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State of Ohio v. Forest L. Gordon

November 7, 2011

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
FOREST L. GORDON,
DEFENDANT-APPELLANT. STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
FOREST L. GORDON,
DEFENDANT-APPELLANT.



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

The opinion of the court was delivered by: Willamowski, J.

Cite as State v. Gordon,

OPINION

Judgments Reversed and Causes Remanded

{¶1} Defendant-Appellant, Forest L. Gordon ("Gordon"), appeals the judgments of the Putnam County Court of Common Pleas finding him guilty of two counts of theft in office. On appeal, Gordon claims that the jury's decision was against the manifest weight of the evidence; that there was insufficient evidence to prove he utilized his office to facilitate the commission of the offenses; and that the trial court abused its discretion when it sentenced Gordon to more than minimum sentences for his first criminal offense. For the reasons set forth below, the judgments are reversed.

{¶2} Gordon was Chief of Police of the Village of Kalida from May 10, 2002 through July 25, 2007. On July 26, 2007, Gordon began serving as the Assistant Chief of Police for the Village of Ottawa, although he also continued working as a part-time police officer or "acting chief" for Kalida until October 12, 2007, when a new police chief, Michael Giblin ("Chief Giblin"), was hired. Beginning January 1, 2008, Gordon served as the Chief of Police for Ottawa until his termination on January 28, 2008,

{¶3} Gordon was indicted on two counts of Theft in Office, in violation of R.C. 2921.41(A)(1), involving charges in two separate cases which were combined for trial and appeal. Case No. 9-CR-19, appellate case No. 12-10-04 (hereinafter "the Ottawa firearms case"), involves the sale of firearms that belonged to the Ottawa Police Department. The State claimed that in 2006, Gordon sold several firearms without permission, including firearms from the evidence room and former service weapons, and only gave the Ottawa police chief a portion of the money he received from the sales. The second case, Case No. 9- CR-40, appellate case No. 12-10-05 (hereinafter "the Kalida property and services case," or "the Kalida case") dealt with three different matters in which the State maintained that Gordon: (1) deprived Kalida of ten hours of his services when he used the police department's computers for non-work related purposes, specifically Internet "sex chat" sessions; (2) overcharged two fellow Kalida police officers for handguns purchased through a lease/purchase agreement with Smith & Wesson; and (3) failed to return personal police equipment when he left Kalida's employ.*fn1

{¶4} Gordon entered pleas of not-guilty in both cases and a three-day jury trial was held in January 2010. The State presented testimony from numerous witnesses, including Chief Giblin; Richard Knowlton ("Chief Knowlton"), Ottawa's Chief of Police prior to Gordon, who then became the Safety Director of Ottawa; and Sammy Justice ("Agent Justice"), the special agent in the Major Crimes Division of the Ohio Bureau of Criminal Identification and Investigation ("BCI"), who was called upon to conduct the investigation. Numerous other police officers and village officials from Ottawa and Kalida also testified, along with individuals and gun store proprietors involved in the purchase and sale of the firearms involved in this case.

{¶5} Gordon testified in his own defense and denied any wrong-doing. Concerning the Ottawa firearms case, Gordon testified that Chief Knowlton gave him some unused service weapons and several old firearms from the evidence room and asked that he try to sell them to raise money for special drug programs that Ottawa wanted to implement. Gordon had once been a gun dealer, so he thought he could help his friend, Chief Knowlton, raise extra money by disposing of these old weapons. Gordon insisted that he gave Chief Knowlton all of the money that he received from the sale of the guns.

{¶6} As to the Kalida case, Gordon denied that he was the person who participated in the Internet instant message ("IM") conversations, testifying that at least nine or ten other Kalida police officers and employees had access to the computers; that everyone using the computer logged onto the one account that was set up in the name of "Forest Gordon"; that the account was not password protected; that the dates and times on the computer print-out logs might not be accurate because they were dependent upon the time/date settings on the computer, which could easily be changed; and that he did not use any of the screen names that were found in the "chat room" conversations.*fn2 Gordon further denies any "theft of time" from Kalida when using the computer because he testified that he was a salaried employee with no specific hours and that he was technically available for duty all the time, "24/7," and would often come to the office on his own time and use the computer for his own personal training and other purposes.

{¶7} Gordon also testified that he did not intend to overcharge the two Kalida police officers for their weapons and that he only charged them their share of what he believed to be the list prices of the guns on the lease/purchase program. He denied "pocketing" any extra money and testified that he sent all of the funds he received from the officers to Smith & Wesson for each quarterly lease payment.

{¶8} Lastly, Gordon claimed that he returned all of the uniforms and equipment that he believed to be Kalida's property when he left his employment. However, the State issued a search warrant and found some additional equipment at his home. Gordon testified that the holsters and leather equipment belts belonged to him because he had received some of them during his employment with other police departments prior to working for Kalida and that he had purchased some of this equipment himself through the Village of Kalida. He acknowledged that the body armor (a bulletproof vest) belonged to Kalida and should have been returned, but testified that it was in the back of his closet, he hadn't used it in years, and he had forgotten that it was there. If Kalida would have reminded him that he still had it or asked that it be returned, he would have immediately given it back. He believed the $31 car battery charger belonged to him, but again, he would have been happy to return it if it was truly Kalida's property.

{¶9} After hearing all the evidence, the jury returned a verdict of guilty on both counts. The Ottawa firearms case was a felony of the fifth degree because the jury found that it involved the theft of property valued at less than five hundred dollars. The Kalida case was a felony of the fourth degree, with the jury finding that it involved property "valued at more than five hundred dollars, but less than five thousand dollars."

{¶10} On March 26, 2010, the trial court sentenced Gordon to nine months in prison for the Ottawa firearms case and twelve months for the Kalida property case, with both sentences to be served concurrently. The trial court also ordered Gordon to pay restitution and costs and informed him that he would not be permitted to hold any positions of public trust thereafter. In the Ottawa Firearms case, Gordon was ordered to pay $485 in restitution to Ottawa. The restitution ordered in the Kalida property and services case was as follows: $57.80 and $233 to Officers Weaks and Strick for the gun lease overcharge, and $1,221.48 to the Village of Kalida. Gordon was released on his own recognizance pending appeal.

{¶11} Gordon now appeals these judgments and presents the following three assignments of error for our review.

First Assignment of Error

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

Second Assignment of Error

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

Third Assignment of Error

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

{¶12} Gordon maintains that the jury clearly lost its way and that its decision was against the manifest weight of the evidence. Gordon charges that the State presented testimony that was "unreliable, contradictory, self serving and lacking in substance" and also presented evidence that was designed to inflame the passions of the jury rather than persuade them with clear facts. Gordon also argued that there was insufficient evidence to support his conviction, and that sentencing him to non-minimum terms for a first offense was improper.

{¶13} The offense of Theft in Office, R.C. 2921.41(A), occurs when a public official commits any theft offense, as defined under R.C. 2913.01(K), and either one of the following applies: "(1) The offender uses the offender's office in aid of committing the offense ***;" or "(2) The property or service involved is owned by this state, any other state, the United States, a county, a municipal corporation, a township, or any political subdivision, department, or agency of any of them ***." The State charged Gordon under R.C. 2921.41(A)(1), claiming that he recklessly used his office to commit theft offenses in violations of R.C. 2913.02(A)(2) and/or (A)(3), which state:

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

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

(3) By deception; ***

{¶14} A challenge to a conviction based on the manifest weight of the evidence concerns "the inclination of the greater amount of credible evidence, offered in a trial to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief." (Emphasis sic.) State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.

{¶15} The State presented testimony from twenty different witnesses in support of its cases, along with 63 different documents and exhibits that were admitted into evidence. Sometimes several witnesses would provide corroborating testimony concerning a particular event, although there were many instances when the witnesses had different recollections as to what had occurred, or they "didn't remember" or "didn't recall." Most of the allegations against Gordon involved events that happened four or more years prior to the trial. In order to clarify the issues, we will review each count/case separately.

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

{¶16} The State claimed that Gordon sold several older firearms from Ottawa's evidence and property rooms, without permission, and that he did not give Chief Knowlton all of the money he received from the sale of these weapons. Gordon, however, insisted that Knowlton gave him the guns with the expectation that Gordon would sell them. Gordon also claimed that he gave Knowlton all of the proceeds from selling the weapons.

{¶17} Chief Knowlton acknowledged that sometime around late 2005 or early 2006, he gave Gordon several older and unused firearms from Ottawa's property and evidence rooms. However, he testified that he only expected Gordon to clean them up and get an estimate as to what they might be worth. He claimed he was shocked and surprised when Gordon sold them and gave him $900 from the sale of the firearms. The Ottawa municipal director, Jack Williams, testified that he was very upset when he learned that the weapons had been sold because that was not the proper procedure for disposing of property. There was conflicting testimony concerning the amount of money Gordon received from four different sales of Ottawa's firearms in January 2006.

{¶18} In his first assignment of error, Gordon argues that the trial court's decision was against the manifest weight of the evidence because the testimony concerning the gun sales was confusing and contradictory and that there was no definitive evidence that Gordon did not have permission to sell the guns. However, because Gordon's second assignment of error is dispositive of this issue, we shall address it first.

{¶19} In Gordon's second assignment of error concerning the Ottawa firearms case, Gordon argues that there was not sufficient evidence that Gordon used his position as an officer with the Village of Kalida in committing the offense pursuant to R.C. 2921.41(A)(1). Conviction for theft in office under this section requires both that the defendant was a public official and that he or she used his or her office in aid of committing the offense. Id. Gordon acknowledges that, as a police chief, he was a public official, and he does not contest that the facts alleged constituted a theft offense. However, he argues that the fact he was a police officer was only peripherally related to the alleged theft and he did not "use" his office in committing a theft offense.

{¶20} Gordon cites State v. Bowsher (1996), 116 Ohio App.3d 170, 687

N.E.2d 316, for the proposition that there must be some "palpable nexus between the auspices of the office and the wrongdoing" before a defendant can be convicted of "theft in office." Id. at 175. In that case, the defendant, Gary Bowsher, was a Toledo police officer who was also the volunteer treasurer of a police-firefighters organization which sponsored "guns and hoses" golf tournaments to raise money for charity. The charitable organization was not affiliated with the Toledo Police Department in any way, but the officer solicited and collected funds for these events and as treasurer of the organization. The officer took money from this fund and converted it to his own use. As a result, he was charged with Theft in Office under R.C. 2921.41(A)(1), which provides that "No public or party official shall commit any theft offense, *** when either of the following applies: (1) The offender uses the offender's office in aid of committing the offense or permits or assents to its use in aid of committing the offense[.]" Id.

{¶21} As in this case, the defendant in Bowsher also contended that the fact he was a police officer was only peripherally related to the alleged theft. Bowsher at 174. The state argued that had he not been a police officer, he would not have been involved with a police-firefighters charity, he would not have had access to an account at the Police Credit Union, and he could not have collected funds for charity while in uniform, on duty, and in a Toledo police vehicle.

{¶22} The court of appeals reversed the officer's conviction, finding that a tangible nexus was missing between the defendant's official duties as a police officer and the crime charged. Id. at 175, citing State v. Sakr, (1995), 101 Ohio App.3d 334, 655 N.E.2d 670. The court found that the officer did not take public funds nor public property. And, the fact that he had solicited the funds while in his police uniform had little, if any, relationship to when he later improperly withdrew $211 from the fund's account. Id. And finally, the court cited "the time-honored maxim that criminal statutes should be narrowly construed against the state." Id. at 176, citing State v. Young (1980), 62 Ohio St.2d 370, 374, 406 N.E.2d 499, 502.

{¶23} As in Bowsher, the theft offense in this case had nothing to do with Gordon's job and duties as a police chief of Kalida; in fact, it had nothing to do with the Village of Kalida at all. Gordon claimed he was merely doing a favor to help a friend, who just happened to be a fellow police officer. Chief Knowlton testified that he and Gordon were friends, and he knew that Gordon was someone who was familiar with guns. The fact that he was a fellow police officer may have had a peripheral relationship to Chief Knowlton and Gordon working together. However, just as in Bowsher, Gordon's position was not in any way related to the actual alleged theft offense. Furthermore, Chief Knowlton and the Village of Ottawa must not have thought that Gordon's actions in taking guns and selling them was wrong or criminal in any way because Chief Knowlton later hired Gordon to succeed him as Ottawa's police chief after Gordon had sold the guns. Chief Knowlton's actions in finding Gordon trustworthy enough to hire further demonstrate that there was a separation between the alleged act of theft and Gordon's position as a police officer.

{¶24} The State argues that the facts in Bowsher are distinguishable because the officer did not take any public funds or property whereas in this case, the firearms and funds obtained from their sale were the public property of the Village of Ottawa. However, the State chose to indict Gordon only for a violation of R.C. 2921.41(A)(1). It did not charge Gordon under R.C. 2921.41(A)(2), for a theft offense where "[t]he property or service involved is owned by this state, any other state, the United States, a county, a municipal corporation, a township, or any political subdivision, department, or agency of any of them ***." The State chose its theory of the offense at the time of the indictment. The State never argued at trial that section (A)(2) was applicable in this matter.

{¶25} Gordon did not have to be a police officer to obtain the firearms from his friend, Chief Knowlton, nor did he have to be a police officer to sell the firearms to third parties. And, whether or not he accurately accounted for all of the funds he may have received was in no way related to his position as a public official. Therefore, the nexus between the wrongdoing and the public office is nonexistent.*fn3 Gordon's second assignment of error is sustained pertinent to his conviction in the Ottawa firearm's case no. 9-CR-19, appellate case no. 12-10-04. This renders Gordon's first assignment of error in the Ottawa firearm's case moot, and it need not be addressed.

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

{¶26} This count in the indictment alleged three completely different instances of wrong-doing.*fn4 Because the three separate acts involved different facts and activities that occurred years apart, we will review each allegation individually for clarity of discussion.

{¶27} Although Gordon's arguments pertaining to these issues were included under the first assignment of error claiming that the decision was "against the manifest weight of the evidence," we find that his arguments actually raised the legal question as to whether or not there was sufficient evidence as a matter of law to sustain a conviction. Gordon consistently claimed that the State "failed to produce any evidence," "the record is completely lacking any evidence," and "there is no evidence," throughout his discussion of the issues raised.

{¶28} A conviction that lacks sufficient evidence of all of the elements of the offense is clearly also against the manifest weight of the evidence. However, when reviewing a case based upon the sufficiency of the evidence, an appellate court utilizes different standards. See Bryan-Wollman v. Domonko, 115 Ohio St.3d 291, 2007-Ohio-4918, 874 N.E.2d 1198. Because we find that Gordon has set forth arguments concerning the sufficiency of the evidence in the Kalida case, we will review the decision to determine whether there was sufficient evidence to find Gordon guilty of the offense.

{¶29} When reviewing the sufficiency of the evidence, our inquiry focuses primarily upon the adequacy of the evidence; that is, whether the evidence submitted at trial, if believed, could reasonably support a finding of guilt beyond a reasonable doubt. See State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541, 546 (stating, "sufficiency is the test of adequacy"); State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492, 503. The standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. Jenks, supra. This test raises a question of law and does not allow the court to weigh the evidence. State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. However, where "the evidence offered by the prosecution in support of the elements of the offense charged is so insubstantial and insufficient, and of such slight probative value, that it is not proper to make a finding beyond a reasonable doubt that appellant committed all of the acts constituting the elements of the offense, a reviewing court must reverse, rather than affirm, the conviction." State v. Fyffe (1990), 67 Ohio App.3d 608, 615, 588 N.E.2d 137. Additionally, only a concurring majority of an appellate panel is needed to reverse a judgment based upon the sufficiency of the evidence as opposed to the unanimous concurrence of all three appellate judges necessary for a reversal based upon the manifest weight. Thompkins, supra.*fn5

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

{¶30} Shortly after he took office, Chief Giblin ordered a forensic examination of the police department's two computers. The examiner testified that he found several "chat logs" from October and November 2004, showing that sexually oriented text conversations took place between persons identified as "Smith & Wesson 45," "Lonely Cop 38," Bad Angel 02," "Care Bear 4385," and others. (See Trial Exhibits 25, 32, and 37.) Furthermore, of the 15,486 images in the computer's memory, approximately 20-30 images showed adult nudity. The State compared the times Gordon was on duty with the times on the instant message chat print-outs and concluded that Gordon had deprived the village of ten hours of his services, at a rate of $15 per hour, when he was supposed to be working.

{¶31} Gordon denies that he was the person involved in the Internet chat sessions but he also claims that the State "failed to produce any evidence whatsoever that Gordon's alleged use of the Internet during work hours in any way deprived the Village of Kalida of services." He asserts that the record is completely lacking in any evidence that there were missed calls for service, lack of investigations, lack of enforcement of the law, or any other measures that would indicate that Gordon did not do his job. In support, he cites a recent Fifth District Court of Appeals case with similar facts wherein the court held that there was insufficient evidence that the public employee's unauthorized use of the computer constituted theft in office. See State v. Wolf, 5th Dist. No. 08-CA16, 2009-Ohio- 2018.

{¶32} In State v. Wolf, the superintendent of the city's wastewater treatment plant was found guilty of theft in office, unauthorized use of a computer, and solicitation after he admitted to spending over one hundred hours on the Internet, including accessing sexually oriented sites, when he should have been working. Id. As in this case, the state charged that the defendant was guilty of theft in office because he deprived the city of his services while he was engaging in the unauthorized usage of his computer. Id. at ¶69. However, the Fifth District Court of Appeals held that the trial court had erred in overruling the defendant's motion for acquittal on the charge of theft in office. The court found that there was insufficient evidence to support a theft conviction:

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

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


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