Wednesday, May 8, 2019
State of Ohio v. Zachary C. Allen, Case no. 2018-0705
Tenth District Court of Appeals (Franklin County)
State of Ohio v. Michael C. Horn, Case no. 2018-0743
Sixth District Court of Appeals (Wood County)
Disciplinary Counsel v. Timothy R. Dougherty and Christopher T. Cicero, Case no. 2018-1766
Franklin County
State of Ohio v. Joseph Jones, Case no. 2018-0601
First District Court of Appeals (Hamilton County)
Are Banks Victims of Forgery and Entitled to Restitution?
State of Ohio v. Zachary C. Allen, Case no. 2018-0705
Tenth District Court of Appeals (Franklin County)
ISSUES:
- Is a bank that cashes a forged check and suffers a loss a “victim” under R.C. 2929.18?
- If a bank becomes a victim by cashing a forged check, can the defendant be convicted of forgery be ordered to pay restitution to the bank?
BACKGROUND:
In August 2016, Zachary Allen was indicted in Franklin County for seven counts of forgery and seven counts of possession of criminal tools. Allen cashed seven checks that he knew were counterfeit at four different banks. The checks were drawn from the accounts of two apartment complexes and one flooring service.
Allen pleaded guilty to the forgery charges in exchange for dismissal of the other charges. At a 2017 sentencing hearing, the Franklin County Prosecuting Attorney sought restitution to be paid to the banks that cashed the checks. Allen objected, arguing the banks were “third parties,” and would be reimbursed by insurance. Once the banks confirmed there would be no insurance coverage for the losses, the trial judge ordered Allen to pay restitution.
Allen appealed the restitution order to the Tenth District Court of Appeals, which reversed the trial court’s order. The prosecutor appealed the decision to the Supreme Court, which agreed to hear the case.
Banks Are Forgery Victims, Prosecutor Argues
R.C. 2929.18(A)(1) authorizes trial courts to impose restitution to the victim of a criminal offense for the economic loss suffered, the prosecutor argues. The Tenth District concluded the banks weren’t victims, but “third parties,” and that the companies whose checks were forged were the victims. The banks were required by law to reimburse the accounts of the companies for the forged checks, and that made them suffer a loss, the prosecutor argues. Since the banks were the ones that ultimately suffered losses, they are victims, not third parties, and entitled to be paid restitution, the prosecutor concludes.
The prosecutor also argues the banks are victims because they retain a property interest in the customer deposits. The banks become “owners” of the deposited funds and have the right to use them to make loans that help the bank earn profits. So when Allen forged the checks and received money, the banks lost the ability to use the money to earn profits. That makes them victims of Allen’s crimes, the prosecutor maintains.
Even if the banks were third parties, Ohio law doesn’t bar them from receiving restitution, the prosecutor argues. The office notes that R.C. 2929.18 was amended in 2004 by state lawmakers to no longer require that third parties receive restitution, but the law didn’t prohibit it. Barring payment to the banks promotes the unjust enrichment of the wrongdoer, the prosecutor concludes.
Banks Not Entitled to Restitution, Forger Maintains
Allen notes that in the prior version of R.C. 2929.18(A)(1) state lawmakers distinguished “victims,” from “third parties” and noted the restitution could be paid to third parties that suffered any loss as the result of reimbursing victims. He argues the banks reimbursed the accounts of the companies and the companies were the victims. The revised statute doesn’t provide restitution to third parties, he maintains.
“Ohio law simply does not permit restitution to every entity that suffered a loss as a result of a crime,” Allen’s brief states.
Allen notes that neither the banks nor the account holders were listed as victims in the indictment. The Tenth District wrote that R.C. 2929.18 doesn’t define “victim,” and it concluded that not every person who suffers an economic loss from a crime is a “victim” that can receive restitution.
To illustrate the point, Allen notes in his brief the Eleventh District Court of Appeals’ 2016 In re M.A. decision in as an example of restitution being paid to a school district after a juvenile called in a bomb threat. Allen explains in that case the police and fire departments also sought restitution for the costs of responding. The Eleventh District awarded the school district restitution because it was the “object” of the criminal’s intent, making the district the victim. But it didn’t award restitution to the police and fire departments even though they suffered economic loss from the crime. Allen concludes the Tenth District was correct in determining the banks weren’t victims under R.C. 2929.18(A)(1) even if they suffered an economic loss.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio from the Franklin County Prosecuting Attorney’s Office: Barbara Farnbacher, 614.525.3555
Representing Zachary C. Allen from the Franklin County Public Defender’s Office: Robert Essex, 614.525.8799
Did Mental or Physical Condition Impair Children Raped by Family Member?
State of Ohio v. Michael C. Horn, Case no. 2018-0743
Sixth District Court of Appeals (Wood County)
ISSUE: Is a familial relationship a mental or physical condition as stated in the law prohibiting sexual conduct when the person’s ability to consent or resist is substantially impaired because of a mental or physical condition?
BACKGROUND:
Michael Horn was accused in Wood County of raping his stepdaughter, S.M., and his stepniece, J.M. At the time the alleged abuse started, S.M. was in eighth grade and J.M. was in elementary school.
Three of the six counts against Horn alleged violations of R.C. 2907.02(A)(1)(c), which prohibits sexual conduct when the “person’s ability to resist or consent is substantially impaired by a mental or physical condition.” The other three counts were based on the rape law in R.C. 2907.02(A)(2), which addresses sexual conduct compelled by threatened or actual force.
In March 2016, a jury found Horn guilty on all six counts. The trial court convicted him on three specifications as a violent sexual predator.
Stepfather Sentenced on Merged Counts
Certain counts were merged for sentencing, and the prosecutor chose the three counts based on the statute involving the victims’ mental or physical condition. The court sentenced Horn in September 2016 to 30 years to life in prison on those three counts.
Horn appealed to the Sixth District Court of Appeals, which upheld his convictions and sentence. He filed an appeal with the Ohio Supreme Court, which accepted the case on the issue whether a family relationship is a mental or physical condition as indicated in R.C. 2907.02(A)(1)(c).
Relationships Aren’t Mental or Physical Condition, Stepfather Contends
Horn was sentenced for violations of R.C. 2907.02(A)(1)(c), which covers situations in which the victim is impaired by a mental or physical condition. Horn argues that, based on the statute’s plain language, a familial relationship isn’t a “mental or physical condition.” No relationship within a family can cause a substantial impairment for this sexual offense, and that relationship can’t form the basis of guilt for this offense, he maintains.
“The mental or physical conditions triggering the statute are those that are conditions suffered by the alleged victim without reference to the accused,” Horn’s brief states. “Boiled down, the statute is targeted at conditions of the putative victim — not relationships between the victim and alleged offender. Again, because no ‘relationship’ is a mental or physical condition, no ‘familial relationship’ can be said to be a ‘physical’ or ‘mental’ condition for purposes of R.C. 2907.02(A)(1)(c) either. Thus, no familial relationship — no matter how close — can satisfy the elements of an (A)(1)(c) rape charge.”
Because the prosecutor chose not to move forward in sentencing on the three counts based on violations of R.C. 2907.02(A)(2) – sexual conduct compelled by threatened or actual force, those convictions can’t now be reinstated, Horn asserts.
Power Dynamic Creates Impaired Condition, Prosecutor Argues
The Wood County Prosecutor’s Office states that the Ohio Supreme Court has recognized that a disproportionate power dynamic creates the element of force in sex crimes. Other Ohio courts have determined a disproportionate power arrangement, especially within a family, can cause substantial impairment, the office argues. And federal and appellate courts in other states have found an imbalanced power dynamic creates substantial impairment, especially when the victim is resisting an authority figure’s sexual advances, the prosecutor notes.
Because rape is about power, a rapist’s position of authority can be critical to analyzing the case, the prosecutor argues. The office maintains that Horn understood that his stepdaughter and stepniece were substantially impaired by his authority over them, and he used that dynamic to his advantage.
“This Court should take the opportunity to harmonize R.C. 2907.02(A)(1)(c) and R.C. 2907.02(A)(2) and hold that, in rape cases, the State may prove substantial impairment by showing a disproportionate power dynamic between the rapist and the victim, especially when that skewed dynamism is caused by the aggressor being in a position of authority — principally a familial one,” the prosecutor’s brief states. “That holding would be in concert with this Court’s precedent in other rape cases involving the presumption of force, where family members are the rapists.”
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Michael C. Horn: Andrew Mayle, 419.334.8377
Representing State of Ohio from the Wood County Prosecutor’s Office: David Harold, 419.354.9250
Disbarment Sought for Thrice-Suspended Lawyer, Suspension for His Associate
Disciplinary Counsel v. Timothy R. Dougherty and Christopher T. Cicero, Case no. 2018-1766
Franklin County
The Board of Professional Conduct recommends that the Ohio Supreme Court permanently disbar Columbus attorney Christopher Cicero and suspend Columbus attorney Timothy Dougherty for two years, with one year stayed on conditions.
The board found the two violated multiple professional conduct rules, describing Dougherty’s behavior as enabling and assisting a suspended lawyer while benefiting professionally and financially from the arrangement, then misrepresenting the nature of arrangement throughout the disciplinary process. Cicero is currently indefinitely suspended from practicing law, and because he didn’t file objections to the board’s report, he won’t participate in oral arguments.
Attorney Switches Practice Focus, Retains Suspended Lawyer
Dougherty is charged with 20 violations of the rules governing the conduct of Ohio lawyers for matters involving six clients over a five-year period. The charges include allowing a suspended lawyer to have direct, substantive client interactions; to failing to provide client information when requested; and charging a clearly excessive fee.
Dougherty sought to change his law practice focus in December 2012 from contract and medical industry law to criminal defense and family practice. He met Cicero around that time and moved into the office formerly serving as the Law Office of Chris Cicero. Cicero moved into a basement office just below Dougherty. The building retained the Law Office of Chris Cicero sign until late 2017.
The office move occurred shortly after Cicero was indefinitely suspended from practicing law in November 2012. It was the third disciplinary sanction Cicero received, having been twice suspended for one year for prior rule violations. The Office of Disciplinary Counsel charged Dougherty and Cicero with rules violations that start with Cicero participating in a case that Dougherty initiated in 2011 and continued to work on when he moved into the Cicero office.
Lawyer Does Little Work in Case, Disciplinary Counsel Claims
Angela Granata is the owner of a family business that went bankrupt in the early 2000s. Granata was taking an online course at Franklin University taught by Dougherty, and she asked him in April 2011 if he could represent her in two legal matters.
Granata paid Dougherty $6,200 for representation in three cases in which he admitted doing little to no work. Granata was introduced to Cicero by Dougherty. Cicero convinced her to fire a lawyer she had hired for another case and have Dougherty represent her. Dougherty failed to appear at a mediation session for the case, and Granata was forced to represent herself. Five days after, the case ended with a summary judgment against Granata.
Granata asked Dougherty to appeal. Because she didn’t have money to pay, she delivered either as collateral or a fee, a copy of The Who album “Quadrophenia” with the autographs of the four band members. When Dougherty failed to respond to inquiries about the status of her case, and for itemized bills, she asked him to return the album. It wasn’t until after the disciplinary counsel began investigating Dougherty and Cicero years later that she received the album.
Cicero Attracts Clients, Dougherty Makes Appearances
The professional conduct board also reviewed several other complaints against the two lawyers in which Cicero appeared to take the lead in providing the legal advice and strategy while Dougherty would be the officially designated attorney. In most of the cases, the clients were unaware of Cicero’s suspension, the board states.
Dougherty accepted a $20,000 retainer from the grandmother of a man charged with second-degree murder despite never having tried a murder case. The client, Nick Kean, reported that Dougherty repeatedly told Kean what Cicero thought of the case, and at least once during the trial, Dougherty received advice via text messages from Cicero on how to handle the case.
The board states Cicero was forbidden from providing legal services, having direct substantive client contact, and handling client property, and Cicero didn’t ensure Dougherty complied with the requirements to employ him as a suspended attorney.
“He ignored each of these straightforward requirements and now seeks to either deny or rationalize what he has done,” the board’s report stated.
The board also concluded that the “duration and breadth” of Dougherty’s violations justify time away from the practice. The board recommends the second year of his suspension be stayed with the conditions that he pays $6,050 in restitution to two clients, completes the Multistate Professional Responsibility Examination, commits no further misconduct, pays half the costs of the board’s disciplinary proceedings, and submits to two years of monitored practice if reinstated.
Attorney Believes Suspension Not Justified
Dougherty notes the disciplinary hearing included 20 witnesses who testified over five days. The transcript is 1,731 pages, and volumes of additional evidence were presented. He concludes that the board failed to find by clear and convincing evidence that he violated the professional conduct rules other than he didn’t have the required client trust fund. He indicates he has no prior disciplinary record, and any penalty imposed by the Court should be fully stayed.
Dougherty’s brief counters the arguments made by the board for all six client cases. He asserts that his actions do not rise to rule violations and that clients were aware of Cicero’s status as a suspended lawyer.
Disciplinary Counsel Supports Sanctions
The disciplinary counsel states that rather than accept responsibility for his misconduct, Dougherty continues to attack the character of the investigators and his clients, and that due to his “dishonest and selfish motive for participating in the scam,” a two-year suspension with one year stayed is warranted.
The office counters that it did prove by clear and convincing evidence that Dougherty committed the rule violations and that Dougherty has resorted to the character attacks to escape the consequences of his misconduct.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Office of the Disciplinary Counsel: Joseph Caligiuri, 614.461.0256
Representing Timothy R. Dougherty: Ric Daniell, 614.459.2001
Does Dog Get ‘Free Bite’ of Victim Before Being Labeled ‘Dangerous’?
State of Ohio v. Joseph Jones, Case no. 2018-0601
First District Court of Appeals (Hamilton County)
ISSUE: Does state law require that a dog must be previously designated a “dangerous dog,” under R.C. 955.222 before its owner can be forced to pay restitution for damages caused by the dog?
BACKGROUND:
On May 15, 2016, around 3:30 a.m., Joseph Jones was walking his dog, an American Pit Bull named Prince Bane, near the apartment building where he lived. When Jones spotted a stray female dog that looked similar to Prince Bane, he took his dog off the leash so the two dogs could interact. Alyssa Rushing, who lived in the same apartment building, took her dog, a Chinese Crested Hairless, out for a walk around the same time. Rushing and her dog were on the apartment building steps when Prince Bane and the stray dog spotted Rushing’s dog and began running toward her.
As Rushing attempted to pick up her dog, Prince Bane grabbed her arm and pulled her down. The stray dog attacked Rushing’s dog. Jones grabbed the stray dog and threw it down the stairs. The dog ran away. Jones pulled Prince Bane off Rushing, who received bite wounds to her hands and wrists.
Jones acknowledged to the police that Prince Bane was in “protection training” at a Dayton-area kennel, and was trained to “never let go” after biting. Jones stated on his Facebook page that his dog “used to try and smell or bite everybody.”
Owner Charged For Failure to Confine His Dog
Cincinnati city prosecutors charged Jones with failing to confine a dangerous dog under R.C. 955.22. The “dangerous dog” designation elevates the crime for failing to confine a dog from a minor misdemeanor to a fourth-degree misdemeanor. A fourth-degree misdemeanor allowed the city to seek restitution from Jones for the damages caused by his dog. Prince Bane hadn’t been previously designated a “dangerous dog” under R.C. Chapter 955, and Jones argued at his trial that his dog didn’t bite Rushing, but rather it was the similar-looking stray dog that bit her.
The trial court found Jones guilty and sentenced him to 60 days in jail, of which it suspended 30 days; six months of probation; and $100 in court costs; but it didn’t order restitution.
Jones appealed the conviction to the First District Court of Appeals, which reversed the trial court decision. The First District concluded that Jones couldn’t be convicted of the fourth-degree misdemeanor without Prince Bane first being designated a dangerous dog under R.C. 955.222. The First District wrote that its opinion conflicted with a recent decision by the Fifth District Court of Appeals and certified the conflict to the Ohio Supreme Court. The Supreme Court agreed to resolve the conflict, and allowed the dismissal of Jones’ charges to stand.
No ‘Free Bite’ Rule in Ohio, Prosecutors Argue
The Cincinnati city prosecutor explains this is the first time the Ohio Supreme Court has considered R.C. Chapter 955 dealing with dangerous dogs since it was amended by the Ohio General Assembly in 2011. The changes included the addition of R.C. 955.222, a formal process for authorities to designate an animal to be as a “dangerous dog.” The prosecutor argues that while the process was added, it was meant to be one option, not the exclusive method, for designating a “dangerous dog.”
The office asserts the First District reads the new law to mean that the designation is a prerequisite for elevating a failure to confine a dog from a minor misdemeanor to a fourth-degree misdemeanor. The prosecutor argues nothing in the law requires the prior designation, but rather requires the prosecution provide evidence that the dog was dangerous prior to the incident. The office maintains Jones’ Facebook page comments stating that his dog bites people was enough to prove his dog met the definition of dangerous dog and the city could seek the elevated penalty.
The prosecutor notes the Fifth District didn’t require a prior designation through the hearing process outlined in R.C. 955.222 to convict a dog owner of failure to confine a dangerous dog. The office explains the process was initiated by lawmakers as a reaction to state laws and local ordinances that were unilaterally classifying breeds of dogs as dangerous or vicious for their propensity to attack. As the law evolved to eliminate the blanket designations, R.C. 955.222 gave local authorities a path to declare a specific dog dangerous based on some known incident. The prosecutor argues that addition didn’t transform the law into a requirement that there had to be a documented history and designation before the elevated penalty could be sought if a dog bit someone or another dog. Such a determination would create a “free bite” rule in Ohio that prevents restitution for injuries caused by dangerous dogs, the prosecutor argues.
“In this case, Mr. Jones acknowledged that his dog had been dangerous in the past. Mr. Jones trained and used his dog like a dangerous ordnance (for protection). And when Mr. Jones’ dog, Prince Bane, got startled and was off its leash — it injured the victim in this case,” the prosecutor’s brief stated. “This is exactly the type of conduct that R.C. 955.22(C) and (D) were designed to protect against.”
Designation Required for Prosecution, Owner Argues
Jones maintains the First District followed the language of R.C. 955.11(A)(1), which defines a “dangerous dog” as one that injures a person or kills another dog, and that R.C. 955.222 gives animal control officers the authority to designate dogs as dangerous dogs. He argues the law states that only a preexisting designation of dangerousness can support the conviction of failure to confine a dangerous dog. Without the designation, the law permits only the minor misdemeanor charge of failure to control a dog, which doesn’t allow the state to seek restitution for injuries.
Jones argues that Prince Bane couldn’t have been designated a dangerous dog until the trial for failure to confine him. Because the dog was not previously designated dangerous, Jones could not be charged with the more severe crime.
“There was no evidence Prince Bane had ever been designated as a dangerous dog prior to the event in question. Therefore, the evidence was not sufficient for a conviction for failure to confine a dangerous dog under R.C. 955.22(D),” his brief states.
Jones maintains he has a right to due process, and authorities in Cincinnati and elsewhere that are prosecuting dog owners for failure to confine a dangerous dog without a previous designation are violating the statute.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio from the Cincinnati City Prosecutor’s Office: Christopher Liu, 513.352.4707
Representing Joseph Jones from the Hamilton County Public Defender’s Office: David Hoffman, 513.946.3876
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