State v. Morgan , 2013 Ohio 122 ( 2013 )

[Cite as State v. Morgan, 2013-Ohio-122.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25023
v. : T.C. NO. 10CR2883
MICHELE MORGAN : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 18th day of January , 2013.
..........
KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
BAHJAT M. ABDALLAH, Atty. Reg. No. 0078504, 15 West Fourth Street, Suite 100,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
MICHELE MORGAN, 8521 Lyons Gate Way, Apt. A, Miamisburg, Ohio 45342
Defendant-Appellant
..........
FROELICH, J.
{¶ 1} Michele Morgan was convicted of theft in violation of R.C.
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2913.02(A)(2), a fourth-degree felony, after a bench trial in the Montgomery County Court
of Common Pleas. The court sentenced her to five years of community control, which
included the requirement that she pay restitution of $8,657.62 to her former boyfriend,
Rodney Rooks.
{¶ 2} Morgan’s appellate counsel filed a brief pursuant to Anders v. California,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that after thoroughly examining
the record and the law, he found no potentially meritorious issues for appeal. Counsel set
forth three potential assignments of error, namely (1) that the verdict was based on
insufficient evidence and was against the manifest weight of the evidence, (2) that there was
insufficient evidence to support the amount of restitution ordered, and (3) that the verdict
and judgment entry are defective, because they improperly refer to the offense as “grand
theft ($5000).”
{¶ 3} By entry, we informed Morgan that her attorney had filed an Anders brief
on her behalf and granted her 60 days from that date to file a pro se brief. Morgan
requested and was granted an extension of time in which to file a pro se brief. However, to
date, no pre se brief has been filed.
{¶ 4} Appellate counsel first raised that Morgan’s conviction was based on
insufficient evidence and was against the manifest weight of the evidence. “A sufficiency
of the evidence argument disputes whether the State has presented adequate evidence on
each element of the offense to allow the case to go to the jury or sustain the verdict as a
matter of law.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10,
citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). When
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reviewing whether the State has presented sufficient evidence to support a conviction, the
relevant inquiry is whether any rational finder of fact, after viewing the evidence in a light
most favorable to the State, could have found the essential elements of the crime proven
beyond a reasonable doubt. State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096(1997). A guilty verdict will not be disturbed on appeal unless “reasonable minds could not
reach the conclusion reached by the trier-of-fact.” Id.{¶ 5} In contrast, “a weight of the evidence argument challenges the believability
of the evidence and asks which of the competing inferences suggested by the evidence is
more believable or persuasive.” Wilson at ¶ 12. When evaluating whether a conviction is
contrary to the manifest weight of the evidence, the appellate court must review the entire
record, weigh the evidence and all reasonable inferences, consider witness credibility, and
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.” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, citing State v.
Martin 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 6} Because the trier of fact sees and hears the witnesses at trial, we must defer
to the factfinder’s decisions whether, and to what extent, to credit the testimony of particular
witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22,
1997). However, we may determine which of several competing inferences suggested by
the evidence should be preferred. Id. The fact that the evidence is subject to different
interpretations does not render the conviction against the manifest weight of the evidence.
Wilson at ¶ 14. A judgment of conviction should be reversed as being against the manifest
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weight of the evidence only in exceptional circumstances. Martin, 20 Ohio App.3d at 175,
485 N.E.2d 717.
{¶ 7} At trial, the State presented substantial evidence that Morgan used Rooks’s
checking account to pay numerous bills between June 2009 and July 2010. The payments
included fourteen checks to the apartment complex where Morgan lived for Morgan’s rent,
as well as several telephone and utility bills; the payments totaled $8,657.62. All of the
payments were made through the bank’s Online Bill Payment service. The telephone and
utility payments were electronic fund transfers; Morgan’s rent payments were written checks
produced by the bank and sent by the bank to the apartment complex. Rooks testified that
he did not establish online access to his checking account, and he did not make online
payments. He further stated that Morgan did not have permission to use his account to pay
her bills. After Rooks notified the police, Morgan sent several text messages to Rooks, in
one of which she stated that she would pay back any money that she owed to Rooks.
{¶ 8} While testifying on her own behalf, Morgan did not contest that she used
money from Rooks’s checking account to pay her bills. She argued, however, that Rooks
agreed to use his checking account to help her pay her bills on time, and that she, in return,
provided cash to Rooks. Morgan stated that she believed the theft charges were made by
Rooks in retaliation for Morgan’s breaking up with him.
{¶ 9} Various documents were offered into evidence by the State, including the
checks made out to Morgan’s apartment complex from Rooks’s checking account, Rooks’s
bank statements, a transcript of text messages from Morgan to Rooks, and Morgan’s written
statement to the Miami Township Police Department. Morgan offered three exhibits
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consisting of telephone records, Facebook messages between Rooks and her, and pay stubs
from her employment.
{¶ 10} Upon review of the entire record, we find no arguable claim that Morgan’s
conviction was based on insufficient evidence or against the manifest weight of the
evidence. There was substantial evidence of Morgan’s use of Rooks’s money to pay bills
during 2009 and 2010, and the only issue was whether Rooks had agreed to allow Morgan to
use his checking account for that purpose. Rooks testified that Morgan used his checking
account without his consent. Although Morgan asserted that she and Rooks had an
agreement that allowed her to pay her bills from Rooks’s account, the trial court specifically
found that it “didn’t find [Morgan’s] testimony to be credible at all.” While rendering its
verdict, the court told Morgan, “Nothing that you say makes sense. You have different and
conflicting versions of almost everything you said.” We defer to the trial court’s findings of
credibility. Appellate counsel’s first potential assignment of error is frivolous.
{¶ 11} Appellate counsel next raises that there was insufficient evidence to support
the amount of restitution ordered. Counsel notes that “the only issue as it pertains to
restitution is whether or not the Court finds any ‘set-off’ arguments made by Appellant
Morgan to be credible.” Rooks testified that the amount of money that Morgan used to pay
her bills totaled $8,657.62, and the State offered bank records and checks to substantiate that
testimony. 1 Morgan did not dispute that payments totaling $8,657.62 were made from
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The State’s amended bill of particulars stated that Morgan stole
$8,416.62, which was $241 less than the amount asserted by the State at trial.
However, this discrepancy is due to a miscalculation as to the total value of the
14 checks made from Rooks’s checking account to Morgan’s apartment
complex. The amended bill of particulars stated that the 14 checks totaled
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Rooks’s account to pay her bills. Morgan testified that Rooks was reimbursed for the funds
that were used to pay her bills, but there was no documentary evidence to support that
assertion and the trial court did not find Morgan’s testimony to be credible. Based on the
record, there was sufficient evidence to support the trial court’s restitution order, and any
claim to the contrary is frivolous.
{¶ 12} Finally, appellate counsel claims that the trial court’s verdict form and
judgment entry are erroneous, because they refer to Morgan’s offense as “grand theft
($5000).”
{¶ 13} Morgan was charged in February 2011 with theft, in violation of R.C.
2913.02(A)(2) (theft beyond the scope of consent). At the time of the offense, R.C.
2913.02(B)(2) stated that a violation of R.C. 2913.02 was a felony of the fourth degree if the
value of the property or services stolen was $5,000 or more, but less than $100,000. Due to
2011 Am.Sub. H.B. 86, effective September 30, 2011, theft is now a fourth-degree felony if
the value of the property or services stolen is $7,500 or more, but less than $150,000.
{¶ 14} In H.B. 86, the General Assembly expressly stated when the amendments
were to be applicable: “The amendments * * * apply to a person who commits an offense
specified or penalized under those sections on or after the effective date of this section and to
a person to whom division (B) of section 1.58(B) of the Revised Code makes the
amendments applicable.” See State v. Wilson, 2d Dist. Montgomery No. 25057,
2012-Ohio-5912, ¶ 7. Moreover, under R.C. 1.58(B), “[i]f the penalty, forfeiture, or
$5,542; the checks (which were offered into evidence as State’s Ex. 1) actually
totaled $5,783.
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punishment for any offense is reduced by a reenactment or amendment of a statute, the
penalty, forfeiture, or punishment, if not already imposed, shall be imposed according to the
statute as amended.” See Wilson at ¶ 8. Morgan’s case was tried in December 2011, and
she was sentenced in January 2012. Accordingly, Morgan was entitled to any benefits
provided by the amendment to R.C. 2913.02 in H.B. 86.
{¶ 15} The State proved at trial that Morgan committed theft of $8,657.62, and
when orally informing Morgan of its verdict, the trial court found Morgan “guilty of one
count of grand theft, a felony of the fourth degree, which would continue to be a fourth
degree felony under the new statute.” 2 When asked by the court if that statement was
correct, defense counsel concurred. Because Morgan was entitled to be sentenced under
H.B. 86, the trial court incorrectly referenced $5,000 in its verdict and judgment entry as the
minimum value for fourth-degree felony theft. However, this is an apparent typographical
error with no consequence to the validity of Morgan’s conviction, considering that Morgan
committed a fourth-degree felony under both former law and H.B. 86. We find no potentially
meritorious claim based on the trial court’s reference to the former minimum value of
$5,000 in its verdict form and judgment entry.
{¶ 16} Pursuant to our duty under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102
L.Ed.2d 300 (1988), we have conducted an independent review of the entire record, and we
have found no potential assignments of error having arguable merit.
{¶ 17} The judgment of the trial court will be affirmed.. . . . . . . . . .
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Although the trial court did not specify the value of the stolen property in
its verdict, the record establishes that the court found Morgan guilty of
committing theft in the amount of $8,657.62.
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FAIN, P.J. and DONOVAN, J., concur.
Copies mailed to:
Kirsten A. Brandt
Bahjat M. Abdallah
Michele Morgan
Hon. Mary Katherine Huffman