COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59770 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION DANTE M. ARSTONE : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 30, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-241969 B JUDGMENT: Reversed and Sentence Vacated. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JERRY B. KRAIG, ESQ. Cuyahoga County Prosecutor KRAIG & PASZ EDWARD FERREN, ESQ. 623 St. Clair Avenue, N.W. JAMES GUTIERREZ, ESQ. Cleveland, Ohio 44113 Assistant Prosecuting Attorneys The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - HARPER, J.: Defendant-appellant, Dante Arstone, and co-defendant, Mark Cejer, were indicted by the Cuyahoga County Grand Jury in a seven-count indictment relating to the misuse of credit cards, viz: four counts of Receiving Stolen Property, in violation of R.C. 2913.51; one count of Possession of Criminal Tools, in violation of R.C. 2923.24; one count of Forgery, in violation of R.C. 2913.31; and one count of Uttering, in violation of R.C. 2913.31. A juvenile was referred to the Juvenile Court in connection with this matter as well. A bench trial commenced on March 14, 1990. The court subsequently returned a verdict of guilty on one count of Receiving Stolen Property, and on the remaining counts of Possession of Criminal Tools, Forgery and Uttering. A not guilty verdict was returned on the other three counts of Receiving Stolen Property. Appellant was thereafter sentenced to three (3) concurrent terms of six (6) months at the Lorain Correctional Facility after the trial court dismissed the conviction for Uttering under the multiple counts statute. Appellant, Cejer and the juvenile arrived at the Denny's Restaurant in Independence, Ohio on July 12, 1989 at approximately 4:30 a.m. The only other customers in the restaurant were two police officers, John P. Ducas and Joseph Furlan, who were on break from their duties with the Independence Police Department. Geraldine Scott, a waitress at Denny's, testified that the three young men consumed two steak and shrimp dinners, a bacon - 3 - cheeseburger and two egg breakfasts. She further testified that they ate approximately the same amount of food but she could not specifically recall what each young man consumed. Ms. Scott, alarmed at the costly food bill and the "uneasy" appearance of the youths, approached Officers Ducas and Furlan and requested that they keep an eye on appellant, Cejer and the juvenile. The young men stood together at the cash register while paying the $35.80 bill. The bill was paid with a Discover credit card and Ms. Scott received a rare $10 tip. Appellant, Cejer and the juvenile then left the restaurant. Unbeknownst to Ms. Scott, Officers Ducas and Furlan continued to observe the three youths after they left Denny's. They contacted their dispatcher who was instructed to call the restaurant to determine if the bill was paid by appellant, Cejer and the juvenile. The dispatcher and the officers learned that the Denny's bill was indeed paid by credit card. Officer Ducas testified that he pulled a grey Ford pickup truck driven by Cejer over on I-77 near Pleasant Valley Road. The truck which was owned by Cejer's father was pulled over as a result of expired license plates. The officer called for assistance and Officer Furlan arrived on the scene. Cejer was then placed in Officer Ducas' cruiser when he was unable to produce a driver's license. The officers discovered that the license plates on the truck were not registered to the individual named on the Discover card which was used to pay the Denny's bill. Officer Furlan - 4 - questioned appellant, who sat in the middle of the front seat, and the juvenile, who sat next to the right window, about the Denny's bill. The juvenile's initial response was that the bill was paid by cash, but he later offered that he used his father's credit card. Suspecting credit card misuse, the officers sought Cejer's consent to search the pickup truck. Cejer consented to the search. A black wallet jammed with fifteen (15) credit cards was discovered underneath the factory installed carpeting by the floor shift. None of the credit cards were imprinted with the youths' names. The officers also discovered numerous items of clothing and a basketball which were placed in the open bed of the pick up truck earlier in the day. Cejer testified that the merchandise was placed there by the juvenile. The $394.54 in merchandise was later discovered to have been purchased with the use of a credit card stolen from Richard Lacjak. It was also discovered that the food purchased at Denny's was done so by the use of a credit card stolen from Mary J. Todia. Neither Officer Ducas nor Furlan testified that appellant ever touched or used the credit cards. Appellant was never seen in the possession of any credit cards. The credit cards were also not tested for fingerprints. Appellant testified that he went to a party on July 11, 1989 at approximately 8:00 p.m. where he met up with the juvenile and eventually Cejer for the first time that day at about 11:30 p.m. - 5 - Cejer corroborated that appellant was not with him at any other time on July 11, 1989. Appellant returned to his home at approximately 1:00 a.m. on July 12, 1989. Ten minutes later, Cejer arrived to pick him up to take him back to his house. Appellant explained he was sleeping there that evening because he was accompanying Cejer the next morning to the golf course where Cejer was a caddie. Rather than going immediately to Cejer's house, Cejer, appellant and the juvenile went to a strip bar for a little while, according to Cejer. They then arrived at Denny's. Appellant testified that he ordered a two egg breakfast and Cejer ordered a cheeseburger. The juvenile ordered the bulk of the food. After the check arrived, appellant discovered he did not have his wallet. He thought he might have left it in Cejer's truck so he asked Cejer for the keys. Cejer stated that he would go to open the truck but before he could do that, the juvenile offered to pay the bill. Appellant did not see how he paid for the bill. The juvenile responded, "I have my dad's plastic" when questioned by appellant about the method of payment. Appellant denied any activity with relation to the credit cards. He also denied knowledge of the credit cards' presence under the truck mat. The following stipulations were entered into by the parties. First, the credit cards were taken without the owners' permission. Second, the owners of the credit cards could not identify appellant. Third, the credit card owners never gave - 6 - their permission to use the cards. Finally, only the juvenile signed the credit card slip for the Denny's food. Appellant timely appeals from his conviction raising the following assignments of error: "THE EVIDENCE PRESENTED WAS INSUFFICIENT TO SUSTAIN THE CONVICTION AND THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. "THE TRIAL COURT ERRED IN DETERMINING THAT THE CIRCUMSTANTIAL EVIDENCE PRESENTED WAS ONLY RECONCILABLE WITH THE GUILT OF THE DEFENDANT." In his two interrelated assignments of error, appellant contends that there is insufficient evidence supporting his convictions, that the convictions are against the manifest weight of the evidence, and that the circumstantial evidence against him was irreconcilable with his reasonable theory of innocence. He refers to the state's failure to establish that he knew of the stolen nature of the Discover card, and that he knew that the juvenile forged Mary J. Todia's name on the credit card slip. Appellant thus argues that there is no evidence on a complicity theory or otherwise that he committed any of the offenses for which he was indicted and convicted. Initially it is noted that there is no longer any requirement that circumstantial evidence be irreconcilable with a defendant's theory of innocence as argued by appellant. In State v. Jenks (1991), 61 Ohio St. 3d 259, paragraph one of the syllabus, the Ohio Supreme Court held that: "Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. When the state relies on circumstantial evidence to prove an - 7 - essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction. Therefore, where the jury is properly and adequately instructed as to the standards for reasonable doubt a special instruction as to circumstantial evidence is not required. [Citations omitted.]" This claim is, therefore, overruled. Appellant's first assignment of error intertwines a challenge to the sufficiency of the evidence with a claim the verdict is against the manifest weight of the evidence. However, "[t]hese two claims are governed by entirely different standards." State v. Martin (1983), 20 Ohio App. 3d 172, 175. A. Sufficiency of the Evidence An appellate court's function when reviewing the sufficiency 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. After viewing the evidence in a light most favorable to the prosecution, the relevant inquiry is whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Id. Reasonable doubt is present when after carefully considering and comparing the evidence, it cannot be convincingly said that the charges are true. It is a doubt based on reason and common sense. - 8 - Appellant was convicted of receiving stolen property, possession of criminal tools, and forgery. The elements of the offense of receiving stolen property are set forth in R.C. 2913.51(A) as follows: "No person shall receive, retain, or dispose of property of another, knowing or having reasonable cause to believe that the property has been obtained through commission of a theft offense." R.C. 2923.24(A) provides the following elements for the offense of possession of criminal tools: "No person shall possess or have under his control any substance, device, instrument, or article, with purpose to use it criminally." The offense of forgery is defined in R.C. 2913.31 as follows: "(A) No person, with purpose to defraud, or knowing that he is facilitating a fraud, shall do any of the following: (1) Forge any writing of another without his authority; (2) Forge any writing so that it purports to be genuine when it is actually spurious, or to be the act of another who did not authorize that act, or to have been executed at a time or place or with terms different from what was in fact the case, or to be a copy of an original when no such original existed; (3) Utter, [i.e., issue, publish, transfer, use, put or sent into circulation, deliver or display, R.C. 2913.01(H)] or possess with purpose to utter, any writing which he knows to have been forged." In the case sub judice, the state's case against appellant was based on a complicity theory pursuant to R.C. 2923.03. That statute provides: - 9 - "(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following: *** "(2) Aid or abet another in committing the offense; *** "(F) Whoever violates this section is guilty of complicity in the commission of an offense, and shall be prosecuted and punished as if he were a principal offender. A charge of complicity may be stated in terms of this section, or in terms of the principal offense." A person cannot be convicted of aiding and abetting a principal offender in the absence of evidence that the person assisted, incited or encouraged the principal to commit the offense. State v. Sims (1983), 10 Ohio App. 3d 56, 58. An abettor is thus "'[o]ne who assists another in the accomplishment of a common design or purpose; he must be aware of and consent to such design or purpose.'" (Citation omitted.) Id., 58-59. Here, the state failed to establish, beyond a reasonable doubt, the essential elements necessary to uphold appellant's convictions for receiving stolen property, possession of criminal tools, and forgery. There was insufficient evidence to show that appellant was aware of and consented to a common design to 1) receive, retain or dispose of another's credit card, knowing or having reasonable cause to believe that the credit card was obtained through theft, 2) possess or have under his control a stolen credit card with purpose to use it criminally, and 3) to forge and present a signature on the credit card slip as though authorized to do so. The evidence, even if believed, fails to - 10 - indicate that appellant participated in the unauthorized charging of the meals to Mary J. Todia's account or that he was even aware that the juvenile used any other credit card than his own or his father's. Appellant's claim in his first assignment of error pertaining to the sufficiency of the evidence is thus sustained. B. Manifest Weight of the Evidence Generally, the credibility of the witnesses and the weight of the evidence are matters to be determined by the trier of fact. Sate v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. In State v. Martin (1983), 20 Ohio App. 3d 172, the Ohio Supreme Court set forth the test to be utilized when addressing the issues of manifest weight of the evidence. The court stated: "*** The court, reviewing the entire record, weight the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, 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.***" Id., 175. A review of the transcript in the instant appeal reveals that the credibility of the witnesses was a critical factor underlying the trial court's judgment. The trial court offered the following opinion on the credibility of the witnesses: "*** I don't have any question of what happened at Denny's as just exactly the way the waitress described it, not the way the two defendants have described it, and I don't have any question that they knew exactly what they were doing, they were running up a bill of - 11 - that sorts, living it up on a credit card somebody had ***. "I'm completely satisfied they went into that place with the intention of eating off of somebody's credit card that didn't belong to them and having a good time, so they knew it was going to be, they were going to have to forge a credit card slip, and in that sense since they all decided to participate, the Court can't interpret this as anything else other than as an encouragement to the forging and uttering to [sic] the credit card slip and to the encouragement of the stolen credit card of Mary Jo [sic] Todia." This court is aware that a reviewing court may grant greater deference to the findings made in a bench trial than those made by a jury. State v. Crisp (Dec. 13, 1990), Cuyahoga App. No. 57805, unreported, 8-9. However, here, the trial court speculated and then constructed a whole story of the early morning events, including a plan that was fully prepared by all three youths to order a lot of food with the knowledge that they would never have to really pay for it since they had in their constructive possession, a stolen credit card. Moreover, the trial court expressed doubt about appellant's missing wallet and how appellant knew he did not have the wallet in his possession when he entered Denny's. After all, appellant was aware that the bill would ultimately be paid by the stolen credit card. The problem with the trial court's analysis on credibility is that credibility is really not an issue here. The standard for determining the sufficiency of the evidence is a question of law. What is lacking in this case, is the actual evidence that appellant committed any of the offenses for which he was charged. The state is still required to prove all the essential elements - 12 - of those crimes beyond a reasonable doubt and the state failed to meet this burden. Just because the appellant was with two of his friends and they ordered an unusually large amount of food and then proceeded to consume that food does not establish that appellant participated in charging his meal on the stolen credit card. It likewise fails to establish that he participated in the forging and uttering of an unauthorized signature. The trial court's speculation filled in the missing evidence. Therefore, the manifest weight issue, i.e., the determination of the appellant's guilt through the consideration of the weight of the evidence and the credibility of the witnesses, was premature since the state failed to establish with sufficiency all the essential elements of the offenses of receiving stolen property, possession of criminal tools, and forgery. Appellant's claim on the manifest weight issue is accordingly sustained. Judgment Reversed and Sentence Vacated. - 13 - This cause is reversed and the Sentence is Vacated. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said 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. BLACKMON, J., CONCURS; J.F. CORRIGAN, P.J., DISSENTS (See attached Dissenting Opinion). SARA J. HARPER 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59770 : STATE OF OHIO : : : D I S S E N T I N G Plaintiff-Appellee : : O P I N I O N vs. : : DANTE M. ARSTONE : : : : Defendant-Appellant : : DATE: APRIL 30, 1992 J.F. CORRIGAN, P.J., DISSENTING: I respectfully dissent from the majority's disposition of both the sufficiency and manifest weight assignments of error. A. Sufficiency An appellate court's function when reviewing the sufficiency 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 - 3 - beyond a reasonable doubt. Id. The essential elements of the offenses at issue are as follows: 2913.51. Receiving stolen property. (A) No person shall receive, retain, or dispose of property of another, knowing or having reasonable cause to believe that the property has been obtained through commission of a theft offense. 2923.24 Possessing criminal tools. (A) No person shall possess or have under his control any substance, device, instrument, or article, with purpose to use it criminally. 2913.31 Forgery. (A) No person, with purpose to defraud, or knowing that he is facilitating a fraud, shall do any of the following: (1) Forge any writing of another without his authority; (2) Forge any writing so that it purports to be genuine when it is actually spurious, or to be the act of another who did not authorize that act, or to have been executed at a time or place or with terms different from what was in fact the case, or to be a copy of an original when no such original existed; (3) Utter, [i.e., issue, publish, transfer, use, put or send into circulation, deliver or display, R.C. 2913.01(H)] or possess with purpose to utter, any writing which he knows to have been forged. In this case, the state's evidence established that defendant was guilty of the foregoing pursuant to R.C. 2923.03 which provides in relevant part as follows: - 4 - "(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following: "*** "(2) Aid or abet another in committing the offense; "(F) Whoever violates this section is guilty of complicity in the commission of an offense, and shall be prosecuted and punished as if he were a principal offender. A charge of complicity may be stated in terms of this section, or in terms of the principal offense." To aid is to assist; to abet is to incite or encourage. State v. Sims (1983), 10 Ohio App. 3d 56, 58. Thus, an aider and abettor is: "'One who assists another in the accomplishment of a common design or purpose; he must be aware of and consent to such design or purpose.'" (Citation omitted.) Id. at 58-59. In this case, the evidence presented sufficiently supports defendant's guilt as it indicates, when viewed in a light most favorable to the prosecution, that defendant engaged in a common design to retain the stolen credit card, to control it and use it in a criminal fashion, and to forge and present a signature on the card as though authorized to do so. The evidence, if believed, indicates that defendant with purpose to steal, participated in the unauthorized charging of his meal to the stolen card and participated in concealing the card from the police. That is, the evidence demonstrated that defendant consumed either a steak and shrimp dinner, or a double - 5 - cheeseburger and two egg breakfast, that defendant appeared nervous in the presence of the police, that defendant participated in the actual charging of the meal at the cash register, and that defendant participated in concealing the stolen card beneath him in the car. Accordingly, I dissent from the majority's determination that there is insufficient evidence to sustain the convictions. B. Manifest Weight In State v. Mattison (1985), 23 Ohio App. 3d 10, 14, this court set forth the following guidelines for reviewing challenges to the manifest weight of the evidence: "'"1. Knowledge that even a reviewing Court of Appeals is not required to accept as true the incredible. *** "'"2. Whether evidence is uncontradicted, *** "'"3. Whether a witness was impeached, *** "'"4. Consideration of what was not proved, *** "'"5. The certainty of the evidence, *** "'"6. The reliability of the evidence, *** "'"7. The extent to which any of the witnesses may have an interest to advance or protect by their testimony, *** "'"8. The extent to which the evidence is vague, uncertain, conflicting, fragmentary, or not fitting together in a [logical] pattern, ***."'" (Citations omitted.] In addition, the Supreme Court has held that the weight to be given the evidence, and the credibility of the witnesses are primarily for the trier of facts. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. - 6 - In this case, the state established defendant's participation in the charging of his meal on the stolen credit card as well as the forging and uttering of an authorized signature as it presented certain, reliable evidence that defendant participated in ordering and consuming a large quantity of food, that defendant appeared nervous in the presence of the officers, that defendant participated in the use of the stolen credit card, and that defendant assisted in concealing the stolen cards recovered from the truck. Defendant and Cejer, on the other hand, were wholly impeached as to the time of the incident, as well as the manner in which the credit card was used, and were not reliable as to the amounts of food that they ordered, or their previous activities before arriving at the restaurant. Moreover, from the trial court's comments at the close of the evidence, it is clear that the court convicted defendant in reliance upon its own determinations of the credibility of the witnesses, and the record affords no basis for upsetting that determination on appeal. Accordingly, I respectfully dissent from the majority's determination that the convictions are against the manifest weight of the evidence. .