[Cite as State v. Arnold, 2017-Ohio-209.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-15-1126

        Appellee                                 Trial Court No. CR0201401915

v.

Marvin Arnold                                    DECISION AND JUDGMENT

        Appellant                                Decided: January 20, 2017

                                            *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

        Jerry P. Purcel, for appellant.

                                            *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a judgment of the Lucas County Court of Common

Pleas that found appellant Marvin Arnold guilty of one count of insurance fraud, a felony

of the fourth degree. For the following reasons, the judgment of the trial court is

affirmed.
       {¶ 2} Appellant Arnold was employed by the city of Toledo from July 2002 until

September 2013. On June 6, 2014, appellant was indicted on one count of insurance

fraud in violation of R.C. 2913.47(B)(1) and (C). The matter came for trial before a jury

on February 25, 2015, and the following testimony was heard.

       {¶ 3} The state called Calvin Brown, who was the commissioner of the city’s

department of human resources from August 2002 through August 2013. Brown testified

that ex-spouses were not eligible for benefits through the city unless the ex-spouse paid

the premiums through COBRA. Brown testified that on July 3, 2002, appellant applied

for family health care coverage to begin August 12, 2002. Appellant indicated on the

application, which he signed, that he was married and listed his wife Carlene Arnold

(“Carlene”) and two minor children as dependents. Appellant supported the application

with a 1999 federal income tax return indicating that he and Carlene had filed under

married status.

       {¶ 4} Based on appellant’s application, benefits were extended to Carlene. The

city did not initially investigate the veracity of the application when it was submitted in

2002 and Carlene availed herself of the health insurance benefits. Over the years, the city

made payments on her dental, medical and prescription expenses. In 2011, however, the

city conducted a full dependent audit of its employees and identified several employees

who were potentially wrongfully using the city’s health insurance. At that time, appellant

provided the city with a 2010 income tax return indicating that he and Carlene filed as a

married couple.




2.
       {¶ 5} In 2012, the city’s record check indicated that appellant and Carlene had

been divorced in 2001 and that Carlene had been receiving benefits from at least 2006

forward. Brown testified that to the best of his knowledge appellant never informed the

city that he was not legally married to Carlene. On August 27, 2013, the city sent a letter

to appellant advising him that the city had become aware that he was divorced from

Carlene on October 17, 2001, and that his ex-wife had been using the city’s health care

benefits after the divorce was final. The information was given to the city’s employee

relations staff, which began further investigation into the matter, leading to disciplinary

proceedings against appellant. Appellant was charged with six counts including theft of

city benefits, falsification of city records and gross misconduct. Following a hearing held

on September 11, 2013, appellant was found guilty of all six counts. A recommendation

was then filed to terminate appellant from his city of Toledo employment.

       {¶ 6} Brown testified that appellant was offered the opportunity to pay the city for

the benefits received by Carlene but appellant declined. He further testified that after

2011, city employees paid a premium for their health insurance. Further, the city

provided coverage for domestic partners if the employee provided documentation that

there was a true relationship and registered with the city.

       {¶ 7} The state next called Toledo Police detective Blake Watkiss, who

investigated appellant upon a request from the city. Through his investigation, Watkiss

learned that when appellant was hired he was divorced from Carlene. Watkiss obtained a

copy of a marriage certificate showing that appellant married Carlene on September 5,




3.
1986. He further testified that he obtained a certified copy of a divorce decree

journalized October 22, 2001, indicating that the marriage between appellant and Carlene

was terminated. During the course of the investigation, appellant provided Watkiss with

a certified copy of another marriage certificate showing that appellant and Carlene re-

married on September 3, 2013. Watkiss clarified that the second marriage occurred after

his investigation of appellant had begun. As part of the investigation, Watkiss developed

spreadsheets detailing health care benefits totaling $46,643.23 paid by the city on behalf

of Carlene.

       {¶ 8} Watkiss eventually interviewed appellant and testified that appellant

appeared contrite and seemed to be forthcoming during the interview. Arnold told

Watkiss that he did not realize he was non-compliant or that he was involved in anything

improper. Watkiss further testified that appellant said the city was partly to blame for not

discovering the problem much sooner.

       {¶ 9} Miranda Vollmer, formerly with the city’s human resources department,

testified that she represented the city at the administrative hearing conducted

September 11, 2013, pursuant to the allegations brought against appellant. Vollmer

testified that the hearing officer concluded in his report dated September 25, 2013, that

appellant was guilty of conduct unbecoming a city employee, gross misconduct, theft of

city benefits, falsification of city records and failure to properly notify the city of a

qualifying event related to health care eligibility. Appellant was terminated from his

employment shortly thereafter.




4.
       {¶ 10} The city next called Don Czerniak, president of AFSCME Local 7, the

union which represented appellant. Czerniak testified that AFSCME Local 7 did not

recognize domestic partnerships until 2012. He further testified that prior to the hearing

the city proposed a means of resolving the matter whereby appellant would maintain his

employment with the city while the city would withhold a portion of each paycheck to

reimburse it for benefits paid for Carlene. Appellant acknowledged that he owed the

money but did not agree with the amount of proposed withholdings.

       {¶ 11} Finally, appellant testified on his own behalf. Appellant acknowledged

marrying Carlene in 1986. He stated that in 2001, the couple had marital difficulties and

he moved out of their home for approximately two months, during which time Carlene

filed for divorce. The complaint for divorce was filed August 2, 2001, and was final on

October 17 of that year. The couple eventually resumed living together and

approximately four months later, in July 2002, appellant began working for the city.

Appellant testified that in his mind he and Carlene were married throughout the time he

worked for the city and said that they filed income tax returns each year as “married

filing jointly.” Further, appellant testified that he “forgot” they had divorced and

considered the divorce action to be a “mishap” from which they moved on. When he

completed the insurance application with the city in 2002 and marked the box indicating

he was married he believed he was married. Appellant acknowledged that child support

was withheld from each paycheck and sent to Carlene at the residence they shared shortly

after he started working for the city.




5.
       {¶ 12} Appellant was found guilty of the offense of insurance fraud. On April 14,

2015, appellant was sentenced to five years community control and ordered to pay

$46,643.23 in restitution, among other sanctions.

       {¶ 13} Appellant sets forth the following assignments of error:

              A. Appellant was denied a fair trial where the state was allowed to

       present the findings of an administrative hearing conducted pursuant to a

       collective bargaining agreement to the jury indicating appellant was “guilty

       on all charges.”

              B. Appellant was denied the effective assistance of counsel.

              C. The trial court erred in failing to grant appellant’s motion for

       acquittal pursuant to Crim.R. 29 and appellant’s conviction was not

       supported by sufficient evidence and was against the manifest weight of the

       evidence since there was no evidence of his specific intent to defraud the

       victim.

       {¶ 14} In support of his first assignment of error, appellant asserts that he was

prejudiced when state’s witness Miranda Vollmer was allowed to testify as to the

administrative hearing that resulted in findings of guilty as to all charges and termination

of his employment. Appellant argues that the jury was left to infer that since another

legal body had already found him guilty, the jury’s work was “cut and dry.”

       {¶ 15} We note that appellant did not object at trial to the testimony as to the

administrative hearing. An error not raised in the trial court must be plain error for an




6.
appellate court to reverse. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978);

Crim.R. 52(B). In order to prevail under a plain error analysis, appellant bears the burden

of demonstrating that the outcome of the trial clearly would have been different but for

the error. Long, supra. Notice of plain error “is to be taken with the utmost caution,

under exceptional circumstances and only to prevent a manifest miscarriage of justice.”

Id. at paragraph three of the syllabus.

       {¶ 16} Although the evidence as to the administrative hearing was excludable, we

find no plain error as appellant has not demonstrated that the outcome of the trial clearly

would have been different but for the allegedly improper actions. As summarized above,

appellant did not contest the dates of his divorce, his official hiring by the city or his

remarriage to Carlene. He did not dispute the fact that when he applied for benefits from

the city for Carlene they were divorced or that he continued to represent himself as

married when he was not. Appellant’s only defense at trial was that the divorce “slipped

his mind.” Appellant was not prejudiced by the admission of evidence as to the

administrative hearing and, accordingly, we find no plain error.

       {¶ 17} Appellant’s first assignment of error is found not well-taken.

       {¶ 18} In his second assignment of error, appellant asserts he was denied effective

assistance of counsel based on counsel’s failure to object to the testimony regarding the

administrative hearing and counsel’s failure to seek an instruction on the affirmative

defense of entrapment.




7.
       {¶ 19} In order to prove ineffective assistance of counsel, appellant must show

defense counsel’s performance fell below an objective standard of reasonableness, and a

reasonable probability exists that, but for counsel’s error, the results of the trial would

have been different. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052,

80 L.Ed 2d 674 (1984). In Ohio, a properly licensed attorney is presumed competent.

State v. Hamblin, 37 Ohio St.3d 153, 524 N.E.2d 476 (1988).

       {¶ 20} As to appellant’s first argument, based on our finding above that appellant

was not prejudiced by the admission of evidence regarding the administrative hearing, we

are unable to find that counsel was ineffective for failing to object thereto. This argument

is without merit.

       {¶ 21} Appellant also argues that counsel was ineffective for failing to ask for a

jury instruction on the defense of entrapment. This argument is without merit. The

affirmative defense of entrapment “is established where the criminal design originates

with the officials of the government, and they implant in the mind of an innocent person

the disposition to commit the alleged offense and induce its commission in order to

prosecute.” State v. Doran, 5 Ohio St.3d 187, 449 N.E.2d 1295 (1983), paragraph one of

the syllabus. The burden of production and the burden of proof, by a preponderance of

the evidence, is on the defendant. Doran, supra; R.C. 2901.05(A).

       {¶ 22} In this case, appellant is not able to point to any evidence in the record that

any criminal design originated with the officials of the city of Toledo. There is no

evidence that the city encouraged employees to claim benefits for individuals such as




8.
ex-spouses who were not otherwise eligible. Nor did appellant present any evidence that

the city “implanted in the mind of an innocent person” the disposition to commit

insurance fraud. In summary, there was simply no support for trial counsel to request a

jury instruction on entrapment.

       {¶ 23} Based on the foregoing, we find that trial counsel’s performance cannot be

considered ineffective pursuant to the standards set forth in Strickland, supra.

Accordingly, appellant’s second assignment of error is not well-taken.

       {¶ 24} In support of his third assignment of error, appellant asserts that the trial

court erred by denying his Crim.R. 29 motion for acquittal and that his conviction was

not supported by sufficient evidence.

       {¶ 25} Crim.R. 29(A) provides that, upon motion of a defendant or on its own

motion, after the evidence on either side is closed, the trial court shall order an entry of

judgment of acquittal if the evidence is insufficient to sustain a conviction of the offense

charged. Further, when considering whether the state provided legally sufficient

evidence to support a conviction, an appellate court must examine all of the evidence

admitted at trial and determine whether the evidence, if believed by the trier of fact,

would convince the average mind of the defendant’s guilt beyond a reasonable doubt.

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

“The relevant inquiry is whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt.” Id.




9.
       {¶ 26} Appellant was convicted of insurance fraud in violation of R.C.

2913.47(B)(1), which provides that “No person, with purpose to defraud or knowing that

the person is facilitating a fraud, shall * * * [p]resent to, or cause to be presented to, an

insurer any written or oral statement that is part of, or in support of, an application for

insurance * * * knowing that the statement, or any part of the statement, is false or

deceptive * * *.”

       {¶ 27} This court has thoroughly reviewed the record of proceedings in the trial

court, including the testimony as summarized herein. When viewing the evidence in a

light most favorable to the prosecution, a rational trier of fact could have found the

essential elements of insurance fraud to be proven beyond a reasonable doubt. The trial

court did not err in denying appellant’s Crim.R. 29 motion for acquittal and, further, the

evidence was sufficient to support his conviction. Appellant’s first two arguments are

without merit.

       {¶ 28} As to appellant’s third argument regarding manifest weight of the evidence,

the Ohio Supreme Court has summarized the standard as follows:

       The court, reviewing the entire record, weighs the evidence and all

       reasonable inferences, considers the credibility of witnesses and determines

       whether in resolving conflicts in the evidence, the jury clearly lost its way

       and created such a manifest miscarriage of justice that the conviction must

       be reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d

       380, 386, 678 N.E.2d 541 (1997).




10.
       {¶ 29} Considering the evidence as summarized above, we cannot say the jury

clearly lost its way and created a manifest miscarriage of justice when it found appellant

guilty of insurance fraud.

       {¶ 30} Accordingly, appellant’s third assignment of error is not well-taken.

       {¶ 31} On consideration whereof, the judgment of the Lucas County Court of

Common Pleas is affirmed. Costs of this appeal are assessed to appellant pursuant to

App.R. 24.

                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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