State v. GilbertState v. Gilbert
{¶1} Appellant Brandon D. Gilbert appeals his conviction, in the Court of Common Pleas, Ashland County, for theft and misuse of a credit card. The relevant facts leading to this appeal are as follows.
{¶2} The victim in this case, Marybeth Ridgeway, is a child support obligee who utilizes the Ohio “E-Quick Pay” debit card to receive her support payments. Appellant is the ex-boyfriend of Ridgeway‘s sister. The State investigated and concluded that on or about December 21, 2008, appellant removed approximately $300.00 from Ridgeway‘s E-Quick Pay card without her consent.
{¶3} On February 27, 2009, appellant was indicted on one count of theft, a felony of the fifth degree, and one count of misuse of credit cards, a misdemeanor of the first degree. The matter was tried before a jury on June 23 and 24, 2009.
{¶4} After the State rested its case, counsel for appellant moved to dismiss pursuant to
{¶5} After hearing all the evidence, the jury found appellant guilty on both counts as alleged in the indictment.
{¶6} On June 26, 2009, the court held a sentencing hearing and thereafter sentenced appellant to a term of one year incarceration on the theft count and one hundred and eighty days on the misuse of credit cards, to be served concurrently. A sentencing entry was issued on June 29, 2009.
{¶7} On July 28, 2009, appellant filed a notice of appeal. He herein raises the following two Assignments of Error:
{¶9} “II. THE IMPOSITION OF A PRISON SENTENCE IN THIS CASE IMPOSES AN UNNECESSARY BURDEN ON STATE RESOURCES.”
I.
{¶10} In his First Assignment of Error, appellant contends his conviction for theft and misuse of a credit card is against the manifest weight of the evidence.
{¶11} The gist of appellant‘s argument is that the State failed to prove beyond a reasonable doubt that the E-Quick Pay card in question was a “credit card” under the
{¶12} Accordingly, in the interest of justice, we will treat appellant‘s challenge to his conviction as a claim of insufficiency of the evidence. In reviewing such a claim, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the
{¶13} At the trial in this matter, appellant‘s trial counsel in opening statements stated that appellant did not deny taking the victim‘s E-Quick Pay card and removing the balance (approximately $300.00) without her consent. See Tr. at 8-9, 11. We are thus directed to
{¶14} ” ‘Credit card’ includes, but is not limited to, a card, code, device, or other means of access to a customer‘s account for the purpose of obtaining money, property, labor, or services on credit, or for initiating an electronic fund transfer at a point-of-sale terminal, an automated teller machine, or a cash dispensing machine. It also includes a county procurement card issued under section 301.29 of the Revised Code.”
{¶15} In turn,
{¶16} In the case sub judice, the victim, Ms. Ridgeway, testified that the child support she receives for her children is placed into an account that she accesses using her E-Quick Pay debit card. Tr. at 15. The card‘s face includes Ridgeway‘s name, account number, and a MasterCard logo; the back of the card reveals a magnetic strip and signature box. Id. at 16. Ridgeway further testified that she can obtain cash from an ATM machine by using this card, and she detailed how a user can track the amount
{¶17} The record reveals at the very least that the card at issue could be used to initiate an electronic fund transfer at a bank‘s automated teller machine. The jury could thus properly infer that as part of such a transaction, the bank would debit the funds appellant received from her child support account. The State also called Linda Urban of National City Bank, who testified that she retrieved the photos of appellant using one of the bank‘s ATM machines, corresponding to the ATM‘s transaction journal. Tr. at 47-50. In addition, Detective Dennis Evans of the Ashland Police Department testified that while investigating this case he contacted appellant, showed him the aforementioned ATM photos, and that appellant admitted taking the card and withdrawing $300.00 from the ATM machine. Tr. at 62-63.
{¶18} Accordingly, upon review, we find the card at issue meets the definition of a credit card as set forth in the Revised Code, and we hold appellant‘s conviction for theft and misuse of a credit card was supported by sufficient evidence.
{¶19} Appellant‘s First Assignment of Error is overruled.
{¶20} In his Second Assignment of Error, appellant argues the imposition of a prison sentence in this case imposes an unnecessary burden on state resources. In State v. Shull, Ashland App. No. 2008-COA-036, 2009-Ohio-3105, we reviewed a similar claim. We found that although the burden on state resources may be a relevant sentencing criterion as set forth in
{¶21} The State points out that appellant failed to reform himself after a previous felony burglary offense and incarceration. The record indicates appellant took advantage of a close relationship with the victim, and abused marihuana while the case was pending. See Sentencing Tr. at 2-3. His two sentences nonetheless were ordered served concurrently.
{¶23} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Ashland County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.
/S/ JOHN W. WISE___________________
/S/ W. SCOTT GWIN__________________
/S/ PATRICIA A. DELANEY____________
JUDGES
JWW/d 519
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Ashland County, Ohio, is affirmed.
Costs assessed to appellant.
/S/ JOHN W. WISE___________________
/S/ W. SCOTT GWIN__________________
/S/ PATRICIA A. DELANEY____________
JUDGES