State v. Campbell

[Cite as State v. Campbell, 2021-Ohio-2482.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
VINTON COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 20CA723
vs. :
AUSTIN B. CAMPBELL, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
________________________________________________________________
APPEARANCES:
Dennis W. McNamara, Columbus, Ohio, for appellant.
Dave Yost, Ohio Attorney General, and Andrea K. Boyd, Assistant
Attorney General, Columbus, Ohio, for appellee.
________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:7-13-21
PER CURIAM.
{¶1} This is an appeal from a Vinton County Common Pleas
Court judgment of conviction and sentence. Austin B. Campbell,
defendant below and appellant herein, assigns the following
errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED WHEN IT OVERRULED MR.
CAMPBELL’S MOTION TO DISMISS THE
INDICTMENT.”
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SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT’S VERDICTS FINDING MR.
CAMPBELL GUILTY OF THE OFFENSES OF TAMPERING
WITH RECORDS AND FORGERY WERE NOT SUPPORTED
BY SUFFICIENT EVIDENCE.”
{¶2} Between January 2009 and January 2013, appellant
served as the Vinton County Prosecutor. In 2015, the state
filed a bill of information that charged appellant with eight
counts of falsification based upon conduct that occurred between
2009 and 2012, while appellant served as the Vinton County
Prosecutor. On August 27, 2018, the trial court dismissed the
case with prejudice due to a violation of appellant’s speedy
trial rights.
{¶3} On December 26, 2018, a Vinton County Grand Jury
returned an indictment that charged appellant with (1) tampering
with records, in violation of R.C. 2913.42, and (2) forgery, in
violation of R.C. 2913.31(A)(2).
{¶4} Appellant subsequently filed a motion to dismiss the
indictment based upon a violation of his speedy trial rights.
Appellant noted that the current indictment is based upon his
failure to list the prosecutor’s office’s Furtherance of Justice
(FOJ) fund as a creditor on his 2012 financial disclosure form
that he filed in 2013, facts that the state knew when it filed
the 2015 indictment. Appellant contended that the current
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VINTON, 20CA723
indictment does not set forth any facts that differ from the
previous bill of information. Instead, appellant claimed that
the facts alleged in the 2015 bill of information and the
current indictment constitute a continuing course of conduct.
Appellant thus argued that the state was required to try him
within the time frame of the 2015 bill of information.
{¶5} The state’s memorandum contra asserted that the
speedy-trial time frame of the 2015 bill of information should
not apply to the current indictment because the current
indictment arises from a different set of facts than those
alleged in the initial bill of information. The state contended
that the 2015 bill of information and the current indictment are
based upon “different events that took place on different
dates.” The 2015 bill of information alleged that appellant
committed eight counts of falsification between January 1, 2009
and January 1, 2012, but the current indictment charges
appellant with different offenses–tampering with records and
forgery–that occurred at a different time–May 14, 2013.
{¶6} On November 13, 2019, the trial court overruled
appellant’s motion to dismiss the indictment.
Before trial, the parties entered into several
stipulations. They agreed, in part, that appellant made five
purchases for personal use with the FOJ debit card that totaled
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$1,920.67, and that on January 3, 2013, appellant repaid the
amount and listed the expenses on the annual report that he
filed with the Vinton County Auditor.
{¶7} On December 16, 2019, the court held a bench trial.
At trial, the state asserted that it did not plan to call any
witnesses and, instead, intended to rely upon the parties’
stipulations and the exhibits it sought to admit into evidence.
After the court admitted the state’s exhibits, the state rested.
{¶8} At that juncture, appellant filed a Crim.R. 29 motion
for judgment of acquittal and asserted that the state did not
present any evidence to show that he acted with a purpose to
defraud or that appellant falsified any document. The state
argued that the failure to list the FOJ fund as a creditor
established that the form was false.1 The state contended that
1
R.C. 102.02(A)(2)(e) requires a financial disclosure
statement to include, inter alia:
The names of all persons residing or
transacting business in the state to whom
the person filing the statement owes, in the
person’s own name or in the name of any
other person, more than one thousand
dollars. Division (A)(2)(e) of this section
shall not be construed to require the
disclosure of debts owed by the person
resulting from the ordinary conduct of a
business or profession or debts on the
person’s residence or real property used
primarily for personal recreation, except
that the superintendent of financial
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the circumstances indicate that appellant had the intent to
defraud because the failure to list the FOJ fund as a creditor
permitted appellant to obtain an interest-free loan and he could
avoid an ethics or criminal investigation.
{¶9} The trial court took the matter under advisement and
allowed the parties to submit post-trial briefs. In its post-
trial brief, the state asserted:
By failing to disclose the FOJ Fund as a creditor
on his [financial disclosure] form, [appellant] was
deceiving the Ohio Ethics Commission, and anyone else
who viewed the [financial disclosure form]. He did so
to conceal the fact that he was using the FOJ Fund for
personal use throughout calendar year 2012.
The state argued that appellant knew that his disclosure of
personal use of the FOJ fund “might lead to questions about how
he was using the FOJ Fund.”
{¶10} In his post-trial brief, appellant asserted that the
state failed to present any evidence to show that he acted with
purpose to defraud or an intent to deceive. Appellant alleged
that he disclosed his personal use of the fund when, on January
3, 2013, he filed a written report with the Vinton County
institutions and any deputy superintendent
of banks shall disclose the names of all
state-chartered banks and all bank
subsidiary corporations subject to
regulation under section 1109.44 of the
Revised Code to whom the superintendent or
deputy superintendent owes any money.
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Auditor that listed all expenditures made from the FOJ fund
during 2012. Appellant argued that this disclosure negates a
finding that he had a purpose to defraud or that he had an
intent to deceive.
{¶11} On June 10, 2020, the trial court found appellant
guilty of both offenses. The court determined that appellant
knowingly obtained a benefit for himself by borrowing
government money from the Furtherance of Justice Fund
when he was prohibited from doing so and not paying
any interest on the loan. Defendant knowingly
obtained this money by deception by purposely not
disclosing that he had taken the money on his 2012
Financial Disclosure Statement, a required
governmental writing or record, prior to filing it.
The court additionally determined that the state established
that appellant had a purpose to defraud. The court explained
that the evidence showed that appellant did not list “his
appropriation of the FOJ funds on the Financial Disclosure
Statement despite the warnings on the Statement.” The court
further disagreed with appellant that his repayment of the
amounts improperly spent negates any purpose to defraud. Thus,
the court thus found appellant guilty of tampering with records
and forgery.
{¶12} At sentencing, the trial court merged the two
offenses. The state elected to proceed to sentencing on the
tampering-with-records offense. The court placed appellant on
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community control for two years and ordered him to pay a $2,000
fine. This appeal followed.
I
{¶13} In his first assignment of error, appellant asserts
that the trial court erred when it overruled his motion to
dismiss the indictment. Appellant contends that (1) the trial
court incorrectly determined that the 2015 bill-of-information
speedy-trial deadline did not apply to the subsequent
indictment, and (2) the speedy-trial statutes required the state
to bring all possible charges that the state had knowledge about
at the time that it filed the 2015 indictment. Appellant
additionally argues that the speedy-trial statutes required the
state to include the current charges in the 2015 bill of
information, because the current charges arise out of the same
acts or transaction alleged in the 2015 bill of information.
Appellant states that even though the charges alleged in the
current indictment occurred at a different time from the charges
set forth in the 2015 bill of information, the present charges
are “factually related to the charges in the prior case.”
{¶14} Appellee counters that even if it knew of the 2012
financial disclosure statement when it filed the 2015
indictment, the second indictment is subject to a new speedy-
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trial time frame because it contains additional crimes based on
different facts.
{¶15} “Review of a speedy-trial claim involves a mixed
question of law and fact. Therefore, we defer to the trial
court’s factual findings if they are supported by competent,
credible evidence, but we review the application of the law to
those facts de novo.” State v. Long, — Ohio St.3d —, 2020-Ohio-
5363, — N.E.3d —, ¶ 15; accord State v. Howerton, 4th Dist.
Lawrence No. 20CA2, 2021-Ohio-913, 2021 WL 1101839, ¶ 11; State
v. Spencer, 2017-Ohio-456, 84 N.E.3d 106, ¶ 16 (4th Dist.);
State v. Brooks, 2018-Ohio-2210, 114 N.E.3d 220, ¶ 21 (4th
Dist.).
{¶16} The United States and the Ohio Constitutions guarantee
an accused the right to a speedy trial. The Sixth Amendment to
the United States Constitution states that an “accused shall
enjoy the right to a speedy and public trial.” Section 10,
Article I of the Ohio Constitution guarantees to the party
accused in any court “a speedy public trial by an impartial
jury.”
The availability of a speedy trial to a person
accused of a crime is a fundamental right made
obligatory on the states by the Fourteenth Amendment.
See Klopfer v. North Carolina (1967), 386 U.S. 213,
222-223, 87 S.Ct. 988, 993-994, 18 L.Ed.2d 1; State v.
Singer (1977), 50 Ohio St.2d 103, 106, 4 O.O.3d 237,
238, 362 N.E.2d 1216, 1218, at fn. 2. The speedy-
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trial provision is “‘an important safeguard to prevent
undue and oppressive incarceration prior to trial, to
minimize anxiety and concern accompanying public
accusation and to limit the possibilities that long
delay will impair the ability of an accused to defend
himself.’ United States v. Ewell, 383 U.S. 116, 120,
86 S.Ct. 773, 776, 15 L.Ed.2d 627, (1966) * * *.”
United States v. Marion (1971), 404 U.S. 307, 320, 92
S.Ct. 455, 463, 30 L.Ed.2d 468.
State v. Adams, 43 Ohio St.3d 67, 68, 538 N.E.2d 1025 (1989).
{¶17} Ohio’s speedy trial provisions, R.C. 2945.71 to
2945.73, “constitute a rational effort to enforce the
constitutional right to a public speedy trial of an accused
charged with the commission of a felony or a misdemeanor.”
State v. Pachay, 64 Ohio St.2d 218, 416 N.E.2d 589 (1980),
syllabus; accord State v. Martin, 156 Ohio St.3d 503, 2019-Ohio-
2010, 129 N.E.3d 437, ¶ 15; State v. Parker, 113 Ohio St.3d 207,
2007-Ohio-1534, 863 N.E.2d 1032, ¶ 11; Brecksville v. Cook, 75
Ohio St.3d 53, 55, 661 N.E.2d 706 (1996). To that end, R.C.
2945.71 designates specific time requirements for the state to
try an accused. State v. Hughes, 86 Ohio St.3d 424, 425, 715
N.E.2d 540 (1999).
{¶18} R.C. 2945.71(C)(2) requires a person accused of a
felony to be brought to trial within 270 days of the
individual’s arrest. Additionally, R.C. 2945.71(D) states:
A person against whom one or more charges of
different degrees, whether felonies, misdemeanors, or
combinations of felonies and misdemeanors, all of
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VINTON, 20CA723
which arose out of the same act or transaction, are
pending shall be brought to trial on all of the
charges within the time period required for the
highest degree of offense charged, as determined under
divisions (A), (B), and (C) of this section.
{¶19} Courts must “strictly construe the speedy trial
statutes against the state,” Brecksville v. Cook, 75 Ohio St.3d
53, 57, 661 N.E.2d 706 (1996), and must “strictly enforce the
legislative mandates evident in these statutes.” Pachay, 64
Ohio St.2d at 221; e.g., State v. Parker, 113 Ohio St.3d 207,
2007-Ohio-1534, 863 N.E.2d 1032, ¶ 15. Consequently, “[t]he
prosecution and the trial courts have a mandatory duty to try an
accused within the time frame provided by the statute.” State
v. Ramey, 132 Ohio St.3d 309, 2012-Ohio-2904, 971 N.E.2d 937, ¶
14. If an accused is not brought to trial within the time
limits set forth in the speedy trial statutes, and if an
exception does not apply, R.C. 2945.73(B) requires the court,
upon motion at or before trial, to discharge the accused.
{¶20} In the case sub judice, appellant does not claim that
the state failed to bring him to trial within 270 days after his
arrest or indictment for the current charges. Instead,
appellant asserts that the current charges arise out of the same
set of facts as the 2015 indictment. Appellant therefore
contends that the speedy-trial provisions required the state to
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bring him to trial within the time frame that applied to his
2015 indictment, which expired long ago.
{¶21} When the state files an initial indictment against an
accused and then files a subsequent indictment, the subsequent
indictment is not subject to the speedy-trial deadline of the
initial indictment if either of the following apply: (1) the
subsequent indictment charges additional offenses that “arise
from facts distinct from those supporting an original charge”;
or (2) “the state was unaware of such facts” at the time it
filed the initial indictment. State v. Baker, 78 Ohio St.3d
108, 112, 676 N.E.2d 883 (1997); see also Parker at ¶ 20
(stating that “speedy-trial time is not tolled for the filing of
later charges that arose from the facts of the criminal incident
that led to the first charge”). Accordingly, “the speedy-trial
clock resets when the state brings new charges based on either
(1) facts different from those supporting the original charges
or (2) lack of knowledge, at the time the original indictment is
filed, of the facts supporting the new charges.” State v.
Parker, 6th Dist. Lucas No. L-18-1238, 2020-Ohio-4607, 2020 WL
5743300, ¶ 69.
{¶22} Courts that determine whether “offenses in multiple
indictments are truly different” generally review whether the
offenses “arise from different circumstances, require different
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evidence, and are otherwise distinguishable in a significant
way.” State v. Jones, 2nd Dist. Montgomery No. 21974, 2008-
Ohio-1603, 2008 WL 867732, ¶ 10. “The ‘key question’ to ask * *
* is ‘whether all of the offenses at issue arose out of the same
set of facts.” Parker, 2020-Ohio-4607, at ¶ 77, quoting State
v. Mohamed, 10th Dist. Franklin No. 08AP-960, 2009-Ohio-6658, ¶
32. “If they did not, the state is able to take advantage of a
new speedy-trial timetable regardless of when it learned of the
facts it needed to indict the defendant on the new charges.”
Id.{¶23} The Ohio Supreme Court’s decisions in Adams and Baker
help to illustrate the foregoing rules. In Adams, the court
determined that the subsequent indictment arose out of the same
set of facts as the initial indictment. In that case, the state
first charged the defendant with operating a motor vehicle while
under the influence of alcohol in violation of R.C.
4511.19(A)(3). The defendant waived the speedy-trial time for a
total of 35 days. The state later asked the court to enter a
nolle prosequi, and the trial court dismissed the charge. A day
after the court dismissed the charge, the state filed a second
complaint against defendant that charged him with operating a
motor vehicle while under the influence of alcohol in violation
of R.C. 4511.19(A)(1). The defendant filed a motion to dismiss
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and alleged that the state had failed to bring him to trial
within the prescribed time period. The trial court overruled
the defendant’s motion.
{¶24} On appeal to the Ohio Supreme Court, the defendant
argued that the state failed to bring him to trial within the
90-day period applicable to misdemeanors. The defendant alleged
that the waiver that he entered in the first case did not apply
to the second case so as to extend the time within which to
bring him to trial.
{¶25} The supreme court first determined that the speedy-
trial time that applied to the first charge also applied to the
second charge, because the second charge “stemmed from the
original set of facts which gave rise to the [initial] charge.”
Id. at 68. The court explained:
“[W]hen new and additional charges arise from the
same facts as did the original charge and the state
knew of such facts at the time of the initial
indictment, the time within which trial is to begin on
the additional charge is subject to the same statutory
limitations period that is applied to the original
charge.”
Id. at 68, quoting State v. Clay, 9 Ohio App.3d 216, 218, 459
N.E.2d 609 (1983).
{¶26} The court next concluded that the defendant’s waiver
in the first case did not apply to the second case. The court
stated: “when an accused waives the right to a speedy trial as
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VINTON, 20CA723
to an initial charge, this waiver is not applicable to
additional charges arising from the same set of circumstances
that are brought subsequent to the execution of the waiver.”
Id. at 70. The court thus determined that the trial court
should have granted the defendant’s motion to dismiss.
{¶27} In Baker, the Ohio Supreme Court concluded that a
subsequent indictment was not subject to the same speedy-trial
deadline as the original indictment when, at the time that it
filed the first indictment, the state was unaware of the facts
alleged in the subsequent indictment. In Baker, law enforcement
officers arrested the defendant, a pharmacist, after the
defendant made several illegal sales of drugs to police
informants. The officers also executed search warrants for the
defendant’s pharmacies. During the search, the officers
obtained numerous business and financial records. The state
subsequently reviewed the records to determine whether any
additional criminal offenses had occurred.
{¶28} One week after the defendant’s arrest, the state
charged the defendant with two counts of drug trafficking and
five counts of aggravated drug trafficking. These charges
related to the controlled buys that had occurred before the
defendant’s arrest and the search of his pharmacies.
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{¶29} After the defendant’s indictment, the state audited
the defendant’s business and financial records. Nine months
after the state completed the audit, the state filed an
additional indictment that charged the defendant with eight
counts of drug trafficking, one count of aggravated drug
trafficking, and one count of Medicaid fraud.
{¶30} The defendant filed a motion to dismiss the second
indictment on speedy-trial grounds and argued that the speedy-
trial statutes required the state to bring him to trial for the
subsequent charges within the 270-day period that applied to the
charges contained in the first indictment. The trial court
overruled the defendant’s motion to dismiss.
{¶31} On appeal, the appellate court reversed and determined
that the speedy-trial clock for the second indictment had begun
on the date of the defendant’s arrest for the first indictment.
The state then appealed to the Ohio Supreme Court. The supreme
court considered “whether Ohio’s Constitution or speedy-trial
statute requires additional criminal charges filed in a
subsequent indictment to run from the date of defendant’s
original arrest, with time tolled during the state’s audits of
seized evidence, or whether the statute allows the state a new
time period from the date of the subsequent indictment.” Id. at
110. The court acknowledged its Adams holding that “subsequent
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charges made against an accused would be subject to the same
speedy-trial constraints as the original charges, if additional
charges arose from the same facts as the first indictment.” Id.
The court did not, however, find that Adams applied when “the
subsequent charges [are] based on new and additional facts which
the state had no knowledge of at the time of the original
indictment.” Id. The court explained:
“[I]n issuing a second indictment against the
defendant, the state was not subject to the speedy-
trial time limits of the original indictment, since
the subsequent charges were based on new and
additional facts which the state had no knowledge of
at the time of the original indictment. Additional
crimes based on different facts should not be
considered as arising from the same sequence of events
for the purposes of speedy-trial computation. See,
e.g., State v. Singleton (C.P.1987), 38 Ohio Misc.2d
13, 526 N.E.2d 121.
Id. at 111.
{¶32} The court observed that the original indictment was
based upon facts learned during controlled buys that occurred
before the defendant’s arrest and before the search of his
pharmacies, and that the second indictment was based upon
evidence discovered after the search of the defendant’s
pharmacies. The court determined that requiring “the state to
bring additional charges within the time period of the original
indictment, when the state could not have had any knowledge of
the additional charges until investigating later-seized
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evidence, would undermine the state’s ability to prosecute
elaborate or complex crimes.” Id. The court concluded that
because “the charges in the second indictment stem from
additional facts which the state did not know of before the
audits, the state should be accorded a new 270–day period
beginning from the time when the second indictment was
returned.” Id. at 111-112. The court ultimately held:
When additional criminal charges arise from facts
distinct from those supporting an original charge, or
the state was unaware of such facts at that time, the
state is not required to bring the accused to trial
within the same statutory period as the original
charge under R.C. 2945.71 et seq.
Id. at 112.
{¶33} In the case at bar, the state did not allege that it
was unaware of the facts when it filed the initial indictment.
Instead, the state argues that the second indictment involves
criminal charges that arise from facts that are distinct from
those that supported the charges contained in the first
indictment.
{¶34} Appellant, on the other hand, argues that the charges
set forth in the second indictment are not factually distinct
from the charges contained in the first indictment. Appellant
contends that both indictments arose from the same investigation
and involve a similar course of conduct that occurred over a
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five-year period. Appellant thus asserts that the speedy-trial
deadline that applied to the first indictment also applies to
the second indictment.
{¶35} The weight of Ohio authority appears to disagree with
appellant’s proposition that all criminal charges discovered
during an ongoing investigation must be brought at the same
time, or the state risks having the later charges dismissed on
speedy-trial grounds. For example, in State v. Skorvanek, 9th
Dist. No. 05CA008743, 2006-Ohio-69, 2006 WL 52256, the court
rejected the defendant’s argument that when the state obtains
initial and subsequent indictments as result of a single
investigation, the speedy-trial clock begins to run on the date
applicable to the first indictment. In Skorvanek, the grand
jury returned two indictments, almost one year apart, that
charged the defendant with various drug offenses that occurred
on different dates in March and April 2004. The defendant
asserted that the state knew all of the facts that gave rise to
both indictments before it filed the first indictment and had
gathered all of the facts during a single investigation. The
defendant thus alleged that the speedy-trial time that applied
to the first indictment also applied to the second indictment.
The state, on the other hand, argued that the same speedy-trial
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time did not apply because the two indictments involved
different facts, different offenses, and different animus.
{¶36} The Skorvanek appellate court agreed with the state
and explained that, even though “both indictments stem from the
same investigation, the offenses [the defendant] is charged with
are the direct result of different events on different dates.”
Id. at ¶ 14. The court noted that one drug offense arose from a
March 10, 2004 controlled drug buy and that another offense
arose from a March 13, 2004 attempted drug buy. Additional
counts arose from conduct that occurred on other dates. The
court stated that “while the investigation of [the defendant]
may have been ongoing, the offenses with which he is charged
were separate and distinct from one another.” Id. at ¶ 15. The
court thus agreed with the state that the defendant “was charged
with different offenses, on different dates stemming from
different events.” Id. at ¶ 16. The court therefore determined
that the second indictment was not subject to the same speedy-
trial deadline as the first indictment.
{¶37} The Eleventh District Court of Appeals rejected an
argument that multiple indictments based upon an ongoing
investigation are subject to the same speedy-trial deadline when
the state knew about the facts that gave rise to the criminal
charges at the time it filed the first indictment. State v.
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Smith, 11th Dist. Ashtabula No. 2004-A-0089, 2006-Ohio-5187,
2006 WL 2797617. In Smith, the state first charged the
defendant based upon evidence that task force officers
discovered during a search of the defendant’s residence. About
six months later, the state charged the defendant for additional
drug-related offenses that occurred during controlled drug buys
on various dates between September and November 2002. The
defendant filed a motion to dismiss the second indictment on
speedy-trial grounds, but the trial court overruled it. On
appeal, the appellate court did not agree with the defendant
that the second indictment was subject to the same speedy-trial
deadline as the first indictment, but instead determined that
the facts set forth in the indictments were separate and
distinct. Moreover, the court noted that “[e]ven though all the
charges in question were a function of an ‘ongoing
investigation,’ the multiple prosecutions did not arise from the
‘same facts’ or ‘same set of circumstances.’” Id. at ¶ 27. The
court thus concluded that the second indictment did not violate
the defendant’s right to a speedy trial.
{¶38} In the case sub judice, we conclude that the second
indictment, even though it arises from facts discovered during
the same investigation, is based upon facts separate and
distinct from the facts alleged in the first indictment. The
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first indictment charged appellant with eight counts of
falsification, and alleged that the conduct occurred between
January 1, 2009 and January 1, 2012. The second indictment
charged appellant with different offenses–tampering with records
and forgery–and alleged that the conduct occurred on a different
date–May 14, 2013. Moreover, the second indictment is based
upon a 2012 financial disclosure statement that had not been
included in the original charges. The subsequent and original
indictments, although arising from the same investigation,
involved “different offenses, on different dates stemming from
different events.” Skorvanek at ¶ 16. We, therefore, agree
with the trial court’s conclusion that the speedy-trial time
that applied to the first indictment does not apply to the
second indictment. See Parker, 113 Ohio St.3d 207, at ¶ 19
(noting that “Baker involved subsequent indictments, all of
which were the result of the same investigation, but the charges
were the direct result of different events on different dates”);
Parker, 2020-Ohio-4607, at ¶ 77 (concluding that subsequent
indictment not subject to speedy-trial time of initial
indictment when the offenses occurred on different dates and
involved separate sets of facts); State v. Graham, 10th Dist.
Franklin No. 18AP-636, 2019-Ohio-2020, 2019 WL 2237030, ¶ 30
(determining that speedy-trial time of first indictment did not
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apply to second indictment when charges involved break-ins at
different locations on different dates); State v. Hyde, 2nd Dist.
Clark No. 2013CA41, 2014-Ohio-1278, 2014 WL 1338790, ¶ 18
(concluding that speedy-trial time of first indictment did not
apply to second indictment when charges involved robberies that
occurred “at separate locations on different dates”); but see
State v. Jones, 2nd Dist. Montgomery No. 21974, 2008-Ohio-1603,
2008 WL 867732, ¶ 10 (declining to read Baker to mean that when
“the State knew additional facts and circumstances warranting
additional charges when the initial indictment was filed, it may
nonetheless hold back on those charges simply because the
offenses occurred on different dates, and then pursue multiple
prosecutions, with the speedy trial time to run anew each
time”).2
{¶39} Moreover, we do not agree with appellant that the case
at bar is similar to the facts in State v. Horsley, 4th Dist.
Ross No. 10CA3152, 2011-Ohio-1355, 2011 WL 1025113. In Horsley,
2
We observe that Jones appears to be distinguishable from
the case at bar. In Jones, the state first charged the
defendant for one count of rape involving a 13-year-old child.
Several months later, the state charged the defendant with four
additional counts of rape that involved the same child. The
appellate court noted that, even though the rape offenses
allegedly occurred on different dates, the record did not
clearly indicate whether “‘the facts and evidence underlying the
first charge and the second indictment differed in any material
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this court considered whether a subsequent indictment was
subject to the same speedy-trial time as an earlier indictment.
In Horsley, the defendant crashed his vehicle into an outside
wall at a hotel. Law enforcement arrested the defendant for
operating a motor vehicle while under the influence (OMVI) and
the violation of a protective order. He remained jailed for
about nine days.
{¶40} Approximately four months after the defendant’s
arrest, the state filed an indictment that charged appellant
with vandalism for the property damage caused when he crashed
his vehicle into the hotel. The defendant filed a motion to
dismiss the charges on speedy-trial grounds and asserted that
the speedy-trial clock for the vandalism charge started at the
time of his arrest for OMVI and violating a protective order.
The trial court overruled the defendant’s motion.
{¶41} This court reversed the trial court’s decision that
overruled the defendant’s motion to dismiss the indictment and
noted that the vandalism indictment arose from the same set of
facts as the defendant’s earlier arrest for OMVI and violating a
protection order. We also determined “that the state knew, or
should have known, of the facts constituting the vandalism
way.’” Id. at ¶ 14, quoting State v. Jones, 2nd Dist. Montgomery
No. 20862, 2006-Ohio-2630, ¶ 30.
24
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offense at the time of appellant’s [earlier] arrest.” Id. at ¶
18. We recognized that unlike the situation in Baker, the state
was not required to extensively investigate so as to uncover
“the operative facts constituting the vandalism offense.” Id.
at ¶ 21. Instead, we noted that at the time of the defendant’s
arrest, the law enforcement officer observed the property damage
to the hotel and had valued the property involved at $5,000. We
thus rejected the state’s argument that, in order to correctly
charge the vandalism offense, the state had to know the precise
amount of damage that the defendant caused. We explained that
even if the officer “did not know the exact amount of the
property involved or the exact amount of the damage, the
vandalism statute does not require such knowledge in order to
indict a defendant.” Id.
{¶42} In the case sub judice, we believe that appellant’s
second indictment does not arise out of the same set of facts
that are alleged in the first indictment. Unlike Horsley when
the second indictment was based upon the series of events that
occurred on the same date as the offenses first charged, the
second indictment in the case sub judice is based upon different
offenses that occurred on different dates more than one year
apart. We therefore do not find Horsley controlling.
25
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{¶43} Consequently, because we do not agree with appellant
that the second indictment is subject to the same speedy-trial
deadline as the first indictment, we overrule appellant’s first
assignment of error.
II
{¶44} In his second assignment of error, appellant asserts
that the record does not contain sufficient evidence to support
his convictions for tampering with records and forgery. In
particular, appellant contends that the state failed to present
sufficient evidence to show that he falsified the financial
disclosure statement “with purpose to defraud or knowing that
the person is facilitating a fraud.” Appellant argues that
evidence that he repaid the funds four months before he filed
the financial disclosure statement and, that when he repaid the
funds he listed the amounts on a form filed with the Vinton
County Auditor, negates the state’s allegation that appellant
acted with a purpose to defraud or knew that he was facilitating
a fraud when he filed the financial disclosure statement.
{¶45} The state argues that, when appellant submitted his
financial disclosure statement, he had a “specific intention to
deceive the Ohio Ethics Commission by falsely representing his
creditors.” The state thus asserts that appellant knew that
disclosing the information might lead to an investigation into
26
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his use of the FOJ fund and might “have exposed him to criminal
sanction, civil liability, a grievance with Disciplinary
Counsel, or simply the embarrassment of his financial situation
being made public.” The state further contends that appellant
received a benefit by using the funds–he was able to pay for
services that he otherwise was unable to afford, and that he
obtained an interest-free loan while the amounts remained
unpaid.
{¶46} Initially, we observe that, although the trial court
found appellant guilty of tampering with records and forgery,
the trial court merged the forgery offense with the tampering
with records offense. Thus, if sufficient evidence supports
appellant’s tampering with records conviction, an erroneous
verdict on the merged count would be harmless. State v. Powell,
49 Ohio St.3d 255, 263, 552 N.E.2d 191 (1990) (“Since the trial
court merged the kidnapping convictions with one another, [the
defendant] received only one sentence for kidnapping and an
erroneous verdict on Count Three would be harmless beyond a
reasonable doubt.”); State v. Wolff, 7th Dist. Mahoning No.
07MA166, 2009–Ohio–2897, ¶ 70 (“When a trial court dispatched
with a count through merger, any error in the jury’s verdict on
the merged count is rendered harmless beyond a reasonable
doubt.”); see State v. Williams, 4th Dist. Scioto No. 11CA3408,
27
VINTON, 20CA723
2012–Ohio–4693, ¶ 54 (concluding that because a trial court does
not impose a sentence for merged offenses, a defendant is not
“convicted” of merged offenses and thus there is no “conviction”
on merged offenses for appellate court to vacate).
Consequently, if we determine that sufficient evidence supports
appellant’s tampering with records conviction, we need not
address appellant’s sufficiency of the evidence argument
regarding the merged offense. Therefore, we first address
appellant’s arguments regarding the tampering with records
conviction.
{¶47} A claim of insufficient evidence invokes a due process
concern and raises the question whether the evidence is legally
sufficient to support the verdict as a matter of law. State v.
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
“Whether the evidence is legally sufficient to sustain a verdict
is a question of law.” Id. “Therefore, our review is de novo.”
State v. Groce, – Ohio St.3d —, 2020-Ohio-6671, — N.E.3d —, ¶ 7,
citing In re J.V., 134 Ohio St.3d 1, 2012-Ohio-4961, 979 N.E.2d
1203, ¶ 3.
{¶48} When reviewing the sufficiency of the evidence, our
inquiry focuses primarily upon the adequacy of the evidence;
that is, whether the evidence, if believed, reasonably could
support a finding of guilt beyond a reasonable doubt.
28
VINTON, 20CA723
Thompkins, syllabus. The standard of review is whether, after
viewing the probative evidence and inferences reasonably drawn
therefrom in the light most favorable to the prosecution, any
rational trier of fact could have found all the essential
elements of the offense beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979); State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492(1991). Furthermore, a reviewing court is not to assess
“whether the state’s evidence is to be believed, but whether, if
believed, the evidence against a defendant would support a
conviction.” Thompkins, 78 Ohio St.3d at 390 (Cook, J.,
concurring).
{¶49} Thus, when reviewing a sufficiency-of-the-evidence
claim, an appellate court must construe the evidence in a light
most favorable to the prosecution. State v. Hill, 75 Ohio St.3d
195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67 Ohio St.3d
465, 477, 620 N.E.2d 50 (1993). A reviewing court will not
overturn a conviction on a sufficiency-of-the-evidence claim
unless reasonable minds could not reach the conclusion that the
trier of fact did. State v. Tibbetts, 92 Ohio St.3d 146, 162,
749 N.E.2d 226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484,
739 N.E.2d 749 (2001).
29
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{¶50} In the case at bar, R.C. 2913.42(A)(1) sets forth the
essential elements of a tampering-with-records offense:
No person, knowing the person has no privilege to
do so, and with purpose to defraud or knowing that the
person is facilitating a fraud, shall * * *
(1) Falsify, destroy, remove, conceal, alter,
deface, or mutilate any writing, computer software,
data, or record.
{¶51} R.C. 2913.01(B) defines “defraud” as “to knowingly
obtain, by deception, some benefit for oneself or another, or to
knowingly cause, by deception, some detriment to another.”
“‘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.” R.C. 2913.01(A).
{¶52} R.C. 2901.22(A) and (B) define when a person acts
purposely and when a person acts knowingly:
(A) A person acts purposely when it is the
person’s specific intention to cause a certain result,
or, when the gist of the offense is a prohibition
against conduct of a certain nature, regardless of
what the offender intends to accomplish thereby, it is
the offender’s specific intention to engage in conduct
of that nature.
(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
30
VINTON, 20CA723
probably be of a certain nature. A person has
knowledge of circumstances when a person is aware that
such circumstances probably exist. When knowledge of
the existence of a particular fact is an element of an
offense, such knowledge is established if a person
subjectively believes that there is a high probability
of its existence and fails to make inquiry or acts
with a conscious purpose to avoid learning the fact.
{¶53} We observe that “‘[t]he intent of an accused person
dwells in his mind’” and that intent “‘can never be proved by
the direct testimony of a third person.” State v. Johnson, 56
Ohio St.2d 35, 38, 381 N.E.2d 637 (1978), quoting State v.
Huffman, 131 Ohio St. 27, 1 N.E.2d 313 (1936), paragraph four of
the syllabus. Instead, intent “‘must be gathered from the
surrounding facts and circumstances under proper instructions
from the court.’” Id., quoting Huffman, paragraph four of the
syllabus; e.g., State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-
791, 842 N.E.2d 996, ¶ 143; State v. Garner, 74 Ohio St.3d 49,
60, 656 N.E.2d 623, 634, 1995 WL 664323 (1995). We further
observe that “[i]ntention is a question of fact, and not one of
law.” Koenig v. State, 121 Ohio St. 147, 151, 167 N.E. 385(1929); State v. Wamsley, 6th Dist. Butler No. CA2002–05–109,
2003–Ohio–1872, ¶ 18.
{¶54} In the case sub judice, appellant relies upon three
cases to support his argument that the state did not present
sufficient evidence to establish that he acted with purpose to
31
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defraud or knew that he was facilitating a fraud. State v.
Truckey, 2019-Ohio-407, 130 N.E.3d 990 (11th Dist.); State v.
Agee, 2017-Ohio-8164, 98 N.E.3d 1272 (8th Dist.); State v.
Baumgarden, 49 Ohio App.3d 24, 25, 550 N.E.2d 206, 207, 1988 WL
170567 (12th Dist.1988). Appellant contends that all three
cases show that when a defendant does not take steps to hide the
facts underlying the basis of the criminal charge, the evidence
is insufficient to establish an intent to defraud.
{¶55} In Baumgarden, the court concluded that the evidence
failed to show that the defendant committed theft by deception.
In Baumgarden, the defendant served as the general manager for
his employer, Cedar City Motors, Inc. During his employment, he
wrote 35 checks to himself that were recorded on the company’s
books. The state later charged the defendant with theft by
deception.
{¶56} After a bench trial, the court found the defendant
guilty. On appeal, the defendant asserted, in part, that the
state failed to present sufficient evidence to establish that he
had committed theft by deception. The defendant argued that
because the checks were on the company’s books and open to
inspection at any time, he could not have intended to deceive
anyone.
32
VINTON, 20CA723
{¶57} The appellate court agreed with the defendant and
explained:
the amount appellant allegedly stole was clearly
carried on the company balance sheet either as a
prepaid expense or as an account receivable throughout
the period in which the deception allegedly occurred.
These checks as well as the company’s books and
records created an accounting and auditing trail
anyone might follow. Melissa Knoop, Cedar City’s
owner, and the state contend appellant stole the money
the thirty-five checks represent because Knoop trusted
appellant to run Cedar City and did not discover the
checks until appellant was no longer with the company.
However, the fact that the checks and company records
showing appellant received the money were always
available to anyone who wished to examine them,
including Knoop, convinces us no reasonable trier of
fact could conclude beyond a reasonable doubt that
Knoop was deceived by appellant because his check
writing was evident in Cedar City’s records. Knoop’s
testimony that she trusted appellant and did not
closely oversee his management of Cedar City does not
prove appellant deceived her but merely shows that she
was unaware of and did not approve his actions.
Id. at 25. The court thus reversed the trial court’s judgment
of conviction for theft by deception.
{¶58} In Agee, the court determined that the state failed to
present sufficient evidence to support the defendant’s tampering
with records conviction. The state charged the defendant with
tampering with records based upon her alleged failure to
properly report her income when filing reports with the Ohio
Department of Jobs and Family Services in order to receive food
stamps. At trial, the state relied upon a single witness, Fred
33
VINTON, 20CA723
Sims, who reviewed the case file that the original investigator
transferred to him. Sims stated that he did not have any
interactions with the defendant and that he did not “conduct any
components of [the] investigation.” Id. at ¶ 8. Instead, Sims
explained that he relied upon the case file transferred to him.
{¶59} The defendant testified and stated that she had
reported her income to the caseworkers and that at least two
redetermination forms were missing from evidence.
{¶60} After the trial court found the defendant guilty of
tampering with records, the defendant appealed. On appeal, the
defendant asserted that the state failed to present sufficient
evidence to support her tampering with records conviction. The
appellate court agreed and explained:
The highly speculative nature of [the state]’s
evidence also fails to demonstrate that [the
defendant]’s act of executing the reports was “knowing
* * * and with a purpose to defraud.” [The defendant]
testified that she truthfully provided information and
that she did not know how the case worker arrived at
the figure inserted in the interim report submitted
for [the defendant]’s signature.
Sims could only offer that the tax information
was averaged to determine a monthly income, and that
it appeared the investigator did not seek any other
information from [the defendant] to allow her to
address the issue. Even where faced with information
contained in the state’s interim report exhibit
indicating the submission of at least one prior report
containing knowledge of a change in income, the
absence for which could not be explained, the state
argues that [the defendant] was required to explain
the absence. The burden of proof is the state’s
34
VINTON, 20CA723
responsibility. As stated previously, Sims was never
[the defendant]’s case worker. In fact, Sims was
never a case worker. Sims never personally
investigated [the defendant]’s case, talked with [the
defendant], or met [the defendant]. Sims merely
received [the defendant]’s file, and his testimony
regarding [the defendant]’s knowledge was purely
speculative.
Illustrative here as to the sufficiency of the
evidence and [the state]’s failure to meet its burden
of proof, is the statement by Sims regarding the
various workers whose names appeared on the case
documents. “[U]sually, as a rule, we usually subpoena
those people, bring them in.” (Tr. 81.) The failure
to follow that protocol underlies our decision here
that, when viewed in a light favorable to the
prosecution, the evidence in this case was
insufficient to convict [the defendant] of the
charges. The state failed to meet its burden of proof
as to the mens rea element of the charges.
Id. at ¶¶ 62-64. The court thus reversed the trial court’s
judgment convicting the defendant of tampering with records.
{¶61} In Truckey, the defendant, a former sergeant with the
Ashtabula County Sheriff’s Department, appealed his conviction
for tampering with records based upon his failure to return a
body camera video after taking it home. On appeal, the court
noted that the tampering with records statute required the state
to prove, beyond a reasonable doubt, that the defendant
falsified, destroyed, removed, concealed, altered, defaced, or
mutilated a record with purpose to defraud. Id. at ¶ 16. The
court determined that “[t]he only possible conduct by [the
defendant] that could satisfy the actus element of th[i]s
35
VINTON, 20CA723
statute[] was taking a copy of the body cam video to his home.”
Id. at ¶ 17. The court noted that the state did not present any
evidence to show that the defendant attempted “to conceal the
fact he possessed a copy of the video.” Id. The court stated
that “[n]o less than four other members of the village police
department were aware a video existed and what it contained, and
that [the defendant] had a copy–which information was made known
to them by [the defendant] himself.” Id. The court thus
concluded that the state failed to present sufficient evidence
that the defendant had falsified, destroyed, concealed, altered,
defaced, or mutilated a record. The court did observe, however,
that the defendant arguably “removed” the body camera video, but
nevertheless found that, even if the defendant’s conduct
satisfied the actus reus element of the statute, the facts and
circumstances did not show that he had acted with the intent
necessary to commit tampering with records. The court observed
that “[n]ot only was it known that [the defendant] possessed a
copy [of the video], but nothing he did suggests a purpose to
impair its value as evidence or defraud.” Id. Thus, the court
concluded that the evidence failed to show that the defendant
“did anything to alter or conceal or prevent access to the copy
of the body cam video–or that he ever had such a purpose.” Id.
at ¶ 19.
36
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{¶62} Appellant asserts that, just like the defendants in
Baumgarden, Agee, and Truckey, he also did not attempt to hide
his use of the FOJ funds for personal reasons. Appellant points
out that he disclosed his use of FOJ funds on January 3, 2013,
when he submitted his annual report to the Vinton County
Auditor. However, we do not agree that appellant’s conduct in
the case sub judice is similar to the defendants’ conduct in
Baumgarden, Agee, and Truckey.
{¶63} First, in Truckey, the state did not allege, and none
of the evidence indicated, that the defendant falsified a
record. Instead, the allegation involved the defendant
concealing or removing a record. The court noted that all
interested parties knew that the defendant had the record, a
body camera video, in his possession.
{¶64} In the case at bar, by contrast, the state alleged
that appellant falsified a record (his 2012 financial disclosure
statement) by failing to list the FOJ fund as a creditor. The
state did not allege that appellant concealed or removed a
record, but, instead alleged that appellant falsified his 2012
financial disclosure form by failing to disclose that he owed
the FOJ fund more than $1,000. Moreover, the evidence does not
show that all interested parties knew that appellant used the
fund for personal expenses. Appellant listed the expenses on
37
VINTON, 20CA723
the January 2013 form that he filed with the auditor, but did
not list the FOJ fund as a creditor when he filed his 2012
financial disclosure statement. Thus, we find Truckey
inapposite.
{¶65} We likewise find Baumgarden unpersuasive. In
Baumgarden, the checks always were recorded on the company’s
books. None of the evidence established that the defendant kept
his use of company funds secret for any length of time. In the
case sub judice, however, even if appellant eventually listed
the expenses on his annual report submitted to the county
auditor, none of the evidence suggests that before that
disclosure, appellant’s personal use of the FOJ fund was readily
detectable or recorded as part of an official financial record.
{¶66} We believe that Agee also is inapposite. In that
case, the court determined that the state did not prove that the
defendant failed to properly report her income. By contrast, in
the case at bar, the state presented evidence that appellant’s
2012 financial disclosure statement did not list the FOJ fund as
a creditor. Thus, the case at bar does not involve a complete
lack of proof. Instead, this case is about whether the evidence
that the state submitted demonstrates that appellant had a
purpose to defraud or knew that he facilitated a fraud.
38
VINTON, 20CA723
{¶67} We agree with the state and the trial court that the
facts in the case at bar are more closely aligned with State v.
Burge, 9th Dist. Lorain No. 16CA010936, 2017-Ohio-5836, 2017 WL
3026471. In Burge, the defendant, a judge, filed financial
disclosure forms that failed to list a bank as a creditor, a
business that he and his wife owned, and his ownership interest
in commercial property. The state presented evidence to show
that the defendant had approved appointed counsel fees for two
attorneys who rented office space in the defendant’s commercial
property. One attorney testified at trial that the attorney
would have been unable to pay rent if he did not make money.
The state later charged appellant with several criminal
offenses, including tampering with records. A jury subsequently
found the defendant guilty of three counts of tampering with
records and three counts of falsification.
{¶68} After his conviction, the defendant appealed and
asserted, in part, that the state failed to present sufficient
evidence to support his tampering with records conviction. The
appellate court did not agree with the defendant. Instead, the
court concluded that, viewing the evidence “in a light most
favorable to the State,” shows “that any rational trier of fact
could have found beyond a reasonable doubt that [the defendant]
was guilty of tampering with records in violation of R.C.
39
VINTON, 20CA723
2913.42(A)(1).” Id. at ¶ 36. The court continued that if the
factfinder believed the evidence, the evidence demonstrated that
the defendant “knowingly obtained a benefit for himself, namely
a revenue stream for tenants of the commercial building for
which he was the primary guarantor.” Id. The court further
determined that the evidence also established that the defendant
“obtained this benefit through deception, namely by purposely
not disclosing the requisite information on his 2011, 2012, and
2013 financial disclosure forms which would have placed the
public on notice that he had a potential conflict of interest
with certain criminal defense attorneys.” Id. The court thus
affirmed the defendant’s tampering with records conviction.
{¶69} Similarly, in the case at bar appellant filed a
financial disclosure statement that failed to list the FOJ fund
as a creditor. He obtained a benefit by spending money that he
otherwise would have been unable to spend (appellant had
informed investigators that he used the FOJ fund when he did not
have enough money in his personal accounts) and obtaining an
interest-free loan from the FOJ fund. By failing to list the
FOJ fund as a creditor on his financial disclosure statement,
appellant avoided Ohio Ethics Commission scrutiny and possible
criminal or civil liability or disciplinary actions. Even
though the record does not contain direct evidence that
40
VINTON, 20CA723
appellant intended to defraud, the facts and circumstances
allowed the factfinder to determine that appellant possessed an
intent to defraud. State v. Bergsmark, 6th Dist. Lucas No. L-
03-1137, 2004-Ohio-5753, 2004 WL 2426236, ¶ 24, quoting State v.
Lee (Nov. 23, 1983), 4th Dist. No. 82 X 16 (“To have purpose to
defraud, ‘one must merely knowingly intend to obtain some
benefit or cause some detriment to another by way of
deception.’”).
{¶70} We therefore do not agree with appellant that the
state failed to present sufficient evidence to support his
tampering with records conviction. Additionally, because
sufficient evidence supports appellant’s tampering-with-records
conviction, any error the court may have committed by finding
appellant guilty of the merged offense, forgery, is harmless.
Thus, we need not consider appellant’s assignment of error as it
relates to the forgery offense.
{¶71} Accordingly, based upon the foregoing reasons, we
overrule appellant’s second assignment of error and affirm the
trial court’s judgment.
JUDGMENT AFFIRMED.
41
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JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that
appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate issue out of this
Court directing the Vinton County Common Pleas Court to carry
this judgment into execution.
If a stay of execution of sentence and release upon bail
has been previously granted, it is continued for a period of 60
days upon the bail previously posted. The purpose of said stay
is to allow appellant to file with the Ohio Supreme Court an
application for a stay during the pendency of the proceedings in
that court. The stay as herein continued will terminate at the
expiration of the 60-day period.
The stay will also terminate if appellant fails to file a
notice of appeal with the Ohio Supreme Court in the 45-day
period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court
dismisses the appeal prior to the expiration of said 60 days,
the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J., Abele, J. & Hess, J.: Concur in Judgment & Opinion
For the Court
BY:_______________________________
Jason P. Smith, Presiding Judge
BY:_______________________________
Peter B. Abele, Judge
BY:_______________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.