[Cite as State v. Smith, 2009-Ohio-3154.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               PAULDING COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLANT,                              CASE NO. 11-09-02

        v.

MARY J. SMITH,                                            OPINION

        DEFENDANT-APPELLEE.




                Appeal from Paulding County Common Pleas Court
                            Trial Court No. CR08607

                                      Judgment Affirmed

                              Date of Decision: June 29, 2009




APPEARANCES:

        Eva J. Yarger for Appellant

        John E. Hatcher for Appellee
Case No. 11-09-02


PRESTON, P.J.

       {¶1} Plaintiff-appellant, the State of Ohio, appeals the Paulding County

Court of Common Pleas’ judgment dismissing its case against defendant-appellee,

Mary J. Smith (hereinafter “Smith”). For the reasons that follow, we affirm.

       {¶2} This matter stems from events that allegedly occurred in February

2008 when Smith was working for Slattery Oil (d.b.a. the Pop N Brew Drive

Thru). On March 12, 2008, Smith was indicted for theft in violation of R.C.

2913.02(A)(3), a felony of the fourth degree, in Case No. CR 08-525. The State

alleged that on or about the 7th day of February 2008, Smith did, with purpose to

deprive Slattery Oil of property, knowingly obtain or exert control over said

property, to wit: $5,174.35, by deception, in violation of R.C. 2913.02(A)(3). On

June 6, 2008, the State and Smith entered into an agreement entitled “Stipulation

of Results of Polygraph Examination of Defendant to be Introduced at Trial,”

(hereinafter “the stipulation agreement”). Smith took the polygraph examination,

and in the end, was found to have answered the questions truthfully. As a result,

on July 14, 2008, the State moved to dismiss the case against Smith, and the trial

court dismissed Case No. CR 08-525 without prejudice.

       {¶3} In September 2008, the Paulding County Court of Common Pleas

appointed a special prosecutor to review the facts of the previously dismissed theft

case. On November 14, 2008, Smith was re-indicted for theft in violation of R.C.



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Case No. 11-09-02


2913.02(A)(2)(B)(2), a felony of the fourth degree, in Case No. CR 08-607. The

State alleged that on or about February 7, 2008, Smith, with purpose to deprive the

owner of property or services, did knowingly obtain or exert control over either

the property or services of another, beyond the scope of the express or implied

consent of the owner. Responding to a discovery motion, the State admitted that

the amount of money involved in Case No. CR 08-607 was $5,174.35. (Case No.

CR 08-607, Doc. No. 15).       The case was set for trial on February 3, 2009;

however, on that day the defense made a motion to dismiss based on the

stipulation agreement from the prior case, Case No. CR 08-525. The trial court

found:

         that the “Stipulation of Results of Polygraph Examination of
         Defendant to be Introduced at Trial” constitutes a binding
         agreement or contract between the State and the Defendant and
         that upon the Defendant having passed the polygraph
         examination, the State was bound to dismiss the Indictment and
         was barred from instituting any new proceedings based upon the
         same conduct.

(Feb. 3, 2009 Tr. at 2-3); (Feb. 9, 2009 JE, Case No. CR 08-607). Therefore, the

trial court granted the defense’s motion and dismissed Case No. CR 08-607 with

prejudice.

         {¶4} The State now appeals and raises one assignment of error.

                           ASSIGNMENT OF ERROR

         THE TRIAL COURT INCORRECTLY INTERPRETED THE
         TERMS    OF  THE    STIPULATION  POLYGRAPH


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Case No. 11-09-02


      AGREEMENT FILED IN CASE NO. CR 08-525 WHEN IT
      DISMISSED THE INDICTMENT IN CASE NO. CR 08-607.

      {¶5} In its assignment of error, the State argues that the trial court erred

when it dismissed this case (Case No. CR 08-607) against Smith on the basis of

the stipulation agreement Smith and the State had entered into in Case No. CR 08-

525. The State claims that the stipulation agreement and the polygraph examiner’s

questions contained ambiguous terms. Because of these ambiguities, the State

argues that the special prosecutor should not have been bound by the terms of the

stipulation agreement, and thus, should have been allowed to proceed against

Smith in Case No. CR 08-607.

      {¶6} In response, Smith argues that the trial court correctly interpreted the

terms of the stipulation agreement. Moreover, Smith claims that the stipulation

agreement was a binding contract between the parties and that it barred re-

indictment for the same conduct against her.

      {¶7} It is well-settled that a plea agreement is a contract between the

prosecution and a criminal defendant, and thus, is governed by principles of

contract law. State v. Milligan, 3d Dist. No. 16-08-04, 2008-Ohio-4509, ¶16,

citing State v. Adkins, 161 Ohio App.3d 114, 2005-Ohio-2577, 829 N.E.2d 729,

¶7. When reviewing questions involving contract interpretation, this Court uses a

de novo standard of review. Graham v. Drydock Coal Co. (1996), 76 Ohio St.3d

311, 313, 667 N.E.2d 949.      Likewise, stipulations are voluntary agreements


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Case No. 11-09-02


between opposing parties, and thus are subject to principles of contract law and a

de novo standard of review. State v. Blaine, 4th Dist. No. 03CA9, 2004-Ohio-

1241, ¶¶11-12, citing Black’s Law Dictionary (7th Ed. 1999) 1427. Ultimately,

stipulation agreements, like contracts, should be interpreted to carry out the intent

of the parties as evidenced by the contract’s language.             See Saunders v.

Mortensen, 101 Ohio St.3d 86, 2004-Ohio-24, 801 N.E.2d 452, ¶9; State v. Todd,

12th Dist. Nos. CA2003-01-001, CA2003-03-006, 2004-Ohio-2902, ¶8, citing

State v. Ford III (Feb. 18, 1998), 4th Dist. No. 97 CA 32, at *2.

       {¶8} Here, the State argues that the stipulation agreement was ambiguous,

and thus, could not have been carried out to the intention of the parties.

Furthermore, it claims that under the principles of contract law, ambiguities should

be interpreted against the party who used it, which it asserts is Smith in this case.

See Graham v. Drydock Coal Co. (1996), 76 Ohio St.3d 311, 313, 667 N.E.2d

949.

       {¶9} First of all, contrary to the State’s argument, in criminal proceedings,

ambiguities in agreements are generally construed against the State, not the

defendant. Blaine, 2004-Ohio-1241, at ¶12. See, also, United States v. Harvey

(C.A.4, 1986), 791 F.2d 294, 300 (court must construe ambiguous term in plea

agreement against government); State v. Simpson, 148 Ohio App.3d 221, 2002-

Ohio-3077, 772 N.E.2d 707, ¶21 (statute involving domicile must be construed in



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Case No. 11-09-02


defendants favor); State v. Cvijetinovic, 8th Dist. No. 81534, 2003-Ohio-563, ¶27

(pursuant to R.C. 2901.04(A), statutory interpretation must favor defendant); State

v. Lewis, 3d Dist. No. 1-02-10, 2002-Ohio-3950, ¶22 (term of plea agreement must

favor defendant when ambiguous); City of Warren v. Cromley (Jan. 29, 1999),

11th Dist. No. 97-T-0213 (court’s silence when presented with plea agreement

amounted to formal acceptance, which favored defendant); State v. Ford, III (Feb.

18, 1998), 4th Dist. No. 97 CA 32 (contract language must be construed in favor

of defendant); State v. Williams, 126 Ohio Misc.2d 47, 2003-Ohio-7294, 802

N.E.2d 195, ¶16 (tape in question is equally inculpatory as exculpatory and must

be resolved in favor of defendant). Moreover, an agreement is only considered

ambiguous if it is “subject to more than one reasonable interpretation.” State v.

Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶¶52-53, citing

Hillsboro v. Fraternal Order of Police, Ohio Labor Council, Inc. (1990), 52 Ohio

St.3d 174, 177, 556 N.E.2d 1186. After reviewing the agreement, we find the

State’s arguments unpersuasive because the meaning of this stipulation agreement

was not ambiguous, and therefore, was enforceable against the State.

      {¶10} Under the agreement, the parties’ intentions were specifically stated

in paragraph 12, which provided:

      Should the Defendant pass the polygraph examination and it be
      determined that the Defendant did not take deposits totaling
      $6,173.49 while working at Slattery Oil dba the Pop N Brew,
      then the State will dismiss the charges.


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Case No. 11-09-02



(Case No. CR 08-525, Doc. No. 22); (Case No. CR 08-607, Doc. No. 26).

Moreover, the agreement specified two main issues that were to be resolved

through the polygraph examination:

       1.   Whether or not on or about February 7, 2008, the
            Defendant, Mary J. Smith, failed to deposit money in the
            amount of $2,770.59, from the operations of Slattery Oil
            dba the Pop N Brew and used the funds for her personal
            use and/or to cover previous deposits that the defendant,
            Mary J. Smith shorted?
       2.   Whether or not on or about February 8, 2008, the
            Defendant, Mary J. Smith, failed to deposit money in the
            amount of $2,770.59, from the operations of Slattery Oil
            dba the Pop N Brew and used the funds for her personal
            use and/or to cover previous deposits that the defendant,
            Mary J. Smith shorted?

(Case No. CR 08-525, Doc. No. 22); (Case No. CR 08-607, Doc. No. 26). Based

on the language of the agreement, we find that the intention of the parties was to

only determine whether Smith had taken Pop N Brew’s deposits. While we find

this language to be general, we do not believe it was ambiguous.

       {¶11} Nevertheless, the State argues that the agreement is ambiguous

because it used inconsistent numerical figures. For example, in both cases the

State indicted Smith for stealing $5,174.35; yet, by the terms of the agreement, the

polygraph examination was to determine whether she had taken $6,173.49.

Furthermore, in the agreement under the two issues to be resolved by the

polygraph examination, it was to be determined whether Smith had failed to



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deposit two deposits of $2,770.59 on February 7 and 8, 2008. These two deposits

added together equal $5,541.18, which does not match the numerical figure

alleged in the indictments or the amount stated in paragraph 12 of the stipulation

agreement.    While we acknowledge that the numerical figures in the agreement

and both indictments are not consistent, we do not believe that this renders the

agreement ambiguous as the State argues. Rather, because the numerical figures

are inconsistent and unreasonable, we find that the amount of money Smith

allegedly stole is irrelevant to the essential purpose of the agreement, which was to

determine whether Smith had taken Pop N Brew’s money. Our finding is further

evidenced by the questions that the polygraph examiner asked Smith:

       1.    In February, 2008, did you know for sure who stole any
             money from those deposits from the Pop N Brew?
             Answer: No
       2.    In February 2008, did you steal any money from those
             deposits from Pop N Brew?
             Answer: No
       3.    In February 2008, did you fail to make a deposit for the Pop
             N Brew?
             Answer: No
       4.    In February 2008, did you keep even one dollar of any of
             those deposits?
             Answer: No

(State’s Ex. A). Had the intention of the parties been limited to the precise amount

of money Smith allegedly stole from Pop N Brew, the questions would have been

worded accordingly. Instead, the questions were worded in a general nature as

well, by asking Smith to answer whether she had “stolen” or “failed to make a


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Case No. 11-09-02


deposit” or if she had “kept one dollar.” Therefore, despite the inconsistencies

with regard to the amount of money Smith allegedly had taken, we find that the

language of the agreement, while general, was not ambiguous.

       {¶12} Next, the State argues that ambiguity still exists given the different

charge filed in Case No. CR 08-607 and the polygraph examiner’s questions in

Case No. CR 08-525. Essentially, the State claims that the way in which the

polygraph questions were framed, Smith could have avoided answering whether

she used her employer’s money beyond the scope of the consent she was given.

However, we find that because of the general nature of the language in the

stipulation agreement, the agreement was binding on the State because it covered

both situations.

       {¶13} Smith was originally indicted for theft by deception, prescribed

under R.C. 2913.02(A)(3), but subsequently was indicted for theft beyond the

scope of consent, prescribed under R.C. 2913.02(A)(2)(B)(2).           Both cases

involved the same underlying facts and same amount of money, the only

difference was that one case alleged theft by deception and the other alleged theft

beyond the scope of consent. As we stated above, the stipulation agreement only

required the determination of whether Smith took the deposits, it did not specify

how Smith took the deposits (i.e., theft by deception or theft beyond the scope of

consent).   Moreover, the stipulation agreement and the polygraph examiner’s



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questions failed to use any legal terminology to limit the scope; rather, both

utilized common, ordinary words, such as “take,” “steal,” “keep,” “fail to deposit,”

which are terms that cover both a theft by deception and a theft by beyond the

scope of consent. If the State had wanted to limit the stipulation agreement and

polygraph examination to the determination of whether Smith had committed theft

by deception, then it should have done so by limiting the stipulation agreement’s

language accordingly. But as it stands the language in the stipulation agreement

and the questions asked by the polygraph examiner covered both types of theft

offenses (by deception and beyond the scope of consent). While we believe the

language used in the stipulation agreement and in the polygraph examination was

overbroad, general, and, retrospectively, unwise, the language was not ambiguous.

      {¶14} Ultimately, we find that the stipulation agreement was binding on

the State in Case No. CR 08-607. Paragraph 9 of the stipulation agreement stated:

      It is further understood by all parties that upon signing this
      entry of Stipulation of Polygraph Test, permitting the results of
      such test to be introduced into evidence, all parties and their
      successors interests (i.e. such other counsel as the State of Ohio
      or the Defendant may retain or employ or be represented by for
      the trial of this cause) shall be mutually bound to the terms of
      said entry.

(Case No. CR 08-525, Doc. No. 22); (Case No. CR 08-607, Doc. No. 26). Thus,

pursuant to paragraph 9, the intention of the parties was to bind successors (i.e.,

the special prosecutor) to the terms of the stipulation agreement. Again, we find



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that the overall intention of the agreement was that if Smith passed the polygraph

examination on the issue of whether she had taken Pop N Brew’s money, then the

State would dismiss the case. Smith took the polygraph exam and passed, thus,

the State was bound under the stipulation agreement’s terms to dismiss the case.

Because the agreement was couched in general terms and was intended to

determine whether Smith had “taken” or “failed to deposit” any of Pop N Brew’s

money, the language necessarily covered both situations alleged in the

indictments, and bound the special prosecutor from re-indicting Smith in Case No.

CR 08-607 based on the same conduct alleged in Case No. CR 08-525. Therefore,

the trial court did not err when it dismissed Case No. CR 08-607 against Smith

based on the stipulation agreement entered into in Case No. CR 08-525.

       {¶15} The State’s assignment of error is, therefore, overruled.

       {¶16} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




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