State v. Kratochvill , 2020 Ohio 7000 ( 2020 )

[Cite as State v. Kratochvill, 2020-Ohio-7000.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2019-L-088
- vs - :
PAUL KRATOCHVILL, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas.
Case No. 2018 CR 001090.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).
Mark B. Marein and Steven L. Bradley, Marein & Bradley, 222 Leader Building, 526
Superior Avenue, Cleveland, OH 44114 (For Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Paul Kratochvill (“Kratochvill”), appeals a judgment in the Lake
County Court of Common Pleas, following a jury trial, sentencing him to a combined
term of five years in prison, as well as ordering restitution. We affirm the trial court’s
judgment.
{¶2} Kratochvill was accused of defrauding and stealing from three elderly
individuals; namely, Patricia Deveny (“Deveny”), Diana Hiser (“Hiser”), and David
Sparks (“Sparks”).1 More specifically, Kratochvill was accused of misrepresenting
himself as a licensed stockbroker and soliciting investments from his victims, which he
deposited into a TD Ameritrade account in the name of his mother, Maureen Kratochvill.
He falsely conveyed to the victims, among other things, that the investments were
annuities safe from risk, but he ultimately ended up losing their money.
{¶3} On October 31, 2018, the Lake County Grand Jury issued an amended
Indictment, charging Kratochvill with two counts of securing writings by deception
(“Count 3” and “Count 13”), felonies of the second degree, in violation of R.C.
2913.43(A). Count 3 was with regard to Deveny and Count 13 was with regard to Hiser.
Kratochvill was also charged with, but ultimately not convicted of, the following: (1)
eleven counts of making false representations in the sale of securities; (2) eleven
counts of purchasing or selling securities while engaging in illegal, fraudulent, or
prohibited acts; (3) two counts of theft from a person in a protected class; (4) grand
theft; and (5) telecommunications fraud.
{¶4} On June 14, 2019, Kratochvill filed a Motion to Continue Trial or,
Alternatively, to Prohibit Certain Testimony at Trial, requesting a continuance because
Dr. Conomy, who was to testify regarding the impact Parkinson’s disease would have
on the credibility of Maureen Kratochvill as a witness, had passed away. In the
alternative, Kratochvill requested that his mother Maureen not be permitted to testify
regarding alleged misconduct on the part of Kratochvill against Maureen. The trial court
denied the request for a continuance but ordered that Maureen would not be permitted
to testify regarding the alleged misconduct.
1. Kratochvill was eventually found not guilty of the charges related to Sparks.
2
{¶5} A jury trial began on June 24, 2019. The state of Ohio presented various
exhibits and called the following witnesses:
{¶6} Deveny testified that she met Kratochvill through her daughter, who was
renting a room in a building he owned. Deveny and Kratochvill discussed financial
matters, including her 401(k). Deveny knew Kratochvill to be a hardwood floor installer
and building owner but also believed he was a licensed trader and/or investor based on
their conversations regarding financial matters. Kratochvill told Deveny there were
ways of investing money that “could create more of an income” for her when she retired,
and he spoke with her about the mismanagement of her 401(k). This persuaded her to
invest with him. Kratochvill did not tell Deveny there was a possibility she could lose
money; to the contrary, he told her the money would be safe and generate income.
Kratochvill told Deveny he “knew ways to get around” risks of investing money, and
Deveny testified that she would not have invested with Kratochvill had she known she
could lose her principal, undergo risk, or that her investment would be subject to fees or
commissions.
{¶7} Deveny testified that Kratochvill told her he would be investing the money
she gave him into the building he owned and a business he was starting, and that
Kratochvill told her she “would be getting around $4,000 a month back in returns.” On
October 30, 2013, Deveny signed a written agreement with Kratochvill to invest
$102,000.00 in exchange for $4,000.00 a month in payments for a term of 36 months.
{¶8} The state presented evidence that on October 31, 2013, Deveny wrote a
check for $102,000.00 to TD Ameritrade Clearing, Incorporated for the benefit of
Maureen Kratochvill. She obtained the money from a combination of cashing in her
3
401(k) and utilizing an equity line of credit on her home. Deveny testified that she
believed her monthly payments would come from Kratochvill’s renters. Further,
Deveny’s daughter made statements to her indicating that Kratochvill could make up
any shortfall in payments with his father’s annuity. Under the agreement, Kratochvill
paid Deveny a total of $42,000.00 over the course of several months, but he ultimately
ceased making payments.
{¶9} Hiser testified that she met Kratochvill in 2014 when he came to her home
to provide an estimate for refinishing her dining room floor. At that time, they discussed
finances and Kratochvill told her he was a licensed stockbroker. He said that for every
$25,000.00 she invested, she would receive $1,000.00 a month for retirement.
According to Hiser, Kratochvill said that her money was safe, “everything would be fine,”
and she could get the money back at any time. She invested $120,000.00, making
$50,000.00 in payments after executing signed agreements in February and March
2014—similar to those signed by Deveny—which provided she would receive $1,000.00
per month for every $25,000.00 invested with Kratochvill. Hiser later made additional
payments totaling $70,000.00 from May through July 2014. Kratochvill paid Hiser a
couple thousand dollars at various times, but Hiser testified that she stopped hearing
from him in the spring of 2015. In November 2015, she requested the return of all
money invested but did not receive it.
{¶10} The written agreements with both Deveny and Hiser were titled, “Original
Agreement,” and they were introduced at trial.
{¶11} Leo Fernandez (“Fernandez”), a forensic accountant with the Ohio
Division of Securities, investigated the accounts involved in this matter. He testified that
4
checks written by Deveny and Hiser were deposited into a TD Ameritrade account,
made payable to “TD Ameritrade for the benefit of Maureen Kratochvill.” Fernandez
explained that the money in the account was “day traded” and “margin traded,” which he
described as similar to buying stock using a credit card. The account showed a loss of
$328,428.51 for 2014. He also testified that Kratochvill had lost some of his own money
trading with this account. On cross examination, Fernandez testified that he had not
reviewed bank records relating to wire transfers authorized by Maureen Kratchvill that
may have occurred into the TD Ameritrade account. The trial court, over Kratochvill’s
objection, refused to allow the presentation of evidence that Maureen Kratochvill
authorized wire transfers on the TD Ameritrade account because the evidence was not
presented to the state during discovery prior to trial.
{¶12} Jennifer Price (“Price”), the manager of fraud investigations for TD
Ameritrade Financial Intelligence Unit, testified that in November 2015, she had
received a report that a TD Ameritrade account in the name of Maureen Kratochvill had
been opened without Maureen’s authorization. The state also submitted an affidavit
from Maureen Kratochvill, which Price authenticated, stating that she had not authorized
the opening of the account. Price testified that this was the TD Ameritrade account into
which Deveny and Hiser’s funds had been deposited. Internal records linked a phone
number and email address on this account to a separate business account for
Kratochvill. Both accounts had also been accessed online by the same IP address.
{¶13} Peter Lee (“Lee”), a friend of Kratochvill, testified that the two men both
shared an interest in stocks and trading. Lee assisted Kratochvill with advice for
opening a “Thinkorswim” brokerage account to purchase stock options. Although Lee
5
did not confirm through testimony, the “Thinkorswim” brokerage account referred to the
TD Ameritrade account discussed in previous testimony. Lee testified that he signed a
document granting him access to Kratochvill’s account to assist him with trading. He
testified that the document opening a “Thinkorswim” account in Maureen Kratochvill’s
name, although it had his signature on the bottom, had not been signed by him. A
recording of a call made to TD Ameritrade to discuss this account was played by the
state, in which the caller identified himself as Lee. Lee testified that he had not called to
discuss the account and that he recognized the voice on the recording as Kratochvill’s.
{¶14} Maureen Kratochvill testified that she had never opened a TD Ameritrade
account or an account through “Thinkorswim,” and she confirmed that she signed an
affidavit submitted to TD Ameritrade denying she opened the account. Maureen’s sister
and power of attorney, Michelle Leech, testified that she and Maureen spoke about the
account and they “didn’t know what this account was for * * * or what was going on with
it.”
{¶15} Harvey McCleskey (“McCleskey”), Deputy Attorney Inspector with the
Ohio Division of Securities, testified regarding the investigation of Kratochvill. He
reviewed the victims’ agreements and determined they were investment contracts,
which are considered a security. He testified that the agreements were similar to an
annuity in that they were not to be subject to risk, although the funds ultimately were
pooled and used for purchasing bonds and were lost through trading.
{¶16} At the end of the state’s case-in-chief, the defense made an oral motion
for acquittal under Criminal Rule 29, which was granted with regard to the single count
of telecommunications fraud. The defense then called Thomas Geyer, a lawyer and
6
former employee and commissioner of the Division of Securities, who testified that the
Original Agreements were not investment contracts because there was a guarantee of
a return of funds; i.e., the agreements provided that the funds were not subject to risk.
Therefore, Geyer concluded that the Original Agreements with Deveny and Hiser were
not securities and could not be punishable under securities law. The defense then
rested.
{¶17} On June 27, 2019, the jury found Kratochvill guilty of 2 counts of securing
writings by deception—Count 3 and Count 13—and not guilty of the 25 remaining
counts.
{¶18} A sentencing hearing was held on July 29, 2019, and the trial court
ordered the following sentence for each charge:
Count 3: Securing Writings by Deception (R.C. 2913.43(A)) (F-2) -
60 months served concurrently with count 13 and with restitution to
be paid to Deveny in the amount of $70,614.00;
Count 13: Securing Writings by Deception (R.C. 2913.43(A)) (F-2) -
60 months served concurrently with count 3 and with restitution to
be paid to Hiser in the amount of $107,701.99.
{¶19} Kratochvill filed a timely notice of appeal and raises nine assignments of
error for our review. For clarity and convenience, we combine and consider the
assignments out of order.
{¶20} Kratochvill’s fifth assignment of error states:
[5.] The trial court erred in not granting a continuance in light of Dr.
Conomy’s death.
{¶21} Kratochvill argues he was denied due process of law as a result of the trial
court not granting a continuance of his trial following the death of Dr. Conomy, who was
going to proffer expert testimony regarding Parkinsonian delusions.
7
{¶22} “The Ohio Supreme Court has held ‘[t]he grant or denial of a continuance
is a matter which is entrusted to the broad, sound discretion of the trial judge. An
appellate court must not reverse the denial of a continuance unless there has been an
abuse of discretion.’” State v. Moore, 11th Dist. Geauga No. 2014-G-3195, 2014-Ohio-
5183, ¶54 quoting State v. Unger, 67 Ohio St. 2d 65, 67 (1981). “An abuse of discretion
connotes the trial court’s ‘“failure to exercise sound, reasonable, and legal decision-
making.”’” Id., quoting State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900,
¶62, quoting Black’s Law Dictionary 11 (8th Ed.2004). “In considering whether a trial
court abused its discretion when ruling on a motion for continuance, a reviewing court
must weigh any potential prejudice to the defendant against the trial court’s ‘right to
control its own docket and the public’s interest in the prompt and efficient dispatch of
justice.’” Id., quoting Unger, supra, at 67.
{¶23} Here, the motion filed by Kratochvill before trial was multipart: a motion to
continue or, in the alternative, a motion to limit testimony regarding Kratochvill’s
treatment of his mother. The trial court considered the motion, denied a continuance,
and granted the alternative request, a limitation on testimony. The issue was also
discussed in chambers before trial, and the trial court considered the content of what Dr.
Conomy was going to proffer regarding the effects of Parkinson’s Disease and
medications for treatment on Kratochvill’s mother. Given the extensive consideration of
the motion and the granting of limitations on Kratochvill’s mother’s testimony, we cannot
say that denying a continuance ten days prior to trial was an abuse of discretion. The
trial court’s ruling balanced the prejudice to Kratochvill, granted the requested restriction
8
on testimony in light thereof, and did not demonstrate a failure to exercise sound,
reasonable, and legal decision-making.
{¶24} Accordingly, Kratochvill’s fifth assignment of error is without merit.
{¶25} Kratochvill’s third, fourth, and sixth assignments of error address
evidentiary issues:
[3.] Evidence regarding Maureen Kratochvill’s uninvolvement with
the Ameritrade account was improperly admitted.
[4.] State’s witness McCleskey’s testimony regarding what was
important to the investors in making their decision to enter the
original agreement was improper.
[6.] The trial court erred when it prohibited the defense from
introducing evidence that Maureen Kratochvill, in direct
contradiction of her testimony on direct examination, knew about
the existence of the Ameritrade account.
{¶26} The standard of review on appeal regarding admission of evidence is
varied. Generally, “‘[t]he admission or exclusion of relevant evidence rests within the
sound discretion of the trial court.’” State v. Long, 11th Dist. Lake No. 2013-L-102,
2014-Ohio-4416, ¶20, quoting State v. Sage, 31 Ohio St. 3d 173 (1987), paragraph two
of the syllabus. Abuse of discretion is defined as discussed above. An abuse of
discretion may be found when the trial court “applies the wrong legal standard,
misapplies the correct legal standard, or relies on clearly erroneous findings of fact.”
Thomas v. Cleveland, 176 Ohio App. 3d 401, 2008-Ohio-1720, ¶15 (8th Dist.) (citation
omitted).
{¶27} However, the trial court does not have discretion, for example, to admit
hearsay “except as otherwise provided by the Constitution of the United States, by the
Constitution of the State of Ohio, by statute enacted by the General Assembly not in
9
conflict with a rule of the Supreme Court of Ohio, by these rules, or by other rules
prescribed by the Supreme Court of Ohio.” Evid.R. 802; see also Jack F. Neff Sand &
Gravel, Inc. v. Great Lakes Crushing, Ltd., 11th Dist. Lake No. 2012-L-145, 2014-Ohio-
2875, ¶23, citing State v. DeMarco, 31 Ohio St. 3d 191, 195 (1987). Therefore, if it is a
pure legal question, such as whether testimony constitutes inadmissible hearsay, we
apply a de novo standard of review. Id., citing John Soliday Fin. Group, LLC v.
Pittenger, 190 Ohio App. 3d 145, 150, 2010-Ohio-4861 (5th Dist.). In addition, if
evidence is not objected to at trial, its admission is normally reviewed for plain error.
State v. Bennett, 11th Dist. Ashtabula No. 2002-A-0020, 2005-Ohio-1567, ¶55 (applying
plain error analysis to a failure to object to hearsay testimony at trial).
{¶28} Because each of these evidentiary challenges requires a different analysis
and/or standard of review, we address them individually.
Evidence regarding Maureen Kratochvill’s lack of involvement with
the Ameritrade account.
{¶29} Kratochvill argues that evidence regarding whether Maureen Kratochvill
was involved with the TD Ameritrade account was not relevant. In the alternative,
Kratochvill argues the evidence should not have been permitted under Evid.R. 403(A)
as unfairly prejudicial. We disagree with both contentions.
{¶30} “‘Relevant evidence’ means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Evid.R. 401.
Pursuant to Evid.R. 402, “[e]vidence which is not relevant is not admissible.”
{¶31} Further, Evid.R. 403(A) states, “[a]lthough relevant, evidence is not
admissible if its probative value is substantially outweighed by the danger of unfair
10
prejudice, of confusion of the issues, or of misleading the jury.” The application of
Evid.R. 403(A) was described by the Supreme Court of Ohio in State v. Crotts, 104
Ohio St. 3d 432, 2004-Ohio-6550:
‘“Exclusion on the basis of unfair prejudice involves more than a
balance of mere prejudice. If unfair prejudice simply meant
prejudice, anything adverse to a litigant’s case would be excludable
under Rule 403. Emphasis must be placed on the word ‘unfair.’
Unfair evidence is that quality of evidence which might result in an
improper basis for a jury decision. Consequently, if the evidence
arouses the jury’s emotional sympathies, evokes a sense of horror,
or appeals to an instinct to punish, the evidence may be unfairly
prejudicial. Usually, although not always, unfair prejudicial evidence
appeals to the jury’s emotions rather than intellect.”’
Id. at ¶24, quoting Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St. 3d 169, 172 (2001),
quoting Weissenberger, Ohio Evidence, Section 403.3, at 85-87 (2000); accord State v.
Craig, 11th Dist. Lake No. 2016-L-113, 2017-Ohio-8939, ¶45.
{¶32} In the matter sub judice, Kratochvill was convicted of two counts, but 26
other charges were also prosecuted at the trial. Although he argues the testimony is
irrelevant in relation to the charges of which he was convicted, several of the charges of
which he was acquitted—including making false representations in the selling of
securities—related to false representations regarding Maureen’s involvement with the
investment account used to trade the victims’ funds. This testimony was directly
relevant, and the trial court did not abuse its discretion in admitting it.
{¶33} Further, we disagree that Maureen Kratochvill’s testimony should have
been excluded as unfairly prejudicial under Evid.R. 403(A). We do not find any danger
of unfair prejudice here, as the testimony was limited by the trial court to explaining the
facts surrounding whether Maureen Kratochvill opened the account. The fact that this
11
testimony may portray Kratochvill in a negative light was highly unlikely to have aroused
the jury’s emotional sympathies rather than their intellect.
McCleskey’s testimony regarding what was important to investors.
{¶34} Kratochvill argues Deputy Attorney Investigator McCleskey’s following
statement was based on hearsay: “I was able to determine that the investors’ interest in
making sure that Mr. Kratochvill was licensed wasn’t met. Their interest in making sure
that he had the authority to trade on the account of his mother wasn’t met and also the
securities probably should have been registered.” The state argues that a plain error
standard of review should be applied because Kratochvill did not object to the statement
at issue during trial and further contends Kratochvill cannot demonstrate plain error.
{¶35} If a party fails to object to testimony at trial, the party forfeits all but plain
error review on appeal. See Bennett, supra, at ¶55. Crim.R. 52(B) provides that “[p]lain
errors or defects affecting substantial rights may be noticed although they were not
brought to the attention of the court.” “In order for Crim.R. 52(B) to apply, a reviewing
court must find that (1) there was an error, i.e., a deviation from a legal rule; (2) that the
error was plain, i.e., that there was an ‘obvious’ defect in the trial proceedings; and (3)
that the error affected ‘substantial rights,’ i.e., affected the outcome of the trial. Bennett,
supra, at ¶56, quoting State v. Barnes, 94 Ohio St. 3d 21, 27 (2002). Although an
appellate court may notice plain error under Crim.R. 52(B), such notice “is to be taken
with the utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice.” Long, supra, at paragraph three of the syllabus.
12
{¶36} “‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Evid.R. 801(C).
{¶37} Here, no error is demonstrable because McCleskey did not recite any
particular statement made by the victims. His testimony was attempting to explain that
the potential concerns the victims had—such as Kratochvill’s lack of a license and that
the account was in his mother’s name—were supported by the evidence he obtained in
the investigation. This included the evidence that Kratochvill was not licensed, the
securities were not registered, and the account was ultimately discovered to have been
in his mother’s name. The testimony primarily related to the focus of his investigation
and not particular statements made by the victims.
{¶38} Even presuming McCleskey’s testimony could be construed as hearsay
for referencing statements the victims may have made, it was consistent with the
testimony the victims had provided. Hiser testified that Kratochvill said he was licensed,
and Deveny also expressed a belief that he was licensed, showing that they both had
an interest in this fact. Further, both testified they believed Kratochvill had authority to
utilize the account in which he put their payments, either because it was a joint account
or because he had been granted the ability to do so through a power of attorney. In
other words, the testimony in question corroborated facts already part of the record.
Thus, even if hearsay, we conclude that any error in the admission of this testimony was
harmless, as it did not affect Kratochvill’s substantial rights. See State v. Williams, 38
Ohio St. 3d 346, 350 (1988) (an error in the admission of evidence may be deemed
harmless when cumulative and corroborative to testimony of other witnesses); Crim.R.
13
52(A) (“[a]ny error, defect, irregularity, or variance which does not affect substantial
rights shall be disregarded”).
Evidence that Maureen Kratochvill knew about the Ameritrade
account.
{¶39} Kratochvill argues that the court erred by not allowing evidence that
Maureen Kratochvill had signed for wire transfers into the TD Ameritrade account,
contradicting her testimony that she did not open the account. He contends that the
court erred in finding the evidence was not revealed to the prosecution in a timely
manner because it did not become relevant until Maureen testified that she had no
knowledge of the account and the defense had only retrieved the evidence the night
before presenting it to the court.
{¶40} Kratochvill’s counsel presented the evidence that Maureen Kratochvill had
approved wire transfers on the third day of trial, during cross examination of Fernandez,
the forensic accountant. The trial court found that it would be unfair to present this
evidence for the first time on the third day of trial, noting the trial had been “set four
times” and Kratochvill should have been aware of this evidence sooner. The trial court
also emphasized that it had limited the state’s ability—upon the defense’s request—to
question Maureen about concerns that Kratochvill had forced her to complete certain
financial transactions.
{¶41} Crim.R. 16 requires that parties provide discovery when such a request is
made. “The purpose of discovery rules is to prevent surprise and the secreting of
evidence favorable to one party. The overall purpose is to produce a fair trial.”
Lakewood v. Papadelis, 32 Ohio St. 3d 1, 3 (1987) (citation omitted). Crim.R. 16
“provides a range of sanctions which the trial court, in its discretion, may impose on a
14
noncomplying party.” Id. at 4. Failure to comply with such rules may result in the court,
inter alia, granting a continuance or prohibiting the party from “introducing in evidence
the material not disclosed.” Crim.R. 16(L)(1).
{¶42} Here, there is no question that although the state provided a discovery
request, this evidence was not given to the state. The state had no advance notice that
this evidence would be presented.
{¶43} Kratochvill argues that the evidence could not have been provided in
discovery because it was not located until after the trial began, and, thus, it should have
been admitted. However, as the trial court found, this evidence was available to the
defense prior to trial. The Bill of Particulars clearly stated that Maureen’s lack of
knowledge of the account was part of several of the charges brought against Kratochvill.
Nothing new was presented by the state at trial that would have suddenly led to the
discovery of this evidence. Allowing such evidence to be admitted in these
circumstances would be unfair to the state. At the point this issue was raised, Maureen,
as well as other witnesses who discussed the issue of the account, had already
testified. This issue was not brought up during their testimonies, thus hampering the
state’s ability to refute it.
{¶44} Kratochvill also argues that, presuming this was a discovery violation,
exclusion of the evidence was a drastic remedy in light of the circumstances. Prior to
imposing a sanction for failure to disclose evidence in discovery, the trial court should
consider the circumstances surrounding the violation, including the extent to which the
evidence would result in surprise or prejudice, the impact of excluding the evidence at
trial, the willfulness of the violation, and the effectiveness of less severe sanctions.
15
Papadelis, supra, at 5.
{¶45} In accord with Papadelis, the trial court did, in fact, conduct an inquiry into
the circumstances surrounding the discovery violation. The court determined that this
evidence did surprise the state and could have been discovered and disclosed
previously. Contrary to Kratochvill’s assertion, the fact that Fernandez was aware wire
transfers occurred is different from the state having knowledge or evidence that
Maureen Kratochvill had authorized such transfers. Further, the late presentation of the
evidence impacted the state’s ability to effectively present its case. The remedy of
excluding the evidence also caused limited harm to Kratochvill because there was other
evidence and testimony demonstrating deception in utilizing the TD Ameritrade account.
Therefore, the trial court did not abuse its discretion in determining that this evidence
should be excluded.
{¶46} Based on all of the foregoing, Kratochvill’s third, fourth, and sixth
assignments of error challenging the trial court rulings on admission of evidence are
without merit.
{¶47} Kratochvill’s first, second, seventh, and eighth assignments of error state:
[1.] The evidence is insufficient to sustain the conviction for count
3.
[2.] The evidence is insufficient to sustain the conviction for count
13.
[7.] The verdict in count 3 is against the manifest weight of the
evidence.
[8.] The verdict in count 13 is against the manifest weight of the
evidence.
16
{¶48} For the reasons that follow, Kratochvill argues that the evidence was
insufficient to sustain either of his convictions and that the jury’s verdicts are against the
manifest weight of the evidence.
{¶49} Pursuant to Crim.R. 29(A), “The court on motion of a defendant or on its
own motion, after the evidence on either side is closed, shall order the entry of a
judgment of acquittal of one or more offenses charged in the indictment, information, or
complaint, if the evidence is insufficient to sustain a conviction of such offense or
offenses.” Crim.R. 29(A) requires the trial court to grant a motion for judgment of
acquittal if the evidence is insufficient to sustain a conviction on the charged offense(s).
“Thus, when an appellant makes a Crim.R. 29 motion, he or she is challenging the
sufficiency of the evidence introduced by the state.” State v. Patrick, 11th Dist. Trumbull
Nos. 2003-T-0166 & 2003-T-0167, 2004-Ohio-6688, ¶18.
{¶50} “A challenge to the sufficiency of the evidence raises a question of law as
to whether the prosecution met its burden of production at trial.” State v. Bernard, 11th
Dist. Ashtabula No. 2016-A-0063, 2018-Ohio-351, ¶56, citing State v. Thompkins, 78
Ohio St. 3d 380, 390 (1997) and State v. Windle, 11th Dist. Lake No. 2010-L-033, 2011-
Ohio-4171, ¶25. “‘In reviewing the record for sufficiency, “[t]he 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.”’” Id., quoting State v. Smith, 80 Ohio St. 3d 89, 113 (1997),
quoting State v. Jenks, 61 Ohio St. 3d 259 (1991), paragraph two of the syllabus.
Where there is insufficient evidence, a conviction will be vacated. Id. at ¶55, citing State
v. Rose, 11th Dist. Lake No. 2014-L-086, 2015-Ohio-2607, ¶32.
17
{¶51} In determining whether the verdict was against the manifest weight of the
evidence, “‘[t]he court 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.’” Thompkins, supra, at 387, quoting State v. Martin, 20 Ohio App. 3d 172, 175
(1st Dist.1983). A judgment of a trial court should be reversed as being against the
manifest weight of the evidence “‘only in the exceptional case in which the evidence
weighs heavily against the conviction.’” Id., quoting Martin, supra, at 175. “When a
court of appeals reverses a judgment of a trial court on the basis that the verdict is
against the weight of the evidence, the appellate court sits as a ‘“thirteenth juror”’ and
disagrees with the factfinder’s resolution of the conflicting testimony.” Id., quoting Tibbs
v. Florida, 457 U.S. 31, 42 (1982).
{¶52} There is a presumption that the findings of the trier of fact are correct,
because the trier of fact has had the opportunity “to view the witnesses and observe
their demeanor, gestures and voice inflections, and use these observations in weighing
the credibility of the proffered testimony.” Seasons Coal Co., Inc. v. Cleveland, 10 Ohio
St.3d 77, 80 (1984), citing 5 Ohio Jurisprudence 3d, Appellate Review, Section 603, at
191-192 (1978) (“* * * [I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every reasonable
presumption must be made in favor of the judgment and the finding of facts. * * * If the
evidence is susceptible of more than one construction, the reviewing court is bound to
18
give it that interpretation which is consistent with the verdict and judgment, most
favorable to sustaining the verdict and judgment.”).
{¶53} Kratochvill was found guilty of two counts of securing writings by
deception in violation of R.C. 2913.43(A), which states: “No person, by deception, shall
cause another to execute any writing that disposes of or encumbers property, or by
which a pecuniary obligation is incurred.” (Emphasis added.) The Indictment and Bill of
Particulars track the language of the statute, specifically identifying the “writing” as the
“original agreement.”
{¶54} Kratochvill first argues that the written agreements with Deveny and Hiser
giving rise to his convictions do not qualify as “writings” under the statute because they
did not “create pecuniary obligations immediately after being signed.” Kratochvill’s
position is that the agreements were executory contracts because “the triggering event
for ensuing obligations” was Deveny and Hiser paying the money after the agreements
were signed. Therefore, he argues execution of the agreement did not immediately
incur a pecuniary obligation. His reliance on the term “pecuniary obligation” ignores the
fact that the statute provides two circumstances by which the accused can violate R.C.
2913.43(A): by causing another to execute any writing (1) that disposes of or
encumbers property or (2) by which a pecuniary obligation is incurred. The jury was
instructed as to both circumstances. In addition, the jury was instructed with regard to
an encumbrance as follows: “Encumbered means to make property subject to a charge,
liability or burden, such as a mortgage, security interest, easement, restriction, limitation
of use, lien or other obligation.”
19
{¶55} Here, Deveny and Hiser executed agreements which contained a
requirement that they “shall provide” specific amounts “as capital with [Kratochvill].”
Deveny’s agreement set forth an amount of $102,000.00, while the two agreements with
Hiser resulted in her paying $50,000.00 and $70,000.00. Hiser’s agreements also
provided: “For every additional $25,000 of capital the monthly benefit increases by
another $1,000” and that additional funds would “create a supplement to [the] existing
original agreement.” In return, the agreements provided that Kratochvill “shall provide”
specified monthly payments. As a result of these agreements, both women made
payments shortly after their execution.
{¶56} By the plain language of the statute and indictment, it is clear that Deveny
and Hiser disposed of or encumbered their property—the funds paid to Kratochvill—
when they wrote the checks pursuant to the agreements.
{¶57} Contrary to the position taken by the dissenting opinion, regardless of the
circumstances in which R.C. 2913.43(A) has been typically utilized, there is no
requirement in the statute that the writings dispose of or encumber the property
immediately upon execution. For instance, in Lemons, the defendant was convicted of
four counts of securing writings by deception for causing the victim to sign various
documents. State v. Lemons, 8th Dist. Cuyahoga No. 101361, 2015-Ohio-2382, ¶43-
51. The dissent notes that in one of these documents, the victim purchased a large
interest in the defendant’s company. Id. at ¶45. The other documents, however, were a
“general power of attorney,” appointing the defendant as power of attorney over the
victim; a “pledge” document, which appointed the defendant and replaced the victim’s
mother as trustee of the victim’s trust fund; and a document revoking the rights of the
20
victim’s parents as special signatories on her bank account and removing her parents
from all of her financial affairs. Id. at ¶44, ¶46, ¶47. While these documents gave the
defendant “complete and unfettered access to [the victim’s] accounts and trust fund,”
they did not immediately incur a pecuniary obligation or immediately dispose of or
encumber the victim’s property upon execution. Rather, it was under the terms of these
documents that the defendant was able to dispose of and encumber the victim’s
property. Id. at ¶48. All four convictions were upheld on appeal. Id. at ¶51.
{¶58} The dissenting opinion further relies on State v. O’Neill, 10th Dist. Franklin
No. 91AP-369, 1992 WL 63308 (Mar. 24, 1992), which is distinguishable from the facts
at hand. In O’Neill, the defendant was charged with securing writings by deception for
providing inaccurate information to a lender in order to obtain loans. The Tenth
Appellate District identified the “difficulty in applying R.C. 2913.43 to the situations
where a lender is alleged as the ‘victim.’” Id. at *6. It explained there is a “serious
problem with attempting to construe R.C. 2913.43 to apply to a situation where a bank
or lender makes a loan based upon inaccurate information,” because the defendant has
merely caused a document to be prepared for signature, as opposed to causing
“another” to “execute” a “writing.” Id. Thus, that court held “the statute does not apply
to penalize those who give inaccurate information to a lender, but is intended to
penalize those who give inaccurate information to a person who takes out a loan or
incurs an encumbrance on his or her property in reliance upon the inaccurate
information.” Id.
{¶59} Accordingly, Kratchovill’s argument that the state did not present sufficient
evidence of a “writing” under the statute is not well taken.
21
{¶60} Next, Kratochvill argues that the element of “deception” was not supported
by sufficient evidence and that the jury’s verdict was against the manifest weight of the
evidence because Deveny and Hiser did not testify as to how they were induced by
deception when executing the agreements. Specifically, Kratochvill argues that the
element of deception was not demonstrated because the victims were aware of the
risks; his use of an account in his mother’s name was known to the victims at the time
they signed the written agreements; and the loss of his own funds undercuts any
evidence of deception.
{¶61} For the purposes of this element, as the jury was advised, “deception”
means “knowingly deceiving another or causing another to be deceived by any false or
misleading representation, by withholding information, by preventing another from
acquiring information, or by any other conduct, act, or omission that creates, confirms,
or perpetuates a false impression in another, including a false impression as to law,
value, state of mind, or other objective or subjective fact.” R.C. 2913.01(A).
{¶62} Testimony and evidence presented at trial demonstrated that Kratochvill
engaged in deception as defined in the statute. Both victims testified that he
represented to them their money would be “safe,” “everything would be fine,” and did
not tell them that he would be trading their money or investing in stock. Deveny testified
that she believed the money would be utilized, at least in part, as an investment in his
building. The testimony created a reasonable inference that Deveny invested with
Kratochvill because he convinced her that her current 401(k) investment was not being
managed properly. Hiser testified that she was told she could get her money back upon
request at any time. While the agreements stated “risk is inherent,” it continued:
22
“However, due to good faith and risk management by both parties agree (sic) that
through advance payment at a premium monthly rate of payments [i.e., the monthly
payments made by Kratochvill] from guaranteed funds that are not risk related for
capital provided that both parties agree they are bound to be mutually beneficial for their
respective parts by and through every aspect of this agreement.” In other words, the
monthly payments were to be from funds not subject to risk. This ultimately was not the
case, however, as the monthly payments owed by Kratochvill were not paid and the
remaining capital was lost by Kratochvill.
{¶63} While Kratochvill argues that Deveny’s belief she was guaranteed
repayment due to an annuity he possessed was based solely on representations made
by her daughter and not by him, this statement was unnecessary to prove deception
given the evidence outlined above. Further, the fact that Kratochvill also lost money is
irrelevant to whether he deceived the victims into thinking their money would be safe
rather than traded in a manner that experts indicated put it at great risk.
{¶64} As to Kratochvill’s argument that the victims were aware of the risks, their
testimony indicated that they were told their money would be safe, their present
investments were not beneficial, they could receive their money back at any time, and
the money would not be subject to risk. Deveny testified that had she known the
manner in which her money would be used, she would not have invested with
Kratochvill.
{¶65} The circumstances surrounding the agreements also demonstrate
Kratochvill’s intent to deceive. Upon meeting Hiser for the first time to provide an
estimate to refinish her dining room floor, he convinced her to invest $120,000.00.
23
Kratochvill told Hiser he was licensed in relation to investments, which was untrue.
Further, Kratochvill used an account that was in his mother’s name, which she later
testified she had not opened, and evidence was presented and testimony taken
confirming he had also misrepresented himself as another individual, Lee, in discussing
this account with TD Ameritrade employees. These circumstances created a
reasonable inference that Kratochvill was acting in a deceptive manner.
{¶66} The testimony and evidence outlined above are more than sufficient to
support the element of “deception” as a matter of law. The jury was presented with
overwhelming evidence from which they could reasonably conclude that Kratochvill
committed the charged crimes. Accordingly, we do not find it was against the manifest
weight of the evidence for the jury to determine that Kratochvill presented false or
misleading information or created a false impression which was the basis for the victims’
decision to execute the agreements and provide funds to him. See Lemons, supra, at
¶49-50 (securing writings by deception conviction was not against the manifest weight
of the evidence when the defendant “preyed on [the victim’s] emotions and manipulated
her feelings,” and “convinced her she could trust him” with her money and that “he was
acting in her best interests”). The dissenting opinion is simply asserting its judgment in
place of the jury, which observed all the testimony and evidence discussed above and
was in the best position to determine whether to convict Kratochvill of the crimes.
{¶67} Kratochvill’s first, second, seventh, and eighth assignments of error are
without merit.
{¶68} Kratochvill's ninth and final assignment of error pertains to the order of
restitution. It states:
24
[9.] The trial court awarded excessive restitution.
{¶69} Generally, this court reviews an order of restitution under the clearly and
convincingly contrary to law standard found in R.C. 2953.08(G)(2). State v. Ciresi, 11th
Dist. Geauga No. 2020-G-0249, 2020-Ohio-5305, ¶5. However, Kratochvill never
objected to or questioned the amount of the award. “If a defendant does not object to
the court’s imposition of restitution at the sentencing hearing or request a hearing in
order to dispute the order, the issue is waived on appeal save plain error.” State v.
Whitman, 11th Dist. Lake No. 2011-L-131, 2012-Ohio-3025, ¶21. As stated above,
plain error shall only be noticed “under exceptional circumstances and only to prevent a
manifest miscarriage of justice.” Long, supra, at paragraph three of the syllabus.
{¶70} “‘Prior to imposing a restitution order, a trial court must determine the
amount of restitution to a reasonable degree of certainty, ensuring that the amount is
supported by competent, credible evidence.’” State v. Jones, 11th Dist. Lake No. 2012-
L-072, 2013-Ohio-2616, ¶11, quoting State v. Coldiron, 12th Dist. Clermont No.
CA2008-06-062, 2009-Ohio-2105, ¶21. “The restitution ordered must ‘bear a
reasonable relationship to the actual loss suffered by the victim * * *.’” Id., quoting State
v. Stamper, 12th Dist. No. CA2009-04-115, 2010-Ohio-1939, ¶17.
{¶71} R.C. 2929.18 governs the issuance of financial sanctions on felony
offenders. Subsection (A)(1) of that statute states, in pertinent part:
(A) Except as otherwise provided in this division and in addition to
imposing court costs pursuant to section 2947.23 of the Revised
Code, the court imposing a sentence upon an offender for a felony
may sentence the offender to any financial sanction or combination
of financial sanctions authorized under this section * * *. Financial
sanctions that may be imposed pursuant to this section include, but
are not limited to, the following:
25
(1) Restitution by the offender to the victim of the offender’s crime
or any survivor of the victim, in an amount based on the victim’s
economic loss. * * *
{¶72} Kratochvill argues that the amounts awarded do not correspond to the
victims’ economic losses. He contends that Deveny testified she paid $102,000.00 to
Kratochvill and was repaid $43,700.00, so her restitution award should have been
$58,300.00 rather than $70,614.00. Similarly, Kratochvill argues that Hiser paid
$120,000.00 and was repaid $32,000.00, thus restitution should have been $88,000.00
rather than $104,701.99.
{¶73} The trial court based its award of restitution on a review of the victim
impact statements. Deveny’s statement indicated that she had damages totaling
$70,614.00, from the loss of her $102,000.00 investment (from her 401(k) and home
equity line of credit) minus reimbursement, as well as taxes paid to the IRS in relation to
this amount. Further, pursuant to Hiser’s victim impact statement, she paid federal and
state tax in an amount of over $15,000.00 in addition to her other losses. Hiser testified
at trial that Kratochvill had promised to pay the taxes resulting from her use of stocks to
pay her investment to him. Kratochvill does not present any argument as to why these
amounts are not compensable economic losses resulting from his crimes. Hence,
including these amounts in the order of restitution is not plain error.
{¶74} Kratochvill’s ninth assignment of error is without merit.
{¶75} The judgment of the Lake County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, J., concurs,
MATT LYNCH, J., dissents with a Dissenting Opinion.
26
____________________
MATT LYNCH, J., dissents with a Dissenting Opinion.
{¶76} I must dissent from the majority’s determination that Kratochvill’s
convictions for securing writings by deception are supported by the weight and
sufficiency of the evidence since the state failed to present evidence that fulfills the
statutory requirements for this offense. While it is unfortunate that the money paid by
Deveny and Hiser was lost through the investments Kratochvill made, it does not follow
that his actions were a crime under the laws of this state.
{¶77} Pursuant to R.C. 2913.43(A): “No person, by deception, shall cause
another to execute any writing that disposes of or encumbers property, or by which a
pecuniary obligation is incurred.” Kratochvill argues that he did not cause Deveny and
Hiser to incur a pecuniary obligation, noting that they signed executory contracts and
their payment was “the triggering event for ensuing obligations.” The majority
emphasizes that, regardless of whether a pecuniary obligation was incurred, Kratochvill
was properly convicted because the first portion of the statute was met, i.e., that he
caused another to “execute any writing that disposes of or encumbers property.” A
thorough examination of the statute and the facts of this case reveal that the state
proved neither of these elements, nor did it demonstrate that Kratochvill’s actions were
deceptive.
{¶78} The term “pecuniary obligation” is not defined by the Ohio Revised Code,
and, in fact, appears only in R.C. 2913.43. By their ordinary legal definitions, pecuniary
means “of or relating to money” and obligation is “a legal or moral duty to do or not do
27
something” or a “formal, binding agreement or acknowledgement of a liability to pay a
certain amount or to do a certain thing for a particular person or set of persons; esp. a
duty arising by contract.” Black’s Law Dictionary 1167, 1104 (8th Ed.2004). In relation
to the meaning of “pecuniary obligation,” we note that the Legislative Service
Commission comments enacting R.C. 2913.43 state: “This section is a restyled version
of a former statute prohibiting obtaining a signature by false pretenses. It differs from
the former section, however, in that it may involve instruments which dispose of or
encumber property, as well as evidence of debt.”
{¶79} While there is limited case law interpreting R.C. 2913.43(A), this statute
has typically been utilized in circumstances where a defendant’s deceptive actions
result in the victim entering an agreement that encumbers real estate or otherwise
incurring debt immediately upon executing an agreement. In State v. Lenard, 8th Dist.
Cuyahoga No. 105998, 2018-Ohio-3365, ¶ 3-7, 37-41, the defendant’s fraudulent
statements caused the victims to sign a purchase agreement for a home. In State v.
Lemons, 8th Dist. Cuyahoga No. 101361, 2015-Ohio-2382, ¶ 43-51, the defendant
committed securing writings by deception when he manipulated the victim into signing
various documents including one in which she purchased a large interest in the
defendant’s company. While the majority contends Lemons affirmed some convictions
that were based on conduct that did not incur an immediate pecuniary obligation or
encumbrance, at the time the pertinent documents were signed in Lemons, the
defendant obtained complete and immediate access to the victim’s bank account and
trust fund. Unlike in the present matter, the “obligation” was not dependent upon future
acts of the victim. In State v. Wells, 8th Dist. Cuyahoga No. 92130, 2009-Ohio-4712, ¶
28
19-24, 28, writings secured by deception obligated a lender to disburse loan proceeds.
In each of these instances, a concrete, immediate, and binding contractual obligation
and debt was incurred when the victim executed the writing that was secured by
deception.
{¶80} In contrast to the foregoing cases, as Kratochvill accurately emphasizes,
the agreements here were executory and did not create a definitive obligation solely by
virtue of the parties signing them. This analysis applies both to the pecuniary obligation
element of the statute as well as the disjunctive element of “executing a writing that
disposes of” property.
{¶81} An executory contract has been defined as “‘one in which a party binds
himself to do, or not to do, a particular thing, whereas an executed contract is one in
which the object of the agreement is performed and everything that was to be done is
done.’” (Citation omitted.) Cassella v. Tiberio, 150 Ohio St. 27, 30, 80 N.E.2d 426
(1948). Also Dispatch Printing Co. v. Recovery Ltd. Partnership, 2015-Ohio-381, 28
N.E.3d 562, ¶ 32 (10th Dist.), citing Black’s Law Dictionary 344 (8th Ed.2004) (an
executory contract is one “that remains wholly unperformed or for which there remains
something still to be done on both sides, often as a component of a larger transaction”).
{¶82} The circumstances demonstrate that the victims did not incur a pecuniary
obligation at the time they executed the agreements with Kratochvill since they were not
required to make payments and Kratochvill would not have been able to recover if he
had sued upon the agreements. Further, the writing did not dispose of or encumber any
property. This is evident from an examination of the language of the agreements.
{¶83} The “original agreement” between Hiser and Kratochvill states that Hiser
29
“shall provide $50,000 as capital with” Kratochvill and that he shall make a monthly
payment to Hiser as a benefit. However, its terms indicate that Hiser’s failure to make
the stated payment would not result in the contract being enforced to her detriment.
The agreement states: “This is a ‘simple’ Agreement by definition: Party Jane Doe does
‘X’ and Party John Doe does ‘Y’, Party Jane [D]oe doesn’t do ‘X’ and Party John Doe
doesn’t do ‘Y.’” In other words, if Hiser chose not to make payment following the
contract, it would simply relieve Kratochvill of his obligation to provide the monthly
benefit. That payment was not required and no obligation was created at the time the
agreement was signed is further buttressed by the agreement’s provision that Hiser
would pay $50,000 as capital but also that “for every additional $25,000 of capital the
monthly benefit increases by another $1,000.” This provided a means to enter into
financial dealings but did not actually create a debt or obligation to Kratochvill. A
second agreement entered into by the parties contained similar terms.
{¶84} Deveny’s agreement was similar, but provided that she would pay
$102,000 in exchange for the monthly benefit and it did not include the additional
payment term. It contained the same “John Doe” language clause. Again, the contract
was for a benefit upon payment but was not in the same vein as a debt incurred in the
cases referenced above, where a loan was made with a requirement to be repaid or a
property was purchased and the debt was immediately incurred. The fact that Deveny
and Hiser ultimately chose to make payments under the agreements does not mean
that such payments were “obligations” in a legal sense. We must apply the language of
the statute for which Kratochvill was indicted and these circumstances do not fall under
its terms.
30
{¶85} This analysis similarly applies to the majority’s assertion that Kratochvill
caused to be executed a writing disposing of or encumbering property. The writing did
not actually dispose of or encumber property, but, instead, provided for future payment
which Deveny and Hiser chose to make. While the victims ultimately did provide
payment to Kratochvill, even presuming that is the type of property that was anticipated
under the statutory language, the writing itself did not “dispose of” the property. The
victims chose to provide the checks to Kratochvill after the agreement was executed.
Further, if “a writing disposing of or encumbering the property” simply meant an
agreement to make a payment (an interpretation not consistent with the terms of the
statute), rather than the more common interpretation of creating an obligation such as
executing a mortgage or selling a property, there would be no need to include the
separate “pecuniary obligation” clause. See Duncan v. Walker, 533 U.S. 167, 174, 121
S. Ct. 2120, 150 L. Ed. 2d 251 (2001) (“[w]e are * * * ‘reluctan[t] to treat statutory terms as
surplusage’ in any setting”) (citation omitted).
{¶86} It has also been emphasized that this statute must be construed
“narrowly” and cannot encompass any situation where inaccurate information is given in
conjunction with the parties’ applications or negotiations for a loan but instead only
where an actual obligation, such as receiving a loan or incurring an encumbrance on a
property, is created. See State v. O’Neill, 10th Dist. Franklin No. 91AP-369, 1992 WL
63308, *6 (Mar. 24, 1992). “[S]ections of the Revised Code defining offenses or
penalties shall be strictly construed against the state, and liberally construed in favor of
the accused.” R.C. 2901.04(A); Painesville v. Kincaid, 2015-Ohio-5532, 57 N.E.3d 152,
¶ 17 (11th Dist.); also State v. Elswick, 11th Dist. Lake No. 2006-L-075, 2006-Ohio-
31
7011, ¶ 42 (the rule of lenity “provides that ambiguity in criminal statutes is construed
strictly so as to only apply to conduct that is clearly prescribed”) (citations omitted).
{¶87} Although a conviction was not warranted under the statute for the
foregoing reasons, it should be emphasized that there was also a lack of evidence to
demonstrate the element of deception.
{¶88} Deception means “knowingly deceiving another or causing another to be
deceived by any false or misleading representation, by withholding information, by
preventing another from acquiring information, or by any other conduct, act, or omission
that creates, confirms, or perpetuates a false impression in another, including a false
impression as to law, value, state of mind, or other objective or subjective fact.” R.C.
2913.01(A).
{¶89} The evidence presented demonstrates that Kratochvill intended to carry
through with the terms of the agreements with Hiser and Deveny. He traded with both
their funds and his own in order to make the profit necessary to complete the monthly
payments. Both women testified that, after accepting their funds, Kratochvill had made
payments to them. He did not abscond with their money or place it in a hidden account.
Furthermore, Kratochvill lost funds of his own in the course of his trading, which, while
not dispositive, shows he intended to earn profit from the investments, just as Deveny
and Hiser also anticipated. This demonstrates not an intent to deceive but, rather,
failure to effectively invest and trade. Without intent to deceive, a more appropriate
remedy under such circumstances would be a civil lawsuit.
{¶90} Since the facts of this case do not satisfy the elements of the securing
writings by deception statute, Kratochvill’s convictions cannot be supported by the
32
weight or sufficiency of the evidence and should be reversed. Accordingly, I must
dissent.
33