State v. Tucker

[Cite as State v. Tucker, 2017-Ohio-7735.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, : No. 15AP-1123

(C.P.C. No. 14CR-4758)

v. :

(REGULAR CALENDAR)

Andre Tucker, :

Defendant-Appellant. :

D E C I S I O N

Rendered on September 21, 2017

On brief: Ron O'Brien, Prosecuting Attorney, and

Barbara A. Farnbacher, for appellee. Argued: Barbara A.

Farnbacher.

On brief: Todd W. Barstow, for appellant. Argued:

Todd W. Barstow.

APPEAL from the Franklin County Court of Common Pleas

BROWN, J.

{¶ 1} This is an appeal by defendant-appellant, Andre Tucker, from a judgment of

conviction and sentence entered by the Franklin County Court of Common Pleas

following a jury trial in which he was found guilty of two counts of theft.

{¶ 2} On September 5, 2014, appellant was indicted in Franklin C.P. No. 14CR-

4758 for two counts of theft, in violation of R.C. 2913.02, both felonies of the fifth degree.

On January 28, 2015, appellant was indicted on an unrelated charge of burglary in

Franklin C.P. No. 15CR-424.

{¶ 3} Both cases came for trial before a jury beginning October 19, 2015. The first

witness for plaintiff-appellee, State of Ohio, in the theft case (No. 14CR-4758) was Dr. Jim

Lahoski, the Superintendent of the North Central Ohio Educational Service Center

No. 15AP-1123 2

("NCOESC"). NCOESC is a non-profit educational entity with offices in Marion,

Mansfield, and Tiffin, Ohio. NCOESC provides services to public and community (i.e.,

charter) schools, and those services include acting as a sponsor for community schools.

NCOESC also works with a third-party company that "provides particular services to the

community schools." (Tr. Vol. II-A at 9.)

{¶ 4} The Ohio Department of Education ("ODE") provides funding for

community schools and is required to approve sponsorship contracts between a

community school and a sponsor such as NCOESC. Dr. Lahoski testified there is a

significant application process to obtain community school sponsorship. In October

2012, appellant contacted NCOESC and expressed "great interest in beginning a

community or a charter school." (Tr. Vol. I at 35.) Dr. Lahoski and several administrators

met with appellant, who made a "very convincing * * * presentation." (Tr. Vol. I at 5.)

Appellant subsequently entered into contracts with NCOESC to open two community

schools, the Talented Tenth Leadership Academy ("TTLA") for Girls and the TTLA for

Boys. Dr. Lahoski identified the state's exhibits Nos. 3 and 4 as contracts between the

boards of NCOESC and TTLA.

{¶ 5} NCOESC employed appellant under two separate contracts; under the first,

effective June 3 through July 31, 2013, appellant served as an educational consultant with

duties which included "recruiting students, marketing, securing facilities, policy

development, grant writing and securing food service proposals." (Tr. Vol. II-A at 29.)

Under the second contract, a two-year agreement with an effective date of August 1, 2013

to July 31, 2015, appellant served as "superintendent, executive director, for [TTLA] with

an annual salary of $70,982." (Tr. Vol. II-A at 29.)

{¶ 6} As a community school sponsor, NCOESC is responsible for monitoring the

activities of schools with respect to issues of performance, safety, curriculum, and

compliance. Among other requirements, Ohio law mandates minimum enrollment

criteria for a community school (i.e., a minimum enrollment of 25 students).

{¶ 7} Dr. Lahoski testified that appellant lacked qualifications required by

NCOESC to serve as the fiscal officer for TTLA for Girls or TTLA for Boys. Specifically,

NCOESC requires a certificate indicating an individual is "licensed as a fiscal officer, a

treasurer for such a school." (Tr. Vol. II-A at 51.)

No. 15AP-1123 3

{¶ 8} Dr. Lahoski testified as to the circumstances leading to the closure of TTLA

for Girls and TTLA for Boys in fall 2013, including the fact that TTLA "failed to have the

number of children they predicted." (Tr. Vol. II-A at 23.) TTLA was "paid by the state for

the estimated number of 72 students when, in fact, on October 14, 2013, there were 14 in

one school and * * * 12 in the other school, and the minimum requirement is 25 students."

(Tr. Vol. II-A at 23.) Dr. Lahoski stated that TTLA also "failed to complete the proper

record keeping," and "failed to provide proper * * * information to register the kids." (Tr.

Vol. II-A at 23.) On November 20, 2013, NCOESC abolished appellant's position with

NCOESC for failure to meet minimum requirements for enrollment and for safety issues

involving the schools. NCOESC also suspended operation of the schools at that time.

{¶ 9} Thomas Holmes, legal counsel for NCOESC, testified that Ohio statutory

law provides procedures for the distribution of remaining assets of a community school

upon its closure; once a community school is suspended, all operations must cease,

including financial activities. Holmes testified that he was involved in the distribution of

assets after the closure of the two TTLA schools.

{¶ 10} Holmes identified state's exhibit No. 15 as "a check issued by the Ohio

Department of Education in the amount of $6,317.96 * * * to Talented Tenth Leadership

Academy for Girls, dated September 16, 2013." (Tr. Vol. II-A at 92.) He identified state's

exhibit No. 16 as "a check issued by the Ohio Department of Education in the amount of

$1,182.04 * * * to the Talented Tenth Leadership Academy for Boys, dated October 15,

2013." (Tr. Vol. II-A at 92.)

{¶ 11} On October 31, 2013, Holmes e-mailed appellant regarding the "return of

missing property and these two checks issued by the Department of Education." (Tr. Vol.

II-A at 94.) On November 1, 2013, appellant "indicated that he would return those two

checks to Mandy France, * * * the fiscal officer of both community schools at the time."

(Tr. Vol. II-A at 94.) Several weeks later, Holmes had a telephone conversation with

appellant concerning the two checks, and appellant "indicated that he did not have the

checks. He said they were locked in a storage facility at the building where the

community school was previously located." (Tr. Vol. II-A at 94.) Holmes followed up

with written correspondence to appellant on November 21, 2013, stating it was necessary

for him to return the checks; Holmes never received the checks from appellant. Holmes

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testified that NCOESC suspended operations of the community schools, at the latest, on

November 9, 2013.

{¶ 12} NCOESC assigned one of its employees, Mandy France, to serve as

Treasurer/Fiscal Officer for TTLA for the 2013-2014 school year. France's duties included

maintaining the records of the school at all times during her term of assignment. A

payment from the state to a community school is termed "a foundation settlement

payment." (Tr. Vol. II-A at 144.) As treasurer, France was the only individual authorized

to spend funds from TTLA accounts. France opened two accounts with Chase Bank to

handle the funds for TTLA for Girls and TTLA for Boys; according to France, all

community school funds were to be placed in those accounts.

{¶ 13} France testified that she never received the check issued by ODE to TTLA in

the amount of $6,317.96 (state's exhibit No. 15) for deposit into the Chase Bank account.

France similarly testified that she never received the check issued by ODE to TTLA in the

amount of $1,182.04 (state's exhibit No. 16) for deposit into the Chase Bank account. On

November 1, 2013, France resigned from her responsibilities as fiscal officer for TTLA

because of a "lack of cooperation and the leadership that it needed to carry through with

the school due to the school closing." (Tr. Vol. II-A at 140.)

{¶ 14} Cody Loew is the assistant director of ODE's Office of Budget and School

Funding, and his responsibilities include ensuring that ODE makes accurate and timely

payments to community schools. Loew became aware that TTLA for Girls and TTLA for

Boys closed after "issues were brought to our attention that there were safety and health

concerns." (Tr. Vol. II-B at 10.) Once a school is closed, ODE acts to "completely stop the

payments to them and move to collect any funds that are owed back to [ODE]." (Tr. Vol.

II-B at 11.) In the event of a closure, the sponsor of a community school acts as the

receiver for the school.

{¶ 15} Loew identified state's exhibit Nos. 15 and 16 as foundation settlement

payment checks issued by ODE to TTLA for the purpose of educating students, operating

schools, and paying teacher salaries. According to Loew, the checks were not used for

their intended purposes. Loew testified that a fiscal officer for NCOESC contacted ODE

about attempting to reconcile foundation settlement payments "because they couldn't find

these checks." (Tr. Vol. II-B at 7.) Loew related that ODE "started to look into it; we

looked up the Ohio treasury website, found these checks, found that the signatures on the

No. 15AP-1123 5

back did not match checks for previous foundation checks, looked further into the warrant

number to find that these checks were deposited into bank accounts that weren't the

primary ones for the school." (Tr. Vol. II-B at 7.) The ODE treasury found "no record of

these [checks] being deposited into the actual accounts for the school." (Tr. Vol. II-B at 7.)

ODE subsequently "turned it over to the police for further investigation." (Tr. Vol. II-B at

7.)

{¶ 16} Columbus Police Detective Todd Schiff is a member of the department's

economic crime unit which investigates white collar financial crimes. Detective Schiff

became involved in the investigation of TTLA after ODE filed a report with the Columbus

Police Department. The detective, after speaking with officials at ODE as well as

employees of NCOESC (Dr. Lahoski and France), learned that two ODE checks issued to

TTLA had not been deposited into the designated accounts with Chase Bank. ODE

informed the detective that the checks had been deposited into an account with Charter

One Bank ("Charter One"), opened in the name of TTLA for Girls. Appellant's signature

appeared on the signature card for the account, and appellant's home address was listed

as the address on the account. The Charter One account had been opened December 1,

2013; Detective Schiff determined that the $6,317.96 check for TTLA for Girls was

deposited into that account on December 2, 2013, while the $1,182.04 check for TTLA for

Boys was deposited into the account "approximately a month later." (Tr. Vol. II-B at 42.)

{¶ 17} The detective reviewed a bank statement showing purchases from the

account, including purchases made from Wendy's and Giant Eagle. The statement also

indicated ATM cash withdrawals. Among the expenditures, the detective identified two

Giant Eagle money orders for $500 each, purchased on December 9, 2013, "made out to

Corina Pierce," the wife of appellant. (Tr. Vol. II-B at 36.) Money orders from Giant

Eagle had also been purchased and made payable to appellant.

{¶ 18} Detective Schiff determined that $1,031 in money orders purchased from

Giant Eagle had been made payable to "Hilliard Summit," the apartment complex where

appellant resided. (Tr. Vol. II-B at 37.) He identified another money order in the amount

of $500, made payable to Primrose Hilliard, which the detective determined had been

expended for daycare for the daughter of appellant and Pierce. Detective Schiff also noted

a purchase from Giant Eagle for $144.94, of which $123.26 was paid for with an EBT food

stamp card belonging to Pierce, and $20.84 was "paid for with a debit card of Talented

No. 15AP-1123 6

Tenth Leadership Academy." (Tr. Vol. II-B at 41.) According to the detective, the

transaction raised "red flags" because, assuming the purchase was a legitimate expense

for TTLA, the entire amount "would have been paid for out of the TTLA funds." (Tr. Vol.

II-B at 41.) Detective Schiff could not identify any transactions he deemed to be expenses

attributable to the operation of a school.

{¶ 19} Detective Schiff interviewed appellant on May 27, 2014. Appellant told the

detective that he was owed money by NCOESC. Appellant acknowledged opening a TTLA

account with Charter One to deposit the two checks from ODE. Appellant told the

detective he "had problems with Mandy France, the treasurer with North Central Ohio;

and at his board's discretion and his board's authority, he stated that's how he opened up

the TTLA account at Charter One and deposited those checks." (Tr. Vol. II-B at 48.)

Appellant also told the detective he fired France, and "there was no one in place to accept

those checks as the reason why he set up that account." (Tr. Vol. II-B at 48.) At the time

of the interview, Detective Schiff had information from NCOESC indicating that France

resigned as treasurer for TTLA on November 1, 2013; appellant, however, "stated he had

fired her prior to that date." (Tr. Vol. II-B at 48.)

{¶ 20} Detective Schiff questioned appellant as to expenditures made from the

Charter One account. Appellant told the detective that "all of the money was used to pay

an intern, to reimburse staff or various expenditures to pay the caterer for food services."

(Tr. Vol. II-B at 50.) When asked by the detective whether he had any documentation for

those expenditures, appellant "stated he did not have that at the time of the interview, but

he did have that and could provide that to me." (Tr. Vol. II-B at 51.) The detective

received a spreadsheet document from appellant on July 29, 2014, but appellant did not

provide any supporting documentation such as receipts or invoices for the expenditures.

Appellant told the detective that he became the fiscal officer for both schools "per Dr.

Lahoski's request." (Tr. Vol. III at 21.) The detective cited a lack of checks and balances

as to appellant's expenditures from the TTLA treasury.

{¶ 21} The state also presented testimony from several witnesses with respect to

the burglary case (case No. 15CR-424). At the close of the state's case, counsel for

appellant made a motion for acquittal as to all charges. The trial court denied the motion.

{¶ 22} Appellant testified on his own behalf in case No. 14CR-4758. In 2013,

appellant resided on Meadows Way, Hilliard, Ohio. Appellant created TTLA, and the

No. 15AP-1123 7

business address was the same as his residential address. Appellant testified that he was

the fiscal officer for TTLA during the "pre-development phase." (Tr. Vol. III at 186.) He

served as the executive director of the schools and also had a two-year contract with

NCOESC.

{¶ 23} In May 2013, appellant began receiving checks from NCOESC. TTLA and

NCOESC entered into a third-party agreement with Charter School Management

Corporation, and NCOESC provided TTLA with a treasurer. The first day of school for

both TTLA for Girls and TTLA for Boys was September 25, 2013. The two schools held

classes at separate leased locations.

{¶ 24} Appellant stated that TTLA had two boards for each school, a "pre-

operations board" and a "post-operations board." (Tr. Vol. IV-A at 3.) Appellant's wife,

Corina Pierce, served on the pre-operations board. When the schools opened, there were

five TTLA board members. Appellant testified that his board hired Mandy France as

treasurer, and that France's salary was paid by NCOESC.

{¶ 25} During fall 2013, both schools experienced problems with the landlord of

the respective leased locations. On October 18, 2013, the schools "received an unofficial

notice of suspension" from NCOESC. (Tr. Vol. IV-A at 13.) Appellant sought and

obtained a temporary restraining order from Wyandotte County based on an alleged

"Ohio open meetings violation." (Tr. Vol. IV-A at 16.)

{¶ 26} Appellant testified that he continued to operate the schools at various

locations, including a public library and "Fort Rapids." (Tr. Vol. IV-A at 17.) He related

that "it was not a full-blown school. * * * Some days it was 12 kids; some days it was 27

kids. It just varied." (Tr. Vol. IV-A at 17.) According to appellant, expenses "hadn't been

paid yet prior to the school being suspended." (Tr. Vol. IV-A at 19.) Appellant stated that

he compensated interns "for the time period October 28th through the beginning of

January 2014." (Tr. Vol. IV-A at 19.) Appellant testified that he provided the food service

for the schools during that time, and that he purchased food from various places,

including Wendy's, Burger King, Super Chef, and Giant Eagle.

{¶ 27} Appellant acknowledged opening an account with Charter One around the

beginning of December 2013, stating that his board authorized the account. He deposited

two checks from ODE into the account. According to appellant, the account "did not

provide checks. So we used money orders and an ATM debit card." (Tr. Vol. IV-A at 31.)

No. 15AP-1123 8

With respect to a $500 expenditure to "Primrose Hilliard," appellant stated that he used

his "health benefits expenses to pay for my daughter's tuition." (Tr. Vol. IV-A at 40.) He

also testified that TTLA had a lease agreement with "Hilliard Summit Schottenstein

property" for three months during the pre-operational phase. (Tr. Vol. IV-A at 45.)

Appellant stated that he terminated TTLA's relationship with Mandy France on

October 29, 2013.

{¶ 28} On cross-examination, appellant acknowledged that he could not operate a

community school without a sponsor, and that he never received permission to operate

the TTLA schools independent of a sponsor. Appellant opened the Charter One account

on November 30, 2013, after he told legal counsel for NCOESC that he could not find the

checks at issue. Appellant admitted that the Charter One account was overdrawn in

January 2014. Appellant was unable to state how many days in December 2013 the

school was in operation. He acknowledged that $100 from the Charter One account was

used as payment for one of his student loans, explaining that the payment was a mistake

and that $100 was paid back to ODE in January 2014. He also acknowledged sending an

e-mail to Thomas Holmes on November 1, 2013, in which appellant stated that France

was still treasurer for TTLA.

{¶ 29} Following deliberations, the jury returned verdicts finding appellant guilty

of two counts of theft in case No. 14CR-4758. The jury returned a verdict of not guilty of

burglary in case No. 15CR-424. By judgment entry filed November 19, 2015, the trial

court imposed a sentence of five years of community control sanctions and ordered

appellant to pay restitution to ODE.

{¶ 30} On appeal, appellant sets forth the following three assignments of error for

this court's review:

I. THE TRIAL COURT ERRED AND DEPRIVED

APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED

BY THE FOURTEENTH AMENDMENT TO THE UNITED

STATES CONSTITUTION AND ARTICLE ONE SECTION

TEN OF THE OHIO CONSTITUTION BY FINDING HIM

GUILTY OF THEFT AS THOSE VERDICTS WERE NOT

SUPPORTED BY SUFFICIENT EVIDENCE AND WERE

ALSO AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.

No. 15AP-1123 9

II. APPELLANT'S TRIAL COUNSEL WERE INEFFECTIVE,

THEREBY DENYING HIM HIS RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL.

III. THE TRIAL COURT ERRED TO THE PREJUDICE OF

APPELLANT BY IMPROPERLY SENTENCING HIM TO

CONSECUTIVE TERMS OF INCARCERATION IN

CONTRAVENTION OF OHIO'S SENTENCING STATUTES.

{¶ 31} Under his first assignment of error, appellant challenges his theft

convictions as not supported by sufficient evidence and as against the manifest weight of

the evidence. Appellant disputes the state's theory that he expropriated public monies for

his own use, portraying his actions instead as that of a bad recordkeeper who was

attempting to keep the community schools in operation despite unforeseen setbacks. He

further maintains that the TTLA board authorized many of the expenditures claimed as

theft.

{¶ 32} Under Ohio law, sufficiency of the evidence and weight of the evidence are

distinct legal concepts. State v. Stone, 1st Dist. No. C-040817, 2006-Ohio-1375, ¶ 10. In

State v. Sexton, 10th Dist. No. 01AP-398, 2002-Ohio-3617, ¶ 30-31, this court addressed

those distinctions, stating in part as follows:

To reverse a conviction because of insufficient evidence, we

must determine as a matter of law, after viewing the evidence

in a light most favorable to the prosecution, that a rational

trier of fact could not have found the essential elements of the

crime proved beyond a reasonable doubt. * * * Sufficiency is a

test of adequacy, a question of law. * * * We will not disturb a

jury's verdict unless we find that reasonable minds could not

reach the conclusion the jury reached as the trier of fact. * * *

We will neither resolve evidentiary conflicts in the defendant's

favor nor substitute our assessment of the credibility of the

witnesses for the assessment made by the jury. * * * A

conviction based upon legally insufficient evidence amounts

to a denial of due process, * * * and if we sustain appellant's

insufficient evidence claim, the state will be barred from

retrying appellant.

A manifest weight argument * * * requires us to engage in a

limited weighing of the evidence to determine whether there

is enough competent, credible evidence so as to permit

reasonable minds to find guilt beyond a reasonable doubt and,

thereby, to support the judgment of conviction. * * * Issues of

witness credibility and concerning the weight to attach to

No. 15AP-1123 10

specific testimony remain primarily within the province of the

trier of fact, whose opportunity to make those determinations

is superior to that of a reviewing court. * * * Nonetheless, we

must review the entire record. With caution and deference to

the role of the trier of fact, this court weighs the evidence and

all reasonable inferences, considers the credibility of

witnesses, and determines whether, in resolving conflicts in

the evidence, the jury, as the trier of facts, clearly lost its way,

thereby creating such a manifest miscarriage of justice that

the conviction must be reversed and a new trial ordered. The

discretionary power to grant a new trial should be exercised

only in the exceptional case in which the evidence weighs

heavily against a conviction.

{¶ 33} We initially consider appellant's sufficiency challenge. As noted, the jury

returned verdicts finding appellant guilty of two counts of theft, in violation of R.C.

2913.02. R.C. 2913.02(A) states in part: "No person, with purpose to deprive the owner of

property * * * shall knowingly obtain or exert control over * * * the property * * *

(2) [b]eyond the scope of the express or implied consent of the owner or person

authorized to give consent." R.C. 2901.22(A) states in part: "A person acts purposely

when it is the person's specific intention to cause a certain result." Pursuant to R.C.

2901.22(B), "[a] person acts knowingly, regardless of purpose, when the person is aware

that the person's conduct will probably cause a certain result or will probably be of a

certain nature. A person has knowledge of circumstances when the person is aware that

such circumstances probably exist."

{¶ 34} At trial, the state's theory of the case was that ODE provided funds to TTLA

in the form of two checks (state's exhibit Nos. 15 and 16) issued for the purpose of

operating community schools, but that appellant utilized those funds for personal

expenditures. Witnesses for the state included the superintendent of NCOESC, Dr.

Lahoski, who testified that appellant was not authorized to serve as fiscal officer for the

community schools. NCOESC employee France, assigned to serve as treasurer for TTLA,

testified that she was the only individual with authorization to receive money or write

checks from the account she set up with Chase Bank. ODE employee Loew testified that

foundation settlement payments issued by the state are for the purpose of educating

students, operating schools, and paying teacher salaries. Holmes, legal counsel for

NCOESC, testified that all operations, including financial activities, must cease in the

No. 15AP-1123 11

event a community school is suspended. According to Holmes, NCOESC suspended

TTLA, at the latest, on November 9, 2013.

{¶ 35} The state also presented the testimony of Detective Schiff, who testified that

appellant opened a Charter One bank account on December 1, 2013. The detective

reviewed a bank statement from Charter One and noted various charges against the

account, including a December 9, 2013 charge to Giant Eagle in the amount of $1,001.16,

a December 13, 2013 charge to Giant Eagle in the amount of $1,076.74, and a January 3,

2014 charge to Giant Eagle in the amount of $1,031.74. The detective also noted "quite a

few ATM cash withdrawals." (Tr. Vol. II-B at 35.) The detective discovered that the

charges to Giant Eagle involved money orders, including three money orders totaling

$1,030, payable to Hilliard Summit, "the name of the apartment complex where, at the

time, [appellant] lived." (Tr. Vol. II-B at 37.) The detective identified three money orders

totaling $1,500 payable to appellant's wife, Corina Pierce. The detective investigated a

money order payable to "Primrose Hilliard" in the amount of $500, and "determined that

this particular money order was for * * * day care for * * * the biological child of

[appellant] and Corina Pierce." (Tr. Vol. II-B at 38.)

{¶ 36} Under Ohio law, "a jury may infer purpose from the surrounding

circumstances." State v. Graham, 10th Dist. No. 09AP-896, 2010-Ohio-2907, ¶ 21, citing

State v. Buelow, 10th Dist. No. 07AP-317, 2007-Ohio-5929, ¶ 25. As set forth above, the

state presented evidence that appellant lacked qualifications required by NCOESC to

serve as fiscal officer for TTLA, but that he nevertheless opened a separate bank account

and funded the account with two checks issued by ODE and payable to TTLA for school

operations; appellant took these actions after being notified by NCOESC that TTLA's

sponsorship had been terminated, and after being contacted by legal counsel for NCOESC

about returning the missing checks. As also noted, the state presented testimony by

Detective Schiff that appellant utilized funds from the Charter One account to purchase

money orders from Giant Eagle payable to himself and to his wife; further, that money

withdrawn from the Charter One account was used to pay for rent at the apartment

complex where appellant resided and for his daughter's daycare. According to testimony

of the detective, none of the expenditures were for the purpose of operating a community

school.

No. 15AP-1123 12

{¶ 37} While appellant sought to portray his expenditures as an attempt to keep

the fledgling community schools open, the state presented contrary evidence which, if

believed, was sufficient to show that appellant knowingly acted with purpose to deprive

the state of property by exerting control over such property beyond the scope of the

owner's express or implied consent. See, e.g., State v. Plunket, 10th Dist. No. 78AP-809

(Dec. 28, 1979) (sufficient evidence to support finding that defendant was aware the

control he exercised over investors' funds would probably exceed the scope of consent and

that it was his specific intent to deprive investors of their money; defendant's contention

that he made various expenditures to keep company operating not determinative, nor

does such a motive exculpate him of criminal liability); State v. Pellin, 7th Dist. No. 11 MA

194, 2012-Ohio-5342, ¶ 22 (sufficient evidence to support theft conviction as it was

reasonable to find that defendant's deposit of funds into undisclosed bank account was

beyond the scope of authority granted by receiver or bankruptcy court's order; "even if

* * * there was some authority to use the pre-existing account for certain items * * * a

reasonable person could find that the withdrawals were beyond the scope of that

authority" where checks were written to and cashed by defendant); State v. Dortch, 2d

Dist. No. 17700 (Oct. 15, 1999) (Even where a person "lawfully has control over property

with consent, that person cannot thereafter exert control for a different purpose.").

(Emphasis sic.) Here, viewing the evidence in a light most favorable to the state, a

rational trier of fact could find all the elements of theft proven beyond a reasonable doubt.

We therefore reject appellant's contention that his convictions are not supported by

sufficient evidence.

{¶ 38} Nor do we find persuasive appellant's claim that his convictions are against

the manifest weight of the evidence. As noted, appellant sought to portray his conduct as

that of a bad bookkeeper, and he points to his own testimony in support. At trial, the jury

had the opportunity to review the transactions recorded in the Charter One bank

statement and to consider appellant's explanations for the expenditures. The jury also

heard the testimony of Holmes, legal counsel for NCOESC, who stated that he contacted

appellant in November 2013 about returning the two checks because the schools were no

longer operating. Appellant assured Holmes he would find the checks and return them to

the TTLA treasurer (France). Instead, however, appellant subsequently opened the

Charter One account, deposited the two checks, and used funds from the account to

No. 15AP-1123 13

purchase money orders made payable to his wife and himself. In rendering its verdicts,

the jury obviously found more credible testimony and evidence presented by the state that

undermined appellant's claims that various expenditures he made were for school

operations rather than personal expenses, and it was within the jury's province to reject

appellant's version of the events and to accept the state's version.

{¶ 39} On review, we are unable to conclude that the trier of fact clearly lost its way

and created such a manifest miscarriage of justice in convicting appellant of the two theft

counts. Accordingly, the convictions are not against the manifest weight of the evidence.

{¶ 40} Based on the foregoing, appellant's first assignment of error is without merit

and is overruled.

{¶ 41} We will address appellant's second and third assignments of error in inverse

order. Under his third assignment of error, appellant contends the trial court erred in

sentencing him to consecutive terms of incarceration without making the statutory

findings required by R.C. 2929.14(C)(4). According to appellant, the record fails to justify

the imposition of consecutive terms as he had no prior criminal record and was convicted

of two felonies of the fifth degree.

{¶ 42} In response, the state argues the trial court was not required to make

consecutive sentencing findings under R.C. 2929.14(C) as appellant was not sentenced to

serve a prison term but, rather, was ordered to serve community control sanctions. We

agree.

{¶ 43} R.C. 2929.14(C)(4), which requires a trial court to make specific findings

before imposing consecutive sentences, states in part: "If multiple prison terms are

imposed on an offender for convictions of multiple offenses, the court may require the

offender to serve the prison terms consecutively." (Emphasis added.) Thus, "[t]he statute

clearly states that the findings are required before a court imposes multiple prison terms."

State v. Carswell, 8th Dist. No. 101313, 2015-Ohio-764, ¶ 9.

{¶ 44} Under Ohio law, "the purpose of the community control statute is not to

sentence a defendant to a specific prison term and then suspend or reserve that prison

term. * * * Rather, the purpose of the statute is to notify the defendant of a specific prison

term that may be imposed if the defendant violates community control." (Emphasis sic.)

State v. Duncan, 12th Dist. No. CA2015-05-086, 2016-Ohio-5559, ¶ 21. Thus, "when a

defendant is sentenced to community control on a count of conviction and notified at that

No. 15AP-1123 14

time of the specific prison term he faces should he violate his community control, the

defendant is only sentenced to community control sanctions and is not sentenced to that

prison term." Id. In the event of a community control violation, R.C. 2929.15(B) "details

procedures for a trial court to follow," and "provides that if a prison term is imposed upon

the defendant for violating community control, the prison term must comply with R.C.

2929.14." Id. at ¶ 41.

{¶ 45} In the present case, the trial court's sentencing entry reflects the court

imposed "a period of Community Control for five (5) years under basic supervision."

(Emphasis omitted.) The court's entry further states that, following the imposition of

community control, the court notified appellant, orally and in writing, "what could

happen if he violates Community Control." Specifically, the entry states that the court

"indicated that if [appellant] violates Community Control he would receive a prison term

of eleven (11) months on each count, to be served consecutive to each other for a total of

twenty-two (22) months."

{¶ 46} In State v. Bates, 6th Dist. No. WM-12-002, 2013-Ohio-1270, the reviewing

court addressed a similar argument as the one posited by appellant in this case. Under

the facts of Bates, the trial court sentenced the defendant to a four-year term of

community control following a jury trial in which he was found guilty of various offenses,

including identity fraud, menacing by stalking, and possessing criminal tools. On appeal,

the defendant challenged his sentence arguing that the trial court erred "by ordering him

to 'serve a consecutive sentence without making the appropriate findings required by

[R.C. 2929.14(C)(4)].' " Id. at ¶ 67. The appellate court rejected this argument, holding in

part:

Bates' initial argument concerning consecutive sentences

overlooks the fact that the trial court is not required to make

statutory findings of fact under R.C. 2929.14(C)(4) when it

sentences a defendant to community control in lieu of a

consecutive prison sentence. See State v. Madaffari, 12th

Dist. No. CA2004-08-193, 2005-Ohio-3625, ¶ 14 (concluding

that "a trial court is required to make the statutory findings

and supporting reasons * * * not when it sentences a

defendant to community control, but when it actually imposes

a consecutive prison term."). Since Bates' consecutive prison

sentence does not apply unless he violates the terms of his

community control, that sentence has not been "actually

No. 15AP-1123 15

imposed." Thus, the trial court did not err in failing to make

the statutory findings of fact under R.C. 2929.14(C)(4).

Id. at ¶ 68.

{¶ 47} Similarly, in the instant case, the trial court sentenced appellant to

community control sanctions in lieu of a prison term and, therefore, the court did not err

in failing to make consecutive sentencing findings under R.C. 2929.14(C)(4). Id. See also

State v. Malone, 3d Dist. No. 9-15-42, 2016-Ohio-5556, ¶ 14 (following decision by Eighth

District Court of Appeals in determining that statutory findings under R.C. 2929.14(C)(4)

do not apply when a period of community control sanctions is ordered to be served

consecutive to a prison term).

{¶ 48} Accordingly, appellant's third assignment of error is overruled.

{¶ 49} Under his second assignment of error, appellant argues that his trial counsel

was ineffective in (1) failing to object to the joinder of the two cases (case Nos. 15CR-424

and 14CR-4758), and (2) by waiving the statutory findings for consecutive sentences.

With respect to the issue of joinder, appellant argues that the indictments for theft and

burglary should not have been tried together because the two cases involved completely

unrelated offenses.

{¶ 50} Appellant notes that, prior to trial, his trial counsel requested the court to

grant severance of the two criminal cases, which the court was prepared to do. Trial

counsel, however, elected to go forward on both cases after the trial court reminded

counsel that, once jeopardy attached, the court would dismiss the burglary case with

prejudice if the state was unable to produce its witness. Appellant further notes that,

during the middle of his testimony on the theft offense, the state located a missing witness

in the burglary case and presented the testimony of that individual.

{¶ 51} Under Ohio law, trial counsel's performance "will not be deemed ineffective

unless and until counsel's performance is proved to have fallen below an objective

standard of reasonable representation and, in addition, prejudice arises from counsel's

performance." State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus.

In order to show that a defendant has been prejudiced by his or her counsel's deficient

performance, "the defendant must prove that there exists a reasonable probability that,

No. 15AP-1123 16

were it not for counsel's errors, the result of the trial would have been different." Id. at

paragraph three of the syllabus.

{¶ 52} In the instant case, the record indicates that trial counsel initially objected

to joinder of the cases, arguing that the cases were "totally unrelated." (Tr. Vol. I at 5.)

The trial court responded: "I can separate them and continue the case and then he's

looking at a burglary charge; or, we can go forward and if they don't produce the witness it

gets [nolled]. So you can make a tactical, strategic[] decision and I'm happy to

accommodate you in either regard." (Tr. Vol. I at 5.) The trial court, noting that

"jeopardy attaches when the jury is impaneled and sworn," further stated on the record

that if the prosecutor was "not prepared to go forward by the time the jury is impaneled

and sworn on that case, I'll either dismiss it or he'll [nolle] it." (Tr. Vol. I at 6.) In

response, defense counsel made the decision to go forward with both cases, and the state

proceeded to call its witnesses in the theft case. The state subsequently located a primary

witness in the burglary case. At that time, counsel for appellant made a request to "renew

our motion to sever" the burglary case from the theft case, "[e]specially after going

through the theft portion of the state's case." (Tr. Vol. III at 60.) Defense counsel argued

that it would be prejudicial to proceed with evidence of the burglary offense given the

amount of evidence the jury had already heard with respect to the theft offense. The trial

court overruled defense counsel's motion to sever.

{¶ 53} On review, appellant has failed to demonstrate deficient performance by

trial counsel regarding the issue of joinder. Under Ohio law, "[t]rial strategy does not

constitute ineffective assistance of counsel." State v. Diaz, 8th Dist. No. 103878, 2016-

Ohio-5523, ¶ 67. As noted above, defense counsel initially sought severance of the cases.

However, because of uncertainty as to whether the state would be able to obtain the

testimony of a witness in the burglary case, counsel made a strategic decision to proceed

with both cases following the trial court's comments regarding the potential for dismissal

of the burglary charge if the state was unable to locate the witness. As also noted, once the

witness became available, defense counsel renewed the motion to sever the cases. Under

these circumstances, appellant cannot show that counsel's strategy was unreasonable, or

that the actions of counsel constituted deficient performance. See State v. Dantzler, 10th

Dist. No. 14AP-907, 2015-Ohio-3641, ¶ 21 ("the decision to file a motion for separate trials

or to proceed with the joinder of the offenses may be a matter of counsel's trial strategy").

No. 15AP-1123 17

{¶ 54} Further, we agree with the state's contention that appellant has also failed to

demonstrate prejudice, as he was acquitted of the charge in the burglary case (case No.

15CR-424), indicating the jury was able to "separate the evidence" as to the offenses.

State v. Wampler, 5th Dist. No. 13-CA-3, 2014-Ohio-37, ¶ 74 (appellant failed to

demonstrate prejudice from joinder of counts where jury acquitted him of all counts

related to alleged incident of arson on date separate from the date of the incident for

which he was convicted).

{¶ 55} Appellant also claims deficient performance based on his counsel's waiver of

findings with respect to consecutive sentences. Specifically, at the time of sentencing, the

trial court, after informing appellant that the court was not going to impose a prison term,

inquired of defense counsel if he was "going to waive consecutive findings?" Counsel

responded, "Yes, your Honor." (Tr. Vol. V at 16.)

{¶ 56} As previously addressed under the third assignment of error, the trial court,

having imposed a sentence of community control, was not required to make statutory

findings under R.C. 2929.14(C)(4). Thus, defense counsel's affirmative response to the

trial court's inquiry as to whether counsel was waiving "consecutive findings" did not

constitute deficient performance.

{¶ 57} Accordingly, appellant's second assignment of error is not well-taken and is

overruled.

{¶ 58} Based on the foregoing, appellant's three assignments of error are

overruled, and the judgment of the Franklin County Court of Common Pleas is hereby

affirmed.

Judgment affirmed.

KLATT and BRUNNER, JJ., concur.

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