2017 Ohio 2838
Ohio Ct. App.2017Background
- Defendant Allan Vertucci, a building contractor, performed work at victims’ home from June 2012 to July 2014; victims paid roughly $80,000 plus ~$7,000 for materials.
- Many projects were started but left incomplete or performed in a non-workmanlike, hazardous manner (exposed wiring, unfinished plumbing, missing fixtures, unfilled excavations, etc.); some projects (roof, some cabinets, foyer/kitchen work) were completed.
- After complaints and an investigation, Vertucci was indicted and tried for theft from a person in a protected class (elderly victim).
- A jury convicted Vertucci; trial court sentenced him to three years’ imprisonment and ordered $87,617.50 in restitution.
- Vertucci appealed, raising (1) insufficiency of the evidence to sustain theft by deception, (2) trial court’s refusal to give two proposed jury instructions, and (3) the restitution amount.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to support theft by deception | Evidence of prolonged scheme: repeated requests for money, pattern of starting work but leaving most projects incomplete; circumstantial proof of intent to deprive | If contractor performs work (some substantial work here) prosecution cannot prove intent to permanently deprive; cites Chait/Coleman line | Affirmed. Viewing evidence in State's favor, a rational juror could find intent to deprive over a two-year scheme; performance of some work does not preclude theft-by-deception liability when facts support fraudulent scheme |
| Jury instructions (defense of performance; intent-at-time-of-taking instruction) | No specific new argument beyond asserting instructions were incorrect | Requested instructions would tell jury that starting or substantially performing is a defense and require proof of no intent at time money taken | Affirmed. Court did not abuse discretion: requested instructions misstated law (performance does not automatically negate intent) and were not required or binding |
| Restitution amount ($87,617.50) | Restitution should reflect actual loss but may require offsets for work performed and insurance payments | Trial court relied on amount of checks paid (~$80k) plus ~$7k materials; defendant presented no evidence at restitution hearing to offset | Affirmed. Court did not abuse discretion; restitution was reasonably related to victims’ economic loss given the record and lack of offset evidence |
Key Cases Cited
- State v. Thompkins, 78 Ohio St.3d 380 (legal standard for sufficiency review)
- State v. Jenks, 61 Ohio St.3d 259 (standard for reviewing sufficiency of evidence)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (abuse-of-discretion standard)
- State v. Bakies, 71 Ohio App.3d 810 (loan procured by deception requires proof defendant never intended to repay)
- State v. Otten, 33 Ohio App.3d 339 (standard for manifest-weight review referenced)