COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59481 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : MICHAEL R. SWANEY : : Defendant-Appellant : : DATE OF ANNOUNCEMENT DECEMBER 5, 1991 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-238316 JUDGMENT: Affirmed in part, Reversed in part, and Cause Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS-JONES BURT H. SAGEN Cuyahoga County Prosecutor P. O. Box 29443 8th Floor, Justice Center 5514 Pearl Road 1200 Ontario Street Parma, Ohio 44129 Cleveland, Ohio 44113 -2- PATRICIA A. BLACKMON, J.: Appellant Michael R. Swaney timely appeals his convictions of grand theft in violation of R.C. 2913.02, forgery in violation of R.C. 2913.31 and uttering in violation of R.C. 2913.31. Appellant filed a motion to suppress his oral statement which he claims was taken during an unconstitutional custodial interrogation. After the hearing, the motion was denied. All three counts of the indictment were tried to a jury and after they returned a verdict of guilty, appellant was referred to the probation department for a pre-sentence report. Thereafter, he was sentenced to one year on each count. The trial court then suspended the sentence and ordered appellant to serve two years probation, to pay restitution in the sum of Five Hundred Dollars ($500.00), to serve one hundred hours (100) of community service, and to pay the court cost. For the reasons set forth below, we affirm in part, reverse in part and remand this matter to the trial court for resentencing. At the suppression hearing, the State of Ohio presented the following evidence: Detective Wayne Lee Cashein of the Strongsville Police Department testified that he went to appellant's office on March 28, 1989. He identified himself and informed appellant that a complaint had been filed against him, which alleged that appellant had committed a fraud with regards to an insurance policy. The complaint alleged that appellant had fraudulently written a policy of insurance for William Rini for coverage on -3- his tavern. Appellant responded that there was a mistake and that the policy in question was written through another agent and that the policy information, supplied by that agent, was incorrect. During this encounter the detective did not use force, and appellant was not arrested. After this exchange, Detective Cashein informed appellant that further questioning was necessary and that appellant would have to accompany him to the police station. Appellant testified on his own behalf at the suppression hearing and presented the following: He testified that Detective Cashein's visit was unannounced. Detective Cashein said he was dispatched to appellant's office to discuss with him the complaint that was filed by Beacon Insurance Company. Appellant recalled that his only response to Detective Cashein was that there was a mistake. Appellant stated that he agreed to accompany Detective Cashein to the station because he believed that it guaranteed his prompt return to his office. Appellant stated that physical restraint was not used, however, he believed that he had no other option but to cooperate and go to the police station with the officer. The trial court denied the motion, and for its reasoning the court held that the statement was voluntary and moreover, appellant was not in custody at the time that the statement was made by appellant. -4- STATE'S CASE Terry Kelso, licensed agent and chartered underwriter of Beacon Insurance Company of America, was the state's principal witness. He testified that his responsibility as vice president of marketing was to authorize agents to represent his insurance company. He further stated that Beacon does not insure night- clubs or taverns. Furthermore, his company does not authorize brokerage arrangements. Terry Kelso also testified that appellant was not a licensed agency owner or an agent of Beacon. During his testimony, he stated that he learned of the insurance policy and that appellant had written the policy from a conversation with William Rini, who was the named insured. He knew that it was a fraudulent policy because it was not written on watermark paper with the watermark logo, which was Beacon's logo. It listed "Special Insurance Agency, Inc.," which is not an authorized representative of Beacon. It showed an agency number with seven digits, but all of Beacon's agencies were four digits. The effective date of approval was the same day of the application, which was unusual because underwriters were required to approve applications before the applications were effective. The policy was written on a tavern, but Beacon does not insure taverns. Terry Kelso stated that he concluded that the policy was a counterfeit. Once the counterfeit policy was discovered, he contacted appellant. At their meeting he informed appellant that he had -5- discovered an insurance policy with appellant's company's name on the policy, however, appellant was not an authorized agent of his company. During this meeting, Terry Kelso stated that appellant acknowledged that he had produced the policy on his word processor and explained that it was a brokerage deal that went bad. Thereafter, he offered to return the money to the insured. Furthermore, appellant represented that it was the only one of its kind, but refused to discuss the matter any further. There- after, Terry Kelso testified that he then reported the incident to the Strongsville Police Department. He acknowledged that his company was not damaged financially, however, he thought there was some damage to the company's reputation. Detective Cashein testified that he became involved when Mr. Kelso made the complaint. Moreover, his testimony at the trial was the same as the testimony that he gave at the suppression hearing. Bob L. Baron, representative of Hamilton's Insurance Company, testified that he presently represents Mr. Rini's company as its insurance agent. When he reviewed the policy, he thought the insurance policy was unusual because he believed the premium of $10,181.00 was excessive for $100,000.00 in liability coverage. When obtaining Mr. Rini's current coverage he submitted applications to several companies, however, he did not submit an application to Beacon, because they had told him they did not insure taverns. -6- Tom E. Hamilton, owner of Hamilton Insurance Company, testified consistent with Mr. Baron. He added that applications for insurance with Beacon usually take five to six weeks for approval. He also added that his company does not brokerage insurance. Mr. Rini was the last witness for the state. He testified that appellant gave him the insurance policy and he gave appellant a premium check for $10,181.00. He called Beacon and found out that no such policy existed. He went to appellant's office in January of 1989, confronted him; appellant returned his money and represented that a Mayland Insurance Agency co- brokered the policy. After the close of the state's case, appellant moved for judgment of acquittal and the motion was denied. DEFENSE CASE Frank Zito, owner of Mayfair Insurance, testified on behalf of appellant. He presented that he was an authorized agent of Beacon. In the past he brokered policies with appellant through Beacon. The brokerage arrangement involved the writing of the policies for appellant's client, appellant would bill the client and he would bill appellant. He admitted that Beacon does not insure taverns and that Beacon's policies were written at its home office. Nevertheless, some of Beacon's authorized agents did broker policies. Appellant testified on his own behalf, and stated that his experience as an insurance agent span 32 years. He further -7- testified that Special Insurance Agency is a corporation formed by his brother, was the company listed on the policy and that his company was Universal Insurance Service. He stated that he has vast experience and knowledge in the insurance business and was specialized in underwriting taverns and restaurants. Originally, Mr. Rini was his customer and then became a customer of Special Insurance Agency. Appellant stated that Mr. Rini had sought his services because existing premiums were high. Thereafter, he attempted to find Mr. Rini a lower premium for his tavern. Appellant testified that Al Lorenz was the one who represented that Beacon would insure Mr. Rini. He was aware that Beacon had insured Broglio's Restaurant, which he considered to be a nightclub. Furthermore, he was not aware that Beacon would not insure Mr. Rini's establishment. He explained that the alleged fraudulent policy was a dummy policy that he created to let Mr. Rini know what he could expect when he received his real policy. He created dummy policies for clients for the limited purpose of showing them what they could expect. Appellant delivered the fraudulent policy to Mr. Rini and submitted a bill on December 8, 1988. The bill was paid with a check to Special Insurance Agency. Appellant stated that he did not negotiate the premium check nor did he dispose of any of the funds. His policy was to place Special Insurance Agency's name on the policy. -8- He maintains that the signature on the policy was not his signature and he was unaware who had signed it. He also claimed that it was unsigned when he delivered it to Mr. Rini. He claimed the policy rates and numbers were given to him by Mr. Lorenz. He did not know if Mr. Lorenz was an authorized agent of Beacon. Once he discovered that Beacon would not cover the risk, he returned Mr. Rini's money and apologized. STATE'S REBUTTAL The state presented three witnesses on rebuttal: Stephen Lorenz, president and owner of Insurance Underwriters, Inc., testified that his family business, which was owned by his deceased father, Albert Lorenz, Jr. with whom appellant allegedly did business, was not an authorized agent of Beacon and they do not accept brokerage from anyone and his father did not accept brokerage. He does not know appellant and company records did not show any business dealings with appellant. Sergeant James Spickler of the Strongsville Police Department assisted Detective Cashein in the arrest and booking of appellant. He provided appellant's fingerprint card and witnessed appellant's signing the fingerprint card. Mary Wenderoth of the Cleveland Police Department's forensic laboratory testified as an expert in handwriting analysis. Appellant objected to her testimony and the objection was overruled. She compared the signatures on the fingerprint card -9- and the fraudulent policy. She concluded with a reasonable degree of scientific certainty that the signature on the policy was that of appellant. At the close of all evidence appellant renewed his motion for judgment of acquittal. The motion was denied. After closing arguments, the trial court instructed the jury without objection; both parties indicated that they were satisfied with the trial court's instructions. Among those instructions, the trial court indicated that if the jury finds by a preponderance of the evidence that appellant abandoned his purpose to commit the offense, he is not guilty. Once the jury returned a verdict of guilty on all counts, appellant was referred to the probation department and returned for sentencing on January 22, 1990. The transcript reveals that appellant was fined $500.00 on each count of his indictment in addition to the suspended sentence of one year, two years probation and 100 hours of community work service; however, the journal entry conflicts with the transcript to the extent that it indicates that the sum of Five Hundred Dollars ($500.00) in restitution is imposed instead of the fines in each case. Appellant's first assignment of error states: THE COURT COMMITTED PREJUDICIAL ERROR IN ADMITTING STATEMENTS BY THE DEFENDANT WHEN HE WAS IN CUSTODY. Appellant argues that the statements he made to Detective Cashein violated Miranda v. Arizona (l966), 384 U.S. 436, because -10- they were the result of custodial interrogation conducted without the benefit of Miranda warnings. We disagree. Generally, on-the-scene questioning of citizens in the fact finding process is not applicable to the Miranda decision. Id. at 477. Miranda protects against the interrogation environment, notwithstanding whether the suspect has been through "express questioning." Rhode Island v. Innis (1980), 446 U.S. 291,298. The question raised in the instant appeal is whether appellant was subjected to custodial interrogation when he made the statements to Detective Cashein. This court has found that on-the-scene questioning does not constitute custodial interrogation unless the additional element of coercion is found or the investigation had focused on the accused. E.g. State v. Farndon (1984), 22 Ohio App. 3d 31. In Farndon, the court held that the investigating officer asking one question, without any form of restraint of the subjects environment did not create an "interrogation environment." Id. at 38. In the instant case, there was no restraint of appellant's environment and no questions were asked. The officer, who investigated the case, announced the reason for his visit to appellant's office. In response, appellant made an unsolicited statement, before he could be told he was to accompany the officer to the police station for questioning. There was no interrogation environment created. Therefore, there was no -11- custodial interrogation within the meaning of Miranda and as a result appellant's first assignment of error is not well taken. Appellant's second assignment of error states: THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT PERMITTED EVIDENCE AS TO HANDWRITING EXAMPLES WHEN THE PROSECUTOR EXPRESSLY STATED AT THE COMMENCE- MENT OF TRIAL THAT THERE WOULD BE NO SUCH TEST. The regulation of discovery is a matter within the sound discretion of the court pursuant to Criminal Rule 16(E). State v. Weind (1977), 50 Ohio St. 2d 224,235. When a rebuttal witness not specifically included on a witness list is called to testify, it is within the court's discretion to grant a continuance, recess or voir dire of the witness to prevent any prejudice to the defendant. State v. Abi-Sarkis (Mar. 3, 1988), Cuyahoga App. Nos. 52405 and 54073, unreported at 15. Neverthe- less, in the absence of a request for a continuance, a recess or a voir dire of the witness, it is not an abuse of discretion to allow the testimony of the witness. Id. at 16. In the instant case, appellant objected, but failed to request a continuance, a recess, or a voir dire of the witness. A review of the record reveals that appellant cross-examined the rebuttal witnesses and no prejudice occurred. Therefore, the trial court did not abuse its discretion and appellant's second assignment of error is not well taken. Appellant's third assignment of error states: THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT FAILED TO ALLOCATE BURDEN ON THE AFFIRMATIVE DEFENSE OF ABANDONMENT. -12- Appellant argues that the trial court committed reversible error when instructing the jury on the affirmative defense of abandonment. We disagree. Appellant failed to object to the trial court's instructions. Therefore, the issue is whether the trial court committed plain error. "An erroneous jury instruction does not rise to the level of plain error unless, but for the error, the outcome of the trial clearly would have been otherwise. Notice of plain error under Crim. R. 52(B) is to be taken with the utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice." See, State v. Young (Apr. 14,1988), Cuyahoga App. No. 53564, unreported at 4. (citations omitted). This court has held that the trial court's failure to assign to either party the burden of proving an affirmative defense in its jury instruction did not constitute plain error. Id., citing State v. Price (May 2, 1985), Cuyahoga App. No. 48913, unreported. (where erroneous self-defense instruction not plain error). In the instant, the record does not demonstrate that the instruction would have changed the outcome of the trial and the appellant expressed satisfaction with the instructions. Thus, no substantial right of appellant was denied. Accordingly, appellant's third assignment of error is not well taken. Appellant's fourth and fifth assignments of error state: -13- THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED MOTIONS FOR JUDGMENT OF ACQUITTAL AS THERE IS NO EVIDENCE THAT THE DEFENDANT FORGED THE INSURANCE POLICY OR THAT HE UTTERED A FORGED INSURANCE POLICY. THE DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT REFUSED TO ENTER A JUDGMENT OF ACQUITTAL WITH RESPECT TO THE OFFENSE OF THEFT. Pursuant to Criminal Rule 29(A), a court shall not order an entry of judgement of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St. 2d 26l. In his fourth assignment of error appellant argues that there is no evidence of a signature and in his fifth assignment of error he argues there is no evidence of a purpose to deprive. We disagree. Forgery occurs when one designates an unauthorized insured, uttering occurs when one puts the policy into circulation and the acceptance of money in exchange is theft. Accord, State v. Burgess (Nov. 16, 1989), Cuyahoga App. No. 56165, unreported. (where passing bad checks constituted forgery, uttering and grand theft). In appellee's case in chief, there was sufficient evidence to overcome a motion for judgment of acquittal. The testimony of Mr. Kelso revealed that the writing was fraudulent and unauthorized by Beacon. The writing was admitted into evidence. The production of that writing by the appellant, bearing an illegible signature and the exchange of it for a -14- premium is circumstantial evidence upon which reasonable minds could reach different conclusions as to whether there is proof beyond a reasonable doubt of forgery, uttering and grand theft. Therefore, appellant's fourth and fifth assignments of error are not well taken. Appellant's sixth and seventh assignments of error state: THE COURT COMMITTED PREJUDICIAL ERROR IN ORDERING THAT THE DEFENDANT PAY RESTITUTION WHEN THERE WAS NO LOSS IN THIS CASE. THE COURT COMMITTED PREJUDICIAL ERROR IN SEPARATELY SENTENCING THE DEFENDANT FOR THE OFFENSE OF THEFT, FORGERY AND UTTERING AS THESE ARE ALLIED OFFENSES OF A SIMILAR NATURE AND THE IMPOSITION OF THESE SENTENCES SUBJECTED THE DEFENDANT TO MULTIPLE SENTENCES IN VIOLA- TION OF HIS CONSTITUTIONAL RIGHTS. Before addressing these assignments of error, this court must first address the issue of whether appellant received a valid sentence, because an invalid sentence may be plain error. E.g. State v. Addison (1987), 40 Ohio App. 3d 7. Where the sentence announced in court is modified in the journalization and there is no evidence that the defendant was present for the modification, it is in violation of Criminal Rule 43(A) and is therefore, invalid. State v. George (Jan. 10, 1983), Cuyahoga App. No. 43933, unreported. In the instant case, the journalized entry is an invalid modification. Therefore, we find plain error and the case must be remanded for resentencing. While this determination leaves assignments of error six and seven not ripe for review, we address them under our obligation pursuant to Appellate Rule 12(A). -15- If it was the intention of the trial court to modify the sentence and order restitution, then a resentencing and restitution hearing must be held and appellant must be present, pursuant to Criminal Rule 43(A). See, Addison. The trial court may only order restitution where actual losses are established by a reasonable degree of certainty to bear a rational relationship to the amount claimed. State v. Hansen (Mar. 22, 1990), Cuyahoga App. No. 56778, unreported. In the instant case, there is no evidence of actual loss and therefore, appellant's sixth assignment of error is well taken. If it was the intention of the trial court to fine the appellant on each of the three counts, then the sentence must be modified to comply with R.C. 2941.25(A). Where a theft by deception offense was necessarily dependent upon evidence showing that a forgery offense was an integral part of the single transaction, the two offenses, when taken together under such circumstances, were allied offenses of similar import under R.C. 2941.25(A), for which the defendant could be convicted of only one. State v. Wolfe (1983), 10 Ohio App. 3d 324. In the instant case, the record reveals that forgery, uttering and grand theft are all an integral part of a single transaction and as such are allied offenses of similar import. Therefore, appellant may only be fined for one of the three. Appellant's seventh and final assignment of error is well taken. Judgment affirmed in part, reversed in part, and remanded for trial court resentencing. -16- This cause is affirmed in part, reversed in part, and cause remanded. It is ordered that appellant and appellee share the 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 Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. DAVID T. MATIA, P.J., and FRANCIS E. SWEENEY, J., CONCUR. PATRICIA A. BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement 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. .