COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59889 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION MARK R. CEJER : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 19, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. CR-241969 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor EDWARD F. FERAN, Assistant The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: THOMAS L. MEROS 736 Standard Building Cleveland, Ohio 44113 - 2 - KRUPANSKY, J.: Defendant-appellant Mark R. Cejer was found guilty, after a bench trial with co-defendant Dante Arstone, on seven counts relating to the misuse of credit cards, viz.: (1) four counts of receiving stolen property (credit cards) in violation of R.C. 2913.51; (2) one count of possession of criminal tools (credit card) in violation of R.C. 2923.24; (3) one count of forgery (credit sales slip) in violation of R.C. 2913.31; and (4) one count of uttering (the same credit sales slip) in violation of R.C. 2913.31. Cejer was found not guilty in a companion case of one count of obstructing justice in violation of R.C. 2921.32 by hindering the arrest of his seventeen-year-old friend, Mark Valentino, who allegedly participated with the two defendants in the credit card misuse. Cejer was sentenced to a term of six months imprisonment on the first six counts to run concurrently after the trial court dismissed the conviction on the seventh count for uttering the forged credit sales slip. The testimony at trial related to a series of events during the day of July 11 and early morning hours of July 12, 1989 involving Cejer, Arstone and Valentino and the use of stolen credit cards./1\ During the afternoon of July 11, 1989, Valentino placed a May Company bag full of merchandise in the open bed of a /1\ The parties stipulated, inter alia, the credit cards involved in this case were stolen. - 3 - 1978 Ford pickup truck driven by Cejer and owned by Cejer's father. The $394.54 in merchandise, including a jacket, several shirts and a basketball, was later discovered to have been purchased with a credit card stolen from Richard Lacjak. The three friends met later that evening at a party, went go-carting and to a topless bar together. After concluding these activities, the three rode in the pickup truck to Denny's Restaurant in Independence, Ohio and arrived at approximately 4:00 a.m. on July 12, 1989. The three ordered their meals separately and ate approximately equal amounts of food. Geraldine Scott, the waitress, delivered two steak and shrimp dinners, a bacon cheeseburger and two egg breakfasts to the table where the three youths were seated. Ms. Scott was suspicious and asked two Independence police officers on break, who were the only other customers in the restaurant, to keep an eye on the three youths. Ms. Scott stated the three youths appeared to be "uneasy" when the officers were present. After the police left, one of the three individuals presented the waitress with the Discover card of Mary J. Todia at the cash register to pay the $35.80 food bill for the three meals. The individual gave an unusually high $10.00 tip, signed the credit sales slip with the name of Mary J. Todia, then the three youths left without further incident. The waitress was unable to identify which individual presented the Discover card or signed the credit sales slip. - 4 - Officer Furlan, who had been one of the officers on break at Denny's, subsequently pulled over the pickup truck carrying the three youths at I-77 near Pleasant Valley Road. The truck had expired Ohio license plates. Cejer failed to produce a driver's license and was placed in the rear seat of the officer's car after a backup arrived. The officers discovered after investigation the name registered to the license plates did not match the name on the Discover card used to purchase the food at Denny's. Cejer subsequently consented to the officers' request to search the pickup truck. After a search of more than one hour, officer Ducas discovered a black wallet stuffed with fifteen credit cards, including the Discover card used to purchase the meals at Denny's, concealed underneath the factory installed carpeting by the floor shift. The May Company merchandise was also found in the bed of the truck. None of the fifteen credit cards, including the Discover card used at Denny's, bore the name of any of the youths occupying the truck. Cejer was wearing a long sleeve Ralph Lauren shirt like those found in the May Company bag when arrested. Defendant Cejer timely appeals from his conviction raising the following assignment of error: THE TRIAL COURT ERRED IN FINDING THE DEFENDANT GUILTY AGAINST THE WEIGHT OF THE EVIDENCE. Defendant's sole assignment of error is without merit. - 5 - Cejer contends his conviction by the trial court is against the weight of the evidence since the evidence demonstrated Valentino, the juvenile involved in these events but not present at trial, misused the credit cards. Cejer claims the prosecution did not sufficiently prove Cejer had any criminal intent, physical possession of any of the credit cards or participated in the forgery of the credit slip at Denny's. Cejer maintains he was repeatedly duped by Valentino who led Cejer to believe the May Company purchase was valid and stated that he would pay for the dinner at Denny's with his father's credit card. Cejer's brief intertwines a challenge to the sufficiency of the evidence with a claim the verdict is against the 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. Cejer argues there was insufficient evidence to support his convictions since the state presented only circumstantial evidence which was not inconsistent with his theory of innocence and did not sufficiently demonstrate he committed the offenses charged based upon State v. Kulig (1974), 37 Ohio St. 2d 157. We note, however, the Ohio Supreme Court has since overruled the doctrine of Kulig in State v. Jenks (1991), 61 Ohio St. 3d 25. The standard for determining the sufficiency of the evidence is a question of law and is made after viewing the evidence and reasonable inferences drawn therefrom in the light most - 6 - favorable to the prosecution to determine whether any rational trier of fact could have found all essential elements of the offenses charged beyond a reasonable doubt. After reviewing the evidence in the case sub judice in compliance with the above standard, we find the trial court could have properly found defendant committed the offenses charged beyond a reasonable doubt. The issues are then submitted to the factfinder to make a determination concerning the defendant's guilt taking into consideration the weight of the evidence and the credibility of the witnesses. Only at this stage is the issue ripe to discuss the manifest weight of the evidence. Defendant's principal argument challenges the manifest weight of the evidence. In the context, this Court has stated as follows: In determining whether the decision of a trial court is against the manifest weight of the evidence, the following factors are guidelines to be taken into account by the reviewing court: 1. The reviewing court is not required to accept as true the incredible; 2. whether the evidence is uncontradicted; 3. whether a witness was impeached; 4. what was not proved; 5. the certainty of the evidence; 6. the reliability of the evidence; 7. whether a witness' testimony is self- serving; - 7 - 8. whether the evidence is vague, uncertain, conflicting or fragmentary. (Emphasis in original.) State v. Mattison (1985), 23 Ohio App. 3d 10. The Court stated the eight factors listed are "merely guidelines to be taken into account when weighing the evidence. They are not hard and fast rules which must be followed." Id. Furthermore, a reviewing court will not reverse a verdict when the trier of fact could have reasonably concluded from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169. In State v. Martin, supra, the court set forth the test to be utilized when addressing the issues of manifest weight of the evidence. The Martin court stated as follows: *** The court, reviewing the entire record, weighs 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. *** See Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. Martin, supra at 175; see also State v. Davis (1988), 38 Ohio St. 3d 361, 365. Moreover, the weight of the evidence and credibility of witnesses are primarily for the trier of facts. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus. A reviewing court may grant greater deference to the findings made in a bench trial than those made by a jury. State - 8 - v. Crisp (Dec. 13, 1990), Cuyahoga App. No. 57805, unreported at 8-9. A review of the transcript in the case sub judice reveals the credibility of the witnesses was a paramount factor underlying the trial court judgment. When rendering its decision, the trial court stated as follows: ...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 that sorts, living it up on a credit card somebody had... I'm completely satisfied they went into that place [Denny's] 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. The trial court rejected the testimony of Cejer and his co- defendant Arstone, who admitted to having discussed the case prior to trial and discounted their common strategy of blaming everything on the juvenile who was not present at trial. In fact, during sentencing the trial court flatly declared its belief that Cejer committed perjury during his trial. A reviewing court must analyze each element of the underlying offenses when considering defendant's argument his conviction was against the manifest weight of the evidence. - 9 - Based upon our review of all the evidence in the record sub judice, together with the reasonable inferences drawn therefrom, considering the testimony and credibility of Cejer and co- defendant Arstone, the waitress and the three police officers, the verdict fails to indicate the trial court lost its way and created a manifest miscarriage of justice. The Court will address defendant's convictions for receiving stolen property, possession of criminal tools and forgery seriatim. Receiving Stolen Property R.C. 2913.51 defines the crime of receiving stolen property and provides as follows: (A) No person shall receive, retain, or dis- pose of property of another, knowing or having reasonable cause to believe that the property has been obtained through commission of a theft offense. Based upon our review of the record sub judice, the trial court could properly find the evidence demonstrated defendant received, retained or disposed of four of the fifteen credit cards found in the pickup truck under the mat as charged, knowing or having reasonable cause to believe the cards were obtained by theft. A conviction for receiving stolen property does not require evidence defendant had actual physical possession of the stolen property. Rather, possession may be constructive if the stolen property is located in an area under defendant's control when defendant is conscious of the presence of the stolen property. - 10 - State v. Hankerson (1982), 70 Ohio St. 2d 87; State v. Wolery (1976), 46 Ohio St. 2d 316, 329, cert. denied, 429 U.S. 932. Although defendant disclaimed any knowledge of the credit cards or the fact the cards had been stolen, the trial court is not required to believe the incredible. Mattison, supra. The evidence demonstrated the Discover card used to purchase Cejer's meal at Denny's after the officers left was found in a wallet with fourteen other stolen credit cards concealed a few feet from Cejer where the three youths were "squished" together in the front seat of the truck driven by Cejer and owned by his father. The trial court commented as follows: I frankly have to conclude that the person who plays a major role in deciding where to hide these credit cards in the car is the driver of the car, the pickup truck, so I really have no question Mr. Cejer knew about these credit cards, knew about everything that was going on and all the other stolen property and was fully taken into the confidence of Valentino and played a very supportive role in the hiding of these credit cards and took advantage of the use of at least one of them, so I think he's guilty. I have no question he's guilty on all counts here. All seven counts. Cejer's denial that he saw the credit cards is not credible in light of the testimony the Discover card and other credit cards were meticulously concealed under the factory carpeting on the floor virtually beneath his nose after the three left Denny's and before Cejer left the vehicle. Moreover, under the circumstances Cejer had reasonable cause to believe the credit cards were stolen. The testimony - 11 - indicated each of the three youths were "uneasy" before using the Discover card when they discovered the police were present at Denny's. Each of the fifteen credit cards in the wallet concealed in the truck thereafter bore the name of the owner readily apparent on the face of each card. Valentino's father was not named "Mary J. Todia" as indicated on the Discover card used at Denny's. None of the other credit cards bore the name of Valentino, Valentino's father or any of the other occupants of the truck. Finally, the testimony revealed Valentino did not frequently offer to purchase meals for other people or leave hundreds of dollars worth of newly purchased merchandise in an open pickup truck without supervision for hours. Accordingly, Cejer's conviction for receiving stolen property is not against the weight of the evidence. Possession of Criminal Tools R.C. 2923.24 defines the offense of possessing criminal tools and provides in pertinent part as follows: (A) No person shall possess or have under his control any substance, device, instrument, or article, with purpose to use it criminally. Based upon our review of the record sub judice, the trial court could likewise properly find defendant possessed the Discover card issued to Mary J. Todia with purpose to use it criminally. This offense likewise does not require the prosecution prove actual physical possession of the criminal tools when defendant - 12 - constructively possesses the items. E.g., State v. Thompson (July 18, 1991), Cuyahoga App. Nos. 58803 and 58834, unreported (baggies containing drugs found in automobile). As noted above, the testimony indicated defendant knew where the Discover card was hidden and was able to exercise dominion or control over it in the vehicle driven by him. Possessing a large number of other credit cards without authority in addition to the Discover card bearing the names of other people support the conclusion defendant possessed the Discover card with the purpose of engaging in future criminal use alone or with others. Defendant's unexplained possession of goods purchased with stolen credit cards supports the conclusion of possessing the Discover card for criminal use. Defendant's argument he possessed enough money to pay for his meal at Denny's could have been discounted since the testimony indicated the three youths went there for a "feast" and Cejer ate more than the single bacon cheeseburger he admitted. Defendant may have had enough money to pay for his meal, but he declined to do so and stood by the cash register while the Discover card was used to pay for his meal. Finally, defendant was wearing a Ralph Lauren shirt which had apparently been purchased from the May Company with a stolen credit card found in the wallet. Although defendant argued his mother bought the shirt a few months prior to his arrest, the police stated the shirt and other merchandise entered into evidence as exhibits with price tags attached correlated to the - 13 - items listed on the May Company receipt. Under the circumstances, Cejer's conviction for possession of criminal tools is not against the weight of the evidence. Forgery Finally, R.C. 2913.31 defines the crime of forgery and provides in pertinent part 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; R.C. 2913.01(G), in turn, defines "forge" as follows: Forge means to fabricate or create, in whole or in part and by any means, any spurious writing, or to make, execute, alter, complete, reproduce, or otherwise purport to authenticate any writing, when such writing in fact is not authenticated thereby. A person charged as a principal may be convicted as an aider and abettor pursuant to R.C. 2923.03(F). Cleveland v. Ueberschaar (Mar. 8, 1990), Cuyahoga App. No. 58047, unreported (citations omitted). Accordingly, a defendant may be convicted of forgery when the physical act of forgery is committed by another person involved in a common scheme with defendant. See, State v. Bender (1985), 24 Ohio App. 3d 131. - 14 - Contrary to Cejer's contention, the prosecution is not required to prove Cejer himself presented the Discover card and signed the credit slip at Denny's. See, State v. Bender, supra at 132. The evidence demonstrated Cejer knowingly accepted the benefits and participated in the forgery of the credit sales slip at Denny's and was not merely associating with Valentino when the crime occurred. Accordingly, defendant's sole assignment of error is overruled. Judgment accordingly. - 15 - 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 Common Pleas Court 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 JOHN F. CORRIGAN, J., CONCUR JUDGE BLANCHE KRUPANSKY 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. .