[Cite as State v. Campbell,

.]

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

STATE OF OHIO, :

Plaintiff-Appellee, : Case No. 20CA723

vs. :

AUSTIN B. CAMPBELL, : DECISION AND JUDGMENT ENTRY

Defendant-Appellant. :

________________________________________________________________

APPEARANCES:

Dennis W. McNamara, Columbus, Ohio, for appellant.

Dave Yost, Ohio Attorney General, and Andrea K. Boyd, Assistant Attorney General, Columbus, Ohio, for appellee. ________________________________________________________________ CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:7-13-21 PER CURIAM.

{¶1} This is an appeal from a Vinton County Common Pleas

Court judgment of conviction and sentence. Austin B. Campbell,

defendant below and appellant herein, assigns the following

errors for review:

FIRST ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED WHEN IT OVERRULED MR. CAMPBELL’S MOTION TO DISMISS THE INDICTMENT.” 2 VINTON, 20CA723

SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT’S VERDICTS FINDING MR. CAMPBELL GUILTY OF THE OFFENSES OF TAMPERING WITH RECORDS AND FORGERY WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE.”

{¶2} Between January 2009 and January 2013, appellant

served as the Vinton County Prosecutor. In 2015, the state

filed a bill of information that charged appellant with eight

counts of falsification based upon conduct that occurred between

2009 and 2012, while appellant served as the Vinton County

Prosecutor. On August 27, 2018, the trial court dismissed the

case with prejudice due to a violation of appellant’s speedy

trial rights.

{¶3} On December 26, 2018, a Vinton County Grand Jury

returned an indictment that charged appellant with (1) tampering

with records, in violation of R.C. 2913.42, and (2) forgery, in

violation of R.C. 2913.31(A)(2).

{¶4} Appellant subsequently filed a motion to dismiss the

indictment based upon a violation of his speedy trial rights.

Appellant noted that the current indictment is based upon his

failure to list the prosecutor’s office’s Furtherance of Justice

(FOJ) fund as a creditor on his 2012 financial disclosure form

that he filed in 2013, facts that the state knew when it filed

the 2015 indictment. Appellant contended that the current 3 VINTON, 20CA723

indictment does not set forth any facts that differ from the

previous bill of information. Instead, appellant claimed that

the facts alleged in the 2015 bill of information and the

current indictment constitute a continuing course of conduct.

Appellant thus argued that the state was required to try him

within the time frame of the 2015 bill of information.

{¶5} The state’s memorandum contra asserted that the

speedy-trial time frame of the 2015 bill of information should

not apply to the current indictment because the current

indictment arises from a different set of facts than those

alleged in the initial bill of information. The state contended

that the 2015 bill of information and the current indictment are

based upon “different events that took place on different

dates.” The 2015 bill of information alleged that appellant

committed eight counts of falsification between January 1, 2009

and January 1, 2012, but the current indictment charges

appellant with different offenses–tampering with records and

forgery–that occurred at a different time–May 14, 2013.

{¶6} On November 13, 2019, the trial court overruled

appellant’s motion to dismiss the indictment.

Before trial, the parties entered into several

stipulations. They agreed, in part, that appellant made five

purchases for personal use with the FOJ debit card that totaled 4 VINTON, 20CA723

$1,920.67, and that on January 3, 2013, appellant repaid the

amount and listed the expenses on the annual report that he

filed with the Vinton County Auditor.

{¶7} On December 16, 2019, the court held a bench trial.

At trial, the state asserted that it did not plan to call any

witnesses and, instead, intended to rely upon the parties’

stipulations and the exhibits it sought to admit into evidence.

After the court admitted the state’s exhibits, the state rested.

{¶8} At that juncture, appellant filed a Crim.R. 29 motion

for judgment of acquittal and asserted that the state did not

present any evidence to show that he acted with a purpose to

defraud or that appellant falsified any document. The state

argued that the failure to list the FOJ fund as a creditor

established that the form was false.1 The state contended that

1 R.C. 102.02(A)(2)(e) requires a financial disclosure statement to include, inter alia:

The names of all persons residing or transacting business in the state to whom the person filing the statement owes, in the person’s own name or in the name of any other person, more than one thousand dollars. Division (A)(2)(e) of this section shall not be construed to require the disclosure of debts owed by the person resulting from the ordinary conduct of a business or profession or debts on the person’s residence or real property used primarily for personal recreation, except that the superintendent of financial 5 VINTON, 20CA723

the circumstances indicate that appellant had the intent to

defraud because the failure to list the FOJ fund as a creditor

permitted appellant to obtain an interest-free loan and he could

avoid an ethics or criminal investigation.

{¶9} The trial court took the matter under advisement and

allowed the parties to submit post-trial briefs. In its post-

trial brief, the state asserted:

By failing to disclose the FOJ Fund as a creditor on his [financial disclosure] form, [appellant] was deceiving the Ohio Ethics Commission, and anyone else who viewed the [financial disclosure form]. He did so to conceal the fact that he was using the FOJ Fund for personal use throughout calendar year 2012.

The state argued that appellant knew that his disclosure of

personal use of the FOJ fund “might lead to questions about how

he was using the FOJ Fund.”

{¶10} In his post-trial brief, appellant asserted that the

state failed to present any evidence to show that he acted with

purpose to defraud or an intent to deceive. Appellant alleged

that he disclosed his personal use of the fund when, on January

3, 2013, he filed a written report with the Vinton County

institutions and any deputy superintendent of banks shall disclose the names of all state-chartered banks and all bank subsidiary corporations subject to regulation under section 1109.44 of the Revised Code to whom the superintendent or deputy superintendent owes any money. 6 VINTON, 20CA723

Auditor that listed all expenditures made from the FOJ fund

during 2012. Appellant argued that this disclosure negates a

finding that he had a purpose to defraud or that he had an

intent to deceive.

{¶11} On June 10, 2020, the trial court found appellant

guilty of both offenses. The court determined that appellant

knowingly obtained a benefit for himself by borrowing government money from the Furtherance of Justice Fund when he was prohibited from doing so and not paying any interest on the loan. Defendant knowingly obtained this money by deception by purposely not disclosing that he had taken the money on his 2012 Financial Disclosure Statement, a required governmental writing or record, prior to filing it.

The court additionally determined that the state established

that appellant had a purpose to defraud. The court explained

that the evidence showed that appellant did not list “his

appropriation of the FOJ funds on the Financial Disclosure

Statement despite the warnings on the Statement.” The court

further disagreed with appellant that his repayment of the

amounts improperly spent negates any purpose to defraud. Thus,

the court thus found appellant guilty of tampering with records

and forgery.

{¶12} At sentencing, the trial court merged the two

offenses. The state elected to proceed to sentencing on the

tampering-with-records offense. The court placed appellant on 7 VINTON, 20CA723

community control for two years and ordered him to pay a $2,000

fine. This appeal followed.

I

{¶13} In his first assignment of error, appellant asserts

that the trial court erred when it overruled his motion to

dismiss the indictment. Appellant contends that (1) the trial

court incorrectly determined that the 2015 bill-of-information

speedy-trial deadline did not apply to the subsequent

indictment, and (2) the speedy-trial statutes required the state

to bring all possible charges that the state had knowledge about

at the time that it filed the 2015 indictment. Appellant

additionally argues that the speedy-trial statutes required the

state to include the current charges in the 2015 bill of

information, because the current charges arise out of the same

acts or transaction alleged in the 2015 bill of information.

Appellant states that even though the charges alleged in the

current indictment occurred at a different time from the charges

set forth in the 2015 bill of information, the present charges

are “factually related to the charges in the prior case.”

{¶14} Appellee counters that even if it knew of the 2012

financial disclosure statement when it filed the 2015

indictment, the second indictment is subject to a new speedy- 8 VINTON, 20CA723

trial time frame because it contains additional crimes based on

different facts.

{¶15} “Review of a speedy-trial claim involves a mixed

question of law and fact. Therefore, we defer to the trial

court’s factual findings if they are supported by competent,

credible evidence, but we review the application of the law to

those facts de novo.” State v. Long, — Ohio St.3d —, 2020-Ohio-

5363, — N.E.3d —, ¶ 15; accord State v. Howerton, 4th Dist.

Lawrence No. 20CA2,

,

, ¶ 11; State

v. Spencer,

,

, ¶ 16 (4th Dist.);

State v. Brooks,

,

(4th

Dist.).

{¶16} The United States and the Ohio Constitutions guarantee

an accused the right to a speedy trial. The Sixth Amendment to

the United States Constitution states that an “accused shall

enjoy the right to a speedy and public trial.” Section 10,

Article I of the Ohio Constitution guarantees to the party

accused in any court “a speedy public trial by an impartial

jury.”

The availability of a speedy trial to a person accused of a crime is a fundamental right made obligatory on the states by the Fourteenth Amendment. See Klopfer v. North Carolina (1967),

,

,

; State v. Singer (1977),

,

,

, at fn. 2. The speedy- 9 VINTON, 20CA723

trial provision is “‘an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.’ United States v. Ewell,

,

,

, (1966) * * *.” United States v. Marion (1971),

,

,

.

State v. Adams,

,

(1989).

{¶17} Ohio’s speedy trial provisions, R.C. 2945.71 to

2945.73, “constitute a rational effort to enforce the

constitutional right to a public speedy trial of an accused

charged with the commission of a felony or a misdemeanor.”

State v. Pachay,

,

(1980),

syllabus; accord State v. Martin,

, 2019-Ohio-

2010,

; State v. Parker,

,

,

; Brecksville v. Cook,

,

(1996). To that end, R.C.

2945.71 designates specific time requirements for the state to

try an accused. State v. Hughes,

,

(1999).

{¶18} R.C. 2945.71(C)(2) requires a person accused of a

felony to be brought to trial within 270 days of the

individual’s arrest. Additionally, R.C. 2945.71(D) states:

A person against whom one or more charges of different degrees, whether felonies, misdemeanors, or combinations of felonies and misdemeanors, all of 10 VINTON, 20CA723

which arose out of the same act or transaction, are pending shall be brought to trial on all of the charges within the time period required for the highest degree of offense charged, as determined under divisions (A), (B), and (C) of this section.

{¶19} Courts must “strictly construe the speedy trial

statutes against the state,” Brecksville v. Cook,

,

(1996), and must “strictly enforce the

legislative mandates evident in these statutes.” Pachay,

; e.g., State v. Parker,

,

,

. Consequently, “[t]he

prosecution and the trial courts have a mandatory duty to try an

accused within the time frame provided by the statute.” State

v. Ramey,

,

,

, ¶

14. If an accused is not brought to trial within the time

limits set forth in the speedy trial statutes, and if an

exception does not apply, R.C. 2945.73(B) requires the court,

upon motion at or before trial, to discharge the accused.

{¶20} In the case sub judice, appellant does not claim that

the state failed to bring him to trial within 270 days after his

arrest or indictment for the current charges. Instead,

appellant asserts that the current charges arise out of the same

set of facts as the 2015 indictment. Appellant therefore

contends that the speedy-trial provisions required the state to 11 VINTON, 20CA723

bring him to trial within the time frame that applied to his

2015 indictment, which expired long ago.

{¶21} When the state files an initial indictment against an

accused and then files a subsequent indictment, the subsequent

indictment is not subject to the speedy-trial deadline of the

initial indictment if either of the following apply: (1) the

subsequent indictment charges additional offenses that “arise

from facts distinct from those supporting an original charge”;

or (2) “the state was unaware of such facts” at the time it

filed the initial indictment. State v. Baker,

,

(1997); see also Parker at ¶ 20

(stating that “speedy-trial time is not tolled for the filing of

later charges that arose from the facts of the criminal incident

that led to the first charge”). Accordingly, “the speedy-trial

clock resets when the state brings new charges based on either

(1) facts different from those supporting the original charges

or (2) lack of knowledge, at the time the original indictment is

filed, of the facts supporting the new charges.” State v.

Parker, 6th Dist. Lucas No. L-18-1238,

,

, ¶ 69.

{¶22} Courts that determine whether “offenses in multiple

indictments are truly different” generally review whether the

offenses “arise from different circumstances, require different 12 VINTON, 20CA723

evidence, and are otherwise distinguishable in a significant

way.” State v. Jones, 2nd Dist. Montgomery No. 21974, 2008-

Ohio-1603,

, ¶ 10. “The ‘key question’ to ask * *

* is ‘whether all of the offenses at issue arose out of the same

set of facts.” Parker,

, quoting State

v. Mohamed, 10th Dist. Franklin No. 08AP-960,

, ¶

32. “If they did not, the state is able to take advantage of a

new speedy-trial timetable regardless of when it learned of the

facts it needed to indict the defendant on the new charges.”

{¶23} The Ohio Supreme Court’s decisions in Adams and Baker

help to illustrate the foregoing rules. In Adams, the court

determined that the subsequent indictment arose out of the same

set of facts as the initial indictment. In that case, the state

first charged the defendant with operating a motor vehicle while

under the influence of alcohol in violation of R.C.

4511.19(A)(3). The defendant waived the speedy-trial time for a

total of 35 days. The state later asked the court to enter a

nolle prosequi, and the trial court dismissed the charge. A day

after the court dismissed the charge, the state filed a second

complaint against defendant that charged him with operating a

motor vehicle while under the influence of alcohol in violation

of R.C. 4511.19(A)(1). The defendant filed a motion to dismiss 13 VINTON, 20CA723

and alleged that the state had failed to bring him to trial

within the prescribed time period. The trial court overruled

the defendant’s motion.

{¶24} On appeal to the Ohio Supreme Court, the defendant

argued that the state failed to bring him to trial within the

90-day period applicable to misdemeanors. The defendant alleged

that the waiver that he entered in the first case did not apply

to the second case so as to extend the time within which to

bring him to trial.

{¶25} The supreme court first determined that the speedy-

trial time that applied to the first charge also applied to the

second charge, because the second charge “stemmed from the

original set of facts which gave rise to the [initial] charge.”

Id. at 68. The court explained:

“[W]hen new and additional charges arise from the same facts as did the original charge and the state knew of such facts at the time of the initial indictment, the time within which trial is to begin on the additional charge is subject to the same statutory limitations period that is applied to the original charge.”

Id. at 68, quoting State v. Clay,

,

(1983).

{¶26} The court next concluded that the defendant’s waiver

in the first case did not apply to the second case. The court

stated: “when an accused waives the right to a speedy trial as 14 VINTON, 20CA723

to an initial charge, this waiver is not applicable to

additional charges arising from the same set of circumstances

that are brought subsequent to the execution of the waiver.”

Id. at 70. The court thus determined that the trial court

should have granted the defendant’s motion to dismiss.

{¶27} In Baker, the Ohio Supreme Court concluded that a

subsequent indictment was not subject to the same speedy-trial

deadline as the original indictment when, at the time that it

filed the first indictment, the state was unaware of the facts

alleged in the subsequent indictment. In Baker, law enforcement

officers arrested the defendant, a pharmacist, after the

defendant made several illegal sales of drugs to police

informants. The officers also executed search warrants for the

defendant’s pharmacies. During the search, the officers

obtained numerous business and financial records. The state

subsequently reviewed the records to determine whether any

additional criminal offenses had occurred.

{¶28} One week after the defendant’s arrest, the state

charged the defendant with two counts of drug trafficking and

five counts of aggravated drug trafficking. These charges

related to the controlled buys that had occurred before the

defendant’s arrest and the search of his pharmacies. 15 VINTON, 20CA723

{¶29} After the defendant’s indictment, the state audited

the defendant’s business and financial records. Nine months

after the state completed the audit, the state filed an

additional indictment that charged the defendant with eight

counts of drug trafficking, one count of aggravated drug

trafficking, and one count of Medicaid fraud.

{¶30} The defendant filed a motion to dismiss the second

indictment on speedy-trial grounds and argued that the speedy-

trial statutes required the state to bring him to trial for the

subsequent charges within the 270-day period that applied to the

charges contained in the first indictment. The trial court

overruled the defendant’s motion to dismiss.

{¶31} On appeal, the appellate court reversed and determined

that the speedy-trial clock for the second indictment had begun

on the date of the defendant’s arrest for the first indictment.

The state then appealed to the Ohio Supreme Court. The supreme

court considered “whether Ohio’s Constitution or speedy-trial

statute requires additional criminal charges filed in a

subsequent indictment to run from the date of defendant’s

original arrest, with time tolled during the state’s audits of

seized evidence, or whether the statute allows the state a new

time period from the date of the subsequent indictment.” Id. at

110. The court acknowledged its Adams holding that “subsequent 16 VINTON, 20CA723

charges made against an accused would be subject to the same

speedy-trial constraints as the original charges, if additional

charges arose from the same facts as the first indictment.” Id.

The court did not, however, find that Adams applied when “the

subsequent charges [are] based on new and additional facts which

the state had no knowledge of at the time of the original

indictment.” Id. The court explained:

“[I]n issuing a second indictment against the defendant, the state was not subject to the speedy- trial time limits of the original indictment, since the subsequent charges were based on new and additional facts which the state had no knowledge of at the time of the original indictment. Additional crimes based on different facts should not be considered as arising from the same sequence of events for the purposes of speedy-trial computation. See, e.g., State v. Singleton (C.P. 1987),

,

.

.

{¶32} The court observed that the original indictment was

based upon facts learned during controlled buys that occurred

before the defendant’s arrest and before the search of his

pharmacies, and that the second indictment was based upon

evidence discovered after the search of the defendant’s

pharmacies. The court determined that requiring “the state to

bring additional charges within the time period of the original

indictment, when the state could not have had any knowledge of

the additional charges until investigating later-seized 17 VINTON, 20CA723

evidence, would undermine the state’s ability to prosecute

elaborate or complex crimes.”

The court concluded that

because “the charges in the second indictment stem from

additional facts which the state did not know of before the

audits, the state should be accorded a new 270–day period

beginning from the time when the second indictment was

returned.”

. The court ultimately held:

When additional criminal charges arise from facts distinct from those supporting an original charge, or the state was unaware of such facts at that time, the state is not required to bring the accused to trial within the same statutory period as the original charge under R.C. 2945.71 et seq.

.

{¶33} In the case at bar, the state did not allege that it

was unaware of the facts when it filed the initial indictment.

Instead, the state argues that the second indictment involves

criminal charges that arise from facts that are distinct from

those that supported the charges contained in the first

indictment.

{¶34} Appellant, on the other hand, argues that the charges

set forth in the second indictment are not factually distinct

from the charges contained in the first indictment. Appellant

contends that both indictments arose from the same investigation

and involve a similar course of conduct that occurred over a 18 VINTON, 20CA723

five-year period. Appellant thus asserts that the speedy-trial

deadline that applied to the first indictment also applies to

the second indictment.

{¶35} The weight of Ohio authority appears to disagree with

appellant’s proposition that all criminal charges discovered

during an ongoing investigation must be brought at the same

time, or the state risks having the later charges dismissed on

speedy-trial grounds. For example, in State v. Skorvanek, 9th

Dist. No. 05CA008743,

,

, the court

rejected the defendant’s argument that when the state obtains

initial and subsequent indictments as result of a single

investigation, the speedy-trial clock begins to run on the date

applicable to the first indictment. In Skorvanek, the grand

jury returned two indictments, almost one year apart, that

charged the defendant with various drug offenses that occurred

on different dates in March and April 2004. The defendant

asserted that the state knew all of the facts that gave rise to

both indictments before it filed the first indictment and had

gathered all of the facts during a single investigation. The

defendant thus alleged that the speedy-trial time that applied

to the first indictment also applied to the second indictment.

The state, on the other hand, argued that the same speedy-trial 19 VINTON, 20CA723

time did not apply because the two indictments involved

different facts, different offenses, and different animus.

{¶36} The Skorvanek appellate court agreed with the state

and explained that, even though “both indictments stem from the

same investigation, the offenses [the defendant] is charged with

are the direct result of different events on different dates.”

Id. at ¶ 14. The court noted that one drug offense arose from a

March 10, 2004 controlled drug buy and that another offense

arose from a March 13, 2004 attempted drug buy. Additional

counts arose from conduct that occurred on other dates. The

court stated that “while the investigation of [the defendant]

may have been ongoing, the offenses with which he is charged

were separate and distinct from one another.” Id. at ¶ 15. The

court thus agreed with the state that the defendant “was charged

with different offenses, on different dates stemming from

different events.” Id. at ¶ 16. The court therefore determined

that the second indictment was not subject to the same speedy-

trial deadline as the first indictment.

{¶37} The Eleventh District Court of Appeals rejected an

argument that multiple indictments based upon an ongoing

investigation are subject to the same speedy-trial deadline when

the state knew about the facts that gave rise to the criminal

charges at the time it filed the first indictment. State v. 20 VINTON, 20CA723

Smith, 11th Dist. Ashtabula No. 2004-A-0089,

,

. In Smith, the state first charged the

defendant based upon evidence that task force officers

discovered during a search of the defendant’s residence. About

six months later, the state charged the defendant for additional

drug-related offenses that occurred during controlled drug buys

on various dates between September and November 2002. The

defendant filed a motion to dismiss the second indictment on

speedy-trial grounds, but the trial court overruled it. On

appeal, the appellate court did not agree with the defendant

that the second indictment was subject to the same speedy-trial

deadline as the first indictment, but instead determined that

the facts set forth in the indictments were separate and

distinct. Moreover, the court noted that “[e]ven though all the

charges in question were a function of an ‘ongoing

investigation,’ the multiple prosecutions did not arise from the

‘same facts’ or ‘same set of circumstances.’” Id. at ¶ 27. The

court thus concluded that the second indictment did not violate

the defendant’s right to a speedy trial.

{¶38} In the case sub judice, we conclude that the second

indictment, even though it arises from facts discovered during

the same investigation, is based upon facts separate and

distinct from the facts alleged in the first indictment. The 21 VINTON, 20CA723

first indictment charged appellant with eight counts of

falsification, and alleged that the conduct occurred between

January 1, 2009 and January 1, 2012. The second indictment

charged appellant with different offenses–tampering with records

and forgery–and alleged that the conduct occurred on a different

date–May 14, 2013. Moreover, the second indictment is based

upon a 2012 financial disclosure statement that had not been

included in the original charges. The subsequent and original

indictments, although arising from the same investigation,

involved “different offenses, on different dates stemming from

different events.” Skorvanek at ¶ 16. We, therefore, agree

with the trial court’s conclusion that the speedy-trial time

that applied to the first indictment does not apply to the

second indictment. See Parker,

(noting that “Baker involved subsequent indictments, all of

which were the result of the same investigation, but the charges

were the direct result of different events on different dates”);

Parker,

(concluding that subsequent

indictment not subject to speedy-trial time of initial

indictment when the offenses occurred on different dates and

involved separate sets of facts); State v. Graham, 10th Dist.

Franklin No. 18AP-636,

,

, ¶ 30

(determining that speedy-trial time of first indictment did not 22 VINTON, 20CA723

apply to second indictment when charges involved break-ins at

different locations on different dates); State v. Hyde, 2nd Dist.

Clark No. 2013CA41,

,

, ¶ 18

(concluding that speedy-trial time of first indictment did not

apply to second indictment when charges involved robberies that

occurred “at separate locations on different dates”); but see

State v. Jones, 2nd Dist. Montgomery No. 21974,

,

, ¶ 10 (declining to read Baker to mean that when

“the State knew additional facts and circumstances warranting

additional charges when the initial indictment was filed, it may

nonetheless hold back on those charges simply because the

offenses occurred on different dates, and then pursue multiple

prosecutions, with the speedy trial time to run anew each

time”).2

{¶39} Moreover, we do not agree with appellant that the case

at bar is similar to the facts in State v. Horsley, 4th Dist.

Ross No. 10CA3152,

,

. In Horsley,

2 We observe that Jones appears to be distinguishable from the case at bar. In Jones, the state first charged the defendant for one count of rape involving a 13-year-old child. Several months later, the state charged the defendant with four additional counts of rape that involved the same child. The appellate court noted that, even though the rape offenses allegedly occurred on different dates, the record did not clearly indicate whether “‘the facts and evidence underlying the first charge and the second indictment differed in any material 23 VINTON, 20CA723

this court considered whether a subsequent indictment was

subject to the same speedy-trial time as an earlier indictment.

In Horsley, the defendant crashed his vehicle into an outside

wall at a hotel. Law enforcement arrested the defendant for

operating a motor vehicle while under the influence (OMVI) and

the violation of a protective order. He remained jailed for

about nine days.

{¶40} Approximately four months after the defendant’s

arrest, the state filed an indictment that charged appellant

with vandalism for the property damage caused when he crashed

his vehicle into the hotel. The defendant filed a motion to

dismiss the charges on speedy-trial grounds and asserted that

the speedy-trial clock for the vandalism charge started at the

time of his arrest for OMVI and violating a protective order.

The trial court overruled the defendant’s motion.

{¶41} This court reversed the trial court’s decision that

overruled the defendant’s motion to dismiss the indictment and

noted that the vandalism indictment arose from the same set of

facts as the defendant’s earlier arrest for OMVI and violating a

protection order. We also determined “that the state knew, or

should have known, of the facts constituting the vandalism

way.’” Id. at ¶ 14, quoting State v. Jones, 2nd Dist. Montgomery No. 20862,

. 24 VINTON, 20CA723

offense at the time of appellant’s [earlier] arrest.” Id. at ¶

18. We recognized that unlike the situation in Baker, the state

was not required to extensively investigate so as to uncover

“the operative facts constituting the vandalism offense.” Id.

at ¶ 21. Instead, we noted that at the time of the defendant’s

arrest, the law enforcement officer observed the property damage

to the hotel and had valued the property involved at $5,000. We

thus rejected the state’s argument that, in order to correctly

charge the vandalism offense, the state had to know the precise

amount of damage that the defendant caused. We explained that

even if the officer “did not know the exact amount of the

property involved or the exact amount of the damage, the

vandalism statute does not require such knowledge in order to

indict a defendant.” Id.

{¶42} In the case sub judice, we believe that appellant’s

second indictment does not arise out of the same set of facts

that are alleged in the first indictment. Unlike Horsley when

the second indictment was based upon the series of events that

occurred on the same date as the offenses first charged, the

second indictment in the case sub judice is based upon different

offenses that occurred on different dates more than one year

apart. We therefore do not find Horsley controlling. 25 VINTON, 20CA723

{¶43} Consequently, because we do not agree with appellant

that the second indictment is subject to the same speedy-trial

deadline as the first indictment, we overrule appellant’s first

assignment of error.

II

{¶44} In his second assignment of error, appellant asserts

that the record does not contain sufficient evidence to support

his convictions for tampering with records and forgery. In

particular, appellant contends that the state failed to present

sufficient evidence to show that he falsified the financial

disclosure statement “with purpose to defraud or knowing that

the person is facilitating a fraud.” Appellant argues that

evidence that he repaid the funds four months before he filed

the financial disclosure statement and, that when he repaid the

funds he listed the amounts on a form filed with the Vinton

County Auditor, negates the state’s allegation that appellant

acted with a purpose to defraud or knew that he was facilitating

a fraud when he filed the financial disclosure statement.

{¶45} The state argues that, when appellant submitted his

financial disclosure statement, he had a “specific intention to

deceive the Ohio Ethics Commission by falsely representing his

creditors.” The state thus asserts that appellant knew that

disclosing the information might lead to an investigation into 26 VINTON, 20CA723

his use of the FOJ fund and might “have exposed him to criminal

sanction, civil liability, a grievance with Disciplinary

Counsel, or simply the embarrassment of his financial situation

being made public.” The state further contends that appellant

received a benefit by using the funds–he was able to pay for

services that he otherwise was unable to afford, and that he

obtained an interest-free loan while the amounts remained

unpaid.

{¶46} Initially, we observe that, although the trial court

found appellant guilty of tampering with records and forgery,

the trial court merged the forgery offense with the tampering

with records offense. Thus, if sufficient evidence supports

appellant’s tampering with records conviction, an erroneous

verdict on the merged count would be harmless. State v. Powell,

,

(1990) (“Since the trial

court merged the kidnapping convictions with one another, [the

defendant] received only one sentence for kidnapping and an

erroneous verdict on Count Three would be harmless beyond a

reasonable doubt.”); State v. Wolff, 7th Dist. Mahoning No.

07MA166, 2009–Ohio–2897, ¶ 70 (“When a trial court dispatched

with a count through merger, any error in the jury’s verdict on

the merged count is rendered harmless beyond a reasonable

doubt.”); see State v. Williams, 4th Dist. Scioto No. 11CA3408, 27 VINTON, 20CA723

2012–Ohio–4693, ¶ 54 (concluding that because a trial court does

not impose a sentence for merged offenses, a defendant is not

“convicted” of merged offenses and thus there is no “conviction”

on merged offenses for appellate court to vacate).

Consequently, if we determine that sufficient evidence supports

appellant’s tampering with records conviction, we need not

address appellant’s sufficiency of the evidence argument

regarding the merged offense. Therefore, we first address

appellant’s arguments regarding the tampering with records

conviction.

{¶47} A claim of insufficient evidence invokes a due process

concern and raises the question whether the evidence is legally

sufficient to support the verdict as a matter of law. State v.

Thompkins,

,

(1997).

“Whether the evidence is legally sufficient to sustain a verdict

is a question of law.”

“Therefore, our review is de novo.”

State v. Groce, – Ohio St.3d —,

, — N.E.3d —, ¶ 7,

citing In re J.V.,

,

,

.

{¶48} When reviewing the sufficiency of the evidence, our

inquiry focuses primarily upon the adequacy of the evidence;

that is, whether the evidence, if believed, reasonably could

support a finding of guilt beyond a reasonable doubt. 28 VINTON, 20CA723

Thompkins, syllabus. The standard of review is whether, after

viewing the probative evidence and inferences reasonably drawn

therefrom 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. Jackson v.

Virginia,

,

,

(1979); State v. Jenks,

,

(1991). Furthermore, a reviewing court is not to assess

“whether the state’s evidence is to be believed, but whether, if

believed, the evidence against a defendant would support a

conviction.” Thompkins,

(Cook, J.,

concurring).

{¶49} Thus, when reviewing a sufficiency-of-the-evidence

claim, an appellate court must construe the evidence in a light

most favorable to the prosecution. State v. Hill,

,

(1996); State v. Grant,

,

(1993). A reviewing court will not

overturn a conviction on a sufficiency-of-the-evidence claim

unless reasonable minds could not reach the conclusion that the

trier of fact did. State v. Tibbetts,

,

(2001); State v. Treesh,

,

(2001). 29 VINTON, 20CA723

{¶50} In the case at bar, R.C. 2913.42(A)(1) sets forth the

essential elements of a tampering-with-records offense:

No person, knowing the person has no privilege to do so, and with purpose to defraud or knowing that the person is facilitating a fraud, shall * * * (1) Falsify, destroy, remove, conceal, alter,

deface, or mutilate any writing, computer software,

data, or record.

{¶51} R.C. 2913.01(B) defines “defraud” as “to knowingly

obtain, by deception, some benefit for oneself or another, or to

knowingly cause, by deception, some detriment to another.”

“‘Deception’ means knowingly deceiving another or causing

another to be deceived by any false or misleading

representation, by withholding information, by preventing

another from acquiring information, or by any other conduct,

act, or omission that creates, confirms, or perpetuates a false

impression in another.” R.C. 2913.01(A).

{¶52} R.C. 2901.22(A) and (B) define when a person acts

purposely and when a person acts knowingly:

(A) A person acts purposely when it is the person’s specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is the offender’s specific intention to engage in conduct of that nature. (B) A person acts knowingly, regardless of purpose, when the person is aware that the person’s conduct will probably cause a certain result or will 30 VINTON, 20CA723

probably be of a certain nature. A person has knowledge of circumstances when a person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.

{¶53} We observe that “‘[t]he intent of an accused person

dwells in his mind’” and that intent “‘can never be proved by

the direct testimony of a third person.” State v. Johnson,

,

(1978), quoting State v.

Huffman,

,

(1936), paragraph four of

the syllabus. Instead, intent “‘must be gathered from the

surrounding facts and circumstances under proper instructions

from the court.’”

quoting Huffman, paragraph four of the

syllabus; e.g., State v. Conway,

, 2006-Ohio-

791,

, ¶ 143; State v. Garner,

,

,

(1995). We further

observe that “[i]ntention is a question of fact, and not one of

law.” Koenig v. State,

,

(1929); State v. Wamsley, 6th Dist. Butler No. CA2002–05–109,

2003–Ohio–1872, ¶ 18.

{¶54} In the case sub judice, appellant relies upon three

cases to support his argument that the state did not present

sufficient evidence to establish that he acted with purpose to 31 VINTON, 20CA723

defraud or knew that he was facilitating a fraud. State v.

Truckey,

,

(11th Dist.); State v.

Agee,

,

(8th Dist.); State v.

Baumgarden,

,

,

(12th Dist. 1988). Appellant contends that all three

cases show that when a defendant does not take steps to hide the

facts underlying the basis of the criminal charge, the evidence

is insufficient to establish an intent to defraud.

{¶55} In Baumgarden, the court concluded that the evidence

failed to show that the defendant committed theft by deception.

In Baumgarden, the defendant served as the general manager for

his employer, Cedar City Motors, Inc. During his employment, he

wrote 35 checks to himself that were recorded on the company’s

books. The state later charged the defendant with theft by

deception.

{¶56} After a bench trial, the court found the defendant

guilty. On appeal, the defendant asserted, in part, that the

state failed to present sufficient evidence to establish that he

had committed theft by deception. The defendant argued that

because the checks were on the company’s books and open to

inspection at any time, he could not have intended to deceive

anyone. 32 VINTON, 20CA723

{¶57} The appellate court agreed with the defendant and

explained:

the amount appellant allegedly stole was clearly carried on the company balance sheet either as a prepaid expense or as an account receivable throughout the period in which the deception allegedly occurred. These checks as well as the company’s books and records created an accounting and auditing trail anyone might follow. Melissa Knoop, Cedar City’s owner, and the state contend appellant stole the money the thirty-five checks represent because Knoop trusted appellant to run Cedar City and did not discover the checks until appellant was no longer with the company. However, the fact that the checks and company records showing appellant received the money were always available to anyone who wished to examine them, including Knoop, convinces us no reasonable trier of fact could conclude beyond a reasonable doubt that Knoop was deceived by appellant because his check writing was evident in Cedar City’s records. Knoop’s testimony that she trusted appellant and did not closely oversee his management of Cedar City does not prove appellant deceived her but merely shows that she was unaware of and did not approve his actions.

Id. at 25. The court thus reversed the trial court’s judgment

of conviction for theft by deception.

{¶58} In Agee, the court determined that the state failed to

present sufficient evidence to support the defendant’s tampering

with records conviction. The state charged the defendant with

tampering with records based upon her alleged failure to

properly report her income when filing reports with the Ohio

Department of Jobs and Family Services in order to receive food

stamps. At trial, the state relied upon a single witness, Fred 33 VINTON, 20CA723

Sims, who reviewed the case file that the original investigator

transferred to him. Sims stated that he did not have any

interactions with the defendant and that he did not “conduct any

components of [the] investigation.” Id. at ¶ 8. Instead, Sims

explained that he relied upon the case file transferred to him.

{¶59} The defendant testified and stated that she had

reported her income to the caseworkers and that at least two

redetermination forms were missing from evidence.

{¶60} After the trial court found the defendant guilty of

tampering with records, the defendant appealed. On appeal, the

defendant asserted that the state failed to present sufficient

evidence to support her tampering with records conviction. The

appellate court agreed and explained:

The highly speculative nature of [the state]’s evidence also fails to demonstrate that [the defendant]’s act of executing the reports was “knowing * * * and with a purpose to defraud.” [The defendant] testified that she truthfully provided information and that she did not know how the case worker arrived at the figure inserted in the interim report submitted for [the defendant]’s signature. Sims could only offer that the tax information was averaged to determine a monthly income, and that it appeared the investigator did not seek any other information from [the defendant] to allow her to address the issue. Even where faced with information contained in the state’s interim report exhibit indicating the submission of at least one prior report containing knowledge of a change in income, the absence for which could not be explained, the state argues that [the defendant] was required to explain the absence. The burden of proof is the state’s 34 VINTON, 20CA723

responsibility. As stated previously, Sims was never [the defendant]’s case worker. In fact, Sims was never a case worker. Sims never personally investigated [the defendant]’s case, talked with [the defendant], or met [the defendant]. Sims merely received [the defendant]’s file, and his testimony regarding [the defendant]’s knowledge was purely speculative. Illustrative here as to the sufficiency of the evidence and [the state]’s failure to meet its burden of proof, is the statement by Sims regarding the various workers whose names appeared on the case documents. “[U]sually, as a rule, we usually subpoena those people, bring them in.” (Tr. 81.) The failure to follow that protocol underlies our decision here that, when viewed in a light favorable to the prosecution, the evidence in this case was insufficient to convict [the defendant] of the charges. The state failed to meet its burden of proof as to the mens rea element of the charges.

Id. at ¶¶ 62-64. The court thus reversed the trial court’s

judgment convicting the defendant of tampering with records.

{¶61} In Truckey, the defendant, a former sergeant with the

Ashtabula County Sheriff’s Department, appealed his conviction

for tampering with records based upon his failure to return a

body camera video after taking it home. On appeal, the court

noted that the tampering with records statute required the state

to prove, beyond a reasonable doubt, that the defendant

falsified, destroyed, removed, concealed, altered, defaced, or

mutilated a record with purpose to defraud. Id. at ¶ 16. The

court determined that “[t]he only possible conduct by [the

defendant] that could satisfy the actus element of th[i]s 35 VINTON, 20CA723

statute[] was taking a copy of the body cam video to his home.”

Id. at ¶ 17. The court noted that the state did not present any

evidence to show that the defendant attempted “to conceal the

fact he possessed a copy of the video.” Id. The court stated

that “[n]o less than four other members of the village police

department were aware a video existed and what it contained, and

that [the defendant] had a copy–which information was made known

to them by [the defendant] himself.” Id. The court thus

concluded that the state failed to present sufficient evidence

that the defendant had falsified, destroyed, concealed, altered,

defaced, or mutilated a record. The court did observe, however,

that the defendant arguably “removed” the body camera video, but

nevertheless found that, even if the defendant’s conduct

satisfied the actus reus element of the statute, the facts and

circumstances did not show that he had acted with the intent

necessary to commit tampering with records. The court observed

that “[n]ot only was it known that [the defendant] possessed a

copy [of the video], but nothing he did suggests a purpose to

impair its value as evidence or defraud.” Id. Thus, the court

concluded that the evidence failed to show that the defendant

“did anything to alter or conceal or prevent access to the copy

of the body cam video–or that he ever had such a purpose.” Id.

at ¶ 19. 36 VINTON, 20CA723

{¶62} Appellant asserts that, just like the defendants in

Baumgarden, Agee, and Truckey, he also did not attempt to hide

his use of the FOJ funds for personal reasons. Appellant points

out that he disclosed his use of FOJ funds on January 3, 2013,

when he submitted his annual report to the Vinton County

Auditor. However, we do not agree that appellant’s conduct in

the case sub judice is similar to the defendants’ conduct in

Baumgarden, Agee, and Truckey.

{¶63} First, in Truckey, the state did not allege, and none

of the evidence indicated, that the defendant falsified a

record. Instead, the allegation involved the defendant

concealing or removing a record. The court noted that all

interested parties knew that the defendant had the record, a

body camera video, in his possession.

{¶64} In the case at bar, by contrast, the state alleged

that appellant falsified a record (his 2012 financial disclosure

statement) by failing to list the FOJ fund as a creditor. The

state did not allege that appellant concealed or removed a

record, but, instead alleged that appellant falsified his 2012

financial disclosure form by failing to disclose that he owed

the FOJ fund more than $1,000. Moreover, the evidence does not

show that all interested parties knew that appellant used the

fund for personal expenses. Appellant listed the expenses on 37 VINTON, 20CA723

the January 2013 form that he filed with the auditor, but did

not list the FOJ fund as a creditor when he filed his 2012

financial disclosure statement. Thus, we find Truckey

inapposite.

{¶65} We likewise find Baumgarden unpersuasive. In

Baumgarden, the checks always were recorded on the company’s

books. None of the evidence established that the defendant kept

his use of company funds secret for any length of time. In the

case sub judice, however, even if appellant eventually listed

the expenses on his annual report submitted to the county

auditor, none of the evidence suggests that before that

disclosure, appellant’s personal use of the FOJ fund was readily

detectable or recorded as part of an official financial record.

{¶66} We believe that Agee also is inapposite. In that

case, the court determined that the state did not prove that the

defendant failed to properly report her income. By contrast, in

the case at bar, the state presented evidence that appellant’s

2012 financial disclosure statement did not list the FOJ fund as

a creditor. Thus, the case at bar does not involve a complete

lack of proof. Instead, this case is about whether the evidence

that the state submitted demonstrates that appellant had a

purpose to defraud or knew that he facilitated a fraud. 38 VINTON, 20CA723

{¶67} We agree with the state and the trial court that the

facts in the case at bar are more closely aligned with State v.

Burge, 9th Dist. Lorain No. 16CA010936,

,

. In Burge, the defendant, a judge, filed financial

disclosure forms that failed to list a bank as a creditor, a

business that he and his wife owned, and his ownership interest

in commercial property. The state presented evidence to show

that the defendant had approved appointed counsel fees for two

attorneys who rented office space in the defendant’s commercial

property. One attorney testified at trial that the attorney

would have been unable to pay rent if he did not make money.

The state later charged appellant with several criminal

offenses, including tampering with records. A jury subsequently

found the defendant guilty of three counts of tampering with

records and three counts of falsification.

{¶68} After his conviction, the defendant appealed and

asserted, in part, that the state failed to present sufficient

evidence to support his tampering with records conviction. The

appellate court did not agree with the defendant. Instead, the

court concluded that, viewing the evidence “in a light most

favorable to the State,” shows “that any rational trier of fact

could have found beyond a reasonable doubt that [the defendant]

was guilty of tampering with records in violation of R.C. 39 VINTON, 20CA723

2913.42(A)(1).” Id. at ¶ 36. The court continued that if the

factfinder believed the evidence, the evidence demonstrated that

the defendant “knowingly obtained a benefit for himself, namely

a revenue stream for tenants of the commercial building for

which he was the primary guarantor.” Id. The court further

determined that the evidence also established that the defendant

“obtained this benefit through deception, namely by purposely

not disclosing the requisite information on his 2011, 2012, and

2013 financial disclosure forms which would have placed the

public on notice that he had a potential conflict of interest

with certain criminal defense attorneys.” Id. The court thus

affirmed the defendant’s tampering with records conviction.

{¶69} Similarly, in the case at bar appellant filed a

financial disclosure statement that failed to list the FOJ fund

as a creditor. He obtained a benefit by spending money that he

otherwise would have been unable to spend (appellant had

informed investigators that he used the FOJ fund when he did not

have enough money in his personal accounts) and obtaining an

interest-free loan from the FOJ fund. By failing to list the

FOJ fund as a creditor on his financial disclosure statement,

appellant avoided Ohio Ethics Commission scrutiny and possible

criminal or civil liability or disciplinary actions. Even

though the record does not contain direct evidence that 40 VINTON, 20CA723

appellant intended to defraud, the facts and circumstances

allowed the factfinder to determine that appellant possessed an

intent to defraud. State v. Bergsmark, 6th Dist. Lucas No. L-

03-1137,

,

, ¶ 24, quoting State v.

Lee (Nov. 23, 1983), 4th Dist. No. 82 X 16 (“To have purpose to

defraud, ‘one must merely knowingly intend to obtain some

benefit or cause some detriment to another by way of

deception.’”).

{¶70} We therefore do not agree with appellant that the

state failed to present sufficient evidence to support his

tampering with records conviction. Additionally, because

sufficient evidence supports appellant’s tampering-with-records

conviction, any error the court may have committed by finding

appellant guilty of the merged offense, forgery, is harmless.

Thus, we need not consider appellant’s assignment of error as it

relates to the forgery offense.

{¶71} Accordingly, based upon the foregoing reasons, we

overrule appellant’s second assignment of error and affirm the

trial court’s judgment.

JUDGMENT AFFIRMED. 41 VINTON, 20CA723

JUDGMENT ENTRY It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Vinton County Common Pleas Court to carry this judgment into execution. If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of 60 days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the 60-day period. The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the 45-day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said 60 days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Smith, P.J., Abele, J. & Hess, J.: Concur in Judgment & Opinion

For the Court

BY:_______________________________ Jason P. Smith, Presiding Judge

BY:_______________________________ Peter B. Abele, Judge

BY:_______________________________ Michael D. Hess, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.