STATE OF OHIO v. MICHELE MORGAN
C.A. CASE NO. 25023
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
January 18, 2013
2013-Ohio-122
T.C. NO. 10CR2883; (Criminal appeal from Common Pleas Court)
BAHJAT M. ABDALLAH, Atty. Reg. No. 0078504, 15 West Fourth Street, Suite 100, Dayton, Ohio 45402 Attorney for Defendant-Appellant
MICHELE MORGAN, 8521 Lyons Gate Way, Apt. A, Miamisburg, Ohio 45342 Defendant-Appellant
O P I N I O N
Rendered on the 18th day of January, 2013.
FROELICH, J.
{¶ 1} Michele Morgan was convicted of theft in violation of
{¶ 2} Morgan‘s appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that after thoroughly examining the record and the law, he found no potentially meritorious issues for appeal. Counsel set forth three potential assignments of error, namely (1) that the verdict was based on insufficient evidence and was against the manifest weight of the evidence, (2) that there was insufficient evidence to support the amount of restitution ordered, and (3) that the verdict and judgment entry are defective, because they improperly refer to the offense as “grand theft ($5000).”
{¶ 3} By entry, we informed Morgan that her attorney had filed an Anders brief on her behalf and granted her 60 days from that date to file a pro se brief. Morgan requested and was granted an extension of time in which to file a pro se brief. However, to date, no pre se brief has been filed.
{¶ 4} Appellate counsel first raised that Morgan‘s conviction was based on insufficient evidence and was against the manifest weight of the evidence. “A sufficiency of the evidence argument disputes whether the State has presented adequate evidence on each element of the offense to allow the case to go to the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). When
{¶ 5} In contrast, “a weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence is more believable or persuasive.” Wilson at ¶ 12. When evaluating whether a conviction is contrary to the manifest weight of the evidence, the appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, and determine whether, in resolving conflicts in the evidence, 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.” Thompkins, 78 Ohio St.3d at 387, citing State v. Martin 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 6} Because the trier of fact sees and hears the witnesses at trial, we must defer to the factfinder‘s decisions whether, and to what extent, to credit the testimony of particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997). However, we may determine which of several competing inferences suggested by the evidence should be preferred. Id. The fact that the evidence is subject to different interpretations does not render the conviction against the manifest weight of the evidence. Wilson at ¶ 14. A judgment of conviction should be reversed as being against the manifest
{¶ 7} At trial, the State presented substantial evidence that Morgan used Rooks‘s checking account to pay numerous bills between June 2009 and July 2010. The payments included fourteen checks to the apartment complex where Morgan lived for Morgan‘s rent, as well as several telephone and utility bills; the payments totaled $8,657.62. All of the payments were made through the bank‘s Online Bill Payment service. The telephone and utility payments were electronic fund transfers; Morgan‘s rent payments were written checks produced by the bank and sent by the bank to the apartment complex. Rooks testified that he did not establish online access to his checking account, and he did not make online payments. He further stated that Morgan did not have permission to use his account to pay her bills. After Rooks notified the police, Morgan sent several text messages to Rooks, in one of which she stated that she would pay back any money that she owed to Rooks.
{¶ 8} While testifying on her own behalf, Morgan did not contest that she used money from Rooks‘s checking account to pay her bills. She argued, however, that Rooks agreed to use his checking account to help her pay her bills on time, and that she, in return, provided cash to Rooks. Morgan stated that she believed the theft charges were made by Rooks in retaliation for Morgan‘s breaking up with him.
{¶ 9} Various documents were offered into evidence by the State, including the checks made out to Morgan‘s apartment complex from Rooks‘s checking account, Rooks‘s bank statements, a transcript of text messages from Morgan to Rooks, and Morgan‘s written statement to the Miami Township Police Department. Morgan offered three exhibits
{¶ 10} Upon review of the entire record, we find no arguable claim that Morgan‘s conviction was based on insufficient evidence or against the manifest weight of the evidence. There was substantial evidence of Morgan‘s use of Rooks‘s money to pay bills during 2009 and 2010, and the only issue was whether Rooks had agreed to allow Morgan to use his checking account for that purpose. Rooks testified that Morgan used his checking account without his consent. Although Morgan asserted that she and Rooks had an agreement that allowed her to pay her bills from Rooks‘s account, the trial court specifically found that it “didn‘t find [Morgan‘s] testimony to be credible at all.” While rendering its verdict, the court told Morgan, “Nothing that you say makes sense. You have different and conflicting versions of almost everything you said.” We defer to the trial court‘s findings of credibility. Appellate counsel‘s first potential assignment of error is frivolous.
{¶ 11} Appellate counsel next raises that there was insufficient evidence to support the amount of restitution ordered. Counsel notes that “the only issue as it pertains to restitution is whether or not the Court finds any ‘set-off’ arguments made by Appellant Morgan to be credible.” Rooks testified that the amount of money that Morgan used to pay her bills totaled $8,657.62, and the State offered bank records and checks to substantiate that testimony.1 Morgan did not dispute that payments totaling $8,657.62 were made from
{¶ 12} Finally, appellate counsel claims that the trial court‘s verdict form and judgment entry are erroneous, because they refer to Morgan‘s offense as “grand theft ($5000).”
{¶ 13} Morgan was charged in February 2011 with theft, in violation of
{¶ 14} In H.B. 86, the General Assembly expressly stated when the amendments were to be applicable: “The amendments * * * apply to a person who commits an offense specified or penalized under those sections on or after the effective date of this section and to a person to whom division (B) of section 1.58(B) of the Revised Code makes the amendments applicable.” See State v. Wilson, 2d Dist. Montgomery No. 25057, 2012-Ohio-5912, ¶ 7. Moreover, under
{¶ 15} The State proved at trial that Morgan committed theft of $8,657.62, and when orally informing Morgan of its verdict, the trial court found Morgan “guilty of one count of grand theft, a felony of the fourth degree, which would continue to be a fourth degree felony under the new statute.”2 When asked by the court if that statement was correct, defense counsel concurred. Because Morgan was entitled to be sentenced under H.B. 86, the trial court incorrectly referenced $5,000 in its verdict and judgment entry as the minimum value for fourth-degree felony theft. However, this is an apparent typographical error with no consequence to the validity of Morgan‘s conviction, considering that Morgan committed a fourth-degree felony under both former law and H.B. 86. We find no potentially meritorious claim based on the trial court‘s reference to the former minimum value of $5,000 in its verdict form and judgment entry.
{¶ 16} Pursuant to our duty under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we have conducted an independent review of the entire record, and we have found no potential assignments of error having arguable merit.
{¶ 17} The judgment of the trial court will be affirmed. . . . . . . . . . .
FAIN, P.J. and DONOVAN, J., concur.
Copies mailed to:
Kirsten A. Brandt
Bahjat M. Abdallah
Michele Morgan
Hon. Mary Katherine Huffman