[Cite as State v. King, 2026-Ohio-3225.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 115384
v. :
BRANDON KING, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: August 20, 2026
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-24-695872-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Andrew Rogalski, James D. May, and
Daniel T. Van, Assistant Prosecuting Attorneys, for
appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Robert McCaleb, Assistant Public Defender, for appellant.
DEENA R. CALABRESE, J.:
Defendant-appellant Brandon King (“King”) appeals the trial court’s
denial of his Batson challenge, the sufficiency of the evidence, fines imposed at sentencing, and the imposition of alcohol and drug testing community-control
sanctions. For the reasons stated below, we reverse the fine pursuant to R.C.
2929.28(A)(2) for a violation of R.C. 102.03(E) and remand to the trial court for
resentencing on Count 8. The remainder of the trial court’s orders are affirmed.
I. Relevant Facts and Procedural History
The charges in this case stem from events that occurred while King was
the mayor of East Cleveland (“East Cleveland” or “the City”). The Ohio Ethics
Commission (“the Commission”) investigated King’s conduct as mayor of East
Cleveland after receiving several filed complaints. The investigation centered on
allegations that King benefitted personally by engaging in business dealings with
companies in which he had an ownership interest while acting as mayor of East
Cleveland. The companies are King Management Group (“KMG”) and American
Merchandising Services (“AMS”). The Commission also investigated allegations
that King improperly allowed East Cleveland Council Member Ernest Smith
(“Smith”) to use East Cleveland-owned vehicles and an East Cleveland-funded fuel
card for personal use.
As a result of the investigation, the Commission determined that King
violated ethics laws that govern business dealings of elected public officials and
presented its findings and conclusions to the Cuyahoga County Prosecutor’s Office
(“the State”). Consequently, on October 10, 2024, a Cuyahoga County Grand Jury
charged King in a 12-count indictment. Smith was also charged for his use of the
East Cleveland-owned vehicles and fuel card. King’s charges were as follows:
1. Theft in office in violation of R.C. 2921.41(A)(1), a fourth-degree
felony;
2. Having an unlawful interest in a public contract in violation of
R.C. 2921.42(A)(1), a fourth-degree felony;
3. Having an unlawful interest in a public contract in violation
of R.C. 2921.42(A)(1), a fourth-degree felony;
4. Having an unlawful interest in a public contract in violation of
R.C. 2921.42(A)(4), a first-degree misdemeanor;
5. Having an unlawful interest in a public contract in violation of
R.C. 2921.42(A)(4), a first-degree misdemeanor;
6. Representation by a public official or employee in violation of
R.C. 102.03(D), a first-degree misdemeanor;
7. Representation by a public official or employee in violation of
R.C. 102.03(D), a first-degree misdemeanor;
8. Representation by a public official or employee in violation of
R.C. 102.03(E), a first-degree misdemeanor;
9. Representation by a public official or employee in violation of
R.C. 102.03(E), a first-degree misdemeanor;
10. Filing a false disclosure statement in violation of R.C. 102.02(D), a
first-degree misdemeanor;
11. Theft in office in violation of R.C. 2921.41(A)(1), a fourth-degree
felony; and
12. Soliciting improper compensation in violation of
R.C. 2921.43(A)(1), a first-degree misdemeanor.
The case was tried before a jury in May 2025. Smith’s case was tried at
the same time. The jury heard testimony from numerous witnesses, including
Connie McDonald (“McDonald”), Molly Bruns (“Bruns”), Todd Clark (“Clark”),
Georgina Mavros (“Mavros”), Dr. Patricia Blochowiak (“Blochowiak”), Justyn Anderson (“Anderson”), Eric Brewer (“Brewer”), Barbara Mattei-Smith (“MatteiSmith”), Charles Iyahen (“Iyahen”), and James Hood (“Hood”). The relevant
testimony and evidence presented at the trial were as follows.
A. State’s Witnesses
1. Connie McDonald
McDonald testified that she is a special investigator with the
Commission and was the lead investigator on this case. McDonald’s investigation
centered around allegations that two of King’s family businesses, KMG and AMS,
were doing business with East Cleveland while King was the mayor. Specifically,
KMG was renting office space and parking spaces to East Cleveland, and AMS was
providing products and services to East Cleveland.
McDonald testified about her investigation of KMG. She found KMG’s
articles of organization that were first filed in 2000 and showed that King owned a
50 percent interest in KMG and each of his two brothers owned 25 percent shares.
King was the managing partner and tax-matters partner. An amendment signed by
King was filed on December 13, 2018, two years after King became mayor, to
designate April Thompson as the managing partner and tax-matters partner
effective February 28, 2019. The amendment also stated that King “after effective
date herein shall remain available to assist with management issues and tax matters,
however shall have no leasing authority.” McDonald noted that these amendments
did not divest King of his interest in KMG or remove him from the business. She also learned that East Cleveland paid KMG rent for office space and parking spaces
for the Domestic Violence Department (the “DVD”).1
On January 11, 2019, the lease between KMG and East Cleveland was
amended. April Thompson signed on behalf of KMG, and Deborah Black signed for
the DVD. The amendment was backdated to October 1, 2018. East Cleveland
continued to make rental payments to KMG after King became mayor.
In spring 2024, East Cleveland City Council voted not to appropriate
funds in the budget for the DVD’s lease. King vetoed the city council vote and as
part of his veto wrote in the amount of the rent. He then wrote a veto letter dated
April 1, 2024, to city council. McDonald stated that this was an ethics violation
because King, acting as mayor, was authorizing a payment from East Cleveland to
his private business. City council then voted to override King’s veto. In July 2024,
East Cleveland made another rental payment to KMG.
McDonald subpoenaed financial records for KMG as part of her
investigation. She learned that the funds East Cleveland paid for the DVD’s lease
were deposited into a KMG bank account that listed King as the sole authorized user.
She also learned that King signed checks to pay KMG’s expenses from the same
account.
1 Throughout the case, the Domestic Violence Department is also referred to as the
Domestic Violence Unit, the Domestic Violence Fund, and the Domestic Violence Network.
McDonald also testified about the financial disclosure statements
King filed with the Commission each year.2 The financial disclosure statements filed
in 2019 through 2023 stated that King’s top two sources of income came from KMG
and AMS. The 2024 financial disclosure statement listed KMG and AMS as King’s
two primary sources of income, but the listings were crossed out. However, King
included the two companies in the list of businesses on the same form.
McDonald also testified about her investigation of AMS. She testified
that King filed articles of incorporation with the secretary of state for Brandon King
Ltd.’s AMS-05 on February 10, 2004. On December 24, 2007, King filed an
amendment that changed the name to American Merchandising Services. On
April 5, 2024, he filed a dissolution.
East Cleveland made payments for purchases from AMS between
March 2019 and February 2022. The total amount of the payments was $5,813.07.
This includes a $578 order for detergent purchased at King’s direction.
McDonald ultimately determined during her investigation that King
had violated ethics laws, and the case was referred to the Cuyahoga County
Prosecutor’s Office.
2. Molly Bruns
Bruns testified that she is an investigative attorney with the
Commission. She was tasked with investigating the financial disclosure statements
2 Bruns later testified that the financial disclosure statements are required filings
pursuant to R.C. 102.02 for certain public officials and employees to disclose personal financial information and fiduciary relationships.
that King filed with the Commission. As a council member, and later as mayor of
East Cleveland, King was required to file a statement annually. King filed statements
for 2014 and 2015 as a council member. In 2016, he was appointed as mayor and
thus his 2016 statement, filed in 2017, was filed as mayor of East Cleveland.
Bruns’s investigation revealed that King’s financial disclosure
statements filed for 2014, 2015, and 2016 did not disclose an interest in any
businesses, but disclosed KMG and AMS as sources of income. During the same
time period, the secretary of state’s website indicated that there were between seven
and nine businesses in King’s name.
On May 1, 2019, King filed amended versions of his 2014 through 2017
financial disclosure statements. The original statements did not list an interest in
any businesses. The amended statements, filed in 2019, disclosed nine businesses,
including AMS and KMG. Based on this information, Bruns determined that King’s
statements originally filed for the years 2014 through 2017 were not accurate.
3. Dr. Patricia Blochowiak
Blochowiak testified that she is a city council member in East
Cleveland. She explained that East Cleveland receives grant money from various
sources that is appropriated in East Cleveland’s budget. This includes grant money
for the DVD. East Cleveland City Council voted against appropriating funds to pay
the lease for the office space and parking spaces occupied by the DVD when voting
on the proposed 2024 budget because they believed that East Cleveland’s payments
to King’s business were a conflict of interest. King, acting as mayor, vetoed city council’s vote and wrote $14,181.24, the amount of the DVD’s annual rent, into the
budget. Council then voted to override King’s veto. King then introduced a
resolution to city council to change appropriations in the budget.
4. Justyn Anderson
Anderson testified that he was employed as the deputy clerk of council
for East Cleveland for approximately three months in 2023 and for all of 2024. He
stated that while Smith was a city council member, Anderson observed an East
Cleveland-owned vehicle at Smith’s home on a frequent basis. He also observed
Smith driving the East Cleveland-owned vehicle for personal use. No other council
members drove East Cleveland-owned vehicles during that time.
5. Eric Brewer
Brewer testified that he was previously the mayor of East Cleveland.
He explained the work and the process associated with city council’s approval of East
Cleveland’s annual budget. He also explained that grant money is adopted into East
Cleveland’s budget and is subject to approval by council. During Brewer’s tenure as
mayor, an ordinance was passed that restricted certain individuals from driving East
Cleveland-owned vehicles home and restricted East Cleveland-owned vehicles for
personal use. Per the ordinance, council members were only permitted to keep East
Cleveland-owned vehicles at their personal residence by legislative action.
6. Barbara Mattei-Smith
Mattei-Smith testified that she was the chair for the Financial
Planning and Supervision Commission (“FPS Commission”) for East Cleveland. The FPS Commission was impaneled to oversee and monitor activities in East
Cleveland because the City was in fiscal emergency. East Cleveland receives money
through a federal grant for the DVD. The money is given to East Cleveland to be
appropriated by city council. Mattei-Smith identified a rental check sent by East
Cleveland to pay the lease to KMG for the DVD’s office space in July 2024.
Mattei-Smith also testified that a special audit by the Ohio Auditor’s
Office resulted in personal assessments against King and Smith for fuel purchases
that Smith charged to an East Cleveland-owned fuel card. East Cleveland’s finance
director paid the debt to the Ohio Attorney General’s Office with East Cleveland
funds. That money was ultimately returned to East Cleveland, and King and Smith
had not paid the assessments against them as of the date of the trial.
7. Todd Clark
Clark testified that he is an investigator with the Ohio Auditor of State.
He was assigned to investigate a complaint regarding King’s and Smith’s actions.
The investigation focused on the time from January 2018 through March 2022. In
October or November 2020, East Cleveland City Council passed a resolution
requesting that an East Cleveland-owned vehicle parked at Smith’s home be
returned to the City. On November 9, 2020, King, acting as mayor, vetoed the
resolution. As part of Clark’s investigation, he drove to Smith’s home in September
and October 2021 and observed an East Cleveland-owned vehicle, specifically a
white Dodge Durango, parked in the driveway. When he drove to Smith’s home in
October 2021, Clark observed Smith exit his home, enter the East Cleveland-owned vehicle, and drive to the local high school to drop a child off there. Smith then drove
to a parking lot. Smith spent $6,791 on an East Cleveland-funded fuel card that was
assigned to him to fuel the East Cleveland-owned vehicles, first a Ford Taurus and
later a Dodge Durango.
The investigation resulted in a finding for recovery against King and
Smith instructing East Cleveland to collect $6,791 from them for improper use of an
East Cleveland-owned vehicle and an East Cleveland-funded fuel card. When the
Ohio Attorney General’s Office attempted to collect the debt from King and Smith,
it was ultimately paid by East Cleveland funds. At the time of trial, King and Smith
had not paid the debt.
8. Charles Iyahen
Iyahen testified that he was the finance director for East Cleveland
from November 2018 through 2023. During that time, he was often sent invoices
from AMS for orders that did not go through the typical prior authorization
procedure. AMS was owned by King and his brother. Iyahen testified that April
Thompson signed the lease for the DVD office space as the agent for KMG. Iyahen
later learned that she is the mother of King’s daughter.
9. James Hood
Hood testified that he is the deputy director and general counsel at the
Commission. He stated that ethics laws apply to grant money because it is
considered public funds. The investigation revealed that after city council voted to override King’s veto, East Cleveland issued a check for the DVD’s rent payment to
KMG.
10. Georgiana Mavros
Mavros testified that she is a forensic audit manager with the Ohio
auditor of state. Her investigation in this case revealed that Smith charged $6,791
to an East Cleveland-funded fuel card over a four-year period. Smith was the only
council member that used an East Cleveland-funded fuel card. She also learned that
King vetoed a resolution passed by city council to have Smith return the vehicle to
East Cleveland and that Smith continued to use the vehicle and the fuel card. The
auditor of state issued a finding of recovery directing Smith, who used the vehicle,
and King, who authorized the use of the vehicle, to return the $6,791 to East
Cleveland. East Cleveland later paid the finding for recovery.
B. The Verdict and Sentence
The jury found King not guilty on Counts 7 and 11 and guilty as
charged on the remainder of the indictment.
On July 9, 2025, the trial court held a sentencing hearing. The trial
court sentenced King to three years of community control and probation. As part of
the community control, King was ordered to submit to regular alcohol testing,
random drug testing, maintain employment, and complete 100 hours of court
community work service. The trial court also ordered King to pay a fine of $3,845.41
on Count 1 and a fine of $5,813.07 on Count 12, and to pay $18,194.99 to the Ohio
Ethics Commission pursuant to R.C. 102.99(E). King was disqualified from holding any public office, employment, or position of trust in Ohio for a period of seven years
from the date of the conviction on Count 12, and a lifetime ban on Count 1.
This appeal followed. King raises the following five assignments of
error for our review:
1. The trial court erred when it denied the defense’s Batson challenge
to the government’s removal of all Black men from the jury.
2. The trial court erred in the imposition of a $5,813.07 fine on Count 8,
a misdemeanor of the first degree.
3. The trial court erred when it imposed an obligation on Mr. King to
pay $18,194.99 to the Ohio Ethics Commission, pursuant to R.C.
102.99(E), despite the fact that the Ethics Commission failed
adequately to document the amount of expenses claimed.
4. The trial court erred in imposing alcohol testing and random drug
testing conditions in the absence of any suggestion whatsoever,
anywhere in the record, that alcohol or drug abuse had any bearing on
Mr. King’s alleged conduct.
5. The convictions in this case were obtained on insufficient evidence.
II. Law and Analysis
We consider King’s assignments of error out of order for ease of
discussion.
A. Batson Challenge
In his first assignment of error, King asserts that the trial court erred
when it denied his challenge pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), to
the State’s removal of a black man from the jury.
In this case, the trial court and trial counsel questioned the
prospective jurors during voir dire. Several jurors were removed for cause and pursuant to peremptory challenges. The trial court indicated prior to any
peremptory challenges that if any party used a peremptory challenge to excuse a
black venire member, that they would be required to give a race-neutral reason
immediately. Relevant here is the removal of juror No. 16, who was one of three
black venire members and the only black male.
The trial court and the State questioned juror No. 16 extensively
during voir dire. They elicited the following information: juror No. 16 was employed
by the City of Cleveland as a commissioner of physical assets and other activities and
was formerly the commissioner of neighborhood development. He has worked on
and off as a commissioner from 2010 to 2016, and continuously since 2016. His
department is funded primarily by federal grants. Juror No. 16’s employment
involved dealing with public finance and working with city council members. Juror
No. 16 is familiar with the Commission because he was required to consult with the
Commission when work on his home was funded by the department where he is
employed. The State also asked the following questions that explored whether juror
No. 16 could be impartial if he was impaneled in this case:
[THE STATE]: Do you still understand that all of the evidence in the
case is what comes here in this courtroom and that your experience in
Cleveland might be different, and even though you can’t, you know, you
can’t push aside or completely ignore your experience, your decision in
this case has to be based just upon the facts in this courtroom with the
law that the Judge provides?
Can you accept that?
JUROR NO. 16: Yes, I can.
[THE STATE]: So if you’re a juror in this case and back deliberating
and one of your fellow jurors asks you to, say, you’ve got familiarity with
municipal governments, you know, how does it really work, or what’s
the way it’s supposed to happen?
What will you do as a juror then?
JUROR NO. 16: It works differently in different cities. So it’s — there’s
— there’s the rule of law. There’s regulations, and then there’s how you
do the business of the day, so that comes through a policy.
[THE STATE]: And do you — so would you be able to sort of, for the
purposes of deliberation and determining what the evidence is, what
the facts are and what the credibility of the evidence is in this case, will
you be able to set aside how it works with your department with the
City of Cleveland and solely make a decision based upon the facts here
in this courtroom and the law that [the trial court judge] gives you?
JUROR NO. 16: Yes. Absolutely.
[THE STATE]: Any pause or anything else along those lines?
JUROR NO. 16: No.
(Tr. 270-275.)
The State used a peremptory challenge to remove juror No. 16. The
State followed the trial court’s instructions and gave the following reason for the
excusal of juror No. 16:
We are asking this Court to excuse Juror No. 16. We are aware based
upon the Court’s instruction that Juror No. 16 is African American, so
the State of Ohio, the race neutral reason for excusing Juror No. 16 has
to do with his role as a commissioner of the neighborhood
development.
You will recall that I spent some time asking him questions about what
his job duties are. I anticipate that this Court is going to, and this jury
is going to hear a lot of evidence about a division of East Cleveland that
receives grant money and how that grant money comes to council and
has to be appropriated.
A lot of the stuff that Juror No. 16 deals with in his professional capacity
is a lot of parallels and a lot of similarities to evidence that I expect this
jury to hear, and so it is the juror’s profession, his position that is what
causes the State of Ohio to exercise this peremptory and has nothing to
do with his race.
The State of Ohio has no intention from talking, in conferring with [cocounsel] and Mr. Hood, the State of Ohio does not anticipate using one
of its remain[ing] peremptory challenges on any other African
American members of the jury.
I would note that there currently are two other African American
jurors; No. 1 and No. 9, that are in the box that the State has no
intention of using a challenge on.
King’s trial counsel objected to the excusal of juror No. 16, stating as
follows:
Yes. My concern has been jurors talk about different bias they learn as
children and so forth. That was more probing. I don’t recall any
probing of the juror that asked him with his profession, could he set
that aside and only deal with the facts in this case.
So if the State was concerned about that, I would assume that they
would have did more probing to ask him, to give him the same
opportunity the other jurors had to express that he was able to set his
employment experience aside and only deal with the facts in this case.
It is true that there are two other African Americans, but there’s no
other African American males in the jury.
The trial court overruled trial counsel’s objection, and juror No. 16
was excused from the venire. The State excused a total of two prospective jurors
using peremptory strikes.
The United States Supreme Court has established that a prosecutor’s
racially motivated exercise of peremptory challenges violates the Equal Protection
Clause of the Fourteenth Amendment. State v. Gowdy, 88 Ohio St.3d 387, 391-392 (2000), citing Batson, 476 U.S. 79 at 94. The Court also established a three-step,
burden-shifting procedure to determine whether a peremptory challenge is racebased. Id.
The United States Supreme Court has explained the Batson procedure
as follows:
Under Batson, once a prima facie case of discrimination has been
shown by a defendant, the State must provide race-neutral reasons for
its peremptory strikes. The trial judge must determine whether the
prosecutor’s stated reasons were the actual reasons or instead were a
pretext for discrimination.
Flowers v. Mississippi, 588 U.S. 284, 298 (2019), citing Batson at 97-98.
The United States Supreme Court has stated that appellate review
should give great deference to the trial court’s determination, stating that “[s]ince
the trial judge’s findings in the context under consideration here largely will turn on
evaluation of credibility, a reviewing court ordinarily should give those findings
great deference.” Flowers at 303, citing Batson at 98, fn. 21. “On appeal, a trial
court’s ruling on the issue of discriminatory intent must be sustained unless it is
clearly erroneous.” Id., citing Snyder v. Louisiana, 552 U.S. 472, 477 (2008). This
court has previously found that ‘“generally striking only one prospective juror who
belongs to a protected group is not enough to draw an inference [of discriminatory
intent] without other evidence.’” State v. Moore, 2024-Ohio-1783, ¶ 19 (8th Dist.),
quoting Nguyen v. Frauenheim, 45 F.4th 1094, 1101 (9th Cir. 2022), citing Wade v.
Terhune, 202 F.3d 1190, 1198 (9th Cir. 2000).
In Flowers, the United States Supreme Court identified examples of
evidence a defendant can present to support a claim that a prosecutor’s peremptory
strikes were made on the basis of race. Flowers at 301-302. The list is as follows:
• statistical evidence about the prosecutor’s use of peremptory strikes
against black prospective jurors as compared to white prospective
jurors in the case;
• evidence of a prosecutor’s disparate questioning and investigation of
black and white prospective jurors in the case;
• side-by-side comparisons of black prospective jurors who were struck
and white prospective jurors who were not struck in the case;
• a prosecutor’s misrepresentations of the record when defending the
strikes during the Batson hearing;
• relevant history of the State’s peremptory strikes in past cases; or
• other relevant circumstances that bear upon the issue of racial
discrimination.
Id., citing Foster v. Chatman, 578 U.S. 488 (2016); Snyder; Miller-El v. Dretke, 545
U.S. 231 (2005); Batson, 476 U.S. 79.
In this case, King asserts that the trial court erred when it denied his
Batson challenge for two reasons. First, King asserts that the State did not question
juror No. 16 about whether he could set aside his work experience if he was
impaneled as a juror in this case. However, the record reflects that the State did ask
juror No. 16 these exact questions. In addition, although the State questioned juror
No. 16 more than any other juror about his employment, he was also the only juror
whose employment was similar to the evidence presented in this case.
Second, King asserts that the trial court erred when it denied his
challenge to the State’s excusal of juror No. 16 because he was the only black male
venire member. King concedes that two black venire members remained; however,
he urges this court to extend Batson to prohibit excusal of a juror based on both race
and gender. Indeed, Batson has been extended to prohibit gender-based
peremptory challenges in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994).
However, as King concedes, Batson has never been extended to prohibit peremptory
challenges of a venire member based on the intersectionality of race and gender. See
Moore, 2024-Ohio-1783, at ¶ 23 (8th Dist.).
Even if King could meet his burden to establish a prima facie case for
race discrimination, the State offered a race-neutral reason for excusing juror
No. 16. The State argued that there were many parallels between juror No. 16’s
employment experience and the evidence that would later be presented to the jury.
In fact, King concedes in his appellate brief that juror No. 16’s prior employment has
“‘parallels’ and ‘similarities’ to this case.” Thus, we find the State’s race-neutral
reason for excusing juror No. 16 is supported by the record.
King asserts that he was prejudiced by the trial court’s voir dire
procedure. We do not agree. There is no dispute that the trial court did not follow
the usual three-step procedure mandated by Batson in this case. The trial court
notified counsel prior to any peremptory excusals that any dismissal of a black
venire member would require the State to immediately give a race-neutral reason
for the strike. The State, when it sought excusal of juror No. 16, gave its race-neutral reason for the strike before any Batson challenge was raised by King. The trial court
then gave King an opportunity to respond prior to ruling on the proposed excusal.
Therefore, King had an opportunity to make a prima facie case of discrimination
prior to the trial court’s ruling. We agree that the trial court’s procedure was not
typical; however, King has not demonstrated any prejudice caused by the trial
court’s atypical procedure.
We cannot say that the trial court’s ruling on King’s Batson challenge
was clearly erroneous. Therefore, King’s first assignment of error is overruled.
B. Sufficiency of the Evidence
In his fifth assignment of error, King asserts that the convictions in
this case were obtained on insufficient evidence and asserts five separate reasons
that the evidence was insufficient. First, King asserts that the evidence was
insufficient to prove a “purpose to deprive” in Count 1. Second, King asserts that the
evidence was insufficient to prove that he “employed the authority” of his office to
secure authorization of a public contract in Counts 2 through 5. Third, King asserts
that the evidence was insufficient to prove that he used his role to “secure a thing of
value” sufficient to create a substantial and improper influence on him, as charged
in Counts 6, 8, and 9. Fourth, King asserts that the evidence was insufficient to
prove that he “knowingly” filed a false statement in Count 10. Fifth, and last, King
asserts the evidence was insufficient to prove that he knowingly gave Smith “any
compensation” other than what was legally permitted to perform his official duties.
We have previously found that “[a]n appellate court’s function when
reviewing the sufficiency of the evidence to support a criminal conviction is to
examine the evidence admitted at trial to determine whether such evidence, if
believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt.” State v. Spencer, 2024-Ohio-5809, ¶ 15 (8th Dist.), citing State
v. Murphy, 91 Ohio St.3d 516 (2001). The appellate court views the evidence “‘in a
light most favorable to the prosecution’” to determine whether “‘any rational trier of
fact could have found the essential elements of the crime proven beyond a
reasonable doubt.’” Spencer at ¶ 15, quoting State v. Jenks, 61 Ohio St.3d 259 (1991),
at paragraph two of the syllabus. The inquiry is whether the prosecution has met its
“burden of production” at trial. State v. Dyer, 2007-Ohio-1704, ¶ 24 (8th Dist.),
citing State v. Thompkins, 78 Ohio St.3d 380, 390 (1997). “‘In essence, sufficiency
is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict
is a question of law.’” Cleveland v. Williams, 2024-Ohio-3102, ¶ 10 (8th Dist.),
quoting Thompkins at 386; see also Cleveland v. Neal, 2024-Ohio-1467, ¶ 26 (8th
Dist.). Appellate courts are not to assess “whether the State’s evidence is to be
believed, but whether, if believed, the evidence against a defendant would support a
conviction.” Dyer at ¶ 24.
1. Theft in Office
First, we address King’s assertion that the evidence was insufficient to
prove a “purpose to deprive” in Count 1.
In Count 1, King was found guilty of theft in office in violation of R.C.
2921.41(A)(1). R.C. 2921.41(A)(1) states, “No public official or party official shall
commit any theft offense, as defined in division (K) of section 2913.01 of the Revised
Code, when . . . the offender uses the offender’s office in aid of committing the
offense or permits or assents to its use in aid of committing the offense[.]” In this
case, the relevant theft offenses, from among those found in R.C. 2913.01(K), are set
forth in R.C. 2913.02(A)(1) through (3), which provides as follows:
(A) No person, with purpose to deprive the owner of property or
services, shall knowingly obtain or exert control over either the
property or services in any of the following ways:
(1) Without the consent of the owner or person authorized to give
consent;
(2) Beyond the scope of the express or implied consent of the owner or
person authorized to give consent; [or]
(3) By deception[.]
(Emphasis added.)
In this case, the evidence supports King’s conviction on Count 1. The
record reflects that the following was established at trial: While King was mayor of
East Cleveland, he vetoed city council’s decision not to appropriate funds for the
DVD’s rent payment. After city council voted to override King’s veto, a rent payment
was issued by East Cleveland to KMG. At that time, KMG was owned, in part, by
King and he benefitted financially from the payment. The evidence shows that King,
acting as a public official, knowingly obtained control over public funds without
authorization or consent.
King does not dispute that KMG received the lease payment after city
council voted to override the payment. He asserts that the DVD’s grant money was
managed by East Cleveland, but was not East Cleveland’s money, and thus there was
no purpose to deprive East Cleveland of money. However, King does not provide
any legal authority to support this contention.
When viewed in a light most favorable to the prosecution, the evidence
is sufficient to establish that King had the “purpose to deprive” East Cleveland of the
rent payment.
2. Having Unlawful Interest in a Public Contract
Second, King asserts that the evidence was insufficient to prove that
he “employed the authority” of his office to secure authorization of a public contract
in Counts 2-5. Counts 2 and 3 involve violations of R.C. 2921.42(A)(1) and Counts
4 and 5 involve violations of R.C. 2921.42(A)(4). In addition, Counts 2 and 4 involve
KMG’s business dealings with East Cleveland and Counts 3 and 5 involve AMS’s
business dealings with East Cleveland.
R.C. 2921.42 provides, in relevant part, as follows:
(A) No public official shall knowingly do any of the following:
(1) Authorize, or employ the authority or influence of the public
official’s office to secure authorization of any public contract in which
the public official, a member of the public official’s family, or any of the
public official’s business associates has an interest;
(4) Have an interest in the profits or benefits of a public contract
entered into by or for the use of the political subdivision or
governmental agency or instrumentality with which the public official
is connected[.]
In this case, the evidence supports King’s convictions on Counts 2-5.
The record reflects that the following was established at trial: King had an interest
in both AMS and KMG and both companies were involved in public contracts with
East Cleveland. Further, King, acting as mayor of East Cleveland, vetoed city
council’s decision not to appropriate funds for the lease payment to KMG on behalf
of the DVD. After city council overrode the veto, KMG continued to bill East
Cleveland for the office space and to accept the lease payment. In addition, the
record reflects that the lease payment was deposited into a bank account controlled
exclusively by King. The record also reflects that East Cleveland did not purchase
supplies from AMS until King became mayor. After he became mayor, AMS
repeatedly invoiced and accepted payments from East Cleveland. In addition, King,
acting as mayor of East Cleveland, directed the purchase of cleaning supplies from
AMS. Thus, King employed the authority of his office to secure public contracts.
When viewed in a light most favorable to the prosecution, the evidence
is sufficient to support a finding that King “employed the authority” of his office to
secure authorization of public contracts in Counts 2-5.
3. Representation by a Public Official or Employee
Third, King asserts that the evidence was insufficient to prove that he
used his role to “secure a thing of value” sufficient to create a substantial and
improper influence on him, as charged in Counts 6, 8, and 9.
Count 6 involved a violation of R.C. 102.03(D) and Counts 8 and 9
involved violations of R.C. 102.03(E). R.C. 102.03 provides, in relevant part,
(D) No public official or employee shall use or authorize the use of the
authority or influence of office or employment to secure anything of
value or the promise or offer of anything of value that is of such a
character as to manifest a substantial and improper influence upon the
public official or employee with respect to that person’s duties.
(E) No public official or employee shall solicit or accept anything of
value that is of such a character as to manifest a substantial and
improper influence upon the public official or employee with respect to
that person’s duties.
In this case, the evidence supports King’s convictions on Counts 6, 8,
and 9. The record reflects that the following was established at trial: For Count 6,
King vetoed city council’s decision not to appropriate funds for the DVD’s rent
payment to KMG. KMG continued to accept rent payments from East Cleveland for
the DVD’s office space and parking spaces after city council overrode the veto. For
Count 8, AMS sold cleaning products to East Cleveland while King was mayor. This
included $578 for detergent that East Cleveland purchased from AMS at King’s
direction. For Count 9, testimony at trial established that the rental contract
between KMG and the City was renewed while King was mayor.
The public contracts involved in Counts 6, 8, and 9 are things of value.
When viewed in a light most favorable to the prosecution, the evidence is sufficient
to support a finding that King used his role to “secure a thing of value” sufficient to
create a substantial and improper influence on him, as charged in Counts 6, 8, and 9.
4. Filing a False Disclosure Statement
Fourth, King asserts that the evidence was insufficient to prove that he
“knowingly” filed a false financial disclosure statement in Count 10. King further
asserts that any discrepancies in his financial disclosure statements were the result
of misstatements or misunderstandings and not intentional concealment.
R.C. 102.02(D) states, “No person shall knowingly file a false
statement that is required to be filed under this section.” Pursuant to R.C.
2901.22(B):
A person acts knowingly, regardless of purpose, when the person is
aware that the person’s conduct will probably cause a certain result or
will probably be of a certain nature. A person has knowledge of
circumstances when the person is aware that such circumstances
probably exist.
In this case, the evidence supports King’s conviction on Count 10. The
record reflects that King filed financial disclosure statements in the years 2014
through 2017 that did not list his sources of income or list businesses that he had an
interest in as required pursuant to R.C. 102.02(D). During the same years, the
secretary of state’s website listed between seven and nine businesses, including
KMG and AMS, in King’s name. When viewed in a light most favorable to the
prosecution, the evidence is sufficient to support a finding that King “knowingly”
filed false financial disclosure statements.
5. Soliciting Improper Compensation
Fifth, and last, King asserts that in Count 12, the evidence was
insufficient to prove that he knowingly gave Smith “any compensation” other than
what was legally permitted to perform official duties.
Count 12 involves R.C. 2921.43(A)(1), which states:
(A) No public servant shall knowingly solicit or accept, and no person
shall knowingly promise or give to a public servant, either of the
following:
(1) Any compensation, other than as allowed by divisions (G), (H), and
(I) of section 102.03 of the Revised Code or other provisions of law, to
perform the public servant’s official duties, to perform any other act or
service in the public servant’s public capacity, for the general
performance of the duties of the public servant’s public office or public
employment, or as a supplement to the public servant’s public
compensation[.]
In this case, the evidence supports King’s conviction on Count 12. The
record reflects that typically East Cleveland city council members did not use cityowned vehicles or city-funded fuel cards. King, acting as mayor, vetoed city council’s
resolution requesting that an East Cleveland-owned vehicle used by Smith be
returned to East Cleveland. When viewed in a light most favorable to the
prosecution, the evidence is sufficient to support a finding that King knowingly gave
Smith compensation other than what was legally permitted to perform his official
duties.
We find that for each of the five issues King raises in his fifth
assignment of error, when viewed in a light most favorable to the prosecution, the evidence is sufficient to support the convictions in this case. Therefore, King’s fifth
assignment of error is overruled.
C. Fine for Violation of R.C. 102.03(E)
In his second assignment of error, King asserts that the trial court
erred when it imposed a $5,813.07 fine on Count 8. The jury found King guilty of
Count 8, representation by a public official or employee in violation of R.C.
102.03(E), a misdemeanor of the first degree. The State concedes that the statutory
maximum fine pursuant to R.C. 2929.28(A)(2) for a violation of R.C. 102.03(E) is
$1,000. After reviewing the statute and the facts of the case, we find that the trial
court erred when it imposed a fine of $5,814.07 on Count 8. Therefore, King’s
second assignment of error is sustained, and the case is remanded to the trial court
for resentencing on Count 8.
D. Ohio Ethics Commission Application
In his third assignment of error, King asserts that the trial court erred
when it imposed an obligation on him to pay $18,194.99 to the Ohio Ethics
Commission pursuant to R.C. 102.99(E).
R.C. 102.99(E) provides as follows:
Upon application of the Ohio ethics commission, the court shall order
a person who is convicted of a violation of section 102.021, 102.03, or
102.04 of the Revised Code to pay the costs incurred to investigate and
prosecute the case. The amount ordered under this division shall not
exceed the amount a person unlawfully secured, solicited, or accepted;
the amount a person received as improper compensation, as an
unlawful honorarium, or from the unlawful sale of goods or services; or
the amount otherwise applicable under section 102.021, 102.03, or
102.04 of the Revised Code. These costs are in addition to any other
cost or penalty provided in the Revised Code or any other provision of
law.
Two investigators from the Commission conducted investigations in
this case. On June 6, 2025, the Commission filed an application pursuant to R.C.
102.02(G)(2) and 102.99(E) with the trial court requesting that King be ordered to
pay the costs incurred by the Commission’s staff to investigate and prosecute the
case. Attached to the application was an itemization and summary of the costs
incurred by the Commission associated with the investigation and prosecution of
the case. The costs incurred by the two investigators were $12,521.85 and $5,673.14,
for a total of $18,194.99. On July 9, 2025, the trial court granted the Commission’s
application and ordered King to pay the Commission $18,194.99 pursuant to R.C.
102.99(E).
King asserts that the statute specifies that the Commission can recover
costs associated with investigating violations of R.C. 102.021, 102.03, or 102.04, but
that the Commission’s application appears to also attempt to recover costs
associated with other violations. King further asserts that the Commission failed to
adequately document the amount of expenses claimed, meaning that the
Commission’s application possibly included costs associated with Count 7, for which
he was found not guilty.
King concedes that he did not object to the Commission’s application
to recover costs. Indeed, the record reflects that King did not file a response to the Commission’s application and did not raise any objections to the Commission’s
application during the sentencing hearing.
This court has previously found that “[a] party cannot raise new issues
or arguments for the first time on appeal; failure to raise an issue before the trial
court results in a waiver of that issue for appellate purposes.” State v. Smith, 2020-Ohio-1026, ¶ 13 (8th Dist.); see also State v. Washington, 2026-Ohio-740, ¶ 13 (8th
Dist.), and State v. Dorroh, 2021-Ohio-12, ¶ 39 (8th Dist.).
King urges this court to review his third assignment of error for plain
error. However, King raises the plain-error argument for the first time in his
appellate reply brief. This court has previously found that “an appellate court will
not consider an argument presented for the first time in appellant’s reply brief.”
Long v. KeltanBW, Inc., 2024-Ohio-2359, ¶ 8 (8th Dist.), citing State v. Whitaker,
2022-Ohio-2840, ¶ 52. Therefore, we decline to review for plain error because King
raised the argument for the first time in his appellate reply brief.
We find that King waived any argument that the trial court erred when
it granted the full amount requested by the Commission’s application pursuant to
R.C. 102.99(E) because he did not raise an objection to the Commission’s
application with the trial court. Thus, King’s third assignment of error is overruled.
E. Conditions of Community Control
In his fourth assignment of error, King asserts that the trial court erred
when it imposed regular alcohol testing and random drug testing as conditions of
his community control.
We review the trial court’s imposition of community-control sanctions
under an abuse-of-discretion standard. State v. Ballish, 2026-Ohio-503, ¶ 10, citing
State v. Talty, 2004-Ohio-4888, ¶ 10; see also Lakewood v. Hartman, 86 Ohio
St.3d 275 (1999). An abuse of discretion occurs when a court exercises “its
judgment, in an unwarranted way, in regard to a matter over which it has
discretionary authority.” Johnson v. Abdullah, 2021-Ohio-3304, ¶ 35.
Until recently, courts typically applied the test laid out in State v.
Jones, 49 Ohio St.3d 51 (1990), to determine whether community-control
conditions reasonably relate to the goals of misdemeanor sentencing. The test
directs that courts consider whether a condition of probation “(1) is reasonably
related to rehabilitating the offender, (2) has some relationship to the crime of which
the offender was convicted, and (3) relates to conduct which is criminal or
reasonably related to future criminality and serves the statutory ends of probation.”
Id. at 53
After Jones, the Ohio General Assembly overhauled misdemeanor
sentencing and, in R.C. 2929.26 through 2929.28, enumerated nonexhaustive lists
of residential, nonresidential, and financial sanctions that the court may impose.
Ballish at ¶ 15. In Ballish, the Ohio Supreme Court declined to apply the Jones test
in certain cases, finding that
[b]ecause misdemeanor sentencing is a function of statute and the
General Assembly has enumerated conditions that a sentencing court
may impose, we decline to apply the Jones test to conditions that the
legislature has expressly authorized. Instead, when a condition of
probation has been expressly authorized by statute, we review a
sentencing court’s imposition of such conditions only under an abuseof-discretion standard.
Ballish at ¶ 24.
The Ballish Court clarified that “the test articulated in Jones remains
relevant to those conditions devised by a sentencing court that are not expressly
authorized by law.” Ballish, 2026-Ohio-503, at ¶ 26.
In this case, the trial court imposed alcohol testing and random drug
testing as conditions of King’s community control. As noted above, Ohio’s
misdemeanor sentencing, in R.C. 2929.26 through 2929.28, lists authorized
conditions of community control. R.C. 2929.27(A)(8) specifically authorizes a
sentencing court to impose a “term of drug and alcohol use monitoring, including
random drug testing.” In addition, R.C. 2929.25(C)(2) authorizes that “[i]n the
interests of doing justice, rehabilitating the offender, and ensuring the offender’s
good behavior, the court may impose additional requirements on the offender.”
The Ballish Court also stated that “‘a court will not be found to have
abused its discretion in fashioning a community-control sanction as long as the
condition is reasonably related to’ the goals of probation.” Ballish at ¶ 10, quoting
State v. Chapman, 2020-Ohio-6730, ¶ 8. This court has previously found that the
goals of community control are ‘“rehabilitation, administering justice, and ensuring
good behavior.’” State v. Mahon, 2018-Ohio-295, ¶ 7 (8th Dist.), quoting Talty,
2004-Ohio-4888, at ¶ 16.3
3 The Ballish Court uses the terms probation and community control interchangeably. See Ballish at ¶ 1.
In this case, the imposition of alcohol testing and random drug testing
are obviously intended to rehabilitate, administer justice, and ensure good behavior.
We, therefore, find that these conditions were appropriate and were not an abuse of
discretion. In addition, the sanctions are expressly authorized by R.C.
2929.27(A)(8). Thus, King’s fourth assignment of error is overruled.
III. Conclusion
For the reasons stated above, we reverse the fine imposed pursuant to
R.C. 2929.28(A)(2) for a violation of R.C. 102.03(E) and remand to the trial court
for resentencing on Count 8. The remainder of the trial court’s orders are affirmed.
It is ordered that appellee and appellant share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
DEENA R. CALABRESE, JUDGE
EILEEN T. GALLAGHER, P.J., and
MARY J. BOYLE, J., CONCUR