State v. Soueidi

[Cite as State v. Soueidi, 2011-Ohio-3579.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95353
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MAYA SOUEIDI
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-529201
BEFORE: Keough, J., Sweeney, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: July 21, 2011
ATTORNEY FOR APPELLANT
Brett M. Mancino
Ritzler, Coughlin & Paglia, Ltd.
1360 East Ninth Street
1000 IMG Center
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: James D. May
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant, Maya Soueidi (“Maya”), appeals her
conviction of securing writings by deception. For the following reasons, we
reverse, vacating her conviction.
{¶ 2} In October 2009, Maya was charged with theft by deception
pursuant to R.C. 2913.02(A)(3) and securing writings by deception pursuant
to R.C. 2913.43(A), each containing a furthermore specification that the value
of the property was more than $25,000 but less than $1,000,000 and that the
victim was disabled. The matter proceeded before a jury where the following
evidence was presented.
{¶ 3} Georges and Hiam Soueidi were married in 1985, had three
daughters, and resided in Utah. In 1999, Georges and Hiam were involved
in a terrible automobile accident where Georges suffered significant head
trauma that left him in a coma for six months. When he came out of the
coma, it was revealed that Georges had suffered substantial, permanent brain
damage. Following the accident, Hiam quit her job to care for Georges. She
was also appointed conservator over him, and was responsible for his
personal and financial affairs. Because of his injury, Georges’s personality
changed and he became verbally and physically abusive to Hiam and their
daughters. In 2007, Hiam separated from Georges and filed for divorce.
When Hiam filed for divorce, Georges moved to Cuyahoga County to be
closer to his siblings.
{¶ 4} In December 2007, Bachara and Lina Soueidi, Georges’s brother
and sister-in-law, petitioned a Utah court to accept the resignation of Hiam
as conservator and appoint them successor co-conservators over Georges.
The court granted their petition in January 2008.
{¶ 5} The trial testimony established that Georges lives independently
in an apartment in Strongsville. He signed the lease to his apartment
without the help of his co-conservators, but with the assistance of his other
brother, Nemr Soueidi. Georges is able to walk freely and independently to
local stores and establishments. According to Georges, he has friends in the
apartment complex, including his friend “Fred.” Georges has obtained his
own cell phone and opened his own credit card and checking accounts,
without the assistance or knowledge of his co-conservators.
{¶ 6} The testimony established that Georges receives $1,768 in
disability benefits from an insurance policy through his former employer,
which is enough for him to live on. When his check arrives, Georges signs
and Bachara cashes it to pay for Georges’s rent and medications. Lina
testified that if Georges does not take his medications, he can get “mean.”
He has difficulty regulating his emotions and can easily become upset or very
emotional and even volatile under certain conditions. Georges has screamed
at Lina and even threatened her in the past. Additionally, Georges filed a
police report accusing Lina and Bachara of “taking his money and jewelry.”
{¶ 7} Georges and Hiam’s divorce was finalized by a Utah court in
March 2009. Hiam was awarded sole physical custody of their minor
daughter, age 14. Georges was not ordered to pay monthly child support;
Hiam was solely responsible for providing for their three children. As part of
the divorce decree, Hiam was awarded exclusive use and possession of the
Midvale town home, located in Utah, until their minor daughter graduated
from high school; the divorce decree provided that “reasonable efforts will be
made to sell the property in a timely fashion.” The divorce decree further
provided that when the town home is sold, Hiam is to receive 62 percent of
the proceeds from the sale and Georges is to receive the remaining 38 percent.
Until the house was sold, Hiam was entitled to “additionally encumber the
[Midvale town home] up to her interest in the property.” According to both
Hiam and Georges, the Midvale town home is valued at $300,000.
{¶ 8} By the time the divorce was finalized, Hiam needed a loan to pay
her legal fees, other bills, and the children’s medical bills and educational
costs. Sometime between the finalization of the divorce and June 2009, she
contacted a Utah title company, Inwest Title Services, Inc. (“Inwest”), and
inquired about taking an additional mortgage on the Midvale town home to
help with these debts. According to Hiam, Inwest informed her that she
could not receive an additional mortgage on the Midvale town home unless
Georges also agreed to the loan because of his share in the house. Hiam
testified that Inwest advised her that Georges had a lien on the property.
Hiam testified that she gave Inwest Georges’s contact information, which
included his cell phone number and address, and that Inwest handled the
entire transaction. Hiam did not give Inwest Lina or Bachara’s contact
information, or advise Inwest that Georges was under a conservatorship. To
facilitate the loan, Inwest drafted all necessary documents for Georges to
sign, including a Special Warranty Deed (“Deed”) and an “Instruction Letter
and Hold Harmless Agreement.” Hiam did not create these documents nor
did she receive a copy of them. No one from Inwest testified at trial.
{¶ 9} Around the time Hiam was trying to obtain the loan, Lina and
Bachara had a month-long trip scheduled to Lebanon for a family wedding.
Although they purchased a plane ticket for Georges, he decided not to travel
to Lebanon, but stay home under the supervision of his brother Nemr. Lina
testified that she had no concerns leaving Georges for the month. Lina left
on June 24th and Bachara left on July 1st. According to Hiam, while Lina
and Bachara were in Lebanon, Georges called her and said he needed help
because his brother and sister-in-law had gone to Lebanon and he had no
money. Hiam testified that she told their eldest daughter, Maya, to fly to
Ohio to help her father because she was concerned about his living conditions.
{¶ 10} In June 2009, Inwest contacted Titleco Title Agency (“Titleco”) in
Middleburg Heights, Ohio to notarize Georges’s signature on the Deed. Kim
Beth Greco (“Greco”), owner of Titleco and a notary public, testified that she
notarized Georges’s signature on two different documents on two different
days.
{¶ 11} On June 26, 2009, Georges and another “gentleman,” (later
identified as Fred), came to her office. At this meeting, Georges signed the
Deed conveying his interest in the Midvale town home to Hiam. According to
Greco, a special warranty deed is a deed that conveys title to property; it is
“how you give something away that you own.”
{¶ 12} The Deed provided in bold upper case letters: “THIS SPECIAL
WARRANTY DEED IS GIVEN AS FULL SATISFACTION OF ANY EQUITY
LIEN SET FORTH IN THE TERMS OF THAT CERTAIN DECREE OF
DIVORCE FILED JUNE 3, 2009, AS CASE NO. 074905498, FILED IN THE
THIRD DISTRICT COURT, WHEREIN HIAM SOUEIDI APPEARS AS
PETITIONER AND GEORGES M. SOUEIDI APPEARS AS RESPONDENT.”
Greco testified that she could not recall if Georges brought the deed with
him or if she received it from Inwest directly. According to Greco, when
Georges and Fred came to the office, Georges began showing her pictures of
his family. She testified that as they were talking about the document,
Georges “got a little — him and the other gentleman had a conversation.
Unfortunately I don’t know what it was and — it was in a different language
— Georges got upset and Georges left. They left after they signed.” Greco
testified that Georges initially spoke English but “then as he got a little
agitated it was a different language,” which she found to be a “little strange.”
She also described Georges as “elderly” based on his motions and how he
walked and talked with her. According to Greco, the entire appointment
lasted 45 minutes. Greco then sent the Deed to Inwest.
{¶ 13} Two weeks later, on July 10th, Georges came back to the title
office with his daughter Maya to sign a second document. This document,
dated July 9, was in reference to “Hiam Soueidi, Payoff of Decree of Divorce
Instruction Letter and Hold Harmless Agreement.” The document purported
to be a letter to Vicky Robbins of Inwest from Georges (1) instructing Inwest
to record the previously executed deed, (2) acknowledging that he would
receive a check for $10,000 if and when Hiam’s refinancing was completed,
and (3) holding Inwest harmless. The testimony established that Georges
did not draft this letter; in fact, Greco testified that she received this letter
via email from Inwest Title and there was no suggestion that Georges drafted
or could have drafted the letter. According to Greco, Maya and Georges
spoke in a foreign language to each other and their conversation was
“elevated.” After Georges signed and Greco notarized the letter, Maya and
Georges left. The entire meeting lasted five to ten minutes. Greco then sent
the document to Inwest as instructed.
{¶ 14} Georges, who was deemed competent to testify at trial, testified
that a man came to his apartment requesting that he sign a “paper.” Fred
read the paper and told him not to sign the “paper” because it was from his
wife. Georges asked the man for his address and told him that maybe he
would call him. Georges then testified: “[A]nd after maybe five minutes,
my wife she call me: Why you never call? Sign the paper. I tell her: Okay,
I want to sign, sign. But you must tell Fred the address. She talk with
Fred the address. And she talk with Fred. You give them address. She
give them address, I go me and Fred to the woman and I sign. I give her the
paper for me, drive license Utah.”
{¶ 15} Georges also testified about signing a document when his
daughter Maya came to visit. “And after Maya, when she come also, they
call me from Utah, a man. And they tell me: You must go sign the paper. I
tell him, I don’t understand English and he tell me wait, maybe I bring a
woman to speak with you Arabic. I tell him, yes. She come, a woman. She
speak Egyptian. I understand, you know. I am Lebanese. I understand
Egyptian, Saudi. She come; blah, blah, blah, blah. She come, start talk,
talk, talk, and I start talk with her in English. I tell her: I am disabled, what
you want from me? You want me to sign or not – no, she tell me, no, you
must sign. Okay. I sign. I sign. Maya, she take me. And I sign.”
{¶ 16} After Georges signed the documents, Hiam eventually received a
loan for $150,000 and Georges received a $10,000 check dated July 28, 2009
issued by Inwest, with the notation “satisfy divorce decree” in the “memo”
area of the check. According to Hiam, it took her three months to obtain the
loan.
{¶ 17} Hiam, who is neither an attorney nor works in real estate,
testified that she believed the divorce decree was still in effect and that the
$10,000 was an advance on Georges’s 38-percent interest in the sale of the
Midvale town home. She stated that Inwest also advised her that the
$10,000 was a part of Georges’s 38 percent interst. Hiam testified that she
intends to comply with the divorce decree when she sells the house. Hiam
also testified that she did not prepare any of the documents that Georges
signed, nor did she receive copies of those documents. She stated that she
needed a loan, she contacted a title company, and “they did their job.”
{¶ 18} When Lina and Bachara returned from Lebanon, Georges showed
them the $10,000 check and they immediately took Georges to the
Strongsville Police Department where they made a report and criminal
charges were subsequently filed against Hiam and Maya.
{¶ 19} The jury found Maya not guilty of theft, but guilty of securing
writings by deception, including the furthermore specification. The trial
court sentenced her to two years of community control sanctions, but
remanded her to the Cuyahoga County jail for seven days. The sentence was
stayed pending appeal.
{¶ 20} Maya appeals, raising eight assignments of error challenging her
conviction and the admissibility of testimony and evidence submitted at trial.
{¶ 21} In her first assignment of error, she contends that insufficient
evidence existed to support her conviction for securing writings by deception.
{¶ 22} When a defendant challenges the sufficiency of the evidence, she
is arguing that the State presented inadequate evidence on each element of
the offense to sustain the verdict as a matter of law. State v. Hawn (2000),
138 Ohio App.3d 449, 471, 741 N.E.2d 594. The test for sufficiency requires
a determination of whether the prosecution met its burden of production at
trial. State v. Bowden, Cuyahoga App. No. 92266, 2009-Ohio-3598, ¶12.
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.
Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 942, paragraph two of the
syllabus.
{¶ 23} R.C. 2913.43(A), regarding securing writings by deception,
provides that “no person, by deception, shall cause another to execute any
writing that disposes of or encumbers property, or by which a pecuniary
obligation is incurred.”
{¶ 24} At trial, the prosecution’s theory of the case was that Maya
deceptively caused her father to execute a writing that disposed of his interest
in the Midvale town home property. We find that she did not.
{¶ 25} Maya traveled from Utah to Ohio at the request of her mother,
Hiam, and possibly Georges. While in Ohio on July 10th, Maya accompanied
her father to Titleco so that he could execute a document as requested by
Inwest. The document that Georges executed was State’s exhibit three,
which was the Instruction Letter and Hold Harmless Agreement purporting
to be from Georges and addressed to Vicky Robins of Inwest dated July 9,
2009. The testimony at trial established Georges did not draft this
document, nor did Maya bring it with her from Utah. Greco testified that
the document was sent to her office by Inwest as an attachment to an email.
{¶ 26} The letter was regarding “Hiam Soueidi, Payoff of Decree of
Divorce Instruction Letter and Hold Harmless Agreement.” The letter
indicated that Georges had already executed the Deed, which the testimony
established that Maya had no involvement in procuring. Specifically, the
letter stated: “I have provided Inwest Title Services, Inc. with a fully executed
Special Warranty Deed dated June 26, 2009 releasing any and all interest I
have in this property, including any equitable lien rights under the Decree of
Divorce entered June 2, 2009 (and any amendments thereto) in Civil No.
074905498, filed in the Third District Court of Utah, where Hiam Soueidi
appears as the Petitioner and I appear as the Respondent.”
{¶ 27} Although the letter instructs Inwest to record 1 the previously
executed Deed, this recording instruction does not “dispose[ ] of or encumber
Contrary to the State’s assertion in its appellate brief and at oral argument that the Deed was
1
recorded in Ohio, no evidence was presented at trial that it was recorded in Ohio prior to Greco
sending it to Inwest. The transcript pages cited by the State in its appellate brief purporting to
evidence such statement do not contain such testimony.
property,” which is a required element for a conviction under R.C. 2913.43(A).
“In Ohio, a deed does not have to be recorded to pass title. Whether or not
recorded, a deed in Ohio passes title upon its proper execution and delivery,
so far as the grantor is able to convey it.” Wayne Bldg. & Loan Co. of
Wooster v. Yarborough (1967), 11 Ohio St.2d 195, 212, 228 N.E.2d 841, citing
Baldwin v. President, etc., of Bank of Massilon (1853) 1 Ohio St. 141. See,
also, In re Estate of Dinsio, 159 Ohio App.3d 98, 2004-Ohio-6036, 823 N.E.2d
43, 18. A deed must be delivered to be operative as a transfer of ownership
of land, because delivery gives the instrument force and effect.
Kinasz-Reagan v. Ohio Dept. Of Job & Family Servs., 164 Ohio App.3d 458,
2005-Ohio-5848, 842 N.E.2d 1067, 21, citing Kniebbe v. Wade (1954), 161
Ohio St. 294, 297, 118 N.E.2d 833.
{¶ 28} The law in Utah is similar to that in Ohio: delivery and intent
are necessary for the conveyance of property. Hoggan v. Fleming, 2010 UT
App 195. “A conveyance is valid only upon delivery of a deed and present
intent to transfer.” Hoggan at *1, quoting Winegar v. Froerer Corp., 813 P.2d
104, 110 (Utah 1991).
{¶ 29} Therefore, Georges’s interest in the property was disposed of
when he executed the Deed and Greco sent it to Inwest approximately two
weeks prior to signing the instruction letter. There was absolutely no
testimony or evidence presented at trial that linked Maya to the execution of
the Deed, and it was Fred who took Georges to Titleco on June 26th. Even
so, Fred was not charged with any crime.
{¶ 30} We find that the writing that disposed of Georges’s interest in the
property was the Deed, upon which Maya had no involvement in procuring
her father’s signature. Therefore, because the document that Georges signed
while in the presence of Maya had no legal effect regarding the conveyance of
the property and Georges’s interest in the property was disposed of prior to
her involvement, Maya could not be convicted for securing writings by
deception under R.C. 2913.43(A).
{¶ 31} Accordingly, we sustain her first assignment of error.
{¶ 32} Finding merit to her first assignment of error, we need not
address her remaining assignments of error.2
Maya’s remaining assignments of error are:
2
“II. Maya Soueidi’s conviction is against the manifest weight of the evidence.
“III. The State violated Maya Soueidi’s Constitutional right to a fair trial when it introduced an
irrelevant and highly inflammatory email and photograph.
“IV. The trial court denied Maya Soueidi a fair trial and misapplied evidentiary rules on expert
testimony when it permitted Lina Soueidi to opine on the legal implications of a Utah conservatorship
in Ohio.
“V. The trial court erred and violated Maya Soueidi’s Constitutional right to a fair trial when it
admitted irrelevant evidence about Maya’s alleged involvement in a band and when it permitted the
State to impeach Hiam Soueidi on this collateral issue with extrinsic evidence.
“VI. The trial court erred when it found Georges Soueidi competent to testify and that he could do
Judgment reversed. The trial court is instructed to execute a
judgment entry vacating Maya Soueidi’s conviction.
It is ordered that appellant recover from appellee 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.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
JAMES J. SWEENEY, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
so without an interpreter.
“VII. The trial court deprived Maya Soueidi of a fair trial and violated her right to due process when
it instructed the jury with an aiding and abetting and conspiracy charge.
“VIII. The cumulative errors committed in this case deprived Maya Soueidi of a fair trial.”