State v. Flors
| Decision Date | 27 April 1987 |
| Docket Number | 52057,Nos. 52056,s. 52056 |
| Citation | 528 N.E.2d 950,38 Ohio App.3d 133 |
| Parties | The STATE of Ohio, Appellee, v. FLORS, Appellant. * |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. In a prosecution for bribery in violation of R.C. 2921.02, the state has no burden to show which public official the defendant sought to influence. The defendant can commit bribery even if he does not know which official will respond or whether that official will receive any part of the payment.
2. The Sixth Amendment to the United States Constitution does not require defense counsel to file suppression motions in every case.
3. A trial court has a duty to consider the statutory aggravating and mitigating factors when it sentences an offender. Ordinarily, the court need not explain the reasons when it exercises its discretion in sentencing an offender. However, the court can abuse its discretion by imposing a sentence which apparently disregards those criteria, without a suitable explanation.
John T. Corrigan, Pros. Atty., for appellee.
Charles W. Lazzaro, Cleveland, for appellant.
The defendant appeals from his jury trial convictions for bribery, falsification, and tampering with public records. His seven assigned errors challenge the sufficiency of the evidence, the court's sentence, the conduct of the court, the prosecutor, and his own counsel. 1
The evidence did not support his convictions for falsifying and tampering with public records, so we discharge him for those offenses. We also agree that parts of the sentences were inappropriate or require reconsideration. His remaining contentions lack merit. Therefore, we affirm the bribery conviction but remand it for resentencing.
The state charged that the defendant offered and paid a bribe to obtain favorable treatment for his pending misdemeanor citations. The prosecution also claimed that he aided or abetted codefendants George J. Novicky and Harry Darmour to falsify or tamper with records for that purpose. Novicky was a Parma Municipal Court judge, and Darmour was his friend. In the defendant's separate trial, the events were largely undisputed. The defendant acknowledged most of them in his testimony. However, he denied (a) that he intended to bribe anyone, and (b) that he had any involvement in the alleged falsification and tampering.
The Parma police cited the defendant for an improper right turn, failure to display a driver's license, possession of marijuana, and driving while intoxicated. Shortly thereafter, the defendant called a friend to ask if the friend knew someone who could help him with those citations. The friend said that his own lawyer had died, but he would ask others. An acquaintance gave him the telephone number of someone who might help, and he reported it to the defendant without knowing whose number it was.
The defendant called that number and spoke to an unknown man, whom he later identified as codefendant Darmour. He gave Darmour his own name and telephone number and explained his problem. Darmour called him back to arrange a Saturday meeting at a local restaurant. Three FBI agents were watching the restaurant that Saturday and saw Darmour and Novicky arrive in a car and enter the restaurant together.
Two agents saw Darmour and Novicky sit at a restaurant table until the defendant entered. Darmour then left Novicky and sat with the defendant. A few minutes later, Novicky departed without saying anything to Darmour. Darmour asked to see the defendant's citations, inquired about any prior offenses, and told him: The defendant gave Darmour his driver's license. After a twenty-minute conversation, Darmour and the defendant left the restaurant. Darmour joined Novicky who was waiting to drive away. At that time, the defendant knew Darmour only by his first name.
That afternoon, Darmour telephoned the defendant to tell him not to appear at court on the originally scheduled trial date. The defendant went anyway, but left when the desk sergeant told him that his case was not listed that day. Novicky wrote on the citation that the defendant appeared and pled "not guilty." There was no evidence that the defendant knew Novicky was going to do that or had done it. Two days later, Darmour called the defendant again to arrange a meeting at another restaurant.
At this meeting, Darmour returned the defendant's license wrapped in a napkin, and said he would get a new court date. Darmour told him he could choose either reckless operation or "physical control" as a reduced charge. The defendant chose the latter offense because it imposed no points on his license. Though he still did not know Darmour's last name or whether he was a lawyer, the defendant agreed to have Darmour represent him. In fact, Darmour was not a lawyer. Darmour told him that the fine and costs would be approximately $200, and wrote $500 on a napkin, saying: "This will be my fee."
Darmour called the defendant once more and gave him a new court date. On that morning, Novicky summoned an assistant prosecutor and told him how he wanted the defendant's case resolved. The prosecutor did not have his file available because the case was not scheduled for that day. At Novicky's direction, the prosecutor noted his recommendation that the driving while intoxicated charge be reduced to "physical control" and the remaining charges be dismissed.
On the Parma court records for the defendant's case, "white out" correction fluid covered the space for the assigned judge, and someone stamped Novicky's name there. There was no evidence whether Novicky was the properly assigned judge for the defendant's case. Thus, there was no evidence whether the change altered the record from the proper assignment, rather than to the proper assignment. Further, there was no evidence that the defendant knew anything about those records, or that another judge might have decided his case.
In anticipation of his court appearance, the defendant borrowed $700 from another friend. He met Darmour at the court where they both entered codefendant Novicky's chambers. In Novicky's chambers, the defendant pled "no contest" to "physical control." Novicky found him guilty and fined him $150 plus costs, with the costs suspended. Novicky's sentence required the defendant to attend a school for alcoholic drivers and placed him on non-reporting probation for one year.
The defendant paid his fine and reported briefly to the probation department. As he left there, he found Darmour waiting for him in the hallway. He gave Darmour $500, and Darmour wrote his phone number on the back of the defendant's probation card.
Six months later, two police officers came to the defendant's home to speak with him about these events. At their request he accompanied them in their car to a vacant lot, where they advised him of his constitutional rights. They then drove him to police headquarters, and thereafter to a motel, where he gave an extended oral statement which the police recorded. Two weeks later, the prosecutor summoned the defendant to a grand jury session, where he listened to the recorded statement and confirmed its accuracy. The transcript of that statement covers eighty pages.
The grand jury subsequently indicted the defendant for the presently contested charges, and the police arrested him on those charges.
The defendant's first assignment contests the sufficiency and adequacy of the evidence for his convictions of bribery, falsification, and tampering with records. In pertinent part, the following statutes define the applicable forms of those offenses:
R.C. 2913.42 (tampering with records):
R.C. 2921.02 (bribery):
"(A) No person, with purpose to corrupt a public servant * * * or improperly to influence him with respect to the discharge of his duty, * * * shall promise, offer, or give any valuable thing or valuable benefit."
R.C. 2921.13 (falsification):
The defendant argues that the trial court should have granted his motion for an acquittal on each of the charges. The court should deny that motion for an offense if reasonable jurors could find that the state proved its elements beyond a reasonable doubt. Crim.R. 29(A); State v. Bridgeman (1978), 55 Ohio St.2d 261, 9 O.O.3d 401, 381 N.E.2d 184, syllabus. In considering that motion, the court should view the evidence in the light most favorable to the state. Id. at 263-264, 9 O.O.3d at 402, 381 N.E.2d at 185-186.
The court properly denied the defendant's motion for an acquittal on the bribery charge. He promised to pay and did pay Darmour $500 to obtain a favorable disposition for his pending misdemeanor charges. The jury could reasonably find that he acted "with purpose to corrupt a public servant * * * or improperly to influence him with respect to the discharge of his duty." R.C. 2921.02. The state had no burden to show which public official the defendant sought to influence. The defendant could commit bribery even if he did not know which official would respond or whether that person would receive any part of the payment. Cf. State v. Kimble (Apr. 26, 1979), Cuyahoga App. No. 38407, unreported (killing with prior...
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