STATE OF OHIO v. SCOTT W. SPENCER
Case No. 16 CAA 04 0019
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
January 6, 2017
2017-Ohio-59
Hon. Sheila G. Farmer, P.J., Hon. W. Scott Gwin, J., Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 15-CR-I-07-0318. JUDGMENT: Affirmed.
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 6, 2017
APPEARANCES:
For Plaintiff-Appellee
CAROL O‘BRIEN Delaware County Prosecuting Attorney
By: KYLE E. ROHRER Assistant Prosecuting Attorney 140 N. Sandusky St., 3rd Floor Delaware, Ohio 43015
For Defendant-Appellant
LINDA I. KENDRICK 79 North Sandusky Street Delaware, Ohio 43015
{¶1} Appellant Scott W. Spencer appeals a judgment of the Delaware County Common Pleas Court convicting him of forgery (
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant was indicted on two counts of unlawful sexual conduct with a minor in Delaware County Common Pleas Court number 14-CR-I-08-0373. The case was set for jury trial on April 14, 2015. On the morning of trial, appellant presented an Affidavit of Disqualification to the court pursuant to
{¶3} When appellant presented the affidavit on the morning of trial, the court continued the trial pending resolution of the affidavit. The court then called an alternate trial set for the same day at the same time. However, because neither the State nor defense counsel on the alternate case expected appellant‘s trial to be continued, neither were prepared to proceed and the court continued that case as well. The court dismissed the jury venire, who were compensated in a total amount of $1175.00.
{¶4} Appellant was indicted on one count of forgery on July 17, 2015. On December 1, 2015, appellant completed a demand for disposition of pending indictments and submitted the document to the Ohio Department of Rehabilitation and Corrections
{¶5} Appellant‘s trial began on April 14, 2016. He moved to dismiss the case for violation of his right to a speedy trial, arguing that he sent his first demand for speedy trial to ODRC on August 3, 2015. However, appellant did not present any evidence to support this claim other than the handwritten notation on the December 1, 2015 demand, and the court denied the motion to dismiss.
{¶6} The case proceeded to jury trial, and appellant was convicted as charged. The court sentenced him to twelve months incarceration and ordered him to pay restitution in the amount of $1175.00. He assigns five errors on appeal to this Court:
{¶7} “I. THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT-APPELLANT‘S MOTION TO DISMISS THE INDICTMENT AS THE STATE VIOLATED DEFENDANT-APPELLANT‘S RIGHT TO A SPEEDY TRIAL.
{¶8} “II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT IMPOSED ARBITRARY AND UNREASONABLE TIME LIMITS ON VOIR DIRE.
{¶9} “III. THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT‘S MOTION FOR DISMISSAL UNDER RULE 29(A).
{¶10} “IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ARBITRARILY SENTENCED DEFENDANT TO THE MAXIMUM SENTENCE.
{¶11} “V. THE ORDER OF RESTITUTION WAS NOT SUPPORTED BY THE EVIDENCE.”
{¶12} In his first assignment of error, appellant argues that the court erred in failing to dismiss the complaint on speedy trial grounds pursuant to
When a person has entered upon a term of imprisonment in a correctional institution of this state, and when during the continuance of the term of imprisonment there is pending in this state any untried indictment, information, or complaint against the prisoner, he shall be brought to trial within one hundred eighty days after he causes to be delivered to the prosecuting attorney and the appropriate court in which the matter is pending, written notice of the place of his imprisonment and a request for a final disposition to be made of the matter, except that for good cause shown in open court, with the prisoner or his counsel present, the court may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the warden or superintendent having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time served and remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the adult parole authority relating to the prisoner.
The written notice and request for final disposition shall be given or sent by the prisoner to the warden or superintendent having custody of him, who shall promptly forward it with the certificate to the appropriate
prosecuting attorney and court by registered or certified mail, return receipt requested. The warden or superintendent having custody of the prisoner shall promptly inform him in writing of the source and contents of any untried indictment, information, or complaint against him, concerning which the warden or superintendent has knowledge, and of his right to make a request for final disposition thereof.
Escape from custody by the prisoner, subsequent to his execution of the request for final disposition, voids the request.
If the action is not brought to trial within the time provided, subject to continuance allowed pursuant to this section, no court any longer has jurisdiction thereof, the indictment, information, or complaint is void, and the court shall enter an order dismissing the action with prejudice.
{¶13} The Ohio Supreme Court has held that, pursuant to
{¶14} The record reflects that appellant sent a notice of imprisonment and request for final disposition to the warden on December 1, 2015. That document includes a handwritten note that he had made a request for final disposition on August 3, 2015. Appellant made an oral representation to the trial court that he had submitted an earlier notice to the warden for disposition of his indictment; however, he could not produce the August 3, 2015 written request, and the record does not reflect that appellant complied with
{¶15} The first assignment of error is overruled.
II.
{¶16} In his second assignment of error, appellant argues that the court erred in limiting each side to ten minutes of questioning during voir dire.
{¶17} The scope of voir dire is within the trial court‘s discretion and varies depending on the circumstances of each case. State v. Bedford, 39 Ohio St.3d 122, 129, 529 N.E.2d 913, 920 (1988). Any limits placed thereon must be reasonable. Id.
{¶19} The record does not reflect that counsel for appellant requested more time, or lacked sufficient time to properly voir dire the jury. Further, as to two of the jurors for which questions were raised during voir dire, the court conducted further questioning following the parties’ questions, and allowed counsel for appellant to ask additional questions. Appellant has not demonstrated that the trial court abused its discretion in its limitation of voir dire in the instant case.
{¶20} The second assignment of error is overruled.
III.
{¶21} In his third assignment of error, appellant argues that the judgment convicting him of one count of forgery is not supported by sufficient evidence. Specifically, he argues that creating a false affidavit of disqualification, while deceptive, does not meet the statutory definition of a forged document.
{¶22} An appellate court‘s function when reviewing the sufficiency of the evidence is to determine whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492, paragraph two of the syllabus (1991).
{¶23} Appellant was convicted of forgery in violation of
(A) No person, with purpose to defraud, or knowing that the person is facilitating a fraud, shall do any of the following:
...
(3) Utter, or possess with purpose to utter, any writing that the person knows to have been forged.
{¶24}
{¶25} The State notes that under a former version of the statute, the act of providing false documents to a court during the course of judicial proceedings was specifically defined as forgery. However, the current version of the statute does not expressly define the crime of forgery to include the making of a false statement in the record of a judicial proceeding.
{¶26} In the instant case, the conduct that the State alleged constituted the act of forgery was appellant creating an affidavit of disqualification in which he represented that the date of the next hearing in the case was April 24, when in fact it was April 14. Appellant argues that the definition of “forge” requires that the maker fabricate or create a “spurious” document, and not merely a document containing a false statement.
{¶27} In State v. Bosak, 8th Dist. Cuyahoga No. 46478, 1984 WL 4541 (March 8, 1984), the defendant had presented a vehicle to the Ohio State Highway Patrol for inspection. On the inspection form, the defendant had falsely represented what parts had been repaired or replaced on said vehicle. The Court of Appeals found that the inspection form was not a spurious document, as it was in fact what it purported to be: a vehicle inspection form. The fact that false statements were contained therein did not make the document spurious, and while the defendant could perhaps have been convicted of falsification, his conduct did not meet the statutory definition of forgery. Id.
{¶28} However, one year later, the Ohio Supreme Court held that the alteration of a lottery ticket to create the impression that it has never been cashed and may still be redeemed, and the presentation of such ticket for purposes of receiving cash, knowing that it has been so altered, constitute forgery under
{¶29} Based on the Supreme Court‘s interpretation of the forgery statute in Ferrette, the Ninth District found the endorsement of a food stamp which had not been properly presented for food but had instead been purchased for cash to be a violation of the forgery statute. State v. Habash, 9th Dist. Summit No. 17073, 1996 WL 377522 (January 31, 1996).
{¶31} The third assignment of error is overruled.
IV.
{¶32} Appellant argues that the court erred in sentencing him to the maximum sentence of twelve months incarceration.
{¶33} The two-step approach set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124 no longer applies to appellate review of felony sentences. We now review felony sentences using the standard of review set forth in
{¶35}
{¶36} Under
{¶37} Among the various factors that the trial court must consider and balance under
{¶38}
{¶39} The trial court considered appellant‘s criminal history, including a 2008 conviction for giving false information to mislead a public official, and two convictions for unlawful sexual conduct with a minor. Further, as an attorney, appellant had been disciplined for falsifying evidence. The trial court further noted that appellant showed no genuine remorse for his crime and that he committed the forgery while out on bail for the pending charges of unlawful sexual conduct with a minor. The court specifically noted on the record:
The Court has reviewed the presentence investigation that was conducted in the previous case. The Court finds that the nature of the criminal conduct in the present case is of significant magnitude. Fraud on the court is an attack on the entire criminal justice system. The Defendant‘s conduct runs counter to all of the training that he received in school that he may or may not have received in practice.
{¶40} Tr. (Sent.) 14.
{¶41} The trial court did not err in sentencing appellant to the maximum sentence of twelve months incarceration. The fourth assignment of error is overruled.
{¶42} In his final assignment of error, appellant argues that the court erred in ordering him to pay restitution for the cost of the jury venire brought in for his trial on April 14, 2015. He argues that the jury was brought in to serve on a second case on the same day, and the jury fees incurred by the court were therefore not incurred as a direct and proximate result of his conduct.
{¶43}
Restitution by the offender to the victim of the offender‘s crime or any survivor of the victim, in an amount based on the victim‘s economic loss. If the court imposes restitution, the court shall order that the restitution be made to the victim in open court, to the adult probation department that serves the county on behalf of the victim, to the clerk of courts, or to another agency designated by the court. If the court imposes restitution, at sentencing, the court shall determine the amount of restitution to be made by the offender. If the court imposes restitution, the court may base the amount of restitution it orders on an amount recommended by the victim, the offender, a presentence investigation report, estimates or receipts indicating the cost of repairing or replacing property, and other information, provided that the amount the court orders as restitution shall not exceed the amount of the economic loss suffered by the victim as a direct and proximate result of the commission of the offense. If the court decides to impose restitution, the court shall hold a hearing on restitution if the
offender, victim, or survivor disputes the amount. All restitution payments shall be credited against any recovery of economic loss in a civil action brought by the victim or any survivor of the victim against the offender.
{¶44} In State v. Castaneda, 168 Ohio App.3d 686, 2006-Ohio-5078, 861 N.E.2d 601, this Court found that an order of restitution must be supported by competent and credible evidence from which the trial court can discern the amount of restitution to a reasonable degree of certainty. Castaneda, ¶ 18, citing State v. Gears, 135 Ohio App.3d 297, 300, 733 N.E.2d 683 (1999). A trial court abuses its discretion if it orders restitution in an amount that does not bear a reasonable relationship to the actual loss suffered. Id., citing State v. Williams, 34 Ohio App.3d 33, 516 N.E.2d 1270 (1986). The state bears the burden of establishing the restitution amount. Id.
{¶45} Appellant argues that the continuance of the second trial set to go forward on the same day as his trial was the cause of the economic loss to the court, and he should not be responsible for the $1175.00 in jury costs incurred on April 14, 2015. However, the record reflects that because the State did not anticipate a continuance of appellant‘s trial, the parties were unprepared to go forward on the alternate trial on the day in question. The trial court did not err in finding that the jury costs were incurred as a direct and proximate result of the commission of the offense of forgery.
{¶46} The fifth assignment of error is overruled.
By: Baldwin, J.
Farmer, P.J. and
Gwin, J. concur.