STATE OF OHIO - vs- LATISHA H. GARRETT

Defendant-appellant, Latisha H. Garrett, appeals her 18-month prison

sentence in the Butler County Court of Common Pleas for telecommunications fraud and

theft from a person in a protected class.

{¶ 2} Garrett was indicted for telecommunications fraud, theft from a person in a

protected class, and identity fraud against a person in a protected class. The charges arose

from a scheme devised and executed by Garrett and her boyfriend, Eric Kleinholz, to

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swindle $4,800 from the victim.

{¶ 3} The victim is a 105-year old woman residing at The Knolls in Oxford, Ohio.

Garrett was employed by Visiting Angels as a "caregiver." Pursuant to this employment,

the victim was one of Garrett's clients. On or about July 6 or 7, 2017, Kleinholz placed a

telephone call to the victim. Kleinholz, acting with information provided to him by Garrett,

identified himself to the victim as Kelvin Small, the victim's grandson. Posing as Small,

Kleinholz told the victim that he was in Dayton, Ohio to give a speech where his car had

broken down. Kleinholz claimed that he had left his billfold on the dining room table in

Tennessee and that he needed $4,800 to complete necessary vehicle repairs. The victim

agreed to get the money and had Garrett take her to the bank. The victim withdrew $4,800

from her bank account and returned home. The money was placed into an envelope and

given to Garrett to take to the victim's grandson in Dayton. Garrett left the victim's home

with Kleinholz in Kleinholz's vehicle. The pair removed the money from the envelope and

placed the torn envelope in a post office mailbox in Oxford.

{¶ 4} Pursuant to plea negotiations, Garrett entered guilty pleas to

telecommunications fraud, in violation of R.C. 2913.05(A), and theft from a person in a

protected class, in violation of R.C. 2913.02(A)(3), both fourth-degree felonies. The charge

of identity fraud against a person in a protected class was dismissed. The trial court ordered

a presentence-investigative report ("PSI") and scheduled sentencing.

{¶ 5} Prior to the sentencing hearing, the state and Garrett both filed sentencing

memoranda. Garrett argued that she should be sentenced to community control pursuant

to R.C. 2929.13(B)(1)(a) because she was being sentenced for fourth-degree felonies, she

had no prior convictions for felonies or for misdemeanor offenses of violence, and the trial

court had not requested the department of rehabilitation and correction to provide

information for available community control sanctions. The state argued that the trial court

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had discretion to impose a prison term pursuant to R.C. 2929.13(B)(1)(b)(viii) because

Garrett's position as the victim's "caregiver" was a "position of trust" which facilitated her

commission of the offenses.

{¶ 6} At the sentencing hearing, the trial court heard from Garrett and the state and

confirmed its consideration of the PSI, the victim impact statement, both sentencing

memoranda, the R.C. 2929.11 purposes and principles of sentencing, and the R.C. 2929.12

seriousness and recidivism factors. Based upon the foregoing, the trial court acknowledged

Garrett's prior record, consisting of a single disorderly conduct conviction, and expressed

dismay at Garrett's minimization of her role in the offenses and apparent lack of genuine

remorse for what she had done. The trial court noted Garrett's position as the victim's

"caregiver" and found that Garrett "held a position of trust * * * that facilitated" the offenses.

The trial court imposed 18-month prison terms on each of the offenses and ordered that the

prison terms be served concurrently.

{¶ 7} Garrett now appeals, raising one assignment of error:

{¶ 8} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY

IMPOSING A PRISON TERM IN VIOLATION OF R.C. 2929.13(B)(1)(a).

{¶ 9} Garrett argues that the trial court erred in sentencing her to a prison term

because the record does not support the trial court's finding that she held a "position of

trust" as the victim's caregiver, which facilitated the commission of the offenses.

{¶ 10} We review the imposed sentence under the standard of review set forth in

R.C. 2953.08(G)(2), which governs all felony sentences. State v. Marcum, 146 Ohio St.3d

516, 2016-Ohio-1002, ¶ 1. Pursuant to that statute, an appellate court does not review the

sentencing court's decision for an abuse of discretion. Id. at ¶ 10. Rather, R.C.

2953.08(G)(2) compels an appellate court to modify or vacate a sentence only if the

appellate court finds by clear and convincing evidence that "the record does not support the

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trial court's findings under relevant statutes or that the sentence is otherwise contrary to

law." Id. at ¶ 1. A sentence is not clearly and convincingly contrary to law where the trial

court "considers the principles and purposes of R.C. 2929.11, as well as the factors listed

in R.C. 2929.12, properly imposes postrelease control, and sentences the defendant within

the permissible statutory range." State v. Aburas, 12th Dist. Clermont No. CA2017-10-054,

2018-Ohio-1984, ¶ 9.

{¶ 11} R.C. 2929.13(B) generally requires a sentencing court to impose a community

control sanction or sanctions as the sentence for a fourth-degree felony. However, R.C.

2929.13(B)(1)(b)(viii) grants a sentencing court discretion to impose a prison term as a

sentence for a fourth-degree felony if "[t]he offender held a public office or position of trust,

and the offense related to that office or position; the offender's position obliged the offender

to prevent the offense or to bring those committing it to justice; or the offender's professional

reputation or position facilitated the offense or was likely to influence the future conduct of

others." R.C. 2929.13(B) is one of the "relevant statutes" referenced in R.C. 2953.08(G)(2).

Thus, to withstand an appeal, a sentencing court's finding that an offender held a "position

of trust" under R.C. 2929.13(B)(1)(b)(viii) must be supported by the record. The statute

does not specify how the record is to be developed in this regard. We do not interpret the

statute as requiring judicial fact finding, as suggested by the dissent. We merely observe

that R.C. 2953.08(G)(2) requires a finding that an offender occupied a "position of trust" in

relation to the offense be supported by the record. The parties and the sentencing court

may utilize any proper method to develop the record to fulfill that requirement.

{¶ 12} In 2010, the Ohio Supreme Court considered whether the phrase "position of

trust" as used in R.C. 2929.13(B)(1)(d), a predecessor version of the current statute, applied

only to public officials and public servants or also to private individuals, such as Garrett.

State v. Massien, 125 Ohio St.3d 204, 2010-Ohio-1864. Massien involved a nurse who

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was charged with fourth-degree felony theft of drugs from her employer hospital. The state

maintained that the nurse held a "position of trust" with her employer hospital and was thus

ineligible for intervention in lieu of conviction. The supreme court ultimately determined that

the nurse did not hold a "position of trust." However, the supreme court further held,

"Although a 'position of trust' for the purpose of [the statute] is not limited to public officials

and public servants, it does not include all positions of trust held by a private individual.

Rather, a private individual holds a 'position of trust' if he or she occupies a special

relationship of trust and confidence equivalent to a fiduciary relationship." Massien at ¶ 41.

{¶ 13} The supreme court observed that "the General Assembly intended a narrow

application of the phrase 'position of trust.'" Id. at ¶ 22. As the supreme court explained,

"[W]e do not believe that the legislature intended the phrase to apply to all individuals who

breach any private expectation of trust." Id. at ¶ 21. "An unrestrained application of the

phrase 'position of trust' to 'every breach of ethical, moral, or filial duty by a private individual'

is not consistent with the sentencing principles set forth by the General Assembly, * * * or

with the language of R.C. 2929.13(B)(1) as a whole." (Citation omitted.) Id. Thus, the

supreme court recognized that while a private individual may hold a "position of trust" under

the common, everyday understanding of the phrase, a different meaning is intended by the

statute.

{¶ 14} The supreme court then held that if a private individual is to be considered as

holding a "position of trust," as the phrase is intended by the statute, then that person must

occupy "a special relationship of trust and confidence equivalent to a fiduciary relationship."

Massien, 2010-Ohio-1864 at ¶ 41. "A 'fiduciary relationship' is one in which special

confidence and trust is reposed in the integrity and fidelity of another and there is a resulting

position of superiority or influence, acquired by virtue of this special trust." Id. at ¶ 35. "A

'fiduciary' has been defined as 'a person having a duty, created by his undertaking, to act

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primarily for the benefit of another in matters connected with his undertaking.'" (Emphasis

sic.) Id.

{¶ 15} Furthermore, "'emphasis should be placed upon whether the assigned job

duties require, as essential qualifications over and above technical competency

requirements, a high degree of trust, confidence, reliance, integrity and fidelity.'" Id. at ¶

37, quoting State ex rel. Charlton v. Corrigan, 36 Ohio St.3d 68, 71 (1988). "Job duties that

require a great degree of discretion support the existence of a fiduciary relationship,

whereas assigned duties of a routine character do not involve the degree of discretion or

trust necessary to be considered a fiduciary." Massien at ¶ 37. "A further consideration

involves whether the employee's responsibility includes 'daily discretionary decisions'

affecting persons served by the employer that require the employee to be 'of higher than

normal reliability.'" Id., quoting Charlton at 73.

{¶ 16} Noting the varying treatment of the issue by Ohio appellate courts, the

supreme court rejected the broad approach taken by "a number of appellate courts [that]

have held that virtually any public or private individual whose offense relates to a breach of

any trust occupies a 'position of trust' for the purpose of [the statute]," in favor of the

approach taken by the First Appellate District. The supreme court observed, "'Consistent

with the purposes and principles of felony sentencing, * * * the phrase 'position of trust'

under [the statute] applies only to private individuals in professions 'traditionally thought to

invoke a special relationship of trust - such as a doctor, lawyer or accountant.'" Massien,

2010-Ohio-1864 at ¶ 16, quoting State v. Condon, 152 Ohio App.3d 629, 2003-Ohio-2335,

¶ 104 (1st Dist.).

{¶ 17} In applying Massien, the Second Appellate District determined that a used

car dealership office manager who functioned much like an accountant and had embezzled

funds from the dealership was in a "position of trust" by occupying a "fiduciary relationship"

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with the dealership. State v. Courtney, 2d Dist. Clark No. 2013-CA-73, 2014-Ohio-1659, ¶

24. Upon being denied community control and sentenced to a prison term for her theft,

Courtney appealed and argued that she did not occupy a "position of trust" and was entitled

to community control under the current version of the statute. In affirming the trial court and

finding that Courtney did occupy a "position of trust," the Second Appellate District noted

that Courtney was a 20-year employee of the dealership with job duties that included

supervision of customer accounts, tracking the dealerships accounts and expenses,

handling large sums of money, and making bank deposits. Based upon the foregoing, the

appellate court held

The record establishes that Courtney was in a position that required higher than normal reliability. Her responsibilities and access to large sums of money required a high degree of discretion and trust from her former employer, which translates to a fiduciary relationship. Because of the employer's trust and reliance upon her in handling its money, Courtney was able to steal $44,726. Accordingly, the record establishes that she was in a "position of trust" as contemplated under R.C. 2929.13(B)(1)(b)(viii).

Id.

{¶ 18} The state cites our opinion in State v. Sanders, 12th Dist. Butler No. CA2003

12-311, 2004-Ohio-6320, and the Fifth Appellate District's opinion in State v. Lehman, 5th

Dist. Fairfield No. 01CA12, 2001 Ohio App. LEXIS 6030 (Dec. 12, 2001), in support of its

argument that Garrett occupied a "position of trust" in her relationship to the victim. Both

cases are pre-Massien and did not have the benefit of its analysis in determining whether

the respective defendants in those cases occupied "positions of trust."

{¶ 19} Sanders involved a caregiver employed by a residential care facility for the

mentally handicapped. Sanders was charged with patient abuse, a fourth-degree felony,

and assault, a first-degree misdemeanor, for physically abusing a mentally handicapped

resident of the facility. Sanders was convicted as charged and sentenced to a prison term

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upon a finding that she occupied a "position of trust." Sanders appealed, arguing that she

should have been sentenced to community control. We affirmed the prison term, holding

With regard to the trial court's finding that appellant held a position of trust, we find that the record supports the finding. Terry was a mentally handicapped patient with limited communication skills who resided in the center where appellant was employed as a caregiver. Appellant worked for a facility that was supposed to provide care, comfort, and security to Terry. Appellant's position as a caregiver at the center, regardless of whether Terry was her patient that day, therefore placed her in a position of trust.

Id. at ¶ 18.

{¶ 20} Although we decline to overrule Sanders, its prospective efficacy is limited by

the guidance of Massien, wherein the supreme court recognized limitations upon the

application of the phrase "position of trust" to private individuals who may be in positions of

trust that are not akin to fiduciaries in relation to the offense with which they are charged.

{¶ 21} Lehman is factually similar to this case in that it involved theft of money from

an elderly person for which Lehman was a caregiver. The Fifth Appellate District held, "The

record indicates that appellant was a home health care giver for a woman in her eighties

who was suffering from dementia when the offenses in question were committed. We find

that such a position places a person in a position of trust and facilitated the offense."

Lehman, 2001 Ohio App. LEXIS 6030 at *19.

{¶ 22} Again, Lehman must be considered with some caution, as it predates the

supreme court's guidance in Massien.

{¶ 23} The record reflects that Garrett was a 34-year-old, high school-educated

employee of Visiting Angels earning $12 an hour. Garrett's job title was "caregiver." The

record further reflects that Garrett was scheduled to be in the victim's home for two hours

on the day of the offense. Presumably, Garrett performed in-home services for her clients.

Although Garrett reported in the PSI that she generally "had been taking her clients to the

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bank for the duration" of her employment with Visiting Angels, the record reflects that she

took the victim to the bank only on the single occasion of this offense. The victim impact

statement contains a brief description of the bank's surveillance video depicting Garrett and

the victim at the bank's teller window when the victim withdrew the funds from her bank

account.1 Garrett's job duties are not otherwise defined in the record.

{¶ 24} "Caregiver" is a generic job title. In this sense, this job title may encompass

such a broad range of responsibilities that the title is practically useless in conveying the

responsibilities of a particular person dubbed a "caregiver." To overcome this, the dissent

cites a legal treatise definition of "caregiver" and hypothesizes about the various duties

which might come under the "caregiver" title. Based upon this construct, the dissent asserts

that it is reasonable for the trial court to have inferred that Garrett's duties and this

hypothetical "caregiver's" responsibilities were identical. The established facts in the record

do not support such an inference. It is not logical to deduce from Garrett's job title and the

information concerning her responsibilities that she performed the same duties as the

dissent's hypothetical "caregiver."2 Specifically, this record does not support an inference

that Garrett's duties as a "caregiver" involved that great degree of discretion necessary to

support the existence of a fiduciary relationship as opposed to duties of a routine character

not involving the degree of discretion or trust necessary for her to be considered a fiduciary.3

On the contrary, Garrett's lack of higher education and her relatively low wages infer that

1. The video itself was not admitted into evidence and is not part of the record for our review.



2. "An inference is a permissible deduction which the jury may make from a set of facts that can be deduced by the ordinary principles of logic." State v. McFadden, 7 Ohio App.3d 215, 216-217 (12th Dist.1982), citing State v. McCarthy, 20 Ohio App.2d 275, 285 (1969). In other words, an inference must logically follow from facts established in the record.



3. The dissent implies that there is some distinction between a "fiduciary" relationship and one "equivalent" to a fiduciary relationship as referred to in Massien. The word "equivalent" means "like in signification or import." Webster's Third New International Dictionary 769 (1986); State v. Lloyd, 132 Ohio St.3d 135, 2012Ohio-2015, ¶ 28.



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her job duties were of a routine character, likely consisting of some combination of common

household chores such as meal preparation, cleaning, laundry, bathing, and clothing the

victim. The supreme court cautioned in Massien that "technical competence" to perform

tasks should not be confused with that "high degree of trust, confidence, reliance, integrity

and fidelity" required of a fiduciary. Massien, 2010-Ohio-1864 at ¶ 37.

{¶ 25} Garrett and Kleinholz tricked the victim into believing that she was confronted

with an emergency where her grandson, who lives in Tennessee, was stranded in Dayton,

Ohio with a broken-down car and needed money to complete the necessary repairs. Under

those circumstances, the victim "trusted" Garrett to deliver the money to the victim's

grandson, as the most expeditious manner to resolve the apparent emergency. Garrett had

an ethical, moral, and filial duty not to betray that trust and take advantage of this vulnerable

victim. Massien made clear that merely trusting a person does not place that person in a

"position of trust." Specifically, "every breach of ethical, moral, or filial duty by a private

individual" does not elevate an offender to a "position of trust" in relation to the offense.

Massien at ¶ 21. Based upon this record, if Garrett occupied a "position of trust," it was

within the colloquial sense of the phrase which the supreme court in Massien excluded from

the ambit of the statute. Id. at ¶ 41.

{¶ 26} The dissent makes an emotional appeal to resolve the issue of whether

Garrett occupied a "position of trust" based upon the wicked nature of Garrett's exploitation

of a vulnerable victim. Specifically, the victim was of an advanced age and apparently

suffered from some decline in mental function. However, the R.C. 2929.13(B)(1)(b)(viii)

"position of trust" factor is concerned not with whether the victim's vulnerability facilitated

the offense, but with whether the offender's fiduciary duties facilitated the offense.4 Most

4. The General Assembly has not included a victim's vulnerability as a circumstance authorizing a trial court to impose a prison term for a conviction of a fourth-degree felony in R.C. 2929.13(B)(1)(b).

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would agree that Garrett's conduct was heinous, provokes outrage, and arouses a passion

for retribution. However, outrage and passion do not supply the "position of trust" factor or

lessen the requirement of R.C. 2953.08(G)(2) that the record support the trial court's finding

that Garrett occupied a "position of trust" as the General Assembly used the phrase in R.C.

2929.13(B)(1)(b)(viii).

{¶ 27} The dissent subtlety distorts the record to support its position that Garrett

occupied a "position of trust." First, to enhance Garrett's stature, the dissent refers to her

as a "professional" caregiver. We have searched the indictment, the bill of particulars, the

transcripts of the plea and sentencing hearings, the parties' sentencing memoranda, the

PSI, the victim impact statement, and the sentencing entry and find no reference to Garrett

as a "professional." There is nothing else in the record from which to conclude that Garrett

was a "professional." Garrett was a high school-educated "caregiver" earning $12 an hour,

which suggests that Garrett lacked the requisite education, training, and skill to be

considered a "professional."

{¶ 28} The dissent embellishes the degree of the victim's dependence upon Garrett.

For example, the dissent refers to the victim as a "ward," even though there is no indication

that the victim was adjudged incompetent or is subject to a guardianship. According to the

PSI and the victim impact statement, Visiting Angels and Garrett referred to persons served

by Visiting Angels' caregivers as "clients," not "wards." The dissent asserts that the

reference to the victim as a "ward" is in the everyday sense of the word because the record

demonstrates that the victim was under the "guard, protection, or supervision" of Garrett.

On the contrary, given that Garrett was scheduled to be in the victim's home for just two

hours on the day of the offense, it is more logical to deduce that Garrett was intermittently

in the victim's home for brief periods of time than that the victim was under the "guard,

protection, or supervision" of Garrett.

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{¶ 29} The dissent also insinuates that the victim is debilitated by Alzheimer's

disease based only upon an out-of-state relative's report in the victim impact statement of

his understanding that the victim had a "diagnosis of early onset Alzheimer's disease."

However, the extent of the victim's affliction from Alzheimer's disease cannot be gleaned

from the record and was not significant enough to merit mention in the PSI, or by either the

trial court or the prosecutor during the plea or sentencing hearings. In fact, with the

exception of the one reference in the victim impact statement, there is no mention of the

victim suffering from Alzheimer's disease anywhere in the record. Furthermore, in its brief,

the state does not allude to the victim suffering from Alzheimer's disease, much less argue

that Alzheimer's disease is a factor in analyzing whether Garrett occupied a "position of

trust." Yet, based upon this single mention in the victim impact statement, the dissent refers

to the victim as suffering from Alzheimer's disease no less than nine times.

{¶ 30} Finally, the dissent seeks to diminish the holding of Massien by repeatedly

invoking the victim's age and frailty as the source of a "special relationship" between Garrett

and the victim. In doing so however, the dissent ignores the qualification in Massien that

the "special relationship" be equivalent to a "fiduciary relationship" akin to that between a

person and their "doctor, lawyer or accountant." Massien, 2010-Ohio-1864 at ¶ 2, 16. In

summary, the narrative created by the dissent is one based upon exaggeration of the facts,

minimization of the law, and appeal to emotion as opposed to being based on the record.

{¶ 31} We hold that the record clearly and convincingly does not support the trial

court's finding that Garrett occupied a "position of trust" under R.C. 2929.13(B)(1)(b)(viii).

The trial court's finding that Garrett occupied a "position of trust" is accordingly reversed,

the sentence is vacated, and the matter is remanded to the trial court for resentencing

pursuant to R.C. 2953.08(G)(2). Upon remand, the trial court shall comply with R.C.

2929.19(A) which requires the trial court, on a remand for resentencing, to conduct a

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sentencing hearing at which "the offender, the prosecuting attorney, [and] the victim or the

victim's representative * * * may present information relative to the imposition of sentence

in the case." Garrett's assignment of error is sustained.

Judgment reversed.