State v. Lenard ( 2018 )

[Cite as State v. Lenard, 2018-Ohio-3365.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105998
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RICHARD LENARD
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART; VACATED IN PART;
AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-15-599742 and CR-16-602457-A
BEFORE: Keough, J., E.T. Gallagher, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: August 23, 2018
ATTORNEY FOR APPELLANT
Joseph V. Pagano
P.O. Box 16869
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Jonathan Block
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} Defendant-appellant, Richard Lenard, appeals his convictions and sentence. For the
reasons that follow, we affirm in part, vacate in part, and remand for further proceedings.
I. Procedural History and Facts
{¶2} In Cuyahoga C.P. No. CR-15-599742, Lenard was named in a six-count indictment
charging him with securing writings by deception, identity fraud, tampering with records, theft,
and two counts of forgery. An elderly and value specification was attached to some of the
counts. In Cuyahoga C.P. No. CR-16-602457, Lenard was named in a three-count indictment
charging him with burglary, grand theft, and securing writings by deception. A value
specification was attached to two of the counts. The cases stem from real estate transactions in
Euclid and Parma where Lenard acted as the seller or an agent to the seller. The cases were
consolidated over objection and tried before a jury where the following evidence was presented;
additional facts will be discussed within the relevant assignments of error.
A. The Euclid Property
{¶3} In early 2015, Philip Ray Bentley (“Philip”) wanted to make a property investment
as part of his wife’s retirement plan (collectively, “the Bentleys”). Philip testified that he found
a home in Euclid, Ohio listed on Craigslist, and called the contact — Ryan Smith. According to
Philip, Smith told him that he was selling the home on behalf of his uncle. Smith gave Philip
the combination to the lockbox on the home’s door, and Philip went to the property with his son.
According to Philip, the house had extensive water damage and black mold. Nevertheless,
Philip offered Smith $13,000 to purchase the residence, which Smith accepted.
{¶4} The Bentleys met Smith at a restaurant in Twinsburg for Philip’s wife, Blanche, to
sign a purchase agreement. Blanche testified that she did not really understand the document,
but just signed it after her husband reviewed it and advised her to sign. She stated that she
voluntarily signed the purchase agreement on April 25, 2015, and it was her understanding that
they were buying a house.
{¶5} At the suggestion of Smith, the Bentleys used General Title Services. Michael Gray
from the title company contacted Philip, and based on the conversation, Philip believed that a
title search of the property would be performed. A few days later, Smith called the Bentleys to
arrange a meeting at his Beachwood office for the payment of $3,000 earnest money. Philip
testified that he met with a woman named Maria and presented her with a $3,000 check made
payable to General Title Services. Subsequently, Smith contacted Philip and advised that the
contract on the house was ready to close. Philip was instructed to bring two checks to closing
— one for $771 payable to General Title Services, and the other for $10,000 payable to Riviera
Funding.
{¶6} On May 11, 2015, the Bentleys met with Maria and a notary public. The checks
were given to Maria, and Blanche voluntarily signed the closing disclaimer after Philip reviewed
the documents and advised her to sign them. According to Philip, he was told by Smith, Gray,
and Maria that there were no liens on the property, and that the lien listed on the closing
disclaimer had been removed. Philip testified that based on these assertions, he believed the
house passed the title search. The Bentleys both testified that they believed they purchased the
Euclid property after this meeting.
{¶7} The Bentleys invested $4,000 to start repairing their home. A few weeks later,
however, the Bentleys received a foreclosure notification regarding the property. Philip called
Smith, who told him there was no need for concern because the notification involved his uncle’s
credit card. Later, however, Philip discovered an $80,000 lien on the property and that the true
owner was Bank of America. He stated that he tried to contact Smith again, but Smith’s
telephone number was no longer in service. The Bentleys had to abandon the property.
{¶8} Believing that the sale of the house was fraudulent, Philip started his own
investigation and discovered that Riviera Funding was owned by Richard Lenard. After
speaking with the notary who was present at closing, he learned that a man named “Richard” was
involved in flipping houses. Based on this information, Philip searched for a “Richard Lenard”
on Facebook, and his search revealed a Richard Lenard whom he recognized and knew as “Ryan
Smith.” The Bentleys subsequently filed a report with Beachwood police.
{¶9} Detective Allan Baumgartner testified that he investigated the Bentleys’ complaint
against Ryan Smith a.k.a. Richard Lenard. As part of his investigation, he reviewed auditor
records and the documents provided by the Bentleys that the seller, Antoun Saydeh (“Saydeh”)
signed. He contacted Saydeh and questioned him about the details of the property, reviewed
documentation that Saydeh allegedly signed, and presented Saydeh with surveillance
photographs taken from Huntington Bank. Based on his investigation, Detective Baumgartner
believed the real estate transaction was fraudulent.
{¶10} Saydeh testified that in early 2005 he was contacted by the bank regarding his
Euclid property. He was advised that if he signed a quitclaim deed, his property foreclosure
would be completed. Saydeh testified that he met with Richard Kelly (“Kelly”), who presented
him with a quitclaim deed, which he signed. Surveillance still-photographs showed Saydeh at
Huntington Bank with the man he knew as Kelly. When presented with documents pertaining
to lead-based paint and residential property disclosures, and a standard purchase agreement,
Saydeh testified that the signature on the documents was not his. He stated that he did not sign or
authorize anyone to sign those documents on his behalf. At trial, Saydeh identified Lenard as
the man he knew as Kelly.
{¶11} Maria Mhoon testified that she was hired by Lenard to facilitate real estate
transactions. At Lenard’s request, she would meet with individuals, present them with
documentation to sign, and collect any checks. Specific to the Bentleys, she stated that she met
with the Bentleys at Lenard’s instruction and presented them with documentation to sign. She
stated she accepted checks from them and also presented them with a check. Mhoon testified
that she gave all signed documents and checks to Lenard.
B. The Parma Property
{¶12} In 2014, Milolijub Matic (“Matic”) wanted to purchase a home for his daughter and
granddaughter. He saw an internet advertisement regarding a home for sale in Parma, Ohio.
He met with Richard Lenard, managing member of AMC Financial, who showed him the
property and subsequently negotiated an agreement to purchase the home. Matic agreed to a
land-sale contract to purchase the home for $34,000, with $15,000 as a down payment with an
agreement to pay $1,000 per month for one year. At the end of the year, a balloon payment of
$7,900 was required. Matic presented Lenard with a cashier’s check for $15,150 payable to
Cleveland Title Agency, and then made the monthly $1,000 payments payable to AMC Financial.
{¶13} When Lenard requested the balloon payment at the end of September 2015, Matic
became suspicious because he received documentation from Lenard that he did not remember
signing. Matic consulted with attorney Alex Rakic, who advised him that Midland Bank had a
lien against the property. The bank ultimately took possession of the Parma property. Matic
testified that he had to purchase the property from the bank to become the rightful owner. As
part of the police investigation, Matic was presented with a photo array from which he identified
Lenard as the man who sold him the home.
{¶14} Attorney Rakic testified that his research revealed the presence of a lien on the
property, that the land-contract agreement between AMC Financial and Matic was never
recorded with the county auditor’s office, and that AMC Financial was not a registered company
with the Ohio secretary of state.
{¶15} At the close of the state’s case, the trial court granted Lenard’s Crim.R. 29 motion
for acquittal on the burglary offense as charged in Count 1 in CR-16-602457 (Parma case). The
jury found Lenard guilty of the remaining counts of grand theft and securing writings by
deception, including the furthermore specifications attendant to both counts that the value of the
property was $7,500 or more but less than $150,000.
{¶16} In CR-15-599742 (Euclid case), the jury found Lenard not guilty of identity fraud
and one count of forgery, but guilty of the remaining counts — securing writings by deception,
tampering with records, theft, and forgery. In each of those counts, the jury found that the
value of the property was $7,500 or more but less than $37,500, but found that the victim was not
an elderly person, making the offenses fourth-degree felonies.
{¶17} The trial court sentenced Lenard to 12 months in CR-15-599742 to be served
consecutively to 12 months imposed in CR-16-602457. The sentences were also ordered
consecutive to cases unrelated to this appeal — CR-15- 597800 (16 months), CR-15-602350 (6
years), and CR-15-602274 (7 years) — for a total sentence of 16 years and 4 months.
Additionally the court ordered restitution in the amount of $13,000 to the Bentleys, and $27,000
to Matic.
{¶18} Lenard now appeals, raising eight assignments of error.
II. Other Acts Evidence
{¶19} Prior to trial, the state filed a notice of intent to introduce other acts evidence
pursuant to Evid.R. 404(B), specifically to introduce testimony through Detective David Sword,
that Lenard used an alias in these cases that he also used in a prior real estate transaction in North
Royalton where theft was alleged. The state maintained that the evidence would show a pattern
of activity and an intent to defraud. The defense objected, contending that the evidence would
be unduly prejudicial. The trial court granted the state’s request, but limited the testimony only
to the North Royalton matter. In his first assignment of error, Lenard contends that the trial
court erred by allowing this testimony.
{¶20} “The trial court has broad discretion in the admission and exclusion of evidence,
including evidence of other acts under Evid.R. 404(B).” State v. Kirkland, 140 Ohio St. 3d 73,
2014-Ohio-1966, 15 N.E.3d 818, ¶ 67, citing State v. Morris, 132 Ohio St. 3d 337,
2012-Ohio-2407, 972 N.E.2d 528, ¶ 22. Reviewing courts should be “slow to interfere” unless
the trial court “clearly abused its discretion and the defendant has been materially prejudiced
thereby[.]” State v. Hymore, 9 Ohio St. 2d 122, 128, 224 N.E.2d 126 (1967). “Abuse of
discretion” is an “‘unreasonable, arbitrary, or unconscionable use of discretion, or as a view or
action that no conscientious judge could honestly have taken.’” Kirkland at ¶ 67, quoting State
v. Brady, 119 Ohio St. 3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 23.
{¶21} Evid.R. 404(B) provides that evidence of other crimes, wrongs, or acts is permitted
to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or the
absence of mistake or accident. Additionally, R.C. 2945.59 provides that:
[i]n any criminal case in which the defendant’s motive or intent, the absence of
mistake or accident on his part, or the defendant’s scheme, plan, or system in
doing an act is material, any acts of the defendant which tend to show his motive
or intent, the absence of mistake or accident on his part, or the defendant’s
scheme, plan, or system in doing the act in question may be proved, whether they
are contemporaneous with or prior or subsequent thereto, notwithstanding that
such proof may show or tend to show the commission of another crime by the
defendant.
{¶22} In deciding whether to admit other acts evidence, trial courts should conduct a
three-step analysis:
The first step is to consider whether the other acts evidence is relevant to making
any fact that is of consequence to the determination of the action more or less
probable than it would be without the evidence. * * * The next step is to consider
whether evidence of the other crimes, wrongs, or acts is presented to prove the
character of the accused in order to show activity in conformity therewith or
whether the other acts evidence is presented for a legitimate purpose, such as
those stated in Evid.R. 404(B). The third step is to consider whether the
probative value of the other acts evidence is substantially outweighed by the
danger of unfair prejudice.
State v. Williams, 134 Ohio St. 3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 20.
{¶23} Applying this test to the challenged testimony, we find no abuse of discretion by
the trial court. First, Lenard’s use of the same fictitious name in a prior real estate transaction in
North Royalton is relevant to refute Lenard’s defense that he was an innocent party receiving the
blame for actions the Bentleys, Saydeh, and Matic knowingly undertook. The testimony
demonstrated that Lenard had knowledge of his actions. The evidence was also introduced for a
valid purpose — to prove identity, an absence of mistake, and provided context in identifying
Lenard.
{¶24} Finally, the probative value is not outweighed by any unfair prejudice, and Lenard
fails to identify how he was prejudiced by this testimony. The trial court mitigated any potential
prejudice by providing prior to Detective Sword’s testimony a limiting instruction that ordered
the jury to not consider other acts evidence for any improper purpose. (Tr. 803-804.) The court
also gave the jury a final instruction regarding other acts evidence. (Tr. 1000-1001.) It is
presumed that the jury followed these limiting instructions. See State v. Jones, 135 Ohio St. 3d
10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 194.
{¶25} Accordingly, the trial court did not abuse its discretion in allowing this other acts
testimony. Lenard’s first assignment of error is overruled.
III. Pretrial Identification
{¶26} Lenard contends in his second assignment of error that the trial court erred by
admitting Matic’s pretrial identification when he was unable to identify Lenard in court. Lenard
makes two arguments: (1) that the admission of the photo array was improper because the exhibit
was not authenticated; and (2) Matic’s pretrial identification was unduly suggestive.
{¶27} Matic’s inability to identify Lenard at trial is irrelevant. Generally, there is no
requirement that a witness must make an in-court identification of a defendant in criminal cases
because the accused’s identity can be established through direct or circumstantial evidence. In re
A.W., 8th Dist. Cuyahoga No. 103269, 2016-Ohio-7297, ¶ 28, citing State v. Collins, 8th Dist.
Cuyahoga No. 98350, 2013-Ohio-488, ¶ 19; State v. Lawwill, 12th Dist. Butler No.
CA2007-01-014, 2008-Ohio-3592, ¶ 11.
{¶28} Evid.R. 901 requires the authentication or identification of evidence as a condition
precedent to admissibility. Testimony of a witness with knowledge “that a matter is what it is
claimed to be” is sufficient to authenticate the purported evidence. Evid.R. 901(B)(1). Courts
have interpreted this subsection of the rule to allow “any competent witness who has knowledge
that a matter is what its proponent claims may testify to such pertinent facts, thereby establishing,
in whole or in part, the foundation for identification.” State v. Black, 7th Dist. Mahoning No. 16
MA 0085, 2018-Ohio-1342, ¶ 14, quoting TPI Asset Mgt. v. Conrad-Eiford, 193 Ohio App. 3d
38, 2011-Ohio-1405, 950 N.E.2d 1018, ¶ 15 (2d Dist.). We review the court’s ruling on the
adequacy of authentication for an abuse of discretion. State v. Bowling, 8th Dist. Cuyahoga No.
93052, 2010-Ohio-3595, ¶ 33, citing State v. Easter, 75 Ohio App. 3d 22, 26-27, 598 N.E.2d 845
(4th Dist.1991).
{¶29} In this case, Matic testified that state’s exhibit No. 75 was the photo array he was
shown at the Parma police station after making his report. He recalled that he was asked to
identify the person who sold him the Parma property. Matic testified that he made a circle
underneath the identified photograph. And Detective John Porec testified that he investigated
the report made by Matic regarding the sale of the Parma real estate. He stated that he met with
Matic, and a blind administrator presented Matic with a photo array that included Lenard’s
picture. According to Detective Porec, Matic identified Lenard from the photo array. The
photo array was therefore properly admitted.
{¶30} Lenard also contends on appeal that the photo array identification was unduly
suggestive. This argument was not a basis for Lenard’s objection below, thus waiving all but
plain error on appeal. We find no plain error because Detective Porec explained how the photo
lineup was created, and the lineup was presented to Matic through the use of a blind
administrator. Matic selected the individual he believed to be Lenard based on his interactions
with Lenard during the purchase of the Parma property. The totality of circumstances
demonstrate that the identification was reliable. Moreover, Matic was subject to
cross-examination during trial and any alleged defect or unreliability with his photo array
identification could have been questioned.
{¶31} Accordingly, Lenard’s second assignment of error is overruled.
IV. Sufficiency of the Evidence
{¶32} Lenard contends in his third assignment of error that his convictions are not
supported by sufficient evidence, and the trial court erred by denying his motions for acquittal.
{¶33} A Crim.R. 29 motion challenges the sufficiency of the evidence. The test for
sufficiency requires a determination of whether the prosecution met its burden of production at
trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. 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. State v.
Murphy, 91 Ohio St. 3d 516, 543, 747 N.E.2d 765 (2001). “‘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.’” State
v. Walker, 150 Ohio St. 3d 409, 2016-Ohio-829, 82 N.E.3d 1124, ¶ 12, quoting State v. Jenks, 61
Ohio St. 3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus
A. The Euclid Property
{¶34} Lenard was convicted of three offenses pertaining to the Euclid property —
securing writings by deception in violation of R.C. 2913.43(A), tampering with records in
violation of R.C. 2913.42(A)(1), and theft in violation of R.C. 2913.02(A)(3).1
{¶35} Lenard contends that insufficient evidence was presented to support his convictions
regarding the property because (1) Philip did not sign any of the Euclid property documents, (2)
the documents that Blanche voluntarily signed disclosed (a) the lien and the pending foreclosure
action on the Euclid property and (b) that only a quitclaim deed, rather than a warranty deed,
would be executed; (3) Saydeh voluntarily signed a quitclaim deed as provided for in the
purchase agreement; and (4) any statements regarding the status of the lien on the property was
made by Mhoon and thus, cannot be attributed to him. We discern from these statements that
Lenard contends that the state failed to prove the element of deceit.
{¶36} Pursuant to R.C. 2913.01(A), “deception” is defined as
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.
{¶37} In Count 1, Lenard was convicted of securing writings by deception, which
pursuant to R.C. 2913.43 prohibits a person, by the use of deception, to cause another to execute
any writing that disposes of or encumbers property, or by which a pecuniary obligation is
incurred. In Count 4, Lenard was convicted of theft, which pursuant to R.C. 2913.02(A)(3),
1
We need not address the finding of guilt as to the forgery charge in Count 5 because that offense merged
with the theft offense in Count 4, and the state elected that Lenard be sentenced on Count 4. See State v. Ramos,
8th Dist. Cuyahoga No. 103596, 2016-Ohio-7685, ¶ 14 (when counts in an indictment are allied offenses and there is
sufficient evidence to support the offense on which the state elects to have the defendant sentenced, the reviewing
court need not consider the sufficiency of the evidence on the count that is subject to merger because any error would
be harmless); State v. Rucker, 8th Dist. Cuyahoga No. 105628, 2018-Ohio-1832, ¶ 35.
provides that “[n]o person, with purpose to deprive the owner of property or services, shall
knowingly obtain or exert control over either the property or services * * * (3) By deception.”
{¶38} Lenard’s contention that Philip did not sign any of the real estate documents is
irrelevant because both Philip and Blanche were the named victims. Sufficient testimony and
evidence was presented to prove that Blanche signed the real estate documents pertaining to the
Euclid property.
{¶39} Lenard’s “buyer beware” or “caveat emptor” defense does not apply. In a civil
context, caveat emptor only applies when the seller or vendor does not engage in fraud, despite
defects being open and discoverable. See Layman v. Binns, 35 Ohio St. 3d 176, 177, 519 N.E.2d
642 (1988). “An action for fraud may be grounded upon the failure to fully disclose facts of a
material nature where there exists a duty to speak.” Id. at 178.
{¶40} Although the documents Blanche signed disclosed the lien on the property and that
no title search would be performed, the jury saw that the documents contained two noticeably
different font and type sizes. The substantially smaller font size contained disclosures and the
disclaimers. Specific to the standard purchase agreement, the smaller font size reads that the
Title company does not “agree to or offer” any title services, including “title search(s).” The
disclaimer also stated that the buyer was “told by a representative at General Title Services LLC
of these facts.” Blanche and Philip both testified that no one from General Title told them a title
search would not be performed. The closing disclaimer also contains in the smaller font size
that a mortgage and foreclosure existed on the property. Viewing the evidence in the light most
favorable to the state, the jury could reasonably find that these documents presented by Lenard
were deceptive.
{¶41} The state demonstrated that Lenard lied and deceived the Bentleys through the
entire real estate transaction. He lied about his name and that he was selling the property for his
uncle. He presented documentation to the Bentleys that he knew to be false. Even though the
documentation arguably disclosed all the defects in title, the evidence demonstrated that Lenard
had no authority to sell the property. Any statements made by Mhoon are attributed to Lenard
because she was acting at his direction at all times. Moreover, even though the quitclaim deed
was recorded, this does not make Lenard’s actions lawful or legal; Lenard took the Bentleys’
money through deception and false pretenses.
{¶42} In Count 3, Lenard was convicted of tampering with records in violation of R.C.
2913.42(A)(1), which provides that “[n]o person, knowing the person has no privilege to do so,
and with purpose to defraud or knowing that the person is facilitating a fraud, shall * * * (1)
Falsify, destroy, remove, conceal, alter, deface, or mutilate any writing, computer software, data,
or record.”
{¶43} Lenard knew he was not a representative of the bank, and that Saydeh did not have
authority to sell the property because Saydeh had surrendered the property to the bank through a
bankruptcy years prior. Moreover, sufficient evidence was presented that Lenard did not have
permission to sign Saydeh’s name to the residential property forms, the standard purchase
agreement, or the lead-based paint addendum. Accordingly, sufficient evidence was presented
to prove the offenses regarding the Euclid property.
{¶44} Lenard also contends that the degrees of the offenses were not supported by the
jury verdicts. A furthermore specification was attached to Counts 1 and 4, wherein it was
alleged that Lenard committed these offenses against an elderly person and the value was
between $7,500 and $37,500. A finding of both would enhance an otherwise fifth-degree felony
to a felony of the third degree. The jury found that the victim was not elderly but that the value
was between $7,500 and $37,500. Lenard maintains that the specification was an all-or-nothing
specification to warrant enhancing the degree of the offenses, meaning that the jury had to find
that the victim was elderly and the value of the property. We disagree.
{¶45} In State v. Jennings, 8th Dist. Cuyahoga No. 99631, 2013-Ohio-5428, this court
modified a defendant’s theft conviction that contained a specification that the victim was elderly
and that the value of the property was between $1,000 and $7,500. Adding the furthermore
clause enhanced the degree of the theft offense from a first-degree misdemeanor to a
fourth-degree felony. This court found that the state failed to prove that the victim was an
elderly person as defined under R.C. 2913.01(CC), but that the state presented sufficient
evidence of the theft offense and the value of the property being between $1,000 and $7,500.
Accordingly, this court modified the conviction to a fifth-degree felony, thus not applying an
“all-or-nothing” approach to the specification.
{¶46} Our review of the record shows that the jury was asked to make two independent
findings under the furthermore specification attendant to Counts 1 and 4 — whether the state
proved that the victim was elderly and the value of the amount pilfered was between $7,500 and
$37,500. The jury’s finding that the value was over $7,500, but under $37,500, was sufficient to
enhance the degree of the offense from a fifth-degree felony to a felony of the fourth degree.
B. The Parma Property
{¶47} Regarding the Parma property, Lenard was convicted of two offenses — securing
writings by deception in violation of R.C. 2913.43(A); and theft in violation of R.C.
2913.02(A)(3). Lenard contends that insufficient evidence was presented to support his
convictions regarding the property because the documents that Matic signed voluntarily disclosed
a lien on the property, he moved into the residence, and he made payments pursuant to the terms
of the installment contract. Again, Lenard maintains no deception occurred.
{¶48} The record reflects that Lenard employed the same tactics with Matic as he did
with the Bentleys. He held himself out as the seller of the home, when in fact, he was not the
owner. Lenard’s false and deceptive statements induced Matic into signing a fictitious
agreement to purchase real estate. Matic testified that he was not made aware of the lien on the
property, and that he paid Lenard over $27,000 for property that Lenard did not own.
{¶49} Viewing the evidence in the light most favorable to the state, sufficient evidence
was presented supporting Lenard’s convictions in both cases. Accordingly, the assignment of
error is overruled.
V. Manifest Weight of the Evidence
{¶50} In his fourth assignment of error, Lenard contends that his convictions are against
the manifest weight of the evidence.
{¶51} In contrast to a sufficiency argument, a manifest weight challenge questions
whether the state met its burden of persuasion. Bowden, 8th Dist. Cuyahoga No. 92266,
2009-Ohio-3598, ¶ 12. A reviewing court “weighs the evidence and all reasonable inferences,
considers the credibility of witnesses and determines whether in resolving conflicts in the
evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.” State v. Thompkins, 78 Ohio St. 3d 380,
388, 678 N.E.2d 541 (1997). A conviction should be reversed as against the manifest weight of
the evidence only in the most “exceptional case in which the evidence weighs heavily against the
conviction.” Id.
{¶52} Although we review credibility when considering the manifest weight of the
evidence, we are cognizant that determinations regarding the credibility of witnesses and the
weight of the testimony are primarily for the trier of fact. State v. Bradley, 8th Dist. Cuyahoga
No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St. 2d 230, 227 N.E.2d 212
(1967). The trier of fact is best able “to view the witnesses and observe their demeanor,
gestures, and voice inflections, and use these observations in weighing the credibility of the
proffered testimony.” State v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,
¶ 24. The jury may take note of any inconsistencies and resolve them accordingly, “believ[ing]
all, part, or none of a witness’s testimony.” State v. Raver, 10th Dist. Franklin No. 02AP-604,
2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).
{¶53} Lenard contends that his convictions pertaining to the Euclid property are against
the manifest weight of the evidence because Saydeh was not credible. Specifically, he argues
that Saydeh executed a quitclaim deed even though he surrendered the property to Bank of
America two years earlier in his bankruptcy proceeding. The jury was in the best position to
view Saydeh’s credibility and determine the weight to be given to his testimony based upon the
circumstances and facts presented at trial.
{¶54} Lenard also contends that his convictions are against the manifest weight of the
evidence for the same reasons he raised in his sufficiency challenge — the buyers knew what
they were signing and were on notice of the liens. For the same reasons previously discussed,
Lenard used deception to induce the Bentleys and Matic into executing documents to purchase
real estate that Lenard had no authority to sell. Lenard’s culpability cannot be diminished by the
victims’ innocent role in these cases.
{¶55} This is not the exceptional case where the jury clearly lost its way and created such
a manifest miscarriage of justice that Lenard’s convictions must be reversed and a new trial
ordered. The jury’s verdict of finding Lenard not guilty of certain offenses and specifications
reveal that the jury reviewed the evidence, listened to the testimony, and held the state to its
burden. Accordingly, Lenard’s fourth assignment of error is overruled.
VI. Authentication of Business Records
{¶56} “‘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). Pursuant to Evid.R. 802, hearsay is inadmissible unless it falls within one of the
exceptions listed in Evid.R. 803.
{¶57} Evid.R. 803(6) provides the “business records exception” to the hearsay rule and
states that the following records are not excluded by the hearsay rule:
memorandum, report, record, or data compilation, in any form, of acts, events, or
conditions, made at or near the time by, or from information transmitted by, a
person with knowledge, if kept in the course of a regularly conducted business
activity, and if it was the regular practice of that business activity to make the
memorandum, report, record, or data compilation, all as shown by the testimony
of the custodian or other qualified witness or as provided by Rule 901(B)(10),
unless the source of information or the method or circumstances of preparation
indicate lack of trustworthiness. (Emphasis added).
This rule allows the admission of business records if they are made in the course of a regularly
conducted business activity because the courts presume that such records are trustworthy given
the self-interest to be served by the accuracy of such entries. Weis v. Weis, 147 Ohio St. 416,
425-426, 72 N.E.2d 245 (1947).
{¶58} In his fifth assignment of error, Lenard contends that the trial court erred by
admitting and allowing Jim McKinley to authenticate business documents that he did not
personally obtain and because he was not the records custodian. Lenard contends that the trial
court abused its discretion in admitting the documents because McKinley did not prepare the
exhibits and was not familiar with how the records were made or stored. We disagree;
McKinley was a qualified witness under Evid.R. 803(6).
{¶59} The phrase “other qualified witness” does not necessarily mean that the witness
must have firsthand knowledge of the transaction giving rise to the record. State v. Sherrills, 8th
Dist. Cuyahoga No. 89844, 2008-Ohio-1950, ¶ 31; citing State v. Vrona, 47 Ohio App. 3d 145,
547 N.E.2d 1189 (9th Dist.1988).
Rather, it must be demonstrated that the witness is sufficiently familiar with the
operation of the business and with the circumstances of the record’s preparation,
maintenance, and retrieval, that he can reasonably testify on the basis of this
knowledge that the record is what it purports to be, and that it was made in the
ordinary course of business consistent with the elements of Rule 803(6).
Sherrills at id., citing State v. Shaheen, 3d Dist. Hancock No. 5-97-03, 1997 Ohio App. LEXIS
3487 (July 29, 1997), citing State v. Patton, 3d Dist. Allen No. 1-91-12, 1992 Ohio App. LEXIS
997 (Mar. 5, 1992).
{¶60} McKinley testified that for the past 16 years he has worked in the field of financial
investigations. Previously, he worked for Huntington Bank, but currently he works for U.S.
Bank as a financial crimes investigator. He testified that as part of his investigative duties, he
orders financial documentation through the bank’s systems and reviews surveillance videos.
{¶61} McKinley stated that still photos can be taken from video, and information on the
photograph will depict the branch where the video was taken, the time, and date. He testified
that the surveillance videos are electronically stored at U.S. Bank’s central office in Minnesota,
but that he can access these videos kept in their ordinary course of business through the computer
network system. McKinley then identified the still photographs taken from the surveillance
video at two U.S. Bank locations, one taken on May 11, 2015 and the other on April 28, 2015.
He also identified the account documents for two accounts of which Lenard is the account holder
— General Title Services and Riviera Funding L.L.C. According to McKinley, these documents
are kept in U.S. Bank’s ordinary course of business to which he has access.
{¶62} Based on McKinley’s experience and duties at U.S. Bank, we find no abuse of
discretion in allowing him to identify and authenticate the still photographs and account records.
He did not testify about the contents of the documents, but only identified them as U.S. Bank
records.
{¶63} Even assuming that McKinley lacked the ability to authenticate the records, Lenard
has failed to demonstrate how he was prejudiced by the admission of the records. His defense
theory was that the buyers knew what they were voluntarily signing and therefore, no deception
occurred. He did not argue mistaken identity or that he was not the owner of General Title or
Riviera Funding.
{¶64} Moreover, even if the records were excluded, other overwhelming admissible
evidence was presented to support Lenard’s convictions. Accordingly, any error would be
harmless. See Crim.R. 52(A) (“any error, defect, irregularity, or variance which does not affect
substantial rights shall be disregarded”); State v. Williams, 6 Ohio St. 3d 281, 290, 452 N.E.2d
1323 (1983) (a reviewing court may overlook an error where the remaining admissible evidence,
standing alone, constitutes “overwhelming” proof of a defendant’s guilt). Lenard’s fifth
assignment of error is overruled.
VII. Discovery Violation
{¶65} Saydeh testified during trial that he was shown photographs of Lenard through an
email with a detective. At side-bar, defense counsel indicated that the emails between Detective
Baumgartner and Saydeh were not provided to him through discovery. Accordingly, counsel
requested that either Saydeh’s testimony be stricken or a mistrial be granted. Following the
discussion, it was apparent that the prosecutor was also unaware of the email correspondence.
Copies of the emails in which Saydeh made a photo identification of Lenard and compared his
signatures were provided to the defense. The trial court determined that the least restrictive
sanction for the discovery violation was a continuance, and asked defense counsel how much
time he needed to review the documents and prepare. Counsel indicated he did not need
additional time and withdrew the motion, but reiterated his dissatisfaction with the detective
about withholding the information from all parties.
{¶66} In his sixth assignment of error, Lenard contends that the trial court erred by
denying his request to dismiss or strike Saydeh’s testimony based on the Crim.R. 16 violation.
Because the motion for a mistrial or to strike the testimony was withdrawn, the assignment of
error will be reviewed for plain error. In order to prevail under a plain error analysis, the
appellant bears the burden of demonstrating that the outcome of the trial clearly would have been
different but for the error. State v. Long, 53 Ohio St. 2d 91, 97, 372 N.E.2d 804 (1978). Notice
of plain error “is to be taken with the utmost caution, under exceptional circumstances and only
to prevent a manifest miscarriage of justice.” Id. at paragraph three of the syllabus; Crim.R.
52(B).
{¶67} In this case, the trial court did not commit plain error. First, counsel withdrew his
motion after reviewing the emails. Additionally, the court offered counsel time to review the
documents and prepare accordingly; counsel declined the continuance. Finally, Lenard fails to
demonstrate that the outcome of the trial clearly would have been different. The emails between
the detective and Saydeh contained a photo identification and signature comparisons —
identifications that Saydeh also made at trial. Accordingly, Lenard’s sixth assignment of error is
overruled.
VIII. Restitution Order
{¶68} Lenard contends in his seventh assignment of error that the trial court erred by
ordering restitution that is not supported by evidence of actual economic loss.
{¶69} A trial court has discretion to order restitution in an appropriate case and may base
the amount it orders on a recommendation of the victim, the offender, a presentence investigation
report, estimates or receipts indicating the cost of repairing or replacing property, and other
information, but the amount ordered cannot be greater than the amount of economic loss suffered
as a direct and proximate result of the commission of the offense. R.C. 2929.18(A)(1). A trial
court is required to conduct a hearing on restitution only if the offender, victim, or survivor
disputes the amount of restitution ordered. Id.; State v. Lalain, 136 Ohio St. 3d 248,
2013-Ohio-3093, 994 N.E.2d 423, ¶ 27
{¶70} Prior to ordering restitution, “a sentencing court must engage in a ‘due process
ascertainment that the amount of restitution bears a reasonable relationship to the loss suffered.’”
State v. McLaurin, 8th Dist. Cuyahoga No. 103068, 2016-Ohio-933, ¶ 13, quoting State v.
Borders, 12th Dist. Clermont No. CA2004-12-101, 2005-Ohio-4339, ¶ 36. “The court must
determine the amount of restitution to a reasonable degree of certainty, ensuring that the amount
is supported by competent, credible evidence.” McLaurin at ¶ 13, citing State v. Warner, 55
Ohio St. 3d 31, 69, 564 N.E.2d 18 (1990). Although the decision to impose restitution is
discretionary with the court, its determination of the amount of loss is a factual question that we
review under the competent, credible evidence standard. State v. Warner, 55 Ohio St. 3d 31, 69,
564 N.E.2d 18 (1990); State v. Didion, 173 Ohio App. 3d 130, 2007-Ohio-4494, 877 N.E.2d 725,
¶ 20 (3d Dist.).
{¶71} Lenard objected at sentencing to the restitution order, contending that no
documentation was presented to the court during sentencing to support the restitution order. On
appeal, Lenard makes a general statement, without explanation, that the restitution order does not
bear a reasonable relationship to the actual loss suffered.
{¶72} Our review of the record demonstrates that the court considered trial testimony
regarding the amounts paid to Lenard for the purchase of real estate. In State v. Kingsbury, 8th
Dist. Cuyahoga No. 102973, 2016-Ohio-590, this court reviewed a restitution order that was
based on evidence not presented at a restitution hearing but on the testimony and documentary
evidence presented at trial. Therefore, as long as competent and credible evidence was
presented during trial upon which a restitution order could be based, a separate restitution hearing
may not be required.
{¶73} Nevertheless, we find that the restitution amount is not supported by the record,
and that the court did not consider Lenard’s ability to pay. In Kingsbury, this court concluded
that competent and credible evidence was presented to support a restitution award, but the
amount of restitution was not supported by the record. Id. at ¶ 18. This court found that this
unsupported amount, albeit likely a mathematical error, coupled with the trial court’s failure to
consider Kingsbury’s present and future ability to pay the restitution ordered, amounted to plain
error. Id. at ¶ 20.
{¶74} In this case, the documentation at trial showed that the Bentleys issued three
separate checks totaling $13,771 to entities owned by Lenard. The evidence demonstrated that
Lenard deposited those checks into his respective business accounts. However, the evidence
also showed that a cashier’s check was presented to Blanche in the amount of $400 allegedly
from Saydeh. Additionally, testimony was presented that the Bentleys spent approximately
$4,000 in renovating the property. These amounts, if deemed relevant, were not considered by
the trial court in making the restitution order.
{¶75} Additionally, although Matic testified that he paid AMC Financial $27,000 towards
the purchase of the Parma property, the documentation at trial showed that Matic issued
numerous personal checks totaling only $11,000, and a cashiers check to Cleveland Title Agency
for $15,150. Additionally, the land contract depicts that an additional $100 deposit was paid.
When added together, these amounts do not equal the restitution order of $27,000. Moreover,
additional evidence was presented that Matic had to purchase the property from the bank in
order to obtain ownership. Whether Matic suffered any additional economic loss as a direct and
proximate cause of the commission of Lenard’s offenses during this subsequent purchase was not
considered.
{¶76} Finally, the trial court failed to consider Lenard’s present and future ability to pay
prior to ordering restitution as required pursuant to R.C. 2929.18. This court has previously held
that a court’s failure to make this consideration amounts to plain error. See, e.g., State v. Burns,
8th Dist. Cuyahoga No. 95465, 2011-Ohio-4230. We recognize that this issue was not raised on
appeal; however, because the record does not support the trial court’s restitution order and the
issue of restitution will be revisited on remand, this court finds that the trial court’s failure to
make this consideration is further grounds for reversal.
{¶77} Accordingly, the assignment of error is sustained. The restitution orders are
vacated, and the cases are remanded to the trial court to conduct a restitution hearing and
consider Lenard’s present and future ability to pay.
IX. Consecutive Sentences
{¶78} In his eighth assignment of error, Lenard contends that his sentence is contrary to
law and that consecutive sentences were not properly imposed.
A. Contrary to Law
{¶79} Our review of felony sentences is governed by R.C. 2953.08(G)(2), which allows
“an appellate court [to] vacate or modify a felony sentence on appeal only if it determines by
clear and convincing evidence that the record does not support the trial court’s findings under
relevant statutes or that the sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio
St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, 21. A sentence is not clearly and convincingly
contrary to law “where the trial court considers the purposes and principles of sentencing under
R.C. 2929.11 as well as the seriousness and recidivism factors listed in R.C. 2929.12, properly
applies post-release control, and sentences a defendant within the permissible statutory range.”
State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 10.
{¶80} Lenard’s sentences are not contrary to law. In CR-15-599742, he was sentenced to
12-month concurrent sentences on each of Counts 1, 3, and 4, all felonies of the fourth degree.
A 12-month sentence is within the permissible range for fourth-degree offenses. R.C.
2929.14(A)(4).
{¶81} Additionally, the sentence is not contrary to law because the trial court stated on
the record that it considered all relevant seriousness and recidivism factors (tr. 1066) and the
court included in its sentencing journal entry in each case that it considered all required factors
and that prison is consistent with the purpose of R.C. 2929.11. See, e.g., State v. Kamleh, 8th
Dist. Cuyahoga No. 97092, 2012-Ohio-2061, ¶ 61, citing State v. Payne, 114 Ohio St. 3d 502,
2007-Ohio-4642, 873 N.E.2d 306, ¶ 18 (trial court’s statement that it considered the required
statutory factors, without more, is sufficient to fulfill its obligations under the sentencing
statutes). Accordingly, the trial court’s sentence is not contrary to law.
B. Consecutive Sentences
{¶82} Consecutive sentences may be imposed only if the trial court makes the required
findings pursuant to R.C. 2929.14(C)(4). State v. Bonnell, 140 Ohio St. 3d 209,
2014-Ohio-3177, 16 N.E.3d 659, ¶ 20-22. Under the statute, consecutive sentences may be
imposed if the trial court finds that (1) consecutive sentences are necessary to protect the public
from future crime or to punish the offender, and (2) consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses
to the public. In addition, the court must find that any of the following applies:
(1) the offender committed one or more of the multiple offenses while awaiting
trial or sentencing, while under a sanction, or while under postrelease control for a
prior offense;
(2) at least two of the multiple offenses were committed as part of one or more
courses of the conduct, and the harm caused by two or more of the offenses was
so great or unusual that no single prison term for any of the offenses committed as
part of the courses of conduct adequately reflects the seriousness of the offender’s
conduct; or
(3) the offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the offender.
{¶83} In order to impose consecutive sentences, the trial court must both make the
statutory findings mandated under R.C. 2929.14(C)(4) at the sentencing hearing and incorporate
those findings into its sentencing entry. Bonnell at the syllabus.
{¶84} In this case, the record reflects that the trial court both made the statutory findings
at the sentencing hearing and incorporated those findings into the sentencing entry. However,
Lenard does not challenge whether the court made the findings, but rather contends they are
unsupported by the record. Specifically, he contends that the record does not support that the
harm was so great or unusual because (1) the victims voluntarily signed the documents that
disclosed the liens and foreclosure actions; (2) any “alleged harm * * * was preventable by
reading the documents”; and (3) Blanche paid only $13,000 for a house that had a much higher
market value. These arguments are absurd.
{¶85} Lenard chose to hold himself out as a person who had the authority to market and
sell these properties. But for his deceitful actions, the victims would not have been harmed.
Moreover, the Bentleys paid $13,000 for a house that they never owned, still do not own, and is
not in their possession; the market value of the house is irrelevant. Accordingly, Lenard’s
sentence is not contrary to law and consecutive sentences were properly imposed. The
assignment of error is overruled.
{¶86} Judgment affirmed in part, vacated in part, and remanded to the trial court to
conduct a restitution hearing and consider Lenard’s present and future ability to pay at that
hearing.
It is ordered that the parties share equally the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution. The defendant’s conviction having been affirmed,
any bail pending appeal is terminated. Case remanded to the trial court for execution of
sentence and a restitution hearing.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
EILEEN T. GALLAGHER, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR