State v. HulbertState v. Hulbert
Judgment Affirmed
Date of Decision: July 6, 2021
APPEARANCES:
Clayton J. Crates for Appellant
Kelly J. Rauch for Appellee
{¶1} Defendant-appellant Tina M. Hulbert (“Hulbert“) brings this appeal from the judgment of the Court of Common Pleas of Van Wert County accepting the guilty verdicts of the jury on two counts of theft from an elderly person or disabled adult and six counts of forgery. Hulbert claims on appeal that the trial court erred by denying her
Facts and Procedural Background
{¶2} Hulbert was employed at Van Wert Manor (“the Manor“), which is operated by HCF Management (“HCF“), as the office manager for several years. In 2016, Hulbert‘s supervisor, Jackie O‘Kief (“O‘Kief“) was out and Jodi Bennett (“Bennett“) was brought in to cover for O‘Kief. Bennett noticed several irregularities in the books and brought the matter to the attention of her supervisor, the regional manager for HCF, Tara Sibert (“Sibert“). Sibert then notified the corporate staff and they began going through the records where more discrepancies in the accounts were found. These discrepancies included such items as lateral transfers from one patient‘s account to another patient‘s account, which is prohibited by HCF policy, missing cash funds from patient‘s accounts (i.e. cashing a check made out to a resident for $6,000, but only crediting the resident‘s account with $5,000), accepting cash payments for services not rendered, and checks that
{¶3} On July 12, 2018, the Van Wert County Grand Jury indicted Hulbert on the following counts: 1) Theft from an Elderly Person or Disabled Adult in violation of
{¶4} On September 25, 2019, the trial court held a sentencing hearing. Doc. 119. The trial court determined that Counts 4 and 8 were included in Count 1 and were thus subject to merger. Doc. 119. The State elected to proceed with sentencing on Count 1. Doc. 119. The trial court then ordered that Hulbert serve a prison term of five years on Count 1, 14 months as to Count 2, 14 months as to Count 3, 14 months as to Count 5, 11 months as to Count 7, and 11 months as to Count 9. Doc. 119. The terms were ordered to be served concurrently for an aggregatе prison term of five years. Doc. 119. Hulbert filed a timely notice of appeal from this judgment. Doc. 131. On appeal, Hulbert raises the following assignments of error.
First Assignment of Error
The trial court committed prejudicial error by denying [Hulbert‘s] Rule 29 motion as to Count One of the indictment.
Second Assignment of Error
The trial court committed prejudicial error by denying [Hulbert‘s] rule 29 motion as to Counts Two through Five and Counts Seven and Eight.
Third Assignment of Error
[Hulbert‘s] convictions were not supported by legally sufficient evidence.
[Hulbert‘s] convictions were against the manifest weight of the evidence.
Due to the overlapping of the first, second, and third assignments of error, they will be addressеd together.
Criminal Rule 29 and Sufficiency of the Evidence
{¶5} In the first two assignments of error, Hulbert claims that the trial court erred in denying her
An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. * * * Accordingly, “[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 crime proven beyоnd a reasonable doubt.” * * * “In deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the credibility of witnesses, as both are functions reserved for the trier of fact.”
State v. Adkins, 3d Dist. Allen No. 1-19-71, 2020-Ohio-6799, ¶ 37 (citations omitted).
{¶6} In the first assignment of error, Hulbert claims that the evidence was insufficient to support a conviction on Count 1. Count 1 stated that Hulbert had violated
{¶7} In this case, Jacque Welch (“Welch“) testified that she was the administrator at the Manor. Tr. 366-67. Hulbert was the business office manager and was the one responsible for collecting residents’ payments, making bank deposits, managing the balance of the resident trust accounts, and managing the internal funds for the residents. Tr. 372, 390. This process was done through the PointClickCare (“PCC“) system and each person has an individual password that is not shared with others. Tr. 377, 381. Hulbert was responsible for providing quarterly resident trust statements to residents or their representatives, but Welch learned after Hulbert‘s termination that this was not being done. Tr. 397. Welch testified that when a resident wanted money from the individual account, the resident or a family member should sign either the withdrawal form or a receipt to justify the withdrawal. Tr. 400. The office manager should also sign the receipt and all receipts were to be kept in a binder for tracking. Tr. 401. If no receipt for the money was provided, the withdrawal form should still be signed by the resident or his/her representative. Tr. 403. Welch testified that Hulbert was responsible for reporting any issues with a patient withdrawing too much money or any transactions that were out of the ordinary. Tr. 404. According to Welch, the corporate office began investigating Hulbert when a lateral transfer was found in the account of resident Bonnie Clemens (“Clemens“) because lateral transfers are not permitted
{¶8} Amber Showalter (“Showalter“) Showalter testified that she was a licensed social worker employed by the Manor for 17 years. Tr. 469. As part of her job, Showalter had direct and frequent contact with the residents. Tr. 470. Showalter indicated that she, in her capacity as social worker at the Manor, sometimes takes money from the cash box for the resident to make requested purchases, but always turns in the change and the receipts. Tr. 472. Showalter also testified that Hulbert never notified her that there were any missing funds from the cash box. Tr. 473. Showalter indicated that she was familiar with many of the residents at the Manor. Tr. 474-75. She specifically noted that resident Craig Gunsett (“Gunsett“) suffered from severe cognitive impairment, as he was unable to answer any of the questions correctly and scored a zero on the testing. Tr. 481-82, 484. She indicated that Clemens was totally dependent on the staff for care and suffered from severe cognitive deficits. Tr. 486. According to Showalter, Williams had poor short term memory and while he may knew the staff and where he was, he would not know such basic information as what day it was. Tr. 488. Showalter testified that Williams did not speak much and kept to himself. Tr. 487. When asked about PCC, Showalter testified that she has access to PCC, but not to the
{¶9} Sibert testified that she was the regional manager for HCF and oversees the Manor, including the finances. Tr. 524-25. According to Sibert, each employee has an individual password for PCC, which needs to be changed routinely. Tr. 530-31. Only the home office has access to everyone‘s individual passwords. Tr. 532. Sibert testified that Hulbert was a trusted employee who oversaw all the cash that came into the Manor, both for the Manor and the residents. Tr. 533-34. Hulbert was the one responsible for all deposits and inputting the data to the accounts. Tr. 543. Sibert first learned there were issues with the accounts when Bennett took over managing the Mаnor‘s books while O‘Kief was out.1 Tr. 542. As Sibert and Bennett began looking into the accounts, they found more discrepancies, notified HCF corporate staff, and called Hulbert in for a meeting. Tr. 543. Sibert asked Hulbert to explain the lateral transfers that were done in PCC under Hulbert‘s password and Hulbert said she did not know how it could have happened. Tr. 544. Sibert then began an internal audit and eventually called the police. Tr. 545. Sibert identified Ex. 5 as a summary of the internal investigation. Tr. 548.
{¶10} Bennett testified that she went to the Manor because O‘Kief was absent and a question was raised regarding some checks written out of the resident
{¶11} A review of Exhibits 4, 5, and 6, show that several accounts were missing funds. Some were short funds due to lateral transfers, some due to missing cash deposits, and others due to the issuance of improper checks signed by Hulbert. Of those accounts, there are 49 residents affected for which evidence was provided that they were either over the age of 65 (elderly) or met the statutory definition of disabled.2 The total amount misappropriated from the accounts of those residents was betwеen the amounts of $37,500 and $150,000.
{¶12} The only issue that did not have supporting testimony to support the conviction was the lack of consent. Hulbert specifically claims that the State failed
(E) Accounting and records.
(1) A NF provider shall establish and maintain a system that ensures full, complete, and separate accounting of each resident‘s PNA account funds.
(2) A NF provider shall not commingle a resident‘s accounts or funds with the provider‘s accounts or funds, or with the accounts or funds of any individual other than another NF resident.
(3) A NF provider shall provide a resident with access to petty cash (less than fifty dollars) on an ongoing basis and shall arrange for the resident to acсess larger funds (fifty dollars or more). A NF provider shall give residents a receipt for every transaction, and the NF provider shall retain a copy.
(4) A NF provider shall obtain a resident‘s signature upon the resident‘s receipt of PNA funds. If the resident is unable to sign his or her name, he or she shall acknowledge receipt of the money by marking an “X.” Two persons shall verify through signature that they have witnessed the resident‘s action.
(5) A NF provider shall maintain an individual ledger account of revenue and expenses for each PNA account managed by the facility. The ledger account shall meet all the following criteria:
(a) Specify all funds received by or deposited with the NF provider. For PNA account funds deposited in banks, monies shall be credited to the resident‘s bank account within three business days; and
(b) Specify the dates and reasons for all expenditures; and
(c) Specify at all times the balance due the resident, including interest earned as last reported by the bank to the provider; and
(d) Be available to the resident or the resident‘s representative for review.
(6) Upon request, a NF provider shall provide receipts to a resident or the resident‘s representative for purchases made with the resident‘s PNA funds.
(7) Within thirty days after the end of the quarter, a NF provider shall provide a written quarterly statement to each resident or resident‘s representative of all financial transactions made by the provider on the resident‘s behalf.
Pursuant to the regulations, the consent to withdraw money must have a written receipt signed by the resident or representative and at least marked by an X, verified by two people. That did not occur in these cases. Detective Cory Reindel (“Reindel“) of the Van Wert City Police Department testified that during his investigation, no residents or their representatives he spoke with indicated there was any consеnt to Hulbert possessing or moving the funds to third parties. Tr. 215. Showalter testified that several of the residents involved were incapable of giving
{¶13} Viewing the evidence in a light most favorable to the State, evidence was presented as to each element of the offense charged in Count 1. The evidence was not insufficient and the first assignment of error is overruled.
{¶14} In the second assignment of error, Hulbert claims that in Counts 2-5, and 7-8, the evidence was not sufficient to support the charges of forgery. To prove a claim of forgery, the State is required to show that 1) Hulbert, 2) knowing that she was engaged in a fraud, 3) forged a writing of another 4) without that person‘s authority, 5) that the victims were elderly or disabled adults4, and 6) that the amount affected was between the amounts of $1,000 and $7,500.
{¶15} Count 2 alleged that the victim of the forgery was Cobb. Showalter testified that Cobb was severely cognitively impaired due to an accident that caused a severe brain injury and Cobb‘s parents made most оf her decisions. Tr. 490. Although Cobb, who was born in 1966, was not elderly pursuant to the statute, she could be considered a disabled adult under the statutory definition.
{¶16} Count 3 alleged that the victim of the forgery was Chehi. Showalter testified that she was familiar with Chehi. Tr. 475. Bennett testified that Chehi was born in February of 1948. Tr. 624. Reindel testified that along with the checks, he examined sample signatures from the residents taken from the intake paperwork. Tr. 204. Reindel compared the original signatures to the ones on the checks in Ex. 3 and found them to be “obviously different penmanship“. Tr. 205. A review of
{¶17} Count 4 claimed that Kohler was the victim of forgery. This Court notes that Count 4 was merged into Count 1 for the purposes of sentencing. When a conviction is merged with another for the purposes of sentencing, there is no longer a conviction to be vacated, so the sufficiency of the evidence to support the conviction need not be addressed as long as the evidence is sufficient to support the selected сonviction. State v. Turner, 2nd Dist. Clark No. 2017-CA-78, 2019-Ohio-144, ¶ 22. This Court has already held that the evidence was sufficient to support a conviction pursuant to Count 1. Thus, this Court need not address the sufficiency of the evidence as to Count 4.
{¶19} Count 7 alleged that the victim of the forgery was Kwascigroh. As no evidence was presented showing that Kwascigroh was either elderly or a disabled adult pursuant to the statute, the trial court granted the
{¶20} Count 8 claimed that Williams was the victim of forgery. This Court notes that Count 8 was merged into Count 1 for the purposes of sentencing. When a conviction is merged with another for the purposes of sentencing, there is no longer a conviction to be vacated, sо the sufficiency of the evidence to support the conviction need not be addressed as long as the evidence is sufficient to support the selected conviction. Turner, supra. This Court has already held that the evidence
{¶21} This Court finds that the evidence is not insufficient to support the convictions as to Counts 2, 3, 5, and 7. Counts 4 and 8 are allied offense of similar import which merged for the purposes of sentencing and thus the sufficiency of the evidence need not be considered. For these reasons, the sеcond assignment of error is overruled.
{¶22} Hulbert argues in the third assignment of error that her convictions were not supported by sufficient evidence. This Court has already addressed this issue as to Counts 1-5 and 7-8. In Count 9, Hulbert was charged with theft of less than $1,000 from an elderly person in violation of
{¶23} Finally, Hulbert argues that her convictions are against the manifest weight of the evidence. When reviewing a judgment to determine if it is against the manifest weight of the evidence, an appellate court “review[s] the entire record, weighs the evidence and all reasonable inferences, considers the credibility of 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 trial ordered.” State v. Mendoza, 137 Ohio App.3d 336, 738 N.E.2d 822 (2000). See, also, State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A new trial should be granted only in the exceptional case in which the evidence weighs heavily against
{¶24} In this case, there were substantial records revealing a number of specific transactions from which a direct inference could be drawn that Hulbert was the one responsible for the missing funds. For example, the receipt for $513 to be deposited in Clemens’ account showed Hulbert accepting the check and cashing it, but no deposit to Clemens was ever made. Instead, a lateral transfer was made from the account of another resident in the amount of $513. Hulbert signed the deposit slip and the check and Hulbert‘s password was the one usеd to make the lateral transfer. Another instance showed a resident receiving a check for $6,000, which was cashed by Hulbert. However, only $5,000 was deposited into the resident‘s account. The remaining $1,000 is missing. At approximately the same time, Hulbert‘s accounts show a cash deposit of $1,000 being made. The jury could reasonably infer that the money was the missing funds. Exhibit 4 shows thousands of dollars in lateral transfers between residents’ accounts, all performed under the PCC password of Hulbert. Exhibits 5 and 6 show missing cash from receipts and checks requested by Hulbert for residents which have no documentation as to why they were rеquested and the funds disappeared. This Court has reviewed all of the exhibits in detail to verify that all of the elements were met. A review of the record
{¶25} Having found no prejudicial errors in the particulars assigned and argued, the judgment of the Court of Common Pleas of Van Wert County is affirmed.
Judgment Affirmed
SHAW and ZIMMERMAN, J.J., concur.
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