STATE OF OHIO, Plaintiff-Appellee, v. AMANDA L. DOBBINS, Defendant-Appellant.
Case No. 11CA6
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY
RELEASED 12/22/11
[Cite as State v. Dobbins, 2011-Ohio-6777.]
Harsha, P.J.
DECISION AND JUDGMENT ENTRY
John A. Bay, BAY LAW OFFICE L.L.C., Columbus, Ohio, for appellant.
James E. Schneider, WASHINGTON COUNTY PROSECUTOR, and Alison L. Cauthorn, WASHINGTON COUNTY ASSISTANT PROSECUTOR, Marietta, Ohio, for appellee.
Harsha, P.J.
{¶1} A jury found Amanda Dobbins guilty of two counts of theft and two counts of forgery. The charges stemmed from an incident in which Dobbins allegedly took two checks from her employer, Corvus Recycling L.L.C., and without permission made them payable to herself in various amounts. Dobbins now appeals from her theft convictions.
{¶2} For each theft conviction the jury found that Dobbins violated
{¶3} Next, Dobbins argues that her convictions for theft under
{¶4} Finally, Dobbins contends that counsel rendered ineffective assistance by failing to object to her theft convictions based on
I. Facts
{¶5} A grand jury indicted Dobbins on two counts of theft, both under
{¶6} Brett Bringardner, owner of Corvus, testified that he hired Dobbins as a bookkeeper in September 2010. Dobbins’ job responsibilities included preparing payroll checks for employees. Dobbins had authority to possess company checks while at the office and except for the signature line, to fill them out using a computer. However, Dobbins did not have permission to sign checks or take them from the office. Dobbins was supposed to prepare the checks at the office and give them to Bringardner for signature. Bringardner testified about two checks made out to Dobbins. On September 7, 2010, he noticed a $3,000 transaction on the general business checking account (as opposed to the payroll account) that he did not recognize. He sent Dobbins a text message about the transaction, which was based on company check number 1301. Dobbins responded via text that she took the money “to invest it -- to put it in an account as an investment to get us a greater return on our capital.” Bringardner did not authorize this transaction, so he stopped payment on the check and terminated Dobbins the next day. Bringardner also testified about a second check, number 1304, made payable to Dobbins. The check was dated September 10, 2010, i.e. after Dobbins’ termination, and made out for $3,200. Bringardner testified that he thought Dobbins signed both checks.
{¶7} Dobbins testified that as part of her job with Corvus, she prepared payroll checks. She entered employee hours in QuickBooks, then printed off and signed the payroll checks, including her own. Dobbins testified that she had Bringardner‘s permission to sign checks. In explaining the $3,000 check to herself, Dobbins testified
{¶8} The jury found Dobbins guilty of the forgery offenses as charged and found her guilty of first-degree misdemeanor thefts, a lesser degree of the charged theft offenses. After the court sentenced Dobbins, she filed this appeal.
II. Assignments of Error
{¶9} Dobbins assigns the following errors for our review:
ASSIGNMENT OF ERROR I:
The trial court violated Amanda L. Dobbins’ right to due process and a fair trial when it entered a judgment of conviction for theft against the manifest weight of the evidence. Fifth and Fourteenth Amendments to the United States Constitution, and Section 16, Article I of the Ohio Constitution. (March 23, 2011 Journal entry: Sentencing Hearing; Sentencing Transcript Tr. 379-387).
ASSIGNMENT OF ERROR II:
The trial court violated Amanda L. Dobbins’ right to due process and a fair trial when it entered judgments of conviction for theft when it failed to instruct the jury on the elements of the offense before it allowed the jury to deliberate and return a verdict. Fifth and Fourteenth Amendments to the United States Constitution, and Section 16 Article I of the Ohio Constitution. (March 23, 2011 Journal Entry: Sentencing Hearing;). Sentencing Transcript Tr. 355-366).
ASSIGNMENT OF ERROR III:
Trial counsel provided ineffective assistance, in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution, for failing to object to the trial court‘s jury instruction on the offense of theft. (March 23, 2011 Journal entry: Sentencing Hearing; Sentencing Transcript Tr. 355-366).
ASSIGNMENT OF ERROR IV:
The trial court committed plain error and denied Ms. Dobbins due process of law by failing to instruct the jury on the elements of the offense before allowing it to deliberate and return a verdict. Fifth and Fourteenth Amendments to the United States Constitution; Section 16, Article I of the Ohio Constitution;
R.C. 2947.23 ;Crim.R. 52(B) . (March 23, 2011 Journal Entry: Sentencing Hearing; Sentencing Transcript Tr. 355-366).
III. Manifest Weight of the Evidence
{¶10} In her first assignment of error, Dobbins contends that her theft convictions under
{¶11} Even in acting as a thirteenth juror we must still remember that the weight to be given evidence and the credibility to be afforded testimony are issues to be determined by the trier of fact. State v. Frazier, 73 Ohio St.3d 323, 339, 1995-Ohio-235, 652 N.E.2d 1000, citing State v. Grant, 67 Ohio St.3d 465, 477, 1993-Ohio-171, 620 N.E.2d 50. The fact finder “is best able to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations in weighing the credibility of the proffered testimony.” Seasons Coal Co. v. City of Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (per curiam). Thus, we will only interfere if the fact finder clearly lost its way and created a manifest miscarriage of justice. Moreover, “[t]o reverse a judgment of a trial court on the weight of the evidence, when the judgment results from a trial by jury, a unanimous concurrence of all three judges on the court of appeals panel reviewing the case is required.” Thompkins, supra, at paragraph four of the syllabus, construing and applying
{¶12} The jury found Dobbins guilty of theft in violation of
{¶14} Dobbins’ argument suggests that given this evidence, she would more properly have been convicted under
{¶15} Dobbins made check 1301 payable to herself and tried to negotiate it while employed as Corvus’ bookkeeper. Bringardner testified that as bookkeeper, Dobbins could possess the checks at the office and prepare payroll checks, i.e. she could fill out blank checks except for the signature line. Thus Dobbins acquired possession of check 1301 lawfully, i.e. she obtained it with consent. And Dobbins had consent to fill out the check, i.e. she exercised power or control over it with consent. However, she acted beyond the scope of that consent when she made the check payable to herself without any company-related justification and signed it. Thus, while Dobbins may have embezzled from Corvus in violation of
{¶16} However, the State presented evidence that Dobbins made check 1304 payable to herself after Bringardner fired her. Bringardner fired Dobbins on September 8, 2010, and the second check was dated September 10, 2010. Although Dobbins may have obtained check 1304 while still employed by Corvus, when Bringardner fired Dobbins he implicitly revoked consent for her to exert control over company checks. See generally State v. Frezgi, Montgomery App. No. 22439, 2008-Ohio-4732, at ¶¶8-9 (finding employer‘s consent for employee to possess company cell phone ended with termination). Thus, the evidence reasonably supports the conclusion that Dobbins, with purpose to deprive Corvus of its property, knowingly exerted control over check number 1304 without consent in violation of
{¶17} Accordingly, we overrule Dobbins’ first assignment of error in part and sustain it in part. We affirm the Count 2 theft conviction based on
IV. Jury Instructions
{¶18} In her second and fourth assignments of error, Dobbins complains that the trial court committed plain error when it convicted her of theft offenses under
{¶19} However, Dobbins points out that the trial court only instructed the jury on
{¶20} “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”
{¶21} For a reviewing court to find plain error: 1.) there must be an error, i.e., “a deviation from a legal rule“; 2.) the error must be plain, i.e., “an ‘obvious’ defect in the trial proceedings“; and 3.) the error must have affected “substantial rights,” i.e., it must have affected the outcome of the proceedings. State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240. Furthermore, the Supreme Court of Ohio has admonished courts that notice of plain error under
{¶22} The State concedes, and we agree, that the trial court never instructed the jury on theft under
{¶23} “Quite simply, a jury cannot convict on an offense for which it was never instructed.” State v. Chamblin, Adams App. No. 02CA753, 2004-Ohio-2252, at ¶14. Regarding Count 1, we already determined that the jury improperly found Dobbins guilty based on
{¶24} Moreover, as to Count 2, even though we upheld the conviction to the
{¶25} Accordingly, we sustain Dobbins’ second and fourth assignments of error. We reverse her theft convictions to the extent they are based on
{¶26} Given our resolution of the first assignment of error, no basis exists for Dobbins’ theft conviction on Count 1, so on remand the trial court must completely discharge Dobbins on that count. However, an alternative basis –
V. Ineffective Assistance of Counsel
{¶27} In her third assignment of error, Dobbins contends that trial counsel rendered ineffective assistance. Dobbins complains that trial counsel should have objected to her theft convictions to the extent they were premised on violations of
VI. Conclusion
{¶28} We overrule Dobbins’ first assignment of error in part and sustain it in part. We sustain her second and fourth assignments of error. This decision renders moot Dobbins’ third assignment of error. Accordingly, we affirm the trial court‘s judgment in part, reverse it in part, and remand this matter for further proceedings consistent with this opinion.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED.
It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN PART and that the CAUSE IS REMANDED. Appellant and Appellee shall split the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Abele, J. & McFarland, J.: Concur in Judgment and Opinion.
For the Court
BY:
William H. Harsha, Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.