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Court can't order town official to pay for fuel he was not convicted of stealing, judges rule

JESSICA SHAMBAUGH
Special to the Legal News

Published: May 4, 2015

A Worthington Township trustee found guilty of stealing gasoline can be ordered to pay restitution for fuel that was the subject of his offense but no more, according to the 5th District Court of Appeals.

In an opinion released recently, the three-judge appellate panel sustained Edwin Swank’s argument that he was unlawfully ordered to pay restitution for fuel taken over the course of 14 months.

The district court found that Swank was only convicted of taking fuel for two months and ruled that the Richland County Court of Common Pleas should have limited its restitution order to that time frame.

“Appellant was convicted only of taking fuel in the months of November and December of 2012. The court therefore committed plain error in ordering him to pay restitution for a time period stretching from October of 2012 through November of 2013,” Judge Craig Baldwin wrote for the 5th District.

The facts of the case state that Swank became a Worthington Township trustee in 1984.

He was eventually named acting road superintendent and was required to spend a great deal of time driving township roads in his personal vehicle and overseeing road workers.

In 2012, a township road worker noticed that fuel was being removed from the township’s diesel fuel tank after the road workers left for the day and before they returned to work in the morning.

The worker started keeping records of all fuel being put into township trucks and equipment but noticed that the missing fuel was still unaccounted for.

In November 2012, the employees set up a deer trail camera to monitor the fuel tank.

The camera’s footage depicted Swank putting township diesel fuel into his personal pickup truck on six occasions.

They found that 197 gallons of fuel were taken between November and December 2012.

Based on those findings, Swank was charged with two counts of theft in office. He pleaded not guilty and the matter proceeded to a bench trial in the Richland County court.

At trial, Swank admitted that he put 197 gallons of township fuel in his personal truck. Still, he insisted that his actions did not constitute theft.

Instead, Swank insisted that he and the other township trustees had a “gentlemen’s agreement” that while he was the acting road superintendent he could put township fuel in his truck in lieu of payment.

He asserted that the fuel was the township’s way of compensating him for his travel throughout the area to check the roads and supervise road workers.

Dale Pore, one of Swank’s fellow township trustees, testified to confirm that the trustees had such an agreement with Swank.

However, he pointed out that they had never discussed the agreement at a meeting or officially adopted it as a resolution.

Nevertheless, the trial court found Swank guilty. It sentenced him to two years of community control and ordered him to pay $4,069 in restitution for fuel taken between October 2012 and November 2013.

On appeal, Swank first argued that the restitution order was “excessively harsh.”

Upon review, the appellate judges found that at sentencing, the state presented evidence that Swank took $748 worth of fuel between November and December 2012.

However, it then requested restitution for $4,069 for gas that was taken from October 2012 and November 2013.

Because Swank did not object to that amount during sentencing, the appellate judges found that they were limited to reviewing the order for plain error.

They determined that the governing section of the Ohio Revised Code specifically stated that an offender must make restitution for the property that is the subject of the offense for which they were convicted.

It did not permit a trial court to order restitution for property outside that conviction.

Based on that finding, they sustained Swank’s first assignment of error.

He next argued that his trial counsel was ineffective for failing to object to the restitution amount and the prosecutor committed misconduct by seeking restitution for a crime for which Swank was not convicted.

“These assignments are rendered moot by our decision in the first assignment of error,” Baldwin stated.

Finally, Swank argued that his conviction was against the manifest weight and sufficiency of the evidence because the state failed to prove that he acted knowingly.

He asserted that he did not take the fuel to deprive the township of its property, but instead only took it as part of an agreement with the other trustees.

At trial, the common pleas judge specifically stated that the amount of fuel Swank took was not consistent with his proclaimed use.

That judge emphasized that no agreement concerning Swank using the fuel appeared in the minutes of the trustees, nor was there an adopted resolution related to the matter.

The lower court also found that none of the township employees seemed to know about the agreement.

The appellate judges found that the trial court was in the best position to determine witness credibility. They also ruled that it had properly explained its decision.

Based on those findings, they affirmed the lower court’s ruling.

“The judgment convicting appellant of theft in office is affirmed. The portion of the sentencing ordering him to pay restitution in the amount of $4,069 is reversed,” Baldwin stated.

The judges remanded the case so that the Richland County court could recalculate the amount of restitution.

Judges John Wise and Patricia Delaney concurred.

The case is cited State v. Swank, 2015-Ohio-1500.

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