State v. Luna

• Decision Date: 22 April 1994
• Docket Number: No. H-93-23,H-93-23
• Parties: The STATE of Ohio, Appellee, v. LUNA, Appellant. *
• Court: Ohio Court of Appeals

Page 653

94 Ohio App.3d 653

641 N.E.2d 747

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

No. H-93-23.

Court of Appeals of Ohio, Sixth District, Huron County.

Decided April 22, 1994.

Russell V. Leffler, Huron County Pros. Atty., and Gregory A. Shell, Asst. Pros. Atty., for appellee.

Holly Bishop, Norwalk, and Vincent F. Gonzalez, Cleveland, for appellant.

ABOOD, Presiding Judge.

This is an appeal from a judgment of the Huron County Court of Common Pleas which found appellant Robert Luna guilty on one count of tampering with records, one count of securing writings by deception, and one count of theft by deception.

Appellant raises the following assignments of error on appeal:

"I. The trial court erred in finding defendant Robert Luna guilty of tampering with records, securing writings by deception and theft when the state failed to prove each element of each offense by proof beyond a reasonable doubt.

"A. The state failed to prove that Robert P. Luna knowingly or intentionally made a false statement with the intent to defraud.

"B. The state failed to prove Luna tampered with a governmental record.

"C. The state failed to prove that Luna was deceptive in his answer, and that the deception caused another to execute a writing which disposed of his property.

"II. The court erred in allowing the case to proceed after appellant's motion to dismiss and for acquittal at each stage of the case.

"A. The court erred in denying the defendant's motion to dismiss at the close of the state's opening statement.

"B. The court erred in denying the appellant's motion for acquittal at the close of the state's case.

"III. The court erred in convicting defendant Robert P. Luna of theft, tampering with records and securing writings by deception based solely on his interest on a land installment contract.

"IV. The court erred in finding Robert Luna guilty of all three charges."

The facts that are relevant to the issues raised on appeal are as follows. On May 31, 1989, appellant signed his name on a land contract that was executed by Stanley and Eva Null as vendors, and appellant and his mother, Maria Luna, as vendees. On January 3, 1990, appellant reapplied for general assistance from the Huron County Human Services Department ("HCHS") and filled out a standard redetermination application form for himself and his household, which included his wife Estela, his children Paris, Londunn, Baltimore and Houston Luna, and an unborn child. On page twenty-two of the form appeared the question "Does anyone in your household own (or is anyone buying) any real estate?" Appellant checked the box for the answer "no." Thereafter the Luna family received ADC benefits.

On September 18, 1992, appellant was indicted on seven counts of tampering with records in violation of R.C. 2913.42(A)(1), one count of securing writings by deception in violation of R.C. 2913.43(A), and one count of grand theft in violation of R.C. 2913.02(A)(3). On April 21, 1993, the state moved to dismiss six of the seven counts of tampering with records and to amend the indictment. The court granted the motion, appellant waived his right to a jury trial and the case proceeded to trial to the court on April 22 and 23, 1993 on count two, tampering with records, count eight, securing writings by deception, and count nine, theft by deception.

At the conclusion of the state's opening statement appellant moved to dismiss and for judgment of acquittal on count two, tampering with records, and count eight, securing writings by deception, and the court denied appellant's motion.

The state then called witness Connie Hipp, of the Huron County Recorder's office, who testified that the land installment contract at issue had been recorded on June 2, 1989, and that a warranty deed that conveyed all title in the property to appellant's sons, Paris and Londunn Luna, had been executed on October 9, 1991.

The state also called Madeline Hahn, who stated that in January 1990 she was a caseworker with HCHS. She stated that at that time she spoke with appellant after he filled out the application to explain each question to him and verify his answers. She asked appellant whether he was buying a home or any property and he replied "no"; she also asked him if he was making any payments on any property and he replied "no." When asked, she stated that her definition of "buying" is making payments on something. She stated that no one in her department ever determined that appellant had made any payments on any property. She stated further that each applicant is told during this interview that he or she is responsible at all times for giving complete information and must report any changes to HCHS within ten working days. She explained that she witnessed appellant sign his name to the application after he had been informed of his responsibility to be complete and correct.

On cross-examination Hahn explained that the application provides information on the applicant's resources, which are verified and compared with the resource limits for eligibility. When asked what the limit for real estate was in 1990, she responded that for ADC the limit was $1,500. She explained, however, that it is possible to own property and still be eligible for ADC, food stamps and Medicaid pursuant to Ohio statutory law. She explained further that an applicant may own real estate and it is not counted as a resource if he lives on the property. She stated that she never determined what appellant's legal, monetary, or equitable interest was in the property in question. As to the question "Does anyone in your household own (or is anyone buying) any real estate?" she stated that the terms "buying" and "own" are not defined anywhere on the application. When asked if the form provides for anything other than "ownership" or "buying," she responded that it did not. She stated that she does not know the difference between a land contract and a warranty deed and that when appellant stated that he had no property she never inquired beyond that.

On redirect examination, the state pointed out and Hahn admitted that there is a box provided for "other expenses" and any land contract payments could go under this section. Hahn agreed with the prosecutor's assertion that you cannot get an exemption for your land unless you declare that you have the land. Hahn stated that the applicant is, in fact, given a copy of his rights and reporting responsibilities in the initial interview.

The state then called Jeannie Singer, an income maintenance supervisor for HCHS, who testified that she authorizes eligibility for initial and reapplication requests for public assistance and that she conducts investigations into alleged fraud. She stated that she received appellant's case on June 10, 1992 because a complaint had come in that the local newspaper had published a transfer of land from Robert Luna to his sons Paris and Londunn Luna. She stated that she first checked the public assistance files and found no record of recorded property. She then obtained tax assessment cards which showed two parcels of property in the names of Paris and Londunn Luna with a combined value of $12,590. She stated that she obtained copies of the land installment contract and the warranty deed from the recorder's office and was instructed by her director to calculate the amount of overpayment that had been made.

She testified that her calculation showed that from January 1, 1990 to June 1, 1990, the Luna family was overpaid $3,288 in ADC cash, $2,388 in food stamps and $2,250.92 in Medicaid, for a total of $7,826.92. She explained that the effect that property ownership has on ADC benefit eligibility is that if an applicant lives on the property that he owns or is paying for, the value of the property is not considered a resource. If the applicant does not live on the property, however, Singer testified that:

" * * * I would ask you [the applicant], would you be interested in conditional eligibility for ADC and Medicaid, which is the medical card. You could get nine months worth of ADC cash and Medicaid if you agreed to sell the property, repay any assistance that was given to you during that nine month disposal time and not sell it for less than 90 percent of its fair market value during that time."

She stated further that with respect to food stamps she would ask the applicant if he ever had an intent to live on the property, and if he answered yes then it would not be included in the calculation of resources. When asked whether all these procedures were contingent on the applicant's reporting that he owns or is buying land, she responded, "Yes, it is."

On cross-examination she testified that on January 3, 1990, Stanley Null was still the owner of the property in question. She stated that she never determined whether appellant ever made any payments on the property and never determined what the value of the property was. She testified further that the property was never in the name of appellant Robert Luna. On recross-examination, she again admitted that she never determined what appellant's interest in the property was.

At the close of the state's case appellant made a Crim.R. 29(A) motion for acquittal, which the trial court denied as to all counts.

The defense then called appellant, who testified that he was a licensed real estate agent during the period from January 1, 1990 to June 1990, but he never sold any properties during that time. The only time he owned real estate was in 1987. It was a vacant lot in Willard, Ohio, and he reported it to the agency in 1987 when he applied for and received food stamps. He later exchanged the lot for repair work on his car. As to the question on page twenty-two of the January 3, 1990 application, he stated that at that time no one in his family owned or was purchasing real estate. When asked about May 31, 1989, the date he signed the land contract, he stated that his name was on the original land...