State v. Tucker , 97 N.E.3d 1056 ( 2017 )

[Cite as State v. Tucker, 2017-Ohio-7735.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 15AP-1123
(C.P.C. No. 14CR-4758)
v. :
(REGULAR CALENDAR)
Andre Tucker, :
Defendant-Appellant. :
D E C I S I O N
Rendered on September 21, 2017
On brief: Ron O'Brien, Prosecuting Attorney, and
Barbara A. Farnbacher, for appellee. Argued: Barbara A.
Farnbacher.
On brief: Todd W. Barstow, for appellant. Argued:
Todd W. Barstow.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} This is an appeal by defendant-appellant, Andre Tucker, from a judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas
following a jury trial in which he was found guilty of two counts of theft.
{¶ 2} On September 5, 2014, appellant was indicted in Franklin C.P. No. 14CR-
4758 for two counts of theft, in violation of R.C. 2913.02, both felonies of the fifth degree.
On January 28, 2015, appellant was indicted on an unrelated charge of burglary in
Franklin C.P. No. 15CR-424.
{¶ 3} Both cases came for trial before a jury beginning October 19, 2015. The first
witness for plaintiff-appellee, State of Ohio, in the theft case (No. 14CR-4758) was Dr. Jim
Lahoski, the Superintendent of the North Central Ohio Educational Service Center
No. 15AP-1123 2
("NCOESC"). NCOESC is a non-profit educational entity with offices in Marion,
Mansfield, and Tiffin, Ohio. NCOESC provides services to public and community (i.e.,
charter) schools, and those services include acting as a sponsor for community schools.
NCOESC also works with a third-party company that "provides particular services to the
community schools." (Tr. Vol. II-A at 9.)
{¶ 4} The Ohio Department of Education ("ODE") provides funding for
community schools and is required to approve sponsorship contracts between a
community school and a sponsor such as NCOESC. Dr. Lahoski testified there is a
significant application process to obtain community school sponsorship. In October
2012, appellant contacted NCOESC and expressed "great interest in beginning a
community or a charter school." (Tr. Vol. I at 35.) Dr. Lahoski and several administrators
met with appellant, who made a "very convincing * * * presentation." (Tr. Vol. I at 5.)
Appellant subsequently entered into contracts with NCOESC to open two community
schools, the Talented Tenth Leadership Academy ("TTLA") for Girls and the TTLA for
Boys. Dr. Lahoski identified the state's exhibits Nos. 3 and 4 as contracts between the
boards of NCOESC and TTLA.
{¶ 5} NCOESC employed appellant under two separate contracts; under the first,
effective June 3 through July 31, 2013, appellant served as an educational consultant with
duties which included "recruiting students, marketing, securing facilities, policy
development, grant writing and securing food service proposals." (Tr. Vol. II-A at 29.)
Under the second contract, a two-year agreement with an effective date of August 1, 2013
to July 31, 2015, appellant served as "superintendent, executive director, for [TTLA] with
an annual salary of $70,982." (Tr. Vol. II-A at 29.)
{¶ 6} As a community school sponsor, NCOESC is responsible for monitoring the
activities of schools with respect to issues of performance, safety, curriculum, and
compliance. Among other requirements, Ohio law mandates minimum enrollment
criteria for a community school (i.e., a minimum enrollment of 25 students).
{¶ 7} Dr. Lahoski testified that appellant lacked qualifications required by
NCOESC to serve as the fiscal officer for TTLA for Girls or TTLA for Boys. Specifically,
NCOESC requires a certificate indicating an individual is "licensed as a fiscal officer, a
treasurer for such a school." (Tr. Vol. II-A at 51.)
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{¶ 8} Dr. Lahoski testified as to the circumstances leading to the closure of TTLA
for Girls and TTLA for Boys in fall 2013, including the fact that TTLA "failed to have the
number of children they predicted." (Tr. Vol. II-A at 23.) TTLA was "paid by the state for
the estimated number of 72 students when, in fact, on October 14, 2013, there were 14 in
one school and * * * 12 in the other school, and the minimum requirement is 25 students."
(Tr. Vol. II-A at 23.) Dr. Lahoski stated that TTLA also "failed to complete the proper
record keeping," and "failed to provide proper * * * information to register the kids." (Tr.
Vol. II-A at 23.) On November 20, 2013, NCOESC abolished appellant's position with
NCOESC for failure to meet minimum requirements for enrollment and for safety issues
involving the schools. NCOESC also suspended operation of the schools at that time.
{¶ 9} Thomas Holmes, legal counsel for NCOESC, testified that Ohio statutory
law provides procedures for the distribution of remaining assets of a community school
upon its closure; once a community school is suspended, all operations must cease,
including financial activities. Holmes testified that he was involved in the distribution of
assets after the closure of the two TTLA schools.
{¶ 10} Holmes identified state's exhibit No. 15 as "a check issued by the Ohio
Department of Education in the amount of $6,317.96 * * * to Talented Tenth Leadership
Academy for Girls, dated September 16, 2013." (Tr. Vol. II-A at 92.) He identified state's
exhibit No. 16 as "a check issued by the Ohio Department of Education in the amount of
$1,182.04 * * * to the Talented Tenth Leadership Academy for Boys, dated October 15,
2013." (Tr. Vol. II-A at 92.)
{¶ 11} On October 31, 2013, Holmes e-mailed appellant regarding the "return of
missing property and these two checks issued by the Department of Education." (Tr. Vol.
II-A at 94.) On November 1, 2013, appellant "indicated that he would return those two
checks to Mandy France, * * * the fiscal officer of both community schools at the time."
(Tr. Vol. II-A at 94.) Several weeks later, Holmes had a telephone conversation with
appellant concerning the two checks, and appellant "indicated that he did not have the
checks. He said they were locked in a storage facility at the building where the
community school was previously located." (Tr. Vol. II-A at 94.) Holmes followed up
with written correspondence to appellant on November 21, 2013, stating it was necessary
for him to return the checks; Holmes never received the checks from appellant. Holmes
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testified that NCOESC suspended operations of the community schools, at the latest, on
November 9, 2013.
{¶ 12} NCOESC assigned one of its employees, Mandy France, to serve as
Treasurer/Fiscal Officer for TTLA for the 2013-2014 school year. France's duties included
maintaining the records of the school at all times during her term of assignment. A
payment from the state to a community school is termed "a foundation settlement
payment." (Tr. Vol. II-A at 144.) As treasurer, France was the only individual authorized
to spend funds from TTLA accounts. France opened two accounts with Chase Bank to
handle the funds for TTLA for Girls and TTLA for Boys; according to France, all
community school funds were to be placed in those accounts.
{¶ 13} France testified that she never received the check issued by ODE to TTLA in
the amount of $6,317.96 (state's exhibit No. 15) for deposit into the Chase Bank account.
France similarly testified that she never received the check issued by ODE to TTLA in the
amount of $1,182.04 (state's exhibit No. 16) for deposit into the Chase Bank account. On
November 1, 2013, France resigned from her responsibilities as fiscal officer for TTLA
because of a "lack of cooperation and the leadership that it needed to carry through with
the school due to the school closing." (Tr. Vol. II-A at 140.)
{¶ 14} Cody Loew is the assistant director of ODE's Office of Budget and School
Funding, and his responsibilities include ensuring that ODE makes accurate and timely
payments to community schools. Loew became aware that TTLA for Girls and TTLA for
Boys closed after "issues were brought to our attention that there were safety and health
concerns." (Tr. Vol. II-B at 10.) Once a school is closed, ODE acts to "completely stop the
payments to them and move to collect any funds that are owed back to [ODE]." (Tr. Vol.
II-B at 11.) In the event of a closure, the sponsor of a community school acts as the
receiver for the school.
{¶ 15} Loew identified state's exhibit Nos. 15 and 16 as foundation settlement
payment checks issued by ODE to TTLA for the purpose of educating students, operating
schools, and paying teacher salaries. According to Loew, the checks were not used for
their intended purposes. Loew testified that a fiscal officer for NCOESC contacted ODE
about attempting to reconcile foundation settlement payments "because they couldn't find
these checks." (Tr. Vol. II-B at 7.) Loew related that ODE "started to look into it; we
looked up the Ohio treasury website, found these checks, found that the signatures on the
No. 15AP-1123 5
back did not match checks for previous foundation checks, looked further into the warrant
number to find that these checks were deposited into bank accounts that weren't the
primary ones for the school." (Tr. Vol. II-B at 7.) The ODE treasury found "no record of
these [checks] being deposited into the actual accounts for the school." (Tr. Vol. II-B at 7.)
ODE subsequently "turned it over to the police for further investigation." (Tr. Vol. II-B at
7.)
{¶ 16} Columbus Police Detective Todd Schiff is a member of the department's
economic crime unit which investigates white collar financial crimes. Detective Schiff
became involved in the investigation of TTLA after ODE filed a report with the Columbus
Police Department. The detective, after speaking with officials at ODE as well as
employees of NCOESC (Dr. Lahoski and France), learned that two ODE checks issued to
TTLA had not been deposited into the designated accounts with Chase Bank. ODE
informed the detective that the checks had been deposited into an account with Charter
One Bank ("Charter One"), opened in the name of TTLA for Girls. Appellant's signature
appeared on the signature card for the account, and appellant's home address was listed
as the address on the account. The Charter One account had been opened December 1,
2013; Detective Schiff determined that the $6,317.96 check for TTLA for Girls was
deposited into that account on December 2, 2013, while the $1,182.04 check for TTLA for
Boys was deposited into the account "approximately a month later." (Tr. Vol. II-B at 42.)
{¶ 17} The detective reviewed a bank statement showing purchases from the
account, including purchases made from Wendy's and Giant Eagle. The statement also
indicated ATM cash withdrawals. Among the expenditures, the detective identified two
Giant Eagle money orders for $500 each, purchased on December 9, 2013, "made out to
Corina Pierce," the wife of appellant. (Tr. Vol. II-B at 36.) Money orders from Giant
Eagle had also been purchased and made payable to appellant.
{¶ 18} Detective Schiff determined that $1,031 in money orders purchased from
Giant Eagle had been made payable to "Hilliard Summit," the apartment complex where
appellant resided. (Tr. Vol. II-B at 37.) He identified another money order in the amount
of $500, made payable to Primrose Hilliard, which the detective determined had been
expended for daycare for the daughter of appellant and Pierce. Detective Schiff also noted
a purchase from Giant Eagle for $144.94, of which $123.26 was paid for with an EBT food
stamp card belonging to Pierce, and $20.84 was "paid for with a debit card of Talented
No. 15AP-1123 6
Tenth Leadership Academy." (Tr. Vol. II-B at 41.) According to the detective, the
transaction raised "red flags" because, assuming the purchase was a legitimate expense
for TTLA, the entire amount "would have been paid for out of the TTLA funds." (Tr. Vol.
II-B at 41.) Detective Schiff could not identify any transactions he deemed to be expenses
attributable to the operation of a school.
{¶ 19} Detective Schiff interviewed appellant on May 27, 2014. Appellant told the
detective that he was owed money by NCOESC. Appellant acknowledged opening a TTLA
account with Charter One to deposit the two checks from ODE. Appellant told the
detective he "had problems with Mandy France, the treasurer with North Central Ohio;
and at his board's discretion and his board's authority, he stated that's how he opened up
the TTLA account at Charter One and deposited those checks." (Tr. Vol. II-B at 48.)
Appellant also told the detective he fired France, and "there was no one in place to accept
those checks as the reason why he set up that account." (Tr. Vol. II-B at 48.) At the time
of the interview, Detective Schiff had information from NCOESC indicating that France
resigned as treasurer for TTLA on November 1, 2013; appellant, however, "stated he had
fired her prior to that date." (Tr. Vol. II-B at 48.)
{¶ 20} Detective Schiff questioned appellant as to expenditures made from the
Charter One account. Appellant told the detective that "all of the money was used to pay
an intern, to reimburse staff or various expenditures to pay the caterer for food services."
(Tr. Vol. II-B at 50.) When asked by the detective whether he had any documentation for
those expenditures, appellant "stated he did not have that at the time of the interview, but
he did have that and could provide that to me." (Tr. Vol. II-B at 51.) The detective
received a spreadsheet document from appellant on July 29, 2014, but appellant did not
provide any supporting documentation such as receipts or invoices for the expenditures.
Appellant told the detective that he became the fiscal officer for both schools "per Dr.
Lahoski's request." (Tr. Vol. III at 21.) The detective cited a lack of checks and balances
as to appellant's expenditures from the TTLA treasury.
{¶ 21} The state also presented testimony from several witnesses with respect to
the burglary case (case No. 15CR-424). At the close of the state's case, counsel for
appellant made a motion for acquittal as to all charges. The trial court denied the motion.
{¶ 22} Appellant testified on his own behalf in case No. 14CR-4758. In 2013,
appellant resided on Meadows Way, Hilliard, Ohio. Appellant created TTLA, and the
No. 15AP-1123 7
business address was the same as his residential address. Appellant testified that he was
the fiscal officer for TTLA during the "pre-development phase." (Tr. Vol. III at 186.) He
served as the executive director of the schools and also had a two-year contract with
NCOESC.
{¶ 23} In May 2013, appellant began receiving checks from NCOESC. TTLA and
NCOESC entered into a third-party agreement with Charter School Management
Corporation, and NCOESC provided TTLA with a treasurer. The first day of school for
both TTLA for Girls and TTLA for Boys was September 25, 2013. The two schools held
classes at separate leased locations.
{¶ 24} Appellant stated that TTLA had two boards for each school, a "pre-
operations board" and a "post-operations board." (Tr. Vol. IV-A at 3.) Appellant's wife,
Corina Pierce, served on the pre-operations board. When the schools opened, there were
five TTLA board members. Appellant testified that his board hired Mandy France as
treasurer, and that France's salary was paid by NCOESC.
{¶ 25} During fall 2013, both schools experienced problems with the landlord of
the respective leased locations. On October 18, 2013, the schools "received an unofficial
notice of suspension" from NCOESC. (Tr. Vol. IV-A at 13.) Appellant sought and
obtained a temporary restraining order from Wyandotte County based on an alleged
"Ohio open meetings violation." (Tr. Vol. IV-A at 16.)
{¶ 26} Appellant testified that he continued to operate the schools at various
locations, including a public library and "Fort Rapids." (Tr. Vol. IV-A at 17.) He related
that "it was not a full-blown school. * * * Some days it was 12 kids; some days it was 27
kids. It just varied." (Tr. Vol. IV-A at 17.) According to appellant, expenses "hadn't been
paid yet prior to the school being suspended." (Tr. Vol. IV-A at 19.) Appellant stated that
he compensated interns "for the time period October 28th through the beginning of
January 2014." (Tr. Vol. IV-A at 19.) Appellant testified that he provided the food service
for the schools during that time, and that he purchased food from various places,
including Wendy's, Burger King, Super Chef, and Giant Eagle.
{¶ 27} Appellant acknowledged opening an account with Charter One around the
beginning of December 2013, stating that his board authorized the account. He deposited
two checks from ODE into the account. According to appellant, the account "did not
provide checks. So we used money orders and an ATM debit card." (Tr. Vol. IV-A at 31.)
No. 15AP-1123 8
With respect to a $500 expenditure to "Primrose Hilliard," appellant stated that he used
his "health benefits expenses to pay for my daughter's tuition." (Tr. Vol. IV-A at 40.) He
also testified that TTLA had a lease agreement with "Hilliard Summit Schottenstein
property" for three months during the pre-operational phase. (Tr. Vol. IV-A at 45.)
Appellant stated that he terminated TTLA's relationship with Mandy France on
October 29, 2013.
{¶ 28} On cross-examination, appellant acknowledged that he could not operate a
community school without a sponsor, and that he never received permission to operate
the TTLA schools independent of a sponsor. Appellant opened the Charter One account
on November 30, 2013, after he told legal counsel for NCOESC that he could not find the
checks at issue. Appellant admitted that the Charter One account was overdrawn in
January 2014. Appellant was unable to state how many days in December 2013 the
school was in operation. He acknowledged that $100 from the Charter One account was
used as payment for one of his student loans, explaining that the payment was a mistake
and that $100 was paid back to ODE in January 2014. He also acknowledged sending an
e-mail to Thomas Holmes on November 1, 2013, in which appellant stated that France
was still treasurer for TTLA.
{¶ 29} Following deliberations, the jury returned verdicts finding appellant guilty
of two counts of theft in case No. 14CR-4758. The jury returned a verdict of not guilty of
burglary in case No. 15CR-424. By judgment entry filed November 19, 2015, the trial
court imposed a sentence of five years of community control sanctions and ordered
appellant to pay restitution to ODE.
{¶ 30} On appeal, appellant sets forth the following three assignments of error for
this court's review:
I. THE TRIAL COURT ERRED AND DEPRIVED
APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED
BY THE FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND ARTICLE ONE SECTION
TEN OF THE OHIO CONSTITUTION BY FINDING HIM
GUILTY OF THEFT AS THOSE VERDICTS WERE NOT
SUPPORTED BY SUFFICIENT EVIDENCE AND WERE
ALSO AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
No. 15AP-1123 9
II. APPELLANT'S TRIAL COUNSEL WERE INEFFECTIVE,
THEREBY DENYING HIM HIS RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL.
III. THE TRIAL COURT ERRED TO THE PREJUDICE OF
APPELLANT BY IMPROPERLY SENTENCING HIM TO
CONSECUTIVE TERMS OF INCARCERATION IN
CONTRAVENTION OF OHIO'S SENTENCING STATUTES.
{¶ 31} Under his first assignment of error, appellant challenges his theft
convictions as not supported by sufficient evidence and as against the manifest weight of
the evidence. Appellant disputes the state's theory that he expropriated public monies for
his own use, portraying his actions instead as that of a bad recordkeeper who was
attempting to keep the community schools in operation despite unforeseen setbacks. He
further maintains that the TTLA board authorized many of the expenditures claimed as
theft.
{¶ 32} Under Ohio law, sufficiency of the evidence and weight of the evidence are
distinct legal concepts. State v. Stone, 1st Dist. No. C-040817, 2006-Ohio-1375, ¶ 10. In
State v. Sexton, 10th Dist. No. 01AP-398, 2002-Ohio-3617, ¶ 30-31, this court addressed
those distinctions, stating in part as follows:
To reverse a conviction because of insufficient evidence, we
must determine as a matter of law, after viewing the evidence
in a light most favorable to the prosecution, that a rational
trier of fact could not have found the essential elements of the
crime proved beyond a reasonable doubt. * * * Sufficiency is a
test of adequacy, a question of law. * * * We will not disturb a
jury's verdict unless we find that reasonable minds could not
reach the conclusion the jury reached as the trier of fact. * * *
We will neither resolve evidentiary conflicts in the defendant's
favor nor substitute our assessment of the credibility of the
witnesses for the assessment made by the jury. * * * A
conviction based upon legally insufficient evidence amounts
to a denial of due process, * * * and if we sustain appellant's
insufficient evidence claim, the state will be barred from
retrying appellant.
A manifest weight argument * * * requires us to engage in a
limited weighing of the evidence to determine whether there
is enough competent, credible evidence so as to permit
reasonable minds to find guilt beyond a reasonable doubt and,
thereby, to support the judgment of conviction. * * * Issues of
witness credibility and concerning the weight to attach to
No. 15AP-1123 10
specific testimony remain primarily within the province of the
trier of fact, whose opportunity to make those determinations
is superior to that of a reviewing court. * * * Nonetheless, we
must review the entire record. With caution and deference to
the role of the trier of fact, this court weighs the evidence and
all reasonable inferences, considers the credibility of
witnesses, and determines whether, in resolving conflicts in
the evidence, the jury, as the trier of facts, clearly lost its way,
thereby creating such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered. The
discretionary power to grant a new trial should be exercised
only in the exceptional case in which the evidence weighs
heavily against a conviction.
{¶ 33} We initially consider appellant's sufficiency challenge. As noted, the jury
returned verdicts finding appellant guilty of two counts of theft, in violation of R.C.
2913.02. R.C. 2913.02(A) states in part: "No person, with purpose to deprive the owner of
property * * * shall knowingly obtain or exert control over * * * the property * * *
(2) [b]eyond the scope of the express or implied consent of the owner or person
authorized to give consent." R.C. 2901.22(A) states in part: "A person acts purposely
when it is the person's specific intention to cause a certain result." Pursuant to R.C.
2901.22(B), "[a] person acts knowingly, regardless of purpose, when the person is aware
that the person's conduct will probably cause a certain result or will probably be of a
certain nature. A person has knowledge of circumstances when the person is aware that
such circumstances probably exist."
{¶ 34} At trial, the state's theory of the case was that ODE provided funds to TTLA
in the form of two checks (state's exhibit Nos. 15 and 16) issued for the purpose of
operating community schools, but that appellant utilized those funds for personal
expenditures. Witnesses for the state included the superintendent of NCOESC, Dr.
Lahoski, who testified that appellant was not authorized to serve as fiscal officer for the
community schools. NCOESC employee France, assigned to serve as treasurer for TTLA,
testified that she was the only individual with authorization to receive money or write
checks from the account she set up with Chase Bank. ODE employee Loew testified that
foundation settlement payments issued by the state are for the purpose of educating
students, operating schools, and paying teacher salaries. Holmes, legal counsel for
NCOESC, testified that all operations, including financial activities, must cease in the
No. 15AP-1123 11
event a community school is suspended. According to Holmes, NCOESC suspended
TTLA, at the latest, on November 9, 2013.
{¶ 35} The state also presented the testimony of Detective Schiff, who testified that
appellant opened a Charter One bank account on December 1, 2013. The detective
reviewed a bank statement from Charter One and noted various charges against the
account, including a December 9, 2013 charge to Giant Eagle in the amount of $1,001.16,
a December 13, 2013 charge to Giant Eagle in the amount of $1,076.74, and a January 3,
2014 charge to Giant Eagle in the amount of $1,031.74. The detective also noted "quite a
few ATM cash withdrawals." (Tr. Vol. II-B at 35.) The detective discovered that the
charges to Giant Eagle involved money orders, including three money orders totaling
$1,030, payable to Hilliard Summit, "the name of the apartment complex where, at the
time, [appellant] lived." (Tr. Vol. II-B at 37.) The detective identified three money orders
totaling $1,500 payable to appellant's wife, Corina Pierce. The detective investigated a
money order payable to "Primrose Hilliard" in the amount of $500, and "determined that
this particular money order was for * * * day care for * * * the biological child of
[appellant] and Corina Pierce." (Tr. Vol. II-B at 38.)
{¶ 36} Under Ohio law, "a jury may infer purpose from the surrounding
circumstances." State v. Graham, 10th Dist. No. 09AP-896, 2010-Ohio-2907, ¶ 21, citing
State v. Buelow, 10th Dist. No. 07AP-317, 2007-Ohio-5929, ¶ 25. As set forth above, the
state presented evidence that appellant lacked qualifications required by NCOESC to
serve as fiscal officer for TTLA, but that he nevertheless opened a separate bank account
and funded the account with two checks issued by ODE and payable to TTLA for school
operations; appellant took these actions after being notified by NCOESC that TTLA's
sponsorship had been terminated, and after being contacted by legal counsel for NCOESC
about returning the missing checks. As also noted, the state presented testimony by
Detective Schiff that appellant utilized funds from the Charter One account to purchase
money orders from Giant Eagle payable to himself and to his wife; further, that money
withdrawn from the Charter One account was used to pay for rent at the apartment
complex where appellant resided and for his daughter's daycare. According to testimony
of the detective, none of the expenditures were for the purpose of operating a community
school.
No. 15AP-1123 12
{¶ 37} While appellant sought to portray his expenditures as an attempt to keep
the fledgling community schools open, the state presented contrary evidence which, if
believed, was sufficient to show that appellant knowingly acted with purpose to deprive
the state of property by exerting control over such property beyond the scope of the
owner's express or implied consent. See, e.g., State v. Plunket, 10th Dist. No. 78AP-809
(Dec. 28, 1979) (sufficient evidence to support finding that defendant was aware the
control he exercised over investors' funds would probably exceed the scope of consent and
that it was his specific intent to deprive investors of their money; defendant's contention
that he made various expenditures to keep company operating not determinative, nor
does such a motive exculpate him of criminal liability); State v. Pellin, 7th Dist. No. 11 MA
194, 2012-Ohio-5342, ¶ 22 (sufficient evidence to support theft conviction as it was
reasonable to find that defendant's deposit of funds into undisclosed bank account was
beyond the scope of authority granted by receiver or bankruptcy court's order; "even if
* * * there was some authority to use the pre-existing account for certain items * * * a
reasonable person could find that the withdrawals were beyond the scope of that
authority" where checks were written to and cashed by defendant); State v. Dortch, 2d
Dist. No. 17700 (Oct. 15, 1999) (Even where a person "lawfully has control over property
with consent, that person cannot thereafter exert control for a different purpose.").
(Emphasis sic.) Here, viewing the evidence in a light most favorable to the state, a
rational trier of fact could find all the elements of theft proven beyond a reasonable doubt.
We therefore reject appellant's contention that his convictions are not supported by
sufficient evidence.
{¶ 38} Nor do we find persuasive appellant's claim that his convictions are against
the manifest weight of the evidence. As noted, appellant sought to portray his conduct as
that of a bad bookkeeper, and he points to his own testimony in support. At trial, the jury
had the opportunity to review the transactions recorded in the Charter One bank
statement and to consider appellant's explanations for the expenditures. The jury also
heard the testimony of Holmes, legal counsel for NCOESC, who stated that he contacted
appellant in November 2013 about returning the two checks because the schools were no
longer operating. Appellant assured Holmes he would find the checks and return them to
the TTLA treasurer (France). Instead, however, appellant subsequently opened the
Charter One account, deposited the two checks, and used funds from the account to
No. 15AP-1123 13
purchase money orders made payable to his wife and himself. In rendering its verdicts,
the jury obviously found more credible testimony and evidence presented by the state that
undermined appellant's claims that various expenditures he made were for school
operations rather than personal expenses, and it was within the jury's province to reject
appellant's version of the events and to accept the state's version.
{¶ 39} On review, we are unable to conclude that the trier of fact clearly lost its way
and created such a manifest miscarriage of justice in convicting appellant of the two theft
counts. Accordingly, the convictions are not against the manifest weight of the evidence.
{¶ 40} Based on the foregoing, appellant's first assignment of error is without merit
and is overruled.
{¶ 41} We will address appellant's second and third assignments of error in inverse
order. Under his third assignment of error, appellant contends the trial court erred in
sentencing him to consecutive terms of incarceration without making the statutory
findings required by R.C. 2929.14(C)(4). According to appellant, the record fails to justify
the imposition of consecutive terms as he had no prior criminal record and was convicted
of two felonies of the fifth degree.
{¶ 42} In response, the state argues the trial court was not required to make
consecutive sentencing findings under R.C. 2929.14(C) as appellant was not sentenced to
serve a prison term but, rather, was ordered to serve community control sanctions. We
agree.
{¶ 43} R.C. 2929.14(C)(4), which requires a trial court to make specific findings
before imposing consecutive sentences, states in part: "If multiple prison terms are
imposed on an offender for convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively." (Emphasis added.) Thus, "[t]he statute
clearly states that the findings are required before a court imposes multiple prison terms."
State v. Carswell, 8th Dist. No. 101313, 2015-Ohio-764, ¶ 9.
{¶ 44} Under Ohio law, "the purpose of the community control statute is not to
sentence a defendant to a specific prison term and then suspend or reserve that prison
term. * * * Rather, the purpose of the statute is to notify the defendant of a specific prison
term that may be imposed if the defendant violates community control." (Emphasis sic.)
State v. Duncan, 12th Dist. No. CA2015-05-086, 2016-Ohio-5559, ¶ 21. Thus, "when a
defendant is sentenced to community control on a count of conviction and notified at that
No. 15AP-1123 14
time of the specific prison term he faces should he violate his community control, the
defendant is only sentenced to community control sanctions and is not sentenced to that
prison term." Id. In the event of a community control violation, R.C. 2929.15(B) "details
procedures for a trial court to follow," and "provides that if a prison term is imposed upon
the defendant for violating community control, the prison term must comply with R.C.
2929.14." Id. at ¶ 41.
{¶ 45} In the present case, the trial court's sentencing entry reflects the court
imposed "a period of Community Control for five (5) years under basic supervision."
(Emphasis omitted.) The court's entry further states that, following the imposition of
community control, the court notified appellant, orally and in writing, "what could
happen if he violates Community Control." Specifically, the entry states that the court
"indicated that if [appellant] violates Community Control he would receive a prison term
of eleven (11) months on each count, to be served consecutive to each other for a total of
twenty-two (22) months."
{¶ 46} In State v. Bates, 6th Dist. No. WM-12-002, 2013-Ohio-1270, the reviewing
court addressed a similar argument as the one posited by appellant in this case. Under
the facts of Bates, the trial court sentenced the defendant to a four-year term of
community control following a jury trial in which he was found guilty of various offenses,
including identity fraud, menacing by stalking, and possessing criminal tools. On appeal,
the defendant challenged his sentence arguing that the trial court erred "by ordering him
to 'serve a consecutive sentence without making the appropriate findings required by
[R.C. 2929.14(C)(4)].' " Id. at ¶ 67. The appellate court rejected this argument, holding in
part:
Bates' initial argument concerning consecutive sentences
overlooks the fact that the trial court is not required to make
statutory findings of fact under R.C. 2929.14(C)(4) when it
sentences a defendant to community control in lieu of a
consecutive prison sentence. See State v. Madaffari, 12th
Dist. No. CA2004-08-193, 2005-Ohio-3625, ¶ 14 (concluding
that "a trial court is required to make the statutory findings
and supporting reasons * * * not when it sentences a
defendant to community control, but when it actually imposes
a consecutive prison term."). Since Bates' consecutive prison
sentence does not apply unless he violates the terms of his
community control, that sentence has not been "actually
No. 15AP-1123 15
imposed." Thus, the trial court did not err in failing to make
the statutory findings of fact under R.C. 2929.14(C)(4).
Id. at ¶ 68.
{¶ 47} Similarly, in the instant case, the trial court sentenced appellant to
community control sanctions in lieu of a prison term and, therefore, the court did not err
in failing to make consecutive sentencing findings under R.C. 2929.14(C)(4). Id. See also
State v. Malone, 3d Dist. No. 9-15-42, 2016-Ohio-5556, ¶ 14 (following decision by Eighth
District Court of Appeals in determining that statutory findings under R.C. 2929.14(C)(4)
do not apply when a period of community control sanctions is ordered to be served
consecutive to a prison term).
{¶ 48} Accordingly, appellant's third assignment of error is overruled.
{¶ 49} Under his second assignment of error, appellant argues that his trial counsel
was ineffective in (1) failing to object to the joinder of the two cases (case Nos. 15CR-424
and 14CR-4758), and (2) by waiving the statutory findings for consecutive sentences.
With respect to the issue of joinder, appellant argues that the indictments for theft and
burglary should not have been tried together because the two cases involved completely
unrelated offenses.
{¶ 50} Appellant notes that, prior to trial, his trial counsel requested the court to
grant severance of the two criminal cases, which the court was prepared to do. Trial
counsel, however, elected to go forward on both cases after the trial court reminded
counsel that, once jeopardy attached, the court would dismiss the burglary case with
prejudice if the state was unable to produce its witness. Appellant further notes that,
during the middle of his testimony on the theft offense, the state located a missing witness
in the burglary case and presented the testimony of that individual.
{¶ 51} Under Ohio law, trial counsel's performance "will not be deemed ineffective
unless and until counsel's performance is proved to have fallen below an objective
standard of reasonable representation and, in addition, prejudice arises from counsel's
performance." State v. Bradley, 42 Ohio St. 3d 136 (1989), paragraph two of the syllabus.
In order to show that a defendant has been prejudiced by his or her counsel's deficient
performance, "the defendant must prove that there exists a reasonable probability that,
No. 15AP-1123 16
were it not for counsel's errors, the result of the trial would have been different." Id. at
paragraph three of the syllabus.
{¶ 52} In the instant case, the record indicates that trial counsel initially objected
to joinder of the cases, arguing that the cases were "totally unrelated." (Tr. Vol. I at 5.)
The trial court responded: "I can separate them and continue the case and then he's
looking at a burglary charge; or, we can go forward and if they don't produce the witness it
gets [nolled]. So you can make a tactical, strategic[] decision and I'm happy to
accommodate you in either regard." (Tr. Vol. I at 5.) The trial court, noting that
"jeopardy attaches when the jury is impaneled and sworn," further stated on the record
that if the prosecutor was "not prepared to go forward by the time the jury is impaneled
and sworn on that case, I'll either dismiss it or he'll [nolle] it." (Tr. Vol. I at 6.) In
response, defense counsel made the decision to go forward with both cases, and the state
proceeded to call its witnesses in the theft case. The state subsequently located a primary
witness in the burglary case. At that time, counsel for appellant made a request to "renew
our motion to sever" the burglary case from the theft case, "[e]specially after going
through the theft portion of the state's case." (Tr. Vol. III at 60.) Defense counsel argued
that it would be prejudicial to proceed with evidence of the burglary offense given the
amount of evidence the jury had already heard with respect to the theft offense. The trial
court overruled defense counsel's motion to sever.
{¶ 53} On review, appellant has failed to demonstrate deficient performance by
trial counsel regarding the issue of joinder. Under Ohio law, "[t]rial strategy does not
constitute ineffective assistance of counsel." State v. Diaz, 8th Dist. No. 103878, 2016-
Ohio-5523, ¶ 67. As noted above, defense counsel initially sought severance of the cases.
However, because of uncertainty as to whether the state would be able to obtain the
testimony of a witness in the burglary case, counsel made a strategic decision to proceed
with both cases following the trial court's comments regarding the potential for dismissal
of the burglary charge if the state was unable to locate the witness. As also noted, once the
witness became available, defense counsel renewed the motion to sever the cases. Under
these circumstances, appellant cannot show that counsel's strategy was unreasonable, or
that the actions of counsel constituted deficient performance. See State v. Dantzler, 10th
Dist. No. 14AP-907, 2015-Ohio-3641, ¶ 21 ("the decision to file a motion for separate trials
or to proceed with the joinder of the offenses may be a matter of counsel's trial strategy").
No. 15AP-1123 17
{¶ 54} Further, we agree with the state's contention that appellant has also failed to
demonstrate prejudice, as he was acquitted of the charge in the burglary case (case No.
15CR-424), indicating the jury was able to "separate the evidence" as to the offenses.
State v. Wampler, 5th Dist. No. 13-CA-3, 2014-Ohio-37, ¶ 74 (appellant failed to
demonstrate prejudice from joinder of counts where jury acquitted him of all counts
related to alleged incident of arson on date separate from the date of the incident for
which he was convicted).
{¶ 55} Appellant also claims deficient performance based on his counsel's waiver of
findings with respect to consecutive sentences. Specifically, at the time of sentencing, the
trial court, after informing appellant that the court was not going to impose a prison term,
inquired of defense counsel if he was "going to waive consecutive findings?" Counsel
responded, "Yes, your Honor." (Tr. Vol. V at 16.)
{¶ 56} As previously addressed under the third assignment of error, the trial court,
having imposed a sentence of community control, was not required to make statutory
findings under R.C. 2929.14(C)(4). Thus, defense counsel's affirmative response to the
trial court's inquiry as to whether counsel was waiving "consecutive findings" did not
constitute deficient performance.
{¶ 57} Accordingly, appellant's second assignment of error is not well-taken and is
overruled.
{¶ 58} Based on the foregoing, appellant's three assignments of error are
overruled, and the judgment of the Franklin County Court of Common Pleas is hereby
affirmed.
Judgment affirmed.
KLATT and BRUNNER, JJ., concur.
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