State v. Kerr , 2014 Ohio 5455 ( 2014 )

[Cite as State v. Kerr, 2014-Ohio-5455.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-13-047
Appellee/Cross-Appellant Trial Court No. 2012-CR-0389
v.
Jeremy L. Kerr DECISION AND JUDGMENT
Appellant/Cross-Appellee Decided: December 12, 2014
*****
Paul A. Dobson, Wood County Prosecuting Attorney, Thomas A.
Matuszak and David T. Harold, Assistant Prosecuting Attorneys,
for appellee/cross-appellant.
Mark D. Tolles, for appellant/cross-appellee.
*****
PIETRYKOWSKI, J.
{¶ 1} This is an appeal1 from a judgment of the Wood County Court of Common
Pleas which sentenced defendant-appellant, Jeremy L. Kerr, to a total of seven years and
eight months in prison following a jury verdict that found him guilty of four counts of
forgery and four counts of tampering with evidence. Kerr now challenges that judgment
through the following assignments of error:
1
The state filed a notice of cross-appeal on July 10, 2013, but did not pursue it.
Accordingly, the cross-appeal is dismissed.
Assignment of Error No. 1.
The trial court erred in overruling defendant-appellant’s motion for
judgment of acquittal where there was no evidence presented that
defendant-appellant had performed or committed any element of the
offenses within the territorial jurisdiction and venue of the trial court.
Assignment of Error No. 2.
The trial court erred in overruling defendant-appellant’s motion for
judgment of acquittal where there was no evidence presented that any
document had been uttered by defendant-appellant.
Assignment of Error No. 3.
The convictions of defendant-appellant were against the manifest
weight of the evidence.
{¶ 2} On July 19, 2012, appellant was indicted and charged with the offenses
stated above as a result of his attempt to remove judgment liens from real property he
owned at 13345 Ash Street in Weston, Wood County, Ohio. The facts of the case, as
testified to at the trial below, are as follows.
{¶ 3} In 2002, attorney Bradley Le Boeuf obtained a judgment in the Bowling
Green Municipal Court against appellant and Kerr Construction for $4,445.25, plus court
costs and interest, on behalf of Carter-Jones Lumber. That same year, Le Boeuf filed a
certificate of judgment in Wood County which became a lien against appellant’s real
2.
property in Wood County. Le Boeuf most recently renewed the lien in 2012, when the
judgment was worth in excess of $8,000.
{¶ 4} In 2006, attorney William Jennings obtained a judgment in the Lucas
County Court of Common Pleas against appellant for $31,471.16 on behalf of Larry
Eilert. Jennings then filed judgment liens in both Wood and Lucas Counties against any
and all real property owned by appellant in those counties.
{¶ 5} In 2010, attorney Cory Speweik obtained a judgment in the Bowling Green
Municipal Court against appellant and Kerr Construction for $692 on behalf of ABCO
Services, Inc. As a result of that judgment, Speweik filed a judgment lien in Wood
County against real property owned by appellant.
{¶ 6} At some time prior to March 2012, appellant contacted Ruth Ann Kramer, a
real estate agent with AA Green Realty in Wood County, for the purpose of listing the
Ash Street property for sale. Subsequently, an offer was made on the property, which
appellant accepted, and title work was initiated by Welles Bowen Title Agency on behalf
of the buyer. The title search revealed five judgment liens that had been filed on the
property, including the three listed above. Patricia Kost, of Welles Bowen Title Agency,
contacted Kramer by email to inform her of the liens. Kramer in turn contacted appellant
to discuss the liens. Kramer testified at the trial below that in conversations with
appellant in late February or early March 2012, he acknowledged the liens and indicated
that he was working on getting them paid and released. Kost also spoke with appellant
3.
about the liens. Kost testified that appellant told her he was working with his attorney to
obtain releases of the liens.
{¶ 7} In mid-March 2012, appellant went to the Wood County Clerk of Courts and
asked to see the liens that were recorded against him. Mary Benjamin, who worked in
the clerk’s office at that time, testified that she was working her rotation at that counter
when appellant came into the office and asked to see the liens. Benjamin pulled the list
of liens and gave appellant the case numbers associated with the judgments.
{¶ 8} On March 15, 2012, Kost received an email from appellant with the subject
heading “Re. FYI!” Attached to that email were copies of several documents that
purported to be releases of the judgment liens in the Larry Eilert, ABCO Services and
Carter-Jones Lumber cases. The purported release in the Larry Eilert case references the
case number and the judgment lien docket page where the lien is recorded, appears to be
signed by attorney William Jennings, and appears to have been notarized on March 9,
2012, although the notary’s signature and seal are illegible. The purported release in the
ABCO Services case states the case number, appears to be signed by attorney Corey
Speweik, and appears to have been notarized by Danielle Hineline (aka McCarthy) on
March 13, 2012. The purported release in the Carter-Jones Lumber case includes the
case number, appears to be signed by attorney Bradley Le Boeuf, and appears to have
been notarized by Karen Brueggemeier on March 14, 2012.
{¶ 9} Kost testified at the trial below that releases are typically recorded following
the closing of a real estate sale, and so, prior to the closing, she submits copies of releases
4.
to the Wood County Clerk of Courts to ascertain whether the form, as written, is
acceptable for filing. Consistent with that practice, Kost forwarded the purported releases
to Mary Benjamin at the Wood County Clerk of Courts. On March 19, 2012, Benjamin
notified Kost that two of the three releases were proper as to form and that the originals
would be acceptable for filing. Benjamin told Kost, however, that the release in the
Carter-Jones Lumber case was not acceptable, as it was not properly worded. Kost then
notified appellant that the Carter-Jones Lumber release would need to be rewritten.
{¶ 10} On March 20, 2012, Leigh Ann McKinney was working at the Huntington
Bank on East Wooster Street, in Bowling Green, Wood County, Ohio. As part of her
duties at the bank, McKinney was a notary public. McKinney testified that on that day,
appellant entered the bank and asked her to notarize his signature on a document.
McKinney stated that she always asks for identification before notarizing a document and
only notarizes documents for people who are in her presence. Although she did not
specifically recall the document appellant asked her to notarize, when shown a release
purportedly signed by attorney Bradley Le Boeuf and notarized by McKinney on
March 20, 2012, McKinney testified that although the signature is hers, she did not sign
the document.
{¶ 11} On March 20, 2012, appellant provided Kost with a rewritten release in the
Carter-Jones Lumber case. That release appears to again be signed by attorney Bradley
Le Boeuf and appears to have been notarized by Leigh Ann McKinney on March 20,
5.
2012. Kost forwarded that release to Benjamin in the clerk’s office, who notified Kost by
return email that the original of the newly rewritten release would be acceptable for
filing.
{¶ 12} As the date for the closing on the Ash Street property approached, Kost
was reviewing the paperwork and realized there was a problem with the release in the
Eilert case. Rather than contact appellant, Kost contacted attorney William Jennings,
whose signature appeared on the release. Jennings told her that he had never signed a
release of lien in the Eilert case. Kost then contacted attorneys Le Boeuf and Speweik.
Le Boeuf also stated that he had never signed a release in the Carter-Jones Lumber case.
Speweik did not respond to Kost’s email. Kost further notified Kramer, appellant’s real
estate agent, about the releases. In response, Kramer confronted appellant and asked him
if he had forged the releases. Appellant responded: “I’m not going there.”
{¶ 13} Attorneys Le Boeuf, Jennings and Speweik all testified at the trial below.
All three acknowledged that the signatures on the releases appeared to be theirs, but all
three denied ever signing such releases. In addition, they testified that appellant would
have had easy access to their signatures because of documents filed or correspondence in
the cases in which they obtained the judgments. They also each testified that appellant
never paid the judgments underlying the liens and that the form of the purported release
used in each instance was not the form that each of them used. Attorney Le Boeuf
testified that the releases that purport to release the judgment he obtained against
appellant on behalf of Carter-Jones Lumber are forgeries and that the effect of filing a
6.
forged release would have been to frustrate his client’s ability to collect the debt owed by
appellant. Attorney Jennings testified that in May 2012, approximately two months after
the releases at issue in this case were purportedly signed by the respective attorneys,
appellant contacted Jennings to try to renegotiate the judgment in the Eilert case. They
finally settled on a new figure of $25,000, but appellant never paid that agreed upon
amount. Attorney Speweik testified that on March 2, 2012, appellant called his office
and spoke with his receptionist Linda Kuhlman about the lien. Kuhlman relayed that
conversation to Speweik, who instructed her to tell appellant that he would not remove
the lien until the judgment was paid.
{¶ 14} Finally, Cindy Hofner, the Wood County Clerk of Courts, testified. She
testified as to the validity of the judgment liens filed against appellant in her office and
stated that so long as a lien is of record and is valid, the case is still active. Hofner further
testified that if a forged release of lien was successfully filed, it would corrupt the
outcome of the case because the court records would then show there was no longer a
judgment and the prevailing party would be prevented from collecting on a debt.
{¶ 15} At the conclusion of the state’s case, appellant moved for an acquittal
pursuant to Crim.R. 29. Appellant argued that the state had failed to prove jurisdiction
and venue in that there was no testimony or evidence that any of the releases had been
forged in Wood County or that any documents had been tampered with in Wood County.
7.
Appellant further argued that because no original document had been presented, the
evidence was insufficient to support the forgery charges. The court denied the motion
and appellant did not put on a defense.
{¶ 16} Subsequently, the jury returned verdicts of guilty on all charges and the
court sentenced him as stated above.
{¶ 17} In his first and second assignments of error, appellant asserts that the lower
court erred in denying his motion for acquittal. Appellant asserts that there was no
evidence submitted at the trial below that any element of the offenses was committed in
Wood County. Accordingly, appellant contends that the state failed to prove venue. In
addition, appellant asserts that because there was no evidence that appellant presented or
uttered an original document to anyone, the court erred in denying his motion for
acquittal on the forgery charges.
{¶ 18} We review a ruling on a Crim.R. 29(A) motion under the same standard
used to determine whether the evidence was sufficient to sustain a conviction. State v.
Brinkley, 105 Ohio St. 3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 40. Under the
sufficiency standard, we must determine whether the evidence admitted at trial, “if
believed, would convince the average mind of the defendant’s guilt beyond a reasonable
doubt. The relevant inquiry 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
8.
259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, citing Jackson v. Virginia,
443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); see also State v. Thompkins, 78
Ohio St. 3d 380, 678 N.E.2d 541 (1997).
{¶ 19} On the issue of venue, the Ohio Constitution guarantees the right of the
accused to have a “trial by an impartial jury of the county in which the offense is alleged
to have been committed.” Ohio Constitution, Article I, Section 10. The Ohio Revised
Code also guarantees that right by requiring that a criminal trial “shall be held in a court
having jurisdiction of the subject matter, and in the territory of which the offense or any
element of the offense was committed.” R.C. 2901.12(A). R.C. 2901.12 further
provides:
(H) When an offender, as part of a course of criminal conduct,
commits offenses in different jurisdictions, the offender may be tried for all
of those offenses in any jurisdiction in which one of those offenses or any
element of one of those offenses occurred. Without limitation on the
evidence that may be used to establish the course of criminal conduct, any
of the following is prima-facie evidence of a course of criminal conduct:
(1) The offenses involved the same victim, or victims of the same
type or from the same group.
***
(2) The offenses were committed as part of the same transaction or
chain of events, or in furtherance of the same purpose or objective.
9.
***
(5) The offenses involved the same or a similar modus operandi.
***
(I)(1) When the offense involves a computer, computer system,
computer network, telecommunication, telecommunications device,
telecommunications service, or information service, the offender may be
tried in any jurisdiction containing any location of the computer, computer
system, or computer network of the victim of the offense, in any
jurisdiction from which or into which, as part of the offense, any writing,
data, or image is disseminated or transmitted by means of a computer,
computer system, computer network, telecommunication,
telecommunications device, telecommunications service, or information
service, or in any jurisdiction in which the alleged offender commits any
activity that is an essential part of the offense.
{¶ 20} Although venue is not an essential element of a crime, it still is a fact that
must be proved at trial unless waived. State v. Headley, 6 Ohio St. 3d 475, 477, 453
N.E.2d 716 (1983). While it is not necessary that the venue of a crime be stated in
express terms, it is essential that it be proven by all the facts and circumstances, beyond a
reasonable doubt, that the crime was in fact committed in the county and state alleged.
State v. Dickerson, 77 Ohio St. 34, 82 N.E. 969 (1907), paragraph one of the syllabus.
10.
Finally, the trial court had broad discretion to determine the facts which could establish
venue. Toledo v. Taberner, 61 Ohio App. 3d 791, 793, 573 N.E.2d 1173 (6th Dist.1989).
{¶ 21} The forgery statute, R.C. 2913.31, reads in relevant part:
(A) No person, with purpose to defraud, or knowing that the person
is facilitating a fraud, shall do any of the following:
***
(3) Utter, or possess with purpose to utter, any writing that the
person knows to have been forged.
{¶ 22} As used in the forgery statute, the term “utter” means “to issue, publish,
transfer, use, put or send into circulation, deliver, or display.” R.C. 2913.01(H).
{¶ 23} The evidence presented at the trial below was clear. Appellant forged
documents in an attempt to obtain releases of liens that had been filed against him in
Wood County. He then transferred, delivered and/or sent into circulation those
documents by emailing them to the title agent in an attempt to establish that the liens had
been lifted. The title agent submitted the releases to the Wood County Clerk of Court to
determine if they were proper as to form. When appellant was notified that one of the
releases was not proper, he was aware that they had been “uttered” on his behalf in Wood
County. With this knowledge, he forged a fourth release, including the notary signature
and seal of a notary in Wood County, and emailed it to the title agent knowing it too
would be submitted to Wood County for approval. Thus, he “uttered” it as well.
Appellant’s actions were part of a course of criminal conduct involving the same type of
11.
victim (his creditors), were committed in furtherance of the same purpose (the
elimination of judgment liens against him in Wood County), and with the same modus
operandi. Accordingly, venue in Wood County was proper as to the forgery charges.
{¶ 24} Appellant further asserts that the lower court erred in failing to grant his
motion for acquittal on the forgery charges because there was no evidence that appellant
presented or uttered an original document. That is, appellant contends that because the
purported releases were basically cut and paste jobs that the Wood County Clerk of Court
would not have filed, they are not forgeries as that term is used in the statute.
{¶ 25} As stated above, the forgery statute provides that “no person, with purpose
to defraud, * * * shall * * * utter, or possess with purpose to utter, any writing that the
person knows to have been forged.” R.C. 2913.31(A)(3). A “writing” for purposes of
the forgery statute means “any computer software, document, letter, memorandum, note,
paper, plate, data, film, or other thing having in or upon it any written, typewritten, or
printed matter, and any token, stamp, seal, credit card, badge, trademark, label, or other
symbol of value, right, privilege, license, or identification.” R.C. 2913.01(F). To “forge”
means “to fabricate or create, in whole or in part and by any means, any spurious writing,
or to make, execute, alter, complete, reproduce, or otherwise purport to authenticate any
writing, when the writing in fact is not authenticated by that conduct.” R.C. 2913.01(G).
{¶ 26} The evidence presented at the trial below established that appellant created
writings as defined by R.C. 2913.01(F), and transferred them with the purpose to defraud.
In addition, the writings were clearly forgeries as defined by R.C. 2913.01(G). The
12.
statute does not require that appellant succeed in his attempt to defraud. It simply
requires that it was his purpose to defraud. The lower court properly denied the motion
for acquittal of the forgery charges.
{¶ 27} With regard to the tampering charges, appellant was charged with four
counts in violation of R.C. 2921.12(A)(2), which reads:
(A) No person, knowing that an official proceeding or investigation
is in progress, or is about to be or likely to be instituted, shall do any of the
following:
***
(2) Make, present, or use any record, document, or thing, knowing it
to be false and with purpose to mislead a public official who is or may be
engaged in such proceeding or investigation, or with purpose to corrupt the
outcome of any such proceeding or investigation.
{¶ 28} The evidence was clear that appellant knew several official proceedings
against him were in progress in Wood County. In mid-March he entered the Wood
County Clerk of Court’s office and inquired about the then existing liens against him.
With that knowledge, appellant created false documents with the purpose to mislead a
public official, the Wood County Clerk of Courts, and corrupt the outcome of those
Wood County proceedings. The lower court did not err in finding Wood County to be a
proper venue for the prosecution of those offenses and in denying the motion for
acquittal.
13.
{¶ 29} The first and second assignments of error are not well-taken,
{¶ 30} In his third assignment of error, appellant contends that his convictions
were against the manifest weight of the evidence.
{¶ 31} A manifest weight of the evidence challenge questions whether the state
has met its burden of persuasion. Thompkins, 78 Ohio St. 3d at 387. In making this
determination, the court of appeals sits as a “thirteenth juror” and, after
“reviewing the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and determines whether in
resolving conflicts in the evidence, 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. The discretionary power to grant a new trial should
be exercised only in the exceptional case in which the evidence weighs
heavily against the conviction.” Id., quoting State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 32} Appellant was convicted of four counts of forgery and four counts of
tampering with evidence. The counts all relate to the actions appellant took in creating
the four forged releases and using them in an attempt to remove the liens against him
without paying the judgments. Upon review of the trial court record, as discussed above,
we cannot say that the jury clearly lost its way and created a manifest miscarriage of
justice requiring reversal. The third assignment of error is not well-taken.
14.
{¶ 33} On consideration whereof, the court finds that appellant was not prejudiced
or prevented from having a fair trial, and the judgment of the Wood County Court of
Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant
to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
James D. Jensen, J. JUDGE
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.
15.