State v. Seneff

• Decision Date: 30 October 1980
• Docket Number: No. 41927,41927
• Citation: 435 N.E.2d 680,70 Ohio App.2d 171
• Parties: , 24 O.O.3d 215 The STATE of Ohio, Appellee, v. SENEFF, Appellant. *
• Court: Ohio Court of Appeals

Page 171

70 Ohio App.2d 171

435 N.E.2d 680, 24 O.O.3d 215

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

No. 41927.

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

Oct. 30, 1980.

Syllabus by the Court

1. As a matter of law, it is an official duty of police officers to cause stolen property which is in their custody to be returned to the rightful owner.

2. A police officer who solicits and receives a reward from the owner of stolen property before returning the property to the owner is guilty of bribery, even though the police officer recovered the property in his off-duty hours, and solicited and received the reward in his off-duty hours.

3. Any amplification of the statutory definitions of "reasonable doubt" and "beyond a reasonable doubt" is inadvisable. A trial court, in going beyond the statutory definitions, must use extreme care not to prejudice either party.

4. Where the trial court reads to the jury the statutory definitions of "reasonable doubt" and "beyond a reasonable doubt", and then instructs the jury that "(i)f after a full and impartial consideration of all the evidence, you are firmly convinced of the truth of the charge, the state has proven its case beyond a reasonable doubt," such amplification of the statutory definitions, if error, is deemed to be harmless.

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

Gold, Rotatori, Messerman & Schwartz Co., L.P.A., and Gerald S. Gold, Cleveland, for appellant.

JACKSON, Presiding Judge.

The defendant-appellant, Richard Seneff, was indicted for and convicted of bribery for soliciting and accepting valuable consideration to influence him with respect to the discharge of his duty as a Cleveland police officer. He asserts on appeal that the trial court's instructions to the jury were erroneous.

First Assignment of Error :

"Upon evidence which raised a factual dispute concerning an essential element of R.C. § 2921.02(B) (bribery), whether a police officer-defendant is engaged in the discharge of his duties when pursuing a certain activity during off-duty hours, the trial court usurped the fact-finding function, denied appellant the right to trial by jury, and relieved the state of the burden of proving guilt beyond a reasonable doubt by explicitly directing the jury to find against appellant on the issue raised."

The offense of bribery is set forth in R.C. 2921.02. The appellant was charged with and convicted of violating subsection (B) of that statute, which provides:

"No person, either before or after he is elected, appointed, qualified, employed, summoned, or sworn as a public servant or party official, shall knowingly solicit or accept any valuable thing or valuable benefit to corrupt or influence him with respect to the discharge of his duty."

The undisputed evidence shows that, during October 1978, the appellant recovered a stolen automobile and returned it to the owner. The appellant freely admitted that before returning the automobile he solicited and received a payment of $1,000 from the owner. The appellant also admitted that he did not file a police report regarding his recovery of the automobile. The appellant's sole defense to the charge of bribery was that he was "off-duty" at the time he recovered the automobile, and solicited and received the payment. He argued before the trial court that the $1,000 did not constitute compensation for the discharge of his official duty, but was merely compensation for his personal, off-duty activities.

The appellant argues on appeal that the trial court in effect directed a verdict as to one essential element of the case, namely, that the appellant had an official duty to return the automobile to its owner. The jury instruction of the trial court which is the subject of controversy follows:

"You will determine from these facts and circumstances whether there existed at the time in the mind of the Defendant an awareness or belief that the 1976 Porsche automobile was stolen, that he, the Defendant was a police officer thus a public servant and that he was soliciting a valuable thing, namely money compensation in order to influence him in the discharge of his duty as a police officer; that is to return the automobile to its owner, or cause the automobile to be returned to its owner."

We are persuaded that the instruction of the trial court does no more than specify the official duty that the appellant, as a police officer, was accused of performing for compensation. ¹ It is a matter beyond dispute that one of the official duties of the police is to cause the return of stolen property to the rightful owner. By statute, police officers of a municipal corporation are obligated to "protect property" and to "perform such other duties as are provided by ordinance":

"The police force of a municipal corporation shall preserve the peace, protect persons and property, and obey and enforce all ordinances of the legislative authority thereof, and all criminal laws of the state and the United States. * * * Both the police and fire departments shall perform such other duties as are provided by ordinance. * * *" R.C. 737.11. ²

The city of Cleveland has prescribed by ordinance that the police shall locate and notify the owners of recovered stolen property as to when and where their property may be reclaimed:

"Disposition of Property Held by the Division of Police.

"(a) Property which has been lost, abandoned, stolen or lawfully seized or forfeited, and which is in the custody of the Division of Police, shall be safely kept pending the time it is no longer needed as evidence, and disposed of pursuant to this section.

"(b) The Division shall make a reasonable effort to locate the persons entitled to possession of property in its custody, and to notify them when and where it may be claimed. In the absence of evidence identifying persons entitled to custody, it is sufficient notice to advertise in a newspaper of general circulation in the County, briefly describing the nature of the property in custody and inviting persons to view and establish their right to it." Section 601.14 of the Codified Ordinances of Cleveland. ³

The appellant asserts that he was not obligated to perform his official duty to cause the return of stolen property while he was off-duty. That issue, however, is not before this court. The appellant was not charged with or punished for failing to return stolen property which he discovered while off-duty; he was found guilty of soliciting and receiving valuable consideration for performing a duty which was his responsibility to perform as a police officer.

We have been unable to discover any Ohio cases involving criminal prosecutions for similar conduct. The Ohio Supreme Court has ruled, however, that a police officer is not eligible to collect a reward for making an arrest or retrieving stolen property. Gilmore v. Lewis (1843), 12 Ohio 281; Somerset Bank v. Edmund (1907), 76 Ohio St. 396, 81 N.E. 641. In both cases municipal constables sought to claim a reward offered by private citizens. In Somerset Bank v. Edmund, the court expressly rejected the plaintiff's argument that he was entitled to the reward because he effected the arrest as a private citizen and not in his capacity as constable:

"1. Public policy and sound morals alike forbid that a public officer should demand or receive for services performed by him in the discharge of official duty, any other or further remuneration or reward than that prescribed and allowed by law.

"2. The office of constable is not an office created for the private emolument of the holder. Every constable is a conservator of the peace, and it is his duty, within his jurisdiction, 'to apprehend and bring to justice all felons and disturbers and violators of the criminal laws of the state,' without other reward or compensation therefor than such as is fixed and allowed by law.

"3. A constable who, within his jurisdiction, arrests a person who has committed a felony, will, in making the arrest, be presumed and held to act in his official capacity, whether such arrest be made by him under, or without a warrant. And the law will not permit him to claim that an arrest made, pursuant to official duty, was made by him in his individual capacity as a private citizen." Id., syllabus.

In Gilmore v. Lewis, supra, the court indicated that a police officer who solicits extra compensation to perform his duties is guilty of extortion:

" * * * As a civil duty, every individual is bound to use reasonable exertion to effect the punishment of crime; but the law imposes no such obligation on the private citizen, unless called upon for assistance, by its ministerial officers; and an offered reward is, frequently, the only hope of remuneration for a meritorious service rendered to the commonwealth.

"But public officers, on whom the law casts this duty, from whom it requires exertion, and to whom it affords adequate compensation, occupy different ground.

"It is an indictable offense, in them, to exact and receive anything, but what the law allows, for the performance of their legal duties. A promise to pay them extra compensation is absolutely void, under the statute of Ohio. Such promise could not be enforced at common law, being against sound policy, and, quasi, extortion. * * *" (Emphasis added.) Id., at 285-286.

Judge Wasserman of this court, while sitting by assignment on the Ohio Supreme Court, expounded upon this principle in a case involving a county officer who obtained reimbursement for travel expenses based on automobile mileage for himself and for county officers and employees that he carried as passengers on county business:

"Even if appellee had not filed for travel money himself when he carried other officials, he could not have accepted payment from more than one passenger because a public official cannot use his position for private profit. It is a well-worn, but no less true, statement of public policy that a public office is...