State v. Urbin

• Decision Date: 03 July 2002
• Docket Number: No. 01CA007846.,01CA007846.
• Citation: 148 Ohio App.3d 293,2002 Ohio 3410,772 N.E.2d 1239
• Parties: The STATE of Ohio, Appellee, v. URBIN, Appellant.
• Court: Ohio Court of Appeals

772 N.E.2d 1239

2002 Ohio 3410

148 Ohio App.3d 293

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

No. 01CA007846.

Court of Appeals of Ohio, Ninth District, Lorain County.

Decided July 3, 2002.

COPYRIGHT MATERIAL OMITTED

Gregory A. White, Lorain County Prosecuting Attorney, and Mary R. Evard, Assistant Prosecuting Attorney, Elyria, for appellee.

William T. Doyle and James M. Kersey, Cleveland, for appellant.

WHITMORE, Judge.

{¶ 1} Defendant-appellant Vince Urbin has appealed from a judgment of the Lorain County Court of Common Pleas that found him guilty of two counts of having an unlawful interest in a public contract in violation of R.C. 2921.42(A)(1), one count of tampering with evidence in violation of R.C. 2921.12(A)(1), and one count of complicity to tampering with evidence in violation of R.C. 2923.03(A)(1) and R.C. 2921.12(A)(1). This court affirms.

I.

{¶ 2} While serving as Mayor of Avon Lake, appellant was indicted on eleven criminal charges. Appellant was charged with theft in office in violation of R.C 2921.41(A)(1), theft in violation of R.C. 2913.02(A)(2), three counts of having an unlawful interest in a public contract in violation of R.C. 2921.42(A)(1), three counts of tampering with evidence in violation of R.C. 2921.12(A)(1), complicity to tampering with evidence in violation of R.C. 2923.03(A)(1) and 2921.12(A)(1), election falsification in violation of R.C. 3599.30, and soliciting or accepting improper compensation in violation of R.C. 2921.43(A)(1). After a jury trial, appellant was found guilty of two counts of having an unlawful interest in a public contract, one count of tampering with evidence, and one count of complicity to tampering with evidence. Appellant has appealed the convictions, asserting seven assignments of error. For ease of discussion, the substantive factual history of this case will be divided into four sections which precede the appropriate assignment(s) of error.

II Unlawful Interest in a Public Contract

{¶ 3} The evidence presented at appellant's trial established that appellant contracted to have two city events catered by the Fountain Bleau Party Center (the "Center").¹ The evidence also showed that at the time of the events, appellant's brother, Dan, was working for the Center and was attempting to purchase it.² James Weisbarth, one of the Center's owners, testified that Dan negotiated to purchase the Center prior to January 2000 and that the deal fell apart sometime after January 2000. It is undisputed that at the time of the events in question Dan was attempting to buy the Center.

{¶ 4} It is also undisputed that Dan was the manager of the Center in December 1999 until the spring of 2000. While Dan did not receive a salary from the Center until January 2000, Weisbarth testified that at the time of the events Dan was the sole manager of the Center. Dan's duties included handling the day-today running of the business, which included the hiring and firing of employees, payroll, scheduling employees, and paying distributors. Dan was also responsible for booking parties and the outside catering jobs. Trial testimony also established that Dan selected and ordered the company vehicle. Dan's son and wife were also employed by the Center.

{¶ 5} Appellant testified that he recognized that if his brother owned the Center he could not use it for city functions, but that he thought that since Dan was not an owner, no conflict existed. Appellant also testified that he attempted to have one of the parties at another location in Avon Lake but that party center was unavailable. Appellant stated that he did not hide the fact that the parties were catered by the Center, but he admitted that he did not inform the public that his brother was the manager of the Center and was attempting to buy it.

Assignment of Error Number One

{¶ 6} "The trial court erred in failing to grant the appellant's motion under Crim.R. 29(A) for judgment of acquittal on the counts alleging having an unlawful interest in a public contract, as proscribed by [R.C. 2921.42], in that the evidence was not legally sufficient to support a conviction."

{¶ 7} In his first assignment of error, appellant has asserted that the trial court erred in denying his motion for acquittal under Crim.R. 29(A) because the evidence was insufficient to support a conviction for having an unlawful interest in a public contract. Specifically, appellant has argued that an "interest," as required by R.C. 2921.42, does not exist in this case.

{¶ 8} Pursuant to Crim.R. 29(A), a trial court "shall order the entry of a judgment of acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or offenses." To determine whether a conviction is supported by legally sufficient evidence, this court must decide "whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus; see, also, State v. Wolfe (1988), 51 Ohio App.3d 215, 216, 555 N.E.2d 689. "In essence, sufficiency is a test of adequacy." State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541.

{¶ 9} Appellant was charged with violating R.C. 2921.42 for having an unlawful interest in a public contract. Pursuant to R.C. 2921.42, "[n]o public official shall knowingly * * * [a]uthorize, or employ the authority or influence of his office to secure authorization of any public contract in which he, a member of his family, or any of his business associates has an interest[.]" R.C. 2921.42(A)(1). "A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist." R.C. 2901.22(B).

{¶ 10} While the term "interest" is not statutorily defined, the Ohio Ethics Commission in discussing R.C. 2921.42 found:

{¶ 11} "[A]n employee is considered to have an interest in his employer's contracts if: (1) the employee takes part in contract negotiations; (2) his salary is based on the proceeds of the contract; (3) he receives a share of the contract's proceeds in the form of a commission or fee; (4) his employment responsibilities include participation in the administration or execution of the contract; or (5) where the employee's tenure is dependent upon his employer receiving the award of such contract." Ohio Ethics Commission, Advisory Opinion No. 89-008.

{¶ 12} In 1992, the Ohio Ethics Commission clarified its definition of "interest" in relation to R.C. 2921.42 by stating that:

{¶ 13} "[A]n employee of a firm will be deemed to have an `interest' in a public contract entered into by her employer * * * if any of the following circumstances apply: (1) the employee has an ownership interest in, or is a director, trustee, or officer of, her employer; (2) she takes part, as a firm employee, in contract negotiations or the application process; (3) her salary is based or dependent upon, or is paid from, the proceeds of the contract; (4) she receives a share of the contract's proceeds in the form of a commission or fee; (5) her responsibilities as an employee include participation in the administration or execution of the contract or she has the responsibility to oversee execution or administration of the contract; (6) the employing agency receives most or all of its funding from the contract, such that the establishment or operation of her employing agency is dependent upon receipt of the contract; or, (7) the creation or continuation of her employment is dependent upon her employer receiving the award of the contract." Ohio Ethics Commission, Advisory Opinion No. 92-002.

{¶ 14} In the case sub judice, the trial court used the Ohio Ethics Commission's definition of "interest" in its jury instructions. Appellant has not assigned such use as error. Therefore, the only issue before this court is whether sufficient evidence existed to support a conviction of having an unlawful interest pursuant to R.C. 2921.42 as that "interest" was defined in the jury instructions. The pertinent jury instruction is as follows:

{¶ 15} "A city mayor's brother has an improper interest in that city's public contract (1) if he receives or expects to receive a definite and direct financial benefit from the other party's participation in the city's public contract, or (2) if he has or expects to have a definite and direct responsibility for the other party's adoption or performance of the city's public contract. A city mayor's brother may have an improper interest in the city's public contract if, (a) he has an ownership interest in the company with which the city makes that public contract; or (b) he actively participates in that company's negotiations for that public contract; or (c) he has direct responsibility for that company's performance of that public contract."³

{¶ 16} This court concludes that, in construing the evidence in a light most favorable to the prosecution, the record demonstrates that a rational trier of fact could have found the essential elements of having an unlawful interest in a public contract proven beyond a reasonable doubt. The evidence showed that appellant violated R.C. 2921.42 because he knowingly authorized two public contracts in which his brother had an interest. While the record does not cite under which prong of the interest definition the jury categorized Dan's relationship to the Center, the record does clearly show an interest within the trial court's definition. As manager of the Center, Dan had direct responsibility for the Center's performance of the contracts, that is, he was directly responsible for the hosting and catering of the events. By all accounts, Dan ran the Center; he was in charge of the day-to-day activities,...