2006 Ohio Revised Code - 2913.01. Definitions.

§ 2913.01. Definitions.
 

As used in this chapter, unless the context requires that a term be given a different meaning: 

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

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

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

(1) Withhold 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; 

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

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

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

(E) "Services" include labor, personal services, professional services, public utility services including wireless service as defined in division (F)(1) of section 4931.40 of the Revised Code, common carrier services, and food, drink, transportation, entertainment, and cable television services and, for purposes of section 2913.04 of the Revised Code, include cable services as defined in that section. 

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

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

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

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

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

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

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

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

(1) A violation of section 2911.01, 2911.02, 2911.11, 2911.12, 2911.13, 2911.31, 2911.32, 2913.02, 2913.03, 2913.04, 2913.041 [2913.04.1], 2913.05, 2913.06, 2913.11, 2913.21, 2913.31, 2913.32, 2913.33, 2913.34, 2913.40, 2913.42, 2913.43, 2913.44, 2913.45, 2913.47, former section 2913.47 or 2913.48, or section 2913.51, 2915.05, or 2921.41 of the Revised Code; 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(JJ)  "Police dog or horse" has the same meaning as in section 2921.321 [2921.32.1] of the Revised Code. 

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

(LL) "Assistance dog" has the same meaning as in section 955.011 [955.01.1] of the Revised Code. 
 

HISTORY: 134 v H 511 (Eff 1-1-74); 139 v H 437 (Eff 7-21-82); 140 v H 97 (Eff 3-20-84); 140 v S 183 (Eff 9-26-84); 141 v H 340 (Eff 5-20-86); 141 v H 49 (Eff 6-26-86); 142 v H 182 (Eff 7-7-87); 143 v H 347 (Eff 7-18-90); 146 v S 2 (Eff 7-1-96); 146 v S 277 (Eff 3-31-97); 147 v H 565 (Eff 3-30-99); 148 v H 2 (Eff 11-10-99); 149 v H 327. Eff 7-8-2002; 150 v S 82, § 1, eff. 2-12-04; 150 v S 146, § 1, eff. 9-23-04; 150 v H 369, § 1, eff. 11-26-04; 150 v H 536, § 1, eff. 4-15-05; 150 v H 361, § 1, eff. 5-6-05; 151 v H 530, § 101.01, eff. 6-30-06.
 

The effective date is set by § 812.03 of 151 v H 530. 

The provisions of § 831.03 of 151 v H 530 read in part as follows: 

SECTION 831.03. The General Assembly, applying the principle stated in division (B) of section 1.52 of the Revised Code that amendments are to be harmonized if reasonably capable of simultaneous operation, finds that the following sections, presented in this act as composites of the sections as amended by the acts indicated, are the resulting versions of the sections in effect prior to the effective date of the sections as presented in this act: 

* * * 

Section 2913.01 of the Revised Code as amended by Am. Sub. H.B. 361, Am. Sub. H.B. 369, Sub. H.B. 536, and Am. Sub. S.B. 146, all of the 125th General Assembly. 

* * * 

The finding in this section takes effect at the same time as the section referenced in the finding takes effect. 

The provisions of § 3 of H.B. 536 (150 v  - ) read as follows: 

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

Not analogous to former RC § 2913.01 (RS § 7091; S&S 264; S&C 409; 73 v 59; GC § 13083; 101 v 206; Bureau of Code Revision, 10-1-53), repealed 134 v H 511, § 2, eff 1-1-74.

 

Effect of Amendments

151 v H 530, effective June 30, 2006, in (JJ), substituted "has the same meaning" for "and 'service dog' have the same meanings"; and added (LL). 

150 v H 361, effective May 6, 2005, in (E), inserted "including wireless service as defined in division (F)(1) of section 4931.40 of the Revised Code". 

150 v H 536, effective April 15, 2005, added (KK). 

150 v H 369, effective November 26, 2004, in (DD), substituted "unable" for "unfit"; and added the second (II). 

150 v S 146, effective September 23, 2004, added (II). 

S.B. 82, Acts 2003, effective February 12, 2004, added the last sentence to (U). 

 

19xx Committee Report or Comment.

1974 Committee Comment to H 511

This section is designed to codify and clarify, with some modifications, a variety of terms essential to defining theft, fraud, and forgery offenses, so as to permit coverage of these offenses in a manageable number of sections. Formerly, most of these terms were found only in the case law. 

The definition of "deception" adopts a broad concept of deceit, framed in terms not only of acts or omissions but also of results. The essence of deception is an act or omission which the actor is consciously aware creates or perpetuates a false impression in another. If the act involved is a representation, it need not be totally false - it may merely be misleading. In addition, the acts of withholding, or preventing another from getting information are specifically included in the definition. Thus, a person need not actually make a representation to practice deception. It is enough if he merely prevents another, by whatever means, from learning the true facts, and thereby knowingly deceives him. 

"Defraud" is defined in more comprehensive terms than former law, by including the practice of deception to obtain a benefit, as well as to cause some detriment to another. Some former offenses containing an element of fraud were theoretically limited to causing some detriment to another. See, e.g., Griffith v. State, 93 Ohio St. 294, 112 N.E. 1017 (1915). In the context of theft, fraud, and forgery offenses, however, the detriment to the victim invariably involves a corresponding benefit to the offender or another. 

The section codifies, in some detail, the former concept of "deprive." An essential element of larceny is a purpose to permanently deprive the owner of his property. The deprivation need not, strictly speaking, be permanent. For example, it is larceny if property is taken without the owner's consent, and then sold back to him, or taken with intent to keep it until he offers a reward for its return. Berry v. State, 31 Ohio St. 219, 27 Am. Rep. 506 (1877). The definition of "deprive" in this section is also broadened to include a temporary deprivation of property resulting in some substantial loss to the owner. Also, the new definition includes the use or appropriation of property or services with a specific purpose not to properly pay for it. This brings theft of services within the purview of the general theft section, thus obviating the necessity of defining several offenses. 

"Owner" is defined so as to retain the concept that a thief can steal stolen property from a thief. Stanley v. State, 24 Ohio St. 166, 15 Am. Rep. 604 (1873). The gist of theft is a wrongful taking rather than a particular ownership, and it is sufficient that a thief knows that property or services are not his to take. State v. Shoemaker, 96 Ohio St. 570, 117 N.E. 958 (1917). 

The definition of "services" is intended to be restrictive rather than comprehensive, and includes only labor, personal or professional services, public utility and common carrier services, food and drink, transportation, and entertainment. Services such as the rental of property, housing, or accommodations are not included, and certain offenses involving these are the subject of special statutes in Chapter 2913. 

"Writing" includes the written or printed word, which codifies the former meaning. State v. Healey , 156 Ohio St. 229, 46 O.O. 110, 102 N.E.2d 233 (1951); see, also, section 1.02(D) of the Revised Code. The definition of "writing" is expanded in this section to include things not ordinarily considered documents or instruments, but which are nevertheless the frequent subject of forgery and counterfeiting, such as ID cards and credit cards. 

The definition of "forge" is, in effect, a shorthand term for a variety of acts of falsification or fabrication formerly the subject of separate statutes and definitions. 

"Utter" is defined to include its former meaning, i.e., a presentation, display, or assertion, by words or deeds, that a spurious thing is genuine. Ballentine's Law Dictionary (2nd ed.). The new definition also includes publication, sale, or other transfer, which under former Ohio law were separate acts. Vanvalkenburg v. Ohio , 11 Ohio 404Ohio (1842). 

The definitions of "slug" and "coin machine" are updated to reflect modern technology. Former statutes dealing with these contemplated only the use of legal coin. Even at the time such statutes were adopted, however, many "coin" machines were designed to operate on tokens, such as rapid-transit turnstiles. Now, modern devices even permit the use of bills. The new definition includes all of these devices. 

"Theft offense" is broadly defined to include not only a series of specific offenses contained in the new code, but also to include any felony or misdemeanor, under state or federal law or municipal ordinance, of which robbery, burglary, breaking and entering, theft, conversion, embezzlement, fraud, forgery, counterfeiting, or similar act is an element, as well as conspiracy, attempt, or complicity with respect to any such offense. The definition has special application to the classification, disposition, and treatment of offenders under the new code, which generally permits wide flexibility with respect to first offenders but deals severely with repeaters. Former practice was to view as repeat offenses only those in which there had been a prior conviction of the specific offense. This was viewed as unduly restrictive because a persistent thief doesn't necessarily limit himself to a specific type of theft. 


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