COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59424 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION LATONYA BUTLER : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : NOVEMBER 21, 1991 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-228829 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS-JONES HYMAN FRIEDMAN CUYAHOGA COUNTY PROSECUTOR CUYAHOGA COUNTY PUBLIC DEFENDER MARK FELLENBAUM, ASST. WARREN McCLELLAND, ASST. Justice Center - 8th Fl. Marion Building, Room 307 1200 Ontario Street 1276 West Third Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 - 2 - J.F. CORRIGAN, J., Defendant LaTonya Butler appeals from her conviction for theft. For the reasons set forth below, we affirm. I. On September 1, 1988, defendant was indicted for one count of theft in violation of R.C. 2913.02, and one count of trafficking in food stamps in violation of R.C. 2913.46(A). Defendant entered a plea of not guilty and the matter proceeded to a bench trial on December 11, 1989. For its key evidence, the state presented the testimony of: William Ermisch, an investigator with the Cuyahoga County Department of Human Services; Richard Fredrick, senior payroll clerk for the Regional Transit Authority (hereafter referred to as "RTA"); Thomas Griess, personnel administrator for RTA; and Paul Mahon, a Cuyahoga County deputy sheriff. William Ermisch established that according to the records of the Department of Human Services, defendant had completed an application for redetermination of Aid for Dependent Children and food stamps in March 1985, May 1985, and August 1985, each time indicating that she had no earnings from work of any kind, and acknowledging that she was to notify the Department within five days of receiving any money. On the basis of the information contained in these applications, treasury warrants totalling $2142.00 were issued to defendant from February 1985 through November 1985, and were subsequently negotiated. The - 3 - department's records contain numerous signatures in defendant's name as well as her social security number and address. Richard Fredrick testified that in 1985, defendant earned $13,843.74 at RTA. According to payroll records, defendant was hired on January 3, 1985, and was promoted on April 14, 1985, and again on August 1, 1985. The records did not reflect that defendant's employment was disrupted at any time during 1985. Thomas Griess testified that he is the custodian of defendant's personnel file which was prepared and kept in the ordinary course of RTA business, and that the file is true and accurate. These records contain entries regarding defendant's job performance and attendance during each month of 1985. Various discipline-related entries for this time period contain defendant's signature. Lastly, Paul Mahon established that following defendant's arraignment on the within charges, she was finger-printed then signed her fingerprint cards. At the close of the state's case, defendant moved for a judgment of acquittal. The trial court denied this motion and the defense rested. Thereafter, the trial court found defendant guilty of theft and not guilty of trafficking in food stamps. II. "APPELLANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS WAS DENIED WHEN SHE WAS CONVICTED OF THEFT ON EVIDENCE WHICH WAS INSUFFICIENT AS A MATER OF LAW TO SUPPORT THE CONVICTION." - 4 - An appellate court's function when reviewing the sufficiently 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. State v. Jenks (1991), 61 Ohio St. 3d 259, paragraph two of the syllabus. 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. Id. The essential elements of the offense of theft are as follows: "(A) 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: "(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." R.C. 2913.02. In this case, the state's theory was that defendant had, with purpose to deprive the Department of Human Services of funds, obtained the warrants by deception as to her true earnings. Because the evidence admitted at trial, if believed, - 5 - rationally establishes that defendant was employed by RTA throughout 1985, and applied for a redetermination of benefits indicating that she had no earnings, then received and negotiated relief warrants, there is sufficient evidence that defendant committed theft by deception. Cf. State v. Clifton (October 23, 1989), Clermont App. No. CA 89-01-004, unreported. In support of her claim that the evidence is insufficient, defendant asserts that: (1) there was no evidence that defendant actually negotiated the warrants, as expert opinion evidence regarding defendant's handwriting was not presented; (2) there was no evidence that defendant was continuously employed by RTA when the benefits redetermination applications were prepared; and (3) no evidence was presented to establish ownership of the treasury warrants. These assertions lack merit. First, as to defendant's objections to the evidence regarding the identity of the signature on the warrants, we note that the majority of jurisdictions permit the jury, or the court sitting as the trier of facts to compare a disputed writing to a standard, without the aid of an expert witness. See Annotation (1961), 80 A.L.R. 2d 272. Commentaries on Ohio Evid. R. 702 and 901 indicate that such comparisons are permitted in this jurisdiction as well. See, Gianelli, Ohio Evidence Manual 901.05 (1988), 97 702 Author's Comment which provides in relevant part: "*** If a matter falls within the 'common knowledge of laymen,' the jury is presumed to be knowledgeable about the matter and, therefore, expert testimony would not - 6 - 'assist' the jury. Yet the two tests are identical. Many subjects are not entirely beyond a lay juror's comprehension, and yet expert testimony should be admitted under Rule 702 because it will assist the jury. Handwriting comparisons illustrate this point. Although the jurors may compare handwriting exemplars to determine common authorship, Rule 901(B)(3), a questioned document examiner's testimony is superior and would be admissible under Rule 702. ****" (Emphasis added.) Accord Evid. R. 901 (B)(3) Staff Notes which provides in pertinent part: "*** Rule 901(B)(3) provides that an expert or the jury, as trier of fact, may compare the handwriting in question with a specimen of handwriting which has been authenticated. Ohio cases have followed such procedure. ****." (Emphasis added.) Thus, this issue was within the province of the trial court, based upon its comparison of the signatures on the warrants with those in defendant's personnel file and finger-printing cards. Second, defendant's personnel file contains numerous entries regarding defendant's job performance during each of the months of 1985, and these records therefore create the strong and unrebutted inference that defendant was continuously employed by RTA at all relevant times. This inference, moreover, need not be irreconcilable with defendant's unsupported claim that she was not continuously employed. Cf. State v. Jenks, supra, at paragraph two of the syllabus. Third, as to the issue of ownership of the warrants, we note that "owner" is defined in R.C. 2913.01(D) as follows: - 7 - "(D) 'Owner' means any person, other than the actor, who is the owner of, or who has possession or control of, or any license or interest in property or services, even though the ownership, possession, control, license, or interest is unlawful." (Emphasis added.) Thus, for purposes of R.C. 2913.02, ownership may be established by possession or control, see, also, State v. Edwards (1978), 7 O. O. 3d 432, 436, and the Department of Human Services was clearly shown to have possession or control of the funds at issue here. Defendant's assignment of error is overruled. Judgment affirmed. - 8 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. FRANCIS E. SWEENEY, P.J., and JAMES D. SWEENEY, J., CONCUR. JUDGE JOHN F. CORRIGAN N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .