State v. Gwinn

[Cite as State v. Gwinn, 196 Ohio App.3d 296, 2011-Ohio-5457.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY

The State of Ohio, :

Appellee, :

v. : Case No. 10CA13

Gwinn, : DECISION AND JUDGMENT ENTRY

Appellant. : RELEASED: 09/30/2011

_______________________________________________________________________
APPEARANCES:

David A. Yost, Special Prosecuting Attorney, and Kyle E. Rohrer,
Assistant Prosecuting Attorney, for appellee.

William R. Biddlestone, and Dennis W. McNamara; and McTigue
and McGinnis, L.L.C., Donald J. McTigue, Mark A. McGinnis, and J. Corey
Colombo, for appellant.

_______________________________________________________________________

KLATT, Judge.

{¶ 1} Defendant-appellant, Susan Gwinn, appeals from a judgment of conviction

and sentence entered by the Athens County Court of Common Pleas. Because the trial

court had subject-matter jurisdiction to enter judgment and because the judgment is not

against the manifest weight of the evidence, we affirm.

Factual Background

{¶ 2} Gwinn ran for Athens County Prosecuting Attorney in the March 2008

Democratic primary against C. David Warren, the incumbent county prosecutor. On

February 8, 2008, Gwinn received a wire transfer into her personal checking account at
Athens App. No. 10CA13 2

the Hocking Valley Bank in the amount of $7,500 from Gregory Kenley, a personal friend.

The balance in Gwinn's personal checking account prior to the February 8 wire transfer

was $975.94. That same day, Gwinn wrote a check from her personal checking account

in the amount of $5,000 made payable to her campaign committee.

{¶ 3} Also, on February 8 and February 13, 2008, Gwinn's brother, Daniel Gwinn,

purchased 24 separate money orders from four different vendors, all payable to Gwinn.

These money orders totaled $20,000. Gwinn endorsed all the money orders and the

funds were deposited into her personal checking account between February 11 and

February 21, 2008.

{¶ 4} Between February 14 and 27, 2008, Gwinn wrote six additional checks

drawn on her personal checking account payable to her campaign committee. These

checks totaled $20,000. Bank records reflect that there were no deposits into Gwinn's

personal account (other than the money orders she received from her brother) between

February 8 and 25, 2008, to cover the checks she wrote to her campaign committee.

{¶ 5} The primary election took place on March 4, 2008. Warren won the primary

election. Gwinn repaid Kenley $7,500 on March 7, 2008.

{¶ 6} Gwinn's campaign committee filed a pre-primary campaign-finance report

with the Athens County Board of Elections on February 21, 2008. The report listed no

outstanding loans to the campaign committee. Nor did the report list Kenley or Daniel

Gwinn as contributors. On April 10, 2008, Gwinn's campaign committee filed a post-

primary campaign-finance report with the Athens County Board of Elections. The report

represented that Gwinn personally made a $27,000 loan to her campaign committee.

Again, neither Kenley nor Daniel Gwinn were listed as contributors.
Athens App. No. 10CA13 3

Procedural History

{¶ 7} In the late summer of 2008, David Yost, the Delaware County Prosecutor,

was appointed special prosecutor for Athens County. Yost conducted an investigation of

the money transfers described above and the campaign-finance reports filed by Gwinn's

campaign committee. Following the investigation, Yost filed a verified complaint with the

Ohio Elections Commission ("OEC") alleging that Gwinn had violated Ohio election laws

by knowingly concealing and/or misrepresenting contributions to her campaign committee

in her pre-primary and post-primary campaign-finance reports. The allegations in the

verified complaint focused on Gwinn's failure to list Kenley and David Gwinn as donors to

her campaign committee and her representation that she personally loaned her campaign

committee $27,000.

{¶ 8} Gwinn contended that Kenley and David Gwinn loaned money to her and

that she, in turn, loaned money to her campaign committee. Because her post-primary

campaign-finance report listed her personal loan to her campaign committee, Gwinn

argued that the reports did not conceal or misrepresent any financial information. She

also alleged that she repaid Kenley in full shortly after the primary election and that she

partially repaid her brother soon after Yost began his investigation.

{¶ 9} Following a hearing, the OEC found that Gwinn violated R.C. 3517.13(G)(1)

and referred the matter to the Athens County prosecutor for prosecution. Gwinn

appealed the OEC's decision to the Franklin County Court of Common Pleas pursuant to

R.C. Chapter 119. Gwinn also requested that the Franklin County trial court suspend the

OEC's decision pending resolution of the appeal. The Franklin County trial court denied

Gwinn's request. On August 17, 2009, the Franklin County trial court dismissed Gwinn's
Athens App. No. 10CA13 4

R.C. Chapter 119 appeal for lack of a final, appealable order. Gwinn appealed that

decision to the Tenth District Court of Appeals.

{¶ 10} Shortly thereafter, Gwinn filed a motion for injunction pending appeal with

the Tenth District Court of Appeals. Gwinn sought an order enjoining Yost from

impaneling a grand jury or taking any other action to prosecute her pursuant to the OEC's

referral during the pendency of the R.C. Chapter 119 appeal. The Tenth District Court of

Appeals denied that motion in a journal entry dated September 2, 2009.

{¶ 11} Yost pursued Gwinn's prosecution in Athens County. A grand jury indicted

Gwinn on two counts of theft in office, two counts of unauthorized use of property, two

counts of falsification, one count of money laundering, and two counts of bribery. The

case was tried to the court. The court found Gwinn guilty of the falsification counts but

acquitted her of the remaining counts.1

{¶ 12} Thereafter, the Tenth District Court of Appeals reversed the Franklin County

trial court's dismissal of Gwinn's R.C. Chapter 119 appeal because the OEC failed to

timely file the record of the administrative hearing. In addition, the Tenth District Court of

Appeals instructed the Franklin County trial court to order the OEC to determine whether

to enter a decision in favor of Gwinn in the administrative action due to this procedural

deficiency.

{¶ 13} On January 25, 2010, Gwinn filed a motion for arrest of judgment and a

motion for acquittal in the Athens County trial court. The Athens County trial court denied

both motions on March 1, 2010, and Gwinn appealed to this court. Gwinn filed a renewed

motion for arrest of judgment and/or motion for new trial shortly after the Tenth District

1
The state voluntarily dismissed one of the unauthorized-use-of-property counts prior to trial. Following the trial, the
court dismissed the two bribery counts pursuant to Gwinn's motion to dismiss.
Athens App. No. 10CA13 5

Court of Appeals reversed the Franklin County trial court's decision in the R.C. Chapter

119 appeal. The Athens County trial court denied that motion due to the pending appeal

in this court.2

{¶ 14} Gwinn appeals assigning the following errors:

1. The Trial Court Did Not have Subject Matter Jurisdiction
regarding counts 5 and 6 of the Indictment in the case of State of Ohio v.
Susan Gwinn, Case No. 09CR0335 filed in the Athens County Common
Pleas Court.

2. The Judgment of the trial court is against the manifest weight of
the evidence.

First Assignment of Error

{¶ 15} In her first assignment of error, Gwinn contends that the Athens County trial

court lacked subject-matter jurisdiction to adjudicate the two falsification counts against

her. We disagree.

{¶ 16} " 'Subject-matter jurisdiction of a court connotes the power to hear and

decide a case upon its merits.' " State ex rel. Ohio Democratic Party v. Blackwell, 111

Ohio St.3d 246, 2006-Ohio-5202, ¶ 8, quoting Morrison v. Steiner (1972), 32 Ohio St.2d

86, paragraph one of the syllabus. Subject-matter jurisdiction is a question of law that we

review de novo. Eicher v. Eicher, 4th Dist. No. 09CA34, 2010-Ohio-3784, ¶ 10.

{¶ 17} Essentially, Gwinn makes three arguments in support of her first

assignment of error. We find all three arguments unpersuasive.

{¶ 18} Gwinn first argues that the Athens County trial court lacked subject-matter

jurisdiction to adjudicate the counts premised on the alleged election-law violations

2
On April 23, 2010, Gwinn requested that we remand this case to the trial court so that it could address the merits of
Gwinn's renewed motion for arrest of judgment and/or motion for new trial. A magistrate of this court denied that
motion.
Athens App. No. 10CA13 6

because exclusive jurisdiction rested with the OEC. Gwinn is correct that the OEC has

exclusive initial jurisdiction over the alleged election-law violations. R.C. 3517.151(A);

Blackwell at ¶ 16. However, after the OEC has exercised its jurisdiction, criminal

prosecution may proceed.

{¶ 19} R.C. 3517.153(C) provides:

No prosecution shall commence for a violation of a provision in
sections 3517.08 to 3517.13, 3517.17, 3517.18, 3517.20 to 3517.22,
3599.03, or 3599.031 of the Revised Code unless a complaint has been
filed with the commission under this section and all proceedings of the
commission or a panel of the commission, as appropriate, * * * are
completed.

{¶ 20} Yost filed a complaint with the OEC against Susan Gwinn and her

campaign committee for the alleged election-law violations as required by R.C.

3517.15(A). The complaint alleged that Gwinn violated R.C. 3517.13(G)(1), one of the

statutes listed in R.C. 3517.153(C). The OEC exercised its exclusive initial jurisdiction

when it adjudicated the complaint and found a violation of the election laws. All

proceedings before the OEC were completed. Pursuant to its statutory authority, the

OEC then referred the matter to the Athens County prosecutor for prosecution. Upon

receiving the referral, Yost went to the Athens County Grand Jury and obtained an

indictment for falsification based upon the campaign-finance reports.

{¶ 21} Because the OEC made a final determination and referred the matter for

prosecution, the Athens County trial court had subject-matter jurisdiction to decide the

alleged violations. R.C. 3517.153(C); R.C. 2931.03 ("The court of common pleas has

original jurisdiction of all crimes and offenses, except in cases of minor offenses the

exclusive jurisdiction of which is vested in courts inferior to the court of common pleas").

Although Gwinn appealed the OEC's final determination pursuant to R.C. Chapter 119,
Athens App. No. 10CA13 7

that determination was not stayed pending appeal. Nor did the Tenth District Court of

Appeals enjoin Yost from proceeding with prosecution in Athens County pending the

resolution of the R.C. Chapter 119 appeal. Therefore, based upon the OEC's referral, the

Athens County trial court had subject-matter jurisdiction to adjudicate the two counts

premised on the alleged false representations contained in Gwinn's campaign-finance

reports.

{¶ 22} In her second argument, Gwinn contends that the Athens County trial court

lacked "primary subject-matter jurisdiction" over the falsification counts because the

matter was already being reviewed by the Tenth District Court of Appeals. Although

Gwinn filed her R.C. Chapter 119 appeal to the Tenth District Court of Appeals before

Yost filed the indictment in the Athens County trial court, she is mistaken in arguing that

the jurisdictional-priority rule applies.

{¶ 23} The jurisdictional-priority rule provides that " '[a]s between [state] courts of

concurrent jurisdiction, the tribunal whose power is first invoked by the institution of

proper proceedings acquires jurisdiction, to the exclusion of all tribunals, to adjudicate

upon the whole issue and to settle the rights of the parties.' " State ex rel. Dannaher v.

Crawford (1997), 78 Ohio St.3d 391, 393, quoting State ex rel. Racing Guild of Ohio, Loc.

304, Serv. Emps. Internatl. Union, AFL-CIO, CLC v. Morgan (1985), 17 Ohio St.3d 54, 56.

The jurisdictional-priority rule does not apply here, because the Tenth District Court of

Appeals and the Athens County trial court do not share concurrent jurisdiction. The Tenth

District Court of Appeals' jurisdiction derived from R.C. Chapter 119 and was limited to

the review of the Franklin County trial court's dismissal of Gwinn's R.C. Chapter 119

appeal. The Tenth District Court of Appeals had no jurisdiction to adjudicate the
Athens App. No. 10CA13 8

falsification counts against Gwinn. The Athens County trial court had original jurisdiction

over Gwinn's indictment for falsification. Therefore, Gwinn's attempt to invoke the

jurisdictional-priority rule is fundamentally flawed.

{¶ 24} Lastly, Gwinn argues that the Athens County trial court lacked subject-

matter jurisdiction to adjudicate the falsification counts premised on R.C. 2921.13(A)(7)

because the OEC referred the matter for prosecution based upon a violation of R.C.

3517.13(G)(1). Again, we disagree.

{¶ 25} As previously noted, the OEC determined that Gwinn violated R.C.

3517.13(G)(1) and referred the matter to the Athens County prosecutor for prosecution.

Based upon this referral, the Athens County trial court had subject-matter jurisdiction.

R.C. 3517.153(C). The Athens County trial court is also a court of general jurisdiction.

Article IV, Section 4(B) of the Ohio Constitution provides that "[t]he courts of common

pleas and divisions thereof shall have such original jurisdiction over all justiciable matters

and such powers of review of proceedings of administrative officers and agencies as may

be provided by law." R.C. 2931.03 also grants the courts of common pleas original

jurisdiction over "all crimes and offenses," which would include alleged violations of R.C.

Title 29. Therefore, regardless of whether Gwinn was indicted under R.C. 2921.13(A)(7)

or 3517.13(G)(1), the Athens County trial court had subject-matter jurisdiction.

{¶ 26} In oral argument, counsel for Gwinn argued that the Athens County trial

court erred by permitting the state to prosecute Gwinn pursuant to R.C. 2921.13(A)(7)

rather than R.C. 3517.13(G)(1), because R.C. 3517.13(G)(1) is the more specific statute.

However, Gwinn has no assignment of error that correlates to this argument. Appellate

courts review assignments of error, not mere arguments. Coffman v. Mansfield Corr.
Athens App. No. 10CA13 9

Inst., 10th Dist. No. 09AP-447, 2009-Ohio-5859, ¶ 18. Therefore, we decline to address

this argument.

{¶ 27} For the foregoing reasons, we find that the Athens County trial court had

subject-matter jurisdiction to adjudicate the falsification counts asserted under R.C.

2921.13(A)(7), and we overrule Gwinn's first assignment of error.

Second Assignment of Error

{¶ 28} Gwinn contends in her second assignment of error that the judgment is

against the manifest weight of the evidence. Again, we disagree.

{¶ 29} " 'When an appellate court considers a claim that a conviction is against the

manifest weight of the evidence, the court must dutifully examine the entire record, weigh

the evidence, and consider the credibility of witnesses. The reviewing court must bear in

mind, however, that credibility generally is an issue for the trier of fact to resolve.' " State

v. Tyler, 4th Dist. No. 10CA3183, 2011-Ohio-3937, ¶ 43, quoting State v. Puckett, 4th

Dist. No. 10CA3153, 2010-Ohio-6597, ¶ 32. " 'If the prosecution presented substantial

evidence upon which the trier of fact reasonably could conclude, beyond a reasonable

doubt, that the essential elements of the offense had been established, the judgment of

conviction is not against the manifest weight of the evidence.' " Id., quoting Puckett at

¶ 33. We will reverse a conviction only in the exceptional case where the evidence

weighs heavily against the conviction and it appears that the fact-finder, when resolving

conflicts in the evidence, " 'clearly lost its way and created such a manifest miscarriage

of justice that the conviction must be reversed and a new trial ordered.' " Id. at ¶ 43,

quoting State v. Thompkins (1997), 78 Ohio St.3d 380, 387.
Athens App. No. 10CA13 10

{¶ 30} The Athens County trial court convicted Gwinn of two counts of falsification,

a violation of R.C. 2921.13(A)(7). That provision provides:

(A) No person shall knowingly make a false statement, or knowingly
swear or affirm the truth of a false statement previously made, when any of
the following applies:

***

(7) The statement is in writing on or in connection with a report or
return that is required or authorized by law.

As applied to this case, R.C. 2921.13(A)(7) required the state to prove three elements:

(1) Gwinn knowingly (2) made a false statement (3) in connection with a report that was

required by law.

{¶ 31} Here, the third element of the offense is not disputed. R.C. 3517.10(A)

required Gwinn's campaign committee to file a pre-primary and post-primary campaign-

finance report. However, Gwinn contends that her conviction is against the manifest

weight of the evidence because (1) her campaign-finance reports did not contain a false

statement and (2) even if her campaign-finance reports contained a false statement, she

did not knowingly make that false statement. We disagree.

{¶ 32} Gwinn asserts that the funds she received from Kenley and her brother

were personal loans, not loans or contributions to her campaign committee. Gwinn's

assertions must be examined in the context of the definitions and requirements contained

in R.C. Chapter 3517.

{¶ 33} R.C. 3517.10(B)(4)(b) requires a campaign-finance report to include the "full

name and address" from each person "from whom contributions are received." A

contribution includes a loan "received, or used for the purpose of influencing the results of

an election." R.C. 3517.01(B)(5). The state presented substantial and essentially
Athens App. No. 10CA13 11

undisputed evidence that Gwinn deposited the money she received from Kenley and her

brother into her personal bank account and then wrote checks drawn on that account to

her campaign committee. There was also substantial evidence (i.e., bank records) that

Gwinn did not have sufficient funds in her personal account prior to those deposits to

cover the checks she wrote to her campaign committee between February 8 and 25,

2008. Nor were there deposits from other sources to cover the checks she wrote to her

campaign committee during that period of time. Because Gwinn used the funds she

received from Kenley and her brother in her campaign, the funds were campaign

contributions and the source of those funds had to be identified on her campaign-finance

reports. R.C. 3517.01(B)(5) and 3517.10(B)(4)(b). Rather than identify Kenley and

Daniel Gwinn as required by law, Gwinn reported these contributions solely as personal

loans from herself to her campaign. Therefore, the record reflects that there was

substantial evidence upon which the trier of fact could reasonably conclude beyond a

reasonable doubt that Gwinn's campaign-finance reports contained a false statement.

{¶ 34} There is also substantial evidence that Gwinn acted "knowingly." "A person

acts knowingly, regardless of his purpose, when he is aware that his conduct will probably

cause a certain result or will probably be of a certain nature." R.C. 2901.22(B). Gwinn

admitted that she instructed her secretary, Ms. Coon, who was also her campaign

treasurer, to report the funds in question as personal loans from Gwinn to her campaign.

Therefore, Gwinn was aware that her instructions would cause Coon to report the loans in

that manner. Gwinn's misunderstanding about what the law required is not a defense.

State v. Rosa (1998), 128 Ohio App.3d 556, 563, citing State v. Pinkney (1988), 36 Ohio

St.3d 190, 198.
Athens App. No. 10CA13 12

{¶ 35} Because the record reflects substantial evidence upon which the trial court

could conclude that the state proved the essential elements of R.C. 2921.13(A)(7) beyond

a reasonable doubt, the judgment is not against the manifest weight of the evidence.

Therefore, we overrule Gwinn's second assignment of error.

{¶ 36} Having overruled Gwinn's two assignments of error, we affirm the judgment

of the Athens County Court of Common Pleas.

Judgment affirmed.

BRYANT and SADLER, JJ., concur.

PEGGY L. BRYANT, WILLIAM A. KLATT, and LISA L. SADLER, JJ., of the Tenth Appellate
District, sitting by assignment.