[Cite as State v. Gordon,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT PUTNAM COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 12-10-04

v.

FOREST L. GORDON, OPINION

DEFENDANT-APPELLANT.

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 12-10-05

v.

FOREST L. GORDON, OPINION

DEFENDANT-APPELLANT.

Appeals from Putnam County Common Pleas Court Trial Court No. 2009 CR 00019

Judgments Reversed and Causes Remanded

Date of Decision: November 7, 2011

APPEARANCES:

F. Stephen Chamberlain for Appellant

Ken Egbert, Jr. for Appellee Case No. 12-10-04, 05

WILLAMOWSKI, J.

{¶1} Defendant-Appellant, Forest L. Gordon (“Gordon”), appeals the

judgments of the Putnam County Court of Common Pleas finding him guilty of

two counts of theft in office. On appeal, Gordon claims that the jury’s decision

was against the manifest weight of the evidence; that there was insufficient

evidence to prove he utilized his office to facilitate the commission of the

offenses; and that the trial court abused its discretion when it sentenced Gordon to

more than minimum sentences for his first criminal offense. For the reasons set

forth below, the judgments are reversed.

{¶2} Gordon was Chief of Police of the Village of Kalida from May 10,

2002 through July 25, 2007. On July 26, 2007, Gordon began serving as the

Assistant Chief of Police for the Village of Ottawa, although he also continued

working as a part-time police officer or “acting chief” for Kalida until October 12,

2007, when a new police chief, Michael Giblin (“Chief Giblin”), was hired.

Beginning January 1, 2008, Gordon served as the Chief of Police for Ottawa until

his termination on January 28, 2008,

{¶3} Gordon was indicted on two counts of Theft in Office, in violation of

R.C. 2921.41(A)(1), involving charges in two separate cases which were

combined for trial and appeal. Case No. 9-CR-19, appellate case No. 12-10-04

(hereinafter “the Ottawa firearms case”), involves the sale of firearms that

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belonged to the Ottawa Police Department. The State claimed that in 2006,

Gordon sold several firearms without permission, including firearms from the

evidence room and former service weapons, and only gave the Ottawa police chief

a portion of the money he received from the sales. The second case, Case No. 9-

CR-40, appellate case No. 12-10-05 (hereinafter “the Kalida property and services

case,” or “the Kalida case”) dealt with three different matters in which the State

maintained that Gordon: (1) deprived Kalida of ten hours of his services when he

used the police department’s computers for non-work related purposes,

specifically Internet “sex chat” sessions; (2) overcharged two fellow Kalida police

officers for handguns purchased through a lease/purchase agreement with Smith &

Wesson; and (3) failed to return personal police equipment when he left Kalida’s

employ.1

{¶4} Gordon entered pleas of not-guilty in both cases and a three-day jury

trial was held in January 2010. The State presented testimony from numerous

witnesses, including Chief Giblin; Richard Knowlton (“Chief Knowlton”),

Ottawa’s Chief of Police prior to Gordon, who then became the Safety Director of

Ottawa; and Sammy Justice (“Agent Justice”), the special agent in the Major

Crimes Division of the Ohio Bureau of Criminal Identification and Investigation 1 There were also allegations and considerable testimony at trial that Gordon transferred an M-16 assault rifle belonging to Kalida to Ottawa without executing the necessary documents for the transfer. However, this was not a part of the indictment, nor included in the jury charge. Moreover, although at least five witnesses testified concerning the M-16 rifle, they all gave very different and conflicting accounts concerning what had occurred.

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(“BCI”), who was called upon to conduct the investigation. Numerous other

police officers and village officials from Ottawa and Kalida also testified, along

with individuals and gun store proprietors involved in the purchase and sale of the

firearms involved in this case.

{¶5} Gordon testified in his own defense and denied any wrong-doing.

Concerning the Ottawa firearms case, Gordon testified that Chief Knowlton gave

him some unused service weapons and several old firearms from the evidence

room and asked that he try to sell them to raise money for special drug programs

that Ottawa wanted to implement. Gordon had once been a gun dealer, so he

thought he could help his friend, Chief Knowlton, raise extra money by disposing

of these old weapons. Gordon insisted that he gave Chief Knowlton all of the

money that he received from the sale of the guns.

{¶6} As to the Kalida case, Gordon denied that he was the person who

participated in the Internet instant message (“IM”) conversations, testifying that at

least nine or ten other Kalida police officers and employees had access to the

computers; that everyone using the computer logged onto the one account that was

set up in the name of “Forest Gordon”; that the account was not password

protected; that the dates and times on the computer print-out logs might not be

accurate because they were dependent upon the time/date settings on the

computer, which could easily be changed; and that he did not use any of the screen

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names that were found in the “chat room” conversations.2 Gordon further denies

any “theft of time” from Kalida when using the computer because he testified that

he was a salaried employee with no specific hours and that he was technically

available for duty all the time, “24/7,” and would often come to the office on his

own time and use the computer for his own personal training and other purposes.

{¶7} Gordon also testified that he did not intend to overcharge the two

Kalida police officers for their weapons and that he only charged them their share

of what he believed to be the list prices of the guns on the lease/purchase program.

He denied “pocketing” any extra money and testified that he sent all of the funds

he received from the officers to Smith & Wesson for each quarterly lease payment.

{¶8} Lastly, Gordon claimed that he returned all of the uniforms and

equipment that he believed to be Kalida’s property when he left his employment.

However, the State issued a search warrant and found some additional equipment

at his home. Gordon testified that the holsters and leather equipment belts

belonged to him because he had received some of them during his employment

with other police departments prior to working for Kalida and that he had

purchased some of this equipment himself through the Village of Kalida. He

acknowledged that the body armor (a bulletproof vest) belonged to Kalida and

should have been returned, but testified that it was in the back of his closet, he

2 The State claims that Gordon admitted to participating in some chat room sessions. (Appellee’s Br., p. 6.) However, this misrepresents his testimony. Gordon acknowledged that he had participated in some Internet chat sessions when they were undergoing training concerning online sexual predators.

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hadn’t used it in years, and he had forgotten that it was there. If Kalida would

have reminded him that he still had it or asked that it be returned, he would have

immediately given it back. He believed the $31 car battery charger belonged to

him, but again, he would have been happy to return it if it was truly Kalida’s

property.

{¶9} After hearing all the evidence, the jury returned a verdict of guilty on

both counts. The Ottawa firearms case was a felony of the fifth degree because

the jury found that it involved the theft of property valued at less than five hundred

dollars. The Kalida case was a felony of the fourth degree, with the jury finding

that it involved property “valued at more than five hundred dollars, but less than

five thousand dollars.”

{¶10} On March 26, 2010, the trial court sentenced Gordon to nine months

in prison for the Ottawa firearms case and twelve months for the Kalida property

case, with both sentences to be served concurrently. The trial court also ordered

Gordon to pay restitution and costs and informed him that he would not be

permitted to hold any positions of public trust thereafter. In the Ottawa Firearms

case, Gordon was ordered to pay $485 in restitution to Ottawa. The restitution

ordered in the Kalida property and services case was as follows: $57.80 and $233

to Officers Weaks and Strick for the gun lease overcharge, and $1,221.48 to the

Village of Kalida. Gordon was released on his own recognizance pending appeal.

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{¶11} Gordon now appeals these judgments and presents the following

three assignments of error for our review.

First Assignment of Error

The trial court committed error in that [Gordon’s] conviction was against the manifest weight of the evidence presented at trial and the jury clearly lost its way.

Second Assignment of Error

The trial court committed error in that there is a lack of nexus between the public office held by [Gordon] and the facilitation of the crime of theft that precludes conviction on the specific offense of theft in office as to Case No. 09-CR-19 in the trial court below.

Third Assignment of Error

The trial court committed error in that it abused its discretion in sentencing [Gordon] to non-minimum terms of prison based upon the record and statement of reasons set forth by the trial court at sentencing.

{¶12} Gordon maintains that the jury clearly lost its way and that its

decision was against the manifest weight of the evidence. Gordon charges that the

State presented testimony that was “unreliable, contradictory, self serving and

lacking in substance” and also presented evidence that was designed to inflame the

passions of the jury rather than persuade them with clear facts. Gordon also argued

that there was insufficient evidence to support his conviction, and that sentencing

him to non-minimum terms for a first offense was improper.

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{¶13} The offense of Theft in Office, R.C. 2921.41(A), occurs when a

public official commits any theft offense, as defined under R.C. 2913.01(K), and

either one of the following applies: “(1) The offender uses the offender’s office in

aid of committing the offense ***;” or “(2) The property or service involved is

owned by this state, any other state, the United States, a county, a municipal

corporation, a township, or any political subdivision, department, or agency of any

of them ***.” The State charged Gordon under R.C. 2921.41(A)(1), claiming that

he recklessly used his office to commit theft offenses in violations of R.C.

2913.02(A)(2) and/or (A)(3), which state:

A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways:

***

(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent;

(3) By deception; ***

{¶14} A challenge to a conviction based on the manifest weight of the

evidence concerns “the inclination of the greater amount of credible evidence,

offered in a trial to support one side of the issue rather than the other. It indicates

clearly to the jury that the party having the burden of proof will be entitled to their

verdict, if, on weighing the evidence in their minds, they shall find the greater

amount of credible evidence sustains the issue which is to be established before

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them. Weight is not a question of mathematics, but depends on its effect in

inducing belief.” (Emphasis sic.) State v. Thompkins,

,

,

.

{¶15} The State presented testimony from twenty different witnesses in

support of its cases, along with 63 different documents and exhibits that were

admitted into evidence. Sometimes several witnesses would provide corroborating

testimony concerning a particular event, although there were many instances when

the witnesses had different recollections as to what had occurred, or they “didn’t

remember” or “didn’t recall.” Most of the allegations against Gordon involved

events that happened four or more years prior to the trial. In order to clarify the

issues, we will review each count/case separately.

Case No. 9-CR-19 – The Ottawa Firearms Case

{¶16} The State claimed that Gordon sold several older firearms from

Ottawa’s evidence and property rooms, without permission, and that he did not

give Chief Knowlton all of the money he received from the sale of these weapons.

Gordon, however, insisted that Knowlton gave him the guns with the expectation

that Gordon would sell them. Gordon also claimed that he gave Knowlton all of

the proceeds from selling the weapons.

{¶17} Chief Knowlton acknowledged that sometime around late 2005 or

early 2006, he gave Gordon several older and unused firearms from Ottawa’s

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property and evidence rooms. However, he testified that he only expected Gordon

to clean them up and get an estimate as to what they might be worth. He claimed

he was shocked and surprised when Gordon sold them and gave him $900 from

the sale of the firearms. The Ottawa municipal director, Jack Williams, testified

that he was very upset when he learned that the weapons had been sold because

that was not the proper procedure for disposing of property. There was conflicting

testimony concerning the amount of money Gordon received from four different

sales of Ottawa’s firearms in January 2006.

{¶18} In his first assignment of error, Gordon argues that the trial court’s

decision was against the manifest weight of the evidence because the testimony

concerning the gun sales was confusing and contradictory and that there was no

definitive evidence that Gordon did not have permission to sell the guns.

However, because Gordon’s second assignment of error is dispositive of this issue,

we shall address it first.

{¶19} In Gordon’s second assignment of error concerning the Ottawa

firearms case, Gordon argues that there was not sufficient evidence that Gordon

used his position as an officer with the Village of Kalida in committing the offense

pursuant to R.C. 2921.41(A)(1). Conviction for theft in office under this section

requires both that the defendant was a public official and that he or she used his or

her office in aid of committing the offense.

Gordon acknowledges that, as a

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police chief, he was a public official, and he does not contest that the facts alleged

constituted a theft offense. However, he argues that the fact he was a police

officer was only peripherally related to the alleged theft and he did not “use” his

office in committing a theft offense.

{¶20} Gordon cites State v. Bowsher (1996),

,

, for the proposition that there must be some "palpable nexus between

the auspices of the office and the wrongdoing” before a defendant can be

convicted of “theft in office.”

. In that case, the defendant, Gary

Bowsher, was a Toledo police officer who was also the volunteer treasurer of a

police-firefighters organization which sponsored “guns and hoses” golf

tournaments to raise money for charity. The charitable organization was not

affiliated with the Toledo Police Department in any way, but the officer solicited

and collected funds for these events and as treasurer of the organization. The

officer took money from this fund and converted it to his own use. As a result, he

was charged with Theft in Office under R.C. 2921.41(A)(1), which provides that

“No public or party official shall commit any theft offense, *** when either of the

following applies: (1) The offender uses the offender’s office in aid of committing

the offense or permits or assents to its use in aid of committing the offense[.]”

{¶21} As in this case, the defendant in Bowsher also contended that the fact

he was a police officer was only peripherally related to the alleged theft. Bowsher

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at 174. The state argued that had he not been a police officer, he would not have

been involved with a police-firefighters charity, he would not have had access to

an account at the Police Credit Union, and he could not have collected funds for

charity while in uniform, on duty, and in a Toledo police vehicle.

{¶22} The court of appeals reversed the officer’s conviction, finding that a

tangible nexus was missing between the defendant’s official duties as a police

officer and the crime charged.

, citing State v. Sakr, (1995),

,

. The court found that the officer did not take public

funds nor public property. And, the fact that he had solicited the funds while in

his police uniform had little, if any, relationship to when he later improperly

withdrew $211 from the fund’s account.

And finally, the court cited “the

time-honored maxim that criminal statutes should be narrowly construed against

the state.” Id. at 176, citing State v. Young (1980),

,

.

{¶23} As in Bowsher, the theft offense in this case had nothing to do with

Gordon’s job and duties as a police chief of Kalida; in fact, it had nothing to do

with the Village of Kalida at all. Gordon claimed he was merely doing a favor to

help a friend, who just happened to be a fellow police officer. Chief Knowlton

testified that he and Gordon were friends, and he knew that Gordon was someone

who was familiar with guns. The fact that he was a fellow police officer may have

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had a peripheral relationship to Chief Knowlton and Gordon working together.

However, just as in Bowsher, Gordon’s position was not in any way related to the

actual alleged theft offense. Furthermore, Chief Knowlton and the Village of

Ottawa must not have thought that Gordon’s actions in taking guns and selling

them was wrong or criminal in any way because Chief Knowlton later hired

Gordon to succeed him as Ottawa’s police chief after Gordon had sold the guns.

Chief Knowlton’s actions in finding Gordon trustworthy enough to hire further

demonstrate that there was a separation between the alleged act of theft and

Gordon’s position as a police officer.

{¶24} The State argues that the facts in Bowsher are distinguishable

because the officer did not take any public funds or property whereas in this case,

the firearms and funds obtained from their sale were the public property of the

Village of Ottawa. However, the State chose to indict Gordon only for a violation

of R.C. 2921.41(A)(1). It did not charge Gordon under R.C. 2921.41(A)(2), for a

theft offense where “[t]he property or service involved is owned by this state, any

other state, the United States, a county, a municipal corporation, a township, or

any political subdivision, department, or agency of any of them ***.” The State

chose its theory of the offense at the time of the indictment. The State never

argued at trial that section (A)(2) was applicable in this matter.

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{¶25} Gordon did not have to be a police officer to obtain the firearms from

his friend, Chief Knowlton, nor did he have to be a police officer to sell the

firearms to third parties. And, whether or not he accurately accounted for all of

the funds he may have received was in no way related to his position as a public

official. Therefore, the nexus between the wrongdoing and the public office is

nonexistent.3 Gordon’s second assignment of error is sustained pertinent to his

conviction in the Ottawa firearm’s case no. 9-CR-19, appellate case no. 12-10-04.

This renders Gordon’s first assignment of error in the Ottawa firearm’s case moot,

and it need not be addressed.

Case No. 9-CR-40 -- The Kalida Property and Services Case

{¶26} This count in the indictment alleged three completely different

instances of wrong-doing.4 Because the three separate acts involved different facts

3 The Dissent has gone to great detail in laying out why Gordon might have been convicted under R.C. 2921.41(A)(2). However, Gordon was indicted under R.C. 2921.41(A)(1). The sale of the guns from Ottawa (along with the sale of Chief Knowlton’s wife’s personal pistol, which was included in the lot) was not in any way related to his duties or job responsibilities with Kalida and he was not being paid to do this by Kalida. Gordon apparently volunteered to clean up the old guns, take them to gun dealers, obtain estimates, etc., as a favor for his friend, Chief Knowlton (no mention of compensation for his time was in the record). As in Bowsher, the mere fact that the people involved knew that Gordon was a police officer was only a peripheral matter and did not create a sufficient, tangible nexus between Gordon's official duties and the alleged offense in order to constitute a “use” of office under R.C. §2921.41(A)(1). Bowsher,

. See, also, State v.

Although Sakr is distinguishable because it dealt with a statute of limitations issue, the court found that the rape of a student by a state university professor did not qualify as “misconduct in office” as contrasted with “misconduct while in office but not necessarily related to that office.”

Likewise, R.C. 2921.41 is titled and discusses “theft in office,” not “theft while in office.” Every public official who commits a crime while holding office is not necessarily guilty of misconduct in office. 4 R.C. 2913.61(C)(3) states that “[w]hen a series of two or more offenses under section 2921.41 of the Revised Code [theft in office] is committed by the offender in the offender’s same employment capacity, or relationship to another, all of those offenses may be tried as a single offense.” (Emphasis added.)

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and activities that occurred years apart, we will review each allegation individually

for clarity of discussion.

{¶27} Although Gordon’s arguments pertaining to these issues were

included under the first assignment of error claiming that the decision was “against

the manifest weight of the evidence,” we find that his arguments actually raised

the legal question as to whether or not there was sufficient evidence as a matter of

law to sustain a conviction. Gordon consistently claimed that the State “failed to

produce any evidence,” “the record is completely lacking any evidence,” and

“there is no evidence,” throughout his discussion of the issues raised.

{¶28} A conviction that lacks sufficient evidence of all of the elements of

the offense is clearly also against the manifest weight of the evidence. However,

when reviewing a case based upon the sufficiency of the evidence, an appellate

court utilizes different standards. See Bryan-Wollman v. Domonko,

,

,

. Because we find that Gordon has set

forth arguments concerning the sufficiency of the evidence in the Kalida case, we

will review the decision to determine whether there was sufficient evidence to find

Gordon guilty of the offense.

{¶29} When reviewing the sufficiency of the evidence, our inquiry focuses

primarily upon the adequacy of the evidence; that is, whether the evidence

submitted at trial, if believed, could reasonably support a finding of guilt beyond a

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reasonable doubt. See State v. Thompkins,

,

,

(stating, “sufficiency is the test of adequacy”); State v. Jenks

(1991),

,

. The standard of review is

whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found all the essential elements of the offense

beyond a reasonable doubt.

This test raises a question of law and

does not allow the court to weigh the evidence. State v. Martin (1983),

,

. However, where “the evidence offered by the

prosecution in support of the elements of the offense charged is so insubstantial

and insufficient, and of such slight probative value, that it is not proper to make a

finding beyond a reasonable doubt that appellant committed all of the acts

constituting the elements of the offense, a reviewing court must reverse, rather

than affirm, the conviction.” State v. Fyffe (1990),

,

. Additionally, only a concurring majority of an appellate panel is

needed to reverse a judgment based upon the sufficiency of the evidence as

opposed to the unanimous concurrence of all three appellate judges necessary for a

reversal based upon the manifest weight. Thompkins, supra.5

5 The Constitution of Ohio, Art. IV, § 3(B)(3), requires the decision to be unanimous when an appellate court reverses a jury on the manifest weight of the evidence.

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First Allegation: Using duty time for unauthorized and improper computer use

{¶30} Shortly after he took office, Chief Giblin ordered a forensic

examination of the police department’s two computers. The examiner testified

that he found several “chat logs” from October and November 2004, showing that

sexually oriented text conversations took place between persons identified as

“Smith & Wesson 45,” “Lonely Cop 38,” Bad Angel 02,” “Care Bear 4385,” and

others. (See Trial Exhibits 25, 32, and 37.) Furthermore, of the 15,486 images in

the computer’s memory, approximately 20-30 images showed adult nudity. The

State compared the times Gordon was on duty with the times on the instant

message chat print-outs and concluded that Gordon had deprived the village of ten

hours of his services, at a rate of $15 per hour, when he was supposed to be

working.

{¶31} Gordon denies that he was the person involved in the Internet chat

sessions but he also claims that the State “failed to produce any evidence

whatsoever that Gordon’s alleged use of the Internet during work hours in any

way deprived the Village of Kalida of services.” He asserts that the record is

completely lacking in any evidence that there were missed calls for service, lack of

investigations, lack of enforcement of the law, or any other measures that would

indicate that Gordon did not do his job. In support, he cites a recent Fifth District

Court of Appeals case with similar facts wherein the court held that there was

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insufficient evidence that the public employee’s unauthorized use of the computer

constituted theft in office. See State v. Wolf, 5th Dist. No. 08-CA16, 2009-Ohio-

2018.

{¶32} In State v. Wolf, the superintendent of the city’s wastewater treatment

plant was found guilty of theft in office, unauthorized use of a computer, and

solicitation after he admitted to spending over one hundred hours on the Internet,

including accessing sexually oriented sites, when he should have been working.

Id. As in this case, the state charged that the defendant was guilty of theft in office

because he deprived the city of his services while he was engaging in the

unauthorized usage of his computer. Id. at ¶69. However, the Fifth District Court

of Appeals held that the trial court had erred in overruling the defendant’s motion

for acquittal on the charge of theft in office. The court found that there was

insufficient evidence to support a theft conviction:

Upon review, we find that while the State presented evidence [the defendant] spent approximately 100 hours over a five month-period utilizing internet websites that were not related to his job, there was no evidence presented that his job performance suffered or that he failed to perform his job duties.

Furthermore, even if it could be shown that [the defendant] failed to perform such job duties, while it could certainly serve as a basis for termination from his employment, such could not be the basis of a criminal theft in office charge.

(Emphasis added.) Id. at ¶¶70-71. In a concurring opinion, Judge Hoffman stated:

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I write separately only to voice my reluctance to accept the State of Ohio's theory [that] time not spent “about the master's business” is theft of services. I accept there may be situations where such theory applies. But to suggest it applies in situations such as the one presented herein where the employee is in the employer's workplace and completes all tasks assigned but engages in other personal matters during his or her idle time is a slippery slope. Under the State of Ohio's interpretation, a person who reads the newspaper, works the daily crossword puzzle, engages another employee in personal conversation, or merely daydreams or dozes off may be charged with theft in office.

Id. at ¶90 (Hoffman, P.J., concurring.)

{¶33} In viewing the evidence in a light most favorable to the prosecution,

we shall presume that Gordon was the person who participated in the Internet chat

sessions. However, as in Wolf, the record in this case is also devoid of any

evidence as to whether Gordon failed to perform his job duties, whether he

engaged in the chat during “break” times, whether he made up the time by

performing police work at other times, whether he was “on duty” and available to

answer calls even though online, or whether his job performance suffered in any

way. Although the State submitted evidence showing that Gordon was signed in

as “on duty” during the times that most (although not all) of the “chats” occurred,

there was no evidence as to how many hours he was required to work, how many

hours he actually worked,6 and whether or not he fulfilled the duties required to

6 Although the State claims that there were ten hours of “chat” during a two-month period in 2004, there was also no evidence that Gordon was not working during that entire time. The exhibits showed that the conversations were of the “instant messenger” type of communication that can be active in the computer’s “background” while not actually being utilized. Several of the exhibit entries showed chat sessions lasting

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earn his paycheck.

{¶34} We agree that the use of Kalida’s computers for this purpose was

unauthorized, extremely inappropriate, and wrong. There certainly may have been

sufficient evidence of highly improper conduct in order to terminate Gordon.

However, if Gordon’s use of the computer for personal purposes during work time

constitutes theft in office, it would mean that every public official or government

employee who sends a personal email, reads a text message, or checks Facebook

during working hours would be guilty of committing a felony. We do not believe

that is the intended purpose of R.C. 2921.41. Therefore, we find that there was

insufficient evidence that Gordon’s use of the Village’s computers for personal

purposes constituted Theft in Office pursuant to R.C. 2921.41.

Second Allegation: Overcharging two officers for firearms lease payments

{¶35} In the next part of the charge, the State claimed that Gordon

overcharged Kalida Police Officer Troy Weaks and Officer Joshua Strick by

$57.80 and $233.60, respectively, for lease-purchase payments the officers were

making (along with Gordon) in order to purchase their service revolvers. Based

upon the calculations presented by the State at trial, Gordon acknowledges that the

amount he charged Officer Weaks and Officer Strick for their share of the firearm

over an hour, but only a few words or comments were exchanged during that time. Furthermore, the chats did not occur as a result of Gordon accessing pornographic websites as alleged – they were conversations between two people, who appeared to know each other, utilizing IM services such as Yahoo Messenger, and others. While some of the exchanges were sexually oriented and explicit, other exchanges were merely general conversations as to what the parties were doing, plans for the weekend, etc.

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lease/purchase plan was incorrect, but by a relatively small amount. However,

Gordon claims that this was simply an inadvertent error that was made in

calculating the payments and that there was no evidence of any criminal intent that

he acted with a purpose to deprive these officers of their property.

{¶36} A person acts purposely when it is his specific intention to cause a

certain result. R.C. 2901.22(A). While we give great deference to the decisions of

the fact-finder who is present in court at the time of the testimony, an appellate

court has the vantage point of being able to sift through all of the transcripts and

exhibits, re-read all of the testimony, and carefully compare the testimony to the

exhibits and evidence. Even in construing the facts in favor of the prosecution, we

did not encounter any evidence from which a fact-finder could infer criminal

intent.

{¶37} In fact, we cannot be certain that the jury actually did find that

Gordon was guilty of theft in office for his actions pertaining to the Smith &

Wesson lease. Because all three instances of Gordon’s wrong-doing were

combined into one count, there was no way of knowing if the Jury’s verdict meant

that they found sufficient evidence of guilt for all three of the separate portions of

the charged offense, or only two, or just one of them.

{¶38} The Village of Kalida, which has about 1,000 people, did not have

the funds to provide its police officers with handguns. Therefore, as he had done

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in the past, Gordon arranged a lease/purchase program with Smith & Wesson

whereby he and the other two officers could purchase their own handguns by

making quarterly payments over a two-year lease period, with a one-dollar buy-out

at the end. Gordon was purchasing four handguns, and Officers Weaks and Strick

were each purchasing one. Although the three men were purchasing these

weapons for themselves, the lease listed the Kalida Police Department as the

“lessee/customer” and no sales tax was charged. The officers testified that they

thought that this was a good arrangement whereby they could purchase their guns

via a type of “payment-plan” and would then own their own weapons at the end.

{¶39} The lease agreement with Smith & Wesson and its “Appendix A”

listed the total price for the six guns as $3,557.27, at an interest rate of 8%, with

$484.90 to be paid quarterly for two years. The lease and its attached appendix

contained a list of the six guns (four different models) with their serial numbers,

but did not contain any individual pricing for the individual guns or models.

Therefore, in order to figure out how much each officer should pay, Gordon

testified that he contacted the Smith & Wesson representative.

Q. Now, when you figured up the amounts that each of you guys were supposed to pay for your share of the lease payments, how did you do that?

Gordon: I contacted the regional law enforcement sales director.

-22- Case No. 12-10-04, 05

Q. OK, you can’t tell anybody what he said,7 but what did you do as a result of that contact.

Gordon: Troy Weaks, Josh Strick and I looked up the prices on the law enforcement version of [the Smith & Wesson] website and obtained the list prices off of there, divided them by eight, and that became their payments.

Q. All right. So that’s how you figured up those particular amounts?

Gordon: Yes.

(Trial Tr., Vol. III, p. 123.)

{¶40} The testimony of the other two officers confirmed this arrangement.

Officer Weaks stated that he felt like he was paying a fair price. He testified that

he looked on the Internet and saw that what he was going to be paying for the gun

over two years was about the price of the gun on the Internet, plus “guesstimating”

what the interest charge would be. Officer Strick also confirmed that Gordon had

made arrangements with Smith & Wesson so they could purchase their own

firearms. He testified that “basically we were told to check out the website, see

what kind of gun we liked, and let him know and he would get it taken care of as

far as the contract and payments for it.” (Trial Tr., Vol. I, p. 168.) Strick thought

it was a good plan, “[f]or a $1,000 gun you could pay a couple payments every

couple of months of $123, so it made it an affordable weapon.” (Id. at 172-73.)

7 There had been numerous hearsay objections throughout Gordon’s entire testimony; he was having a difficult time relaying events and what occurred without invoking a hearsay objection.

-23- Case No. 12-10-04, 05

{¶41} The State claimed that Gordon overcharged the officers $11.56 and

$46.72, respectively, for each quarterly lease/purchase payment, for total

overcharges of $57.80 and $233.60, for the five payments completed before

Gordon was criminally charged. At that point, the Village of Kalida then paid off

the remainder of the lease. The State based its claim of wrongdoing on a “Lease

Worksheet” (“the Worksheet”) included with the lease agreement admitted as

State’s Exhibit 12. This Worksheet (which was a computer spreadsheet printout)

listed the product code and lease prices for each of the six guns and contained

some hand-written notes. According to this Worksheet, the lease/purchase price

for Officer Weaks’ gun was $457.07 and Officer Strick’s gun was $567.00. Based

on these Worksheet prices, plus an 8% interest rate, the State calculated that the

officers should have been making quarterly payments of $61.71 and $76.55.

Gordon was actually collecting $73.27 and $123.27 from the officers.

{¶42} Gordon testified that he had never seen the Worksheet prior to trial

and insisted that the original lease on file in Kalida when he was Chief did not

have the Worksheet page attached. There was no evidence presented at trial as to

who had created the Worksheet with the individual model prices or whether it had

-24- Case No. 12-10-04, 05

ever been a part of the lease.8 Chief Giblin testified that he contacted Smith &

Wesson to obtain a copy of the lease that was used for State’s Exhibit 12, so it

may be assumed that the Worksheet came from Smith & Wesson’s files.

However, there was no testimony to authenticate the Worksheet that would prove

that it had been a part of the lease agreement sent to Gordon, nor was there any

testimony that would disprove Gordon’s claims that he had never seen it before.

The lease agreement itself did not refer to the Worksheet in any way.

{¶43} Furthermore, the product code for Strick’s gun on the Worksheet was

different from the product code for Strick’s gun in the lease (the Worksheet had a

product code of 20747 but Strick’s gun’s actual product code in the final lease

agreement was 204744.) There was no explanation in the record or at trial

concerning the large discrepancy in the price of Strick’s gun. Strick said that his

gun, product code model #204744, cost about $1,000 when he looked on the

website, but the Worksheet stated that product code #20747 cost only $567.00.

The Worksheet definitely contained an error in the gun’s product code number,

although this matter was never recognized at trial. There was no evidence

concerning whether or not there also might have been an error in the Worksheet’s

pricing. Also absent from the record was any explanation or testimony as to who

8 The Worksheet had the following information listed on five separate lines on a column on the left-hand top side of the worksheet: “6/22/06; Lease Worksheet; Kalida PD, OH; Chief Gordon; Dan Kauhn.” Then it listed the four different model number product codes, the lease price of each model, the quantity, and the total price, which did come to $3,557.27. Dan Kauhn was listed as the “Rep” on the lease appendix, although he was not the person who signed the lease for S&W.

-25- Case No. 12-10-04, 05

had made the hand-written notes on the Worksheet, although Gordon denied that it

was his handwriting.9

{¶44} Finally, we find that the State’s computations as to the charges were

not correct. The State based its calculations upon a straight 8% interest rate.

However, the lease payments were compounded or computed differently, because

we calculate that the correct amount of the quarterly payment overcharge, if we

use “the Worksheet prices,” should have been $10.71 and $45.66, not $11.56 and

$46.72 as alleged by the State. We also wonder whether Gordon, Weaks and

Strick might have discovered and corrected the errors in the payment prices by the

time the lease’s final pay-off was made if they would have had the chance. After

Gordon was indicted, the Village of Kalida made the final three payments and now

has the guns. Gordon, Strick and Weaks, however, have personally paid lease

payments to Smith & Wesson of $1,441.80, $616.35, and $366.35 respectively,10

and they do not have the guns they had intended to purchase.

{¶45} The State did not present any evidence as to the authenticity or

accuracy of the Worksheet, nor was there any evidence that Gordon was aware of

the prices listed on the Worksheet when he computed the officers’ payments.

Gordon’s testimony that he obtained the prices for the quarterly payments by

9 This Court is not an expert in handwriting analysis, but we do observe that the writing on the Worksheet does look very different from Gordon’s handwriting that was on other exhibits. 10 Gordon did, however, pay Strick and Weeks the $233.60 and $57.80 restitution ordered, so the net amounts they have paid are different.

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checking the Smith & Wesson website was confirmed by the officers involved.

Based on all of the above we do not find that there was sufficient evidence of

Gordon’s intent to purposely deprive Officers Weaks and Strick of property in

order to sustain a conviction for theft in office for this portion of the offense.

Third Allegation: Failure to return Village of Kalida police uniforms and equipment

{¶46} Finally, for the third portion of the Kalida properties and services

offense, the State claimed that Gordon’s “web of deception” involved depriving

Kalida of its property because, after he resigned, Gordon failed to return some of

the uniforms and equipment that had been issued to him. The State maintains that

the jury did not lose its way when it concluded that “Gordon appropriated the

property of the village, with purpose not to give proper consideration for the

equipment and uniforms, and did not have a reasonable justification or excuse for

not doing so.” (Appellee’s Br., p. 15.)

{¶47} Gordon testified that he believed he had returned everything that

belonged to Kalida. He insisted that some of the equipment that Kalida claimed

he improperly retained was his own personal property. He did acknowledge that

one or two items belonged to Kalida and should have been returned. However, he

testified that he had forgotten he had them and would have gladly given them back

if he had been asked or reminded. Gordon argues that this was merely a civil

matter that has been criminalized by the State. After a thorough review of the

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record, we do not find sufficient evidence to sustain a conviction for Theft in

Office under R.C. 2921.41for several reasons.

{¶48} First, the evidence does not clearly specify exactly what property

Gordon was alleged to have “stolen.” There was no official inventory of goods

during the time that Gordon was chief, so Kalida asked Chief Giblin to create an

inventory. When Chief Giblin could not locate some items on a partial 2004

inventory he found, he investigated further and looked for receipts for purchases

that occurred during the years Gordon was Chief. (See State’s Exhibits 6, 7, and

12 – showing receipts from 2002-2006 for 12 alleged purchases of uniform pants

and shirts, polo shirts embroidered with “Chief Gordon,” leather holsters and duty

belts, body armor, and a battery charger.) The State claims that Gordon kept

uniforms and equipment totaling more than $1,000, in addition to equipment

found at his home. (Sentencing Tr., p. 7.) Only a few of the items on the receipts

were found at Gordon’s home, namely a polo shirt, some belts/holsters, a battery

charger, and the body armor.

{¶49} Although the State had several witnesses testify about the receipts,

most of the witnesses did not have first-hand knowledge as to the actual

purchases/payments that took place at the time. The new village fiscal officer had

only held the office since April 2007 (the previous officer had retired and did not

testify). We do not find that the evidence supports the presumption that Gordon

-28- Case No. 12-10-04, 05

committed a theft of any and all purchased uniforms/belts that were listed on a

receipt but were not recovered. The witnesses admitted that there was no way of

accounting for clothing that was damaged or that wore out, and there was also

testimony that there were other auxiliary and part-time police officers employed

during that time who had not returned all of their uniforms. Furthermore, some of

the “receipts” seem to be questionable, as one was clearly for an “exchange” and

another merely indicated an item was “back-ordered.” Some of the later

invoices/receipts had verification showing that they were paid for by Kalida, but

many of the earlier ones did not. Furthermore, Chief Giblin testified that Gordon

did turn in some uniforms to him, and Gordon testified that he had turned in others

before Giblin began his employment. The evidence concerning most of these

purchases and the disposition of these items was confusing and inconclusive.

{¶50} However, there was sufficient evidence to conclude that Gordon

failed to return the three main items that were found in his home and that the State

continually referenced throughout the entire trial: the “Bianchi” holsters, the

battery charger, and the bullet-proof vest.

{¶51} Concerning these items, we find that there was considerable evidence

supporting Gordon’s testimony that he paid for the holsters himself, and none to

contradict him. First, both Officer Strick and Officer Weaks testified that Kalida

only provided uniforms; the village did not provide any holsters/duty belts. A

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2002 invoice listing three Bianchi holsters and one black magazine/cuff combo,

had a “*” and a written notation by the magazine/cuff combo stating “paid for by

village.” The amount of that item (plus pro-rated shipping charges) was

subtracted from the invoice total showing a hand-written notation for a “balance

due of $116.71” for the three other Bianchi holsters. If only the magazine/cuff

combo was paid for by Kalida, it would be reasonable to infer that someone else

had paid for the other Bianchi holsters, supporting Gordon’s claim that he had paid

for the holsters himself, but purchased them through the village. This occurred in

2002, and there were no witnesses to verify or contradict Gordon’s testimony that

he had paid for some of these items and there was no evidence that Kalida had

paid for the three other holsters.

{¶52} We also find problems with the “value” that was assigned to the

items found at Gordon’s home, i.e., $31.30 for the battery charger purchased in

2003, and $750 for the body armor purchased in 2002.11 R.C. 2913.61(D)(2)

explains how to determine the value of business/professional property involved in

a theft offense. When the property “retains substantial utility for its purpose,” its

value is the cost of replacing the property. Id. However, there was no evidence as

to what this cost would have been, nor was there any testimony as to whether these

11 Also, the State did not provide a value for the yellow “F. Gordon” name plate, but it did include the original $63.47 price of the polo shirts, purchased in 2005, with “Chief Gordon” personalized embroidery. We question whether these items really retained their value, and what use the village would have for personalized items of apparel.

-30- Case No. 12-10-04, 05

old items had retained their value and utility, or whether they were outdated and

past their useful shelf life.

{¶53} In any case, we find that the State failed to produce evidence that

Gordon had the specific intent to deprive the Village of Kalida of its property. See

R.C. 2913.02(A)(2)/(3) and 2901.22(A), supra. Under R.C. 2913.01(C), “deprive”

means to do any of the following:

(1) Withhold property of another permanently, or for a period that appropriates a substantial portion of its value or use, or with purpose to restore it only upon payment of a reward or other consideration;

(2) Dispose of property so as to make it unlikely that the owner will recover it;

(3) Accept, use, or appropriate money, property, or services, with purpose not to give proper consideration in return for the money, property, or services, and without reasonable justification or excuse for not giving proper consideration.

{¶54} There was no evidence that Gordon had done any of the above in

order to constitute theft under R.C. 2913.02 when he failed to return some of the

property that the village had issued to him.

{¶55} Finally, but also` relevant to our review, was the fact that the State

submitted a copy of Kalida’s “Handbook Acknowledgement” signed by Gordon

and the mayor, as evidence of Gordon’s wrong-doing. In this exhibit, Gordon

acknowledged receipt of Kalida’s policies and rules and signified that he agreed

“to conform to the policies of the handbook ***.” (State’s Ex. 8.) Attached to the

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Acknowledgement were relevant portions of the Handbook, including Section 9.4,

“Uniform Allowances,” which stated:

The Village may furnish uniforms to village employees as designated by the Council. These uniforms and all other items issued by the Village remain the property of the village and must be returned when the employee leaves the Village’s employment.

(State’s Ex. 8.) The State showed this evidence to no less than eight witnesses,

and through their repeated testimony, had each witness confirm that this was

indeed Kalida’s policy, signed by Gordon, and that he was in violation of this

policy when he retained village property after the final date of his employment

(which was also meticulously established through other documents, exhibits, and

testimony). However, the State never read, pointed out, nor mentioned the final

sentence of the policy, setting forth the consequences of an employee’s failure to

return all equipment:

The employee’s final paycheck may be held until all village property has been returned.

(Id.)

{¶56} We find that the evidence was sufficient to prove that Gordon was

liable for violating Kalida’s policies and handbook. However, this was a matter of

an employment contract between an employee and an employer; it was not a

criminal matter under the facts and circumstances in this case. At most, it might

give rise for a claim of conversion. See, e.g., Culligan Water Cond. v. Thatcher,

-32- Case No. 12-10-04, 05

3d Dist. No. 5-02-36,

, ¶2 (employer filed a civil complaint

against a former employee alleging that employee failed to return a water testing

kit after leaving his employment.) The remedy for the “offense” was clearly

spelled out in the handbook, i.e., withholding of the final paycheck. Granted, by

the time Kalida discovered that Gordon had not returned all of the village’s

property, it was too late to withhold his final paycheck. However, the matter

could have been easily remedied by requesting Gordon to pay for the missing

items (or return them). Chief Giblin acknowledged that he had called other former

part-time and auxiliary police officers who had not turned in their uniforms but

that he had not called Gordon other than for one inquiry, shortly after Gordon left

office, regarding some radios. In fact, Chief Giblin testified that he had been told

that he should call Gordon if there were any questions/problems regarding missing

equipment after Giblin did his inventory. Chief Giblin did not do so.12

{¶57} Under the policy set forth in the handbook, Kalida would issue

Gordon uniforms and Gordon was obligated to return the uniforms (and all other

items issued by the village) when he resigned or he would be held financially

responsible. Charging Gordon with felony theft in this case is tantamount to

imprisonment for a debt he owed to Kalida. Section 15, Article I of the Ohio

Constitution, expressly prohibits imprisonment for a civil debt. State v. Myers, 3d

12 There was testimony from both Giblin and Gordon concerning several incidents that had, at one time at least, caused some animosity between the two.

-33- Case No. 12-10-04, 05

Dist. No. 6-03-02, 6-03-03,

, ¶7, citing Strattman v. Studt (1969),

,

. As the Ohio Supreme Court has long

held, “money obligations arising upon contract, express or implied, and judgments

rendered thereon, are debts within the purview of Section 15 of the (Ohio) Bill of

Rights * * *.” Strattman,

, quoting Second National Bank of

Sandusky v. Becker (1900),

,

,

,

paragraph one of the syllabus. Although Myers and Strattman concern the

payment of court costs, the Ohio Constitution specifically states that “[n]o person

shall be imprisoned for debt in any civil action, on mesne or final process, unless

in cases of fraud.” (Emphasis added.) Const. Art. 1, §15.

{¶58} We are not suggesting that a theft offense can never occur when a

party wrongfully retains property that was originally obtained according to a

contractual agreement. Cases of fraud are definitely excluded from the prohibition

against imprisonment. See Const. Art. 1, §15. There are many circumstances

when a party may be charged with a theft offense after wrongfully keeping or

disposing of property that was originally obtained as a result of a rental or other

type of contractual agreement. See, e.g., State v. Riley, 9th Dist. No. 24789, 2010-

Ohio-1350 (finding defendant guilty of theft when he failed to return or pay for

forklift after numerous calls and attempts to have the property returned); State v.

Martindale, 5th Dist. No. 00CA30,

(finding no error in the trial

-34- Case No. 12-10-04, 05

court's considering appellant's failure to return the property, after notice to do so,

as evidence of intent to commit a theft); R.C. 2913.72 (listing examples of what

may be considered evidence of intent to commit theft of rental property or

services.) However, in this case, there were no allegations or evidence that

Gordon’s intentions were fraudulent. Nor was this a case where he had sold,

secreted, or disposed of the property, or that he refused to pay for or return the

specific property after being asked.

{¶59} In several opinions written when he was a judge for the Hamilton

County Municipal court, Judge Painter observed that too often civil wrongs are

inappropriately placed into the context of criminal wrongdoing. In one case where

the defendant was accused of theft for failing to make timely payments or return

some furniture, the trial court wrote:

From a public policy standpoint, allowing a criminal conviction in this type of case would, simply stated, be ridiculous. The prosecuting witnesses and their employer ***, have myriad rights and remedies in a court exercising civil jurisdiction.

State v. Glenn (1990),

,

. Noting a

disturbing tendency to bring criminal charges in cases more properly decided in a

civil court, Judge Painter stated that “[g]reat care should be taken that the criminal

-35- Case No. 12-10-04, 05

law not be employed to attempt to right an alleged civil wrong. Criminals enough

we have.” State v. Howell (1994), 64 Ohio Misc.2d. 23, 29,

.13

{¶60} For all of the reasons stated above, we find that there was insufficient

evidence of Gordon’s criminal intent to sustain a conviction for Theft in Office for

Gordon’s failure to return alleged village property after he left office. The Village

of Kalida had ample civil remedies to redress any wrongs Gordon committed by

failing to follow the employment handbook procedures.

{¶61} The Dissent is correct in pointing out that an issue that involves a

civil wrong (i.e., a matter of contract in this case), may still be prosecuted by the

State as a criminal matter, where warranted. However, “courts must apply a rule

of reason in their interpretation of this state’s criminal statutes.” State v. Parks

(1984)

,

(stating that a finding that the

defendant was a “public official” performing “official functions” for the purposes

of R.C. 2921.13 “would be to stretch the reach of that statute beyond logic and

reason”). A court has the duty to construe statutes to avoid absurd results. State v.

Blagajevic (1985),

,

, citing Canton v.

Imperial Bowling Lanes (1968),

,

, paragraph four

13 We agree with the Dissent’s assertion that Glenn and Howell are somewhat distinguishable – we were unable to locate any cases where an employee was convicted of a felony and sentenced to prison for failing to return his or her uniforms/equipment. However, contrary to the Dissent’s statement, these cases were not relied upon for precedential purposes, but were merely utilized as examples of the inappropriateness of bringing criminal charges in the context of a civil wrongdoing.

-36- Case No. 12-10-04, 05

of the syllabus. In Blagajevic, the court was considering the extent of the meaning

of a “public official” under R.C. 2921.41 and found that “[t]o read the theft-in-

office statute as broadly as applied in this case, i.e., to apply to a janitor who has

committed a petty theft, would virtually subject all public employees who have

taken a pencil or rubber band home to prosecution for a third degree felony.”

We believe the same reasoning can be applied in this case. Although Gordon was

clearly a public official, and he did not comply with the terms applicable to all

employees in the handbook, he was not improperly “using” his official position

when he failed to return a personalized polo shirt.

{¶62} Although the Dissent asserts that the evidence could also be

construed to “infer” that “a theft offense occurred,” we must remain mindful of the

fact that Gordon was not indicted for a theft offense under R.C. Chapter 2913;

Gordon was indicted for theft in office under R.C. Chapter 2921. “[W]hile

thievery is regulated by both chapters, R.C. chapter 2921 adds [additional]

requirements in order to serve a separate purpose – more stringent punishment of,

and protection of the public from, those who abuse and corrupt public offices.”

State v. Krutz (1986),

,

. R.C. Chapter

2921, titled “Offenses Against Justice and Public Administration,” addresses

crimes of public officials “which tend to subvert the processes of democratic

government.”

This Chapter includes crimes of “bribery, perjury, and related

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offenses, crimes which hamper law enforcement and the administration of justice

* * *.” State v. Knight (1998),

,

. We

maintain that the issues concerning Gordon’s failure to return all of the

uniforms/equipment issued to him was a matter of contract and that there was

insufficient evidence to prove beyond a reasonable doubt that Gordon “used” his

office in the manner intended by R.C. 2921.41(A)(1) to commit a “crime” under

this chapter of the revised code.

{¶63} After a thorough review of the record, we find that there was

insufficient evidence to prove beyond a reasonable doubt that Gordon was guilty

of Theft in Office for the various allegations pertinent to the Kalida property and

services case. Gordon’s first assignment of error is sustained relative to the Kalida

property and services case no. 9-CR-40, appellate case no. 12-10-05.

Third Assignment of Error

{¶64} In his final assignment of error, Gordon contends that the trial court

abused its discretion by sentencing him to more than minimum prison terms for a

first offense. Based upon our disposition of the previous assignments of error, this

issue is now moot. However, we note that at the sentencing hearing the State

informed the trial court that “the State would acknowledge that the defendant is

eligible for judicial release” and that it would be “inclined to look favorably

toward a motion for judicial release” if restitution was paid. (Sentencing Tr., p.

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12.) If this statement was indicative of the State’s or the trial court’s intentions at

the time of sentencing, we must remind them that a defendant who is found guilty

of theft in office is not eligible for judicial release pursuant to R.C.

2929.20(A)(1)(b)(i).

{¶65} Finding merit in the issues raised by the appellant, the judgments of

the Putnam County Court of Common Pleas are reversed and the causes are

remanded for further consideration consistent with this opinion.

Judgments Reversed and Causes Remanded ROGERS, P.J., concurs in Judgment Only.

SHAW, J., DISSENTS.

{¶66} Although not essential to any of the convictions, I agree with the

majority that the evidence pertaining to the use of the internet in this case is not

sufficient to support a charge of theft in office. I also agree with the majority that

the monetary valuations assigned to the vests and other uniform paraphernalia

could have been made clearer, although I do not agree that the evidence is fatally

insufficient on this point. However, even if it is determined to be so, the effect is

only to reduce the conviction on that count from a felony of the fourth degree to a

felony of the fifth degree and not to vacate the entire verdict as the majority has

done.

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{¶67} As to every remaining aspect of this case, I respectfully dissent from

the majority opinion to reverse Gordon’s convictions for theft in office.

Specifically, I find that the majority’s conclusions are, in many instances, based

upon interpretations and speculation weighted heavily in favor of the defendant’s

version of events, the credibility of which has been determined adversely by the

jury. In my view, this approach has led the majority to the application of improper

standards of appellate review in some instances and more importantly in other

instances, to an incomplete and flawed analysis of significant portions of the

record.

{¶68} As a result, I believe it is necessary to thoroughly revisit the

evidence and testimony in this case as part of my dissent. For ease of discussion

and for the sake of clarity, I will review each count/case separately, as did the

majority.

Case No. 9-CR-19 – The Ottawa Firearms Case

{¶69} In his first assignment of error, Gordon asserts that his conviction of

theft in office in Case No. 9-CR-19 was against the manifest weight of the

evidence. He further contends in his second assignment of error that the evidence

was not sufficient to establish that he used his office as Chief of Police of the

Village of Kalida in aid of committing a theft offense or permitted or assented to

its use in aid of committing a theft offense in accordance with R.C. 2921.41(A)(1).

-40- Case No. 12-10-04, 05

The majority agrees with Gordon that the evidence was not sufficient to establish

the use of Gordon’s office to aid in committing the theft offense involving the

Ottawa firearms case and reverses this conviction. Having reached this

conclusion, the majority also determines that Gordon’s first assignment of error in

this regard is moot. I disagree with the majority’s conclusion that the State failed

to present sufficient evidence to demonstrate a palpable nexus between Gordon’s

wrongdoing and his public office.

{¶70} In reaching its conclusion, the majority relies on State v.

wherein the Sixth District Court of Appeals held that R.C. 2921.41(A)

requires some “palpable nexus between the auspices of the office and the

wrongdoing” before a defendant can be convicted of theft in office. The Sixth

District concluded that the evidence in Bowsher failed to establish such a nexus.

However, the facts of Bowsher are readily distinguishable from the case sub

judice.

{¶71} Bowsher was a Toledo police officer who was also the volunteer

treasurer of a police-firefighters charitable organization that collected money for

events, including a golf tournament. Although Bowsher collected these monies

while wearing his uniform, the city did not sanction the golf tournament and the

funds collected did not belong to the public. While treasurer, Bowsher took

$211.00 from the charitable organization and was subsequently indicted for theft

-41- Case No. 12-10-04, 05

in office.

The Sixth District concluded that Bowsher’s

indictment concerned “itself only with * * * -in effect, an embezzlement of

nonpublic monies. The fact that [Bowsher] had solicited contributions while in

uniform, on duty, and in a city police car ha[d] little, if any, relationship to a later

improper withdrawal of funds from a private account.” Bowsher,

.

{¶72} In this case, Knowlton testified that he came to know Gordon

through monthly meetings of the chiefs of police in Putnam County while Gordon

was the Kalida Police Chief. (Trial Trans., Vol. II, p. 300.) Knowlton testified

that the sale of the Ottawa firearms was first discussed at a chiefs’ meeting when

concerns were raised regarding the MAN unit, a division of the Putnam County

Sheriff’s Office that investigates drug crimes. (id.) The various chiefs were

concerned over whether the other law enforcement agencies in the county, such as

the Ottawa Police Department, were going to have to begin investigating drug

crimes. (id.) Knowlton began questioning how his agency was going to finance

such an endeavor, and Gordon informed him that he could sell old guns in order to

raise money. (id.) Gordon also told Knowlton that he was a gun dealer, that he

used to own a gun shop, and that he sold firearms for other police departments “all

the time.” (id. at 301.)

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{¶73} Knowlton testified that he thought that this was a good idea and so

he had Gordon come to the Ottawa Police Department (“O.P.D.”) and permitted

him to take a number of guns with him to determine their value.14 He further

testified that he asked Gordon while they were in the O.P.D. property room if what

they were doing was legal. Gordon told him that it was legal and once again told

Knowlton that he did it all the time for other departments. (id. at 303.)

{¶74} The Kistlers, who owned Triple J Firearms, testified that Gordon,

who they knew was the Kalida Police Chief, came to their shop on January 13,

2006, with a number of guns belonging to O.P.D. Richard Kistler specifically

recalled that Gordon wanted to be paid in cash. (id. at 154.) Although Triple J

usually purchased guns with a check to “keep track of it better,” Richard said that

cash would be “fine” because “being a police officer you wouldn’t think any

different.” (id.) The Kistlers also paid Gordon in cash when he returned on

January 25, 2006, with a number of long guns (shotguns and rifles), eight of which

he informed the Kistlers belonged to O.P.D., and did not issue a receipt for this

transaction upon Gordon’s request not to do so. (id. at 197.)

14 The majority notes that Ottawa and Knowlton must not have thought that Gordon acted criminally in selling these weapons, although Knowlton testified that he only gave Gordon permission to clean up and obtain an estimate on them, because Knowlton endorsed hiring him as Ottawa’s police chief and, in fact, Ottawa hired him as its police chief several months after he sold the weapons, which Knowlton and the municipal director both knew Gordon had done. Although the parties dispute whether Knowlton gave these weapons to Gordon simply to obtain an estimate as to their value or whether he gave Gordon permission to sell these weapons, this issue is not dispositive of the issue presently being addressed because this charge of theft primarily concerned the retention of some of the proceeds received by Gordon for the sale of these weapons regardless of whether he had permission to sell them. Furthermore, Gordon’s retention of some of the proceeds was not discovered until after he became the O.P.D. chief.

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{¶75} During cross-examination, Richard reiterated that he knew Gordon

was the Kalida Police Chief but that Gordon was selling him guns that belonged to

O.P.D. (id. at 172.) He was then asked if he ever questioned why Gordon would

be “selling stuff from Ottawa,” and he replied that Gordon told him that O.P.D.

“wanted to get rid of the guns,” that he was “kind of like there [sic] mediator for

getting rid of them[,]” and that this did not raise suspicions with him because “[i]f

you can’t trust a cop, who can you trust.” (id.)

{¶76} This testimony clearly establishes a palpable nexus between

Gordon’s wrongdoing and the public office he held. First, Gordon’s position as

police chief is the only reason he was in a position to be in attendance at the

chiefs’ meeting where he first suggested to Knowlton that O.P.D. could sell its

firearms. Second, he told Knowlton that he sold weapons for other departments

all the time and that this activity was legal. Gordon being a fellow officer and

someone who appeared to know a great deal about guns led Knowlton to believe

Gordon.

{¶77} Third, although the majority concludes that Gordon did not have to

be a police officer to obtain the firearms from his friend, Knowlton, the testimony

does not indicate in any way that Knowlton allowed Gordon to enter the O.P.D.

property room and subsequently leave the Ottawa police station with a number of

firearms merely because of their friendship. We find it highly improbable, even

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given the number of unwise decisions Knowlton made, that he would have

allowed a non-law enforcement person to simply walk away with a large number

of firearms because he was Knowlton’s friend. Rather, the evidence showed that

Knowlton allowed a fellow officer, who appeared to know what he was doing and

who represented that he often did this sort of thing for other departments, to leave

with these firearms.

{¶78} Fourth, although a person does not have to be a police officer to sell

a firearm, Gordon’s position as a police officer created a sense of trust in the

Kistlers that led them not to question that he was permitted to sell firearms

belonging to O.P.D. and to pay him in cash without a completed receipt, which

made tracing how much he received more difficult. Thus, his position as a police

officer aided him in selling these weapons. Fifth, although Gordon was not

indicted under Division (A)(2), which involves government owned property, the

money he was alleged to have taken was unquestionably government property, not

privately held funds, and his position as a public official aided him in acquiring

these public funds.

{¶79} Moreover, the requirement of Bowsher is that a palpable nexus must

exist because the language of R.C. 2921.41(A)(1) requires that the offender use his

office to aid in the commission of the theft offense. There is no requirement that

the office be the sole or primary means of committing the offense but that it aid in

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the commission of the offense. Under these facts, Gordon’s office certainly aided

him in the commission of the theft of the proceeds from the sale of the Ottawa

firearms.

{¶80} For all of these reasons, it is clear that, when construing the facts in a

light most favorable to the prosecution, the evidence was sufficient to establish a

palpable nexus between Gordon’s position as a police officer and his wrongdoing

that would warrant a finding that he used his office to aid him in committing a

theft offense. Therefore, I would also proceed to address Gordon’s first

assignment of error regarding whether his conviction was against the manifest

weight of the evidence. In so doing, it cannot be said in this case that the jury

clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.

{¶81} More specifically, the Kistlers testified that they had three

transactions involving firearms belonging to O.P.D. and handled by Gordon. They

also had documentation to this effect, including their firearms record book, which

is a book that the federal Bureau of Alcohol, Tobacco, and Firearms requires

firearms dealers to maintain. The first transaction on January 13, 2006, involved

thirteen handguns, which Gordon represented belonged to O.P.D. Richard Kistler

testified that he spoke with Gordon about buying some old evidence guns, that

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Gordon came in the first time with the handguns, Richard looked at each one, and

that they agreed on a price of approximately $1,000.00.

{¶82} Richard’s wife, Jackie, who handled the paperwork for the business,

testified that she wrote a receipt for all of the handguns on a triplicate form but did

not write in a total dollar amount because Gordon told her that it was not

necessary. She gave the top copy of this triplicate receipt, which was white, to

Gordon, and retained the yellow and pink copies. The yellow and pink copies

were admitted into evidence and showed no dollar amounts, including a total. She

further testified that Gordon insisted on cash but that they did not have a large

amount of cash at their disposal so they called upon a friend/business associate,

Larry Smith, who loaned them $950.00 for this transaction. Jackie wrote this

amount on a separate sheet of paper and kept a tally of the sales of these weapons

and the payments they made to Smith to repay this interest-free loan. Jackie

specifically testified that they gave Gordon $950.00 for these weapons, which is

why they would have borrowed that amount from Smith. Records from O.P.D.

indicated that twelve of these guns came from O.P.D.’s evidence/property room or

its separate weapons storage locker. The thirteenth gun, a Ruger, was the private

property of Knowlton’s wife, which Knowlton had also requested that Gordon

sell.

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{¶83} The next transaction involving Gordon and O.P.D. at Triple J

occurred on January 23, 2006. This transaction was merely a transfer of

ownership of an H & R Topper 20 gauge shotgun, serial # BA600063, from

O.P.D. to Bradley Niemeyer and did not involve a sale of this weapon to Triple

J.15 Rather, the two men conducted a private transfer and utilized Triple J’s

firearms records book to register the transfer of ownership to Niemeyer.

Niemeyer, a friend of Gordon’s, testified that he purchased this shotgun from

Gordon for approximately $50.00-$75.00 in cash and that the two men went to

Triple J to complete the necessary paperwork. Records from O.P.D. indicated that

this gun came from O.P.D.’s evidence/property room.

{¶84} The last transaction involving Triple J occurred on January 25, 2006.

Richard Kistler testified that this time Gordon brought a number of long guns to

sell. His records showed that Triple J purchased a total of twelve long guns: two

belonging to the Lucky Police Department, two belonging to Gordon, and eight

belonging to O.P.D. He further testified that the information on the ownership of

these guns, like that of the handguns, came from Gordon. These were also

recorded in the firearms record book of Triple J. Once again, Gordon wanted to

be paid in cash, so Triple J borrowed the money from Smith. Richard also

15 Additional testimony indicated that Triple J and Ottawa Ordnance, the other firearms dealership involved in this case, bought and sold guns, and that these transfers of ownership were recorded in their firearms records book. These dealers also assisted private-party firearms transfers by allowing the parties to record a transfer of ownership of a firearm in the business’ firearms records books so that the firearm would be properly registered to the new owner.

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identified the separate sheet of paper that Jackie used to record the amount of

money borrowed from Smith and paid to Gordon for this transaction.16 This

amount totaled $1,150.00, but the sheet did not list the individual prices of each

gun. Although there was no receipt because Gordon told them that he did not

want one, Richard testified that he has a good memory when it involves firearms

acquisitions and that he was able to place a value on each gun when Special Agent

Justice asked him to do so two years after this transaction. The amounts he placed

on the O.P.D. guns sold that day totaled $485.00. Jackie also testified regarding

this transaction and identified the separate sheet of paper that she used to

document the amount of money borrowed from Smith, which was $1,150.00.

Jackie also testified that this amount is what Triple J paid directly to Gordon for

all twelve long guns. This paper also documented the sales of some of the

weapons that Triple J purchased from Gordon and the amounts paid back to Smith.

{¶85} In addition to the Triple J transactions, the State presented the

testimony of Cindy Verhoff, who was the co-owner of Ottawa Ordnance. Verhoff

testified that her firearms record book showed that on January 5, 2006, a Smith

and Wesson 5906, 9 mm pistol, serial # TVL2979, was transferred from O.P.D. to

Gerald Gordon and this transaction was registered at Ottawa Ordnance. A copy of

this page of the firearms record book was also admitted into evidence without

16 This transaction was recorded on the other side of the sheet of paper used to document the amount of money borrowed from Smith for the first transaction with Gordon involving the O.P.D. handguns.

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objection. Gerald Gordon, Forest Gordon’s brother, testified that he purchased

this gun from his brother in January of 2006, for approximately $200.00-$250.00

in cash and that they went to Ottawa Ordnance so that he could fill out the

required background check and have the gun registered in his name. Inventory

records from O.P.D. indicated that this gun was O.P.D. property.

{¶86} Knowlton testified that the only money he or Ottawa ever received

from Gordon for the weapons from O.P.D. occurred at his home one weekend in

early 2006. Knowlton testified that on that day Gordon stopped at his home and

gave him $900.00 cash and a white receipt from Triple J that showed a total

amount of $900.00. He further testified that he took this money and receipt to his

office and locked both in his desk, where they remained for nearly two years

because Knowlton forgot about the money. When asked about whether he

discussed the value of these weapons with Gordon before Gordon sold them,

Knowlton testified that he did not but that he was surprised when Gordon gave

him $900.00 because he thought the amount was fairly high. Knowlton also

testified that the only other money he ever received from Gordon was on a

different day when Gordon gave him $100.00-$150.00 for the sale of his wife’s

Ruger handgun. Knowlton stated that in November of 2007, the Ottawa

Municipal Director, Jack Williams, received a phone call from the Putnam County

Sheriff’s Office about these weapons being sold and that Williams came to him

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about the money Gordon had given him and told him to deposit it with the Ottawa

clerk. That is when Knowlton first thought about the money again, and he

retrieved it and the receipt from his desk and deposited the $900.00 with the clerk.

{¶87} Knowlton further testified that Williams was contacted by the

sheriff’s office regarding a number of other guns belonging to O.P.D. for which

Ottawa never received any proceeds. Knowlton then questioned Gordon about

these long guns, and Gordon told him that those weapons were a separate batch

that he took in that belonged to Gordon and a friend of his and that he did not

know why they would have listed them as belonging to O.P.D.

{¶88} Jack Williams testified that Knowlton told him that he gave Gordon a

number of O.P.D. firearms to clean up and to obtain an estimate of their value.

Williams stated at that time he told Knowlton to get the weapons back from

Gordon because this was not proper procedure. According to Williams, shortly

after this conversation, Knowlton informed him that Gordon had sold the weapons

for $900.00. Williams saw the white receipt for $900.00 and the cash but did not

actually count the money at that time. Williams testified that he told Knowlton to

deposit the money with the Ottawa clerk.17 Approximately twenty-two months

later, he was contacted by the Putnam County Sheriff’s Office about the sale of

17 Williams and Knowlton gave differing accounts regarding Williams’ reaction to the fact that Knowlton gave Gordon a number of O.P.D. weapons and as to what Williams instructed Knowlton to do with the $900.00 that Knowlton received from Gordon. However, both testified about the white receipt having a total of $900.00 written on it, that there was cash with the receipt, and that when Knowlton eventually took the money to the Ottawa clerk, it, in fact, totaled $900.00.

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these weapons. When he could not locate any receipt for the money at the clerk’s

office, Williams went to Knowlton and found that Knowlton had the money and

the white receipt in a bank bag in the bottom drawer of his desk. Williams then

accompanied Knowlton to the clerk’s office and verified that the cash totaled

$900.00. The State also admitted a receipt from the clerk’s office showing that

$900.00 was deposited by O.P.D. for the sale of guns.

{¶89} The white receipt from Triple J for the January 13th handguns

transaction was also admitted into evidence. This receipt, which testimony

revealed was the top copy of the triplicate form that was given to Gordon, had a

total of $900.00 written on it. Both Richard and Jackie Kistler testified that this

was not their handwriting and that neither had written that on the white receipt.

Special Agent Justice testified that the white receipt was sent to BCI for a

handwriting analysis but that the analyst determined that there was not enough on

the receipt to conduct a comparison.

{¶90} Special Agent Justice testified he spoke with Gordon about these

transactions and that Gordon admitted to selling all of the handguns listed in the

Triple J firearms record book as belonging to O.P.D. on January 13, 2006, but that

the last one on the list, the Ruger, actually belonged to Knowlton and he sold it for

him. However, Gordon also told him that only three of the long guns, two Smith

and Wesson 3000 12 gauge shotguns and the H & R Topper, listed on the record

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book on January 23 and 25, 2006, were O.P.D.’s and that the other long guns were

his personal weapons. Gordon told Special Agent Justice that he did not know

how or why Triple J would have documented that the other long guns belonged to

O.P.D.

{¶91} At the time that Special Agent Justice spoke with Gordon, he had

copies of Triple J’s firearms record book but had not examined the property

records of O.P.D. and had not discovered the transfer of the Smith and Wesson

5906 that occurred through Ottawa Ordnance.18 When Special Agent Justice later

examined the property records of O.P.D. and compared them to the firearms

record books of Triple J and Ottawa Ordnance, he was able to trace a number of

the guns sold to and/or transferred through Triple J and Ottawa Ordnance to

O.P.D., including four of the long guns that Gordon told him belonged to him

rather than O.P.D. and the handgun transferred through Ottawa Ordnance that

Gordon failed to mention selling to his brother.

{¶92} Gordon also testified regarding the sales of these guns. He testified

that he sold a number of handguns and long guns for O.P.D. to Triple J and that he

received a total amount of $900.00 for all of these guns. In explaining the Triple J

transactions, Gordon stated that he first brought in the handguns and during the

18 Special Agent Justice testified that he could not account for the whereabouts of the Smith and Wesson 5906, Serial # TVL2979. However, he discovered that this was the type of weapon that O.P.D. previously used as a duty weapon but had traded at Ottawa Ordnance for another type. Believing that perhaps this gun had been overlooked during the trading of duty weapons, he contacted Ottawa Ordnance. As a result, he discovered that Gordon had transferred this weapon to his brother.

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negotiations with Richard Kistler offered to “throw in” several long guns

belonging to O.P.D. in exchange for $900.00. He testified that he did not have the

long guns with him but that they agreed on the price, and he brought the O.P.D.

long guns with him on January 25, 2006. He testified that the long guns

documented in the firearms record book for the 25th that were listed as belonging

to O.P.D. were the ones he offered to throw in with the handguns for $900.00 and

that he did not receive any additional money for those guns. Gordon also

acknowledged selling the Smith and Wesson 5906 to his brother for $175.00-

$200.00 and to selling the H & R Topper to Brad Niemeyer for $50.00-$75.00.

Gordon further testified that he gave Knowlton the $900.00 he received from

Triple J for the O.P.D. weapons, the $150.00 he received for the Ruger belonging

to Knowlton’s wife, and the monies he received for the guns sold to his brother

and Niemeyer. Regarding the total amount written on the white receipt from

Triple J, Gordon testified that he started to leave and noticed that there was no

total on his receipt so he had Jackie Kistler fill in the amount but that she did not

do so on the yellow and pink copies, which is why there was no amount written on

these forms.

{¶93} In comparing this evidence, we find that there is no dispute that

Gordon gave Knowlton at least $900.00 for the sale of O.P.D. firearms. However,

Gordon’s testimony was that he additionally gave Knowlton approximately

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$225.00 (when valuing the sales at the lowest amounts testified to by Gordon)-

$275.00 (when valuing the sales at the highest amounts testified to by Gordon) for

the O.P.D. gun sold to his brother and the O.P.D. gun sold to Niemeyer, but

Knowlton testified that he did not receive any additional money from the sale of

O.P.D. weapons. In addition to this discrepancy, Jackie Kistler was adamant that

Triple J gave Gordon $950.00 (not $900.00) for the handguns and an additional

$1,150.00 for the long guns. Richard Kistler also testified that some of the

$1,150.00, totaling approximately $485.00, was given to Gordon in exchange for

eight long guns that Gordon represented as belonging to O.P.D.19

{¶94} Jackie also specifically testified that she did not write a total on the

triplicate receipt for the first transaction and that the total listed solely on the white

copy was not written by her. Her husband, Richard, also testified that neither he

nor his wife wrote a total on the white copy and that Gordon told them not to do so

because he would do it later. Although he found that to be strange, Richard

testified that they knew him well enough so they let it go. In addition, Richard

testified that he and Gordon looked at each gun on the 13th, he placed a value on

each, and that they agreed on a final total, which was reflected in an amount of

$950.00 on the separate sheet of paper that his wife used to keep track of their loan

payments to Smith.

19 Two of these eight guns, a Mossberg 500, 12 gauge shotgun, and a High Point 995, 9mm rifle (each of which were valued at $50.00 by Richard Kistler), were not found in any of the records of O.P.D.

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{¶95} As to the January 25th transaction involving the long guns, Richard

testified that Gordon called him and told him he had a number of long guns from a

couple of police departments and some that were personally owned and wanted to

know if Richard would be interested in purchasing them. Richard told him to

bring them in so that he could take a look at them and that they could “go from

there.” (Trial Trans., 1/20/10, Vol. II, p. 163.) Gordon brought the guns to Triple

J and indicated that eight of these guns belonged to O.P.D. They agreed on a

price, the Kistlers borrowed the money from Smith, and Gordon left with this

amount in cash. Although Richard was unable to recall exactly how much he paid

for each gun, he testified that the amounts he gave to Special Agent Justice two

years after the transaction were “pretty accurate” reflections of the value he placed

on the guns at the time he bought them from Gordon. (id. at p. 166.) These

amounts totaled $485.00 for weapons that were identified as O.P.D. weapons in

the firearms record book. During cross-examination, Richard testified that he did

not agree to a price for these guns while on the phone with Gordon because it was

not good practice to offer a price without looking at the guns.

{¶96} Nothing in Richard’s or Jackie’s testimony indicated that the long

guns brought into Triple J on the 25th were part of the sales transaction on the 13th,

but it established that they paid him additional money for the long guns belonging

to O.P.D. Moreover, Richard’s testimony about examining each gun and his

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unwillingness to give a price for a gun over the phone when he had not seen the

gun supports the conclusion that he would not have negotiated a purchase price on

the 13th, which, according to Gordon, included guns he had never examined.

Further, Gordon did not tell Knowlton or Special Agent Justice that the long guns

were part of the transaction on the 13th and that he simply brought them in twelve

days later. Rather, he stated that all the long guns belonged to him, not O.P.D.,

and he had no idea why Triple J’s records indicated that some of them belonged to

O.P.D. It was not until he testified at trial that this version of events regarding the

long guns came to light. In addition, the transaction with his brother for the Smith

and Wesson 5906 was only discovered when Special Agent Justice examined

O.P.D.’s records. Gordon did not tell him about it. All of this renders Gordon’s

entire testimony suspect.

{¶97} While Knowlton, to whom Gordon claims he gave additional

monies, arguably may have had a reason to testify falsely if he was the one

responsible for the missing money, there is a reasonable inference from all of the

evidence before the jury that Knowlton did not take this money. Indeed, twenty-

two months after receiving the $900.00, Knowlton still had this money and the

receipt in his desk drawer. Thus, a reasonable jury could have concluded that if

Gordon gave him additional money, Knowlton would have also placed that money

in his desk drawer with the other money. Further, there is nothing in the record to

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indicate that any of the other witnesses had a motivation to lie, particularly the

Kistlers, who no longer operate a gun dealership and stood nothing to gain from

their testimony. In any event, the jury was in a far better position than this Court

to determine the credibility of each witness through observing their demeanor,

candor, voice inflection, etc. while each testified.

{¶98} In reviewing the entire record, weighing the evidence and all of the

reasonable inferences, and considering the credibility of the witnesses, there is no

basis in this case for an appellate court to conclude that in resolving conflicts in

the evidence, the jury clearly lost its way and created such a manifest miscarriage

of justice that the conviction must be reversed and a new trial ordered. To the

contrary, the only evidence that tended to show that Gordon did not take some of

the money that he was paid through the sales of O.P.D. weapons came from

Gordon’s own self-serving testimony. Thus, the first and second assignments of

error, as they pertain to this offense, should be overruled and Gordon’s conviction

for this offense should be affirmed.

Case No. 9-CR-40 – The Kalida Property and Services Case

{¶99} As previously noted, in his first assignment of error, Gordon also

contends that the verdict of guilty on his second case of theft in office, which

involved the Village of Kalida’s property and services, was against the manifest

weight of the evidence. Despite this fact, the majority concluded that what his

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arguments actually raised in this case was a legal question as to the sufficiency of

the evidence. While the majority correctly notes that Gordon’s brief to this Court

makes a number of statements that the State “failed to produce any evidence,” that

“the record is completely lacking in any evidence,” and “there is no evidence,”

these statements are often made in connection with Gordon’s version of events and

the lack of direct evidence to negate Gordon’s testimony as to his thought process

during the relevant time frame. Thus, in many instances, Gordon employs this

language in an attempt to support his position that the jury clearly lost its way (a

manifest weight standard), not as a challenge to the legal sufficiency of the

evidence. Therefore, I disagree with the majority’s opinion that Gordon’s entire

argument as to this count challenges only the sufficiency of the evidence,

particularly as it relates to the evidence of Gordon’s intent to deprive.

{¶100} However, Gordon also argues that the State failed to present any

evidence that he deprived the Village of Kalida of services on the portion of this

charge involving his internet usage and further argues that the remaining

allegations regarding the Smith and Wesson lease and the Village of Kalida

property are contract disputes rather than criminal matters. The majority evaluated

these arguments under the standards for determining the sufficiency of the

evidence, and I agree that these two arguments do raise issues of legal sufficiency.

Given these arguments, the majority’s decision to review the entire case involving

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the property and services of the Village of Kalida under the sufficiency standards,

and for the simple sake of clarity, I will address all of the issues raised in this case

under the standards used in reviewing challenges to the sufficiency of the

evidence.

{¶101} As the majority correctly notes, “[a]n appellate court’s function

when reviewing the sufficiency of the evidence to support a criminal conviction is

to examine the evidence admitted at trial to determine whether such evidence, if

believed, would convince the average mind of the defendant’s guilt beyond a

reasonable doubt.” Jenks, 61 Ohio St.3d at paragraph two of the syllabus. Most

importantly, “[t]he relevant inquiry is whether, after viewing the evidence in a

light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime proven beyond a reasonable doubt.” (Emphasis

added.)

citing Jackson v. Virginia (1979),

. Furthermore,

[c]ircumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. When the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction.

(Emphasis added.) Jenks, 61 Ohio St.3d at paragraph one of the syllabus. “‘A

reversal based on the insufficiency of the evidence * * * means that no rational

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factfinder could have voted to convict the defendant.’” Thompkins, 78 Ohio St.3d

at 387, quoting Tibbs v. Florida (1982),

.

{¶102} As to the allegations involving the theft of services from Kalida for

the time Gordon spent on the computer engaging in inappropriate conversations of

a sexual nature, I concur with the majority in its conclusion that there was no

evidence, either direct or circumstantial, to demonstrate that Gordon deprived the

Village of Kalida of any services as there was nothing to show that due to his

improper online activities, Gordon neglected his job duties in any way or poorly

performed them. See Wolf,

.

{¶103} As to the allegations involving the theft of Kalida property, i.e the

uniforms and equipment, I concur with the majority’s conclusion that the evidence

was not sufficient “that Gordon committed a theft of any and all purchased

uniforms/belts that were listed on a receipt but not recovered.” (Maj. Opin. at ¶

49.) I also concur with the majority’s conclusion that “there was sufficient

evidence to conclude that Gordon failed to return the three main items that were

found in his home * * *: the ‘Bianchi’ holsters, the battery charger, and the bullet-

proof vest.” (id. at ¶ 50.) However, I dissent from the majority’s conclusion that

there was not sufficient evidence of Gordon’s intent to deprive Kalida of this

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property.20

{¶104} The majority correctly notes that “deprive” means to do any of the

following: “(1) Withhold property of another permanently, or for a period that

appropriates a substantial portion of its value or use, or with purpose to restore it

only upon payment of a reward or other consideration. * * * ” R.C.

2913.01(C)(1). The majority then concludes that there was no evidence to show

that Gordon deprived Kalida of its property “when he failed to return some of the

property that the village had issued to him.” (id. at ¶ 54.) In so doing, the

majority relies entirely upon Gordon’s testimony that he believed that he had

returned everything to Kalida that belonged to it, that he had forgotten that he had

the items that were found in his home during the execution of the search warrant,

and that he would have given these items back if he had been asked or reminded.

{¶105} However, the standard of review in evaluating whether there is

sufficient evidence to sustain a conviction, as previously noted, requires this Court

to construe the evidence in a light most favorable to the State. When applying that

standard, the State satisfied its burden particularly in respect to the polo shirt, body

20 Although the majority raises concerns with the amounts attributed to these items and whether the State presented sufficient evidence of the value of these items, this issue was not raised in Gordon’s appeal to this Court, constituting a waiver of this issue. Further, even under a plain error analysis, there was evidence as to the purchase price of these items and nothing to infer that they did not retain even a modicum of value. Thus, while a value in excess of $500.00 may not have been warranted, this would simply reduce this to a felony of the fifth degree rather than a fourth degree, see R.C. 2921.41(B), and would not warrant a complete reversal of his conviction for theft in office.

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armor, holster, and battery charger that were found in Gordon’s home, some five

months after his employment with the Village of Kalida ended.

{¶106} The evidence presented by the State shows that (1) these items were

identified as belonging to Kalida, some of which Gordon also acknowledged

belonged to Kalida, that (2) the employee handbook, signed by Gordon, states that

all uniforms and other items issued by the Village of Kalida remained the property

of Kalida and were to be returned upon the termination of employment, and that

(3) Gordon never returned these items to the Village of Kalida until they were

seized during the execution of a search warrant a number of months later. All of

this evidence could lead a rational trier of fact to infer that Gordon intended to

deprive Kalida of its property. Thus, a reasonable factfinder could find this

essential element of the offense of theft proven beyond a reasonable doubt despite

whether there was any reasonable theory of innocence, as this circumstantial

evidence of guilt did not have to be irreconcilable with Gordon’s version of

events. See

{¶107} This issue is repeatedly mischaracterized by the majority as one of

an evaluation of Gordon’s credibility by the appellate court. However, this is a

question of whether the evidence is sufficient to submit to the jury; it is not a

question of whether we believe Gordon’s version of events or the State’s. We are

charged with construing the evidence in a light most favorable to the State. Once

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the State presents sufficient evidence, through direct and/or circumstantial

evidence, the question of credibility belongs, rightly so, to the factfinder, who is in

a far better position than this Court to determine the credibility of each witness

through observing their demeanor, candor, voice inflection, etc. while each

testified, and who, in this case, chose to find Gordon’s testimony to not be

credible.

{¶108} Moreover, I disagree with the majority’s conclusion that this was a

matter of an employment contract and not a criminal matter under the facts and

circumstances of this case. In support of its position, the majority relies upon two

cases from the Hamilton County Municipal Court:

and

However, these cases are distinguishable from the case sub judice.

{¶109} In Glenn, the defendant was charged with the offense of theft for

failing to make timely and repeated payments for the rental/lease of furniture from

a private business and retaining the furniture in his possession. Glenn,

. The trial court found him not guilty of theft.

. In so doing,

the court concluded that there was a question of whether rental payments were due

and owing and whether this was a sale, which would invoke statutes regarding

security agreements and the special established procedural means available to

secured parties for the recovery of property.

.

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{¶110} In Howell, the defendant purchased a truck from a dealership for

$17,069.46 on January 10, 1994. Howell,

. She made a

down payment of $1500.00, filled out the necessary paperwork, and signed a

purchase agreement indicating that the agreement was subject to credit approval

and that if she was denied credit, she would return the vehicle immediately upon

demand.

She was then given possession of the truck and a thirty-day

temporary tag.

For unknown reasons, she did not give all of the necessary

information to the finance company, which did not pay the dealership the

remaining amount owed, but she retained the truck until a criminal complaint was

filed against her on February 4, 1994.

She was charged with the offense of the

unauthorized use of a vehicle, a felony, and the case came before the municipal

court for a probable cause hearing.

In finding that there was no probable cause

to believe a felony had been committed, the municipal court determined that a

question existed as to whether Howell had a sufficient claim to ownership and,

hence, a legitimate claim to possession, based upon her down payment and belief

that the paperwork could be straightened out. Id. at 26-30. In making this

determination, the Court found that the proper remedies for the dealership were to

be found in a civil action rather than criminalizing Howell’s actions. Id. at 29.

{¶111} Unlike these cases, the case sub judice does not involve a question

of whether Gordon was entitled to retain possession of the body armor, car

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charger, holster, and polo shirt because of some arguable ownership interest or

security agreement involving the issue of late payments. Furthermore, the parties

in the cases cited by the majority were given possession of the items in dispute

based upon contracts. Gordon did not originally obtain these items according to

the employee handbook, as this “contract” (as the majority characterizes it) was

signed on January 17, 2006, and all of these items were purchased and issued to

the Kalida Police Department prior to this date. Undeniably, when construing the

evidence in a light most favorable to the State, Gordon knew that this property

belonged to Kalida, not him, and was to be returned to it upon termination of his

employment.

{¶112} Moreover, the fact that the employee handbook informed him that

Kalida might hold his paycheck until the items were returned does not render this

a civil, “election of remedies” matter. There is nothing in the law that requires a

victim of this type of offense to choose between a civil action and a criminal

action. See 1 Wharton’s Criminal Law (14 Ed. 1978) 225, Civil or Criminal

Action Pending, Section 44 (stating “[w]hen a crime also constitutes a private

wrong, the right of the injured individual to bring a civil action to recover damages

and the right of the State to prosecute and impose punishment for the crime are

separate and independent remedies. Accordingly, the pendency or enforcement of,

or the recovery in, one action may not be interposed as a defense in the other

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action.” (Footnote omitted.)) In fact, there are many occasions where the victim of

a crime may institute a civil action against the defendant, who is also facing

criminal charges. The choice to indict a criminal offense is that of the State,

through the grand jury, who represents all the citizens of the State, not solely the

victim. Indeed, a crime victim may not even want a prosecution to proceed, but

this decision ultimately lies with the grand jury in felony cases or the prosecution

in misdemeanor cases. Thus, the Village of Kalida’s employee handbook terms do

not dictate the actions of the State of Ohio.21

{¶113} The majority also acknowledges that there are times when a theft

offense can occur when a party wrongfully retains property that was originally

obtained through a contractual agreement (which, as previously indicated, this

property was not obtained in a similar manner). The majority then cites a number

of cases as examples and concludes that there was no evidence that Gordon’s

intentions were fraudulent or that he “sold, secreted, or disposed of the property,

or that he refused to pay for or return the specific property after being asked.”

(Maj. Opin. at ¶ 58.) However, the property at issue was only recovered when a

21 I also take exception to the majority’s statement that this matter could have been easily remedied by requesting Gordon to pay for the missing items or to return them. Although Gordon said he would have returned them, this matter might not have been “easy” because he could have informed the Village of Kalida that he did not have these items, that they were destroyed, etc. Given that the jury obviously found issues with Gordon’s credibility, it is neither accurate nor appropriate for this Court to make such assertions about what Gordon may have done and the ease with which this matter could have been resolved. Furthermore, simply because one who intends to deprive another of property may agree to return this property when his crime is detected, this does not negate the fact that he initially intended to deprive the owner of property.

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search warrant was obtained and executed. The property was found in his home,

where the authorities would have no right to enter without consent or a warrant.

Additionally, Special Agent Justice testified that he told Gordon the following in

January of 2008, when he spoke to him about the investigation:

I said at the end of everything, I think he was walking out, I said, Forest, if you got any stuff that belongs to Mike [Chief Giblin], get it back, or if the village has given you something, get it in writing that they gave it to you and it is your property. I said if you got anything you might want to give it back.

(Trial Trans., 1/21/10, Vol. III, p. 71.) Despite this admonition and the fact that he

knew he was being investigated by BCI, Gordon did not return any other property

belonging to Kalida. Given all of this evidence, including the testimony that he

was told to return anything he had belonging to Kalida some two months before

the warrant was executed, there was sufficient evidence in this case to find that a

theft offense occurred, even when following the rationale of the Hamilton County

Municipal Court.

{¶114} Lastly, the majority concludes that the evidence was not sufficient

to infer criminal intent on Gordon’s part in regards to the Smith and Wesson lease

and Officers Weaks and Strick. I disagree with this conclusion in a number of

respects.

{¶115} First, while Officers Weaks and Strick believed that this was an

affordable plan and Officer Weaks felt he was paying a fair price, their subjective

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feelings, without knowing the prices listed for their guns on the Worksheet, are not

relevant to whether Gordon deprived them of their property by overcharging them

for their monthly payments. Second, their testimony did not confirm Gordon’s

testimony that they, seemingly together, looked up the prices of the guns on the

law enforcement version of the Smith and Wesson website and divided them by

eight to determine their quarterly payments for a two-year period. Rather, the

officers testified that they, respectively, relied on Gordon for the lease terms and

that they, respectively, looked up the list prices for their guns on the internet.

They did not say that they looked online with Gordon or that they looked on the

law enforcement version of the website.

{¶116} Third, the majority relies on Gordon’s testimony that he had not

seen the Worksheet as part of the lease agreement prior to the trial and the lack of

authentication evidence to show who created the Worksheet or to state whether it

was part of the lease agreement sent to Gordon. However, this lease agreement,

complete with the Worksheet attached to it, was admitted into evidence without

objection as State’s Exhibit 12. Further, Chief Giblin testified that he contacted

Smith and Wesson about the lease upon receiving a bill for a quarterly payment.

He then requested that Smith and Wesson send him a copy of the lease that

Gordon entered into on behalf of the Kalida Police Department, which it did.

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Chief Giblin also testified that State’s Exhibit 12, which included the Worksheet,

was the lease sent to him by Smith and Wesson.

{¶117} Accordingly, the State did present evidence that could lead a

reasonable factfinder to conclude that Gordon would have seen the Worksheet

when he entered into the contract and would have known the actual list price of

each weapon, including that Officer Strick’s gun was listed at $567.00. Officer

Strick’s payments, had he paid all eight, would have resulted in a total payment of

approximately $419.00 above list price.22 Even at an eight percent interest rate,

whether this rate was annual and/or compounded over two years, his payments

were greatly in excess of what he should have been paying.

{¶118} Fourth, the majority takes issues with the product code for Stick’s

gun. The majority notes that on the Worksheet this gun is listed as “Product Code

20747” but that the final lease agreement listed it as “Model No. 204744”. The

majority acknowledges that there was no explanation concerning the large

discrepancy in the price of Officer Strick’s gun but speculates that because there

was a definite error in the product code number, there might also have been an

error in the Worksheet’s pricing. However, a reasonable inference could have

been made by this jury that this was a typographical error in the number

22 The testimony established that the officers only made five payments before the Village of Kalida discovered the lease agreement and paid the remaining three payments. Therefore, Officer Strick paid a total of $616.35, which was already over the list price for this gun, and Officer Strick still had three payments to make.

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arrangement and not a reason to conclude that there was insufficient evidence that

Gordon overcharged Officer Strick. Notably, the “Leasing Information Sheet,”

which is contained in the lease agreement and outlines the overall agreement, also

contains the same product number, 20747, as the Worksheet. Gordon never

testified that he had not seen this sheet. Thus, to conclude that a possible

typographical error renders the State’s evidence insufficient because of pure

speculation that the list price could also be incorrect far oversteps our standard of

review.

{¶119} Fifth, the majority also computed the charges and concludes that the

State’s computations are incorrect. In so doing, the majority states that the lease

payments were compounded or computed differently. However, the majority’s

figures also establish overpayments by both officers. Regardless of whether the

State’s computations were correct, the undisputed evidence remains that the

officers were overcharged. Thus, their overpayments for their obligations would

have reduced Gordon’s payment obligations for his four weapons, which were also

figured into the calculation of the total quarterly lease payment of $484.90.23

Thus, even if the exact amounts are incorrect and did not raise the total theft

amount to over $500.00, Gordon’s conviction for theft in office should remain as 23 The majority also wonders whether the officers would have discovered the errors and corrected them by the time of the final lease payment if they had the chance. This question is more aptly applied to the weight of the evidence rather than the sufficiency of it. Further, if we are engaging in speculation, the officers may have never realized that Gordon was paying a lesser quarterly amount because of their higher payments because the lease would have simply been paid off with their belief that this was a good deal, and Gordon’s benefit from overcharging them would have gone undetected.

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the only error would be in the level of the offense, i.e. a fifth degree felony rather

than a fourth degree felony.24

{¶120} Based on the foregoing, there was clearly sufficient evidence for a

rationale trier of fact to find that Gordon knew the list amounts of the individual

weapons and the interest rate thereon, knew that he was overcharging the officers,

particularly Officer Strick, and used these overpayments with the intention of

reducing his quarterly payments, thereby profiting from these officers and

depriving them of the overages.

{¶121} In summation, I would find that there was sufficient evidence that

Gordon intended to deprive the Village of Kalida of its property and to deprive the

officers of their money. However, I agree with the majority that there was not

sufficient evidence that the Village of Kalida was deprived of services by Gordon

through his online endeavors. Furthermore, I agree with the majority that there are

concerns as to whether the aggregate value of the loss is in excess of $500.00.

Nevertheless, this issue was not raised by Gordon and there was some evidence of

the value of the body armor, holster, and battery charger and of the overpayments,

24 The jury made two specific findings in its jury form. It first found that Gordon was guilty of theft in office in violation of R.C. 2921.41(A)(1). The jury was then told to determine whether the value of this theft was “less than $500.00” or “$500.00 or more and less than $5,000.00.” The jury chose the latter, resulting in a fourth degree felony offense.

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which together would total in excess of $500.00. In any event, Gordon’s

conviction should not be reversed, but at most, reduced to a fifth degree felony.25

{¶122} For all of the foregoing reasons, I would overrule Gordon’s first and

second assignments of error and affirm his two convictions for theft in office.

Having overruled those assignments of error, I would proceed to address the third

assignment of error regarding whether the trial court abused its discretion in

ordering that Gordon be sentenced to prison.

/jlr

25 As previously noted, Gordon’s primary challenge to his conviction for theft in office in the Kalida property and services case is based upon his argument that the manifest weight of the evidence did not demonstrate that he intended to deprive Kalida and Officers Weaks and Strick of their property. In support, Gordon relies upon his testimony that he did not mean to overcharge the officers and that he forgot he had property in his possession that belonged to Kalida. However, the evidence as outlined above does not support such a conclusion as there is nothing in the record to show that the jury clearly lost its way in resolving conflicts in the evidence. Rather, the jury chose not to believe Gordon’s version of events and reached a reasonable conclusion of his guilt given his actions and/or inaction. Thus, although I have chosen to evaluate this case based upon the majority’s determination that Gordon was actually challenging his conviction upon legal sufficiency grounds, under either type of challenge, the evidence amply supports his conviction in this case.

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