State v. Parks

• Decision Date: 14 April 1982
• Citation: 7 Ohio App.3d 276,455 N.E.2d 498,7 OBR 357
• Parties: , 7 O.B.R. 357 The STATE of Ohio, Appellee, v. PARKS, Appellant.
• Court: Ohio Court of Appeals

Page 276

7 Ohio App.3d 276

455 N.E.2d 498, 7 O.B.R. 357

The STATE of Ohio, Appellee, v. PARKS, Appellant.

Court of Appeals of Ohio, Second District, Montgomery County.

April 14, 1982.

Syllabus by the Court

1. When a criminal defendant testifies in his defense after the trial court has overruled his motion to dismiss at the close of the state's case, he waives his right to claim error in the overruling of such motion. (Halkias v. Wilkoff, 141 Ohio St. 139 , applied.)

2. The crimes of grand theft by deception, a violation of R.C. 2913.02(A)(3), and complicity to commit the crime of arson, a violation of R.C. 2909.03(A)(4) and 2923.03(A)(1), are not allied offenses of similar import within the meaning of R.C. 2941.25.

Lee C. Falke, Pros. Atty., and Ted E. Millspaugh, Dayton, for appellee.

Gary J. Leppla, Germantown, for appellant.

SHERER, Judge.

Appellant, Walter R. Parks, was convicted and sentenced for the crime of complicity to commit arson in violation of R.C. 2923.03(A)(1) and 2909.03(A)(4) and for the crime of grand theft by deception in violation of R.C. 2913.02(A)(3).

R.C. 2909.03(A)(4) provides:

"(A) No person, by means of fire or explosion, shall knowingly:

" * * *

"(4) Cause, or create a substantial risk of, physical harm, through the offer or the acceptance of an agreement for hire or other consideration, to any property of another without his consent or to any property of himself or another with purpose to defraud."

R.C. 2923.03(A)(1) provides:

"(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:

"(1) Solicit or procure another to commit the offense;"

R.C. 2923.03(D) provides that no person shall be convicted of complicity under this section solely upon the testimony of an accomplice, unsupported by other evidence.

R.C. 2913.02(A)(3), relating to theft, provides:

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

" * * *

"(3) By deception;"

The gist of the state's case is that Parks hired one Hickle to burn his residence property at 138 South June Street in Dayton with intent to defraud Progressive Casualty Insurance Company of its property, checks having a value of $150 or more.

The first error assigned is that the trial court erred in failing to direct a verdict as a result of the uncorroborated nature of the testimony of the accomplice.

Appellant moved to dismiss at the close of the state's case for the reason that Hickle's testimony was uncorroborated. But for the need for corroboration of Hickle's testimony, his testimony and other evidence were sufficient to prove appellant guilty as charged.

In State v. Pearson (1980), 62 Ohio St.2d 291, 105 N.E.2d 296 , the Supreme Court held in the syllabus:

"1. R.C. 2923.03(D) can prohibit convictions for principal offenses, as well as prohibit convictions for the complicity offenses described in R.C. 2923.03(A).

"2. In order for the prosecution to satisfy the corroboration requirement of R.C. 2923.03(D), independent evidence must support an accomplice's testimony, and must tend to connect the accused with the alleged crime or must tend to identify the accused as a guilty actor. (State v. Myers, 53 Ohio St.2d 74 , approved and followed.)"

The state contends that there was such independent evidence to support the testimony of Hickle tending to connect appellant with the crimes charged and to identify the accused as a guilty actor as follows:

John Moore, an investigator with the Arson Abatement Unit of the Dayton Fire Department, testified that he did the follow-up investigation on the fire at 138 South June Street and that after talking with Hickle, the latter was fitted with a body mike and transmitter and was sent to appellant's residence to engage him in a conversation regarding that fire. Moore testified that he heard and monitored that conversation involving Hickle and that during that conversation which was taped, the person Hickle was talking to was referred to by Hickle as "Walt" or "Walter." Moore testified further that a tape recording of that conservation, which was played for the jury without objection, was a fair, accurate recording of what he heard when he sent Hickle to appellant's home. In that conversation, Moore heard Hickle ask the man he referred to as "Walt" or "Walter" what happened to the house he had burned for him; that "Walt" or "Walter" said, "Oh they tore it down." Moore testified that he heard Hickle ask "Walt" or "Walter" how he came out on the insurance deal and that he heard "Walt" or "Walter" say, "Oh, yeah." Moore testified he heard Hickle say, "I think you said you got nine thousand or something, wasn't it" and that he heard "Walt" or "Walter" answer, "Yeah, and this, I bought this and it's all paid for and don't owe a fucking thing on it."

As a part of the state's case, one Richard Shay testified that he adjusted a fire claim for Walter and Sheila Parks involving their property on South June Street; that he delivered an insurance check payable to them and a mortgage company in the amount of $9000 and a second check to them for $845 for damage to contents. He testified that he received a written claim from them signed by Walter Parks indicating that the fire was caused by defective wiring in the burned house. He stated that such checks would not be issued if the owners are involved in causing the fire.

We conclude that the evidence adduced by the state in its case in chief is such as to constitute independent evidence in corroboration of Hickle's testimony so as to satisfy the corroboration requirement of R.C. 2923.03(D) and the holding of the Supreme Court in the Pearson case.

After the state rested and after the trial court overruled appellant's motion to dismiss for failure of the state to corroborate Hickle's testimony, appellant testified in his own behalf. He stated that he saw Hickle before the fire. He admitted that Hickle came to his house and that he stated he had burned the house at 138 South June Street. He stated that Hickle asked him if he knew of any houses to burn down. He stated that he went along with Hickle and told him there was a man somewhere on the block but that he couldn't remember. He stated that he didn't know what Hickle was talking about. On cross-examination, he admitted that the voices on the tape recording of his conversation with Hickle played in court were his and Hickle's. He admitted having several conversations with Hickle before the fire. He admitted that the taped recording of his conversation with Hickle occurred after the fire. He admitted that Hickle mentioned the $9000 figure when talking about the fire, but that he thought Hickle was talking about a truck. He admitted that when Hickle asked him if he knew of any houses to burn down and that he might have said to him, "and if I hear of anything, you just keep in touch with me."

The state argues that when appellant testified in his defense after the trial court had overruled his motion to dismiss at the close of the state's case, he waived his right to claim error in overruling such motion, citing Halkias v. Wilkoff (1943), 141 Ohio St. 139, 47 N.E.2d 199 , which holds in the syllabus:

"(2) When a motion of a defendant for a directed verdict is made at the conclusion of plaintiff's evidence and overruled, the defendant has an election either to stand on his exception to the ruling or to proceed with his defense; and if he accepts the ruling, however erroneous it may be, and proceeds with his defense, introducing evidence on his own behalf, he thereby waives his right to rely on the denial of his original motion.

"(3) The renewal of defendant's motion to direct a verdict at the close of all the evidence challenges, not the sufficiency of the evidence that was alone before the court and jury at the time the original motion was made, but the evidence and the state of the record as it exists at the conclusion of all the evidence."

This court has held the rule announced by the Supreme Court in Halkias to be applicable in criminal cases in State v. Moore (Nov. 14, 1980), Miami App. No. 80 CA 30, unreported. The Cuyahoga County Court of Appeals has applied the rule in Halkias to criminal cases in State v. Kiraly (1977), 56 Ohio App.2d 37, 381 N.E.2d 649 , and in State v. Larry (1975), 44 Ohio App.2d 92, 335 N.E.2d 731 .

We apply that rule in the case before us and hold that appellant waived his right to rely upon any possible error of the trial court in overruling his motion to dismiss at the close of the state's case. We further hold that the motion of appellant to dismiss at the close of all the evidence was properly overruled because appellant's testimony in his own behalf furnished independent evidence to support the testimony of Hickle to connect appellant with the crime charged and to identify appellant as a guilty actor. We conclude further that the evidence in the record at the close of all the evidence is sufficient to prove appellant guilty of the crimes charged beyond a reasonable doubt.

The second error assigned is that the trial court erred in failing to direct a verdict due to the lack of evidence of intent to defraud or steal.

This assignment refers to appellant's conviction of the crime of grand theft by deception in violation of R.C. 2913.02(A)(3).

The evidence on this point is conflicting. The evidence adduced, if believed, is sufficient to show beyond a reasonable doubt that appellant agreed to pay Hickle $150 to burn down his home and that he indicated to Hickle that he wanted it burned in order to collect $9000 in insurance proceeds; that Hickle burned the house down and was paid $100 by appellant for his efforts; that appellant later received two checks from Progressive Casualty Insurance Company, one for over $9000 payable to both appellant and the mortgage...