[Cite as State v. Roller, 2016-Ohio-8554.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, ) CASE NO. 15 MA 0164 

) 

PLAINTIFF-APPELLEE, ) 

) 

VS. ) OPINION 

) 

RICHARD ROLLER, ) 

) 

DEFENDANT-APPELLANT. ) 

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of 

Common Pleas of Mahoning County, 

Ohio 

 Case No. 12CR1144 

JUDGMENT: Affirmed and Remanded. 

APPEARANCES: 

For Plaintiff-Appellee: Atty. Micah Ault 

 Assistant Attorney General 

615 W. Superior Ave., 11th Floor 

Cleveland, Ohio 44113 

For Defendant-Appellant: Atty. John Yuhasz 

7081 West Boulevard, Suite 4 

 Youngstown, Ohio 44512 

Hon. Carol Ann Robb 

Hon. Gene Donofrio 

Hon. Mary DeGenaro 

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

ROBB, J. 

{¶1} Defendant-Appellant Richard Roller appeals his convictions entered in 

Mahoning County Common Pleas Court for theft in office and grand theft with 

enhancements. The first issue raised in this appeal is whether the trial court 

improperly instructed the jury that MYCAP was a public organization. The second 

issue is whether there was sufficient evidence to convict Appellant of theft in office 

and grand theft. The third issue is whether the trial court erred when it sua sponte 

instructed on the affirmative defense of entrapment by estoppel. The final issue is 

whether there was misconduct by the prosecutor and, if so, did that conduct effect 

the trial to the point it was unfair. 

{¶2} For the reasons expressed below, the first, second, and fourth 

assignments of error lack merit. The third assignment of error has merit; however, 

the error committed was harmless. Accordingly, Appellant’s convictions for theft in 

office and grand theft are affirmed. Although, the convictions are affirmed, we sua 

sponte remand the matter to the trial court to correct a mistake in its final judgment 

entry. In the entry the court indicated Appellant was found guilty of having an 

unlawful interest in a public contract, a fourth degree felony. 8/20/15 J.E. That 

statement is incorrect. The jury found him not guilty of that charge. The judgment 

entry must be corrected. 

Statement of the Facts and Case 

{¶3} Appellant began working for Youngstown Area Community Action 

Council in the early 1990s. After years of service he became the executive director. 

At some point during his service Youngstown Area Community Action Council 

became Mahoning Youngstown Community Action Partnership (MYCAP). MYCAP is 

a private nonprofit corporation. Roller stated MYCAP’s mission was to empower lowincome and/or working families in the Mahoning County/Youngstown area. Tr. 482. 

{¶4} In 2008, while Appellant was the executive director, MYCAP obtained a 

grant through the Ohio Department of Job and Family Services which was overseen 

and administered by the Governor’s Office of Faith Based Initiatives. Appellant 

signed the grant on behalf of MYCAP. This grant allowed MYCAP to hire consultants 
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to perform training sessions and “technical assistance” sessions in a 22 county area, 

a larger than normal jurisdiction for MYCAP. In addition to the larger geographical 

area, this grant was not limited to low-income persons. Tr. 488. 

{¶5} Under this grant Roller and three other MYCAP employees provided 

training services. In providing the services, Roller and the employees used paid time 

off (PTO) from MYCAP. Thus, they were paid by MYCAP and were paid under the 

grant. The language of the grant specifically prohibited persons from acting as 

consultants while drawing compensation from any other federally or state-funded 

program. 

{¶6} Appellant acted as a consultant for the “technical assistance” sessions 

charging $1,000 for each session. He received a total of $14,000 for these sessions 

and also collected his MYCAP salary. 

{¶7} Sometime thereafter MYCAP was audited by multiple state agencies. 

The state questioned the amounts paid to the MYCAP employees, including 

Appellant. The state also questioned charges for equipment used during the 

sessions. 

{¶8} During the audit it was also discovered that during Appellant’s tenure as 

executive director, a contract between Chef’s House and MYCAP was entered into 

whereby Chef’s House provided food service to MYCAP/Head Start. Chef’s House 

was owned and operated by Jason Roller, Appellant’s brother. MYCAP had a Code 

of Ethics permitting family members to be hired as long as the family members did 

not live with each other; however, that policy was in violation of federal law. Tr. 352. 

{¶9} As a result of the audit, a four count indictment was issued against 

Appellant. He was charged with theft in office in violation of R.C. 2921.41(A)(1), a 

third-degree felony; grand theft in violation of R.C. 2913.02(A)(3), a fourth-degree 

felony; unlawful interest in a public contract in violation of R.C. 2921.42(A)(1), a 

fourth degree felony; and soliciting or receiving improper compensation in violation of 

R.C. 2921.43(A)(1), a first-degree misdemeanor. 10/25/12 Indictment. The first two 

counts, theft in office and grand theft, had enhancement specifications indicating the 

amount taken was $7,500.00 or more. 
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{¶10} As the case proceeded to trial, Appellant filed a motion in limine to 

preclude the state from arguing and the trial court from instructing on the affirmative 

defense of entrapment by estoppel. 2/26/15 Motion. Appellant claimed he was not 

asserting the affirmative defense, but rather arguing the elements of the offense 

could not be established. 

{¶11} The jury trial began on May 11, 2015. Following the state’s case in 

chief, Appellant moved to dismiss count four of the indictment, soliciting or receiving 

improper compensation, because the statute of limitations had run. The state 

conceded, and count four was dismissed. Tr. 474. 

{¶12} Appellant also moved for a Crim.R. 29 judgment of acquittal on the first 

and second counts of the indictment. Tr. 467. He argued the state failed to offer 

evidence from which a reasonable jury could conclude there was intent to deprive the 

owner. Tr. 467. He also argued the state did not offer evidence he was a public 

officer as required by count one. Tr. 467. The trial court overruled the Crim.R. 29 

motion. Tr. 474. 

{¶13} Appellant then testified on his own behalf. Following the presentation of 

Appellant’s case, he renewed his Crim.R. 29 motion, argued the jury instruction 

should not contain a statement that MYCAP was a public agency, and argued the 

jury should not be instructed on the affirmative defense of entrapment by estoppel. 

As to MYCAP’s status as a public agency, he argued the issue was a jury question. 

As to the affirmative defense, he asserted it was not his position there was active 

misleading by the government and/or assurances by the government that what he 

was doing was legal. Rather, he argued his position was there was no evidence of 

purpose to deprive, which were elements of the theft offenses. Tr. 542-543. 

{¶14} The state asserted it agreed with the trial court’s position that MYCAP 

and its executive director’s status was a legal question, not a factual question. Tr. 

546. 

{¶15} Appellant also filed written objections to the jury instructions on the 

affirmative defense of entrapment and on MYCAP being a public agency. 5/13/15 

Objections. 
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{¶16} The trial court implicitly overruled the objections of Appellant by 

instructing on the affirmative defense of entrapment by estoppel and instructing the 

jury that MYCAP was a community agency and public organization. Tr. 625, 630. 

{¶17} The jury found Appellant guilty of theft in office, grand theft, and both 

enhancements. The jury found Appellant not guilty of unlawful interest in a public 

contract. 5/13/15 Jury Verdict Forms. 

{¶18} Appellant was sentenced to 120 days in jail, 3 years of monitored 

supervision, and ordered to pay restitution in the amount of $14,000. 8/20/15 J.E. 

The trial court stayed the 120 day jail sentence pending appeal. 8/20/15 J.E. 

Appellant appealed his conviction. 

{¶19} Prior to addressing the assignments of error, there is an error in the trial 

court’s final judgment that must be addressed. The judgment entry reads: 

The Jury Trial commenced on Monday, May 11, 2015 and concluded 

on Wednesday, May 13, 2015, when the Jury returned a verdict of 

guilty in Count 1, Theft In Office, a felony of the third degree; Count 2, 

Grand Theft, a felony of the fourth degree; Count 3, Having An Unlawful 

Interest In A Public Contract, a felony of the fourth degree as well as 

enhancements in Counts 1 and 2. Count 4, Soliciting or Receiving 

Improper Compensation was dismissed by the State of Ohio. 

8/20/15 J.E. 

{¶20} This judgment entry indicates Appellant was found guilty of Count 3. 

However, the jury found him not guilty of having an unlawful interest in a public 

contract. This error must be corrected. 

First Assignment of Error 

“The trial court erred and denied Appellant his rights to trial by jury and due 

process when it relieved the state of the obligation to prove all elements of the 

offenses beyond all reasonable doubt. See, U.S. Const., amend VI and XIV; Ohio 

Const., art. I, §§1, 2, 5, 10, and 16.” 

{¶21} This assignment of error deals with the conviction for theft in office. 

Appellant was found guilty of R.C. 2921.41(A)(1), which provides: 
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(A) No public official or party official shall commit any theft offense, as 

defined in division (K) of section 2913.01 of the Revised Code, when 

either of the following applies: 

(1) The offender uses the offender's office in aid of committing the 

offense or permits or assents to its use in aid of committing the 

offense. 

R.C. 2921.41(A)(1). 

When instructing the jury on this offense, the trial court explained: 

Regarding Count One, the defendant is charged with theft in office. 

Before you can find the defendant guilty, you must find beyond a 

reasonable doubt that on or about June 19th, 2009, through on or 

about July 13th, 2009, in Mahoning County, Ohio, the defendant did, 

while being a public or a party official, commit a theft offense, when 

the offender used the offender’s office in aid of committing the offense 

and the value of the property or services stolen was $7,500 or more. 

* * * 

As a matter of law, ladies and gentlemen, the court instructs you that 

MYCAP was, in fact, a community agency, and is a public organization. 

You must also find that the defendant at the time of the commission of 

the acts was a public official. And public official means any elected or 

appointed officer, or employee, or agent of the state or any political 

subdivision thereof, whether in a temporary or permanent capacity, and 

including without limitation, legislators, judges, and law enforcement 

officers. 

Tr. 619-620, 625. 

{¶22} Appellant finds fault with this instruction for two reasons. First, he 

contends MYCAP’s status as community agency/public organization is a factual issue 

and an element of the offense. Thus, it was for the jury to determine if MYCAP was a 
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public agency. His argument stating MYCAP is a public organization indicates 

Appellant’s position as executor director of MYCAP constitutes a public office for 

purposes of the theft in office statute. Second, he contends the trial court’s 

determination MYCAP is a public organization is incorrect. It is a private nonprofit 

corporation, and although it receives grants from the state and federal government, it 

also receives private funds. 

{¶23} The first issue is whether MYCAP and its executive director’s status is a 

factual or legal question. The trial court determined it was a legal question for the 

court to decide. Tr. 267. 

{¶24} This conclusion is correct. Questions of statutory interpretation are 

questions of law. Riedel v. Consol. Rail Corp., 125 Ohio St.3d 358, 2010–Ohio–

1926, ¶ 6, 928 N.E.2d 448 (2010). In order to be a public official under R.C. 

2921.41(A), Appellant must qualify as a public official as defined by R.C. 2921.01. 

Division (A) of that section provides: 

“Public official” means any elected or appointed officer, or employee, or 

agent of the state or any political subdivision, whether in a temporary or 

permanent capacity, and includes, but is not limited to, legislators, 

judges, and law enforcement officers. “Public official” does not include 

an employee, officer, or governor-appointed member of the board of 

directors of the nonprofit corporation formed under section 187.01 of 

the Revised Code.

R.C. 2921.01(A). 

{¶25} Although it was within the province of the jury to determine whether 

Appellant was working for MYCAP when the alleged crimes occurred, it was not a 

jury decision to determine whether MYCAP was a public organization and whether its 

executive director was a public official. MYCAP and its executive director’s status is 

a legal question because it calls for statutory interpretation of R.C. 2921.01(A). 

{¶26} To conclude otherwise would mean two different juries hearing the 

same information could potentially reach different conclusions about whether MYCAP 

is a public organization and whether its executive director is a public official. If that 
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were to happen, then case law would not be cohesive. The determination of whether 

the executive director of MYCAP or any community action agency is a public official 

and of whether MYCAP is a public organization are legal questions. 

{¶27} Consequently, our analysis continues with the questions of whether 

MYCAP was a public organization and was its executive director a public official for 

purposes R.C. 2921.41. 

{¶28} At the outset it is noted, although MYCAP no longer uses the term 

“community action agency” in its title, it is a community action agency. Jeff Bankey, 

Chief Auditor for the Ohio Development Services Agency, testified MYCAP was a 

community action agency. Tr. 360. No witness disputed that testimony. 

{¶29} The definition of public official in R.C. 2921.01 states an employee, 

officer, or governor-appointed member of the board of directors of the nonprofit 

corporation formed under R.C. 187.01 is not a public official. The evidence indicated 

MYCAP, as a community action agency, was a nonprofit corporation. However, a 

community action agency’s designation is made pursuant to R.C. 122.69, not R.C. 

187.01. JobsOhio is governed by R.C. 187.01. Consequently, the executive director 

of a community action agency does not fall under the expressed exception to a public 

official enumerated in R.C. 2921.01(A). However, that does not necessarily mean 

the executive director of a community action agency is a public official. 

{¶30} Neither the Ohio Supreme Court nor any of our sister districts have 

addressed the issue of whether the executive director of a community action agency 

is a public official for purposes of R.C. Chapter 2921. The only decision directly on 

point in Ohio is an informal advisory opinion from the Ohio Ethics Commission. Ohio 

Ethics Commission Informal Advisory Decision dated October 21, 2002. 

{¶31} The Ohio Ethics Commission was asked if the board of trustees and 

executive director of a community action agency created under R.C. 122.68 and 

122.69 were subject to the prohibitions imposed by the Ohio Ethics Law and related 

statutes. Id. at pg. 1. In answering the question, the Commission acknowledged a 

community action agency is a nonprofit corporation. Id. It concluded although the 

board of trustees and executive director are not subject to Ohio Ethics Law 

prohibitions contained in R.C. Chapter 102, the board of trustees and executive 
-8-

director are “agents of the state,” and thus, “public officials” for purposes of R.C. 

Chapter 2921. Id. 

{¶32} In reaching its decision, as it pertained to the board of trustees and 

executive director being agents of the state and public officials for purposes of R.C. 

Chapter 2921, the Commission explained the definition of the term “public official” 

includes “agents” of the state. Id. at pg. 4. Because “agent” is not defined statutorily, 

the Commission relied on the definition it used in a previous decision. Id. 

{¶33} In a 1992 opinion concerning the Ohio Grape Industries Committee, the 

Commission opined: 

A person is an “agent of the state,” and thus, a “public official” as 

defined in Division (A) of Section 2921.01 of the Revised Code, when: 

(a) the person has the power to act on behalf of and bind the state by 

his actions; (b) the state has the right to control the actions of the 

person; and (c) the actions of the person are directed toward the 

attainment of an objective sought by the state. 

Advisory Opinion Number 92-001. 

{¶34} The Commission determined a member of the Ohio Grape Industries 

Committee is an agent of the state because the Committee is “funded by the state 

and has the statutory authority to contract with others for research and market 

surveys, and to make, ‘in the name of the Committee,’ contracts to render service in 

formulating and conducting plans and programs for the promotion of grapes and 

grape products.” Id. Also, there is oversight by the Department of Agriculture to 

ensure the Committee is self-supporting. Id. Likewise, statutorily the Committee’s 

actions are to promote the grape industry within the state, which is an objective the 

state seeks. Id. 

{¶35} In applying a similar rationale, in the 2002 informal advisory opinion the 

Commission explained a community action agency receives community development 

block grants (CDBG) from the state through the Office of Community Services (OCS) 

for attainment of the state’s objection to alleviate the causes of poverty in a 

designated geographical service area. Ohio Ethics Commission Informal Advisory 
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Decision dated October 21, 2002, pg. 5. The Commission reasoned community 

action agencies can bind the state and the state controls community action agencies 

in a number of ways: 

The state, acting through the General Assembly, enacted statutes that 

specifically empower a designated CAA to act on behalf of and bind the 

state with regard to its use and distribution of CDBG funds. 

The state, through OCS, exercises control over a CAA in several ways. 

The state has a degree of fiscal oversight and control over a CAA. For 

example, R.C. 122.69(B)(3) requires that a CAA that receives an OCS 

designation must limit the number of trustees to not less than fifteen nor 

more than thirty-three members and must meet specified federally 

mandated standards. In addition, a CAA is required to annually submit 

to OCS a program plan and budget for use of CDBG funs. R.C. 

122.69(B)(2). After providing notice and hearing pursuant to Chapter 

R.C. 119., the director of DOD [Department of Development] may 

rescind the designation of a CAA if he finds that the CAA is not in 

compliance with any or all of the provisions of R.C. 122.69. R.C. 

122.701.(B)(1). 

Id. 

{¶36} The Commission then explained the executive director of a community 

action agency can act on behalf of and bind the state with regards to the functioning 

of the community action agency. Id. at pg. 6-7. 

{¶37} As aforementioned, although MYCAP no longer uses the term 

“community action agency” in its title, it is a community action agency. MYCAP was 

pursuing an objective the state sought to achieve - it was providing services to the 

poor and combating poverty. In pursuing this object, it was receiving grants from the 

state and the state audited those grants. 

{¶38} The Ethics Commission’s 2002 informal advisory opinion supports the 

legal conclusion MYCAP is a public organization/agency and Appellant was a public 

official as its executive director. However, this is not the only case that supports such 
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conclusion. There is a common pleas court decision from Lucas County holding a 

community action agency, specifically the Economic Opportunity Planning 

Association of Greater Toledo (“EOPA”), is a public office for purposes of the public 

meetings and the public records act. The reasoning used to reach that conclusion is 

instructive as to why a community action agency is a public organization/agency and 

why its board and executive director are public officials; the agency and its executive 

director can bind the state and the state has a degree of oversight: 

In its capacity as a community action agency, EOPA receives, is 

accountable for and is charged with spending substantial sums of public 

funds in the operation of programs for the public welfare. These 

programs and EOPA's plans for operating them are submitted to and 

approved by the Governor of Ohio. EOPA must comply with those 

plans, and with state statutory provisions, or lose its status as a 

community action agency. 

* * * 

With these essential principles in mind, there can be no question that 

EOPA is a public body within the meaning of the Public Meetings Law. 

EOPA has been designated by the Ohio Department of Development, 

through its Office of Community Services, as a community action 

agency within the meaning of R.C. 122.69. To be eligible for this 

designation, EOPA must obtain the endorsement of officials from at 

least two thirds of the municipal corporations and counties within the 

community it serves. R.C. 122.69(A). The Board of Trustees of EOPA 

must be organized in accordance with the provisions of state statute, 

and that statute defines the powers and duties that can and must be 

exercised by the board. R.C. 122.70. 

Designation as a community action agency is critical to EOPA because 

it is an absolute prerequisite to EOPA's ability to receive the 

governmental funds for the programs that EOPA operates. Once 
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EOPA qualifies to receive, and actually receives, those funds, their use 

is a matter of critical importance to the state government. The 

Governor must certify to the federal government that the funds that are 

distributed to community action agencies will be used in accordance 

with the plan the Governor has developed, approved, and submitted to 

the federal government. 

State, ex rel. Toledo Blade Co. v. Economic Opportunity Planning Assn. of Greater 

Toledo, 61 Ohio Misc.2d 631, 640-641, 582 N.E.2d 59 (C.P.1990). 

{¶39} That said, there are two appellate court cases which one might argue 

support the conclusion a community action agency is not an agent of the state. They 

are State ex rel. Dist. Eight Regional Organizing Commt. v. Cincinnati-Hamilton Cty. 

Community Action Commt., 1st Dist. No. C-100099, 192 Ohio App.3d 553, 2011-

Ohio-312, 949 N.E.2d 1022, ¶ 15 and N.Z. v. Lorain Head Start, 9th Dist. No. 

98CA007254, 2000 WL 59911. 

{¶40} The First Appellate District case dealt with a public records act request 

and reached the opposite result reached in State, ex rel. Toledo Blade Co. State ex 

rel. Dist. Eight Regional Organizing Commt., 2011-Ohio-312. The First Appellate 

District determined a community action agency was not the functional equivalent of a 

public office for purposes of the public records act: 

Mindful of the presumption that private entities are not subject to the 

Public Records Act, we conclude that the evidence does not show 

clearly and convincingly that CAA is the functional equivalent of a public 

office. Although its designation as a community-action agency was 

established by the government, and CAA receives a considerable 

amount of funding from the government, the HWAP [Home 

Weatherization Assistance Program] program does not carry out a 

traditional governmental function. Further, the government is not 

involved in the day-to-day operation of the agency. 

Id. at ¶ 15. 
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{¶41} The second case is a 2000 decision from the Ninth Appellate District 

holding Lorain Community Action Agency (LCAA) was not a political subdivision for 

purposes of R.C. Chapter 2744, the governmental immunity statutes. N.Z. v. Lorain 

Head Start, 9th Dist. No. 98CA007254, 2000 WL 59911. In that case, a child was 

allegedly the victim of sexual abuse while participating in the Head Start educational 

program operated by LCAA. Id. The appellate court reversed the grant of summary 

judgment for LCAA reasoning, “a body corporate and politic must be characterized by 

an agency relationship between a governmental unit and the entity claiming immunity 

that results in public control of the internal, day-to-day operations of the entity. 

Private corporations are excluded from the definition of a body corporate and politic.” 

Id. (Internal citations omitted.). It then stated: 

These provisions demonstrate that designation as a “community action 

agency” is a status conferred upon a nonprofit entity that operates in 

addition to the entity's existence as a nonprofit corporation: designation 

as a community action agency does not create an organization, and the 

continuing existence of the nonprofit entity operates independent of that 

designation. Although this status is conferred by the state, the 

organizations themselves cannot be said to be creatures of the state as 

required by R.C. 2744.01(F). See Weber, supra. 

LCAA is a nonprofit organization with the additional designation as a 

community action agency. It is not an agency created by the state and, 

accordingly, it is not a political subdivision entitled to the benefit of the 

immunity provided by R.C. 2744.02. The appellant's first assignment of 

error is well taken. 

Id. 

{¶42} In considering all the above cases, the Ethics Commission’s 2002 

informal advisory opinion is persuasive and instructive because it deals with the 

specific issue before us. That case cites State, ex rel. Toledo Blade Co. in support 

of the conclusion that MYCAP is an agent of the state. State, ex rel. Toledo Blade 

Co. is not directly on point for the issue decided by the Ethics Commission’s informal 
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advisory opinion; however, it provides reasoning as to why community action 

agencies are agents of the state. We agree with that reasoning and do not find the 

First Appellate District’s opposite conclusion in State ex rel. Dist. Eight Regional 

Organizing Commt. persuasive. Likewise, the decision in N.Z. does not help us 

resolve the issue before us. We are not addressing whether a community action 

agency constitutes a political subdivision under the immunity statutes in R.C. Chapter 

2744. Rather, we are determining whether a community action agency is an agent of 

the state for purposes of R.C. Chapter 2921. The Ethics Commission’s informal 

advisory opinion indicated a community action agency may be subject to some 

statutes, but not to others. For instance, the board of trustees and the executive 

director are not subject to the Ohio Ethics prohibition in R.C. Chapter 102. Ohio 

Ethics Commission Informal Advisory Decision dated October 21, 2001, pg. 1. 

Consequently, N.Z. does not provide any guidance on whether a community action 

agency is an agent of the state for purposes of R.C. Chapter 2921. 

{¶43} In conclusion, we agree with the decision in the 2002 Ethics 

Commission’s informal advisory opinion. We conclude MYCAP is an agent of the 

state and its executive director, by extension, is a public official under R.C. 2921.41. 

This assignment of error lacks merit. 

Second Assignment of Error 

“The trial court erred and denied Appellant due process of law when it 

submitted offenses theft in office, theft and unlawful interest in a public contract for 

the jury’s determination despite the lack of sufficient evidence as to all of the 

elements.” 

{¶44} This assignment of error addresses whether there was sufficient 

evidence to support the theft in office and grand theft convictions. 

{¶45} “‘[S]ufficiency’ is a term of art meaning that legal standard which is 

applied to determine whether the case may go to the jury or whether the evidence is 

legally sufficient to support the jury verdict as a matter of law.” State v. Thompkins, 

78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997), citing Black's Law Dictionary 1433 

(6th Ed.1990). In reviewing a sufficiency of the evidence challenge, “[t]he relevant 

inquiry is whether, after viewing the evidence in a light most favorable to the 
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prosecution, any reasonable trier of fact could have found the essential elements of 

the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 

574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 

443 U.S. 307, 99 S.Ct. 2781 (1979). 

{¶46} The sufficiency argument concerning theft in office is the same 

argument presented by Appellant under the first assignment of error. We found the 

argument lacked merit. For those same reasons, the argument there is insufficient 

evidence for the theft in office conviction likewise lacks merit. 

{¶47} As to the grand theft conviction, Appellant argues there was no 

evidence indicating he had purpose to deprive the state of the $14,000 or indicating 

he acted with deception to obtain control over the currency. He states he did not use 

a false name; his name was on the application for payment and the state paid the 

claim. 

{¶48} The state asserts Appellant acted with purposes to deprive the state 

when he submitted invoices for the consulting work he allegedly performed. 

{¶49} Appellant was convicted of grand theft in violation of R.C. 

2913.02(A)(3), which provides, “No person, with purpose to deprive the owner of 

property or services, shall knowingly obtain or exert control over either the property or 

services * * * [b]y deception.” He was also found guilty of the enhancement; the 

property or services were valued at $7,500 to $150,000. R.C. 2912.02(B)(2). 

{¶50} Appellant’s argument focuses on three specific elements of grand theft - 

purpose, deception, and deprive. “A person acts purposely when it is the person's 

specific intention to cause a certain result, or, when the gist of the offense is a 

prohibition against conduct of a certain nature, regardless of what the offender 

intends to accomplish thereby, it is the offender's specific intention to engage in 

conduct of that nature.” R.C. 2901.22(A). Deception is defined as, “knowingly 

deceiving another or causing another to be deceived by any false or misleading 

representation, by withholding information, by preventing another from acquiring 

information, or by any other conduct, act, or omission that creates, confirms, or 

perpetuates a false impression in another, including a false impression as to law, 

value, state of mind, or other objective or subjective fact.” R.C. 2913.01(A). Deprive 
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means to “[w]ithhold property of another permanently, or for a period that 

appropriates a substantial portion of its value or use, or with purpose to restore it only 

upon payment of a reward or other consideration.” R.C. 2913.01(C)(1). 

{¶51} Evidence established Appellant submitted a $14,000 bill for consulting 

work he allegedly performed. The consulting work was for the grant awarded to 

MYCAP from the Governor’s Office of Faith–Based and Community Initiative. The 

money was paid to Appellant. Tr. 343-344, 375. At the same time he charged for the 

consulting work, he received paid time off from MYCAP. Tr. 343-344. 

{¶52} The evidence established Appellant was prohibited from acting as a 

consultant while an employee for MYCAP. John Maynard worked for the Ohio 

Department of Job and Family Services and was the assistant deputy fiscal director 

at the time the audits were done on MYCAP. Tr. 391. In reviewing the consultant 

agreements created pursuant to the grant awarded to MYCAP from the Governor’s 

Office of Faith–Based and Community Initiative, he explained the agreements stated, 

“The consultant understands that they are not an employee of MYCAP or any faithbased or community organization they will be providing training or technical 

assistance to.” Tr. 309. Maynard explained these agreements were signed by the 

MYCAP employee and Appellant. 

{¶53} Maynard further explained the agreement and federal law prohibit an 

employee to act as a consultant: 

A. In addition to, you know, it sort of describes the scope of work, 

there’s stuff in here that talks about conflicts. So it says, “The 

consultant shall not solicit, discuss or accept employment or any 

consulting or other contractual relationship which would directly or 

indirectly result in personal gain with any MYCAP GOFBCI participating 

agency.” And this one says that they’ll comply with -- “They shall notify 

MYCAP in writing of any offer or proposal which would constitute or 

have the appearance of constituting a violation of Section II 

employment.” 

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

A. Because they are, in fact, employees of MYCAP, and so I know that 

the federal compliance requirements don’t allow an employee to 

actually act as a consultant. I know that because they were employees 

and they had taken leave on the days that they went out and they did 

the training that their leave was, in fact, being allocated to other federal 

programs. This says, I think in here, that they wouldn’t be. It say that 

under Section 6 for certification, “The consultant certifies upon 

submission of each invoice not to draw compensation from any other 

federally or state funded program during the period as they are 

performing work under this agreement for MYCAP.” So I do know that 

because they claimed leave, it was allocated to the other federal 

programs that MYCAP was working on . 

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

A. Yes. 

* * * 

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

this time? 

* * * 

A. Yes. You can only claim a cost to a federal program one time. And 

so when Mr. Roller charged these technical assistance sessions to the 

grant, he was paid under the TANF grant, which is 100 percent federal 

money, so it’s 100 percent taxpayer dollars. But then if you put in 

leave, which it’s my understanding he did do, that would’ve gone into 

their shared cost pool as administrative cost, and its gets allocated back 

to the federal grants. So his salary for his leave time would’ve been 

charged to other federal grants that the MYCAP organization had. 

Tr. 399-400, 453. 
-17-

{¶54} Jeff Bankey, the chief of auditor of the Ohio Development Services 

Agency provided similar testimony: 

Q. You had testified on direct examination that one of the things that 

you found at issue was his receiving paid time off, as well as receiving 

the consultant fee. What’s the difference between those two 

examples? 

A. Our issue in this particular instance was not that he was paid from 

some other – if he was doing a hobby and got paid for it, that’s – we 

don’t care about that. It was the fact that he was receiving other 

funding, I don’t recall if it was federal or state, from JFS, and claiming 

that they were independent contractors doing this, when the law 

dictates that you can’t be both an employee of an organization and an 

independent contractor that benefits the organization. 

Tr. 368. 

{¶55} Emily Oquendo, a grant manager at the Ohio Department of Job and 

Family Services when Appellant’s invoice was submitted, was the state employee 

who approved the invoice for $14,000 to be paid to Appellant. At that time she 

worked for TANF (Temporary Assistance to Needy Families) and was only handling 

“the fiscal piece and helped pay their invoices” for the governor’s faith-based and 

community initiative grants. Tr. 371. She testified if she had known Appellant was an 

employee, then she would not have approved the invoice because “you can’t be paid 

as an employee, and as a contract employee as well.” Tr. 378. 

{¶56} Also, another witness for the state testified federal circulars are 

reference manuals and provide guidance to what can or cannot be done. Tr. 222. 

Appellant admitted to knowing about the circulars. Tr. 505. Specifically, he admitted 

that A-122 is the federal circular which provided guidance for financial transactions. 

Tr. 505. He testified he did not believe it was illegal to do consulting as long as 

certain conditions were met. Tr. 507. Upon reading the circular from the stand, he 

acknowledged consultants are allowable if they are not employees. Tr. 509. 
-18-

{¶57} Appellant’s signature was on the consulting agreements for his MYCAP 

employees. This shows knowledge of the prohibition of acting as a consultant and 

being a MYCAP employee. Despite that language he still completed consulting work, 

charged for that work, and received paid time off. 

{¶58} Furthermore, there was evidence admitted at trial that the technical 

assistance consulting fee he should have charged was $100, not $1,000. Tr. 400-

402. There was also evidence he may not have performed all of the technical 

assistance consultations for which he billed. Tr. 412-413. 

{¶59} Admittedly, the consulting agreement signed by Appellant was not 

admitted at trial; it does not appear the state could find a copy of it. Appellant 

asserted his fee structure was different from his employees and he was permitted to 

charge $1,000. Tr. 501. 

{¶60} Given all the above evidence and the long established principle that 

ignorance of the law is no excuse, there was sufficient evidence for the jury to decide 

the grand theft charge. See State v. Lovano, 8th Dist. No. 100578, 2014-Ohio-3418, 

¶ 17 (The law does not excuse willful ignorance.) Or in other words, the evidence 

was sufficient for the jury to infer Appellant acted purposely, with deception, to 

deprive the state of its money. 

{¶61} This assignment of error lacks merit. 

Third Assignment of Error 

“The trial court erred and denied Appellant due process, equal protection, and 

trial by an impartial jury when it placed the burden of proving an affirmative defense 

upon Appellant that Appellant did not assert.” 

{¶62} Typically, it is the defendant that requests an instruction on an 

affirmative defense he or she is asserting. This case does not fall within that typical 

scenario. In this instance, the state requested an instruction on the affirmative 

defense of entrapment by estoppel. Appellant orally objected to the request and also 

filed written objections. Appellant argued he was not raising the defense of 

entrapment by estoppel, and he did not want the jury instructed on that defense. The 

trial court, however, granted the state’s request and gave an instruction on the 

affirmative defense of entrapment by estoppel. 
-19-

{¶63} This scenario raises the question: does a trial court err when it instructs 

on an affirmative defense over the objection of the defendant? This question is an 

issue of first impression for our district. Furthermore, we note none of our sister 

districts or the Ohio Supreme Court have issued a ruling on this question. 

{¶64} Therefore, in order to support its position that an affirmative defense 

instruction can be given where appropriate, even over the objection of the defendant, 

the state references a Federal Fifth Circuit case, United States v. Wyly, 193 F.3d 289 

(5th Cir.1999). In that case, the appellate court indicated it could not find any 

authority approving the giving of an instruction on an affirmative defense when it is 

not raised by the defense. Id. at 301. Given the facts of that case, however, the 

appellate court concluded the evidence did not support an instruction on the 

affirmative defense of duress. Id. The court concluded, “it was error for the court to 

instruct the jury on that defense, especially in view of the fact that, not only did 

Appellants not request the instruction, they objected to it.” Id. (Emphasis in original). 

The error, however, was deemed to be harmless because viewing the instructions as 

a whole it was clear the jury was not misled or confused. Id. 

{¶65} The Fifth Circuit Court of Appeals is not the only court to address the 

issue. The Court of Appeals of New York has held it is reversible error to instruct on 

an affirmative defense when defendant has not requested and has objected to such 

instruction. People v. Bradley, 88 N.Y.2d 901, 902, 669 N.E.2d 815, 816 (1996). In 

quoting one of its prior decisions, the court stated, “As we held in People v. DeGina, 

72 N.Y.2d 768, 776, 537 N.Y.S.2d 8, 533 N.E.2d 1037, ‘a defendant * * * has the 

right to chart his own defense.’ That right is infringed when an affirmative defense is 

submitted over defense objection and the defendant is thereby prejudiced (id., at 

776–777, 537 N.Y.S.2d 8, 533 N.E.2d 1037).” Id. The Court further reasoned: 

Moreover, when the defensive theory that the court interjects 

constitutes an affirmative defense there is an increased danger of 

prejudice because of the resulting shift in the burden of proof from the 

prosecution to the defense and the attendant risk that the jury will 

believe that the defendant has assumed a burden beyond the defense. 
-20-

Although defendant was entitled to present inconsistent defenses the 

risk attendant upon such a choice should not have been foisted on him 

against his will. The imposition of an affirmative burden of proof over 

defense objection and the involuntary undermining of the defendant's 

chosen defense strategy resulted in serious prejudice that requires 

reversal in this case. 

Internal citations omitted. Id. at 903-904. 

{¶66} The New York case is instructive; it highlights the problems with 

instructing on an affirmative defense over a defendant’s objection. Imposing an 

affirmative defense upon a defendant shifts the burden to the defendant to prove the 

defense by a preponderance of the evidence. If there is no affirmative defense 

asserted, then the defense has no burden. Instead a defendant can defend the 

action by indicating the state failed to prove the elements of the offense beyond a 

reasonable doubt. It is the defendant’s right to choose his trial strategy including an 

affirmative defense, to defend the action indicating the elements of the offense were 

not proven beyond a reasonable doubt, or to assert both. 

{¶67} Given the above, this court concludes the instruction on the affirmative 

defense over Appellant’s objection constituted error. It is better practice for a trial 

court to not instruct on an affirmative defense when the defendant objects to such 

instruction. However, as is explained below, the error is harmless in this instance 

and thus, does not provide a basis for reversal because Appellant was not prejudiced 

by the error. 

{¶68} Recently, the Twelfth Appellate District has succinctly explained the 

defense of entrapment by estoppel: 

“Entrapment by estoppel, grounded in the Due Process Clause of the 

Fifth Amendment, is a defense that is rarely available. In essence, it 

applies when, acting with actual or apparent authority, a government 

official affirmatively assures the defendant that certain conduct is legal 

and the defendant reasonably believes that official.” Howell at *11, 

citing United States v. Howell, 37 F.3d 1197, 1204 (7th Cir.1994). 
-21-

Although there are various definitions for the entrapment by estoppel 

defense: 

[t]he common thread in the caselaw applying the defense is 

an affirmative misrepresentation of the law by a government 

official, reasonable reliance, and action upon that 

misrepresentation by a defendant. When the defense is 

applicable, it prevents the government from punishing one 

who reasonably followed the misstatement of one of [the 

government's] own officials. To allow such punishment 

would be to sanction the most indefensible sort of 

entrapment by the State-convicting a citizen for exercising a 

privilege which the State clearly had told him was available 

to him. 

Id. As a result, the “entrapment by estoppel” defense is only available 

in instances where (1) a government official announced that the 

charged criminal act was legal, (2) the defendant relied on that 

statement, (3) the defendant's reliance was reasonable, and (4) given 

the defendant's reliance, prosecution would be unfair. United States v. 

Levin, 973 F.2d 463, 468 (6th Cir.1992). 

State v. Shafei, 12th Dist. No. CA2013-11-196, 2015-Ohio-645, 27 N.E.3d 593, ¶ 22. 

{¶69} In this instance, there was a basis for the instruction on Count 3, 

unlawful interest in a public contract. While Appellant was executive director of 

MYCAP his brother, Jason Roller, was contracted to do food service operation for 

MYCAP/Head Start. This is the basis for the alleged unlawful interest in a public 

contract. 

{¶70} Testimony at trial established Jason Roller was a chef, owned a 

business called Chef’s House, and previously worked for MYCAP. Tr. 117, 119. 

Testimony from Lois Clark, who was at the time of the incidents Head Start Director, 

established that it was not Appellant’s decision to bring back Jason Roller for food 
-22-

service operation. Tr. 106. In fact, she testified she is the one who suggested it. Tr. 

106. Appellant confirmed the testimony. Tr. 497. He further explained that while 

bringing Jason back did not violate MYCAP’s nepotism policy, it did bring up an issue 

with the conflict of interest policy. Tr. 498. He explained it created an appearance of 

impropriety. Tr. 498. He testified he spoke to MYCAP board of director’s legal 

counsel about the issue. Tr. 498-499. Appellant was advised to take the matter to 

the board, which he did. Tr. 489-500. Appellant testified he was not involved in the 

board’s decision to hire Jason. Tr. 498-500. Admittedly, Appellant signed the 

contract with Jason, but the board gave him the authorization to do so. Tr. 511. 

{¶71} “In reviewing a record to ascertain whether sufficient evidence exists to 

support the giving of an instruction, an appellate court should determine whether the 

record contains evidence from which reasonable minds might reach the conclusion 

sought by the instruction.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 124, 679 

N.E.2d 1099 (1997). The evidence was sufficient to instruct on the estoppel defense 

as to the unlawful interest in a public contract charge. 

{¶72} Furthermore, it appears the jury believed this testimony. Despite the 

fact Appellant signed the contract on behalf of MYCAP with his brother, the jury found 

him not guilty of the charge, presumably because the evidence showed the board of 

directors decided to award Jason Roller the contract, not Appellant. 

{¶73} That said, it is acknowledged the entrapment by estoppel defense 

instruction was not specified to apply only to count three. Tr. 633. The evidence 

submitted at trial did not indicate Appellant was told by the board or its legal counsel 

that it was permissible for him to charge $1,000 for a technical assistance consulting 

session or it was permissible for him to get paid for time off while collecting technical 

assistance consulting fees. Rather, Appellant argued the grant allowed him to 

charge $1,000 and he did not purposely deceptively deprive the state of its property. 

His argument went to whether the elements of the offenses of theft in office and 

grand theft were proven beyond a reasonable doubt. Thus, an instruction on the 

affirmative defense of entrapment by estoppel was not warranted on the theft 

charges. 
-23-

{¶74} Appellant, however, was not prejudiced by the affirmative defense 

instruction or the trial court’s failure to expressly instruct that the affirmative defense 

was potentially only applicable to count 3. In Ohio, generally, a trial court has broad 

discretion in fashioning jury instructions. In examining alleged errors in a jury 

instruction, a reviewing court must consider the jury charge as a whole and “must 

determine whether the jury charge probably misled the jury in a matter materially 

affecting the complaining party's substantial rights.” State v. Dean, 146 Ohio St.3d 

106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 135 quoting Kokitka v. Ford Motor Co., 73 

Ohio St.3d 89, 93, 652 N.E.2d 671 (1995). 

{¶75} Considering the jury instruction as a whole, the instruction clearly 

indicated the jury had to find all elements of the offenses proven beyond a 

reasonable doubt in order to find Appellant guilty. The instruction highlighted the 

requirement that all elements must be found beyond a reasonable doubt even if the 

jury found the affirmative defense was not proven by a preponderance of the 

evidence: 

Now, ladies and gentlemen, the defendant has a right to interpose a 

defense. And the defendant has interposed a defense of what we call 

entrapment. And the definition of entrapment is that a criminal 

defendant may assert an entrapment by estoppel defense when the 

government affirmatively assures him that certain conduct is lawful, the 

defendant thereafter engages in the conduct in reasonable reliance on 

those assurances, and a criminal prosecution based upon the conduct 

ensues. To make out the affirmative defense, the defendant must show 

that there were affirmative assurances made to him by the government 

that this conduct was legal. In order to establish an entrapment by 

estoppel defense, the defendant must prove three elements: One, that 

there was an active misleading by a government agent; two, that the 

defendant actually relied on the agent’s misrepresentation, which was 

reasonable in light of the position of the agent, the point of law was 

misrepresented, and the substance of the misrepresentation; and three, 
-24-

that the government agent is one who is responsible for interpreting, 

administering, or enforcing the law defining the offense. 

Now, ladies and gentlemen, I explained to you several times that the 

state has to obligation of proving each and every element of the offense 

or offenses charged beyond a reasonable doubt. Beyond a reasonable 

doubt is the highest standard that we have in a criminal case. The 

defendant, however, is not responsible to prove his defense beyond a 

reasonable doubt. He is only responsible to prove his defense by a 

preponderance of the evidence. * * * 

So the definition of preponderance of the evidence that you must apply 

to the defendant’s claim is that preponderance of the evidence is the 

greater weight of the evidence. That is, evidence that you believe 

because it outweighs or overbalances in our mind the evidence that is 

opposed to it. A preponderance means evidence that is more probable, 

more persuasive, or of greater probative value. You must weigh the 

quality of the evidence. Quality may or may not be identical with 

quantity. 

* * * 

If the defendant fails to establish the defense of entrapment by 

estoppel, the state must still prove to you, beyond a reasonable doubt 

each and every element of the offense or offenses charged in the 

indictment before you’re justified in convicting the defendant. 

If you find the defendant has proven by a preponderance of the 

evidence the defense of entrapment, you must still find that the State of 

Ohio, as I’ve said, has proven each and every element of the offense 

charged in Counts One, Two and Three. 

* * * 
-25-

If you do not find that the defendant proved by a preponderance of the 

evidence the defense of entrapment, if you find that the state failed to 

prove beyond a reasonable doubt any one of the essential elements of 

the offense, offenses charged in Counts One, Two and Three, you must 

find the defendant not guilty. 

Tr. 630-634. 

{¶76} Consequently, this assignment of error lacks merit because although 

the trial court erred in giving the affirmative defense instruction over Appellant’s 

objection, the error was harmless. 

Fourth Assignment of Error 

“Appellant was denied due process, equal protection, and a fair trial when the 

trial was infected by prosecutorial misconduct.” 

{¶77} The test for prosecutorial misconduct is whether the conduct 

complained of deprived the defendant of a fair trial. State v. Fears, 86 Ohio St.3d 

329, 332, 715 N.E.2d 136 (1999). In reviewing a prosecutor's alleged misconduct, a 

court should look at whether the prosecutor's remarks were improper and whether 

the prosecutor's remarks affected appellant's substantial rights. State v. Smith, 14 

Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). “[T]he touchstone of analysis ‘is the 

fairness of the trial, not the culpability of the prosecutor.’” State v. Hanna, 95 Ohio 

St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 61, quoting Smith v. Phillips, 455 U.S. 

209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). An appellate court should not deem 

a trial unfair if, in the context of the entire trial, it appears clear beyond a reasonable 

doubt that the jury would have found the defendant guilty even without the improper 

comments. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 

121. 

{¶78} There are two instances of alleged prosecutor misconduct. The first is 

the prosecutor’s suggestion and argument Appellant was guilty based on the board’s 

assessment of the evidence. He directs this court to the testimony of Lois Clark 

when she was asked if the contract between Appellant and his brother was against 

the law. Tr. 158. Appellant objected to the question and the objection was 
-26-

sustained. Tr. 158. He also directs our attention to the state’s cross-examination of 

Appellant. The questions asked if the board of directors’ decision was law and if the 

board found what he did to be illegal. Tr. 513-517. Appellant also objected to this 

line of questioning. 

{¶79} In reviewing the cross-examination in its context, the state’s questioning 

focused on two points. First, the questions concerning if the board’s decisions were 

law went to the state’s position that Appellant was asserting the affirmative defense 

of entrapment by estoppel. In context, the questions were not used to assert the 

board found what he did to be illegal, so it must be illegal. Rather, the questions 

were a means for the state to attempt to show the affirmative defense was not 

proven. 

{¶80} Thus, in this context it does not appear the prosecutor committed 

misconduct. However, even if the questions were questionable, they did not affect the 

outcome of the trial. Many witnesses who were knowledgeable on whether an 

employee could receive their salary from MYCAP at the same time as receiving grant 

money for consulting fees testified it was not proper and not allowable by the 

language of the grant. Tr. 368, 378, 399-400, 453. Furthermore, the language of the 

grant contracts for three MYCAP employees stated an employee could not be a 

consultant. Tr. 399-400; State’s Exhibits 19-21. Thus, there was sufficient evidence 

to show theft. 

{¶81} The second alleged misconduct occurred during the state’s crossexamination of Appellant. The questioning concerned emails to Appellant from the 

board of director’s legal counsel. Tr. 518. Appellant was asked if he had emails 

advising him if it was okay to enter a contract with his brother. Tr. 518. He 

responded he did and they were with the board’s legal counsel. Tr. 518. 

Q. So Mr. Roller, you’re telling us that you’re on trial for entering an 

illegal contract with your brother, and you have an E-mail that says it’s 

okay, but you didn’t bring a copy of that with you here? 

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

The Court: Overruled. 

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

Q. But you just testified that Percy Squire [prior board counsel] still has 

a copy of this E-mail? 

A. That he does. 

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

correct? 

A. Yes. 

Q. And so from that time until today, you were not able to obtain a copy 

of that E-mail? 

Mr. Juhasz: Objection. 

The Court: Overruled. 

A. No. 

Tr. 519-520. 

{¶82} As previously stated, the state requested, over Appellant’s objection, an 

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

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

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

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

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

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

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

Conclusion 

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

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

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

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

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

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

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

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

Donofrio, P.J., concurs. 

DeGenaro, J., concurs.