STATE OF OHIO, Plаintiff-Appellee -vs- DAVID JOSEPH, Defendant-Appellant
Case No. 16-CA-59
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
February 13, 2017
2017-Ohio-588
Hon. Patricia A. Delaney, P.J.; Hon. John W. Wise, J.; Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Appeal from the Licking County Common Pleas Court, Case No. 2016 CR 00149. JUDGMENT: Affirmed.
For Plaintiff-Appellee: BRYAN R. MOORE, Licking County Prosecutor‘s Office, 20 S. Sеcond Street, Fourth Fl., Newark, Ohio 43055
For Defendant-Appellant: ROBERT C. BANNERMAN, PO Box 77466, Columbus, Ohio 43207
Baldwin, J.
{¶1} Appellant David Joseph appeals a judgment of the Licking County Common Pleas Court convicting him of one count of passing a bad check (
STATEMENT OF THE FACTS AND CASE
{¶2} On February 25, 2016, appellant opened a savings account with TrueCore Federal Credit Union, depositing $5.00. He opеned a checking account as well, but did not deposit any money in the checking account.
{¶3} On March 5, 2016, appellant entered Pugh’s Designer Jewelers. He told the sales clerk that he wanted to buy a chain for his son’s sixteenth birthday. He chose a 30” gold rope chain priced at $1265.00. He wrote a check for $1,056.71. The actual total cost of the chain was $1,356.71, but the clerk did not immediately notice the discrepancy.
{¶4} The manager of the store took the check after appellant left the store. She noticed that it was written for the incorrect amount. She could not present the check for payment at any of the banks thе store used because they were closed on Saturday. However, she called the credit union, and was informed that there were insufficient funds in the account to cover the check.
{¶5} On March 5, 2016, appellаnt and a female companion went to Ohio Jewelry, a certified gold buyer, and sold a gold rope chain for $250 in cash. The store employee measured the chain at 28”; however, he did not have a long enough measuring tape and had folded the chain in half, thus the measurement was estimated. Appellant did most of the talking during the sale, and stated that they needed money for car repairs.
{¶7} Appellant was indicted with one count of passing bad checks in violation of
{¶8} “I. PREJUDICIAL OTHER ACTS EVIDENCE WAS USED TO CONVICT APPELLANT.
{¶9} “II. THE STATE’S CASE AS TO PASSING A BAD CHECK WAS INSUFFICIENT AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
I.
{¶10} In his first assignment of error, appellant argues that the court erred in admitting evidence of other bad acts, in violation of
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In criminal cases, the proponent of evidence to be offered under this rule shall provide reasonable notice in advanсe of trial, or
during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
{¶11} Appellant filed a motion in limine to excludе evidence of other bad acts. However, appellant failed to object at trial to any of the evidence he now claims was improperly admitted. A denial of a motion in limine does not presеrve error for appellate review; an objection must be raised to the admission of the evidence at trial to preserve error. State v. Brown, 38 Ohio St.3d 305, 311–12, 528 N.E.2d 523, 533 (1988).
{¶12} Therefore, we must find plain error in order to reverse. In order to рrevail under a plain error analysis, appellant bears the burden of demonstrating that the outcome of the trial clearly would have been different but for the error. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978). Notice of plain error “is to be takеn with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” Id. at paragraph three of the syllabus.
{¶13} Appellant first claims error in the admission of the testimony of the sales clerk that after appellant left Pugh’s Jewelry, employees called the credit union to verify the funds, and that it is the manager’s decision as to on when a person is permitted to leave the store without first verifying that funds are available to pay the check. Tr. 86-87. Appellant does not explain how this evidence constitutes evidence of other bad acts of appellant, or how he was prejudiced by this testimony. We find no error in the admissiоn of this testimony.
{¶14} Appellant next claims error in the admission of the testimony of Jason Hall, Director of Operations for the credit union:
Q. Okay. And that page you’re looking at, just directing you to the top where it says transаction summary, do you see that?
A. Yes. Um-hmm.
Q. Are you able to tell if there were ever any deposits made on this account?
A. Only the $5.00 to savings; none to checking.
Q. Okay. Were there – anything – any actions that took the account into the negative?
A. Looks like quite a few checks—
Q. Okay.
A. –that bounced.
{¶15} Tr. 117.
{¶16} While this was evidеnce of other bad acts by appellant, we do not find plain error in the admission of this testimony. The state was required to prove that appellant, with purpose to defraud, issued, transferred, or caused to be issued or transferred a check or other negotiable instrument, knowing that it will be dishonored.
{¶17} Finally, appellant argues that the court erred in admitting evidence of the transaction between appellant and Ohio Jewelry. However, this is not evidence of other bad acts. Rather, the evidence was direct evidence of his intent tо defraud Pugh’s
{¶18} The first assignment of error is overruled.
II.
{¶19} In his second assignmеnt of error, appellant argues that the judgment is against the manifest weight and sufficiency of the evidence. He specifically argues that because the check was never formally presented to the bank, and therefore not officially dishonored, he could not be convicted of passing a bad check. He argues that he had ten days to cure any dishonor of the check, upon receiving notice of dishonor, but because the check was never formally presented, he cannot be convicted.
{¶20} Appellant was convicted of passing bad checks in violation of
No person, with purpose to defrаud, shall issue or transfer or cause to be issued or transferred a check or other negotiable instrument, knowing that it will be dishonored or knowing that a person has ordered or will order stop payment on the check or other negotiable instrument.
{¶21}
For purposes of this section, a person who issues or transfers a check or other negotiablе instrument is presumed to know that it will be dishonored if either of the following occurs:
- The drawer had no account with the drawee at the time of issue or the stated date, whichever is later;
- The check or other negotiable instrument was properly refused payment for insufficient funds upon presentment within thirty days after issue or the stated date, whichever is later, and the liability of the drawer, indorser, or any party who may be liable thereon is not discharged by payment or satisfaction within ten days after receiving notice of dishonor.
{¶22} In determining whether a verdict is against the manifest weight of the evidence, the appellate court acts as a thirtеenth juror and “in reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses, and determines whether in resolving conflicts in evidence the jury ‘clearly lost its wаy and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983).
{¶23} An appellate court‘s function when reviewing the sufficiency of the evidence is to determine 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 beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492, paragraph two of the syllabus (1991).
{¶25}
{¶26} In the instant case, the State presented evidence that appellant opened a savings account with $5.00, and never made a deposit to the checking account from which he wrote the check for $1,056.71, to purchases a gold chain with a total price of $1,356.71. Later that same day, he sold a chain which matched the description of the chain he purchased from Pugh’s for $250.00 in cash. This evidence was sufficient to prove that appellant knew the check would be dishonored, and the judgment is not against the manifest weight of the evidence.
{¶28} The judgment of the Licking County Common Pleas Court is affirmed.
Costs are assessed to appellant.
By: Baldwin, J.
Delaney, P.J. and
Wise, J. concur.