STATE OF OHIO v. DANIEL BURNS
No. 95465
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 19, 2011
2011-Ohio-4230
S. Gallagher, J., Kilbane, A.J., and Celebrezze, J.
[Please see original opinion at 2011-Ohio-3056.]
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-531793
ATTORNEYS FOR APPELLANT
Stephen D. Hartman
Kerger & Hartman, LLC
33 S. Michigan Street
Suite 100
Toledo, OH 43604
Karin Coble
4334 W. Central Avenue
Suite 226
Toledo, OH 43615
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Mary Court Weston
Kristen L. Sobieski
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{1} Appellant Daniel Burns (“Burns“) appeals his conviction following a jury trial in Cuyahoga County Common Pleas Court Case No. CR-531793 of one count of engaging in a pattern of corrupt activity, four counts of tampering with records, and one count of theft in office. The trial court sentenced Burns to a six-year term of incarceration and ordered him to pay a $100,000 fine and $123,192.74 in restitution. For the following reasons, we affirm in part the decision of the trial court, reverse in part, and remand for further proceedings consistent with this opinion.
{2} Burns was the chief operating officer at the Cleveland Municipal School District (“CMSD“). Burns placed orders for three Ryobi duplicator machines from his co-defendant, John Briggle‘s (“Briggle“) company. In order to initiate the purchase, Burns created and processed a resolution to purchase. This resolution was circulated per CMSD policy to various decision-making persons within the organization. Once approved by all the necessary parties, the resolution
{3} After each check was issued, Burns had his secretary pick it up. Burns then hand-delivered the checks to Briggle. Briggle testified that he would cash the checks and split the proceeds with Burns. All of those events occurred between December 17, 2007 and about June 2008.
{4} In November 2008, a CMSD employee questioned the five transactions. The unusual aspect of the transactions was the fact that the three checks for the duplicators were each just under the $50,000 bid limit, which would have required a more formal process, and the purchases of the duplicators were accomplished in separate installments. The employee thought that most purchases of this nature should occur at one time to get the best pricing on the individual units. Last, the checks were hand-delivered, and the address of SOS was a residential house in Toledo, Ohio, not a commercial address.
{5} Briggle testified that he and Burns had an arrangement to create quotes and invoices for the duplicator machines without any intention to deliver them. The
{6} Briggle pleaded guilty to various charges and testified against Burns as part of the plea deal. Burns was convicted by a jury of one count of engaging in a pattern of corrupt activity in violation of
“I. The trial court violated Burns’ right to Due Process by failing to instruct the jury on the elements of theft, or the element of ‘deception,’ underlying the Theft in Office charge, and by not dismissing the Theft in Office count when the jury failed to find all the elements of theft, by deception or otherwise.”
“II. The trial court violated Burns’ right to due process by taking judicial notice of the ‘government record’ element of the tampering with records counts, and erred by denying his Crim.R. 29 motion for acquittal. In addition, the convictions were against the manifest weight of evidence.”
“III. The trial court abused its discretion when ordering restitution and imposing fines.”
“IV. There was no proof of an ‘enterprise’ separate and apart from the alleged criminal activity, to support a conviction for engaging in a pattern of corrupt activity. The conviction, therefore, was unsupported by the evidence and against the manifest weight of evidence.”
“V. Because the tampering with records and theft in office counts must be reversed, the conviction for engaging in a pattern of corrupt activity must also be reversed.”
“VI. The defendant was prejudiced by his trial counsel‘s deficient performance, and was thereby deprived of his 6th Amendment right to counsel.”
{7} We will address these assignments of error by combining any overlapping arguments.
Jury Instructions
{8} Burns‘s first assignment of error and the first part of the second assignment of error challenge the propriety of the trial court‘s jury instructions. Burns argues that the trial court improperly instructed the jury on the elements of a theft in office charge by omitting the specific elements of “theft” or “theft by deception.” The relevant portion of his second assignment of error challenges the jury instruction relating to the trial court taking judicial notice of the fact that CMSD is a governmental entity — a fact elevating the tampering with records from a misdemeanor to a felony level offense. These assignments of error are without merit.
{9} A defendant may not assign as error the giving or omitting any instructions unless she objects before the jury retires and further objects by “stating
{10} Under Ohio law, the state must prove every element of the charged offense beyond a reasonable doubt. Jury instructions that shift the state‘s burden, or relieve it altogether, violate a defendant‘s due process rights. State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 97. It has been long held that “an erroneous jury instruction does not constitute a plain error or defect under
{11} In the current case, Burns was charged with theft in office, which is defined as follows: “No public official or party official shall commit any theft offense, as defined in division (K) of section 2913.01 of the Revised Code, when either of the following applies: (1) The offender uses the offender‘s office in aid of committing the offense or permits or assents to its use in aid of committing the offense; [or] (2) [t]he property or service involved is owned by this state, * * *”
{12} We first note that Burns‘s conviction on the four counts of tampering with evidence could have served as the predicate theft offense for the theft in office charge. The state is not limited to proving a “theft” occurred. The state never specified the predicate theft offense in the indictment, nor argued that the charges of tampering with records served as such. Furthermore, the trial court‘s jury instruction stated that a “theft offense is [defined as] knowingly obtain[ing] or exerting control over property or services with purpose to deprive the owner of such property or services[,]” the first three elements of theft as defined in
{13} Burns argues the trial court‘s instruction improperly omitted all the elements of theft, which include the three elements contained in the court‘s above instruction in addition to one of the following: that the theft was committed without or beyond the consent of the owner, or by deception, threat, or intimidation.
{14} The state‘s case established that Burns and Briggle received money they were not entitled to by invoicing for equipment and services that were not delivered to CMSD. Implicitly, Burns either received money that exceeded the consent of CMSD, since the goods and services were never received and CMSD‘s consent was limited to paying for that which it received, or committed the theft by deceiving CMSD into believing that equipment was actually purchased. Under either characterization, the entire theft plan was set up to obtain something by deception. Burns submitted Briggle‘s false invoices, all of which were under the bid limit, to CMSD in order to deceive CMSD into paying for equipment never received and services never rendered. The omission of the specific instruction that the jury needed to find deception for the theft in office charge did not deprive Burns of a fair trial or result in a manifest miscarriage of justice in this case. The theft was predicated upon deception, unlike situations where the thief merely
2. Tampering with records jury instruction
{15} Burns next argues that if a trial court takes judicial notice of a fact in a criminal case, the court must instruct that such action creates a rebuttable presumption in favor of the fact established, compared to being irrefutably established.
{16} Trial courts are permitted to take judicial notice of adjudicative facts.
{17} In this case, the trial court took judicial notice of the fact that CMSD is a governmental entity. Tampering with records is elevated to a felony of the third degree if the records belong to a governmental entity.
{18} In this case, we agree with Burns. The trial court should have instructed the jury on the rebuttable presumption created by taking judicial notice of the fact that CMSD is a governmental entity. However, this minor omission would not have altered the outcome of the trial in this case, and Burns does not argue otherwise. The Ohio Revised Code consistently establishes that CMSD is a governmental entity. For example,
{19} Furthermore, the jury found Burns guilty of theft in office pursuant to
{20} Even if the jury was properly instructed on the judicial notice issue, Ohio statutes and case law conclusively establish that CMSD is a governmental entity and the jury already made the determination independent of the tampering with governmental records jury charge. No manifest miscarriage of justice stems from the trial court‘s inadvertent omission.
{21} For the foregoing reasons, Burns‘s first assignment of error and part of his second assignment of error on the jury instructions are overruled.
{22} Burns‘s second assignment of error in part challenges the weight of the evidence supporting the tampering with records counts, and the fourth and fifth assignments of error challenge the sufficiency of the evidence supporting the count of engaging in a pattern of corrupt activity.
{23} Although Burns premised his fourth assignment of error and the second part of his second assignment of error on a manifest weight of the evidence standard, Burns essentially challenges the sufficiency of the evidence. Burns‘s theory is that the state failed to introduce any evidence that he tampered with the specific invoices or that the “enterprise” engaged in activity separate from the corrupt activity as required. Burns raised both arguments in a
{24} In reviewing a claim of insufficient evidence, “the relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks (1991), 61 Ohio
1. Tampering with records
{25} Burns was convicted of tampering with evidence. The statute prohibits one from knowingly defrauding or facilitating a fraud by tampering with a record.
{26} In this case, the jury found Burns guilty of tampering with records; the records being identified as four invoices from SOS. At trial, the evidence established that Briggle created false invoices that were delivered to Burns, who in turn delivered the false invoices to the appropriate parties at CMSD. There was a separate count for tampering with the resolution authorizing a purchase order that was dismissed prior to trial. Burns argues that Briggle testified to creating the
{27} Briggle testified to creating the invoices based on the information Burns provided in the resolutions. The state argues that since Burns created the resolutions that led to the creation of the invoices, he therefore tampered with the invoices. We find this argument without merit. The state could have charged Burns with tampering with the resolutions by providing false information for the
{28} It can also be argued that Burns tampered with the records if we expand our consideration of the record to include more than just the single document. However, the indictment specifically refers to “invoices.” The tampering with record statute relied on by the state requires proof beyond a reasonable doubt that Burns falsified, destroyed, removed, concealed, altered, defaced, or mutilated the four invoices listed in the indictment.
2. Engaging in a pattern of corrupt activity
{29} In Burns‘s fourth assignment of error, he argues that the state failed to establish the “enterprise” element of the count of engaging in a pattern of corrupt activity because an enterprise must be separate from the pattern of corrupt activity. In other words, Burns argues that the state failed to establish the “distinctness
{30} The jury found Burns guilty of engaging in a pattern of corrupt activity. The relevant statute states in pertinent part: “No person employed by, or associated with, any enterprise shall conduct or participate in, directly or indirectly, the affairs of the enterprise through a pattern of corrupt activity or the collection of an unlawful debt.”
{31} Burns relies on this court‘s decision in Herakovic v. Catholic Diocese of Cleveland, Cuyahoga App. No. 85467, 2005-Ohio-5985, for the proposition that to prove an association-in-fact enterprise, the state must establish the enterprise‘s separate existence, or distinctness, from the corrupt activity. Such reliance is misplaced. “Enterprise” is also defined as a corporation, sole proprietorship, or
{32} In this case, SOS was the enterprise. SOS lawfully engaged in business activity outside the activities associated with the pattern of corrupt activity. The state did not attempt to prove an association-in-fact enterprise, and we find the statement from Herakovic persuasive. The fact that SOS is a legal entity pursuing other lawful activities establishes the distinctness element separate and apart from the corrupt activity. Therefore, there was sufficient evidence establishing an enterprise, and Burns‘s fourth assignment of error is overruled.
{33} In his fifth assignment of error, Burns argues that because the two predicate offenses, tampering with records and theft in office, must be reversed, it must follow that the conviction for the engaging in a pattern of corrupt activity also must be reversed. We note that we have already overruled Burns‘s first assignment of error pertaining to the theft in office count. We will address this assignment of error only as it relates to the counts of tampering with records. Burns‘s fifth assignment of error is without merit.
{34} The jury found Burns guilty of engaging in a pattern of corrupt activity in violation of
{35} In other words, the state need not obtain a conviction for the predicate offenses in order obtain a conviction for engaging in a pattern of corrupt activity. It is sufficient to prove beyond a reasonable doubt the elements of the predicate offense. More important, the state need not prove that Burns actually engaged in the predicate offenses. Burns‘s guilt can be based on conspiring to engage in the predicate offenses, as specifically noted in the indictment and jury instructions.
{36} Burns third assignment of error challenges the trial court‘s decision to impose fines and restitution without determining his ability to pay and without holding a hearing to establish the amount of restitution.
{37} We review the trial court‘s imposition of fines and restitution under the abuse of discretion standard. The term abuse of discretion means “an unreasonable, arbitrary, or unconscionable action.” State ex rel. Doe v. Smith, 123 Ohio St.3d 44, 47, 2009-Ohio-4149, 914 N.E.2d 159. It is “a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence. The term has been defined as a view or action that no conscientious judge, acting intelligently, could honestly have taken.” (Citations and quotations omitted.) State v. Hancock, 108 Ohio St.3d 57, 77, 2006-Ohio-160, 840 N.E.2d 1032.
{38} At the sentencing hearing, the trial court imposed restitution in the amount of $23,192.74 for the cost of the state audit and $100,000 for the insurance deductible paid by CMSD. The trial court also imposed a $100,000 fine. Before addressing the merits of the assignment of error, we first note that the original sentencing entry dated July 14, 2010, incorrectly memorialized the trial court‘s announced decision. The original sentencing entry stated the restitution totaled $223,192.74, rather than the $123,192.74 announced. Thus, the nunc pro tunc entry entered on July 29, 2010, was the proper remedy to correct the clerical
{39} Courts may order restitution to compensate the victims under certain conditions.
{40} However, Burns filed the within appeal on July 27, 2010, divesting the trial court of jurisdiction to resolve the restitution issue. The July 14, 2010 order contained all the required elements to constitute a final appealable order. Most important for this discussion, it contained a definite amount of restitution. See State v. Brewer, Cuyahoga App. No. 94144, 2010-Ohio-5242. There is no
{41} We now turn to the imposition-of-fines issue. Courts may impose fines upon the offender provided that the court considers the offender‘s present and future ability to pay the amount of restitution.
{42} This court has previously held that “[p]rior to imposing restitution, a trial court shall consider the offender‘s present and future ability to pay the amount of the sanction or fine.
{43} Burns did not object to the amount of the fine. His only objection was to the amount of restitution. We agree with the state that there was ample evidence from the sentencing hearing and the trial itself to establish Burns‘s ability to pay the fine. Burns made over $300,000 a year from working for CMSD and his pension, and owned a home and multiple cars. Furthermore one of Burns‘s defenses at trial was that he made enough money and carried little debt so there was no reason to steal. The trial court may rely on trial testimony in considering the defendant‘s ability to pay fines. Id. The trial court, however, did not indicate at the sentencing hearing whether it considered Burns‘s present or future ability to pay the fine.
{44} For the foregoing reasons, Burns‘s third assignment of error is sustained. We remand the case for the limited purpose of holding a hearing on the amount restitution and to resolve whether the court considered Burns‘s present and future ability to pay the financial sanctions.
{45} Burns‘s sixth assignment of error raises an ineffective assistance of counsel, claiming his trial counsel did not object to the improper jury instruction on the theft in office charge and by not objecting to the imposition of restitution and fines. Our disposition of Burns‘s third assignment of error renders the latter argument moot.
{46} In order to substantiate a claim of ineffective assistance of counsel, the appellant must show that (1) counsel‘s performance was deficient and (2) the deficient performance prejudiced the defendant so as to deprive him of a fair trial. State v. Trimble, 122 Ohio St.3d 297, 310, 2009-Ohio-2961, 911 N.E.2d 242, citing Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. Judicial scrutiny of defense counsel‘s performance must be highly deferential. Strickland, 104 S.Ct. at 2065. In Ohio, there is a presumption that a properly licensed attorney is competent. State v. Calhoun, 86 Ohio St.3d 279, 1999-Ohio-102, 714 N.E.2d 905. The defendant has the burden of proving his counsel rendered ineffective assistance. State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 223.
{47} As we previously stated, the state‘s entire case established that Burns and Briggle received money that they were not entitled to receive by setting up the purchase of equipment and services that were not delivered to CMSD. Implicit in
Conclusion
{48} For the foregoing reasons, Burns‘s second assignment of error is sustained in part and his third assignment of error is sustained. All others are overruled.
{49} We affirm the decision of the trial court in part, reverse in part, and remand for further proceeding consistent with this opinion.
It is ordered that appellant and appellee share 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 common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
SEAN C. GALLAGHER, JUDGE
MARY EILEEN KILBANE, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR