STATE OF OHIO, PLAINTIFF-APPELLEE, v. JOYCE E. DUNCAN, DEFENDANT-APPELLANT.
CASE NO. 1-10-59
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
March 14, 2011
2011-Ohio-1168
Aрpeal from Allen County Common Pleas Court, Trial Court No. CR 2009-03253. Judgment Affirmed.
Michael J. Short for Appellant
Christina L. Steffan for Appellee
{¶1} Defendant-Appellant, Joyce Duncan (“Duncan“), appeals the judgment of conviction entered against her in the Allen County Court of Common Pleas following a bench trial in which Dunсan was found guilty of grand theft. On appeal, Duncan contends that her conviction was not supported by sufficient evidence and that it was against the manifest weight of the evidence. For the reasons set forth below, the judgment is affirmed.
{¶2} Duncan was employed as the administrator of Thin and Healthy Total Solutions (“Thin & Healthy“) from July 2008 to January 2009, while the regular administrator was on maternity leave. Duncan‘s duties included taking care of the front desk, handling money that came in, and general papеrwork. One of the tasks connected with the handling of money was the preparation of day sheets (to record the daily receipts and transactions) and making the nightly bank deposits. The company accepted cash, cheсks and credit card payments for the goods and services it sold to its customers at its Lima facility.
{¶3} During the time period when Duncan was in charge of the receipts and deposits, the bank deposits were not being made every night and often there appeared to be a lag in the time when the deposits were eventually made. Thin & Healthy‘s director, Janice Brown, spoke with Duncan about the matter and emphasized the importance of making the daily deposits. In January of 2009, Ms.
{¶4} On November 12, 2009, the Allen County Grand Jury returned an indictment charging Duncan with one count of grand theft, a felony of the fourth degree in violation of
{¶5} The trial court heard testimony from Thin & Healthy‘s previоus administrator, Diane Judy; the director, Janice Brown; Thin & Healthy‘s owner and V.P., Donna Krech; the vice president, internal auditor and risk officer for Union Bank, Jeff Point; Thin & Healthy‘s director of administration, Kellie Valenti; Thin & Healthy‘s independent accountant, MaryBeth Banks; Lt. Darrell Pugin, investigator at the Allen County Shеriff‘s Department; and, Deputy John Butler, who also interviewed Duncan regarding the missing money. After the State rested, Duncan called one witness on her behalf, Beth Nolan, who used to work at Thin & Healthy as a metabolism re-trainer.
{¶6} The trial court found Duncan guilty of the single count in the indictment and filеd a “Verdict of Court and Judgment Entry.”1 A sentencing hearing was held on July 29, 2010, and Duncan was sentenced to eighteen months in prison. Duncan was also ordered to pay $12,604.292 in restitution to Thin & Healthy. Duncan timely appeals, raising the following two assignments of error.
First Assignment of Error
The conviction is against the manifest weight of the evidence.
Second Assignment of Error
There was insufficient evidence to support the conviction.
{¶7} Although involving different standards, the two issues are closely related and rely on similar facts, so we will review them together. Duncan argues that the evidence suggested that any missing money could be attributable to sloppy accounting practices on the part of Thin & Healthy. Duncan further argues that there was no evidence that she was the person who altered the deposit slips. Although the writing on the slips “appeared to be” Duncan‘s, there was no expert handwriting testimony presented to verify this. Therefore, Duncan asserts that the conviction was not supported by either the weight of the evidence or the sufficiency of the evidence.
{¶8} When reviewing the sufficiency of the evidence, our inquiry focuses primarily upon the adequacy of the evidence; that is, whether the evidence submitted at trial, if believed, could reasonably support a finding of guilt beyond a reasonable doubt. See State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541, 546 (stating, “sufficiency is the test of adequacy“); State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492, 503. The standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. Jenks, supra. This test raises a quеstion of law and does not allow the court to weigh the evidence. State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.
{¶9} A challenge to a conviction based on the manifest weight of the evidence concerns “the inclination of the greater amount of credible evidence, offered in a trial to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mаthematics, but depends on its effect in inducing belief.” (Emphasis sic.) State v. Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. A new trial should be granted only in the exceptional case in which
{¶10} In order to convict Duncan of grand theft, the State was required to prove that Duncan, with purpose to deprive the оwner of property or services, knowingly obtained or exerted control over the property or services of another without the consent of the owner or person authorized to give consent.
{¶11} In reviewing the entire transcript from the trial and all of the evidence in a light most favorable to the proseсution, we find that there was sufficient evidence of each element of the offense to find Duncan guilty beyond a reasonable doubt. Four of Thin & Healthy‘s employees/officers testified that, between August 2008 and January 2009 (except for one week when Duncan was out sick), Duncan was the only person who was responsible for calculating the
{¶12} The day sheets, bank records, computer Quicken system print-outs, аnd deposit slips from the time period in question were all identified at the trial and admitted into evidence. Kellie Valenti, Thin & Healthy‘s director of administration who was in charge of accounting and bank reconciliations, testified that Duncan was the person who would have inputted all the information to the day sheets and she would have created all of the deposit slips.
{¶13} Ms. Valenti first noticed problems with a lag in the time when deposits were being made. Upon investigation, they discоvered that there had been date changes and changes made in the amounts of cash and checks. In comparing the deposit slips from the bank to the copies on file at the business for the same day, she discovered that many оf the deposit slips contained different amounts. The amounts actually deposited into the bank were less than the
{¶14} Ms. Valenti also testified that Duncan had requested extra deposit slips from her. Although Ms. Valenti didn‘t believe it was a problem at the time, she testifiеd that she thought that they were going through deposit slips awfully fast.
{¶15} When first questioned about deposits not being made, Duncan claimed that she had been making regular deposits. However, when the bank‘s video camera records were checkеd, there was no record of Duncan making a deposit on many of the days that she claimed she did. Ms. Brown also testified that when they first realized money was missing, Duncan talked with her and offered to pay back the money if the matter would “go away.” (Trial Tr., p. 36.)
{¶16} On appeal, Duncan claims that there was no evidence that the handwriting on the deposit slips and records was hers. However, all of the testimony indicated that she was the only person responsible for keeping those records and filling out the deposit slips and Thin & Healthy‘s owner testified that the handwriting appeared to be Duncan‘s. Furthermore, Lt. Pugin testified that when he questioned Duncan about the documents, she stated that “it could be” her
{¶17} Duncan complains that there wаs not sufficient evidence to directly connect her with the criminal transactions. Generally, the intent of a person cannot be proven by the direct testimony of a third person, rather it must be gathered from the surrounding facts and circumstanсes of the particular case. State v. Johnson (1978), 56 Ohio St.2d 35, 381 N.E.2d 637, quoting State v. Huffman (1936), 131 Ohio St. 27, 1 N.E.2d 313. “Direct evidence of a fact is not a prerequisite for a trial court to make a finding of that fact.” State v. Cornett, 3d Dist. No. 13-09-13, 2009-Ohio-3531, ¶ 11, citing State v. Lott (1990), 51 Ohio St.3d 160, 167, 555 N.E.2d 293. Circumstantial evidence and direct evidence have the same probative value. State v. Gillman, 3d Dist. No. 14-08-02, 2008-Ohio-2606, ¶17. As stated above, and construing the evidence in favor of the prosecution, there was more than sufficient evidence for the fact-finder to reasonably conclude that Duncan knowingly committed the charged offense with the purpose of taking cash from Thin & Healthy for her own use.
{¶18} We also do not find that the decision was against the manifest weight of the evidence. Although Duncan claimed that the missing money could be
{¶19} The testimony оf all of the State‘s witnesses was consistent with each other, and there was no evidence offered to impeach or contradict any of their testimony. Furthermore, the trier of fact was in the better position to judge the credibility of the witnesses. We cannot say that the fact finder lost its way or that the evidence weighed heavily against conviction.
{¶20} Because there was sufficient credible evidence to prove each element of the offense chargеd and the conviction was not against the manifest weight of the evidence, we overrule Duncan‘s first and second assignments of error. Having
Judgment Affirmed
ROGERS, P.J. and SHAW, J., concur.
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