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State v. Vertucci

Court of Appeals of Ohio, Ninth District, Summit

May 17, 2017

STATE OF OHIO Appellee
v.
ALLAN VERTUCCI Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2015 07 2165

          JAMES L. BURDON, Attorney at Law, for Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          TEODOSIO, Judge.

         {¶1} On January 29, 2016, a jury found the Appellant, Allan Vertucci, guilty of the offense of theft from a person in a protected class. Mr. Vertucci appeals the order of the Summit County Court of Common Pleas convicting him of the offense, sentencing him to a term of three years, and ordering restitution. We affirm.

         I.

         {¶2} This case arises out of a business relationship whereby Mr. Vertucci, a building contractor, worked on a series of projects at the victims' residence for a period of just over two years. In June 2012, the victims hired Mr. Vertucci to repair their roof. Over the period of the next two years, through July 2014, the victims paid Mr. Vertucci approximately $80, 000.00 for a series of projects, plus additional funds of approximately $7, 000.00 that went towards materials. Despite being at the residence six days a week during this period, most of these projects languished in a state of disrepair, with the residence being described by the Summit County chief building official as a site of deconstruction, rather than a construction site. The official noted: "It actually look[ed] like someone was trying to demolish the home rather than put something together."

         {¶3} The chief building official further testified that projects were left uncompleted and not done in a workmanlike manner, and gave numerous examples. New windows were paid for by the victims, but never ordered or installed by Mr. Vertucci, despite the fact that he had removed the trim from the windows. An energized circuit was left exposed, wiring was left exposed, and an energized post switch was left hanging out, all of which were shock hazards. A surface light fixture over the shower was not completed. Kitchen and bath tile projects were incomplete and not installed in a workmanlike manner. A bathtub was removed, never to be replaced. The hall bathroom had been stripped and gutted, with the fixtures and plumbing removed. Bedroom and bathroom doors were removed and never replaced. Carpet was missing.

         {¶4} There had been attempts at patching numerous areas of water damage throughout the house, but it was not done in a workmanlike manner. Insulated foam board was left exposed in the basement, creating a fire hazard. A sump pump crock was left uncovered, and plumbing was left unfinished. The septic system was not completed and was not operational. Electrical wiring outside of the house was left exposed above the grade. The front yard was dug up and never filled, with water pooling for lack of drainage. A pipe carrying water to the street was incorrectly installed above grade, such that it could freeze. Foundation repairs were started but not completed, and grading was not properly done, and as a result, drainage was directed at the basement of the residence which caused the basement to flood. There was also testimony, however, that Mr. Vertucci did finish certain projects: the roof was repaired, a cabinet was constructed under a stairway, and certain projects in the foyer and kitchen were completed.

          {¶5} After complaints about the residence had been reported, the police conducted an investigation, and Mr. Vertucci was eventually charged with the offense of theft from a person in a protected class. After a jury trial, Mr. Vertucci was found guilty, sentenced to a prison term of three years, and ordered to pay restitution in the amount of $87, 617.50. Mr. Vertucci now appeals, raising three assignments of error.

         II.

THE EVIDENCE PRESENTED WAS INSUFFICIENT TO SUSTAIN A CONVICTION OF THEFT BY DECEPTION IN VIOLATION OF R.C. 2913.02(A)(3), DENYING TO DEFENDANT HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES.

         {¶6} In his first assignment of error, Mr. Vertucci argues that there was insufficient evidence to support the trial court's denial of his Crim.R. 29 motion for acquittal and to support the jury's verdict of guilty. We disagree.

         {¶7} Whether the evidence in a case is legally sufficient to sustain a conviction is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). "In essence, sufficiency is a test of adequacy." Id. This Court reviews questions of law under a de novo standard. State v. Trifari, 9th Dist. Medina No. 08CA0043-M, 2009-Ohio-667, ¶ 12.

         {¶8} "An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. "The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." Id.

         {¶9} The indictment set forth that Mr. Vertucci committed the crime of theft from a person in a protected class "in that he did, with purpose to deprive the owner, * * * an elderly person, of property or services, to wit: monies, knowingly obtain or exert control over either the property or services by deception * * * in violation of Section 2913.02(A)(3) of the Ohio Revised Code * * *." Mr. Vertucci argues that a contractor cannot be found guilty of theft by deception if he actually begins work on the project and asks us to apply the analysis used in State v. Chait, 9th ...


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