[Cite as State v. Taylor, 2013-Ohio-5751.]
COURT OF APPEALS
HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 12CA18
KENNETH E. TAYLOR :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Holmes County
Court of Common Pleas, Case No.
11CR087
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 20, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
STEPHEN KNOWLING JOHN BURNWORTH
Holmes County Prosecuting Attorney Krugliak, Wilkins, Griffiths & Dougherty Co.
164 East Jackson Street 4775 Munson Street N.W.
Millersburg, OH 44654 Box 36963
Canton, OH 44735-6963
[Cite as State v. Taylor, 2013-Ohio-5751.]
Gwin, P.J.
{¶1} Appellant Kenneth E. Taylor (“Appellant”) appeals from the July 19, 2012
and November 7, 2012 judgment entries of the Holmes County Court of Common Pleas
convicting and sentencing him after a jury trial of one count of Vandalism, a felony of the
fourth degree in violation of R.C. 2909.05(B)(2) and one count of Theft, a felony of the
fourth degree in violation of R.C. 2913.02(A)(1).
Facts and Procedural History
{¶2} The Holmes County Trail covers of approximately 27 miles, 15 of which
have been paved. This project is currently under the direction of the Holmes County
Park District. Previously, the Trail had been under the direction and control of the
Holmes County Rails to Trails Coalition, a 501(C) Corporation. (1T. at 90; 119-120).
Helen Taylor's property located in Killbuck Township (approximately 4 miles in length
and 27 acres) was the last link in connecting the northern part of the Trail to the
southern part of the Trail. (Id. at 91; 119). Helen Taylor was the sole owner of this
property. Appellant is the son of Helen Taylor. Appellant never at any time had any
legal interest in the property at issue.
{¶3} Located upon Mrs. Taylor's 27 acre parcel was two former railroad bridges
designated Nos. 9 and 10. The bridges were made of steel and iron and spanned
approximate 45 feet each in length. (1T. at 6; 84-85). See Trial Exhibits A, C12 and
C14.
{¶4} This case involves the removal of those two bridges that were once part of
an unused four (4) mile stretch of an old railroad corridor that bisected Appellant's
family's property. The Appellant’s family purchased the railroad corridor in 1996.
Holmes County, Case No. 12CA18 3
Although Appellant’s elderly mother owns the railroad corridor and the surrounding land,
Appellant was primarily responsible for the daily operations of the cattle farm that was
located on the property. Appellant used the elevated railroad corridor as a place to keep
cattle when the area flooded.
{¶5} There were multiple meetings over the years with Mrs. Taylor and her
family including Appellant. During these meetings, first the Holmes County Rails to
Trails Coalition and later the Holmes County Park District attempted to negotiate a
purchase of the property at issue in order to complete the Trail, which would utilize
Bridges 9 and 10 in place. Appellant was present at most if not all of the negotiating
sessions. He openly expressed his opposition to the project. He was the central
spokesperson for his mother and siblings.
{¶6} After many years of attempting to reach a negotiated settlement, the Park
District began the process for an eminent domain action. As part of this process, they
obtained a professional appraisal of the property in the amount of $83,000 dated
February 6, 2008. At no time did Mrs. Taylor or any of her family obtain their own
appraisal although they were advised of their right to do so. To further its objectives, the
Park District retained the services of the Holmes County Prosecutor, Steve Knowling,
("Prosecutor") to represent it in an eminent domain action against the Taylors.
{¶7} On or about April 27, 2009, the Prosecutor signed a contract of
representation with the Park District that was not limited in scope or duration. However,
the Prosecutor did admit that the contract was specifically for the purpose of
representing the Park District in the eminent domain action to acquire the Taylors'
railroad corridor. According to the contract the Prosecutor agreed to perform legal
Holmes County, Case No. 12CA18 4
services for one-half the going rate for Millersburg attorneys; however, he never actually
sent the Park District an invoice for legal services. On May 8, 2009, the Prosecutor sent
a letter to Appellant's mother threatening an eminent domain action.
{¶8} Eventually, a "Recreational Trail Easement Agreement" (hereinafter, the
"Agreement") was drafted. A Park District member, Dan Mathie, who is also a local real
estate and business attorney, prepared this “Agreement.” A copy of the draft was
circulated to all of the Taylor family, including Appellant. After the "Agreement" was
finalized, a meeting was held on June 1, 2009 wherein Mrs. Taylor signed the
Agreement. Appellant and his siblings were present at this meeting. Mrs. Taylor
received the sum of $91,300, which was the original appraisal plus 10%.
{¶9} The Agreement provided for a permanent perpetual exclusive easement
across the property in favor of the Holmes County Park District for purposes of
developing and operating the Holmes County Trail. The only right that Mrs. Taylor as
the former landowner retained was the right to cross cattle at three separate locations.
No other rights of any type were retained or reserved by Mrs. Taylor or her family,
including but not limited to the right to remove and scrap the two 45 foot railroad bridges
remaining on the property.
{¶10} Testimony elicited from the state's witness Larry Long indicated that
Appellant sold the two bridges to Mr. Long for $2,000 in 2005 for scrap. Another of the
state’s witnesses, Shawn Feikert, corroborated this fact. Feikert testified that he was
aware that Larry Long purchased the bridges years ago. Additionally, Jim Feikert,
another witness for the state, testified that he too was aware that Larry Long had
Holmes County, Case No. 12CA18 5
purchased the bridges from Appellant “five or six years ago.” Mr. Long did not remove
the bridges immediately due to the low value of iron at that time.
{¶11} The state argued throughout the trial that Appellant had no legal interest in
the bridges to convey to Larry Long or anyone else. Sometime in the spring of 2011,
Appellant told Larry Long that he had better get his "iron (bridges) out" as the Trail is
going to come through here. Appellant also advised Jim and Shawn Feikert, who
actually removed the bridges, that he was the owner of the bridges and had the right to
remove them. Jim Feikert specifically asked Appellant about the "Agreement" with the
Park District and Appellant said he could remove the bridges.
{¶12} After the Feikerts removed the two bridges from the ground in late May
2011, Larry Long cut them up and took them to Lity's, a scrap yard in Coshocton
County. There were five separate loads totaling 123,660 pounds. He was paid the total
sum of $20,155 for the bridge scrap.
{¶13} Larry Long testified that he paid Appellant $2,000 for the two bridges in
question back in 2005 or 2006; however, he also said he was to pay Appellant fifty
percent of the scrap value once the bridges were removed. Larry Long cashed Lity's
checks, put Appellant's 50% of the proceeds in an envelope along with the five scale
tickets and gave it to Jim Feikert to give to Appellant. Larry Long gave the envelope to
Jim Feikert approximately one month after the bridges were removed over Memorial
Day weekend of 2011. Jim Feikert testified that he got the envelopes from Larry Long
approximately several weeks after the work was completed and within the next month
he gave the envelope with the cash and scale tickets to Appellant.
Holmes County, Case No. 12CA18 6
{¶14} A criminal investigation ensued where the Holmes County Sheriff’s Office
took statements from numerous individuals, including Appellant. Holmes County Sheriff
Detective Geoff McVicker interviewed Appellant on August 15, 2011. Appellant's story
was that he sold the bridges to Larry Long five or six years ago for $2,000.00 and that is
all he got out of the deal. Appellant insisted they were no longer his bridges once he
sold them to Larry Long. He did not get a "penny" from Larry Long or Jim Feikert when
the bridges were removed and scrapped in 2011. Appellant did not tell Detective
McVicker about the cash that he received from Larry Long for his fifty percent of the
scrapping of the bridges. Appellant also claimed that he told the Park District members
in a negotiation session "the bridges are gone... I did not say that the bridges were
sold..."
{¶15} Appellant called his sister Joyce Yoder, the Holmes County Treasurer, as
a witness in his defense. She testified that on September 29, 2011, she received two
envelopes with $8,057 in cash and scale tickets from Appellant. He provided it to her to
hold for safekeeping. He did not instruct her to return it to Larry Long. Treasurer Yoder
testified she time-stamped the envelopes and put them in the Holmes County
Treasurer's vault. She told the defendant's attorney the next day. She did not tell
Detective McVicker. Joyce Yoder testified that Appellant told her the cash came from
Larry Long for scrapping the bridges.
{¶16} Ron Mattox was the project manager for the Holmes County Rails to Trails
project. He is a civil engineer with over 20 years of experience. He has worked on
approximately a dozen similar Rails to Trails projects. Specifically, he designed the Trail
across the property the District acquired from Mrs. Taylor including the use of Bridges 9
Holmes County, Case No. 12CA18 7
and 10. After the Appellant caused the two bridges to be removed and scrapped, Ron
Mattox had to resurvey and redesign that portion of the project to replace those bridges.
His replacement opinion was a cost of $75,000 for each bridge for a total of $150,000.
His two reports and curriculum vitae were submitted into evidence as Trial Exhibits P, Q
and Q1. Ron Mattox's engineering firm took numerous photographs of the two bridges
involved (Nos. 9 and 10). These were identified and admitted at Trial as State's Exhibit
C1-20.
{¶17} Prior to trial, on December 9, 2011, Appellant filed a Motion to Disqualify
the Holmes County Prosecutor because the Prosecuting Attorney's office represented
the Park District against Appellant’s family. The matter was set for a hearing on January
31, 2012. Evidence was presented and the trial court took the matter under advisement.
Later the same day, January 31, 2012, the trial court issued its order denying the motion
to disqualify.
{¶18} On March 28, 2012, Appellant filed Defendant's Proposed Jury
Instructions. Included in the instructions was a request for an instruction on "Mistake of
Fact,” as provided in Ohio Jury Instruction 417.05. On April 2, 2012, in response to the
requested instruction, the State filed Proposed Jury Instruction on Mistake of Fact,
asserting that "Mistake of Fact" was an affirmative defense, which would have the effect
of shifting the burden of proof to Appellant. On April 3, 2012, Appellant filed an
Objection to the State's proposed instruction. Later that day, the court held a hearing to
address the conflict regarding the "Mistake of Fact" instruction. After hearing arguments
of counsel, the trial court ruled that "Mistake of Fact" was an affirmative defense;
Holmes County, Case No. 12CA18 8
however, the trial court reserved its ruling on whether it would give the instruction on
"Mistake of Fact" until after evidence was presented at the trial.
{¶19} On April 6, 2012, at the request of both the state and Appellant's Counsel,
the trial court held another hearing to address the "Mistake of Fact" instruction and
whether it was an affirmative defense. While both parties disagreed as to whether
"Mistake of Fact" was an affirmative defense, the parties did agree that the trial court
should make a definitive ruling on this legal issue prior to trial. The trial court heard
additional arguments on this issue and took the matter under advisement. On April 19,
2012, the trial court issued its Judgment Entry. The trial court reversed its previous
ruling, and found instead that that "Mistake of Fact" was not an affirmative defense.
However, the trial court maintained its position that the decision whether to give the
instruction would be made after the conclusion of evidence.
{¶20} On April 4, 2012, five days before the scheduled trial date, the state
served Appellant with its Tenth Supplemental Response to Demand for Discovery,
which provided the curriculum vitae of the state's expert witness. On April 5, 2012,
Appellant filed Defendant's Motion in Limine to Preclude Expert Testimony, due to
noncompliance with Crim. R. 16(K) for failing to disclose the information at least twenty-
one (21) days before trial. The trial court set the matter for a hearing on April 6, 2012. At
the hearing, the trial court took evidence and argument concerning the state's
compliance with Crim.R. 16(K), and found there was "some substantial compliance with
the rule", and therefore ruled that the state could present expert testimony; however,
recognizing that the alleged expert report was "at best not really a report" the trial court
Holmes County, Case No. 12CA18 9
stated that it would grant a continuance if Appellant requested one. As a result, the trial
was continued to July 16, 2012.
{¶21} On July 16, 2012, the matter proceeded to trial. Prior to taking evidence,
Appellant restated his Motion to Disqualify the Holmes County Prosecutor and Motion to
Exclude the Expert Testimony of Ronald Mattox. Additionally, immediately prior to the
testimony of the state's expert witness, Appellant renewed his objection to the expert's
report and his ability to give opinions on value.
{¶22} At the conclusion of the state's case, Appellant moved for an acquittal
pursuant to Crim.R. 29 based on the failure of the state to provide evidence of the "fair
market value" of the property in question. The motion for acquittal was overruled.
{¶23} The Appellant then called several witnesses before resting his case.
Appellant renewed his motion for an acquittal pursuant to Crim.R. 29, based on the
State's failure to provide evidence of the "fair market value" of the property. The motion
for acquittal was again overruled.
{¶24} The trial court then provided final jury instructions to the parties. Upon
review of the jury instructions, Appellant made an objection to the instructions, as they
did not contain the "Mistake of Fact" instruction. Additionally, an objection was made
regarding the trial court's instruction on the valuation of the property.
{¶25} The jurors returned a verdict of guilty. Sentencing was continued to allow
a pre-sentence investigation. Sentencing was held on November 7, 2012. Appellant was
sentenced to a 30-day jail sentence, one-year of house arrest, $77,125.00 in restitution,
a $10,000.00 fine, 150 hours of community service, court costs, and five years of
probation.
Holmes County, Case No. 12CA18 10
Assignments of Error
{¶26} Appellant raises six assignments of error,
{¶27} “I. THE TRIAL COURT ERRED IN FAILING TO GIVE THE JURY
INSTRUCTION ON "MISTAKE OF FACT.
{¶28} “II. THE TRIAL COURT ERRED IN ALLOWING THE STATE'S EXPERT
WITNESS, RONALD MATTOX, TO TESTIFY REGARDING VALUE AND ALLOWING
HIS REPORT TO BE ADMITTED INTO EVIDENCE, WHEN HIS REPORT AND
TESTIMONY WERE BASED ON INADMISSIBLE HEARSAY.
{¶29} “III. THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S
MOTION FOR ACQUITTAL BASED ON THE FAILURE OF THE STATE TO PROVIDE
EVIDENCE OF THE "FAIR MARKET VALUE" OF THE BRIDGES.
{¶30} “IV. THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S
MOTION TO DISQUALIFY THE HOLMES COUNTY PROSECUTOR BASED ON A
CONFLICT OF INTEREST.
{¶31} “V. THE TRIAL COURT ERRED WHEN INSTRUCTING THE JURY, BY
USING THE REPLACEMENT VALUE FOR THE BRIDGES RATHER THAN THE "FAIR
MARKET VALUE" IMMEDIATELY BEFORE AND AFTER THE OFFENSE FOR THE
DETERMINATION OF THE LEVEL OF THE OFFENSE.
{¶32} “VI. THE TRIAL COURT ERRED WHEN IT IMPOSED A CLEARLY
EXCESSIVE SENTENCE UPON APPELLANT.”
Holmes County, Case No. 12CA18 11
I.
{¶33} In his first assignment of error, Appellant contends that the trial court erred
in failing to give the jury instruction on “mistake of fact.”
{¶34} The giving of jury instructions is within the sound discretion of the trial
court and will not be disturbed on appeal absent an abuse of discretion. State v.
Martens, 90 Ohio App.3d 338, 629 N.E.2d 462 (3rd Dist.1993). In order to find an abuse
of that discretion, we must determine the trial court's decision was unreasonable,
arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140(1983). Jury instructions must be
reviewed as a whole. State v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792(1988).
{¶35} “Error in refusing to give a special request to charge before argument
must be prejudicial in order to support reversal of a judgment rendered against a party
complaining of such error.” Smith v. Flesher, 12 Ohio St.2d 107, 233 N.E.2d 137(1967),
syllabus. It is well established that the trial court will not instruct the jury where there is
no evidence to support an issue. Riley v. Cincinnati, 46 Ohio St.2d 287, 75 O.O.2d 331,
348 N.E.2d 135(1976). “In reviewing a record to ascertain the presence of sufficient
evidence to support the giving of a[n] * * * instruction, an appellate court should
determine whether the record contains evidence from which reasonable minds might
reach the conclusion sought by the instruction.” Murphy v. Carrollton Mfg. Co., 61 Ohio
St.3d 585, 591, 575 N.E.2d 828, 832 (1991).
{¶36} Appellant acted as the spokesperson for the family throughout the
negotiations with the Park District. Evidence was presented that he had informed the
Park District that the bridges were “gone.” In the case at bar, the Park District claimed
Holmes County, Case No. 12CA18 12
they bought the property and the two abandoned railway bridges; Appellant contended
that he had sold the bridges in 2005, years before the Park District acquired its
easement in 2009. Thus, according to Appellant’s version of the facts, he owned the
bridges and he sold the bridges in 2005. Under Appellant’s argument, then, he was not
acting under a “mistake of fact” concerning the ownership of the bridges. He argued that
he had a right to sell the bridges and at the time they were removed, he no longer
owned them.
{¶37} Appellant’s concern he could not be found guilty if he was mistaken
concerning the ownership of the bridges was adequately addressed by
other jury instructions. The trial court did not abuse its discretion.
{¶38} Appellant’s first assignment of error is overruled.
II.
{¶39} In his second assignment of error, Appellant contends that the trial court
erred in allowing Ronald Mattox to testify regarding the replacement value of the two
bridges and by allowing his report to be admitted into evidence, when his report and
testimony were based on inadmissible hearsay.
{¶40} Ron Mattox is a civil engineer who is the Project Manager for the Park
District's Rails to Trails project. He designed the Trail in Holmes County and specifically
the Trail over the property acquired by the District from Mrs. Taylor, including Bridges 9
and 10. After the bridges were removed and scrapped by Appellant, Ron Mattox had to
redesign that portion of the Trail to replace the two bridges. It was Ron Mattox's opinion
that it would cost $75,000 a piece, or a total of $150,000 to replace the two bridges
removed and scrapped by Appellant. He prepared two letter reports to the District,
Holmes County, Case No. 12CA18 13
which were identified and admitted as State's Trial Exhibits Q and Q1. Mattox's opinion
as to value was based in part on pricing information acquired and utilized from
subcontractors of his engineering firm, as well as information acquired from employees
of his engineering firm. Immediately prior to the testimony of the expert witness,
Appellant made the objection to the report and testimony, because the report and
anticipated testimony were based on information simply provided to the expert by third
parties.
{¶41} “Decisions regarding the admissibility of evidence are within the broad
discretion of the trial court. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126
(1967). A decision to admit or exclude evidence will be upheld absent an abuse of
discretion. O'Brien v. Angle, 63 Ohio St.2d 159, 164–165, 407 N.E.2d 490 (1980). Even
in the event of an abuse of discretion, a judgment will not be disturbed unless the abuse
affected the substantial rights of the adverse party or is inconsistent with substantial
justice. Id.” Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237, 2005-Ohio-4787, 834
N.E.2d 323, ¶20.
{¶42} In the case at bar, assuming arguendo that it was error to admit Ron
Mattox's opinion, it was harmless error. It is undisputed that the actual scrap value for
the two bridges in question was $20,155.00. The jury verdict forms indicate that the jury
found the value of the property and the harm to the property was “$7,500.00 but less
than $150,000.00,” which is the threshold requirement for a Theft and Vandalism felony
of the fourth degree.
{¶43} Accordingly, Appellant cannot demonstrate that Mattox’s testimony
affected Appellant’s substantial rights or is inconsistent with substantial justice.
Holmes County, Case No. 12CA18 14
{¶44} Appellant’s second assignment of error is overruled.
III. & V
{¶45} Appellant’s third and fifth assignments of error raise common and
interrelated issues; therefore, we will address the arguments together.
{¶46} The Appellant was indicted for vandalism under R.C. 2909.05 and theft
under R.C., 2913.02. Each offense requires the state to present evidence of the value in
order to substantiate the level of the offense. In his third and fifth assignments of error,
Appellant argues that the bridges were fixtures not personal property. Therefore,
Appellant maintains the fair market value, not the cost to replace the bridges, must be
proven.
{¶47} For vandalism, the parties agreed that R.C. 2909.11(B)(3) controlled the
valuation:
(B)The following criteria shall be used in determining the value of
property or amount of physical harm involved in a violation of division
(A)(1) of section 2909.03 or section 2909.05 of the Revised Code:
***
(3) If the property is not covered under division (B)(1) of this section
and the physical harm is such that the property cannot be restored
substantially to its former condition, the value of the property, in the case
of personal property, is the cost of replacing the property with new
property of like kind and quality, and, in the case of real property or real
property futures, is the difference in the fair market value of the property
immediately before and immediately after the offense.
Holmes County, Case No. 12CA18 15
{¶48} For theft, R.C. 2913.61(D)(3) controlled the valuation:
(D) The following criteria shall be used in determining the value of
property or services involved in a theft offense:
***
(3) The value of any real or personal property that is not covered
under division (D)(1) or (2) of this section, and the value of services, is the
fair market value of the property or services.
{¶49} In the case at bar, the parties agree that the bridges were torn down, cut
into 3 by 2 foot sections and sold as scrap metal. Thus, the iron bridges cannot be
restored or reattached to the property.
{¶50} We must be mindful of the “ * * * elementary proposition of law that an
appellant, in order to secure reversal of a judgment against him, must not only show
some error but must also show that that error was prejudicial to him.” See Smith v.
Flesher, 12 Ohio St. 2d 107, 233 N.E. 2d 137(1967); State v. Stanton, 15 Ohio St.2d
215, 217, 239 N.E.2d 92, 94 (1968); Wachovia Mtg. Corp. v Aleshire, 5th Dist. Licking
No. 09 CA 4, 2009-Ohio-5097, ¶16. See, also, App.R. 12(D).
{¶51} An object may lose its status as a fixture if it is severed from the land. 50
Ohio Jurisprudence 3d, Fixture, Section 7 (2013). If the damage to the real estate is
temporary and restoration is possible, the measure of damages for the unlawful removal
of fixtures is the cost of replacing or repairing the removed fixtures. Id. at Section 24. In
Warrick Cty. v. Waste Mgt. of Evansville, 732 N.E.2d 1255 (Ind.App.2000), the Indiana
Appellate Court reviewed case law concerning how to appropriately calculate damages
for the loss of a bridge or other public fixture,
Holmes County, Case No. 12CA18 16
The governmental entity charged with maintaining and or replacing
the bridge suffers a loss when the bridge is damaged or the life of the
bridge is shortened as a result of the negligent acts of another. Com.,
Dept. of Transp. v. Estate of Crea, 92 Pa.Commw. 242, 483 A.2d 996 at
1002 (Pa. Commw. Ct.1977). We are also aware that the award of
damages should not create a windfall for the injured party. Chaiken v.
Eldon Emmor & Co., Inc., 597 N.E.2d 337, 347 (Ind.App.1992). Thus,
when a bridge must be replaced as a result of the negligent acts of
another, the governmental entity is injured to the extent of the value of the
bridge, when considering such factors as the original cost, the age of the
property, its use and utility from both an economic and social viewpoint, its
condition, and the costs of restoration or replacement. Vlotho v. Hardin
Cty., 509 N.W.2d 350 at 357 (Iowa 1993); Town of Fifield v. State Farm
Mut. Auto. Ins. Co., 119 Wis.2d 220, 349 N.W.2d 684 at 691 (1984) ,
Tuscaloosa Cty. v. Jim Thomas Forestry Consultants, Inc., 613 So.2d 322
(Ala.1992).
Warrick Cty., supra, 732 N.E.2d 1255, 1260. In Vlotho v. Hardin County, cited by the
Court in Warrick County, the Iowa Supreme Court noted,
Damages for the destruction of a public structure like a bridge
cannot be determined by a reference to market value. That is because a
destroyed bridge has no market value in the sense that a willing buyer or
willing seller, even hypothetically, can be imagined. Town of Fifield v.
State Farm Mut. Auto Ins. Co., 119 Wis.2d 220, 225-27, 349 N.W.2d 684,
Holmes County, Case No. 12CA18 17
687 (1984). As one court put it, any attempt to apply a market value
approach to property in the public domain like bridges “would be wholly
speculative, the very pitfall to be avoided in proof of damages.” Com.,
Dept. of Transp., supra, 92 Pa.Commw. 242, 252,
Vlotho, supra, 509 N.W.2d 350 (Iowa 1993).
{¶52} In the case at bar, the Park District purchased the easement in order to
complete the Holmes County Trail. Testimony was adduced that the two bridges in
question were to be used in the constructions of the final link in the trail. Testimony was
also received that the bridges would have to be replaced in order to utilize the easement
as the final link in the trail.
{¶53} We find no error in the trial court’s use of the replacement value of the
bridges as the correct measure of damages to determine the level of the offenses. The
bridges were severed from the property and sold as scrap metal. The property was
purchased with the intent to utilize the bridges. The trail cannot be completed without
replacing the two bridges.
{¶54} In the alternative, the evidence was uncontroverted that the bridges were
sold for scrap metal at a price of $20,155.00. This figure could have been utilized by the
jury as the “fair market value” of the two bridges because that is what a willing buyer
paid for them. This value exceeds the minimum $7,500 threshold to elevate the crimes
to felonies of the fourth degree.
{¶55} Appellant has failed in his burden to demonstrate a prejudicial error
affected his substantive rights.
{¶56} Appellant’s third and fifth assignments of error are overruled.
Holmes County, Case No. 12CA18 18
IV.
{¶57} In his fourth assignment of error, Appellant contends the trial court erred in
denying his motion to disqualify the prosecutor. Appellant asserts the prosecutor had a
conflict of interest because he previously represented the Park District in an eminent
domain action against Appellant’s family concerning the property at issue in his criminal
case.
{¶58} In State v. Morris, 5th Dist. Stark No. 2004CA00232, 2005-Ohio-4967, this
Court observed,
When reviewing an allegation of a prosecutor’s misconduct or
disqualification, the reviewing court must review the matter on a case-by-
case basis. See, State v. White, 2004–Ohio–5200; State v. Waggaman
(Aug 20, 1997), Medina App. No. 96–CA–0078; State v. Bryant (June 26,
1997), Meigs App. No. 96–CA–14; State v. Hiatt, 120 Ohio App.3d 247,
697 N.E.2d 1025 (4th Dist.1997); State v. Luna (Sept. 2, 1994), Huron
App. No. H–93–24; State v. Perotti (May 15, 1991), Scioto App. No. 89–
CA–1845; State v. Faulkner (Aug. 20, 1990), Preble App. No. CA89–04–
007; State v. Jacobs (Jan. 3, 1990), Summit App. No. 14089. The mere
appearance of impropriety is insufficient to warrant the disqualification of
an entire prosecutor’s office.
A decree disqualifying a prosecutor’s office should only be issued
by a court when actual prejudice is demonstrated. In making the
determination, relevant factors may include: 1) the type of relationship the
disqualified prosecutor previously had with a defendant, 2) the screening
Holmes County, Case No. 12CA18 19
mechanism, if any, employed by the office, 3) the size of the prosecutor’s
office, and 4) the involvement the disqualified prosecutor had in the case.
[State v. White, 8th Dist. No. 82066, 2004-Ohio-5200, ¶26] Prejudice will
not be presumed by an appellate court where none is demonstrated. State
v. Freeman, 20 Ohio St.3d 55, 485 N.E.2d 1043 (1985).
Morris, ¶16.
{¶59} Appellant argues the decision to charge him criminally, rather than
allowing the civil channels to resolve the dispute evidence bias on the part of the
prosecuting attorney because he is attempting to use his office to further the desires of
his client, the Park Distinct.
{¶60} Mrs. Taylor owned the property. She agreed and signed the Recreational
Trail Easement Agreement on June 1, 2009. Accordingly, no eminent domain
proceedings were ever commenced. The bridges were removed sometime in late May
2011. Appellant was interviewed by the Holmes County Sheriff’s office in relation to the
removal of the bridges on August 15, 2011. The indictment charging Appellant was filed
September 20, 2011. Appellant was accused of removing and destroying the two
bridges. Thus, at the time of the charges the Park District had an agreement concerning
the real property owned by Mrs. Taylor.
{¶61} In State v. Flynt, 63 Ohio St.2d 132, 134, 407 N.E.2d 15 (1980) , 451 U.S.
619, 101 S.Ct. 1958, 68 L.Ed.2d 489 (1981), the Ohio Supreme Court addressed the
elements for establishing a selective-prosecution claim:
To support a defense of selective or discriminatory prosecution, a
defendant bears the heavy burden of establishing, at least prima facie, (1)
Holmes County, Case No. 12CA18 20
that, while others similarly situated have not generally been proceeded
against because of conduct of the type forming the basis of the charge
against him, he has been singled out for prosecution, and (2) that the
government's discriminatory selection of him for prosecution has been
invidious or in bad faith, i.e., based upon such impermissible
considerations as race, religion, or the desire to prevent his exercise of
constitutional rights.(Citation omitted.)
{¶62} In Cleveland v. Trzebuckowski, 85 Ohio St.3d 524, 532, 709 N.E.2d 1148
(1999), the Supreme Court broadened the second-prong of the test to include any
selection deliberately based upon any arbitrary classification. Furthermore, the Ohio
Supreme Court has held that “[a] mere showing that another person similarly situated
was not prosecuted is not enough; a defendant must demonstrate actual discrimination
due to invidious motives or bad faith.” Freeman, supra, 20 Ohio St.3d 55, 58. Examples
of when such an allegation may be held to be justified are those situations in which
selection is “deliberately based upon an unjustifiable standard such as race, religion, or
other arbitrary classification.” Trzebuckowski, 85 Ohio St.3d at 530, quoting Oyler v.
Boles, 368 U.S. 448, 82 S.Ct. 501, 506, 7 L.Ed.2d 446, 453 (1962).
{¶63} As has been noted by both the Ohio and U.S. Supreme Courts, the
burden in maintaining a selective prosecution claim is on the defendant as the
prosecutor enjoys a presumption that his actions were non-discriminatory in nature.
State v. Keene, 81 Ohio St.3d 646, 653, 693 N.E.2d 246 (1998). “In order to dispel [this]
presumption * * *, a criminal defendant must present ‘clear evidence to the contrary.’” Id.
quoting United States v. Armstrong, 517 U.S. 456, 463, 116 S.Ct. 1480, 1486, 134
Holmes County, Case No. 12CA18 21
L.Ed.2d 687, 698 (1996). The U.S. Supreme Court further noted that in its cases
delineating the elements of a selective prosecution case, it has taken “great pains” in
explaining that the standard is a quite demanding one. Armstrong, 517 U.S. at 468.
Such is the case as this type of claim requests a court to exercise judicial power over a
special province of the executive branch of government. Armstrong, 517 U.S. at 468,
citing Heckler v. Chaney, 470 U.S. 821, 832, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985).
{¶64} The trial court did conduct a hearing in this matter prior to overruling the
motion to disqualify. The trial court found after hearing the testimony and arguments of
counsel that the prosecutor was merely acting in his capacity as legal representative to
the park district pursuant to R.C. 309.09(D) during the time that an eminent domain
proceeding was contemplated. The Holmes County Sherriff’s department investigated
the criminal allegations, not the prosecuting attorney or his office. The fact that a public
agency that is represented by the prosecuting attorney’s office is also the victim of a
crime is not enough to demonstrate a bias on the prosecutor’s part. With the exception
of Appellant’s unsubstantiated allegations, we can glean nothing substantive from the
record to suggest that the actions taken by the state were in any way motivated by
prosecutorial vindictiveness, political pressure, or a desire to appease the Park District.
{¶65} Based on the evidence presented in the trial court, we conclude no
prejudice was demonstrated as a result of the prosecutor’s involvement in the potential
eminent domain civil case, and consequently, the trial court did not abuse its discretion
in denying Appellant’s motion to disqualify.
{¶66} Appellant’s fourth assignment of error is overruled.
Holmes County, Case No. 12CA18 22
VI.
{¶67} In his sixth assignment of error, Appellant argues that the trial court's
decision to impose a 30-day jail sentence, one-year of home arrest, $77,125.00 in
restitution, a $10,000.00 fine, 150 hours of community service, court costs, and five
years of probation were clearly excessive and in no way were related to the purposes of
felony sentencing.
{¶68} R.C. 2953.08 governs an appeal of sentence for felony. Subsection (G)(2)
states as follows:
The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence
and remand the matter to the sentencing court for resentencing. The
appellate court's standard for review is not whether the sentencing court
abused its discretion. The appellate court may take any action authorized
by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings
under division (B) or (D) of section 2929.13, division (E)(4) of section
2929.14, or division (H) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶69} Clear and convincing evidence is that evidence “which will provide in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph
Holmes County, Case No. 12CA18 23
three of the syllabus. The Eighth District recently stated in State v. Venes, 8th Dist.
Cuyahoga No. 98682, 2013–Ohio–1891,
It is important to understand that the “clear and convincing”
standard applied in R.C. 2953.08(G)(2) is not discretionary. In fact, R.C.
2953.08(G)(2) makes it clear that “(t)he appellate court's standard for
review is not whether the sentencing court abused its discretion.” As a
practical consideration, this means that appellate courts are prohibited
from substituting their judgment for that of the trial judge.
It is also important to understand that the clear and convincing
standard used by R.C. 2953.08(G)(2) is written in the negative. It does not
say that the trial judge must have clear and convincing evidence to
support its findings. Instead, it is the court of appeals that must clearly and
convincingly find that the record does not support the court's findings. In
other words, the restriction is on the appellate court, not the trial judge.
This is an extremely deferential standard of review.
Venes, supra, at ¶ 20–21. Accord, State v. Lee, 12th Dist. Butler No. CA2012-09-182,
2013-Ohio-3404, ¶9; State v. Money, 12th Dist. Clermont No. CA2013-02-016, 2013-
Ohio-4535, ¶8. We note that the Venes decision’s standard of review is limited to the
imposition of consecutive sentences. Venes, supra, at ¶10.
{¶70} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124,
the Ohio Supreme Court reviewed its decision in State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856, 845 N.E.2d 470 as it relates to the remaining sentencing statutes and
Holmes County, Case No. 12CA18 24
appellate review of felony sentencing. See, State v. Snyder, 5th Dist. Licking No. 2008-
CA-25, 2080-Ohio-6709, 2008 WL 5265826.
{¶71} In Kalish, the Court discussed the affect of the Foster decision on felony
sentencing. The Court stated that, in Foster, the Ohio Supreme Court severed the
judicial fact-finding portions of R.C. 2929.14, holding that “trial courts have full discretion
to impose a prison sentence within the statutory range and are no longer required to
make findings or give their reasons for imposing maximum, consecutive, or more than
the minimum sentences.” Kalish,¶¶1 and 11, 896 N.E.2d 124, citing Foster at ¶100, See
also, State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306; State v.
Firouzmandi, 5th Dist. Licking No. 2006-CA-41, 2006-Ohio-5823.
{¶72} “Thus, a record after Foster may be silent as to the judicial findings that
appellate courts were originally meant to review under 2953.08(G)(2).” Kalish at ¶12.
However, although Foster eliminated mandatory judicial fact-finding, it left intact R.C.
2929.11 and 2929.12, and the trial court must still consider these statutes. Kalish at
¶13, see also State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1; State
v. Firouzmandi, supra at ¶29.
Thus, despite the fact that R.C. 2953.08(G)(2) refers to the excised
judicial fact-finding portions of the sentencing scheme, an appellate court
remains precluded from using an abuse-of-discretion standard of review
when initially reviewing a defendant's sentence. Instead, the appellate
court must ensure that the trial court has adhered to all applicable rules
and statutes in imposing the sentence. As a purely legal question, this is
Holmes County, Case No. 12CA18 25
subject to review only to determine whether it is clearly and convincingly
contrary to law, the standard found in R.C. 2953.08(G).
Kalish at ¶14.
{¶73} Therefore, Kalish holds that, in reviewing felony sentences and applying
Foster to the remaining sentencing statutes, the appellate courts must use a two-step
approach. “First, they must examine the sentencing court's compliance with all
applicable rules and statutes in imposing the sentence to determine whether the
sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the
trial court's decision in imposing the term of imprisonment shall be reviewed under an
abuse of discretion standard.” Kalish at ¶4, Foster, supra, 109 Ohio St.3d 1.
{¶74} In the case at bar, we are unable to review the trial court’s November 7,
2012 sentencing and restitution hearings because the transcript of those hearings was
not filed with the trial court or made a part of the record for purposes of appeal.
Therefore, it does not constitute part of the record on appeal. See App.R. 9(A).
{¶75} Appellant has the responsibility of providing the reviewing court with a
record of the facts, testimony, and evidentiary matters that are necessary to support the
appellant's assignments of error. Wozniak v. Wozniak, 90 Ohio App.3d 400, 409, 629
N.E.2d 500, 506(9th Dist 1993); Volodkevich v. Volodkevich, 48 Ohio App.3d 313, 314,
549 N.E.2d 1237, 1238-1239 (9th Dist 1989). This principle is recognized in App.R.
9(B), which provides, in part, that '***the appellant shall in writing order from the reporter
a complete transcript or a transcript of such parts of the proceedings not already on file
as he deems necessary for inclusion in the record.***. "When portions of the transcript
necessary for resolution of assigned errors are omitted from the record, the reviewing
Holmes County, Case No. 12CA18 26
court has nothing to pass upon and thus, as to the assigned errors, the court has no
choice but to presume the validity of the lower court's proceedings, and affirm.” Knapp
v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384, 385(1980). If a
partial record does not conclusively support the trial court's decision, it is presumed that
the omitted portion provides the necessary support. Wozniak, 90 Ohio App.3d at 409,
629 N.E.2d at 506; In re Adoption of Foster, 22 Ohio App.3d 129, 131, 489 N.E.2d
1070, 1072-1073(3rd Dist 1985), overruled on other grounds In re Adoption of
Sunderhaus, 63 Ohio St.3d 127, 585 N.E.2d 418 (1992). Also, in State v. Hooks, 92
Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528(2001), the Supreme Court noted: “a
reviewing court cannot add matter to the record before it that was not a part of the trial
court's proceedings, and then decide the appeal on the basis of the new matter. See,
State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500(1978). It is also a longstanding rule
"that the record cannot be enlarged by factual assertions in the brief." Dissolution of
Doty v. Doty, 4th Dist. Pickaway No. 411, 1980 WL 350992 (Feb. 28, 1980), citing
Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d
227(10th Dist 1963).
{¶76} In the case at bar, the record does not contain a transcript of the
sentencing and restitution hearings conducted by the trial court on September 7, 2012.
Without a complete record of the hearings in the trial court, we presume that the omitted
hearings support the trial court's decision and that the trial court's sentencing on the
charges complies with applicable rules and sentencing statutes. The sentence was
within the statutory sentencing range. Furthermore, the record reflects that the trial court
considered the purposes and principles of sentencing and the seriousness and
Holmes County, Case No. 12CA18 27
recidivism factors as required in Sections 2929.11 and 2929.12 of the Ohio Revised
Code and advised Appellant regarding post release control. Therefore, the sentence is
not clearly and convincingly contrary to law. In the case at bar, the trial court's
November 7, 2012 journal entry states it has considered the purposes and principles of
sentencing as set forth in R.C. 2929.11, as well as the factors set forth in R.C. 2929.12.
{¶77} We find the trial court properly considered the purposes and principles of
sentencing set forth in R.C. 2929.11, as well as the applicable factors set forth in R.C.
2929.12, along with all other relevant factors and circumstances. While Appellant may
disagree with the weight given to these factors by the trial judge, Appellant's sentence
was within the applicable statutory range for a felony of the fourth degree and therefore,
we have no basis for concluding that it is contrary to law. Similarly, the trial court's
sentence cannot be said to be an abuse of discretion given the circumstances here.
See Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983). (an
abuse of discretion “implies that the court's attitude is unreasonable, arbitrary or
unconscionable.”). We further hold Appellant’s sentence in this matter was not based on
the consideration of improper factors and was not unreasonable, arbitrary or
unconscionable.
{¶78} Appellant’s sixth assignment of error is overruled.
{¶79} The judgment of the Holmes County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Farmer, J., and
Wise, J., concur
Holmes County, Case No. 12CA18 28
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. JOHN W. WISE
WSG:clw 1212
Holmes County, Case No. 12CA18 29
IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
KENNETH E. TAYLOR :
:
:
Defendant-Appellant : CASE NO. 12CA18
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Holmes County Court of Common Pleas is affirmed. Costs to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. JOHN W. WISE
State v. Taylor
Combined Opinion