[Cite as State v. Davis, 2013-Ohio-2539.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99023




                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                        VICTOR DAVIS
                                                    DEFENDANT-APPELLANT




                                  JUDGMENT:
                               AFFIRMED IN PART,
                               REVERSED IN PART,
                            REMANDED FOR SENTENCING


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                              Case Nos. CR-554727 and CR-558926

        BEFORE: E.T. Gallagher, J., Rocco, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: June 20, 2013
ATTORNEY FOR APPELLANT

Joseph Vincent Pagano
P.O. Box 16869
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Edward Fadel
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

      {¶1} Defendant-appellant Victor Davis (“Davis”) appeals his theft conviction and

sentence. We find some merit to the appeal and affirm in part and reverse in part.

      {¶2} Davis was indicted in two separate cases.            In Cuyahoga C.P. No.

CR-554727, he was charged with one count of theft in violation of R.C. 2913.02(A)(3), a

fifth-degree felony. The victim in that case was American Federation of Governmental

Employees, Local 3283 (“AFGE Local”). In Cuyahoga C.P. No. CR-558926, Davis was

charged with one count of theft in violation of R.C. 2913.02(A)(3), a fourth-degree

felony. The victim in that case was the U.S. Department of Defense — Defense Finance

and Accounting Services (“DFAS”). The charges arose from Davis’s misuse of DFAS’s

time-keeping system, which is used for payroll calculations. The state alleged that by

deception, Davis received compensation for work he did not perform.

      {¶3} Davis worked for DFAS in Cleveland from November 1988 until 2010.

From 1997 through 2009, Davis was president of AFGE, Local 3283 and was also an

officer of the National Union, Council 171 (“Council 171”).    Davis lost the local union

election in May 2009 and was required to return to regularly assigned duties as a military

pay technician. During his tenure as the local union president, Davis was compensated

as a full-time employee under the code RGBD, which indicates the employee is

performing union work. This code is referred to as “official time.” An employee’s time
spent performing regularly assigned work is indicated by the code RG. Annual vacation

time, sick leave, and holidays are also tallied in the DFAS’s time-keeping system.

       {¶4} At trial, Chester Boutelle Jr. (“Boutelle”), former deputy director for DFAS

in Cleveland, testified that in May 2009 he informed Davis that he would be afforded a

two-week transition period to assist the newly elected local union president before

returning to his regular duties. Davis was entitled to 100 percent official time during this

two-week period. Boutelle explained that after the transition period ended, Davis would

work as a military pay technician processing military pay for active members of the

United States military. Boutelle assured Davis that he would receive on-the-job training.



       {¶5} Davis admitted at trial that he never performed any of the duties of a military

pay technician. He testified that his supervisors never provided him with a computer or

telephone, and they never assigned him any work. Yet, his time sheets indicated that he

was paid on a regular basis from May 2009, when he lost the election, through May 2010.

 None of his time sheets during that period contained the code RG, which would have

indicated that he performed any regular, non-union, work.

       {¶6} Although Davis lost the union presidential election, he maintained a position

as secretary of Council 171.      Davis was permitted to use “official time” when he

performed union work as an officer of Council 171, a branch of the national union. With

the exception of Davis, all the witnesses agreed that Davis’s union responsibilities would

consume approximately 50 percent of his time. These witnesses also agreed that there
was a three-month break during the period from September 2009 through May 2010,

during which Davis was not required to perform any union work.

       {¶7} John Kern (“Kern”), a human resources specialist, and Sherman Patton

(“Patton”), chief of personnel and security of DFAS, investigated reports that Davis was

abusing official time on his time sheets.   Davis’s time sheets revealed that he had 600

hours of authorized official time and 636 hours of unauthorized official time. Kern

stated that the 636 hours of unauthorized official time should have been recorded as

“absent without leave” and therefore without pay. Patton testified that Davis was

primarily an employee of the agency and that he needed prior approval of official time.

When he was not performing union activities, he should have been performing his regular

assigned duties and coded such time as RG on his time sheets.

       {¶8} In describing the procedure for obtaining approval of official time, Patton

explained that senior negotiators for both DFAS and the union first notify the labor

relations office of the DFAS of the employees needed for negotiations. The notice

includes the dates of scheduled negotiating sessions and any preparatory time associated

with those negotiations. The labor relations office then communicates the request to the

employee’s supervisor, and the supervisor provides the final approval. According to

Patton and Darlene Asberry (“Asberry”), Davis’s immediate supervisor, Davis never

requested approval of official time.

       {¶9} When Patton confronted Davis about his misuse of official time, Davis

denied the allegation and asserted that he was charging his time as regular time. Seeking
clarification, Patton asked Davis: “So you’re charging your time as regular time to your

normally-assigned duties?” To which Davis replied, “Yes, I am.” (Tr. 292.)

       {¶10} Asberry and Patricia Edwards (“Edwards”), a lead military pay technician,

testified that they thought Davis was still entitled to 100 percent official time because he

was performing union duties. Asberry approved Davis’s time sheets for 17 pay periods,

which Edwards submitted on his behalf as a “surrogate” technician. No one informed

Asberry as to how Davis should have coded his time after losing the union presidential

election. Davis left a sign on his cubicle indicating he was away on union business, and

Asberry rarely saw him in the office. She testified that Davis never requested training or

any work assignments.        However, when upper-level supervisors informed Asberry that

Davis needed to be trained, she eventually began training Davis in the fall of 2010.

       {¶11} Several witnesses testified for the defense. Frank Rock (“Rock”), who

works in the accounts payable directorate of the DFAS and is the former president of the

DFAS AFGE Council, testified that he was designated as the chief negotiator for all

union matters relating to the agency while Davis was the executive secretary. Rock

stated that during the period from September 2009 to May 2010, the union had sporadic

contract negotiations, including a three- month break. According to Rock, 50 percent of

Davis’s time was spent on union negotiations and the other 50 percent should have been

spent in his local office.

       {¶12} The jury found Davis guilty of theft in violation of R.C. 2913.02(A)(3), a

fourth-degree felony, as charged in the indictment in CR- 558926. Davis subsequently
pleaded guilty to attempted theft, in violation of R.C. 2923.02 and 2913.02(A)(3), a

first-degree misdemeanor, in CR-554727. The court sentenced Davis to two years of

community control sanctions and ordered him to pay restitution in the amount of $13,635

in CR-558926, and $1,358.26 in CR-554727.            Davis now appeals and raises five

assignments of error.

                            Sufficiency and Manifest Weight

       {¶13} In the first assignment of error, Davis argues there was insufficient evidence

to support his theft conviction. He contends there was no evidence that he purposely

deprived DFAS of any money by deception, and there was no evidence proving what

amounts, if any, he was overpaid during the relevant time period.         He contends the

overuse of official time on his time sheets was a coding error and not a crime.

       {¶14} In the second assignment of error, Davis argues that his theft conviction is

against the manifest weight of the evidence. However, he does not raise any new issues

and reiterates the same arguments raised in his first assignment of error with respect to

sufficiency of the evidence. Therefore, although the terms “sufficiency” and “weight” of

the evidence are “quantitatively and qualitatively different,” we address these assigned

errors together, while applying the distinct standards of review to Davis’s arguments.

State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.

       {¶15} The test for sufficiency requires a determination of whether the prosecution

met its burden of production at trial.        State v. Bowden, 8th Dist. No. 92266,

2009-Ohio-3598, ¶ 12. 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. State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 942 (1991), paragraph two of the syllabus.

       {¶16} In contrast to a sufficiency argument, a manifest weight challenge questions

whether the state met its burden of persuasion. Bowden, supra; Thompkins at 386-387.

When reviewing a claim that the judgment was against the manifest weight of the

evidence, we review the entire record, weigh both the evidence and all the reasonable

inferences, consider the credibility of witnesses and determine 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. Id. at

387.

       {¶17} Davis was convicted of one count of theft, in violation of R.C.

2913.02(A)(3), which states that “[n]o person, with purpose to deprive the owner of

property * * * shall knowingly obtain or exert control over * * * the property * * * [b]y

deception.”

       {¶18} Davis argues the state failed to prove that he acted purposely.            R.C.

2901.22, which defines culpable mental states, provides, in relevant part:

       (A) A person acts purposely when it is his 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 his specific intention to engage in conduct of that
       nature.

       (B) A person acts knowingly, regardless of his purpose, when he is aware
       that his conduct will probably cause a certain result or will probably be of a
      certain nature. A person has knowledge of circumstances when he is aware
      that such circumstances probably exist.

      {¶19} R.C. 2913.01(A) defines “deception” 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.

      {¶20} As defined in R.C. 2913.01(C), “deprive” means to do any of the following:

      (1) Withhold 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;

      (2) Dispose of property so as to make it unlikely that the owner will recover
      it;

      (3) Accept, use, or appropriate money, property, or services, with purpose
      not to give proper consideration in return for the money, property, or
      services, and without reasonable justification or excuse for not giving
      proper consideration.

      {¶21} The state accused Davis of purposely receiving compensation from his

employer, DFAS, without performing any duties for his employer from September 1,

2009 to May 22, 2010. Although there is no direct evidence proving Davis’s intent to

deprive the DFAS of money without giving proper consideration, we find there is

sufficient circumstantial evidence of his guilt. We also find that the weight of the

evidence supports his conviction.

      {¶22} Boutelle testified that he personally informed Davis that he was required to

return to his regular non-union work after a two-week transition period following the
election of the new local union president. Therefore, despite an apparent lack of

communication among DFAS management supervisors, and despite the fact that his

immediate supervisor believed he was still entitled to 100 percent official time, Davis

knew he was supposed to resume regular work as a military pay technician. Yet he

admitted that from September 2009 to May 2010, he never performed any assignments as

a military pay technician.

       {¶23} Boutelle and Patton testified that although Davis was authorized to use some

official time to perform union work as Council 171’s secretary, his time spent on union

work should never have exceeded his time spent on his “in house duties.” Even Rock,

who testified for the defense, stated that during the time period from September 2009 to

May 2010, Council 171 met approximately two weeks per month, except for a

three-month break during which it did not meet at all. Rock further stated that during the

two-week period each month when Council 171 was not involved in contract

negotiations, officers of the council returned to their regular jobs. He agreed that “the

Council doesn’t require 100 percent of your time.”

       {¶24} Asberry and another supervisor, Mark Rudolph (“Rudolph”), were

responsible for ensuring that employee time, including Davis’s time, was coded properly.

Although Boutelle instructed Davis to report for regular work, Davis never informed his

supervisors about the change in his employment status, which now required him to

produce for the agency in exchange for compensation. By withholding this information,
Davis misled his supervisors into believing that he was still authorized to work

exclusively on union business.

       {¶25} Davis, who testified on his own behalf, stated that he continued to perform

union work in the office because his supervisors prevented him from performing regular

assignments by failing to provide him with a computer, a telephone, and training.

However, Asberry testified that not only was she under the impression that Davis was still

entitled to 100 percent official time, but Davis rarely made an appearance in the office,

and he kept a sign on his cubicle indicating that he was away on union business. Asberry

also testified that Davis never asked for training or work.

       {¶26} Davis also testified that he did not know that surrogate employees had been

encoding his time as 100 percent official time.          However, Edwards testified that

employees are responsible for filling out their own time cards. A surrogate only inputs

time for another employee if the employee is unable to fill out his own time card.

Edwards further testified that Davis often called her to confirm that she was submitting

his time sheets. (Tr. 265.) Asberry instructed Edwards, who was an authorized surrogate,

to fill out Davis’s time cards because Asberry believed he was still exclusively

performing union duties.

       {¶27} When confronted about his overuse of official time, Davis told Patton that

he was charging his time as regular time on his time sheets. Thus, he told Patton that not

only was he performing regular work, he stated that he was inputting the RG code on his

own time cards. However, not a single RG code appears on any of Davis’s time sheets,
which were admitted into evidence. We find this evidence is sufficient to establish that

Davis purposely decided not to inform his supervisors that he was required to perform

regular assigned work in the office and was no longer entitled to 100 percent official time

so that he could receive 100 percent official time.

       {¶28} Davis further argues that even if there is sufficient evidence to prove that he

committed theft, there is insufficient evidence proving what amounts, if any, DFAS

overpaid him. However, as part of the criminal investigation, Kern reviewed Davis’s

employment records and learned that he was being compensated at a rate of $21.44 per

hour. He also discovered that Davis’s entire time-keeping record indicated that he was

paid exclusively for official time, annual leave, and holidays, but no regularly assigned

work. After accounting for authorized official time, Kern determined that Davis was

paid $13,650 for 636 hours of unauthorized official time. We find Kern’s testimony

sufficient to establish the amount DFAS paid Davis for unauthorized official time.

       {¶29} We also find it reasonable for the jury to conclude that Davis’s testimony

was not credible. Davis asserted that he was entitled to official time for union work he

performed while sitting at his assigned desk. Although several witnesses testified that

they had seen Davis in the office, his appearances were rare. Davis’s testimony that he

did not know a surrogate was erroneously coding his time sheets for almost nine months

is far-fetched in light of the other evidence. Several witnesses testified they were misled

to believe that Davis was still entitled to 100 percent official time and that Davis never
sought any regular work. Therefore, we find that Davis’s theft conviction was supported

by sufficient evidence and was not against the manifest weight of the evidence.

       {¶30} The first and second assignments of error are overruled.

                                         Restitution

       {¶31} In the third assignment of error, Davis argues the trial court erred by

ordering restitution in violation of R.C. 2929.18. However, because Davis failed to

object to the restitution order, he waived all but plain error.

       {¶32} Crim.R. 52(B) provides that “[p]lain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the court.”

“Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under

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

Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. In

order to find plain error under Crim.R. 52(B), it must be determined that, but for the error,

the outcome of the proceedings clearly would have been otherwise. Id. at paragraph two

of the syllabus.

       {¶33} Davis contends the court’s restitution order violates R.C. 2929.18(A)(1)

because the court failed to identify the source it used to determine the amount.         R.C.

2929.18(A)(1) provides in relevant part:

       Restitution by the offender to the victim of the offender’s crime * * * in an
       amount based on the victim’s economic loss. * * * If the court imposes
       restitution, at sentencing, the court shall determine the amount of restitution
       to be made by the offender. If the court imposes restitution, the court may
       base the amount of restitution it orders on an amount recommended by the
       victim, the offender, a presentence investigation report, * * * and other
       information, provided that the amount the court orders as restitution shall
       not exceed the amount of the economic loss suffered by the victim as a
       direct and proximate result of the commission of the offense. If the court
       decides to impose restitution, the court shall hold a hearing on restitution if
       the offender, victim, or survivor disputes the amount.

“Economic loss” is defined as “any economic detriment suffered by a victim as a direct

and proximate result of the commission of an offense and includes * * * any property loss

* * * incurred as a result of the commission of the offense.” R.C. 2929.01(L).

       {¶34} Although Davis disputed the amount of unauthorized official time at trial, he

did not object to the restitution order.     As previously stated, Kern investigated the

amount of unauthorized official time for which Davis was paid and testified that the

DFAS paid him $13,650 for unauthorized time. Kern reached this figure after reviewing

a list of approved union business time, Davis’s employment records, and speaking with

labor relations personnel. Therefore, the trial court’s judgment ordering Davis to pay

restitution in the amount of $13,650 to DFAS was not in excess of the economic loss the

DFAS suffered as a result of Davis’s action.

       {¶35} With respect to the order of restitution in the amount of $1,358 in

CR-554727, Davis specifically agreed to this amount as part of his plea agreement. In

State v. Hody, 8th Dist. No. 94328, 2010-Ohio-6020, this court held that where the state

and defense entered into a stipulation as to the amount of restitution in a plea agreement,

the parties’ stipulation to the amount serves as sufficient basis to support the trial court

order and “precludes defendant from complaining about it now on appeal.” Id. at ¶ 25.

       {¶36} Therefore, the third assignment of error is overruled.
                            Ineffective Assistance of Counsel

       {¶37} In the fourth assignment of error, Davis argues he was deprived of his

constitutional right to the effective assistance of counsel. He contends his trial counsel

was ineffective for failing to object to the trial court’s restitution orders.        He also

contends that his trial counsel’s faulty interrogation of witnesses caused the court to sua

sponte object on several occasions and that the court’s interruptions prejudiced the

defense.

       {¶38} To prevail on a claim of ineffective assistance of counsel, a defendant must

show that counsel’s performance fell below an objective standard of reasonableness and

that prejudice arose from counsel’s performance. Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538

N.E.2d 373 (1989), paragraph two of the syllabus. A defendant must show that counsel

acted unreasonably and that, but for counsel’s errors, there exists a reasonable probability

that the result of the proceeding would have been different. Strickland at 696; Bradley at

paragraph three of the syllabus. In making this determination, the reviewing court must

presume that counsel’s conduct was competent. Id.

       {¶39} Davis’s trial counsel’s failure to object to the restitution orders did not result

in the ineffective assistance of counsel.      As previously stated, Kern established the

amount of restitution after reviewing authorized time, employment records, and Davis’s

time sheets. And Kern was subject to cross-examination. Having heard the evidence,

the trial court was informed of the value of loss and the method used for calculating the
loss. Therefore, even if Davis’s trial counsel had objected to the restitution order, it

would not have changed the trial court’s judgment.

       {¶40} Davis’s trial counsel was also not ineffective for choosing not to object to

the restitution order in CR-554727 because the parties stipulated to that amount in the

plea agreement. Therefore, we find that Davis’s trial counsel was not ineffective for

failing to object to the trial court’s restitution order.

       {¶41} Finally, the trial court’s sua sponte objections did not render Davis’s trial

counsel ineffective. The court only objected to the form of trial counsel’s questions, not

the evidence itself. The court always afforded Davis’s trial counsel the opportunity to

rephrase the question. Moreover, the court acknowledged its interruptions and instructed

the jury: “I certainly do not have any grudge against either side in this case. It’s just my

job to rule on the laws and make rulings on evidentiary questions.” (Tr. 557.) A jury is

presumed to follow the instructions given to it by the trial judge. State v. Henderson, 39

Ohio St.3d 24, 33, 528 N.E.2d 1237 (1988).

       {¶42} Therefore, we cannot say that Davis’s trial counsel’s interrogation of certain

witnesses was ineffective and unfairly prejudiced the defense.

       {¶43} Accordingly, the fourth assignment of error is overruled.

                                 Union Activities Prohibited

       {¶44} In the fifth assignment of error, Davis argues the trial court erred when it

prohibited him from participating in union activities as a condition of his community
control sanctions. He contends this condition is overly broad, vague, and violates his

constitutional rights to freedom, speech, assembly and association.

       {¶45} R.C. 2929.15(A)(1) vests the trial court with discretion to impose any

condition of community control sanctions it deems appropriate. State v. Talty, 103 Ohio

St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, reaffirming State v. Jones, 49 Ohio St.3d

51, 52, 550 N.E.2d 469 (1990). However, the trial court’s discretion is not limitless. In

Talty, the Ohio Supreme Court held that conditions of probation must be reasonably

related to the three probationary goals articulated in Jones. In determining whether a

condition reasonably relates to those probationary goals, the Talty court held that trial

courts must consider (1) whether the condition “is reasonably related to rehabilitating the

offender, (2) has some relationship to the crime of which the offender was convicted, and

(3) relates to conduct which is criminal or reasonably related to future criminality and

serves the statutory ends of probation.” Id. at ¶ 12. The Talty court cautioned that

probation conditions must “not be overly broad so as to unnecessarily impinge upon the

probationer’s liberty.” Id. at ¶ 13.

       {¶46} Here, the trial court’s order prohibiting Davis from participating in union

activities is overly broad and does not achieve any of the probationary goals of

rehabilitation.   Davis lost his job as a result of his convictions. According to his

statements at the sentencing hearing, he also lost his pension. Prohibiting Davis from

associating with union members will preclude him from using his contacts to find new

employment. New employment may have the greatest rehabilitative impact on Davis
because it would not only allow him to correct his previous wrongs, but it would deter

him from committing future crimes and suffering further economic loss as a result.

       {¶47} The prohibition on Davis’s union involvement is also not calculated to

prevent future crime. Although Davis used his union activities as a guise to deceive his

employer and commit theft, he has now lost his job and is no longer in a position to use

the union for fraudulent purposes.       Because the condition prohibiting Davis from

associating with union members does not serve a probationary goal, we find the trial court

abused its discretion when it imposed that condition.

       {¶48} Accordingly, we sustain the fifth assignment of error.

       {¶49} We affirm the trial court’s judgment in part and remand the case to the trial

court with instructions for the court to vacate the condition of Davis’s community control

sanctions that prohibits him from participating in union activities.

       {¶50} Judgment affirmed in part, reversed in part, and remanded to the lower court

for further proceedings consistent with this opinion.

       It is ordered that appellant and appellee share the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE

KENNETH A. ROCCO, P.J., and
PATRICIA A. BLACKMON, J., CONCUR
