[Cite as State v. Flanagan, 2019-Ohio-4665.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. John W. Wise, P.J.
Plaintiff - Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, J.
-vs- :
:
BENJAMIN JAMES FLANAGAN, : Case No. 2018CA00175
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Case No. 2017-
CR-2423
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 12, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO WAYNE E. GRAHAM, JR.
Prosecuting Attorney 4450 Belden Village St., N.W.
Stark County, Ohio Suite 703
Canton, Ohio 44718
By: RONALD MARK CALDWELL
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2018CA0175 2
Baldwin, J.
{¶1} Benjamin James Flanagan appeals the decision of the Stark County Court
of Common Pleas convicting him of Theft from a Person in a Protected Class, a violation
of R.C. 2913.02(A)(l)and/or(A)(2)and/or (A)(3)(B)(3), a felony of the third degree and
Attempt to Commit an Offense, Theft from a Person in Protected Class, a violation of R.C.
2923.02(A)(1), and/or (A)(2) and/or (A)(3)(B)(3) a felony of the fifth degree. Appellee is
the State of Ohio.
STATEMENT OF FACTS AND THE CASE
{¶2} Appellant performed work for Victoria Summers and she later discovered
unauthorized withdrawals from a jointly held checking account for several thousand
dollars. The ensuing investigation lead to charges against Appellant who was convicted
and sentenced to thirty six months in prison and ordered to pay restitution to the co-owner
of the account.
{¶3} Appellant responded to a Facebook post by Victoria Summers soliciting
assistance with maintenance on her property. Appellant’s wife was a casual
acquaintance of Ms. Summers as both shared an interest in Border Collies. Ms. Summers
attended the Appellant’s wedding, in December 2016, so she was familiar with Appellant.
{¶4} Appellant agreed to perform the work on the property, and Ms. Summers
agreed to pay ten dollars per hour for all work completed. The terms of the agreement
were disputed by Appellant as he contended that he had agreed only to work on a per
project basis but he conceded that Ms. Summers made one payment of thirty dollars and
one payment of three hundred dollars to Appellant for work performed, both by checks
drawn on an account that reflect her name as well as the name Kernie Sawatis.
Stark County, Case No. 2018CA0175 3
{¶5} Ms. Summers explained that the money in the account was Mr. Sawatis’s
and that she had power of attorney for him. Mr. Sawatis was living with her and under
her care due to his medical condition. He was seventy-five years old when the incident
described in the indictment occurred.
{¶6} Ms. Summers was dissatisfied with Appellant’s work, so she discontinued
using his services after issuing the two checks. Appellant contended that he continued
to work throughout June 2017 and that Ms. Summers suggested that she pay for his
services by paying his credit card debt.
{¶7} In July 2017, Ms. Summers noticed unauthorized debits in her bank account
statement reflecting payment to a Chase Bank Credit Card and to a Discover Card. She
notified Chase Bank and the Stark County Sheriff’s Office and then visited her bank.
While at the bank there was another attempt to debit her account for the amount of
$1174.56. She was asked if she had authorized the transfer and she answered that she
had not, so the payment was not made. Ms. Summers found five payments to Chase or
Discover that were not authorized by her in the following amounts: $1585.00, $816.12,
$3000.00, $1203.08, $1602.58 for a total of $8206.78.
{¶8} The Stark County Sheriff’s Office investigated and discovered that the
payments had been made to credit card accounts that were held in the name of
Appellant’s wife, Shannon Flanagan. Detective Green approached Mrs. Flanagan about
the payments and she indicated that she understood that her husband had made the
payments. She also believed that her husband was employed. Detective Green
approached Appellant, who claimed that he had no knowledge of the payments. When
he was told that his wife would be charged with criminal offenses as a result of the
Stark County, Case No. 2018CA0175 4
investigation, he insisted that his wife would not do such a thing and that he was
responsible. He admitted he was unemployed and was carrying his wife’s Chase credit
card. He claimed that Ms. Summers had made a payment to the Chase Card via phone,
but Summer’s phone records did not reflect any calls to Chase or Discover. During the
trial Appellant admitted he had received the $30.00 and $300.00 check and expanded his
story to include an assertion that Ms. Summers suggested that she pay him by paying his
credit card debt and that she relayed this information via a cell phone. When asked why
he did not offer this explanation to Detective Green, he complained that he did not have
the opportunity.
{¶9} Detective Green obtained the records for the credit cards at issue and
discovered payments to the credit card accounts that matched the amount and
approximate date of the withdrawals from the victim’s bank account. The Detective also
discovered the rejected payment in the amount of $1174.94, which she described as
matching the amount and date of the charge that was submitted when Ms. Summers was
present at the bank investigating the source of the unauthorized charges. She did not
approve that charge, the bank rejected it and the records offered by the state reflected
the rejection.
{¶10} Detective Green also reviewed the Appellant’s bank records and found that
Appellant had insufficient funds to make any of the contested payments.
{¶11} Ms. Summer’s possession of a cell phone was an issue in this case, as
Appellant claimed that she used the phone to make transactions and to authorize him to
withdraw funds. He also claimed to have spoken to her on July 4th for forty-seven minutes
on this cell phone. That call was found in Appellant’s phone records, but Detective Green
Stark County, Case No. 2018CA0175 5
traced that number to a Renee Wilcox, so that number did not belong to Victoria
Summers. Subsequent to her hiring and termination of Appellant, Ms. Summers did
obtain a cell phone, but she did not have it during that time that Appellant alleged she
used her cell phone.
{¶12} Appellant presented his case to the jury and was found guilty on both
counts. He filed a timely notice of appeal and submitted one assignment of error:
{¶13} “I. APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”
STANDARD OF REVIEW
{¶14} When reviewing the sufficiency of the evidence, an appellate court does not
ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus. “The relevant inquiry is whether, after
viewing the evidence in the 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.” Id. at paragraph two of the syllabus. State v. Poutney, 153 Ohio St.3d 474, 2018-
Ohio-22, 97 N.E.3d 478, ¶19. Thus, “on review for evidentiary sufficiency we do not
second-guess the jury's credibility determinations; rather, we ask whether, ‘if believed,
[the evidence] would convince the average mind of the defendant's guilt beyond a
reasonable doubt.’ ” State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001),
quoting Jenks at paragraph two of the syllabus. We will not “disturb a verdict on appeal
on sufficiency grounds unless ‘reasonable minds could not reach the conclusion reached
by the trier-of-fact.’ ” State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d
48, ¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997).
Stark County, Case No. 2018CA0175 6
{¶15} As to the weight of the evidence, the issue is whether the jury created a
manifest miscarriage of justice in resolving conflicting evidence, even though the
evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386–387,
678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as
stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v.
Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).
“[I]n determining whether the judgment below is manifestly against the
weight of the evidence, every reasonable intendment and every reasonable
presumption must be made in favor of the judgment and the finding of facts.
**
“If the evidence is susceptible of more than one construction, the reviewing
court is bound to give it that interpretation which is consistent with the
verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
{¶16} The reviewing court must bear in mind, however, that credibility generally is
an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d
904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31.
Because the trier of fact sees and hears the witnesses and is particularly competent to
decide whether, and to what extent, to credit the testimony of particular witnesses, the
appellate court must afford substantial deference to its determinations of credibility.
Barberton v. Jenney, 126 Ohio St.3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20. In other
Stark County, Case No. 2018CA0175 7
words, “[w]hen there exist two fairly reasonable views of the evidence or two conflicting
versions of events, neither of which is unbelievable, it is not our province to choose which
one we believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002–Ohio–1152, at
¶ 13, quoting State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125(7th Dist. 1999).
Thus, an appellate court will leave the issues of weight and credibility of the evidence to
the fact finder, as long as a rational basis exists in the record for its decision. State v.
Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24.
{¶17} Once the reviewing court finishes its examination, an appellate court may
not merely substitute its view for that of the jury, but must find that “ ‘the jury clearly lost
its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’ ” Thompkins, supra at 387, quoting State v. Martin, 20
Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983). Accordingly, reversal
on manifest weight grounds is reserved for “the exceptional case in which the evidence
weighs heavily against the conviction.” Id.
ANALYSIS
{¶18} Appellant was convicted of a violation of R.C. 2913.02, Theft, when the
victim was an elderly person or disabled adult. That section requires the Appellee to
establish that Appellant:
“***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;
Stark County, Case No. 2018CA0175 8
(2) Beyond the scope of the express or implied consent of the owner or
person authorized to give consent;
(3) By deception”
{¶19} The Appellee must also establish the victim was elderly or a disabled adult.
An “Elderly person” means a person who is sixty-five years of age or older. R.C.
2913.01(CC) and a “Disabled adult” means a person who is eighteen years of age or
older and has some impairment of body or mind that makes the person unable to work at
any substantially remunerative employment that the person otherwise would be able to
perform and that will, with reasonable probability, continue for a period of at least twelve
months without any present indication of recovery from the impairment, or who is eighteen
years of age or older and has been certified as permanently and totally disabled by an
agency of this state or the United States that has the function of so classifying persons.”
R.C. 2913.01(DD).
{¶20} Mr. Sawatis, an owner of the checking account, is undeniably an elderly
person, being over sixty-five years of age, and the record demonstrates that he was a
disabled adult, being over the age of eighteen and requiring constant care and attention
in his activities of daily living. Appellant does not contest these facts, but instead attacks
the credibility of Ms. Summers, contends that the owner of the subject bank account did
not testify and argues that there was insufficient evidence that Appellant possessed or
controlled the funds
{¶21} During the trial, Appellant did not dispute that he received the funds, but
maintained that he had performed work that entitled him to payment and that Ms.
Stark County, Case No. 2018CA0175 9
Summers had agreed to pay his credit card bills. This admission to the Detective,
supplemented by bank records, undermines his contention there was no proof he
received the funds and had possession or control over the funds.
{¶22} Ms. Summers testified that this was a joint account and that she had Mr.
Sawatis power of attorney, giving her the power to control the funds. Appellant contended
that Ms. Summers authorized him to access the account and acknowledged receiving two
checks drawn on the account. Based upon Ms. Summer’s testimony, the jury could
reasonably conclude that she was an owner of the account, a person authorized to give
consent to access the account as well as the person responsible for control of the account
on Mr. Sawatis’s behalf. The bank records supplemented her testimony regarding
ownership of the account and Appellant has offered no evidence to contradict the
conclusion that she was an owner or the person controlling the account.
{¶23} Finally, Appellant argues that Ms. Summers is not credible and suggests
that her testimony is not credible. As we noted above, “on review for evidentiary
sufficiency we do not second-guess the jury's credibility determinations,” Murphy, supra
and, with regard to manifest weight, we “will leave the issues of weight and credibility of
the evidence to the fact finder, as long as a rational basis exists in the record for its
decision.” Picklesimer, supra.
{¶24} After viewing the evidence in a light most favorable to the prosecution, we
hold that any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt, that the evidence is not against the manifest weight
of the evidence as nothing within the record supports a conclusion that the jury lost its
Stark County, Case No. 2018CA0175 10
way and this is not an exceptional case in which the evidence weighs heavily against the
conviction.
{¶25} Appellant’s assignment of error is overruled and the decision of the Stark
County Court of Common Pleas is affirmed.
By: Baldwin, J.
Wise, John, P.J. and
Wise, Earle, J. concur.