State v. AndersonState v. Anderson
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-514840
RELEASED: April 15, 2010
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ATTORNEYS FOR APPELLANT
Christopher R. Lenahan
13001 Athens Avenue, Suite 200
Lakewood, Ohio 44107
Scott D. Claussen
Law Office of Scott Claussen
8813 Memphis Villas Blvd.
Brooklyn, Ohio 44144
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Lorraine Debose
Asst. County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court’s decision. See
PATRICIA ANN BLACKMON, J.:
{¶ 1} Appellant Theresa Anderson appeals her convictions for receiving stolen property, forgery, and aggravated theft. She assigns the following two errors for our review:
“I. There was insufficient evidence to support the guilty verdicts for [sic] and appellant’s conviction was against the manifest weight of the evidence.”
“II. Appellant received ineffective assistance of counsel in violation of his rights pursuant to the Sixth Amendment to the United States Constitution and Section 10, Article 1 of the Ohio Constitution.”
{¶ 2} Having reviewed the record and relevant law, we affirm Anderson’s convictions. The apposite facts follow.
Facts
{¶ 3} Anderson is the sister of the victim, Michael Boyd. On February 17, 2008, Boyd went to Anderson’s home to visit. Also living with Anderson at the time were Boyd’s son, Charles Vance, and Boyd’s ex-wife, Sharon Davison. Boyd spent most of the time drinking in the kitchen with Anderson.
{¶ 4} Boyd told Anderson that he had received several checks from a temporary agency for work he had performed. Anderson asked Boyd if she could have one of the checks, to which he responded “No.” He then left the
{¶ 5} Upon returning home, he realized that he had forgotten his bag. He returned to retrieve it, but Anderson would not allow him into the home. She told him that she did not have his bag and that she would call the police if he did not leave. He called Anderson the next day, and she again told him she did not have the bag.
{¶ 6} Several days later, Boyd called the temporary agency to stop payment on the checks. The agency told him that two of the checks had been deposited into Theresa Anderson’s account; therefore, it could not stop payment or reimburse him for those checks. The camera at the bank photographed Anderson’s car at the ATM machine at the time of the deposits.
{¶ 7} Boyd admitted at trial that the signatures on the back of the check did not look like his sister’s handwriting. An expert called at trial stated that it was inconclusive whether Anderson’s signatures on the back of the checks were written by her because he only had copies of the checks, not the originals; also, disguised handwriting is difficult to compare with natural handwriting. He testified that he was unable to perform a comparison of Boyd’s forged
{¶ 8} Anderson’s roommate, Sharon Davison, testified that she was formerly married to Boyd, but lived with Anderson and took care of her because Anderson suffers from multiple sclerosis. She stated that Vance had access to Anderson’s car and that he had previously signed checks on his aunt’s behalf. She also stated that Anderson lost her ATM card at the same time that the checks went missing. According to Davison, Anderson’s sole source of income was from monthly disability checks.
{¶ 9} Anderson’s niece, Veronica Adams, testified that she had previously seen Vance using Anderson’s car. She also stated that Vance has a prior conviction for computer tampering.
{¶ 10} Based on the evidence, the jury found Anderson guilty on all counts. The court sentenced her to one year of community control.
Evidence was Insufficient and against the Manifest Weight
{¶ 11} In her first assigned error, Anderson contends that her convictions were not supported by sufficient evidence and were against the manifest weight of the evidence.
“Pursuant to
Criminal Rule 29(A) , a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt.”
{¶ 13} See, also, State v. Apanovitch (1987), 33 Ohio St.3d 19, 23, 514 N.E.2d 394; State v. Davis (1988), 49 Ohio App.3d 109, 113, 550 N.E.2d 966.
{¶ 14} Bridgeman must be interpreted in light of the sufficiency test outlined in State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus, in which the Ohio Supreme Court held:
“An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.)”
{¶ 15} Anderson contends her convictions were not supported by sufficient evidence because two other people, Vance and Davison, had access to her ATM card and car. While two other people did have access to her ATM card and could have possibly driven her car, the checks were deposited into
{¶ 16} While the handwriting expert could not determine definitely whether the signature was Anderson’s, he also stated that he could not definitely exclude the signature as hers. Moreover, the fact that the checks were deposited into Anderson’s account indicates that Anderson knew of the theft and could have had someone else endorse the checks on her behalf.
{¶ 17} Therefore, based on the fact that there is evidence that Anderson and her brother argued over the checks, Anderson hid the bag containing the checks, the checks were later deposited into Anderson’s account, and her car is depicted on the ATM photograph taken at the time of the deposits, sufficient circumstantial evidence was presented that Anderson took the checks and deposited them into her account. Because circumstantial evidence is given the same weight as direct evidence, sufficient evidence was presented in support of Anderson’s convictions. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph one of the syllabus.
{¶ 18} Anderson also contends her convictions were not supported by the weight of the evidence. In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, the Ohio Supreme Court addressed the standard for review for a criminal manifest weight challenge, as follows:
“The criminal manifest-weight-of-the-evidence standard was explained in State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. In Thompkins, the court distinguished between sufficiency of the evidence and manifest weight of the evidence, finding that these concepts differ both qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541. The court held that sufficiency of the evidence is a test of adequacy as to whether the evidence is legally sufficient to support a verdict as a matter of law, but weight of the evidence addresses the evidence’s effect of inducing belief. Id. at 386-387, 678 N.E.2d 541. In other words, a reviewing court asks whose evidence is more persuasive -- the state’s or the defendant’s? We went on to hold that although there may be sufficient evidence to support a judgment, it could nevertheless be against the manifest weight of the evidence. Id. at 387, 678 N.E.2d 541. ‘When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a “thirteenth juror” and disagrees with the factfinder’s resolution of the conflicting testimony.’ Id. at 387, 678 N.E.2d 541, citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652.”
{¶ 19} However, an appellate court may not merely substitute its view for that of the jury, but must find that “in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541. Accordingly, reversal on manifest weight grounds is reserved for “the exceptional case in which the evidence weighs heavily against the conviction.” Id.
{¶ 21} When there are two conflicting versions of events, neither of which is unbelievable, it is not our province to choose which one should be believed. State v. Gore (1999), 131 Ohio App.3d 197, 201, 722 N.E.2d 125. Rather, we defer to the jury, who was best able to weigh the evidence and judge the credibility of witnesses by viewing the demeanor, voice inflections, and gestures of the witnesses testifying. See Seasons Coal Co. v. Cleveland (1994), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273; State v. DeHass (1967), 10 Ohio St.2d 230, 231, 227 N.E.2d 212. The jury may have disbelieved the testimony of Davison and Adams because they obviously shared a close relationship with Anderson. Accordingly, Anderson’s first assigned error is overruled.
Ineffective Assistance of Counsel
{¶ 22} In her second assigned error, Anderson contends her counsel was ineffective.
{¶ 24} Anderson contends her counsel was ineffective for failing to present evidence that once she discovered that deposits other than her social security check were made to her account, she notified the bank. She also contends that counsel failed to present evidence that Boyd told her that he believed his son deposited the checks. We cannot rely upon her unsworn statements at the sentencing hearing regarding this evidence. State v. Jeffries (June 28, 2001), Cuyahoga App. No. 78070. Accordingly, Anderson’s second assigned error is overruled.
{¶ 25} Judgment affirmed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
PATRICIA ANN BLACKMON, JUDGE
CHRISTINE T. MCMONAGLE, P.J., and JAMES J. SWEENEY, J., CONCUR