After she was convicted of unauthorized use of property in
violation of Ohio Code § 2913.04 and theft in office in violation of Ohio Code§ 2921.41, Tonya Claborn appealed. State v. Claborn, 2012 WL 1078930 (Ohio
Court of Appeals 2012). (In case you
were wondering, she was sentenced “to two years of community control under
basic supervision under the condition that she remain in full-time employment.” State
v. Claborn, supra.)
The case began on May 17, 2009 when Claborn was in a car
accident involving two other cars:
[O]ne of the cars stopped in a
non-turning lane to make a left turn. When [Claborn] stopped, she was hit from
behind by another car. The turning car continued on, as [Claborn] and the
driver of the third car pulled over. The driver of the car who hit [her] from
behind provided her with the name Marcus Jones and a phone number, but left before
the police could be contacted. Before he left, [Claborn] took a picture of his
license plate with her phone. The other car returned to the scene, and she also
took a picture of that car's license plate.
State v. Claborn,
supra.
That night, “after unsuccessful attempts to contact Jones,”
Claborn “began to suspect that the accident was the result of a staged scam.” State v. Claborn, supra. She contacted “her insurance company to
assess her options for car repair.” State v. Claborn, supra. After Claborn provided “the adjustor with the
license plate numbers, she was told the first car was registered to an Eshay
Stanley, not Marcus Jones, and the license plate on the second car was invalid.” State
v. Claborn, supra.
At the time all this happened, Claborn was a fraud
investigator for the Ohio Bureau of Workers' Compensation (`BWC). State
v. Claborn, supra. Her job was to “proactively
seek out persons who were defrauding BWC.”
State v. Claborn, supra. Investigators were allowed “to investigate people
for possible fraud, even if a field investigator or supervisor had not made a
formal request”. State v. Claborn, supra.
Part of her job included working on
special projects that involved using obituaries and prison publications to
verify that people who died or were imprisoned were not receiving workers'
compensation benefits. These projects were known to, and approved by, [Claborn’s]
supervisor. To perform these duties, [she] had access to several computer
information services that are not readily accessible to the general public,
namely Accurint and ISOnet.
State v. Claborn,
supra.
The day after the accident, Claborn went to work as
usual. State v. Claborn, supra.
During the day, she spoke to several people, “including a friend, Brenda
Neary, who works in the Ohio Department of Public Safety (`DPS’), about her
accident.” State v. Claborn, supra. Claborn
asked Neary “if she knew how she could get more information on the owner of the
vehicles using the license plate numbers she had in her possession,” but Neary
did not help her. State v. Claborn,
supra. Later that day, Claborn “ran
searches on her work computer using the license plate numbers of the cars
involved in her accident.” State v.
Claborn, supra. Testimony at her trial showed “she used Accurint to run the
searches, although testimony differed as to whether she also ran searches on
ISOnet.” State v. Claborn, supra.
Claborn then “filed the first of two police reports.” State
v. Claborn, supra.
At Claborn’s trial, two of her co-workers testified that she
said “she had a friend at DPS run the plates for her”, but Claborn denied
saying that. State v. Claborn, supra. The
next day, Claborn sent Neary an email saying “`I found the info I was looking
for yesterday!”” State v. Claborn, supra.
Neary sent an email saying “`Wonderful! Sorry I couldn’t be of more help
to you.’” State v. Claborn, supra. Later
that day, Claborn filed “the second police report, using Stanley’s personal
information.” State v. Claborn, supra.
On May 20, Claborn had a recorded conversation with
her insurance company about her claim.
In this conversation, appellant was the first to use the name `Eshay Stanley,’
and she told the investigator she had not spoken to Stanley since the crash.
When she was asked how she obtained Stanley's information, she told the
investigator, ‘I can't tell you where I got the address from. It came from where
his plates are registered.’
State v. Claborn,
supra.
That same day, Daniel Fodor, Claborn’s supervisor, “was
alerted to a potential issue with [Claborn] using state resources to do research
related to her accident”, but also heard that “someone from DPS helped her find
the other driver’s real identity.” State
v. Claborn, supra. The next day,
Fodor asked Claborn about the accident. State v. Claborn, supra. She told him she did not speak to anyone at
DPS about it and “did her research on her own at home”; she also said she did
not know the names of the drivers involved.
State v. Claborn, supra.
Fodor then reviewed Claborn’s usage of
Accurint for that week and found the
two license plate searches [she] ran on May 18. Fodor . . . had never seen a
BWC investigation request that required license plates to be run. Upon
confirming that the license plates were not run as part of a field
investigation request, Fodor contacted his supervisor with the information he
had gathered and his concerns. He obtained the police report associated with [Claborn’s]
accident and confirmed that the plates that were run were the same plates involved
in the accident.
State v. Claborn,
supra.
The information was passed on to Joe Montgomery, a Deputy
Inspector General for BWC, who called Claborn into his office, where she
“engaged in a recorded interview, under oath” with Montgomery and another
man. State
v. Claborn, supra. She admitted she
“`verified the plate number of the gentleman that hit me’” but denied
“`run[ing] any reports”. State v. Claborn, supra. That led to this exchange:
MONTGOMERY: Okay. So you ran the plate
number of the gentleman that hit you from behind?
MONTGOMERY: Okay. And you ran that through Accurint?
CLABORN: Um-hmm.
MONTGOMERY: And you did that at work with your work
computer.
CLABORN: Um-hmm.
MONTGOMERY: Do you admit that that was not related
to state business?
CLABORN: Yes.
State v. Claborn,
supra. Claborn also told Montgomery
“she knew Accurint and ISO net were for business purposes only.” State
v. Claborn, supra.
On appeal, Claborn argued that here convictions on both
offenses were “not supported by sufficient evidence”. State
v. Claborn, supra. In addressing
that argument, the Court of Appeals noted that in analyzing a sufficiency of
the evidence claim, it “ examine[s] the evidence in the light most
favorable to the state” to determine “whether any rational trier of fact could
have found that the state proved beyond a reasonable doubt the essential
elements of the crime.” State v. Claborn, supra. It
will uphold the verdict unless it finds “that reasonable minds could not
arrive at the conclusion reached by the trier of fact.” State
v. Claborn, supra.
As to the
unauthorized use of property conviction, Claborn argued, on appeal, that she
ran
the searches as part of her job to . . . seek out
workers' compensation fraud. [She] claimed that, because the information she
was given at the accident proved to be false, she was convinced her accident
was a part of a scam. . . . [She] thought it was possible that the individuals
involved in her accident could be engaged in other types of fraud, including
workers' compensation fraud. [She] [claims] these searches were . . . part of
her job, and she would not have been punished if she had found workers'
compensation fraud.
State v. Claborn,
supra.
The Court of Appeals rejected this claim, noting that
Claborn’s searches “benefited her, not BWC.”
State v. Claborn, supra. It also found that, based on the evidence
presented at trial, “the jury could have reasonably concluded that [she] obtained
the information on her own, she knew she had no permission to run the searches
for her own benefit, and her actions were unauthorized.” State
v. Claborn, supra.
The court also upheld her conviction on theft in office,
noting that Ohio Code § 2921.41(A)(2) defines the crime of theft in office,
stating that no public official
shall commit any theft offense when the
property or service involved is owned by the state of Ohio. A public official
is defined as `any elected or appointed officer, or employee, or agent of the
state or any political subdivision. . . . ‘ Ohio Code § 2921.01(A). At the time
of the offense, [Claborn] was an employee of BWC, and as such was a public
official under § 2921.41. Claborn, as an employee of the state, committed
a theft offense . . . using the state's computer and the state's access to
Accurint.
State v. Claborn,
supra. The Court of Appeals
therefore found that the evidence was sufficient to find that “Claborn was
guilty of theft in office”. State v. Claborn, supra.
Claborn also made a technical argument, relying on Ohio Code
§ 2941.25(A), which states that “[w]here the same conduct by defendant can be
construed to constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such offenses, but the
defendant may be convicted of only one.”
The statute seems to implement a version of the doctrine of merger of
offenses in criminal law.
Claborn argued that the trial court “erred by convicting . .
. her on the allied offenses of unauthorized use of property and theft in
office”, and the prosecution agreed. State v. Claborn, supra. In analyzing the issue, the Court of Appeals
noted that Ohio Supreme Court articulated a “two-part test to determine whether
two offenses are allied under this statute” in State v. Williams, 124 Ohio St. 3d 381 (2010).
First, we compare the elements of the
two crimes. If the elements of the offenses correspond to such a degree that
the commission of one crime will result in the commission of the other, the
crimes are allied offenses of similar import, and we proceed to the second
step. . . . Second, we review the defendant's conduct to determine whether the
defendant can be convicted of both offenses. If we find that the crimes were
committed separately or that there was a separate animus for each crime, then
the defendant may be convicted of both offenses. . . .
State v. Claborn,
supra.
The Court of Appeals then found that the trial judge erred
in not merging the convictions and sentence Claborn for only one offense:
[T]he elements of the crime of
unauthorized use of property and the elements of the crime of theft in office
correspond to such a degree that they are allied offenses of similar import.
Further, [Claborn’s] searches on her BWC computer caused her convictions for
both crimes. There was no separate animus, as [she] committed both offenses
through this single act. Where there are two allied offenses of similar import,
the state may try both, but if the defendant is convicted of both offenses, the
state must decide which offense will merge into the other, and defendant must
be sentenced for the single offense.
State v. Claborn,
supra.
It therefore remanded the case to the trial judge for “the
proper merger and resentencing of the convictions for unauthorized use of
property and theft in office.” State v. Claborn, supra.
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