COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 68477, 68479 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION HARRY AZZANO (68477) and : CONNIE AZZANO (68479) : : Defendants-Appellants : : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 4, 1996 CHARACTER OF PROCEEDING: Criminal appeals from Common Pleas Court Case No. CR-291493 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendants-Appellants: STEPHANIE TUBBS JONES, ESQ. DENNIS P. LEVIN, ESQ. Cuyahoga County Prosecutor One Commerce Park Square Suite 345 JEFFREY MARGOLIS, ESQ. 23200 Chagrin Boulevard Assistant County Prosecutor Cleveland, Ohio 44122 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Defendants-appellants Harry and Connie Azzano appeal in these consolidated appeals from their bench trial convictions for grand theft and trafficking in food stamps. Defendants were indicted on the two charges following an investigation of their receipt of public assistance benefits over a four-year period from 1988 through 1992. The theft charge involved knowingly obtaining by deception more than $5,000 in warrants and money under the Aid to Dependent Children ("ADC") program and the food stamp trafficking charge involved unlawfully receiving more than $500 in food stamps. Defendants pleaded not guilty to the charges and were appointed counsel. The matter proceeded to a joint bench trial commencing on December 20, 1994. Two Cuyahoga County Department of Human Services ("CCDHS") investigators testified for the prosecution. CCDHS discovered that defendants improperly obtained public assistance benefits when a computer cross-check of social security numbers revealed that Harry Azzano earned income from employment which was not reported to CCDHS. Further investigation revealed evidence of additional unreported employment, income and a motor vehicle. When providing benefits, CCDHS informed defendants of public assistance eligibility criteria and reporting conditions and relied upon the false information certified by defendants. The Azzanos would not have - 3 - been eligible for any benefits if CCDHS had been given the correct information. The defense presented testimony from defendants, their son, Harry Jr., and Gary Kerr, the manager of a band with which 1 defendant Harry Sr. was affiliated. The defense maintained that Harry Azzano had no unreported income or assets and that the Azzanos did not provide any false financial information to CCDHS. The defense argued that financial information provided to CCDHS on the applications for public assistance benefits was true and that contradictory information from employment applications and other sources indicating more substantial income, employment and assets was false. The trial court found defendants guilty of the two charges and sentenced defendants to concurrent terms of one year on each charge. Defendants, represented by new appellate counsel, timely appealed from their convictions and this court has consolidated the two appeals for hearing and disposition. I. That the evidence to support her two convictions was insufficient is Connie Azzano's argument in her first and third assignments of error, which follow: THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH GUILT WITH REGARD TO COUNT I AS TO APPELLANT CONNIE AZZANO. THE EVIDENCE WAS INSUFFICIENT TO ESTABLISH GUILT WITH REGARD TO COUNT II AS TO APPELLANT CONNIE AZZANO. 1 For simplicity, this opinion shall refer to defendant Harry Azzano, Sr. as "Harry Azzano." - 4 - The first and third assignments of error lack merit. Connie Azzano contends the prosecution did not present evidence to support her convictions for grand theft and trafficking in food stamps. She argues there is no evidence that she signed public assistance application forms, engaged in deception, or obtained any ADC warrants or food stamps. She also contends the prosecution did not prove that CCDHS owned the warrants or food stamps and did not prove the total value of warrants or food stamps improperly obtained. The standard governing whether convictions are based on sufficient evidence has been summarized in the following frequently quoted passage from State v. Martin (1983), 20 Ohio App.3d 172: As to the claim of insufficient evidence, the test is whether after viewing the evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. Id. at 175. After reviewing the record in compliance with this standard, we conclude that Connie Azzano has failed to show that her bench trial convictions are based on insufficient evidence. See State v. Clifton (1989), 65 Ohio App.3d 117, 121-122. Connie Azzano was charged in count I of the indictment with grand theft by deception of more than $5,000 in ADC warrants or money in violation of R.C. 2913.02. R.C. 2913.02(A)(3) defines the crime of grand theft in pertinent part as follows: - 5 - (A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways: * * * (3) By deception; ***. Connie Azzano was charged in count II of the indictment with trafficking in food stamps, valued in excess of $500, in violation of R.C. 2913.46(A), which follows: (A) No individual shall knowingly possess, buy, sell, use, alter, accept, or transfer food stamp coupons in any manner not authorized by the "Food Stamp Act of 1977," 91 Stat. 958, 7 U.S.C. 2011, as amended. Connie Azzano argues there is no evidence she personally committed these two crimes. However, this argument ignores R.C. 2923.03(F), which provides that persons charged with committing crimes as a principal offender may be convicted as an accomplice for assisting another to complete the offenses. It is well established that an accomplice need not personally commit each element of the offense when acting in complicity with another to commit the offense. State v. Beehive Ltd. Partnership (1993), 89 Ohio App.3d 718, 722-723. At a minimum, the prosecution presented sufficient evidence that Connie Azzano aided and abetted her husband Harry Azzano in obtaining and using the public assistance benefits; these actions made her liable for complicity as if she were the principal offender. The record contains evidence that both Connie Azzano and her husband Harry Azzano signed public assistance benefit application forms beginning in 1991. The signature of Connie Azzano appears - 6 - on three applications as a "Person Who Helped Complete" the forms. Connie Azzano stipulated that these documents were authentic and admissible into evidence (Tr. 8), so the prosecution was not required to produce additional evidence to authenticate her signature. Persons signing the forms certify that they understand the public assistance eligibility rules and reporting requirements. The documents expressly state that the party's signature affirms that the answers provided are "true," "complete and correct." Finally, the forms identified Connie Azzano as an authorized recipient of the benefits and her signature acknowledged she was aware of criminal penalties for unlawfully receiving benefits. When viewed in the light most favorable to the prosecution, the information provided on the application forms as certified by Connie Azzano was not "true," "complete and correct." The forms did not disclose all of Harry Azzano's income, employment, or assets. Although it may be conceivable that Connie Azzano had no knowledge about her husband's employment or income, as she contends, reasonable jurors could find that her failure to disclose the existence of a second automobile, a large visible object, was deceptive and constituted a knowing misrepresentation 2 of the facts. 2 Despite the fact that title was in the name of Harry Sr., defendants maintained at trial that Harry Jr. purchased the second car when he was fifteen years of age, had no license to drive, and was unemployed. - 7 - Connie Azzano was sufficiently informed, moreover, to know that her family was living beyond the means disclosed in the application forms. The record shows that ADC warrants and food stamps were issued by the State of Ohio to Harry Azzano at the end of each month and amounted to more than $5,000 in ADC benefits and more than $500 in food stamps in the 1991 calendar year. Even if Connie Azzano did not directly receive the warrants or food stamps as she contends, the trier of fact could reasonably believe she was aware that the family income based on ADC benefits had to have been supplemented in order to purchase a second car and thus she acted with sufficient complicity with her husband Harry Azzano to support her convictions. The record indicates that the Azzanos would not have been eligible for any of these benefits if the income, employment, and asset information had been properly disclosed. Accordingly, Connie Azzano's first and third assignments of error are overruled. II. Connie and Harry Azzano contend in the following second, fourth, and fifth assignments of error that their convictions are against the manifest weight of the evidence: THE VERDICT OF THE TRIAL COURT WITH REGARD TO THE CONVICTION OF CONNIE AZZANO AS TO COUNT I OF THE INDICTMENT, WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. THE VERDICT OF THE TRIAL COURT WITH REGARD TO THE CONVICTION OF CONNIE AZZANO AS TO COUNT II OF THE INDICTMENT, WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. - 8 - THE VERDICTS OF THE TRIAL COURT WITH REGARD TO THE CONVICTION OF HARRY AZZANO AS TO COUNTS I AND II OF THE INDICTMENT, WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. The second, fourth and fifth assignments of error lack merit. Connie and Harry Azzano argue that their respective convictions for grand theft and trafficking in food stamps are against the manifest weight of the evidence. Connie Azzano repeats the same arguments made concerning the sufficiency of the evidence discussed above in Section I, whereas Harry Azzano argues that the trial court improperly found that he earned unreported income. The standard governing claims that convictions are against the manifest weight of the evidence was summarized in State v. Martin, supra, as follows: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here, the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. Id. at 175. After reviewing the record in compliance with this standard, we conclude that defendants have failed to show any error. State v. Clifton, supra; State v. Frambach (1992), 81 Ohio App.3d 834, 846. - 9 - This case involved conflicting accounts of the Azzanos' financial condition and presented a textbook question of credibility. Public assistance benefit forms, signed by both Azzanos, portrayed poverty, whereas information provided by Harry Azzano to other sources revealed substantial employment and income, as well as more assets. The defense argued to the contrary that the public assistance benefit forms were accurate and the financial information obtained from other sources was not. The trial court had a superior opportunity to evaluate the conflicting evidence in this case because the trial court could observe the witnesses and their demeanor. When completing public assistance, employment, and loan applications, as well as other documents, Harry Azzano repeatedly told different stories at different times as it suited his purposes. Each version of the family's financial position could not have been true at the same time. There is abundant evidence that the public assistance benefit forms were not true when defendants certified and submitted them to obtain benefits. Contrary to their argument, the trial court was not required to believe defendants' in-court testimony contradicting this evidence. Under the circumstances, the trial court did not lose its way and create a manifest miscarriage of justice when finding defendants guilty on the charges in the indictments. Accordingly, the second, fourth and fifth assignments of error - 10 - are overruled. III. The Azzanos' sixth assignment of error challenges the trial court's conduct of the joint trial as follows: THE APPELLANTS WERE DENIED DUE PROCESS AND THUS A FAIR TRIAL AS A RESULT OF THE DEGREE TO WHICH THE TRIAL JUDGE ENGAGED IN EXAMINATION OF THE WITNESSES, THUS ABANDONING HIS ROLE AS A NEUTRAL AND DETACHED MAGISTRATE. This assignment of error lacks merit. Connie and Harry Azzano contend the trial court improperly questioned defense witnesses in this case. The Azzanos refer specifically to eight instances of questioning directed toward themselves, their son, and the manager of the musical group to which Harry Azzano belonged. However, defendants have failed to show reversible error. It is well established that a trial judge may, in the interest of justice, impartially question witnesses to develop the facts of a case. Village of Lodi v. McMasters (1986), 31 Ohio App.3d 275, 276. Contrary to defendants' argument, the record sub judice demonstrates the trial judge extensively questioned both prosecution and defense witnesses during the bench trial. Prosecution witnesses were not forthcoming with specific details concerning eligibility for public assistance, while defense witnesses did not fully reveal financial information. The trial court's questioning was designed to elicit the underlying facts so the court could find the truth. The eight instances of questioning selectively culled from the - 11 - record by defendants do not show the trial judge was biased. Defendants failed to show the trial court abused its discretion concerning the scope of its questioning, and this court's review of the record as a whole reveals no prejudice. Accordingly, Connie and Harry Azzanos' sixth assignment of error is overruled. IV. Connie and Harry Azzanos' seventh assignment of error follows: THE APPELLANTS WERE DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AS THE RESULT OF A CONFLICT OF INTEREST RESULTING FROM THE JOINT REPRESENTATION OF THE APPELLANTS BY TRIAL COUNSEL. The seventh assignment of error lacks merit. Connie and Harry Azzano complain for the first time on appeal that they were represented jointly by the same defense counsel at trial. Defendants argue that this dual representation precluded trial counsel from zealously representing each of them individually. Again, defendants have failed to show reversible error. The record demonstrates that the trial court sua sponte investigated any potential conflict of interest arising from the joint representation of both defendants prior to trial. The trial court's inquiry exceeded the requirements of State v. Gilliard (1992), 64 Ohio St.3d 304. In the case at bar, the trial court specifically questioned defense counsel and Connie and Harry Azzano. Defense counsel informed the court that no conflict existed and that Connie and Harry Azzano executed - 12 - written waivers of separate counsel. The trial court clearly explained that each defendant was entitled to separate counsel. Neither defendant, however, requested representation by separate counsel. It is well established that the deliberate abandonment of an argument at trial precludes subsequently raising the abandoned claim for the first time on appeal. State v. Edwards (1985), 26 Ohio App.3d 199, 201. Moreover, even if defendants did not specifically waive this claim, the record does not show any actual conflict of interest to warrant reversal. State v. Ingol (1993), 89 Ohio App.3d 45, 49-50. Connie Azzano maintained that she did nothing to obtain the public assistance benefits, whereas Harry Azzano argued that he was entitled to the benefits received. These defenses did not conflict with each other. Under the circumstances, the record contains nothing to show that defendants received ineffective assistance of counsel. State v. Booker (1989), 63 Ohio App.3d 459, 463-466. Accordingly, Connie and Harry Azzanos' seventh assignment of error is overruled. Judgments affirmed. - 13 - It is ordered that appellee recover of appellants its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. HARPER, P.J., and McMONAGLE, J., CONCUR. DIANE KARPINSKI 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 it will become the judgment and .