State v. Pettus , 2019 Ohio 2023 ( 2019 )

[Cite as State v. Pettus, 2019-Ohio-2023.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-170712
TRIAL NO. B-1605805
Plaintiff-Appellee, :
O P I N I O N.
vs. :
LASHAWN PETTUS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Sentences Vacated in Part, and
Cause Remanded
Date of Judgment Entry on Appeal: May 24, 2019
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Anzelmo Law and James A. Anzelmo, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} Defendant-appellant Lashawn Pettus appeals the trial court’s
judgment convicting him of 11 counts of forgery and four counts of theft.
{¶2} He argues that the trial court erred by denying his motion to dismiss
the theft counts in his indictment; that the trial court erred by allowing the
prosecutor to engage in improper conduct; that his convictions were not supported
by sufficient evidence and were against the manifest weight of the evidence; and that
the trial court erred in the imposition of sentence.
{¶3} We hold that the trial court erred in imposing consecutive sentences
without making the requisite findings at Pettus’s sentencing hearing, and we vacate
that portion of Pettus’s sentence and remand for resentencing. We otherwise affirm
the trial court’s judgment.
Factual and Procedural Background
{¶4} From June 18, 2016, through July 8, 2016, Pettus opened accounts and
uttered checks at four separate banks, specifically Fifth Third Bank, Huntington
Bank, US Bank, and PNC Bank. All the checks uttered by Pettus were ultimately
rejected as fraudulent due to an invalid routing number, and the banks were unable
to process them. Before the banks discovered that the checks were fraudulent, Pettus
made various cash withdrawals from his accounts at each bank, and he purchased
money orders from one of the banks. The fraudulent checks were the source of the
funds for all the transactions. During the time that he engaged in this conduct,
Pettus resided at the Talbert House while on transitional control after being released
from prison for unrelated offenses.
{¶5} Pettus was indicted for 12 counts of forgery in violation of R.C.
2913.31(A)(3) and four counts of theft in violation of R.C. 2913.02(A)(3). All
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individual counts of theft that had been committed against each bank were
aggregated and charged as a single offense pursuant to R.C. 2913.61(C)(1). Pettus
filed a motion to dismiss all theft counts in his indictment. He argued that they were
improperly aggregated into one offense because R.C. 2913.61(C)(1) only permitted
aggregation where the victim of the theft offenses was an elderly person, disabled
adult, or military person, and where the offenses were committed by an offender in
the offender’s employment, capacity, or relationship to the victim. The trial court
denied Pettus’s motion.
{¶6} Pettus additionally filed a motion in limine to prevent the state from
introducing any evidence of his prior convictions and any information related to his
being on transitional control. Pettus asked the trial court to prohibit any witnesses
from the Talbert House from testifying that he had been allowed to leave the Talbert
House for what he reported to be employment purposes or for other preapproved
reasons, where those approved leave times aligned with dates and times when the
charged offenses had been committed. In ruling on the motion in limine, the trial
court stated:
I see no connection between lying to Talbert House in the morning and
uttering forged checks during the day. I’m not saying none of the
testimony from Talbert House is going to be relevant. The fact that he
wasn’t there has some probative value, I think. But the lying there
doesn’t have any bearing on whether he committed these crimes. And
I think Rule 404 would prohibit any such inference from those lies
about where he was going to be today to the conduct that’s at issue in
this case.
* * *
Now, in terms of the fact he was in Talbert House, [defense counsel], I
don’t think that there is any issue, any risk of the Court being
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OHIO FIRST DISTRICT COURT OF APPEALS
prejudiced if we go to a bench trial. * * * So I don’t think I’ll draw any
inference from the fact he was in Talbert House accidentally [sic].
* * *
To that extent, the motion is overruled, but to the extent that what’s
involved here is evidence of lies at one point in the day to prove lies at
a later point in the day, I’m not going to permit that argument to be
made or the evidence to be offered * * *.
* * *
At least preliminarily you have my ruling. Of course it is a preliminary
ruling as in all in limine motions are rulings.
{¶7} Pettus’s case was tried to the bench. The state presented extensive
testimony regarding Pettus’s transactions with each bank.
{¶8} With respect to Fifth Third Bank, Pettus was charged with forgery in
counts one through five of the indictment and theft in count six of the indictment.
The evidence presented at trial established that Pettus opened an account at the
Calhoun Branch of Fifth Third Bank on June 18, 2016. Pettus deposited fraudulent
check #1997 for $4,500 and received $200 cash back that same day.
{¶9} The next day, June 19, 2016, Pettus deposited three separate checks at
a Fifth Third Bank branch located inside a Kroger grocery store on Kenard Avenue.
He deposited fraudulent check #1998 for $4,500, fraudulent check #1995 for
$2,500, and fraudulent check #2000 for $2,500. He withdrew no funds that day.
{¶10} On June 20, 2016, at the University branch of Fifth Third Bank, Pettus
deposited fraudulent check #2018 for $750, and he received $200 cash back.
{¶11} And on June 21, 2016, also at the University branch of Fifth Third
Bank, Pettus withdrew $1,497 and purchased three money orders in the amount of
$1,500 each. Later that same day, at a Fifth Third Bank branch located on West
Eighth Street, Pettus withdrew $2,850.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} Each of these transactions was captured on Fifth Third’s surveillance
videos, which were admitted into evidence and played for the court.
{¶13} Fifth Third discovered that the checks deposited by Pettus were
fraudulent when the checks were rejected for having an invalid routing number after
being sent to processing. The routing number on the checks was an Automated
Clearing House routing number, which cannot be used to present physical checks.
All five fraudulent checks uttered at Fifth Third by Pettus purported to be drawn on
the United States Treasury. And, but for the last digit, the account number on all the
checks was identical to the social security number that Pettus had given the bank.
{¶14} As a result of Pettus’s fraudulent transactions, Fifth Third suffered a
total loss of $4,747.
{¶15} With respect to Huntington Bank, Pettus was charged with forgery in
count seven of the indictment and theft in count eight of the indictment. The state
introduced evidence showing that, on June 23, 2016, Pettus opened a bank account
at Huntington Bank’s Westwood branch. Pettus did not make an initial deposit when
opening the account, but later that same day, at a Huntington Bank branch on
Harrison Avenue, he deposited fraudulent check #2019 for $7,500. As was the case
with the checks at Fifth Third, that check purported to be drawn on the United States
Treasury. And again, but for the last digit, the account number on the check was
identical to the social security number that Pettus had given the bank.
{¶16} The next day, June 24, 2016, at a Huntington Bank Branch in
Covington, Kentucky, Pettus withdrew $500 from his account. And on June 28,
2016, Pettus made a $900 cash deposit into his account at a Huntington Bank
branch on Vine Street. Then on June 29, 2016, at the Westwood branch of
Huntington Bank, Pettus made two separate cash withdrawals of $380 and $420.
{¶17} The check that Pettus had deposited on June 23 was not honored and
was returned to the bank as fraudulent. As a result of Pettus’s fraudulent
transactions, Huntington Bank suffered a $400 loss. With the exception of the $900
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OHIO FIRST DISTRICT COURT OF APPEALS
cash deposit, Pettus’s transactions were captured on surveillance videos, which were
admitted into evidence and played for the court. A still photograph of Pettus making
the cash deposit was also entered into evidence.
{¶18} As to US Bank, Pettus was charged with forgery in counts nine through
13 of the indictment and theft in count 14 of the indictment. The evidence presented
at trial established that, on June 25, 2016, Pettus opened an account at the Clifton
branch of US Bank. He deposited fraudulent check #2002 for $500, and he received
$200 cash back. Later that same day, at the bank’s University branch, he deposited
fraudulent check #2025 in the amount of $4,527 and received $200 cash back.
{¶19} The next day, June 26, 2016, at a US Bank branch located in Newport,
Kentucky, Pettus deposited fraudulent check #2029 for $4,830 and received $200
cash back.
{¶20} On June 27, 2017, at the Queensgate branch of US Bank, Pettus
deposited fraudulent check #2021 for $4,485 and received $185 cash back. He also
deposited fraudulent check #2027 for $3,892 and received $200 cash back from the
Over The Rhine branch of US Bank.
{¶21} Pettus made two separate cash withdrawals from his US Bank account
on June 28, 2016. He withdrew $6,500 from a branch located at Fifth and Walnut
Streets, and he withdrew $5,500 from the Queensgate branch. All of Pettus’s
transactions at US Bank were captured on surveillance videos, which were admitted
into evidence and played for the trial court.
{¶22} Again, each fraudulent check uttered by Pettus to US Bank purported
to be drawn on the United States Treasury, and, but for the last digit, the account
number on all the checks was identical to the social security number that Pettus had
given the bank. US Bank sent the checks to the Federal Reserve for processing based
on their routing number. The bank received notice that the checks were non-
cashable items, meaning that either the routing number or account number on the
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OHIO FIRST DISTRICT COURT OF APPEALS
checks was not legitimate, and they were returned to the bank unpaid. As a result of
Pettus’s fraudulent transactions, US Bank suffered a total loss of $12,985.
{¶23} Lastly, as to PNC Bank, Pettus was charged with forgery in count 15 of
the indictment and theft in count 16 of the indictment. The evidence presented at
trial established that on July 6, 2016, Pettus opened an account with PNC Bank at its
University branch. He deposited fraudulent check #72789 for $3,500. On July 8,
2016, at the Fourth Street branch of PNC Bank, Pettus made a $2,000 cash
withdrawal. Still photographs of Pettus engaging in these transactions were
admitted into evidence.
{¶24} PNC Bank received notice that the check deposited by Pettus was a
nonnegotiable instrument with an invalid routing number. The check purported to
be drawn on the United States Treasury. And, as with the other bank transactions,
the account number on the check was nearly identical to the social security number
that Pettus had provided to the bank, except the account number began with the
digits “10” and was missing the last digit of Pettus’s social security number. PNC
Bank’s senior investigator described this similarity as unusual. PNC Bank suffered a
total loss of $2,000 from Pettus’s fraudulent transactions.
{¶25} The routing number on each fraudulent check uttered by Pettus
belonged to a government agency, specifically the Defense Finance and Accounting
Service (“DFAS”), which is a subdivision of the Department of Defense. DFAS
employee Shane Zigler testified that DFAS performs accounting and finance services
for all branches of the armed services. He explained that DFAS disburses funds in
two methods: through paper check transactions and through electronic funds
transfers. Electronic funds transfers are processed through the Automated Clearing
House (“ACH”), which is a product of the Federal Reserve Bank.
{¶26} Zigler explained that a routing number is necessary to effectuate
payments through the ACH, and that his DFAS office, located in Cleveland, has its
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OHIO FIRST DISTRICT COURT OF APPEALS
own routing number to disburse its transactions through the ACH. ACH routing
numbers can only be used for electronic funds transfers.
{¶27} Zigler testified that he had examined the 12 checks uttered by Pettus,
and that the checks contained an ACH routing number belonging to DFAS, which
could never be used to process a physical check. Zigler further testified that the
checks uttered by Pettus did not resemble a real United States Treasury check. He
described certain features of real Treasury checks, including a seal and an image of
the Statue of Liberty, and he explained that these necessary features were absent on
the checks uttered by Pettus. Zigler identified the stated maker of the checks uttered
by Pettus as “International Bill of Exchange, Shawn R. Pettus-Brown, Secured Party,
Prime Creditor” and “PB Ohio Trust, Shawn Brown.” He testified that neither of
these makers have authority to draw on DFAS accounts using DFAS routing numbers
or to issue their own United States Treasury check, and that he had found no records
authorizing Pettus to receive funds through DFAS.
{¶28} In addition to this testimony concerning Pettus’s transactions with the
banks, the state presented the testimony of Talbert House employee Mollie Minelli.
Minelli testified that she was Pettus’s case manager while he stayed at the Talbert
House. She explained that the Talbert House had certain restrictions on when
residents could leave the facility and that prior approval to leave was necessary. She
identified a log containing the times that Pettus had checked in and out of the Talbert
House and his listed reasons for doing so. The log indicated that Pettus had been
signed out to go to work, church, and the gym on the days and times that the
fraudulent transactions had occurred.
{¶29} At the conclusion of the bench trial, the trial court dismissed count 11
of the indictment, which was a charge of forgery against US Bank, for lack of
jurisdiction. But it otherwise found Pettus guilty of all remaining offenses. Prior to
the imposition of sentence, Pettus argued that various offenses were required to
merge at sentencing because they were allied offenses of similar import. Specifically,
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OHIO FIRST DISTRICT COURT OF APPEALS
he argued that the forgeries committed against Fifth Third Bank in counts one and
five of the indictment merged with the theft committed against Fifth Third Bank in
count six of the indictment; that the forgeries committed against US Bank in counts
nine, 10, 12, and 13 of the indictment merged with the theft committed against US
Bank in count 14 of the indictment; and that the forgeries committed against Fifth
Third Bank in counts two, three, and four of the indictment merged with each other.
In summary, he argued that in cases where funds were withdrawn at the same time
as the deposit, the forgeries and thefts should merge. The trial court rejected Pettus’s
merger argument.
{¶30} With respect to the offenses committed against Fifth Third Bank,
Pettus was sentenced to 12 months’ imprisonment on the forgeries charged in counts
one through five of the indictment and 18 months’ imprisonment on the theft
charged in count six of the indictment. As to the charges against Huntington Bank,
Pettus was sentenced to six months’ imprisonment on the forgery charged in count
seven of the indictment, and to 180 days’ incarceration in the Hamilton County
Justice Center on the theft charged in count eight of the indictment. With respect to
the offenses committed against US Bank, Pettus was sentenced to 12 months’
imprisonment on the forgeries charged in counts nine, 10, 12, and 13 of the
indictment, and 18 months’ imprisonment on the theft charged in count 14 of the
indictment. Last, as to the offenses committed against PNC Bank, Pettus was
sentenced to 12 months’ imprisonment for each of the forgery charged in count 15 of
the indictment and the theft charged in count 16 of the indictment.
{¶31} The sentences for the forgeries committed against each bank were
made concurrent to each other and to their corresponding theft conviction. But each
group of concurrent sentences was made consecutive to each other, resulting in an
aggregate sentence of 60 months’ imprisonment.
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OHIO FIRST DISTRICT COURT OF APPEALS
Aggregation under R.C. 2913.61
{¶32} In his first assignment of error, Pettus argues that the trial court erred
by denying his motion to dismiss the theft counts in his indictment. We review de
novo the trial court’s denial of Pettus’s motion to dismiss. State v. Thompson, 1st
Dist. Hamilton No. C-130053, 2013-Ohio-2647, ¶ 4.
{¶33} Pettus was indicted on four counts of theft under R.C. 2913.02(A)(3).
Pursuant to R.C. 2913.61(C)(1), the state aggregated all individual thefts that had
been committed against each bank into a single count of theft relating to that bank.
R.C. 2913.61(C)(1) provides that:
When a series of offenses under section 2913.02 of the
Revised Code, or a series of violations of, attempts to commit a
violation of, conspiracies to violate, or complicity in violations
of division (A)(1) of section 1716.14, section 2913.02, 2913.03,
or 2913.04, division (B)(1) or (2) of section 2913.21, or section
2913.31 or 2913.43 of the Revised Code involving a victim
who is an elderly person or disabled adult, is committed by the
offender in the offender’s same employment, capacity, or relationship
to another, all of those offenses shall be tried as a single offense. When
a series of offenses under section 2913.02 of the Revised Code, or a
series of violations of, attempts to commit a violation of, conspiracies
to violate, or complicity in violations of section 2913.02 or 2913.43 of
the Revised Code involving a victim who is an active duty service
member or spouse of an active duty service member is committed by
the offender in the offender’s same employment, capacity, or
relationship to another, all of those offenses shall be tried as a single
offense. The value of the property or services involved in the series of
offenses for the purpose of determining the value as required by
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OHIO FIRST DISTRICT COURT OF APPEALS
division (A) of this section is the aggregate value of all property and
services involved in all offenses in the series.
(Emphasis added.)
{¶34} Pettus argues that R.C. 2913.61(C)(1) only permits aggregation when
the victim of theft offenses is an elderly person, disabled adult, or military person.
He relies on State v. Phillips, 12th Dist. Clinton No. CA2009-03-001, 2010-Ohio-
2711, to support his argument. In Phillips, the defendant had stolen 18 different
items from 13 different victims, but was only indicted for a single theft offense in
which the value of all stolen items was aggregated. Id. at ¶ 67-68. The Twelfth
District held that R.C. 2913.61(C)(1) did not allow for aggregation of the theft
offenses because it “is limited to thefts involving elderly or disabled victims, through
the offender’s employment, capacity, or relationship with another.” Id. at ¶ 72.
{¶35} But the Eighth District has applied R.C. 2913.61(C)(1) to allow
aggregation of theft offenses in situations not involving elderly persons or disabled
adults. State v. Williams, 8th Dist. Cuyahoga No. 91167, 2009-Ohio-732, ¶ 11
(holding that aggregation under R.C. 2913.61(C)(1) was proper where the defendant
had stolen multiple items from the same store over a period of several days).
{¶36} R.C. 2913.61(C)(1) is not ambiguous. A plain reading of the statute,
based on the legislature’s use of commas separating the clause concerning elderly
persons or disabled adults that is emphasized above, clearly indicates that theft
offenses under R.C. 2913.02 committed by an offender in the offender’s same
employment, capacity, or relationship to another shall be aggregated. The clause
requiring that the victim of the offenses be an elderly person or disabled adult is
limited to violations of R.C. 2913.31 and 2913.43.
{¶37} The legislative history of R.C. 2913.61 supports our interpretation. The
language in R.C. 2913.61(C)(1) pertaining to victims who are elderly persons or
disabled adults was added to the statute in 1999 Am.Sub.H.B. No. 2. Prior to the
inclusion of that language, the statute read “[w]hen a series of offenses under section
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OHIO FIRST DISTRICT COURT OF APPEALS
2913.02 of the Revised Code is committed by the offender in the offender’s same
employment, capacity, or relationship to another, all of those offenses shall be tried
as a single offense.” The statute thus permitted aggregation of theft offenses under
R.C. 2913.02 before it permitted aggregation of violations of R.C. 2913.31 and
2913.43 involving victims who were elderly persons or disabled adults.
{¶38} The language in R.C. 2913.61(C)(1) permitting aggregation of certain
offenses involving victims who are military persons was subsequently added to the
statute in 2014 Am.Sub.H.B. 488, and it does not detract from the requirement that
a series of theft offenses under R.C. 2913.02, committed in the offender’s same
employment, capacity, or relationship to another, shall be aggregated.
{¶39} We hold that R.C. 2913.61(C)(1) does not limit the aggregation of theft
offenses under R.C. 2913.02 to theft offenses involving victims who are elderly
persons, disabled adults, or military persons, and that the trial court did not err in
denying Pettus’s motion to dismiss.
{¶40} The first assignment of error is overruled.
Prosecutorial Misconduct
{¶41} In his second assignment of error, Pettus argues that the trial court
erred by allowing the prosecutor to engage in misconduct.
{¶42} Prosecutorial misconduct “will not provide a basis for overturning a
conviction unless, on the record as a whole, the misconduct can be said to have
deprived the defendant of a fair trial.” State v. Smith, 1st Dist. Hamilton No. C-
170335, 2018-Ohio-4615, ¶ 19, citing State v. McKelton, 148 Ohio St. 3d 261, 2016-
Ohio-5735, 70 N.E.3d 508, ¶ 257. A prosecutor’s remarks or actions will only
mandate reversal if they were improper and they prejudicially affected substantial
rights of the accused. Id., citing State v. Smith, 97 Ohio St. 3d 367, 2002-Ohio-6659,
780 N.E.2d 221, ¶ 45.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶43} Pettus first argues that the prosecutor disregarded the trial court’s
partial granting of his motion in limine by introducing testimony from witness Mollie
Minelli regarding his prior felony convictions for white-collar crime and his
placement on transitional control.
{¶44} Because this was a bench trial, we presume that the trial court only
considered relevant evidence and did not consider improper evidence. State v.
Pennington, 1st Dist. Hamilton Nos. C-170199 and C-170200, 2018-Ohio-3640, ¶ 46.
{¶45} The trial court’s initial ruling on Pettus’s motion in limine, which was
limited to prohibiting the state from using Pettus’s lies in one part of the day to show
that he lied in another part of the day, was “a tentative, interlocutory, precautionary
ruling by the trial court reflecting its anticipatory treatment of the evidentiary issue.”
State v. Grubb, 28 Ohio St. 3d 199, 201-202, 503 N.E.2d 142 (1986); State v.
Morales, 1st Dist. Hamilton No. C-120670, 2014-Ohio-362, ¶ 27. The propriety of a
court’s ruling on a motion in limine need not be reviewed on appeal unless the
claimed error was preserved by a timely objection when the issue was reached during
trial. Grubb at 203, citing State v. Leslie, 14 Ohio App. 3d 343, 344, 471 N.E.2d 503
(2d Dist.). Here, Pettus never objected at trial to any testimony offered by Minelli.
Consequently, we review for plain error. See State v. Finley, 1st Dist. Hamilton No.
C-061052, 2010-Ohio-5203, ¶ 34.
{¶46} Contrary to Pettus’s argument, Minelli never testified that Pettus had
been on transitional control or that he had prior felony convictions. She explained
that she was Pettus’s case manager while he resided at the Talbert House, and her
testimony focused on explaining when Pettus had been given permission to leave the
Talbert House and what reason he had provided for doing so. This testimony was
used to establish Pettus’s identity as the perpetrator of the offenses, and not for the
purpose that the trial court had previously prohibited. Minelli’s testimony did not
deprive Pettus of a fair trial and its admission was not plain error.
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{¶47} Pettus additionally argues that the prosecutor committed misconduct
by asking improper leading questions of its own witnesses. But Pettus fails to cite a
single example in the record of where such an allegedly improper question was
asked.
{¶48} Pursuant to App.R. 16(A)(3), an appellate brief must contain “[a]
statement of the assignments of error presented for review, with reference to the
place in the record where each error is reflected.” App.R. 16(A)(7) further provides
that the brief must contain “[a]n argument containing the contentions of the
appellant with respect to each assignment of error presented for review and the
reasons in support of the contentions, with citations to the authorities, statutes, and
parts of the record on which appellant relies.”
{¶49} Pettus has provided no reference to the place in the record where the
alleged error is reflected, and we decline to go through the record and determine
whether any question asked by the prosecutor was an improper leading question.
See State v. Wallace, 1st Dist. Hamilton No. C-160613, 2017-Ohio-9187, ¶ 54 (where
the defendant argued that certain text messages of the victim that had been admitted
into evidence contained hearsay, but failed to identify which text messages were
being challenged, the court declined to examine all the text messages to determine
whether they contained hearsay).
{¶50} The second assignment of error is overruled.
Weight and Sufficiency
{¶51} In his third assignment of error, Pettus challenges the weight and the
sufficiency of the evidence supporting his convictions.
{¶52} In a challenge to the sufficiency of the evidence, the question is
whether after reviewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found all the essential elements of the crime
beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492
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(1991), paragraph two of the syllabus. But when considering a challenge to the
weight of the evidence, the court must examine the entire record, weigh the evidence
and all reasonable inferences, consider the credibility of the witnesses, and
determine whether, in resolving conflicts in the evidence, the court clearly lost its
way and created a manifest miscarriage of justice. State v. Thompkins, 78 Ohio St. 3d
380, 387, 678 N.E.2d 541 (1997).
{¶53} Pettus was convicted of theft pursuant to R.C. 2913.02(A)(3), which
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 *
* * [b]y deception.” And he was convicted of forgery pursuant to R.C. 2913.31(A)(3),
which provides that “[n]o 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.”
{¶54} The evidence presented at trial established that Pettus opened
accounts at four separate banks. Over a short period of time, he deposited multiple
fraudulent checks into the accounts. Because the checks contained an invalid routing
number, they could not be processed. Pettus then withdrew cash from the accounts,
for which the fraudulent checks were the source of the funds. The fraudulent checks
all purported to be drawn on the United States Treasury, but did not contain any of
the necessary features found on a real United States Treasury check. Unusually and
uncommonly, the account number on all of the checks was nearly identical to the
social security number that Pettus had provided as his to the banks. And the paper
checks uttered by Pettus contained an ACH routing number belonging to DFAS that
was used solely for electronic funds transfers. Pettus had no authority to receive
funds from DFAS, and the stated makers on the checks uttered by Pettus had no
authority to write checks on the account.
{¶55} Viewed in the light most favorable to the prosecution, the evidence
established beyond a reasonable doubt that Pettus had knowingly committed theft by
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deception and had, with the purpose to defraud, uttered checks that he knew to have
been forged. See Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492, at paragraph two of the
syllabus. Nor was this the rare case in which the trier of fact lost its way and
committed such a manifest miscarriage of justice in convicting Pettus that his
convictions must be reversed. See Thompkins, 78 Ohio St. 3d at 387, 678 N.E.2d 541.
We accordingly find that Pettus’s convictions were supported by both the weight and
the sufficiency of the evidence.
{¶56} Pettus raises specific challenges to several of his convictions. He
argues that the trial court did not have jurisdiction to convict him of theft against
Huntington Bank in count eight of the indictment because a portion of the theft
occurred in Kentucky. With respect to that charge, the record established that after
opening an account and depositing a fraudulent check at Huntington Bank branches
in Ohio, Pettus then withdrew $500 from his account at a branch of the bank in
Covington, Kentucky. Within a period of days, he deposited $900 cash into his
account, and then made two separate withdrawals of $380 and $420. Except for the
$500 withdrawal, all other transactions occurred in Ohio.
{¶57} R.C. 2901.11(A)(1) provides that a person is subject to criminal
prosecution and punishment in Ohio if any element of a committed offense took
place in the state. As set forth above, the theft alleged in count eight of the
indictment took place in both Kentucky and Ohio, and consequently, Pettus was
subject to prosecution in Ohio. See State v. Campa, 1st Dist. Hamilton No. C-
010254, 2002 WL 471174 (Mar. 29, 2002).
{¶58} With respect to count eight, Pettus further argues that the $900 cash
deposit into his Huntington Bank account negated any possible theft offense. This
argument is without merit. Pettus deposited a fraudulent check in the amount of
$7,500 into his account at Huntington Bank. He then withdrew $500, $380, and
$420 from his account in three separate transactions. The $900 cash deposit
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OHIO FIRST DISTRICT COURT OF APPEALS
lessened the amount of the bank’s financial loss, but Pettus still stole $400 from the
bank.
{¶59} Pettus contends that because neither the teller at Fifth Third Bank to
whom he had uttered fraudulent check #2018, nor the teller at US Bank from whom
he had withdrawn $6,500 could positively identify him as the person who had
engaged in those transactions, his corresponding convictions must be reversed.
Despite Pettus’s assertion, the record indicates that while the US Bank teller initially
expressed hesitation about being able to identify Pettus in person, she then positively
identified him in the courtroom. Both of these transactions were captured on video
and played for the trial court. The record contained sufficient evidence from which
the trial court could have determined that Pettus had committed these offenses.
{¶60} Pettus additionally contends that because the amount alleged to have
been taken in the theft committed against Fifth Third Bank in count six of the
indictment was $7,500, he could only have been convicted of a felony of the fifth
degree. Pettus is mistaken. R.C. 2913.02(B)(2) provides that “[i]f the value of the
property or services stolen is seven thousand five hundred dollars or more and is less
than one hundred fifty thousand dollars, a violation of this section is grand theft, a
felony of the fourth degree.” Pettus was properly convicted of theft as a felony of the
fourth degree.
{¶61} Finding no merit to the arguments raised by Pettus, we hold that his
convictions for forgery and theft were supported by the sufficiency and the weight of
the evidence. The third assignment of error is overruled.
Sentencing
{¶62} In his fourth and fifth assignments of error, Pettus challenges the
sentences imposed by the trial court. Because these assignments of error are related,
we address them together.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶63} Pursuant to R.C. 2953.08(G)(2)(a), we may modify or vacate a
defendant’s sentence only if we clearly and convincingly find that the record does not
support the mandatory sentencing findings or that the sentence is contrary to law.
State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22-
23; State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 5 (1st Dist.).
1. Consecutive Sentences
{¶64} Pettus argues that the trial court erred by imposing consecutive
sentences without making the required statutory findings at the sentencing hearing.
{¶65} R.C. 2929.14(C) requires that a trial court make various findings
before imposing consecutive sentences. A trial court must make these mandated
findings at the sentencing hearing and incorporate the findings into the sentencing
entry. State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659,
syllabus. The trial court need not recite the findings verbatim, but a reviewing court
must be able to discern from the record that the court engaged in the requisite
analysis and determine that the record contains evidence to support the findings. Id.
at ¶ 29.
{¶66} The trial court in this case incorporated findings under R.C.
2929.14(C) into Pettus’s sentencing entry. It found that consecutive sentences were
necessary to protect the public and to punish Pettus, and were not disproportionate
the seriousness of Pettus’s conduct and to the danger Pettus posed to the public. It
further found that Pettus’s criminal history showed a need to protect the public from
future crime committed by Pettus.
{¶67} But the trial court failed to make these findings at the sentencing
hearing. It referenced Pettus’s criminal history at the sentencing hearing, but it
never found that consecutive sentences were necessary to protect the public from
future crime or to punish Pettus, or that consecutive sentences were not
disproportionate to the seriousness of Pettus’s conduct and to the danger he posed to
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OHIO FIRST DISTRICT COURT OF APPEALS
the public. See R.C. 2929.14(C)(4). Nor can these findings be discerned from the
trial court’s statements at the sentencing hearing. See Bonnell, 140 Ohio St. 3d 209,
2014-Ohio-3177, 16 N.E.3d 659, at ¶ 29.
{¶68} While the trial court made the necessary findings to support the
imposition of consecutive sentences on a sentencing worksheet, this was not
sufficient to comply with Bonnell. See State v. Rice, 1st Dist. Hamilton No. C-
140348, 2015-Ohio-5586, ¶ 15.
{¶69} We therefore hold that the trial court erred in imposing consecutive
sentences without making the required findings at the sentencing hearing.
2. R.C. 2929.11 and 2929.12
{¶70} Pettus further argues that the trial court failed to consider the
principles and purpose of sentencing in R.C. 2929.11 and the seriousness and
recidivism factors in R.C. 2929.12 before imposing sentence.
{¶71} We have consistently held that R.C. 2929.11 and 2929.12 are not fact-
finding statutes, and that, in the absence of an affirmative demonstration by the
defendant to the contrary, we may presume that the trial court considered them.
State v. Patterson, 1st Dist. Hamilton No. C-170329, 2018-Ohio-3348, ¶ 60.
{¶72} Pettus’s argument is meritless because the trial court specifically
stated at the sentencing hearing that it had considered the principles and purposes of
sentencing and all seriousness and recidivism factors.
3. Allied Offenses
{¶73} Pettus additionally argues that the trial court failed to merge various
convictions that were allied offenses of similar import. Because he raised this
argument before the trial court, and because the court made a merger determination,
we conduct a de novo review. State v. Corcoran, 1st Dist. Hamilton No. C-160627,
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OHIO FIRST DISTRICT COURT OF APPEALS
2017-Ohio-7084, ¶ 15; State v. Williams, 134 Ohio St. 3d 482, 2012-Ohio-5699, 983
N.E.2d 1245, ¶ 1.
{¶74} Under R.C. 2941.25, separate sentences may be imposed on a
defendant whose conduct supports multiple offenses if the offenses were dissimilar
in import, were committed separately, or were committed with a separate animus.
State v. Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892, paragraph three of
the syllabus; State v. Bailey, 1st Dist. Hamilton No. C-140129, 2015-Ohio-2997, ¶ 76.
{¶75} Pettus first contends that several of his convictions for forgery and
theft are subject to merger. Specifically, he argues that with respect to the offenses
committed against Fifth Third Bank, his forgery convictions in count one and five
must merge with his theft conviction in count six. And that with respect to the
offenses committed against US Bank, his forgery convictions in counts nine, ten, 12,
and 13 must merge with his theft conviction in count 14. Pettus argues that these
offenses are subject to merger because at the same time that he uttered fraudulent
checks in counts one, five, nine, ten, 12, and 13, he engaged in a cash withdrawal,
which constituted part of the thefts in counts six and 14, and, consequently, that
these offenses were committed at the same time and with the same animus.
{¶76} Pettus relies on State v. Marneros, 2015-Ohio-2156, 35 N.E.3d 925
(8th Dist.), and State v. Taylor, 4th Dist. Hocking No. 12CA10, 2013-Ohio-472, in
support of his argument.
{¶77} In Marneros, the defendant was likewise convicted of theft under R.C.
2913.02(A)(3) and forgery under R.C. 2913.31(A)(3). Because the defendant pled
guilty to these offenses, the record contained few facts, but the court noted that
multiple checks belonging to the victim, which the victim did not write, had been
deposited into the defendant’s account over a six-week period. Marneros at ¶ 42.
The Eighth District held that the defendant’s convictions for forgery and theft were
subject to merger because they occurred simultaneously and arose from the same
animus, stating that the forgery occurred when the defendant uttered the checks and
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OHIO FIRST DISTRICT COURT OF APPEALS
the theft occurred when the defendant received the victim’s money into his account.
Id. at ¶ 44.
{¶78} In Taylor, the defendant was convicted of theft under R.C.
2913.02(A)(1) and forgery under R.C. 2913.31(A)(3) after forging the name of an
elderly gentleman on a check and then cashing the check at the bank on which it was
drawn. Taylor at ¶ 8. The Fourth District held that the defendant’s theft and forgery
convictions were subject to merger. It explained that the forgery occurred when the
defendant presented the check at the bank and the theft occurred when the
defendant received the victim’s money, and that the offenses “occurred
simultaneously, as a result of the same conduct, and arose from the same animus.”
Id. at ¶ 13.
{¶79} We find Marneros to be factually distinguishable because the
defendant never made withdrawals after depositing the checks. And Taylor was not
decided under the allied-offense analysis set forth in Ruff, but under the analysis set
forth in State v. Johnson, 128 Ohio St. 3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,
which is no longer controlling law.
{¶80} Under the facts of this case, we find that the offenses of forgery and
theft were committed separately. The offenses of forgery were committed when
Pettus uttered the checks that he knew to have been forged. And the offenses of theft
were then subsequently committed when Pettus made a cash withdrawal from his
account. The crimes were separate and distinct acts committed during a course of
criminal conduct. See State v. Hayes, 8th Dist. Cuyahoga No. 105048, 2017-Ohio-
7718, ¶ 23 (in rejecting the defendant’s argument that convictions for passing bad
checks and grand theft were allied offenses of similar import, the court recognized
that “[a]lthough the grand theft was facilitated by the passing of bad checks, and thus
could be considered a single course of conduct, the crimes were all based on separate
and distinct acts.”).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶81} Because Pettus separately committed the offenses of forgery and theft
that he argues were allied offenses of similar import, we hold that the trial court did
not err in failing to merge the offenses.
{¶82} Pettus further argues that his three convictions for forgery committed
against Fifth Third Bank in counts two, three, and four were subject to merger
because he uttered all three checks that were the subject of each offense in a single
transaction with the same animus. We disagree. The record indicates that Pettus
separately endorsed each check before presenting them for deposit. And he
purposely uttered three separate fraudulent checks with the purpose of defrauding
the bank of the monetary amount of each individual check. We thus find that the
forgery offenses were committed both separately and with a separate animus, and
that the trial court did not err in failing to merge Pettus’s convictions for these
offenses.
4. DNA Testing
{¶83} Pettus last argues that the trial court erred in failing to inform him of
the requirement in R.C. 2901.07(B)(1) that he would be required to submit to DNA
testing as a result of his felony conviction and of the consequences for failing to do
so. We have previously held that R.C. 2901.07(B) confers no substantive rights on a
defendant because its requirements “were not intended to benefit the defendant, but
rather to facilitate the DNA testing of felony offenders for the maintenance of a DNA
database.” State v. Taylor, 1st Dist. Hamilton No. C-150488, 2016-Ohio-4548, ¶ 6,
quoting State v. Moore, 12th Dist. Clermont No. CA2014-02-016, 2014-Ohio-5191, ¶
18. Any error resulting from the trial court’s failure to inform Pettus of the statute’s
requirements was harmless. Id.
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OHIO FIRST DISTRICT COURT OF APPEALS
5. Sentencing Summary
{¶84} In summary, we hold that the trial court erred in imposing consecutive
sentences without making the requisite findings at the sentencing hearing. But
Pettus’s sentence was not otherwise contrary to law. See Marcum, 146 Ohio St. 3d
516, 2016-Ohio-1002, 59 N.E.3d 1231, at ¶ 22-23; White, 2013-Ohio-4225, 997
N.E.2d 629, at ¶ 5. The fourth and fifth assignments of error are sustained in part
and overruled in part.
Conclusion
{¶85} Because the trial court erred in imposing consecutive sentences
without making the required findings at the sentencing hearing, we vacate the
consecutive nature of Pettus’s sentences and remand for resentencing as to that
issue. The judgment of the trial court is otherwise affirmed.
Judgment affirmed in part and sentences vacated in part, and cause remanded.
CROUSE and WINKLER, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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