State v. RhodehamelState v. Rhodehamel
Ron O‘Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellee.
David J. Graeff, for appellant.
APPEALS from the Franklin County Court of Common Pleas.
FRENCH, J.
{¶1} Defendant-appellant, David R. Rhodehamel (“appellant“), appeals the judgments of the Franklin County Court of Common Pleas, which convicted him of six counts of money laundering, two counts of theft, and one count of forgery. For the following reasons, we affirm.
{¶3} Aрpellant pleaded not guilty to the charges, and a jury trial ensued. At trial, Steve Kahn testified that appellant started working for Wears, Kahn, and McMenamy in the 1990‘s and that one of his duties was to manage the commercial real estate owned by Mattlin Holdings LLC.
{¶4} Robert McMenamy, also of Wears, Kahn, and McMenamy, testified as follows. Around 2000, appellant was running all facets of the property management company, and, among his responsibilities, he supervised bookkeepers who generated monthly statements for clients. The statements documented exрenses and profits for property the company managed. Appellant was also in charge of a large bank account holding funds for the company‘s clients. The account was set up in 2002 at appellant‘s suggestion. Prior to that time, each client had a separate bank account. Although
{¶5} Donna Connolly, a bookkeeper at Wears, Kahn, and McMenamy, testified about the company‘s computerized bookkeеping system. She said that although appellant was not “technologically savvy,” he “probably could have figured” out how the system worked if he “looked through” it. (Tr. Vol. IV, 145.) She also testified that, around 2002, Jerry Durham became the property manager for all of the company‘s clients and that appellant became “the overseer of the property management area.” (Tr. Vol. IV, 79.) As an “overseer,” appellant would be consulted on any issues that came up regarding property management.
{¶6} First City Bank Vice President David Dygert testified as follows about the mortgage appellant obtained on Mattlin Holdings LLC‘s property. On July 20, 2004, appellant sent Dygert an e-mail indicating that he ” ‘acquired the entire interest in an LLC which owns several pieces of real estate’ ” and that he wanted to obtain a mortgage on that property. (Tr. Vol. IV, 175.) Appellant specified in another e-mail that he was referring to Mattlin Holdings LLC, and he indicated that he acquired that company in 2002. On July 30, 2004, Dygert sent appellant an e-mail requesting information on Mattlin Holdings LLC, and, on August 12, 2004, Dygert sent an e-mail asking appellant to send ” ‘a hundred percent prоof of your hundred percent ownership.’ ” (Tr. Vol. IV, 188.)
{¶7} Next, Dygert identified documents in appellant‘s mortgage application file. The file contained a financial statement indicating that appellant acquired Mattlin
{¶8} Dygert testified that he and Charles Cecil, another First City Bank Vice President, approved appellant‘s mortgage on September 23, 2004. Dygert said that appellant‘s mortgage would not have been approved if it were known that fraudulent documents were submitted during the application process.
{¶9} On cross-examination, Dygert testified that Exhibit P appeared to be a letter he faxed to appellant, but it was not dated or signed. In the letter, Dygert said, “[n]eed to know which form deal is taking – if going in direction of deal from a few years ago, you will need to sign the pile of agreements and complete deal (pay purchase price, etc. – whatever deal you cut with lady).” (Exhibit P.) Dygert also said, “[i]f going in direction of ‘option’ at death per your new discussions, you will need Mattlin lady * * * to sign a resolution authorizing our loan or make sure the agreement has stuff in it that says you can take out loan and mortgage (I did not see anything like that in your e mail version).” (Exhibit P.)
{¶10} Next, Cecil testified about the mortgage appellant obtained on Mattlin Holdings LLC‘s property. Cecil stated that, although he does not specifically recall what documents he reviewed while deciding whether to approve appellant‘s mortgage, he believed that he considered thе 2002 purchase agreement for Mattlin Holdings LLC
{¶11} Around the end of 2008 or the beginning of 2009, appellant started making late payments on the First City Bank mortgage. At that same time, Cecil learned from Betty Mattlin that she did not sell her property to appellant. In March or April 2009, Cecil and First City Bank President Doug Simson met with appellant about Betty Mattlin‘s claim. They showed appellant the 2002 purchase agreement they had in the mortgage appliсation file, and appellant said that the “document was not representative of the deal that he had with Mrs. Mattlin.” (Tr. Vol. V, 81.) Cecil and Simson asked appellant about his financial statement, which indicated that he acquired Mattlin Holdings LLC in 2002, and appellant admitted that the statement contained his signature. The meeting ended, and appellant subsequently showed Cecil and Simson a purchase agreement dated October 5, 2004. The agreement listed the seller as Betty Mattlin and the buyer as appellant through CSR Tremont LLC. It noted that appellant would acquire property owned by Mattlin Holdings LLC upon Betty Mattlin‘s death and that, in the meantime, he had the right to mortgage the property.
{¶12} Cecil confirmed that appellant‘s mortgage would not have been approved if it were known that fraudulent documents were submitted during the application process. In fact, Cecil noted that First City Bank has filed a civil claim for fraud against appellant based on the documentation he submitted as part of his application for the mortgage on Mattlin Holdings LLC‘s property.
{¶14} Richard Mattlin testified that the 2004 purchase agreement of Mattlin Holdings LLC appears to contain the signature of his mother, Betty Mattlin. He also testified that he became aware of a discrepancy in a distribution Wears, Kahn, and McMenamy made to Betty Mattlin in 2005. He said that a statement frоm the property management company indicated that Betty Mattlin was supposed to get a distribution of $250,000 in September 2005, but Betty Mattlin‘s personal banking statements only showed a distribution to her in the amount of $200,000. The prosecutor asked Richard Mattlin where he obtained the property management company‘s statement, which was identified as Exhibit 39, and he said that he could not remember.
{¶15} The prosecution recalled Richard Mattlin a few days later, over appellant‘s objection. This time, Richard Mattlin testified that since his last testimony, he compared Exhibit 39 with records Mattlin Holdings LLC received in the ordinary course of business, and he said that the exhibit was a true and accurate business record.
{¶16} Bank records admitted into evidence indicate that, on October 4, 2004, money that Wears, Kahn, and McMenamy held in the bank for two clients—Dublin Imaging and Sports Medicine Ltd and Broad Street ProScan Imaging Ltd—was transferred to a North American Title Company escrow account, which was set up for
{¶17} Bank records also showed the following. A $250,000 check was written to Betty Mattlin in September 2005 from the Wears, Kahn, and McMenamy commingled account. The check was deposited back into the account, however, and another check from that account in the amount of $200,000 was written to Betty Mattlin. That latter check was dеposited into Betty Mattlin‘s personal account in October 2005.
{¶18} Next, Columbus Police Detective Cynthia Shaw testified that her investigation of appellant revealed that he stopped making payments on the First City Bank mortgage in 2009. And, she testified that the payments appellant did make “roughly” totaled $300,000. (Tr. Vol. VII, 191.) She also testified that she found no bank records directly linking appellant to the withdrawal of money belonging to Dublin
{¶19} Before jury deliberatiоns, the prosecution dismissed the charge of securing writings by deception, and the trial court granted appellant‘s motion to dismiss the tampering with records charges. In addition, the trial court severed the three money laundering counts into six separate counts. The jury found appellant guilty of the non-dismissed counts, except for the theft of $225,000 from Mattlin Holdings LLC. Afterward, the trial court sentenced appellant to six years imprisonment. The sentence included consecutive two-year prison terms for the offenses of forgery and theft of mortgage proceеds. Appellant did not object to the trial court not merging those two offenses.
{¶20} Appellant appeals, raising the following assignments of error:
I. (a) THE CONVICTION ON COUNT II OF CASE NO. 09-CR-6828 -- THE ALLEGED THEFT OF BANK LOAN PROCEEDS -- WAS BASED ON INSUFFICIENT EVIDENCE, CONTRA THE DUE PROCESS CLAUSE OF
THE CONSTITUTION. (b) THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. II. (a) THE CONVICTION ON COUNT III OF CASE NO. 09-CR-6828 -- THE FORGERY COUNT -- WAS BASED ON INSUFFICIENT EVIDENCE, CONTRA THE DUE PROCESS CLAUSE OF THE CONSTITUTION. (b) THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
III. WHEN THE TRIAL COURT SENTENCES CONSECUTIVELY ON THEFT AND FORGERY, THE SENTENCE MUST BE VACATED WHEN THE TWO CONVICTIONS ARE ALLIED OFFENSES OF SIMILAR IMPORT UNDER STATE v. JOHNSON, 128 OHIO ST.3D 153, 2010-OHIO-6314, CONTRA THE FIFTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION.
IV. (a) THE CONVICTIONS ON COUNTS V THROUGH X OF CASE NO. 10-CR-3697 -- THE MONEY LAUNDERING COUNTS -- WERE BASED ON INSUFFICIENT EVIDENCE, CONTRA THE DUE PROCESS CLAUSE OF THE CONSTITUTION. (b) THE VERDICTS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
V. (a) THE CONVICTION ON COUNT X OF CASE NO. 10-CR-3697 -- THE THEFT COUNT -- WAS BASED ON INSUFFICIENT EVIDENCE, CONTRA THE DUE PROCESS CLAUSE OF THE CONSTITUTION. (b) THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN THE COURT ERRED IN PERMITTING THE RECALL OF A KEY WITNESS.
{¶21} We begin by addressing appellant‘s first, second, fourth, and fifth assignments of error together because they concern similar issues. In those assignments of error, appellant first asserts that his convictions are based on insufficient evidence. We disagree.
{¶22} Sufficiency of the evidence is a legal standard that tests whether the evidence introduced at trial is legally sufficient to support a verdict. State v. Thompkins,
{¶23} Appellant contends that there is insufficient evidence to support his forgery conviction.
{¶24} Betty Mattlin testified that the 2002 purchase agrеement purporting to sell Mattlin Holdings LLC to appellant was spurious and contained her forged signature. The evidence establishes that appellant, having a purpose to defraud, created that agreement and forged Betty Mattlin‘s signature on it given that, (1) when he applied for a mortgage on Mattlin Holdings LLC‘s property, he told First City Bank in an e-mail and
{¶25} Appellant also argues that there is insufficient evidence to support his conviction for theft of the mortgage proceeds from First City Bank under
{¶26} Nevertheless, appellant contends that his conviction for theft of mortgage proceeds cannot stand because neither Cecil nor Dygert testified that they relied on the purchase agreement when they approved appellant‘s mortgage. Construing the evidence in a light most favorable to the state, we conclude that it was reasonable for the jury to find that Cecil relied on the agreement when he approved appellant‘s mortgage given that he testified to the importance of confirming that appellant owned the property being mortgaged. Likewise, it was reasonable for the jury to conclude that Dygert relied on the agreement because he had asked appellant to supply proof of his ownership of the property being mortgaged.
{¶28} Appellant additionally asserts that there is insufficient evidence to convict him of money laundering. Appellant was charged with money laundering under
{¶29} Relying on United States v. Miles (C.A.11, 2002), 290 F.3d 1341, and a magistrate‘s decision in United States v. Burroughs (Aug. 25, 2010), S.D.Ga. No. CR410-154, appellant contends that the prosecution must also prove that he intended to conceal the proceeds of corrupt activity. But these federal cases are not binding precedent on this court. See State v. Burnett, 93 Ohio St.3d 419, 424, 2001-Ohio-1581. In any event, we need not apply the federal cases because, unlike here, they concern defendants charged with violating a money laundering statute containing an intent-to-conceal element. See Burroughs; Miles at 1355. Appellant also argues that there is insufficient evidence linking him to the transactions the prosecution labeled as money laundering. But appellant is tied to those transactions because they pertain to the purchase of a condominium for him, his wife, and his in-laws.
{¶31} Lastly, appellаnt asserts that there is insufficient evidence to convict him for theft of $50,000 from Mattlin Holdings LLC. Wears, Kahn, and McMenamy sent Mattlin Holdings LLC a property activity statement indicating a disbursement of $250,000 in September 2005. But Betty Mattlin only received a check for $200,000. Given appellant‘s history and connection with Mattlin Holdings LLC, the jury could reasonably infer that appellant was engaging in another scheme to bilk that company by not disbursing the $50,000 that its property activity statement said it was entitled to and
{¶32} Next, appellant argues that his convictions are against the manifest weight of the evidence. We disagree.
{¶33} In determining whether a verdict is against the manifest weight of the evidence, we sit as a ” ‘thirteenth juror.’ ” Thompkins at 387. Thus, we review the entire record, weigh the evidence and all reasonable inferences, and consider the credibility of witnesses. Id. Additionally, we 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.” Id., quoting State v. Martin (1983), 20 Ohio App.3d 172, 175. We reverse a conviction on manifest weight grounds for only the most ” ‘exceptional case in which the evidence weighs heavily against the conviction.’ ” Thompkins at 387, quoting Martin at 175. Moreover, ” ‘it is inappropriate for a reviewing court to interfere with factual findings of the trier of fact * * * unless the reviewing court finds that a reasonable juror could not find the testimony of the witness to be credible.’ ” State v. Brown, 10th Dist. No. 02AP-11, 2002-Ohio-5345, ¶10, quoting State v. Long (Feb. 6, 1997), 10th Dist. No. 96APA04-511.
{¶34} Appellant contends that his convictions for forgery and theft of mortgage proceeds from First City Bank are against the manifest weight of the evidence because
{¶35} Appellant also argues that his conviction for theft of mortgage proceeds is against the manifest weight of the evidence because, despite the spurious 2002 purchase agreement, his 2004 purchase agreement entitled him to mortgage Mattlin Holdings LLC‘s property. But appellant‘s mortgage was approved on his falsе claim that he acquired Mattlin Holdings LLC in 2002, and, in fact, First City Bank filed a civil claim for fraud against appellant due to that misrepresentation. Accordingly, the 2004 purchase agreement does not weigh against appellant‘s conviction for theft of mortgage proceeds.
{¶36} Next, appellant argues that his conviction for theft of $50,000 from Mattlin Holdings LLC is against the manifest weight of the evidence. Appellant notes that the theft could only be conducted through a deliberate manipulation of the bookkeeping system at Wears, Kahn, and McMenamy, but that Connolly testified that he was not “technologically savvy.” (Tr. Vol. IV, 145.) Connolly also testified, however, that it was
{¶37} Appellant additionally contends that the weight of the evidence demonstrates that he had no opportunity to commit the theft from Mattlin Holdings LLC because he was not the property manager when the crime occurred in 2005. To be sure, in 2002, Jerry Durham was appointed property manager for clients of Wears, Kahn, and McMenamy. When that occurred, however, appеllant became an “overseer of the property management area.” (Tr. Vol. IV, 79.) As an “overseer,” appellant was consulted on any issues that came up regarding property management. By 2005, appellant had responsibility over all facets of Wears, Kahn, and McMenamy, including the commingled account containing the funds of the company‘s clients. Consequently, appellant had the opportunity to take advantage of his autonomous and powerful position at Wears, Kahn, and McMenamy to defraud Mattlin Holdings LLC. Therefore, we сonclude that appellant‘s conviction for the theft from Mattlin Holdings LLC is not against the manifest weight of the evidence.
{¶38} To challenge the weight of the evidence for his money laundering convictions, appellant notes Shaw‘s testimony that she found no bank records directly linking appellant to the withdrawal of money belonging to Dublin Imaging and Sports Medicine Ltd, Broad Street ProScan Imaging Ltd, and a miscellaneous account of Wears, Kahn, and McMenamy. But, as above, it was within the province of the jury to infer that appellant made those withdrawals becаuse the money went toward the purchase of a condominium for him, his wife, and his in-laws.
{¶40} In his third assignment of error, appellant argues that the trial court should have merged his convictions for forgery and theft of mortgage proceeds. We disagree.
{¶41} Because appellant did not raise the merger issue at trial, the plain-error standard applies. See State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, ¶127;
{¶42}
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for
all such offenses, but the defendant may be convicted of only one. (B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the sаme or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶43} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, ¶44, the Supreme Court of Ohio overruled State v. Rance, 85 Ohio St.3d 632, 1999-Ohio-291, “to the extent” Rance called for a comparison of multiple offenses “solely in the abstract.” Pursuant to Johnson, “[i]f the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., ‘a single act, committed with a single state of mind.’ ” Id. at ¶49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶50 (Lanzinger, J., concurring in judgment only). “If the answer to both questions is yеs, then the offenses are allied offenses of similar import and will be merged.” Johnson at ¶50. “Conversely, if the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to
{¶44} In support of his argument that merger applies to his convictions for forgery and theft of mortgage proceeds, appellant relies on State v. Wolfe (1983), 10 Ohio App.3d 324, 325-26, in which the Second District Court of Appeals concluded that two cо-defendants’ theft and forgery convictions merged. We need not reach that same
{¶45} Appellant‘s forgery conviction stems from his fraudulent creation of the 2002 purchase agreement. His theft conviction, however, stems from his obtaining a mortgage for which he was not entitled to in 2004. Because appellant committed the forgery separately and with a separate animus from the theft of the mortgage proceeds, the offenses do not merge under
{¶46} In summary, we overrule appellant‘s five assignments of error. We affirm the judgment of the Franklin County Court of Common Pleas.
Judgments affirmed.
BROWN and SADLER, JJ., concur.