STATE OF OHIO v. JAMES M. BURGE
C.A. No. 16CA010936
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
July 17, 2017
[Cite as State v. Burge, 2017-Ohio-5836.]
SCHAFER, Presiding Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 14-CR-090303
Dated: July 17, 2017
SCHAFER, Presiding Judge.
{1} Defendant-Appellant/Cross-Appellee, James Burge, and Plaintiff-Appellee/Cross-Appellant, the State of Ohio, appeal the judgment of the Lorain County Court of Common Pleas. For the reasons set forth below, we affirm in part, dismiss in part, reverse in part, and remand.
I.
{2} Burge was a judge on the Lorain County Court of Common Pleas from 2007 until 2013. This matter involves Burge‘s criminal convictions for falsifying and tampering with the 2011, 2012, and 2013 financial disclosure forms that he, as an elected official, was required to file with the Ohio Ethics Commission. See
{4} In 2006, Burge was elected to a six-year term as a judge on the Lorain County Court of Common Pleas. On January 11, 2007, roughly one week after taking the bench, the Burges and Tully entered into a purchase agreement with Shimane and Azuree Smith, wherein they assigned their respective interests in Whiteacre North to the Smiths. The assignment provided that the Smiths would pay all of the building‘s expenses. The assignment further provided that the contract period was to continue for four years. As such, pursuant to the contract, on or before January of 2011, the Smiths were required to either purchase the building or sell the building to a third party and to make a $35,000.00 lump-sum payment to both Burge and Tully.
{5} However, although Burge assigned his interest in Whiteacre North to the Smiths, Burge never notified Lorain National Bank of the assignment, nor was the assignment ever recorded. Thus, despite Burge‘s assignment of his interest in Whiteacre North to the Smiths, Lorain National Bank still considered Burge as a guarantor on the commercial building‘s mortgage and the bank could have held Burge personally liable if the Smiths ever defaulted on the building‘s mortgage payments. Bank documents also reveal that Burge was named as a
{6} In January of 2011, the Smiths were experiencing financial hardship and were unable to complete the terms of the purchase agreement. At the end of the four-year contract period, the Smiths’ interest in Whiteacre North reverted back to Tully and the Burges. A few months later, on June 7, 2011, Burge assigned his interest in Whiteacre North, including his rights under the contract with the Smiths, to his wife for the sum of $1.00. It is undisputed that from the time Burge regained his interest in Whiteacre North in January of 2011 until the time that he assigned his interest in Whiteacre North to his wife in June of 2011, Burge approved fee applications for appointed attorneys who were tenants of the commercial building in question. On June 20, 2011, Burge sent a letter to Dennis Will, the Lorain County Prosecutor, informing him that he had assigned his interest in Whiteacre North to his wife and that he no longer had any interest in the company or in the commercial building.
{7} While serving as a judge on the Lorain County Court of Common Pleas from 2007 until 2013, Burge filed annual financial disclosure forms with the Ohio Ethics Commission, as was mandated by state law. See
{8} On August 20, 2014, roughly nine months after the Ohio Attorney General Office initiated its investigation into the veracity of his financial disclosure forms, Burge filed amended financial disclosure forms for the years 2011, 2012, and 2013. Specifically, all of Burge‘s amended filings listed Lorain National Bank as a creditor, Whiteacre North as a business that he or his wife operated, and the commercial building as real estate in which he had an ownership interest.
{9} On September 24, 2014, a Special Grand Jury in Lorain County issued a 12-count indictment charging Burge with the following: three counts of falsification (Counts I, V, and IX) in violation of
{11} After the jury returned its verdict, Burge made a motion to have the trial court reduce his tampering with records convictions (Counts II, VI, and X) from felonies to misdemeanors pursuant to State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256. The trial court granted Burge‘s motion over the State‘s objection. Burge also moved the trial court to merge his falsification convictions with his tampering with records convictions for purposes of sentencing, arguing that those offenses are allied offenses of similar import. The trial court denied Burge‘s motion to merge his convictions. On May 26, 2015, the trial court sentenced Burge and issued its judgment entry of conviction and sentence that same day.
{12} Burge filed a notice of appeal from the trial court‘s May 26, 2015 judgment entry, but this Court dismissed the attempted appeal for lack of a final appealable order. See State v. Burge, 9th Dist. Lorain No. 15CA010798 (Oct. 23, 2015). The trial court held a resentencing hearing on remand, at which time the trial court sentenced Burge according to law. The trial court issued its sentencing entry on January 12, 2016. Burge filed a notice of appeal from the trial court‘s January 12, 2016 judgment entry, but this Court again dismissed Burge‘s attempted
{13} Burge ultimately filed a motion for leave to file a delayed appeal pursuant to App.R. 5, which this Court granted. See State v. Burge, 9th Dist. Lorain No. 16CA010936 (Apr. 25, 2016). On appeal, Burge raises three assignments of error for our review. The State has filed a cross-appeal and raises one assignment of error for our review.
II.
Burge‘s First Assignment of Error
Appellant‘s convictions on counts 1, 5 and 9 of the indictment (falsification) and on counts 2, 6 and 10 (tampering with records) are not supported by sufficient evidence, and the trial court erred in overruling [A]ppellant‘s Crim.R. 29 motion for judgment of acquittal at the close of the [S]tate‘s case and at the close of the evidence.
{14} In his first assignment of error, Burge argues that his criminal convictions for falsification and tampering with records are supported by insufficient evidence. We disagree.
{15} “We review a denial of a defendant‘s Crim.R. 29 motion for acquittal by assessing the sufficiency of the State‘s evidence.” State v. Smith, 9th Dist. Summit No. 27389, 2015-Ohio-2842, ¶ 17, quoting State v. Frashuer, 9th Dist. Summit No. 24769, 2010-Ohio-634, ¶ 33. A sufficiency challenge of a criminal conviction presents a question of law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In carrying out this review, our “function * * * is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. “Circumstantial and direct evidence inherently possess the same probative value.” Id. at paragraph one of the syllabus. After such an examination and taking the evidence in the light
A. Falsification
{16} Burge was convicted of three counts of falsification in violation of
1. Burge Made False Statements
{17} Upon reviewing the record in this matter, we determine that the State presented sufficient evidence showing that Burge made a false statement in writing on a report that was
{18} At trial, Richard Dove, the director of the Board of Professional Conduct at the Supreme Court of Ohio, testified that all elected officials in Ohio are required by statute to file a financial disclosure form on an annual basis. Paul Nick, the executive director of the Ohio Ethics Commission, testified that because Burge signed a guaranty agreement with Lorain National Bank, Burge was required to list Lorain National Bank as a creditor on his financial disclosure forms. Mr. Nick explained that by signing the guaranty agreement, Burge and Lorain National Bank had a creditor-debtor relationship, especially since the guaranty agreement contained a confession of judgment to the debt. Mr. Nick also testified that the guaranty agreement made Burge primarily liable for the mortgage on the commercial building and that, for purposes of the guaranty agreement, Burge “[stood] in the shoes of Whiteacre North[.]” Mr. Nick further testified that the guaranty agreement contained a list of actions that the bank would consider to be a default, one of which was if Burge assigned or transferred his interest in Whiteacre North at any time. Moreover, Mr. Nick testified that even if Burge transferred his interest in Whiteacre North to a third party, Burge would still be required to list Lorain National Bank on his financial disclosure forms as long as the guaranty agreement remained in effect.
{19} Furthermore, Mr. Nick testified that in 2010, the Ohio Ethics Commission‘s website contained a “frequently asked questions” page, wherein it explained that an elected official is required to disclose the names of creditors transacting business in Ohio to whom he or she owes or owed a debt of more than $1,000.00 at any time during the calendar year, either in their own name, or in the name of another person. For example, if an elected official would be
{20} Regarding the specific representations made within Burge‘s financial disclosure forms, Mr. Dove testified that Burge did not list Lorain National Bank as a creditor to whom he owed more than $1,000.00 in 2010 on his 2011 financial disclosure form. Thomas Brokamp, a special agent with the Ohio Bureau of Criminal Investigation‘s special investigations unit, testified that the commercial building in question was worth over $1,000.00 and that the original mortgage amount for the commercial building totaled $365,000.00. Christian Athey, a vice president of Lorain National Bank‘s commercial loan department, testified that Burge was a guarantor to the commercial building‘s mortgage and that the bank could have held Burge personally liable if payments on the building‘s mortgage ever ceased being made.
{21} Moreover, with regard to the content of the 2012 and 2013 financial disclosure forms, Mr. Dove testified that if a judge or a judge‘s spouse has an ownership interest in real property or a limited liability company during a given filing cycle, the judge would need to list
{22} Mr. Dove further testified that on his 2011 and 2012 financial disclosure forms, Burge represented that he had no real estate that he was required to list. Agent Brokamp buttressed Mr. Dove‘s testimony on this point by testifying that Burge failed to list the commercial building as real estate in which he had an interest on his 2011, 2012, and 2013 financial disclosure forms. Agent Brokamp testified that Burge also failed to list Whiteacre North as a business that either he or his wife operates on his 2011, 2012, and 2013 financial disclosure forms. Although Burge argues that he did not have an ownership interest in either Whiteacre North or the commercial property following the assignment of his interest in the company to the Smiths in 2007, Prosecutor Will testified that he received a letter from Burge that was dated June 11, 2011, wherein Burge explained that he had reacquired an interest in Whiteacre North on February 12, 2011. Thus, Burge‘s own letter to Prosecutor Will indicates that the purchase agreement between Burge and the Smiths was never completed and that Burge possessed at least a contingency interest in Whiteacre North and the commercial building at all times between 2007 until 2011.
{23} Lastly, Burge argues on appeal that he was not required to list Whiteacre North as a business that either he or his wife operated since Whiteacre North did not constitute a business. We reject this argument on its face, especially considering Whiteacre North was registered as a limited liability company. See MFP Eagle Highlands, LLC v. American Health Network of Indiana, LLC, S.D.Ohio No. 1:07-CV-0424-DFH-WGH, 2009 WL 77679, *5 (Jan. 9, 2009) (“A
{24} Based on the foregoing evidence, we conclude that the State presented sufficient evidence that Burge made a false statement in writing on a report that was required by law. That is, Burge failed to disclose mandatory information on his 2011, 2012, and 2013 financial disclosure forms.
2. Burge Acted Knowingly
{25} With regard to the mens rea component of the falsification statute, we determine that the State presented sufficient evidence demonstrating that Burge knowingly made the false statements on his 2011, 2012, and 2013 financial disclosure forms.
a. 2011 Financial Disclosure Forms
{26} At trial, Mr. Athey testified that although the Burges and Tully assigned their respective interests in Whiteacre North to the Smiths in January of 2007, the bank was unaware of this assignment since Burge never informed the bank of the assignment and never filed the assignment with the county recorder‘s officer. As such, Mr. Athey testified that despite the assignment to the Smiths, Burge was always the principal guarantor of the commercial property‘s mortgage and that the bank could have held Burge personally liable if the mortgage payments stopped being made. Mr. Athey also testified that Burge was listed as a signatory on Whiteacre North‘s bank account until 2012, and that Lorain National Bank considered Burge to be an owner of the commercial building continuously from 1997 through 2011.
{28} Viewing this evidence in the aggregate and in a light most favorable to the State, we determine that any rational trier of fact could have found beyond a reasonable doubt that Burge knowingly falsified his 2011 financial disclosure form.
b. 2012 & 2013 Financial Disclosure Forms
{29} Turning to Burge‘s 2012 and 2013 financial disclosure forms, we likewise conclude that the State put forth sufficient evidence at trial demonstrating that Burge acted knowingly when he omitted requisite information from his 2012 and 2013 financial disclosure forms.
{30} At trial, Prosecutor Will testified that upon Burge‘s election to the Lorain County Court of Common Pleas in 2007, he was aware of Burge‘s potential proprietary involvement with the commercial building whose tenants included a number of criminal defense attorneys. Prosecutor Will testified that his office refused to waive this potential conflict of interest any time that one of the building‘s tenants appeared in Burge‘s courtroom during a criminal proceeding. Prosecutor Will further testified that Burge sent him a letter dated June 11, 2011,
{31} Viewing this evidence in a light most favorable to the State, we determine that any rational trier of fact could have found beyond a reasonable doubt that Burge knowingly falsified his 2012 and 2013 financial disclosure forms.
B. Tampering with Records
{32} Burge was also convicted of three counts of tampering with records in violation of
{33} “Privilege’ means an immunity, license, or right conferred by law, bestowed by express or implied grant, arising out of status, position, office, or relationship, or growing out of
{34} At trial, Mr. Athey testified that despite Burge‘s assignment of Whiteacre to the Smiths in 2007, Lorain National Bank was unaware of this assignment and Burge was still continuously a guarantor on the commercial building‘s mortgage. Similarly, Agent Brokamp testified that his investigation into the matter revealed that Burge was personally liable for the mortgage in the event of a default on the mortgage payments.
{35} Moreover, Paul Griffin and J. Anthony Rich, two attorneys who rented office space in the commercial building from Whiteacre North, testified on behalf of the State. Mr. Rich testified that he moved into the commercial building in March of 2007 and paid rent regularly to Whiteacre North. Mr. Griffin testified that he was a tenant in the commercial building from October 2003 until December 2014 and that he also regularly paid rent to Whiteacre North. Mr. Griffin testified that Whiteacre North owned the commercial building and that he believed Burge was an owner of Whiteacre North. Mr. Griffin and Mr. Rich both testified that Burge approved their applications for appointed counsel fees during his judicial
{36} Viewing this evidence in a light most favorable to the State, we determine that any rational trier of fact could have found beyond a reasonable doubt that Burge was guilty of tampering with records in violation of
{37} Burge‘s first assignment of error is overruled.
Burge‘s Second Assignment of Error
Appellant‘s conviction[s] [are] against the manifest weight of the evidence.
{38} In his second assignment of error, Burge argues that his convictions are against the manifest weight of the evidence. Specifically, Burge argues that the jury clearly lost its way when it found that he falsified his financial disclosure forms in order to defraud the Ohio Ethics Commission. We disagree.
{40} Having reviewed the record, we cannot conclude that the jury lost its way when it determined that Burge was guilty of falsification and tampering with records. The jury heard testimony that Burge omitted necessary information from his 2011, 2012, and 2013 financial disclosure forms. Moreover, the manner in which the State made its case was such that the jury was able to infer from the timeline of events that Burge acted knowingly when he made false statements on his respective financial disclosure forms. Finally, the jury heard testimony from Mr. Rich and Mr. Griffin from which it could infer that Burge knowingly obtained a benefit from falsifying his 2011, 2012, and 2013 financial disclosure forms. Although Burge presented some evidence that the omissions on his financial disclosure forms were unintentional, the jury ultimately chose to believe the State‘s evidence over Burge‘s.
{41} “This Court has repeatedly held that the trier of fact is in the best position to determine the credibility of witnesses and evaluate their testimony accordingly.” State v. Johnson, 9th Dist. Summit No. 25161, 2010-Ohio-3296, ¶ 15. We “will not overturn a conviction as being against the manifest weight of the evidence simply because the trier of fact
{42} Burge‘s second assignment of error is overruled.
Burge‘s Third Assignment of Error
The trial court committed prejudicial error in denying [A]ppellant‘s motion to merge counts 1 and 2, counts 5 and 6, and counts 9 and 10 of the indictment for sentencing, as these counts charge allied offenses of similar import, based upon offense conduct. []
{43} In his third assignment of error, Burge argues that the trial court erred by failing to merge his convictions for falsification and tampering with records. He was found guilty of both counts for all three financial disclosure reports, but he argues that he should have been convicted of only one offense for each annual report.
{44}
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
In order to determine whether multiple offenses are allied offenses of similar import, courts must consider the nature of the defendant‘s conduct. “If any of the following is true, the offenses cannot merge and the defendant may be convicted and sentenced for multiple offenses: (1) the offenses are dissimilar in import or significance—in other words, each offense caused separate,
{45} Prior to sentencing, Burge filed a motion arguing that his convictions for falsification and tampering with records should merge as they are allied offenses of similar import. At Burge‘s sentencing hearing, the trial court heard argument from the parties on this particular issue, after which the trial court summarily denied Burge‘s motion and proceeded to sentence him according to law.
{46} Here, it is unclear from the face of the record whether these offenses could not merge. Although the parties presented arguments to the trial court on whether or not Burge‘s convictions should merge, the trial court did not engage in any meaningful analysis on the record. Consequently, we remand this matter to the trial court for it to analyze and determine on the record whether Burge‘s falsification and tampering with records convictions are allied offenses of similar import.
{47} Burge‘s third assignment of error is sustained insofar as the trial court did not conduct a substantive merger analysis on the record for this Court to review.
State‘s Assignment of Error
The trial court erred when it reduced Appellant‘s convictions for Tampering with Records from felonies to misdemeanors pursuant to
R.C. 2945.75 .
{48} In its sole assignment of error, the State argues that the trial court erred by reducing Burge‘s convictions for tampering with records from felonies to misdemeanors pursuant to the Supreme Court of Ohio‘s decision in Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256.
{50} When jurisdiction appears uncertain, a court of appeals must raise issues of jurisdiction sua sponte. Kouns v. Pemberton, 84 Ohio App.3d 499, 501 (4th Dist.1992), citing In re Murray, 52 Ohio St.3d 155, 159, fn. 2 (1990). The Supreme Court of Ohio has held that an untimely notice of appeal does not invoke this Court‘s jurisdiction. See Transamerica Ins. Co. v. Nolan, 72 Ohio St.3d 320 (1995), syllabus.
{51} Here, the trial court issued its sentencing entry on January 12, 2016. On April 1, 2016, Burge filed a notice of appeal along with a motion for leave to file a delayed appeal. Subsequently, on April 13, 2016, the State filed a notice of cross-appeal from the trial court‘s January 12, 2016 judgment pursuant to App.R. 4(B) and App.R. 14(C), wherein the State noted it was “appealing as a matter of right under
{52} Pursuant to App.R. 3(A), an “appeal as of right” shall be taken by filing a notice of appeal with the clerk of the trial court within the time allowed by App.R. 4. Regarding a cross-appeal, App.R. 3(C)(1) states that “[a] person who intends to defend a judgment or order against an appeal taken by an appellant and who also seeks to change the judgment or order * * *
{53} Upon review of the record in this matter, we conclude that the State‘s notice of cross-appeal was untimely filed. As previously noted, the trial court‘s sentencing entry, which was a final appealable order, was filed on January 12, 2016. However, the State did not file its notice of cross-appeal until April 13, 2016, more than 30 days after the trial court issued the January 12, 2016 sentencing entry. Moreover, because Burge initially filed an untimely notice of appeal and was required to seek leave from this Court prior to proceeding with the instant appeal, his notice of appeal was not timely filed. Thus, App.R. 4(B)(1) is inapplicable. See State v. Jones, 8th Dist. Cuyahoga No. 77657, 2001 WL 605406, *4, fn. 1 (May 24, 2001) (Kilbane, J., Dissenting) (opining that the State would not be entitled to a cross-appeal from a defendant‘s delayed appeal under App.R. 4(B)(1)). As such, because the State did not take an appeal as of right within the time allowed by App.R. 4 and has no right to take a delayed appeal, see App.R. 5, we conclude that the State‘s notice of cross-appeal was not timely filed and that this Court is without jurisdiction to consider the State‘s cross-appeal.
{54} The State‘s cross-appeal is dismissed.
{55} Burge‘s first and second assignments of error are overruled and his third assignment of error is sustained insofar as the trial court failed to properly consider the issue of merger. The State‘s cross-appeal is dismissed. The judgment of the Lorain County Court of Common Pleas is affirmed in part, reversed in part, and this matter is remanded for further proceedings consistent with this opinion.
Appeal dismissed in part, and judgement affirmed in part, reversed in part, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
JULIE A. SCHAFER
FOR THE COURT
CALLAHAN, J.
CONCUR.
APPEARANCES:
MICHAEL E. STEPANIK, Attorney at Law, for Appellant/Cross-Appellee.
MIKE DEWINE, Attorney General, and MATTHEW DONOHUE and MARGARET TOMARO, Assistant Attorneys General, for Appellee/Cross-Appellant.