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State v. Hickey

Court of Appeals of Ohio, Seventh District, Harrison

June 20, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
RYAN HICKEY, Defendant-Appellant.

          Criminal Appeal from the Court of Common Pleas of Harrison County, Ohio Case No. CRI 2017-0019

          Atty. T. Owen Beetham, Harrison County Prosecutor, and Atty. Jeffrey J. Bruzzese, Assistant Prosecuting Attorney, 111 W. Warren Street, P.O. Box 248, Cadiz, Ohio 43907, for Plaintiff-Appellee and

          Atty. Travis Collins, 105 Jamison Avenue, Cadiz, Ohio 43907, for Defendant-Appellant.

          BEFORE: David A. D'Apolito, Gene Donofrio, Cheryl L. Waite, Judges.

          OPINION AND JUDGMENT ENTRY

          D'APOLITO, J.

         {¶1} Appellant, Ryan Hickey, appeals from the June 7, 2018 judgment of the Harrison County Court of Common Pleas, sentencing him to community control sanctions for theft by deception involving a construction contract following a bench trial. On appeal, Appellant argues the trial court erred (1) in overruling his Crim.R. 29(A) motion, (2) alleges a document was improperly admitted into evidence, (3) and that his conviction was not supported by the manifest weight of the evidence. Finding no reversible error, we affirm.

         FACTS AND PROCEDURAL HISTORY

         {¶2} On April 10, 2017, Appellant was indicted by the Harrison County Grand Jury on one count of theft by deception, a felony of the fourth degree, in violation of R.C. 2913.02(A)(3). Appellant entered a not guilty plea at his arraignment. Appellant waived his rights to a speedy trial and to a jury trial.

         {¶3} A bench trial commenced on March 27, 2018.

         {¶4} Jackie Polito was the sole witness to testify at trial. Mrs. Polito testified for Appellee, the State of Ohio, that Appellant was engaged in a landscaping business as owner/operator. In March 2016, Mrs. Polito met Appellant's officer manager, Scott Sudzina, at a home show in Pennsylvania. Mrs. Polito was interested in having a patio/landscape project done at her home in Harrison County. She made arrangements to have Appellant's company come out to her residence. About one week after the home show, Appellant met with Mrs. Polito at her home. Appellant reviewed plans which had already been drawn by another company for an exterior renovation extending off an existing porch.

         {¶5} Before hiring Appellant for this project, Mrs. Polito examined Appellant's business website and business Facebook page in order to determine whether he was operating a legitimate business. She also went to Appellant's business to check out the operation. Feeling satisfied at that point, Mrs. Polito hired Appellant to construct a patio, fireplace, retaining wall, and waterfall, at a total cost of $36, 000. The parties entered into a "Residential Services Engagement Contract" on April 29, 2016. (State's Exhibit 3). The contract states in part:

         {¶6} "CONTRACT TERMS

         {¶7} "This is an agreement between 'Customer,' as noted above, and RJ Hardscaping and Landscaping LLC ('RJ'), 110 Penn Shaft Drive Irwin, Pa 15642. * * *

         {¶8} "PAYMENTS

         {¶9} "All deposits are non-refundable. Unless otherwise agreed upon, Customer will pay RJ 25% of the Contract Price upon signing and acceptance of the Proposal. Customer will pay RJ 50% of the Contract Price the day work begins. Customer will pay RJ 15% of the Contract Price the day the concrete work is completed. RJ will invoice Customer for the remaining 10% when work is 'substantially complete,' as determined by RJ, where the Customer can make use of the work performed and ordinarily only minor work remains. * * *

         {¶10} "* * *

         {¶11} "PROJECT START, COMPLETION, CHANGE ORDERS and DELAYS

         {¶12} "An estimate of the number of days to complete the contracted work and an expected start date are provided as a courtesy and are also required for both RJ and Customer planning and scheduling purposes. There may be delays in the beginning date and completion date due to poor weather or other circumstances beyond the control of RJ. Those delays will not alter or invalidate any part of this Contract, nor will they entitle Customer to additional rights under the Contract. * * *"

         {¶13} The contract listed May 16, 2016 as the tentative start date and specified that the project would take eight days to complete. Appellant assured Mrs. Polito that the project would be completed before the Politos' Fourth of July family reunion. Pursuant to the terms of the contract, Mrs. Polito mailed a $9, 000 deposit (25% of the total amount) to Appellant in the form of a check. (State's Exhibit 1).

         {¶14} Throughout the month of May, the anticipated start date for the project to begin continually was delayed and rescheduled. Appellant finally started at the Polito residence on June 6, 2016, which mainly consisted of excavation work. Scott and two workers were present that day. Pursuant to the terms of the contract, Scott requested $18, 000 (50% of the total amount) from Mrs. Polito so that Appellant could order additional block for the patio. Scott made it clear to Mrs. Polito that he could not leave without receiving the extra funds. Mrs. Polito wrote a check to Appellant for $18, 000 on that date. (State's Exhibit 2).

         {¶15} The next day, June 7, two workers went to the Polito residence to complete more excavation work. Those same two employees showed up again on June 8. On June 9, nobody arrived and no work was performed. On that date, Mrs. Polito conversed with Appellant via phone. During that conversation, Appellant assured Mrs. Polito that block would be delivered to her home the following Monday, June 13. Appellant further assured her that once the block was there, they would spend two days building the wall and would then lay concrete the following day to begin the patio work. Appellant gave Mrs. Polito a work schedule for June 13 through 16 for the work that was to be completed, but which never occurred.

         {¶16} Contrary to Appellant's assurances, no materials were delivered and no workers arrived at the Polito residence on June 13. Mrs. Polito tried all day to contact Scott. Scott ended up sending Mrs. Polito an email claiming that the delivery truck had broken down on the way to her home. (State's Exhibit 5). On June 16, Scott sent another email to Mrs. Polito indicating that he was trying to find out what was going on and stating that Appellant is "M.I.A.," i.e., short for missing in action. (State's Exhibit 6).

         {¶17} Later on June 16, Mrs. Polito contacted her bank to inquire whether she was able to stop payment on the $18, 000 check. However, a representative from the bank informed her that the check had already been cashed and the money cleared. Also on that date, Mrs. Polito attempted to visit Appellant's business website again. That site no longer existed. Mrs. Polito also attempted to visit Appellant's business Facebook page again. That page also no longer existed. Mrs. Polito tried calling Appellant and Scott all day, however, there was no answer. Mrs. Polito blocked her number and finally called Scott on his cell phone. Mrs. Polito believes Scott picked up the phone but it is unclear from the record whether the two conversed at that time. It is clear from the record, however, that Appellant never returned to complete the work and never refunded any monies received from Mrs. Polito.

         {¶18} Mrs. Polito testified that she received notice on June 23, 2016 that Appellant's business would be filing bankruptcy. On the docket from the bankruptcy case, U.S. Bankruptcy Court, Western District of Pennsylvania (Pittsburgh), Bankruptcy Petition No. 16-23447-GLT, several other allegations of fraud and deception were alleged for money paid for work that was never performed. The court document from the bankruptcy filings included Mrs. Polito as a creditor/party to Appellant's bankruptcy. The document was admitted into evidence, over Appellant's objection, as a public record. (State's Exhibit 8).

         {¶19} Mrs. Polito went on to state that she felt deceived, lied to, and tricked by Appellant, especially with respect to the $18, 000 payment, which she felt pressured into paying even though it was part of the contract terms. It was clear to Mrs. Polito that the minimal work performed on June 6, 7, and 8, was only performed in order to delay her from stopping payment on the $18, 000 check. Mrs. Polito felt led on by a conversation with Appellant that materials were being ordered and work would resume on June 13. In addition, during the time between the delivery of the second check and that check clearing Mrs. Polito's bank account, she indicated that Appellant made representations to her that all of the work would be completed before her family Fourth of July reunion. Mrs. Polito reiterated that within a week of all of this occurring, Appellant's business website and business Facebook page were taken offline. The work that was performed consisted of little more than digging the beginnings of a foundation. Mrs. Polito stated that Appellant's work was so sloppy that a subsequent contractor had to re-do everything.

         {¶20} At the close of the State's case, defense counsel moved for an acquittal pursuant to Crim.R. 29, ...


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