2007 Ohio 1201 | Ohio Ct. App. | 2007
{¶ 1} In the instant appeal, submitted on the record and the briefs of the parties, defendant-appellant, Mildred Gregg, appeals the judgment of the Ashtabula County Court of Common Pleas, following a trial by jury, convicting her of one count of Engaging in a Pattern of Corrupt Activity, a felony of the second degree, in violation of R.C.
{¶ 2} Gregg served as treasurer of the Ashtabula Antique Engine Club ("the club") for eight years. The club, which is run by volunteers, is a 501(C)(3) non-profit corporation formed to preserve antique farm machinery, display the machinery, and display items of historical significance. The club derives its income from the sponsorship of two main shows a year, as well as four to five other events held on the grounds throughout the year. The club also provides food service during these events, from which it derives additional income.
{¶ 3} Gregg was originally nominated to her post as treasurer by members who believed that she possessed prior accounting and bookkeeping experience. Throughout Gregg's tenure, the club's financial process was unsophisticated. Although the club had an audit committee, the extent of the financial controls up until 2001 consisted of the three audit committee members comparing the club's financial ledger and profit and loss statements, which were prepared by Gregg, with the bank statements.
{¶ 4} Sometime in 2001, members began to express concern about the club's finances. Among the reasons for the club members' concern was the receipt of a delinquent sales tax notice. In November 2001, the club held its annual nominations for the Treasurer position. Rather than nominating Gregg, the members instead nominated and elected Tom Boos as the new treasurer.
{¶ 5} After his election, Boos requested that Gregg provide him with the financial records for the club. In response to this request, Gregg provided Boos with a fresh book of checks, a checkbook register containing only an opening balance, a *3 monthly profit and loss statement for December 2001, and several bills that were due to be paid. Boos insisted that an audit of the club's 2001 financial statements be conducted. To this end, the club's audit committee, consisting of Ted Seifert, Linda Lipps, Dan Lazor, and Larry Lipps, was assembled.
{¶ 6} The audit committee held three meetings over a three week period in February 2002. Before the initial meeting, Gregg was asked to attend and provide the committee with all of the financial records in her possession from her tenure as treasurer. At this meeting, Gregg provided the committee with a Ziploc bag containing receipts and a ledger for the year 2001. Boos testified that the receipts were disorganized and "in no particular order." Towards the end of this meeting, Gregg was again asked to bring the remaining records to the next committee meeting. In particular, the audit committee wanted copies of an insurance policy which had been purchased for the club, as well as proof that the sales tax bill had been paid.
{¶ 7} At the next meeting, Gregg brought additional records. Ed Wharton, the club president, attended this meeting. Boos testified that the records turned over by Gregg at this meeting consisted of boxes and bags containing receipts and financial records from the years 1982 through 1997, as well as additional records from 2001, but that no records were provided for the years 1998 through 2000. An attempt was made at this meeting to organize the records by month, but this effort went on late into the evening, and eventually it was decided to schedule another meeting. The evidence and testimony reveals that there is some disagreement as to whether two or three boxes of records were brought to the second meeting. A third meeting followed. Boos testified that he did not take physical custody of the records at the end of the second meeting, but took custody of the records after the third meeting of the audit committee. *4
{¶ 8} After failing to receive bank statements, cancelled checks, and check registers for the years 1998 through 2000, Boos requested permission from club officers to obtain copies of the club's past bank statements from Cortland Bank. This request was granted.
{¶ 9} In July of 2002, Boos entered information from both the ledger and the bank statement into a spreadsheet in order to compare the amounts from each. In his analysis, Boos discovered several discrepancies between the club's ledger and the bank records. Upon further investigation, Boos discovered that many of the checks issued from the club's account were written directly to Gregg and her relatives, including her son, Scott Gregg, Scott's wife, Gina, and Gregg's daughter, Debra Barass, f.k.a. Debra Polley. Furthermore, most of the aforementioned checks were listed in the check register as being made payable to either another party or, in the alternative, listed as void checks.
{¶ 10} Following Boos' discovery, an independent examination of the club's financial records was commissioned from S.R. Snodgrass, CPAs, in December of 2003. John Kinnunen, a Certified Public Accountant who performed this examination, testified that he independently confirmed Boos' calculations, which indicated over $61,000 of the club's funds had been "taken from the club's treasury and disbursed to people other than or companies other than what was recorded."
{¶ 11} Kinnunen further reviewed the financial reports and bank statements and discovered an additional $4,231.07 which was was disbursed in this manner. As a result of his investigation, Kinnunen concluded that a total of $66,129.54 had been taken from the club's treasury and disbursed to Gregg and her relatives by fraudulent means. *5
{¶ 12} As a result of these findings, the club pursued criminal charges against Gregg, Scott Gregg, Gina Gregg and Deborah Barass.
{¶ 13} On September 21, 2004, the Ashtabula County Grand Jury returned a three count indictment against Gregg, charging her with Engaging in a Pattern of Corrupt Activity, a felony of the second degree, in violation of R.C.
{¶ 14} On June 15, 2005, the matter proceeded to a jury trial, which ended in a mistrial. A second jury trial, which lasted three days, commenced on December 12, 2005. At this trial, the jury returned a guilty verdict on all three counts.
{¶ 15} On March 13, 2006, Gregg was sentenced to a term of two years for Engaging in a Pattern of Corrupt Activity, and one year each for the Grand Theft and Forgery charges, with all sentences ordered to be served concurrently.
{¶ 16} Gregg timely appealed, assigning the following as error for our review:
{¶ 17} "[1.] The State produced insufficient evidence to support appellant's convictions for Engaging in a Pattern of Corrupt Activity, a violation of R.C.
{¶ 18} "[2.] Appellant's convictions for Forgery, Theft, and Engaging in a Pattern of Corrupt Activity were against the manifest weight of the evidence. *6
{¶ 19} "[3.] Appellant was denied the effective assistance of trial counsel as guaranteed by the
{¶ 20} In her first assignment of error, Gregg first argues that there was insufficient evidence to support her convictions. We disagree.
{¶ 21} At the end of the prosecution's case-in-chief, and again at the close of all evidence, Gregg's counsel moved for acquittal pursuant to Crim.R. 29. The trial court denied these motions.
{¶ 22} Crim.R. 29(A) provides that "[t]he court on motion of a defendant * * *, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses * * * if the evidence is insufficient to sustain a conviction of such offense or offenses."
{¶ 23} "[Sufficiency of the evidence * * * challenges whether the state has presented evidence for each element of the charged offense. The test for sufficiency of evidence is whether, after viewing the probative evidence and the inferences drawn from it, in a light most favorable to the prosecution, any rational trier of fact could find all elements of the charged offense proven beyond a reasonable doubt." State v.Barno, 11th Dist. No. 2000-P-0100, 2001-Ohio-4319, 2001 Ohio App. LEXIS 4280, at *16, citing State v. Jones,
{¶ 24} Whether sufficient evidence has been presented to allow the case to go to the jury is a question of law, thus, an appellate court is not permitted to weigh the evidence when making this inquiry. State v.Schlee (Dec. 23, 1994), 11th Dist. No. 93-L-082, 1994 Ohio App. LEXIS 5862, at *13 (citations omitted). A reviewing court will not reverse a jury verdict "where there is substantial evidence upon which the jury could *7
reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt." Id. citing State v. Eley (1978),
{¶ 25} Thus, an appellate court will examine the evidence and determine whether that evidence, "if believed, would convince the average mind of a defendant's guilt beyond a reasonable doubt."State v. Norwood, 11th Dist. No. 2005-L-047,
{¶ 26} Gregg argues that her conviction for Engaging in a Pattern of Corrupt Activity was based on insufficient evidence, since the state failed to adduce any evidence that she was engaged in an "enterprise" within the meaning of R.C.
{¶ 27} R.C.
{¶ 28} R.C.
{¶ 29} R.C.
{¶ 30} "Corrupt Activity" is defined in R.C.
{¶ 31} Taken together, sufficient evidence of a pattern of corrupt activity will be adduced, if the state adduces evidence which would tend to show that Gregg either by herself, or in concert with others, engaged in a pattern of activity consisting of two or more independent acts of theft, as defined in R.C.
{¶ 32} "Forgery, as prohibited by Section
{¶ 33} For the purpose of the forgery statute, a "Writing" is defined as "any * * * document * * * or other thing having in or upon it any written, typewritten or printed *9
matter." R.C.
{¶ 34} In the instant matter, the state introduced evidence, in the form of testimony from Tom Boos and John Kinnunen, which showed that during Gregg's tenure as treasurer from 1994 until 2001, she prepared a number of checks written to herself, her daughter, her son, and her daughter-in-law which were drawn on the account of the club. Evidence adduced at trial showed that the vast majority of these checks were recorded in the club's ledger as having been written to different payees, were never recorded to the ledger, or were recorded on the ledger as void. Furthermore, there was evidence adduced at trial that the amounts recorded in the ledger for these checks were less than the amounts of the checks themselves, typically by "round numbers," which according to the testimony of Boos, typically meant differences ranging from $50 to $200 per check. These checks were then offset in the ledger by recording amounts paid to legitimate payees in greater amounts than the actual checks negotiated to these legitimate payees.
{¶ 35} According to the testimony of Boos, the total amount of the checks negotiated over this period to Gregg and her family members that did not match any recorded transactions amounted to $61.898.47. According to Kinnunen's testimony, he confirmed Boos' calculated amounts and found, as the result of his independent examination, an additional amount of $4,231.07 in transactions that was entered on the club's ledger as being payable to other entities than those listed on the checks. *10
{¶ 36} With regard to Gregg's Forgery conviction, the "writing" which was "forged" was the club's financial ledger and not the checks themselves. Thus, there is ample evidence which, if viewed in a light most favorable to the prosecution, showing a pattern of fraudulent transactions existing over an eight-year period in which Gregg and others deprived the club of funds in excess of $60,000.
{¶ 37} "Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt." State v.Bridgeman (1978),
{¶ 38} Gregg's first assignment of error is without merit.
{¶ 39} In her second assignment of error, Gregg raises the same issues as in her first assignment of error to support an argument that her convictions on all three charges were against the manifest weight of the evidence. We disagree.
{¶ 40} Unlike sufficiency of the evidence, manifest weight of the evidence raises a factual issue. "The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new *11
trial ordered." State v. Thompkins,
{¶ 41} The concepts of sufficiency of the evidence and manifest weight of the evidence are distinct. "`Sufficiency' challenges whether the prosecution has presented evidence on each element of the offense to allow the matter to go to the jury, while `manifest weight' contests the believability of the evidence presented." Schlee, 1994 Ohio App. LEXIS 5862, at *13. "[T]he weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts." State v.DeHass, (1967),
{¶ 42} "A finding on review that the jury's verdict was against the manifest weight of the evidence must be reserved for those extraordinary cases where, on the evidence and theories presented, and taken in a light most favorable to the prosecution, no reasonable jury could havefound the defendant guilty." State v. Bradford (Nov. 7, 1988), 5th Dist. No. CA-7522, 1988 Ohio App. LEXIS 4576, at *4, citing Martin,
{¶ 43} As mentioned in the first assignment of error, there was evidence presented showing that in the eight years that Gregg served as treasurer for the club, she wrote a number of checks to herself, her son, her daughter, and her daughter-in-law, drawn on the club's account. These checks were listed on the ledger as being *12 written to other payees for legitimate business purposes or, in the alternative, listed in the ledger as being void checks. Evidence also showed that to offset these transactions, payments made to other payees for legitimate business purposes were inflated on the ledger over the actual check amounts. There was also evidence that none of the checks written to Gregg or her relatives over her entire tenure as treasurer were able to be matched to receipts.
{¶ 44} Gregg's defense counsel argued that she was an honest, albeit incompetent, bookkeeper, that the checks written to herself and her family members were made for legitimate club expenses, that discrepancies in the ledger were caused by mistakes exacerbated by her health problems, and that the evidence was tampered with or missing.
{¶ 45} With regard to the issue of missing evidence, Gregg points to inconsistencies in the testimony of prosecution witnesses with their prior trial testimony as proof that evidence had been tampered with. However, "[c]onvictions are not against the manifest weight of the evidence merely because there is conflicting evidence presented at trial." State v. Serrano,
{¶ 46} Gregg's second assignment of error is without merit.
{¶ 47} In her third assignment of error, Gregg argues that her trial counsel was ineffective for electing to go forward with the remainder of her defense without securing the presence of a defense witness, Patricia Smith, who failed to appear in court despite the fact that a subpoena was issued. Gregg further argues that her trial counsel was ineffective for failing to object to the amount of restitution the trial court ordered, since it was not supported by the evidence. We disagree.
{¶ 48} In determining whether trial counsel's assistance was so ineffective as to justify a reversal of a defendant's conviction, a criminal defendant must satisfy the two-part test set forth inStrickland v. Washington (1984),
{¶ 49} "[T]he proper standard for attorney performance is that of reasonably effective assistance * * * [and] the defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 687-688. A court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'" Id. at 689 (citation omitted). *14
{¶ 50} In the case sub judice, defense counsel subpoenaed Patricia Smith, a former Assistant County Prosecutor. Mrs. Smith did not appear at trial. Rather than request a continuance, Gregg's defense counsel elected to go forward with the trial, and made the following proffer of Smith's expected testimony:
{¶ 51} "Her testimony, I believe, would say that on or about the 4th day of March, 2005, after a pre-trial in this Court * * * Mrs. Smith was acting as an Assistant Prosecuting Attorney for the County and myself, my client, * * * her son, * * * and her daughter-in-law, and Dennis Reid, * * * Scott Gregg's attorney, met with her * * *.
{¶ 52} "At the time she told us that as far as we had made a Motion for Discovery and wanted to go over the exhibits and what she had and she made the statement that there were bags of receipts to go through and she wanted us * * * to sit down one time and to try to go over all these exhibits together so that we weren't — she didn't have to do this at three different occasions."
{¶ 53} It is well-settled that "[decisions regarding the calling of witnesses are within the purview of defense counsel's trial tactics."Elyria v. Bozman, 9th Dist. No. 01CA007899, 2002-Ohio-2644, at ¶ 21, citing State v. Coulter (1992),
{¶ 54} Based upon the proffer, we cannot conclude that there was a reasonable probability of a different outcome to this case. The proffered testimony, without more, does not support a suggestion that there was a significant amount of evidence that had not been considered or presented at trial. Thus, trial counsel was not deficient for electing to proceed without securing Mrs. Smith's testimony.
{¶ 55} Gregg also argues that trial counsel was ineffective for failing to object to the amount of restitution ordered by the trial court, since it was not supported by the record. At a minimum, Gregg argues that she should have been given credit for "legitimate expenditures," as evidenced by receipts that could not be matched up with checks, since "numerous persons testified that Appellant often used her own money and credit cards for legitimate expenses of the club."
{¶ 56} "A sentence of restitution must be limited to the actual economic loss caused by the illegal conduct for which the defendant was convicted." State v. Banks, 2nd Dist. No. 20711,
{¶ 57} In imposing its order of restitution, the trial court stated as follows: "According to the presentence report, the amount, at least the documented amount is $66,129.94. Although there are some claims that it could be more than that."
{¶ 58} The amount of restitution ordered was supported by the testimony of Boos and Kinnaunen and was solely related to those checks that were made payable to Gregg and her relatives, but listed as paid to other entities or voided on the check register. This was sufficient evidence to establish the value of the loss for the purpose of the trial court's restitution order. See State v. Morgan, 11th Dist. No. 2005-L-135,
{¶ 59} Accordingly, the trial court's order bears a reasonable relationship to the actual loss suffered. Although Gregg now seeks to have this court conclude that her trial counsel was ineffective for failing to argue that $13,000 in unmatched receipts, should have been applied to offset the court's restitution order, she has failed to provide any evidence to connect these receipts to any of the disputed disbursements or her out-of-pocket expenses. In addition, Gregg has also failed to present any evidence which would tend to show that any of these receipts were for legitimate club expenses. To the contrary, testimony from Boos regarding these receipts revealed that several of these receipts could not have been for the benefit the club, due to the nature of the purchases made. Under these circumstances, we cannot conclude that trial counsel was deficient for failing to object to the trial court's restitution order.
{¶ 60} Appellant's third assignment of error is without merit. *17
{¶ 61} For the foregoing reasons, we affirm the judgment of the Ashtabula County Court of Common Pleas.
WILLIAM M. O'NEILL, J., COLLEEN MARY OTOOLE, J., concur.
