STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT STATE OF OHIO v. SEBASTIAN RUCCI
CASE NO. 14 MA 47
IN THE COURT OF APPEALS SEVENTH DISTRICT
May 28, 2015
[Cite as State v. Rucci, 2015-Ohio-2097.]
Hon. Cheryl L. Waite, Hon. Mary DeGenaro, Hon. Carol Ann Robb
OPINION; Case No. 13 CRB 249-253
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503
For Defendant-Appellant: Sebastian Rucci, Pro se, 5455 Clarkins Drive, Austintown, Ohio 44515
{¶1} Appellant Sebastian Rucci appeals his March 31, 2014 Mahoning County Court conviction on four counts of illegal sale of alcohol (“illegal sale”) following jury trial, and his March 31, 2014 bench trial conviction on four counts of keeper of a place where intoxicating liquors are sold in violation of law (“keeper of a place”). Appellant argues that the deputy clerk who issued his arrest warrant was incapable of making a probable cause determination and was not neutral and detached. Appellant also asserts that the state failed to present sufficient evidence that he owned the GoGo Girls Cabaret, Inc. (“GoGo”) and that liquor was sold in violation of the law. Thus, he argues that his conviction was not supported by sufficient evidence.
{¶2} Appellant also argues that at least one of the complaints failed to include one of the essential elements of the crime. Thus, he was not placed on notice as to the nature of the charges being filed against him. He asserts that the trial court improperly denied his timely request for a jury trial on charges of keeper of a place, as all of the fines in the aggregate reached the threshold necessary to assert a right to a jury trial. Finally, he claims that the prosecutor made several comments during trial that equated to prosecutorial misconduct, and affected his right to a fair trial.
{¶3} In response, the state argues that Appellant has failed to show that the deputy clerk was not neutral and detached. The state urges that the deputy clerk’s testimony establishes that she is capable of making a probable cause determination. Further, the testimony of Tara Giancola, Appellant’s employee, and two agents from
Factual and Procedural History
{¶4} While at one time Appellant held a valid liquor license for his establishment, the Ohio Department of Liquor Control denied Appellant’s request to renew this license. In response, Appellant implemented a bring your own beverage (“BYOB”) policy at the GoGo. Under this policy, if a patron wanted to drink an alcoholic beverage in the GoGo, they were required to bring their own and surrender it to the bartender in exchange for tickets.
{¶5} The tickets were then given back to the bartender, who would retrieve the patron’s stored drinks for a fee of $1.25 per beer and $1.75 fee per other alcoholic beverage. For example, a patron would bring in a six-pack of beer and receive six tickets. If the patron wanted a beer, they would exchange one ticket and pay $1.25 and receive one of their beers. The establishment operated under this BYOB policy from January of 2012 until September of 2012, when the ODPS conducted a raid.
{¶6} The raid resulted from ODPS’s ongoing investigation of the GoGo. The investigation was comprised of several undercover operations carried out by ODPS
{¶7} The agents returned to the GoGo and were instructed to give their beer to the bartender. The bartender took the agents’ case of beer and provided them with tickets. The agents each requested one of their beers and the bartender asked for two tickets and $1.25 per bottle. The agents complied and each received a beer from their case. Shortly thereafter, a raid was conducted and several items of evidence were seized.
{¶8} As a result of this raid, Appellant was charged with four counts of illegal sales (
First Assignment of Error
{¶9} An arrest warrant “shall be issued by a judge, magistrate, clerk of court, or officer of the court designated by the judge.” State v. Jones, 7th Dist. No. 11 MA 60, 2012-Ohio-1301, ¶17, citing
{¶10} A reviewing court should give great deference to an official’s determination of probable cause and resolve all doubtful or marginal cases in favor of upholding the warrant. State v. Mendell, 2d Dist. No. 24822, 2012-Ohio-3178, ¶10. A reviewing court’s role in such cases is to determine whether there was a substantial basis to find probable cause existed. Id., citing State v. Tibbetts, 92 Ohio St.3d 146, 153, 749 N.E.2d 226 (2001).
{¶11} Appellant first argues that clerks lack the necessary legal training to issue a warrant as a matter of law. However, the Ohio legislature has clearly stated that a clerk can issue a warrant. Pursuant to
{¶13} As the Ohio legislature has clearly determined that a clerk is capable of issuing a warrant, the question becomes whether the deputy clerk is this case was capable of finding probable cause based on this record. Appellant urges that here, the deputy clerk testified that she did not know the elements of the charged offense. However, the word “elements” is a legal term of art that a lay person may not necessarily know.
{¶14} A judge, magistrate, clerk of court, or officer of the court shall issue a warrant “[i]f it appears from the complaint, or from an affidavit or affidavits filed with the complaint, that there is probable cause to believe that an offense has been committed, and that the defendant has committed it.” (Emphasis deleted.) Jones, at ¶27. In determining whether probable cause exists, the issuing authority must determine whether probable cause exists without relying on the conclusions of the police officer. Id. at ¶30, citing State v. Gill, 49 Ohio St.2d 177, 360 N.E.2d 693 (1977).
{¶15} Before finding probable cause in this case, the deputy clerk testified that she reviewed the complaint and the attached sworn incident report. According to the incident report, on August 24, 2012, two agents arrived at the GoGo and were advised of the BYOB policy. After leaving to purchase a case of beer, the agents
{¶16} The officer also stated in the incident report that Appellant had previously represented himself as the owner of the establishment in official court proceedings and to the media. Further, the officer noted that Appellant had made similar representations to the Ohio Investigative Unit. Although Appellant argues that his previous statements were stale evidence, a probable cause finding does not require the officer to prove that Appellant owned the club. It requires only reasonable grounds for belief of guilt. Accordingly, as the incident report detailed the officer’s grounds for believing that Appellant committed the charged offenses, the deputy clerk was capable of making a probable cause determination.
{¶17} Appellant next argues that the deputy clerk was not neutral and detached. A two-prong test is employed when this issue is raised. In this test, Appellant bears the burden of showing by a preponderance of the evidence that the clerk did not make an independent determination of probable cause in issuing the warrant. State v. Beard, 12th Dist. No. CA82-01-0013, 1983 WL 4395, *5 (June 15, 1983).
{¶18} Under the first prong, Appellant must show that the clerk was not neutral and detached. Jones, supra, at ¶18. The general presumption is that “unless it is shown to the contrary, it is presumed that a public official properly and regularly discharges his duties in accordance with the law and the authority conferred upon
{¶19} Appellant claims the clerk was trained by the prosecutor, and is controlled by that office. However, Appellant has not provided any support for his belief that the deputy clerk was trained by the prosecutor. To the contrary, she testified that she received training from her supervisor, the Mahoning County Chief Deputy Clerk. Appellant also claims that the deputy clerk testified that she would often confer with the prosecutor when she had a question regarding probable cause, hence relies on him in making probable cause determinations. Again, there is no evidence in the record to substantiate these claims.
{¶20} As to the argument that her work with the prosecutor somehow makes her a rubber stamp for the office, the deputy clerk repeatedly testified that she does not work for or answer to the prosecutor. She merely acknowledged that clerks have frequent contact with the prosecutor and police by the very nature of their work. The fact that the clerk has frequent interaction with the prosecutor does not suggest that she is not neutral and detached.
{¶21} Appellant also grossly exaggerates the prosecutor’s alleged role in the probable cause determination made by the clerk. Although the deputy clerk testified that she often turns to the prosecutor when she has questions, her testimony indicates this is designed to ensure that the correct charges are filed and that the facts are correct. Appellant attempts to argue that the prosecutor developed the clerk’s affidavit procedure. However, the prosecutor was merely one of three people
{¶22} Under the second prong, we must determine whether the facts support the finding of probable cause. As we have already discussed that the record shows the deputy clerk’s determination has support, it is unnecessary to repeat the analysis. Appellant has not met his burden as to either prong of the test. Accordingly, Appellant’s arguments are without merit and his first assignment of error is overruled.
Second Assignment of Error
The Criminal Complaints Fail to Charge an Offense for Selling Alcohol Without a License in Violation of
{¶23} Appellant argues that the complaint should have been dismissed because the phrase “shall sell, keep, or possess beer, intoxicating liquor, or alcohol” is missing from the complaint. As the complaint failed to include an essential element of the charged offense, he urges that it did not fairly and reasonably inform him of all essential elements of the charges against him. Further, he asserts that the incomplete nature of the complaint has stripped the trial court of subject matter jurisdiction to hear the case.
{¶24} The state argues in response that the requirements for a complaint only require a written statement of the essential facts of the charged offense and the statute’s numerical designation. In this case, the state argues that the complaint set forth the essential facts of the charged offense and the relevant statute’s numerical designation. Thus, the state asserts that the requirements of
{¶26} Appellant’s argument is made as though there was only one complaint filed in this matter. In fact, Appellant attaches a copy of one complaint involving an
{¶27} The goal of a complaint is to ensure that a defendant is aware of the nature of the charges against him. State v. Echemendia, 6th Dist. No. OT-95-059, 1996 WL 475994, *1 (Aug. 23, 1996). A person is placed on notice when an “individual of ordinary intelligence would not have to guess as to the type and scope
{¶28} As the remaining
Third Assignment of Error
Sebastian Rucci Filed a Timely Demand For a Jury Trial and the Trial Court Lacked Jurisdiction to Conduct a Non-Jury Trial on the Charges for Violating
{¶29}
The right to be tried by a jury that is granted under division (A) of this section does not apply to a violation of a statute or ordinance that is any of the following:
(1) A violation that is a minor misdemeanor;
(2) A violation for which the potential penalty does not include the possibility of a prison term or jail term and for which the possible fine does not exceed one thousand dollars.
{¶30} Appellant argues that he faced a possible fine that exceeded $1,000 and he timely requested a jury trial. Therefore, he claims the trial court erred in denying this request. While he was granted a jury trial on his
{¶31} Appellant also argues that
{¶32} The state responds that the maximum penalty for a violation of
{¶33} Appellant’s charges pursuant to
Fourth Assignment of Error
Appellant’s Convictions Are Not Supported Legally By Sufficient Evidence.
{¶34} A sufficiency of the evidence review focuses on the prosecution’s burden of production. State v. Merritt, 7th Dist. No. 09 JE 26, 2011-Ohio-1468, ¶34. In a sufficiency review, an appellate court does not focus on “whether the state‘s evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction.” Merritt at ¶35, citing State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997).
{¶35} Appellant was convicted under both
{¶36} Appellant claims that there was no evidence to prove beyond a reasonable doubt that Appellant or his clerk, agent, or employee, sold alcohol without a valid permit. He also argues that there was no evidence to prove that he was the keeper of the business during the relevant time period. In support of his argument, Appellant cites to Giancola’s testimony where she stated that at some point she had begun answering to a new owner who was in charge of the day-to-day operations. Appellant notes that Giancola also testified that she did not remember whether Appellant was involved in the business during the relevant time period. Additionally, Appellant argues that the agents did not provide any testimony linking him to the business during the relevant time period.
{¶37} Appellant argues that he sold the business on two separate occasions. Relevant to this appeal, he states that he sold the business to Norman Dunlap. He alleges Dunlap owned the business during the relevant time period. According to Appellant, Dunlap ran the business even though he still owed Appellant half of the purchase price. Appellant additionally contends that he retained no operational authority after selling the business to Dunlap and that he allowed Dunlap to use the Go-Go name and signage.
{¶38} The state argues in response that Giancola testified that she understood Appellant owned the establishment from January of 2012 until August 2012 and that he was her employer. The state notes she testified that although
{¶39} Appellant did not contest that the BYOB policy was designed at a meeting in which he took part. After the meeting, the state contends that the establishment reopened under this BYOB system and that the establishment continued to so operate from January to August of 2012.
{¶40} Addressing Appellant’s arguments regarding the sufficiency of the evidence as to
{¶41} As a threshold issue, we must determine whether the state presented sufficient evidence that Appellant owned or controlled the business before we can determine whether his employees sold alcohol. It is not disputed that Appellant owned the business at least until the liquor license was non-renewed. As to the relevant time period, the state presented Tara Giancola who testified that Appellant attending a meeting with her, his attorney, and his attorney’s son (also an employee) to discuss the implementation by her and other employees of the BYOB policy. Appellant concedes that he was present at this meeting. It is further noted that
{¶42} Next, we must determine whether an employee of the business sold alcohol during the relevant time period. Appellant concedes that the establishment operated under a BYOB policy during the relevant time period. Giancola explained the policy during her testimony. She stated that patrons would enter the bar area and exchange their beer and liquor for tickets. Employees would then hold the beer/liquor until the patron gave an employee a ticket and paid a fee per beer or alcoholic beverage.
{¶43} Additionally, the investigating agents testified that during an undercover operation they obtained beer, brought it into the establishment, and exchanged it with the bartender for tickets and for payment of a fee. As Giancola and the agent’s testimony presents evidence that money was exchanged for alcohol and Appellant has conceded the final element, the state presented sufficient evidence on each element of
Fifth Assignment of Error
Appellant‘s Convictions Are Not Supported By the Manifest Weight of the Evidence.
{¶45} Although the wording of Appellant’s assignment appears to raise a manifest weight argument, in actuality his arguments are addressed solely to the issue of prosecutorial misconduct. As such, we will discuss this assignment under a prosecutorial misconduct analysis, as framed. As Appellant did not object to any of the prosecutor’s comments at trial, he has waived all but a plain error review. See
{¶46} During trial, the prosecutor stated that Appellant was using an “empty chair defense,” as he testified that a person named Dunlap actually owned the club but Dunlap was not present and never called as a witness. There is nothing to
Sixth Assignment of Error
The Trial Court Incorrectly Denied Appellant‘s Motion for Acquittal in Violation of Criminal Rule 29.
{¶47}
The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state‘s case.
{¶48} An appellate court reviews the denial of a
{¶49} As previously discussed, the state presented sufficient evidence as to each element of both offenses. Thus, in looking at the evidence in a light most favorable to the state, a rational trier of fact could have found that each element was proven beyond a reasonable doubt. Accordingly, Appellant’s arguments are without merit and his sixth assignment of error is also overruled.
Conclusion
{¶50} Appellant has failed to show that the deputy clerk was not neutral and detached. Further, he has not shown that she lacked the ability to make a probable cause determination and the trial court did not err in denying Appellant’s motion to dismiss on this basis. This record also reflects that Appellant was fully placed on notice of the charges against him looking at all of the complaints regarding the same offense which were filed on the same day as a whole. As to Appellant’s jury trial argument, his possible punishment did not include jail or prison time and he was clearly not entitled to a jury trial on those charges. Additionally, the state presented sufficient evidence on each element of both offenses. As his convictions were supported by sufficient evidence, the trial court did not err in denying his motion for acquittal. Finally, there is nothing in the record to suggest that comments made by
DeGenaro, J., concurs in judgment only.
Robb, J., concurs.