COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68486 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION THOMAS D. GEIGER : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 22, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-307080. JUDGMENT: REVERSED AND APPELLANT ORDERED DISCHARGED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Sean C. Gallagher Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Gerald S. Gold, Esq. Orville E. Stifel II, Esq. Gold, Rotatori & Schwartz Co., L.P.A. 1500 Leader Building Cleveland, Ohio 44114 SWEENEY, JAMES D., J.: Defendant-appellant Thomas Geiger appeals from his conviction for two counts each of forgery and uttering in violation of R.C. 2913.31. The appellant was acquitted by the judge on the charges of soliciting or receiving improper compensation, violations of R.C. 2921.43, and was found not guilty of both counts of theft in office, violations of R.C. 2921.41. The appellant was sentenced to two consecutive one-year terms of incarceration. The sentence was suspended and the appellant was placed on probation for two years with the following conditions: that he pay approximately $2001 in restitution, or an amount to be determined by the probation department; perform 200 hours of community service in Lakewood; and read selected works of St. Thomas Aquinas on ethics and morality. During this bench trial the State presented the testimony of eleven witnesses and the appellant presented thirteen. The court heard testimony that the appellant was a police officer for the City of Lakewood for twenty-one years. His record as an officer was previously unmarred and he received satisfactory ratings on his evaluations. Captain Alan Clark testified that he conducted an internal investigation on the appellant after receiving a complaint. During the course of his investigation it came to his attention that the appellant was employed at several part-time jobs. Captain Clark obtained the time cards and payroll information from two of the appellant's part-time positions, Winterhurst Ice Rink and the Belle - 3 - Avenue Parking Garage, where the appellant provided security services. The documents obtained by Captain Clark were analyzed by computer, and overlapping time discrepancies were discovered. The records revealed that in 1989, 1990 and 1991, there were sixty instances where the appellant's time cards indicated that he was in more than one place at a time. The State chose to eliminate the overlaps of thirty minutes or less, and the prosecution proceeded to introduce testimony regarding thirty-one time conflicts. The appellant maintained his innocence throughout, and presented evidence that there was a pattern and practice amongst the officers of allowing a substitute to punch in and out at a part-time job on the time card of the regular employee. The appellant testified that at no time did he retain compensation for hours either he or a substitute did not work. Upon receipt of a check from an employer, he would cash the check and pay the substitute from the proceeds. The appellant also testified that he coordinated the schedule of the off-duty police officers who were employed to provide security at both the Belle Parking Garage and at Winterhurst Ice Rink. Lakewood Police Chief Matthew Biscotti testified that he held an administrative hearing at which time the appellant was permitted to offer an explanation of the time discrepancies. The appellant was informed of his Constitutional rights prior to the hearing, including his right to remain silent. The appellant was instructed - 4 - that although he was permitted to have an attorney present, the attorney would not be permitted to speak. Captain Clark testified that no court reporter would be present to transcribe the testimony. Upon re-cross-examination, Chief Biscotti testified that he believed the appellant was double dipping (T. 415) because the appellant had not proven otherwise (T. 416). Mark Muglich testified that he is the vice-president and regional manager of Ampco System Parking. Ampco purchased Coyne/Kangesser in 1988. While the City of Lakewood actually owned the Belle Parking Garage, it was operated by Ampco. Pursuant to contract, Ampco billed Lakewood for the operating expenses, including the cost of security. Mr. Muglich testified that the company has a policy against using another's time card and that this policy is in the employee manual. He could not say whether or not every employee receives the manual, nor did he know whether any of the off-duty police were issued the manual. William Yeager, the manager of the Municipal Parking Garage operated by Coyne/Kangesser from 1985 until 1991, testified that the garage was open on the weekends for free parking, but that since the office was closed, off-duty police officers were employed to ensure that vandals would not deface or otherwise harm either the facility or the parked vehicles. Yeager stated that time cards for all of the officers were given to the appellant and that the appellant would return the cards for submission to the payroll department. Yeager never informed the appellant that one person - 5 - could use another's card, but he was unaware of any company policy (T. 165), and he never discussed a substitution policy with the appellant (T. 175). Yeager also testified that he never had any complaints regarding the appellant's services and had no information to indicate that the security services paid for were not performed either by the appellant or a substitute. William Hennessy testified that he managed the Belle Parking Garage when it opened in 1982. There were eight or nine off-duty officers that provided security, although only three worked on a regular basis. The appellant provided the scheduling and there were time cards for each officer. In 1982, the payroll clerk informed Hennessy that the company was cutting expenses and that the outside firm responsible for issuing the payroll checks charged per person on the payroll. As a result, the officers who did not work consistently were taken off of the payroll. This policy continued even after he retired in 1985. Hennessy testified that there were substitutes upon occasion; that it was up to the appellant to ensure that there were enough officers to cover the weekend; that there was no policy; and that as long as the men were there to provide security it did not matter. Hennessy stated that it was not his expectation that once the men were dropped from the payroll they would no longer work at the garage; and that he assumed that the time cards that were turned into him were from the person who worked. Upon further questioning, Hennessy testified that he had previously stated that a substitute would use the time - 6 - card of the regular employee and be paid later. The employee on the time card would receive the check and then pay the substitute. Officer James Boomer testified that he worked as substitute security at the Belle Parking Garage perhaps a dozen times between 1989 and 1991. He kept a calendar of the hours worked and declared the income on his tax form. This practice of substitution and payment by the regular employee was used by other officers not only at the parking garage, but at other part-time jobs as well. Officer Boomer testified that he never substituted for the appellant. Lieutenant Robert Bronish stated that he worked at the Belle Parking Garage between 1989 and 1991. He asked a substitute to work for him a total of approximately fifteen times in this three- year period and he then paid the substitute out of his check from Coyne/Kangesser. Bronish testified that he was accused of double dipping, but that he was never paid for being in two places at one time. He testified that the time cards were marked with standard times and that even when they indicated a conflict, no conflict occurred. He stated that the requirement at the parking garage was to work the eight-hour shift, and that whether you were there from 3:00 to 11:00 or from 4:00 to 12:00 did not matter. He was never given any policies or procedures to follow. Bronish was suspended from the force for thirty days but stated that he was never compensated for work he did not perform. - 7 - Retired police officer John Sunday testified that he worked at the parking garage two or three times a month for the appellant and that the appellant then paid him in cash. He corroborated the testimony of Mr. Bronish regarding the flexibility of the hours the officers were expected to work. Officer Kevin Galvin also testified that he substituted at the parking garage for the appellant and was subsequently paid in cash. Officer Gabe Incze testified that he worked at the parking garage and utilized substitutes to fill in when he could not work. The Lakewood Board of Education employed Gary Baran as the Commissioner of Adult Education. One of his responsibilities was the management of the Winterhurst Ice Rink, which is operated through the recreation program. Mr. Baran stated that time cards are used to keep track of employees' time; that a new employee may easily be added to the payroll; that a substitute punching someone else's time card is not acceptable; and that the employee handbook indicated that an employee was not permitted to punch any one else's time card. Upon cross-examination, Baran testified that he had no knowledge that the security services paid for were not provided; that he did not know whether the handbook was ever distributed to the appellant or any other off-duty policeman; and that he had no information that the appellant was compensated for hours he did not work. The on-site skating rink manager, William Needham, testified that each employee has a time card, and the policy that each is to - 8 - use their own time card is clearly enumerated to the employees. Upon cross-examination, Mr. Needham also testified that neither the appellant nor the other off-duty police officers were given a copy of the employee handbook and that the handbook does not specifically state that substitutes may not be used. Mr. Needham also testified that he believed that the appellant was "paid for every hour he worked and nothing extra" (T.222). Timothy Stark testified that he has been the assistant manager at the ice rink since 1982. He stated that not every officer had their own time card and that it was common practice for one officer to "work off of" the time card of another (T. 564). Jo Ann Toth, the secretary at the Winterhurst Ice Rink, testified that she would inform the appellant as to the needs of the ice rink for security services and the appellant would schedule the off-duty police officers needed. Ms. Toth stated that those officers with time cards would use a substitute and that the substitute would punch the card of the regular employee; that the original officer would be paid and then make arrangements to disburse the funds to the substitute; that this practice of substitutions was longstanding and not hidden or concealed; and that she was aware of the substitutions on some occasions and not on others. Ms. Toth was never instructed to deliver the personnel handbook to the off-duty officers. Additionally, she testified that each time the appellant punched in at the ice rink he was working there. - 9 - Officer Edward Favre testified that he worked with the appellant at the ice rink, and that there were times he was unable to locate the appellant. He stated that there were times the appellant would be at the ice rink while he was on duty at the police department. Upon cross-examination, Favre testified that he had never seen the appellant enter the rink, punch his card, and then leave to perform his duties as a police officer. Lakewood Police Officer Kevin Zimmer testified that at the ice rink the officers punched in at the booth; that there were extra time cards and tax forms in a drawer underneath the ticket counter; and that there was no reason for a substitute to use someone else's time card. Officer Zimmer also testified that the appellant set the schedule and would have been able to select his own schedule first. Officer John Hill testified that he had substituted at the ice rink for another officer; that he punched the other officer's time card; and that the officer paid him in cash. Officer Kenneth Romanchik testified that he worked at the ice rink; that Officer Hill substituted for him; that he paid Officer Hill from the check he received; that he was never given a copy of any written policy at the ice rink; and that this was common practice even at other part-time jobs for police officers. Officer Romanchik testified that he never intentionally deceived the Board of Education. Former Officer Lawrence Mabry testified that he, too, used to work at the ice rink. He stated that he had, upon occasion, substituted - 10 - for the appellant and for another officer; that he was paid in cash; that this was a prevailing practice; and that there was no intent to deceive. When the appellant took the stand on his own behalf, he stated that he was hired by the Lakewood Police Department in 1972. In order to supplement his income for the support of his family he undertook part-time employment. In 1981 or 1982 he began working in the parking garage and at this point he received his instructions from Bill Hennessy. At first, everyone who worked at the parking garage had a time card and approximately, in 1985, Hennessy informed him that the company did not want too many people on the payroll. The officers who worked consistently maintained time cards, the substitutes were paid in cash by the regular worker. Hennessy did not care how the situation was worked out as long as the security services were provided. The appellant was in charge of scheduling the off-duty officers, but had no power to hire or fire anyone; he was not anyone's boss. The hours were somewhat flexible as long as each shift was covered. There was never any discussion by Coyne/Kangesser as to the records to be kept. In approximately 1974 or 1975 the appellant began working at Winterhurst Ice Rink and had his own time card. He was responsible for scheduling the off-duty officers who provided security at the rink, but was never given any policy manual. The rink manager did - 11 - not care how the schedule was set or who worked as long as the hours were covered. There was no set pattern as to which officer was asked what time period he would like to work, the appellant just asked whomever he saw first. It was difficult to find officers to cover all of the hours at the rink as this was not considered to be a high-paying job. Many officers did not enjoy working at the ice rink because of the crowds, children and noise. A substitute at the ice rink would punch in on the regular employee's time card if he did not have one of his own. To obtain a time card an officer needed to fill out the tax forms, the immigration forms for the U.S. Department of Naturalization, and have two forms of identification such as a driver's license and social security card. No pay check would be issued until all of the forms were completed and many officers complained about this procedure. This led to the common practice of substitutes punching in on someone else's time card. The appellant kept a calendar of his off-duty employment for tax purposes, but has not kept these records. He does not remember any specific dates where a conflict occurred, but he never collected remuneration for hours that he did not work or that he did not have a substitute work. There were other jobs at which he worked as a substitute for another officer and would be paid in cash. The police department had no requirements regarding off- duty work and record keeping. This system of substitution was not - 12 - kept a secret and was openly used by other officers in the department. The appellant sets forth four assignments of error. The first assignment of error: I THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S CRIM.R. 29 MOTION FOR JUDGMENT OF ACQUITTAL MADE AT THE CLOSE OF THE PROSECUTION'S CASE IN CHIEF, AND RENEWED AT THE CONCLUSION OF THE EVIDENCE, BECAUSE THERE IS NO EVIDENCE FROM WHICH A RATIONAL TRIER OF FACT COULD FIND THE ESSENTIAL ELEMENTS OF FORGERY AND UTTERING PROVEN BEYOND A REASONABLE DOUBT (TR. II 461- 62; III 887-88). The appellant argues that the trial court should have granted his motion for acquittal because there was insufficient evidence to support his conviction for forgery and uttering. The appellant states that there was no evidence that he knowingly sought to receive a benefit by deception; no evidence that he actually received any benefit; and no evidence that the appellant acted with purpose to defraud. The Ohio Supreme Court has held that in order to support a conviction there must be sufficient evidence to convince an average mind beyond a reasonable doubt, State v. Jenks (1991), 61 Ohio St.3d 259 at syllabus 2: 2. An appellate court's function when reviewi ng the suffici ency of t h e evidenc e to support - 13 - a crimina l convict ion is t o examine t h e evidenc e admitte d at trial t o determi n e whether s u c h evidenc e, if believe d , would convinc e the average mind of t h e defenda n t ' s guilt beyond a reasona b l e doubt. T h e relevan t inquiry i s whether , after viewing t h e evidenc e in a light m o s t favorab - 14 - le to t h e prosecu tion, a n y rationa l trier of fact could h a v e found t h e essenti a l element s of t h e crime proven beyond a reasona b l e doubt. (Jackso n v. Virgini a [1979], 4 4 3 U . S . 307, 99 S.Ct. 2781, 6 1 L.Ed.2d 5 6 0 , followe d.) R.C. 2913 defines forgery and uttering: 2913.31 Forgery. (A) No person, with purpose to defraud, or knowing that he is facilitating a fraud, shall do any of the following: (1) Forge any writing of another without his authority; - 15 - (2) Forge any writing so that it purports to be genuine when it is actually spurious, or to be the act of another who did not authorize that act, or to have been executed at a time or place or with terms different from what was in fact the case, or to be a copy of an original when no such original existed; (3) Utter, or possess with purpose to utter, any writing which he knows to have been forged. This court has held that a conviction for forgery and uttering requires proof that the appellant acted with purpose to defraud. State v. Beehive Ltd. Partnership (1993), 89 Ohio App.3d 718. In the case sub judice the State introduced no evidence of the appellant's intent to defraud. The time cards indicate overlapping hours only on the presumption that the appellant worked each hour indicated on the time cards himself. The appellant and other witnesses presented testimony that a pattern and practice existed amongst the police department in general whereby a substitute used the regular employee's time card. The appellant presented unrebutted testimony that each hour of work indicated on his various time cards was performed by someone, either by himself or a substitute. It was the burden of the prosecution to prove that there were instances where neither the appellant nor a substitute performed the work and to prove that the appellant had, with an attempt to deceive, submitted the time cards so that he would be paid for work not performed by anyone. No such evidence was introduced. Further, it was not the burden of the appellant to prove that a substitute was present. - 16 - The appellant's first assignment of error is well taken. The appellant's second, third and fourth assignments of error: II THE VERDICT ON COUNTS 5 THROUGH 8 OF THE INDICTMENT IS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE (TR. III 896-97). III THE TRIAL COURT IMPOSED AN UNLAWFUL SENTENCE BY REQUIRING AS A CONDITION OF PROBATION THAT APPELLANT GEIGER READ WORKS BY ST. THOMAS AQUINAS (TR. 903-04). IV THE TRIAL COURT ERRED IN IMPOSING A SENTENCE REQUIRING PAYMENT OF RESTITUTION "IN THE AMOUNT OF APPROXIMATELY $2001 OR AN AMOUNT TO BE DETERMINED BY THE PROBATION DEPARTMENT" WHERE: (A) THE COURT'S OWN FINDINGS ESTABLISH THAT THERE WAS NO LOSS OR DAMAGE, (B) THE AMOUNT OF $2001 HAS NO BASIS IN THE RECORD, AND (C) THE DIRECTIVE THAT THE PROBATION OFFICE DETERMINE THE AMOUNT CONSTITUTES AN IMPROPER DELEGATION OF JUDICIAL RESPONSIBILITY TO A NONJUDICIAL OFFICER (TR. III 903-04). The second, third and forth assignments of error are moot pursuant to App.R. 12. The defendant's conviction having been reversed and vacated, appellant is ordered discharged. The trial court is ordered to take all necessary steps to terminate the appellant's sentence. - 17 - This cause is reversed and appellant ordered discharged. It is, therefore, considered that said appellant(s) recover of said appellee(s) his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. The defendant's conviction having been reversed and vacated, appellant is ordered discharged. The trial court is ordered to take all necessary steps to terminate the appellant's sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. JOHN T. PATTON, C.J., and PATRICIA A. BLACKMON, J., CONCUR. JAMES D. SWEENEY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .