COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72809 STATE OF OHIO ACCELERATED DOCKET Plaintiff-appellee JOURNAL ENTRY vs. AND LISA SULLIVAN OPINION Defendant-appellant PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: MAY 28, 1998 CHARACTER OF PROCEEDINGS: Criminal appeal from Common Pleas Court, Case No. CR-340041 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES MYRON P. WATSON Cuyahoga County Prosecutor 310 Lakeside Avenue, N.W. 595 Courthouse Square LEO GORIE Cleveland, Ohio 44113 Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- PER CURIAM: Defendant-appellant, Lisa Sullivan, appeals from the judgment of the trial court which found her guilty, inter alia, of theft in office. On appeal, she argues that the trial court erred by not dismissing this charge, because she is not a public official as defined in R.C. 2921.41. Because this statute covers municipal employees, we overrule her one assignment of error and affirm the judgment of the court below. The relevant facts follow. Defendant was employed as a part-time student aide in the Division of Taxation for the city of Cleveland. While working in the Central Collection Agency, she worked with tax forms and her duties included data processing and filing. As a part-time employee, she was entitled to Workers' Compensation benefits and participated in the P.E.R.S. benefits system. However, unlike full-time employees, she was not entitled to sick pay, vacation time, personal time, compensatory time, health benefits, or life insurance. While employed as a part-time student aide, defendant provided confidential credit card information of six taxpayers to the co- defendant, Keisha Johnson. Under the name of one of those taxpayers, Ms. Johnson opened bogus credit accounts and made fraudulent purchases of over $3,000.00. Defendant pled no contest to charges of misuse of a credit card, theft in office, and disclosure of confidential information. She was sentenced to one year on each of the first two charges and six months on the third. The trial court ordered all the sentences -3- to run concurrently and, suspending the sentence, placed defendant on probation for eighteen months. Timely appealing, defendant raised the following sole assignment of error. I. THE TRIAL COURT ERRED IN FAILING TO GRANT APPELLANT'S MOTION TO DISMISS THE THEFT IN OFFICE COUNT OF THE INDICTMENT. In this assignment, defendant argues that the charge of theft in office should have been dismissed because it applies only to a public or party official and she is neither. Although charged as a public official, she maintains she does not satisfy the Revised Code's definition of a public official. We disagree. The crime of theft in office is defined in R.C. 2921.41 as follows: (A) No public official or party official shall commit any theft offense, as defined in division (K) of section 2913.01 of the Revised Code, when either of the following applies: (1) The offender uses his office in aid of committing the offense or permits or assents to its use in aid of committing the offense; (2) The property or service involved is owned by this state, any other state, the United States, a county, a municipal corporation, a township, or any political subdivision, department, or agency of any of them is owned by a political party, or is part of a political campaign fund. R.C. 2921.01(A) defines a public official as follows: (A) Public official means any elected or appointed officer, or employee, or agent of the state or any political subdivision, whether in a temporary or permanent capacity, and including without limitation legislators, judges, and law enforcement officers. Under the plain language of this statute, an employee of a city is a public official. The statute does not differentiate between a temporary and permanent employee. The city of Cleveland paid -4- defendant, provided benefits to defendant, and controlled how her work was performed. Thus defendant was an employee of the city of Cleveland. See State v. Tomlin (Mar. 7, 1990), Mont. App. No. 11720, unreported (a state liquor store clerk who stole cash from the store was a public official). In support of her argument, defendant cites State v. Blagajevic (1985), 21 Ohio App.3d 297. In Blagajevic, this court held that the trial court erred by not dismissing a charge of theft in office against a defendant who worked as a janitor for the city of Parma as part of a federal job-training program (CETA). This court based its holding on two reasons. First, this court determined that Blagajevic was not an employee of the city because the federal government paid for his benefits and retained the authority to transfer or dismiss him. Second, the court held that the theft in office statute did not apply to a janitor because the statute was intended to apply to persons who hold positions of public authority and or trust. Blagajevic does not apply to the facts here. First, defendant in the case at bar was an employee of the city of Cleveland. The theft-in-office statute clearly defines a public official to include an employee. Moreover, the city paid for all her benefits and dictated her responsibilities. Second, defendant was in a position of public confidence and trust. Performing data entry of tax forms, she had access to personal financial information of taxpayers. Misappropriating this confidential information for her own fraudulent gain clearly abused -5- the confidence and trust the public had a right to expect from her. This crime highlights her role as a public official. In an analogous case, State v. Haberek (1988), 47 Ohio App.3d 35, the court held that the misappropriation of LEADS information by a deputy clerk of court constituted a breach of the public trust in order to support a conviction for theft in office. Finally, defendant argues that because she signed a Confidentiality of Income Tax Information Agreement which carried a maximum penalty of $500.00, she should not be subject to prosecution for theft in office. This argument fails. Nothing in the agreement, which concerns violating confidentiality of tax information, suggests that it precludes prosecution under other criminal statutes such as theft in office. Accordingly, the trial court did not err by not dismissing the theft-in-office charges against defendant. Judgment affirmed. -6- It is ordered that appellee recover of appellant 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. DIANE KARPINSKI, PRESIDING JUDGE LEO M. SPELLACY, JUDGE MICHAEL J. CORRIGAN, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .