

(i) Mail transfer programs to send mail to persons other than	215
the authorized users of that computer or computer network;	216

(ii) File transfer program proxy services or proxy servers to	217
access other computers, computer systems, or computer networks;	218

(iii) Web servers to redirect users to other web pages or web	219
servers.	220

(c)(i) Subject to division (II)(1)(c)(ii) of this section,	221
using a group of computer programs commonly known as "port	222
scanners" or "probes" to intentionally access any computer,	223
computer system, or computer network without the permission of the	224
owner of the computer, computer system, or computer network or	225
other person authorized to give consent. The group of computer	226
programs referred to in this division includes, but is not limited	227
to, those computer programs that use a computer network to access	228
a computer, computer system, or another computer network to	229
determine any of the following: the presence or types of computers	230
or computer systems on a network; the computer network's	231
facilities and capabilities; the availability of computer or	232
network services; the presence or versions of computer software	233
including, but not limited to, operating systems, computer	234
services, or computer contaminants; the presence of a known	235
computer software deficiency that can be used to gain unauthorized	236
access to a computer, computer system, or computer network; or any	237
other information about a computer, computer system, or computer	238
network not necessary for the normal and lawful operation of the	239
computer initiating the access.	240

(ii) The group of computer programs referred to in division	241
(II)(1)(c)(i) of this section does not include standard computer	242
software used for the normal operation, administration,	243
management, and test of a computer, computer system, or computer	244
network including, but not limited to, domain name services, mail	245
transfer services, and other operating system services, computer	246
programs commonly called "ping," "tcpdump," and "traceroute" and	247
other network monitoring and management computer software, and	248
computer programs commonly known as "nslookup" and "whois" and	249
other systems administration computer software.	250

(d) The intentional use of a computer, computer system, or a	251
computer network in a manner that exceeds any right or permission	252
granted by the owner of the computer, computer system, or computer	253
network or other person authorized to give consent.	254

(2) "Computer hacking" does not include the introduction of a	255
computer contaminant, as defined in section 2909.02 of the Revised	256
Code, into a computer, computer system, computer program, or	257
computer network.	258

(II)(JJ) "Police dog or horse" and "service dog" have the	259
same meanings as in section 2921.321 of the Revised Code.	260

(KK) "Anhydrous ammonia" is a compound formed by the	261
combination of two gaseous elements, nitrogen and hydrogen, in the	262
manner described in this division. Anhydrous ammonia is one part	263
nitrogen to three parts hydrogen (NH3). Anhydrous ammonia by	264
weight is fourteen parts nitrogen to three parts hydrogen, which	265
is approximately eighty-two per cent nitrogen to eighteen per cent	266
hydrogen.	267

Sec. 2913.02.  (A) No person, with purpose to deprive the	268
owner of property or services, shall knowingly obtain or exert	269
control over either the property or services in any of the	270
following ways:	271

(1) Without the consent of the owner or person authorized to	272
give consent;	273

(2) Beyond the scope of the express or implied consent of the	274
owner or person authorized to give consent;	275

(3) By deception;

276

(4) By threat;

277

(5) By intimidation.

278

(B)(1) Whoever violates this section is guilty of theft.

279

(2) Except as otherwise provided in this division or division	280
(B)(3), (4), (5), (6), or (7), or (8) of this section, a violation	281
of this section is petty theft, a misdemeanor of the first degree.	282
If the value of the property or services stolen is five hundred	283
dollars or more and is less than five thousand dollars or if the	284
property stolen is any of the property listed in section 2913.71	285
of the Revised Code, a violation of this section is theft, a	286
felony of the fifth degree. If the value of the property or	287
services stolen is five thousand dollars or more and is less than	288
one hundred thousand dollars, a violation of this section is grand	289
theft, a felony of the fourth degree. If the value of the property	290
or services stolen is one hundred thousand dollars or more and is	291
less than five hundred thousand dollars, a violation of this	292
section is aggravated theft, a felony of the third degree. If the	293
value of the property or services is five hundred thousand dollars	294
or more and is less than one million dollars, a violation of this	295
section is aggravated theft, a felony of the second degree. If the	296
value of the property or services stolen is one million dollars or	297
more, a violation of this section is aggravated theft of one	298
million dollars or more, a felony of the first degree.	299

(3) Except as otherwise provided in division (B)(4), (5),	300
(6), or (7), or (8) of this section, if the victim of the offense	301
is an elderly person or disabled adult, a violation of this	302
section is theft from an elderly person or disabled adult, and	303
division (B)(3) of this section applies. Except as otherwise	304
provided in this division, theft from an elderly person or	305
disabled adult is a felony of the fifth degree. If the value of	306
the property or services stolen is five hundred dollars or more	307
and is less than five thousand dollars, theft from an elderly	308
person or disabled adult is a felony of the fourth degree. If the	309
value of the property or services stolen is five thousand dollars	310
or more and is less than twenty-five thousand dollars, theft from	311
an elderly person or disabled adult is a felony of the third	312
degree. If the value of the property or services stolen is	313
twenty-five thousand dollars or more and is less than one hundred	314
thousand dollars, theft from an elderly person or disabled adult	315
is a felony of the second degree. If the value of the property or	316
services stolen is one hundred thousand dollars or more, theft	317
from an elderly person or disabled adult is a felony of the first	318
degree.	319

(4) If the property stolen is a firearm or dangerous	320
ordnance, a violation of this section is grand theft, a felony of	321
the third degree, and there is a presumption in favor of the court	322
imposing a prison term for the offense. The offender shall serve	323
the prison term consecutively to any other prison term or	324
mandatory prison term previously or subsequently imposed upon the	325
offender.	326

(5) If the property stolen is a motor vehicle, a violation of	327
this section is grand theft of a motor vehicle, a felony of the	328
fourth degree.	329

(6) If the property stolen is any dangerous drug, a violation	330
of this section is theft of drugs, a felony of the fourth degree,	331
or, if the offender previously has been convicted of a felony drug	332
abuse offense, a felony of the third degree.	333

(7) If the property stolen is a police dog or horse or a	334
service dog and the offender knows or should know that the	335
property stolen is a police dog or horse or service dog, a	336
violation of this section is theft of a police dog or horse or	337
service dog, a felony of the third degree.	338

(8) If the property stolen is anhydrous ammonia, a violation	339
of this section is theft of anhydrous ammonia, a felony of the	340
third degree.	341

(9) In addition to the penalties described in division (B)(2)	342
of this section, if the offender committed the violation by	343
causing a motor vehicle to leave the premises of an establishment	344
at which gasoline is offered for retail sale without the offender	345
making full payment for gasoline that was dispensed into the fuel	346
tank of the motor vehicle or into another container, the court may	347
do one of the following:	348

(a) Unless division (B)(8)(9)(b) of this section applies,	349
suspend for not more than six months the offender's driver's	350
license, probationary driver's license, commercial driver's	351
license, temporary instruction permit, or nonresident operating	352
privilege;	353

(b) If the offender's driver's license, probationary driver's	354
license, commercial driver's license, temporary instruction	355
permit, or nonresident operating privilege has previously been	356
suspended pursuant to division (B)(8)(9)(a) of this section,	357
impose a class seven suspension of the offender's license, permit,	358
or privilege from the range specified in division (A)(7) of	359
section 4510.02 of the Revised Code, provided that the suspension	360
shall be for at least six months.	361

(C) The sentencing court that suspends an offender's license,	362
permit, or nonresident operating privilege under division	363
(B)(8)(9) of this section may grant the offender limited driving	364
privileges during the period of the suspension in accordance with	365
Chapter 4510. of the Revised Code.	366

Section 2.  That existing sections 2913.01 and 2913.02 of the	367
Revised Code are hereby repealed.	368

Section 3.  Section 2913.01 of the Revised Code is presented	369
in this act as a composite of the section as amended by both Am.	370
Sub. H.B. 369 and Am. Sub. S.B. 146 of the 125th General Assembly.	371
The General Assembly, applying the principle stated in division	372
(B) of section 1.52 of the Revised Code that amendments are to be	373
harmonized if reasonably capable of simultaneous operation, finds	374
that the composite is the resulting version of the section in	375
effect prior to the effective date of the section as presented in	376
this act.	377