COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61072 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION TAMARA PRITCHETT : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 12, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court No. CR-254035 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor RONALD JAMES, Assistant The Justice Center 1200 Ontario Cleveland, Ohio 44113 For Defendant-Appellant: GEORGE W. MACDONALD 848 Rockefeller Building 614 Superior Avenue, N.W. Cleveland, Ohio 44113 - 2 - KRUPANSKY, J.: Defendant Tamara Pritchett timely appeals her conviction for theft, R.C. 2913.02, arising from her failure to pay for motor vehicle repairs. The following relevant facts are gleaned from the trial court transcript: Howard Evans, manager of All Kar Service Center (hereinafter "All Kar"), a car repair business located in University Heights, Ohio, testified that sometime in late February 1990, defendant and her boyfriend, Pierre Nappier, brought a 1986 Chevrolet Blazer truck to All Kar for service. All Kar was told "to work on the engine." Mr. Evans testified defendant's truck was serviced by All Kar over a period of approximately a week to ten days. Repairs were made to, inter alia, the engine block, the cylinder head, the pistons, and the air breather. All Kar completed its repairs on February 24, 1990. The total repair bill for defendant's truck amounted to $1364.25. Defendant was then notified the requested truck repairs had been done. Mr. Evans testified defendant and Mr. Nappier came "a couple of days after the truck was done" to "pick it up." He stated that at that time the truck's engine was "in very good condition" but that the truck still had some other mechanical problems not related to the engine. Mr. Evans testified defendant paid All Kar's repair bill by check on February 28, 1990, the day she and Mr. Nappier came to - 3 - pick up the truck. It was check number 134, drawn on an account held at the Parma School Employees Credit Union in the amount of $1364.25. Mr. Evans identified a copy of the bill for services to defendant's truck and a copy of the check given to All Kar by defendant. Mr. Evans testified that about a week later All Kar was notified defendant's check was returned for insufficient funds. Accordingly, Mr. Evans made attempts to contact both defendant and her boyfriend regarding the matter. Mr. Evans states he eventually reached Mr. Nappier by telephone. At that time, Mr. Evans testified, Mr. Nappier told him "they put a stop payment on the check and it wasn't nonsufficient funds" and also that "they were having problems with the truck," i.e., it was stalling. Mr. Evans testified he told Mr. Nappier to bring the truck back to All Kar because "[i]f there is something we had done to the vehicle that wasn't right *** we have to go over it ***." However, neither defendant nor Mr. Nappier ever brought the truck back to All Kar. Mr. Evans thereafter contacted the Parma School Employees Credit Union. After his inquiry to the credit union, Mr. Evans sent certified letters to both defendant and Mr. Nappier requesting payment on the account. The letters were returned unclaimed. Mr. Evans testified he then filed a complaint with the University Heights Police Department. Approximately five months thereafter, sometime in July 1990, defendant contacted Mr. Evans - 4 - and defendant paid $100.00 on the account. Defendant further paid All Kar another $100.00 in cash about a week later. No further payments were made by defendant. Det. Pasternak of the University Heights Police Department also testified for the state during its case-in-chief. Det. Pasternak stated that after he conducted some investigation of the complaint filed by Mr. Evans on behalf of All Kar on May 11, 1990, a woman identifying herself as defendant called him. He testified she initially stated her checkbook had been stolen; however, when he confronted her about the similarity between the signatures on the check and the work applications, defendant stated, "I just didn't have enough money to cover the check." Det. Pasternak stated he then advised defendant to contact All Kar concerning a payment arrangement. He further testified that he later contacted All Kar and, following this inquiry, he directed All Kar's complaint to the Cuyahoga County Grand Jury. Subsequently, defendant was indicted by the grand jury on a two-count indictment; viz., count one, passing a bad check, R.C. 2913.11, and count two, theft, R.C. 2913.02. Defendant pleaded not guilty to both counts of the indictment at her arraignment. The case was thereafter set for a jury trial. Prior to trial, defendant filed a motion in limine requesting the trial court prohibit the state from introducing into evidence "any allegations that this defendant may have had insufficient funds on any other occassions (sic.)." The trial - 5 - court granted the motion in part. The trial court prohibited references to such evidence during the voir dire or opening statements, but reserved any further ruling on the motion pending a court voir dire of the state's witness. At trial, the state presented the testimony of the following witnesses: 1) Mr. Evans; 2) Ptl. Todd Kinley of the University Heights Police Department, who took the information regarding All Kar's complaint from Mr. Evans; and 3) Det. Pasternak. At the close of the state's case-in-chief, the trial court admitted as state's exhibits the following: 1) All Kar's repair bill in the amount of $1364.25; 2) defendant's check to All Kar, number 134, in the amount of $1364.25; and 3) a carbon of a memorandum dated July 27, 1990, which Mr. Evans testified he wrote and which stated as follows: Rec'd. from Ms. Tamara Pritchett the sum of $100.00 One Hundred -- no cents -- payment on bill. 1 1412.25 Pay 100.00 Bal. 1312.25 [Signed H. Evans] All Kar Service Ctr. 2nd payment will be on the 3d of August $100.00 T.P. 1 This figure became explainable during the presentation of defendant's evidence. Defendant's boyfriend, Pierre Nappier, testified on direct examination that defendant's vehicle was serviced by All Kar once previously during February 1990; the check admitted into evidence to support this assertion showed an amount of $48.10. When $1364.25 and $48.00 are added together, the amount equals $1412.25. - 6 - After the admission of the state's exhibits, defendant made a motion for acquittal pursuant to Crim. R. 29. The trial court granted defendant's motion with respect to the first count of the indictment, viz., passing a bad check. The trial court stated as the basis of its decision the state had failed to prove the "essential element" of "knowledge by the defendant that the check would be dishonored or that payment for it would be refused ***." The defendant then presented her case. Defendant testified on her own behalf. She stated All Kar worked on her vehicle twice in February 1990. She stated her boyfriend, Mr. Nappier, took the truck to All Kar on February 13 for a tune-up and picked it up the same day; however, the next day, the truck "stopped" so she had the truck towed to All Kar. She testified thereafter she was notified the truck was ready on February 24, 1990; she, on that day, then went to All Kar, where she was presented with All Kar's bill for $1364.25. She further testified she wrote check number 134 in the amount of $1364.25 on February 24, 1990, but postdated it to February 28, 1990. She stated she did not have sufficient funds in her account at the time to cover it, but intended to obtain the money and put it in her account before the check cleared. She stated her truck "started to stall" the day after she retrieved it from All Kar, "stopped" on February 27, 1990, and was then towed to another car service business. She testified that on February 27, 1990, she - 7 - attempted to stop payment on the check written to All Kar; however, she mistakenly gave the credit union the wrong check number. She further stated that she notified All Kar that the truck wasn't running properly but wanted to take the truck "somewhere else." She testified she paid All Kar on the account because she was told by the police department that she could be prosecuted and stopped making payments when she received her indictment. Defendant then presented the testimony of two witnesses to support her testimony concerning the whereabouts of both herself and her vehicle on the relevant dates in February and March 1990. The first witness, a Mr. Cobb, affiliated with a business named Discount Automotive Service Center, testified his company's invoice indicted a 1986 Chevrolet belonging to defendant was serviced on February 27, 1990. Since, however, Mr. Cobb was out of state on that date, he had no personal knowledge concerning the matter. The second witness, Ms. Lovka, custodian of records from defendant's former place of employment, testified the records indicated on February 27, 1990 defendant was absent from work and, on February 28, 1990, defendant worked from 6:47 a.m. until 11:30 a.m., then from 12:00 noon until 3:30 p.m. At this point in the trial, the trial court conducted a voir dire of the state's witness Janice Thomas, vice president and custodian of records at the Parma School Employees Credit Union. Ms. Thomas identified check number 134 and stated it was returned - 8 - for insufficient funds. Following the voir dire, the trial court overruled defendant's motion in limine, thus permitting the introduction of evidence regarding defendant's account activity at the credit union. Thereafter, one further witness testified on defendant's behalf. Pierre Nappier testified he took defendant's truck to All Kar for service twice in February, 1990. He testified the first time was for a tune-up on February 13, 1990, and a friend paid the bill in the amount of $48.10. He stated the second time the vehicle was at All Kar, he and defendant picked it up on February 24. When the truck stopped working a few days later, he notified All Kar; however, he and defendant had the truck towed to another repair shop because they "just didn't want to deal with" All Kar again. He also testified on cross-examination that in spite of the difficulties with the truck, he never complained to All Kar about the bill. Defendant at this time moved to introduce her exhibits, viz., 1) the repair bill from Discount Automotive Service; 2) a stop payment order issued for check number 127 in the amount of $1364.25 dated February 24, 1990; 3) her work attendance records for 1990; 4) a stop payment order issued for all checks from number 101 to number 251 dated April 28, 1990 due to "wallet stolen"; and 5) a check to All Kar dated February 13, 1990 from a Jacqueline Benjamin in the amount of $48.10. - 9 - Defendant then renewed her Crim. R. 29 motion for acquittal on the remaining charge, viz., theft, arguing there was no evidence of a lawful repair bill from All Kar. The trial court overruled the motion. The state was then permitted to introduce rebuttal evidence; the state called Ms. Thomas to testify. Ms. Thomas testified defendant never requested a stop payment order on check number 134; however, during February and March 1990, defendant's account showed three stop payment orders were issued and ten checks were returned for insufficient funds. She further stated check number 134 was returned for insufficient funds. Ms. Thomas testified the credit union terminated defendant's account because "she [defendant] had had quite a few returned checks and had a negative balance in her account." On cross-examination, Ms. Thomas testified defendant had requested a stop payment order on check number 127 in the amount of $1364.25. Defendant testified briefly on surrebuttal; she stated she "made good" all the checks returned for insufficient funds "except for All Kar." The case was then submitted to the jury. During its deliberations, the jury submitted a question to the trial court, viz., the following: Do we decide that the intent to deceive was when the check was written or the days following. - 10 - In response, the trial court repeated its definitions of the words "deprive" and "deception." Thereafter, defendant was found guilty of violation of R.C. 2913.02, theft. Defendant was thereupon referred to the probation department for a presentence report. Subsequently, defendant was sentenced to a term of incarceration of six months; however, execution of sentence was suspended. Defendant was placed on probation for one year and ordered to pay costs and restitution, probation to terminate upon full payment. Defendant thereafter timely appealed her conviction to this court and cites four assignments of error for review. Defendant's first assignment of error follows: THE TRIAL COURT ERRED IN OVERRULING DEFENDANT-APPELLANT'S RULE 29 MOTION TO DISMISS THE CHARGE OF THEFT. This assignment of error lacks merit. Defendant argues that the trial court erred when it failed to grant defendant's Crim. R. 29 motion for acquittal, which defendant made at the close of the state's case-in-chief, at the close of all of the evidence and following the jury verdict of guilty. Crim. R. 29(A) states that after the evidence on either side is closed the court shall order the entry of a judgment of acquittal if the evidence is insufficient to sustain a conviction of the offense. In State v. Apanovitch (1987), 33 Ohio St.3d 19, 23, the court stated the following: "A motion or judgment of acquittal under Crim. R. 29(A) should be granted where reasonable - 11 - minds could not fail to find reasonable doubt." (Citations omitted.) (Emphasis added.) Moreover, the court in State v. Martin (1983), 20 Ohio App.3d 172, 175, stated the test as follows: 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. Jackson v. Virginia (1979), 443 U.S. 307, 319. (Citations omitted.) (Emphasis added.) A challenge to the sufficiency of evidence, therefore, requires that this court view the matters adduced in the light most favorable to the prosecution and determine whether a rational factfinder could have found all the material elements of the offense beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St. 261. Defendant was charged with a violation of R.C. 2913.02, theft, which states in pertinent part the following: 2913.02 Theft. (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: * * * (3) By deception; ***. (Emphasis added.) - 12 - R.C. 2913.01(C) defines the term "deprive" as follows: (C) "Deprive" means to: * * * (3) Accept, use, or appropriate money, property, or services, with purpose not to give proper consideration in return therefore, and without reasonable justification or excuse for not giving proper consideration. R.C. 2913.01(E) defines "services"as follows: (E) "Services" include labor, personal services, professional services, *** Thus, the court in State v. Breaston (1982), 8 Ohio App.3d 144, correctly stated that the common law definition of "deprive" has been statutorily broadened to "include the use of property [or services] with the purpose not to give proper consideration in return therefore. It is no longer necessary that defendant have an intent to permanently deprive the owner *** to be guilty of theft ***." Id., at 145. Moreover, in State v. Jacobuzzi (1983), 6 Ohio St.3d 86 at 90, the supreme court stated that there was sufficient evidence of "deception" where: The state's witnesses testified that Elliott represented to the city that he had completed work under a contract with the city which, in fact, was not completed and received payment therefor. *** That being the case, it becomes clear that the state was justified in prosecuting Elliott under R.C. 2913.02(A)(3), inasmuch as Elliott purposely deprived the owner (the city) of property (money) by deception (Elliott's representation that the work was completed). As a consequence, we hold that the evidence produced by the state - 13 - was sufficient to sustain Elliott's conviction ***. See, also, State v. Patterson (1989), 63 Ohio App.3d 91. Construing the evidence in the case sub judice in a light most favorable to the prosecution, therefore, reasonable minds could have found all the essential elements of the offense of theft. Mr. Evans testified to the following: 1) defendant had obtained $1364.25 worth of car repair services from All Kar; 2) defendant had written a check therefor, thus representing she had funds to cover the check; 3) the check was subsequently dishonored for insufficient funds; 4) defendant thereafter continued to represent she would tender payment on the amount owed; and 5) defendant's bill was never paid in full. From these facts, a jury could have found all the essential elements of theft. State v. Jacobuzzi, supra. In this assignment of error, defendant further contends, however, since All Kar's repair bill was "illegal," being on its face in noncompliance with the statutes governing consumer sales transactions, the repair bill had no legal standing; hence, the state produced insufficient evidence that any services were stolen by defendant. Defendant relies on State v. Lavandera (1986), 34 Ohio App.3d 83, in support of her contention. However, her contention remains unpersuasive. The facts in State v. Lavandera, supra, are readily distinguishable from those of the case sub judice. In Lavandera, defendant went to a gasoline station and mistakenly started - 14 - pumping gasoline from a full-service pump into his car. When he noticed the price, however, defendant stopped pumping the gasoline and protested to the station attendant that the price was not the advertised self-service price. Defendant was then informed he was at a full-service pump. Defendant refused to pay the full amount shown on the pump, insisting on paying only the self-service price per gallon. He was thereafter arrested and indicted for theft of property in violation of R.C. 2913.02. At trial, the trial court overruled defendant's motion to dismiss, and the jury thereafter returned a verdict of guilty. On appeal, the court of appeals overturned defendant Lavandera's conviction, noting the following: *** There was no evidence that the full- service price of $1.38 per gallon was predicated on a higher quality or grade of gasoline. To the contrary, the full-service price was for the same gasoline plus the cost of full service to the customer. There was absolutely no testimony by the state from which it could be concluded that the value of the property (gasoline) itself, per gallon, was greater than the value of self-service gasoline. The difference in price was for the additional service normally rendered but which was not provided here. * * * As was noted earlier, the defendant was charged only with depriving the owner of "property," and not "property or services" or "services" alone, as provided for in the statute. It is clear the appellant paid for the value of the gasoline at the self-service rate. It follows, then, that the selling price for self-service gasoline (the - 15 - property) was paid; hence, the owner was not deprived of his property without payment therefor. Accordingly, that element of the crime, "with purpose to deprive the owner of property," was not proven. Id. at 85. (Emphasis added.) In contrast to Lavandera, supra, in the case sub judice, the indictment charged defendant with theft of "property or services." Moreover, the state presented the testimony of Mr. Evans, who explicitly stated All Kar had provided $1364.25 in car repair service to defendant. Furthermore, defendant's bill was entered into evidence. This was thus sufficient evidence of "service." Defendant places much reliance on the fact that All Kar's bill does not strictly comply with the requirements set forth in O.A.C. Section 109:4-3-13. Citing Simpson v. Smith (1987), 34 Ohio Misc.2d 7, defendant states such noncompliance renders All Kar's bill "void" because it constitutes an unfair or deceptive consumer sales practice as prohibited by R.C. 1345.02(A); therefore, there is no evidence of "services" performed by All Kar. Assume arguendo the evidence shows noncompliance, however, neither Simpson v. Smith, supra, the cited administrative code sections, nor the statutes which govern consumer sales practices state that a bill submitted to a consumer in noncompliance with the applicable laws is void ab initio. - 16 - Moreover, All Kar's bill indicates the parts of the truck serviced, the cost of the repairs, and the person who performed the service. This was sufficient to indicate a billable service 2 was rendered by All Kar. Furthermore, defendant's remedy, if she was dissatisfied with All Kar's "noncompliance" with applicable consumer sales transactions, was to file a complaint with the Ohio Attorney General, not to treat All Kar's bill as nonexistent. O.A.C. Sections 109:4-1-05 and 109:4-1-06. The alleged noncompliance with the consumer sales practices act is not a defense to the criminal act of theft. Therefore, the trial court did not err in overruling defendant's motion for acquittal since the state produced sufficient evidence on the charge of theft in violation of R.C. 2913.02. State v. Jacobuzzi, supra; City of Cleveland v. Mark Ueberschaar (Mar. 8, 1990), Cuyahoga App. No. 58047, unreported. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error follows: 2 O.A.C. Section 109:4-3-13(C)(12) requires the supplier of a motor vehicle repair to furnish to the consumer the following: *** [A]n itemized list of repairs performed or services rendered, including a list of parts or materials and a statement of whether they are used, remanufactured or rebuilt, if not new, and the cost thereof to the consumer, the amount charged for labor, and the identity of the individual performing the repair or service; *** - 17 - THE TRIAL COURT ERRED, AS THE VERDICT OF GUILTY ON THEFT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. This assignment of error also lacks merit. Defendant argues the manifest weight of the evidence showed the case sub judice "was simply a consumer dispute in which a post-dated check had been issued and stopped" and that defendant's evidence was the more consistent and credible. In State v. Martin (1983), 20 Ohio App.3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated as follows: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. 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), 4547 U.S. 31, 38, 42. State v. Martin, supra, at 175. Moreover, the weight of the evidence and the credibility of witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. A reviewing court will not reverse a verdict where there is substantial evidence upon which the trier of fact could reasonably conclude that all the elements of an offense have been - 18 - proved beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d 169. In the case sub judice, it is clear the credibility of the witnesses played a vital role in the jury's verdict. The rule that appellate courts ordinarily do not tamper with witness credibility is based on sound judgment and steeped in stare decisis. One of the rare times an appellate court must tackle the issue of witness credibility is when an assigned error is based on the verdict being against the manifest weight of the evidence. After reviewing the transcript in the case sub judice, it can be gleaned from the written page the testimony of some 3 witnesses lacked credibility. For example, defendant herself gave conflicting testimony. At trial, she testified on direct examination to the following: Q. You said that you stopped payment on this check that you wrote on the 24th; is that correct? A. Correct. Q. Why did you stop payment on it? A. I was -- I was dissatisfied with the work that All Kar Service Center had done on my truck. 3 Defendant cites Columbus Check Cashiers, Inc. v. Stiles (1990), 56 Ohio App.3d 159 in support of her argument as to this assignment of error; however, this court fails to understand how that case, which concerned a holder in due course and was a civil case, pertains to the facts of the case sub judice. Moreover, for purposes of R.C. 2913.02, the "owner" of the stolen item need not be in "lawful" possession of the property or service. State v. Payne (1978), 7 Ohio Ops.3d 432. - 19 - Q. At that time on the 24th, did you have sufficient funds in the bank to cover that check? A. No, I did not. * * * Q. Did you ever call All Kar Service Center about the automobile stalling that day? A. No, I did not. They called me. They contacted me. Q. They called you? A. Yes. Q. On the 27th when you called and you stopped payment on the check -- A. I called, yes, I called. Q. Did you call All Kar? A. Yes, and told -- Q. What did you they (sic.) them? A. I told them that the car had stopped, and he said, "Well, can you bring it in," and I was like, "No, I don't want to bring it back in," and I said, "I am going to take it somewhere else," and that's what I did. I took it somewhere else. (Emphasis added.) On cross-examination, defendant testified as follows: Q. So you still have an account at the Parma Credit Union? A. Okay. I am sorry. I see what you are saying. No, I do not have an account at the credit union. Q. Who terminated the account? A. Parma Schools. - 20 - Q. Why did they terminate it? A. Because I no longer have funds coming from my job. Q. That's the reason. A. Yes. Q. Because you are no longer working there? A. Yes. Q. And that's why they terminated you? A. Yes. Q. All right. Did you tell Detective -- when you talked to Detective Pasternak on the phone, did you tell him that you were dissatisfied with the work on your car? A. No, I did not. Q. Why not? A. Because I wasn't thinking -- I wasn't necessarily thinking. Plus, he like shook me up when he said that I could go to jail for writing a bad check. Q. So at the time you were shaken up? A. Yes. Q. And you knew that, after you talked to him, that if you didn't pay the money back, there was a possibility you could get into some trouble? A. Yes. Moreover, Mr. Nappier testified on cross-examination as follows: Q. All right. And why didn't you take the car back to All Kar? - 21 - A. Why didn't I? Q. Why didn't you? I mean, you know, you paid all this money, they did all this work. A. Because I feel that I done took it there twice and it keeps stalling on me, so why should I take it there again. Q. If you paid them -- you are going to pay them $1300; right? A. Yes. * * * Q. And you took it to their place and they didn't give you any estimate, you didn't know how much it was going to cost and they give you a bill for $1300 and you don't complain? A. No. Furthermore, on rebuttal, Ms. Thomas of the Parma School Employees Credit Union gave testimony which directly contradicted defendant's testimony. Ms. Thomas stated there was no stop payment order placed on the check defendant wrote to All Kar. Additionally, Ms. Thomas stated defendant's checking account was "terminated" because of the negative balance in her account, not because defendant was no longer a school employee. Ms. Thomas further testified defendant had had ten checks returned for insufficient funds and her account had outstanding charges therefor. The jury, after sifting through the conflicting evidence, eventually determined in favor of the state's witnesses on the issue of credibility and weight of the evidence. - 22 - Viewing the entire record of the case sub judice, this court cannot state that "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." State v. Martin, supra. Accordingly, the jury's verdict was not against the manifest weight of the evidence, and defendant's second assignment of error is thus overruled. Defendant's third assignment of error follows: THE TRIAL COURT ERRED IN DENYING DEFENDANT- APPELLANT'S MOTION IN LIMINE, AND IN ADMITTING OVER OBJECTION IRRELEVANT AND PREJUDICIAL TESTIMONY AS TO DEFENDANT'S POOR BANKING PRACTICES IN OTHER INSTANCES. This assignment of error also lacks merit. Defendant objected at trial to the testimony given by Ms. Thomas; a portion of Ms. Thomas' testimony given on direct examination follows: Q. Okay. Showing you what's been marked for identification purposes as State's Exhibit 2-A, have you ever seen that before? A. This is one of our checks. Q. Okay. And who is that check made out to? A. To Tamara Pritchett. It is drawn on her account. Q. And who was it made out to? A. All Kar Service Center. Q. And what is the amount? - 23 - A. $1,364.25. Q. And was a stop payment ever issued on that check? MR. MACDONALD: Objection. THE COURT: Overruled. You can answer. A. There was no stop payment placed on check 134. Q. Did there come a time when Tamara Pritchett's checking account was terminated? A. Yes, there was. Q. And can you tell us why that was done? A. She had had quite a few returned checks and had a negative balance in her account, and the credit union decided to close it down. Q. Okay. Over what period of time were these checks returned? A. Within a two-month period. Q. From what month -- A. From the beginning of February until the end of March she had had ten returned checks. Q. And what year was this? A. That's 1990. Q. '90. Okay. A. 1990. Q. Okay. And how many checks did she write that were good during that period? A. She had six checks that cleared her account. - 24 - Q. And how many stop payments were issued? A. She had called in three stop payments. Q. And exactly why was the account terminated? A. The account -- the checking account was closed because she had a negative balance, and it is our policy that the accounts cannot retain a negative balance; the credit union will close it. Q. Were there any charges on her account? A. Yes. $112. Q. What were those for? A. Those were for the checks that had been returned. Evid. R. 404(B) states as follows: (B) Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. (Emphasis added.) See, also, R.C. 2945.59. Defendant maintained throughout the trial she mistakenly placed a stop payment order on the wrong check. The evidence that she had a substantial number of checks returned for insufficient funds in February and March 1990 was relevant to show an absence of mistake on defendant's part. Therefore, such evidence was admissible, and the trial court did not err in - 25 - permitting the testimony. State v. Broom (1988), 40 Ohio St.3d 277; State v. Flonnery (1972), 30 Ohio St.2d 124. Accordingly, defendant's third assignment of error is also overruled. Defendant's fourth and final assignment of error follows: IN CONVICTING A CONSUMER FOR EXERCISING PROTECTED RIGHTS UNDER THE LAWS OF THE STATE OF OHIO, AND WHEN THERE WAS NO EVIDENCE OF A CRIME, THE TRIAL COURT ERRED AND VIOLATED APPELLANT'S DUE PROCESS RIGHTS UNDER THE UNITED STATES CONSTITUTION. This assignment of error also lacks merit. As can be determined from this court's disposition of defendant's first and second assignments of error, defendant's argument that "there was no evidence of a crime" is erroneous. In the case sub judice, the state produced sufficient evidence of defendant's violation of R.C. 2913.02, theft; similarly, the jury's verdict of guilty was not against the manifest weight of the evidence. City of Cleveland v. Ueberschaar, supra. Contrary to defendant's assertion in the case sub judice, there was, however, no evidence that defendant exercised any "protected rights under the laws of the State of Ohio." Defendant never filed any complaint regarding All Kar's repairs to her truck; rather, she "paid" for All Kar's services with a check which she knew she had insufficient funds in her account to cover. All Kar made repeated attempts to contact her; however, defendant did not respond for over three months. Moreover, it was another three months and was subsequent to police involvement - 26 - on the case before defendant made any effort to pay for All Kar's services. Defendant neither raised any objection to All Kar's services nor did she file any consumer complaints at any time during this period. Cf., Cleveland v. Pritko (1991), 61 Ohio Misc.2d 268. This court can, therefore, see no "due process rights" guaranteed to defendant "under the United States Constitution" that have been violated by the trial court in the case sub judice. Village of North Randall v. Spencer (Oct. 11, 1979), Cuyahoga App. Nos. 39431, 39432, 39433, unreported. If defendant believes she was wronged under the consumer sales practices act, she must prove her cause of action by a preponderance of the evidence in a civil action. It is a separate and distinct cause of action with its own remedies and penalties under the applicable statutes. An alleged cause of action in a civil case is no defense to a criminal violation. Accordingly, defendant's final assignment of error is also overruled. Defendant's conviction is affirmed. - 27 - 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. DYKE, P.J., and FRANCIS E. SWEENEY, 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .