Summary
In State v. Ferrette (1985), 18 Ohio St.3d 106, the Supreme Court of Ohio held that security personnel of the State Lottery Commission had no statutory duty to enforce the laws of Ohio nor were they vested with the powers to arrest.
Summary of this case from State v. McClurkinOpinion
No. 84-1112
Decided July 3, 1985.
Lottery Commission — Security personnel are not law enforcement officers — Forgery and uttering — R.C. 2913.31 — Alteration of lottery ticket.
O.Jur 3d Criminal Law § 329.
1. The security personnel of the State Lottery Commission are not law enforcement officers.
O.Jur 3d Criminal Law §§ 2075, 2078.
2. The alteration of a lottery ticket to create the impression that it has never been cashed and may still be redeemed, and the presentation of such ticket for purposes of receiving cash, knowing that it has been so altered, constitute forgery under R.C. 2913.31(A)(2) and uttering under R.C. 2913.31(A)(3).
APPEAL from the Court of Appeals for Cuyahoga County.
On May 9, 1982, a woman entered the Convenient Food Mart in Lyndhurst, Ohio and cashed nineteen winning instant lottery tickets for $2 each. The cashier noticed that part of the tickets had been altered with a "white-out" solution, and she informed the assistant store manager of this alteration.
The same woman returned the following day and attempted to cash more winning lottery tickets. The assistant store manager noticed white-out on the back of the tickets and refused to accept them. The woman then retrieved the tickets and left. The assistant store manager marked down the license plate number of the woman's car as it drove away.
Upon being notified of these events, the State Lottery Commission sent an investigator to the store to pick up the questionable tickets. A check of the license plate number revealed that the car was registered to appellant, Connie M. Ferrette.
On May 20, 1982, Fred Schuller, security specialist for the commission, and Raymond Mosshart, its director of security, jointly questioned appellant regarding the nineteen altered lottery tickets. Appellant was herself an employee of the commission at the time. Mosshart took notes during this interview, which he later reduced to a written statement. This statement set forth appellant's assertions that she had found the tickets in a discarded bag and, not being able to tell if they had yet been redeemed, cashed them herself at the Convenient Food Mart.
On May 24, 1982, these same investigators again interviewed appellant. She was asked to read this written statement and to make any changes she felt were necessary. This she did, initialling each change she made. She refused, however, to sign the statement. No Miranda warnings were given to appellant on either occasion.
Appellant was subsequently indicted on one count of theft in office, nineteen counts of forgery, and nineteen counts of uttering. The theft in office count was eventually dismissed, but appellant was convicted by a jury of all the remaining counts. The written statement and certain other oral statements obtained from appellant during the May 20 and May 24 interviews had been admitted into evidence at trial.
The court of appeals affirmed appellant's convictions, rejecting her argument that all counts of the indictment should have been dismissed because the State Lottery Commission cannot be the object of a fraud. The court further held that the trial court did not err in overruling appellant's motion to suppress the statements she had made to the commission's security personnel, ruling that Miranda warnings were not required under these facts. The court similarly upheld the trial court's refusal to grant appellant's motion for acquittal on the basis, inter alia, that the alteration of a lottery ticket which has already been cashed constitutes forgery, even though the ticket was genuine. Finally, the court rejected appellant's argument that the trial court erred in imposing time limits on closing arguments.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal.
John T. Corrigan, prosecuting attorney, and Mark Sullivan, for appellee.
Yelsky Lonardo Co., L.P.A., and Leonard W. Yelsky, for appellant.
The first question posed in this appeal is whether the indictments for forgery and uttering in violation of R.C. 2913.31 should have been dismissed on the ground that the State Lottery Commission cannot be the object of a fraud. We hold that the trial court correctly overruled appellant's motion to dismiss the indictments.
R.C. 2913.31(A) provides in part that "[n]o person, with purpose to defraud, * * * shall do any of the following * * *." Ohio law does not require that there be an object to the commission of a fraud. R.C. 2913.01(B) states: "`Defraud' means to knowingly obtain, by deception, some benefit for oneself or another, or to knowingly cause, by deception, some detriment to another." Clearly, the existence of an object to the fraud is not required. Thus, appellant's argument that the Ohio Lottery Commission is not a legal entity capable of being the object of a fraud is without merit.
The next question for our consideration is whether the failure of the commission's security personnel to apprise appellant of her Miranda rights prior to questioning her requires the suppression of her oral statements and the related written statement. We hold that the trial court did not err in overruling appellant's motion to suppress this evidence.
As noted above, the statements in question were made to security personnel of the State Lottery Commission. In Miranda v. Arizona (1966), 384 U.S. 436, 444, the United States Supreme Court stated:
"Our holding * * * briefly stated * * * is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. * * *" (Emphasis added.)
The investigators who questioned appellant had no statutory duty to enforce the laws of this state nor were they vested by statute with the power to arrest. Therefore, the security personnel of the State Lottery Commission are not law enforcement officers. Therefore, they were not required to give Miranda warnings at any time before or during their questioning of appellant in connection with their investigation of suspected criminal activity.
R.C. 2901.01(K) provides:
"`Law enforcement officer' means any of the following:
"(1) A sheriff, deputy sheriff, constable, marshal, deputy marshal, municipal police officer, or state highway patrolman;
"(2) An officer, agent, or employee of the state or any of its agencies, instrumentalities, or political subdivisions, upon whom, by statute, a duty to conserve the peace or to enforce all or certain laws is imposed and the authority to arrest violators is conferred, within the limits of such statutory duty and authority;
"(3) A mayor, in his capacity as chief conservator of the peace within his municipality;
"(4) A member of an auxiliary police force organized by county, township, or municipal law enforcement authorities, within the scope of such member's appointment or commission;
"(5) A person lawfully called pursuant to section 311.07 of the Revised Code to aid a sheriff in keeping the peace, for the purposes and during the time when such person is called;
"(6) A person appointed by a mayor pursuant to section 737.01 of the Revised Code as a special patrolman or officer during riot or emergency, for the purposes and during the time when such person is appointed;
"(7) A member of the organized militia of this state or the armed forces of the United States, lawfully called to duty to aid civil authorities in keeping the peace or protect against domestic violence;
"(8) A prosecuting attorney, assistant prosecuting attorney, secret service officer, or municipal prosecutor."
Appellant's further argument that the statements were involuntarily made was not previously raised and cannot be considered by this court. See State v. Williams (1977), 51 Ohio St.2d 112 [5 O.O.3d 98], at paragraph two of the syllabus.
Appellant further contends that her convictions for forgery and uttering cannot stand because the lottery tickets were in fact genuine. However, the fact that the tickets were genuine does not affect the validity of appellant's convictions.
R.C. 2913.31(A) states in part:
"No person, with purpose to defraud, or knowing that he is facilitating a fraud, shall do any of the following:
"* * *
"(2) Forge any writing so that it purports to be genuine when it is actually spurious, * * *;
"(3) Utter, or possess with purpose to utter, any writing which he knows to have been forged."
"Forge" is defined in R.C. 2913.01(G):
"`Forge' means to fabricate or create, in whole or in part and by any means, any spurious writing, or to make, execute, alter, complete, reproduce, or otherwise purport to authenticate any writing, when such writing in fact is not authenticated thereby."
"Utter" is defined in R.C. 2913.01(H):
"`Utter' means to issue, publish, transfer, use, put or send into circulation, deliver or display."
The alteration of a lottery ticket to create the impression that it has never been cashed and may still be redeemed, and the presentation of such ticket for purposes of receiving cash, knowing that it has been so altered, constitute forgery under R.C. 2913.31(A)(2) and uttering under R.C. 2913.31(A)(3). Appellant's argument to the contrary is not well-taken.
We express no opinion as to whether forgery under R.C. 2913.31(A)(2) and uttering under R.C. 2913.31(A)(3) constitute allied offenses of similar import pursuant to R.C. 2941.25.
Nor are we convinced by appellant's contention that the trial court abused its discretion in imposing a time limit on the closing arguments in this case. The trial court in a criminal proceeding may in its discretion limit the duration of closing arguments, as long as such limitation is reasonable under the circumstances. Weaver v. State (1874), 24 Ohio St. 584, paragraph one of the syllabus. We have examined the record and have found that defense counsel was allowed some additional time to complete his argument after his thirty-minute limit had expired. Moreover, no objection to the limitation appears in the record. Thus, appellant has waived her right to object to the alleged error. State v. Williams (1977), 51 Ohio St.2d 112 [5 O.O.3d 98], paragraph one of the syllabus.
We also reject appellant's argument that neither she nor her handwriting was properly identified. It is for the trier of fact to weigh the evidence and to judge the credibility of the witnesses. State v. DeHass (1967), 10 Ohio St.2d 230 [39 O.O.2d 366], paragraph one of the syllabus.
Lastly, appellant contends that the trial court erred in overruling her motion for a new trial based on newly discovered evidence. Our perusal of the record reveals that appellant failed to assign this as error before the court of appeals. Therefore, we need not consider it now. State v. Williams, supra, at paragraph two of the syllabus.
Based on the foregoing, the judgment of the court of appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS and WRIGHT, JJ., concur.