State v. Mieczkowsk

• Decision Date: 25 June 2018
• Docket Number: No. 17 JE 0016,17 JE 0016
• Parties: STATE of Ohio, Plaintiff-Appellee, v. Robert MIECZKOWSK, Defendant-Appellant.
• Court: Ohio Court of Appeals

115 N.E.3d 758

2018 Ohio 2775

STATE of Ohio, Plaintiff-Appellee,

v.Robert MIECZKOWSK, Defendant-Appellant.

No. 17 JE 0016

Court of Appeals of Ohio, Seventh District, Jefferson County.

Dated: June 25, 2018

Atty. Stephanie Anderson, Special Assistant Prosecuting Attorney, Ohio Auditor of State, 615 W. Superior Avenue, 12th Floor, Cleveland, Ohio 44113 for Appellee and

Atty. Paula Brown, Atty. Richard Parsons, Kravitz, Brown & Dortch, LLC, 65 E. State Street, Suite 200, Columbus, Ohio 43215 For Appellant.

BEFORE: Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges.

OPINION AND JUDGMENT ENTRY

Robb, P.J.

{¶ 1} Defendant-Appellant Robert Mieczkowski appeals from his conviction entered in Jefferson County Common Pleas Court for Having an Unlawful Interest in a Public Contract in violation of R.C. 2921.42(A)(1). Multiple issues are raised in this appeal. Appellant contends R.C. 2921.42 is unconstitutionally void for vagueness. Appellant asserts the trial court erred in granting the state's request to use the definition of "employ" and "authority" as set forth in an Ethics Commission advisory opinion. Appellant asserts the trial court erred when it allowed the state to ask its witness the ultimate issue– whether Appellant's act constituted a crime. He also argues the trial court erred in failing to issue a discovery sanction when a witness was permitted to testify about her review of documents that Appellant had not received during discovery. Next, Appellant asserts misconduct by the prosecutor occurred during voir dire, and according to Appellant, this tainted the entire trial with unfairness. Appellant argues he was deprived of effective assistance of counsel which resulted in prejudice. Appellant argues the state did not meet its burden of production and a Crim.R. 29 motion for acquittal should have been granted. Lastly, Appellant asserts the verdict was against the manifest weight of the evidence. The state disputes all of these arguments and contends there is no basis for reversal. For the following reasons, these arguments lack merit and/or the errors did not result in prejudice to Appellant. The conviction is affirmed.

Statement of the Facts and Case

{¶ 2} In 2013, Appellant was the police chief of the Village of Smithfield. It is undisputed that the two police cruisers used by the Village were in disrepair and the Village desperately needed new cruisers.

{¶ 3} The Village authorized $42,000 to $46,000 to be spent on a new cruiser. Officer Casey Robinson was in charge of getting quotes for this new cruiser. Tr. 327. He requested three quotes and upon receiving them he gave them to Appellant. One of the vehicles was a 2010 Dodge Charger. Appellant called the dealership and negotiated a price of $25,000. Exhibit 14.

{¶ 4} The thought was that spending only $25,000 on one car would permit them to purchase another used vehicle to be used for a canine unit. Exhibit 14. Officer Robinson testified that he said to Appellant, "What about the Tahoe?" Tr. 335. Officer Robinson was aware Appellant was selling a used Tahoe. Officer Robinson indicated he was the first person to mention the Tahoe.

{¶ 5} The Village did purchase the Tahoe from Appellant. It is undisputed Appellant did not vote on the purchase of the Tahoe. The purchase of the Tahoe was unanimously approved by the Village council and the mayor.

{¶ 6} Records of the vote to purchase the Tahoe and the Charger are missing or were never kept by the Village. Likewise, the Village records do not contain the contracts to purchase the Tahoe and the Charger. The evidence submitted at trial indicated the Village consistently kept poor records and during the auditing process the state could not follow the generally accepted government auditing standards because of the poor record keeping.

{¶ 7} Through testimony it was established the agreement between Appellant and the Village was that Appellant sold the Tahoe to the Village for $12,000. The Village paid $3,000 as a down payment and then $500 a month until it was paid in full. As to interest, the evidence indicates Appellant did not charge the Village interest. It is undisputed the NADA value of the vehicle was $12,050.

{¶ 8} The purchase agreement was fulfilled by both parties. Records from the Village show it potentially overpaid Appellant by $500. The records also indicate the Village did not always pay the $500 monthly charge; it would miss a payment and then pay $1,000 the following month.

{¶ 9} The Village was audited multiple times over the years. The "Assistant Auditor III" with the State Auditor's Office indicated the Village had been declared unauditable several times because it historically had not kept good records. Tr. 405. From 2005 forward, it was cited for violating the Revised Code for not having records. Tr. 407. An investigator from the State Auditor's Office indicated he began investigating the Village in 2014 because the Village had failed to remit state taxes for 15 years. Tr. 445. Councilmen and the mayor from 2013 testified they knew the Village was not paying the taxes. Tr. 386, 395, 399, 517. Testimony also indicated the Village owed Jefferson County over $300,000 for water. Tr. 371, 385-386, 395, 399. The financial status of the Village in 2013 was not good; the mayor when asked if the Village was in "absolute dire straight" stated "yes." Tr. 385, 517. One councilman stated that at that time, the Village had a tendency to pay the smaller bills but not the larger outstanding bills to the county and the government. Tr. 401.

{¶ 10} In 2015, Appellant was indicted for violating R.C. 2921.42(A), Having an Unlawful Interest in a Public Contract, a fourth-degree felony. 12/2/15 Indictment. Appellant entered a not guilty plea and the case proceeded through discovery. In discovery Appellant was provided with two pages of copied minutes from the Smithfield council meetings that occurred in March and June 2013.

{¶ 11} The jury found Appellant guilty. 1/18/17 Jury Verdict. Appellant filed a motion to set aside the jury verdict and a Crim.R. 29 motion for acquittal. 1/20/17 Motion. The trial court overruled the motion and set the matter for sentencing. 3/20/17 J.E.{¶ 12} Appellant was sentenced to three years of community control, which included 60 days of electronically monitored house arrest, 24 months of probation, 360 hours of community service, and $500 in restitution. 5/22/17 J.E.

{¶ 13} Appellant timely appealed his conviction.

First Assignment of Error

" Ohio Revised Code § 2921.42 is void for vagueness under the Fourteenth Amendment to the U.S. Constitution and Section 10 of Ohio's Constitution."

{¶ 14} Appellant contends R.C. 2921.42(A)(1) is unconstitutionally vague. This statute states:

(A) No public official shall knowingly do any of the following:

(1) Authorize, or employ the authority or influence of the public official's office to secure authorization of any public contract in which the public official, a member of the public official's family, or any of the public official's business associates has an interest;

R.C. 2921.41(A)(1).

{¶ 15} The alleged offending portion of the statute is "employ the authority or influence of the public official's office." Appellant questions whether this means mere "water cooler" talk or does it require the official to send a letter on official letterhead to the decision-making body requesting authorization. He asserts a person of ordinary intelligence is not able to determine what conduct the statute prohibits. He cites to cases dealing with other statutes as a guide to demonstrate this statute is unconstitutionally vague.

{¶ 16} One of those cases was a United States Supreme Court case quoting a District of Columbia case dealing with a prohibition against railway companies running "crowded cars." Connally v. General Construction Company , 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). "Crowded cars" was not statutorily defined. The other case was an Ohio Supreme Court case addressing R.C. 2923.04(A) and the use of the term "facilitate" as referring to a criminal syndicate. State v. Young , 62 Ohio St.2d 370, 376, 406 N.E.2d 499 (1980). "Facilitate" was not statutorily defined. It appears the reference to the cases he cites is due to the absence of any statutory definition for "authority or influence of public office."

{¶ 17} The state counters arguing R.C. 2921.42 conveys a sufficiently definite warning as to the proscribed conduct that a person of common intelligence would not have to guess at its meaning. The state indicates the general assembly is not required to define every word of the statute. It asserts the statute requires the public official to knowingly use his authority or influence to secure the public contract. This indicates the statute is not meant to punish innocent discussion at the "proverbial water cooler." The state argues the statute provided sufficient notice of its proscriptions and reasonably clear guidelines so that Appellant would understand what the law required of him.

{¶ 18} "The void-for-vagueness doctrine is a component of the right to due process and is rooted in concerns that laws provide fair notice and prevent arbitrary enforcement." In re Application of Columbus S. Power Co. , 134 Ohio St.3d 392, 2012-Ohio-5690, 983 N.E.2d 276, ¶ 20. The critical question in void-for-vagueness cases is whether the law affords a reasonable individual of ordinary intelligence fair notice and sufficient definition and guidance to enable him to conform his conduct to the law. City of Norwood v. Horney , 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115, ¶ 86 (2006). The void-for-vagueness doctrine does not require statutes to be drafted with scientific precision. State v. Anderson , 57 Ohio St.3d 168, 174, 566 N.E.2d 1224 (1991). Impossible standards of specificity are not required. State v. Carrick , 131 Ohio St.3d 340, 2012-Ohio-608, 965 N.E.2d 264, ¶ 14. Courts recognize that "[w]ords inevitably contain germs of uncertainty" and do not expect "mathematical...