{¶ 2} From approximately December 2001 to May 2003, appellant served as a personal assistant to the victim, Richard Wilmer, who was 84 years old when she began working for him. The position entailed transporting Mr. Wilmer around town for lunches, family visits, trips to his farm, shopping, and other errands. Appellant was required to spend as much as seven days a week, eight to ten hours a day, with him. Appellant maintains that she and her family grew close to Mr. Wilmer during her employment.
{¶ 3} A retired attorney, Mr. Wilmer refused aid from others and guarded his financial affairs closely. He repeatedly declined to allow family members to help orgаnize and pay his bills or otherwise intervene in monetary matters. According to appellant, Mr. Wilmer eventually requested her assistance with his financial dealings. Mr. Wilmer possessed a securities account with Prime Vest Financial Services. According to the testimony of Prime Vest senior compliance analyst Jane Lawless, any dividends or income that came into the securities account would be swept into a money market account. Appellant became involved with Mr. Wilmer's selling securities around September 2002. The disposition of the proceeds of these sales, as well as the disposition of additional cash missing from Mr. Wilmer's savings, comprise the subject matter of the instant prosecution.
{¶ 4} On September 22, 2004, a grand jury indicted appellant for one count of aggravated theft in violation of R.C.
{¶ 5} Assignment of Error No. 1:
{¶ 6} "APPELLANT'S CONVICTION MUST BE REVERSED AS THE CONVICTION IS BASED UPON INSUFFICIENT EVIDENCE AND IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
{¶ 7} In her first assignment of error, appellant argues that there was insufficient evidence to show that she exerted control over the victim's property without his consent. Appellant also challenges the manifest weight of the evidence supporting her conviction. While the two issues are included in one assignment of error, they require separate analysis.
{¶ 8} The review of a claim that a conviction is not supported by sufficient evidence focuses upon whether, as a matter of law, the evidence presented at trial is legally sufficient to sustain a verdict. State v. Thompkins,
{¶ 9} Appellant was convicted of aggravated theft in violation of R.C.
{¶ 10} A thorough review of the record reveals that appellant's conviction for aggravated theft was supported by sufficient evidencе. There is no dispute that Mr. Wilmer was over the age of 65 at the time of these events, and that the amount of money at issue was in excess of $100,000. In addition, the record evidence shows that appellant operated with a purpose to deprive Mr. Wilmer of his property. Appellant claims that Mr. Wilmer endorsed checks from the sales of his stock and she deposited the checks into her accоunt at his direction and for his benefit. The evidence, if believed, shows that all or most of these sizeable checks that Mr. Wilmer endorsed were deposited directly into appellant's personal savings account. In an attempt to provide an explanation, appellant alleges that this money was taken at Mr. Wilmer's insistence because he sought to take care of her and her family. Yet, at triаl, Mr. Wilmer denied ever giving this money to appellant.
{¶ 11} Detective Jeffrey Chase investigated the allegations against appellant after being alerted by Mr. Wilmer's daughter Adair Kornman. Chase testified that appellant was not able to recall exactly where the money went when he questioned her about handling Mr. Wilmer's checks. According to appellant, Mr. Wilmer agreed to re-route his mail to her post оffice box in September 2002 after he began mismanaging bills and other items. She admitted to authoring deposit slips for a number of checks that were deposited into Mr. Wilmer's savings account before the address change, but denied retaining the remaining cash after depositing only portions of each of these checks. She later admitted to Detective Chase that she deposited $28,610.46 and $27,102.26 into her personаl account from two stock sales because Mr. Wilmer allegedly wanted her to have the money, but stated that she used the money to care for Mr. Wilmer. Although appellant originally claimed that she forgot what she had done with the January 15, 2003 check for $33,793.35, the detective found that she had deposited it on January 21, 2003 into her personal bank account. These actions of appellant and her respоnses to police questioning further support the conclusion that her purpose was to deprive Mr. Wilmer of his money. These actions also exhibit appellant's exertion of control over Mr. Wilmer's property.
{¶ 12} Additional evidence supports the conclusion that appellant knowingly obtained or exerted control over Mr. Wilmer's property. Those acquainted with him stated that Mr. Wilmer was a very stubbоrn and private man who insisted that his family remain uninvolved in his finances. The evidence does not support the inference that such a person would willingly relinquish nearly complete control over his finances. Appellant testified that Mr. Wilmer allowed her to accompany him to First Financial, where she observed his conversations with investment broker Michael Cole regarding the Prime Vest account. On these trips tо the bank, appellant claims that Mr. Wilmer introduced her as his granddaughter, though a bank employee not involved in Mr. Wilmer's accounts testified that appellant presented herself as such. Appellant had the opportunity to learn the extent and value of Mr. Wilmer's holdings during these conversations.
{¶ 13} After Mr. Wilmer began selling his stock in August 2002, Cole testified that appellant called the bank on a number of occasions to order sales and have a check sent to Mr. Wilmer. In fact, Cole stated that appellant was the sole person with whom he communicated regarding Mr. Wilmer's investment account starting in early September 2002. She was involved in ordering the sales of stock as well as delivering endorsed stock certificates. Such conduct shows that appellant knowingly exerted control over Mr. Wilmer's property.
{¶ 14} Oncе Mr. Wilmer commenced the selling of his stocks, appellant would receive the checks from these sales at her post office box. Following this address change, from September 2002 to February 2003, the evidence shows that Prime Vest mailed out checks intended for Mr. Wilmer for stock sales in the amounts of $28,610.46, $27,102.26, $33,793.35, $17,921.27, and $20,000. As stated, appellant claims that Mr. Wilmer demanded that she take the checks, and that she reluctantly agreed after her protests were met with his stubborn insistence. Although appellant claims that she returned the cash from these checks to Mr. Wilmer, the record reflects that appellant deposited all or large portions of these checks into her personal account at Lebanon Citizens National Bank for all but the $17,921.27 check. Such action further demonstrates appellant's control оver Mr. Wilmer's property.
{¶ 15} Aside from the stock checks, the record shows that appellant cashed a number of personal checks from Mr. Wilmer to herself during her employment with him. Appellant alleges that she used this money to pay those who provided services for Mr. Wilmer such as her daughter, mother, and husband. Appellant also used the money to purchase things for Mr. Wilmer and for her own family, and claims that she rеturned portions of the money to Mr. Wilmer by tricking him into taking it. Appellant estimates that she spent $68,705.31 of the money Mr. Wilmer had given her on things for him. However, appellant was not able to provide evidence of these purchases for Mr. Wilmer. Thus, the record shows that appellant gained control over large sums of cash belonging to Mr. Wilmer.
{¶ 16} Finally, there is enough evidence to show that appellant exerted control over Mr. Wilmer's property without his consent. Mr. Wilmer testified that he handled his own financial affairs. He denied the allegation that appellant helped him pay his bills and only admitted to her minimal participation, if any. When questioned at trial about whether he gave appellant checks from sales of his stock, Mr. Wilmer said he did not. He denied that he had ordered or authorized appellant to sell his stock or withdraw money from his accounts, and stated that he never paid her for services she may have provided him. The most he recalled paying for were meals. Appellant claims that Mr. Wilmer was attached to her family, thought of appellant as a granddaughter, and wanted to spoil her. However, at trial, Mr. Wilmer hardly recalled an intimate connection with appellant or her family. The evidence thus supports the conclusion that appellant obtained control over Mr. Wilmer's money without his consent. In view of the fact that all of the elements of aggravated theft were supported by sufficient evidence, appellant's sufficiency claim is without merit.
{¶ 17} We next address appellant's argument that her conviction was against the manifest weight of the evidence. A claim that a conviction is against the manifest weight of the evidence entails a different test, attacking the credibility rather than the sufficiency of the evidence presented.Thompkins at 387. A reviewing court must consider the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether 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. Id.
{¶ 18} Taking into consideration the evidence discussed in detail regarding appellant's sufficiency argument, we conclude that appellant's conviction was not against the manifest weight of the evidence. Bank employees testified as to appellant's extensive control over Mr. Wilmer's accounts. Bank records show that appellant obtained large sums of money by depositing Mr. Wilmer's stock checks into her personal account. Witness testimony contradicts the allegation that Mr. Wilmer would readily relinquish control over his finances. We are mindful that the weight to be given the aforementioned evidence and the credibility of the witnesses are primarily for the trier of fact.State v. DeHass (1967),
{¶ 19} Appellant's first assignment of error is overruled.
{¶ 20} Assignment of Error No. 3:
{¶ 21} "APPELLANT'S RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED WHEN TRIAL COUNSELS' PERFORMANCE WAS EXTREMELY DEFICIENT TO APPELLANT'S PREJUDICE, IN VIOLATION OF U.S. CONSTITUTION, AMENDMENT
{¶ 22} In her third assignment of error, appellant claims that her counsel's performance was deficient becаuse counsel failed to challenge the victim's competence before and during trial. She argues that the duty to explore the issue of competence was triggered both by the charges, which questioned the victim's ability to furnish sound consent, and by the victim's deteriorated mental state at trial.
{¶ 23} To determine whether counsel's performance constitutes ineffective assistance, we must determine whether counsel's actions fell below an objective standard of reasonableness and that appellant was prejudiced as a result. Strickland v.Washington (1984),
{¶ 24} Appellant insists that, for the duration of her employment, Mr. Wilmer was an alert and active man who maintained control over his affairs and engaged in intellectual activities such as wrapping up his probate cases, reading, and bill paying. Appellant was surprised by Mr. Wilmer's trial appearance, questioning his competence after opining that he appeared as a mentally worn down version of the man she had known while in his employ.
{¶ 25} Regardless of whether we agree with defense counsel's strategic option to avoid the issue of Mr. Wilmer's competence, it is not the role of this court to second guess what appears to be counsel's trial strategy. State v. Wells, Warren App. No. CA2005-04-050,
{¶ 26} Appellant's third assignment of error is overruled.
{¶ 27} Assignment of Error No. 4:
{¶ 28} "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANTA-PPELLANT WHEN IT ORDERED RESTITUTION TO MS. KORMAN [SIC] IN THE AMOUNT OF $273,486.95."
{¶ 29} In her fourth assignment of error, appellant asserts that the amount of restitution should be limited to $109,000 to reflect the amount originally charged in the complaint. Furthermore, appellant argues that the court erred in awarding restitution to Adair Kоrnman. Appellant emphasizes that Mr. Wilmer is the proper restitution recipient because he is still living. In addition, although Kornman obtained Mr. Wilmer's power or attorney at some time before trial, Kornman was not the victim and thus was an improper beneficiary under the restitution order.
{¶ 30} R.C.
{¶ 31} The record reveals that appellant failed to preserve any arguments regarding the restitution order. Generally, a party may not address for the first time on appeal any issue or error that the party could have called to the trial court's attention at a time when the trial court could have ruled on the issue, or corrected the error, or avoided the error altogether. State v.Awan (1986),
{¶ 32} Appellant's fourth assignment of error is overruled.
{¶ 33} Assignment of Error No. 2:
{¶ 34} "IMPOSITION OF A PRISON TERM GREATER THAN THE MINIMUM UPON A FIRST TIME OFFENDER WITH NO RECORD IS NOT SUPPORTATED [SIC] BY THE RECORD AND WAS IMPOSED CONTRARY TO LAW AND VIOLATES APPELLANT'S CONSTITUTIONAL RIGHTS."
{¶ 35} Assignment of Error No. 5:
{¶ 36} "[THE TRIAL] COURT ERRED IN ITS JUDGEMENT [SIC] ENTRY IN IMPOSING A 5 YEAR MANDATORY POST RELEASE CONTROL PERIOD."
{¶ 37} In her second assignment of error, appellant maintains that the imposition of a nonminimum sentence based upon findings not made by a jury infringed upon her
{¶ 38} In State v. Foster,
{¶ 39} Pursuant to R.C.
{¶ 40} The discrepancy in these documents appears to be a clerical mistake. See, e.g., State v. Brown, Franklin App. No. 03AP-130,
{¶ 41} Appellant's second and fifth assignments of error are sustained.
{¶ 42} We reverse the trial court's judgmеnt as to sentencing and remand this matter for resentencing in accordance with law and consistent with this opinion.
Young and Bressler, JJ., concur.