The opinion
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Waite, Judge,
dissenting.
I must strongly dissent from the majority here. Appellant is playing merely a game of semantics. Appellant says that the statute that defines “law enforcement officer” (and thus designates who is a “public official”), R.C. 2901.01(A)(ll)(a), lists only “constable” and not “special constable” and thus appellant as a “special constable” does not fall into the designation of a public official. This argument is severely flawed. While R.C. 509.01 is entitled simply “Constables; compensation,” throughout this entire section constables are referred to as “police constables” in every instance. Never once are they simply referred to as “constable” except in the title.
In contrast, R.C. 1907.54 refers to “special constables,” but clearly and unequivocally states therein that “a special constable has the same authority and is subject to the same obligations as other constables.” Thus, for all intents and purposes (including criminal indictment), “special constables” and “police constables” are one and the same, even for purposes of R.C. 2901.01(A)(ll)(a), which defines just who is a “law enforcement officer” and thus who is a “public official.” To say that this section refers only to the police constable of R.C. 509.01 and not to the special constable of R.C. 1907.54 flies in the face of the laws of construction and the specific language of both statutory sections. Special constables, according to the exact language of R.C. 1907.54, have exactly the same powers as police constables, although differently
selected
to serve in that capacity. The selection process alone differentiates them. Further, R.C. 2901.01(A)(ll)(a) merely generically designates that a “constable” (not either a “police constable” or “special constable”) is a law enforcement officer, and we know that law enforcement officers are public officials pursuant to R.C. 2921.01(A).
Also, appellant is attempting to focus only on his actions as a special constable. The bill of particulars states clearly at counts one through eight that appellant was being indicted for theft by deception, theft in office, “by taking compensation as a constable for Lake Mohawk and compensation from the Jackson Township Police Department for the same hours.” Counts nine through seventeen alleged that while a constable appellant also received compensation for hours worked at Red Center. Appellant was convicted of counts one and six. Thus, appellant was convicted of receiving money as a special constable in charge of the peace and good order of the homeowners’ association, while at the same time he received money as a police officer for the Jackson Township Police Department. In other words, he was on duty as a police officer and earning his police officer’s salary at the same time and for the same hours of work that he was collecting his salary as a constable. Appellant chooses to keep the focus on his job as a constable and to play his (apparently successful) game of semantics because when you shift the focus you realize that he was paid for hours of work as a police officer for the
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township when he was also moonlighting as a constable. There can be no question that, regardless of his actions as a constable, he was properly indicted for theft in office due to his unique dual role here.
I also find that appellant’s other five assignments of error are equally specious. I would affirm the judgment of the trial court in all respects.