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Date: 07-22-2020
Case Style:
STATE OF OHIO v. MICHAEL DELMONICO
Case Number: 108578
Judge: RAYMOND C. HEADEN
Court: COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
Plaintiff's Attorney: Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Katherine Mullin and Jennifer King,
Assistant Prosecuting Attorneys
Defendant's Attorney:
Call 918-582-6422 for free help finding a great criminal defense lawyer in Ohio.
Description:
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A. Statement of Facts
Delmonico owned and operated ProCode Construction, L.L.C.
(“ProCode”), and held himself out as a general contractor, primarily in the
residential arena. Delmonico’s responsibilities included coordinating construction
and renovation projects. Initially, Delmonico researched each project, determined
the scope of work, needed supplies, and presented a proposal to the property owner.
After a client committed to a contract, Delmonico managed the supply of materials
and facilitated the completion of each project. Depending upon the project,
Delmonico either hired subcontractors to perform the contracted services or
Delmonico worked with his subcontractors to fulfill his contractual duties.
Delmonico had approximately thirty clients in 2017. This case stems from criminal
charges, brought against Delmonico personally, which arose out of three separate
business dealings with three separate clients — Vickie Krupka (“Krupka”), Joyce
Conway (“Joyce”), and Jessica Smith1 (“Smith”).
1 Jessica Smith previously went by the name Jessica Braun.
Delmonico contracted to perform construction work at the clients’
homes, and he accepted payment from each client in conjunction with their
contracts. At the time they executed their contracts, the clients were unaware that
Delmonico was experiencing a cash-flow problem where his expenses were greater
than the payments he received from his individual clients.
The details of the clients’ contracted services and the work performed
by Delmonico are as follows. 2
1. Vickie Krupka
Krupka contracted with Delmonico on August 17, 2017, to repair her
two-story front porch in Lakewood, Ohio. (Tr. 786.) Fourteen tasks were detailed
within the contract. (State’s exhibit No. 1.) Upon execution of the contract, Krupka
paid fifty percent of the bid price, $8,375. (Tr. 792-793.) The contract reflected a
completion date of October or November 2017, depending upon the weather.
(Tr. 793.) Delmonico failed to communicate with Krupka following the execution of
her contract, and Krupka texted him on October 20, 2017, and requested a start date.
2 Delmonico contracted with his clients on behalf of his business, ProCode.
Krupka, Joyce, and Smith provided Delmonico with checks made payable to ProCode and
Delmonico deposited the checks in his business account. Delmonico used the ProCode
business account for business and personal transactions. The theft charges against
Delmonico arose because he accepted his clients’ checks with the intent not to perform
under his business contracts and he used the funds beyond the scope of the clients’
express or implied consent. This case does not stem from a civil breach of contract action
filed by Delmonico’s clients against ProCode, but criminal charges brought by the state of
Ohio against Delmonico for grand theft and theft with an elderly specification in violation
of R.C. 2913.02(A)(2). For ease of analysis, the opinion references Delmonico as the
contracting party — rather than ProCode — and indicates any contracted work was
performed by Delmonico even though a subcontractor may have assisted with the work.
(Tr. 803.) Delmonico blamed his delay on the weather. (Tr. 804.) The contractor
sought access to Krupka’s roof on November 21, 2017, but no work began prior to
November 29, 2017. (Tr. 805, 807.)
On November 29, 2017, Delmonico obtained a building permit from
the city and removed two pine trees at the Krupka residence. (Tr. 807.) Delmonico
worked at Krupka’s home 5 or 6 times over the next few weeks and completed 5 of
the 14 tasks delineated in his contract. (Tr. 809, 1259-1260.)
As of December 6, 2017, Delmonico informed Krupka that he had
completed the framing and, under the terms of the contract, was entitled to the
second installment payment. (Tr. 1260.) Delmonico testified that he completed the
work detailed in the contract that, upon its completion, entitled him to a second
payment totaling $6,700. (Tr. 1260.) Krupka paid the second payment on
December 6, 2017, in anticipation that Delmonico would finish the contracted work.
(Tr. 814, 839.)
Under the contract, Delmonico was required to remove Krupka’s
first-floor pine porch decking and replace it with a new composite floor. The
composite floor cost twice as much as the pine decking. (Tr. 816.) Delmonico
removed the pine porch decking. (Tr. 1256.) However, rather than installing the
more expensive composite flooring as detailed in the contract and for which Krupka
submitted payment, Delmonico installed new pine wood flooring on December 8,
2017. (Tr. 814-815.) Krupka refused to accept the incorrect and inferior materials,
and the pine flooring was removed. (Tr. 862.) Delmonico informed Krupka that an
order for the composite flooring would be submitted the following week. (Tr. 817.)
The composite flooring was never installed. (Tr. 862.)
Krupka’s indecision regarding the selection of square versus round
columns resulted in a delay of work between January 2018 and March 2018.
(Tr. 834.) However, after Krupka approved the round columns in March 2018, no
additional work was completed.
Delmonico stopped responding to Krupka’s text messages in
May 2018. (Tr. 834.) At that time, Krupka and her boyfriend, Leonard Wodzisz,
researched Delmonico’s business and came across a number of complaints relating
to Delmonico and his business. (Tr. 875-876.) Krupka registered complaints with
the Ohio Attorney General and the city of Lakewood Police regarding Delmonico
and his failure to complete the contracted work. (Tr. 827, 876.)
Krupka paid Delmonico $15,075 under her contract. (Tr. 830.)
According to Krupka, Delmonico completed minimal work, and delivered some
materials to the Krupka residence such as the less expensive pine deck flooring,
shingles, and nails. (Tr. 837-838.) Krupka did not receive any additional materials,
including the composite deck flooring, and Delmonico did not complete all of the
work specified in the contract. (Tr. 830, 862.)
Joyce and Tim Conway
Joyce and Tim Conway, residents of Westlake, were over 65 years old
when they hired Delmonico as their contractor. (Tr. 604, 677.)3
Joyce executed a contract with Delmonico on September 28, 2017, for
kitchen and television room renovations with an estimated completion date of
January 2018.4 (Tr. 1197.) New kitchen cabinets were part of the kitchen
renovation. (Tr. 615.) Delmonico told Joyce the price of her selected kitchen
cabinets would increase the day after her contract was executed; Joyce executed the
contract and assumed her deposit would be used to purchase cabinets at the then
current price. (Tr. 635-636.) Joyce paid Delmonico a fifty percent deposit totaling
$16,775.00. (Tr. 1197.)
Joyce executed a second contract on October 23, 2017, whereby
Delmonico agreed to perform additional work including the removal of the existing
patio, installation of a new patio and deck, and waterproofing of the back wall.
(Tr. 630, 1198, 1207-1208.) The completion date, as a result of the change of scope
of work, was delayed until April 2018. (Tr. 1208.) Joyce paid a down payment for
the second contract in the amount of $6,325.00. (Tr. 629.)
Joyce and Tim expected the exterior work to begin upon execution of
the second contract in October 2017. (Tr. 630.) Despite reassurances by Delmonico
3 Both Joyce and Tim interacted with Delmonico, but only Joyce executed the
contract with Delmonico.
4 The contract clarified that the completion date of January 2018, was dependent
upon the weather and changes to the scope of the project. (Tr. 613.)
via text and email that he would start in October, no work began until December
2017. (Tr. 672, 674, 691.)
At the start of December, Delmonico tore out the patio and left behind
large concrete chunks that were unsightly to the Conways. (Tr. 638.) The Conways
thought that Delmonico would lay down gravel where the patio had been removed.
(Tr. 638.) Instead, Delmonico laid broken pieces of brick that “looked like rubble
over the mud.” (Tr. 638.) Delmonico countered that the recycled or crushed cinder
blocks were the standard materials used in this manner and “didn’t have to look
pretty” because they would be covered by filter fabric and gravel before installation
of the deck. (Tr. 1202.) Removal of the patio and installation of broken brick
represent the only work Delmonico completed under his two contracts with Joyce.
(Tr. 643.)
Delmonico completed no work at the Conways in January and
February 2018. (Tr. 1168.) During that time, the contractor had multiple excuses
as to why he could not work, including a trip to Kalahari Resort for his daughter’s
birthday celebration, and a ski trip to Peek’n Peak Ski Resort to celebrate his son’s
birthday. (Tr. 639-640.)
In March 2018, the Conways heard a negative news story regarding
Delmonico and his construction work. (Tr. 640.) The Conways learned Delmonico
was no longer licensed to work in Westlake and requested an immediate refund.
(Tr. 705-707.) Delmonico informed the Conways he was filing for bankruptcy and
provided them his bankruptcy attorney’s contact information. (Tr. 641.) Following
that time, Joyce contacted KraftMaid, the cabinet manufacturer, but the company
was unfamiliar with Delmonico’s name and did not provide any information
regarding an alleged order for cabinets to be installed at the Conways. (Tr. 637.)
The Conways did not receive any materials or supplies, including kitchen cabinets,
despite their down payments totaling $23,000.00. (Tr. 636.)
2. Jessica Smith
In November 2017, Smith, a recent widow and single parent,
contacted Delmonico regarding a kitchen remodel for her Lakewood, Ohio home.
(Tr. 507.) Smith executed a contract with Delmonico on December 4, 2017.
(Tr. 512.) The contract required a fifty percent deposit totaling $18,275. (Tr. 517.)
Delmonico urged Smith to execute the contract quickly, and to promptly submit her
down payment, to ensure she obtained the sale price on her preferred kitchen
cabinets. (Tr. 518.) Smith executed the contract on December 4, 2017, and delivered
the agreed upon down payment the following day. (Tr. 520-521.) Delmonico
deposited Smith’s down payment in his business account. (Tr. 920.) While work
was not scheduled to begin until February or March 2018, Smith understood the
down payment would pay for the kitchen cabinets and starting materials. (Tr. 526-
527.)
On January 23, 2018, Smith requested, via text, to view the purchased
cabinets. (Tr. 526) Delmonico indicated he stored the cabinets at a warehouse until
installation and they were not available for viewing prior to that time. (Tr. 527.)
Smith never observed the cabinets. (Tr. 527.)
Smith and Delmonico texted one another regarding the contracted
project between December 2017 and February 24, 2018. (Tr. 522.) In midFebruary, Smith saw a negative news story regarding Delmonico and his
construction business. (Tr. 529, 556.) To assuage Smith’s concerns regarding
Delmonico’s ability to perform on their contract, they executed an addendum on
February 24, 2018, that identified new scheduling and performance dates. (Tr. 521,
529, 558.) Under the addendum, Delmonico delayed the completion date to July 15,
2018, and implemented the following deadlines: blueprints submitted by March 16,
2018, commencement of work between April 16, 2018, and April 23, 2018, and
completion by July 15, 2018. (Tr. 530-531, 560.) If Delmonico failed to meet any of
the agreed upon dates, he would return one hundred percent of Smith’s deposit.
(Tr. 529.)
On April 6, 2018, Delmonico indicated via text that construction
would begin the following week. (Tr. 528.) Delmonico’s next communication sent
on April 15, 2018, indicated his intent to file for bankruptcy and that Smith should
direct any further communication to his bankruptcy attorney. (Tr. 533.)
No work was completed at Smith’s house pursuant to her agreement
with Delmonico. (Tr. 599, 1186.)
All three clients, Krupka, the Conways, and Smith, granted
Delmonico consent to use their deposits on their projects. None of the clients
granted Delmonico permission to use their deposits on purchases outside the scope
of their construction projects. (Tr. 539, 636, 830.) The clients’ down payments were
deposited into Delmonico’s business account, which Delmonico accessed and used
as his own personal bank account. (Tr. 1237.) None of the projects were completed
and Delmonico did not refund the clients. (Tr. 534, 674-675, 830.) Moreover,
outside the minimal work performed at the Krupka and Conway residences,
Delmonico failed to provide any supplies or materials, such as cabinets, that were
allegedly ordered nor did the contractor provide any documentation that those items
were ordered.
3. Criminal Investigation
Based upon the loss of their payments to Delmonico and the lack of
work completed by the contractor, Krupka and Smith filed complaints with the
Lakewood Police Department, and Joyce and Tim Conway filed a complaint with the
Westlake Police Department. Detective Motylewski from the Lakewood Police
Department and Detective Weisbarth with the Westlake Police Department
completed a criminal investigation of Delmonico.
Delmonico maintained all of his clients’ funds in one business
account, and attempted to manage the funds through simple accounting practices.
Yet, Delmonico purchased many materials in bulk, making it difficult to identify the
funds spent for each individual client. (Tr. 1223-1225.)
The detectives attempted to track Delmonico’s business funds to see
if he used his clients’ money for its intended purpose — to buy materials for the
clients’ projects. (Tr. 1085.) Officer Motylewski was unable to locate purchase
orders or receipts from Home Depot that reflected materials were purchased by
Delmonico for the three clients.5 (Tr. 925.) Detective Weisbarth communicated
with several of Delmonico’s vendors, but was unable to track any purchases for
materials related to the clients’ projects. (Tr. 1064.) Detective Weisbarth admitted
she did not discover evidence of any work completed for the three clients although
the testimony of Krupka and the Conways indicated Delmonico completed some
work at those two residences. (Tr. 1076, 1078.)
The detectives confirmed that in February and March 2018, following
Delmonico’s receipt of the clients’ payments, the contractor made ATM withdrawals
from his business account at Illinois and Ohio casinos. (Tr. 962, 1017.) Delmonico
and his family also went on overnight trips to Kalahari Water Park and Peek’n Peak
Ski Resort in February and March 2018, respectively. (Tr. 1316.)
In February 2018, negative news stories were televised regarding
Delmonico’s business. (Tr. 1178.) As a result of those stories, many of Delmonico’s
clients requested refunds and he was unable to procure new business. (Tr. 1179.)
Delmonico provided clients with the name and number of his bankruptcy attorney.
(Tr. 1246.) However, no bankruptcy filing occurred; Delmonico was statutorily
disallowed from filing bankruptcy because of a prior 2010 bankruptcy case.
(Tr. 1246.) Delmonico took steps to close his business including the cancellation of
5 Detective Motylewski discovered that Delmonico purchased approximately
$19,000 worth of Home Depot gift cards from GetGo. Delmonico distributed the gift
cards to his subcontractors who purchased materials and supplies at Home Depot for his
clients’ projects. Detective Motylewski met with Home Depot’s loss prevention
investigation office and attempted, to no avail, to locate receipts related to purchases
associated with the Krupka, Conway, and Smiths’ projects. (Tr. 925-926.)
his liability insurance on April 12, 2018, and the sale of many of his business assets.
(Tr. 1024.)
B. Procedural History
On September 27, 2018, Delmonico was indicted, in violation of
R.C. 2913.02(A)(2), on two counts of grand theft, each fourth-degree felonies, and
on one count of theft with an elderly specification, a third-degree felony. A jury trial
began on February 25, 2019, and the jury returned a guilty verdict on all three
counts. On April 17, 2019, the court sentenced Delmonico to 12 months on Counts
1 and 2, to run concurrently to one another and consecutive to the 36-month
sentence on Count 3, for an aggregate sentence of 48 months. The court also ordered
payment of restitution to Krupka, the Conways, and Smith in the amounts of
$15,075, $23,100, and $18,275, respectively. Delmonico filed a timely appeal on
May 17, 2019, raising the following assignments of error for our review:
Assignment of Error I: Mr. Delmonico’s convictions were not
supported by sufficient evidence.
Assignment of Error II: Mr. Delmonico’s convictions were against the
manifest weight of the evidence.
Assignment of Error III: The trial court erred in imposing consecutive
sentences. 6
6 Following Delmonico’s timely filing of an appeal, submission of briefs, and oral
arguments by both parties, Delmonico received judicial release as reflected in a
February 11, 2020 journal entry. Judicial release did not render this appeal moot because
the trial court reserved the right to reimpose Delmonico’s sentence should he violate the
conditions of his community-control sanctions.
II. Law and Analysis
A. Sufficiency of the Evidence
In his first assignment of error, Delmonico argues that the state did
not prove he acted with the necessary intent to deprive his clients at the time the
parties entered their contracts, and therefore, the convictions should be vacated due
to insufficient evidence. We disagree.
Where a party challenges the sufficiency of the evidence supporting a
conviction, a determination of whether the state has met its burden of production at
trial is conducted. State v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20,
¶ 41, citing State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997). An
appellate court reviewing sufficiency of the evidence must determine “‘whether,
after viewing the evidence in a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt.’” State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818
N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus. With a sufficiency inquiry, an appellate court does
not review whether the state’s evidence is to be believed but whether, if believed, the
evidence admitted at trial supported the conviction. State v. Starks, 8th Dist.
Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25, citing Thompkins at 387. A sufficiency
of the evidence argument is not a factual determination, but a question of law. Id.
at 386, citing State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148 (1955).
Here, the jury found Delmonico guilty under R.C. 2913.02(A)(2) of
two counts of grand theft, fourth-degree felonies, and one count of theft, a thirddegree felony, with an elderly specification.7 R.C. 2913.02(A)(2) prohibits the theft
of money by knowingly obtaining or exerting control over the property beyond the
scope of the express or implied consent of the owner and with the purpose to deprive
the owner of the money.
The term “deprive,” as used in R.C. 2913.02(A)(2), and as applied in
the case sub judice, is defined as follows:
Accept, use, or appropriate money, property, or services, with purpose
not to give proper consideration in return for the money, property, or
services, and without reasonable justification or excuse for not giving
proper consideration.
R.C. 2913.01(C)(3).
The instant theft case stems from contracts for services. To prove
theft in violation of 2913.02(A)(2), the state must demonstrate that when the
accused “‘exceeded the scope of consent of the owner of the money, he intended to
deprive the owner of the money.’” State v. Kerr, 6th Dist. Ottawa No. OT-13-036,
2015-Ohio-2228, ¶ 19, quoting State v. Coleman, 2d Dist. Champaign No. 2002 CA
17, 2003-Ohio-5724, ¶ 29, citing State v. Dortch, 2d Dist. Montgomery No. 17700,
7 According to R.C. 2913.02(B)(3), theft of property or services in an amount
between $500.00 and $37,500 is classified as a third-degree felony. Additionally, if the
victim of a theft offense delineated under R.C. 2913.02 is an elderly person, the theft
constitutes theft from a person in a protected class. Joyce and Tim Conway meet the
definition of an elderly person — a person aged 65 years or older — and Delmonico’s
charges stemming from the theft offense against the Conways included an elderly
specification. R.C. 2913.02(B)(3); R.C. 2913.01(CC).
1999 Ohio App. LEXIS 4838 (Oct. 15, 1999). A person in receipt of another’s money
must use those funds for their intended purpose or risk charges under
R.C. 2913.02(A)(2) for exceeding the scope of the owner’s consent:
Once a person lawfully has control over property with consent, that
person cannot thereafter exert control for a different purpose. That
person already has control. Instead, what changes is whether or not the
individual [acts] within the scope of the consent. If the individual
begins to use the property for something outside what the owner
specifically authorized, the individual has gone beyond the owner’s
consent. The statute allows for this precise situation in
R.C. 2913.02(A)(2).
Dortch at *10.
Intent of a theft offense is not established through direct testimony of
a third person but “‘may be inferred from the circumstances surrounding the
crime.’” State v. Catney, 8th Dist. Cuyahoga No. 104141, 2017-Ohio-90, ¶ 29,
quoting State v. Fasino, 8th Dist. Cuyahoga No. 101788, 2015-Ohio-2265, ¶ 15,
quoting State v. Herring, 94 Ohio St.3d 246, 266, 762 N.E.2d 940 (2002).
Delmonico argues his convictions were not supported by sufficient
evidence. Specifically, Delmonico contends that while he did not complete the
contracted projects for Krupka, the Conways, and Smith, he performed some work
on each project and that work demonstrated Delmonico’s intent to fulfill his
contractual obligations. Delmonico argues that the completion of some work
precluded the state from proving that at the time Delmonico accepted money from
his clients, he intended to exceed the scope of the owners’ consent and deprive the
owners of the money. The state, in contrast, argues it presented sufficient evidence
because minimal performance on a contract does not negate the intent required to
support a theft conviction.
Completion of a significant amount of the work under a contract
“‘precludes an inference that the defendant exceeded the scope of the owner’s
consent with intent to deprive the owner of the money (R.C. 2913.02(A)(2)).’” Kerr,
6th Dist. Ottawa No. OT-13-036, 2015-Ohio-2228, at ¶ 20, quoting Coleman, 2d
Dist. Champaign No. 2002 CA 17, 2003-Ohio-5724, at ¶ 40. Conversely, minimal
performance on a contract does not prevent a finding of intent required to support
a theft conviction under R.C. 2913.02(A)(2). Kerr at ¶ 22.
The facts of Kerr are analogous and instructive to the case sub judice.
Appellant-contractor Kerr received and cashed two checks from client Lenz for the
purchase and installation of a steel barn. Kerr submitted the barn order to the
manufacturer, but no payment was submitted to the manufacturer and the order
was not processed. Kerr did not complete the preliminary on-site work required
before the barn could be erected. No building materials were delivered to Lenz’s
property and the steel barn was not erected. Kerr did not refund any money to Lenz.
Kerr’s placement of the barn order did not constitute significant performance under
the contract. Kerr’s actions were found to exceed the scope of Lenz’s consent with
the intent to deprive Lenz under R.C. 2913.02(A)(2). See State v. Dalton, 11th Dist.
Portage No. 2008-P-0097, 2009-Ohio-3149, ¶ 33 (acceptance of full payment under
a construction contract, minimal performance of the contracted duties, and
contractor’s avoidance of the client provided sufficient evidence to infer that the
contractor intended to deprive the client of her money under R.C. 2913.02(A)(2)).
Delmonico relies upon Orange Village v. Woolfolk, 8th Dist.
Cuyahoga No. 77451, 2000 Ohio App. LEXIS 4624 (Oct. 5, 2000), to argue he may
have breached his contracts, but his acts did not constitute theft. Woolfolk operated
a snowplowing service and solicited customers with flyers. A complaining client
paid his full contract price in advance and, in exchange, Woolfolk was to place stakes
in the client’s driveway and plow as needed. The client alleged Woolfolk failed to
complete any of his contractual obligations and the client filed a breach of contract
claim with a small claims court. On the day of the small claims trial, the contractor
made full restitution. Woolfolk was subsequently charged criminally and found
guilty for theft under R.C. 2913.02(A)(3).
The contractor testified at his criminal trial that he installed driveway
stakes for the complaining client. The contractor conceded that due to heavy
snowfall throughout one week and the fact that some of his trucks broke down at
that time, he failed to plow driveways as agreed to under his contracts, including for
the complaining client’s. Thirty to forty customers canceled due to Woolfolk’s
failures. This court vacated Woolfolk’s conviction because the complaining client
obtained full restitution under his civil action. The Woolfolk court further
commented that the contractor’s actions — committing to 300 contracts with only
four snowplow trucks — were representative of bad business judgment rather than
theft.
In contrast, this case is not about whether Delmonico could have
fulfilled the contracts for Krupka, the Conways, and Smith — an issue that is
immaterial to a theft offense under R.C. 2913.02(A)(2) — but whether he intended
to fulfill those contracts. Further, no restitution was offered nor attempted by
Delmonico. The acts of Woolfolk, who failed to satisfy the terms of his contract for
one week and for which he paid restitution in full, are not comparable to
Delmonico’s actions.
Here, minimal supplies were delivered or used at the Krupka and
Conway residences and minimal work was completed at those projects. At Krupka’s
home, Delmonico completed approximately 5 of 14 tasks delineated in the contract.
(Tr. 1259-1260.) While Delmonico completed work on Krupka’s project, Delmonico
admitted he performed the tasks that triggered the terms of the contract requiring
Krupka’s second payment. (Tr. 1260.) Upon submission of Krupka’s second
payment, Delmonico completed no additional work. (Tr. 1260.) Krupka paid
Delmonico to purchase and install composite flooring on her front porch, not pine
flooring that costs one half the price of the composite flooring. (Tr. 788, 814-815.)
Delmonico did not install composite flooring and the product was not delivered to
the Krupka residence. (Tr. 830, 862.) No evidence was introduced, verbally or
written, to establish that Delmonico ordered the composite flooring. Delmonico did
not refund Krupka for any of the unfinished work. (Tr. 830.)
The Conways were over the age of 65 when they contracted with
Delmonico. (Tr. 604, 677.) The Conways contracted for interior renovations
including kitchen remodeling and the installation of a bay window; a new patio and
deck; and waterproofing. (State’s exhibit Nos. 21 and 22.) Delmonico removed the
patio and delivered ground-up brick to cover the area; no additional work was
completed. (Tr. 643.) Further, no supplies, such as kitchen cabinets that were
selected and presumably paid for by the Conways, were delivered to their home.
(Tr. 708.) Delmonico testified that he ordered the Conways’ kitchen cabinets via
email and “had a lot of stuff that was ordered.” (Tr. 1209, 1274.) No written evidence
was presented in support of the kitchen cabinet order, and the Conways testified
they received no materials for their project. (Tr. 1120.) The Conways did not receive
a refund from Delmonico. (Tr. 706.)
After accepting Smith’s down payment, the only work performed by
Delmonico was submission of the project plans to the city of Lakewood and the
issuance of a permit from the city.8 (Tr. 599, 1186.) No materials or supplies were
delivered to Smith. (Tr. 579.) Delmonico assured Smith, via text, that her kitchen
cabinets were ordered, yet the cabinets were not delivered. (Tr. 562-563.) At trial,
Delmonico testified that he ordered, by email, Smith’s cabinets within a day after
she executed the initial contract to ensure the cabinets were subject to the then-sale
price. (Tr. 1189-1191.) Delmonico did not introduce the alleged email sent to order
Smith’s cabinetry. Further, Delmonico later testified that while he had submitted
8 Delmonico and Smith presented conflicting testimony regarding the project
plans and work permit. Smith testified that Delmonico failed to submit plans to the city
of Lakewood, and to obtain a work permit for the project. (Tr. 578.) However, Delmonico
introduced evidence at trial that showed Smith’s plans were submitted and approved, and
a building permit issued by the city of Lakewood. (Tr. 535, 1186.)
the order for Smith’s cabinets — as well as the Conways’ cabinets — he had not paid
any money for the cabinets. (Tr. 1266-1267.) Delmonico also testified that he
purchased sink bays and pull-out drawers for the Smith project, but he never
thought to deliver those items to her residence. (Tr. 1269-1270.) Smith never
received her cabinets nor any related supplies nor was she told her kitchen cabinets
were available for pick-up. (Tr. 579.) Delmonico failed to complete any actual labor
at Smith’s home. (Tr. 528, 535.) No monies were refunded to Smith. (Tr. 534.)
Delmonico claimed he had extensive detailed receipts for all client
purchases, yet none were submitted in support of his claims that he purchased
materials for Krupka, the Conways, and Smith. (Tr. 1225.) Delmonico stated he
used the clients’ payments to secure needed materials for the projects. (Tr. 1252.)
Delmonico testified that he stored purchased materials at his office, and they were
available at the time of trial. (Tr. 1291-1292.) Yet, the court was not made aware of
any attempt by Delmonico to deliver those products to his clients.
Further, Delmonico accessed his business checking account — where
he deposited the clients’ payments — as his own personal bank account. (Tr. 1284.)
Delmonico withdrew funds from his business account in November 2017, February
2018, and March 2018, to gamble. (Tr. 1283-1284) Delmonico traveled with his
family to Kalahari Water Park and Peek’n Peak Ski Resort in February and March
2018, respectively. (Tr. 1316.) This testimony, if believed, supported the state’s
claims that Delmonico used his clients’ money beyond their express or implied scope
of consent.
In construing the evidence most favorable to the prosecution, we
reject Delmonico’s contention that his convictions are not supported by sufficient
evidence. The state presented contrary evidence which, if believed, was sufficient to
show that Delmonico knowingly acted with purpose to deprive the clients of their
money by exerting control over such property beyond the scope of the owner’s
express or implied consent. Thus, Delmonico’s first assignment of error is
overruled.
B. Manifest Weight of the Evidence
In his second assignment of error, Delmonico contends that the
verdict was against the manifest weight of the evidence. A manifest-weight
challenge tests whether the prosecution has met its burden of persuasion.
Thompkins, 78 Ohio St.at 390, 678 N.E.2d 541, (Cook, J., dissenting). A reviewing
court “‘weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence, the jury
clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.’” Thompkins at 387, quoting
State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A reversal
on the basis that a verdict is against the manifest weight of the evidence is granted
“only in the exceptional case in which the evidence weighs heavily against the
conviction.” Id.
Delmonico argues the state did not introduce substantial evidence
that at the time he contracted with the clients, Delmonico intended to accept the
money without performing the contracted work, and therefore, acted outside the
scope of the clients’ consent.
Upon our review of the record, we find there is competent, credible
evidence showing that Delmonico did not significantly perform under his clients’
contracts despite his acceptance of payments from Krupka, the Conways, and Smith
and he knowingly deprived the clients of their money by exerting control beyond the
scope of the clients’ express or implied consent.
There was contrary testimony that Delmonico purchased materials
for all three projects, some of which were stored at Delmonico’s place of business.
There was also testimony from Delmonico that he had receipts for purchased
materials and supplies, and he ordered the cabinets for the Conway and Smith
projects. However, the jury, as permitted in its role as trier of fact, found this
testimony less than credible. In support of the state’s evidence, Krupka testified
about the materials delivered and installed at her home and the failure of Delmonico
to install the pricier composite decking for which she contracted and paid. The
Conways testified to the minimal work completed on their patio and the failure of
Delmonico to deliver the cabinets for which Joyce had paid. Smith stated no
materials were delivered to her job site and she was not notified of the availability of
any materials, such as the kitchen cabinets she selected and paid for with her down
payment. Delmonico failed to introduce written documentation demonstrating the
materials and supplies purchased for the individual projects or the availability of
those items to the clients.
Additionally, Delmonico’s negotiation of a second contract with
Smith in March 2018 — without any other work in furtherance of his contractual
requirements — did not negate the finding that Delmonico intended to exceed the
scope of his client’s consent with the purpose of depriving Smith of her money.
Contra Coleman, 2d Dist. Champaign No. 2002 CA 17, 2003-Ohio-5724 (where a
contractor was accused of using his client’s money beyond the scope of express or
implied consent, the execution of a promissory note for full repayment and the
negotiation and signing of a new contract, coupled with the contractor’s possession
of the needed construction materials and offer to complete the contracted work —
and the client’s admission that he never intended to comply with the renegotiated
contract — supported a finding that the contractor’s conviction under
R.C. 2913.02(A)(2) was against the manifest weight of the evidence.).
The evidence supports the conclusion that Delmonico intended to
deprive his clients of their money when their contracts were entered into, in
violation of R.C. 2913.02(A)(2). Delmonico’s convictions are not against the
manifest weight of the evidence and Delmonico’s second assignment of error is
overruled.
C. Consecutive Sentences
In his third assignment of error, Delmonico declares that the
imposition of consecutive sentences does not comport with the requirements of
R.C. 2929.14(C)(4), and therefore, his sentences should be vacated, and the case
remanded for resentencing.
In Ohio, there is a presumption that prison sentences should be
served concurrently, unless the trial court makes the findings outlined in
R.C. 2929.14(C)(4) to warrant consecutive service of the prison terms. State v.
Morris, 2016-Ohio-7614, 73 N.E.3d 1010, ¶ 25 (8th Dist.), citing State v. Primm, 8th
Dist. Cuyahoga No. 103548, 2016-Ohio-5237, ¶ 64, citing State v. Cox, 8th Dist.
Cuyahoga No. 102629, 2016-Ohio-20, ¶ 3, and R.C. 2929.41(A). Initially, the
sentencing court must find that (1) a consecutive sentence is necessary to protect the
public from future crime or to punish the offender, and (2) the consecutive sentences
are not disproportionate to the seriousness of the offender’s conduct and to the
danger the offender poses to the public. R.C. 2929.14(C)(4). Finally, the court must
also find that any one of the following apply:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender’s
conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
R.C. 2929.14(C)(4).
The sentencing court must make the statutory findings at the
sentencing hearing and also incorporate the findings into its sentencing entry. State
v. Hendricks, 8th Dist. Cuyahoga No. 101864, 2015-Ohio-2268, ¶ 12, citing State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. At the
sentencing hearing, the court must state it entered into the statutory analysis and
considered the statutory criteria as well as provide the bases for its decision. Morris
at ¶ 26. “However, a word-for-word recitation of the language of the statute is not
required, and as long as the reviewing court can discern that the trial court engaged
in the correct analysis and can determine that the record contains evidence to
support the findings, consecutive sentences should be upheld.” Bonnell at ¶ 29. A
sentencing court’s failure to make the statutory findings is “‘contrary to law.’”
Hendricks at ¶ 12, quoting Bonnell at ¶ 37.
A reviewing court may overturn the imposition of consecutive
sentences, under R.C. 2953.08, where the appellate court “clearly and convincingly
finds that ‘the record does not support the sentencing court’s findings’ under
R.C. 2929.14(C)(4), or the sentence is ‘otherwise contrary to law.’” Hendricks at ¶ 9,
quoting R.C. 2953.08(G)(2)(a) through 2953.08(G)(2)(b).
When the trial court sentenced Delmonico, it made the following
findings in open court and on the record:
I’m finding specifically that consecutive sentences are necessary to
punish you and to protect the future criminal activity with this business
of contracting. It’s not disproportionate to this. Great and unusual
harm. $56,000.
Therefore, I’m finding specifically the harm is so great or unusual a
single term would not adequately reflect the seriousness of your
conduct and that your prior criminal history, all those misdemeanor
alcohol-related cases, require that you straighten your life out in the
future so you do not victimize anyone else again in this business, and
that no civil bankruptcy or LLC will protect you from your criminal acts,
and you’re fooling yourself if you think that will work.
I’m ordering restitution. * * *
(Tr. 1467-1468.)
We find these statements satisfied R.C. 2929.14(C)(4). First, the trial
court found that consecutive sentences are necessary to protect the public from
future crime by Delmonico and to punish the offender. Per R.C. 2929.14(C)(4), only
one of these findings was necessary.
Next, the trial judge stated: “It’s not disproportionate to this. Great
and unusual harm. $56,000.” (Tr. 1467.) The court also stated that Delmonico’s
actions betrayed the trust of each client in their most important investment, their
home. (Tr. 1464.) Delmonico intended to deprive Krupka, the Conways, and Smith
of their money and planned to fall back on bankruptcy or other legal recourse to
avoid financial responsibility. (Tr. 1465.) These comments support the court’s
finding that consecutive sentences were not disproportionate to Delmonico’s
behavior or the danger he posed to the public.
In reference to R.C. 2929.14(C)(4)(a)-(c), the trial judge found
Delmonico’s criminal history — 15 misdemeanors — supported consecutive
sentences to avoid any future victimization. (Tr. 1467.)
Delmonico argues that the trial court failed to explain, with
specificity, why consecutive sentences were necessary to punish Delmonico and to
protect the public from future criminal activity, and that doing so would not be
disproportionate to the seriousness of Delmonico’s conduct and the danger
Delmonico poses to the public. However, R.C. 2929.14(C)(4) requires a trial court
imposing consecutive sentences to state the required findings at the sentencing
hearing so as to provide notice to the offender. Bonnell, 140 Ohio St.3d 209, 2014-
Ohio-3177, 16 N.E.3d 659, at ¶ 28. A trial court is not required to provide reasons
supporting its imposition of consecutive sentences. Id. at ¶ 27.
The trial court’s statements satisfied R.C. 2929.14(C)(4), and the
record clearly and convincingly supports these findings. Therefore, the trial court
did not err in imposing consecutive sentences and Delmonico’s third assignment of
error is overruled.
Outcome: Judgment affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: