State v. NewmanState v. Newman
Loretta A. Riddle, for appellant.
* * * * *
DECISION AND JUDGMENT
HANDWORK, J.
{¶ 1} Appellant, Timothy L. Newman, appeals from the June 14, 2011 judgment of the Erie County Court of Common Pleas convicting him of all of the counts in two consolidated indictments and sentencing him. Upon consideration of the assignments of
ASSIGNMENT OF ERROR NO. 1
The trial court abused its discretion and prejudiced [sic] when the court failed to find that the defendant (who was in bankruptcy), was indigent based solely on a public defender‘s non-disclosed recommendation of having assets.
ASSIGNMENT OF ERROR NO. 2
The trial court erred, abused its discretion and prejudiced the defendant by ordering two indictments be tried together.
ASSIGNMENT OF ERROR NO. 3
The evidence was insufficient and the verdict was against the manifest weight of the evidence.
ASSIGNMENT OF ERROR NO. 4
The trial court erred, and abused its discretion, by giving improper jury instructions, including, but no limited to, indicating that the court takes “judicial notice of the fact and the law in Ohio, that in order to transfer property that relates to a motor vehicle, proof of ownership is a certificate of title. That‘s something that is noticed. You‘ll accept that as a factual circumstance and then you‘ll see how that fits into your deliberation process.” [sic]
The court gave numerous improper jury instructions and off hand [sic] comments that prejudiced the defendant.
ASSIGNMENT OF ERROR NO. 6
The trial court committed plain error in giving an accomplice instruction and improperly commenting to the jury on what occurred with the co-defendant outside the presence of the jury.
{¶ 2} On September 10, 2010, appellant was indicted in a multi-count indictment alleging two counts of violating
{¶ 3} In his first assignment of error, appellant argues that the trial court erred when it failed to find that appellant was indigent based solely upon the recommendation
{¶ 4} The right to assistance of counsel is guaranteed under both the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, Section 10 of the Ohio Constitution. State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, ¶ 22. Crim.R. 44 also mandates that the court appoint counsel for defendants who are unable to obtain counsel to represent the defendant at every stage of the proceedings for serious offenses and may appoint counsel for defendants charged with petty offenses unless the defendant waives this right. The term in Crim.R. 44(B), “unable to obtain counsel,” has been interpreted to mean indigency as well as other factors which cause the defendant to be unable to obtain counsel. State v. Knight, 9th Dist. No. 11CA010034, 2012-Ohio-5816, ¶ 14, and State v. Henley, 138 Ohio App.3d 209, 219-220, 740 N.E.2d 1113 (9th Dist.2000).
{¶ 5} The public defender has the initial responsibility to determine the indigency of a defendant who requests appointed counsel.
{¶ 6} The county public defender is required to investigate the financial status of the person to be represented and provide the court with the results of its investigation upon request.
{¶ 7} Although it is the duty of all of the participants during trial to ensure that a proper appellate record is being created, Crim.R. 22 and State v. Lewis, 2d Dist. No. 23850, 2011-Ohio-1411, ¶ 28, ultimately appellant bears the duty to demonstrate where error occurs on the record. App.R. 9(B) and State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 6, quoting State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 7. Without a complete record, the appellate court must presume the regularity of the proceedings and the validity of the judgment. State ex rel. Hoag v. Lucas Cty. Bd. of Elections, 125 Ohio St.3d 49, 2010-Ohio-1629, 925 N.E.2d 984, ¶ 12, and State v. Prince, 71 Ohio App.3d 694, 698, 595 N.E.2d 376 (4th Dist.1991), citing Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980).
{¶ 8} If an appealable issue arises during trial, appellant has a duty to proffer contrary evidence in order for the appellate court to have a record to review the issue.
{¶ 9} In the case before us, Attorney Loretta Riddle was identified as appellant‘s counsel in the initial stages of his first criminal action and represented him with respect to his bond in the second criminal action. However, at a joint pretrial hearing to set a trial date, Riddle indicated that she had been helping appellant as a favor but, because she knew he could not pay her fees or the trial expenses, she wanted to withdraw as his counsel so that he could obtain appointed counsel. Appellant stated that he would be unable to find sufficient funds to retain his own counsel. A discussion ensued about the proper procedure to obtain appointed counsel and the matter was resolved by postponing
{¶ 10} The parties returned for another pretrial hearing a few days later. At that time, Riddle formally filed her motion to withdraw as counsel for appellant on the ground that he was unable to pay her fees for any future representation because he was currently involved in a bankruptcy action and a divorce proceeding, both of which restricted access to his assets. Furthermore, appellant was still incarcerated and there was, allegedly, a high probability the state would attempt to seize appellant‘s assets in a civil action. Appellant informed the court that once he was released, he could work and would be able to pay for his representation. The court did offer to pay for any necessary expert witnesses out of court funds. The court notified appellant at that time of the decision of the public defender commission that it would not provide representation.
{¶ 11} Riddle inquired as to the information appellant supplied or the information which was obtained by the public defender commission that formed the basis for its decision. The judge indicated that it was not the custom in Erie County to disclose such information. However, during the course of the discourse, the court indicated that there was an issue with appellant owning three furnished homes and having income resources just prior to the initiation of these criminal actions. Riddle again stressed that even if appellant was not indigent, his access to his assets was restricted by the bankruptcy and divorce proceedings. Riddle also expressed concern about taking both of these cases to trial knowing that the second case would involve a trial of three-to-four weeks.
{¶ 13} Upon a review of the transcript, we find that appellant waived any error relating to the determination of his indigency status because he failed to preserve the record by having the information regarding his financial status entered into the record so that the appellate court could review the determination. Without a complete record, we must presume the regularity of the proceedings. Furthermore, we note that appellant admitted that he would be able to pay for his counsel if he was released from jail. Since he never raised the issue of indigency again and was represented at trial, it is clear that he was able to find the resources to pay his attorney. Appellant‘s first assignment of error is not well-taken.
{¶ 14} In his second assignment of error, appellant argues that the trial court erred by ordering the two indictments to be tried together.
{¶ 15} At the court‘s direction, the prosecution moved to consolidate these two cases on May 18, 2011, for trial purposes only on the ground that the two cases were
{¶ 16} Appellant filed amended objections on June 13, 2011, arguing that consolidation of two unrelated cases will cause appellant to lose four peremptory challenges and he will be prejudiced by trying the charges together. On June 14, 2011, the court reaffirmed its prior ruling which consolidated the two cases. At trial, appellant also objected to trying the cases together on the ground that trying the cases together prohibited him from testifying as to one indictment but asserting his Fifth Amendment privilege to remain silent as to the other indictment. The court denied the motion to sever finding that appellant had been forewarned that the court would consolidate the cases even before formally doing so.
{¶ 18} Appellant asserts on appeal for the first time that the evidence of the separate indictments in this case would not have been admissible in separate trials because the two indictments involve separate and distinct conduct. He further asserts that the joint trial created an accumulation of evidence which may have led the jury to convict him on both indictments.
{¶ 19} First, appellant failed to present this issue to the trial court and has therefore waived the issue. Second, we find appellant‘s argument lacks merit. When evidence of the crimes contained in the two separate indictments would have been admissible at separate trials, there is no greater prejudice by allowing the evidence to be
{¶ 20} In this case, the trial court concluded and we agree that the forgery acts and the failure to transfer proper title to a vehicle were part of a common course of criminal conduct to defraud others for monetary gain and all of the criminal acts occurred within the same eight-month time frame. Furthermore, the evidence related to each criminal charge could be easily separated and understood by the jury in its deliberations. Therefore, we find appellant failed to demonstrate that the trial court abused its discretion by consolidating these indictments for trial. Appellant‘s second assignment of error is found not well-taken.
{¶ 21} In his third assignment of error, appellant argues that there was insufficient evidence to support the verdict and the verdict was contrary to the manifest weight of the evidence. Although appellant states his assignment of error broadly, he only asserts this error as to the evidence presented to establish the ten theft counts and, consequently, the racketeering charged based on the numerous theft counts.
{¶ 23} Robert Gallo testified that after several complaints were received by the department regarding appellant‘s failure to provide title or memorandum of title to purchased vehicles, Gallo began to investigate. Gallo explained that by Ohio law, a purchaser of a vehicle is supposed to receive the certificate of title to the vehicle (for a cash purchase) or a memorandum of title (for a financed purchase) within 40 days from the date of purchase. When the customer‘s temporary 30-day license tag expired and the customer sought a second temporary tag, they were also required to fill out a dealer complaint form so that the department could investigate the cause for the delay in providing the title or memorandum of title. After the second temporary tag expired, the
{¶ 24} As a result of his investigation, Gallo discovered nine customers who never owned the vehicles they purchased and, in some cases, Newman Motors never owned the vehicle at the time of the sale. Five of the customers could have been given good title, but they did not receive the title because appellant had not yet paid off his loan, which had enabled him to purchase the vehicles. Gallo visited appellant‘s dealership on January 5, 2011. Gallo discovered that appellant had five vehicles illegally on display for sale because he did not have certificates of title for the vehicles.
{¶ 25} Gallo further explained that the Ohio Title Defect Rescission Fund, formed by the Ohio Dealers Association and administered by the Ohio Attorney General‘s office, reimburses customers who do not receive their titles. Gallo testified that appellant remained a member of the fund until the fund had to reimburse one of appellant‘s customers, Gertrude Henry, on October 1, 2010, because she did not receive the title to
{¶ 26} Jeffrey Dreyer, President of Floor Plans Commercial Investment Associates, Floor Plans, Inc. (hereinafter “Floor Plans“), testified that his company supplied appellant with a floor plan for approximately a one-year period of time from 2009-2010. During this association, appellant was provided with funds to put vehicles on his lot for sale. When appellant would purchase a car, Floor Plans would advance the money for the purchase and appellant would receive title to the car in his name, subject to Floor Plans’ lien, and appellant would forward the title or a copy to Floor Plans. Floor Plans would release its lien on the title and forward the title to appellant whenever the vehicle was sold to a customer and appellant paid off his loan. After appellant defaulted
{¶ 27} Floor Plans also provided appellant with a “buy here, pay here program.” Under that program, if a customer made only a down payment and sought to finance the remainder of the purchase, appellant would present Floor Plans with a contract between the dealer and the customer for the remaining balance. Floor Plans would advance the money to appellant who would pay off his loan and Floor Plans would take title to the vehicle as collateral.
{¶ 28} Through both programs appellant is currently indebted to Floor Plans for more than $100,000. By the time of trial, Floor Plans had either passed good title to the cars purchased through appellant to the state of Ohio at its request or directly to the purchasers of the cars.
{¶ 29} Tonya Hughes testified that she purchased a vehicle for cash from appellant in February 2010. Appellant told her that he did not have the title for the car, but it would be coming soon in the mail. She had to get five temporary 30-day license tags. She contacted appellant throughout this time period, but he never produced the title. She no longer has the vehicle because it was taken away in June 2010 by a towing company who alleged that it was being repossessed by Tiffin Auto Auction because money was owed on the car. Hughes immediately went to appellant who agreed that an error had
{¶ 30} Joseph Work, who had a prior misdemeanor theft conviction, testified that he purchased a vehicle from appellant in March 2010. He paid cash for the vehicle, but did not receive the title to the car. He returned to appellant several times, but was never able to get the title. He asked for a refund after the second time he had to get a temporary tag, but appellant refused asserting he was in bankruptcy. As a result, Work had to repeatedly buy temporary 30-day license tags. Appellant gave him dealer tags at one point. In March 2010, Work learned he could obtain the title by calling a bank, but it required him to pay an additional $385 for the title and taxes, which Work asserted he already paid to appellant. Work filed a complaint at the title bureau and complained to the police department. The police told him it was a civil matter. Gallo confirmed that
{¶ 31} Martha Coss testified that she purchased a car from appellant in March 2010, that she was told was a 1991 model; but she learned from the owner‘s manual shortly before trial that it was a 1989 model. She also discovered that he gave her the wrong VIN number when she attempted to purchase a temporary 30-day license tag. He also told her that her title would be coming in a few days. She never received the title and has had to purchase temporary tags for a year. In March 2011, she was unable to drive the car any longer because it had so many things wrong with it, and she did not want to repair a car for which she did not even hold the title. She repeatedly contacted appellant about getting the title. He told her to contact someone at an 800 number and she did, but was informed that she had no recourse. Coss also spoke with Gallo after she attempted to get a second temporary 30-day license tag. He directed her to fill out a complaint form for the Attorney General‘s office, but she has not heard anything from them. Gallo testified that Floor Plans holds the title to this car and has a repossession order on it and could seize the vehicle.
{¶ 32} Janae Smoot testified that she purchased a vehicle from appellant in March 2010. She paid $2,000 in cash and agreed to pay $1,267 after she received her title. She purchased two temporary 30-day license tags and then obtained a dealer plate from appellant. Smoot had to return to appellant‘s business several times to attempt to get the title. The car was repossessed by Tiffin Auto Auction sometime after May 2010 along
{¶ 33} Gertrude Henry, a 65-year-old widow, testified that she purchased her first car from appellant in April 2010. She visited appellant‘s business several times and told appellant that she would purchase a car after she received an insurance check she would be receiving because her prior automobile was totaled in an accident. Her insurance company called her afterward because appellant had been calling them about when Henry would receive her insurance check. When Henry purchased the car, appellant refused to accept the insurance check as part of the cash payment. Instead, he had someone at the dealership drive her to the bank so she could cash the check and pay appellant cash for the car. She never received the title for the car despite her repeated attempts to obtain it and had to keep purchasing temporary 30-day license tags. Appellant always promised the title was in the mail and eventually refused to take her calls. Appellant refused to refund her money. Eventually, Henry called the Attorney General‘s office to file a
{¶ 34} Luz Galindo testified that she attempted to purchase a second car from appellant in 2010. Galindo put a deposit down on a car while she tried to secure a loan. When the loan officer entered the VIN number appellant had provided into the computer, she could not locate the vehicle. The loan officer called appellant and he gave her a different number and the loan officer was able to pull up the information she needed. However, Galindo was unable to obtain the loan. Appellant never offered to finance the vehicle, but promised to work with her. In the meantime, Galindo determined that she would be able to obtain the money from another individual in April 2010. She asked appellant to return her deposit check back, but he convinced her to put down an additional sum for a total of $1,000 so he could hold the car for her until she was able to get the rest of the money.
{¶ 35} When she returned to pay the additional sum, the car was not on the lot. Appellant explained that he had moved the car to his Tiffin lot because he was being
{¶ 36} Joy Hillman testified that she purchased a car from appellant on May 22, 2010, for $3,500 cash. She did not receive title to the car that day and obtained a temporary license tag. Near the end of the 30-day time limit for the tag, she began questioning appellant about obtaining the title to the car. When Hillman complained about getting a second tag, appellant gave Hillman $20 to cover the cost of a second
{¶ 37} Charlene Boesch testified that she purchased an automobile from appellant in June 2010. She paid a deposit and then paid the remainder in full when she received the car. She had to purchase ten temporary 30-day tags because she never received the title to the car. She attempted to reach appellant by telephone, but he never answered or returned her calls. Her husband went to see appellant about the title, but he was not able to obtain it. After she had returned to the license bureau several times to purchase temporary tags, they put her in contact with Gallo. Eventually, in May 2011, she was able to get rid of the car and recover the purchase price through the Title Defects Rescission Fund. By that time, she had discovered that the car had several malfunctions she could no longer accept. Gallo testified that this vehicle was owned by Newman Motors and then Shaquilta Johnson, who financed the car. It appeared that appellant had either repossessed the vehicle or Johnson had returned it and appellant sold the vehicle without the ability to transfer the title.
{¶ 38} Jessica Smith and her mother, Lora Smith, testified that Jessica Smith purchased a truck from appellant in October 2010. She paid $2,500 in cash and financed
{¶ 39} Lora Smith acknowledged that her signature is on the back of the title and recognized it as a paper appellant asked her to sign one of the last times she visited him in January 2011. She denied that appellant ever asked her to return to sign a retail installment sales contract. She recalled that he asked her to come over because he had the title, but then after he had her sign the back of a paper which she did not read, he still did not give her the title. After she left that day, she called the police to report the situation again. Gallo testified that Newman Motors did not acquire title to this vehicle
{¶ 40} Appellant testified in his defense that he has been involved in car sales for over 30 years and his license, which was first obtained in the early 1990s, has never been revoked or suspended. He has been operating at the current business site for the last eight years and continued to operate it at the time of trial. Most of his customers were people he knew from the community, referrals, or returning customers. Ninety-five percent of his vehicles were purchased through Tiffin Auto Auction. He testified that he never sold a car for which he did not honestly believe he could obtain a title. He attempted to work with them no matter what problems arose. He also believed that when an auction company assigned title to him that he had good title to sell the vehicle.
{¶ 41} Appellant testified that he was not aware that he was removed from the Ohio Title Defect Rescission Fund until he received a letter from the Ohio Attorney General in March 2011 after it was hand delivered to him. Until that time, appellant believed he had the authority to sell the vehicles he had financed.
{¶ 42} Appellant testified that when he sold a car to Work, Henry, Hillman, and Boesch, he had the right to sell the vehicles, he did not intend to deprive them of ownership of the vehicles, and attempted to accomplish the transfer of title within the forty-day time limit set by law, but was unable to do so. He further testified that with
{¶ 43} Regarding the repossession of Hughes’ and Smoot‘s automobiles by Tiffin Auto Auction, appellant testified that although he knew he was under a Chapter 7 bankruptcy at the time of the sales, he was advised that his customers who financed a vehicle would be protected from repossession. He later learned that he should have filed a Chapter 13 bankruptcy to achieve this goal. His attorney attempted, unsuccessfully, to resolve the issue. Appellant gave both Hughes and Smoot one of his vehicles to drive until the issue was resolved because of his concern for them. He even had to take a loss for Smoot because she never fully paid for her automobile. Floor Plans had cut off his line of credit in March 2010, called its note due, and removed almost all the vehicles appellant had on his lot. However, on cross-examination, appellant explained that he purchased the vehicles from the Tiffin Auto Auction with a check written on his Floor Plans credit line. When Floor Plans cut off his credit, the check was not honored. At that point in time, appellant owed Floor Plans over $100,000. Appellant denied knowing that his line of credit would be cut off. He asserted that the money he received from customers was being used to pay off his loan to Floor Plans.
{¶ 44} Regarding Coss, appellant testified that he simply made a mistake regarding the model of the vehicle. When he had trouble with some customers like Coss who had paid cash and he was unable to obtain a title from Floor Plans, appellant
{¶ 45} With respect to Galindo, he offered to return her deposit, but she agreed to pay him an additional $500 and then obtain other financing for the remaining balance. That car was on his lot after repossession so he could not sell it for a period of time. But, before Galindo returned, Floor Plans came and took the car. Appellant tried to get it back, but was unable to do so. Because he had already filed for bankruptcy, he told Galindo that he could not return her money, but offered her another car.
{¶ 46} Appellant testified he sold Jessica Smith a vehicle he purchased at an auction in Detroit after Floor Plans cut off his credit line and he had problems with Tiffin Auto Auction. After the sale, appellant told Smith that she would have to come back in two weeks to have an out-of-state vehicle inspection done so that he could obtain an Ohio certificate of title. He had never gotten around to getting it done before he sold the car. She never returned and when she did not make her payments, appellant repossessed the car. Even after repossession, he never had time to get the inspection done. When Lora Smith complained, appellant explained everything to her because Jessica had not told her mom that she had financed the car. Despite the fact that he could have repossessed the car, kept the down payment, and charged a fee, he worked out an agreement with Lora Smith for her to make lower payments on the car within a set period of time to regain the car. He finally got the inspection done in January 2011. After Lora Smith made all of the payments, he transferred title into her name. She was supposed to return to sign the
{¶ 47} To evaluate the evidence of theft in this case, we begin with the prima facie elements of theft as stated in
No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services * * * [b]y deception.
Appellant‘s only argument is that the prosecution did not prove appellant had the intent to deprive any of the consumers of their automobile because all of the consumers received an automobile and therefore had ownership of the vehicle because they possessed it.
{¶ 48} A challenge to the sufficiency of the evidence is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The standard for determining whether there is sufficient evidence to support a conviction “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 beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded by constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 103, 684 N.E.2d 668 (1997), fn. 4, citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.E.2d 560 (1979). See also Thompkins. Therefore, “[t]he verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier-of-fact.” State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997), citing Jenks at paragraph two of the syllabus.
{¶ 49} Even when there is sufficient evidence to support the verdict, a court of appeals may decide that the verdict is against the weight of the evidence. Thompkins at paragraph two of the syllabus. When weighing the evidence, the court of appeals must consider whether the evidence in a case is conflicting or where reasonable minds might differ as to the inferences to be drawn from it, consider the weight of the evidence, and consider the credibility of the witnesses to determine if 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.” Id. at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983), and Smith at 114.
{¶ 50} At trial, appellant spent a considerable amount of time eliciting testimony from appellant‘s customers, who never received a certificate of title or memorandum of title, relating to their possession and control over the automobile. Appellant was attempting to establish that these customers were bona fide purchasers for value and, therefore, no theft occurred. However, this issue is unrelated to the alleged theft in this case: taking money from customers with the intent to deprive them of their money by deceiving them into believing that good title to the vehicle would be transferred. We find there was sufficient evidence presented to support the convictions for theft and,
{¶ 51} In his fourth assignment of error, appellant argues that the trial court erred as a matter of law and abused its discretion by giving improper jury instructions. It became apparent to the court during the trial that appellant was eliciting testimony to argue that these customers were “owners” of their vehicles by their possession and use of the vehicles. The court asked appellant about the legal basis for these questions and warned him that if he continued to use the term “bone fide purchaser of a title,” the court would instruct the jury that ownership of a vehicle is established by a certificate of title. After all of the customers had been cross-examined, the court gave appellant an additional opportunity to justify the questioning. However, after the state rested, the trial court gave the following jury instruction:
The Court tells you what the applicable law is. I am permitted by law to clarify certain things from a legal perspective. Don‘t draw any inference, inference from that which I‘m about to tell you, but there has been an issue that has arisen, and I want to read you three separate sections, parts, or reference three sections of the Revised Code. Two of them are under the motor vehicle section, which is Chapter 45, and the other is under the consumer protection section, which is Chapter 13.
Under
4505.18 , there‘s a prohibition that‘s set forth under that particular section that reads as follows: A party may not sell a motor vehicle, the ownership of which is not evidenced by an Ohio Certificate of Title.Under
4501.01 , the Ohio Revised Code defines ownership and, in part, states this: Owner includes any person that has title to a motor vehicle.And then, finally, under the consumer protection chapter, which is
1345.06(E)(1) : Sale of a motor vehicle requires certificate of title.What I‘m saying to you, in essence, is there is a requirement in Ohio to prove ownership statutorily, that a party has a title to a vehicle.
We receive our law in two separate ways; by way of statute, some of which are included within this book, and by way of case law. I have asked the attorneys to provide me with case law that contravenes the statute. If that is the case, and if they have case law that does that, I‘ll read that to you tomorrow.
And, when the court gave all the jury instructions following closing arguments, the court stated:
The Court did take judicial notice of the fact and the law in Ohio, that in order to transfer property that relates to a motor vehicle, proof of ownership is a certificate of title. That‘s something that is noticed. You‘ll
accept that as a factual circumstance and then you‘ll see how that fits into your deliberation process in this case.
{¶ 52} Appellant‘s argument is based solely upon an alleged conflict between cases which hold that “equitable ownership” of a motor vehicle can be established in other ways than by the certificate of title under
{¶ 53} We find that none of these cases are applicable to the case before us. This case does not involve the issue of who is the rightful owner of the vehicle. Instead, the issue is whether appellant had a legal right to sell a vehicle under Ohio law and whether he sold these vehicles knowing that he could not transfer good title to the consumers.
{¶ 54} In his fifth assignment of error, appellant argues that the trial court erred by giving improper jury instructions and by making offhand comments that prejudiced appellant. Appellant argues that the following statement by the court while giving jury instructions was improper:
Count 13 is a theft charge. That relates to an allegation of $3,500 taking -- taken allegedly from Joy Hillman. I‘ve defined everything that you need in order to evaluate that count.
Again, Count 14 is an ancillary count relative to the offense of certificate of a motor vehicle title law. I‘ve talked about that enough. You will see what that relates to when you look at the verdict forms.
{¶ 55} Appellant argues that the trial court erred by instructing the jury that it could use one count to support another count. We note that appellant failed to object to this jury instruction at trial and forfeited the right to assign the issue as error on appeal absent a showing of plain error. See
{¶ 56} We find no error occurred by the use of the word “ancillary” to connect the two offenses of theft of the purchase money and sale of the automobile without delivering the certificate of title. The court used the word only in the sense that both crimes involved a transaction involving a particular customer. There is no basis for finding that the court implied that a conviction on one count would automatically require a conviction on the other count. The court simplified the instructions for the jury to aid them in keeping clear how the charges related to the separate transactions.
{¶ 57} Appellant also asserts that the trial court erred by instructing the jury that it could find appellant guilty of defrauding someone who was not listed in the indictment. He points to a portion of the trial transcript concerning the complicity to commit forgery instructions. While appellant has confused the two counts, we address the issue of the instruction relating to the complicity charge.
{¶ 58} Bryan Myers, the Chief Credit Officer and Executive Vice President of Vacationland Federal Credit Union (hereinafter “Vacationland“), testified that when an insurance check is over $10,000, the credit union has a servicing company, Central Loan Administration and Processing (hereinafter “CENLAR“), supervise the process of holding the check until the repairs are done and then paying off the contractor. The issue presented is whether the jury instructions could reference both CENLAR and Vacationland when the indictment counts did not include both entities.
{¶ 59} The court instructed the jury as to the complicity to commit forgery charge that appellant “with purpose to defraud, aided or abetted Nicholas Lesch in committing the offense of * * * forging an authorized signature of either [CENLAR] and/or [Vacationland] so that it purported or appeared to be genuine * * *.” Counts 1 and 2 of the indictment indicate that the forged signature was that of CENLAR with respect to the complicity to commit forgery charges but indicated that appellant defrauded his creditor, “[CENLAR] ([Vacationland])” in Count 4. The indictment was amended as to Count 4 to change the check number on June 14, 2011.
{¶ 60} After the prosecution completed its closing arguments, but before the jury instructions were read, the court discussed altering the jury instructions with respect to the complicity charges “to reflect [CENLAR] and/or Vacationland, in light of the fact that they are one in the same.” Appellant objected to the change. The court responded that the prosecution “would move to amend the indictment to reflect [CENLAR] and/or Vacationland.” Appellant also asserted the same objection for the defrauding creditors count, but that section of the original indictment included the names of both entities. Upon a review of the record, we cannot find that the prosecution ever moved to amend the indictment to amend the complicity counts to include both business names.
{¶ 61} After the jury instructions were read, appellant again objected to the addition of CENLAR for the complicity charge on the ground that the indictment only included Vacationland. The court responded that the prosecution had requested an
{¶ 62} Appellee asserts that CENLAR is essentially the same entity as Vacationland and, therefore, appellant was not prejudiced by the jury instruction.
{¶ 63}
No person, with purpose to defraud, or knowing that the person is facilitating a fraud, shall * * * [f]orge any writing so that it purports to be genuine when it actually is spurious, or to be the act of another who did not authorize that act, or to have been executed at a time or place or with terms different from what in fact was the case, or to be a copy of an original when no such original existed.
{¶ 64} Because the name of the victim is not an essential element of the crime of complicity to commit forgery, there was sufficient evidence to support the conviction despite the error in the indictment identifying the victim. Compare State v. Moore, 2d Dist. No. 24957, 2012-Ohio-3604, ¶ 31. Furthermore, even if the name of the victim was an essential element, appellant failed to demonstrate any prejudice resulted from the error. Id. at ¶ 32. Therefore, appellant‘s fifth assignment of error is not well-taken.
{¶ 65} In his sixth assignment of error, appellant argues that the trial court committed plain error by giving an accomplice jury instruction and improperly commenting to the jury regarding an incident with the co-defendant outside the presence
{¶ 66} With respect to the forgery charges, the following evidence was admitted. Aaron Bramel, a Perkins Township police officer testified that he received a call about a possible forgery in June 2010. Bryan Myers, the manager of Vacationland Federal Credit Union, reported a possible forgery relating to some hail damage checks that had been cashed by possibly appellant for two properties (Sweetbriar Drive and Morningside Court). One check for $5,440.10 was issued by Motorist Mutual Insurance Company to appellant and Central Loan Administrative and Reporting, which is the mortgage company of Vacationland Federal Credit Union. The check was endorsed by appellant, next to his social security number, and another person, whose name is illegible.
{¶ 67} The second check was issued by Motorist Mutual Insurance Company to appellant, Pam Newman, and Central Loan Administrative and Reporting. The check was endorsed by appellant, Pam Newman, and another name that is illegible. Both appellant‘s and Pam Newman‘s social security numbers are next to the signatures. There was nothing on the check to indicate that appellant had signed the check for Central Loan Administrative and Reporting. However, when Officer Bramel investigated the matter, he learned that Pam Newman had not signed the check and that Nicholas Lesch admitted he signed the check. There is no indication that Lesch signed on behalf of Central Loan Administrative and Reporting.
{¶ 69} Nicholas Lesch testified that he owns Lesch Tree and Landscape Service and has been in business four years and had done some landscaping work for appellant in the past. Lesch testified in this case that he had been charged with two forgery counts as a result of his conduct. He also testified that he had reached a plea agreement with the prosecution to testify truthfully in exchange for entering a plea to two misdemeanors and hoped to get probation.
{¶ 70} At trial, Lesch recalled appellant had called and asked Lesch to sign some insurance checks as a contractor because appellant needed the money. One check was for $5,444.10 and the other was for $16,179.03. Lesch called Ace America Cash Express near appellant‘s business to determine if the company could cash the checks. Lesch had
{¶ 71} Lesch signed after appellant on one of the checks. They did not cash the second check because appellant needed to get his wife‘s signature. Lesch did not do anything to indicate that he had any relationship with Central Loan Administration. Lesch did not believe he was doing anything wrong by signing the check.
{¶ 72} Appellant had offered to give Lesch $2,000 to help cash the checks. Lesch felt uncomfortable with the arrangement, but offered to do some work for appellant. That day appellant gave Lesch $400 and Lesch returned to appellant‘s business to do some work for him. Lesch had someone repair a broken door and window. There was no written contract between them and Lesch did not give appellant a receipt either.
{¶ 73} The next day, Lesch and appellant returned to Ace America Cash Express to cash the second check. Sometime after the check was cashed, appellant revealed to Lesch that appellant had signed his wife‘s name on the second check. For an additional $400, Lesch had a crew from his business do some additional yard work for appellant at his home. Lesch asserted that appellant owed him an additional $400 for the work but could not remember if appellant actually paid him or not. When Lesch was working on
{¶ 74} A few months later, after the police began to question appellant about the checks, appellant asked Lesch to do some work on his roof and gutters. Appellant also asked him to create a bill for storm damage repair, but Lesch did not.
{¶ 75} When a defendant is charged with complicity and his accomplice testifies,
“The testimony of an accomplice does not become inadmissible because of his complicity, moral turpitude, or self-interest, but the admitted or claimed complicity of a witness may affect his credibility and make his testimony subject to grave suspicion, and require that it be weighed with great caution.
“It is for you, as jurors, in the light of all the facts presented to you from the witness stand, to evaluate such testimony and to determine its quality and worth or its lack of quality and worth.”
{¶ 76} In the case before us, the court made the following comments while giving the jury instruction:
We‘ve heard the testimony of an accomplice, Nicholas Lesch, another person who pleaded guilty to the same crime charged in this case and is said to be a, quote, unquote, accomplice. * * * Whether Nicholas Lesch was an accomplice and the weight to be given his testimony are
matters for you to determine. Testimony of a person who you find to be an accomplice should be viewed with grave suspicion and weighed with great caution. * * * [A]nd I will tell you that he was sentenced this afternoon and there was an agreement as it relates to sentence, and he received community control sanction and he got a suspended six month sentence for the misdemeanor. You can take that into consideration. And that was something that was told to you from the witness stand, that he had an agreement with the State of Ohio.
{¶ 77} Appellant takes issue with the fact that the court went beyond the requirement of the statute and added that the accomplice had been convicted and what sentence he received. Appellant argues that this additional comment prejudiced his case by causing the jury to believe that the accomplice must have been truthful because he received the sentence he had been promised for cooperating with the prosecution and testifying against appellant.
{¶ 78} The basic purpose for the statutorily-mandated jury instruction is to ensure that the jury is informed that the testimony of an accomplice is inherently suspect and must be “viewed with suspicion and weighed with caution.” State v. Bell, 8th Dist. No. 97123, 2012-Ohio-2624, ¶ 37. The better practice would be for a trial court to repeat verbatim the instruction on accomplice testimony contained in the statute. However, we do not find that the court‘s statements in this case were erroneous.
{¶ 80} Having found that the trial court did not commit error prejudicial to appellant, the judgment of the Erie County Court of Common Pleas is affirmed. Appellant is ordered to pay the court costs of this appeal pursuant to
Judgment affirmed.
Peter M. Handwork, J.
JUDGE
Arlene Singer, P.J.
JUDGE
Thomas J. Osowik, J. CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.