State v. Jones

[Cite as State v. Jones, 2011-Ohio-4440.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2010CA00214
ELAINE M. JONES :
:
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas Case No. 2009 CR 1565B

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: August 29, 2010

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

KATHLEEN O. TATARSKY MATTHEW PETIT
Assistant Stark County Prosecutor 116 Cleveland Ave. North, Suite 808
Appellate Section Canton, Ohio 44702
110 Central Plaza, South-Suite 510
Canton, Ohio 44702

Delaney, J.

{¶1} Defendant-Appellant, Elaine Jones, appeals the judgment of the Stark

County Court of Common Pleas, convicting her of one count of money laundering, a
felony of the third degree, in violation of R.C. 1315.55(A)(2), one count of grand theft, a

violation of R.C 2913.02(A)(3), a felony of the fourth degree, one count of forgery, a

violation of R.C. 2913.31(A)(3), a felony of the fifth degree, and one count of identity

fraud, a violation of R.C. 2913.49(B)(2), a felony of the fourth degree. The State of Ohio

is Plaintiff-Appellee.

{¶2} The facts underlying the charges are as follow:

{¶3} Michael Roma and Appellant’s brother, Brian Jones, routinely entered into

joint business ventures wherein Jones operated the businesses and Roma acted as the

silent, investment partner.

{¶4} Roma indicated his desire to semi-retire from Roma’s Radiator, a radiator

and air conditioner business that he owned in Perry Township. He and Jones also

became aware that Angello’s Restaurant, in Perry Township, was for sale.

{¶5} In October, 2007, Roma and Jones hired Attorney Gregory Rufo to assist

them in forming a limited liability company named Rom Jon for the sole purpose of

purchasing Angello’s Restaurant. Roma lent Jones $150,000.00 with the understanding

that Jones would pay Roma back. Additionally, Roma paid for several repairs that

needed to be made after Rom Jon acquired the restaurant.

{¶6} Jones was familiar with the restaurant business and agreed to operate the

restaurant, including paying vendors and other bills. Roma and Jones opened two

business accounts at Key Bank. One account was for payroll and one account was for

operations.

{¶7} Appellant was hired as a secretary and bookkeeper for the restaurant.

Her job was described by Roma as taking orders and paying everyday expenses, taxes,
and getting payroll ready to send to accounting. She had twenty years experience in

bookkeeping.

{¶8} Appellant was indicted on December 14, 2009, on the above referenced

charges. She entered a not guilty plea and exercised her right to a jury trial on June 1,

2010. Prior to trial, the State had filed a motion in limine to preclude Appellant from

introducing evidence related to a civil lawsuit filed by Appellant against her brother,

Roma, and Angello’s as well as a counterclaim filed by Roma and others. The trial

court stated that while the civil suit may be a relevant mitigating factor in sentencing,

should Appellant be found guilty, it was irrelevant as it related to Appellant’s guilt or

innocence of the crimes charged. The trial court also told the parties that prior to

questioning a witness regarding the civil suit, the party should first approach the bench

and the court would allow the questioning “for relevance that isn’t outweighed by

confusion of the issues or undue prejudice.” Appellant did not request to use the civil

suit in questioning any of the witnesses at trial.

{¶9} During voir dire, the State exercised a peremptory challenge against Juror

No. 22, the only African-American juror in the jury pool. The trial court asked the State

to give its “race neutral” reason for exercising the challenge. Appellant is Caucasian;

however, her attorney was African-American. The State cited the juror’s negative

feelings toward the court and the fact that the juror had negative body language during

voir dire. The trial court agreed with the State regarding the juror’s hostility towards the

court proceedings in general and accepted the reason with no objection by Appellant.
 {¶10} The State called three witnesses and Appellant testified on her own

behalf. At the conclusion of the trial, the jury convicted Appellant of all counts in the

indictment. Appellant was sentenced to five years of community control.

{¶11} Appellant now appeals her convictions and raises three Assignments of

Error:

{¶12} “I. THE TRIAL COURT’S FINDING OF GUILT IS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.

{¶13} “II. THE TRIAL COURT ERRED IN ALLOWING THE STATE TO

EXERCISE A PEREMPTORY CHALLENGE IN VIOLATION OF BATSON V.

KENTUCKY.

{¶14} “III. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPROPERLY

PRECLUDING THE APPELLANT FROM CROSS EXAMINING THE STATE’S

WITNESSES AND DENYING HIM OF HIS RIGHT TO DUE PROCESS.”

I.

{¶15} In her first assignment of error, Appellant claims that the evidence was

insufficient to support a finding of guilty and that her convictions were against the

manifest weight of the evidence. We disagree.

{¶16} When reviewing a claim of sufficiency of the evidence, an appellate court’s

role 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. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492. Contrary

to a manifest weight argument, a sufficiency analysis raises a question of law and does

not allow the court to weigh the evidence. State v. Martin (1983), 20 Ohio App.3d 172,
175. 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. Thompkins, 78 Ohio St.3d 380,

386, 1997-Ohio-52, 678 N.E.2d 541.

{¶17} Conversely, when analyzing a manifest weight claim, this court sits as a

“thirteenth juror” and in reviewing 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.” State v.

Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541, 548, quoting State v.

Martin (1983), 20 Ohio App.3d 172, 175.

{¶18} In order to convict Appellant of money laundering under R.C.

1315.55(A)(2), the State had to prove as follows:

{¶19} “No person shall conduct or attempt to conduct a transaction knowing that

the property involved in the transaction is the proceeds of some form of unlawful activity

with the intent to conceal or disguise the nature, location, source, ownership, or control

of the property or the intent to avoid a transaction reporting requirement under section

1315.53 of the Revised Code or federal law.”

{¶20} We find that the State presented sufficient evidence showing that

Appellant committed the crime of money laundering and that such conviction was not

against the weight of the evidence. The State introduced evidence that Appellant and

her brother worked together to forge the letter from the Rufo law firm purporting to

transfer shares of Rom Jon to Appellant for the purpose of obtaining a loan to make
improvements on her cabin. Appellant was listed as the owner of Angello’s on the loan

application from Merchant Cash.

{¶21} The proceeds of the loan were transferred to Key Bank on April 25, 2008,

without Roma’s knowledge or approval. The only signatories on the Key Bank account

were Appellant and her brother. The money from the Key Bank account was proven to

have been used to make improvements on a cabin in the name of Appellant.

{¶22} Appellant admitted that she applied for the loan as owner of Rom Jon

using the forged letter. However, she claimed that the transfer of funds was not made

with the intent to defraud Roma or to conceal or disguise the ownership and control of

the property. She claimed that Roma told her to remove him from the account and that

he did not want anything more to do with the business.

{¶23} Roma testified that he did not state to Appellant that he wanted nothing

more to do with the restaurant and that he did not authorize the loan to Appellant.

{¶24} Appellant aided and abetted her brother in committing a forgery to obtain

a loan and used the proceeds of that criminal act to open a bank account without

Roma’s permission and with the intent to conceal the account from Roma. Moreover,

Appellant used the proceeds to further her personal interest in renovating her cabin.

See State v. Daqur, 1st Dist. No. C-050003, 2006-Ohio-955. The evidence was

sufficient to convict Appellant of money laundering and said conviction was not against

the manifest weight of the evidence.

{¶25} In order to prove that Appellant was guilty of theft, the State had to prove

as follows, pursuant to R.C. 2913.02(A):
 {¶26} “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:

{¶27} “(1) Without the consent of the owner or person authorized to give

consent; (2) Beyond the scope of the express or implied consent of the owner or person

authorized to give consent; (3) By deception; (4) By threat; (5) By intimidation.”

{¶28} “Deception means knowingly deceiving another or causing another to be

deceived by any false or misleading representation, by withholding information, by

preventing another from acquiring information, or by any other conduct, act, or omission

that creates, confirms, or perpetuates a false impression in another, including a false

impression as to law, value, state of mind, or other objective or subjective fact.” R.C.

2913.01(A).

{¶29} A person’s intent is determined by considering surrounding facts and

circumstances. State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996,

¶143, citing State v. Johnson (1978), 56 Ohio St.2d 35, 39, 10 O.O.3d 78, 381 N.E.2d

637. It is well settled that a person intends the natural and probable consequences of

their actions. Id.

{¶30} The State presented evidence that Appellant aided and abetted her

brother in committing theft by deception. She signed the loan application as the owner

of Angello’s restaurant for the purpose of obtaining money without the consent of Roma.

The loan proceeds were transferred to the Key Bank account and then to the Fifth Third

account, where Appellant used the proceeds to pay for renovation expenses for her

cabin in the amount of $6,500.00.
 {¶31} We again find sufficient evidence to support Appellant’s conviction and

find that said conviction was not against the manifest weight of the evidence.

{¶32} In order to convict Appellant of forgery, the State was required to prove,

under R.C. 2913.31(A)(3), as follows:

{¶33} “(A) No person, with purpose to defraud, or knowing that the person is

facilitating a fraud, shall do any of the following:

{¶34} “(3) Utter, or possess with purpose to utter, any writing that the person

knows to have been forged.”

{¶35} We find that sufficient evidence existed to prove that Appellant committed

forgery. Evidence was introduced that she presented herself as the owner of Angello’s

restaurant when she applied for the Merchant’s loan and submitted the Rufo letter,

stating that Roma had transferred shares of Rom Jon to her. Appellant’s activity in

submitting a loan application with a forged letter constitutes forgery.

{¶36} There was sufficient evidence to convict Appellant of forgery and said

conviction was not against the manifest weight of the evidence.

{¶37} Finally, in order to prove that Appellant committed the crime of identity

theft, the State had to prove, under R.C. 2913.49(B)(2), as follows:

{¶38} “(B) No person, without the express or implied consent of the other

person, shall use, obtain, or possess any personal identifying information of another

person with intent to do either of the following: * * *

{¶39} “(2) Represent the other person's personal identifying information as the

person's own personal identifying information.”
 {¶40} Appellant admitted that she used an employee of Angello’s personal

information to apply for a credit card. Specifically, the evidence presented showed that

Appellant took the information of Madeia Mendenhall from her employment application

and used it to obtain an American Express credit card in Mendenhall’s name. Appellant

admitted that she did not have Mendenhall’s permission to use her name to obtain the

card, but stated that she added Mendenhall’s name to the card to facilitate paying

vendors of the restaurant. She also indicated to the postrelease that she took out the

card in order to obtain a loan. Mendenhall testified that she did not give permission to

Appellant to put her name on the card and that vendors were not paid by credit card;

rather, they were always paid by check.

{¶41} We find sufficient evidence existed to convict Appellant of identity theft

and that said conviction was not against the weight of the evidence.

{¶42} Appellant’s first assignment of error is overruled.

II.

{¶43} In her second assignment of error, Appellant argues that the trial court

erred in permitting the State to exercise a peremptory challenge against an African

American juror pursuant to the Supreme Court’s ruling in Batson v. Kentucky (1986),

476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. We disagree.

{¶44} In order to succeed on a Batson challenge, the complaining party must

state a prima facie case of purposeful discrimination under Batson, supra. To do so, the

party challenging the strike must demonstrate: (1) that members of a recognized racial

group were peremptorily challenged; and (2) that the facts and circumstances raise an

inference that the prosecutor used the peremptory challenge to exclude the jurors on
account of their race. Whenever a party opposes a peremptory challenge by claiming

racial discrimination “[a] judge should make clear, on the record, that he or she

understands and has applied the precise Batson test when racial discrimination has

been alleged in opposition to a peremptory challenge.” Hicks v. Westinghouse Materials

Co., 78 Ohio St.3d 95, 99, 1997-Ohio-227, 676 N.E.2d 872.

{¶45} In Hicks, the Ohio Supreme Court set forth the Batson test as follows:

{¶46} “The United States Supreme Court set forth in Batson the test to be used

in determining whether a peremptory strike is racially motivated. First, a party opposing

a peremptory challenge must demonstrate a prima-facie case of racial discrimination in

the use of the strike. Id. at 96, 106 S.Ct. at 1723, 90 L.Ed.2d at 87. To establish a

prima-facie case, a litigant must show he or she is a member of a cognizable racial

group and that the peremptory challenge will remove a member of the litigant's race

from the venire. The peremptory-challenge opponent is entitled to rely on the fact that

the strike is an inherently ‘discriminating’ device, permitting ‘those to discriminate who

are of a mind to discriminate’. State v. Hernandez (1992), 63 Ohio St.3d 577, 582, 589

N.E.2d 1310, 1313, certiorari denied (1992), 506 U.S. 898, 113 S.Ct. 279, 121 L.Ed.2d

206. The litigant must then show an inference of racial discrimination by the striking

party. The trial court should consider all relevant circumstances in determining whether

a prima-facie case exists, including all statements by counsel exercising the peremptory

challenge, counsel's questions during voir dire, and whether a pattern of strikes against

minority venire members is present. See, Batson at 96-97, 106 S.Ct. at 1723, 90

L.Ed.2d at 88. Assuming a prima-facie case exists, the striking party must then

articulate a race-neutral explanation ‘related to the particular case to be tried.’ Id. at 95,
106 S.Ct. at 1724, 90 L.Ed.2d at 88. A simple affirmation of general good faith will not

suffice. However, the explanation ‘need not rise to the level justifying exercise of a

challenge for cause.’ Id. at 97, 106 S.Ct. at 723, 90 L.Ed.2d at 88. The critical issue is

whether a discriminatory intent is inherent in counsel's explanation for use of the strike;

intent is present if the explanation is merely pretext for exclusion based on race.

Hernandez v. New York (1991), 500 U.S. 352, 363, 111 S.Ct. 1859, 1868, 114 L.Ed.2d

395, 409. 78 Ohio St.3d. 98-9.”

{¶47} Although the striking party must present a comprehensible reason, “[t]he

second step of this process does not demand an explanation that is persuasive or even

plausible”; so long as the reason is not inherently discriminatory, it suffices. Purkett v.

Elem (1995), 514 U.S. 765, 767-768, 115 S.Ct. 1769. (per curiam); Rice v. Collins

(2006), 546 U.S. 333, 126 S.Ct. 969, 973-74.

{¶48} Finally, the trial court must determine whether the party opposing the

peremptory strike has proved purposeful discrimination. Purkett v. Elem (1995), 514

U.S. 765, 766-767, 115 S.Ct. 1769, 1770. It is at this stage that the persuasiveness, and

credibility, of the justification offered by the striking party becomes relevant. Id. at 768,

115 S.Ct. at 1771. The critical question, which the trial judge must resolve, is whether

counsel's race-neutral explanation should be believed. Hernandez v. New York, 500

U.S. at 365, 111 S.Ct. at 1869; State v. Nash (August 14, 1995), 5th Dist. No. 1995 CA

00024. This final step involves considering “the persuasiveness of the justification”

proffered by the striking party, but “the ultimate burden of persuasion regarding racial

motivation rests with, and never shifts from, the opponent of the strike.” Purkett, supra,

at 768, 115 S.Ct. 1769; Rice v. Collins, supra at 126 S.Ct. 974.
 {¶49} In the case at bar, the trial court asked the jurors at the beginning of voir

dire if there was anything about their prior service on a jury that would impact their

ability to be fair and impartial in the present case.

{¶50} Juror No. 22 raised her hand and stated that she had served on a murder

case several years ago. The court asked, “Anything about your experience that would

impact your ability to sit and be fair and give your complete attention?” Juror 22

responded, “I don’t know.” The court then asked her to elaborate and she stated, “I

didn’t enjoy it.”

{¶51} At that time, the court explained about the importance of the function of

jury duty even though it could be a sometimes “unpleasant” experience. The court then

asked the juror if she could serve on the jury and give her complete attention to the

case, to which she responded, “Yeah, I guess.”

{¶52} Later, during the State’s voir dire of the potential jury, the prosecutor

asked whether the jurors could hold the State to the burden of proof beyond a

reasonable doubt. The prosecutor specifically asked Juror 22 if she could do this and

she indicated by shaking her head side to side. The prosecutor then asked her if “this is

a responsibility that you’re willing to accept” and she indicated by stating, “Uh-huh.” The

prosecutor asked, “Is that a yes?” and she then nodded her head but did not answer

verbally.

{¶53} Later in the proceedings, the State inquired to the jurors as to whether

they could follow the law regarding aiding and abetting. Specifically, the prosecutor

stated, “If one person aids and abets another in the commission of a crime, if you follow
the law as given by the Court, if find those facts proven by proof beyond a reasonable

doubt, would you be able to find the Defendant guilty accordingly?”

{¶54} Several jurors indicated that they could and then when the prosecutor

asked Juror 22, she stated, “I don’t know. What do you mean?” The prosecutor then

explained it again and asked her if she could find the Defendant guilty, and she

responded, “Yeah.”

{¶55} Finally, the prosecutor asked the potential jurors if anyone had ever been

in a courtroom before other than for jury service. Juror 22 indicated that she had been

in court “for a friend of mine’s son was in court” either one or two years before. She

stated that the man had been charged with drug offenses and that she “didn’t think it

was fair”.

{¶56} The State later exercised a peremptory challenge against Juror 22, at

which point the court asked the State to provide a “race neutral basis” for striking the

juror. The State responded:

{¶57} “The question was posed about prior courtroom presence in the

courtroom, the answer was given about the time in the courtroom about the Defendant’s

. . . or the son’s friend a year ago, negative treatment, negative feelings. There was

some equivocal answer given to the Court’s questioning about feelings about being in

court, about whether she could do the job, can’t remember the exact answers, but there

was some equivocation. And then there was some… definitely some negative body

language given that, of course, didn’t translate to the record, but there was definitely

some negative body language, some posturing. But certainly those questions and

answering responses, that did translate to the record.”
 {¶58} The court then asked Appellant’s attorney for a comment, and the attorney

stated, “I didn’t see the body language, but we all heard the testimony… or the

questions and responses.”

{¶59} The court then stated, “Well, the fact of the matter is, I believe that the

juror indicated that she was in this very courtroom, that was an individual that she knew

and was a drug case, she was not happy with the result, thought it was unfair, was

equivocal in earlier questioning. But the fact of the matter is, the Court sensed a certain

amount of hostility which may not be directed at anybody other than the Court involving

how this individual was treated. But, nevertheless, would be important in following the

Court’s instructions of law. And the prosecutor has shown a race neutral basis for

excusing of that juror, and she will be excused. Just wanted to make a record.”

{¶60} There was no objection from Appellant’s trial counsel.

{¶61} Accordingly, we address this assignment of error under a plain error

standard of review, because if a party fails to contest a peremptory challenge under

Batson, that issue is waived, except for plain error. Stewart v. Nazir, 2nd Dist. No.

23806, 2010–Ohio–6346, ¶ 25.

{¶62} We find no error, plain or otherwise, in the trial court’s granting of the

State’s peremptory challenge. The State gave a race neutral reason and the Appellant

never articulated a prima facie case of discrimination – the trial court asked the State to

give a race neutral reason and defense counsel did not even concur in asking for one.

The record demonstrates that the juror was hostile towards the trial court, towards the

prosecutor and that she had been in that exact courtroom and that she thought that

what happened to her friend’s son was “unfair.”
 {¶63} Under the third prong of Batson, the Appellant’s argument also fails. After

the State issued a race neutral reason for striking the juror, Appellant never argued that

the juror should be kept. Accordingly, no error can be found.

{¶64} Appellant’s second assignment of error is overruled.

III.

{¶65} In Appellant’s third assignment of error, she argues that her rights were

violated because she was not permitted to fully cross examine witnesses. We disagree.

{¶66} Trial courts are granted broad discretion with respect to the admission or

exclusion of evidence at trial. State v. Sage (1987), 31 Ohio St.3d 173, 180, 510 N.E.2d

343, 348. Thus, an appellate court will not reverse a trial court’s ruling absent an abuse

of discretion. State v. Myers, 97 Ohio St.3d 335, 348, 2002-Ohio-6658, ¶75. “The term

‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the

court's attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore

(1983), 5 Ohio St.3d 217, 219. Absent an abuse of discretion resulting in material

prejudice to the defendant, a reviewing court should be reluctant to interfere with a trial

court’s decision in this regard. State v. Hymore (1967), 9 Ohio St.2d 122, 224 N.E.2d

126.

{¶67} In the present case, Appellant argues that she was prohibited from cross-

examining witnesses regarding the civil lawsuit filed against her brother and Roma and

the counterclaim filed by Roma. The only basis for this challenge stems from the

State’s motion in limine that was argued prior to the start of trial.

{¶68} The State asked that the court preclude Appellant from mentioning the

lawsuit, and the court found that such evidence would be irrelevant; however, the court
stated that if a party wished to cross examine a witness regarding the issue, they could

approach the bench and have a further discussion regarding the matter. The court did

state that such evidence would be relevant as mitigation for sentencing should the

defendant be found guilty.

{¶69} The record is void of any instances wherein Appellant’s counsel

approached the bench to ask to cross examine a witness regarding the lawsuit.

Accordingly, we find no violation of Appellant’s right of cross examination.

{¶70} Appellant’s third assignment of error is overruled.

{¶71} The judgment of the Stark Count Court of Common Pleas is affirmed.

By: Delaney, J.

Farmer, P.J. and

Wise, J. concur.

HON. PATRICIA A. DELANEY

HON. SHEILA G. FARMER

HON. JOHN W. WISE

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
 :
ELAINE M. JONES :
:
Defendant-Appellant : Case No. 2010CA00214
:

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to

Appellant.

_________________________________
HON. PATRICIA A. DELANEY

_________________________________
HON. SHEILA G. FARMER

_________________________________
HON. JOHN W. WISE