COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59957 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION YASMINE HOWELL : : Defendant-appellant : : : DATE OF ANNOUNCEMENT APRIL 16, 1992 OF DECISION : _______________________ CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-246,554 JUDGMENT : AFFIRMED. : DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES, Prosecutor Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: JULES N. KOACH Attorney at Law 1525 Leader Building Cleveland, Ohio 44114 - 2 - PATTON, J.: Defendant-appellant, Yasmine Howell ("appellant"), appeals her convictions for forgery (R.C. 2913.31), uttering (R.C. 2913.31), and theft (R.C. 2913.02). On April 4, 1990, a jury trial commenced and on April 6, 1990, the jury returned its guilty verdicts. The appellant was sentenced to one and one- half years for each offense. Imposition of sentence was suspended and appellant was placed on two years probation. Additionally, she was ordered to pay restitution in the amount of $3,500 plus costs. The facts giving rise to the instant appeal are as follows. On July 26, 1989, John Dziatlik, a contract auditor for British Petroleum ("BP"), arrived at a BP service station located at East 55th Street and St. Clair Avenue for the purpose of conducting an audit. The appellant was the manager of the service station. During the course of the day, Mr. Dziatlik and the appellant compiled the necessary information to facilitate the preparation of an audit report. At approximately 2:00 p.m. the appellant left the service station indicating she would return in one-half hour. She did not return. After compiling the necessary information Mr. Dziatlik left the service station. During his preparation of the audit report he discovered that the deposits recorded by the appellant for the previous day were never received by the depository bank. Fur- - 3 - ther, his audit report revealed that the station was short the sum of $4,220.19. In addition to the testimony of Mr. Dziatlik the state presented the testimony of Bobby Scruggs, appellant's retail supervisor at BP. Mr. Scruggs testified that appellant's responsibilities included control of all station funds, pre- paration of daily sales reports, bank deposits, conducting inventory, and hiring, training and development of station personnel. Mr. Scruggs testified that he unsuccessfully at- tempted to locate the appellant after she left the service station the day of the audit. On a subsequent date he went to the appellant's home to pick up the keys to the service station. The appellant informed him that approximately two months prior to the audit she left the safe open on a Saturday and funds were missing on Sunday when the open safe was discovered. He further stated that he had a meeting with the appellant, his supervisor, John Thomas, and the appellant's parents on August 1, 1989. The appellant indicated she did not report the stolen funds because she was afraid of losing her job and she was hoping that by rolling back bank deposits to cover for the missing funds she would be able to repay the funds. The last witness to testify on behalf of the state was Richard Swierczek security representative for BP. He testified he was made aware of the missing funds and generated a certified demand letter to the appellant. When no response was made, he - 4 - brought the matter to the attention of the Cuyahoga County Pro- secutor's Office. The appellant testified that on May 21, 1989, she was called to the service station by an employee who informed her that the safe was unlocked. She proceeded to the station and locked the safe. The following day, after preparing her reports, she discovered that $3,500 was missing. She stated she did not report the missing funds. She indicated she had hoped to repay the funds by placing her paychecks back into cash funds to reduce the shortage. Prior to the July 26, 1989 audit, she testified she had repaid approximately $1,000 of the missing funds. At the conclusion of the trial the jury convicted the appel- lant as charged in the indictment. A timely appeal followed. Appellant's first assignment of error provides: I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT ADMITTED IN EVIDENCE STATE'S EXHIBITS 1, 2, 3, 4 AND 6. Appellant argues the admission of each exhibit was contrary 1 to law and prejudicial to the appellant. Appellant places the primary emphasis of her argument on the admission of State's Exhibit 4. She argues that the following statement contained in the exhibit was highly prejudicial: "Yasmine stated that, in 1 While appellant alleges error in the admission of State's Exhibit 3, she has failed to separately argue its admission within her brief. We thus disregard any error associated with its admission. See App. R. 12(A). - 5 - order to avoid prosecution, she was willing to pay back the shortage." Generally, "the trial court has broad discretion in the admission and exclusion of evidence and unless it has clearly abused its discretion and the defendant has been materially prejudiced thereby, this court should be slow to interfere." State v. Hymore (1967), 9 Ohio St. 2d 122; State v. Finnerty (1989), 45 Ohio St. 3d 104, 109. Moreover, it is well estab- lished that the term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St. 2d 151, 157. State's Exhibit 4 is a joint statement prepared by Bobby Scruggs and John Thomas. It contains a summary of their August 1, 1989 meeting with the appellant and her parents. It was prepared on November 7, 1989, at the request of BP's corporate security department. At trial, Bobby Scruggs testified about a meeting which occurred on August 1, 1989. The meeting was attended by Scruggs, John Thomas, the appellant and the appellant's parents. Scruggs testified that the appellant revealed at the meeting she had not reported the missing funds because she was afraid of losing her job and she had hoped that by rolling back deposits she would be able to repay those funds by depositing a portion of her pay checks into the station's cash receipts. Further, Scruggs - 6 - identified States' Exhibit 4 as a joint statement of John Thomas and himself which summarized the August 1st meeting. However, as appellant correctly points out, Scruggs never testified the appellant indicated at their meeting she was willing to pay back the shortage in order to avoid prosecution. To the extent that State's Exhibit 4 summarizes the trial testimony of Bobby Scruggs concerning the August 1, 1989 meeting we find no error in its admission. Those portions of the exhibit constitute an admission by a party opponent and were properly admitted pursuant to Evid. R. 801(D)(2)(a), which provides that a statement is not hearsay, and thus admissible, if it "is offered against a party and is his own statement." However, the state presented an insufficient foundation for the admission of appellant's alleged statement that she was willing to pay back the shortage in order to avoid prosecution where no testimony was elicited that such a statement was in fact made by the appellant. Despite the insufficient foundation we conclude any error in the admission of State's Exhibit 4 was harmless error. Where evidence has been improperly admitted, the admission is harmless beyond a reasonable doubt if the remaining evidence alone comprises overwhelming proof of defendant's guilt. State v. Williams (1983), 6 Ohio St. 3d 281, 290. Here, there exists overwhelming evidence of appellant's guilt. John Dziatlik, an auditor for BP, testified that he conducted an unannounced audit at the BP service station where - 7 - appellant was the manager. During his preparation of the audit report he discovered that the deposits recorded by the appellant for the previous day were never received by the depository bank. Further, his audit revealed that the station was short the sum of $4,220.19. Moreover, the appellant admitted she had been rolling back deposits and reporting inaccurate figures in her daily checkout sheets in order to conceal funds which allegedly disappeared when she inadvertently left the station safe unlocked. Additionally, Bobby Scruggs testified that the appellant was responsible for preparing the daily checkout sheets and that her signature appeared on the checkout sheet in State's Exhibit 6. In light of the foregoing, it cannot be said that without the disputed admission the verdict of the jury would have been different. See State v. Sage (1987), 31 Ohio St. 3d 173, 181- 182. We conclude that there exists overwhelming proof of appellant's guilt. Accordingly, appellant was not materially prejudiced by the admission of the contested exhibit. Further- more, any prejudice resulting from her alleged statement that she was willing to repay the shortage in order to avoid prosecution was effectively rebutted by the testimony of her parents. Each of her parents testified that no such statement was made by the appellant at the August 1, 1989 meeting. Next, appellant alleges error in the admission of State's Exhibit 1. State's Exhibit 1 is a job description of a BP ser- - 8 - vice station manager. Appellant argues the document contained no relevant evidence and thus should not have been admitted. Appellant's argument lacks merit. State's Exhibit 1 sets forth the primary duties of a service station manager. It provides that it is the manager's respon- sibility to see that company funds are properly handled and that cash is deposited promptly. Further, the manager is responsible for personally performing station bookkeeping. Such information is directly relevant to appellant's charges of forgery, uttering and theft. It establishes that it was the appellant's respon- sibility to perform bookkeeping duties. We thus find no error in the admission of State's Exhibit 1. Next, appellant alleges error in the admission of State's Exhibit 2. State's Exhibit 2 is the audit report prepared by John Dziatlik. Appellant argues the state failed to elicit a sufficient foundation for its admission. Appellant's argument is not supported by the record and thus lacks merit. The record establishes that State's Exhibit 2 was a report prepared by Mr. Dziatlik, a graduate of Southeast Missouri State University with a degree in accounting. Further, the report was prepared in the ordinary course of Mr. Dziatlik's business with BP as an auditor. We find that the state presented a sufficient foundation for the admission of State's Exhibit 2. We thus reject appellant's argument to the contrary. - 9 - Next, appellant alleges error in the admission of State's Exhibit 6. State's Exhibit 6 is appellant's daily checkout sheet for the day preceding the July 26, 1989 audit. Appellant argues the state failed to establish the checkout sheet was generated from the service station in question. Appellant's contention lacks merit. Mr. Dziatlik testified that State's Exhibit 6 is a checkout sheet prepared daily by each manager which reports sales and revenue in order to determine cash overages and shortages. Further, Mr. Dziatlik testified that State's Exhibit 6 was the checkout sheet for the day preceding the audit and that the closing figures on State's Exhibit 6 match the opening figures on the day of the audit. In light of the above we conclude there was sufficient evidence establishing that State's Exhibit 6 was generated by the appellant at the East 55th Street service station to warrant its admission. For the foregoing reasons, appellant's first assignment of error is without merit and is overruled. Appellant's second, third and seventh assignments of error will be discussed together. They provide: II. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT OVERRULED APPELLANT'S CR. R. 29 MOTION FOR ACQUITTAL AT THE CLOSE OF THE STATE'S CASE. III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT OVERRULED APPELLANT'S CR. R. 29 MOTION FOR ACQUITTAL AT THE CLOSE OF ALL OF THE EVIDENCE. - 10 - VII. THE VERDICT OF THE JURY, AS CONTAINED IN THE JUDGMENT ENTERED BY THE TRIAL COURT, IS NOT SUSTAINED BY SUFFICIENT EVIDENCE AND IS CONTRARY TO LAW. Appellant contends the trial court erred in overruling her Crim. R. 29 motion for acquittal. Specifically, appellant main- tains the state failed to establish proper venue with evidence that the crimes occurred within this county. Additionally, appellant alleges insufficient evidence of theft, uttering and forgery. Appellant's contentions lack merit. Initially we will address appellant's contention that the state failed to prove venue. It has been held that express evidence to establish venue is not necessary if, from all of the facts and circumstances in the case, it is established beyond a reasonable doubt that the crime was committed in the county and state named in the indictment. State v. Collins (1977), 60 Ohio App. 2d 116; State v. Balyer (Feb. 9, 1984), Cuyahoga App. No. 47001, unreported. John Dziatlik testified that he conducted an audit of the BP service station located "at East 55th and St. Clair in Cleve- land, Ohio." (Tr. 54.) Therefore, we conclude sufficient evidence was presented at trial to establish the offense was committed in Cuyahoga County. Balyer, supra. Next, we will address appellant's contention that the evidence is insufficient to sustain her convictions. A reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that - 11 - the state has proved the offense beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 1969. The test for suffi- ciency review is set forth in State v. Martin (1983), 20 Ohio App. 3d 175: As to the claim of insufficient evidence, the test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. Martin, supra, citing Jackson v. Virginia (1979), 443 U.S. 307, 319. The standard for determining whether a motion for acquittal is properly denied is set forth in State v. Bridgeman (1978), 55 Ohio St. 2d 261, syllabus: Pursuant to Crim. R. 29(A), a court shall not order an entry of judgment 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. Appellant was convicted of forgery and uttering in violation of R.C. 2913.31(A)(2) and (A)(3), which provide: (A) No person, with purpose to defraud, or knowing that he is facilitating a fraud, shall do any of the following: (1) *** (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 - 12 - 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, or possess with purpose to utter, any writing which he knows to have been forged. Review of the record indicates sufficient evidence that the appellant forged and uttered her daily checkout sheets. Bobby Scruggs testified that the appellant was responsible for pre- paring the daily checkout sheets which were submitted to BP and that the appellant's signature appeared on the daily checkout sheet contained in State's Exhibit 6. Further, he testified that the appellant admitted rolling back bank deposits and reporting inaccurate figures in the daily checkout sheets so that she could conceal the missing funds. Given the testimony of Bobby Scruggs and viewing such in a light most favorable to the prosecution, we conclude the trial court properly denied appellant's motions for acquittal. We further find sufficient evidence supporting appellant's con- victions for forgery and uttering. The appellant was also convicted of theft in violation of R.C. 2913.02, which provides in part: (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; - 13 - (2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent; (3) By deception; * * * Review of the record reveals that reasonable minds could reach different conclusions as to whether a theft was proved beyond a reasonable doubt. John Dziatlik testified that deposits recorded by the appel- lant had never been received by the bank. Further, the results of his audit revealed that the station was short the sum of $4,220.19. Bobby Scruggs testified that the appellant informed him that she had been rolling back deposits in order to conceal funds which allegedly disappeared when the appellant inadvertently left the station safe unlocked. Further, it was uncontroverted that the appellant never reported the missing funds prior to their discovery during the station audit. In light of the above, we conclude that reasonable minds could reach different conclusions as to whether the appellant was responsible for the theft of the missing funds. Accordingly, the trial court properly denied her motion for acquittal. We further find that there exists sufficient evidence supporting appellant's conviction for theft. Thus, appellant's second, third and seventh assignments of error are without merit and are overruled. - 14 - Appellant's fourth, fifth and sixth assignments of error will be discussed together. They provide: IV. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT OVERRULED THE MOTION FOR MISTRIAL BASED UPON PROSECUTORIAL MISCONDUCT MADE BY APPELLANT FOLLOWING THE CONCLUDING PORTION OF THE STATE'S CLOSING ARGUMENT. V. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT FAILED TO STRIKE FROM THE EVIDENCE A STATEMENT MADE TO THE JURY BY THE PRESECUTOR [sic] DURING HIS PRESENTATION OF EVIDENCE TO THE EFFECT THAT HE HAD "A PAPER" THAT EVI- DENCED A WRONGFUL ACT BY APPELLANT WITH RESPECT TO HER ELIGIBILITY FOR PUBLIC ASSIS- TANCE. VI. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT OVERRULED CERTAIN OBJECTIONS MADE BY APPELLANT BECAUSE OF PROSECUTORIAL MISCON- DUCT DURING THE CONCLUDING PORTION OF THE STATE'S CLOSING ARGUMENT. Initially, we will address appellant's fifth assignment of error. Therein, she alleges prosecutorial misconduct during the course of trial. Specifically, she alleges prejudice in the prosecutor's reference to his possession of a paper during appel- lant's cross-examination. The relevant portion of the transcript provides: Q. Okay. But you do recall telling us you were employed during that period of time, don't you? A. And I went down there when I got employed and I signed myself off. Q. You did what? A. I did signed myself off. MR. KOACH: I'm going to object to that kind of comment, "You did, what." - 15 - A. I have a paper. THE COURT: Excuse me. Excuse me. Mr. Mason, just ask questions. No -- MR. MASON: Certainly. THE COURT: No editorial comments. (Tr. 264.) We need not address the merits of appellant's claim as she failed to bring the alleged error to the trial court's attention by way of objection. The general rule is that an appellate court will consider only such errors as were "preserved" in the trial court. State v. Williams (1977), 51 Ohio St. 2d 112. Moreover, an appellate court need not consider an error which a complaining party should have called, but did not call, to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. Id. However, pursuant to Crim. R. 52(B) "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court." The plain error rule should not be invoked unless, but for the error, the outcome of the trial would clearly have been otherwise. State v. Long (1978), 53 Ohio St. 2d 91. The application of this rule is to prevent manifest miscarriages of justice. Id. We are not persuaded that but for the prosecutor's refer- ence to "a paper" the appellant would have been acquitted. The error claimed by the appellant does not rise to the level of - 16 - plain error. Accordingly, appellant's fifth assignment of error is overruled. Appellant's fourth and sixth assignments of error allege prosecutorial misconduct during the state's closing argument. Specifically, she alleges error in the prosecutor's references to appellant's receipt of welfare funds while being employed. Addressing a prosecutor's comments during closing argument, the Ohio Supreme Court has stated: The test regarding prosecutorial misconduct in closing arguments is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant. [Citations omitted.] State v. Smith (1984), 14 Ohio St. 3d 13, 14. The prosecution is entitled to a certain degree of latitude in summation. State v. Liberatore (1982), 69 Ohio St. 2d 583, 589. Remarks of a prosecutor may be intemperate, unprofessional and may better be left unsaid; however, the conduct will not rise to a level sufficient to warrant reversal in all cases. State v. Woodards (1966), 6 Ohio St. 2d 14, 26. After reviewing the prosecutor's closing arguments, we are not persuaded that they prejudicially affected substantial rights of the appellant. The transcript reveals the trial court avoided prejudice by sustaining objections and issuing curative instructions. Appellant initially claims error in the following portion of the prosecutor's argument: - 17 - MR. MASON: Now, and if -- he'd like you to believe that our system of welfare permits people to work full time and collect assistance. Now, use your common sense. Does that really happen? Does it happen out there? MR. KOACH: Objection, your Honor. THE COURT: Argument, counsel. Overruled. MR. MASON: Does it happen? You answer the question. Do we really pay people, let them work full time, hold down jobs, and then give them a little kicker because we are nice? It's all your money. It's the public funds she's dipping into. MR. KOACH: Objection. THE COURT: Sustained, counselor. That's not an appropriate argument. MR. KOACH: I'm going to ask the jury to, the Court to instruct the jury. THE COURT: Excuse me, counselor. The jury will ignore any reference made to your particular interests in the outcome of this case. (Tr. 415-416.) We find that no prejudice occurred as the trial court sustained defense counsel's objection to the comment and gave a curative instruction to the jury. Appellant also claims error in the following: MR. MASON: Now, who really has an interest in this case? Who really has an interest in this case? The welfare cheat. - 18 - MR. KOACH: Objection. MR. MASON: She's the one that has an interest in the case. THE COURT: Overruled. MR. MASON: She is the one that is concerned about the outcome, the results of this case, not BP America. They are doing what they have to do. They don't benefit from a conviction in this, in any kind of way. She is the one whose got, whose got something at stake. She is the one whose credibility you need to test, and how was her credibility on that stand? Ask yourself that. Did she look like she was being truthful to you? She didn't even want to tell you where she works right now. You want to know why she didn't want to tell you? Because she knew I knew she was on welfare. She heard me talking in the hallway. MR. KOACH: Objection. May we be heard at side bar, your Honor? THE COURT: Counsel, let's restrict yourself to the testimony and the evidence presented during the course of the trial. Now, anything that happened anywhere else but in the courtroom is not evidence, and, ladies and gentlemen, you will ignore any reference to anything that happened outside of the courtroom, and that wasn't evidence in this case. (Tr. 417-418.) We similarly find that the court's curative instruction to disregard any reference to anything that happened outside the courtroom sufficiently avoided any resultant prejudice to the appellant. Additionally, we find that while the prosecutor's reference to the appellant as a "welfare cheat" was intemperate, - 19 - unprofessional and better left unsaid, the remark did not rise to a level sufficient to warrant a reversal. Cf. State v. Martin (1986), 21 Ohio St. 3d 91, 95-96. While it was error for the prosecutor to refer to appellant's receipt of welfare benefits, the overwhelming evidence of the appellant's guilt requires this court to find that said error was harmless beyond a reasonable doubt. State v. Williams (1983), 6 Ohio St. 3d 281. Although we have concluded that the prosecutor's references to appellant's receipt of welfare funds was harmless, we caution the prosecution against similar future conduct. Given the strength of the state's case it was entirely unnecessary for the prosecutor to discuss the appellant's receipt of welfare funds. Further, absent the existence of overwhelming evidence of appellant's guilt, the prosecutor's actions may have constituted reversible error. Consistent with the foregoing, appellant's fourth, fifth and sixth assignments of error are without merit and are overruled. Judgment affirmed. - 20 - 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 Cuyahoga County 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., CONCURS HARPER, J., CONCURS SEE ATTACHED CONCURRING OPINION JUDGE JOHN T. PATTON 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. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59957 : STATE OF OHIO : : : Plaintiff-Appellee : : CONCURRING -vs- : : OPINION YASMINE HOWELL : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT APRIL 16, 1992 OF DECISION: HARPER, J., CONCURRING: While I concur with the majority's disposition and most of its reasoning, I write to stress that I do not share the majority's conclusion that the trial court's attempted curative instruction was sufficient to overcome the potential prejudice the remarks of the prosecutor had on the trial. I also agree that the overwhelming evidence renders the misconduct harmless error but disagree with the majority that "the prosecutor's actions may have constituted reversible error". The prosecutor's misconduct constituted reversible error had it not been for the overwhelming evidence. .