State v. SmithState v. Smith
{¶ 1} Plaintiff-appellant, Lynett S. Smith, appeals the judgments of the Napoleon Municipal Court finding her guilty of twice failing to file state sales-tax returns for Chiaverini, Inc. pursuant to
{¶ 2} Smith was an officer and employee of Chiaverini, Inc., d.b.a. Diamond & Gold Outlet. On December 14, 2010, the state of Ohio issued two summonses on two complaints for failure to file sales-tax returns in violation of
{¶ 3} On December 16, 2010, the two cases were filed in the Napoleon Municipal Court in case Nos. CRB 10-848 and CRB 10-849. Smith was arraigned on both charges and entered pleas of not guilty.
{¶ 4} On June 13, 2011, a bench trial was held, and the cases were consolidated for the purposes of trial. The issues in both cases are the same. On appeal, these cases bear appellate case Nos. 7-11-06 and 7-11-08.
{¶ 5} Prior to any testimony, Smith‘s attorney moved to dismiss the cases claiming that even accepting everything written in the complaints as true, Smith‘s actions did not constitute a criminal offense. Smith‘s attorney argued that the applicable division of the Revised Code should have been
{¶ 6} The state‘s sole witness was agent Kathy Zumfelde, an enforcement agent for the Ohio Department of Taxation who had investigated the case. Agent Zumfelde testified that delinquent sales-tax accounts are turned over to the enforcement division after the taxpayer compliance division has contacted the taxpayers and not obtained any results. Zumfelde testified that she researched the Department of Taxation‘s records and found that no sales-tax returns had been filed by the company for either the first or the second half of 2009.1 Zumfelde identified State‘s Exhibit 1, the company‘s 2006 application for a vendor‘s license to make taxable sales, which Zumfelde had obtained from the Henry County auditor‘s office. The document was signed by “Lynett S. Smith”
{¶ 7} On December 14, 2010, agent Zumfelde subsequently contacted Smith (who was listed as the agent for the company on the Ohio secretary of state‘s website).2 Zumfelde testified that Smith admitted to her that “she knew she was behind and was trying to get things caught back up, and didn‘t really have an excuse why they were behind and admitted that she was the person that was responsible to file the sales tax returns.” Zumfelde acknowledged that Smith had eventually paid the taxes in question prior to the trial.
{¶ 8} After the state rested and closing arguments were heard, the trial court found Smith guilty of both offenses.
First Assignment of Error
The trial court erred in overruling [Smith‘s] motion to dismiss the complaint made on the grounds that
Second Assignment of Error
The trial court erred in admitting exhibits that were not authenticated as required by Rules of Evidence 901(B)(7), 902(1), (2), and (4), Crim. R. 27 and
Third Assignment of Error
The trial court erred in overruling [Smith‘s] motion to dismiss the complaint when there was lack of proof that [Smith] was an employee of the corporation responsible for filing returns on the dates specified in the complaint, July 23, 2009 and January 23, 2010, as when “due.”
{¶ 9} In her first assignment of error, Smith argues that she did not “fail to file” the tax returns, she only failed to file them “when due.” Therefore, she
{¶ 10}
(A) No person, including any officer, employee, or trustee of a corporation or business trust, shall fail to file any return or report required to be filed by this chapter, or file or cause to be filed any incomplete, false or fraudulent return, report, or statement * * *.
(B) If any vendor required to file monthly returns under
section 5739.12 of the Revised Code fails, on two consecutive months or on three or more months within a twelve-month period, to file such returns when due or to pay the tax thereon, or if any vendor authorized by the tax commissioner to file semiannual returns fails on two or more occasions within a twenty-four month period, to file such returns when due or to pay the tax due thereon, the commissioner may do any of the following:(1) Require the vendor to furnish security in an amount equal to the average tax liability of the vendor for a period of one year * * *.
(2) Suspend the license issued to the vendor pursuant to
section 5739.17 of the Revised Code .
(Emphasis added.)
{¶ 11} While the statute may not be a model of absolute clarity, we do not find that it is ambiguous or that its language is subject to Smith‘s suggested interpretation.
{¶ 13} A careful reading of
{¶ 14} In the second assignment of error, Smith claims that the trial court erred in admitting the copies of the application for a vendor‘s license (Exhibit 1) and the vendor‘s license (Exhibit 2) that agent Zumfelde obtained from the Henry County auditor‘s office. Smith argues that the documents were not certified and there was no testimony by any custodian as to the records’ maintenance, accuracy, and authenticity as public records. Smith asserts that the records failed to meet the requirements for authentication set forth in Evid.R. 901(B)(7) and 902(1), (2), or (4) or Crim.R. 27 and
{¶ 15} It is well established that the decision to admit or exclude evidence is within the sound discretion of the trial court and that an appellate court will not disturb that decision absent an abuse of discretion. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph two of the syllabus; State v. Swann, 119 Ohio St.3d 552, 2008-Ohio-4837, 895 N.E.2d 821, ¶ 33. The trial court is vested with this discretion because it is in a much better position than we are to evaluate the authenticity of evidence and assess the credibility and veracity of witnesses. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 129. “Abuse of discretion” implies that the trial court‘s decision was arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 16} The Ohio Rules of Evidence provide several alternative means by which documents and public records may be authenticated. Evid.R. 901 and 902. The requirement of authentication is satisfied “by evidence sufficient to support a
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.
* * *
(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement or data compilation, in any form, is from the public office where items of this nature are kept.
Id. Furthermore, the threshold standard for authenticating evidence does not require conclusive proof of authenticity but only sufficient foundational evidence to allow the trier of fact to conclude that the evidence is what the proponent claims it to be. State ex rel. Montgomery v. Villa, 101 Ohio App.3d 478, 484-485, 655 N.E.2d 1342 (10th Dist.1995).
{¶ 17} In this case, agent Zumfelde testified that she was an officer of the Ohio Department of Taxation, that the records for the issuance of the state‘s vendor‘s licenses are held at the county auditors’ offices; that she obtained the records from the Henry County auditor‘s office, and that Jeannie Herdeman, the Henry County auditor, furnished the records. Furthermore, both of the exhibits were stamped with the raised seal of the Henry County auditor‘s office.
{¶ 18} Although having the documents certified, or providing one of the other methods of authentication suggested by Smith, may have been a more thorough option, that does not mean that those particular methods were the only acceptable methods of authentication. As stated above, the Rules of Evidence provide several alternative methods to identify or authenticate documents. Agent Zumfelde provided testimony identifying the documents pursuant to Evid.R. 901(B)(1), and the presence of the seal corroborates Zumfelde‘s testimony pursuant to Evid.R. 901(B)(7). There was sufficient identification of the documents to overcome the threshold needed to authenticate the documents pursuant Evid.R. 901. The trial court did not abuse its discretion in admitting these exhibits, and the second assignment of error is overruled.
{¶ 19} Smith‘s final assignment of error asserts that there was a lack of proof that Smith was the person who was responsible for filing the two returns that were specified in the complaint at the time they were due. Smith maintains that
{¶ 20} When reviewing the sufficiency of the evidence, we focus 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 reasonable doubt. See State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997) (stating that “sufficiency is the test of adequacy“); State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991). The standard of review is whether, after viewing the evidence and the reasonable inferences that may be drawn from that evidence in a light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. Id.; State v. Ayers, 194 Ohio App.3d 812, 2011-Ohio-3500, 958 N.E.2d 222, ¶ 15 (2nd Dist.).
{¶ 21} Under the Ohio Revised Code, officers or directors of a corporation can be held personally liable for the corporation‘s failure to file-returns.
{¶ 22} The trial court summarized the evidence that it used to support its finding that Smith was the person responsible for filing the sales-tax returns as follows.
Now, one of the arguments here is that, how do we know that Ms. Smith was a trustee, an officer of the corporation at the time of these alleged instances.
Well, we know that in 2006 she was a trustee and an officer because she put that on the application. It lists her name as an officer of the corporation.
By her admission as late as December of 2010 she was an officer of the corporation and I think the Court can certainly find that during the periods that are involved in this inquiry, specifically the period in July of 2009 through January 2010, the Court will find that there is sufficient evidence to find that [Smith] was in fact an officer of this corporation.
{¶ 24} Smith‘s admissions, along with the documents supplied by the state that confirm Smith‘s position as an officer and trustee as early as 2006, was sufficient evidence to allow the trial court to reasonably conclude that Smith was responsible for filing the tax returns during the period of July 2009 to January 2010. Smith‘s third assignment of error is overruled.
{¶ 25} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgments of the trial court.
Judgments affirmed.
SHAW, P.J., and ROGERS, J., concur.