[Cite as State v. Tucker, 2017-Ohio-7735.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 

 Plaintiff-Appellee, : No. 15AP-1123 

 (C.P.C. No. 14CR-4758) 

v. : 

 (REGULAR CALENDAR) 

Andre Tucker, : 

 

 Defendant-Appellant. : 

 

 

D E C I S I O N 

Rendered on September 21, 2017 

 

On brief: Ron O'Brien, Prosecuting Attorney, and 

Barbara A. Farnbacher, for appellee. Argued: Barbara A. 

Farnbacher. 

On brief: Todd W. Barstow, for appellant. Argued:

Todd W. Barstow. 

 

APPEAL from the Franklin County Court of Common Pleas 

BROWN, J. 

{¶ 1} This is an appeal by defendant-appellant, Andre Tucker, from a judgment of 

conviction and sentence entered by the Franklin County Court of Common Pleas 

following a jury trial in which he was found guilty of two counts of theft. 

{¶ 2} On September 5, 2014, appellant was indicted in Franklin C.P. No. 14CR4758 for two counts of theft, in violation of R.C. 2913.02, both felonies of the fifth degree. 

On January 28, 2015, appellant was indicted on an unrelated charge of burglary in 

Franklin C.P. No. 15CR-424. 

{¶ 3} Both cases came for trial before a jury beginning October 19, 2015. The first 

witness for plaintiff-appellee, State of Ohio, in the theft case (No. 14CR-4758) was Dr. Jim 

Lahoski, the Superintendent of the North Central Ohio Educational Service Center 
No. 15AP-1123 2 

("NCOESC"). NCOESC is a non-profit educational entity with offices in Marion, 

Mansfield, and Tiffin, Ohio. NCOESC provides services to public and community (i.e., 

charter) schools, and those services include acting as a sponsor for community schools. 

NCOESC also works with a third-party company that "provides particular services to the 

community schools." (Tr. Vol. II-A at 9.) 

{¶ 4} The Ohio Department of Education ("ODE") provides funding for 

community schools and is required to approve sponsorship contracts between a 

community school and a sponsor such as NCOESC. Dr. Lahoski testified there is a 

significant application process to obtain community school sponsorship. In October 

2012, appellant contacted NCOESC and expressed "great interest in beginning a 

community or a charter school." (Tr. Vol. I at 35.) Dr. Lahoski and several administrators 

met with appellant, who made a "very convincing * * * presentation." (Tr. Vol. I at 5.) 

Appellant subsequently entered into contracts with NCOESC to open two community 

schools, the Talented Tenth Leadership Academy ("TTLA") for Girls and the TTLA for 

Boys. Dr. Lahoski identified the state's exhibits Nos. 3 and 4 as contracts between the 

boards of NCOESC and TTLA. 

{¶ 5} NCOESC employed appellant under two separate contracts; under the first, 

effective June 3 through July 31, 2013, appellant served as an educational consultant with 

duties which included "recruiting students, marketing, securing facilities, policy 

development, grant writing and securing food service proposals." (Tr. Vol. II-A at 29.) 

Under the second contract, a two-year agreement with an effective date of August 1, 2013 

to July 31, 2015, appellant served as "superintendent, executive director, for [TTLA] with 

an annual salary of $70,982." (Tr. Vol. II-A at 29.) 

{¶ 6} As a community school sponsor, NCOESC is responsible for monitoring the 

activities of schools with respect to issues of performance, safety, curriculum, and 

compliance. Among other requirements, Ohio law mandates minimum enrollment 

criteria for a community school (i.e., a minimum enrollment of 25 students). 

{¶ 7} Dr. Lahoski testified that appellant lacked qualifications required by 

NCOESC to serve as the fiscal officer for TTLA for Girls or TTLA for Boys. Specifically, 

NCOESC requires a certificate indicating an individual is "licensed as a fiscal officer, a 

treasurer for such a school." (Tr. Vol. II-A at 51.) 
No. 15AP-1123 3 

{¶ 8} Dr. Lahoski testified as to the circumstances leading to the closure of TTLA 

for Girls and TTLA for Boys in fall 2013, including the fact that TTLA "failed to have the 

number of children they predicted." (Tr. Vol. II-A at 23.) TTLA was "paid by the state for 

the estimated number of 72 students when, in fact, on October 14, 2013, there were 14 in 

one school and * * * 12 in the other school, and the minimum requirement is 25 students." 

(Tr. Vol. II-A at 23.) Dr. Lahoski stated that TTLA also "failed to complete the proper 

record keeping," and "failed to provide proper * * * information to register the kids." (Tr. 

Vol. II-A at 23.) On November 20, 2013, NCOESC abolished appellant's position with 

NCOESC for failure to meet minimum requirements for enrollment and for safety issues 

involving the schools. NCOESC also suspended operation of the schools at that time. 

{¶ 9} Thomas Holmes, legal counsel for NCOESC, testified that Ohio statutory 

law provides procedures for the distribution of remaining assets of a community school 

upon its closure; once a community school is suspended, all operations must cease, 

including financial activities. Holmes testified that he was involved in the distribution of 

assets after the closure of the two TTLA schools. 

{¶ 10} Holmes identified state's exhibit No. 15 as "a check issued by the Ohio 

Department of Education in the amount of $6,317.96 * * * to Talented Tenth Leadership 

Academy for Girls, dated September 16, 2013." (Tr. Vol. II-A at 92.) He identified state's 

exhibit No. 16 as "a check issued by the Ohio Department of Education in the amount of 

$1,182.04 * * * to the Talented Tenth Leadership Academy for Boys, dated October 15, 

2013." (Tr. Vol. II-A at 92.) 

{¶ 11} On October 31, 2013, Holmes e-mailed appellant regarding the "return of 

missing property and these two checks issued by the Department of Education." (Tr. Vol. 

II-A at 94.) On November 1, 2013, appellant "indicated that he would return those two 

checks to Mandy France, * * * the fiscal officer of both community schools at the time." 

(Tr. Vol. II-A at 94.) Several weeks later, Holmes had a telephone conversation with 

appellant concerning the two checks, and appellant "indicated that he did not have the 

checks. He said they were locked in a storage facility at the building where the 

community school was previously located." (Tr. Vol. II-A at 94.) Holmes followed up 

with written correspondence to appellant on November 21, 2013, stating it was necessary 

for him to return the checks; Holmes never received the checks from appellant. Holmes 
No. 15AP-1123 4 

testified that NCOESC suspended operations of the community schools, at the latest, on 

November 9, 2013. 

{¶ 12} NCOESC assigned one of its employees, Mandy France, to serve as 

Treasurer/Fiscal Officer for TTLA for the 2013-2014 school year. France's duties included 

maintaining the records of the school at all times during her term of assignment. A 

payment from the state to a community school is termed "a foundation settlement 

payment." (Tr. Vol. II-A at 144.) As treasurer, France was the only individual authorized 

to spend funds from TTLA accounts. France opened two accounts with Chase Bank to 

handle the funds for TTLA for Girls and TTLA for Boys; according to France, all 

community school funds were to be placed in those accounts. 

{¶ 13} France testified that she never received the check issued by ODE to TTLA in 

the amount of $6,317.96 (state's exhibit No. 15) for deposit into the Chase Bank account. 

France similarly testified that she never received the check issued by ODE to TTLA in the 

amount of $1,182.04 (state's exhibit No. 16) for deposit into the Chase Bank account. On 

November 1, 2013, France resigned from her responsibilities as fiscal officer for TTLA 

because of a "lack of cooperation and the leadership that it needed to carry through with 

the school due to the school closing." (Tr. Vol. II-A at 140.) 

{¶ 14} Cody Loew is the assistant director of ODE's Office of Budget and School 

Funding, and his responsibilities include ensuring that ODE makes accurate and timely 

payments to community schools. Loew became aware that TTLA for Girls and TTLA for 

Boys closed after "issues were brought to our attention that there were safety and health 

concerns." (Tr. Vol. II-B at 10.) Once a school is closed, ODE acts to "completely stop the 

payments to them and move to collect any funds that are owed back to [ODE]." (Tr. Vol. 

II-B at 11.) In the event of a closure, the sponsor of a community school acts as the 

receiver for the school. 

{¶ 15} Loew identified state's exhibit Nos. 15 and 16 as foundation settlement 

payment checks issued by ODE to TTLA for the purpose of educating students, operating 

schools, and paying teacher salaries. According to Loew, the checks were not used for 

their intended purposes. Loew testified that a fiscal officer for NCOESC contacted ODE 

about attempting to reconcile foundation settlement payments "because they couldn't find 

these checks." (Tr. Vol. II-B at 7.) Loew related that ODE "started to look into it; we 

looked up the Ohio treasury website, found these checks, found that the signatures on the 
No. 15AP-1123 5 

back did not match checks for previous foundation checks, looked further into the warrant 

number to find that these checks were deposited into bank accounts that weren't the 

primary ones for the school." (Tr. Vol. II-B at 7.) The ODE treasury found "no record of 

these [checks] being deposited into the actual accounts for the school." (Tr. Vol. II-B at 7.) 

ODE subsequently "turned it over to the police for further investigation." (Tr. Vol. II-B at 

7.) 

{¶ 16} Columbus Police Detective Todd Schiff is a member of the department's 

economic crime unit which investigates white collar financial crimes. Detective Schiff 

became involved in the investigation of TTLA after ODE filed a report with the Columbus 

Police Department. The detective, after speaking with officials at ODE as well as 

employees of NCOESC (Dr. Lahoski and France), learned that two ODE checks issued to 

TTLA had not been deposited into the designated accounts with Chase Bank. ODE 

informed the detective that the checks had been deposited into an account with Charter 

One Bank ("Charter One"), opened in the name of TTLA for Girls. Appellant's signature 

appeared on the signature card for the account, and appellant's home address was listed 

as the address on the account. The Charter One account had been opened December 1, 

2013; Detective Schiff determined that the $6,317.96 check for TTLA for Girls was 

deposited into that account on December 2, 2013, while the $1,182.04 check for TTLA for 

Boys was deposited into the account "approximately a month later." (Tr. Vol. II-B at 42.) 

{¶ 17} The detective reviewed a bank statement showing purchases from the 

account, including purchases made from Wendy's and Giant Eagle. The statement also 

indicated ATM cash withdrawals. Among the expenditures, the detective identified two 

Giant Eagle money orders for $500 each, purchased on December 9, 2013, "made out to 

Corina Pierce," the wife of appellant. (Tr. Vol. II-B at 36.) Money orders from Giant 

Eagle had also been purchased and made payable to appellant. 

{¶ 18} Detective Schiff determined that $1,031 in money orders purchased from 

Giant Eagle had been made payable to "Hilliard Summit," the apartment complex where 

appellant resided. (Tr. Vol. II-B at 37.) He identified another money order in the amount 

of $500, made payable to Primrose Hilliard, which the detective determined had been 

expended for daycare for the daughter of appellant and Pierce. Detective Schiff also noted 

a purchase from Giant Eagle for $144.94, of which $123.26 was paid for with an EBT food 

stamp card belonging to Pierce, and $20.84 was "paid for with a debit card of Talented 
No. 15AP-1123 6 

Tenth Leadership Academy." (Tr. Vol. II-B at 41.) According to the detective, the 

transaction raised "red flags" because, assuming the purchase was a legitimate expense 

for TTLA, the entire amount "would have been paid for out of the TTLA funds." (Tr. Vol. 

II-B at 41.) Detective Schiff could not identify any transactions he deemed to be expenses 

attributable to the operation of a school. 

{¶ 19} Detective Schiff interviewed appellant on May 27, 2014. Appellant told the 

detective that he was owed money by NCOESC. Appellant acknowledged opening a TTLA 

account with Charter One to deposit the two checks from ODE. Appellant told the 

detective he "had problems with Mandy France, the treasurer with North Central Ohio; 

and at his board's discretion and his board's authority, he stated that's how he opened up 

the TTLA account at Charter One and deposited those checks." (Tr. Vol. II-B at 48.) 

Appellant also told the detective he fired France, and "there was no one in place to accept 

those checks as the reason why he set up that account." (Tr. Vol. II-B at 48.) At the time 

of the interview, Detective Schiff had information from NCOESC indicating that France 

resigned as treasurer for TTLA on November 1, 2013; appellant, however, "stated he had 

fired her prior to that date." (Tr. Vol. II-B at 48.) 

{¶ 20} Detective Schiff questioned appellant as to expenditures made from the 

Charter One account. Appellant told the detective that "all of the money was used to pay 

an intern, to reimburse staff or various expenditures to pay the caterer for food services." 

(Tr. Vol. II-B at 50.) When asked by the detective whether he had any documentation for 

those expenditures, appellant "stated he did not have that at the time of the interview, but 

he did have that and could provide that to me." (Tr. Vol. II-B at 51.) The detective 

received a spreadsheet document from appellant on July 29, 2014, but appellant did not 

provide any supporting documentation such as receipts or invoices for the expenditures. 

Appellant told the detective that he became the fiscal officer for both schools "per Dr. 

Lahoski's request." (Tr. Vol. III at 21.) The detective cited a lack of checks and balances 

as to appellant's expenditures from the TTLA treasury. 

{¶ 21} The state also presented testimony from several witnesses with respect to 

the burglary case (case No. 15CR-424). At the close of the state's case, counsel for 

appellant made a motion for acquittal as to all charges. The trial court denied the motion. 

{¶ 22} Appellant testified on his own behalf in case No. 14CR-4758. In 2013, 

appellant resided on Meadows Way, Hilliard, Ohio. Appellant created TTLA, and the 
No. 15AP-1123 7 

business address was the same as his residential address. Appellant testified that he was 

the fiscal officer for TTLA during the "pre-development phase." (Tr. Vol. III at 186.) He 

served as the executive director of the schools and also had a two-year contract with 

NCOESC. 

{¶ 23} In May 2013, appellant began receiving checks from NCOESC. TTLA and 

NCOESC entered into a third-party agreement with Charter School Management 

Corporation, and NCOESC provided TTLA with a treasurer. The first day of school for 

both TTLA for Girls and TTLA for Boys was September 25, 2013. The two schools held 

classes at separate leased locations. 

{¶ 24} Appellant stated that TTLA had two boards for each school, a "preoperations board" and a "post-operations board." (Tr. Vol. IV-A at 3.) Appellant's wife, 

Corina Pierce, served on the pre-operations board. When the schools opened, there were 

five TTLA board members. Appellant testified that his board hired Mandy France as 

treasurer, and that France's salary was paid by NCOESC. 

{¶ 25} During fall 2013, both schools experienced problems with the landlord of 

the respective leased locations. On October 18, 2013, the schools "received an unofficial 

notice of suspension" from NCOESC. (Tr. Vol. IV-A at 13.) Appellant sought and 

obtained a temporary restraining order from Wyandotte County based on an alleged 

"Ohio open meetings violation." (Tr. Vol. IV-A at 16.) 

{¶ 26} Appellant testified that he continued to operate the schools at various 

locations, including a public library and "Fort Rapids." (Tr. Vol. IV-A at 17.) He related 

that "it was not a full-blown school. * * * Some days it was 12 kids; some days it was 27 

kids. It just varied." (Tr. Vol. IV-A at 17.) According to appellant, expenses "hadn't been 

paid yet prior to the school being suspended." (Tr. Vol. IV-A at 19.) Appellant stated that 

he compensated interns "for the time period October 28th through the beginning of 

January 2014." (Tr. Vol. IV-A at 19.) Appellant testified that he provided the food service 

for the schools during that time, and that he purchased food from various places, 

including Wendy's, Burger King, Super Chef, and Giant Eagle. 

{¶ 27} Appellant acknowledged opening an account with Charter One around the 

beginning of December 2013, stating that his board authorized the account. He deposited 

two checks from ODE into the account. According to appellant, the account "did not 

provide checks. So we used money orders and an ATM debit card." (Tr. Vol. IV-A at 31.) 
No. 15AP-1123 8 

With respect to a $500 expenditure to "Primrose Hilliard," appellant stated that he used 

his "health benefits expenses to pay for my daughter's tuition." (Tr. Vol. IV-A at 40.) He 

also testified that TTLA had a lease agreement with "Hilliard Summit Schottenstein 

property" for three months during the pre-operational phase. (Tr. Vol. IV-A at 45.) 

Appellant stated that he terminated TTLA's relationship with Mandy France on 

October 29, 2013. 

{¶ 28} On cross-examination, appellant acknowledged that he could not operate a 

community school without a sponsor, and that he never received permission to operate 

the TTLA schools independent of a sponsor. Appellant opened the Charter One account 

on November 30, 2013, after he told legal counsel for NCOESC that he could not find the 

checks at issue. Appellant admitted that the Charter One account was overdrawn in 

January 2014. Appellant was unable to state how many days in December 2013 the 

school was in operation. He acknowledged that $100 from the Charter One account was 

used as payment for one of his student loans, explaining that the payment was a mistake 

and that $100 was paid back to ODE in January 2014. He also acknowledged sending an 

e-mail to Thomas Holmes on November 1, 2013, in which appellant stated that France 

was still treasurer for TTLA. 

{¶ 29} Following deliberations, the jury returned verdicts finding appellant guilty 

of two counts of theft in case No. 14CR-4758. The jury returned a verdict of not guilty of 

burglary in case No. 15CR-424. By judgment entry filed November 19, 2015, the trial 

court imposed a sentence of five years of community control sanctions and ordered 

appellant to pay restitution to ODE. 

{¶ 30} On appeal, appellant sets forth the following three assignments of error for 

this court's review: 

I. THE TRIAL COURT ERRED AND DEPRIVED 

APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED 

BY THE FOURTEENTH AMENDMENT TO THE UNITED 

STATES CONSTITUTION AND ARTICLE ONE SECTION 

TEN OF THE OHIO CONSTITUTION BY FINDING HIM 

GUILTY OF THEFT AS THOSE VERDICTS WERE NOT 

SUPPORTED BY SUFFICIENT EVIDENCE AND WERE 

ALSO AGAINST THE MANIFEST WEIGHT OF THE 

EVIDENCE. 
No. 15AP-1123 9 

II. APPELLANT'S TRIAL COUNSEL WERE INEFFECTIVE, 

THEREBY DENYING HIM HIS RIGHT TO EFFECTIVE 

ASSISTANCE OF COUNSEL. 

III. THE TRIAL COURT ERRED TO THE PREJUDICE OF 

APPELLANT BY IMPROPERLY SENTENCING HIM TO 

CONSECUTIVE TERMS OF INCARCERATION IN 

CONTRAVENTION OF OHIO'S SENTENCING STATUTES. 

{¶ 31} Under his first assignment of error, appellant challenges his theft 

convictions as not supported by sufficient evidence and as against the manifest weight of 

the evidence. Appellant disputes the state's theory that he expropriated public monies for 

his own use, portraying his actions instead as that of a bad recordkeeper who was 

attempting to keep the community schools in operation despite unforeseen setbacks. He 

further maintains that the TTLA board authorized many of the expenditures claimed as 

theft. 

{¶ 32} Under Ohio law, sufficiency of the evidence and weight of the evidence are 

distinct legal concepts. State v. Stone, 1st Dist. No. C-040817, 2006-Ohio-1375, ¶ 10. In 

State v. Sexton, 10th Dist. No. 01AP-398, 2002-Ohio-3617, ¶ 30-31, this court addressed 

those distinctions, stating in part as follows: 

To reverse a conviction because of insufficient evidence, we 

must determine as a matter of law, after viewing the evidence 

in a light most favorable to the prosecution, that a rational 

trier of fact could not have found the essential elements of the 

crime proved beyond a reasonable doubt. * * * Sufficiency is a 

test of adequacy, a question of law. * * * We will not disturb a 

jury's verdict unless we find that reasonable minds could not 

reach the conclusion the jury reached as the trier of fact. * * * 

We will neither resolve evidentiary conflicts in the defendant's 

favor nor substitute our assessment of the credibility of the 

witnesses for the assessment made by the jury. * * * A 

conviction based upon legally insufficient evidence amounts 

to a denial of due process, * * * and if we sustain appellant's 

insufficient evidence claim, the state will be barred from 

retrying appellant. 

A manifest weight argument * * * requires us to engage in a 

limited weighing of the evidence to determine whether there 

is enough competent, credible evidence so as to permit 

reasonable minds to find guilt beyond a reasonable doubt and, 

thereby, to support the judgment of conviction. * * * Issues of 

witness credibility and concerning the weight to attach to 
No. 15AP-1123 10 

specific testimony remain primarily within the province of the 

trier of fact, whose opportunity to make those determinations 

is superior to that of a reviewing court. * * * Nonetheless, we 

must review the entire record. With caution and deference to 

the role of the trier of fact, this court weighs the evidence and 

all reasonable inferences, considers the credibility of 

witnesses, and determines whether, in resolving conflicts in 

the evidence, the jury, as the trier of facts, clearly lost its way, 

thereby creating such a manifest miscarriage of justice that 

the conviction must be reversed and a new trial ordered. The 

discretionary power to grant a new trial should be exercised 

only in the exceptional case in which the evidence weighs 

heavily against a conviction. 

{¶ 33} We initially consider appellant's sufficiency challenge. As noted, the jury 

returned verdicts finding appellant guilty of two counts of theft, in violation of R.C. 

2913.02. R.C. 2913.02(A) states in part: "No person, with purpose to deprive the owner of 

property * * * shall knowingly obtain or exert control over * * * the property * * * 

(2) [b]eyond the scope of the express or implied consent of the owner or person 

authorized to give consent." R.C. 2901.22(A) states in part: "A person acts purposely 

when it is the person's specific intention to cause a certain result." Pursuant to R.C. 

2901.22(B), "[a] person acts knowingly, regardless of purpose, when the person is aware 

that the person's conduct will probably cause a certain result or will probably be of a 

certain nature. A person has knowledge of circumstances when the person is aware that 

such circumstances probably exist." 

{¶ 34} At trial, the state's theory of the case was that ODE provided funds to TTLA 

in the form of two checks (state's exhibit Nos. 15 and 16) issued for the purpose of 

operating community schools, but that appellant utilized those funds for personal 

expenditures. Witnesses for the state included the superintendent of NCOESC, Dr. 

Lahoski, who testified that appellant was not authorized to serve as fiscal officer for the 

community schools. NCOESC employee France, assigned to serve as treasurer for TTLA, 

testified that she was the only individual with authorization to receive money or write 

checks from the account she set up with Chase Bank. ODE employee Loew testified that 

foundation settlement payments issued by the state are for the purpose of educating 

students, operating schools, and paying teacher salaries. Holmes, legal counsel for 

NCOESC, testified that all operations, including financial activities, must cease in the 
No. 15AP-1123 11 

event a community school is suspended. According to Holmes, NCOESC suspended 

TTLA, at the latest, on November 9, 2013. 

{¶ 35} The state also presented the testimony of Detective Schiff, who testified that 

appellant opened a Charter One bank account on December 1, 2013. The detective 

reviewed a bank statement from Charter One and noted various charges against the 

account, including a December 9, 2013 charge to Giant Eagle in the amount of $1,001.16, 

a December 13, 2013 charge to Giant Eagle in the amount of $1,076.74, and a January 3, 

2014 charge to Giant Eagle in the amount of $1,031.74. The detective also noted "quite a 

few ATM cash withdrawals." (Tr. Vol. II-B at 35.) The detective discovered that the 

charges to Giant Eagle involved money orders, including three money orders totaling 

$1,030, payable to Hilliard Summit, "the name of the apartment complex where, at the 

time, [appellant] lived." (Tr. Vol. II-B at 37.) The detective identified three money orders 

totaling $1,500 payable to appellant's wife, Corina Pierce. The detective investigated a 

money order payable to "Primrose Hilliard" in the amount of $500, and "determined that 

this particular money order was for * * * day care for * * * the biological child of 

[appellant] and Corina Pierce." (Tr. Vol. II-B at 38.) 

{¶ 36} Under Ohio law, "a jury may infer purpose from the surrounding 

circumstances." State v. Graham, 10th Dist. No. 09AP-896, 2010-Ohio-2907, ¶ 21, citing 

State v. Buelow, 10th Dist. No. 07AP-317, 2007-Ohio-5929, ¶ 25. As set forth above, the 

state presented evidence that appellant lacked qualifications required by NCOESC to 

serve as fiscal officer for TTLA, but that he nevertheless opened a separate bank account 

and funded the account with two checks issued by ODE and payable to TTLA for school 

operations; appellant took these actions after being notified by NCOESC that TTLA's 

sponsorship had been terminated, and after being contacted by legal counsel for NCOESC 

about returning the missing checks. As also noted, the state presented testimony by 

Detective Schiff that appellant utilized funds from the Charter One account to purchase 

money orders from Giant Eagle payable to himself and to his wife; further, that money 

withdrawn from the Charter One account was used to pay for rent at the apartment 

complex where appellant resided and for his daughter's daycare. According to testimony 

of the detective, none of the expenditures were for the purpose of operating a community 

school. 
No. 15AP-1123 12 

{¶ 37} While appellant sought to portray his expenditures as an attempt to keep 

the fledgling community schools open, the state presented contrary evidence which, if 

believed, was sufficient to show that appellant knowingly acted with purpose to deprive 

the state of property by exerting control over such property beyond the scope of the 

owner's express or implied consent. See, e.g., State v. Plunket, 10th Dist. No. 78AP-809 

(Dec. 28, 1979) (sufficient evidence to support finding that defendant was aware the 

control he exercised over investors' funds would probably exceed the scope of consent and 

that it was his specific intent to deprive investors of their money; defendant's contention 

that he made various expenditures to keep company operating not determinative, nor 

does such a motive exculpate him of criminal liability); State v. Pellin, 7th Dist. No. 11 MA 

194, 2012-Ohio-5342, ¶ 22 (sufficient evidence to support theft conviction as it was 

reasonable to find that defendant's deposit of funds into undisclosed bank account was 

beyond the scope of authority granted by receiver or bankruptcy court's order; "even if 

* * * there was some authority to use the pre-existing account for certain items * * * a 

reasonable person could find that the withdrawals were beyond the scope of that 

authority" where checks were written to and cashed by defendant); State v. Dortch, 2d 

Dist. No. 17700 (Oct. 15, 1999) (Even where a person "lawfully has control over property 

with consent, that person cannot thereafter exert control for a different purpose."). 

(Emphasis sic.) Here, viewing the evidence in a light most favorable to the state, a 

rational trier of fact could find all the elements of theft proven beyond a reasonable doubt. 

We therefore reject appellant's contention that his convictions are not supported by 

sufficient evidence. 

{¶ 38} Nor do we find persuasive appellant's claim that his convictions are against 

the manifest weight of the evidence. As noted, appellant sought to portray his conduct as 

that of a bad bookkeeper, and he points to his own testimony in support. At trial, the jury 

had the opportunity to review the transactions recorded in the Charter One bank 

statement and to consider appellant's explanations for the expenditures. The jury also 

heard the testimony of Holmes, legal counsel for NCOESC, who stated that he contacted 

appellant in November 2013 about returning the two checks because the schools were no 

longer operating. Appellant assured Holmes he would find the checks and return them to 

the TTLA treasurer (France). Instead, however, appellant subsequently opened the 

Charter One account, deposited the two checks, and used funds from the account to 
No. 15AP-1123 13 

purchase money orders made payable to his wife and himself. In rendering its verdicts, 

the jury obviously found more credible testimony and evidence presented by the state that 

undermined appellant's claims that various expenditures he made were for school 

operations rather than personal expenses, and it was within the jury's province to reject 

appellant's version of the events and to accept the state's version. 

{¶ 39} On review, we are unable to conclude that the trier of fact clearly lost its way 

and created such a manifest miscarriage of justice in convicting appellant of the two theft 

counts. Accordingly, the convictions are not against the manifest weight of the evidence. 

{¶ 40} Based on the foregoing, appellant's first assignment of error is without merit 

and is overruled. 

{¶ 41} We will address appellant's second and third assignments of error in inverse 

order. Under his third assignment of error, appellant contends the trial court erred in 

sentencing him to consecutive terms of incarceration without making the statutory 

findings required by R.C. 2929.14(C)(4). According to appellant, the record fails to justify 

the imposition of consecutive terms as he had no prior criminal record and was convicted 

of two felonies of the fifth degree. 

{¶ 42} In response, the state argues the trial court was not required to make 

consecutive sentencing findings under R.C. 2929.14(C) as appellant was not sentenced to 

serve a prison term but, rather, was ordered to serve community control sanctions. We 

agree. 

{¶ 43} R.C. 2929.14(C)(4), which requires a trial court to make specific findings 

before imposing consecutive sentences, states in part: "If multiple prison terms are 

imposed on an offender for convictions of multiple offenses, the court may require the 

offender to serve the prison terms consecutively." (Emphasis added.) Thus, "[t]he statute 

clearly states that the findings are required before a court imposes multiple prison terms." 

State v. Carswell, 8th Dist. No. 101313, 2015-Ohio-764, ¶ 9. 

{¶ 44} Under Ohio law, "the purpose of the community control statute is not to 

sentence a defendant to a specific prison term and then suspend or reserve that prison 

term. * * * Rather, the purpose of the statute is to notify the defendant of a specific prison 

term that may be imposed if the defendant violates community control." (Emphasis sic.) 

State v. Duncan, 12th Dist. No. CA2015-05-086, 2016-Ohio-5559, ¶ 21. Thus, "when a 

defendant is sentenced to community control on a count of conviction and notified at that 
No. 15AP-1123 14 

time of the specific prison term he faces should he violate his community control, the 

defendant is only sentenced to community control sanctions and is not sentenced to that 

prison term." Id. In the event of a community control violation, R.C. 2929.15(B) "details 

procedures for a trial court to follow," and "provides that if a prison term is imposed upon 

the defendant for violating community control, the prison term must comply with R.C. 

2929.14." Id. at ¶ 41. 

{¶ 45} In the present case, the trial court's sentencing entry reflects the court 

imposed "a period of Community Control for five (5) years under basic supervision." 

(Emphasis omitted.) The court's entry further states that, following the imposition of 

community control, the court notified appellant, orally and in writing, "what could 

happen if he violates Community Control." Specifically, the entry states that the court 

"indicated that if [appellant] violates Community Control he would receive a prison term 

of eleven (11) months on each count, to be served consecutive to each other for a total of 

twenty-two (22) months." 

{¶ 46} In State v. Bates, 6th Dist. No. WM-12-002, 2013-Ohio-1270, the reviewing 

court addressed a similar argument as the one posited by appellant in this case. Under 

the facts of Bates, the trial court sentenced the defendant to a four-year term of 

community control following a jury trial in which he was found guilty of various offenses, 

including identity fraud, menacing by stalking, and possessing criminal tools. On appeal, 

the defendant challenged his sentence arguing that the trial court erred "by ordering him 

to 'serve a consecutive sentence without making the appropriate findings required by 

[R.C. 2929.14(C)(4)].' " Id. at ¶ 67. The appellate court rejected this argument, holding in 

part: 

Bates' initial argument concerning consecutive sentences 

overlooks the fact that the trial court is not required to make 

statutory findings of fact under R.C. 2929.14(C)(4) when it 

sentences a defendant to community control in lieu of a 

consecutive prison sentence. See State v. Madaffari, 12th 

Dist. No. CA2004-08-193, 2005-Ohio-3625, ¶ 14 (concluding 

that "a trial court is required to make the statutory findings 

and supporting reasons * * * not when it sentences a 

defendant to community control, but when it actually imposes 

a consecutive prison term."). Since Bates' consecutive prison 

sentence does not apply unless he violates the terms of his 

community control, that sentence has not been "actually 
No. 15AP-1123 15 

imposed." Thus, the trial court did not err in failing to make 

the statutory findings of fact under R.C. 2929.14(C)(4). 

Id. at ¶ 68. 

{¶ 47} Similarly, in the instant case, the trial court sentenced appellant to 

community control sanctions in lieu of a prison term and, therefore, the court did not err 

in failing to make consecutive sentencing findings under R.C. 2929.14(C)(4). Id. See also

State v. Malone, 3d Dist. No. 9-15-42, 2016-Ohio-5556, ¶ 14 (following decision by Eighth 

District Court of Appeals in determining that statutory findings under R.C. 2929.14(C)(4) 

do not apply when a period of community control sanctions is ordered to be served 

consecutive to a prison term). 

{¶ 48} Accordingly, appellant's third assignment of error is overruled. 

{¶ 49} Under his second assignment of error, appellant argues that his trial counsel 

was ineffective in (1) failing to object to the joinder of the two cases (case Nos. 15CR-424 

and 14CR-4758), and (2) by waiving the statutory findings for consecutive sentences. 

With respect to the issue of joinder, appellant argues that the indictments for theft and 

burglary should not have been tried together because the two cases involved completely 

unrelated offenses. 

{¶ 50} Appellant notes that, prior to trial, his trial counsel requested the court to 

grant severance of the two criminal cases, which the court was prepared to do. Trial 

counsel, however, elected to go forward on both cases after the trial court reminded 

counsel that, once jeopardy attached, the court would dismiss the burglary case with 

prejudice if the state was unable to produce its witness. Appellant further notes that, 

during the middle of his testimony on the theft offense, the state located a missing witness 

in the burglary case and presented the testimony of that individual. 

{¶ 51} Under Ohio law, trial counsel's performance "will not be deemed ineffective 

unless and until counsel's performance is proved to have fallen below an objective 

standard of reasonable representation and, in addition, prejudice arises from counsel's 

performance." State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus. 

In order to show that a defendant has been prejudiced by his or her counsel's deficient 

performance, "the defendant must prove that there exists a reasonable probability that, 
No. 15AP-1123 16 

were it not for counsel's errors, the result of the trial would have been different." Id. at 

paragraph three of the syllabus. 

{¶ 52} In the instant case, the record indicates that trial counsel initially objected 

to joinder of the cases, arguing that the cases were "totally unrelated." (Tr. Vol. I at 5.) 

The trial court responded: "I can separate them and continue the case and then he's 

looking at a burglary charge; or, we can go forward and if they don't produce the witness it 

gets [nolled]. So you can make a tactical, strategic[] decision and I'm happy to 

accommodate you in either regard." (Tr. Vol. I at 5.) The trial court, noting that 

"jeopardy attaches when the jury is impaneled and sworn," further stated on the record 

that if the prosecutor was "not prepared to go forward by the time the jury is impaneled 

and sworn on that case, I'll either dismiss it or he'll [nolle] it." (Tr. Vol. I at 6.) In 

response, defense counsel made the decision to go forward with both cases, and the state 

proceeded to call its witnesses in the theft case. The state subsequently located a primary 

witness in the burglary case. At that time, counsel for appellant made a request to "renew 

our motion to sever" the burglary case from the theft case, "[e]specially after going 

through the theft portion of the state's case." (Tr. Vol. III at 60.) Defense counsel argued 

that it would be prejudicial to proceed with evidence of the burglary offense given the 

amount of evidence the jury had already heard with respect to the theft offense. The trial 

court overruled defense counsel's motion to sever. 

{¶ 53} On review, appellant has failed to demonstrate deficient performance by 

trial counsel regarding the issue of joinder. Under Ohio law, "[t]rial strategy does not 

constitute ineffective assistance of counsel." State v. Diaz, 8th Dist. No. 103878, 2016-

Ohio-5523, ¶ 67. As noted above, defense counsel initially sought severance of the cases. 

However, because of uncertainty as to whether the state would be able to obtain the 

testimony of a witness in the burglary case, counsel made a strategic decision to proceed 

with both cases following the trial court's comments regarding the potential for dismissal 

of the burglary charge if the state was unable to locate the witness. As also noted, once the 

witness became available, defense counsel renewed the motion to sever the cases. Under 

these circumstances, appellant cannot show that counsel's strategy was unreasonable, or 

that the actions of counsel constituted deficient performance. See State v. Dantzler, 10th 

Dist. No. 14AP-907, 2015-Ohio-3641, ¶ 21 ("the decision to file a motion for separate trials 

or to proceed with the joinder of the offenses may be a matter of counsel's trial strategy"). 
No. 15AP-1123 17 

{¶ 54} Further, we agree with the state's contention that appellant has also failed to 

demonstrate prejudice, as he was acquitted of the charge in the burglary case (case No. 

15CR-424), indicating the jury was able to "separate the evidence" as to the offenses. 

State v. Wampler, 5th Dist. No. 13-CA-3, 2014-Ohio-37, ¶ 74 (appellant failed to 

demonstrate prejudice from joinder of counts where jury acquitted him of all counts 

related to alleged incident of arson on date separate from the date of the incident for 

which he was convicted). 

{¶ 55} Appellant also claims deficient performance based on his counsel's waiver of 

findings with respect to consecutive sentences. Specifically, at the time of sentencing, the 

trial court, after informing appellant that the court was not going to impose a prison term, 

inquired of defense counsel if he was "going to waive consecutive findings?" Counsel 

responded, "Yes, your Honor." (Tr. Vol. V at 16.) 

{¶ 56} As previously addressed under the third assignment of error, the trial court, 

having imposed a sentence of community control, was not required to make statutory 

findings under R.C. 2929.14(C)(4). Thus, defense counsel's affirmative response to the 

trial court's inquiry as to whether counsel was waiving "consecutive findings" did not 

constitute deficient performance. 

{¶ 57} Accordingly, appellant's second assignment of error is not well-taken and is 

overruled. 

{¶ 58} Based on the foregoing, appellant's three assignments of error are 

overruled, and the judgment of the Franklin County Court of Common Pleas is hereby 

affirmed. 

Judgment affirmed. 

KLATT and BRUNNER, JJ., concur. 

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