State v. Hulbert

[Cite as State v. Hulbert, 2021-Ohio-2298.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
VAN WERT COUNTY
STATE OF OHIO,
CASE NO. 15-19-07
PLAINTIFF-APPELLEE,
v.
TINA M. HULBERT, OPINION
DEFENDANT-APPELLANT.
Appeal from Van Wert County Common Pleas Court
Trial Court No. CR-18-07-116
Judgment Affirmed
Date of Decision: July 6, 2021
APPEARANCES:
Clayton J. Crates for Appellant
Kelly J. Rauch for Appellee
Case No. 15-19-07
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant Tina M. Hulbert (“Hulbert”) brings this appeal
from the judgment of the Court of Common Pleas of Van Wert County accepting
the guilty verdicts of the jury on two counts of theft from an elderly person or
disabled adult and six counts of forgery. Hulbert claims on appeal that the trial court
erred by denying her Criminal Rule 29 motions, that the convictions are not
supported by sufficient evidence, and that the convictions were against the manifest
weight of the evidence. For the reasons set forth below, the judgment is affirmed.
Facts and Procedural Background
{¶2} Hulbert was employed at Van Wert Manor (“the Manor”), which is
operated by HCF Management (“HCF”), as the office manager for several years. In
2016, Hulbert’s supervisor, Jackie O’Kief (“O’Kief”) was out and Jodi Bennett
(“Bennett”) was brought in to cover for O’Kief. Bennett noticed several
irregularities in the books and brought the matter to the attention of her supervisor,
the regional manager for HCF, Tara Sibert (“Sibert”). Sibert then notified the
corporate staff and they began going through the records where more discrepancies
in the accounts were found. These discrepancies included such items as lateral
transfers from one patient’s account to another patient’s account, which is
prohibited by HCF policy, missing cash funds from patient’s accounts (i.e. cashing
a check made out to a resident for $6,000, but only crediting the resident’s account
with $5,000), accepting cash payments for services not rendered, and checks that
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appeared to be forged. In one case, the review showed a check being cashed for
$513, but the money was not deposited into the resident’s account. Instead, $513
was transferred from another resident into the first resident’s account. Hulbert was
brought in for questioning and indicated that she did not know how it could have
happened. HCF suspended Hulbert while the corporate office pulled the records
and began an audit. Eventually HCF made a report to the police and to the state.
An internal investigation was conducted at the same time as the criminal
investigation with the results of the internal investigation being provided to the
police.
{¶3} On July 12, 2018, the Van Wert County Grand Jury indicted Hulbert on
the following counts: 1) Theft from an Elderly Person or Disabled Adult in violation
of R.C. 2913.02(A)(1), (B)(3) for theft from multiple residents of Van Wert Manor
with a specification that the value stolen was between $37,500 and $150,000, a
felony of the second degree; 2) Forgery against Beth Cobb (“Cobb”) in violation of
R.C. 2913.31(A)(1), (C)(1)(c)(i) with a specification that the victim was elderly and
the value of the property was between $1,000 and $7,500, a felony of the fourth
degree; 3) Forgery against David Chehi (“Chehi”) in violation of R.C.
2913.31(A)(1), (C)(1)(c)(i) with a specification that the victim was elderly and the
value of the property was between $1,000 and $7,500, a felony of the fourth degree;
4) Forgery against Dorothy Kohler (“Kohler”) in violation of R.C. 2913.31(A)(1),
(C)(1)(c)(i) with a specification that the victim was elderly and the value of the
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property was between $1,000 and $7,500, a felony of the fourth degree; 5) Forgery
against Helen Ferrell (“Ferrell”) in violation of R.C. 2913.31(A)(1), (C)(1)(c)(i)
with a specification that the victim was elderly and the value of the property was
between $1,000 and $7,500, a felony of the fourth degree; 6) Forgery against
Frances Thor (“Thor”) in violation of R.C. 2913.31(A)(1), (C)(1)(c)(i) with a
specification that the victim was elderly and the value of the property was between
$1,000 and $7,500, a felony of the fourth degree; 7) Forgery against Marilyn
Kwascigroh (“Kwascigroh”) in violation of R.C. 2913.31(A)(1), (C)(1)(c)(i) with a
specification that the victim was elderly and the value of the property was between
$1,000 and $7,500, a felony of the fourth degree; 8) Forgery against William
Williams (“Williams”) in violation of R.C. 2913.31(A)(1), (C)(1)(c)(i) with a
specification that the victim was elderly and the value of the property was between
$1,000 and $7,500, a felony of the fourth degree; and 9) Theft from an Elderly
Person or Disabled Adult for theft from Betty Schumm (“Schumm”) in violation of
R.C. 2913.02(A)(1), (B)(3) with a specification that the value of the property was
less than $1,000, a felony of the fifth degree. Doc. 2. Hulbert entered pleas of not
guilty to all of the charges. Doc. 9. The trial court scheduled a jury trial for August
2019. Doc. 67. Prior to the trial, the parties entered stipulations as to the
authenticity and admissibility of State’s Exhibits 1-7 and Defense Exhibits A-I.
Doc. 86-87. The trial was held from August 12-15, 2019. During the trial, the trial
court dismissed County 6 of the indictment. Doc. 127. The jury returned verdicts
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of guilty on all the remaining counts as charged in the indictment, including the
specifications. Doc. 96.
{¶4} On September 25, 2019, the trial court held a sentencing hearing. Doc.
119. The trial court determined that Counts 4 and 8 were included in Count 1 and
were thus subject to merger. Doc. 119. The State elected to proceed with sentencing
on Count 1. Doc. 119. The trial court then ordered that Hulbert serve a prison term
of five years on Count 1, 14 months as to Count 2, 14 months as to Count 3, 14
months as to Count 5, 11 months as to Count 7, and 11 months as to Count 9. Doc.
119. The terms were ordered to be served concurrently for an aggregate prison term
of five years. Doc. 119. Hulbert filed a timely notice of appeal from this judgment.
Doc. 131. On appeal, Hulbert raises the following assignments of error.
First Assignment of Error
The trial court committed prejudicial error by denying
[Hulbert’s] Rule 29 motion as to Count One of the indictment.
Second Assignment of Error
The trial court committed prejudicial error by denying
[Hulbert’s] rule 29 motion as to Counts Two through Five and
Counts Seven and Eight.
Third Assignment of Error
[Hulbert’s] convictions were not supported by legally sufficient
evidence.
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Fourth Assignment of Error
[Hulbert’s] convictions were against the manifest weight of the
evidence.
Due to the overlapping of the first, second, and third assignments of error, they will
be addressed together.
Criminal Rule 29 and Sufficiency of the Evidence
{¶5} In the first two assignments of error, Hulbert claims that the trial court
erred in denying her Criminal Rule 29 motions. Criminal Rule 29(A) provides that
the “court on motion of a defendant or on its own motion, after the evidence on
either side is closed, shall order the entry of a judgment of acquittal of one or more
offenses charged in the indictment * * * if the evidence is insufficient to sustain a
conviction of such offense or offenses.” Thus, the standard of review for a denial
of a Criminal Rule 29 motion is the same as the standard of review for a sufficiency
of the evidence claim. State v. Carter, 72 Ohio St.3d 545, 553, 1995-Ohio-104, 651
N.E.2d 965. The question of whether the evidence presented at trial is legally
sufficient to support a verdict is a question of law. State v. Thompkins, 78 Ohio
St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. Sufficiency is basically a term of
adequacy. Id.An appellate court's function when reviewing the sufficiency of
the evidence to support a criminal conviction is to examine the
evidence admitted at trial to determine whether such evidence, if
believed, would convince the average mind of the defendant's
guilt beyond a reasonable doubt. * * * Accordingly, “[t]he
relevant inquiry is whether, after viewing the evidence in a light
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most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime proven beyond a
reasonable doubt.” * * * “In deciding if the evidence was
sufficient, we neither resolve evidentiary conflicts nor assess the
credibility of witnesses, as both are functions reserved for the trier
of fact.”
State v. Adkins, 3d Dist. Allen No. 1-19-71, 2020 -Ohio- 6799, ¶ 37 (citations
omitted).
{¶6} In the first assignment of error, Hulbert claims that the evidence was
insufficient to support a conviction on Count 1. Count 1 stated that Hulbert had
violated R.C. 2913.02(A)(1), (B)(3). To prove this offense, the state had to show
that Hulbert 1) knowingly 2) obtained control over the money 3) with the purpose
to deprive the owner of the property 4) without the consent of the owner, 5) that the
victims were elderly or disabled adults, and 6) that the value of the property stolen
was between $37,500 and $150,000. A disabled adult is defined as “a person who
is eighteen years of age or older and has some impairment of body or mind that
makes the person unable to work at any substantially remunerative employment that
the person otherwise would be able to perform and that will, with reasonable
probability, continue for a period of at least twelve months without any present
indication of recovery from the impairment, or who is eighteen years of age or older
and has been certified as permanently and totally disabled by an agency of this state
or the United States that has the function of so classifying persons.” R.C.
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2913.01(DD). An elderly person is one who is 65 years of age or older. R.C.
2913.01(CC).
{¶7} In this case, Jacque Welch (“Welch”) testified that she was the
administrator at the Manor. Tr. 366-67. Hulbert was the business office manager
and was the one responsible for collecting residents’ payments, making bank
deposits, managing the balance of the resident trust accounts, and managing the
internal funds for the residents. Tr. 372, 390. This process was done through the
PointClickCare (“PCC”) system and each person has an individual password that is
not shared with others. Tr. 377, 381. Hulbert was responsible for providing
quarterly resident trust statements to residents or their representatives, but Welch
learned after Hulbert’s termination that this was not being done. Tr. 397. Welch
testified that when a resident wanted money from the individual account, the
resident or a family member should sign either the withdrawal form or a receipt to
justify the withdrawal. Tr. 400. The office manager should also sign the receipt
and all receipts were to be kept in a binder for tracking. Tr. 401. If no receipt for
the money was provided, the withdrawal form should still be signed by the resident
or his/her representative. Tr. 403. Welch testified that Hulbert was responsible for
reporting any issues with a patient withdrawing too much money or any transactions
that were out of the ordinary. Tr. 404. According to Welch, the corporate office
began investigating Hulbert when a lateral transfer was found in the account of
resident Bonnie Clemens (“Clemens”) because lateral transfers are not permitted
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between resident accounts. Tr. 409-410. Welch testified that after Hulbert was
terminated, she mailed out trust statements and many families notified her they had
never seen them before and questioned the withdrawals listed on them. Tr. 419.
{¶8} Amber Showalter (“Showalter”) Showalter testified that she was a
licensed social worker employed by the Manor for 17 years. Tr. 469. As part of
her job, Showalter had direct and frequent contact with the residents. Tr. 470.
Showalter indicated that she, in her capacity as social worker at the Manor,
sometimes takes money from the cash box for the resident to make requested
purchases, but always turns in the change and the receipts. Tr. 472. Showalter also
testified that Hulbert never notified her that there were any missing funds from the
cash box. Tr. 473. Showalter indicated that she was familiar with many of the
residents at the Manor. Tr. 474-75. She specifically noted that resident Craig
Gunsett (“Gunsett”) suffered from severe cognitive impairment, as he was unable
to answer any of the questions correctly and scored a zero on the testing. Tr. 481-
82, 484. She indicated that Clemens was totally dependent on the staff for care and
suffered from severe cognitive deficits. Tr. 486. According to Showalter, Williams
had poor short term memory and while he may knew the staff and where he was, he
would not know such basic information as what day it was. Tr. 488. Showalter
testified that Williams did not speak much and kept to himself. Tr. 487. When
asked about PCC, Showalter testified that she has access to PCC, but not to the
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resident trust accounts and she can only gain access to PCC through her own
passwords. Tr. 494.
{¶9} Sibert testified that she was the regional manager for HCF and oversees
the Manor, including the finances. Tr. 524-25. According to Sibert, each employee
has an individual password for PCC, which needs to be changed routinely. Tr. 530-
31. Only the home office has access to everyone’s individual passwords. Tr. 532.
Sibert testified that Hulbert was a trusted employee who oversaw all the cash that
came into the Manor, both for the Manor and the residents. Tr. 533-34. Hulbert
was the one responsible for all deposits and inputting the data to the accounts. Tr.
543. Sibert first learned there were issues with the accounts when Bennett took over
managing the Manor’s books while O’Kief was out.1 Tr. 542. As Sibert and Bennett
began looking into the accounts, they found more discrepancies, notified HCF
corporate staff, and called Hulbert in for a meeting. Tr. 543. Sibert asked Hulbert
to explain the lateral transfers that were done in PCC under Hulbert’s password and
Hulbert said she did not know how it could have happened. Tr. 544. Sibert then
began an internal audit and eventually called the police. Tr. 545. Sibert identified
Ex. 5 as a summary of the internal investigation. Tr. 548.
{¶10} Bennett testified that she went to the Manor because O’Kief was
absent and a question was raised regarding some checks written out of the resident
1
Sibert and Bennett gave different reasons for O’Kief’s absence. Why she was absent was irrelevant to the
case before us.
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trust account. Tr. 583-84. While reviewing the books, she noted that there was a
lateral transfer in to Clemens’ account for $513 from Gunsett’s account. Tr. 588.
Bennett also noted there was a check for Clemens in the amount of $513 which was
cashed, but no deposit of that amount was made into Clemens account. Tr. 588. As
Bennett continued to review Clemens account, she saw several lateral transfers. Tr.
590. Bennett identified Ex. 5 as the accounts receivable spreadsheet created and
Ex. 4 as the lateral transfers she found during an audit. Tr. 592-94. A review of Ex.
4 states the birthdates of the residents affected. Bennett noted that no birthdate was
provided for Williams or Kwascigroh. Tr. 621, 624. She did provide birth dates for
several other residents. Tr. 615-624.
{¶11} A review of Exhibits 4, 5, and 6, show that several accounts were
missing funds. Some were short funds due to lateral transfers, some due to missing
cash deposits, and others due to the issuance of improper checks signed by Hulbert.
Of those accounts, there are 49 residents affected for which evidence was provided
that they were either over the age of 65 (elderly) or met the statutory definition of
disabled.2 The total amount misappropriated from the accounts of those residents
was between the amounts of $37,500 and $150,000.
{¶12} The only issue that did not have supporting testimony to support the
conviction was the lack of consent. Hulbert specifically claims that the State failed
2
Testimony was provided about several other residents and evidence was provided about the losses for those
people. However, no evidence was presented that those other residents were either elderly or disabled, so
this Court will not include them in the review.
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to present any evidence that the owners of the property did not give consent to
Hulbert to take control of the money. Basically, she is arguing that since she was
the office manager, she had the implied consent of the residents to manage their
money. However, the jury, without supporting testimony, could infer that the
residents did not consent to Hulbert taking their money and giving it either to other
residents or to Hulbert, herself. State v. Swartz, 6th Dist. Lucas No. L-90-107, 1991
WL 82979 (May 17, 1991). The Ohio Administrative Code sets forth requirements
for the management of resident’s personal funds by nursing facilities, such as the
Manor. Ohio Adm.Code 5160-3-16.5(E).3
(E) Accounting and records.
(1) A NF provider shall establish and maintain a system that
ensures full, complete, and separate accounting of each resident's
PNA account funds.
(2) A NF provider shall not commingle a resident's accounts or
funds with the provider's accounts or funds, or with the accounts
or funds of any individual other than another NF resident.
(3) A NF provider shall provide a resident with access to petty
cash (less than fifty dollars) on an ongoing basis and shall arrange
for the resident to access larger funds (fifty dollars or more). A
NF provider shall give residents a receipt for every transaction,
and the NF provider shall retain a copy.
(4) A NF provider shall obtain a resident's signature upon the
resident's receipt of PNA funds. If the resident is unable to sign
his or her name, he or she shall acknowledge receipt of the money
by marking an “X.” Two persons shall verify through signature
that they have witnessed the resident's action.
3
In this section, “NF” stands for nursing facility and “PNA” stands for patient needs account.
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(5) A NF provider shall maintain an individual ledger account of
revenue and expenses for each PNA account managed by the
facility. The ledger account shall meet all the following criteria:
(a) Specify all funds received by or deposited with the NF
provider. For PNA account funds deposited in banks, monies shall
be credited to the resident's bank account within three business
days; and
(b) Specify the dates and reasons for all expenditures; and
(c) Specify at all times the balance due the resident, including
interest earned as last reported by the bank to the provider; and
(d) Be available to the resident or the resident's representative for
review.
(6) Upon request, a NF provider shall provide receipts to a
resident or the resident's representative for purchases made with
the resident's PNA funds.
(7) Within thirty days after the end of the quarter, a NF provider
shall provide a written quarterly statement to each resident or
resident's representative of all financial transactions made by the
provider on the resident's behalf.
Pursuant to the regulations, the consent to withdraw money must have a written
receipt signed by the resident or representative and at least marked by an X, verified
by two people. That did not occur in these cases. Detective Cory Reindel
(“Reindel”) of the Van Wert City Police Department testified that during his
investigation, no residents or their representatives he spoke with indicated there was
any consent to Hulbert possessing or moving the funds to third parties. Tr. 215.
Showalter testified that several of the residents involved were incapable of giving
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consent. Based upon this evidence, the jury could reasonably find that Hulbert
committed her actions without the consent of the residents or their representatives.
{¶13} Viewing the evidence in a light most favorable to the State, evidence
was presented as to each element of the offense charged in Count 1. The evidence
was not insufficient and the first assignment of error is overruled.
{¶14} In the second assignment of error, Hulbert claims that in Counts 2-5,
and 7-8, the evidence was not sufficient to support the charges of forgery. To prove
a claim of forgery, the State is required to show that 1) Hulbert, 2) knowing that she
was engaged in a fraud, 3) forged a writing of another 4) without that person’s
authority, 5) that the victims were elderly or disabled adults4, and 6) that the amount
affected was between the amounts of $1,000 and $7,500. R.C. 2913.31(A)(1),
(C)(1)(c)(i). The statutory definitions of elderly and disabled adults were set forth
above.
{¶15} Count 2 alleged that the victim of the forgery was Cobb. Showalter
testified that Cobb was severely cognitively impaired due to an accident that caused
a severe brain injury and Cobb’s parents made most of her decisions. Tr. 490.
Although Cobb, who was born in 1966, was not elderly pursuant to the statute, she
could be considered a disabled adult under the statutory definition. R.C.
2913.01(DD). Reindel identified Ex. 3 as photocopies of checks that were suspected
4
The requirement of proving that the victim was elderly was not required for Count 7 as that element was
dismissed and the Count was amended to be a felony of the fifth degree rather than a felony of the fourth
degree.
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to be forged. Tr. 204. Along with the checks, Reindel examined sample signatures
from the residents taken from the intake paperwork. Tr. 204. Reindel compared
the original signatures to the ones on the checks in Ex. 3 and found them to be
“obviously different penmanship”. Tr. 205. A review of Ex. 3B, pages 54-60, show
seven different checks allegedly signed by Cobb, yet there are distinct differences
between the signatures and Reindel said they were all different from the sample
signatures he reviewed. The total of these checks was $2,400. Reindel also testified
that during his investigation, the residents and family members all denied signing
the checks or giving Hulbert permission to do so. Tr. 215. From this information,
a reasonable juror could find that these checks were signed by someone besides
Cobb for a fraudulent purpose and that the amount was between $1,000 and $7,500.
Because Hulbert endorsed the checks and cashed them, the jurors could reasonably
infer that she was the one responsible. Viewing the evidence in a light most
favorable to the State, the evidence is sufficient to support a conviction as to Count
2.
{¶16} Count 3 alleged that the victim of the forgery was Chehi. Showalter
testified that she was familiar with Chehi. Tr. 475. Bennett testified that Chehi was
born in February of 1948. Tr. 624. Reindel testified that along with the checks, he
examined sample signatures from the residents taken from the intake paperwork.
Tr. 204. Reindel compared the original signatures to the ones on the checks in Ex.
3 and found them to be “obviously different penmanship”. Tr. 205. A review of
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Ex. 3B, pages 45-52, show seven different checks allegedly signed by Chehi, yet
there are distinct differences between the signatures and Reindel said they were all
different from the sample signatures he reviewed. The total of these checks was
$3,050. Of the checks that were cashed after Chehi’s 65th birthday, a total of $2,250
was missing. Reindel also testified that during his investigation, the residents and
family members all denied signing the checks or giving Hulbert permission to do
so. Tr. 215. From this information, a reasonable juror could find that these checks
were signed by someone besides Chehi for a fraudulent purpose and that the amount
was between $1,000 and $7,500. Because Hulbert endorsed the checks and cashed
them, the jurors could reasonably infer that she was the one responsible. Viewing
the evidence in a light most favorable to the State, the evidence is sufficient to
support a conviction as to Count 3.
{¶17} Count 4 claimed that Kohler was the victim of forgery. This Court
notes that Count 4 was merged into Count 1 for the purposes of sentencing. When
a conviction is merged with another for the purposes of sentencing, there is no
longer a conviction to be vacated, so the sufficiency of the evidence to support the
conviction need not be addressed as long as the evidence is sufficient to support the
selected conviction. State v. Turner, 2nd Dist. Clark No. 2017-CA-78, 2019-Ohio-
144, ¶ 22. This Court has already held that the evidence was sufficient to support a
conviction pursuant to Count 1. Thus, this Court need not address the sufficiency
of the evidence as to Count 4.
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{¶18} Count 5 alleged that the victim of the forgery was Ferrell. Bennett
testified that Ferrell was born in 1920. Tr. 624. This would make her older than 65
for all relevant dates. Reindel testified that along with the checks, he examined
sample signatures from the residents taken from the intake paperwork. Tr. 204.
Reindel compared the original signatures to the ones on the checks in Ex. 3 and
found them to be “obviously different penmanship”. Tr. 205. A review of Ex. 3B,
pages 77-83, show seven different checks allegedly signed by Ferrell, yet there are
distinct differences between the signatures and Reindel said they were all different
from the sample signatures he reviewed. The total of these checks was $2,550.
Reindel also testified that during his investigation, the residents and family members
all denied signing the checks or giving Hulbert permission to do so. Tr. 215. From
this information, a reasonable juror could find that these checks were signed by
someone besides Ferrell for a fraudulent purpose and that the amount was between
$1,000 and $7,500. Because Hulbert endorsed the checks and cashed them, the
jurors could reasonably infer that she was the one responsible. Viewing the
evidence in a light most favorable to the State, the evidence is sufficient to support
a conviction as to Count 5.
{¶19} Count 7 alleged that the victim of the forgery was Kwascigroh. As no
evidence was presented showing that Kwascigroh was either elderly or a disabled
adult pursuant to the statute, the trial court granted the Criminal Rule 29 motion as
to that portion of the indicted charge. Reindel testified that along with the checks,
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he examined sample signatures from the residents taken from the intake paperwork.
Tr. 204. Reindel compared the original signatures to the ones on the checks in Ex.
3 and found them to be “obviously different penmanship”. Tr. 205. A review of
Ex. 3B, pages 151-154, show four different checks allegedly signed by Kwascigroh,
yet there are distinct differences between the signatures and Reindel said they were
all different from the sample signatures he reviewed. The total of these checks was
$2,458. Reindel also testified that during his investigation, the residents and family
members all denied signing the checks or giving Hulbert permission to do so. Tr.
215. From this information, a reasonable juror could find that these checks were
signed by someone besides Kwascigroh for a fraudulent purpose and that the
amount was between $1,000 and $7,500. Because Hulbert endorsed the checks and
cashed them, the jurors could reasonably infer that she was the one responsible.
Viewing the evidence in a light most favorable to the State, the evidence is sufficient
to support a conviction as to Count 7.
{¶20} Count 8 claimed that Williams was the victim of forgery. This Court
notes that Count 8 was merged into Count 1 for the purposes of sentencing. When
a conviction is merged with another for the purposes of sentencing, there is no
longer a conviction to be vacated, so the sufficiency of the evidence to support the
conviction need not be addressed as long as the evidence is sufficient to support the
selected conviction. Turner, supra. This Court has already held that the evidence
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was sufficient to support a conviction pursuant to Count 1. Thus, this Court need
not address the sufficiency of the evidence as to Count 8.
{¶21} This Court finds that the evidence is not insufficient to support the
convictions as to Counts 2, 3, 5, and 7. Counts 4 and 8 are allied offense of similar
import which merged for the purposes of sentencing and thus the sufficiency of the
evidence need not be considered. For these reasons, the second assignment of error
is overruled.
{¶22} Hulbert argues in the third assignment of error that her convictions
were not supported by sufficient evidence. This Court has already addressed this
issue as to Counts 1-5 and 7-8. In Count 9, Hulbert was charged with theft of less
than $1,000 from an elderly person in violation of R.C. 2913.02(A)(1), (B)(3). As
discussed above, the State had to prove that that Hulbert 1) knowingly 2) obtained
control over the money 3) with the purpose to deprive the owner of the property 4)
without the consent of the owner, 5) that the victims were elderly or disabled adults,
and 6) that the value of the property stolen was less than $1,000. The victim as to
Count 9 was Betty Schumm (“Schumm”). In Ex. 3(A), the jury was shown a check
dated June 21, 2016, for $800.00 made out to Schumm. The back of the check
shows it was allegedly endorsed by Schumm and then by Hulbert. Dennis Schumm
(“Dennis”) testified that he was the son of Schumm. Tr. 499. He testified that by
June of 2016, Schumm had advanced dementia, was incapable of having a
conversation, and was incapable of signing anything as she no longer had control of
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her hands. Tr. 504-505. Dennis indicated that the signature on the back of the check
was not Schumm’s. Tr. 501. At no time did anyone contact him requesting to
withdraw the money and he never saw a patient trust account report. Tr. 504.
Dennis testified that the money was missing. Tr. 500. Reindel testified that no
record of the cash being deposited for Schumm or a receipt for use of the money
was found when investigated. Tr. 209. Bennett testified that Schumm was born in
1923, which would have made her 93 years of age at the time the cash from the
check was taken. Tr. 623. Bennett also testified that by her calculations, Schumm
was missing $787.60. Tr. 623. Viewing this testimony in a light most favorable to
the State, the evidence is sufficient to support the conviction. The third assignment
of error is overruled.
{¶23} Finally, Hulbert argues that her convictions are against the manifest
weight of the evidence. When reviewing a judgment to determine if it is against
the manifest weight of the evidence, an appellate court “review[s] the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of
witnesses and determines whether in resolving conflicts in the evidence, the jury
clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.” State v. Mendoza, 137 Ohio
App.3d 336, 738 N.E.2d 822 (2000). See, also, State v. Thompkins, 78 Ohio St.3d
380, 387, 678 N.E.2d 541 (1997). A new trial should be granted only in the
exceptional case in which the evidence weighs heavily against
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Case No. 15-19-07
conviction. Thompkins at 387, 678 N.E.2d 541. Although the appellate court acts as
a “thirteenth juror,” due deference to the findings made by the fact-finder must still
be given. State v. Moorer, 3d Dist. 13–12–22, 2013-Ohio-650, 2013 WL 684735, ¶
29.
{¶24} In this case, there were substantial records revealing a number of
specific transactions from which a direct inference could be drawn that Hulbert was
the one responsible for the missing funds. For example, the receipt for $513 to be
deposited in Clemens’ account showed Hulbert accepting the check and cashing it,
but no deposit to Clemens was ever made. Instead, a lateral transfer was made from
the account of another resident in the amount of $513. Hulbert signed the deposit
slip and the check and Hulbert’s password was the one used to make the lateral
transfer. Another instance showed a resident receiving a check for $6,000, which
was cashed by Hulbert. However, only $5,000 was deposited into the resident’s
account. The remaining $1,000 is missing. At approximately the same time,
Hulbert’s accounts show a cash deposit of $1,000 being made. The jury could
reasonably infer that the money was the missing funds. Exhibit 4 shows thousands
of dollars in lateral transfers between residents’ accounts, all performed under the
PCC password of Hulbert. Exhibits 5 and 6 show missing cash from receipts and
checks requested by Hulbert for residents which have no documentation as to why
they were requested and the funds disappeared. This Court has reviewed all of the
exhibits in detail to verify that all of the elements were met. A review of the record
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before this Court does not show that the jury clearly lost its way, that the evidence
weighs heavily against conviction, or that a manifest miscarriage of justice occurred.
Thus, the convictions are not against the manifest weight of the evidence. The
fourth assignment of error is overruled.
{¶25} Having found no prejudicial errors in the particulars assigned and
argued, the judgment of the Court of Common Pleas of Van Wert County is
affirmed.
Judgment Affirmed
SHAW and ZIMMERMAN, J.J., concur.
/hls
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