State v. Elahee

[Cite as State v. Elahee, 2017-Ohio-7085.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-160640
TRIAL NO. 16CRB-12621
Plaintiff-Appellee, :
vs. : O P I N I O N.
ROBERT ELAHEE, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 4, 2017
Paula B. Meuthing, City Solicitor, Natalia S. Harris, City Prosecutor, and Jennifer
Bishop, Assistant City Prosecutor, for Plaintiff-Appellee City of Cincinnati, State of
Ohio,
Michael Trapp, for Defendant-Appellant Robert Elahee.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} Robert Elahee was found guilty of attempted theft after a bench trial. He
appeals, claiming the conviction was not supported by sufficient evidence because the
state failed to prove he had the purpose to commit theft and that he took a substantial
step toward committing a theft offense. We overrule the assignment of error and affirm
the trial court’s judgment.
Factual and Procedural Background
{¶2} Annette McFarland was downtown having a drink when she was
approached by Elahee, who asked her if she had a state ID. When she responded that
she did, he asked her if she wanted to make some extra money. McFarland was
interested, so she got into a car driven by another man, whom Elahee had hired to drive
them, and they drove to the Fifth Third Bank in Hyde Park.
{¶3} As they were driving, Elahee directed her to open a checking account and
obtain starter checks and a bank card so he could go to another bank and cash a check.
After successfully cashing the check, she and the driver would each be paid $100.
{¶4} The plan was for her to deposit $45 of her own cash and five or six dollars
from Elahee to open the account. She entered the bank to open the account and spoke
with the bank manager, Marybeth Calendine. Calendine began asking McFarland
questions to determine the best account for her. McFarland became confused and could
not answer the questions. McFarland said that she needed to call her mother and would
return shortly.
{¶5} McFarland returned to the car and told Elahee the bank would not give
her a bank card. Instead, the bank would mail her a card. Elahee then started calling
her names and instructed her on the necessary steps to open a checking and savings
account. She returned to the bank five or ten minutes later.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} This time, McFarland insisted on a checking and savings account.
Calendine asked questions to ensure a checking and savings account would best suit her
needs. Based on McFarland’s responses, Calendine recommended a product that was
not a checking account. Again McFarland left to call her mother.
{¶7} She returned to the car, and Elahee continued to yell at her. When she
reentered the bank 15 minutes later, McFarland told Calendine about the plan because
she was afraid of Elahee. Calendine called the police.
{¶8} Officer Victoria Wysel responded to Fifth Third Bank after hearing a radio
run about possible fraud. After interviewing Calendine and McFarland, Wysel spoke
with Elahee, who claimed that McFarland was a friend of his and had asked him for a
ride to the bank. When Wysel found several starter checks from Wells Fargo in Elahee’s
pocket, he denied the checks were his.
{¶9} Wysel brought the starter checks to Calendine, and she attempted to
verify whether the starter checks were valid. Calendine testified that starter checks are
given to individuals when they initially open a checking account. Customers can use the
starter checks until their checks arrive in the mail. When a bank is presented with a
starter check, it raises a red flag. Calendine further explained that Fifth Third Bank no
longer issues starter checks. The bank orders the checks, and the customer receives the
checks ten days later in the mail.
{¶10} Elahee did not introduce any evidence.
{¶11} The trial court found him guilty. The court sentenced Elahee to 90 days
in jail, a $100 fine, and court costs.
{¶12} In one assignment of error, Elahee claims the state failed to prove he had
the purpose to commit theft and that he took a substantial step toward committing the
theft offense.
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OHIO FIRST DISTRICT COURT OF APPEALS
Law and Analysis
{¶13} When reviewing a challenge to the sufficiency of the evidence, we must
determine, after viewing the evidence in a light most favorable to the prosecution,
whether any rational trier of fact could have found the essential elements of the offense
proved beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99
S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
{¶14} Elahee was charged with attempted theft in violation of R.C.
2913.02(A)(1) and 2923.02(B). R.C. 2913.02(A)(1) states:
(A) No person, with purpose to deprive the owner of property or services,
shall knowingly obtain or exert control over either the property or
services in any of the following ways:
(1) Without the consent of the owner or person authorized to give
consent.
{¶15} R.C. 2923.02(B), the attempt statute, states:
No person, purposely or knowingly, and when purpose or knowledge is
sufficient culpability for the commission of an offense, shall engage in
conduct that, if successful, would constitute or result in the offense.
{¶16} The Ohio Supreme Court has further defined a criminal attempt as “when
one purposely does or omits to do anything which is an act or omission constituting a
substantial step in a course of conduct planned to culminate in his commission of the
crime.” State v. Woods, 48 Ohio St. 2d 127, 357 N.E.2d 1059 (1976), paragraph one of
the syllabus, vacated on other grounds, 438 U.S. 910, 98 S. Ct. 3133, 57 L. Ed. 2d 153
(1978). To constitute a substantial step, the offender's conduct need not be the last
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OHIO FIRST DISTRICT COURT OF APPEALS
proximate act prior to the commission of the offense, but it “must be strongly
corroborative of the actor's criminal purpose.” Id.
{¶17} The focus is on the defendant’s overt acts that “convincingly demonstrate
a firm purpose to commit a crime, while allowing police intervention * * * in order to
prevent the crime when the criminal intent becomes apparent.” State v. Group, 98 Ohio
St.3d 248, 2002-Ohio-7247, 781 N.E.2d 980, ¶ 102, quoting Woods at 132. “ ‘Precisely
what conduct will be held to be a substantial step must be determined by evaluating the
facts and circumstances of each particular case.’ ” State v. Miller, 3d Dist. Seneca No.
13-12-52, 2013-Ohio-3194, ¶ 31, quoting State v. Butler, 5th Dist. Holmes No. 2012-CA-
7, 2012-Ohio-5030, ¶ 28.
{¶18} Elahee first claims that the state failed to prove that he had the purpose to
commit a theft. We disagree. McFarland testified that Elahee approached her and
offered her money to open a checking account. He instructed her to open the account
with $50 and obtain starter checks for him to cash. After successfully cashing the
checks, McFarland and the driver would each be paid $100. McFarland’s testimony was
sufficient to establish that Elahee had the purpose to commit theft. He intended to write
checks for at least $200 to pay McFarland and the driver, knowing the account would
not contain $200.
{¶19} Elahee also claims the state failed to prove that he took a substantial step
toward committing the theft offense. The state offered sufficient evidence, if believed, to
support that Elahee took a substantial step.
{¶20} Elahee solicited McFarland to open a bank account, hired a driver to take
them from downtown to the bank, and repeatedly instructed McFarland about opening
the account. And McFarland’s testimony was corroborated by Calendine. The trier of
fact could find that all of the overt actions Elahee took convincingly demonstrated a firm
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OHIO FIRST DISTRICT COURT OF APPEALS
purpose to commit a crime. Therefore, we cannot find that there was insufficient
evidence to convict Elahee of attempted theft.
Conclusion
{¶21} Because we find no merit to Elahee’s sole assignment of error, we
overrule it and affirm the trial court’s judgment.
Judgment affirmed.
MOCK, P.J., and DETERS, J., concur.
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