State v. Mehozonek

• Decision Date: 05 August 1983
• Citation: 456 N.E.2d 1353,8 Ohio App.3d 271,8 OBR 364
• Parties: , 8 O.B.R. 364 The STATE of Ohio, Appellee, v. MEHOZONEK et al., Appellants.
• Court: Ohio Court of Appeals

Page 271

8 Ohio App.3d 271

456 N.E.2d 1353, 8 O.B.R. 364

The STATE of Ohio, Appellee, v. MEHOZONEK et al., Appellants.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Aug. 5, 1983.

Syllabus by the Court

1. Where an employer originates a "sting" to test the honesty of its own security guards by staging a series of mock thefts, and the security guards cooperate with the purported thief, the employer has consented to the removal of its property, and the security guards cannot be convicted of theft, a violation of R.C. 2913.02(A)(1).

2. Where facts presented to the trial court in a criminal case unequivocally negate an essential element of the crime charged, acceptance by the trial court of a plea of no contest from the defendant constitutes an abuse of discretion.

John T. Corrigan, Pros. Atty., for appellee.

Jeffry F. Kelleher, Cleveland, for appellants.

JACKSON, Judge.

Appellants, Victor Mehozonek, Clifton Whigham, Franklin D. Novak, and Sharon S. Brooks, appeal their convictions in the Court of Common Pleas of Cuyahoga County for grand theft, R.C. 2913.02. ¹

In the fall of 1981, officials of the security department of Ford Motor Company ("Ford") in cooperation with the police department of the city of Brook Park, developed a "sting operation" and staged a series of five thefts from the Ford manufacturing plant in that city. Five security guards who allowed the mock crimes to occur were indicted for and convicted of the offense of grand theft. Four of them have appealed their convictions to this court of appeals.

Appellant Victor Mehozonek was tried before a jury and found guilty on March 8, 1982. On March 26, 1982, appellants Novak and Whigham pled no contest. Appellant Brooks was found guilty by a jury on May 13, 1982. All four defendants were given suspended sentences of one to five years imprisonment, and placed on probation.

Neither Brooks nor Mehozonek presented any evidence at trial so the facts in all four cases are not in dispute. In August 1981, John Fonseca, a Ford employee, informed William Landers, the Manager of Plant Number One at the Ford factory complex in the city of Brook Park, that security guards were allowing employees to steal auto parts from the plant. At Landers' request, Fonseca thereafter held up to twenty-five meetings with Randall Dougall and Lawrence Fain (Ford security shift supervisors), George VanHaezebrouk (described as an upper level officer in the security division of Ford) and Timothy O'Rouke (a sergeant with the Brook Park Police Department). At these meetings, Fonseca, the Ford security personnel, and Sergeant O'Rouke planned an investigation of the Ford security guards. Specifically, Fonseca stated to the other men that the security guards would allow him (Fonseca) to remove Ford property from the premises. Fain, Dougall and VanHaezebrouk told him to "go ahead and do it." Landers, the plant manager, testified on cross-examination as follows:

"I had authorized the security people to do whatever they had to do to clean the mess up.

" * * *

"The delegation of authority in that meeting was to do what you have to do and plant one will foot the bill over and above what it normally cost you to put these people on the job."

The same plan was carried out against each of the appellants. Fonseca met the Ford security officials and Sergeant O'Rouke in the parking lot of a nearby restaurant before each operation. Fonseca was given $300 and fitted with a hidden radio transmitter. Fonseca entered the Ford plant, and then exited, carrying parts he had taken from the plant. He informed each of the appellants that he intended to take the parts. Each of the appellants allowed him to take the parts through the gate. Fonseca would return to the parking lot and give the parts to Sergeant O'Rouke.

In each instance Sergeant O'Rouke and Ford security personnel would listen to Fonseca and the appellants over the radio transmitter, and observe them through binoculars. They corroborated Fonseca's description of the events.

Each of the four appellants did more than simply look away while Fonseca took the auto parts from the Ford premises. Mehozonek and Brooks told Fonseca when the gate would be unguarded, but refused the bribes offered by Fonseca. Whigham described to Fonseca precisely how and when to remove property from the factory, and accepted a bribe of $170. Novak allowed Fonseca to store a box of parts under his desk and helped him to carry it to his car. He also accepted a bribe of $200.

The state's witnesses were obviously prepared to testify that Fonseca carried out this operation without the consent of Ford. They became evasive when asked whether Fonseca had permission to remove automobile parts from the plant. Landers, the plant manager, testified that an employee was allowed to take parts out of the gate only if he had a "pass" or a shipping document. When asked if the Ford security supervisors had given Fonseca permission to take the parts through the gate, Landers responded:

"If they gave the guard the permission to take that out--if they had given the guard permission to let that guy go through the gate, then they would be giving their permission. They didn't do that."

Lawrence Fain, security supervisor, was also asked whether Fonseca was operating with his permission. He responded:

"No sir. Not with my permission. John Fonseca again told us what he could do and we told him, if you can do that, do it."

In his testimony Fonseca also repeated this statement many times during the two trials. Nevertheless, the evidence clearly demonstrates that Fonseca did remove automobile parts from the Ford plant with the prior knowledge and consent of the company. Landers, the plant manager, testified that the security department was not under his supervision, that it did not need his permission to carry out this investigation, and that security had authority to do what was necessary in conducting the investigation. The officials of the Ford security department (Fain, Dougall and VanHaezebrouk) assisted in planning the investigation, and executed it with Fonseca several times. Fonseca was neither arrested nor disciplined for his role in the alleged thefts. In fact, Landers stated that Ford was trying to find more men like him.

I

In appellants' first assignment of error, ² they contend that their convictions are against the manifest weight of the evidence and contrary to law because: (1) no crime occurred; (2) Fonseca had no criminal intent; and (3) Ford had consented to the removal of its property.

Before addressing the merits of this assignment of error, it is necessary to describe the procedural context of each of the four cases involved.

A. Procedural Context

Appellants Brooks and Mehozonek pled not guilty and were convicted by juries. It is their contention that the trial court should have directed a verdict in their favor, pursuant to Crim.R. 29, ³ on the ground that on the evidence no reasonable person could have found them guilty, beyond a reasonable doubt.

Appellants Whigham and Novak pled no contest and were convicted upon their pleas. A plea of no contest, in Ohio, is "an admission of the truth of the facts alleged in the indictment * * *." Crim.R. 11(B)(2). In misdemeanor cases, the trial court has statutory authority to acquit a defendant who enters a plea of no contest, upon an "explanation of circumstances." R.C. 2937.07. No such statutory authority exists in felony cases. Moreover, the court need not have before it a factual basis for the plea. State v. Ricks (1976), 48 Ohio App.2d 128, 356 N.E.2d 312 . However, the trial court is vested with discretion to accept or reject a no contest plea. Cf. Brookhart v. Haskins (1965), 2 Ohio St.2d 36, 205 N.E.2d 911 ; see, also, Annotation, Plea of Nolo Contendere or Non Vult Contendere, 89 A.L.R.2d 540, 563-565. Where the facts presented to the trial court unequivocally negate an essential element of the offense charged in the indictment it is an abuse of discretion for the court to accept the no contest plea of the defendant. State v. Cohen (1978), 60 Ohio App.2d 182, 396 N.E.2d 235 .

It is the contention of appellants Whigham and Novak that the facts presented to the trial court at the hearings at which their no contest pleas were taken, unequivocally demonstrated that no crime occurred, and that the trial court should not have accepted their no contest pleas.

B. Merits

An essential element of the crime of theft is the victim's lack of consent. Appellants were indicted under Subsection (A)(1) of R.C. 2913.02, which provides in relevant part:

"No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either:

"(1) Without the consent of the owner or person authorized to give consent; " (Emphasis added.)

Where an owner of property seeks to apprehend and prosecute a would-be thief, the law is clear that the owner may do no more than inform the authorities and lay in wait for the suspect. If the owner originates the criminal plan, for the purpose of testing the trustworthiness of an employee, the courts uniformly hold that an owner by his or its conduct has consented to the taking, and that no crime has been committed.

No more than a few citations of authority are necessary to demonstrate the settled nature of this rule.

" * * * And in Williams v. State, 55 Ga. 395, Mr. Justice BLECKLEY, in his usual clear and lucid style, puts the law thus: 'It seems to be settled law that traps may be set to catch the guilty, and the business of trapping has, with the sanction of courts, been carried pretty far. Opportunity to commit crime may, by design, be rendered the most complete; and, if the accused embrace it, he will still be criminal. Property may be left exposed for the express purpose that a suspected thief may commit himself by stealing it. The owner is not bound to take any measures for security. He may repose upon the law alone, and the...