COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69152 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION JAMES A. MISENER : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : APRIL 25, 1996 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 310427 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones, Esq. James D. Shelby, Esq. Cuyahoga County Prosecutor 55 Public Square, Suite 1260 By: David Hildebrandt, Esq. Cleveland, Ohio 44113 Assistant Prosecuting Atty. The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- HARPER, J.: Defendant-appellant, James Misener, also known as Jim Taylor dba Vending Market Systems, Inc. ("Mr. Misener" or "Jim Taylor," individually, and "Vending Market Systems, Inc., collectively), was charged with grand theft in violation of R.C. 2913.02(A)(1) and (3). Mr. Misener timely appeals from his conviction for grand theft and submits that the trial court erred when it denied his Crim.R. 29 motion for acquittal because the evidence is legally insufficient to support his conviction. He also contends that the verdict of the trial court is against the manifest weight of the evidence. A careful review of the record compels affirmance. I. The apposite facts are adduced from the record. Mr. Misener was indicted on nine counts of grand theft in violation of R.C. 2913.02(A)(1) and (3). Appellee, the State of Ohio ("the state"), dismissed four counts, Mr. Misener was charged with theft under R.C. 2913.02(A)(2), beyond the scope of the expressed and implied consent, and in the alternative, R.C. 2913.02(A)(3), on the remaining five counts. The following complaining witnesses were the five parties on the five counts ("the victims"), and testified for the state: Carol Ann Clover, Frank Gort, John Palatine, Jeffrey Baur, and Robert Konneman. In addition, Terry Bergeron ("Ms. Bergeron"), a former employee of Vending Market Systems, Inc., and Sergeant Don Patchatck took the stand as witnesses for the state. -3- The record demonstrates that the victims became involved with Vending Market Systems, Inc., located in North Olmsted, Ohio, in an identical manner. As a result of an advertisement placed by Vending Market Systems, Inc. in local Chicago publications, the victims, interested in the advertised business opportunities, responded to an 800 telephone number listed in the advertisement. Their calls were returned by Charles Stapleton ("Mr. Stapleton"), a salesman for Vending Market Systems, Inc. Mr. Stapleton utilized the same procedure for meeting with the victims. He arranged to meet with the victims in a local hotel room. At the initial meeting, Mr. Stapleton informed the victims that Vending Market Systems, Inc. was a distributor of vending machines. The victims were told about the potential entrepreneu- rial opportunities with Vending Market Systems, Inc. and were provided with promotional materials. A follow-up meeting was scheduled with Mr. Stapleton in a hotel room. The victims signed a purchase order ("the purchase order") to order a vending machine. A deposit of two thousand five hundred ninety five dollars ($2,595) secured the purchase of the vending machine. The balance was to be paid upon acceptance of the contract by Vending Market Systems, Inc. The purchase order, along with the down-payment, was delivered to the office of Vending Market Systems, Inc. In turn, Vending Market Systems, Inc. sent a letter to the victims acknowledging the deposit ("the acknowledgment letter") and acceptance of the purchase order from Vending Market Systems, Inc. The acknowledge- -4- ment letter, which was signed by "James Taylor", informed the victims that full payment of eight thousand dollars ($8,000) was required before delivery of the vending machines. After sending the balance of $8,000, the customer received a second letter which was also signed by "James Taylor". The second letter provided the victims with an anticipated shipping date. The victims were alarmed due to the discrepancies found between the two letters with regard to information to the anticipated shipping date and the location site for the vending machines. On several occasions, they attempted to contact Mr. Stapleton and/or "James Taylor", to discuss the discrepancies. However, all of their phone calls were ignored and never returned. The victims intensified their efforts to contact "James Taylor" after they had not received their vending machines on the anticipated shipping date. During this time, the victims had not received any corresponence from Vending Market Systems, Inc. After numerous attempts were made to contact Mr. Stapleton and/or "James Taylor", the victims eventually turned to the authorities for assistance, because they had neither received the vending machines nor a refund of their money. The business records of all transactions at the Vending Market Systems, Inc. office were handled by Ms. Bergeron. The apology letters that were mailed to customers attributing the non-delivery of vending machines to the victims were not true, according to Ms. Bergeron. Funds that came in from the victims for new orders were deposited and were not immediately used to fill the orders of the -5- victims, but rather used to pay bills, expenses or fill other customers' orders. In March 1993, Vending Market Systems, Inc. was investigated by the North Olmsted Police Department as a result of a customer complaint about non-delivery. The customer received his machine after Lieutenant Viola, from the North Olmsted Police Department, met with the partners from Vending Market Systems, Inc. A second investigation was initiated by the North Olmsted Police Department after one of the victims called Lieutenant Viola. Shortly thereafter, the office of the Ohio Attorney General sent a letter informing them that nineteen complaints had been filed against Vending Market Systems, Inc. The letter requested assistance in investigating Vending Market Systems, Inc. As a result of the investigation, Mr. Misener was confirmed as the owner of Vending Market Systems, Inc. and it was disclosed that nine people had not received their vending machines nor had their orders been placed. The Ohio Bureau of Investigation confirmed that documents signed by "James" and/or "Jim Taylor" had in actuality been written by Mr. Misener. After the state rested its case, Mr. Misener moved for a Crim.R. 29 motion for acquittal, asserting that the state had failed to present sufficient evidence demonstrating he had no intention of filling the orders. The trial court denied Mr. Misener's motion. Subsequently, Mr. Misener took the stand in his own defense. He stated that he began working for Vending Market Systems, Inc. in -6- 1988 as a salesman. In 1990, he became the owner. In 1992, he was aware that the company was having financial difficulties due to cash flow problems. Mr. Misener started using the name "Jim" and/or "James Taylor" when he was a salesman and sales manager. The name "James Taylor" served as a means of identifying incoming calls to the office. In October of 1993, he was aware that there were five outstanding orders that had not been shipped. The "apology letter" was first used in 1991 to send to customers when the manufacture had a problem with component parts of the vending machines. Subsequently, when Mr. Misener found himself late again, he used the same letter, although there were no problems with component parts. The letter was a "lie" to "buy" time and not to avoid shipment. The victims were not called back because he was unable to provide them with an honest resolution of their problem. The money paid by the victims for their vending machines was placed into an account. The money became common money in the account, and was used to satisfy various company obligations. Mr. Misener and Ms. Bergeron opened an account under the name of "Vending Market Services." The new account was opened to develop a new business and to pay the expenses of Vending Market Services, Inc. All expenses of Vending Market Systems, Inc. was deposited into the "Vending Market Services" account. If checks made out to Vending Market Systems, Inc. did not have an "I-N-C" notation, it was deposited into a letter account and then loaned back to Vending Market Systems, Inc. The money -7- taken from some customers, including the victims, was deposited into an account and then equipment was purchased as often as possible. In 1993, only two orders were placed after the money was sent in for the specific orders. At the conclusion of Mr. Misener's testimony, his counsel renewed the Crim.R. 29 motion. The court again denied his request. Subsequently, the trial court found Mr. Misener guilty of five counts. He was sentenced on each count to eighteen months which were to be served concurrently, and fined one thousand dollars. The jail term and fine were suspended, and Mr. Misener was placed on probation for five years with a restitution order. Mr. Misener timely appeals and raises the following assignments of error for this court to review: I. THE TRIAL COURT ERRED IN NOT ACQUITTING APPELLANTS AT THE CONCLUSION OF THE STATE'S CASE BECAUSE THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT A VERDICT OF GUILTY FOR THE OFFENSES CHARGED IN THE INDICTMENT. II. THE TRIAL COURT ERRED IN NOT ACQUITTING APPELLANTS AT THE CONCLUSION OF THE CASE BECAUSE THE FINDING OF GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. II. In the first assignment of error, Mr. Misener argues his conviction for grand theft is not supported by sufficient evidence. Mr. Misener submits the trial court erred in failing to grant his motion for judgment of acquittal. Crim.R. 29 provides: The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order -8- the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case. The standard of review with regard to the sufficiency of evidence is set forth in State v. Bridgeman (1978), 55 Ohio St. 261, syllabus one: Pursuant to Criminal Rule 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. See, also, State v. Apanovitch (1987), 33 Ohio St.3d 19, 23; State v. Davis (1988), 49 Ohio App.3d 109. Bridgeman must be interpreted in light of the sufficiency test as outlined in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, in which the Ohio Supreme Court held: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. 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 beyond a reasonable doubt. (Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 l.Ed.2d 560, followed.) R.C. 2913.02 provides: (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; -9- (2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent; (3) By deception; (4) By threat. *** Reviewing the evidence in a light most favorable to the prosecution, this court concludes that Mr. Misener's convictions for grand theft are supported by sufficient evidence. It is clear from the evidence presented that Mr. Misener did not place orders for the victims' vending machines after they sent the balance of the money as requested. Instead of placing the orders after receiving the money, the money was actually deposited into a special account. The money was then used to pay for company expenses, and for ordering vending machines for other customers. The evidence demonstrates that the victims never consented by either express or implied means, to Mr. Misener his usage of their money for purposes other than the purchase of vending machines. Mr. Misener acknowledged that he knew the vending machines could not be delivered on a timely basis and that he nonetheless continued to accept purchase orders. Lastly, we find Mr. Misener's reliance on State v. Bakies (1991), 71 Ohio App.3d 810, to be misplaced. Mr. Misener cites Bakies to support his contention that a conviction must be reversed when the evidence offered by the state in support of the charged offense is slight and has only probative value. Id. In Bakies, a complainant witness loaned the defendant $10,000 plus an additional $5,000 on the basis of a representation he made -10- to her. The complaining witnesses charged that defendant failed to repay her although he signed a promissory note for the amount of the loan. The trial court convicted defendant. This court reversed the defendant's conviction on the ground that the state failed to present sufficient evidence demonstrating that, at the time the loan was made, the defendant did not have a good faith intent to repay the loan to the complaining witness. In the case at bar, we find the facts to be distinguishable from Bakies. The state presented sufficient and probative evidence that the victims did not consent to Mr. Misener's usage of their money for purposes other than for the purchase of the vending machines. Moreover, the record shows that Mr. Misener would fill orders according to how much money was available at the time, and when he deposited the money into the account, it was used for several purposes. Given the foregoing, the trial court did not err in denying Mr. Misener's motions for acquittal. Accordingly, Mr. Misener's assignment of error is overruled. In the second assignment of error, Mr. Misener charges that the trial court should have found him not guilty because the verdicts are against the manifest weight of the evidence. In State v. Martin (1983), 20 Ohio App.3d 172, this court aptly set forth the test to be utilized by an appellate court when reviewing a claim that a conviction is against the manifest weight of the evidence. The Martin court stated as follows: -11- 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. *** This same standard applies when there is a bench trial. State v. Harris (Sept. 29, 1994), Cuyahoga App. No. 65681, unreported. We conclude that the trial court's decision that was not a miscarriage of justice. Here, the evidence was uncontested that the victims' money was deposited in a general account and used for an array of purposes. The evidence demonstrated that the victims' money was used to order vending machines for other customers. The trial court found the testimony of the victims and witnesses to be credible. Thus, after reviewing the entire record, there was sufficient evidence presented to convince the trial court that Mr. Misener was guilty beyond a reasonable doubt. Therefore, Mr. Misener's assignment of error is overruled. Judgment affirmed. -12- 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 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. DAVID T. MATIA, J., AND ANN DYKE, J. CONCUR. PRESIDING JUDGE SARA J. HARPER 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 .