[Cite as State v. O'Donnell,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2020-CA-26 : v. : Trial Court Case No. 2020-CR-89 : SCOTT DOUGLAS O’DONNELL : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 17th day of September, 2021.

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JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, Champaign County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee

CHARLES M. BLUE, Atty. Reg. No. 0074329, 401 East Stroop Road, Kettering, Ohio 45429 Attorney for Defendant-Appellant

............. -2-

WELBAUM, J.

{¶ 1} Defendant-appellant, Scott Douglas O’Donnell, appeals from his conviction

in the Champaign County Court of Common Pleas after a jury found him guilty of one

count of grand theft. In support of his appeal, O’Donnell contends that his conviction

was not supported by sufficient evidence and was against the manifest weight of the

evidence. O’Donnell also contends that the trial court’s jury instructions were erroneous,

that his trial counsel provided ineffective assistance, and that the cumulative effect of all

the errors deprived him of a fair trial. Because the record establishes that O’Donnell’s

grand theft conviction was not supported by sufficient evidence, O’Donnell’s conviction

for grand theft will be vacated.

Facts and Course of Proceedings

{¶ 2} On May 11, 2020, a Champaign County grand jury returned an indictment

charging O’Donnell with one count of grand theft in violation of R.C. 2913.02(A)(2), a

felony of the fourth degree. The charges stemmed from a botched home construction

project that O’Donnell agreed to perform for Richard and Amelita King in exchange for

$93,700. It was alleged that O’Donnell knowingly used $41,000 of the project funds in a

manner that went beyond the scope of the Kings’ consent with the purpose to deprive the

Kings of those funds. O’Donnell pled not guilty to the charge, and the matter proceeded

to a jury trial. The following is a summary of the testimony and evidence that was

presented at trial.

{¶ 3} O’Donnell is a contractor in Urbana, Ohio, who owns Landon Lee

Construction. In the summer of 2017, the Kings approached O’Donnell to remodel their -3-

Urbana residence. After discussing the project, the parties agreed that O’Donnell would

install a front porch onto the Kings’ residence; extend the Kings’ living room to create an

open concept kitchen, dining, and living room area; move the Kings’ master bedroom to

the back of the house; and install a walk-in closet and sunroom to the Kings’ home.

{¶ 4} The parties did not execute a written construction contract but orally agreed

that the Kings would pay O’Donnell $93,700 for performing the aforementioned work to

their home. O’Donnell did, however, provide the Kings with a “Construction Cost

Breakdown” that generally itemized the cost of the entire project. See State’s Ex. 2.

O’Donnell also provided the Kings with a series of invoices that divided the work into four

phases. See State’s Ex. 3. The invoices listed the work that was to be performed during

each phase of the project and set forth the specific cost of each phase.

{¶ 5} The Kings worked with their bank, specifically loan officer Kerri Beavers, to

refinance their home so that they could obtain a loan to pay for the construction project.

The Kings successfully refinanced their home and Beavers placed the loan money in a

“construction process” account. From that account, the Kings could request the bank to

disburse funds to O’Donnell for the construction project as each phase of the project was

completed.

{¶ 6} On October 29, 2018, the Kings authorized their bank to pay O’Donnell

$24,000 to complete Phase I of the project, and the bank disbursed a check to O’Donnell

in that amount. The Phase I work included demolishing the front and rear of the Kings’

house, excavating for the footer and foundation, pouring the concrete footer and walls,

installing rebar reinforcement and window vents, laying pea gravel with a vapor barrier,

and relocating the gas line to the north end of the house. O’Donnell completed all of the -4-

work listed under Phase I by February 2019. After this work was completed, O’Donnell

requested funds for Phase II of the project.

{¶ 7} On February 6, 2019, the Kings authorized their bank to pay O’Donnell

$41,000 to complete Phase II of the project, and the bank disbursed a check to O’Donnell

in that amount. The Phase II work included purchasing materials for framing, purchasing

and installing doors and windows, pouring a concrete porch, installing insulation,

purchasing and installing roofing materials, and installing plumbing, electrical, and

drywall. However, after O’Donnell received the $41,000, the work on the Kings’ home

came to a halt.

{¶ 8} On June 18, 2019, after no work had been completed for four months, the

Kings received a letter from the Champaign County Building Regulations Department

(“Building Department”) stating that an application had been submitted on June 4, 2019,

for the “construction of room additions.” Defendant’s Ex. A. The letter advised that:

“The plans as submitted need additional information” and that “a site inspection by the

building inspector indicates the footing and foundation has already been installed without

the approval of the documents or required inspections.”

The letter directed the

Kings “to either secure the services of a registered design professional who shall provide

written verification that the work installed complies with the Residential Code of Ohio, or

remove the footing/foundation work and request a field inspection by [the Building

Department] after the plans have been approved and permit issued.”

{¶ 9} It was not until the Kings received the Building Department’s letter that they

realized O’Donnell had completed Phase I of the project without obtaining the necessary

permit. The Kings provided a copy of the Building Department’s letter to both O’Donnell -5-

and Beavers. When Beavers learned of the letter, she became concerned because the

letter indicated that the Kings would not be able to move forward with Phase II of the

project, which had already been paid for. Shortly after receiving the letter, Beavers

contacted O’Donnell and asked him to redeposit the $41,000 until the issue with the

Building Department was resolved. O’Donnell, however, assured Beavers that he was

working with his engineer to resolve the foundation permit issue so that he could move

forward with the project.

{¶ 10} On July 20, 2019, after O’Donnell failed to follow-up with Beavers, Beavers

sent a letter to O’Donnell requesting him to return the $41,000. See State’s Ex. 5.

Beavers and O’Donnell thereafter exchanged several text messages regarding the matter

and scheduled a meeting with the Kings. On August 20, 2019, Beavers and O’Donnell

met the Kings at the bank in order to discuss the Building Department’s letter. During

that meeting, Beavers and the Kings once again requested O’Donnell to return the

$41,000. In response, O’Donnell advised that he did not have the $41,000 because “he

had invested it in his business.” Trial Trans. Vol. I (Aug. 26, 2020), p. 261.

{¶ 11} On August 21, 2019, O’Donnell, Beavers, and the Kings met at the Building

Department’s office in order to determine how to get the foundation approved. While

there, the Building Department gave them several different options for moving forward

with the project. One of the options was to drill out a section of the foundation in order

to verify the presence of rebar reinforcement and to ensure that the depth of the walls

complied with building regulations. The Building Department indicated that as long as

an engineer certified that everything complied with the building regulations, it would

approve the requested permit and the project could move forward. -6-

{¶ 12} After meeting with the Building Department, O’Donnell scheduled a time for

an engineer to come out to the construction site and inspect the foundation. O’Donnell

attended the inspection, which took place on August, 30, 2019. On the day of the

inspection, O’Donnell sent a text message to Beavers stating that the rebar was “as

expected” and attached a photograph of the rebar reinforcement within the wall. State’s

Ex. 7, p. 678. O’Donnell also told Beavers via text message that they were “[d]oing

digging in just a few minutes,” and he agreed to keep Beavers posted on their progress.

Id. at 678-680. Beavers, however, did not hear back from O’Donnell.

{¶ 13} Approximately one week after the inspection took place, Beavers sent a text

message to O’Donnell asking for an update on the foundation issue. Beavers also asked

O’Donnell when he would be able to return the $41,000. O’Donnell responded to

Beavers’ text message by saying: “My engineer came out and inspected. He told me he

sent the letter to the city that everything was okay. I called him yesterday [and] he was

waiting to hear back from [the Building Department]. Working on putting things together

to return funds.” Id. at 681.

{¶ 14} A few weeks later, on September 20 and 23, 2019, Beavers sent two more

text messages to O’Donnell requesting him to update her on the status of the foundation

issue and the return of the $41,000. On September 23, 2019, O’Donnell responded:

“Haven’t heard anything from city” and “[d]oing what I can at the moment to get funds in

order.” Id. at 683-684.

{¶ 15} Shortly thereafter, on September 24, 2019, the Building Department sent a

second letter to the Kings that stated the following:

Following our discussions concerning the construction problems at -7-

your home, the drawings and application have been put on hold until such

time [as] another contractor makes a new application for the project.

Please note that the engineer has submitted his report concerning

the footing/foundation installation. The footings and foundations have

been structurally installed per code, however the required depth of the

footings are in non-compliance. The code required depth is 32” below

grade and the actual depth is 28” approximately.

This issue could be resolved in a number of ways which will be

discussed with the new builder.

Defendant’s Ex. B.

{¶ 16} Over the next four months, Beavers and O’Donnell remained in contact with

one another. Beavers continued to send text messages to O’Donnell asking him when

he was going to return the $41,000. On October 17, 2019, O’Donnell responded by

saying that he was: “Hoping to hear back from the bank. I will let you know as soon as I

get an answer back.” State’s Ex. 7 at 686. Approximately one month later, on

November 15, 2019, O’Donnell sent another text message to Beavers stating that he was

“[d]ealing with the attorney general with the matter mailing a letter out [M]onday for a

resolution.” Id. at 688. Then, on January 21, 2020, O’Donnell texted the following

message to Beavers:

Hello, [K]erri, this is Scott O’Donnell. This is my new number,

wanted to make sure you have it. I meet with an attorney Monday the 27th,

to go over financial obligations and my goal is to get things together to set

up payment arrangements and have a resolution over the [Kings’] project. -8-

I will get a hold of you once I leave the office so I can be on track with you

and the [Kings].

Id. at 690-691.

{¶ 17} On January 28, 2020, O’Donnell sent another text message to Beavers

saying: “I met with attorney yesterday. I * * * should be hearing back from him today[.]

I will keep you posted on progress[.] I think it’s time I meet with him so I can put things

together for both parties.” Id. at 693. The following day, O’Donnell text messaged

Beavers one last time and said: “Have appointment set up for Friday at [1:30 p.m.], I will

contact you as soon as I am out of meeting. I should have an answer for you and the

[Kings’] project.” Id. at 694. O’Donnell, however, never contacted Beavers after this

message, and O’Donnell never returned the $41,000.

{¶ 18} Except for purchasing and delivering framing materials for the floor joists,

O’Donnell did not perform any of the work under Phase II of the project. The Kings

reported the matter to the Urbana Police Department in December 2019. Sergeant

Shawn Schmidt investigated the matter and interviewed O’Donnell. During Sgt.

Schmidt’s interview, O’Donnell acknowledged that he had received $41,000 from the

Kings and that he had failed to complete Phase II of the project. O’Donnell also advised

Sgt. Schmidt that he had spent $7,200 of the $41,000 on framing materials for the floor

joists and that he did not have the rest of the money to return because his business was

possibly going bankrupt. Schmidt testified that he investigated O’Donnell’s financial

records and learned that O’Donnell only had $58 in his account at the end of March 2019.

{¶ 19} Following the State’s presentation of evidence, O’Donnell moved for a

Crim.R. 29 acquittal on grounds that the State had failed to establish the elements of -9-

grand theft under R.C. 2913.02(A)(2). The trial court overruled the motion and the matter

went to the jury. Following deliberations, the jury found O’Donnell guilty as charged.

The trial court thereafter sentenced O’Donnell to serve 16 months in prison and to pay

the Kings $34,000 in restitution plus court costs.

{¶ 20} O’Donnell now appeals from his conviction, raising four assignments of

error for review.

First Assignment of Error

{¶ 21} Under his first assignment of error, O’Donnell contends that his conviction

for grand theft in violation of R.C. 2913.02(A)(2) was not supported by sufficient evidence

and was against the manifest weight of the evidence. Upon review, we agree that

O’Donnell’s conviction was not supported by sufficient evidence.

{¶ 22} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581,

, citing State v. Thompkins,

,

(1997). “When reviewing a claim as to sufficiency of evidence, the relevant

inquiry is whether any rational factfinder viewing the evidence in a light most favorable to

the state could have found the essential elements of the crime proven beyond a

reasonable doubt.” (Citations omitted.) State v. Dennis,

,

(1997). “The verdict will not be disturbed unless the appellate court finds

that reasonable minds could not reach the conclusion reached by the trier-of-fact.”

(Citations omitted.)

“The issue of whether a conviction is supported by sufficient -10-

evidence is a question of law, which we review de novo.” State v. Campbell, 2d Dist.

Montgomery No. 26575,

, citing

.

{¶ 23} As previously noted, O’Donnell was convicted for grand theft in violation of

R.C. 2913.02(A)(2), which provides that:

No person, with purpose to deprive the owner of property * * *, shall

knowingly obtain or exert control over * * * the property * * * 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[.]

{¶ 24} The language in R.C. 2913.02(A)(2) therefore indicates that “[o]nce a

person lawfully has control over property with consent, that person cannot thereafter exert

control for a different purpose. * * * If the individual begins to use the property for

something outside what the owner specifically authorized, the individual has gone beyond

the owner’s consent.” State v. Dortch, 2d Dist. Montgomery No. 17700,

, *4 (Oct. 15, 1999); State v. Roberts, 2d Dist. Montgomery No. 26431, 2015-Ohio-

2716, ¶ 13.

{¶ 25} “[F]or a violation of R.C. 2913.02(A)(2), the State must prove that at the time

the defendant exceeded the scope of consent of the owner of the [property], he had the

intent to deprive the owner of the [property].” (Citations omitted.) State v. Coleman, 2d

Dist. Champaign No. 2002-CA-17,

. Pursuant to R.C.

2913.01(C)(3), the meaning of the term “deprive” includes “[a]ccept[ing] us[ing], or

appropriat[ing] money, property, or services, with purpose not to give proper

consideration in return for the money, property, or services, and without reasonable -11-

justification or excuse for not giving proper consideration.”

{¶ 26} In this case, there is no dispute that the Kings paid O’Donnell $41,000 for

purposes of completing Phase II of their home construction project. There is also no

dispute that O’Donnell received the $41,000 and invested a majority of it in his business

without ever completing Phase II of the project. Therefore, the pivotal issue raised by

O’Donnell in this appeal is whether he had the requisite intent to deprive the Kings of their

$41,000 when he obtained control over those funds and invested them in something other

than the Kings’ project. Accordingly, this court must determine whether there was

sufficient evidence presented at trial to establish that when O’Donnell used the $41,000

for something other than the Kings’ project, he intended not to give the Kings proper

consideration in return for their money.

{¶ 27} “Because it is difficult to prove a defendant’s mental state by direct

evidence, a defendant’s intent is determined by considering the surrounding facts and

circumstances.” (Citations omitted.) State v. Wells, 2d Dist. Champaign No. 2008-CA-

6,

. “It is therefore necessary to rely upon circumstantial evidence

to establish purpose or intent.” State v. Messer, 6th Dist. Lucas No. L-16-1109, 2017-

Ohio-1223, ¶ 21. To that end, “[e]vidence of a defendant’s conduct * * * may be used to

establish intent to commit theft.” (Citation omitted.) State v. Hammerschmidt, 9th Dist.

Medina No. CA2987-M,

, *3 (Mar. 8, 2000). “ ‘[P]ersons are presumed

to have intended the natural, reasonable and probable consequences of their voluntary

acts.’ ” Wells at ¶ 38, quoting State v. Garner,

,

(1995).

{¶ 28} In the context of a construction contract, this court has held that the -12-

performance of a significant amount of work under the contract demonstrates an intent to

perform under the contract. Coleman, 2d Dist. Champaign No. 2002-CA-17, 2003-Ohio-

5724, at ¶ 40. We therefore disagreed with the notion that the intent to deprive a

homeowner of their money could be inferred from a contractor’s failure to complete a

construction project where the evidence established that the contractor performed a

significant amount of the work.

In contrast, we held that not performing any of the

work under the contract or ordering any materials for the work amounted to evidence from

which a reasonable trier of fact could infer an intent to deprive the homeowner of his or

her money. Id. at ¶ 43.

{¶ 29} This court has also explained that simply using a homeowner’s money for

something other than materials for their project is not necessarily indicative of an intent

not to perform under the contract. Id. at ¶ 37. This is because, absent an agreement

for the contractor to use the homeowner’s money only on the homeowner’s project, the

contractor can do whatever he or she desires with the money so long as the contractor

performs under the contract. Id. at ¶ 38 and 40.

{¶ 30} This court has further held that when parties enter into a single construction

contract that sets forth an aggregate price for the work, and when the work is to be

performed and paid for in distinct phases, it is proper to consider the work performed “in

light of the contract as a whole.” Wells, 2d Dist. Champaign No. 2008-CA-6, 2009-Ohio-

908, at ¶ 45. For example, in Wells, the construction contract at issue was to be

performed in two distinct phases—the interior renovations and the exterior renovations—

with several draws related to each phase. Id. Although Wells did not perform any of

the exterior renovations (he simply ordered bricks that he never paid for), it was -13-

undisputed that Wells substantially completed the interior portion of the project. Id. at

¶ 44 and ¶ 46. Given all the work that Wells had performed after receiving the

homeowner’s money, this court held that the evidence did not support an inference that

Wells did not intend to perform the exterior portion of contract, as we found that Wells’

work “overwhelming demonstrate[d]” that he lacked the intent to deprive the homeowners

of their money. Id. at ¶ 46.

{¶ 31} Similar to Wells, the present case concerns a singular construction contract

that set forth an aggregate price for the work, which was to be performed and paid for in

four distinct phases. The evidence established that O’Donnell completed all the work

contemplated under Phase I of the project. This included demolishing the front and rear

of the Kings’ house, excavating for the footer and foundation, pouring the concrete footer

and walls, installing rebar reinforcement and window vents, laying pea gravel with a vapor

barrier, and relocating the gas line to the north end of the house. We find this to be a

significant amount of work that demonstrated O’Donnell’s intent to perform under the

contract.

{¶ 32} The evidence also established that after O’Donnell completed the work for

Phase I, and after the Kings paid O’Donnell the $41,000 for Phase II, O’Donnell

purchased $7,200 worth of framing material for the floor joists and had the framing

material delivered to the Kings’ residence. We find that this demonstrated that O’Donnell

intended to perform the work under Phase II of the project.

{¶ 33} We also find it significant that after O’Donnell received the $41,000 for

Phase II, he applied for a building permit, albeit late, with the Building Department. It is

also significant that O’Donnell tried to rectify the problem with the foundation after the -14-

Building Department advised that the permit he applied for could not be granted because

the foundation was installed without the necessary inspection and approval. For

example, shortly after learning of the foundation permit issue, O’Donnell spoke with

Beavers and assured her that he was working with his engineer to resolve the issue.

Thereafter, on August 20, 2019, O’Donnell met with Beavers and the Kings at the bank

to discuss how they could move forward with the project in light of the issue with the

foundation. O’Donnell also met with Beavers and the Kings at the Building Department’s

office building in order to inquire about what they could do in order to move forward with

the project. Furthermore, O’Donnell scheduled and attended the necessary inspection

to get the foundation approved. All of these actions taken by O’Donnell indicated that he

was attempting to rectify the issue with the foundation so that he could move forward with

the Kings’ project, which evidenced an intent to perform the agreed-upon work.

{¶ 34} The evidence also established that the Building Department effectively

banned O’Donnell from completing the Kings’ project after the inspection. Specifically,

the Building Department’s post-inspection letter to the Kings advised that their home

construction project had been “put on hold” until “another contractor makes a new

application for the project.” (Emphasis added.) Defendant’s Ex. B. The letter also

stated that the defect in the foundation “could be resolved in a number of ways which will

be discussed with the new builder.” (Emphasis added.) Id. This indicates that

O’Donnell did not voluntarily abandon the project and thus negates the inference that

O’Donnell failed to complete the Kings’ project with the intent to deprive the Kings of their

$41,000.

{¶ 35} The evidence further established that, after being effectively banned from -15-

the project, O’Donnell remained in communication with Beavers for four months in an

effort to update her on his attempt to return the $41,000. Specifically, the evidence

established that O’Donnell advised Beavers that he was working with his bank and the

attorney general in an attempt to return the funds. At one point, O’Donnell even

mentioned that he was attempting to set up a payment arrangement. Although

O’Donnell never returned the funds, his continued communication with Beavers regarding

his attempts to return the money and his statement to Sgt. Schmidt indicating that his

business was possibly going bankrupt, suggested that O’Donnell did not intend to deprive

the Kings of their money.

{¶ 36} When viewing the evidence in a light most favorable to the State and when

considering: (1) the significant amount of work that O’Donnell performed for Phase I of

the project; (2) the $7,200 worth of framing materials that O’Donnell purchased and

delivered for Phase II of the project; (3) the building permit that O’Donnell applied for after

receiving the $41,000; (4) all of the actions O’Donnell took in attempt to rectify the issue

with the foundation; and (5) O’Donnell’s communications with Beavers regarding his

attempt to return the $41,000, we do not find that a rational fact-finder could have found

beyond a reasonable doubt that O’Donnell intended to deprive the Kings of their money,

as the State did not present any evidence of the intent-to-deprive element of grand theft.

{¶ 37} We note that when ruling on O’Donnell’s Crim.R. 29 motion, the trial court

found that a reasonable factfinder could have concluded that O’Donnell intended to

deprive the Kings of their money simply because the evidence established that O’Donnell

was aware that no permit had been obtained for the work in Phase I when he accepted

the funds for Phase II. The trial court reached this conclusion because it inferred that, -16-

as a builder, O’Donnell knew that the lack of a permit for Phase I precluded his ability to

perform the work for Phase II. The evidence, however, established that despite

O’Donnell’s failure to get the necessary permit for Phase I, it was indeed possible for him

to work with the Building Department and complete Phase II as long as he had the

necessary inspection performed on the foundation and as long as the foundation was

approved and certified by an engineer. There was no evidence presented at trial

establishing that O’Donnell was the specific individual who poured the foundation or that

O’Donnell knew that the foundation depth was not in compliance with building regulations.

Most importantly, there was no evidence suggesting that O’Donnell knew his failure to

obtain the permit for Phase I would ultimately render him unable to complete the project.

{¶ 38} For the foregoing reasons, we disagree with the trial court’s analysis and

find that there was no evidence presented at trial to demonstrate that O’Donnell intended

to deprive the Kings of their $41,000 when he took control over those funds and invested

them in his business. Rather, the evidence of the surrounding facts and circumstances

established that O’Donnell intended to perform the agreed-upon work in Phase II, but

could not do so as a result of financial difficulties with his business. Therefore, the intent-

to-deprive element for grand theft under R.C. 2913.02(A)(2) was not satisfied, which

means that O’Donnell’s conviction for grand theft was not supported by sufficient

evidence. In light of this decision, it is unnecessary to address O’Donnell’s argument

that his conviction was against the manifest weight of the evidence.

{¶ 39} O’Donnell’s first assignment of error is sustained.

Second, Third, and Fourth Assignments of Error -17-

{¶ 40} Under his second, third, and fourth assignments of error, O’Donnell

contends that: (1) the trial court’s jury instructions were erroneous; (2) his trial counsel

provided ineffective assistance; and (3) the cumulative effect of all the errors deprived

him of a fair trial. However, given our resolution of O’Donnell’s first assignment of error,

we need not address these issues because O’Donnell’s grand theft conviction will be

vacated on grounds that it was not supported by sufficient evidence. Therefore,

O’Donnell’s second, third, and fourth assignments of error are overruled as moot.

Conclusion

{¶ 41} Having sustained O’Donnell’s first assignment of error, and having

overruled his second, third, and fourth assignments of error as moot, O’Donnell’s

conviction for grand theft is vacated.

.............

TUCKER, P.J. and EPLEY, J., concur.

Copies sent to:

Jane A. Napier Charles M. Blue Steven Hanna Hon. Nick A. Selvaggio