Court of Appeals of Ohio, Eleventh District, Portage
Criminal Appeals from the Portage County Court of Common
Pleas. Case Nos. 2016 CR 00863 & 2017 CR 00061.
V. Vigluicci, Portage County Prosecutor, and Pamela J.
Holder, Assistant Prosecutor, 241 South Chestnut Street,
Ravenna, OH 44266 (For Plaintiff-Appellee).
C. Buchanan, Slater & Zurz, One Cascade Plaza, Suite
2210, Akron, OH 44308 (For Defendant-Appellant).
TIMOTHY P. CANNON, J.
Appellant, James R. Burns, appeals from the December 18, 2017
judgment entry of the Portage County Court of Common Pleas
finding him guilty on two counts of Grand Theft, felonies of
the fourth degree, in violation of R.C. 2913.02(A)(3). We
affirm in part and reverse and vacate in part the trial
court's judgment, and the matter is remanded.
Appellant Burns operates a construction company incorporated
and doing business as Brookstone General Contractors by
Design, Inc. ("Brookstone"). Initially, Burns was
indicted on December 1, 2016, on three counts of Grand Theft
and one count of Theft from a Person in a Protected Class.
Subsequently, a second indictment was issued by the grand
jury on January 31, 2017, for one count of Grand Theft.
Each count of the indictments, tried together in Case No.
16-CR-0863 (4 counts) and Case No. 17-CR-0061 (1 count),
relates to contracts for Burns to perform construction
services for the alleged victims. However, each of the two
counts of which Burns was convicted contains highly different
facts and circumstances that are in dispute. For that reason,
we present the facts with regard to each count separately.
No. 16-CR-0863, Count 4 ("The Lassiter
Ms. Kathy Lassiter contracted with Burns, d.b.a. Brookstone,
in the fall of 2014 to build a house on property she owned in
Portage County. This was an all-inclusive home construction
agreement; as stated by Ms. Lassiter, the agreement was to
"[b]uild us a house that we can move right in to."
Ms. Lassiter was referred to Burns through Carter Lumber in
The contract required payment to be made in portions as work
was done on the home. The original total contract price was
for $107, 798.99. The contract was signed on September 5,
2014; however, construction on the house did not begin until
March 2015. There was no completion date established in the
contract, although Ms. Lassiter claimed that the work was
promised to be completed "by Thanksgiving, no later than
Various issues arose during the construction of the house
based on the topography. Because of these issues, there were
disputes between the parties as to the design, constant
delays, and workmanship of the project. Among the issues was
that Burns hired a subcontractor named Dennis Miller who dug
the foundation too deep; drainage issues arose with the
adapted crawlspace due to the lower elevation of the land.
Burns also had issues receiving permits for the project.
Burns attributed delays in construction to Ms. Lassiter's
son, who was supposed to complete electrical work and took
several months to do so. Burns also testified as to a major
dispute regarding the design of the kitchen, whereby Ms.
Lassiter insisted on a substantially more expensive design
than called for in the contract for which she refused to pay
any extra money. In short, the full payment for constructing
the kitchen under the original contract was to be $7, 000.00;
however, the kitchen cabinets alone selected by Ms. Lassiter
were over $8, 000.00. Ms. Lassiter wrote Burns a check for
$8, 000.00 to purchase the kitchen cabinets, but the money
was never used for that purpose. Burns claims that the
kitchen dispute is what led to his termination as contractor
on the project, but Ms. Lassiter denies ever terminating
Ms. Lassiter also complained about the quality of the work
done; however, she did not produce any evidence to
substantiate her claim. She testified that she was told
evidence of the work quality was not necessary because
"this isn't a civil case." Burns produced
photographic evidence that contradicted her claims of poor
As far as completion, Brookstone successfully set a
foundation, erected framing and a roof without gutters,
windows, siding, rough plumbing, and shingling. Construction
occurred starting in March 2015 and continuing until October
Burns testified that in October 2015, Ms. Lassiter's
boyfriend, Lee Stouffer, confronted Burns about the lack of
progress on the project. Soon thereafter, Burns sent two
workers to retrieve all the tools and other property left at
the site, including property that should not have been taken
and was later returned. The parties dispute whether Burns was
terminated by Lee Stouffer, on behalf of Ms. Lassiter, before
having his tools and other equipment retrieved from the
project site following the confrontation. Mr. Stouffer did
Thereafter, Ms. Lassiter hired a new contractor, and the
house was completed in approximately seven months. She also
hired an attorney who drafted a demand letter seeking to
settle with Burns. Ms. Lassiter was notified two or three
days later that Burns had filed for bankruptcy. She testified
that she did not participate as a creditor in the bankruptcy
because, ". . . it was just a joke . . . And we know
that he has pulled this off on several different people . . .
We felt it was gonna be a waste of time." Further, her
testimony indicated that no civil action was pursued because
Ms. Lassiter mistakenly believed that the contract for the
project required her to pay Burns' attorney fees for a
Ms. Lassiter paid a total of $81, 814.65 out of the $107,
798.99 contract price to Burns for the construction. This
included a check for $8, 000.00 written on August 14, 2015,
for kitchen cabinets that were never ordered. Burns never
used the $8, 000.00 on kitchen cabinets. He claims to have
used the money towards completion of the house prior to being
terminated. Ms. Lassiter paid a total of $61, 997.29 to the
second contractor to have the house completed. She therefore
paid a total of $36, 021.95 over the amount contracted to be
paid to Burns to build the house.
No. 17-CR-0061, Count 1 ("The Parker
Mrs. Beverly Parker contracted with Burns, d.b.a. Brookstone,
in approximately December 2013 to construct an addition,
basement with bathroom, deck, and kitchen on property she
owned in Copley, Ohio. The kitchen was the main focus of the
project: Mrs. Parker had recently retired from her position
as a middle school principal in 2013 and was planning to use
a lump sum distribution from her 403(b) retirement funds to
purchase her "dream kitchen," which would reduce
her retirement payments permanently. Mrs. Parker was referred
to Burns by a friend, who had his entire home renovated by
Burns. The friend invited Mrs. Parker to see the work, and
she was very impressed with what Brookstone had done.
The contract required payment to be made in portions as work
was done on the project. The original total contract price
was for $74, 453.00. There was no completion date established
in the contract, although Mrs. Parker testified that she was
emphatic that a quick completion of the kitchen was
important. This was because her husband had undergone triple
bypass surgery and a major concern was being able to strictly
control his diet-which would be extremely difficult without a
functioning kitchen. Burns offered to construct a temporary
kitchen free of charge for the construction period, but Mrs.
Parker declined. The parties also agreed that Mr. Parker,
following his recovery from surgery, would complete some of
the electrical wiring, as he was a licensed electrician.
As far as completion, Brookstone successfully completed all
the major exterior modifications needed. The interior
renovations were eventually completed to the extent that
cabinets were ready to be placed in the kitchen; however, the
kitchen cabinets were never installed. While Mrs. Parker paid
Burns for the kitchen cabinets directly, they were never even
ordered. The series of events concerning the kitchen cabinets
was the main focal point of Mrs. Parker's theft claim.
Those facts and circumstances are not disputed and are as
Mrs. Parker and Burns met at the Wooster, Ohio Lowe's in
January 2014 to place an order for cabinets based on a
previous quote of $31, 235.03. After going into the store and
planning the order, Burns instructed Mrs. Parker to give him
the money for the cabinets because he received a discount as
a contractor. The checks written to Burns by Mrs. Parker were
made out in amounts just under $10, 000.00 each, totaling the
full amount for the cabinets, at Burns' request. Burns
explained that he had a common practice of requesting smaller
checks-specifically under the $10, 000.00 threshold-so that
they would not be subject to a bank hold.
At the time Burns received the money, he claims that the
project had just started and that a foundation for the
project was not even set. Because he deemed it premature,
Burns never placed an order for the kitchen cabinets. Burns
deposited the checks in Brookstone's bank account at a
bank in Kent, Ohio over the next two days. The bank account
in which the checks were deposited was overdrawn and accruing
overdraft fees at the time the checks were deposited.
Mrs. Parker initially expected about a six-week delivery time
for the cabinets; however, she grew more concerned as the six
weeks came and went. Text messages presented at trial showed
that Burns assured her several times that the cabinets were
ordered, that they were on the way, and that any further
delay must be an issue with the manufacturer (KraftMaid). He
also claimed that the delay was due to the cabinets being
damaged during shipping previously. When Mrs. Parker
eventually contacted KraftMaid directly, they indicated that
no order had been placed for the style of cabinets Mrs.
Parker was claiming had been ordered and that Burns had not
placed an order from KraftMaid in over a year. When Mrs.
Parker informed Burns of the discussion she had with the
manufacturer, he continued to insist that the cabinets were
ordered, even encouraging her to place a complaint with the
attorney general-which she did in October 2015-despite Burns
knowing that he had never placed the cabinet order.
Thereafter, Mrs. Parker was forced to reorder the cabinets
and purchase them from Lowe's in December 2015. She took
out a line of credit to do so.
At trial, Burns stated that the cabinets were not ordered
because there would have been nowhere to mount them until the
kitchen renovations were complete. He claimed that a need for
drywalling, placement of a window, flooring issues, and
mechanical installation delayed the completion of the
kitchen. Also, Mrs. Parker's husband-who was going to do
some of the electrical wiring to save money-had bypass
surgery at the time of the construction, and Burns claimed
that his recovery delayed the completion of the kitchen.
Finally, Burns claimed that an issue with Mrs. Parker's
ability to pay for the completed work arose and he had reason
to believe that she was not going to be able to pay for the
renovations in full. Essentially, Burns stated that he was
holding the funds for the unordered cabinets, which he used
to pay other obligations and no longer had, as collateral to
ensure payment for the project. Mrs. Parker testified that
she was holding off on making further payments and was not
going to give Burns any additional funds until the cabinet
issue was resolved. Burns testified that he was owed
approximately $22, 000.00 when he ceased work on the project.
He never used the $31, 235.03 on the kitchen cabinets.
Despite his multiple explanations for holding off on ordering
the cabinets-including the alleged payment dispute-Burns
never separated the funds for the kitchen cabinets into an
escrow account or otherwise held the funds independent from
all other project funds. He claims to have used the money on
completing the project prior to ending construction on the
kitchen due to non-payment.
Following Burns' bankruptcy filing in December 2015,
Burns' conduct was reported to the Portage County
Sheriff's Office in January 2016. As a result, Detective
John Lavrich ("Lavrich") began an investigation
into Burns in which he identified Ms. Lassiter as a potential
victim from Burns' bankruptcy filing. Lavrich contacted
her in November 2016 and compiled paperwork and receipts
detailing the ongoing construction services provided by Burns
before the bankruptcy filing.
On June 30, 2016, criminal investigator Kimberly Kepling
("Kepling") with the Ohio Attorney General's
office was assigned to investigate the complaint Mrs. Parker
had filed on October 28, 2015 regarding her kitchen cabinets.
Kepling conducted a parallel investigation with Lavrich's
investigation into the first four alleged victims. With
regard to Mrs. Parker, Kepling's investigation revealed
the timeline of events discussed above.
Further, in the course of her investigation, Kepling
subpoenaed Burns' banking records from December 2013 and
January 2014. These records revealed that the bank account
for Brookstone had a balance deficit of $891.58 as of
December 31, 2013, and was incurring continuous overdraft
fees. It had a similar negative balance at the time Burns