State v. Delmonico
2020 Ohio 3368
Ohio Ct. App.2020Background:
- Defendant Michael Delmonico, owner/operator of ProCode Construction, contracted with three clients (Vickie Krupka; Joyce and Tim Conway — Joyce aged 65+; Jessica Smith) and collected deposits totaling roughly $56,450 ($15,075; $23,100; $18,275).
- Minimal performance: Krupka received some work and inferior decking (composite ordered but not installed); the Conways had patio removal and crushed brick left but no cabinets delivered; Smith received only permit-related submissions and no cabinets or on-site labor.
- Clients’ checks were deposited into Delmonico’s business account, which he used for personal expenses (ATM cash withdrawals at casinos, family trips); no refunds were issued.
- Police investigation failed to verify vendor purchases tied to the three projects; Delmonico claimed orders/receipts but produced little documentary evidence at trial.
- Indicted under R.C. 2913.02(A)(2) for two counts of grand theft and one count of theft with an elderly specification; a jury found him guilty. Trial court sentenced him to an aggregate 48-month prison term and ordered restitution; Delmonico appealed.
Issues:
| Issue | State's Argument | Delmonico's Argument | Held |
|---|---|---|---|
| Sufficiency: whether evidence proved intent to deprive at time of contracting | Evidence (minimal performance, no documented purchases, use of funds for gambling/trips, no refunds) permits inference Delmonico intended to deprive clients | Partial performance and promised orders show intent to perform, not to steal | Convictions supported by sufficient evidence; intent may be inferred from circumstances |
| Manifest weight: whether verdict was against the weight of the evidence | Credible testimony and circumstantial evidence supported guilt; jury could disbelieve Delmonico’s receipts/orders claims | Testimony of some performance and claimed purchases undermines state’s proof | Verdict not against manifest weight; jury reasonably discredited Delmonico’s explanations |
| Consecutive sentences: whether trial court made required R.C. 2929.14(C)(4) findings | Court expressly found consecutive terms necessary to punish and protect public, not disproportionate, and cited prior record and great/unusual harm | Contended court failed to give specific statutory reasons for consecutive terms | Court’s on-the-record statements satisfied statutory findings; consecutive sentence affirmed |
Key Cases Cited
- State v. Thompkins, 78 Ohio St.3d 380 (1997) (standard for reviewing sufficiency of the evidence)
- State v. Jenks, 61 Ohio St.3d 259 (1991) (jury sufficiency review framing for Ohio law)
- State v. Leonard, 104 Ohio St.3d 54 (2004) (application of the Jenks sufficiency standard)
- State v. Herring, 94 Ohio St.3d 246 (2002) (intent for theft may be inferred from surrounding circumstances)
- State v. Martin, 20 Ohio App.3d 172 (1983) (standard for manifest-weight review)
- State v. Bonnell, 140 Ohio St.3d 209 (2014) (requirement and scope of on-the-record findings for consecutive sentences)
- State v. Robinson, 162 Ohio St. 486 (1955) (distinguishing sufficiency as a question of law)