Court of Appeals of Ohio, Twelfth District, Butler
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case
Michael T. Gmoser, John C. Heinkel, for appellee
N. Blauvelt,, for appellant
EN BANC OPINION
1} The state filed a motion for en banc
consideration, suggesting that the law of this district is
unsettled given a conflict between State v. Sanders,
12th Dist. Butler No. CA2003-12-311, 2004-Ohio-6320 and
State v. Garrett, 12th Dist. Butler No.
CA2018-03-048, 2019-Ohio-750. Pursuant to App.R. 26(A)(2) and
Loc.R. 18(D) this court determined that a conflict exists,
and hereby grants the state's motion for en banc
consideration as to the proper method of appellate review
when determining whether a defendant holds a position of
trust to his or her victim according to R.C. 2929.13.
2} After holding an en banc conference pursuant to
Loc.R. 18(D), a majority of the judges of this court now
overrule our previous holding in Garrett and
reiterate that the proper review of a trial court's
finding of a position of trust remains whether the finding is
supported by the record.
and Procedural History of Garrett
3} Latisha Garrett was a home-health care worker
employed by Visiting Angels whose motto was "to serve
and protect elderly clients." She was assigned to care
for the victim, who was 105 years old at the time. The victim
had recently been diagnosed with early-onset Alzheimer's
and relied upon Garrett for in-home care. Through information
Garrett learned while caring for the victim, Garrett and her
boyfriend orchestrated a deceptive plan for the victim to
give them $4, 800.
4} Garrett gave her boyfriend the victim's
telephone number in order for the boyfriend to call the
victim and pretend to be the victim's grandson.
Garrett's boyfriend posed as the victim's grandson
and called the victim asking for money to help with his
broken-down vehicle. Due to the victim's reliance upon
Garrett, the victim believed it was her grandson on the
5} Garrett then offered to take the victim to the
bank, where the victim withdrew cash from her account.
Garrett suggested that she would take the money to the
victim's grandson, and the victim entrusted the money to
Garrett. Garrett and her boyfriend then absconded with the
6} Garrett pled guilty to telecommunications fraud
and theft from a person in a protected class. After the plea
hearing, the trial court accepted sentencing memoranda from
the state and Garrett, including argument regarding the issue
of whether Garrett held a position of trust that facilitated
the crime. The trial court also heard from the parties on the
issue during the sentencing hearing, considered Garrett's
presentence investigatory report ("PSI"), and
considered the victim impact statement. The trial court found
that Garrett held a position of trust that facilitated the
crime, and as such, sentenced Garrett to 18 months in prison
rather than community control.
7} Garrett appealed the trial court's decision,
and a majority of the three-judge panel who heard the appeal
voted to reverse the trial court's sentence. The majority
determined that Garrett did not hold a position of trust
because the record did not support the trial court's
finding because there was no analysis or discussion of the
fiduciary nature of the position.
8} In so deciding, the Garrett majority
relied on an Ohio Supreme Court case, State v.
Massien, 125 Ohio St.3d 204, 2010-Ohio-1864, in which
the court compared positions of trust held by private
individuals to fiduciary relationships. During this
court's en banc consideration, we considered whether our
prior decision in Sanders remains proper precedent
given the Ohio Supreme Court's guidance set forth in
9} In Massien, the Ohio Supreme Court was
posed two narrow questions: (1) can private individuals hold
a position of trust; and (2) do nurses hold a position of
trust to their employer-hospital simply by virtue of their
employment? In answering the first question in the
affirmative, the court briefly expressed concern regarding
the possible expansion of what it means to hold a position of
trust, noting its belief that the legislature never
"intended the phrase to apply to all individuals who
breach any private expectation of trust."
Massien at ¶ 5.
10} The Massien Court noted its concern
regarding the way various appellate courts had construed the
phrase "position of trust" and the vast differences
among the phrase's application. The court addressed the
fact that some appellate courts found a breach of the
position of trust for "virtually any public or private
individual whose offense relates to a breach of any
trust." Massien at ¶ 14. As examples, the
court referenced a college student entrusted with school
property, a parent who failed to pay child support, as well
as a delivery driver entrusted with others' property.
None of the examples involved a special relationship with the
victim, i.e.; the college, the residential parent, the final
destination of delivery.
11} On the other hand, the court noted that other
districts found that private individuals could not hold
positions of trust. The Massien Court was not
willing to limit application of the statutory "position
of trust" in that strict a manner, and held instead that
private individuals can hold a position of trust. However,
and to avoid overextension of the statute, the court provided
that "a private individual holds a position of trust
only if he or she occupies a special relationship equivalent
to a fiduciary relationship." Id. at ¶ 2.
12} When explaining what a fiduciary relationship
entails, the Massien Court noted that "a
'fiduciary relationship' is one in which special
confidence and trust is reposed in the integrity and fidelity
of another and there is a resulting position of superiority
or influence, acquired by virtue of this special trust."
Id. at ¶ 35. The court further noted that being
a fiduciary involves "having a duty, created by his
undertaking, to act primarily for the benefit of
another in matters connected with his undertaking."
(Emphasis sic.) Id.
13} While Massien provides guidance to
trial and appellate courts when determining whether a
position of trust exists by reference to fiduciary
relationships, the court never required a contract or any
formal agreement creating a fiduciary relationship between
the defendant and his or her victim. Instead, the court
noted, "a fiduciary relationship need
not be created by contract; it may arise out of an
informal relationship where both parties understand that a
special trust or confidence has been reposed."
(Emphasis added.) Id. at ¶ 35. Thus, the
analysis of whether a defendant holds a position of trust is
a factual determination that will differ based on the
circumstances of the individual case.
14} The circumstances in Massien were such
that the defendant was a nurse whose victim was the hospital
for whom she worked and from whom she stole. The
Massien court emphasized that it was not presented
with a matter in which the nurse stole from a patient being
cared for. As such, and because the nurse's only
connection with the hospital was employment, the
Massien court analyzed whether nurses in general
have relationships akin to fiduciaries to the hospitals that
have given them employment.
15} The court never addressed Massien, herself, or
the duties she had to her patients. Instead, the court
addressed the inherent differences between doctors and
nurses, and their respective responsibilities to the
hospital. The court considered both positions'
"superior knowledge and skill," as well as the
discretion inherent in each position.Massien determined
that nurses, unlike physicians, do not hold the special
relationship comparable to a fiduciary relationship to the
hospital for lack of discretion and decisionmaking.
16} Other than the holding that nurses do not hold a
position of trust to their employer/hospital,
Massien also held that private individuals can hold
a position of trust with the guidance that such position of
trust is equivalent to a fiduciary relationship. Even though
Massien was decided after this court's ...