[Cite as State v. Roller, 2016-Ohio-8554.]
                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT


STATE OF OHIO,                                 )    CASE NO. 15 MA 0164
                                               )
        PLAINTIFF-APPELLEE,                    )
                                               )
VS.                                            )    OPINION
                                               )
RICHARD ROLLER,                                )
                                               )
        DEFENDANT-APPELLANT.                   )

CHARACTER OF PROCEEDINGS:                           Criminal Appeal from the Court of
                                                    Common Pleas of Mahoning County,
                                                    Ohio
                                                    Case No. 12CR1144

JUDGMENT:                                           Affirmed and Remanded.

APPEARANCES:

For Plaintiff-Appellee:                             Atty. Micah Ault
                                                    Assistant Attorney General
                                                    615 W. Superior Ave., 11th Floor
                                                    Cleveland, Ohio 44113

For Defendant-Appellant:                            Atty. John Yuhasz
                                                    7081 West Boulevard, Suite 4
                                                    Youngstown, Ohio 44512



Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Mary DeGenaro


                                                    Dated: December 30, 2016
[Cite as State v. Roller, 2016-Ohio-8554.]
ROBB, J.


         {¶1}    Defendant-Appellant Richard Roller appeals his convictions entered in
Mahoning County Common Pleas Court for theft in office and grand theft with
enhancements.          The first issue raised in this appeal is whether the trial court
improperly instructed the jury that MYCAP was a public organization. The second
issue is whether there was sufficient evidence to convict Appellant of theft in office
and grand theft. The third issue is whether the trial court erred when it sua sponte
instructed on the affirmative defense of entrapment by estoppel. The final issue is
whether there was misconduct by the prosecutor and, if so, did that conduct effect
the trial to the point it was unfair.
         {¶2}    For the reasons expressed below, the first, second, and fourth
assignments of error lack merit. The third assignment of error has merit; however,
the error committed was harmless. Accordingly, Appellant’s convictions for theft in
office and grand theft are affirmed. Although, the convictions are affirmed, we sua
sponte remand the matter to the trial court to correct a mistake in its final judgment
entry.    In the entry the court indicated Appellant was found guilty of having an
unlawful interest in a public contract, a fourth degree felony. 8/20/15 J.E. That
statement is incorrect. The jury found him not guilty of that charge. The judgment
entry must be corrected.
                                   Statement of the Facts and Case
         {¶3}    Appellant began working for Youngstown Area Community Action
Council in the early 1990s. After years of service he became the executive director.
At some point during his service Youngstown Area Community Action Council
became Mahoning Youngstown Community Action Partnership (MYCAP). MYCAP is
a private nonprofit corporation. Roller stated MYCAP’s mission was to empower low-
income and/or working families in the Mahoning County/Youngstown area. Tr. 482.
         {¶4}    In 2008, while Appellant was the executive director, MYCAP obtained a
grant through the Ohio Department of Job and Family Services which was overseen
and administered by the Governor’s Office of Faith Based Initiatives. Appellant
signed the grant on behalf of MYCAP. This grant allowed MYCAP to hire consultants
                                                                                      -2-

to perform training sessions and “technical assistance” sessions in a 22 county area,
a larger than normal jurisdiction for MYCAP. In addition to the larger geographical
area, this grant was not limited to low-income persons. Tr. 488.
         {¶5}   Under this grant Roller and three other MYCAP employees provided
training services. In providing the services, Roller and the employees used paid time
off (PTO) from MYCAP. Thus, they were paid by MYCAP and were paid under the
grant.    The language of the grant specifically prohibited persons from acting as
consultants while drawing compensation from any other federally or state-funded
program.
         {¶6}   Appellant acted as a consultant for the “technical assistance” sessions
charging $1,000 for each session. He received a total of $14,000 for these sessions
and also collected his MYCAP salary.
         {¶7}   Sometime thereafter MYCAP was audited by multiple state agencies.
The state questioned the amounts paid to the MYCAP employees, including
Appellant. The state also questioned charges for equipment used during the
sessions.
         {¶8}   During the audit it was also discovered that during Appellant’s tenure as
executive director, a contract between Chef’s House and MYCAP was entered into
whereby Chef’s House provided food service to MYCAP/Head Start. Chef’s House
was owned and operated by Jason Roller, Appellant’s brother. MYCAP had a Code
of Ethics permitting family members to be hired as long as the family members did
not live with each other; however, that policy was in violation of federal law. Tr. 352.
         {¶9}   As a result of the audit, a four count indictment was issued against
Appellant. He was charged with theft in office in violation of R.C. 2921.41(A)(1), a
third-degree felony; grand theft in violation of R.C. 2913.02(A)(3), a fourth-degree
felony; unlawful interest in a public contract in violation of R.C. 2921.42(A)(1), a
fourth degree felony; and soliciting or receiving improper compensation in violation of
R.C. 2921.43(A)(1), a first-degree misdemeanor. 10/25/12 Indictment. The first two
counts, theft in office and grand theft, had enhancement specifications indicating the
amount taken was $7,500.00 or more.
                                                                                    -3-

       {¶10} As the case proceeded to trial, Appellant filed a motion in limine to
preclude the state from arguing and the trial court from instructing on the affirmative
defense of entrapment by estoppel. 2/26/15 Motion. Appellant claimed he was not
asserting the affirmative defense, but rather arguing the elements of the offense
could not be established.
       {¶11} The jury trial began on May 11, 2015. Following the state’s case in
chief, Appellant moved to dismiss count four of the indictment, soliciting or receiving
improper compensation, because the statute of limitations had run.          The state
conceded, and count four was dismissed. Tr. 474.
       {¶12} Appellant also moved for a Crim.R. 29 judgment of acquittal on the first
and second counts of the indictment. Tr. 467. He argued the state failed to offer
evidence from which a reasonable jury could conclude there was intent to deprive the
owner. Tr. 467. He also argued the state did not offer evidence he was a public
officer as required by count one. Tr. 467. The trial court overruled the Crim.R. 29
motion. Tr. 474.
       {¶13} Appellant then testified on his own behalf. Following the presentation of
Appellant’s case, he renewed his Crim.R. 29 motion, argued the jury instruction
should not contain a statement that MYCAP was a public agency, and argued the
jury should not be instructed on the affirmative defense of entrapment by estoppel.
As to MYCAP’s status as a public agency, he argued the issue was a jury question.
As to the affirmative defense, he asserted it was not his position there was active
misleading by the government and/or assurances by the government that what he
was doing was legal. Rather, he argued his position was there was no evidence of
purpose to deprive, which were elements of the theft offenses. Tr. 542-543.
       {¶14} The state asserted it agreed with the trial court’s position that MYCAP
and its executive director’s status was a legal question, not a factual question. Tr.
546.
       {¶15} Appellant also filed written objections to the jury instructions on the
affirmative defense of entrapment and on MYCAP being a public agency. 5/13/15
Objections.
                                                                                      -4-

       {¶16} The trial court implicitly overruled the objections of Appellant by
instructing on the affirmative defense of entrapment by estoppel and instructing the
jury that MYCAP was a community agency and public organization. Tr. 625, 630.
       {¶17} The jury found Appellant guilty of theft in office, grand theft, and both
enhancements. The jury found Appellant not guilty of unlawful interest in a public
contract. 5/13/15 Jury Verdict Forms.
       {¶18} Appellant was sentenced to 120 days in jail, 3 years of monitored
supervision, and ordered to pay restitution in the amount of $14,000. 8/20/15 J.E.
The trial court stayed the 120 day jail sentence pending appeal.           8/20/15 J.E.
Appellant appealed his conviction.
       {¶19} Prior to addressing the assignments of error, there is an error in the trial
court’s final judgment that must be addressed. The judgment entry reads:

       The Jury Trial commenced on Monday, May 11, 2015 and concluded
       on Wednesday, May 13, 2015, when the Jury returned a verdict of
       guilty in Count 1, Theft In Office, a felony of the third degree; Count 2,
       Grand Theft, a felony of the fourth degree; Count 3, Having An Unlawful
       Interest In A Public Contract, a felony of the fourth degree as well as
       enhancements in Counts 1 and 2. Count 4, Soliciting or Receiving
       Improper Compensation was dismissed by the State of Ohio.

8/20/15 J.E.
       {¶20} This judgment entry indicates Appellant was found guilty of Count 3.
However, the jury found him not guilty of having an unlawful interest in a public
contract. This error must be corrected.
                             First Assignment of Error
       “The trial court erred and denied Appellant his rights to trial by jury and due
process when it relieved the state of the obligation to prove all elements of the
offenses beyond all reasonable doubt. See, U.S. Const., amend VI and XIV; Ohio
Const., art. I, §§1, 2, 5, 10, and 16.”
       {¶21} This assignment of error deals with the conviction for theft in office.
Appellant was found guilty of R.C. 2921.41(A)(1), which provides:
                                                                                    -5-

      (A) No public official or party official shall commit any theft offense, as
      defined in division (K) of section 2913.01 of the Revised Code, when
      either of the following applies:

      (1) The offender uses the offender's office in aid of committing the
          offense or permits or assents to its use in aid of committing the
          offense.

R.C. 2921.41(A)(1).
      When instructing the jury on this offense, the trial court explained:

      Regarding Count One, the defendant is charged with theft in office.
      Before you can find the defendant guilty, you must find beyond a
      reasonable doubt that on or about June 19th, 2009, through on or
      about July 13th, 2009, in Mahoning County, Ohio, the defendant did,
      while being a public or a party official, commit a theft offense, when
      the offender used the offender’s office in aid of committing the offense
      and the value of the property or services stolen was $7,500 or more.

      ***

      As a matter of law, ladies and gentlemen, the court instructs you that
      MYCAP was, in fact, a community agency, and is a public organization.

      You must also find that the defendant at the time of the commission of
      the acts was a public official. And public official means any elected or
      appointed officer, or employee, or agent of the state or any political
      subdivision thereof, whether in a temporary or permanent capacity, and
      including without limitation, legislators, judges, and law enforcement
      officers.

Tr. 619-620, 625.
      {¶22} Appellant finds fault with this instruction for two reasons.      First, he
contends MYCAP’s status as community agency/public organization is a factual issue
and an element of the offense. Thus, it was for the jury to determine if MYCAP was a
                                                                                      -6-

public agency.     His argument stating MYCAP is a public organization indicates
Appellant’s position as executor director of MYCAP constitutes a public office for
purposes of the theft in office statute.      Second, he contends the trial court’s
determination MYCAP is a public organization is incorrect. It is a private nonprofit
corporation, and although it receives grants from the state and federal government, it
also receives private funds.
       {¶23} The first issue is whether MYCAP and its executive director’s status is a
factual or legal question. The trial court determined it was a legal question for the
court to decide. Tr. 267.
       {¶24} This conclusion is correct.     Questions of statutory interpretation are
questions of law. Riedel v. Consol. Rail Corp., 125 Ohio St.3d 358, 2010–Ohio–
1926, ¶ 6, 928 N.E.2d 448 (2010).         In order to be a public official under R.C.
2921.41(A), Appellant must qualify as a public official as defined by R.C. 2921.01.
Division (A) of that section provides:

       “Public official” means any elected or appointed officer, or employee, or
       agent of the state or any political subdivision, whether in a temporary or
       permanent capacity, and includes, but is not limited to, legislators,
       judges, and law enforcement officers. “Public official” does not include
       an employee, officer, or governor-appointed member of the board of
       directors of the nonprofit corporation formed under section 187.01 of
       the Revised Code.

R.C. 2921.01(A).
       {¶25} Although it was within the province of the jury to determine whether
Appellant was working for MYCAP when the alleged crimes occurred, it was not a
jury decision to determine whether MYCAP was a public organization and whether its
executive director was a public official. MYCAP and its executive director’s status is
a legal question because it calls for statutory interpretation of R.C. 2921.01(A).
       {¶26} To conclude otherwise would mean two different juries hearing the
same information could potentially reach different conclusions about whether MYCAP
is a public organization and whether its executive director is a public official. If that
                                                                                  -7-

were to happen, then case law would not be cohesive. The determination of whether
the executive director of MYCAP or any community action agency is a public official
and of whether MYCAP is a public organization are legal questions.
       {¶27} Consequently, our analysis continues with the questions of whether
MYCAP was a public organization and was its executive director a public official for
purposes R.C. 2921.41.
       {¶28} At the outset it is noted, although MYCAP no longer uses the term
“community action agency” in its title, it is a community action agency. Jeff Bankey,
Chief Auditor for the Ohio Development Services Agency, testified MYCAP was a
community action agency. Tr. 360. No witness disputed that testimony.
       {¶29} The definition of public official in R.C. 2921.01 states an employee,
officer, or governor-appointed member of the board of directors of the nonprofit
corporation formed under R.C. 187.01 is not a public official. The evidence indicated
MYCAP, as a community action agency, was a nonprofit corporation. However, a
community action agency’s designation is made pursuant to R.C. 122.69, not R.C.
187.01. JobsOhio is governed by R.C. 187.01. Consequently, the executive director
of a community action agency does not fall under the expressed exception to a public
official enumerated in R.C. 2921.01(A). However, that does not necessarily mean
the executive director of a community action agency is a public official.
       {¶30} Neither the Ohio Supreme Court nor any of our sister districts have
addressed the issue of whether the executive director of a community action agency
is a public official for purposes of R.C. Chapter 2921. The only decision directly on
point in Ohio is an informal advisory opinion from the Ohio Ethics Commission. Ohio
Ethics Commission Informal Advisory Decision dated October 21, 2002.
       {¶31} The Ohio Ethics Commission was asked if the board of trustees and
executive director of a community action agency created under R.C. 122.68 and
122.69 were subject to the prohibitions imposed by the Ohio Ethics Law and related
statutes. Id. at pg. 1. In answering the question, the Commission acknowledged a
community action agency is a nonprofit corporation. Id. It concluded although the
board of trustees and executive director are not subject to Ohio Ethics Law
prohibitions contained in R.C. Chapter 102, the board of trustees and executive
                                                                                      -8-

director are “agents of the state,” and thus, “public officials” for purposes of R.C.
Chapter 2921. Id.
       {¶32} In reaching its decision, as it pertained to the board of trustees and
executive director being agents of the state and public officials for purposes of R.C.
Chapter 2921, the Commission explained the definition of the term “public official”
includes “agents” of the state. Id. at pg. 4. Because “agent” is not defined statutorily,
the Commission relied on the definition it used in a previous decision. Id.
       {¶33} In a 1992 opinion concerning the Ohio Grape Industries Committee, the
Commission opined:

       A person is an “agent of the state,” and thus, a “public official” as
       defined in Division (A) of Section 2921.01 of the Revised Code, when:
       (a) the person has the power to act on behalf of and bind the state by
       his actions; (b) the state has the right to control the actions of the
       person; and (c) the actions of the person are directed toward the
       attainment of an objective sought by the state.

Advisory Opinion Number 92-001.
       {¶34} The Commission determined a member of the Ohio Grape Industries
Committee is an agent of the state because the Committee is “funded by the state
and has the statutory authority to contract with others for research and market
surveys, and to make, ‘in the name of the Committee,’ contracts to render service in
formulating and conducting plans and programs for the promotion of grapes and
grape products.” Id. Also, there is oversight by the Department of Agriculture to
ensure the Committee is self-supporting. Id. Likewise, statutorily the Committee’s
actions are to promote the grape industry within the state, which is an objective the
state seeks. Id.
       {¶35} In applying a similar rationale, in the 2002 informal advisory opinion the
Commission explained a community action agency receives community development
block grants (CDBG) from the state through the Office of Community Services (OCS)
for attainment of the state’s objection to alleviate the causes of poverty in a
designated geographical service area. Ohio Ethics Commission Informal Advisory
                                                                                      -9-

Decision dated October 21, 2002, pg. 5.        The Commission reasoned community
action agencies can bind the state and the state controls community action agencies
in a number of ways:

       The state, acting through the General Assembly, enacted statutes that
       specifically empower a designated CAA to act on behalf of and bind the
       state with regard to its use and distribution of CDBG funds.

       The state, through OCS, exercises control over a CAA in several ways.
       The state has a degree of fiscal oversight and control over a CAA. For
       example, R.C. 122.69(B)(3) requires that a CAA that receives an OCS
       designation must limit the number of trustees to not less than fifteen nor
       more than thirty-three members and must meet specified federally
       mandated standards. In addition, a CAA is required to annually submit
       to OCS a program plan and budget for use of CDBG funs.                R.C.
       122.69(B)(2). After providing notice and hearing pursuant to Chapter
       R.C. 119., the director of DOD [Department of Development] may
       rescind the designation of a CAA if he finds that the CAA is not in
       compliance with any or all of the provisions of R.C. 122.69.          R.C.
       122.701.(B)(1).

Id.
       {¶36} The Commission then explained the executive director of a community
action agency can act on behalf of and bind the state with regards to the functioning
of the community action agency. Id. at pg. 6-7.
       {¶37} As aforementioned, although MYCAP no longer uses the term
“community action agency” in its title, it is a community action agency. MYCAP was
pursuing an objective the state sought to achieve - it was providing services to the
poor and combating poverty. In pursuing this object, it was receiving grants from the
state and the state audited those grants.
       {¶38} The Ethics Commission’s 2002 informal advisory opinion supports the
legal conclusion MYCAP is a public organization/agency and Appellant was a public
official as its executive director. However, this is not the only case that supports such
                                                                                   -10-

conclusion. There is a common pleas court decision from Lucas County holding a
community    action   agency,   specifically   the   Economic   Opportunity   Planning
Association of Greater Toledo (“EOPA”), is a public office for purposes of the public
meetings and the public records act. The reasoning used to reach that conclusion is
instructive as to why a community action agency is a public organization/agency and
why its board and executive director are public officials; the agency and its executive
director can bind the state and the state has a degree of oversight:

      In its capacity as a community action agency, EOPA receives, is
      accountable for and is charged with spending substantial sums of public
      funds in the operation of programs for the public welfare.         These
      programs and EOPA's plans for operating them are submitted to and
      approved by the Governor of Ohio. EOPA must comply with those
      plans, and with state statutory provisions, or lose its status as a
      community action agency.

      ***

      With these essential principles in mind, there can be no question that
      EOPA is a public body within the meaning of the Public Meetings Law.
      EOPA has been designated by the Ohio Department of Development,
      through its Office of Community Services, as a community action
      agency within the meaning of R.C. 122.69.          To be eligible for this
      designation, EOPA must obtain the endorsement of officials from at
      least two thirds of the municipal corporations and counties within the
      community it serves. R.C. 122.69(A). The Board of Trustees of EOPA
      must be organized in accordance with the provisions of state statute,
      and that statute defines the powers and duties that can and must be
      exercised by the board. R.C. 122.70.

      Designation as a community action agency is critical to EOPA because
      it is an absolute prerequisite to EOPA's ability to receive the
      governmental funds for the programs that EOPA operates.             Once
                                                                                    -11-

       EOPA qualifies to receive, and actually receives, those funds, their use
       is a matter of critical importance to the state government.           The
       Governor must certify to the federal government that the funds that are
       distributed to community action agencies will be used in accordance
       with the plan the Governor has developed, approved, and submitted to
       the federal government.

State, ex rel. Toledo Blade Co. v. Economic Opportunity Planning Assn. of Greater
Toledo, 61 Ohio Misc.2d 631, 640-641, 582 N.E.2d 59 (C.P.1990).
       {¶39} That said, there are two appellate court cases which one might argue
support the conclusion a community action agency is not an agent of the state. They
are State ex rel. Dist. Eight Regional Organizing Commt. v. Cincinnati-Hamilton Cty.
Community Action Commt., 1st Dist. No. C-100099, 192 Ohio App.3d 553, 2011-
Ohio-312, 949 N.E.2d 1022, ¶ 15 and N.Z. v. Lorain Head Start, 9th Dist. No.
98CA007254, 2000 WL 59911.
       {¶40} The First Appellate District case dealt with a public records act request
and reached the opposite result reached in State, ex rel. Toledo Blade Co. State ex
rel. Dist. Eight Regional Organizing Commt., 2011-Ohio-312. The First Appellate
District determined a community action agency was not the functional equivalent of a
public office for purposes of the public records act:

       Mindful of the presumption that private entities are not subject to the
       Public Records Act, we conclude that the evidence does not show
       clearly and convincingly that CAA is the functional equivalent of a public
       office. Although its designation as a community-action agency was
       established by the government, and CAA receives a considerable
       amount    of   funding   from   the   government,     the   HWAP   [Home
       Weatherization Assistance Program] program does not carry out a
       traditional governmental function. Further, the government is not
       involved in the day-to-day operation of the agency.

Id. at ¶ 15.
                                                                                       -12-

       {¶41} The second case is a 2000 decision from the Ninth Appellate District
holding Lorain Community Action Agency (LCAA) was not a political subdivision for
purposes of R.C. Chapter 2744, the governmental immunity statutes. N.Z. v. Lorain
Head Start, 9th Dist. No. 98CA007254, 2000 WL 59911. In that case, a child was
allegedly the victim of sexual abuse while participating in the Head Start educational
program operated by LCAA. Id. The appellate court reversed the grant of summary
judgment for LCAA reasoning, “a body corporate and politic must be characterized by
an agency relationship between a governmental unit and the entity claiming immunity
that results in public control of the internal, day-to-day operations of the entity.
Private corporations are excluded from the definition of a body corporate and politic.”
Id. (Internal citations omitted.). It then stated:

       These provisions demonstrate that designation as a “community action
       agency” is a status conferred upon a nonprofit entity that operates in
       addition to the entity's existence as a nonprofit corporation: designation
       as a community action agency does not create an organization, and the
       continuing existence of the nonprofit entity operates independent of that
       designation.     Although this status is conferred by the state, the
       organizations themselves cannot be said to be creatures of the state as
       required by R.C. 2744.01(F). See Weber, supra.

       LCAA is a nonprofit organization with the additional designation as a
       community action agency. It is not an agency created by the state and,
       accordingly, it is not a political subdivision entitled to the benefit of the
       immunity provided by R.C. 2744.02. The appellant's first assignment of
       error is well taken.

Id.
       {¶42} In considering all the above cases, the Ethics Commission’s 2002
informal advisory opinion is persuasive and instructive because it deals with the
specific issue before us.     That case cites State, ex rel. Toledo Blade Co. in support
of the conclusion that MYCAP is an agent of the state. State, ex rel. Toledo Blade
Co. is not directly on point for the issue decided by the Ethics Commission’s informal
                                                                                   -13-

advisory opinion; however, it provides reasoning as to why community action
agencies are agents of the state. We agree with that reasoning and do not find the
First Appellate District’s opposite conclusion in State ex rel. Dist. Eight Regional
Organizing Commt. persuasive.       Likewise, the decision in N.Z. does not help us
resolve the issue before us. We are not addressing whether a community action
agency constitutes a political subdivision under the immunity statutes in R.C. Chapter
2744. Rather, we are determining whether a community action agency is an agent of
the state for purposes of R.C. Chapter 2921. The Ethics Commission’s informal
advisory opinion indicated a community action agency may be subject to some
statutes, but not to others. For instance, the board of trustees and the executive
director are not subject to the Ohio Ethics prohibition in R.C. Chapter 102. Ohio
Ethics Commission Informal Advisory Decision dated October 21, 2001, pg. 1.
Consequently, N.Z. does not provide any guidance on whether a community action
agency is an agent of the state for purposes of R.C. Chapter 2921.
       {¶43} In conclusion, we agree with the decision in the 2002 Ethics
Commission’s informal advisory opinion. We conclude MYCAP is an agent of the
state and its executive director, by extension, is a public official under R.C. 2921.41.
This assignment of error lacks merit.
                            Second Assignment of Error
       “The trial court erred and denied Appellant due process of law when it
submitted offenses theft in office, theft and unlawful interest in a public contract for
the jury’s determination despite the lack of sufficient evidence as to all of the
elements.”
       {¶44} This assignment of error addresses whether there was sufficient
evidence to support the theft in office and grand theft convictions.
       {¶45} “‘[S]ufficiency’ is a term of art meaning that legal standard which is
applied to determine whether the case may go to the jury or whether the evidence is
legally sufficient to support the jury verdict as a matter of law.” State v. Thompkins,
78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997), citing Black's Law Dictionary 1433
(6th Ed.1990). In reviewing a sufficiency of the evidence challenge, “[t]he relevant
inquiry is whether, after viewing the evidence in a light most favorable to the
                                                                                          -14-

prosecution, any reasonable trier of fact could have found the essential elements of
the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259,
574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v. Virginia,
443 U.S. 307, 99 S.Ct. 2781 (1979).
         {¶46} The sufficiency argument concerning theft in office is the same
argument presented by Appellant under the first assignment of error. We found the
argument lacked merit. For those same reasons, the argument there is insufficient
evidence for the theft in office conviction likewise lacks merit.
         {¶47} As to the grand theft conviction, Appellant argues there was no
evidence indicating he had purpose to deprive the state of the $14,000 or indicating
he acted with deception to obtain control over the currency. He states he did not use
a false name; his name was on the application for payment and the state paid the
claim.
         {¶48} The state asserts Appellant acted with purposes to deprive the state
when he submitted invoices for the consulting work he allegedly performed.
         {¶49} Appellant   was   convicted    of   grand   theft    in   violation   of   R.C.
2913.02(A)(3), which provides, “No person, with purpose to deprive the owner of
property or services, shall knowingly obtain or exert control over either the property or
services * * * [b]y deception.” He was also found guilty of the enhancement; the
property or services were valued at $7,500 to $150,000. R.C. 2912.02(B)(2).
         {¶50} Appellant’s argument focuses on three specific elements of grand theft -
purpose, deception, and deprive. “A person acts purposely when it is the person's
specific intention to cause a certain result, or, when the gist of the offense is a
prohibition against conduct of a certain nature, regardless of what the offender
intends to accomplish thereby, it is the offender's specific intention to engage in
conduct of that nature.”     R.C. 2901.22(A).      Deception is defined as, “knowingly
deceiving another or causing another to be deceived by any false or misleading
representation, by withholding information, by preventing another from acquiring
information, or by any other conduct, act, or omission that creates, confirms, or
perpetuates a false impression in another, including a false impression as to law,
value, state of mind, or other objective or subjective fact.” R.C. 2913.01(A). Deprive
                                                                                     -15-

means to “[w]ithhold property of another permanently, or for a period that
appropriates a substantial portion of its value or use, or with purpose to restore it only
upon payment of a reward or other consideration.” R.C. 2913.01(C)(1).
       {¶51} Evidence established Appellant submitted a $14,000 bill for consulting
work he allegedly performed. The consulting work was for the grant awarded to
MYCAP from the Governor’s Office of Faith–Based and Community Initiative. The
money was paid to Appellant. Tr. 343-344, 375. At the same time he charged for the
consulting work, he received paid time off from MYCAP. Tr. 343-344.
       {¶52} The evidence established Appellant was prohibited from acting as a
consultant while an employee for MYCAP.           John Maynard worked for the Ohio
Department of Job and Family Services and was the assistant deputy fiscal director
at the time the audits were done on MYCAP. Tr. 391. In reviewing the consultant
agreements created pursuant to the grant awarded to MYCAP from the Governor’s
Office of Faith–Based and Community Initiative, he explained the agreements stated,
“The consultant understands that they are not an employee of MYCAP or any faith-
based or community organization they will be providing training or technical
assistance to.” Tr. 309. Maynard explained these agreements were signed by the
MYCAP employee and Appellant.
       {¶53} Maynard further explained the agreement and federal law prohibit an
employee to act as a consultant:

       A. In addition to, you know, it sort of describes the scope of work,
       there’s stuff in here that talks about conflicts.       So it says, “The
       consultant shall not solicit, discuss or accept employment or any
       consulting or other contractual relationship which would directly or
       indirectly result in personal gain with any MYCAP GOFBCI participating
       agency.” And this one says that they’ll comply with -- “They shall notify
       MYCAP in writing of any offer or proposal which would constitute or
       have the appearance of constituting a violation of Section II
       employment.”

       Q. And so far as this audit then, why were those relevant?
                                                                                     -16-

      A. Because they are, in fact, employees of MYCAP, and so I know that
      the federal compliance requirements don’t allow an employee to
      actually act as a consultant. I know that because they were employees
      and they had taken leave on the days that they went out and they did
      the training that their leave was, in fact, being allocated to other federal
      programs. This says, I think in here, that they wouldn’t be. It say that
      under Section 6 for certification, “The consultant certifies upon
      submission of each invoice not to draw compensation from any other
      federally or state funded program during the period as they are
      performing work under this agreement for MYCAP.” So I do know that
      because they claimed leave, it was allocated to the other federal
      programs that MYCAP was working on .

      Q. So they would've been paid twice by tax dollars?

      A. Yes.

      ***

      Q. On top of that, was it wrong for Mr. Roller to be doubly paid during
      this time?

      ***

      A. Yes. You can only claim a cost to a federal program one time. And
      so when Mr. Roller charged these technical assistance sessions to the
      grant, he was paid under the TANF grant, which is 100 percent federal
      money, so it’s 100 percent taxpayer dollars.       But then if you put in
      leave, which it’s my understanding he did do, that would’ve gone into
      their shared cost pool as administrative cost, and its gets allocated back
      to the federal grants. So his salary for his leave time would’ve been
      charged to other federal grants that the MYCAP organization had.

Tr. 399-400, 453.
                                                                                   -17-

      {¶54} Jeff Bankey, the chief of auditor of the Ohio Development Services
Agency provided similar testimony:

      Q. You had testified on direct examination that one of the things that
      you found at issue was his receiving paid time off, as well as receiving
      the consultant fee.      What’s the difference between those two
      examples?

      A. Our issue in this particular instance was not that he was paid from
      some other – if he was doing a hobby and got paid for it, that’s – we
      don’t care about that.    It was the fact that he was receiving other
      funding, I don’t recall if it was federal or state, from JFS, and claiming
      that they were independent contractors doing this, when the law
      dictates that you can’t be both an employee of an organization and an
      independent contractor that benefits the organization.

Tr. 368.
      {¶55} Emily Oquendo, a grant manager at the Ohio Department of Job and
Family Services when Appellant’s invoice was submitted, was the state employee
who approved the invoice for $14,000 to be paid to Appellant. At that time she
worked for TANF (Temporary Assistance to Needy Families) and was only handling
“the fiscal piece and helped pay their invoices” for the governor’s faith-based and
community initiative grants. Tr. 371. She testified if she had known Appellant was an
employee, then she would not have approved the invoice because “you can’t be paid
as an employee, and as a contract employee as well.” Tr. 378.
      {¶56} Also, another witness for the state testified federal circulars are
reference manuals and provide guidance to what can or cannot be done. Tr. 222.
Appellant admitted to knowing about the circulars. Tr. 505. Specifically, he admitted
that A-122 is the federal circular which provided guidance for financial transactions.
Tr. 505. He testified he did not believe it was illegal to do consulting as long as
certain conditions were met. Tr. 507. Upon reading the circular from the stand, he
acknowledged consultants are allowable if they are not employees. Tr. 509.
                                                                                  -18-

      {¶57} Appellant’s signature was on the consulting agreements for his MYCAP
employees. This shows knowledge of the prohibition of acting as a consultant and
being a MYCAP employee. Despite that language he still completed consulting work,
charged for that work, and received paid time off.
      {¶58} Furthermore, there was evidence admitted at trial that the technical
assistance consulting fee he should have charged was $100, not $1,000. Tr. 400-
402. There was also evidence he may not have performed all of the technical
assistance consultations for which he billed. Tr. 412-413.
      {¶59} Admittedly, the consulting agreement signed by Appellant was not
admitted at trial; it does not appear the state could find a copy of it.     Appellant
asserted his fee structure was different from his employees and he was permitted to
charge $1,000. Tr. 501.
      {¶60} Given all the above evidence and the long established principle that
ignorance of the law is no excuse, there was sufficient evidence for the jury to decide
the grand theft charge. See State v. Lovano, 8th Dist. No. 100578, 2014-Ohio-3418,
¶ 17 (The law does not excuse willful ignorance.) Or in other words, the evidence
was sufficient for the jury to infer Appellant acted purposely, with deception, to
deprive the state of its money.
      {¶61} This assignment of error lacks merit.
                            Third Assignment of Error
      “The trial court erred and denied Appellant due process, equal protection, and
trial by an impartial jury when it placed the burden of proving an affirmative defense
upon Appellant that Appellant did not assert.”
      {¶62} Typically, it is the defendant that requests an instruction on an
affirmative defense he or she is asserting. This case does not fall within that typical
scenario.   In this instance, the state requested an instruction on the affirmative
defense of entrapment by estoppel. Appellant orally objected to the request and also
filed written objections.   Appellant argued he was not raising the defense of
entrapment by estoppel, and he did not want the jury instructed on that defense. The
trial court, however, granted the state’s request and gave an instruction on the
affirmative defense of entrapment by estoppel.
                                                                                    -19-

       {¶63} This scenario raises the question: does a trial court err when it instructs
on an affirmative defense over the objection of the defendant? This question is an
issue of first impression for our district. Furthermore, we note none of our sister
districts or the Ohio Supreme Court have issued a ruling on this question.
       {¶64} Therefore, in order to support its position that an affirmative defense
instruction can be given where appropriate, even over the objection of the defendant,
the state references a Federal Fifth Circuit case, United States v. Wyly, 193 F.3d 289
(5th Cir.1999).   In that case, the appellate court indicated it could not find any
authority approving the giving of an instruction on an affirmative defense when it is
not raised by the defense. Id. at 301. Given the facts of that case, however, the
appellate court concluded the evidence did not support an instruction on the
affirmative defense of duress. Id. The court concluded, “it was error for the court to
instruct the jury on that defense, especially in view of the fact that, not only did
Appellants not request the instruction, they objected to it.” Id. (Emphasis in original).
The error, however, was deemed to be harmless because viewing the instructions as
a whole it was clear the jury was not misled or confused. Id.
       {¶65} The Fifth Circuit Court of Appeals is not the only court to address the
issue. The Court of Appeals of New York has held it is reversible error to instruct on
an affirmative defense when defendant has not requested and has objected to such
instruction. People v. Bradley, 88 N.Y.2d 901, 902, 669 N.E.2d 815, 816 (1996). In
quoting one of its prior decisions, the court stated, “As we held in People v. DeGina,
72 N.Y.2d 768, 776, 537 N.Y.S.2d 8, 533 N.E.2d 1037, ‘a defendant * * * has the
right to chart his own defense.’ That right is infringed when an affirmative defense is
submitted over defense objection and the defendant is thereby prejudiced (id., at
776–777, 537 N.Y.S.2d 8, 533 N.E.2d 1037).” Id. The Court further reasoned:

       Moreover, when the defensive theory that the court interjects
       constitutes an affirmative defense there is an increased danger of
       prejudice because of the resulting shift in the burden of proof from the
       prosecution to the defense and the attendant risk that the jury will
       believe that the defendant has assumed a burden beyond the defense.
                                                                                    -20-

       Although defendant was entitled to present inconsistent defenses the
       risk attendant upon such a choice should not have been foisted on him
       against his will. The imposition of an affirmative burden of proof over
       defense objection and the involuntary undermining of the defendant's
       chosen defense strategy resulted in serious prejudice that requires
       reversal in this case.

Internal citations omitted. Id. at 903-904.
       {¶66} The New York case is instructive; it highlights the problems with
instructing on an affirmative defense over a defendant’s objection.       Imposing an
affirmative defense upon a defendant shifts the burden to the defendant to prove the
defense by a preponderance of the evidence.         If there is no affirmative defense
asserted, then the defense has no burden. Instead a defendant can defend the
action by indicating the state failed to prove the elements of the offense beyond a
reasonable doubt. It is the defendant’s right to choose his trial strategy including an
affirmative defense, to defend the action indicating the elements of the offense were
not proven beyond a reasonable doubt, or to assert both.
       {¶67} Given the above, this court concludes the instruction on the affirmative
defense over Appellant’s objection constituted error. It is better practice for a trial
court to not instruct on an affirmative defense when the defendant objects to such
instruction. However, as is explained below, the error is harmless in this instance
and thus, does not provide a basis for reversal because Appellant was not prejudiced
by the error.
       {¶68} Recently, the Twelfth Appellate District has succinctly explained the
defense of entrapment by estoppel:

       “Entrapment by estoppel, grounded in the Due Process Clause of the
       Fifth Amendment, is a defense that is rarely available. In essence, it
       applies when, acting with actual or apparent authority, a government
       official affirmatively assures the defendant that certain conduct is legal
       and the defendant reasonably believes that official.” Howell at *11,
       citing United States v. Howell, 37 F.3d 1197, 1204 (7th Cir.1994).
                                                                                 -21-

       Although there are various definitions for the entrapment by estoppel
       defense:

            [t]he common thread in the caselaw applying the defense is
            an affirmative misrepresentation of the law by a government
            official,   reasonable   reliance,    and     action   upon   that
            misrepresentation by a defendant.           When the defense is
            applicable, it prevents the government from punishing one
            who reasonably followed the misstatement of one of [the
            government's] own officials.         To allow such punishment
            would be to sanction the most indefensible sort of
            entrapment by the State-convicting a citizen for exercising a
            privilege which the State clearly had told him was available
            to him.

       Id. As a result, the “entrapment by estoppel” defense is only available
       in instances where (1) a government official announced that the
       charged criminal act was legal, (2) the defendant relied on that
       statement, (3) the defendant's reliance was reasonable, and (4) given
       the defendant's reliance, prosecution would be unfair. United States v.
       Levin, 973 F.2d 463, 468 (6th Cir.1992).

State v. Shafei, 12th Dist. No. CA2013-11-196, 2015-Ohio-645, 27 N.E.3d 593, ¶ 22.
       {¶69} In this instance, there was a basis for the instruction on Count 3,
unlawful interest in a public contract.    While Appellant was executive director of
MYCAP his brother, Jason Roller, was contracted to do food service operation for
MYCAP/Head Start. This is the basis for the alleged unlawful interest in a public
contract.
       {¶70} Testimony at trial established Jason Roller was a chef, owned a
business called Chef’s House, and previously worked for MYCAP. Tr. 117, 119.
Testimony from Lois Clark, who was at the time of the incidents Head Start Director,
established that it was not Appellant’s decision to bring back Jason Roller for food
                                                                                    -22-

service operation. Tr. 106. In fact, she testified she is the one who suggested it. Tr.
106. Appellant confirmed the testimony. Tr. 497. He further explained that while
bringing Jason back did not violate MYCAP’s nepotism policy, it did bring up an issue
with the conflict of interest policy. Tr. 498. He explained it created an appearance of
impropriety. Tr. 498. He testified he spoke to MYCAP board of director’s legal
counsel about the issue. Tr. 498-499. Appellant was advised to take the matter to
the board, which he did. Tr. 489-500. Appellant testified he was not involved in the
board’s decision to hire Jason.      Tr. 498-500.    Admittedly, Appellant signed the
contract with Jason, but the board gave him the authorization to do so. Tr. 511.
       {¶71} “In reviewing a record to ascertain whether sufficient evidence exists to
support the giving of an instruction, an appellate court should determine whether the
record contains evidence from which reasonable minds might reach the conclusion
sought by the instruction.”    Goldfuss v. Davidson, 79 Ohio St.3d 116, 124, 679
N.E.2d 1099 (1997). The evidence was sufficient to instruct on the estoppel defense
as to the unlawful interest in a public contract charge.
       {¶72} Furthermore, it appears the jury believed this testimony. Despite the
fact Appellant signed the contract on behalf of MYCAP with his brother, the jury found
him not guilty of the charge, presumably because the evidence showed the board of
directors decided to award Jason Roller the contract, not Appellant.
       {¶73} That said, it is acknowledged the entrapment by estoppel defense
instruction was not specified to apply only to count three. Tr. 633. The evidence
submitted at trial did not indicate Appellant was told by the board or its legal counsel
that it was permissible for him to charge $1,000 for a technical assistance consulting
session or it was permissible for him to get paid for time off while collecting technical
assistance consulting fees.     Rather, Appellant argued the grant allowed him to
charge $1,000 and he did not purposely deceptively deprive the state of its property.
His argument went to whether the elements of the offenses of theft in office and
grand theft were proven beyond a reasonable doubt. Thus, an instruction on the
affirmative defense of entrapment by estoppel was not warranted on the theft
charges.
                                                                                      -23-

       {¶74} Appellant, however, was not prejudiced by the affirmative defense
instruction or the trial court’s failure to expressly instruct that the affirmative defense
was potentially only applicable to count 3. In Ohio, generally, a trial court has broad
discretion in fashioning jury instructions.     In examining alleged errors in a jury
instruction, a reviewing court must consider the jury charge as a whole and “must
determine whether the jury charge probably misled the jury in a matter materially
affecting the complaining party's substantial rights.” State v. Dean, 146 Ohio St.3d
106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 135 quoting Kokitka v. Ford Motor Co., 73
Ohio St.3d 89, 93, 652 N.E.2d 671 (1995).
       {¶75} Considering the jury instruction as a whole, the instruction clearly
indicated the jury had to find all elements of the offenses proven beyond a
reasonable doubt in order to find Appellant guilty. The instruction highlighted the
requirement that all elements must be found beyond a reasonable doubt even if the
jury found the affirmative defense was not proven by a preponderance of the
evidence:

       Now, ladies and gentlemen, the defendant has a right to interpose a
       defense. And the defendant has interposed a defense of what we call
       entrapment.     And the definition of entrapment is that a criminal
       defendant may assert an entrapment by estoppel defense when the
       government affirmatively assures him that certain conduct is lawful, the
       defendant thereafter engages in the conduct in reasonable reliance on
       those assurances, and a criminal prosecution based upon the conduct
       ensues. To make out the affirmative defense, the defendant must show
       that there were affirmative assurances made to him by the government
       that this conduct was legal. In order to establish an entrapment by
       estoppel defense, the defendant must prove three elements: One, that
       there was an active misleading by a government agent; two, that the
       defendant actually relied on the agent’s misrepresentation, which was
       reasonable in light of the position of the agent, the point of law was
       misrepresented, and the substance of the misrepresentation; and three,
                                                                            -24-

that the government agent is one who is responsible for interpreting,
administering, or enforcing the law defining the offense.

Now, ladies and gentlemen, I explained to you several times that the
state has to obligation of proving each and every element of the offense
or offenses charged beyond a reasonable doubt. Beyond a reasonable
doubt is the highest standard that we have in a criminal case. The
defendant, however, is not responsible to prove his defense beyond a
reasonable doubt. He is only responsible to prove his defense by a
preponderance of the evidence. * * *

So the definition of preponderance of the evidence that you must apply
to the defendant’s claim is that preponderance of the evidence is the
greater weight of the evidence.     That is, evidence that you believe
because it outweighs or overbalances in our mind the evidence that is
opposed to it. A preponderance means evidence that is more probable,
more persuasive, or of greater probative value. You must weigh the
quality of the evidence.    Quality may or may not be identical with
quantity.

***

If the defendant fails to establish the defense of entrapment by
estoppel, the state must still prove to you, beyond a reasonable doubt
each and every element of the offense or offenses charged in the
indictment before you’re justified in convicting the defendant.

If you find the defendant has proven by a preponderance of the
evidence the defense of entrapment, you must still find that the State of
Ohio, as I’ve said, has proven each and every element of the offense
charged in Counts One, Two and Three.

***
                                                                                      -25-

       If you do not find that the defendant proved by a preponderance of the
       evidence the defense of entrapment, if you find that the state failed to
       prove beyond a reasonable doubt any one of the essential elements of
       the offense, offenses charged in Counts One, Two and Three, you must
       find the defendant not guilty.

Tr. 630-634.
       {¶76} Consequently, this assignment of error lacks merit because although
the trial court erred in giving the affirmative defense instruction over Appellant’s
objection, the error was harmless.
                            Fourth Assignment of Error
       “Appellant was denied due process, equal protection, and a fair trial when the
trial was infected by prosecutorial misconduct.”
       {¶77} The test for prosecutorial misconduct is whether the conduct
complained of deprived the defendant of a fair trial. State v. Fears, 86 Ohio St.3d
329, 332, 715 N.E.2d 136 (1999). In reviewing a prosecutor's alleged misconduct, a
court should look at whether the prosecutor's remarks were improper and whether
the prosecutor's remarks affected appellant's substantial rights. State v. Smith, 14
Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). “[T]he touchstone of analysis ‘is the
fairness of the trial, not the culpability of the prosecutor.’” State v. Hanna, 95 Ohio
St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 61, quoting Smith v. Phillips, 455 U.S.
209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). An appellate court should not deem
a trial unfair if, in the context of the entire trial, it appears clear beyond a reasonable
doubt that the jury would have found the defendant guilty even without the improper
comments. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶
121.
       {¶78} There are two instances of alleged prosecutor misconduct. The first is
the prosecutor’s suggestion and argument Appellant was guilty based on the board’s
assessment of the evidence. He directs this court to the testimony of Lois Clark
when she was asked if the contract between Appellant and his brother was against
the law.    Tr. 158.    Appellant objected to the question and the objection was
                                                                                   -26-

sustained. Tr. 158. He also directs our attention to the state’s cross-examination of
Appellant. The questions asked if the board of directors’ decision was law and if the
board found what he did to be illegal. Tr. 513-517. Appellant also objected to this
line of questioning.
       {¶79} In reviewing the cross-examination in its context, the state’s questioning
focused on two points. First, the questions concerning if the board’s decisions were
law went to the state’s position that Appellant was asserting the affirmative defense
of entrapment by estoppel. In context, the questions were not used to assert the
board found what he did to be illegal, so it must be illegal. Rather, the questions
were a means for the state to attempt to show the affirmative defense was not
proven.
       {¶80} Thus, in this context it does not appear the prosecutor committed
misconduct. However, even if the questions were questionable, they did not affect the
outcome of the trial.      Many witnesses who were knowledgeable on whether an
employee could receive their salary from MYCAP at the same time as receiving grant
money for consulting fees testified it was not proper and not allowable by the
language of the grant. Tr. 368, 378, 399-400, 453. Furthermore, the language of the
grant contracts for three MYCAP employees stated an employee could not be a
consultant. Tr. 399-400; State’s Exhibits 19-21. Thus, there was sufficient evidence
to show theft.
       {¶81} The second alleged misconduct occurred during the state’s cross-
examination of Appellant. The questioning concerned emails to Appellant from the
board of director’s legal counsel. Tr. 518. Appellant was asked if he had emails
advising him if it was okay to enter a contract with his brother.       Tr. 518.    He
responded he did and they were with the board’s legal counsel. Tr. 518.

       Q. So Mr. Roller, you’re telling us that you’re on trial for entering an
       illegal contract with your brother, and you have an E-mail that says it’s
       okay, but you didn’t bring a copy of that with you here?

                 Mr. Juhasz [counsel for Appellant]: Objection.
                                                                                    -27-

               The Court: Overruled.

      A. MYCAP took away my access to my E-mail.

      Q. But you just testified that Percy Squire [prior board counsel] still has
      a copy of this E-mail?

      A. That he does.

      Q. And Mr. Roller, this – these actions happened back in 2009; is that
      correct?

      A. Yes.

      Q. And so from that time until today, you were not able to obtain a copy
      of that E-mail?

               Mr. Juhasz: Objection.

               The Court: Overruled.

      A. No.

Tr. 519-520.
      {¶82} As previously stated, the state requested, over Appellant’s objection, an

instruction on the affirmative defense of entrapment by estoppel. The trial court

granted the request. Appellant bore the burden of proof for the affirmative defense.

Thus, questioning Appellant on the documentation to support his claim that the board

approved the contract with Jason was permissible. Regardless, Appellant was not

prejudiced by the questions. He was found not guilty of an unlawful interest in a

contract. Therefore, the alleged misconduct did not prejudicially affect him.

      {¶83} For the above stated reasons, this assignment of error lacks merit.
                                                                                      -28-

                                   Conclusion
       {¶84} The first, second, and fourth assignments of error lack merit. The third

assignment of error has merit. However, the error committed was harmless.

Accordingly, Appellant’s convictions for theft in office and grand theft are affirmed.

Although, the convictions are affirmed, we sua sponte remand the matter to the trial

court to correct a mistake in its final judgment entry. In the entry the court indicated

Appellant was found guilty of having an unlawful interest in a public contract, a fourth

degree felony. 8/20/15 J.E. That statement is incorrect. The jury found him not guilty

of that charge. The trial court is instructed to correct the judgment entry.




Donofrio, P.J., concurs.

DeGenaro, J., concurs.
