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Former Lorain County judge loses appeal in criminal case

Legal News Reporter

Published: August 3, 2017

A former Lorain County Common Pleas Court judge’s convictions for falsifying and tampering with financial disclosure forms were recently upheld by the 9th District Court of Appeals.

However, the appellate panel rejected the state’s cross-appeal claiming the trial court erred by reducing James Burge’s tampering convictions from felonies to misdemeanors.

While serving as a judge from 2007 through 2013, state law required Burge to file annual financial disclosure forms with the Ohio Ethics Commission.

An Ohio Attorney General’s Office investigation showed Burge did not fully divulge information in his 2011, 2012 and 2013 forms.

Burge claimed the omissions were unintentional.

According to appellate records, Burge failed to disclose his interest in Whiteacre North LLC, which held one asset -- a commercial building on Broadway Avenue in Lorain. Whiteacre North rented office space in the commercial building to local attorneys. Burge was a tenant of the building until he was elected judge.

One week after taking the bench, Burge, his wife and attorney Michael Tully assigned their interests in Whiteacre North to another couple. According to the assignment, Shimane and Azuree Smith would pay all of the building’s expenses and buy the building or sell it to a third party.

In 2011, the Smiths were unable to complete the terms of the purchase agreement after financial hardship, and the couple’s interest reverted back to Tully and the Burges.

Several months later, Burge assigned his interest in Whiteacre North to his wife for $1. He then sent a letter to the Lorain County prosecutor that he no longer had any interest in the company or commercial building.

Burge never notified Lorain National Bank of the assignment, and it was never recorded. Therefore, prosecutors argued the bank still considered Burge as a guarantor on the commercial building’s mortgage.

A jury found him guilty in April 2015 of three misdemeanor counts of falsification and three felony counts of tampering with records.

At trial, Ohio Bureau of Criminal Investigation Special Agent Thomas Brokamp testified the original mortgage amount on the commercial building totaled $365,000.

Richard Dove, director of the board of Professional Conduct at the Ohio Supreme Court, testified that if a judge or a judge’s spouse has an ownership interest in real property or a limited liability company during a filing cycle, the judge is required to list that information on his disclosure form – even if the judge or spouse divested themselves of it.

“… Mr. Dove also testified that Burge signed his 2011 financial disclosure form despite a warning statement admonishing public officials that anyone who fails to file a complete financial disclosure form by the appropriate deadline may be subject to criminal penalty,” 9th District Judge Julie Schafer wrote in her 3-0 opinion.

Attorneys J. Anthony Rich and Paul Griffin, who rented office space from Whiteacre North, also testified for the state.

Both attorneys told the jury that Burge approved their applications for appointed counsel fees during his time on the bench. Griffin said if he did not make money, he would not have been able to pay rent, which would have prevented the commercial building from making money.

“… Burge knowingly obtained a benefit for himself, namely a revenue stream for tenants of the commercial building for which he was the primary guarantor,” Judge Schafer’s opinion stated. “This evidence, if believed, also demonstrates that Burge obtained this benefit through deception…”

Burge’s assignment of error that the trial court failed to properly consider the issue of merger was sustained. That matter was remanded.

Meanwhile, the panel dismissed as untimely the state’s argument that the Supreme Court’s decision in Pelfrey (112 Ohio St.3d 422, 2007-Ohio-256) showed the trial court erred by reducing the felony convictions to misdemeanors.

Appellate judges Thomas Teodosio and Lynne Callahan concurred.

The case is cited State v. Burge, 2017-Ohio-5836.