State v. Haggerty , 2011 Ohio 6705 ( 2011 )

[Cite as State v. Haggerty, 2011-Ohio-6705.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24405
vs. : T.C. CASE NO. 09CR3077
STEVEN E. HAGGERTY :
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 23rd day of December, 2011.
. . . . . . . . .
Mathias H. Heck, Jr., Pros. Attorney; Andrew T. French, Asst. Pros.
Attorney, Atty. Reg. No. 0069384, P.O. Box 972, Dayton, OH 45422
Attorneys for Plaintiff-Appellee
Michael C. Thompson, Atty. Reg. No. 0041420, 5 N. Williams Street,
Wright-Dunbar Business Village, Dayton, OH 45402-2843
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, Steven E. Haggerty, appeals from his
convictions for aggravated theft, R.C. 2913.02(A)(3), (B)(3), and
attempted grand theft, R.C. 2913.02(A)(3), 2923.02(A).
{¶ 2} In 2007, when she was eighty-seven years of age, Roma
Flora executed a general power of attorney in favor of her son,
Steven E. Haggerty, in order to allow him to pay her bills and
manage her financial affairs. Thereafter, over a period of
approximately two years, Haggerty appropriated over $60,000 from
his mother’s depository accounts to his own use. He also took
gold coins worth $21,450 and $21,984 belonging to his mother, and
Defendant caused her to convey the title to her condominium to
him by quit-claim deed.
{¶ 3} When his mother learned of Haggerty’s thefts she reported
them to police. Haggerty was charged by Indictment with two theft
offenses.
{¶ 4} Count One of the Indictment charges a violation of R.C.
2913.02(A)(3). That section provides:
{¶ 5} “No person, with purpose to deprive the owner of property
or services, shall knowingly obtain or exert control over either
the property or services . . . [b]y deception.”
{¶ 6} R.C. 2913.02(B)(3) provides, in pertinent part:
{¶ 7} “If the value of the property or services stolen is one
hundred thousand dollars or more, theft from an elderly or disabled
person is a felony of the first degree.”
{¶ 8} Count One of the Indictment alleged that Haggerty, “with
purpose to deprive the owner, to wit: Roma Flora, an elderly or
disabled person, of property, did knowingly and by deception,
obtain or exert control over said owner’s property, to wit: U.S.
Currency having a value of One Hundred Thousand Dollars ($100,000)
or more.”
{¶ 9} Count Two of the Indictment charged an attempted
violation, R.C. 2923.02(A), of R.C. 2913.02(A)(3), specifying that
Haggerty “did purposely or knowingly engage in conduct that, if
successful, would have constituted or resulted in the offense of
Grand Theft of over $25,000 (elderly or disabled person.)”
{¶ 10} R.C. 2913.02(B)(3) provides, in pertinent part:
{¶ 11} “If the value of the property stolen is twenty-five
thousand dollars or more, and is less than one hundred thousand
dollars, theft from an elderly person or disabled adult is a felony
of the second degree.”
{¶ 12} Being an attempted offense, per R.C. 2923.02(E)(1) the
violation charged in Count Two of the Indictment is a felony of
the third degree.
{¶ 13} R.C.2913.01(CC) provides:
{¶ 14} “‘Elderly person’ means a person who is sixty-five years
of age or older.”
{¶ 15} Defendant was convicted of the offenses with which he
was charged, following a bench trial. The court entered a judgment
of conviction that imposed a three year prison term for each
offense, to be served concurrently. The court also ordered
Defendant “to pay complete restitution to Roma Flora for economic
loss in the amount of Nineteen Thousand, One Hundred Twenty-Six
Dollars and Fifty-Three Cents ($19,126.53).”
{¶ 16} Defendant filed a timely notice of appeal from the
judgment of conviction.
FIRST ASSIGNMENT OF ERROR
{¶ 17} “THE STATE’S EVIDENCE WAS INSUFFICIENT TO SUPPORT GUILT
OF THEFT FROM AN ELDERLY OR DISABLED ADULT AND ATTEMPT TO COMMIT
GRAND THEFT BEYOND A REASONABLE DOUBT.”
{¶ 18} Defendant argues that the trial court erred in overruling
his Crim.R. 29 motion for acquittal because his convictions for
theft from an elderly person or disabled adult, count one, and
attempted theft from an elderly person or disabled adult, count
two, are not supported by legally sufficient evidence.
{¶ 19} When considering a Crim.R. 29 motion for acquittal, the
trial court must construe the evidence in a light most favorable
to the State and determine whether reasonable minds could reach
different conclusions on whether the evidence proves each element
of the offense charged beyond a reasonable doubt. State v.
Bridgeman (1978), 55 Ohio St.2d 261. The motion will be granted
only when reasonable minds could only conclude that the evidence
fails to prove all of the elements of the offense. State v. Miles
(1996), 114 Ohio App.3d 738.
{¶ 20} A Crim.R. 29 motion challenges the legal sufficiency
of the evidence. A sufficiency of the evidence argument challenges
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. Thompkins, (1997), 78 Ohio
St.3d 380. The proper test to apply to such an inquiry is the
one set forth in paragraph two of the syllabus of State v. Jenks
(1991), 61 Ohio St.3d 259:
{¶ 21} “An appellate court's function when reviewing the
sufficiency of the evidence to support a criminal conviction is
to examine the evidence admitted at trial to determine whether
such evidence, if believed, would convince the average mind of
the defendant's guilt beyond a reasonable doubt. The relevant
inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime proven beyond a
reasonable doubt.”
{¶ 22} Count One of the indictment charges that Defendant,
having a purpose to deprive the owner, Roma Flora, an elderly or
disabled person, of property, did knowingly and by deception obtain
and exert control over said owner’s property, to wit: U.S. Currency
having a value of $100,000.00 or more, in violation of R.C.
2913.02(A)(3), (B)(3).
{¶ 23} The total value of the stolen property was determined
to be approximately $204,249.55, consisting of $60,845.55 in checks
Defendant wrote on his mother’s bank accounts, $21,420.00 worth
of gold coins Defendant took from his mother’s safety deposit box,
$24,984.00 worth of gold coins that were to be shipped to his
mother’s home that Defendant diverted to himself, and the value
of his mother’s condominium, $97,000.00, the title to which
Defendant got his mother to convey to him.
{¶ 24} Defendant argues that the evidence was insufficient to
support his conviction on Count One because the value of U.S.
Currency that was stolen was not $100,000 or more, as the indictment
alleged. However, the particular form of the property that was
stolen is not an essential element of a violation of R.C.
2913.02(A)(3). The articles stolen need only be “property”
belonging to another with a value in excess of the specified amount.
The evidence was sufficient to prove that allegation. The
reference to “U.S. Currency” is mere surplusage that may be stricken
from an indictment or motion. Crim.R. 7(C).
{¶ 25} Defendant further argues that with respect to the money
he stole by writing checks on his mother’s bank accounts to pay
for his personal expenses, the amount of restitution the trial
court ordered Defendant to pay, $19,126.53, necessarily reflects
the value of the property he stole, and therefore he should have
been convicted of only a third degree felony per R.C. 2913.02(B)(3).
R.C. 2929.18(A)(1) authorizes the sentencing court to order
“[r]estitution by the offender to the victim of the offender’s
crime . . ., in an amount based on the victim’s economic loss.”
There was evidence that Defendant had returned most of the stolen
property prior to trial. For example, Defendant provided
prosecutors a certified check in the amount of $45,000.00. He
also executed a deed reconveying title to the condominium to his
mother. The value of his mother’s net “economic loss” for purposes
of restitution is therefore not determinative of the value of her
property Defendant stole.
{¶ 26} Defendant also argues that the property belonging to
his mother that he appropriated to his own use and/or name was
not obtained by deception, because he acted pursuant to the
authority his mother granted him in her power of attorney.
{¶ 27} R.C. 2913.01(A) provides:
{¶ 28} “‘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.”
{¶ 29} Roma Flora testified that she executed the power of
attorney with an understanding that Defendant would exercise the
power to her use and benefit, not his own, and that she never
authorized Defendant to engage in the transfers which are the
subject of the theft charges against him. She also testified that
her blindness prevented her from understanding the nature and
result of the quit-claim deed she executed at Defendant’s request.
That evidence was sufficient to prove the element of deception
in the violation of R.C. 2913.02(A)(3) alleged in the indictment.
{¶ 30} Finally, Defendant argues that the evidence was
insufficient to prove the offense of Attempted Grand Theft of
property belonging to his mother valued in excess of $25,000, as
charged in Count Two of the Indictment.
{¶ 31} Defendant admitted that on May 4, 2009, he contacted
Triangle Credit Union and asked to close his mother’s account and
to cut him a check for the money in that account in the amount
of $36,000.00. Defendant further admitted that on June 3, 2009,
he contacted MetLife and asked to close his mother’s account and
to issue him a check for the money in that account in the amount
of $42,967.22. Defendant did these things after he was told by
his mother’s attorney that his power of attorney had been revoked.
These checks were never cashed, however, because stop payment
orders were issued by the payors after they found out that
Defendant’s power of attorney had been revoked. That evidence
was sufficient to prove the attempted grand theft offense charged
in Count Two.
{¶ 32} The first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 33} “THE CONVICTIONS FOR THEFT FROM AN ELDERLY OR DISABLED
ADULT AND ATTEMPT TO COMMIT GRAND THEFT ARE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.”
{¶ 34} Defendant argues that his convictions for theft and
attempted theft from an elderly person are against the manifest
weight of the evidence because the trier of facts, the trial court,
lost its way in choosing to believe the testimony of the State’s
witnesses, particularly Roma Flora, whose memory of what happened
is confusing, illogical and inconsistent.
{¶ 35} 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. State v. Hufnagle (Sept. 6, 1996), Montgomery App.
No. 15563. The proper test to apply to that inquiry is the one
set forth in State v. Martin (1983), 20 Ohio App.3d 172, 175:
{¶ 36} “The 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 lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and
a new trial ordered.” Accord: State v. Thompkins, 78 Ohio St.3d
380, 1997-Ohio-52.
{¶ 37} The credibility of the witnesses and the weight to be
given to their testimony are matters for the trier of facts to
resolve. State v. DeHass (1967), 10 Ohio St.2d 230. In State
v. Lawson (August 22, 1997), Montgomery App. No. 16288, we observed:
{¶ 38} “Because the factfinder . . . has the opportunity to
see and hear the witnesses, the cautious exercise of the
discretionary power of a court of appeals to find that a judgment
is against the manifest weight of the evidence requires that
substantial deference be extended to the fact finder’s
determinations of credibility. The decision whether, and to what
extent, to credit the testimony of particular witnesses is within
the peculiar competence of the fact finder, who has seen and heard
the witness.”
{¶ 39} This court will not substitute its judgment for that
of the trier of facts on the issue of witness credibility unless
it is patently apparent that the trier of facts lost its way in
arriving at its verdict. State v. Bradley (Oct. 24, 1997),
Champaign App. No. 97-CA-03.
{¶ 40} Defendant claims that the money and property he took
from his mother was a loan, rather than theft, and that she permitted
him to use her money to pay for his personal expenses, but that
she forgot due to a failing memory as a result of old age. That
claim is belied by this record.
{¶ 41} Defendant’s mother demonstrated a good recollection of
when
{¶ 42} she did and did not loan money to family members,
including past loans she made to Defendant. She was certain that
she never gave Defendant permission to use her money and assets
to pay for his personal expenses, never gave Defendant permission
to take the gold coins out of her safety deposit box or intercept
the shipment of gold coins heading to her home, never gave Defendant
permission to keep those coins, and did not knowingly transfer
ownership of her condominium to Defendant.
{¶ 43} The credibility of the witnesses and the weight to be
given to their testimony were matters for the trier of facts, the
trial court here, to decide. DeHass. The trial court did not
lose its way simply because it chose to believe Roma Flora and
the other State’s witnesses, rather than Defendant, which it had
a right to do. Id.{¶ 44} Reviewing this record as a whole, we cannot say that
the evidence weighs heavily against a conviction, that the trier
of facts lost its way in choosing to believe the State’s witnesses,
or that a manifest miscarriage of justice has occurred.
Defendant’s convictions are not against the manifest weight of
the evidence.
{¶ 45} Defendant’s second assignment of error is overruled.
The judgment of the trial court will be affirmed.
FAIN, J., And DONOVAN, J., concur.
Copies mailed to:
Andrew T. French, Esq.
Michael C. Thompson, Esq.
Hon. Connie S. Price