State v. Moore

[Cite as State v. Moore, 2012-Ohio-3604.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 24957
Plaintiff-Appellee :
: Trial Court Case No. 2010-CR-2554
v. :
:
PAMELA S. MOORE : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 10th day of August, 2012.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
JEREMIAH J. DENSLOW, Atty. Reg. #0074784, First National Plaza, 130 West Second
Street, Suite 1818, Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} Pamela Moore appeals from her conviction for aggravated theft. Finding no
2
merit in any of the allegations of error, we affirm.
{¶ 2} Moore had worked in the mortgage and title insurance business for 23 years
when, in 2006, she opened her own title agency. In the new agency, Moore acted as both a
real-estate title agent and a title-insurance agent. Moore contracted with Chicago Title
Insurance Company to be her underwriter. She hired Melissa Brown to help her in the office.
Moore also set up a bank account that the agency could use to pay its expenses. And she set up
an escrow account to hold money from her clients while their transactions were pending.
{¶ 3} Moore had been renting a home in Centerville. When she fell behind in her
rent, her landlord, Phil McBride, started eviction proceedings. Moore asked McBride if she
could buy the house, and McBride agreed. They settled on a price of $190,000. At the closing,
Moore gave McBride two checks drawn from the escrow account. One check (State’s Ex. 7),
was to Spectrum Real Estate Inc., McBride’s corporation, for $36,761.59. The other check
(State’s Ex. 8) was to Citizens National Bank for $143,800.32 to pay off the existing
mortgage. Moore did not have the money to pay for the house–she had not obtained a loan.
Consequently, the money she gave McBride was her clients’.
{¶ 4} Eventually, a team from Chicago Title’s parent company visited Moore and
reviewed her records. Their investigation revealed several significant problems. One problem
they discovered was that Moore had written a $17,000 check drawn from the escrow account
to pay CFA Networks for computer equipment and services. Ultimately, the parent company
team took over Moore’s business.
{¶ 5} Moore was charged with one count of aggravated theft under R.C.
2913.02(A)(2) for taking over $100,000 from the escrow account. A jury found her guilty.
3
{¶ 6} Moore appealed. She now assigns five errors to the trial court.
The Disallowance of Surrebuttal Testimony
{¶ 7} After the defense rested, the state called the defendant’s former employee,
Melissa Brown, as a rebuttal witness. The first assignment of error alleges that the trial court
erred by not permitting Moore to present surrebuttal testimony to rebut Brown’s testimony.1
Moore contends that she had a right to present surrebuttal testimony. Alternatively, Moore
contends that even if she did not have the right, the trial court still should have permitted it.
{¶ 8} A defendant must be permitted to present surrebuttal evidence (provided it
isn’t merely cumulative or corroborative) if “the prosecution in rebuttal introduces new
matter.” State v. Gibbs, 2d Dist. Miami Nos. 83 CA 7, 83 CA 37, 1983 WL 2546, *3 (Nov.
18, 1983); State v. Carrasquillo, 9th Dist. Lorain No. 09CA009639, 2010-Ohio-1373, ¶ 11
(“Surrebuttal is only considered a right when new matters are first introduced on rebuttal.”
(Citation omitted.)). The defendant must then be permitted to present evidence that rebuts this
new matter–but only the new matter. Id. (“[I]t is only new matter adduced by the prosecution
that [the] accused may rebut on surrebuttal[.]”). “‘Rebutting evidence is that given to explain,
refute, or disprove new facts introduced into evidence by the adverse party.’” State v.
Carrasquillo, 9th Dist. Lorain No. 09CA009639, 2010-Ohio-5063, ¶ 13, quoting State v.
McNeill, 83 Ohio St.3d 438, 446, 700 N.E.2d 596 (1998).
{¶ 9} Moore proffered this surrebuttal testimony: “[W]e would have a witness who
would directly dispute aspects of Missy Brown’s testimony, most specifically those relating to
1
The state also called Nancy Bruggeman in rebuttal, but the assignment of error concerns only Brown’s testimony.
4
the taking of Ms. Moore’s property and the altercation that occurred at her house and various
other aspects of her testimony.” (Tr. 503-504). To provide context for the rebuttal/surrebuttal
issue, we review the specific areas of testimony. Pamela Moore had testified that she did not
have a copy of a critical missing loan-approval letter because when the business closed [in
August 2007] Missy Brown had taken records from Moore’s office. (Tr. 397). Moore said
Brown took everything needed to start a title company and also took personal information and
medical bills for her children. (Id.). In response, the state asked its rebuttal witness, Missy
Brown, if she had taken items from the office when it closed. (Tr. 444). Brown admitted she
had taken a box of materials (Tr. 446), although she said it was with Moore’s knowledge
(Tr.445-46). The materials included an instructional binder, a Rolodex, business forms, and
the like. (Tr. 444). Brown denied taking the defendant’s personal items, children’s medical
records or the loan-approval letter. (Id.). Three to five days later, Moore came to Brown’s
house and got the box. (Tr. 447). In cross-examination, counsel for the defendant asked Brown
if she had the items from the box “strewn out in your living room.” (Tr. 488). Brown denied
this. (Id). Counsel then asked, “And it’s your testimony that you just gave [her] the box and
they went out calmly and there were no problems?” Brown said “correct.” (Tr. 489).
{¶ 10} Evid.R. 103 provides that “[e]rror may not be predicated upon a ruling which
* * * excludes evidence unless a substantial right of the party is affected” and, “[i]n case the
ruling is one excluding evidence, the substance of the evidence was made known to the court
by offer or was apparent from the context within which questions were asked.” Evid.R.
103(A)(2). “If a party claiming error is unable to establish the first requirement, the error is
deemed harmless. If the party is unable to establish the second requirement, the error is
5
deemed waived.” Campbell v. Johnson, 87 Ohio App.3d 543, 551, 622 N.E.2d 717, 723 (2d
Dist. 1993). “While the proffer of the expected testimony need not be as specific as the
testimony itself would have been it must nonetheless be sufficient to enable the reviewing
court to determine roughly what, if any, impact the testimony may have had upon the final
disposition of the case.” State v. Darrah, 12th Dist. Warren No. CA2006-09-109,
2007-Ohio-7080, ¶ 22, quoting Moser v. Moser, 72 Ohio App.3d 575, 580, 595 N.E.2d 518(3d Dist.1991). Given the preceding evidentiary context, the proffer—that the defense would
call a witness who would further discuss the taking of the document box, and who would
dispute whether there was an altercation during retrieval of the box, which was a year after the
purported aggravated theft—is not only irrelevant but could be viewed as cumulative. We
agree with the trial court’s finding that “the evidence would not be appropriate under the rules
of evidence.” The trial court observed: “We don’t go into many trials2 on other issues as to
credibility. They’re not germane to the charge that is pending.” (Tr. 504).
{¶ 11} In addition to the proffer, in her brief, Moore identifies a list of “new” facts
that she says the state introduced with Brown’s rebuttal testimony that her surrebuttal
testimony would contradict. Most of the “new” facts identified by Moore are no more than a
variation on the issues previously presented rather than new evidence. For instance, appellant
argues:
{¶ 12} (a) Brown said that Moore was the only person who issued checks. But
Moore’s own testimony had indicated that “I cut the checks” (Tr. 385) for the unfunded
2
From the context of the court’s ruling, we suspect the words “many trials” may have been “mini-trials,” but we adhere to the
record as presented.
6
closing on her house, and she wrote the $17,000.00 escrow check to CFA (Tr. 369 & 371),
though Brown would often prepare checks;
{¶ 13} (b) Brown said that, in 2007, the business moved from Springboro in Warren
County to West Carrollton in Montgomery County. But Moore had testified that the business
opened in Springboro in April 2006 where it operated for six months before moving. (Tr.
373). She also said that the move occurred well after October. (Id.);
{¶ 14} (c) Brown said that the business was shut down during the first week of
August 2007 by a team from Chicago Title Insurance Company. But Steve Hamlin, the
director of internal investigations for Chicago Title’s parent company, Fidelity National
Financial, had already testified that he and his team met with Moore during the first week of
August 2007, and that, after their examination, Fidelity took control of Moore’s escrow
accounts. (Tr. 318 & 330);
{¶ 15} (d) Brown said that she and another person were going to start their own title
agency after Moore’s business was shut down. But Moore had already similarly testified that
Missy Brown had taken everything from her office necessary to start her own title company.
(Tr. 397);
{¶ 16} (e) Brown said that after the move to Montgomery County, CFA Networks
continued to remedy their computer problems. Moore’s testimony indicates the $17,000.00
paid to CFA included a service contract. (Tr.372). A fair reading of her testimony indicates
this continued after the move to Montgomery County. (Id.) Moreover, Todd Roberts, a CFA
employee at the time, had testified that Dedicated Land Title was an ongoing client of CFA
before and after the October 2006 $17,000.00 check. (Tr. 188);
7
{¶ 17} (f) Brown said that Moore herself retrieved a document from the filing
cabinet immediately before the $17,000 check was written to CFA Network. Moore had
testified that Brown gave her the check, which Moore then wrote. (Tr. 371).
{¶ 18} Although the foregoing two accounts on the same subjects differ, if this is
“new “ evidence conferring a right to surrebuttal, any different contradicting evidence on the
same subject would be subject to endless re-contradiction.
{¶ 19} There are three facts from Brown’s testimony, identified in Moore’s brief as
“new,” which are arguably new: (1) that business began to slow in January or February 2007,
(2) that around the same time Moore told Brown to hold checks rather than send them
promptly to lenders, and (3) that Brown noticed other irregularities in 2007 that caused her to
call prosecutors. (Tr. 440-41). Significantly, appellant did not proffer that she had any
contradictory evidence to offer on these issues. Nevertheless, even if these are new facts, and
even if appellant had contradictory evidence, Moore was not prejudiced by the exclusion of
testimony rebutting them. These facts, which are actually interrelated into one issue—why
Brown called the authorities—have little, if any, bearing on whether Moore committed the
charged offense five or six months earlier. This evidence is so far removed from evidence of
Moore’s guilt that the jury’s verdict certainly would have been the same. Accordingly, Moore
has suffered no prejudice by the exclusion of this surrebuttal.
{¶ 20} In addition, some of the “new” facts Moore identifies were brought out by the
defense during Brown’s cross examination. But Moore plainly is not entitled to rebut these
facts. A defendant is entitled to surrebut only new matter introduced “by the prosecution in
rebuttal.” The defendant cannot rebut matters she herself introduced. Weimer v. Anzevino, 122
8
Ohio App.3d 720, 726, 702 N.E.2d 940 (7th Dist. 1997) (“[A]ppellant cannot rebut evidence
that was introduced by appellant’s own counsel. Appellant may rebut evidence adverse to her
side, but that evidence must be introduced by the opposing party and not by appellant
herself.”).
{¶ 21} Finally, we cannot say the trial court abused its discretion by disallowing
surrebuttal. “If testimony introduced by the prosecution is merely in rebuttal, it is discretionary
with the trial court whether to permit surrebuttal.” Gibbs at *3, citing State v. Lett, 106 Ohio
App. 285, 154 N.E.2d 445 (2d Dist.1958). “A court does not, ipso facto, abuse its discretion in
denying a criminal defendant the opportunity to present surrebuttal testimony.” (Emphasis
sic.) State v. Spirko, 59 Ohio St.3d 1, 28, 570 N.E.2d 229 (1991). The trial court’s rationale
for exclusion appears to be that the proposed surrebuttal was not relevant or would merely go
to credibility rather than whether Moore committed the charged offense. The court’s rationale
is a valid concern to avoid a diversion into collateral matters.
{¶ 22} The first assignment of error is overruled.
Denial of Motion for Acquittal for Failure to Prove Venue
{¶ 23} The second assignment of error alleges that the trial court erred by overruling
Moore’s motion for acquittal based on improper venue. Moore says there are two alleged
transactions that constituted the state’s case against her–buying the house and paying CFA
Networks–and both occurred while Moore’s business was still in Warren County. She
contends the state failed to prove that venue for either was proper in Montgomery County.
{¶ 24} When a charged offense involves taking property unlawfully, venue is proper
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in any county from which or into which the property was taken. R.C. 2901.12(C). Needless to
say, aggravated theft involves taking property unlawfully. See R.C. 2913.02(A)(2). And
Moore was alleged to have taken escrow-account funds. Testimony shows that she
constructively brought the stolen funds into Montgomery County. Moore’s3 and McBride’s4
testimony indicates that they met and closed on the house in the Centerville Public Library,
which is in Montgomery County. There Moore gave McBride two checks totaling about
$180,000, which he deposited in a nearby bank. Therefore, venue in Montgomery County was
proper.
{¶ 25} While there is little evidence establishing a connection between Montgomery
County and the escrow-account funds that Moore used to pay CFA Networks, the trial court’s
explanation for rejecting Moore’s venue challenge got the analysis right:
It’s problematic in that we have a single count indictment here alleging
an aggravated theft. You’re trying to segregate out one transaction. I don’t
3
When Moore was asked if the closing occurred at the Centerville Public Library,
she replied, “I think it was.” (Tr. 386). And Moore later referred to the library as the
closing site. When she was asked why she did not stop payment on the checks she
gave McBride, Moore explained, “Because, well, one, that day when I met with Phil, Phil
is a major shareholder in Citizens National, and he said that when he leaves he was
going in–the library is literally around the corner from the bank. And he said, ‘When I
leave I’m going straight over to the bank,’ because that’s why I gave him the payoff
check.” (Tr. 406).
4
When McBride was asked whether he “recall[ed] then going to the Centerville
Public Library to close this real estate transaction,” this exchange followed:
A. “It would make sense that we went there. But I’m not exactly
sure of that. I know my office was in the process–we were closing it down.
And I know it wasn’t in Pam’s office. So it was probably a mutually agreed
upon location.”
Q. “Have you ever done closings there before?”
A. “Yes, I have.”
(Tr. 143).
10
think there’s any evidence before the Court that the check was written or
presented in Montgomery County, but nonetheless, it’s not sufficient to grant a
directed verdict on the offense that’s charged in the indictment. It’s simply a
matter that goes to the weight of the evidence. And the Court finds that there’s
ample evidence that the transaction that did clearly exceed $100,000. [sic] If
the Jury believes that the elements apply, it does support the conviction on the
charge that has been filed.
(Tr. 502-503).
{¶ 26} We note too that even if the CFA Networks transaction could be considered a
separate offense, venue in Montgomery County would still be proper either because the
victims–the escrow-account fund owners–are the same as those in the house-purchase
transaction, see R.C. 2901.12(H)(1), or because Moore committed both offenses in her
capacity as title agent, see R.C. 2901.12(H)(2).
{¶ 27} The second assignment of error is overruled.
Proving the Escrow-Account Funds’ Owner
{¶ 28} The third assignment of error alleges that the evidence presented is
insufficient to find Moore guilty of aggravated theft because the evidence fails to establish that
the owner of the escrow-account funds identified in the indictment, Chicago Title Insurance
Company, in fact owned the money. The state concedes that Chicago Title was not the
escrow-account funds’ owner, but it contends that it did not need to prove who owned the
funds.
11
{¶ 29} Evidence is legally insufficient to find guilt if a rational trier of fact could not
have found the essential elements of the crime proven beyond a reasonable doubt. State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. The identity
of the victim is not an essential element of aggravated theft. State v. Clayton, 2d Dist.
Montgomery No. 22937, 2009-Ohio-7040, ¶ 10-27 (concluding that the evidence was
sufficient to find the title-insurance agent guilty under R.C. 2913.02(A)(2) for taking
escrow-account funds even though the evidence did not establish the funds’ specific owner).
Therefore, Moore’s sufficiency challenge must be rejected.
{¶ 30} Moore’s argument, though, is not really a sufficiency challenge. Rather, the
argument seems to be that because the indictment identifies Chicago Title as the owner the
state was required to prove the same. This is incorrect.
{¶ 31} A difference between an allegation in an indictment and the evidence
presented at trial may be a problem if the difference is in “a matter essential to the charge.”
State v. Smith, 2d Dist. Montgomery No. 24402, 2012-Ohio-734, ¶ 30, citing State v. Brozich,
108 Ohio St. 559, 141 N.E. 491 (1923), paragraph one of the syllabus. The name of the victim
is not a matter essential to the charge of aggravated theft: “Ohio law does not require that a
victim be named in an indictment when the identity of the victim is not an essential element of
the crime.” State v. Cicerchi, 182 Ohio App.3d 753, 2009-Ohio-2249, 915 N.E.2d 350, ¶ 35,
fn. 7 (8th Dist.).
{¶ 32} Even if the name were essential, Crim.R. 33 and R.C. 2945.83 provide that a
conviction may not be reversed because of “[a] variance between the allegations and the proof
thereof, unless the defendant is misled or prejudiced thereby.” Crim.R. 32(E)(2); accord R.C.
12
2945.83(B) (substantially the same). Moore does not claim that she was mislead or prejudiced
by the difference here. Indeed, she knew well before trial that the state no longer believed that
Chicago Title was the owner. The state recognized its mistake well before trial, and in a July
22, 2011 motion, the state asked the trial court to remove this allegation from the indictment
either by striking it as surplusage under Crim.R. 7(C) or by amending the indictment under
Crim.R. 7(D). In the motion, the state said that, though Chicago Title, as the underwriter, is
liable for the missing escrow-account funds, and therefore is a victim, the company did not
own the funds, which were actually owned by Moore’s clients. Moore did not object to the
state’s motion. The trial court never ruled on it explicitly. Generally, if a trial court enters
judgment without ruling on a motion, we presume the motion was denied. State v. Alltop, 2d
Dist. Montgomery No. 24324, 2011-Ohio-5541, ¶ 18. Here, though, an intent to sustain the
state’s motion is indicated by the jury instructions: nowhere in them is Chicago Title
mentioned. In particular, instructions about the charged offense leave out the indictment’s
identification of the funds’ owner. While the indictment pertinently alleges that Moore took
the funds “with purpose to deprive the owner, to-wit: Chicago Title Insurance Company of
property or services,” the jury instructions omit Chicago Title’s name, saying only “with
purpose to deprive the owner of property.”
{¶ 33} Finally, Robert Smith, assistant legal counsel to the State Auditor, testified
about the nature of a title company escrow account. Money in the account is not specifically
identifiable to an individual. He referred to it as a “fungible bulk.” (Tr. 298). Therefore, on
August 7, 2006, when Moore issued two checks drawn on the escrow account in the
approximate sum of $180,000.00 (State Ex.s 7 & 8), at a time when the account had a balance
13
over four million dollars (State Ex. 11), the particular party or person that the money was
taken from was unidentifiable.
{¶ 34} The third assignment of error is overruled.
Secondary Evidence to Prove the Contents of the Letter
{¶ 35} The fourth assignment of error alleges that the trial court erred by not
permitting Scott Moore, Defendant-Appellant Moore’s former husband, to testify about the
contents of a mortgage pre-approval letter that Moore claims she received from Union
Savings Bank, which she says Scott saw and read. “The decision whether to admit evidence is
left to the sound discretion of the trial court, and a reviewing court will not override that
decision absent an abuse of discretion. An abuse of discretion implies an unreasonable,
arbitrary, or unconscionable attitude by the court.” Baker v. Chrysler, 179 Ohio App.3d 351,
2008-Ohio-6032, 901 N.E.2d 875, ¶ 20 (2d Dist.), citing State v. Hancock, 108 Ohio St.3d 57,
2006-Ohio-160, 840 N.E.2d 1032, ¶ 129-130.
{¶ 36} In her brief, Moore contends that Scott’s testimony should have been
permitted under Evid.R. 1004 because the letter is a lost document. Evid.R. 1004 is a
best-evidence rule providing that “[w]hen an original writing is lost or destroyed and the
writing is not closely related to a controlling issue, its contents may be proved by secondary
evidence,” which “includes the testimony of a witness who recalls the content of the writing.”
Terrace Creek Assn. v. Smith, 2d Dist. Montgomery No. 18543, 2001 WL 524382, *3 (May
18, 2001). Initially, we note that whether Moore had a loan approval was, according to
Moore’s own arguments, a critical issue. Scott’s testimony would not be admissible under the
14
rule. In addition, Moore’s argument to the trial court barely hints at Evid. R. 1004 as the
basis for admission.
{¶ 37} The state had objected to Scott’s testimony about the contents of the letter on
the basis of hearsay. Defense counsel told the court that the letter “was the preapproval
document that Pam Moore got.” (Tr. 344). Scott, said counsel, “is going to come in and say
that he saw this preapproval document.” (Tr. 345). The trial court replied, “What personal
knowledge would he have? I mean he can’t testify about a document. He can testify about
preapproval if he is a party to the loan.” (Tr. 345). Counsel’s position was that “a document
can be testified to about hearsay [sic] if it can’t be produced, if it hasn’t been kept in the
ordinary course. It’s like a witness unavailable.” (Tr. 347). “But,” said the court, “you’re
trying to prove the contents of the document without the document. And the only person that
can testify to that frankly is your client then if she was the loan applicant. You can’t do it
through other people.” (Tr. 347). The court explained that “if you’re going to try and establish
that there was a loan commitment made you’ve got to either do that with a document that
exists or you have to do it through her testimony or through a person at the bank who was a
part of the transaction.” (Tr. 349). Counsel disagreed, saying that “a missing document, one
that cannot be found, is like a Declarant unavailable.” (Tr. 349). “No, no,” said the court,
“you’re trying to create something out of oil [sic] cloth. You can’t do it through hearsay
testimony of somebody who say[s], ‘I saw a document.’ And matter of fact, he can’t testify
just because he saw a document to the contents of the document even if the document exists. *
* * You’ve got to authenticate that document through a person with personal knowledge of the
contents.” (Tr. 349-350). To this Moore replied, “I would agree entirely with that, but not
15
when a document is unavailable. We have a Declarant who is unavailable.” (Tr. 350).
{¶ 38} Moore took the stand instead of Scott and said that she received a preapproval
letter from Union Savings Bank. After she finished testifying, Moore again tried to admit
Scott’s testimony about the letter’s contents. This time, Moore’s counsel argued only that
Scott’s testimony was admissible hearsay: “I think hearsay would be admissible after they
tried to impeach my client, which they did. They tried to challenge her as to whether or not
this even existed, and so at that point then it’s allowed in to corroborate.” (Tr. 415). But the
trial court did not allow it: “I’m still not going to let him testify as to the contents of a
document that doesn’t exist.” (Tr. 415).
{¶ 39} “‘Proving the contents of a writing presents problems with hearsay,
authentication, and the best evidence rule.’” SFJV 2005, L.L.C. v. Ream, 187 Ohio App. 3d
715, 2010-Ohio-1615, 933 N.E.2d 819, ¶ 46 (2d Dist.), quoting State v. Carter, 4th Dist. Ross
No. 99 CA 2479, 2000 WL 1466189, *5 (Sept. 26, 2000). All three rules are prerequisites to
admission, meaning that all three must be satisfied before content evidence may be admitted.
Here the trial court first excluded Scott’s testimony because the letter was not authenticated.
Accord id. at ¶ 47 (“Documents must be authenticated or identified prior to their admission
into evidence,” citing Evid.R. 901.). The second time that the court excluded the testimony
could have been on best-evidence grounds, though Moore’s argument was admissible hearsay.
{¶ 40} Regardless, even if the trial court did err by excluding Scott’s testimony about
the letter, Moore suffered no prejudice. Moore herself testified that she received the
preapproval letter:
Q. After you started the loan process * * * did you receive any approval?
16
***
A. Yes, I did. I received the letter at my home.
Q. Did Scott know that you had started this loan process?
A. No.
***
Q. Did you keep it a secret from Scott what was going on?
***
A. I kept that secret from him.
Q. Was there ever a time that he found out that you had been approved for a
loan?
A. Yes.
***
Q. Do you know how he found out?
A. I wasn’t home and he came in and I had–I worked out of–on my kitchen
table I had a lot of like papers and documents every night. * * * I had a file and
it was my personal file and it was on the table. And he got to it before I got
home and he saw the letter.
(Tr. 362-364).
{¶ 41} Also, after Moore testified, Scott took the stand. The trial court did allow
some oblique testimony from him about the letter. Defense counsel asked Scott about a day he
stopped at Moore’s house:
Q. Is that also the day that you saw a certain piece of
17
paper sitting on the kitchen table?
A. That was actually a couple of days later. I had stopped off into the house.
Q. What did that piece of paper cause you to do?
A. The paper that I saw on the table created an issue, an argument between me
and Pam.
***
Q. All right. After you saw that piece of paper, did you know that you and Pam
were done for good?
(Tr. 417-418). Scott here unmistakably refers to the preapproval letter, corroborating Moore’s
testimony. Had Scott been allowed to testify about the letter more directly, the outcome of the
trial would not have been any different.
{¶ 42} Moore contends, though, that the trial court deprived her of her right to remain
silent and not testify. She asserts that, because Scott could not testify about the letter, she was
essentially forced to testify in his place. “The Fifth Amendment right against
self-incrimination is a personal right ‘that can only be invoked by the individual whose
testimony is being compelled.’” State v. Williams, 99 Ohio St. 3d 439, 2003-Ohio-4164, 793
N.E.2d 446, ¶ 29, quoting Moran v. Burbine, 475 U.S. 412, 433 fn. 4, 106 S.Ct. 1135, 89
L.Ed.2d 410 (1986). There is no self-incrimination problem, though, if evidence is improperly
admitted and a defendant decides to testify to lessen or overcome the impact of the improperly
admitted evidence. State v. Hawn, 138 Ohio App. 3d 449, 467, 741 N.E.2d 594 (2d
Dist.2000). The defendant’s testimony is “not compelled in the constitutional sense or
18
otherwise derived from the illegality of the improperly admitted evidence.” Id. We note too
that Moore testified on a wide range of topics, not just the letter. Compared to her testimony
on other topics, Moore’s testimony about the letter was relatively brief.
{¶ 43} The fourth assignment of error is overruled.
The Jury Instructions
{¶ 44} The fifth and final assignment of error alleges that the trial court erred by
giving the jury an incorrect and misleading instruction. Moore contends that the instruction is
misleading and confusing and fails to state the applicable law fairly and accurately. “The trial
court retains discretion on how to conform the jury instructions to the evidence presented at
trial.” State v. Condon, 152 Ohio App. 3d 629, 2003-Ohio-2335, 789 N.E.2d 696, ¶ 90 (1st
Dist.), citing State v. Guster, 66 Ohio St.2d 266, 421 N.E.2d 157 (1981). The trial court here
did not abuse its discretion.
{¶ 45} Jury instructions “‘must be a correct, clear, and complete statement of the law
applicable to the case.’” McBride v. Quebe, 2d Dist. Montgomery No. 21310,
2006-Ohio-5128, ¶ 50, quoting Roberts v. State Farm Mut. Auto. Ins. Co., 155 Ohio App.3d.
535, 2003-Ohio-5398, 802 N.E.2d 157, ¶ 48 (2d Dist.). And they “should be tailored to the
facts of the case.” (Citation omitted.) Condon at ¶ 90.
{¶ 46} The instruction Moore challenges is this one:
A title agent must keep funds in an escrow account separate from funds
being held by the agent in any other capacity. A title agent is allowed to hold
the funds in an escrow account in trust for a purchaser until the date of the
closing. A title agent has no possessory interest in the funds in an escrow
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account. A title agent merely maintains the escrow account in order to store
funds belonging to other persons until the date the funds are needed to
complete a real estate transaction.
After a closing has been completed, a title agent may then claim a
portion of the funds as money earned by the agent as his fees or premiums. An
escrow agent may not knowingly make a disbursement from an escrow account
unless all of the funds necessary for the disbursement had been deposited or
transferred electronically into the escrow account and are available for
withdrawal or disbursement or had been physically received by the agent prior
to the disbursement and are intended for deposit no later than the next banking
day after the date of disbursement.
{¶ 47} The state had specifically asked the trial court to give an instruction like this,
citing our opinion in State v. Clayton, 2d Dist. Montgomery No. 22937, 2009-Ohio-7040. The
Clayton defendant was also a title-insurance agent and also had been convicted of aggravated
theft for taking escrow-account funds for his business and personal use. On appeal, he
challenged his conviction based on the sufficiency and manifest weight of the evidence. We
said the evidence showed that the defendant clearly had violated R.C. 3953.23(B), which
contains “[t]he statutory bar to the transfer of escrow funds to a title agency’s operating
account.” Id. at ¶ 20. The challenged instruction here is, in essence, our explanation of the
statutory bar.
{¶ 48} Moore asserts that the instruction places an undue emphasis on civil
regulations. The jury, she says, may have found her guilty because it found that she violated a
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civil regulation, not because she violated the theft statute. As Moore admits, the instruction is
a correct statement of law that applies to the facts of this case. Furthermore,
“[a] single instruction to a jury may not be judged in artificial isolation but must be viewed in
the context of the overall charge.” State v. Price, 60 Ohio St.2d 136, 398 N.E.2d 772 (1979),
at paragraph four of the syllabus. Other instructions make clear that the jury was to find Moore
guilty only if it found beyond a reasonable doubt that she violated the theft statute. Moore says
the trial court should have added cautionary language clarifying that a violation of the civil
provisions does not equate to criminal guilt. But Moore did not ask the court to give a
cautionary instruction.
{¶ 49} The fifth assignment of error is overruled.
{¶ 50} There being no merit to any allegation of error, the judgment of conviction is
affirmed.
.............
GRADY, P.J., and DONOVAN, J., concur.
Copies mailed to:
Mathias H. Heck
Andrew T. French
Jeremiah J. Denslow
Hon. Sumner E. Walters
(Sitting for Hon. Mary K. Huffman)