STATE OF OHIO v. LONNIE THOMPSON
No. 99628
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
January 23, 2014
[Cite as State v. Thompson, 2014-Ohio-202.]
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-553640
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR RESENTENCING
BEFORE: Stewart, P.J., Celebrezze, J., and Keough, J.
RELEASED AND JOURNALIZED: January 23, 2014
Robert Botnick
The Botnick Law Firm, L.L.C.
11510 Buckeye Road
Cleveland, OH 44104
FOR APPELLANT
Lonnie Thompson, Pro Se
Inmate No. 640-614
Trumbull Correctional Institution
P.O. Box 901
Leavittsburg, OH 44430
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: James A. Gutierrez
Anna M. Woods
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
{¶1} Defendant-appellant Lonnie Thompson was found to be the mastermind of a counterfeit check cashing scheme in which he created corporate payroll checks and recruited people to cash those checks at area stores in exchange for a small cut of the proceeds. A jury found him guilty of multiple counts of engaging in a pattern of corrupt activity, forgery, theft, telecommunications fraud, and identity theft. He complains on appeal about the weight and sufficiency of the evidence going to the forgery counts, that the convictions for telecommunications fraud and identity theft should have merged for sentencing, and that his sentence was disproportionate to those given to similar offenders.
I
{¶2} Thompson first argues that the court erred by denying his
A
{¶3} A motion for judgment of acquittal should be granted only if the evidence is “insufficient to sustain a conviction” for the charged offenses.
{¶4} The state charged Thompson with forgery under
B
{¶5} The state offered substantial evidence to show that Thompson, in conjunction with Janell Calloway, recruited people to take payroll checks that Thompson created and cash them at area locations of a national retail store. Calloway testified that her involvement with Thompson began in late 2006 or early 2007 when he provided her with two counterfeit payroll checks that she was able to cash in exchange for $500. A few days later, Calloway and another person met with Thompson and watched him fill out checks using a typewriter. Calloway was successful in cashing those checks and
{¶6} As the enterprise grew, Calloway persuaded others to give her photocopies of their paychecks so Thompson could use those checks as templates for his counterfeit checks. In addition to real paychecks, Thompson would sometimes use business cards and duplicate them onto checks to make them look official. When Calloway found the recruits, she would give their names to Thompson and he would prepare the counterfeit checks. At the height of the operation, during the period from March 2008 to October 2008, Calloway estimated that she recruited approximately 100 people for Thompson‘s counterfeit check cashing scheme.
{¶7} The police first learned about the fraud when one of the recruits gave them information in the hopes of lenient treatment in an unrelated criminal case. The recuit told police that Calloway accompanied her as she cashed two counterfeit payroll checks. The police spoke with the retailer‘s fraud investigator and learned that the retailer had been monitoring an unusually high number of counterfeit payroll checks that it had cashed. Because those checks sometimes used the name of the person cashing the checks (and either a driver‘s license or social security number), the police were able to work with the retailer and track down a number of the recruits and piece together the enterprise, including Calloway‘s participation.
{¶8} The police spoke with Calloway and she agreed to cooperate with them and set up a sting in which she would give Thompson names provided to her by the police.
C
{¶9} Viewing the evidence most favorably to the state, we conclude that a rational trier of fact could find that the state offered evidence going to each element of forgery as charged under
{¶10} The object of the criminal enterprise was to negotiate counterfeit payroll checks. Evidence showed that Thompson prepared the checks using information that he asked Calloway to obtain from her recruits. At the beginning of the enterprise, he drove Calloway and her recruits to the retail locations to cash the counterfeit checks. Even
{¶11} On one occasion, Calloway was arrested while using a phony identification when trying to cash one of the counterfeit checks. She called Thompson to tell him that she and the recruits had been stopped by the police. Thompson told her, “whatever [you] do, don‘t let them get that paper.” She said that the recruits actually ate the checks. Thompson‘s directive that Calloway and her recruits not let the checks fall into the hands of the police manifested his understanding that the checks were counterfeit.
{¶12} In addition to evidence regarding the nature of the criminal enterprise, Thompson instructed Calloway on how to fabricate accounts for the checks. For example, he told her to find someone with a legitimate payroll check and photocopy the paycheck so he could use it as a template for a counterfeit check. The police were able to confirm this testimony when a search of Thompson‘s residence uncovered two legitimate paychecks, from different companies, that he had hidden. Thompson did not work for either company, so the jury could have considered the checks as circumstantial evidence that he was using them in furtherance of a scheme to cash counterfeit payroll checks.
II
{¶14} Thompson next argues that his convictions were against the manifest weight of the evidence, but does not independently argue that point. He does nothing more than reincorporate the facts he addressed in his first assignment of error. In addition, his entire argument states: “The manifest weight of the evidence fails to demonstrate Appellant as the ring leader behind this elaborate check cashing scheme and the witnesses’ testimony relating to this involvement was either stale or completely biased.”
{¶15} “A claim that a jury verdict is against the manifest weight of the evidence involves a separate and distinct test that is much broader [than the test for sufficiency].” State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 193. We have consistently held that the
{¶16} Thompson does not differentiate his sufficiency of the evidence argument from his manifest weight of the evidence argument, so we can summarily overrule this assignment of error. And to the extent there is some differentiation between the two arguments, he fails to present an argument going to the weight of the evidence. Rather, he reaches a conclusion — the witnesses’ testimony was either “stale or completely biased” — without actually explaining how that conclusion is warranted. Again, this is a failure of the
III
{¶17} In his third assignment of error, Thompson argues that his convictions for telecommunications fraud and identity theft, contained in Counts 30 and 31 respectively, should have merged for sentencing. He maintains that the court specifically found those counts to be allied offenses, but did not merge them despite ordering that they be served concurrently.
{¶18} When a defendant‘s conduct results in the commission of two or more “allied” offenses of similar import, that conduct can be charged separately, but the
{¶19} Count 30, the telecommunications fraud count (
{¶20} During sentencing, the court ordered the telecommunications fraud and identity theft counts to run concurrent to each other stating, “because I find those are the same acts, just one transaction.” The state argues that applying for a credit card using another person‘s name is separate from taking the identity of an actual person, but we see no distinction. The common thread with both charges was that Thompson held himself out to be another person — Thompson could not have committed telecommunications fraud by applying for a credit card in another person‘s name unless he actually used that person‘s name as his own. In this circumstance, Thompson‘s conduct was such that a single act (applying for a credit card using another person‘s name) could give rise to the two charged offenses, but those offenses were committed with a single state of mind to
IV
{¶21} In a pro se assignment of error, Thompson argues that the court abused its discretion by imposing a total sentence of 32 and one-half years. The length of Thompson‘s sentence was the result of the court ordering a number of the counts to be served consecutively.
A
{¶22}
{¶23} The same ban on a reviewing court applying an abuse of discretion standard applies to the court‘s directive that Thompson serve some of those sentences consecutively. The decision whether to order an offender to serve prison terms consecutively is within the court‘s discretion.
C
{¶24} Finally, Thompson argues that his sentence was disproportionate to those given to his codefendants.
{¶25} The concept of “proportionality” in felony sentencing arises only in the context of consecutive sentences. Under
{¶26} What Thompson actually argues is that his sentence is not “consistent with sentences imposed for similar crimes committed by similar offenders” as required by
{¶27} Thompson‘s convictions are affirmed, however we reverse in part and remand to the trial court for resentencing consistent with this opinion.
It is ordered that appellant and appellee share the 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 Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant‘s convictions having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for resentencing.
MELODY J. STEWART, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
KATHLEEN ANN KEOUGH, J., CONCUR