State v. Luton , 2018 Ohio 4708 ( 2018 )

[Cite as State v. Luton, 2018-Ohio-4708.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106754
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
BRYAN LUTON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART; MODIFIED IN PART;
VACATED IN PART; AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-605776-A
BEFORE: Celebrezze, J., E.A. Gallagher, A.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: November 21, 2018
ATTORNEY FOR APPELLANT
Susan J. Moran
55 Public Square, Suite 1616
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Kelly Needham
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} Defendant-appellant, Bryan Luton (“appellant”), brings the instant appeal
challenging his convictions for misuse of credit cards and grand theft. Specifically, appellant
argues that the state failed to establish that Cuyahoga County was the proper venue for the
criminal proceedings, and that his convictions were not supported by sufficient evidence and
against the manifest weight of the evidence. After a thorough review of the record and law, this
court affirms in part, modifies appellant’s misuse of credit cards conviction, vacates the trial
court’s sentence for misuse of credit cards, and remands for resentencing consistent with this
opinion.
I. Factual and Procedural History
{¶2} Appellant was employed by The Ridge Project, a nonprofit organization that
provides assistance to incarcerated individuals and their families, from approximately 2012
through 2015. Appellant held the position of caseworker facilitator. In this capacity, appellant
would visit prisons and halfway houses in Ohio and present The Ridge Project’s curriculum
regarding professional development and/or fatherhood. Appellant helped incarcerated
individuals as they reentered society by assisting them with employment and housing.
Appellant’s employment required a lot of traveling.
{¶3} When he first started his employment, appellant drove his personal vehicle to the
prisons and halfway houses that he visited. The Ridge Project would reimburse appellant for
the miles he drove. Eventually, The Ridge Project issued appellant a company vehicle and a
company credit card to purchase gasoline.1 On or around April 2014, The Ridge Project noticed
that appellant was using his company vehicle and company credit card for unauthorized
purposes.
{¶4} The Ridge Project took a closer look at appellant’s use of his company vehicle and
credit card and noticed additional discrepancies between the number of miles that appellant
actually drove and/or should have been driving, the number of miles appellant reported driving,
and the frequency with which appellant was purchasing gasoline with the company credit card.
For instance, appellant was purchasing gasoline and driving the company vehicle when he was on
vacation.
{¶5} The Ridge Project’s fiscal officer, Melissa Thomas, was unable to reconcile the
discrepancies between (1) the amount of gasoline appellant was purchasing and the number of
miles appellant was actually driving, and (2) the amount of gasoline appellant should have been
purchasing and the number of miles he should have been driving. The Ridge Project’s
1
Although the credit card was primarily issued to purchase gasoline, appellant could use the credit card to purchase
other employment-related items if he obtained The Ridge Project’s approval. (Tr. 25.)
executive director and cofounder, Ron Tijerina, requested that appellant reimburse the
organization for the unauthorized purchases. Appellant did not comply with this request. As a
result, appellant’s employment was terminated.
{¶6} In Cuyahoga C.P. No. CR-16-605776-A, the Cuyahoga County Grand Jury returned
a two-count indictment on May 24, 2016, charging appellant with (1) misuse of credit cards, a
fourth-degree felony in violation of R.C. 2913.21(B)(2), and (2) grand theft, a fourth-degree
felony in violation of R.C. 2913.02(A)(2). Appellant was arraigned on June 14, 2016. He
pled not guilty to the indictment.
{¶7} Appellant waived his right to a jury trial and elected to try the case to the bench. A
bench trial commenced on December 11, 2017. The state presented the testimony of three
witnesses: (1) Tijerina, (2) Thomas, and (3) The Ridge Project’s director, Japhet Ntia.
Appellant’s wife testified on behalf of the defense. At the close of trial, the trial court found
appellant guilty on both counts.
{¶8} On January 11, 2018, the trial court sentenced appellant to community control
sanctions for a period of five years on each count. The trial court ordered the counts to run
concurrently. Finally, the trial court ordered appellant to pay restitution to The Ridge Project in
the amount of $11,080.52.
{¶9} On January 23, 2018, appellant filed the instant appeal challenging his convictions.
He assigns three errors for review:
I. The state failed to establish venue sufficient to sustain appellant’s convictions.
II. The state failed to present sufficient evidence of the offenses charged.
III. Appellant’s conviction is against the manifest weight of the evidence.
II. Law and Analysis
A. Venue
{¶10} In his first assignment of error, appellant argues that the state failed to establish
that Cuyahoga County was the proper venue for the misuse of credit cards and grand theft
offenses charged in the indictment.
Venue refers to the proper place in which to try a criminal matter. Under Article
I, Section 10 of the Ohio Constitution and R.C. 2901.12, “evidence of proper
venue must be presented in order to sustain a conviction for an offense.” State v.
Hampton, 134 Ohio St.3d 447, 2012-Ohio-5688, 983 N.E.2d 324, ¶ 20. Article
I, Section 10 of the Ohio Constitution provides, in relevant part: “In any trial, in
any court, the party accused shall be allowed * * * a speedy public trial by an
impartial jury of the county in which the offense is alleged to have been
committed.” Former R.C. 2901.12(A) provides: “The trial of a criminal case in
this state shall be held in a court having jurisdiction of the subject matter, and in
the territory of which the offense or any element thereof was committed.”
Venue is not a material element of an offense charged, but it is, nevertheless, a
fact the state must prove beyond a reasonable doubt in a criminal prosecution
unless it is waived by the defendant. State v. Headley, 6 Ohio St.3d 475, 477,
453 N.E.2d 716 (1983), citing State v. Draggo, 65 Ohio St.2d 88, 90, 418 N.E.2d
1343 (1981). “‘A conviction may not be had in a criminal case where the proof
fails to show that the crime alleged in the indictment occurred in the county where
the indictment was returned.’” Hampton at ¶ 19, quoting State v. Nevius, 147
Ohio St. 263, 71 N.E.2d 258 (1947), paragraph three of the syllabus.
State v. May, 2015-Ohio-4275, 49 N.E.3d 736, ¶ 20-21 (8th Dist.).
{¶11} In the instant matter, we initially note that it is undisputed that appellant used his
company credit card in Cuyahoga County. Appellant’s credit card purchases were not,
however, limited to Cuyahoga County.
{¶12} At the time appellant was employed by The Ridge Project, he resided in South
Euclid, Ohio (Cuyahoga County). Appellant was not required to, and did not report to a
particular office of The Ridge Project on a daily basis. He spent a majority of his time traveling
to and from prisons and clients’ homes.
{¶13} Based on the record before this court, it is unclear what office appellant was
assigned to work out of. Tijerina testified that appellant was assigned to The Ridge Project’s
Wooster, Ohio office (Wayne County). (Tr. 23.) On the other hand, Thomas testified that
appellant was assigned to The Ridge Project’s Canton, Ohio office (Stark County). (Tr. 66.)
Ntia testified that The Ridge Project is domiciled in Canton, Ohio. (Tr. 113.) The record
reflects that The Ridge Project also has an office in McClure, Ohio (Henry County).
{¶14} Tijerina explained that as part of his employment, appellant was required to travel
“[m]ainly in the Cuyahoga County area, Cleveland, and Wooster area, possibly in the other cities
around Cleveland.” (Tr. 23.) Appellant occasionally traveled to Richland Correctional
Institution, Grafton Correctional Institution, Lake Erie Correctional Institution, and Mansfield
Correctional Institution. Id.{¶15} Appellant argues that the state “failed to produce actual evidence that illegal
transactions occurred in Cuyahoga County,” and that the state’s witnesses and documentary
evidence failed to establish that the offenses charged in the indictment took place in Cuyahoga
County. Appellant’s brief at 4. Specifically, appellant contends that the state failed to
introduce receipts from the purportedly fraudulent credit card transactions, credit card statements
indicating where the transactions occurred, and failed to elicit testimony regarding the locations
where the transactions took place.
{¶16} After the state rested, defense counsel moved for a Crim.R. 29 judgment of
acquittal. The record reflects, however, that defense counsel’s motion was not premised on
venue grounds, but rather focused on whether the state met its burden of production and proved
the essential elements of the misuse of credit cards and grand theft offenses beyond a reasonable
doubt. Because appellant did not object to venue in Cuyahoga County at trial, he forfeited all
but plain error. State v. Sylvester, 8th Dist. Cuyahoga No. 103841, 2016-Ohio-5710, ¶ 16,
citing State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, ¶ 142.
{¶17} Pursuant to Crim.R. 52(B), “[p]lain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of the court.” A “[p]lain error is
an obvious error or defect in the trial proceedings that affects a substantial right. Under this
standard, reversal is warranted only when the outcome of the trial would have been different
without the error.” State v. Wilcox, 8th Dist. Cuyahoga No. 96079, 2011-Ohio-5388, ¶ 7.
{¶18} The state is not required to prove venue in express terms. Rather, venue can be
established by the totality of the facts and circumstances of the case. State v. Price, 7th Dist.
Mahoning No. 14 MA 28, 2015-Ohio-1199, ¶ 36, citing State v. Chintalapalli, 88 Ohio St.3d 43,
45, 2000-Ohio-266, 723 N.E.2d 111; Headley, 6 Ohio St.3d at 477, 453 N.E.2d 716; Hampton,
134 Ohio St.3d 447, 2012-Ohio-5688, 983 N.E.2d 324, at ¶ 19 (“‘it is not essential that the venue
of the crime be proven in express terms, provided it be established by all the facts and
circumstances in the case, beyond a reasonable doubt, that the crime was committed in the
county and state as alleged in the indictment’”), quoting State v. Dickerson, 77 Ohio St. 34, 82
N.E. 969 (1907), paragraph one of the syllabus.
{¶19} In this case, Ntia testified at trial that when the issues arose with appellant’s
company credit card, he went to the Canton Police Department to file a report. Ntia explained
that the Canton police advised him that he had to pursue the matter in Cuyahoga County because
that is where “the problems [with the fuel purchases] were made[.]” (Tr. 113-114.) Ntia
testified that he knew that the issues with the fuel purchases took place in Cuyahoga County
based on the receipts from the purchases.
{¶20} Thomas testified that as part of her investigation of appellant’s credit card use, she
reviewed appellant’s timesheets, 2 accountability sheets, 3 credit card receipts, credit card
statements, and mileage reports, going all the way back to the beginning of appellant’s
employment in 2012. Thomas created spreadsheets of appellant’s fuel purchases based on the
data she obtained from these documents.
{¶21} The spreadsheets, which were introduced at trial as state’s exhibit Nos. 2, 3, and 4,
included information about the location of the fuel purchases. Thomas testified that she
determined where the fuel purchases were made by reviewing appellant’s credit card receipts.
{¶22} Thomas highlighted appellant’s suspicious transactions on the spreadsheets, for
instance, when appellant drove zero miles in between two fuel purchases. Finally, Thomas
explained that the investigation into appellant’s credit card use began in the first place based on
the following two transactions that occurred after appellant had driven zero miles: (1) a
September 14, 2015 transaction at “Marathon, Cleveland,” and (2) a September 19, 2015
transaction at “Shell, Cleveland.”
{¶23} Tijerina testified about three specific incidents during which appellant misused his
company credit card on April 23, 27, and 29, 2014. He explained that appellant was on
vacation from April 22, 2014 through April 29, 2014. However, appellant purchased gasoline
on three occasions during the period of time he was on vacation. On April 23 and 27, 2014,
appellant purchased fuel at “Speedway, Newburgh Hts.” On April 29, 2014, appellant
purchased fuel at “BP, Cleveland.”
2
Timesheets are documents in which appellant would record various times, such as when he left his house, arrived
at a particular prison, finished his duties, and when he arrived home. (Tr. 93.)
3
Accountability sheets are documents in which appellant would describe, in more detail than timesheets, his daily
activities, the locations he was at, and the number of miles he drove. (Tr. 91.)
{¶24} Based on the testimony of Ntia, Thomas, and Tijerina, we find that the state
presented sufficient evidence to establish Cuyahoga County as the proper venue for the case.
Furthermore, we find that the state presented sufficient evidence to prove venue under R.C.
2901.12(H)’s course of criminal conduct provision.
{¶25} R.C. 2901.12(H), governing venue in criminal cases, provides,
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 by the offender in the offender’s same
employment, or capacity, or relationship to another.
(3) The offenses were committed as part of the same transaction or chain of
events, or in furtherance of the same purpose or objective.
(4) The offenses were committed in furtherance of the same conspiracy.
(5) The offenses involved the same or a similar modus operandi.
(6) The offenses were committed along the offender’s line of travel in this state,
regardless of the offender’s point of origin or destination.
(Emphasis added.)
{¶26} In this case, the state argues that the record contains sufficient evidence
demonstrating that appellant engaged in a course of criminal conduct pursuant to R.C.
2901.12(H) such that venue in Cuyahoga County was proper. Regarding the first factor, the
state argues that The Ridge Project was the victim of all of the fraudulent transactions.
Regarding the second factor, the state argues that appellant committed the offenses during his
employment with The Ridge Project. Regarding the third and fourth factors, the state argues
that appellant committed the offenses in furtherance of the same purpose or objective and in
furtherance of the same conspiracy. Regarding the fifth factor, the state argues that the offenses
involved the same or similar modus operandi — using the company credit card at gas stations to
steal money from The Ridge Project.
{¶27} After reviewing the record, we find that at least two of the prima facie indicators
set forth in R.C. 2901.12(H) apply in this case. First, the misuse of credit cards and grand theft
offenses involve the same victim — The Ridge Project. Second, the offenses were committed
by appellant during his employment with The Ridge Project. Because the record demonstrates
that appellant engaged in a course of criminal conduct, we find that the state presented sufficient
evidence for a reasonable trier of fact to determine that venue in Cuyahoga County was proper.
{¶28} Based on the foregoing analysis, appellant’s first assignment of error is overruled.
B. Sufficiency
{¶29} In his second assignment of error, appellant argues that his convictions were not
supported by sufficient evidence.
{¶30} A challenge to the sufficiency of the evidence supporting a conviction requires a
determination of whether the state met its burden of production. State v. Hunter, 8th Dist.
Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41, citing State v. Thompkins, 78 Ohio St.3d 380, 390,
678 N.E.2d 541 (1997). When reviewing sufficiency of the evidence, an appellate court must
determine “‘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. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶
77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus. In a sufficiency inquiry, an appellate court does not assess whether the state’s
evidence is to be believed, but whether, if believed, the evidence admitted at trial supported the
conviction. Thompkins at 387.
1. Thomas’s Spreadsheets
{¶31} As an initial matter, we must address appellant’s arguments regarding the
spreadsheets of his fuel transactions that Thomas created. Appellant repeatedly contends that
Thomas’s spreadsheets were not actual evidence of his fuel transactions, but merely summaries
of the fuel transactions.
{¶32} Appellant also raises several arguments regarding the spreadsheets and Thomas’s
testimony that pertain to the manifest weight of the evidence and are not properly raised in a
sufficiency context. These arguments, which pertain to the credibility of the spreadsheets and
Thomas’s trial testimony rather than admissibility, will be addressed in further detail in the
analysis of appellant’s third assignment of error.
{¶33} After reviewing the record, we find that appellant invited any error with respect to
the admission of the spreadsheets or the trial court’s consideration of the spreadsheets. The
record reflects that defense counsel did not object to the admission of the spreadsheets at trial.
In fact, defense counsel stipulated to the admission of these exhibits. (Tr. 8.) Defense counsel
merely asked the trial court to consider that the spreadsheets were “internal documents generated
by The Ridge Project itself. They are not financial documents from financial institutions, rather
they’re an internal auditing.” (Tr. 8.) By stipulating to the admission of Thomas’s
spreadsheets, any error with respect to the trial court’s admission or consideration of the
spreadsheets was invited by appellant.
{¶34} Pursuant to the invited error doctrine, “a party will not be permitted to take
advantage of an error that he himself invited or induced the trial court to make.” State ex rel.
The V Cos. v. Marshall, 81 Ohio St.3d 467, 471, 692 N.E.2d 198 (1998). This doctrine applies
when defense counsel ‘“was actively responsible’ for the trial court’s error” or “when a party has
asked the court to take some action later claimed to be erroneous[.]” State v. Campbell, 90
Ohio St.3d 320, 324, 738 N.E.2d 1178 (2000), quoting State v. Kollar, 93 Ohio St. 89, 91, 112
N.E. 196 (1915). “Invited error extends to stipulations.” State v. Franks, 8th Dist. Cuyahoga
No. 103682, 2016-Ohio-5241, ¶ 8, citing State v. McClendon, 10th Dist. Franklin No. 11AP-354,
2011-Ohio-6235, ¶ 37; see also Savage v. Savage, 4th Dist. Pike No. 15CA856,
2015-Ohio-5290, ¶ 17, citing State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d
860, ¶ 20-21 (“[b]y stipulating to the admission of the [guardian ad litem’s] report, [appellant]
waived any error in its admission instead of merely forfeiting it by failing to timely assert an
objection.”). (Emphasis added.)
{¶35} Assuming, arguendo, that the invited error doctrine did not apply in this case, we
find no merit to appellant’s challenge to the trial court’s admission or consideration of the
spreadsheets. The state was not required to retain a forensic accountant or an expert witness to
review the purchases appellant made with his company credit card and take the information from
appellant’s accountability sheets, timesheets, credit card receipts, mileage reimbursement logs,
and credit card statements, and compile the information into a spreadsheet. These tasks were
well within Thomas’s purview as fiscal officer.
{¶36} For all of the foregoing reasons, we find no merit to appellant’s challenges to the
admission of Thomas’s spreadsheets or testimony, or the trial court’s consideration thereof.
2. Misuse of Credit Cards
{¶37} First, appellant challenges his conviction for misuse of credit cards. Appellant
was convicted of misuse of credit cards in violation of R.C. 2913.21(B)(2), which provides, “[n]o
person, with purpose to defraud, shall * * * [o]btain property or services by the use of a credit
card, in one or more transactions, knowing or having reasonable cause to believe that the card has
expired or been revoked, or was obtained, is retained, or is being used in violation of law[.]”
R.C. 2913.21(D)(3) provides, in relevant part,
[i]f the cumulative retail value of the property and services involved in one or
more violations of division (B)(2), (3), or (4) of this section * * * is seven
thousand five hundred dollars or more and is less than one hundred fifty thousand
dollars, misuse of credit cards in violation of any of those divisions is a felony of
the fourth degree.
{¶38} Pursuant to R.C. 2901.22(A): “A person acts purposely when it is his specific
intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct
of a certain nature, regardless of what the offender intends to accomplish thereby, it is his
specific intention to engage in conduct of that nature.” “Defraud” means “to knowingly obtain,
by deception, some benefit for oneself or another, or to knowingly cause, by deception, some
detriment to another.” R.C. 2913.01(B).
{¶39} In support of his sufficiency challenge, appellant argues that the state failed to
demonstrate that his fuel transactions exceeded the scope of his employment, and that the state
failed to present any actual evidence of the fuel transactions at trial, but rather relied on
Thomas’s spreadsheets which were merely summaries of the transactions.
{¶40} As an initial matter, we note that the record before this court does, in fact, contain
statements from appellant’s company credit card. The state presented appellant’s credit card
statements — a “Transactions & Details” report — for appellant’s company-issued Capital One
credit card at trial. See state’s exhibit No. 10.
{¶41} Tijerina testified that appellant needed to seek approval when he used the credit
card to purchase items other than gasoline. (Tr. 25.) Tijerina testified that he noticed
appellant was using his company credit card while he was on vacation. He explained that
appellant was on vacation from April 21 through April 29, 2014. The timesheets appellant
submitted also indicate appellant was on vacation at this time. Although appellant was on
vacation, he submitted gas station receipts from Speedway and BP for $75, $75, and $70.
(Tr. 27.) Tijerina advised appellant that he needed to reimburse The Ridge Project for these
unauthorized transactions. Appellant failed to do so.
{¶42} Thomas investigated appellant’s financial activities. She determined that
appellant purchased gas while he was on vacation and also purchased more gas than his company
vehicle would have required to drive the distances that appellant reported traveling. Based on
her analysis, Thomas concluded that appellant made unauthorized purchases with his company
credit card in 2013 totaling $3,251.15, 2014 totaling $6,408.58, and 2015 totaling $2,373.34, for
an aggregate total of $12,033.07.
{¶43} Ntia received a call from Tijerina regarding the fuel purchases appellant made
when he was on vacation. Ntia called appellant to inquire about the purchases. Appellant
informed Ntia that he was in Atlanta. Ntia asked for appellant’s mileage log, a log that
appellant was required to maintain in his company vehicle, but not required to submit to the
company. Ntia attempted to get the mileage log from appellant on or around September 18,
2015. Ntia made subsequent unsuccessful attempts to obtain the mileage log from appellant on
September 27, 28, 29, and 30, 2015. See state’s exhibit No. 13. Ntia testified that he was
never able to recover the mileage log from appellant, and as a result, they were not able to
compare appellant’s mileage log to the receipts from appellant’s fuel purchases.
{¶44} Ntia testified that The Ridge Project attempted to verify appellant’s fuel purchases
by comparing the purchases appellant made to his timesheets and accountability sheets. Based
on these comparisons, Ntia determined that appellant’s fuel purchases did “not add up.” (Tr.
103.) After making this determination, Ntia provided Tijerina with a detailed report of the
situation and then turned the matter over to the fiscal department.
{¶45} After reviewing the record, we find that the testimony of Tijerina, Thomas, and
Ntia, if believed, was sufficient to support appellant’s misuse of credit cards conviction.
Appellant’s second assignment of error is overruled in this respect.
{¶46} Appellant further argues that there was insufficient evidence that he misused the
company credit card for a consecutive period of 90 days.
{¶47} R.C. 2913.21(D)(3) provides, in relevant part,
If the cumulative retail value of the property and services involved in one or more
violations of division (B)(2), (3), or (4) of this section, which violations involve
one or more credit card accounts and occur within a period of ninety consecutive
days commencing on the date of the first violation, is seven thousand five hundred
dollars or more and is less than one hundred fifty thousand dollars, misuse of
credit cards in violation of any of those divisions is a felony of the fourth degree.
(Emphasis added.)
{¶48} The indictment charged appellant with fourth-degree felony misuse of credit cards,
alleging that appellant’s violation of R.C. 2913.21 occurred within a period of 90 consecutive
days. This language elevated the offense from a first-degree misdemeanor to a fourth-degree
felony. The trial court found appellant guilty of fourth-degree felony misuse of credit cards.
{¶49} As an initial matter, we note that appellant did not raise this issue below and thus,
has waived all but plain error. See State v. Fisher, 8th Dist. Cuyahoga No. 101365,
2015-Ohio-597, ¶ 33. In order to prevail on a claim governed by the plain error standard, an
appellant must demonstrate that the outcome at trial would have clearly been different but for the
alleged error. Id., citing State v. Waddell, 75 Ohio St.3d 163, 166, 661 N.E.2d 1043 (1996).
{¶50} The state acknowledges that the evidence did not demonstrate that the violations
occurred within a period of 90 consecutive days. Accordingly, the state concedes that the trial
court erred by finding appellant guilty of fourth-degree felony misuse of credit cards.
{¶51} After reviewing the record, we find that the trial court committed plain error in
convicting appellant of fourth-degree felony misuse of credit cards. As the state concedes, the
evidence does not establish that appellant misused the company credit card for a period of 90
consecutive days. As noted above, however, the evidence in the record does support a
conviction for first-degree misdemeanor misuse of credit cards.
{¶52} “It is well established that this court has the authority to reduce a conviction to that
of a lesser included offense when it is supported by the record, rather than ordering an acquittal
or a new trial.” State v. Reddy, 192 Ohio App.3d 108, 2010-Ohio-5759, 948 N.E.2d 454, ¶ 35
(8th Dist.), citing State v. Davis, 8 Ohio App.3d 205, 207, 456 N.E.2d 1256 (8th Dist.1982), and
State v. Sumlin, 8th Dist. Cuyahoga No. 37559, 1978 Ohio App. LEXIS 10489 (June 29, 1978).
Although first-degree misdemeanor misuse of credit cards is not a lesser included offense of
fourth-degree felony misuse of credit cards, this court has applied the same rationale in
modifying a kidnapping conviction from a first-degree felony to a second-degree felony when the
evidence supported a conviction for the latter. See Fisher, 8th Dist. Cuyahoga No. 101365,
2015-Ohio-597, at ¶ 38.
{¶53} Accordingly, we modify appellant’s misuse of credit cards conviction from a
fourth-degree felony to a first-degree misdemeanor. See Fisher at ¶ 38, citing Reddy at ¶ 35.
Here, although we are not dealing with a lesser included offense, we find that the same rationale
is applicable.
{¶54} Based on the foregoing analysis, we sustain appellant’s second assignment of error
in this respect. Appellant’s misuse of credit cards conviction is modified from a fourth-degree
felony to a first-degree misdemeanor.
3. Grand Theft
{¶55} Second, appellant challenges his conviction for grand theft. Appellant was
convicted of grand theft, in violation of R.C. 2913.02(A)(2), which provides, “[n]o person, with
purpose to deprive the owner of property or services, shall knowingly obtain or exert control over
either the property or services * * * [b]eyond the scope of the express or implied consent of the
owner or person authorized to give consent[.]”
{¶56} In support of his sufficiency challenge, appellant argues that the state failed to
demonstrate that he used The Ridge Project’s property or services in a manner that exceeded the
scope of the organization’s express or implied consent, and that the value of the property or
services stolen was more than $7,500 and less than $150,000. Appellant contends that Thomas
failed to account for the fact that his employment responsibilities, which included meeting the
needs of clients, occasionally required him to work outside of traditional dates and times. For
instance, he asserts that he would occasionally be required to help a client move when he was on
vacation, and that he would deliver Christmas presents to clients when The Ridge Project’s
offices were closed.
{¶57} Tijerina testified that appellant was not authorized to use his company vehicle
while he was on vacation. Despite the company’s policy, however, appellant purchased gas
with the company credit card on multiple occasions while he was on vacation. After he learned
that appellant was using the company vehicle and purchasing gas with the company credit card
while he was on vacation, Tijerina brought the issue to the attention of the fiscal department and
the deputy of operations, Chris Ridley. Tijerina also contacted appellant and asked about the
fuel purchases. Appellant advised Tijerina that somebody in his family was sick, and as a
result, he needed to travel out of state. Tijerina told appellant to reimburse the organization for
the unauthorized purchases and to refrain from using the company credit card. Tijerina
confronted appellant again when he discovered the full extent of appellant’s unauthorized
purchases. Appellant informed Tijerina that he would reimburse The Ridge Project, but he did
not do so. At this point, appellant’s employment was terminated.
{¶58} Ntia testified that appellant was not authorized to use the company vehicle for
private or personal reasons unless he requested and received prior written approval from
management. Ntia explained that appellant never submitted any paperwork requesting
permission to use his company vehicle for personal reasons.
{¶59} Ntia did not notice any discrepancies between the miles appellant drove and the
miles appellant reported driving when appellant was driving his own personal vehicle. When
appellant was issued a company vehicle, he was required to keep a mileage log, recording the
mileage every time he got into the car. Unlike the mileage reimbursement logs, which appellant
maintained and submitted to the organization when he was driving his personal vehicle, appellant
was not required to submit the mileage logs to The Ridge Project. Rather, appellant was only
required to maintain the log and keep it in the company vehicle.
{¶60} When appellant received a company vehicle, he was also issued a company credit
card for the primary purpose of purchasing gasoline. Because appellant kept the mileage log in
his vehicle, the company was unable to compare appellant’s mileage log to the fuel receipts that
appellant submitted to the organization. Ntia testified that around September 27, 2015,
however, The Ridge Project wanted to compare appellant’s mileage log to the receipts from
his fuel transactions because “[appellant’s fuel] purchases were outrageous.” (Tr. 97.)
{¶61} Ntia called appellant to inquire about the purchases he made while he was on
vacation. Appellant stated that he was moving a client. Appellant subsequently informed Ntia
that he traveled to Atlanta. At this point, Ntia asked appellant for his mileage log. Ntia made
several attempts to obtain the mileage log from appellant in September 2015. See state’s exhibit
No. 13. Ntia testified that he was never able to recover the mileage log from appellant, and as a
result, they were not able to compare appellant’s mileage log to the receipts from appellant’s fuel
purchases. Ntia explained that when the organization compared appellant’s fuel transactions to
appellant’s timesheets and accountability sheets, appellant’s fuel transactions did “not add up.”
(Tr. 103.)
{¶62} Finally, as noted above, Thomas investigated appellant’s company credit card
usage. Thomas concluded that appellant made unauthorized purchases with his company credit
card in 2013 totaling $3,251.15, 2014 totaling $6,408.58, and 2015 totaling $2,373.34, for an
aggregate total of $12,033.07. (Tr. 60-61.)
{¶63} After reviewing the record, we find that the testimony of Tijerina, Ntia, and
Thomas, if believed, is sufficient to support appellant’s grand theft conviction. Appellant’s
second assignment of error is overruled in this respect.
4. R.C. 2913.61
{¶64} During oral arguments, appellant appeared to argue that the state failed to present
sufficient evidence that the cumulative retail value of the property and services pertaining to the
misuse of credit cards offense or the value of the property or services stolen pertaining to the
grand theft offense was between $7,500 and $150,000. Specifically, appellant appeared to
contend that R.C. 2913.61(C)(1) and (2), governing aggregation of multiple theft offenses, did
not apply, and thus, the state was not permitted to aggregate the amounts of the individual credit
card transactions.
{¶65} Appellant did not raise this argument — either in the trial court or in his appellate
brief. “As a general matter, a party cannot present new arguments for the first time on appeal
that were not raised below, and a trial court cannot be said to have abused its discretion by failing
to consider arguments that were never presented to it.” State v. D.K., 8th Dist. Cuyahoga No.
106539, 2018-Ohio-2522, ¶ 17, citing State v. Pratts, 8th Dist. Cuyahoga No. 104235,
2016-Ohio-8053, ¶ 43, and Wells Fargo Bank, N.A. v. Bluhm, 6th Dist. Erie No. E-13-052,
2015-Ohio-921, ¶ 17; see also State v. Phillips, 74 Ohio St.3d 72, 93, 656 N.E.2d 643 (1995)
(“An issue is waived, absent a showing of plain error, if it is not raised at the trial level.”).
{¶66} Even if we were to consider appellant’s argument that the state was not permitted
to aggregate the amounts of the individual credit card transactions, we would find no error.
Appellant committed the grand theft and misuse of credit card offenses while he was in the same
employment with The Ridge Project, and the company was the only victim. See State v.
Preztak, 181 Ohio App.3d 106, 2009-Ohio-621, 907 N.E.2d 1254, ¶ 14-15 (8th Dist.).
C. Manifest Weight
{¶67} In his third assignment of error, appellant argues that his convictions are against the
manifest weight of the evidence.
{¶68} In contrast to a sufficiency argument, a manifest weight challenge questions
whether the state met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No. 92266,
2009-Ohio-3598, ¶ 12. A reviewing court “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.” Thompkins, 78 Ohio St.3d at 388, 678
N.E.2d 541. A conviction should be reversed as against the manifest weight of the evidence
only in the most “exceptional case in which the evidence weighs heavily against the conviction.”
Id.{¶69} Although we review credibility when considering the manifest weight of the
evidence, we are cognizant that determinations regarding the credibility of witnesses and the
weight of the testimony are primarily for the trier of fact. State v. Bradley, 8th Dist. Cuyahoga
No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967). The trier of fact is best able “to view the witnesses and observe their demeanor,
gestures, and voice inflections, and use these observations in weighing the credibility of the
proffered testimony.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,
¶ 24. The jury may take note of any inconsistencies and resolve them accordingly, “believ[ing]
all, part, or none of a witness’s testimony.” State v. Raver, 10th Dist. Franklin No. 02AP-604,
2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).
{¶70} In support of his manifest weight challenge, appellant relies on the arguments he
raised in challenging the sufficiency of the evidence. He further argues, “the [c]ourt
impermissibly relied upon a summary of purported evidence rather than upon an examination of
actual evidence. Since no actual evidence was introduced at trial, the weight of the evidence
falls short of a conviction.” Appellant’s brief at 10.
{¶71} In challenging Thomas’s spreadsheets and trial testimony, appellant argues that (1)
Thomas is not a forensic accountant; (2) Thomas did not have all of the necessary documentation
when she compiled the spreadsheets, and as a result, had to fill in some gaps by looking
information up online; (3) some of the data she entered into the spreadsheets were estimates
rather than exact figures; and (4) as an employee of The Ridge Project, Thomas’s spreadsheets
and testimony were biased. As noted above, defense counsel stipulated to the admission of the
spreadsheets at trial.
{¶72} After reviewing the record, we cannot say that this is an exceptional case in which
the trial court clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered, or that the evidence weighs heavily against
appellant’s convictions.
{¶73} Appellant’s arguments challenging Thomas’s spreadsheets pertain to the credibility
of the spreadsheets and Thomas’s trial testimony, rather than the admissibility of the evidence.
The trial court, as the trier of fact, was in the best position to make this credibility determination.
{¶74} The record reflects that the tasks of reviewing appellant’s credit card transactions
and creating the spreadsheets were well within Thomas’s purview as The Ridge Project’s fiscal
officer. Thomas testified that she served as fiscal officer for six years and that she deals with all
of The Ridge Project’s financial aspects. Thomas has also worked in a financial capacity for 35
years.
{¶75} Thomas testified regarding the process she used and the information she reviewed
in order to generate the spreadsheets of appellant’s fuel transactions. Thomas explained that she
created the spreadsheets using data from appellant’s accountability sheets, timesheets, credit card
receipts, mileage reimbursement logs, and credit card statements. Thomas acknowledged that
she had to look up some of the information she included in the spreadsheets online. For
instance, she used the website “Mapquest” in order to determine how far appellant drove from
his house to the locations to which he reported on a particular day. Additionally, if the price per
gallon of gasoline was not listed on a particular fuel receipt that appellant submitted, Thomas
looked up the pricing of gasoline in the area online. (Tr. 48.)
{¶76} Finally, on cross-examination, Thomas testified about the potential problems
regarding the process she used to generate the spreadsheets. For instance, she acknowledged
that she did not take into account the effect that factors such as drag, friction, or road conditions
would have on gas mileage. (Tr. 76.)
{¶77} The trial court, as the trier of fact, had sufficient information about the process
Thomas used to create the spreadsheets, the documents she reviewed, and the potential problems
with the process in order to weigh the credibility of the spreadsheets and Thomas’s trial
testimony. Furthermore, the trial court was in the best position to weigh the credibility of
Thomas and her proffered testimony about the spreadsheets she created.
{¶78} Finally, the defense’s theories of the case were that (1) appellant’s fuel transactions
were legitimate and authorized expenses in response to the needs of his clients, and/or (2) any
discrepancies regarding the fuel transactions were the result of appellant’s failure to properly
maintain his activity logs, poor management, or The Ridge Project’s failure to establish a clear
policy regarding company credit cards and vehicles. On the other hand, the state’s theory of the
case was that appellant deliberately misused his company credit card and company vehicle in a
manner that exceeded the scope of his employment and The Ridge Project’s consent.
Appellant’s convictions are not against the manifest weight of the evidence simply because the
trial court chose to believe the state’s version of the events rather than appellant’s theories. See
State v. Nelson, 2017-Ohio-5568, 93 N.E.3d 472, ¶ 58 (8th Dist.).
{¶79} For all of the foregoing reasons, appellant’s third assignment of error is overruled.
III. Conclusion
{¶80} After thoroughly reviewing the record, we affirm appellant’s grand theft
conviction, modify appellant’s misuse of credit cards conviction from a fourth-degree felony to a
first-degree misdemeanor, vacate the trial court’s sentence on the fourth-degree felony misuse of
credit cards conviction, and remand the matter to the trial court for resentencing on the
first-degree misdemeanor misuse of credit cards conviction only.
{¶81} The record contains sufficient evidence establishing that Cuyahoga County is a
proper venue for the criminal proceedings; appellant’s convictions for grand theft and
first-degree misdemeanor misuse of credit cards are supported by sufficient evidence and are not
against the manifest weight of the evidence.
{¶82} Judgment affirmed in part, modified in part, vacated in part, and remanded for
resentencing.
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 common pleas
court to carry this judgment into execution. The defendant’s convictions having been affirmed
in part, any bail pending appeal is terminated. Case remanded to the trial court for resentencing.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
EILEEN A. GALLAGHER, A.J., and
EILEEN T. GALLAGHER, J., CONCUR