# State v. Graven > Ohio Supreme Court · April 26, 1978 · 54 Ohio St. 2d 114 URL: https://www.frixlaw.com/law-library/cases/6756271 ## Case - **Full name:** The State of Ohio v. Graven - **Court:** Ohio Supreme Court - **Decided:** April 26, 1978 - **Citations:** 54 Ohio St. 2d 114; 8 Ohio Op. 3d 113; 374 N.E.2d 1370; 1978 Ohio LEXIS 535 - **Precedential status:** Published - **Opinion:** Dissent by Celebrezze - **Judges:** Brown, Celebrezze, Herbekt, Looher, Neill, Sweeney - **Cited by:** 49 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6756271 ## Opinion text Celebrezze, J., dissenting. Because the appellant was indicted under what purports to he the new larceny by trick statute, R .C. 2913.02, containing the previously absent words, “By deception,” I find it difficult to concur in the opinion of the majority, and respectfully file my dissent. The General Assembly recognized the difficulty of interpretation of the term “deception” and obviously attempted to remedy any misconception by defining it in R. C. 2913.01 as follows: “(A) ‘Deception’ means knowingly deceiving another or causing another to be deceived, by any false or misleading representation, by withholding information, by preventing another from acquiring information, or by any other conduct, act, or omission which creates, confirms, or perpetuates a false impression in another, including a false impression as to law, value, state of mind, or other objective or subjective fact.” I am unable to agree with the appellant’s contention that since the victim “The State of Ohio * * * does not have a mind; it cannot conceive knowledge; and it of itself cannot be deceived. The deception, if any, must be practiced upon a natural person who represents the particular entity.” The uncontroverted evidence shows that the appellant received and cashed pay warrants from the state of Ohio under a job description category that he never once performed. Even the testimony concerning the “work” *121 that he did “perform” is contradictory. As I read, the record appellant’s employment by the state of Ohio appears to he a joint effort to obtain private service at public expense. Although this conduct is unquestionably unethical, it is difficult to fit such culpability under the terms of the new theft statute. Under the prosecution’s theory of the case, the appellant, by knowingly withholding information as to his daily activities, and by omissions which created false impressions in others, obtained state funds by a process of “deception.” The record discloses that the job description, “Boiler inspector trainee,” for which appellant was paid, listed such duties as checking existing boilers to see that they complied with safety codes, inspecting new installations, scheduling renewal inspections, making reports, attending training classes, etc. There is absolutely no testimony that the appellant ever performed any one of these duties or was even advised as a “boiler inspector trainee” what his duties were. Depending on where one is reading in the record, appellant’s “duties” involved helping his paraplegic father, enlarging photographs for the “Governor’s Committee on. the Handicapped,” chauffering candidate Richard Celeste, and attending Cuyahoga Community College. Obviously, none of these is compensable by public monies. The General Assembly, in revising the Ohio Criminal Code, used the American Law Institute’s Model Penal Code (1962) for guidance and language. The following verbiage is particularly notable: “Section 223.3. Theft by Deception. “A person is guilty of theft if he purposely obtains property of another by deception. A person deceives if he purposely: “(1) creates .or reinforces a false impression, including false impressions as to law, value, intention, or other state of mind; but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise; or *122 “(2) 1 prevents another from acquiring information which would affect his judgment of a transaction; or “(3) fails to correct a false impression which the deceiver previously created or reinforced; or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship; or ', “(4) fails to disclose a known lien, adverse claim or other legal impediment to the enjoyment of property which he transfers or encumbers in consideration for the property dbtáined, whether such impediment is or is not valid, or is' or is not a matter of official record.” It is easy to compare this quotation with that definition adopted by the General Assembly. Also pertinent is the comment from the Model Penal Code (Tent. Draft. No. 2, page 65 [1954]), as follows: . “2. Purposely. “Accidental. or careless creation of a misimpression is not included. The actor must intend to create the impression for the purpose of inducing the owner to part with his property. ' Even if he recognizes that the impression created is likely to have the effect of inducing consent, he is not guilty of deception unless that was his purpose.' Likelihood of deception is, of course, evidence of a purpose to deceive; but the ultimate issue is subjective purpose to deceive. How ever, it is sufficient that inducing consent was ione of several purposes of the actor.” (Emphasis added.) The record discloses no evidence as to appellant’s purpose and intent to create an impression that he was performing any service for the state. Thus, in addition to the questionable “deception,” there is a lack of proof of “purpose and intent” Of course this may be inferred from the circumstances surrounding the alleged act. But,, there is no testimony in the record of any affirmative act of the appellant from which this conclusion might be drawn.: . A'full reading of the record demonstrates, the design '.that led to the present situation. The former Director of Industrial Relations testified as follows: “My best recollection would be around April in the *123 spring of the year, 1974. Mr. Graven contacted me and suggested that he might hire his son, Michael Graven, as a trainee and the reason he asked me in this ease was the fact that it was within the family. Ordinarily, I would not have even been approached and I answered him that if he had work for the man to do and if he had the money in his budget to pay — the answer would be — it would be all right.” In addition, there is the testimony of Mrs. Weiss: “Q. [By Mr. Ellis] Mrs. Weiss, can you tell me what your occupation is? “A. Tes, I work for the State of Ohio,, secretary to the chief and the members of the Steam Engineers. “Q. And prior to that, what was your — what did you do for the State of Ohio? “A. I was a personal secretary to Mr. Graven. [[Image here]] “Q. [By Mr. Ellis] Did you ever hear any discussion of Michael Graven’s name? “A. At the staff meetings, no, never. “Q. During the period of April 1st, 1974 — were you aware that he was placed on the payroll? “A. I believe it was in April I was told that he was put on the payroll. “Q. And following that time, until he was taken- off, how many times did you see him in the office? “A. During the period of that period of time? “Q. Uh-huh. “A. Two or — two times that I’m sure of, three possibly — about three times. “Q. That you are sure of — I take it you remember-something about it? “A. Yes, he was in the office when Mr. Graven had: a meeting with Mr. Celeste and he was in the meeting that day. “Q. Who was he with that day? “A. He was kind of in an outer office outside of my office — you know — kind of in the— “Q. Did he come in with Mr. Celeste? *124 “A. He came in a short time after Mr. Celeste came in the office. “Q. Did he leave with him? “A. He left in the party with Mr. Celeste and the other gentlemen — they all left at the same time. * * * [[Image here]] “Q. [By Mr. McDonnell] Now, no one else had access to the payroll records of your particular division, right? “A. I saw them and Mr. G-raven. “Q. Right, and anyone else who saw them was in a higher position, is that right? “A. Yes, sir, it would have to he in auditing or personnel, yes, sir. “Q. So, Mr. Yost never did see those? “A. I was not permitted to let anyone see them. “Q. No one other than yon and Robert Graven seen them? “A. Without in our division that would have been it. “Q. Now, could you say for a definite fact, Mrs. Weiss, that Michael Graven never drove his father on any business for the State of Ohio ? “A. To my knowledge, he never drove his father on any business in the State of Ohio.” Appellant’s father testified: “Q’ [By Mr. Ellis] Mr. Graven, I understood your testimony to be that your son never worked as a boiler inspector trainee for the State of Ohio? “A. That’s correct. “Q. Thereby, he never would have generated any kind of reports that would have been turned in: to 'the Department? “A. That’s correct. “Q. Would there be any other kinds of physical evidence of Michael Graven working for the State of Ohio? “A. I don’t see possibly how there could be, because I required no reports from him. “* * * “Q. Were you aware that Michael was . driving for Richard Celeste? *125 “A. Yes, sir, I was. “Q. Driving the automobile for Richard Celeste? “A. Yes, sir, I was. “Q. And you were aware that it was during the day, in the evening, over the night? “A. Michael had asked me earlier in the program, before he was even put on any payroll if he could get involved in polities. I said there would not be anything wrong with it as long as I did not have a particular need for him on that day.” The testimony of Ms. Ann Bloomberg, who was the Cuyahoga County scheduler for Richard Celeste, reveals : “THE WITNESS: He was — his availability seemed to be certainly adequate. He was a driver that I think I used probably proportionately more than other drivers. “Q. [By Mr. Ellis] And can you tell me when you would contact him to drive? “A. It would be anywhere from a week to one day prior to my need of a driver. “Q. Did you experience any difficulty in contacting Michael Graven? “A. Seldom. “Q. Now, there have been some Celeste Campaign Schedules introduced here, and Mr. Graven’s name appears as driver on quite a few of those. Did Michael Graven’s name always appear when he drove? “A. Not necessarily. “Q. Would there be times when he would drive and his name would not be on this schedule? “A. Yes. That is correct.” I have previously stated that the conduct of those involved herein was unethical. It is also immoral. However, it is not the function of this court to determine the morality of the state. Everyone, whether an official or a citizen, is subject, as a human being, to the same moral code. The involvement of any individual in any pursuit should not exempt him from the law which binds us all. The idea that public officials can absolve themselves of respon *126 sibility to the moral code, or set up a legal code contrary to it, is one that this country rejected at the Nuremberg trials. The majority characterizes the issue as whether the state “failed to establish various elements of the alleged crime, i. e., that appellant deceived the state of Ohio, that the appellant practiced deception, and proof of appellant’s culpable mental state.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6756271. Public record. Not legal advice.