Defendant, Thomas P. Woods, was found guilty in a bench trial of grand theft under the second count of the indictment, in which he was charged with obtaining $70,000 from Dorothy Berning by deception, in violation of R.C. 2913.02. He was also found guilty of the forgery and uttering of a $70,000 check payable to Dorothy Berning under the third and fourth counts, in violation of R.C.2913.31. The subject matter of all three offenses involved the same sum of money. Defendant was acquitted of a separate charge of grand theft of $15,000 under the first count. He was sentenced to a definite term of one year on the theft conviction only.
On appeal, defendant presents five assignments of error: (1) the conviction was against the manifest weight of the evidence; (2) the court erroneously admitted in evidence certain parts of an expert's opinion about handwriting; (3) the court erroneously admitted a "loan agreement" into evidence; (4) the conviction was not supported by sufficient evidence under Crim. R. 29; and (5) the *Page 36 court erroneously "tolerated" the prosecutor's closing argument that as an attorney, the defendant was subject to a "higher standard of care." We overrule all five assignments of error, noting that there is a dissent from our overruling of the first assignment of error (manifest weight of the evidence). We review the conflicts in the evidence in some detail in order to explain the conclusion reached by the majority about that assignment.
The focus of our review is on the relationship in February and March 1982 between defendant, an attorney then thirty-five years old, and Dorothy Berning, then seventy-six years old, who was his client and "friend." More particularly, we focus on what was the understanding between them, if any, about the disposition of the proceeds of a money market certificate of deposit in the amount of $70,000 issued by the Fifth Third Bank to Mrs. Berning. This certificate matured on March 4, 1982, and defendant handled its redemption by himself without Mrs. Berning's presence at the bank. He received a cashier's check for $70,000 payable to Mrs. Berning and wrote her name on the reverse side as an endorsement in blank, in a crude attempt to imitate her signature. The next day he deposited the endorsed check into his personal account at Gradison Cash Reserves, Inc. On March 26, 1982, he closed the purchase of a new residence (1421 Salem Woods Lane, Cincinnati) for $140,000, paying $84,229.15 by check and financing the balance by two mortgages. Defendant's check was covered by the withdrawal from his Gradison account of $86,000, a sum which may be said to have included the $70,000 redemption proceeds, another $15,000 from the earlier redemption (on February 25, 1982) of another Fifth Third certificate of deposit belonging to Mrs. Berning, and $1,000 of defendant's own savings. The foregoing facts are not disputed.
The conflict in the evidence centers on defendant's authority or right to make personal use of the $70,000 redemption proceeds. Defendant had no written authority whatsoever; he did not have a power of attorney, a letter, a note or a memorandum signed by Mrs. Berning, either authorizing this personal use or ratifying it. He testified that he sent her a handwritten message in a Hallmark "thank you" card, expressing appreciation for her generosity in making this money available as a loan, but he had no copy of that card. Mrs. Berning testified that she tore up and destroyed all cards, photographs, and "everything, at the time of this episode or whatever," not wanting to have any reminders of defendant. The only authority defendant had, if he had any at all, was oral. He and Mrs. Berning tell entirely different stories about their relationship and the $70,000 transaction. Mrs. Berning says he took it without authority. He says she offered to lend him the money so he could buy the house, without interest, with the understanding he would pay it back whenever she needed it.
Mrs. Berning testified that she did not give defendant permission to take the $70,000, to "cash" her check or to sign her name. She said, "It's all unbeknownst to me when it took place. It was the shock of my life, I had no idea." Defendant had been handling her financial affairs since her husband's death on February 1, 1981 (about one year and one month before the $70,000 transaction). Defendant had drawn Roger Berning's will (and hers) in 1976, and defendant not only made all of Mr. Berning's funeral and burial arrangements, but also managed all legal and financial affairs for Mrs. Berning. He consolidated funds from various financial institutions into a single account at a Fifth Third branch near her home, investing her funds principally in Fifth Third certificates of deposit, which totalled $187,000 in February 1982. She also had a small amount (unknown) in *Page 37 stocks, as well as social security benefits. She stated she was very naive and he did not "give her any information whatever."
A week before the $70,000 transaction (that is, on February 25, 1982), another certificate of deposit had matured, this one in the amount of $15,000. Mrs. Berning endorsed in blank a Fifth Third cashier's check for $15,000, issued in redemption of that certificate of deposit, and defendant deposited this check in that same personal account of his at Gradison Cash Reserves, Inc. This transaction formed the basis of the theft charge in the first count of the indictment, but when Mrs. Berning was asked what was their mutual understanding about that money, she said, "It was merely an understanding that whatever it might be, it still remains, it's in his possession, it's still something that's indebted to me." (At the close of the state's case, the trial court granted defendant's motion to acquit him of the theft charged in the first count.)
Nine months later, in December 1982, Mrs. Berning asked both the defendant and the Fifth Third Bank to give her a list of her then outstanding certificates of deposit, and she cross-checked the lists against each other. They enumerated the same certificates. The bank's letter to Mrs. Berning also noted that both the $15,000 and the $70,000 certificates of deposit had been redeemed, and that cashier's checks had been issued for them.
On or about February 1, 1984, the Cincinnati Police Department was contacted, leading to defendant's arrest on February 3, 1984. Defendant's law partner testified that defendant, admitting that he took the money and used it for the purchase of his residence, said that his arrangement with Mrs. Berning was an "oral demand note."
Defendant's story is entirely different. He testified that a very close relationship developed between himself and Mrs. Berning in 1981 after Roger Berning's funeral. During the course of this relationship he supervised her financial affairs, ran errands for her (buying household items and her favorite sherry) and had long, friendly visits at her house. She had lost a husband; he had lost his father, a law partner (C. Robert Beirne) and his college roommate, all to cancer, and he had just been divorced from his first wife. In February 1982, he discussed with Mrs. Berning his intended purchase of a residence, remarking on the inflated prices at that time. She herself offered, he said, to let him use the proceeds of two certificates of deposit (totalling $85,000), coming due about that time, for the residential purchase. He felt he had her full authority to take the proceeds of both certificates of deposit; and, since she endorsed the $15,000 check herself, he felt he could endorse her name on the $70,000 check a week later. His tight, demanding schedule on March 4, 1982, and the need to wait for a shipment of sherry to come in before he could bring her some, allegedly prevented him from taking her to the bank to endorse the $70,000 check that day. She had named him sole beneficiary of her estate (in a will drafted by another lawyer, who was one of his partners or associates). She had insisted she did not need the yield from this money; and, on the day after the $70,000 transaction, when he brought the sherry to her, she said, "It gives me great pleasure to help you," and "You are the son I never had."
The case presents conflicting versions of the alleged offense, as is normal in criminal trials, and we do not find much in the record to corroborate either version. Mrs. Berning's version is supported by the fact defendant's loan application for his new residence makes no mention of the "loan" although it shows funds on deposit in Gradison Cash Reserves, Inc., in the amount of $89,000. *Page 38 The defendant's version is supported by his claim that she did not demand repayment of the "loan" until February 2, 1984, and that he sent her an immediate payment of $500 (borrowed), and a later payment of $8,000 (from his Keogh plan); the entire balance of the $85,000 was paid on February 15, 1984. It will be remembered that the arrest took place on February 3, 1984.
The foregoing is sufficient to demonstrate our conclusion that the conviction was not against the manifest weight of the evidence. An appellate court may not substitute its judgment in factual matters for that of the trier of facts, whatever may be the reflections of a reviewing judge about how he might have decided the issues, and however tragic may be the destruction of a promising legal career.
It is the trier of facts who is best able to weigh the evidence and pass on the credibility of the witnesses. State v. DeHass (1967), 10 Ohio St.2d 230 [39 O.O.2d 366], paragraph one of the syllabus. The discretionary power to reverse a judgment on the weight of the evidence and to grant a new trial should be exercised only in the exceptional case. Tibbs v. Florida (1982),457 U.S. 31; State v. Robinson (1955), 162 Ohio St. 486 [55 O.O. 388]; State v. Petro (1947), 148 Ohio St. 473 [36 O.O. 152]. The first assignment of error is overruled.
The claim in the second assignment of error is that the handwriting expert's testimony against defendant should not have been admitted. The expert's opinion was that the endorsement on the $70,000 check was clearly not Mrs. Berning's, to a scientific certainty; however, his opinion about its being in defendant's handwriting was "probable," not definite. His testimony was admitted in evidence over defendant's objection. We held recently that a handwriting expert's opinion was admissible in evidence if it was based on a "strong probability." State v. Mullins (Apr. 24, 1985), Hamilton App. No. C-840443, unreported. Assuming without deciding that an expert's opinion must be more than simply "probable" in order to satisfy the prosecution's burden of proof in a criminal case, we hold that defendant was not prejudiced, for two reasons: (1) he freely admitted in all his statements from his arrest through his trial that he signed Mrs. Berning's name to the $70,000 check; and (2) the evidence about the endorsement on that check has to do only with the charges of forgery and uttering, and not so much with the theft, and the only issues on appeal are those related to the conviction of theft.
The third assignment of error (that defendant's "loan application" for the residence should not have been admitted) is without merit, because his failure to disclose the Berning "loan" is relevant to the charge of theft by deception. It tends to make his intent to conceal and deceive more probable than it would have been without this exhibit. Evid. R. 401.
The fourth assignment asserts error in denying the motions for acquittal under Crim. R. 29, made at the close of the state's case and repeated at the close of all the evidence. It has no merit, because as is illustrated by our recital of the evidence before the trial court, there was substantial evidence from which the court as trier of the facts could reasonably conclude that all the elements of the offense had been proved beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169 [10 O.O.3d 340], syllabus. We review the evidence, for this purpose, in the light most favorable to the prosecution. Jackson v.Virginia (1979), 443 U.S. 307, 319.
Defendant claims in the fifth assignment of error that the court "countenanced egregious error by tolerating the prosecutor's misconduct when the prosecutor argued for a `higher standard of *Page 39 care' because the accused is an attorney." Defendant contends that this part of the prosecutor's closing argument urged the court to convict defendant on proof less than that beyond a reasonable doubt. No objection was made to the prosecution's argument, however. Assuming it was excessive, the claimed error was waived, State v. Williams (1977), 51 Ohio St.2d 112 [5 O.O.3d 98], death penalty vacated (1978), 438 U.S. 911, and it was not plain error. See State v. Craft (1977), 52 Ohio App.2d 1 [6 O.O.3d 1].
Finding no error, we affirm.
KEEFE and KLUSMEIER, JJ., concur.