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8 may 2009


Shelby worker's porn case: Felony vacated


Source: www.mansfieldnewsjournal.com Mansfield News Journal - Mansfield,OH,USA


SHELBY - An appeals court has overturned one of two felonies against a city employee who used municipal equipment to access pornographic Web sites, contact a dominatrix and send naked pictures of himself via the Internet.


Richard Lee Wolf admitted to spending more than 100 hours on the city-owned computer while on the clock as a wastewater treatment plant worker.

Convicted in Richland County Common Pleas Court in December 2007, Wolf was sentenced to 15 months in prison and fined $5,000 on two felony counts - theft in office and unauthorized use of property. The Willard man also received 60 days in jail and a $500 fine for soliciting prostitution, a misdemeanor.

Common Pleas Judge James DeWeese issued a judicial release order Aug. 12, reducing Wolf’s prison term at MANCI to 2 1/2 years community control.

The Fifth District Court of Appeals vacated Wolf’s conviction and sentence on the theft in office charge. Two of the three empaneled judges said DeWeese made a mistake when he overruled a defense motion for acquittal on the count.

While prosecutors presented evidence Wolf spent about 100 hours over five months accessing Web sites not related to his job, “there was no evidence presented that his job performance suffered or that he failed to perform his job duties,” Appeals Judge John Wise wrote.

The prosecutor’s office contends such evidence isn’t required under state law.

Appeals Judge William B. Hoffman wrote a concurrent opinion on the prosecution’s theory that time at work not spent on work-related tasks constitutes a theft of service. That’s “a slippery slope” leading to the conclusion that a person who completes all assigned work, but takes time out to read the newspaper, chit chat or work a crossword puzzle could be criminally charged, he wrote. While Wolf’s activities could serve as a basis for job termination, that was not a basis for a theft in office charge, the ruling said.

Judge Patricia Delaney wrote the dissenting opinion, saying she would affirm conviction on all three counts, including theft in office.

“The majority has written an additional element into the theft in office charge that does not exist,” she wrote.

Wolf’s attorney, David Carto, could not be reached Wednesday for comment.

Richland County Assistant Prosecutor Kirsten Pscholka-Gartner said the county will appeal the ruling to the Ohio Supreme Court.

“We proved every element of the charge that we were required to prove,” Pscholka-Gartner said.

She said state law sets no minimum standard for the number of hours a public employee must steal away from work duties to be charged with theft in office.

“The cases that get prosecuted are egregious cases, like this,” the assistant prosecutor said.

If the courts want to seek more clarity from the legislature, she argued, “that’s something the courts can do.”

Shelby police investigated Wolf in 2006, after wastewater treatment plant superintendent Larry Wise cleaned old files out of a plant computer and discovered a nude photo of Wolf. According to court documents, Wolf admitted to joining the “Adult Friend Finder” Web site, and using a plant computer to upload and send nude photos of himself to women while on the clock.

A Westerville police detective reported finding 703 pornographic photos on the computer, along with several sexually explicit e-mails in which Wolf solicited the services of an apparent dominatrix named Madam Patrice.

According to court documents, Wolf admitted accessing various porn Web sites from December 2005. He estimated he spent more than 100 hours on the Internet - which prosecutors valued at $2,392 in lost work time.

The panel overruled or declared moot eight different areas in which Wolf’s attorney claimed DeWeese erred.