State v. Davis

• Decision Date: 28 June 1978
• Citation: 397 N.E.2d 1215,60 Ohio App.2d 355
• Parties: , 14 O.O.3d 315 The STATE of Ohio, Appellee, v. DAVIS, Appellant. *
• Court: Ohio Court of Appeals

Page 355

60 Ohio App.2d 355

397 N.E.2d 1215, 14 O.O.3d 315

The STATE of Ohio, Appellee, v. DAVIS, Appellant. ^*

Court of Appeals of Ohio, Fifth District, Morgan County.

June 28, 1978.

Syllabus by the Court

1. Where the selection of members of a grand jury and exemptions therefrom are made without adherence to the provisions of R.C. 2313.12, any indictment rendered by such jury is void.

2. Threats made to a jury, in the trial of a criminal case, that they will be branded by the community as condoning crime if they vote to acquit an accused is prejudicial error.

3. Where an indictment, drawn pursuant to R.C. 2913.42, charging an accused with falsifying a record is amended to include the words "or utter" after the closing arguments are presented at trial, such act constitutes a denial of due process of law to the accused.

4. The prohibition in former R.C. 2907.21 against fraudulently obtaining "anything of value" does not pertain to the acquisition of real property.

Richard E. Bridwell, Sp. Pros. Atty and David D. Guiley, Zanesville, for appellee.

Graham & Graham and Thomas R. Bopeley, Zanesville, for appellant.

PUTMAN, Judge.

In the summer of 1976, the Court of Common Pleas of Morgan County commenced an investigation into the conduct of the then duly elected, sworn and acting prosecuting attorney, Harry Donovan Lowe (hereafter Lowe). The Common Pleas Court appointed Muskingum County Prosecuting Attorney Richard E. Bridwell as "Special Prosecuting Attorney" to investigate. The judgment entry referred to R.C. 2941.63, which deals with assistants to the regular prosecutor to try pending cases.

Later, the court authorized the investigation to proceed into all public offices in Morgan County. The regular grand jury returned several indictments, one of which dated December 17, 1976, and signed "Richard E. Bridwell, Special Prosecuting Attorney," was a joint indictment against Lowe, and then welfare director James C. Davis, the appellant (hereafter Davis). The first court charged both with larceny by trick. (Covered in R.C. 2907.21 prior to 1974, and in R.C. 2913.02 after January 1974) spanning a period of time from August 6, 1970, until September 17, 1974, thereby attempting to straddle the January 1974 date of the change of the criminal law.

The second count also charged both Davis and Lowe with obtaining property (a lien release) by false pretenses (covered by R.C. 2911.01 prior to 1974, and covered by R.C. 2921.41 after that time) alleging violations during the period from June 4, 1970, to September 17, 1974, again attempting to straddle the time span of the change of the criminal law. The bill of particulars specified that the false representation was that one William Shaw was the grantee. The evidence was clear that this representation was made in 1970.

The third count charged Lowe, under the former law, with forgery on June 3, 1972 (R.C. 2913.01), having to do with the filing of a false grantee statement with the Morgan County auditor. That count is not involved in this appeal. The fourth count charged that Davis, on September 17, 1974 (contrary to R.C. 2913.42) did with intent to defraud falsify a "Statement of Grantee," a record kept by the Morgan County auditor. As a count four, the bill of particulars specified that William Shaw was falsely represented to be the grantor. In fact, Shaw was the grantor on the deed respecting which the tax on the transfer was to be paid.

An evidentiary hearing on a pretrial motion to dismiss the indictment, predicated on a failure to select the grand jury according to law, was held February 24, 1977, by a visiting judge. That motion was overruled (erroneously we here hold) and a jury trial started July 18, 1977.

This then is Davis' appeal from his sentence following a conviction in a separate jury trial of all three counts against him.

The general subject matter was the acquisition by Davis of real property of a welfare recipient. Davis used a third person, one Wiliam Shaw, to conceal his identity as the real purchaser. The property was subject to a lien in favor of the Ohio Department of Public Welfare. Through a false pretense made in 1970, as to the identity of Davis as the real purchaser and subsequent representations by Davis who concealed his interest, the state transferred its lien to another property of lesser value.

Twenty-two errors are assigned. We sustain number fifteen which claims that the indictment is void because the grand jury was not selected according to law. That assignment, if correct, makes all others moot.

Dutifully responding to Appellate Rule 12(A), we give reasons in writing as to our disposition of all assigned errors upon the premise Arguendo that we are in error in sustaining assignment of error number 15. ¹

The facts center upon a real estate transaction, whereby Davis acquired title to a forty-nine acre farm situated in Malta Township, Morgan County, Ohio, through a conveyance executed and delivered in 1970, and the recording of the deed to Davis in September of 1974. During this period, Davis was the director of the Morgan County Welfare Department and Lowe was serving as Prosecuting Attorney for Morgan County. By virtue of such office, he was also the attorney for the Morgan County Welfare Department. Lowe was also the attorney for Glen Norris, who was the executor of the estate of his wife, Blanche Norris, deceased, until the death of Mr. Norris in 1970. Both Glen and Blanche Norris had been welfare recipients at the times of their respective deaths. Lowe was the attorney for the estate and for the survivor personally, as well as the attorney for the defendant, personally.

The 49 acre tract was acquired by Blanche Norris in 1952. In 1962, both Glen and Blanche Norris were welfare recipients receiving aid-for-the-aged benefits and liens were executed by them, in favor of the State, which attached to the forty-nine acre farm. In 1968, Blanche Norris died and the following year Glen Norris was appointed executor of her estate. By 1970, the Welfare Director, Davis, was involved in attempting to secure the sale of the forty-nine acre farm and arrange for Mr. Norris to move into town, in the village of McConnelsville. In June 1970, both Davis and Lowe recommended to the state department of public welfare, by separate letters, that a private buyer was available for the farm and that Mr. Norris, who was in failing health, could then move into town and the lien on the farm could be transferred to the property in town. On July 28, 1970, Lot 37 was purchased in the village of McConnelsville for Mr. Norris for the sum of $4,700. On August 6, 1970, the Probate Court directed the sale of the forty-nine acre farm in Malta Township for the court appraised value of $6,000, and the transfer of the lien, then in the amount of $9,416.99. On that same day, Lowe contacted Mr. William Shaw, who had an office in Mr. Lowe's building, and induced him to sign a quitclaim deed to Davis. Mr. Norris died September 28, 1970.

The next public record pertaining to the real estate was an October 29, 1971, court order directing Glen Norris to proceed with the sale of the property and transfer of the lien. This was more than one year after his death.

On June 3, 1972, the transfer of the farm to William Shaw became a matter of public record by the filing of the "Grantee Statement," which showed a conveyance of the farm from the Blanche Norris Estate to William Shaw. On June 5, 1972, the administrator's deed, dated August 6, 1970, was received for recording. Finally on September 17, 1974, after the effective date of the new criminal code, a quitclaim deed, dated May 30, 1973, was received for recording, purportedly transferring the property from William Shaw to Davis. Mr. Shaw testified that this was the same deed signed by him in August 1970. The grantee statement filed by Davis bore that same date. It correctly stated that Shaw was the grantor.

Davis admitted that he was the actual purchaser of the property back in 1970 and claimed he was concealing this fact from his wife because of marital problems. He further testified that he and Mr. Lowe had discussed the use of a "strawman" in 1970.

Mr. Joseph Acton, of the Ohio Department of Public Welfare, testified that despite the numerous correspondence with defendant in 1970 regarding the sale of the farm, he had never been advised that defendant was in fact the private purchaser and, if he had been so advised, he would never have approved the transaction. This was the false pretense specified in the bill of particulars to count two.

As a result, Davis acquired title to a forty-nine acre farm for $6,000, free and clear of any encumbrance. The lien, which was originally attached to the farm, in the amount of $9,416.99, was transferred to Lot 37 in the village of McConnelsville, which had been purchased in 1970 for $4,700. The full nature of the transaction was discovered in July 1976, according to the prosecution.

I.

Both the first and fifteenth assignments of error complain of a single act by the trial court for the same basic reason. That act was the overruling of the motion to dismiss the indictment and the basis of the motion was that the indictment was void. Assignments of error one and fifteen merely give separate analyses to conclude that the indictment was void.

Defendant cites as authority the case of State, ex rel. Thomas, v. Henderson (1931), 123 Ohio St. 474, 175 N.E. 865. The claim is that, as in Henderson, the Common Pleas Court illegally "removed" the duly elected, qualified and acting Prosecuting Attorney for Morgan County without compliance with the applicable statute (now R.C. 309.05).

Based upon that premise, the argument states that the appointment of a special prosecuting attorney to have access to the grand jury (See Criminal Rule 6(D)) to the exclusion of the duly elected prosecuting attorney taints the grand jury proceedings and voids the indictment. See Criminal Rule 2...