State v. Suffel , 2015 Ohio 222 ( 2015 )

[Cite as State v. Suffel, 2015-Ohio-222.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PAULDING COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 11-14-05
v.
CHRISTOPHER D. SUFFEL, OPINION
DEFENDANT-APPELLANT.
Appeal from Paulding County Common Pleas Court
Trial Court No. CR-13-568
Judgment Affirmed
Date of Decision: January 26, 2015
APPEARANCES:
Harvey D. Hyman for Appellant
Joseph R. Burkard for Appellee
Case No. 11-14-05
PRESTON, J.
{¶1} Defendant-appellant, Christopher D. Suffel (“Suffel”), appeals the
May 14, 2014 judgment entry of sentence of the Paulding County Court of
Common Pleas. He argues that his convictions are against the manifest weight of
the evidence, that the trial court erred in overruling his Crim.R. 29 motions for
acquittal, and that the trial court erred in refusing his requested jury instruction
regarding “accident.” For the reasons that follow, we affirm.
{¶2} On September 10, 2013, the Paulding County Grand Jury indicted
Suffel on Counts One, Two, and Three of forgery in violation of R.C.
2913.31(A)(3), fifth-degree felonies. (Doc. No. 1). Count One stemmed from an
August 6, 2013 incident in which Suffel allegedly produced a counterfeit $100 bill
to the clerk at the Valero store in Paulding, Ohio to pay for miscellaneous items.
(Doc. No. 14). Counts Two and Three stemmed from August 6, 2013 incidents in
which Suffel allegedly produced two counterfeit $50 bills and a counterfeit $100
bill, respectively, at the Eagles in Paulding, Ohio to pay for lottery tickets. (Id.).
{¶3} On April 1, 2014, a jury trial was held on the indictment. (Apr. 1,
2014 Tr. at 5). The jury found Suffel guilty of all three counts in the indictment.
(Id. at 170-171); (Doc. No. 46).
{¶4} The trial court held a sentencing hearing on May 12, 2014 and
sentenced Suffel to eight months imprisonment on each count, to be served
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consecutively for an aggregate prison term of 24 months. (May 12, 2014 Tr. at 9).
The trial court filed its judgment entry of sentence on May 14, 2014. (Doc. No.
47).
{¶5} On June 12, 2014, Suffel filed a notice of appeal. (Doc. No. 49). He
raises three assignments of error for our review. We will address Suffel’s first and
second assignments of error together, followed by his third assignment of error.
Assignment of Error No. I
The verdict and the conviction of the appellant as to Counts I
and II of the indictment were against the manifest weight of the
evidence. (T. at pp. 170-171)
Assignment of Error No. II
The trial court erred in overruling the defendant’s Rule 29
motions for acquittal. (T. at pp. 123 and 137)
{¶6} In his first assignment of error, Suffel argues that his convictions for
Counts One and Two are against the manifest weight of the evidence.1
Specifically, he argues that the State presented no evidence “of any purpose to
defraud on the part of [Suffel]” or “to support an inference that [Suffel] knew the
two $50.00 bills were forged, nor that [Suffel] knew the $100.00 bill was forged
when he first presented it at Valero.” (Appellant’s Brief at 3). In his second
1
Under his first assignment of error, Suffel does not argue that his conviction for Count Three is against
the manifest weight of the evidence. However, under his second assignment of error, Suffel disputes the
trial court’s overruling his Crim.R. 29 motions for acquittal, in which Suffel challenged each of the three
counts in the indictment. (See Apr. 1, 2014 Tr. at 120).
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assignment of error, Suffel argues that the trial court erred in overruling his
Crim.R. 29 motions for acquittal, which he made at the close of the State’s and his
cases at trial. Specifically, he argues that “the State failed to demonstrate
[Suffel]’s purpose to defraud and his knowledge of the fact the bills were forged,
both essential elements of the charges.” (Id. at 5).
{¶7} Crim.R. 29(A) provides that a court must order the entry of a
judgment of acquittal of a charged offense “if the evidence is insufficient to
sustain a conviction of such offense.” However, “a court shall not order an entry
of judgment of acquittal if the evidence is such that reasonable minds can reach
different conclusions as to whether each material element of a crime has been
proved beyond a reasonable doubt.” State v. Bridgeman, 55 Ohio St.2d 261(1978), syllabus. “The Bridgeman standard ‘must be viewed in light of the
sufficiency of evidence test[.]’” State v. Hansen, 3d Dist. Seneca No. 13-12-42,
2013-Ohio-1735, ¶ 35, quoting State v. Foster, 3d Dist. Seneca No. 13-97-09,
1997 WL 576353, *2 (Sept. 17, 1997). See also State v. Perkins, 3d Dist.
Hancock No. 5-13-01, 2014-Ohio-752, ¶ 28 (“[A] motion for acquittal tests the
sufficiency of the evidence.”), citing State v. Tatum, 3d Dist. Seneca No.
13-10-18, 2011-Ohio-3005, ¶ 43.
{¶8} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
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trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio
St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89 (1997).
Accordingly, “[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. “In
deciding if the evidence was sufficient, we neither resolve evidentiary conflicts
nor assess the credibility of witnesses, as both are functions reserved for the trier
of fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571,
2013-Ohio-4775, ¶ 33, citing State v. Williams, 197 Ohio App.3d 505,
2011-Ohio-6267, ¶ 25 (1st Dist.). See also State v. Berry, 3d Dist. Defiance No.
4-12-03, 2013-Ohio-2380, ¶ 19 (“Sufficiency of the evidence is a test of adequacy
rather than credibility or weight of the evidence.”), citing State v. Thompkins, 78
Ohio St.3d 380, 386 (1997).
{¶9} On the other hand, in determining whether a conviction is against the
manifest weight of the evidence, a reviewing court must examine the entire record,
“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of
witnesses 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
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the conviction must be reversed and a new trial ordered.’” Thompkins at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing
court must, however, allow the trier of fact appropriate discretion on matters
relating to the weight of the evidence and the credibility of the witnesses. State v.
DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. When applying
the manifest-weight standard, “[o]nly in exceptional cases, where the evidence
‘weighs heavily against the conviction,’ should an appellate court overturn the trial
court’s judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶
9, quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
{¶10} Suffel was convicted of three counts of forgery in violation of R.C.
2913.31(A)(3). That statute provides, “No person, with purpose to defraud, or
knowing that the person is facilitating a fraud, shall * * * [u]tter, or possess with
purpose to utter, any writing that the person knows to have been forged.” R.C.
2913.31(A)(3). Under his first and second assignments of error, Suffel disputes
only the “purpose to defraud” and “knows to have been forged” elements of
forgery set forth in R.C. 2913.31(A)(3). Therefore, we will limit our review under
Suffel’s first and second assignments of error to only those elements. See State v.
Alexander, 8th Dist. Cuyahoga No. 85688, 2005-Ohio-5200, ¶ 34.
{¶11} “‘Defraud’ means to knowingly obtain, by deception, some benefit
for oneself or another, or to knowingly cause, by deception, some detriment to
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another.” R.C. 2913.01(B). “‘Forge’ means to fabricate or create, in whole or in
part and by any means, any spurious writing, or to make, execute, alter, complete,
reproduce, or otherwise purport to authenticate any writing, when the writing in
fact is not authenticated by that conduct.” R.C. 2913.01(G).2
{¶12} To be convicted of violating R.C. 2913.31(A)(3), a person must act
“with purpose to defraud” or “knowing that the person is facilitating a fraud.”
(Emphasis added.) R.C. 2913.31(A)(3). To defraud, one must act “knowingly.”
R.C. 2913.01(B). “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.” R.C.
2901.22(A). See also State v. Fugate, 2d Dist. Montgomery No. 25782,
2014-Ohio-415, ¶ 24. “A person acts knowingly, regardless of his purpose, when
he is aware that his conduct will probably cause a certain result or will probably be
of a certain nature. A person has knowledge of circumstances when he is aware
that such circumstances probably exist.” R.C. 2901.22(B). See also State v.
Windle, 11th Dist. Lake No. 2010-L-033, 2011-Ohio-4171, ¶ 31.
2
Although Suffel does not dispute the “[u]tter, or possess with purpose to utter” element set forth in R.C.
2913.31(A)(3), “‘[u]tter’ means to issue, publish, transfer, use, put or send into circulation, deliver, or
display.” R.C. 2913.01(H).
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{¶13} A jury may infer from circumstantial evidence that a defendant acted
purposely or knowingly. State v. Jenkins, 4th Dist. Lawrence No. 05CA7,
2006-Ohio-2546, ¶ 27, citing State v. Shue, 97 Ohio App.3d 459, 466 (9th
Dist.1994); State v. Sidders, 3d Dist. Union No. 14-08-24, 2009-Ohio-409, ¶ 26,
citing State v. Buelow, 10th Dist. Franklin Nos. 07AP-317 and 07AP-318,
2007-Ohio-5929, ¶ 25; State v. Terry, 186 Ohio App.3d 670, 2010-Ohio-1604, ¶
22 (4th Dist.), citing State v. Seiber, 56 Ohio St.3d 4, 13-14 (1990); State v Coats,
3d Dist. Hancock No. 5-90-48, 1991 WL 218054, *2 (Aug. 29, 1991), citing State
v. Bradley, 26 Ohio App.2d 229 (4th Dist.1971). See also Fugate at ¶ 25. In fact,
“because the fact-finder is incapable of peering into the mind of the criminal
defendant,” the defendant’s mental state can often be established only by
circumstantial evidence. Terry at ¶ 22, citing State v. Adams, 4th Dist. Ross No.
94CA2041, 1995 WL 360247, *4 (June 8, 1995). “If the defendant does not
testify as to his state of mind, the fact-finder must decide what his intent is by
looking at the surrounding facts and circumstances.” Id., citing State v. Lott, 51
Ohio St.3d 160, 168 (1990). “Moreover, a series of facts and circumstances can
be employed by a jury as the basis for the ultimate conclusion in a case.” State v.
Gowins, 5th Dist. Stark No. 2007-CA-00170, 2008-Ohio-440, ¶ 24, citing Lott at
168.
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{¶14} At trial, the State offered the testimony of Louis Johns (“Johns”) of
the United States Secret Service. (Apr. 1, 2014 Tr. at 54). He identified State’s
Exhibit 1 as a counterfeit $100 bill and State’s Exhibits 2 and 3 as counterfeit $50
bills. (Id. at 57-64). On cross-examination, Johns admitted that “[t]here are times
when individuals do not know they have” counterfeit currency in their possession.
(Id. at 64-65). He also agreed that “[i]t’s not uncommon” for people “to be duped
by fake currency.” (Id. at 65).
{¶15} The State also called Robin McCord (“McCord”), who on the date of
the alleged offenses, August 6, 2013, was employed as a cashier at the Valero gas
station in Paulding. (Id. at 68-69). She testified that around 10 or 11 o’clock in
the morning that day, Suffel gave her a $100 bill that “had a blue tint” and “a
funny look” to pay for his purchases. (Id. at 70-71). According to McCord, she
used a counterfeit pen to determine the bill was counterfeit. (Id.). McCord
described how Suffel reacted when she told him that the bill was counterfeit:
I think he said, WTF, but used the words.
***
And he was visibly agitated, he was mad, you know. And then I
showed it to him because I wanted him to know I wasn’t lying, and
he grabbed it from me, and he paid for his purchases and left.
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(Id.). McCord also testified, “I believe he told me that he had * * * sold some
speakers or something on eBay or from somebody, and they gave him the money.”
(Id. at 72). McCord identified State’s Exhibit 1 as the counterfeit $100 bill that
Suffel handed to her. (Id. at 72-73). McCord called the police and informed them
of what happened. (Id. at 73).
{¶16} On cross-examination, McCord explained that after she discovered
and told Suffel that the $100 bill was counterfeit, “he immediately grabbed money
out of his pocket” and replaced it with a $100 bill that McCord marked twice with
the counterfeit pen to confirm it was not counterfeit. (Id. at 76-77). She also
testified that Suffel “wanted to see the mark” that she made on the counterfeit bill
with the counterfeit pen, so she showed it to him. (Id. at 77).
{¶17} The State called Sarah Kurtz (“Kurtz”) who on August 6, 2013 was
employed at the Eagles in Paulding. (Id. at 79). She testified that “maybe
between 1:30, 2:30” that day, Suffel, who is a “regular” at the Eagles, came in and
played “pull-off tickets,” which are games of chance. (Id. at 80-82). According to
Kurtz, Suffel handed her a $50 bill that “felt different than a usual 50,” but she
“dismissed that thought” because he was “a regular with his father.” (Id. at 81).
Kurtz testified that Suffel left the Eagles, and when he did, she “had two $50 bills
in [her] ticket drawer from him because he was the only one playing tickets at that
time.” (Id.). Suffel used the $50 bills to pay for the pull-off tickets. (Id. at 82).
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According to Kurtz, the Eagles at that time did not have a counterfeit pen to check
bills. (Id.).
{¶18} Kurtz testified that Suffel came back to the Eagles “a couples hours
after his first time in,” sometime between four and six o’clock, and again played
pull-off tickets. (Id. at 83-84). According to Kurtz, Suffel handed her a $100 bill
to pay for $20 worth of tickets, and “that bill felt the same as the 50,” which was
more “like a paper, like a textile” than a regular bill. (Id. at 84). Kurtz “instantly
put it up to the light, and there was no * * * identifying strip that a $100 bill
should have.” (Id. at 85). Kurtz also observed that the $100 bill had a marking
from an “identifying pen.” (Id. at 89). She gave the $100 bill back to Suffel and
told him he needed to take it “back to the bank because it’s not right.” (Id. at 85).
According to Kurtz, Suffel “still wanted to play the $20 of tickets,” so he gave her
a regular $20 bill. (Id. at 87).
{¶19} Kurtz testified that at that point, she “realize[d] that the two $50 bills
that [were] in [her] ticket drawer, more than likely [were] fake as well.” (Id. at
86). According to Kurtz, she determined that the two $50 bills that Suffel gave
her earlier in the day were counterfeit after comparing them with another $50 bill
that a patron used to buy tickets between Suffel’s visits to the Eagles. (Id. at
86-87). According to Kurtz, the two $50 bills had the same serial number and
“were not the same length and the same width” as the $50 bill from the other
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patron. (Id. at 87, 89). Kurtz identified State’s Exhibit 1 as the $100 bill and
State’s Exhibits 2 and 3 as the two $50 bills that Suffel handed to her. (Id. at
88-90). Kurtz testified that she was terminated from her employment at the Eagles
following “a situation in October concerning Keno and tickets being played.” (Id.
at 92).
{¶20} On cross-examination, Kurtz testified that Suffel “would usually
come in a few times a week,” and on none of those other occasions did she come
across money that she estimated to be counterfeit. (Id. at 94). According to Kurtz,
on August 6, 2013, Suffel paid with bills other than the counterfeit bills. (Id. at
94-95). Kurtz determined that other currency with which Suffel paid that day was
genuine. (Id. at 95-96). Kurtz made change for Suffel earlier on August 6, 2013.
(Id. at 96). Kurtz admitted that after Suffel handed it to her, she showed the $100
bill to another patron who “was fooled” by the bill and did not think it was
counterfeit. (Id. at 98). When Suffel’s counsel asked Kurtz if she has ever stolen
anything, she responded, “I have been charged in the past, yes.” (Id. at 99).
Suffel’s counsel asked Kurtz about the termination of her employment at the
Eagles, and she explained, “It was an issue of playing Keno tickets after hours at
the Eagles.” (Id. at 99-100). Kurtz admitted that she was subsequently hired by
another establishment, Three Brothers, but she refused to go back to work after
four weeks when Three Brothers attempted to withhold her checks, citing a
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“similar incident” to what happened at the Eagles, which was, in Kurtz’s words,
“an influx in Keno sales.” (Id. at 100-101).
{¶21} The State offered the testimony of Officer Regina Weidenhamer
(“Weidenhamer”) of the Paulding Police Department. (Id. at 103). She testified
that when she arrived for her shift at 2:00 p.m. that day, she had a note on her desk
“to go to the Valero in reference to counterfeit money.” (Id. at 103-104).
According to Weidenhamer, she responded to Valero where she learned after
speaking with McCord and watching the store’s surveillance video that Suffel
presented a $100 bill at the store that McCord determined was counterfeit. (Id. at
104-105). Weidenhamer testified that the store’s surveillance video showed the
clerk marking the $100 bill and giving it back to Suffel. (Id. at 107).
{¶22} Weidenhamer testified that about two hours after she was at Valero,
she received a call from the Eagles in reference to counterfeit money. (Id. at
105-106). At the Eagles, Weidenhamer learned from Kurtz that Suffel had been in
earlier in the day and presented two $50 bills, then came in later and presented a
$100 bill, and Kurtz suspected that all three bills were counterfeit. (Id. at 106).
Weidenhamer testified that she then questioned Suffel, who was still at the Eagles.
(Id. at 107). According to Weidenhamer, Suffel admitted that he had been to
Valero, but when she asked him “about the $100 bill that he had presented to
Valero at first,” he denied that he presented a counterfeit $100 bill at Valero and
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said “that no one had told him that” the $100 bill was counterfeit. (Id. at 107,
113). Weidenhamer testified that when she asked Suffel “where he received the
money,” Suffel told her that Dusty Dobbelaere (“Dobbelaere”) gave him the
money. (Id. at 107). According to Weidenhamer, Suffel at first did not tell her
why Dobbelaere gave him the counterfeit money, but then he said Dobbelaere
gave him the counterfeit money when Suffel sold him a speaker. (Id. at 107-108).
Weidenhamer identified State’s Exhibit 1 and State’s Exhibits 2 and 3 as the $100
bill that she got from Suffel and the two $50 bills that Kurtz gave her,
respectively. (Id. at 108).
{¶23} On cross-examination, Weidenhamer testified that she was not
present when Suffel presented the bills on August 6, 2013. (Id. at 110). She
testified that she asked Valero for a copy of the surveillance video, but Valero
“failed to do so.” (Id. at 111). Weidenhamer testified that when she was speaking
with Suffel at the Eagles, “he said he would pay for everything, he would make it
right, and he pulled out a $100 bill which [Weidenhamer] looked at, checked, and
it was a good $100 bill, and that was returned to the Eagles.” (Id.). When asked
by Suffel’s counsel, Weidenhamer admitted that she has no evidence that Suffel
“had a printing press running, was counterfeiting bills, or anything like that.” (Id.
at 112). Aside from “the testimony of the witnesses,” Weidenhamer had no way
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to verify that the $100 bill that Suffel presented at Valero was the same $100 bill
he presented at the Eagles. (Id. at 113).
{¶24} The State’s final witness was Dobbelaere,3 who testified that he
knows Suffel from high school but has had no interaction with him since his
sophomore year of high school, in 2000. (Id. at 115-116). Dobbelaere testified
that he did not purchase speakers from Suffel and that he never gave Suffel money
for speakers. (Id. at 116).
{¶25} At the State’s request, the trial court admitted State’s Exhibits 1, 2,
and 3 without objection from Suffel, and the State rested. (Id. at 117-118). Suffel
moved for acquittal under Crim.R. 29, arguing that the State failed to establish that
Suffel knew the bills were counterfeit when he presented them. (Id. at 120-121,
122-123). The trial court overruled Suffel’s Crim.R. 29 motion. (Id. at 123).
{¶26} Suffel called one witness, Dennis Price (“Price”), the trustee’s
secretary for the Eagles in Paulding, in an attempt to discredit Kurtz. (Id. at 129-
130). According to Price, when Kurtz was employed at the Eagles, “she was
playing the Ohio Lottery, Keno, during periods where she was off duty at night.”
(Id. at 131). Price testified that as a result of Kurtz’s employment with the Eagles,
he had a reason to distrust her. (Id. at 132).
3
In its brief, the State asserts that Suffel told Weidenhamer that he sold speakers to “Dustin Ripke.”
(Appellee’s Brief at 2). Our review of the record does not reveal any mention of a “Dustin Ripke,” and it
appears that the State meant to refer instead to “Dustin Dobbelaere.”
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{¶27} Suffel rested, and the State did not present any rebuttal evidence.
(Id. at 133). Suffel again moved for acquittal under Crim.R. 29, arguing that the
State failed to offer evidence as to Suffel’s intent. (Id. at 134). The trial court
overruled Suffel’s Crim.R. 29 motion. (Id. at 137).
{¶28} We first address Suffel’s argument that the trial court improperly
denied his Crim.R. 29 motions for acquittal, which concerns the sufficiency of the
evidence. See State v. Velez, 3d Dist. Putnam No. 12-13-10, 2014-Ohio-1788, ¶
68, citing State v. Wimmer, 3d Dist. Marion No. 9-98-46, 1999 WL 355190, *1
(Mar. 26, 1999). Viewing the evidence in a light most favorable to the
prosecution, we conclude that a rational trier of fact could have found the “purpose
to defraud” and “knows to have been forged” elements of forgery, set forth in R.C.
2913.31(A)(3), proven beyond a reasonable doubt.
{¶29} The evidence revealed that on August 6, 2013, Suffel first went to
Valero, where the cashier told him that his $100 bill was counterfeit. After that,
Suffel went to the Eagles on two occasions and presented counterfeit bills,
including a counterfeit $100 bill that bore a mark from a counterfeit pen. The
evidence presented suggests that Suffel knew he was in possession of a counterfeit
$100 bill. McCord identified State’s Exhibit 1 as the counterfeit $100 bill that she
marked and handed back to Suffel. Kurtz identified that same exhibit as the
counterfeit $100 bill that Suffel handed to her. Moreover, according to McCord
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and Kurtz, the counterfeit bills that Suffel presented were noticeably different than
genuine bills. McCord described the $100 bill as having “a blue tint” and “a funny
look.” Kurtz described the bills as feeling different than genuine bills, lacking
security features, and being different sizes than genuine bills.
{¶30} Most significantly, the evidence viewed in a light most favorable to
the prosecution demonstrates that Suffel told Weidenhamer at least two lies, which
suggested that Suffel knew the bills were counterfeit and that Suffel had the
purpose to defraud Valero and the Eagles. First, Suffel denied to Weidenhamer
that he presented a counterfeit $100 bill at Valero and denied that the Valero
cashier told him the bill was counterfeit. Second, Suffel told Weidenhamer that he
got the counterfeit money from Dobbelaere in exchange for a speaker. The jury
was free to infer consciousness of guilt from Suffel’s dishonesty. State v.
Brodbeck, 10th Dist. Franklin No. 08AP-134, 2008-Ohio-6961, ¶ 44 (“The jury
was at liberty to infer consciousness of guilt from appellant’s lie.”), citing State v.
Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, ¶ 54, citing State v. Johnson, 46
Ohio St.3d 96, 100 (1989).
{¶31} We conclude that the trial court did not err in overruling Suffel’s
Crim.R. 29 motions for acquittal because a rational trier of fact could have found
that Suffel knew the bills were counterfeit and that he acted with the purpose to
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defraud Valero and the Eagles because he specifically intended to obtain, by using
counterfeit bills, a benefit for himself to the detriment of Valero and the Eagles.
{¶32} We next address Suffel’s arguments that his convictions for Counts
One and Two are against the manifest weight of the evidence. In addition to
arguing that the State failed to present evidence that he knew the bills were
counterfeit or that he acted with purpose to defraud, Suffel points to Johns’s
testimony on cross-examination that people are often duped by counterfeit
currency and sometimes possess it unknowingly. Suffel also argues that Kurtz’s
testimony was not credible. Kurtz admitted that she had stolen in the past and that
her being fired from the Eagles stemmed from “an issue of playing Keno tickets
after hours.” Price testified that as a result of Kurtz’s employment at the Eagles,
he had a reason to distrust her.
{¶33} Even removing the lens of favorability in favor of the prosecution,
through which we examine the sufficiency of the evidence, this is not an
exceptional case where the evidence weighs heavily against the convictions.
While Johns testified that people can be fooled by counterfeit currency, McCord
and Kurtz described the noticeably suspicious nature of the bills that Suffel handed
to them. And while Kurtz’s credibility may have been questionable, the jury
observed her testimony and Price’s testimony, and we are mindful of the jury’s
“superior, first-hand perspective in judging the demeanor and credibility of
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witnesses.” State v. Phillips, 10th Dist. Franklin No. 14AP-79, 2014-Ohio-5162, ¶
125, citing DeHass, 10 Ohio St.2d 230, at paragraph one of the syllabus.
{¶34} The evidence weighing in favor of Suffel’s convictions is much
weightier than the evidence weighing against them. Most significant is Suffel’s
apparent untruthfulness to Weidenhamer. Also significant is the timing of the
events. Suffel attempted to pay for $20 worth of pull-off tickets at the Eagles with
a $100 bill that McCord had earlier that day marked with a counterfeit pen. When
the pen revealed that the bill was counterfeit, McCord told Suffel that the $100 bill
he presented to her was counterfeit. This is perhaps why Suffel does not argue
that his conviction for Count Three—which was based on his attempt to pay with
the counterfeit $100 bill at the Eagles—is against the manifest weight of the
evidence. What Suffel discounts, however, is that evidence related to Count Three
is also evidence that he knew the $100 bill he presented at Valero and the two $50
bills he presented at the Eagles were counterfeit and that he acted with the purpose
to defraud those establishments.
{¶35} For these reasons, we cannot conclude that the jury clearly lost its
way and created such a manifest miscarriage of justice that Suffel’s convictions
for Counts One and Two must be reversed and a new trial ordered.
{¶36} Suffel’s first and second assignments of error are overruled.
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Assignment of Error No. III
The trial court erred in refusing the defendant’s requested jury
instruction of accident. (t. [sic] at p. 140)
{¶37} In his third assignment of error, Suffel argues that the trial court
erred by denying his request for the “accident” jury instruction found in Ohio Jury
Instructions, CR Section 421.01 (1983). Suffel argues that he established through
Johns, the State’s expert witness concerning counterfeit money, “that accidental
passing of counterfeit bills often occurs.” (Appellant’s Brief at 6). Suffel also
argues that the testimony of Weidenhamer, the investigating officer, “showed that
the defendant never admitted knowing that the bills he passed that night were
counterfeit.” (Id.). Finally, he argues that “there was evidence presented that [he]
denied knowing that the bills were counterfeit to both the cashier at the Valero
convenience store, as well as to the bar-tender [sic] at The Eagles.” (Id. at 7).
{¶38} “‘When reviewing a court’s refusal to give a requested jury
instruction, an appellate court considers whether the trial court’s refusal to give
said instruction was an abuse of discretion under the facts and circumstances of
the case.’” State v. Simonis, 3d Dist. Seneca No. 13-14-05, 2014-Ohio-5091, ¶ 31,
quoting State v. Kunz, 6th Dist. Wood No. WD-10-047, 2011-Ohio-3115, ¶ 30,
citing State v. Wolons, 44 Ohio St.3d 64, 68 (1989). An abuse of discretion
suggests the trial court’s decision is unreasonable, arbitrary, or unconscionable.
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State v. Adams, 62 Ohio St.2d 151, 157 (1980). “Generally, a trial court must
provide the jury with all instructions that are relevant and necessary to weigh the
evidence and discharge their duties as the fact finders.” State v. Sunderman, 5th
Dist. Stark No. 2006-CA-00321, 2008-Ohio-3465, ¶ 21, citing State v. Joy, 74
Ohio St.3d 178, 181 (1995). However, “a court need not instruct the jury as a
party requests if ‘the evidence adduced at trial is legally insufficient’ to support
it.” State v. Juntunen, 10th Dist. Franklin Nos. 09AP-1108 and 09AP-1109, 2010-
Ohio-5625, ¶ 13, quoting State v. Barnd, 85 Ohio App.3d 254, 259 (3d Dist.1993).
“The trial court possesses the discretion ‘to determine whether the evidence
presented at trial is sufficient to require that [the] instruction be given.’” Id.,quoting State v. Lessin, 67 Ohio St.3d 487, 494 (1993).
{¶39} “‘Accident is that which is unintentional and unwilled and implies a
lack of criminal culpability.’” State v. Vintson, 9th Dist. Lorain No. 06CA009066,
2007-Ohio-6141, ¶ 31, quoting State v. Ross, 135 Ohio App.3d 262, 276 (12th
Dist.1999). The Ohio Jury Instructions section containing the “accident” jury
instruction that Suffel requested provides, in part:
1. The defendant denies any purpose to (describe). He denies that
he committed an unlawful act and says that the result was accidental.
2. DEFINED. An accidental result is one that occurs
unintentionally and without any design or purpose to bring it about.
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An accident is a mere physical happening or event, out of the usual
order of things and not reasonably (anticipated) (foreseen) as a
natural or probable result of a lawful act.
(Emphasis sic.) Ohio Jury Instructions, CR Section 421.01 (1983).
{¶40} In denying Suffel’s request for the “accident” jury instruction, the
trial court concluded that there was no evidence “that would support rendering an
instruction like this.” (Apr. 1, 2014 Tr. at 140). After reviewing the record, we
agree that the evidence was insufficient to support an “accident” instruction and
conclude that the trial court did not abuse its discretion in refusing to provide an
“accident” instruction to the jury. See Sunderman at ¶ 25.
{¶41} First, Suffel’s reliance on Johns’s testimony that it is not uncommon
for people to unknowingly possess counterfeit currency is misplaced. Johns did
not testify that Suffel lacked a purpose to defraud or otherwise presented the
counterfeit bills accidentally, and Suffel overlooks the subjective elements of the
accident instruction. See State v. Wegmann, 3d Dist. Allen No. 1-06-98,
2008-Ohio-622, ¶ 112. Second, Suffel’s argument that Weidenhamer’s testimony
“showed that the defendant never admitted knowing that the bills he passed that
night were counterfeit” also misses the mark. A lack of admission by Suffel to
law enforcement does not equate to a denial, for purposes of the “accident” jury
instruction, that he acted without purpose to defraud. Finally, Suffel improperly
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relies on McCord’s and Kurtz’s testimony that Suffel denied knowing the bills he
gave them were counterfeit. This testimony is overshadowed by the evidence that
we discussed in addressing Suffel’s first and second assignments of error, which
demonstrates that Suffel’s presentation of the counterfeit bills was not an accident
and that he in fact acted with the purpose to defraud Valero and the Eagles.
{¶42} What is more, the record reflects that the trial court instructed the
jury that to find Suffel guilty of the forgery counts, it had to find beyond a
reasonable doubt that he acted “with purpose to defraud, or knowing that he was
facilitating a fraud.” (Apr. 1, 2014 Tr. at 158-159). The trial court instructed the
jury concerning the definition of “defraud” and what it means to act “purposely”
and “knowingly.” (Id. at 159-160). “Therefore, ‘[t]he absence of accident was
necessarily part of the instructions that were delivered by the trial court.’” State v.
Fogler, 9th Dist. Medina 08CA0004-M, 2008-Ohio-5927, ¶ 16, quoting State v.
Staats, 9th Dist. Summit No. 15706, 1994 WL 122266, *5 (Apr. 13, 1994). In
other words, the trial court instructed the jury that, to find Suffel guilty of forgery,
it had to find that he acted purposely or knowingly; therefore, had the jury found
that Suffel lacked the requisite mental state and that the results of his actions were
accidental, the jury would have been required to find Suffel not guilty under the
trial court’s general instruction. State v. Hubbard, 10th Dist. Franklin No. 11AP-
945, 2013-Ohio-2735, ¶ 61, citing State v. Johnson, 10th Dist. Franklin No. 06AP-
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878, 2007-Ohio-2792, ¶ 63, State v. Manbevers, 4th Dist. Pickaway No. 93CA23,
1994 WL 529966 (Sept. 28, 1994), and Fogler at ¶ 16.
{¶43} For these reasons, the trial court did not abuse its discretion when it
refused to instruct the jury concerning “accident.”
{¶44} Suffel’s third assignment of err or is overruled.
{¶45} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS, P.J. and WILLAMOWSKI, J., concur.
/jlr
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