State v. GordonState v. Gordon
F. Stephen Chamberlain for Appellant
Ken Egbert, Jr. for Appellee
{¶1} Defendant-Appellant, Forest L. Gordon (“Gordon“), appeals the judgments of the Putnam County Court of Common Pleas finding him guilty of two counts of theft in office. On appeal, Gordon claims that the jury‘s decision was against the manifest weight of the evidence; that there was insufficient evidence to prove he utilized his office to facilitate the commission of the offenses; and that the trial court abused its discretion when it sentenced Gordon to more than minimum sentences for his first criminal offense. For the reasons set forth below, the judgments are reversed.
{¶2} Gordon was Chief of Police of the Village of Kalida from May 10, 2002 through July 25, 2007. On July 26, 2007, Gordon began serving as the Assistant Chief of Police for the Village of Ottawa, although he also continued working as a part-time police officer or “acting chief” for Kalida until October 12, 2007, when a new police chief, Michael Giblin (“Chief Giblin“), was hired. Beginning January 1, 2008, Gordon served as the Chief of Police for Ottawa until his termination on January 28, 2008,
{¶3} Gordon was indicted on two counts of Theft in Office, in violation of
{¶4} Gordon entered pleas of not-guilty in both cases and a three-day jury trial was held in January 2010. The State presented testimony from numerous witnesses, including Chief Giblin; Richard Knowlton (“Chief Knowlton“), Ottawa‘s Chief of Police prior to Gordon, who then became the Safety Director of Ottawa; and Sammy Justice (“Agent Justice“), the special agent in the Major Crimes Division of the Ohio Bureau of Criminal Identification and Investigation
{¶5} Gordon testified in his own defense and denied any wrong-doing. Concerning the Ottawa firearms case, Gordon testified that Chief Knowlton gave him some unused service weapons and several old firearms from the evidence room and asked that he try to sell them to raise money for special drug programs that Ottawa wanted to implement. Gordon had once been a gun dealer, so he thought he could help his friend, Chief Knowlton, raise extra money by disposing of these old weapons. Gordon insisted that he gave Chief Knowlton all of the money that he received from the sale of the guns.
{¶6} As to the Kalida case, Gordon denied that he was the person who participated in the Internet instant message (“IM“) conversations, testifying that at least nine or ten other Kalida police officers and employees had access to the computers; that everyone using the computer logged onto the one account that was set up in the name of “Forest Gordon“; that the account was not password protected; that the dates and times on the computer print-out logs might not be accurate because they were dependent upon the time/date settings on the computer, which could easily be changed; and that he did not use any of the screen
{¶7} Gordon also testified that he did not intend to overcharge the two Kalida police officers for their weapons and that he only charged them their share of what he believed to be the list prices of the guns on the lease/purchase program. He denied “pocketing” any extra money and testified that he sent all of the funds he received from the officers to Smith & Wesson for each quarterly lease payment.
{¶8} Lastly, Gordon claimed that he returned all of the uniforms and equipment that he believed to be Kalida‘s property when he left his employment. However, the State issued a search warrant and found some additional equipment at his home. Gordon testified that the holsters and leather equipment belts belonged to him because he had received some of them during his employment with other police departments prior to working for Kalida and that he had purchased some of this equipment himself through the Village of Kalida. He acknowledged that the body armor (a bulletproof vest) belonged to Kalida and should have been returned, but testified that it was in the back of his closet, he
{¶9} After hearing all the evidence, the jury returned a verdict of guilty on both counts. The Ottawa firearms case was a felony of the fifth degree because the jury found that it involved the theft of property valued at less than five hundred dollars. The Kalida case was a felony of the fourth degree, with the jury finding that it involved property “valued at more than five hundred dollars, but less than five thousand dollars.”
{¶10} On March 26, 2010, the trial court sentenced Gordon to nine months in prison for the Ottawa firearms case and twelve months for the Kalida property case, with both sentences to be served concurrently. The trial court also ordered Gordon to pay restitution and costs and informed him that he would not be permitted to hold any positions of public trust thereafter. In the Ottawa Firearms case, Gordon was ordered to pay $485 in restitution to Ottawa. The restitution ordered in the Kalida property and services case was as follows: $57.80 and $233 to Officers Weaks and Strick for the gun lease overcharge, and $1,221.48 to the Village of Kalida. Gordon was released on his own recognizance pending appeal.
First Assignment of Error
The trial court committed error in that [Gordon‘s] conviction was against the manifest weight of the evidence presented at trial and the jury clearly lost its way.
Second Assignment of Error
The trial court committed error in that there is a lack of nexus between the public office held by [Gordon] and the facilitation of the crime of theft that precludes conviction on the specific offense of theft in office as to Case No. 09-CR-19 in the trial court below.
Third Assignment of Error
The trial court committed error in that it abused its discretion in sentencing [Gordon] to non-minimum terms of prison based upon the record and statement of reasons set forth by the trial court at sentencing.
{¶12} Gordon maintains that the jury clearly lost its way and that its decision was against the manifest weight of the evidence. Gordon charges that the State presented testimony that was “unreliable, contradictory, self serving and lacking in substance” and also presented evidence that was designed to inflame the passions of the jury rather than persuade them with clear facts. Gordon also argued that there was insufficient evidence to support his conviction, and that sentencing him to non-minimum terms for a first offense was improper.
A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways:
***
(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent;
(3) By deception; ***
{¶14} A challenge to a conviction based on the manifest weight of the evidence concerns “the inclination of the greater amount of credible evidence, offered in a trial to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before
{¶15} The State presented testimony from twenty different witnesses in support of its cases, along with 63 different documents and exhibits that were admitted into evidence. Sometimes several witnesses would provide corroborating testimony concerning a particular event, although there were many instances when the witnesses had different recollections as to what had occurred, or they “didn‘t remember” or “didn‘t recall.” Most of the allegations against Gordon involved events that happened four or more years prior to the trial. In order to clarify the issues, we will review each count/case separately.
Case No. 9-CR-19 – The Ottawa Firearms Case
{¶16} The State claimed that Gordon sold several older firearms from Ottawa‘s evidence and property rooms, without permission, and that he did not give Chief Knowlton all of the money he received from the sale of these weapons. Gordon, however, insisted that Knowlton gave him the guns with the expectation that Gordon would sell them. Gordon also claimed that he gave Knowlton all of the proceeds from selling the weapons.
{¶17} Chief Knowlton acknowledged that sometime around late 2005 or early 2006, he gave Gordon several older and unused firearms from Ottawa‘s
{¶18} In his first assignment of error, Gordon argues that the trial court‘s decision was against the manifest weight of the evidence because the testimony concerning the gun sales was confusing and contradictory and that there was no definitive evidence that Gordon did not have permission to sell the guns. However, because Gordon‘s second assignment of error is dispositive of this issue, we shall address it first.
{¶19} In Gordon‘s second assignment of error concerning the Ottawa firearms case, Gordon argues that there was not sufficient evidence that Gordon used his position as an officer with the Village of Kalida in committing the offense pursuant to
{¶20} Gordon cites State v. Bowsher (1996), 116 Ohio App.3d 170, 687 N.E.2d 316, for the proposition that there must be some “palpable nexus between the auspices of the office and the wrongdoing” before a defendant can be convicted of “theft in office.” Id. at 175. In that case, the defendant, Gary Bowsher, was a Toledo police officer who was also the volunteer treasurer of a police-firefighters organization which sponsored “guns and hoses” golf tournaments to raise money for charity. The charitable organization was not affiliated with the Toledo Police Department in any way, but the officer solicited and collected funds for these events and as treasurer of the organization. The officer took money from this fund and converted it to his own use. As a result, he was charged with Theft in Office under
{¶21} As in this case, the defendant in Bowsher also contended that the fact he was a police officer was only peripherally related to the alleged theft. Bowsher at 174. The state argued that had he not been a police officer, he would not have been involved with a police-firefighters charity, he would not have had access to an account at the Police Credit Union, and he could not have collected funds for charity while in uniform, on duty, and in a Toledo police vehicle.
{¶22} The court of appeals reversed the officer‘s conviction, finding that a tangible nexus was missing between the defendant‘s official duties as a police officer and the crime charged. Id. at 175, citing State v. Sakr, (1995), 101 Ohio App.3d 334, 655 N.E.2d 670. The court found that the officer did not take public funds nor public property. And, the fact that he had solicited the funds while in his police uniform had little, if any, relationship to when he later improperly withdrew $211 from the fund‘s account. Id. And finally, the court cited “the time-honored maxim that criminal statutes should be narrowly construed against the state.” Id. at 176, citing State v. Young (1980), 62 Ohio St.2d 370, 374, 406 N.E.2d 499, 502.
{¶23} As in Bowsher, the theft offense in this case had nothing to do with Gordon‘s job and duties as a police chief of Kalida; in fact, it had nothing to do with the Village of Kalida at all. Gordon claimed he was merely doing a favor to help a friend, who just happened to be a fellow police officer. Chief Knowlton testified that he and Gordon were friends, and he knew that Gordon was someone who was familiar with guns. The fact that he was a fellow police officer may have
{¶24} The State argues that the facts in Bowsher are distinguishable because the officer did not take any public funds or property whereas in this case, the firearms and funds obtained from their sale were the public property of the Village of Ottawa. However, the State chose to indict Gordon only for a violation of
Case No. 9-CR-40 -- The Kalida Property and Services Case
{¶26} This count in the indictment alleged three completely different instances of wrong-doing.4 Because the three separate acts involved different facts
{¶27} Although Gordon‘s arguments pertaining to these issues were included under the first assignment of error claiming that the decision was “against the manifest weight of the evidence,” we find that his arguments actually raised the legal question as to whether or not there was sufficient evidence as a matter of law to sustain a conviction. Gordon consistently claimed that the State “failed to produce any evidence,” “the record is completely lacking any evidence,” and “there is no evidence,” throughout his discussion of the issues raised.
{¶28} A conviction that lacks sufficient evidence of all of the elements of the offense is clearly also against the manifest weight of the evidence. However, when reviewing a case based upon the sufficiency of the evidence, an appellate court utilizes different standards. See Bryan-Wollman v. Domonko, 115 Ohio St.3d 291, 2007-Ohio-4918, 874 N.E.2d 1198. Because we find that Gordon has set forth arguments concerning the sufficiency of the evidence in the Kalida case, we will review the decision to determine whether there was sufficient evidence to find Gordon guilty of the offense.
{¶29} When reviewing the sufficiency of the evidence, our inquiry focuses primarily upon the adequacy of the evidence; that is, whether the evidence submitted at trial, if believed, could reasonably support a finding of guilt beyond a
{¶30} Shortly after he took office, Chief Giblin ordered a forensic examination of the police department‘s two computers. The examiner testified that he found several “chat logs” from October and November 2004, showing that sexually oriented text conversations took place between persons identified as “Smith & Wesson 45,” “Lonely Cop 38,” Bad Angel 02,” “Care Bear 4385,” and others. (See Trial Exhibits 25, 32, and 37.) Furthermore, of the 15,486 images in the computer‘s memory, approximately 20-30 images showed adult nudity. The State compared the times Gordon was on duty with the times on the instant message chat print-outs and concluded that Gordon had deprived the village of ten hours of his services, at a rate of $15 per hour, when he was supposed to be working.
{¶31} Gordon denies that he was the person involved in the Internet chat sessions but he also claims that the State “failed to produce any evidence whatsoever that Gordon‘s alleged use of the Internet during work hours in any way deprived the Village of Kalida of services.” He asserts that the record is completely lacking in any evidence that there were missed calls for service, lack of investigations, lack of enforcement of the law, or any other measures that would indicate that Gordon did not do his job. In support, he cites a recent Fifth District Court of Appeals case with similar facts wherein the court held that there was
{¶32} In State v. Wolf, the superintendent of the city‘s wastewater treatment plant was found guilty of theft in office, unauthorized use of a computer, and solicitation after he admitted to spending over one hundred hours on the Internet, including accessing sexually oriented sites, when he should have been working. Id. As in this case, the state charged that the defendant was guilty of theft in office because he deprived the city of his services while he was engaging in the unauthorized usage of his computer. Id. at ¶ 69. However, the Fifth District Court of Appeals held that the trial court had erred in overruling the defendant‘s motion for acquittal on the charge of theft in office. The court found that there was insufficient evidence to support a theft conviction:
Upon review, we find that while the State presented evidence [the defendant] spent approximately 100 hours over a five month-period utilizing internet websites that were not related to his job, there was no evidence presented that his job performance suffered or that he failed to perform his job duties.
Furthermore, even if it could be shown that [the defendant] failed to perform such job duties, while it could certainly serve as a basis for termination from his employment, such could not be the basis of a criminal theft in office charge.
(Emphasis added.) Id. at ¶¶ 70-71. In a concurring opinion, Judge Hoffman stated:
I write separately only to voice my reluctance to accept the State of Ohio‘s theory [that] time not spent “about the master‘s business” is theft of services. I accept there may be situations where such theory applies. But to suggest it applies in situations such as the one presented herein where the employee is in the employer‘s workplace and completes all tasks assigned but engages in other personal matters during his or her idle time is a slippery slope. Under the State of Ohio‘s interpretation, a person who reads the newspaper, works the daily crossword puzzle, engages another employee in personal conversation, or merely daydreams or dozes off may be charged with theft in office.
Id. at ¶ 90 (Hoffman, P.J., concurring.)
{¶33} In viewing the evidence in a light most favorable to the prosecution, we shall presume that Gordon was the person who participated in the Internet chat sessions. However, as in Wolf, the record in this case is also devoid of any evidence as to whether Gordon failed to perform his job duties, whether he engaged in the chat during “break” times, whether he made up the time by performing police work at other times, whether he was “on duty” and available to answer calls even though online, or whether his job performance suffered in any way. Although the State submitted evidence showing that Gordon was signed in as “on duty” during the times that most (although not all) of the “chats” occurred, there was no evidence as to how many hours he was required to work, how many hours he actually worked,6 and whether or not he fulfilled the duties required to
earn his paycheck.
{¶34} We agree that the use of Kalida‘s computers for this purpose was unauthorized, extremely inappropriate, and wrong. There certainly may have been sufficient evidence of highly improper conduct in order to terminate Gordon. However, if Gordon‘s use of the computer for personal purposes during work time constitutes theft in office, it would mean that every public official or government employee who sends a personal email, reads a text message, or checks Facebook during working hours would be guilty of committing a felony. We do not believe that is the intended purpose of
Second Allegation: Overcharging two officers for firearms lease payments
{¶35} In the next part of the charge, the State claimed that Gordon overcharged Kalida Police Officer Troy Weaks and Officer Joshua Strick by $57.80 and $233.60, respectively, for lease-purchase payments the officers were making (along with Gordon) in order to purchase their service revolvers. Based upon the calculations presented by the State at trial, Gordon acknowledges that the amount he charged Officer Weaks and Officer Strick for their share of the firearm
{¶36} A person acts purposely when it is his specific intention to cause a certain result.
{¶37} In fact, we cannot be certain that the jury actually did find that Gordon was guilty of theft in office for his actions pertaining to the Smith & Wesson lease. Because all three instances of Gordon’s wrong-doing were combined into one count, there was no way of knowing if the Jury’s verdict meant that they found sufficient evidence of guilt for all three of the separate portions of the charged offense, or only two, or just one of them.
{¶38} The Village of Kalida, which has about 1,000 people, did not have the funds to provide its police officers with handguns. Therefore, as he had done
{¶39} The lease agreement with Smith & Wesson and its “Appendix A” listed the total price for the six guns as $3,557.27, at an interest rate of 8%, with $484.90 to be paid quarterly for two years. The lease and its attached appendix contained a list of the six guns (four different models) with their serial numbers, but did not contain any individual pricing for the individual guns or models. Therefore, in order to figure out how much each officer should pay, Gordon testified that he contacted the Smith & Wesson representative.
Q. Now, when you figured up the amounts that each of you guys were supposed to pay for your share of the lease payments, how did you do that?
Gordon: I contacted the regional law enforcement sales director.
Q. OK, you can’t tell anybody what he said,7 but what did you do as a result of that contact. Gordon: Troy Weaks, Josh Strick and I looked up the prices on the law enforcement version of [the Smith & Wesson] website and obtained the list prices off of there, divided them by eight, and that became their payments.
Q. All right. So that’s how you figured up those particular amounts?
Gordon: Yes.
(Trial Tr., Vol. III, p. 123.)
{¶40} The testimony of the other two officers confirmed this arrangement. Officer Weaks stated that he felt like he was paying a fair price. He testified that he looked on the Internet and saw that what he was going to be paying for the gun over two years was about the price of the gun on the Internet, plus “guesstimating” what the interest charge would be. Officer Strick also confirmed that Gordon had made arrangements with Smith & Wesson so they could purchase their own firearms. He testified that “basically we were told to check out the website, see what kind of gun we liked, and let him know and he would get it taken care of as far as the contract and payments for it.” (Trial Tr., Vol. I, p. 168.) Strick thought it was a good plan, “[f]or a $1,000 gun you could pay a couple payments every couple of months of $123, so it made it an affordable weapon.” (Id. at 172-73.)
{¶42} Gordon testified that he had never seen the Worksheet prior to trial and insisted that the original lease on file in Kalida when he was Chief did not have the Worksheet page attached. There was no evidence presented at trial as to who had created the Worksheet with the individual model prices or whether it had
{¶43} Furthermore, the product code for Strick’s gun on the Worksheet was different from the product code for Strick’s gun in the lease (the Worksheet had a product code of 20747 but Strick’s gun’s actual product code in the final lease agreement was 204744.) There was no explanation in the record or at trial concerning the large discrepancy in the price of Strick’s gun. Strick said that his gun, product code model #204744, cost about $1,000 when he looked on the website, but the Worksheet stated that product code #20747 cost only $567.00. The Worksheet definitely contained an error in the gun’s product code number, although this matter was never recognized at trial. There was no evidence concerning whether or not there also might have been an error in the Worksheet’s pricing. Also absent from the record was any explanation or testimony as to who
{¶44} Finally, we find that the State’s computations as to the charges were not correct. The State based its calculations upon a straight 8% interest rate. However, the lease payments were compounded or computed differently, because we calculate that the correct amount of the quarterly payment overcharge, if we use “the Worksheet prices,” should have been $10.71 and $45.66, not $11.56 and $46.72 as alleged by the State. We also wonder whether Gordon, Weaks and Strick might have discovered and corrected the errors in the payment prices by the time the lease’s final pay-off was made if they would have had the chance. After Gordon was indicted, the Village of Kalida made the final three payments and now has the guns. Gordon, Strick and Weaks, however, have personally paid lease payments to Smith & Wesson of $1,441.80, $616.35, and $366.35 respectively,10 and they do not have the guns they had intended to purchase.
{¶45} The State did not present any evidence as to the authenticity or accuracy of the Worksheet, nor was there any evidence that Gordon was aware of the prices listed on the Worksheet when he computed the officers’ payments. Gordon’s testimony that he obtained the prices for the quarterly payments by
Third Allegation: Failure to return Village of Kalida police uniforms and equipment
{¶46} Finally, for the third portion of the Kalida properties and services offense, the State claimed that Gordon’s “web of deception” involved depriving Kalida of its property because, after he resigned, Gordon failed to return some of the uniforms and equipment that had been issued to him. The State maintains that the jury did not lose its way when it concluded that “Gordon appropriated the property of the village, with purpose not to give proper consideration for the equipment and uniforms, and did not have a reasonable justification or excuse for not doing so.” (Appellee’s Br., p. 15.)
{¶47} Gordon testified that he believed he had returned everything that belonged to Kalida. He insisted that some of the equipment that Kalida claimed he improperly retained was his own personal property. He did acknowledge that one or two items belonged to Kalida and should have been returned. However, he testified that he had forgotten he had them and would have gladly given them back if he had been asked or reminded. Gordon argues that this was merely a civil matter that has been criminalized by the State. After a thorough review of the
{¶48} First, the evidence does not clearly specify exactly what property Gordon was alleged to have “stolen.” There was no official inventory of goods during the time that Gordon was chief, so Kalida asked Chief Giblin to create an inventory. When Chief Giblin could not locate some items on a partial 2004 inventory he found, he investigated further and looked for receipts for purchases that occurred during the years Gordon was Chief. (See State’s Exhibits 6, 7, and 12 – showing receipts from 2002-2006 for 12 alleged purchases of uniform pants and shirts, polo shirts embroidered with “Chief Gordon,” leather holsters and duty belts, body armor, and a battery charger.) The State claims that Gordon kept uniforms and equipment totaling more than $1,000, in addition to equipment found at his home. (Sentencing Tr., p. 7.) Only a few of the items on the receipts were found at Gordon’s home, namely a polo shirt, some belts/holsters, a battery charger, and the body armor.
{¶49} Although the State had several witnesses testify about the receipts, most of the witnesses did not have first-hand knowledge as to the actual purchases/payments that took place at the time. The new village fiscal officer had only held the office since April 2007 (the previous officer had retired and did not testify). We do not find that the evidence supports the presumption that Gordon
{¶50} However, there was sufficient evidence to conclude that Gordon failed to return the three main items that were found in his home and that the State continually referenced throughout the entire trial: the “Bianchi” holsters, the battery charger, and the bullet-proof vest.
{¶51} Concerning these items, we find that there was considerable evidence supporting Gordon’s testimony that he paid for the holsters himself, and none to contradict him. First, both Officer Strick and Officer Weaks testified that Kalida only provided uniforms; the village did not provide any holsters/duty belts. A
{¶52} We also find problems with the “value” that was assigned to the items found at Gordon’s home, i.e., $31.30 for the battery charger purchased in 2003, and $750 for the body armor purchased in 2002.11
{¶53} In any case, we find that the State failed to produce evidence that Gordon had the specific intent to deprive the Village of Kalida of its property. See
- Withhold property of another permanently, or for a period that appropriates a substantial portion of its value or use, or with purpose to restore it only upon payment of a reward or other consideration;
- Dispose of property so as to make it unlikely that the owner will recover it;
- Accept, use, or appropriate money, property, or services, with purpose not to give proper consideration in return for the money, property, or services, and without reasonable justification or excuse for not giving proper consideration.
{¶54} There was no evidence that Gordon had done any of the above in order to constitute theft under
{¶55} Finally, but also relevant to our review, was the fact that the State submitted a copy of Kalida’s “Handbook Acknowledgement” signed by Gordon and the mayor, as evidence of Gordon’s wrong-doing. In this exhibit, Gordon acknowledged receipt of Kalida’s policies and rules and signified that he agreed “to conform to the policies of the handbook ***.” (State’s Ex. 8.) Attached to the
The Village may furnish uniforms to village employees as designated by the Council. These uniforms and all other items issued by the Village remain the property of the village and must be returned when the employee leaves the Village’s employment.
(State’s Ex. 8.) The State showed this evidence to no less than eight witnesses, and through their repeated testimony, had each witness confirm that this was indeed Kalida’s policy, signed by Gordon, and that he was in violation of this policy when he retained village property after the final date of his employment (which was also meticulously established through other documents, exhibits, and testimony). However, the State never read, pointed out, nor mentioned the final sentence of the policy, setting forth the consequences of an employee’s failure to return all equipment:
The employee’s final paycheck may be held until all village property has been returned.
(Id.)
{¶56} We find that the evidence was sufficient to prove that Gordon was liable for violating Kalida’s policies and handbook. However, this was a matter of an employment contract between an employee and an employer; it was not a criminal matter under the facts and circumstances in this case. At most, it might give rise for a claim of conversion. See, e.g., Culligan Water Cond. v. Thatcher, 3d Dist. No. 5-02-36, 2002-Ohio-6189, {¶2} (employer filed a civil complaint against a former employee alleging that employee failed to return a water testing kit after leaving his employment.) The remedy for the “offense” was clearly spelled out in the handbook, i.e., withholding of the final paycheck. Granted, by the time Kalida discovered that Gordon had not returned all of the village’s property, it was too late to withhold his final paycheck. However, the matter could have been easily remedied by requesting Gordon to pay for the missing items (or return them). Chief Giblin acknowledged that he had called other former part-time and auxiliary police officers who had not turned in their uniforms but that he had not called Gordon other than for one inquiry, shortly after Gordon left office, regarding some radios. In fact, Chief Giblin testified that he had been told that he should call Gordon if there were any questions/problems regarding missing equipment after Giblin did his inventory. Chief Giblin did not do so.12
{¶57} Under the policy set forth in the handbook, Kalida would issue Gordon uniforms and Gordon was obligated to return the uniforms (and all other items issued by the village) when he resigned or he would be held financially responsible. Charging Gordon with felony theft in this case is tantamount to imprisonment for a debt he owed to Kalida.
{¶58} We are not suggesting that a theft offense can never occur when a party wrongfully retains property that was originally obtained according to a contractual agreement. Cases of fraud are definitely excluded from the prohibition against imprisonment. See
{¶59} In several opinions written when he was a judge for the Hamilton County Municipal court, Judge Painter observed that too often civil wrongs are inappropriately placed into the context of criminal wrongdoing. In one case where the defendant was accused of theft for failing to make timely payments or return some furniture, the trial court wrote:
From a public policy standpoint, allowing a criminal conviction in this type of case would, simply stated, be ridiculous. The prosecuting witnesses and their employer ***, have myriad rights and remedies in a court exercising civil jurisdiction.
State v. Glenn (1990), 56 Ohio Misc.2d 1, 3, 564 N.E.2d 1149. Noting a disturbing tendency to bring criminal charges in cases more properly decided in a civil court, Judge Painter stated that “[g]reat care should be taken that the criminal
{¶60} For all of the reasons stated above, we find that there was insufficient evidence of Gordon’s criminal intent to sustain a conviction for Theft in Office for Gordon’s failure to return alleged village property after he left office. The Village of Kalida had ample civil remedies to redress any wrongs Gordon committed by failing to follow the employment handbook procedures.
{¶61} The Dissent is correct in pointing out that an issue that involves a civil wrong (i.e., a matter of contract in this case), may still be prosecuted by the State as a criminal matter, where warranted. However, “courts must apply a rule of reason in their interpretation of this state’s criminal statutes.” State v. Parks (1984) 13 Ohio App.3d 85, 86, 468 N.E.2d 104 (stating that a finding that the defendant was a “public official” performing “official functions” for the purposes of
{¶62} Although the Dissent asserts that the evidence could also be construed to “infer” that “a theft offense occurred,” we must remain mindful of the fact that Gordon was not indicted for a theft offense under
{¶63} After a thorough review of the record, we find that there was insufficient evidence to prove beyond a reasonable doubt that Gordon was guilty of Theft in Office for the various allegations pertinent to the Kalida property and services case. Gordon’s first assignment of error is sustained relative to the Kalida property and services case no. 9-CR-40, appellate case no. 12-10-05.
Third Assignment of Error
{¶64} In his final assignment of error, Gordon contends that the trial court abused its discretion by sentencing him to more than minimum prison terms for a first offense. Based upon our disposition of the previous assignments of error, this issue is now moot. However, we note that at the sentencing hearing the State informed the trial court that “the State would acknowledge that the defendant is eligible for judicial release” and that it would be “inclined to look favorably toward a motion for judicial release” if restitution was paid. (Sentencing Tr., p.
{¶65} Finding merit in the issues raised by the appellant, the judgments of the Putnam County Court of Common Pleas are reversed and the causes are remanded for further consideration consistent with this opinion.
Judgments Reversed and Causes Remanded
ROGERS, P.J., concurs in Judgment Only.
SHAW, J., DISSENTS.
{¶66} Although not essential to any of the convictions, I agree with the majority that the evidence pertaining to the use of the internet in this case is not sufficient to support a charge of theft in office. I also agree with the majority that the monetary valuations assigned to the vests and other uniform paraphernalia could have been made clearer, although I do not agree that the evidence is fatally insufficient on this point. However, even if it is determined to be so, the effect is only to reduce the conviction on that count from a felony of the fourth degree to a felony of the fifth degree and not to vacate the entire verdict as the majority has done.
{¶68} As a result, I believe it is necessary to thoroughly revisit the evidence and testimony in this case as part of my dissent. For ease of discussion and for the sake of clarity, I will review each count/case separately, as did the majority.
Case No. 9-CR-19 – The Ottawa Firearms Case
{¶69} In his first assignment of error, Gordon asserts that his conviction of theft in office in Case No. 9-CR-19 was against the manifest weight of the evidence. He further contends in his second assignment of error that the evidence was not sufficient to establish that he used his office as Chief of Police of the Village of Kalida in aid of committing a theft offense or permitted or assented to its use in aid of committing a theft offense in accordance with
{¶70} In reaching its conclusion, the majority relies on State v. Bowsher, supra, wherein the Sixth District Court of Appeals held that
{¶71} Bowsher was a Toledo police officer who was also the volunteer treasurer of a police-firefighters charitable organization that collected money for events, including a golf tournament. Although Bowsher collected these monies while wearing his uniform, the city did not sanction the golf tournament and the funds collected did not belong to the public. While treasurer, Bowsher took $211.00 from the charitable organization and was subsequently indicted for theft
{¶72} In this case, Knowlton testified that he came to know Gordon through monthly meetings of the chiefs of police in Putnam County while Gordon was the Kalida Police Chief. (Trial Trans., Vol. II, p. 300.) Knowlton testified that the sale of the Ottawa firearms was first discussed at a chiefs’ meeting when concerns were raised regarding the MAN unit, a division of the Putnam County Sheriff‘s Office that investigates drug crimes. (id.) The various chiefs were concerned over whether the other law enforcement agencies in the county, such as the Ottawa Police Department, were going to have to begin investigating drug crimes. (id.) Knowlton began questioning how his agency was going to finance such an endeavor, and Gordon informed him that he could sell old guns in order to raise money. (id.) Gordon also told Knowlton that he was a gun dealer, that he used to own a gun shop, and that he sold firearms for other police departments “all the time.” (id. at 301.)
{¶74} The Kistlers, who owned Triple J Firearms, testified that Gordon, who they knew was the Kalida Police Chief, came to their shop on January 13, 2006, with a number of guns belonging to O.P.D. Richard Kistler specifically recalled that Gordon wanted to be paid in cash. (id. at 154.) Although Triple J usually purchased guns with a check to “keep track of it better,” Richard said that cash would be “fine” because “being a police officer you wouldn‘t think any different.” (id.) The Kistlers also paid Gordon in cash when he returned on January 25, 2006, with a number of long guns (shotguns and rifles), eight of which he informed the Kistlers belonged to O.P.D., and did not issue a receipt for this transaction upon Gordon‘s request not to do so. (id. at 197.)
{¶76} This testimony clearly establishes a palpable nexus between Gordon‘s wrongdoing and the public office he held. First, Gordon‘s position as police chief is the only reason he was in a position to be in attendance at the chiefs’ meeting where he first suggested to Knowlton that O.P.D. could sell its firearms. Second, he told Knowlton that he sold weapons for other departments all the time and that this activity was legal. Gordon being a fellow officer and someone who appeared to know a great deal about guns led Knowlton to believe Gordon.
{¶77} Third, although the majority concludes that Gordon did not have to be a police officer to obtain the firearms from his friend, Knowlton, the testimony does not indicate in any way that Knowlton allowed Gordon to enter the O.P.D. property room and subsequently leave the Ottawa police station with a number of firearms merely because of their friendship. We find it highly improbable, even
{¶78} Fourth, although a person does not have to be a police officer to sell a firearm, Gordon‘s position as a police officer created a sense of trust in the Kistlers that led them not to question that he was permitted to sell firearms belonging to O.P.D. and to pay him in cash without a completed receipt, which made tracing how much he received more difficult. Thus, his position as a police officer aided him in selling these weapons. Fifth, although Gordon was not indicted under Division (A)(2), which involves government owned property, the money he was alleged to have taken was unquestionably government property, not privately held funds, and his position as a public official aided him in acquiring these public funds.
{¶79} Moreover, the requirement of Bowsher is that a palpable nexus must exist because the language of
{¶80} For all of these reasons, it is clear that, when construing the facts in a light most favorable to the prosecution, the evidence was sufficient to establish a palpable nexus between Gordon‘s position as a police officer and his wrongdoing that would warrant a finding that he used his office to aid him in committing a theft offense. Therefore, I would also proceed to address Gordon‘s first assignment of error regarding whether his conviction was against the manifest weight of the evidence. In so doing, it cannot be said in this case that the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
{¶81} More specifically, the Kistlers testified that they had three transactions involving firearms belonging to O.P.D. and handled by Gordon. They also had documentation to this effect, including their firearms record book, which is a book that the federal Bureau of Alcohol, Tobacco, and Firearms requires firearms dealers to maintain. The first transaction on January 13, 2006, involved thirteen handguns, which Gordon represented belonged to O.P.D. Richard Kistler testified that he spoke with Gordon about buying some old evidence guns, that
{¶82} Richard‘s wife, Jackie, who handled the paperwork for the business, testified that she wrote a receipt for all of the handguns on a triplicate form but did not write in a total dollar amount because Gordon told her that it was not necessary. She gave the top copy of this triplicate receipt, which was white, to Gordon, and retained the yellow and pink copies. The yellow and pink copies were admitted into evidence and showed no dollar amounts, including a total. She further testified that Gordon insisted on cash but that they did not have a large amount of cash at their disposal so they called upon a friend/business associate, Larry Smith, who loaned them $950.00 for this transaction. Jackie wrote this amount on a separate sheet of paper and kept a tally of the sales of these weapons and the payments they made to Smith to repay this interest-free loan. Jackie specifically testified that they gave Gordon $950.00 for these weapons, which is why they would have borrowed that amount from Smith. Records from O.P.D. indicated that twelve of these guns came from O.P.D.‘s evidence/property room or its separate weapons storage locker. The thirteenth gun, a Ruger, was the private property of Knowlton‘s wife, which Knowlton had also requested that Gordon sell.
{¶84} The last transaction involving Triple J occurred on January 25, 2006. Richard Kistler testified that this time Gordon brought a number of long guns to sell. His records showed that Triple J purchased a total of twelve long guns: two belonging to the Lucky Police Department, two belonging to Gordon, and eight belonging to O.P.D. He further testified that the information on the ownership of these guns, like that of the handguns, came from Gordon. These were also recorded in the firearms record book of Triple J. Once again, Gordon wanted to be paid in cash, so Triple J borrowed the money from Smith. Richard also
{¶85} In addition to the Triple J transactions, the State presented the testimony of Cindy Verhoff, who was the co-owner of Ottawa Ordnance. Verhoff testified that her firearms record book showed that on January 5, 2006, a Smith and Wesson 5906, 9 mm pistol, serial # TVL2979, was transferred from O.P.D. to Gerald Gordon and this transaction was registered at Ottawa Ordnance. A copy of this page of the firearms record book was also admitted into evidence without
{¶86} Knowlton testified that the only money he or Ottawa ever received from Gordon for the weapons from O.P.D. occurred at his home one weekend in early 2006. Knowlton testified that on that day Gordon stopped at his home and gave him $900.00 cash and a white receipt from Triple J that showed a total amount of $900.00. He further testified that he took this money and receipt to his office and locked both in his desk, where they remained for nearly two years because Knowlton forgot about the money. When asked about whether he discussed the value of these weapons with Gordon before Gordon sold them, Knowlton testified that he did not but that he was surprised when Gordon gave him $900.00 because he thought the amount was fairly high. Knowlton also testified that the only other money he ever received from Gordon was on a different day when Gordon gave him $100.00-$150.00 for the sale of his wife‘s Ruger handgun. Knowlton stated that in November of 2007, the Ottawa Municipal Director, Jack Williams, received a phone call from the Putnam County Sheriff‘s Office about these weapons being sold and that Williams came to him
{¶87} Knowlton further testified that Williams was contacted by the sheriff‘s office regarding a number of other guns belonging to O.P.D. for which Ottawa never received any proceeds. Knowlton then questioned Gordon about these long guns, and Gordon told him that those weapons were a separate batch that he took in that belonged to Gordon and a friend of his and that he did not know why they would have listed them as belonging to O.P.D.
{¶88} Jack Williams testified that Knowlton told him that he gave Gordon a number of O.P.D. firearms to clean up and to obtain an estimate of their value. Williams stated at that time he told Knowlton to get the weapons back from Gordon because this was not proper procedure. According to Williams, shortly after this conversation, Knowlton informed him that Gordon had sold the weapons for $900.00. Williams saw the white receipt for $900.00 and the cash but did not actually count the money at that time. Williams testified that he told Knowlton to deposit the money with the Ottawa clerk.17 Approximately twenty-two months later, he was contacted by the Putnam County Sheriff‘s Office about the sale of
{¶89} The white receipt from Triple J for the January 13th handguns transaction was also admitted into evidence. This receipt, which testimony revealed was the top copy of the triplicate form that was given to Gordon, had a total of $900.00 written on it. Both Richard and Jackie Kistler testified that this was not their handwriting and that neither had written that on the white receipt. Special Agent Justice testified that the white receipt was sent to BCI for a handwriting analysis but that the analyst determined that there was not enough on the receipt to conduct a comparison.
{¶90} Special Agent Justice testified he spoke with Gordon about these transactions and that Gordon admitted to selling all of the handguns listed in the Triple J firearms record book as belonging to O.P.D. on January 13, 2006, but that the last one on the list, the Ruger, actually belonged to Knowlton and he sold it for him. However, Gordon also told him that only three of the long guns, two Smith and Wesson 3000 12 gauge shotguns and the H & R Topper, listed on the record
{¶91} At the time that Special Agent Justice spoke with Gordon, he had copies of Triple J‘s firearms record book but had not examined the property records of O.P.D. and had not discovered the transfer of the Smith and Wesson 5906 that occurred through Ottawa Ordnance.18 When Special Agent Justice later examined the property records of O.P.D. and compared them to the firearms record books of Triple J and Ottawa Ordnance, he was able to trace a number of the guns sold to and/or transferred through Triple J and Ottawa Ordnance to O.P.D., including four of the long guns that Gordon told him belonged to him rather than O.P.D. and the handgun transferred through Ottawa Ordnance that Gordon failed to mention selling to his brother.
{¶92} Gordon also testified regarding the sales of these guns. He testified that he sold a number of handguns and long guns for O.P.D. to Triple J and that he received a total amount of $900.00 for all of these guns. In explaining the Triple J transactions, Gordon stated that he first brought in the handguns and during the
{¶93} In comparing this evidence, we find that there is no dispute that Gordon gave Knowlton at least $900.00 for the sale of O.P.D. firearms. However, Gordon‘s testimony was that he additionally gave Knowlton approximately
{¶94} Jackie also specifically testified that she did not write a total on the triplicate receipt for the first transaction and that the total listed solely on the white copy was not written by her. Her husband, Richard, also testified that neither he nor his wife wrote a total on the white copy and that Gordon told them not to do so because he would do it later. Although he found that to be strange, Richard testified that they knew him well enough so they let it go. In addition, Richard testified that he and Gordon looked at each gun on the 13th, he placed a value on each, and that they agreed on a final total, which was reflected in an amount of $950.00 on the separate sheet of paper that his wife used to keep track of their loan payments to Smith.
{¶96} Nothing in Richard‘s or Jackie‘s testimony indicated that the long guns brought into Triple J on the 25th were part of the sales transaction on the 13th, but it established that they paid him additional money for the long guns belonging to O.P.D. Moreover, Richard‘s testimony about examining each gun and his
{¶97} While Knowlton, to whom Gordon claims he gave additional monies, arguably may have had a reason to testify falsely if he was the one responsible for the missing money, there is a reasonable inference from all of the evidence before the jury that Knowlton did not take this money. Indeed, twenty-two months after receiving the $900.00, Knowlton still had this money and the receipt in his desk drawer. Thus, a reasonable jury could have concluded that if Gordon gave him additional money, Knowlton would have also placed that money in his desk drawer with the other money. Further, there is nothing in the record to
{¶98} In reviewing the entire record, weighing the evidence and all of the reasonable inferences, and considering the credibility of the witnesses, there is no basis in this case for an appellate court to conclude that in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. To the contrary, the only evidence that tended to show that Gordon did not take some of the money that he was paid through the sales of O.P.D. weapons came from Gordon‘s own self-serving testimony. Thus, the first and second assignments of error, as they pertain to this offense, should be overruled and Gordon‘s conviction for this offense should be affirmed.
Case No. 9-CR-40 – The Kalida Property and Services Case
{¶99} As previously noted, in his first assignment of error, Gordon also contends that the verdict of guilty on his second case of theft in office, which involved the Village of Kalida‘s property and services, was against the manifest weight of the evidence. Despite this fact, the majority concluded that what his
{¶100} However, Gordon also argues that the State failed to present any evidence that he deprived the Village of Kalida of services on the portion of this charge involving his internet usage and further argues that the remaining allegations regarding the Smith and Wesson lease and the Village of Kalida property are contract disputes rather than criminal matters. The majority evaluated these arguments under the standards for determining the sufficiency of the evidence, and I agree that these two arguments do raise issues of legal sufficiency. Given these arguments, the majority‘s decision to review the entire case involving
{¶101} As the majority correctly notes, “[a]n appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction 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.” Jenks, 61 Ohio St.3d at paragraph two of the syllabus. Most importantly, “[t]he 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.” (Emphasis added.) Id., citing Jackson v. Virginia (1979), 443 U.S. 307. Furthermore,
[c]ircumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. When the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction.
(Emphasis added.) Jenks, 61 Ohio St.3d at paragraph one of the syllabus. “‘A reversal based on the insufficiency of the evidence * * * means that no rational
{¶102} As to the allegations involving the theft of services from Kalida for the time Gordon spent on the computer engaging in inappropriate conversations of a sexual nature, I concur with the majority in its conclusion that there was no evidence, either direct or circumstantial, to demonstrate that Gordon deprived the Village of Kalida of any services as there was nothing to show that due to his improper online activities, Gordon neglected his job duties in any way or poorly performed them. See Wolf, 2009-Ohio-2018.
{¶103} As to the allegations involving the theft of Kalida property, i.e the uniforms and equipment, I concur with the majority’s conclusion that the evidence was not sufficient “that Gordon committed a theft of any and all purchased uniforms/belts that were listed on a receipt but not recovered.” (Maj. Opin. at ¶ 49.) I also concur with the majority’s conclusion that “there was sufficient evidence to conclude that Gordon failed to return the three main items that were found in his home * * *: the ‘Bianchi’ holsters, the battery charger, and the bullet-proof vest.” (id. at ¶ 50.) However, I dissent from the majority’s conclusion that there was not sufficient evidence of Gordon’s intent to deprive Kalida of this
{¶104} The majority correctly notes that “deprive” means to do any of the following: “(1) Withhold property of another permanently, or for a period that appropriates a substantial portion of its value or use, or with purpose to restore it only upon payment of a reward or other consideration. * * * ”
{¶105} However, the standard of review in evaluating whether there is sufficient evidence to sustain a conviction, as previously noted, requires this Court to construe the evidence in a light most favorable to the State. When applying that standard, the State satisfied its burden particularly in respect to the polo shirt, body
{¶106} The evidence presented by the State shows that (1) these items were identified as belonging to Kalida, some of which Gordon also acknowledged belonged to Kalida, that (2) the employee handbook, signed by Gordon, states that all uniforms and other items issued by the Village of Kalida remained the property of Kalida and were to be returned upon the termination of employment, and that (3) Gordon never returned these items to the Village of Kalida until they were seized during the execution of a search warrant a number of months later. All of this evidence could lead a rational trier of fact to infer that Gordon intended to deprive Kalida of its property. Thus, a reasonable factfinder could find this essential element of the offense of theft proven beyond a reasonable doubt despite whether there was any reasonable theory of innocence, as this circumstantial evidence of guilt did not have to be irreconcilable with Gordon’s version of events. See Jenks, supra.
{¶107} This issue is repeatedly mischaracterized by the majority as one of an evaluation of Gordon’s credibility by the appellate court. However, this is a question of whether the evidence is sufficient to submit to the jury; it is not a question of whether we believe Gordon’s version of events or the State’s. We are charged with construing the evidence in a light most favorable to the State. Once
{¶108} Moreover, I disagree with the majority’s conclusion that this was a matter of an employment contract and not a criminal matter under the facts and circumstances of this case. In support of its position, the majority relies upon two cases from the Hamilton County Municipal Court: Glenn, supra, and Howell, supra. However, these cases are distinguishable from the case sub judice.
{¶109} In Glenn, the defendant was charged with the offense of theft for failing to make timely and repeated payments for the rental/lease of furniture from a private business and retaining the furniture in his possession. Glenn, 56 Ohio Misc.2d at 1-2. The trial court found him not guilty of theft. Id. at 5. In so doing, the court concluded that there was a question of whether rental payments were due and owing and whether this was a sale, which would invoke statutes regarding security agreements and the special established procedural means available to secured parties for the recovery of property. Id. at 4-5.
{¶111} Unlike these cases, the case sub judice does not involve a question of whether Gordon was entitled to retain possession of the body armor, car
{¶112} Moreover, the fact that the employee handbook informed him that Kalida might hold his paycheck until the items were returned does not render this a civil, “election of remedies” matter. There is nothing in the law that requires a victim of this type of offense to choose between a civil action and a criminal action. See 1 Wharton’s Criminal Law (14 Ed.1978) 225, Civil or Criminal Action Pending, Section 44 (stating “[w]hen a crime also constitutes a private wrong, the right of the injured individual to bring a civil action to recover damages and the right of the State to prosecute and impose punishment for the crime are separate and independent remedies. Accordingly, the pendency or enforcement of, or the recovery in, one action may not be interposed as a defense in the other
{¶113} The majority also acknowledges that there are times when a theft offense can occur when a party wrongfully retains property that was originally obtained through a contractual agreement (which, as previously indicated, this property was not obtained in a similar manner). The majority then cites a number of cases as examples and concludes that there was no evidence that Gordon’s intentions were fraudulent or that he “sold, secreted, or disposed of the property, or that he refused to pay for or return the specific property after being asked.” (Maj. Opin. at ¶ 58.) However, the property at issue was only recovered when a
I said at the end of everything, I think he was walking out, I said, Forest, if you got any stuff that belongs to Mike [Chief Giblin], get it back, or if the village has given you something, get it in writing that they gave it to you and it is your property. I said if you got anything you might want to give it back.
(Trial Trans., 1/21/10, Vol. III, p. 71.) Despite this admonition and the fact that he knew he was being investigated by BCI, Gordon did not return any other property belonging to Kalida. Given all of this evidence, including the testimony that he was told to return anything he had belonging to Kalida some two months before the warrant was executed, there was sufficient evidence in this case to find that a theft offense occurred, even when following the rationale of the Hamilton County Municipal Court.
{¶114} Lastly, the majority concludes that the evidence was not sufficient to infer criminal intent on Gordon’s part in regards to the Smith and Wesson lease and Officers Weaks and Strick. I disagree with this conclusion in a number of respects.
{¶115} First, while Officers Weaks and Strick believed that this was an affordable plan and Officer Weaks felt he was paying a fair price, their subjective
{¶116} Third, the majority relies on Gordon’s testimony that he had not seen the Worksheet as part of the lease agreement prior to the trial and the lack of authentication evidence to show who created the Worksheet or to state whether it was part of the lease agreement sent to Gordon. However, this lease agreement, complete with the Worksheet attached to it, was admitted into evidence without objection as State’s Exhibit 12. Further, Chief Giblin testified that he contacted Smith and Wesson about the lease upon receiving a bill for a quarterly payment. He then requested that Smith and Wesson send him a copy of the lease that Gordon entered into on behalf of the Kalida Police Department, which it did.
{¶117} Accordingly, the State did present evidence that could lead a reasonable factfinder to conclude that Gordon would have seen the Worksheet when he entered into the contract and would have known the actual list price of each weapon, including that Officer Strick’s gun was listed at $567.00. Officer Strick’s payments, had he paid all eight, would have resulted in a total payment of approximately $419.00 above list price.22 Even at an eight percent interest rate, whether this rate was annual and/or compounded over two years, his payments were greatly in excess of what he should have been paying.
{¶118} Fourth, the majority takes issues with the product code for Stick’s gun. The majority notes that on the Worksheet this gun is listed as “Product Code 20747” but that the final lease agreement listed it as “Model No. 204744”. The majority acknowledges that there was no explanation concerning the large discrepancy in the price of Officer Strick’s gun but speculates that because there was a definite error in the product code number, there might also have been an error in the Worksheet’s pricing. However, a reasonable inference could have been made by this jury that this was a typographical error in the number
{¶119} Fifth, the majority also computed the charges and concludes that the State’s computations are incorrect. In so doing, the majority states that the lease payments were compounded or computed differently. However, the majority’s figures also establish overpayments by both officers. Regardless of whether the State’s computations were correct, the undisputed evidence remains that the officers were overcharged. Thus, their overpayments for their obligations would have reduced Gordon’s payment obligations for his four weapons, which were also figured into the calculation of the total quarterly lease payment of $484.90.23 Thus, even if the exact amounts are incorrect and did not raise the total theft amount to over $500.00, Gordon’s conviction for theft in office should remain as
{¶120} Based on the foregoing, there was clearly sufficient evidence for a rationale trier of fact to find that Gordon knew the list amounts of the individual weapons and the interest rate thereon, knew that he was overcharging the officers, particularly Officer Strick, and used these overpayments with the intention of reducing his quarterly payments, thereby profiting from these officers and depriving them of the overages.
{¶121} In summation, I would find that there was sufficient evidence that Gordon intended to deprive the Village of Kalida of its property and to deprive the officers of their money. However, I agree with the majority that there was not sufficient evidence that the Village of Kalida was deprived of services by Gordon through his online endeavors. Furthermore, I agree with the majority that there are concerns as to whether the aggregate value of the loss is in excess of $500.00. Nevertheless, this issue was not raised by Gordon and there was some evidence of the value of the body armor, holster, and battery charger and of the overpayments,
{¶122} For all of the foregoing reasons, I would overrule Gordon’s first and second assignments of error and affirm his two convictions for theft in office. Having overruled those assignments of error, I would proceed to address the third assignment of error regarding whether the trial court abused its discretion in ordering that Gordon be sentenced to prison.
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