STATE OF OHIO v. TIMOTHY A. DRAKE
C.A. CASE NO. 24859
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
August 17, 2012
2012-Ohio-3718
DONOVAN, J.
T.C. NO. 11CR141. Criminal appeal from Common Pleas Court.
Rendered on the 17th day of August, 2012.
MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee/Cross-Appellant
ANTONY A. ABBOUD, Atty. Reg. No. 0078151, 130 W. Second Street, Suite 1818, Dayton, Ohio 45402
Attorney for Defendant-Appellant/Cross-Appellee
DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of Timothy Drake,
{¶ 2} Drake was initially charged by way of Complaint in Dayton Municipal Court with one count of identity fraud, and the matter was then bound over to the common pleas court. On April 1, 2011, Drake was indicted on one count of identity fraud, one count of tampering with government records, in violation of
{¶ 3} The parties’ joint stipulation of facts is as follows:
- Dayton Police Officer Dustin Glass (hereinafter “Officer Glass“) and Dayton Police Officer Dustin Phillips (hereinafter “Officer Phillips“) executed a traffic stop on a blue Buick Cutlass on December 14, 2010 around 7:50 PM.
- The traffic violation occurred in the vicinity of 2801 Philadelphia Drive, Dayton, Montgomery County, Ohio.
- The traffic stop was because the vehicle had a taillight broken.
- There was only one occupant of the vehicle (the driver) who
identified himself as Donzell Drake. - The driver also provided a birth date of July 19, 1991 and social security number which did not match the identifying information for Donzell Drake.
- The driver provided sufficient information which caused the officers to believe that he was Donzell Drake.
- The driver was given a citation in the name of Donzell Drake for the broken taillight and failure to display license.
- The driver of the vehicle also signed the name Donzell Drake on the traffic citation.
- Officer Glass and Officer Davis discovered the driver of the vehicle was Timothy Amazing Drake, the Defendant in the present case.
- Donzell Drake did not give Timothy Amazing Drake (hereinafter “the Defendant“) permission to use his name or identifying information.
- Dayton Police Detective William Breisch (hereinafter “Detective Breisch“) interviewed the Defendant on March 8, 2011.
- The Defendant was advised of his Miranda rights and agreed to speak with Detective Breisch.
- The Defendant admitted he provided Donzell Drake‘s name and date of birth1 to the officers who conducted the traffic stop on December 14,
2010 because he did not want to go to jail or get another ticket. * * * - The Defendant was shown a copy of traffic citation #1819319 dated December 14, 2010. * * *
- After being shown citation # 1819319, the Defendant admitted to receiving that citation on December 14, 2010. He also admitted to making the signature in the name Donzell Drake on the citation when he received it.
- The Defendant admitted he did not have permission to use Donzell Drake‘s name, date of birth, or other identifying information.
{¶ 4} Both parties also filed bench briefs. Drake asserted in his brief that
{¶ 5} Regarding identity fraud, the State asserted in its brief that
{¶ 6} On September 14, 2011, the trial court issued a Decision finding Drake guilty of identity fraud and not guilty of forgery and tampering with government records. The court initially noted that the Ohio Revised Code “dictates that its sections ‘defining offenses or penalties, shall be strictly construed against the State, and liberally construed in favor of the accused.’
If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail.
{¶ 7} Regarding the charge of tampering with records, the court determined that
{¶ 8} As to the charge of forgery, the trial court noted that it “carefully considered the stipulation of facts in regards to this charge, as well as the arguments of counsel. The Court is not firmly convinced of the truth of the charge of [f]orgery and, therefore, finds that the State has failed to meet its burden of proof beyond a reasonable doubt and, therefore, the Court finds [Drake] not guilty of the charge [f]orgery.”
{¶ 9} As to the charge of identity fraud, the court found that Drake‘s actions “resulted in commission of two separate offenses.” The Court found beyond a reasonable doubt that Drake obtained and used the personal identifying information of Donzell Drake without his consent and “with the intent to represent Donzell Drake‘s identifying information as his own personal identifying information.”
{¶ 10} The court concluded as follows:
In reaching its decision, the Court finds that the Defendant did commit two separate offenses by one animus. The Identity Fraud statute does not limit its application regarding representations made to persons other than law enforcement officers. However, this was not a mere
misrepresentation to a police officer; it was providing personal identifiers of a real individual and holding out by the Defendant of being that other person. The mere fact of providing false information (real or imaginary) to a police officer is a violation under R.C. 4513.361 , but a separate act was committed when the Defendant used the name and personal identifiers of another during the traffic stop. The Court draws an analogy that the police officer, (or society in general), is one victim of a crime and Donzell Drake is a separate and distinct victim of a crime. The Court has examined the Defendant‘s conduct to determine whether the offenses are allied as was the previous guidance from the Ohio Supreme Court. State v. Johnson (2010), 128 Ohio St.3d 153, 2010 Ohio 6314. Focus is distinctly placed on whether the offenses are committed separately or with a separate animus. Id. The Court finds that there were separate and independent mens rea: first to mislead a police officer and second to take the identification of another. This Court finds that the statutes are not irreconcilable and, therefore, the State could proceed on one or both of the charges based upon the stipulation of facts in this particular case.
{¶ 11} Drake‘s first assigned error is as follows:
“THE TRIAL COURT ERRORED IN FINDING MR. DRAKE GUILTY OF IDENTITY FRAUD WHERE A SPECIFIC STATUTE,
{¶ 12}
{¶ 13} In Volpe, upon which the trial court relied, the Supreme Court of Ohio held that, where “there is no manifest legislative intent that a general provision of the Revised Code prevail over a special provision, the special provision takes precedence.” Id., at syllabus. The defendants therein were charged with gambling, in violation of
{¶ 15} Drake‘s second assigned error is as follows:
“THE VERDICT AGAINST MR. DRAKE, FINDING HIM GUILTY OF IDENTITY FRAUD, WAS NOT SUPPORTED BY THE SUFFICIENCY OF THE EVIDENCE.”
{¶ 16} As the Supreme Court has previously noted:
“In reviewing a claim of insufficient evidence, ‘[t]he relevant inquiry is whether, after reviewing 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.’ State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; see, also, State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541.” State v. McKnight, 107 Ohio St.3d 101, 112, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 70.
{¶ 18}
{¶ 19} After reviewing the evidence in a light most favorable to the prosecution, we conclude that any rational trier of fact could have found the essential elements of identity fraud proven beyond a reasonable doubt. Drake‘s second assigned error is overruled.
{¶ 20} Drake‘s third assigned error is as follows:
“THE VERDICT AGAINST MR. DRAKE, FINDING HIM GUILTY OF IDENTITY FRAUD, WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶ 21} Our standard of review for this assigned error is as follows:
The appellate court, in determining whether a conviction was against the manifest weight of the evidence, must review the entire record, weigh the evidence and all reasonable inferences, and consider the credibility of witnesses. State v. Hancock, 108 Ohio St.3d 57, 840 N.E.2d 1032, 2006-Ohio-160, ¶ 39. The question is whether the trial court, in resolving conflicts in the evidence, “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, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.] When considering whether a judgment is against the manifest weight of the evidence in a bench trial, an appellate court will not reverse the conviction where the trial court could reasonably conclude from substantial evidence that the state has proven the offense beyond a reasonable doubt. State v. Eskridge (1988), 38 Ohio St.3d 56, 59, 526 N.E.2d 304. * * *. State v. Eckert, 12th Dist. Clermont No. CA2008-10-099, 2009-Ohio-3312, ¶ 16.
{¶ 23} We will now address the State‘s cross-appeal. We note that Drake did not file a brief in response to the State‘s cross-appeal. The State asserts one assignment of error as follows:
THE TRIAL COURT ERRED [IN] ITS LEGAL INTERPRETATION
{¶ 24} According to the State, “essentially, the trial court held that under
{¶ 25}
{¶ 26} Under Volpe, we conclude that
{¶ 27} Accordingly, the judgment of conviction for identity fraud is affirmed and the State‘s cross-appeal is without merit.
GRADY, P.J. and HALL, J., concur.
Michele D. Phipps
Antony A. Abboud
Hon. Dennis J. Adkins