State v. Smith

[Cite as State v. Smith, 2014-Ohio-3480.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 26892

Appellee

v. APPEAL FROM JUDGMENT
ENTERED IN THE
DALTON G. SMITH COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 12 12 3395

DECISION AND JOURNAL ENTRY

Dated: August 13, 2014

BELFANCE, Presiding Judge.

{¶1} Appellant Dalton G. Smith appeals from his conviction for forgery in the Summit

County Court of Common Pleas. For the reasons set forth below, we affirm.

I.

{¶2} In November 2012, Mr. Smith and David Brooker were pastors at God’s Magic

City Church in Barberton. The church premises consisted of a number of buildings including a

residential building that had been a former convent. It appears from the record that Mr. Smith,

who was in his eighties, had control over the church premises, including the convent, and

determined who would stay on the premises. Mr. Brooker and Michael Stevenson resided in the

former convent on the premises.

{¶3} In November 2012, while having breakfast in the convent kitchen, Mr. Brooker

found a preprinted form document which purported to be an application and order of judgment in
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the “Summit County” “Municipal Court of Common Pleas.” Mr. Brooker was listed as the

defendant, and Judge Allison McCarty’s name was printed on the signature line of the document.

{¶4} An investigation ensued, and Mr. Smith was indicted for forgery, a felony of the

fifth degree, under R.C. 2913.31(A)(1), (2), and (3). After a bench trial, Mr. Smith was found

guilty of forgery under R.C. 2913.31(A)(1) and (3) and received a sentence of 12 months of

community control.

{¶5} Mr. Smith has appealed, raising two assignments of error for our review.

II.

ASSIGNMENT OF ERROR I

THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT APPELLANT’S
CONVICTION OF FORGERY.

{¶6} In Mr. Smith’s first assignment of error, he argues that there was insufficient

evidence to support his conviction for forgery.

{¶7} “Whether a conviction is supported by sufficient evidence is a question of law

that this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009-Ohio-

6955, ¶ 18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

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. The relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

{¶8} Three witnesses testified for the State: Mr. Stevenson, Mr. Brooker, and

Detective Matthew Hudak of the Barberton Police Department. In November 2012, both Mr.

Stevenson and Mr. Brooker were residing at the convent. Mr. Brooker served as an acting pastor
 3

of the church and stayed in the convent in partial payment for his services. Mr. Smith did not

live at the convent, but had an office there and was there several times a week.

{¶9} Within months after hire, Mr. Smith wanted Mr. Brooker to leave the church, as

he was not happy with Mr. Brooker’s erratic behavior. According to Mr. Smith, Mr. Brooker

was abusing pain medication and this caused him to act in a “crazy” manner. Mr. Smith offered

Mr. Brooker money to move out of the convent; however, Mr. Brooker did not leave.

Approximately five days before Mr. Brooker found the document at issue, Mr. Smith brought

two Barberton police officers to Mr. Brooker’s room in the convent to attempt to force him to

leave. When Mr. Brooker said that he was a resident of the convent, the police told Mr. Smith

that he would have to get a writ of eviction. Mr. Smith did not file eviction proceedings against

Mr. Brooker at that time.

{¶10} On November 28, 2012, Mr. Stevenson and Mr. Brooker were getting ready to eat

breakfast at the convent kitchen table when Mr. Stevenson noticed a piece of paper under his

placemat. He slid the paper out from under the placemat, saw Mr. Brooker’s name on it, and

handed it to Mr. Brooker. There were no other pieces of paper on the kitchen table. According

to Mr. Stevenson, the paper had not been there the evening before when the two ate dinner at the

same table around 6:30 p.m.

{¶11} The document purported to be an application and order of judgment in the

“Summit County” “Municipal Court of Common Pleas.” The church and Mr. Smith were listed

as plaintiffs, and Mr. Brooker was listed as defendant. The order of judgment stated that the

church could recover against Mr. Brooker in the sum of $75.00 per week, with interest at ten

percent, starting from November 26, 2012. The name “Judge Allison McCarty” was printed in

block capitals on the judge’s signature line.
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{¶12} Mr. Brooker looked at the document and did not see a seal or a time and date

stamp, so he questioned the authenticity of the document. Also, he knew that the Summit

County Municipal Court of Common Pleas did not exist. Notwithstanding, Mr. Brooker then

called the clerk of courts, Judge McCarty’s office, and the municipal court to determine whether

the document was authentic. Both the clerk of courts and Judge McCarty’s office told him that

the document was not authentic, but recommended that he also check with the township he lived

in. The Barberton clerk of courts told him that the document was real, but it had not been

handled by their office. Mr. Brooker also took the document to the mayor’s office and finally

gave it to the Barberton Police Department. Several of the offices made copies of the document.

{¶13} On December 3, 2012, the chief of police gave Detective Hudak a copy of the

document and a letter from the mayor’s secretary explaining how she got that copy. That same

day, Detective Hudak took the copy to God’s Magic City Church and interviewed Mr. Brooker

and Mr. Smith separately. Detective Hudak recorded his interview with Mr. Smith.

{¶14} Detective Hudak showed the document copy to Mr. Smith, who acknowledged

having filled it out, including the judge’s name and phone number. Detective Hudak suggested

to Mr. Smith that placing a judge’s name on the document was illegal. Mr. Smith indicated that

he felt he was permitted to fill out a document such as this one and as a prior hotel owner, he had

blank copies of the form that he had used in the past. He was adamant that he had no intentions

of filing the document and reiterated that he had never shown or delivered the document to

anyone. Instead, he just wanted to show it to Mr. Brooker to convince him that Mr. Smith was

serious about Mr. Brooker leaving.

{¶15} Mr. Smith also explained to Detective Hudak that he had filled out the document

in the kitchen because his office desk was too cluttered to work on and that after he filled it out,
 5

he must have left it there by mistake. During the interview, Mr. Smith took Detective Hudak to

show him his desk. Detective Hudak observed that there were two desks in the office one of

which Mr. Smith identified as the secretary’s desk. The Detective suggested to Mr. Smith that

the files on Mr. Smith’s desk could have been moved to make space on the cluttered desk to fill

out the document. Mr. Smith also played several saved phone messages to demonstrate the

difficulty he was having with Mr. Brooker.

{¶16} Several weeks after the investigation, Mr. Brooker and Mr. Smith wrote a letter

together in Mr. Smith’s office. The letter, which was signed by Mr. Brooker, was introduced

into evidence as Defendant’s Exhibit C. It stated that Mr. Brooker told Detective Hudak that he

did not want further action taken against Mr. Smith and that he did not believe that Mr. Smith

would do anything to hurt him.

{¶17} Mr. Smith was convicted of forgery as provided in R.C. 2913.31(A)(1) and (3),

which state:

(A) No person, with purpose to defraud, or knowing that the person is facilitating
a fraud, shall do any of the following:

(1) Forge any writing of another without the other person’s authority;

***

(3) Utter, or possess with purpose to utter, any writing that the person knows to
have been forged.

“‘Forge’ means to fabricate or create, in whole or in part and by any means, any spurious

writing, or to make, execute, alter, complete, reproduce, or otherwise purport to authenticate any

writing, when the writing in fact is not authenticated by that conduct.” R.C. 2913.01(G). “A

person acts purposely when it is his specific intention to cause a certain result, or, when the gist

of the offense is a prohibition against conduct of a certain nature, regardless of what the offender

intends to accomplish thereby, it is his specific intention to engage in conduct of that nature.”
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R.C. 2901.22(A). “‘Defraud’ means to knowingly obtain, by deception, some benefit for oneself

or another, or to knowingly cause, by deception, some detriment to another.” R.C. 2913.01(B).

“‘Utter’ means to issue, publish, transfer, use, put or send into circulation, deliver, or display.”

R.C. 2913.01(H).

{¶18} Mr. Smith has focused his sufficiency challenge upon the “purpose to defraud”

language contained in R.C. 2913.31(A), and we limit our review accordingly. He argues that

there was insufficient evidence that he had a purpose to defraud Mr. Brooker because there was

no evidence that Mr. Smith attempted to use the document to either the detriment of Mr. Brooker

or to gain any advantage over Mr. Brooker.1

{¶19} As noted above, the forgery statute requires that the enumerated conduct be

committed with a “purpose to defraud” another person. R.C. 2913.31(A). A person acts

purposefully when it is his intention to cause a certain result. R.C. 2901.22(A). Accordingly,

“purpose to defraud” involves the intention to gain a benefit for oneself or someone else or to

cause a detriment to the other via deception. See R.C. 2913.01(B). An actor’s purpose or intent

may be established by direct or circumstantial evidence. See State v. Tiger, 148 Ohio App.3d 61,

2002-Ohio-320, ¶ 13 (9th Dist.) (“Purpose or intent can be established by circumstantial

evidence from the surrounding facts and circumstances in the case.”). Mr. Smith argues that

there was no evidence that he used the document to the detriment of Mr. Brooker or to gain an

advantage given that he did not deliver the document to Mr. Brooker and merely had an intent to

show it to him in the future. With respect to uttering the document, the State presented evidence

that Mr. Smith admitted that he authored the document. The State also presented evidence that

1
Mr. Smith also argues that the State’s evidence demonstrates that his true intent was to
scare Mr. Brooker. However, that argument is essentially a challenge to the weight of the
evidence rather than its sufficiency.
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the document was found on the kitchen table, which was part of the living quarters where Mr.

Brooker resided, and could be discovered by him. Hence, there was evidence from which a trier

of fact could reasonably conclude that Mr. Smith created the document and left it on the table so

that Mr. Brooker would find it. Such would constitute Mr. Smith making use of the document.

{¶20} However, even if he used the document, Mr. Smith argues that there was no

evidence that he used the document with purpose to defraud, i.e., either to gain a benefit or to

Mr. Brooker’s detriment. He contends that he did not actually benefit from writing the document

and Mr. Brooker did not suffer a detriment, especially a financial loss, once he found the

document. However, in describing the actor’s intent, the phrase “purpose to defraud” does not

require that the actor actually consummate the fraud. In other words, the State was required to

show that Mr. Smith had a purpose or intention to defraud, i.e., gain a benefit or cause Mr.

Brooker to suffer a detriment. Although it is true that Mr. Brooker did not suffer financial harm

or move out of the premises as a consequence of reading the document, the State did not have to

prove that Mr. Brooker actually suffered a detriment in order to prove that Mr. Smith had a

purpose to defraud. Tiger at ¶ 14 (finding no requirement in the statute that one must actually

gain a benefit or cause a detriment in order to have purpose to defraud).

{¶21} Upon reviewing the evidence presented in the light most favorable to the State,

we conclude that there was sufficient evidence from which a reasonable trier of fact could find

that Mr. Smith’s purpose was to defraud, i.e., to gain a benefit for himself and/or cause a

detriment to Mr. Brooker. There was evidence that Mr. Smith was intent on getting Mr. Brooker

to leave and that his other attempts to achieve that result were unsuccessful. Accordingly, a

reasonable trier of fact, viewing all the circumstances in a light most favorable to the State, could

conclude that Mr. Smith’s purpose in creating the document and leaving it for Mr. Brooker to
 8

find was to defraud Mr. Brooker, i.e., it was Mr. Smith’s purpose to deceive Mr. Brooker into

believing that there was a judgment against him which Mr. Smith hoped would cause Mr.

Brooker to vacate the premises. Given Mr. Smith’s limited argument on appeal, we conclude

there was sufficient evidence presented, if believed, whereby a reasonable trier of fact could

conclude that Mr. Smith committed forgery as provided by the statute.

{¶22} Mr. Smith’s first assignment of error is overruled.

ASSIGNMENT OF ERROR II

APPELLANT’S CONVICTION OF FORGERY WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.

{¶23} In Mr. Smith’s second assignment of error, he argues that the court’s finding that

he was guilty of forgery was against the manifest weight of the evidence. We disagree.

{¶24} In reviewing a challenge to the weight of the evidence, the appellate court

[m]ust review the entire record, weigh the evidence and all reasonable inferences,
consider the credibility of witnesses and determine whether, in resolving conflicts
in the evidence, the trier of fact 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).

{¶25} We note at the outset that Mr. Smith mainly argues the lack of evidence of a

benefit to himself or detriment to Mr. Brooker in his brief’s manifest weight argument. These

issues have been discussed above, and as noted above, the State was only required to show that

Mr. Smith had the purpose to defraud, not that he actually succeeded in doing so. See App.R.

16(A)(7); R.C. 2913.31(A). Additionally, it appears that Mr. Smith contends that the weight of

the evidence supports the conclusion that his purpose was to scare Mr. Brooker, not to defraud

him. We note that such a determination would turn in part on how the trier of fact viewed Mr.

Smith’s statements to the police. While the trial court was certainly free to believe that Mr.
 9

Smith did not intend to leave the document for Mr. Brooker to find and instead planned to only

show it to him and explain to him that Mr. Smith could possibly get a judgment in the future, the

trial court also could have believed that Mr. Smith in fact left the document wanting Mr. Brooker

to find it and act upon it. The trier of fact was charged with evaluating the credibility of the

witnesses as they testified and resolving conflicts in the testimony. Given the evidence in this

case, we cannot say that the factfinder’s credibility determinations were unreasonable. See State

v. Andrews, 9th Dist. Summit No. 25114, 2010-Ohio-6126, ¶ 28. Accordingly, after a thorough

review of the record, we cannot conclude that the trier of fact lost its way and committed a

manifest miscarriage of justice when it found Mr. Smith guilty of forgery.

{¶26} Mr. Smith’s second assignment of error is overruled.

III.

{¶27} For the reasons set forth above, we affirm the judgment of the Summit County

Court of Common Pleas.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

EVE V. BELFANCE
FOR THE COURT

MOORE, J.
WHITMORE, J.
CONCUR.

APPEARANCES:

JEFFREY N. JAMES, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.