State v. ArnoldState v. Arnold
Dated: November 18, 2009
BELFANCE, Judge.
{¶1} Defendant-Appellant Steven Arnold appeals from the decision of the Summit County Court of Common Pleas. For reasons set forth below, we affirm.
FACTS
{¶2} Arnold was an employee of United Capital Mortgage of Ohio (“United Capital“). In August 2008, Arnold cashed two checks, totaling $3,676.68, from Titanium Title made payable to United Capital and deposited a portion of each into his personal account and retained the remaining proceeds in cash. Arnold was charged with one count of theft in violation of
{¶3} Arnold argues that the trial court erred in denying his Crim.R. 29 motion as the State presented insufficient evidence to maintain a conviction for theft. We disagree.
{¶4} “When reviewing the trial court‘s denial of a Crim.R. 29 motion, this [C]ourt assesses the sufficiency of the evidence “to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.“” State v. Flynn, 9th Dist. No. 06CA0096-M, 2007-Ohio-6210, at ¶8, quoting State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. In reviewing challenges to sufficiency, we must view the evidence in a light most favorable to the prosecution. State v. Cepec, 9th Dist. No. 04CA0075-M, 2005-Ohio-2395, at ¶5, citing Jenks, 61 Ohio St.3d at 279.
{¶5} We note that while Arnold did make a Crim.R. 29 motion at the end of the State‘s case, which was denied, he did not renew the motion after presenting his case. In the past, in similar situations, we have found waiver “when a defendant who is tried before a jury puts on a defense and fails to renew h[is] [or her] motion for acquittal at the close of all the evidence.” See State v. Thornton, 9th Dist. No. 23417, 2007-Ohio-3743, at ¶13. However, in Thornton, after examining Supreme Court precedent and the precedent of other districts, we concluded that because a conviction based on insufficient evidencе would violate due process and “almost always amount to plain error[,]” we would consider Thornton‘s assignment of error concerning sufficiency despite the fact that she failed to renew her Crim.R. 29 motion. (Internal citations and quotations omitted.) Id. at ¶¶ 13-14. Thus, we will consider Arnold‘s assignment of error.
{¶6} Pursuant to
{¶7} We initially note that in his merit brief to this Court Arnold recites
{¶8} The State presented the testimony of several witnesses to support its case. Keith Allman, the then branch mаnager of the United Capital location where Arnold worked as a loan
{¶9} Allman testified that sometime in June or July 2008, United Capital‘s CEO contacted him to discuss Arnold‘s performance as a branch manager. Allman was informed that due to Arnold‘s inability to meet expenses and make a profit, United Capital would be terminating Arnold‘s position as branch manager and closing his joint account with Fifth Third. Allman stated that he then agreed to bring Arnold on as a loan officer at Allman‘s branch and Arnold agreed to take the position. Allman testified that he specifically told Arnold that he was not going to be a branch manager anymore, and instead would be a loan officer.
{¶10} Marvin Reed, the owner of Titanium Title, testified regarding the two checks at issue that his company wrote to United Capital. The proceeds of the checks were from loans that Arnold originated. Reed indicated to Arnold that Reed was going to send the two checks down to United Capital‘s corporate office in Cincinnati. Reed said that the general procedure was for him to either send the checks to Cincinnati or to give the checks to the proper branch manager for deposit into the corporate account. Arnold responded that he would pick up the
{¶11} United Capital‘s corporate office contacted both Allman and Reed concerning the two checks. Reed testified that the individual at the corporate office indicated that the checks and the loan documents were never received. Reed retrieved the cancelled checks and saw that Arnold had cashed them. Allman stated that when he spoke with Arnold, Arnold “kept talking in circles.” Arnold told Allman that he tried to put the checks in the joint account with Fifth Third, but found the account had been closed. Arnold then had his wife cash the checks and put some of the money in his own account with TeleCommunity Credit Union. Allman spoke with Arnold a second time and indicated that if Arnold returned the money, United Capital would just call it a mistake and no charges would be filed. Arnold refused to comply and said that the money was his. Allman then contacted the police.
{¶12} A detective with the Fairlawn Police Dеpartment testified that Allman reported the theft of the two checks by Arnold. The detective spoke with Arnold and Arnold stated that his wife deposited the checks and that the money was his. When questioned further, Arnold
{¶13} The two tellers from TeleCommunity Crеdit Union who cashed the checks at issue also testified. They stated that Arnold himself cashed the checks and that they had clearly made a mistake in allowing Arnold to cash the checks since they were made payable only to United Capital and not Arnold. Arnold received the majority of the proceeds in cash and deposited only a small pоrtion.
{¶14} We conclude that the State met its burden. The testimony indicates that Arnold knowingly cashed checks which were not payable to him and retained the proceeds. It can be inferred from the fact that Arnold first attempted to put the checks in the joint account with Fifth Third that Arnold knew that he was not directly entitled to the money. Also, even if Arnold initially believed that the money was his that belief became unreasonable when Allman talked to Arnold about the checks and indicated that everything would be alright if Arnold returned the money. Arnold‘s subsequent refusal to return the funds leads to the inference that his purpose was to deprive United Capital of funds that he knew did not belong to him and that he held the funds without consent of the owner. Further, thе indictment lists United Capital as the owner of the proceeds of the two checks. The testimony also evidences that Allman, who at the time of the incident was Arnold‘s boss and also the branch manager, was a representative of United Capital who had the authority to give Arnold permission to handle the checks. Allman specifically testified that he did not givе Arnold permission to handle the checks and did not give Arnold permission to cash them and retain the proceeds in his personal account or otherwise. When viewed in a light most favorable to the State, the evidence presented leads to the conclusion that the money was not Arnold‘s, that Arnold knew, or should have known, that the
MANIFEST WEIGHT
{¶15} Arnold contends in his second assignment of error that his conviction for theft in violation of
“‘an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resоlving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.‘” Cepec at ¶6, quoting State v. Otten (1986), 33 Ohio App.3d 339, 340.
We must only invoke this discretionary power in “extraordinary circumstances when the evidence presented weighs heavily in favor of the defendant.” Flynn at ¶9, citing Otten, 33 Ohio App.3d at 340.
{¶16} In addition to the abоve testimony presented by the State, Arnold himself testified, and also presented the testimony of a customer whose loan he originated, resulting in Titanium Title issuing one of the checks Arnold was charged with stealing.
{¶17} Arnold‘s testimony contradicts that of Allman. Arnold testified that he was never a branch manager for United Capital and that he was always only a loan officer. Arnold further testified that neither he nor Allman could be branch managers because neither location was properly licensed by the State of Ohio. Arnold stated that while Allman did ask Arnold to become a loan officer at Allman‘s location, Arnold refused to do so until Allman got his branch license. Arnold believes Allman never received that license. Arnold stated that he was paid
{¶18} Arnold believed he was entitled to the money because even though United Capital was directly his employer, his job was like “being self-employed.” So Arnold believed that because he originated the loans, essentially he was United Capital for purposes of cashing the
{¶19} Arnold‘s customer testified only that he dealt with Arnold during the process of getting the loan and that he never worked with Allman.
{¶20} “‘[I]n reaching its verdict, the jury is free to believe, all, part, or none of the testimony of each witness.‘” Thornton at ¶21, quoting Prince v. Jordan, 9th Dist. No. 04CA008423, 2004-Ohio-7184, at ¶35, citing State v. Jackson (1993), 86 Ohio App.3d 29, 33. Here it is clear that the jury believed the testimony of the State‘s witnesses and not the testimony of Arnold when it found Arnold guilty. Both Reed and Allman testified that Arnold did not have permission to cash the checks for his personal use and Allman testified that Arnold did not have permission at all tо handle the checks. Arnold does not deny signing and cashing the checks which were made payable to United Capital from Titanium Title, providing evidence that he knowingly exerted control over the funds. Nor does Arnold contend that he was acting with the consent of the owner. His sole contention on appeal is that he is the owner. However, Arnold‘s own testimоny that he originally tried to deposit the two checks into the joint account, which Allman testified would have been proper procedure had Arnold been a branch manager and not a loan officer, could reasonably lead the jury to believe that Arnold knew that the checks did not belong to him and that they were in fact the property of United Capital. Further, Arnold‘s refusal to return the money when asked leads to the inference that it was Arnold‘s purpose to deprive
CONCLUSION
{¶21} In light of the foregoing, we affirm the judgment of the Summit County Court of Common Pleas.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately uрon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
DICKINSON, J.
CONCUR
APPEARANCES:
EDDIE SIPPLEN, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant Prosecuting Attorney, for Appellee.