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State v. Garrett

Court of Appeals of Ohio, Twelfth District, Butler

July 1, 2019

STATE OF OHIO, Appellee,


          Michael T. Gmoser, John C. Heinkel, for appellee

          Scott N. Blauvelt,, for appellant


         {¶ 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.

         Facts 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 phone.

         {¶ 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 money.

         {¶ 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 Massien.


         {¶ 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.[1]

         {¶ 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.[2]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 ...

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