Opinion
Nos. 82-873 and 82-970
Decided July 27, 1983.
Criminal law — Perjury — R.C. 2921.11 (A) — Appellate review — Evidence insufficient to convict, when — Construction contracts — Contractor's representation that work was completed when in fact it was not — Grand theft — R.C. 2913.02 — Evidence sufficient to convict, when.
APPEALS from the Court of Appeals for Lorain County.
No. 82-873Appellant Elio Jacobozzi was convicted of having an unlawful interest in a public contract and perjury. These convictions stemmed from Jacobozzi's involvement in certain urban redevelopment contracts while serving as the Service director for the city of Lorain and from his testimony before the Lorain County Grand Jury.
See State v. Jacobozzi (1983), 6 Ohio St.3d 59, decided this day.
Jacobozzi appealed both convictions to the court of appeals. The court of appeals reversed the conviction for having an unlawful interest in a public contract on the grounds that the state failed to produce sufficient evidence to sustain a conviction on that count. Jacobozzi's perjury conviction was upheld.
The facts behind Jacobozzi's perjury conviction are as follows:
Jacobozzi testified before the Lorain County Grand Jury. A portion of Jacobozzi's testimony dealt with his relationship with one Cleon Elliott, appellant in case No. 82-970. The following questions were put to Jacobozzi on his dealings with Elliott:
"Q. Has Mr. Elliott ever done any work for you?
"A. That would be a fair assessment, I would suppose, yes sir.
"Q. What type of work?
"A. I suppose he helped me around the house.
"Q. Specifically, did he ever help collect rents of any properties you own?
"A. No, sir.
"Q. He never collected any rents for you?
"A. Not for me, sir."
The basis of the perjury charge against Jacobozzi was that the foregoing testimony was false. At trial, the state produced two witnesses who testified that they had rented the property in question and had paid their rent to Elliott. In addition, the state offered Jacobozzi's municipal tax return which showed that Jacobozzi continued to depreciate the property in question during the time Elliott had collected rents.
Jacobozzi testified before the grand jury and at his trial that he had sold the property in question to Elliott by way of an oral land contract. The agreement was that Elliott would take over the property in exchange for assuming Jacobozzi's mortgage payment of $102 per month and eventually purchase the property for $10,000. This arrangement was never recorded or reduced to writing and was subsequently cancelled by a mutual decision between Jacobozzi and elliott. Thus, if during the time Elliott "owned" the property he collected any rents, those rents would have been for Elliott himself and not on behalf of Jacobozzi.
In upholding Jacobozzi's perjury conviction, the court of appeals held that there was sufficient evidence to establish the offense of perjury and that the trier of fact was free to disbelieve Jacobozzi's testimony concerning the oral land contract.
No. 82-970Appellant Cleon Elliott was indicted by the Lorain County Grand Jury on one count of having an unlawful interest in a public contract, one count of perjury, and two counts of grand theft. The jury found Elliott guilty on all counts.
On appeal, Elliott's conviction for having an unlawful interest in a public contract was reversed on the grounds that the state failed to produce sufficient evidence to sustain the conviction. The court of appeals upheld Elliott's convictions for perjury and two counts of grand theft. The facts giving rise to Elliott's perjury and grand theft convictions are as follows:
Elliott's conviction for perjury is based on virtually the same circumstances as Jacobozzi's perjury conviction. While testifying before the grand jury, Elliott stated that he had never collected rents on behalf of Jacobozzi. The state contended that statement was false and thereupon based its perjury prosecution. Although tried separately from Jacobozzi, the state produced the same evidence in support of its case. Two individuals testified that they rented the subject property and paid their rent to Elliot. In addition, Jacobozzi's municipal tax return was produced indicating that Jacobozzi had depreciated the subject property during the period in which rents were being paid to Elliott.
Elliott testified at trial that he and Jacobozzi had agreed to a purchase of the property owned by Jacobozzi by means of an oral land contract. Elliott stated that Jacobozzi did not require Elliott to make a down payment and that the total purchase price would be $10,000. Elliott managed to locate two tenants who rented the property and paid their rent directly to him. The land contract was subsequently cancelled by Jacobozzi and Elliott. Therefore, although Elliott did collect rents on the property, the rents were collected by Elliott as the owner of the property, not on behalf of Jacobozzi.
Elliott also stands convicted of two counts of grand theft. These convictions arose from Elliott's activity as a general contractor who was awarded several contracts from the city of Lorain to rehabilitate homes in Lorain's inner city. The state alleged that, even though Elliott received the full contract price from the city for these rehabilitation contracts, in two separate instances Elliott did not perform the work called for in the contract. In his defense, Elliott testified that prior to receiving payment under the contracts with the city, the work passed inspection by a city inspector.
The court of appeals upheld Elliott's perjury and grand theft convictions holding that the state produced sufficient evidence to sustain the convictions.
The matter is now before the court upon the allowance of motions for leave to appeal.
Mr. Gregory A. White, prosecuting attorney, Mr. William F. McKee and Mr. Douglas D. MacGillivray, for appellee.
Mr. Malcolm C. Douglas, for appellant Elio Jacobozzi.
Mr. James L. Walsh, for appellant Cleon Elliott.
Since both Jacobozzi and Elliott raise the same issue with respect to their respective convictions for perjury, we have consolidated their appeals into a single decision.
R.C. 2921.11 (A) provides:
"No person, in any official proceeding, shall knowingly make a false statement under oath or affirmation, or knowingly swear or affirm the truth of a false statement previously made, when either statement is material."
Thus, in order to sustain a conviction for the offense of perjury, the state must establish beyond a reasonable doubt that a statement made by the accused under oath or affirmation was false. See In re Winship (1970), 397 U.S. 358 [51 O.O.2d 323]; State v. Eley (1978), 56 Ohio St.2d 169 [10 O.O.3d 340]. Appellants essentially maintain that the state failed to establish beyond a reasonable doubt that either appellant's grand jury testimony was false. As a result, an examination of the state's evidence is necessary.
The state attempted to establish that appellants had committed perjury by the testimony of two witnesses who had rented the premises in question from Elliott and by Jacobozzi's municipal tax return. The two witnesses testified that they had rented the property of which Jacobozzi was the record owner, paid their rent directly to Elliott, understood Elliott to be the owner of the property, had no contact whatsoever with Jacobozzi, and had been eventually evicted by Elliott. Jacobozzi's municipal tax return does show that Jacobozzi depreciated the property during these witnesses' tenancies; however, Jacobozzi did not report any rental income derived from the property.
Construing this evidence in a light most favorable to the prosecution, the state's case fell far short of meeting its burden of establishing all the essential elements of the offense beyond a reasonable doubt. The state failed to produce any evidence which even arguably contradicts appellants' grand jury testimony. In fact, appellants' grand jury testimony is entirely consistent with the evidence offered by the state in support of the perjury charges.
Appellants testified that Elliott never collected rents on behalf of Jacobozzi. Appellants did not testify that Elliott never collected any rents. Under the state's theory of the case, appellants' perjury convictions can only be sustained if the state produced sufficient evidence to establish beyond a reasonable doubt that Elliott collected rents from property owned by Jacobozzi and then passed the rents on to Jacobozzi. If indeed that was the case, then the state completely failed to present evidence which would so indicate. The evidence offered by the prosecution only tended to establish, if anything, that Elliott held himself out to be the owner of the property and collected rent from tenants that Elliott himself had procured. Jacobozzi's tax return is not supportive of the state's case in view of the fact that the return does not indicate that Jacobozzi received any rental income from the property. The record discloses absolutely no evidence that Elliott, in collecting rents for the subject property, was working for Jacobozzi, or that somehow he was acting as Jacobozzi's agent. Without some proof on this point, the state's contention that appellant's grand jury testimony was perjurious remains totally unsubstantiated.
Accordingly, with respect to the perjury convictions the judgments of the court of appeals are reversed, appellants' convictions for perjury are vacated, and judgments of acquittal on the perjury counts shall be entered as to each appellant.
II
Elliott also argues that his convictions for grand theft should be reversed. While Elliott raises several issues with respect to the legality of his theft convictions, the only issue properly before the court is whether the state produced sufficient evidence to sustain the grand theft convictions.
Elliott raises several other issues dealing with allegedly irrelevant and inflammatory testimony, as well as the legality of the grand jury proceedings which led to his indictment. None of these matters was objected to at trial and such matters were raised for the first time on appeal. Consequently, we do not consider them in this appeal.
Elliott was convicted on two counts of violating R.C. 2913.02. In consideration of the issue raised by Elliott, it is our task to determine whether the state's evidence was sufficient to establish beyond a reasonable doubt that Elliott was guilty of grand theft. Eley, supra. For the following reasons, we hold that the state did produce sufficient evidence to sustain Elliott's theft convictions.
Frank G. Mason, the Lorain Director of Community Development, and Eugene Gargasz, the Lorain Community Development Co-ordinator, collectively testified that Elliott had applied for and received payment for completed rehabilitation contracts for the residences of Nicholas Arzuaga and Isabelle Merriam despite the fact that a substantial amount of work had not been completed. For instance, as to the Arzuaga residence, an inspection revealed that Elliott had failed to perform the following as was required under the contract: repair leaking walls, install weather-stripping, patch ceilings, repair the front door, and caulk the bathtub. In addition, Elliott installed an inferior tile in the bathroom, yet charged the full contract price and charged for fixing nonexistent windows and patching nonexistent holes. An inspection of the Merriam residence disclosed that, after receiving payment for the work, Elliott had failed to: repair cracks in the walls and ceiling of the kitchen, properly install ductwork for a new furnace, and install insulation (although installed by Elliott at a later date).
R.C. 2913.02 in part stated:
"(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either:
"* * *
"(3) By deception."
This section went on to provide that if the value of the property or services exceeds $150, the offense is grand theft.
In the case at bar, the state's witnesses testified that Elliott represented to the city that he had completed work under a contract with the city which, in fact, was not completed and received payment therefor. In addition, for each residence, the amount of work for which Elliott was paid but failed to perform, exceeded $150. That being the case, it becomes clear that the state was justified in prosecuting Elliott under R.C. 2913.02 (A)(3), inasmuch as Elliott purposely deprived the owner (the city) of property (money) by deception (Elliott's representation that the work was completed). As a consequence, we hold that the evidence produced by the state was sufficient to sustain Elliott's conviction for two counts of grand theft and that the court of appeals did not err in upholding Elliott's grand theft convictions.
Accordingly, the judgment of the court of appeals is affirmed with regard to Elliott's convictions for grand theft.
Judgments accordingly.
CELEBREZZE, C.J., SWEENEY and LOCHER, JJ., concur.
HOLMES, J., dissents in part and concurs in part.
C. BROWN and J.P. CELEBREZZE, JJ., concur in part and dissent in part.
W. BROWN, J., not participating.
I dissent in this court's reversal of the court of appeals' judgments of affirmance of the perjury convictions of appellants Jacobozzi and Elliott. I dissent, in that it is my belief that the court of appeals perused the records of the trial court proceedings in great detail and reversed and dismissed some of the convictions, and affirmed the others. This precise review of the court of appeals with conclusions as to the sufficiency of the weight of the evidence for such remaining convictions should not be reweighed by this court in order to produce contrary conclusions.
I concur, however, in this court's affirmance of the court of appeals' judgment of affirmance of appellant Elliott's convictions of two counts of grand theft.
I concur in the reversal of the perjury convictions of Jacobozzi and Elliott. I dissent from the affirmance of the convictions of Elliott on two counts of grand theft.
The Elliott grand theft convictions stem from his work as a general contractor for the city of Lorain rehabilitating houses in the Lorain inner city. Evidence was produced that Elliott did not perform all the contract work provided in the written contracts but had received payment of the full contract price.
These facts present a typical breach of contract action where the alleged breach constitutes a failure of substantial performance of the contract by the building contractor. The issues arising from such facts should be determined in a civil action between the disputants.
Otherwise, whenever a building contractor fails in any respect to fully perform his contract with the owner and receives payment of the full contract price, he is subject to criminal prosecution for theft under R.C. 2913.02(A)(3). The General Assembly in enacting this statute could not have intended building contractors to be subjected to criminal prosecution for theft whenever a party to a contract contends the building contractor failed to fully perform the contract although receiving payment of the full contract price.
J.P. CELEBREZZE, J., concurs in the foregoing dissenting opinion.