State v. Hickey

[Cite as State v. Hickey, 2019-Ohio-2640.]

IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
HARRISON COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

RYAN HICKEY,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY
Case No. 18 HA 0003

Criminal Appeal from the
Court of Common Pleas of Harrison County, Ohio
Case No. CRI 2017-0019

BEFORE:
David A. D’Apolito, Gene Donofrio, Cheryl L. Waite, Judges.

JUDGMENT:
Affirmed.

Atty. T. Owen Beetham, Harrison County Prosecutor, and Atty. Jeffrey J. Bruzzese,
Assistant Prosecuting Attorney, 111 W. Warren Street, P.O. Box 248, Cadiz, Ohio
43907, for Plaintiff-Appellee and

Atty. Travis Collins, 105 Jamison Avenue, Cadiz, Ohio 43907, for Defendant-Appellant.
 –2–

Dated: June 20, 2019

D’APOLITO, J.

{¶1} Appellant, Ryan Hickey, appeals from the June 7, 2018 judgment of the
Harrison County Court of Common Pleas, sentencing him to community control sanctions
for theft by deception involving a construction contract following a bench trial. On appeal,
Appellant argues the trial court erred (1) in overruling his Crim.R. 29(A) motion, (2) alleges
a document was improperly admitted into evidence, (3) and that his conviction was not
supported by the manifest weight of the evidence. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

{¶2} On April 10, 2017, Appellant was indicted by the Harrison County Grand
Jury on one count of theft by deception, a felony of the fourth degree, in violation of R.C.
2913.02(A)(3). Appellant entered a not guilty plea at his arraignment. Appellant waived
his rights to a speedy trial and to a jury trial.
{¶3} A bench trial commenced on March 27, 2018.
{¶4} Jackie Polito was the sole witness to testify at trial. Mrs. Polito testified for
Appellee, the State of Ohio, that Appellant was engaged in a landscaping business as
owner/operator. In March 2016, Mrs. Polito met Appellant’s officer manager, Scott
Sudzina, at a home show in Pennsylvania. Mrs. Polito was interested in having a
patio/landscape project done at her home in Harrison County. She made arrangements
to have Appellant’s company come out to her residence. About one week after the home
show, Appellant met with Mrs. Polito at her home. Appellant reviewed plans which had
already been drawn by another company for an exterior renovation extending off an
existing porch.
{¶5} Before hiring Appellant for this project, Mrs. Polito examined Appellant’s
business website and business Facebook page in order to determine whether he was
operating a legitimate business. She also went to Appellant’s business to check out the
operation. Feeling satisfied at that point, Mrs. Polito hired Appellant to construct a patio,
fireplace, retaining wall, and waterfall, at a total cost of $36,000. The parties entered into

Case No. 18 HA 0003
 –3–

a “Residential Services Engagement Contract” on April 29, 2016. (State’s Exhibit 3). The
contract states in part:
{¶6} “CONTRACT TERMS
{¶7} “This is an agreement between ‘Customer,’ as noted above, and RJ
Hardscaping and Landscaping LLC (‘RJ’), 110 Penn Shaft Drive Irwin, Pa 15642. * * *
{¶8} “PAYMENTS
{¶9} “All deposits are non-refundable. Unless otherwise agreed upon, Customer
will pay RJ 25% of the Contract Price upon signing and acceptance of the Proposal.
Customer will pay RJ 50% of the Contract Price the day work begins. Customer will pay
RJ 15% of the Contract Price the day the concrete work is completed. RJ will invoice
Customer for the remaining 10% when work is ‘substantially complete,’ as determined by
RJ, where the Customer can make use of the work performed and ordinarily only minor
work remains. * * *
{¶10} “* * *
{¶11} “PROJECT START, COMPLETION, CHANGE ORDERS and DELAYS
{¶12} “An estimate of the number of days to complete the contracted work and an
expected start date are provided as a courtesy and are also required for both RJ and
Customer planning and scheduling purposes. There may be delays in the beginning date
and completion date due to poor weather or other circumstances beyond the control of
RJ. Those delays will not alter or invalidate any part of this Contract, nor will they entitle
Customer to additional rights under the Contract. * * *”
{¶13} The contract listed May 16, 2016 as the tentative start date and specified
that the project would take eight days to complete. Appellant assured Mrs. Polito that the
project would be completed before the Politos’ Fourth of July family reunion. Pursuant
to the terms of the contract, Mrs. Polito mailed a $9,000 deposit (25% of the total amount)
to Appellant in the form of a check. (State’s Exhibit 1).
{¶14} Throughout the month of May, the anticipated start date for the project to
begin continually was delayed and rescheduled. Appellant finally started at the Polito
residence on June 6, 2016, which mainly consisted of excavation work. Scott and two
workers were present that day. Pursuant to the terms of the contract, Scott requested
$18,000 (50% of the total amount) from Mrs. Polito so that Appellant could order additional

Case No. 18 HA 0003
 –4–

block for the patio. Scott made it clear to Mrs. Polito that he could not leave without
receiving the extra funds. Mrs. Polito wrote a check to Appellant for $18,000 on that date.
(State’s Exhibit 2).
{¶15} The next day, June 7, two workers went to the Polito residence to complete
more excavation work. Those same two employees showed up again on June 8. On
June 9, nobody arrived and no work was performed. On that date, Mrs. Polito conversed
with Appellant via phone. During that conversation, Appellant assured Mrs. Polito that
block would be delivered to her home the following Monday, June 13. Appellant further
assured her that once the block was there, they would spend two days building the wall
and would then lay concrete the following day to begin the patio work. Appellant gave
Mrs. Polito a work schedule for June 13 through 16 for the work that was to be completed,
but which never occurred.
{¶16} Contrary to Appellant’s assurances, no materials were delivered and no
workers arrived at the Polito residence on June 13. Mrs. Polito tried all day to contact
Scott. Scott ended up sending Mrs. Polito an email claiming that the delivery truck had
broken down on the way to her home. (State’s Exhibit 5). On June 16, Scott sent another
email to Mrs. Polito indicating that he was trying to find out what was going on and stating
that Appellant is “M.I.A.,” i.e., short for missing in action. (State’s Exhibit 6).
{¶17} Later on June 16, Mrs. Polito contacted her bank to inquire whether she
was able to stop payment on the $18,000 check. However, a representative from the
bank informed her that the check had already been cashed and the money cleared. Also
on that date, Mrs. Polito attempted to visit Appellant’s business website again. That site
no longer existed. Mrs. Polito also attempted to visit Appellant’s business Facebook page
again. That page also no longer existed. Mrs. Polito tried calling Appellant and Scott all
day, however, there was no answer. Mrs. Polito blocked her number and finally called
Scott on his cell phone. Mrs. Polito believes Scott picked up the phone but it is unclear
from the record whether the two conversed at that time. It is clear from the record,
however, that Appellant never returned to complete the work and never refunded any
monies received from Mrs. Polito.
{¶18} Mrs. Polito testified that she received notice on June 23, 2016 that
Appellant’s business would be filing bankruptcy. On the docket from the bankruptcy case,

Case No. 18 HA 0003
 –5–

U.S. Bankruptcy Court, Western District of Pennsylvania (Pittsburgh), Bankruptcy Petition
No. 16-23447-GLT, several other allegations of fraud and deception were alleged for
money paid for work that was never performed. The court document from the bankruptcy
filings included Mrs. Polito as a creditor/party to Appellant’s bankruptcy. The document
was admitted into evidence, over Appellant’s objection, as a public record. (State’s
Exhibit 8).
{¶19} Mrs. Polito went on to state that she felt deceived, lied to, and tricked by
Appellant, especially with respect to the $18,000 payment, which she felt pressured into
paying even though it was part of the contract terms. It was clear to Mrs. Polito that the
minimal work performed on June 6, 7, and 8, was only performed in order to delay her
from stopping payment on the $18,000 check. Mrs. Polito felt led on by a conversation
with Appellant that materials were being ordered and work would resume on June 13. In
addition, during the time between the delivery of the second check and that check clearing
Mrs. Polito’s bank account, she indicated that Appellant made representations to her that
all of the work would be completed before her family Fourth of July reunion. Mrs. Polito
reiterated that within a week of all of this occurring, Appellant’s business website and
business Facebook page were taken offline. The work that was performed consisted of
little more than digging the beginnings of a foundation. Mrs. Polito stated that Appellant’s
work was so sloppy that a subsequent contractor had to re-do everything.
{¶20} At the close of the State’s case, defense counsel moved for an acquittal
pursuant to Crim.R. 29, which was overruled by the trial court.
{¶21} Appellant did not testify nor did he present any defense witnesses.
{¶22} Following trial, on April 19, 2018, the trial court determined that the initial
payment of $9,000 did not constitute theft by deception. However, as to the second
payment of $18,000, the court found Appellant guilty of theft by deception as charged in
the indictment.
{¶23} On June 7, 2018, the trial court sentenced Appellant to community control
sanctions including two years of supervision under the Adult Parole Authority, 100 hours
of community service, and restitution in the amount of $18,000. Appellant filed a timely
appeal and raises three assignments of error.

Case No. 18 HA 0003
 –6–

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED BY OVERRULING DEFENDANT’S RULE
29(A) MOTION WHERE THE EVIDENCE PRESENTED BY THE STATE
WAS INSUFFICIENT TO SUSTAIN DEFENDANT’S CONVICTION FOR
THEFT BY DECEPTION FOR FUNDS RECEIVED UNDER A
CONSTRUCTION CONTRACT.

ASSIGNMENT OF ERROR NO. 3

DEFENDANT’S CONVICTION WAS NOT SUPPORTED BY THE
MANIFEST WEIGHT OF THE EVIDENCE.

{¶24} Because Appellant’s first and third assignments of error call into question
the sufficiency and weight of the evidence adduced at trial, we will address them together
to avoid repetition.

When a court reviews a record for sufficiency, “[t]he 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. Maxwell,
139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 146, quoting State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus; Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979).

In determining whether a criminal conviction is against the manifest weight
of the evidence, an Appellate court must 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. State v. Thompkins, 78 Ohio
St.3d 380, 387, 678 N.E.2d 541 (1997); State v. Hunter, 131 Ohio St.3d 67,
2011-Ohio-6524, 960 N.E.2d 955, ¶ 119. * * *

Case No. 18 HA 0003
 –7–

The weight to be given to the evidence and the credibility of the witnesses
are nonetheless issues for the trier of fact. State v. DeHass, 10 Ohio St.2d
230, 227 N.E.2d 212 (1967). The trier of fact “has the best opportunity to
view the demeanor, attitude, and credibility of each witness, something that
does not translate well on the written page.” Davis v. Flickinger, 77 Ohio
St.3d 415, 418, 674 N.E.2d 1159 (1997).”

State v. T.D.J., 7th Dist. Mahoning No. 16 MA 0104, 2018-Ohio-2766, ¶ 46-48.

{¶25} “‘(C)ircumstantial evidence and direct evidence inherently possess the
same probative value.’” State v. Biros, 78 Ohio St.3d 426, 447 (1997), quoting Jenks,
supra, paragraph one of the syllabus.
{¶26} For the reasons addressed below, we determine the judgment is not against
the manifest weight of the evidence and further conclude it is supported by sufficient
evidence.
{¶27} Appellant takes issue with the guilty finding for theft by deception, a felony
of the fourth degree, in violation of R.C. 2913.02(A)(3), which states: “No person, with
purpose to deprive the owner of property or services, shall knowingly obtain or exert
control over either the property or services * * * [b]y deception[.]”
{¶28} R.C. 2913.01(A) defines “deception” as:

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.

{¶29} The term “deprive,” under R.C. 2913.01(C), means to do any of the
following:
{¶30} “(1) Withhold property of another permanently, or for a period that
appropriates a substantial portion of its value or use, or with purpose to restore it only
upon payment of a reward or other consideration;

Case No. 18 HA 0003
 –8–

{¶31} “(2) Dispose of property so as to make it unlikely that the owner will recover
it;
{¶32} “(3) Accept, use, or appropriate money, property, or services, with purpose
not to give proper consideration in return for the money, property, or services, and without
reasonable justification or excuse for not giving proper consideration.”
{¶33} “A person acts purposely when it is the person’s 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 the offender’s
specific intention to engage in conduct of that nature.” R.C. 2901.22(A).
{¶34} “A person acts knowingly, regardless of purpose, when the person is aware
that the person’s conduct will probably cause a certain result or will probably be of a
certain nature. A person has knowledge of circumstances when the person is aware that
such circumstances probably exist.” R.C. 2901.22(B).
{¶35} “Because intent lies within the privacy of a person’s own thoughts and is
therefore not susceptible to objective proof, intent is determined from the surrounding
facts and circumstances, and persons are presumed to have intended the natural,
reasonable and probable consequences of their voluntary acts.” State v. Capone, 8th
Dist. Cuyahoga No. 86281, 2006-Ohio-1537, ¶ 32, citing State v. Garner, 74 Ohio St.3d
49, 60, 656 N.E.2d 623 (1995).
{¶36} In the instant case, the State was required to demonstrate that at the time
Appellant took the money at issue, he had no intent to repay it or perform under the
contract in exchange. See Capone at ¶ 34.
{¶37} This court’s review of the record establishes that there was ample proof of
Appellant’s intent to deprive Mrs. Polito of her money by deception pursuant to R.C.
2913.02(A)(3).
{¶38} As stated, after Mrs. Polito initially met with Appellant and checked his
online credentials, she mailed a $9,000 deposit to him in the form of a check along with
a signed contract on April 29, 2016. Appellant assured her that the outdoor project would
be completed before the Politos’ Fourth of July family reunion.
{¶39} After delays, Appellant finally started at the Polito residence on June 6.
Appellant’s office manager, Scott, and two workers were present that day. Scott

Case No. 18 HA 0003
 –9–

requested $18,000 from Mrs. Polito so that Appellant could order additional block for the
patio. Scott made it clear to Mrs. Polito that he could not leave without receiving the extra
funds. Although it was part of the contract terms, Mrs. Polito testified that she felt
pressured and ended up writing a check to Appellant for $18,000 on that date.
{¶40} Two workers went back to the Polito residence on June 7 and 8 to complete
some more excavation work. On June 9, nobody arrived and no work was performed.
On that date, Appellant assured Mrs. Polito during a phone conversation that block would
be delivered to her home the following Monday, June 13. Appellant further assured her
that once the block was there, they would spend two days building the wall and would
then lay concrete the following day to begin the patio work. Appellant gave Mrs. Polito a
work schedule for June 13 through 16 for the work that was to be completed, but which
never occurred.
{¶41} No materials were delivered and no workers arrived at the Polito residence
on June 13, as promised by Appellant. Mrs. Polito tried all day to reach Scott. Scott
ended up sending Mrs. Polito an email claiming that the delivery truck had broken down
on the way to her home. On June 16, Scott sent another email to Mrs. Polito indicating
that he was trying to find out what was going on and stating that appellant is “M.I.A.” Mrs.
Polito contacted her bank but could not stop payment on the $18,000 check because it
had already been cashed and the money cleared. Appellant’s business website and
Facebook page no longer existed. Mrs. Polito was unable to reach Appellant. He never
returned to complete the work and never refunded any monies.
{¶42} Within a week, Mrs. Polito received notice that Appellant’s business would
be filing bankruptcy. It was apparent that Appellant was so far behind on other work and
money owed to other customers that there was simply no way that he was ever going to
complete or had intended on completing the work at the Polito residence. Mrs. Polito
further testified that she felt deceived, lied to, and tricked by Appellant. It was clear to
Mrs. Polito that the minimal work performed on June 6, 7, and 8, was only performed in
order to delay her from stopping payment on the $18,000 check. Mrs. Polito felt led on
by a conversation with Appellant that materials were being ordered and work would
resume on June 13.

Case No. 18 HA 0003
 – 10 –

{¶43} Pursuant to Jenks, supra, there is sufficient evidence upon which the trier
of fact could reasonably conclude beyond a reasonable doubt that the elements of theft
by deception were proven. Thus, the trial court did not err in overruling Appellant’s
Crim.R. 29 motion.
{¶44} Also, the trier of fact chose to believe the State’s witness, Mrs. Polito.
DeHass, supra, at paragraph one of the syllabus. Based on the evidence presented, as
previously stated, the trier of fact did not clearly lose its way in finding Appellant guilty of
theft by deception. Thompkins, supra, at 387.
{¶45} Appellant’s sufficiency and manifest weight arguments contained in his first
and third assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED BY ADMITTING INTO EVIDENCE A
COMPUTER PRINT-OUT OF A PURPORTED ‘CLAIMS REGISTER’
FROM DEFENDANT’S BANKRUPTCY CASE WHERE THE DOCUMENT
WAS NOT AUTHENTICATED AND CONTAINED HEARSAY WITHIN
HEARSAY.

{¶46} “The admission or exclusion of evidence is within the trial court’s broad
discretion and this court will not reverse its decision absent an abuse of that discretion.
State v. Mays, 108 Ohio App.3d 598, 617, 671 N.E.2d 553 (1996). Abuse of discretion
connotes more than an error of law or judgment; it implies that the trial court’s judgment
was unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157,
404 N.E.2d 144 (1980).” State v. Bauman, 7th Dist. Columbiana No. 17 CO 0016, 2018-
Ohio-4913, ¶ 52.
{¶47} Evid.R. 801(C) states: “‘Hearsay’ is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted.”
{¶48} Evid.R. 802 provides: “Hearsay is not admissible except as otherwise
provided by the Constitution of the United States, by the Constitution of the State of Ohio,

Case No. 18 HA 0003
 – 11 –

by statute enacted by the General Assembly not in conflict with a rule of the Supreme
Court of Ohio, by these rules, or by other rules prescribed by the Supreme Court of Ohio.”
{¶49} “Hearsay included within hearsay is not excluded under the hearsay rule if
each part of the combined statements conforms with an exception to the hearsay rule
provided in these rules.” Evid.R. 805.
{¶50} Evid.R. 803(8) states:
{¶51} “The following are not excluded by the hearsay rule, even though the
declarant is available as a witness:
{¶52} “* * *
{¶53} “(8) Public Records and Reports. Records, reports, statements, or data
compilations, in any form, of public offices or agencies, setting forth (a) the activities of
the office or agency, or (b) matters observed pursuant to duty imposed by law as to which
matters there was a duty to report, excluding, however, in criminal cases matters
observed by police officers and other law enforcement personnel, unless offered by
defendant, unless the sources of information or other circumstances indicate lack of
trustworthiness.”
{¶54} The Ohio Rules of Evidence provide several alternative means by which
documents and public records may be authenticated. Evid.R. 901 and 902. If a document
cannot be properly authenticated pursuant to Evid.R. 902, it can be properly authenticated
by the use of extrinsic evidence pursuant to Evid.R. 901.
{¶55} Evid.R. 901(A) states that “[t]he requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence sufficient
to support a finding that the matter in question is what its proponent claims.”
{¶56} Evid.R. 901(B) provides ten “examples of authentication or identification
conforming with the requirements” of the rule. However, the rule makes it clear that the
examples are for “illustration only” and that they are “not by way of limitation.” Id. Two of
the examples set forth in the rule are the following:
{¶57} “(1) Testimony of Witness With Knowledge. Testimony that a matter is what
it is claimed to be.
{¶58} “* * *

Case No. 18 HA 0003
 – 12 –

{¶59} “(7) Public Records or Reports. Evidence that a writing authorized by law to
be recorded or filed and in fact recorded or filed in a public office, or a purported public
record, report, statement or data compilation, in any form, is from the public office where
items of this nature are kept.” Id.
{¶60} “Furthermore, the threshold standard for authenticating evidence does not
require conclusive proof of authenticity but only sufficient foundational evidence to allow
the trier of fact to conclude that the evidence is what the proponent claims it to be.” State
v. Smith, 197 Ohio App.3d 742, 2012-Ohio-532, ¶ 16 (3rd Dist.), citing State ex rel.
Montgomery v. Villa, 101 Ohio App.3d 478, 484-485, 655 N.E.2d 1342 (10th Dist.1995).
{¶61} In this case, Appellant relies on Evid.R. 902 to support his position that the
claims register from his bankruptcy case (State’s Exhibit 8) should not have been
admitted into evidence because it bore no signature or certification and, thus, was not
properly authenticated. Evid.R. 902(1), (2), and (4). Appellant further suggests that even
if the claims register was admissible, the document contains impermissible hearsay within
hearsay.
{¶62} Contrary to Appellant’s position with respect to authentication and/or
hearsay, this court notes that although a document does not satisfy Evid.R. 902, it may
still be authenticated, and thus admissible, pursuant to Evid.R. 901(A) and Evid.R.
901(B)(1) and (7). See State v. Myers, 1st Dist. Hamilton No. C-870215, 1988 WL 17133,
*1 (Feb. 17, 1988).
{¶63} Here, the State’s witness, Mrs. Polito, testified from personal knowledge as
a participant in Appellant’s bankruptcy action that the claims register was what the State
purported it to be. Therefore, testimony regarding Appellant’s bankruptcy with respect to
the claims register was properly authenticated and admissible through the personal
knowledge of the State’s witness. Evid.R. 901(B)(1).
{¶64} The claims register was also properly authenticated and admissible as a
public record or report. Evid.R. 901(B)(7); see In re E.R., 9th Dist. Medina No. 05CA0108-
M, 2006-Ohio-4816, ¶ 35-37 (holding that a document from another court was properly
authenticated and admissible as a public record or report pursuant to Evid.R. 901(B)(7),
and that any error regarding its admissibility must be considered harmless due to the fact

Case No. 18 HA 0003
 – 13 –

that there was witness testimony pursuant to Evid.R. 901(B)(1) as to the relevant
substance of the document).
{¶65} The record establishes sufficient identification to overcome the threshold
needed to authenticate the document pursuant to Evid.R. 901. See Smith, supra, at ¶
16, 18. Accordingly, the trial court did not abuse its discretion in admitting State’s Exhibit
8.
{¶66} Appellant’s second assignment of error is without merit.

CONCLUSION

{¶67} For the foregoing reasons, Appellant’s assignments of error are not well-
taken. The judgment of the Harrison County Court of Common Pleas sentencing
Appellant to community control sanctions for theft by deception involving a construction
contract following a bench trial is affirmed.

Donofrio, J., concurs.

Waite, P.J., concurs.

Case No. 18 HA 0003
[Cite as State v. Hickey, 2019-Ohio-2640.]

For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of
the Court of Common Pleas of Harrison County, Ohio, is affirmed. Costs to be taxed
against the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.