State v. Tucker

97 N.E.3d 1056

2017 Ohio 7735

STATE of Ohio, Plaintiff–Appellee,

v.Andre TUCKER, Defendant–Appellant.

No. 15AP–1123

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on September 21, 2017

On brief: Ron O'Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellee. Argued: Barbara A. Farnbacher.

On brief: Todd W. Barstow, for appellant. Argued: Todd W. Barstow.

DECISION

BROWN, J.

{¶ 1} This is an appeal by defendant-appellant, Andre Tucker, from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas following a jury trial in which he was found guilty of two counts of theft.

{¶ 2} On September 5, 2014, appellant was indicted in Franklin C.P. No. 14CR–4758 for two counts of theft, in violation of R.C. 2913.02, both felonies of the fifth degree. On January 28, 2015, appellant was indicted on an unrelated charge of burglary in Franklin C.P. No. 15CR–424.

{¶ 3} Both cases came for trial before a jury beginning October 19, 2015. The first witness for plaintiff-appellee, State of Ohio, in the theft case (No. 14CR–4758) was Dr. Jim Lahoski, the Superintendent of the North Central Ohio Educational Service Center ("NCOESC"). NCOESC is a non-profit educational entity with offices in Marion, Mansfield, and Tiffin, Ohio. NCOESC provides services to public and community (i.e., charter) schools, and those services include acting as a sponsor for community schools. NCOESC also works with a third-party company that "provides particular services to the community schools." (Tr. Vol. II–A at 9.)

{¶ 4} The Ohio Department of Education ("ODE") provides funding for community schools and is required to approve sponsorship contracts between a community school and a sponsor such as NCOESC. Dr. Lahoski testified there is a significant application process to obtain community school sponsorship. In October 2012, appellant contacted NCOESC and expressed "great interest in beginning a community or a charter school." (Tr. Vol. I at 35.) Dr. Lahoski and several administrators met with appellant, who made a "very convincing * * * presentation." (Tr. Vol. I at 5.)

Appellant subsequently entered into contracts with NCOESC to open two community schools, the Talented Tenth Leadership Academy ("TTLA") for Girls and the TTLA for Boys. Dr. Lahoski identified the state's exhibits Nos. 3 and 4 as contracts between the boards of NCOESC and TTLA.

{¶ 5} NCOESC employed appellant under two separate contracts; under the first, effective June 3 through July 31, 2013, appellant served as an educational consultant with duties which included "recruiting students, marketing, securing facilities, policy development, grant writing and securing food service proposals." (Tr. Vol. II–A at 29.) Under the second contract, a two-year agreement with an effective date of August 1, 2013 to July 31, 2015, appellant served as "superintendent, executive director, for [TTLA] with an annual salary of $70,982." (Tr. Vol. II–A at 29.)

{¶ 6} As a community school sponsor, NCOESC is responsible for monitoring the activities of schools with respect to issues of performance, safety, curriculum, and compliance. Among other requirements, Ohio law mandates minimum enrollment criteria for a community school (i.e., a minimum enrollment of 25 students).

{¶ 7} Dr. Lahoski testified that appellant lacked qualifications required by NCOESC to serve as the fiscal officer for TTLA for Girls or TTLA for Boys. Specifically, NCOESC requires a certificate indicating an individual is "licensed as a fiscal officer, a treasurer for such a school." (Tr. Vol. II–A at 51.)

{¶ 8} Dr. Lahoski testified as to the circumstances leading to the closure of TTLA for Girls and TTLA for Boys in fall 2013, including the fact that TTLA "failed to have the number of children they predicted." (Tr. Vol. II–A at 23.) TTLA was "paid by the state for the estimated number of 72 students when, in fact, on October 14, 2013, there were 14 in one school and * * * 12 in the other school, and the minimum requirement is 25 students." (Tr. Vol. II–A at 23.) Dr. Lahoski stated that TTLA also "failed to complete the proper record keeping," and "failed to provide proper * * * information to register the kids." (Tr. Vol. II–A at 23.) On November 20, 2013, NCOESC abolished appellant's position with NCOESC for failure to meet minimum requirements for enrollment and for safety issues involving the schools. NCOESC also suspended operation of the schools at that time.

{¶ 9} Thomas Holmes, legal counsel for NCOESC, testified that Ohio statutory law provides procedures for the distribution of remaining assets of a community school upon its closure; once a community school is suspended, all operations must cease, including financial activities. Holmes testified that he was involved in the distribution of assets after the closure of the two TTLA schools.

{¶ 10} Holmes identified state's exhibit No. 15 as "a check issued by the Ohio Department of Education in the amount of $6,317.96 * * * to Talented Tenth Leadership Academy for Girls, dated September 16, 2013." (Tr. Vol. II–A at 92.) He identified state's exhibit No. 16 as "a check issued by the Ohio Department of Education in the amount of $1,182.04 * * * to the Talented Tenth Leadership Academy for Boys, dated October 15, 2013." (Tr. Vol. II–A at 92.)

{¶ 11} On October 31, 2013, Holmes e-mailed appellant regarding the "return of missing property and these two checks issued by the Department of Education." (Tr. Vol. II–A at 94.) On November 1, 2013, appellant "indicated that he would return those two checks to Mandy France, * * * the fiscal officer of both community schools at the time." (Tr. Vol. II–A at 94.) Several weeks later, Holmes had a telephone conversation with appellant concerning the two checks, and appellant "indicated that he did not have the checks. He said they were locked in a storage facility at the building where the community school was previously located." (Tr. Vol. II–A at 94.) Holmes followed up with written correspondence to appellant on November 21, 2013, stating it was necessary for him to return the checks; Holmes never received the checks from appellant. Holmes testified that NCOESC suspended operations of the community schools, at the latest, on November 9, 2013.

{¶ 12} NCOESC assigned one of its employees, Mandy France, to serve as Treasurer/Fiscal Officer for TTLA for the 2013–2014 school year. France's duties included maintaining the records of the school at all times during her term of assignment. A payment from the state to a community school is termed "a foundation settlement payment." (Tr. Vol. II–A at 144.) As treasurer, France was the only individual authorized to spend funds from TTLA accounts. France opened two accounts with Chase Bank to handle the funds for TTLA for Girls and TTLA for Boys; according to France, all community school funds were to be placed in those accounts.

{¶ 13} France testified that she never received the check issued by ODE to TTLA in the amount of $6,317.96 (state's exhibit No. 15) for deposit into the Chase Bank account. France similarly testified that she never received the check issued by ODE to TTLA in the amount of $1,182.04 (state's exhibit No. 16) for deposit into the Chase Bank account. On November 1, 2013, France resigned from her responsibilities as fiscal officer for TTLA because of a "lack of cooperation and the leadership that it needed to carry through with the school due to the school closing." (Tr. Vol. II–A at 140.)

{¶ 14} Cody Loew is the assistant director of ODE's Office of Budget and School Funding, and his responsibilities include ensuring that ODE makes accurate and timely payments to community schools. Loew became aware that TTLA for Girls and TTLA for Boys closed after "issues were brought to our attention that there were safety and health concerns." (Tr. Vol. II–B at 10.) Once a school is closed, ODE acts to "completely stop the payments to them and move to collect any funds that are owed back to [ODE]." (Tr. Vol. II–B at 11.) In the event of a closure, the sponsor of a community school acts as the receiver for the school.

{¶ 15} Loew identified state's exhibit Nos. 15 and 16 as foundation settlement payment checks issued by ODE to TTLA for the purpose of educating students, operating schools, and paying teacher salaries. According to Loew, the checks were not used for their intended purposes. Loew testified that a fiscal officer for NCOESC contacted ODE about attempting to reconcile foundation settlement payments "because they couldn't find these checks." (Tr. Vol. II–B at 7.) Loew related that ODE "started to look into it; we looked up the Ohio treasury website, found these checks, found that the signatures on the back did not match checks for previous foundation checks, looked further into the warrant number to find that these checks were deposited into bank accounts that weren't the primary ones for the school." (Tr. Vol. II–B at 7.) The ODE treasury found "no record of these [checks] being deposited into the actual accounts for the school." (Tr. Vol. II–B at 7.) ODE subsequently "turned it over to the police for further investigation." (Tr. Vol. II–B at 7.)

{¶ 16} Columbus Police Detective Todd Schiff is a member of the department's economic crime unit which investigates white collar financial crimes. Detective Schiff became involved in the investigation of TTLA after ODE filed a report with the Columbus Police Department. The detective, after speaking with officials at ODE as well as employees of NCOESC (Dr. Lahoski and France), learned that two ODE checks issued to TTLA had not been deposited into the designated accounts with Chase Bank. ODE informed the detective that the checks had been deposited into an account with Charter One Bank ("Charter One"), opened in the name of TTLA for Girls. Appellant's signature appeared on the signature card for the account, and appellant's home address was listed as the address on the account. The Charter One account had...