STATE OF OHIO v. DANIEL A. PRUETT
No. 101471
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
April 9, 2015
[Cite as State v. Pruett, 2015-Ohio-1377.]
STATE OF OHIO, PLAINTIFF-APPELLEE vs. DANIEL A. PRUETT, DEFENDANT-APPELLANT
JUDGMENT: VACATED AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-580766-A
BEFORE: S. Gallagher, J., Jones, P.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: April 9, 2015
Robert L. Tobik, Cuyahoga County Public Defender, By: Cullen Sweeney, Assistant Public Defender, Courthouse Square Suite 200, 310 Lakeside Avenue, Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty, Cuyahoga County Prosecutor, By: Ryan J. Bokoch, Assistant Prosecuting Attorney, Justice Center - 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113
{¶1} Defendant Daniеl Pruett appeals his conviction for a single theft count. For the following reasons, we vacate his conviction and remand for a new trial.
{¶2} According to the state, Pruett was arrested on November 19, 2013, in connection with a theft claim initiated by Detroit Lakewood Automotive (“Lakewood Automotive“) and Neubert Painting (“Neubert“). On Monday, November 11, 2013, an owner of Lakewoоd Automotive, Timothy Miller, noticed that one of their house account holders, Neubert, was charged for a fuel purchase a day earlier. Miller questioned the transaction because Neubert employees supposedly did not work on Sundays. Miller contacted Matthew Buchwald, an operations manager for Neubert, and inquired about its Sunday work habits. Together, Miller аnd Buchwald went through a year‘s worth of Neubert‘s house account transactions with Lakewood Automotive. A Neubert employee stated that no transaction could occur on a Sunday, although the records show that Neubert employees authorized a transaction for Sunday April 7, 2013.
{¶3} As Miller explained, Neubert held a house account with Lakewood Automotive. This meant that a Neubert employee could pump fuel or get a vehicle repaired without tendering immediate payment. Instead, the Neubert employee signed a ticket indicating the amount owed, and Lakewood Automotive would bill Neubert at the end of the month.
{¶5} The signature loosely appeared to be by a person with the initials E.H. Buchwald maintained that Nеubert employed only one individual with those initials, but he was not hired until the summer of 2013. The disputed transactions started in January of that year. Buchwald authenticated a list of Neubert‘s employees in 2012 and 2013 that was produced during discovery at Pruett‘s request. The list was incomplete. In December 2013, a person named Ron Andregg signed a ticket for fuel, and although his identity was alluded to during trial testimony, hе was not listed as a Neubert employee according to that list. In the process of reviewing the disputed transactions, Miller concluded that the only attendant on duty at the time of the transactions was Pruett. There are several undisputed transactions, however, that do not bear any signature and were handled by other attendants. For unknown reasons, Neubert accеpted those transactions as legitimate.
{¶6} On Monday, November 11, Miller questioned Pruett about the Sunday, November 10 purchase. Pruett told Miller that a Neubert employee with curly, black hair had purchased fuel and was a regular Neubert customer. Miller immediately
{¶7} The intake officer, Officer Ciresi, took the documents and forwarded the file to Detective Fuerst. Det. Fuerst received the file on November 18, 2013. Thereafter, a short discussion was had between Det. Fuerst and Pruett. No handwriting exemplar was requested, and therefore, no expert reviewed whether Pruett signed the disputed tickets as E.H. Pruett was arrested the next day and charged with theft in violation of
{¶8} At trial, the state asked Det. Fuerst whether, based on his investigation, he had any reason to doubt that Pruett signed the tickets as E.H. Det. Fuerst responded in the negative. Officer Ciresi testified that he verified the information as related by Miller and Buchwald. Neither Officer Ciresi nor Det. Fuerst conducted an investigation beyond speaking with the victims and Pruett.2
{¶9} Miller explained the basis for his belief that Pruett stole money. According
{¶10} The state‘s primary evidence of theft came from an inferential leap.
{¶11} Miller‘s calendar, however, indicated that one such disputed transaction for $40 occurred on October 16. In reviewing the register tape in the state‘s exhibit No. 13, which covered that period, fuel worth $35 was pumped during that transaction. The state‘s theory rested on the necessary assumption that no fuel was dispensed during those four transactions because Pruett was using the house account to cover the missing cash skimmed from the register. According to the state‘s evidence, however, the documents supporting the October 16 transaction facially contradicted the state‘s theory because fuel was actually pumped. The other three transactions were free of this discrepancy.
{¶12} Upon this evidence, the jury found Pruett guilty of theft. The court sentenced Pruett to two years of community control, including 30 days of county jail time. Pruett timely appealed. In his second assignment of error, Pruett claims his trial counsel rendered ineffective assistance by failing to object to Officer Ciresi‘s and Det. Fuerst‘s statements attesting to the veracity of witnesses. We agree. As a result, Pruett‘s first and third assignments of error, claiming error with the admissibility of evidence and his conviction being against the manifest weight of the evidence, are moot.
{¶14} Pruett specifically challenged the admissibility of two statements. At trial, Pruett‘s counsel did not object to Officer Ciresi‘s testimony that he verified Miller and Buchwald‘s story. At the end of his testimony, Officer Ciresi stated in response to a question about his involvement:
Officer: My involvement was I documented the receipts. I documented this calendar and what Mr. Miller and Mr. Buchwald told me, and then I forwarded that to the officer in charge.
Prosecutor: Now, were you ever able to take a look at the receipts as well as the calendar?
Officer: Yes. Back in November of last year I did.
Prosecutor: Were you able to verify the information that was рrovided to you?
Officer: Yes, I was.
Prosecutor: Based upon your investigation into the matter, was there any reason to doubt that was Daniel Pruett that signed those slips?
Detective: No.
Prosecutor: And you spoke with Daniel Pruett?
Detective: Yes.
Tr. 270:16-21. Like Officеr Ciresi, in the absence of any independent accounting of Lakewood Automotive‘s business records or the opportunity to conduct a sting of Pruett‘s conduct, Det. Fuerst was put in the position of accepting Miller and Buchwald‘s theory of the alleged theft.
{¶15} Pruett argues that both statements violated the prohibition against witness bolstering, and therefore, his trial counsel‘s performance was deficient in failing to object to the prosecutor‘s line of questioning. Generally, “the opinion of a witness as to whether another witness is being truthful is inadmissible.” State v. Dzelajlija, 8th Dist. Cuyahoga No. 88805, 2007-Ohio-4050, ¶ 34, citing State v. Boston, 46 Ohio St.3d 108, 128, 545 N.E.2d 1220 (1989). “In our system of justice, it is the factfinder, not the expert or lay witness, who bears the burden of assessing the credibility or veracity of a witness.” Id., citing State v. Eastham, 39 Ohio St.3d 307, 312, 530 N.E.2d 409 (1988). In this case, we agree the statements were improper based primarily on the fact that there really was no underlying accounting of the business records of Lakewood Automotive.
{¶16} Officer Ciresi testified to verifying Miller and Buchwald‘s statements. Without an accounting, there was nothing for Officer Ciresi to verify. See State v. Sutton, 8th Dist. Cuyahoga No. 100037, 2014-Ohio-1074, ¶ 51 (officer‘s testimony that there were inconsistencies in a witness‘s version of events based on the subsequent investigation was not a comment on the witness‘s veracity); State v. Black, 8th Dist. Cuyahoga No. 92806, 2010-Ohio-660, ¶ 31 (officer‘s testimony comparing witness statements to other statements is not attesting to the veracity of a witness). It must be remembered that Miller and Buchwald presented Officer Ciresi with the tickets from only the 90 disputed transactions and their claim that Pruett was the only attendant working on the days of those transactions and the signatures on the tickets were not from an employee of Neubert. The tickets themselves could not be objectively compared to the calendar because the tiсkets were not time stamped. It is undisputed that Pruett generally worked
{¶17} The prosecution‘s elicited statement from Det. Fuerst that he had no doubt Pruett signed the tickets as E.H. was equally improper. The investigation at that point was limited to speaking with the victims and Pruett, the only conclusion being that the detective believed the victims’ story, but not Pruett‘s. Again, the documentary evidence provided to Det. Fuerst could not be objectively reviewed. The evidence meant nothing without the victims’ interpretation. The “fact that the vouching witness was a police officer makes the opinion testimony even more [significant.] ‘Jurors are likely to perceive police officers as expert witnesses, especially when such officers are giving opinions about the present case based upon their previous experience with other cases.‘” Dzelajlija, 8th Dist. Cuyahoga No. 88805, 2007-Ohio-4050, ¶ 37, quoting State v. Huff, 145 Ohio App.3d 555, 561, 763 N.E.2d 695 (1st Dist.2001). Both statements were inadmissible and should have been excluded had an objection been raised. Admitting the statements over an objection is reversible error. Boston, 46 Ohio St.3d 108, 128-129, 545 N.E.2d 1220 (1989).
{¶18} In light of the deficient performance, we now turn to whether that deprived Pruett of a fair trial. ”Strickland directs us to look at the ‘totality of the evidence before
{¶19} We note that thе error cannot be cured by instructing the jury that it is their burden, and theirs alone, to determine the credibility of witnesses in cases in which there is no corroborating evidence of guilt beyond the credibility of the bolstered witness. See State v. Boston, 9th Dist. Summit No. 13107, 1988 Ohio App. LEXIS 732 (Mar. 2, 1988) (appellate court originally held that the jury instruction cured the error in admitting the bolstering evidence, but the Ohio Supreme Court ultimately overruled that decision and reversed for a new trial); but see State v. Black, 12 Dist. Butler No. CA95-06-102, 1996 Ohio App. LEXIS 1562 (Apr. 22, 1996) (jury instruction cured any plain error in admitting bolstering evidence).
{¶20} In this case, the evidence of theft is the interpretation of the tickets based on the credibility of the three witnesses: Miller, Buchwald, and Pruett. When viewed in this light, our decision in Dzelajlija, is instructive. In that case, only one witness could identify the defendant as the рerpetrator of a crime, and there was no corroborating
{¶21} In this case, although Pruett did not dispute that he created the disputed tickets, he disputed the allegation that he signed each ticket as E.H. Pruett‘s, Miller‘s, and Buchwald‘s credibility was a dispositive issue. They provide the only evidence linking the 90 disputed transactions to a theft, by Pruett. There is no corroborating evidence beyond the witnesses’ testimony, all affected by the improper statements. The documents admitted at trial are not proof of a crime until interpreted through the lens of Miller and Buchwald‘s testimony. Eliciting both officers’ opinions as to the veracity of Miller, Buchwald, and Pruett impermissibly infringed upon the role of the jury to determine the witnesses’ credibility.
{¶22} Accordingly, we cannot say that the deficient performance of Pruett‘s trial counsel still provided Pruett a fair trial. Having substantiated both prongs of the ineffective assistance of counsel argument, Pruett‘s second assignment of error is
It is ordered that appellant recover from appellee costs herein taxed. The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
SEAN C. GALLAGHER, JUDGE
ANITA LASTER MAYS, J., CONCURS;
LARRY A. JONES, SR., P.J., CONCURS IN JUDGMENT ONLY