COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72275 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION JEFFREY C. KEITH : : Defendant-appellant : : : DATE OF ANNOUNCEMENT : OCTOBER 22, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Criminal appeal from : Court of Common Pleas : Case No. CR-333972 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. Cuyahoga County Prosecutor STEVE W. CANFIL, ESQ. Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 JOHN J. GILL, ESQ. Suite 205 1220 West Sixth Street Cleveland, OH 44113 -2- CHARLES D. ABOOD, J.: This is an appeal from a judgment of the Cuyahoga County Court of Common Pleas which, following a jury verdict, found appellant Jeffrey Keith guilty of three counts of theft, one count of Medicaid fraud, one count of securing writings by deception, one count of forgery and one count of uttering a forged document. In support of his appeal, appellant sets forth the following assignments of error: ASSIGNMENT OF ERROR NO. I THE JURY'S VERDICT OF GUILTY ON ALL COUNTS WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE ASSIGNMENT OF ERROR NO. II THE TRIAL COURT ERRED IN NOT GRANTING APPELLANT'S MOTION(S) FOR ACQUITTAL ON EACH COUNT OF THE INDICTMENT PURSUANT TO CRIMINAL RULE 29 ON THE GROUNDS THAT THE EVIDENCE PRESENTED WAS INSUFFICIENT AS A MATTER OF LAW TO CONVICT APPELLANT AS CHARGED ASSIGNMENT OF ERROR NO. III IT WAS ERROR FOR THE TRIAL COURT TO ALLOW THE STATE'S FORENSIC EXPERT WITNESS' TESTIMONY AND HIS WRITTEN FINDINGS TO BE CONSIDERED BY THE JURY ASSIGNMENT OF ERROR NO. IV IT WAS ERROR FOR THE TRIAL COURT NOT TO CHARGE THE JURY WITH SECTION 1337.01 ET SEQ. OF THE REVISED CODE. The facts that are relevant to the issues raised on appeal were established by the testimony of nineteen witnesses over seven days of trial. In early 1991, Elizabeth Fuchs, then ninety-two years of age, contacted appellant, whom she knew from having been raised in her neighborhood, because she thought she wanted to write a new will. Nothing became of the will at the time, but on May 3, 1991, appellant went to Fuchs' house and asked her to accompany him -3- to his bank. While there, he presented her with a bunch of papers for her signature. Among those papers was a power of attorney that granted appellant the authority to sell and convey Fuchs' real and personal property, draw checks and make deposits on her bank accounts, sign all papers necessary for medical treatment and admission to an extended care nursing facility, and pay all expenses as appellant saw fit. When Fuchs questioned why she had to sign the papers, appellant never gave her a real answer and ultimately told her that if she signed the documents, he would give her a milkshake. In February 1992, Fuchs was hospitalized for ten days after she fell and broke her hip. Her personal physician, David Eberlien, M.D., testified that at the time of her admission to the hospital, Fuchs had full possession of her faculties. At the end of her hospital stay, Fuchs agreed to go to a nursing home on Eberlien's representation that she would stay there only until she could walk again and then she would return to her home. At the time, Eberlien met appellant and learned from him that Fuchs had entrusted the management of her finances and possessions to him. On February 24, 1992, appellant went to Fuchs' bank and withdrew the entire $31,156.17 that was in her savings account and caused the money to be deposited into an account in his name, claiming that it was payment for legal services he had rendered to Fuchs over the years. At about the same time appellant used his power of attorney to make arrangements to have Fuchs stay at a nursing home. -4- Frankie Hart, an eligibility specialist for the Department of Human Services, testified that applicants for Medicaid assistance must verify their need by meeting certain eligibility requirements. Chief among those requirements is that the applicant have no more than $1,500 in assets. To show the need for Medicaid assistance, the applicant must list any assets disposed of during the preceding two and one-half years. Appellant, using his power of attorney, filed Fuchs' Medicaid application. In that application, he failed to list the transfer of the $31,156.13 he claimed he took as attorney fees. Hart testified that that amount should have been listed in the Medicaid application. In March of 1992, appellant contracted with a friend, David Renick, to purchase Fuchs' house and its contents for a purchase price of $25,000. The state presented evidence from Betty Long, an appraiser who worked for a company that performed property valuations for Cuyahoga County, that current selling prices for comparable houses in Fuchs' neighborhood led her to conclude that appellant's price was far too low for the property. Long compared comparable properties in Fuchs' neighborhood and appraised Fuchs' house at $49,199. Appellant retained the services of a friend, attorney Judith Lehnowsky, to prepare a purchase agreement and deed for the property. Lehnowsky, who normally charged $50 to prepare a deed, admitted receiving $3,300 to prepare the purchase agreement and deed. She could not specifically recall why she charged so much, but speculated that she did so because she was involved in -5- preparing income tax returns for clients and did not have time to do other work. She thought if she set an exorbitant price, appellant would find another attorney to prepare the deed. The deed, notarized by appellant, bears Fuchs' signature and that of two witnesses: Edward Witt, a friend of appellant and Renick's boss, and Christine Dezo, who some witnesses thought was appellant's wife or girlfriend, but who appellant characterized as his daughter, despite admitting they were not really related. The witness portion of the deed states the year as 1992, but contains no specific date. Appellant's signature as notary is dated April 6, 1992. Renick testified that he was not present when Fuchs signed the deed. Witt said he had had no prior discussions with appellant about witnessing the deed before appellant came to his place of employment and, while Dezo and an elderly woman remained in the car, showed Witt the deed and asked him to sign it. Appellant told Witt that the signature on the deed was that of Elizabeth Fuchs who was the elderly woman in the car. Witt admitted he did not witness Fuchs' signature and never met her. When asked why he agreed to sign his name as a witness to Fuchs' signature when he admitted he did not actually see her sign the deed, Witt said he signed his name as a witness based on his friendship with appellant and his knowledge that appellant was a lawyer. Shortly after Renick took possession of Fuchs' house, Fuchs' long-time friend and neighbor, Dorothy Ruddy, saw men moving things into Fuchs' house. This surprised her because she knew Fuchs -6- intended to return to her house after her convalescence. Ruddy telephoned appellant and learned that he sold the house without putting it on the market. Appellant said the property sold quickly, so he did not tell anyone, including Fuchs, about the sale. When Ruddy asked appellant when he planned to tell Fuchs about the sale, he told her it was not up to him, that he would leave it up to a social worker at the nursing home. When Fuchs later learned appellant sold her house, she asked Ruddy if she could find a wedding ring and some photographs that had been in the house. These items were turned over to Fuchs. Fuchs also testified that she hid a total of $9,000 in the house $4,500 under the dining room furniture and $4,500 in a cookie box. Renick said he did not find any cash in the house. In late 1994, Fuchs spoke with Roberta Knoepp, the new director of social service at Fuchs' nursing home. Knoepp characterized Fuchs' condition as surprising for a woman her age, saying Fuchs was alert, oriented, and had excellent long and short- term memory. In her conversation with Fuchs, Knoepp learned Fuchs had some concerns about the power of attorney and that her house and possessions had been taken. Knoepp suggested that Fuchs revoke the power of attorney, but Fuchs refused to do so because she was frightened. After trying as many as thirty times to have Fuchs revoke the power of attorney, Knoepp finally succeeded. On September 21, 1995, appellant's attorney received Fuchs' certified letter informing appellant that his power of attorney had been revoked. Knoepp then contacted the Cuyahoga County Prosecutor's -7- office and told them appellant had taken Fuchs' house, money, and possessions. David Doughten, an attorney formerly hired to represent appellant in this matter, testified that shortly before trial, appellant had delivered to his attorneys photo copies of two letters which he claimed to be a ratification of the power of attorney and a ratification of the house purchase agreement. The documents were significant to appellant's defense because his attorneys were trying to find evidence that would verify the existence of appellant's power of attorney. The defense produced both letters to the state the day after receiving them. Almost immediately, Doughten became uneasy about both letters and contacted Phillip Bouffard, an expert in document examination, to assess their authenticity. As it happened, the state had previously retained Bouffard to examine the documents. Bouffard found the signatures on the documents were identical, a physical impossibility. Both signatures contained the exact same hyphenation appearing beneath the signature, yet the separate letters had been typed using different fonts, so the hyphenation should not have matched. Bouffard theorized that at least one of the signatures had been photocopied and transposed onto another document. Because he did not have original copies of either document, he could not rule out the possibility that both were forgeries. After receiving Bouffard's conclusions, defense counsel obtained their own analysis of the documents. The defense expert -8- found subtle differences from Bouffard's conclusions, but agreed with Bouffard's ultimate conclusion that Fuchs' signature had been forged on the documents. As a result of these findings, both Doughten and his co-counsel were permitted to withdraw from representing appellant on grounds that they would likely be called to give testimony at trial. Witt testified that appellant contacted him about one month before trial. Witt said he and appellant had totally different recollections of what transpired when Witt signed the deed. Appellant told Witt he recalled picking Witt up and driving him out to a nursing home where he witnessed Fuchs' signature. Witt said appellant's version was inaccurate and he would not testify to appellant's recollection of events. Appellant testified and told the jury that in addition to his law degree, he had a master's degree in social work. He said he began doing legal work for Fuchs in 1985 and often consulted with her about possible placement in a nursing home. In May 1991, after extensive discussion with Fuchs, he prepared a will and a power of attorney. Fuchs signed both documents at her bank, witnessed by the bank manager and a bank employee. Shortly after Fuchs' fall, but before her transfer to the nursing home, appellant consummated the sale of Fuchs' house and closed her savings account. He admitted taking all the proceeds for his personal benefit. Appellant claimed Fuchs owed him that sum for past legal work he performed for her, yet he could not substantiate his legal fees through billing records and admitted that some of that legal work -9- consisted of driving Fuchs on errands. For that work, he charged his standard fee of $150 per hour. Despite characterizing his work for Fuchs as legal work, appellant admitted he did not report any of those fees on his tax returns, nor did he list his occupation as attorney. Appellant admitted the documents purporting to be Fuchs' ratification of the power of attorney and the purchase agreement were fabrications. He further admitted lying under oath during a deposition in another legal proceeding against him. Appellant defended the sales price of Fuchs' home by describing its poor condition and the amount of work needed to make it habitable. He claimed he asked Renick to obtain two different appraisals on the house in order to justify the purchase price, but knew Renick did not obtain any appraisals other than that required by the bank writing Renick's mortgage. Appellant also defended the amount of money he paid attorney Lehnowsky for preparing the purchase agreement and deed, claiming her outstanding reputation justified her fee. At the conclusion of the trial, the jury found appellant guilty on all seven counts of the indictment. The court then entered judgment on the verdict and found appellant guilty of theft of the $31,156.17 from the bank account, theft of the money that Fuchs had left in the house, theft of the real property, Medicaid fraud, securing writings by deception, forgery as to the deed and uttering the forged deed. -10- Appellant's first and second assignments are interrelated in that they depend in part on the validity of the power of attorney signed by Fuchs. Appellant contends that the acts he performed were authorized by the power of attorney, that the power of attorney constitutes a complete defense to all the charged crimes and, therefore, the court should have granted his Crim.R. 29(A) motion for judgment of acquittal at the close of the state's case and that the jury verdict of guilt on all counts is against the manifest weight of the evidence. The state maintains that the power of attorney is not a defense to the charged offenses because appellant invalidly obtained the power of attorney and, even if that were not the case, appellant exceeded the scope of the power of attorney by breaching his fiduciary duty to Fuchs. The trial court's standard for granting a motion for a judgment of acquittal is set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, in which the syllabus states: 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. In considering a motion for judgment of acquittal, the reviewing court shall consider the evidence in a light most favorable to the appellee. Jackson v. Virginia (1979), 443 U.S. 307; State v. Fyffe (1990), 67 Ohio App.3d 608, 613. On review, this court may not reverse the judgment of the trial court as being against the manifest weight of the evidence if, after viewing the evidence in a light most favorable to the -11- state, any rational trier of fact could have found the essential elements of the offense of assault proven beyond a reasonable doubt. Statev. Jenks (1991), 61 Ohio St.3d 259. In making such a determination, it is not our role to weigh the evidence or judge the credibility of the witnesses. State v. Clay (1973), 34 Ohio St.2d 250. As to the power of attorney, there was clearly evidence presented to the jury that supported the state's position that appellant purposefully obtained Fuchs' signature on the power of attorney in order to deprive Fuchs of her money and property so that he could exert control over them. Although Fuchs' signature on the power of attorney is undisputed, the state presented evidence to show that Fuchs did not understand what she had signed and that appellant did not explain the "bunch of papers" to her. This court has reviewed all the evidence that was before the trial court and upon consideration thereof and the law finds that at the conclusion of the state's case reasonable minds could reach different conclusions as to whether a) on the three counts of theft appellant knowingly obtained control over Fuchs' property either without valid consent being given by her or in a manner that was beyond the scope of any express or implied consent that was given by her, R.C. 2913.02; b) on the count of obtaining writings by deception appellant caused Fuchs' to execute the power of attorney, the purchase agreement for her house and the deed to the house by deception, R.C. 2913.43(A); c) on the count of Medicaid fraud appellant knowingly made a false statement for use in obtaining -12- Medicaid benefits, R.C. 2913.40(B); and d) on the counts of forgery and uttering, appellant forged Fuchs' signature on the deed and thereafter uttered that forged signature, R.C. 2913.31. This court finds further that when considering all of the evidence that was before the trial court and the law, any rational trier of fact could have found the essential elements of all of the above offenses proven beyond a reasonable doubt. Accordingly, appellant's first and second assignments of error are found not well taken. In his third assignment of error, appellant argues that the court abused its discretion by permitting the state's forensic expert, Phillip Bouffard, to testify that signatures appearing on letters by Fuchs purporting to ratify the power of attorney and attorney fees were fabrications. On direct examination, Bouffard concluded that at least one of the signatures appearing on those documents had to be a forgery since both signatures were identical. On cross-examination, Bouffard conceded that observations in his report regarding the downward extender on the letter Z in Fuchs' first name were incorrect, and he withdrew the portion of this report that stated otherwise. Because of this concession, appellant maintains the court should have stricken all of Bouffard's testimony. Under Evid.R. 702, an expert may be qualified by knowledge, skill, experience, training, or education to give an opinion which will assist the jury to understand the evidence and determine a fact at issue. State v. Wogenstahl (1996), 75 Ohio St.3d 344, 362. -13- Handwriting analysis is a proper subject of expert testimony. See State v. Loza (1994), 71 Ohio St.3d 61, 76-77. As with most matters concerning expert testimony, decisions to admit or prohibit such testimony are committed to the sound discretion of the trial court. See State v. Williams (1996), 74 Ohio St.3d 569, 576. The court did not abuse its discretion by permitting the jury to consider Bouffard's testimony because the withdrawn portion of his report did not affect his ultimate conclusion that the signatures were forgeries. Bouffard's request to withdraw a portion of his report went to the weight of the evidence, not its admissibility. Lainhart v. Southern Ohio Fabricators, Inc. (1990), 61 Ohio App.3d 432, 435. In any event, appellant admitted both exhibits were totally fabricated documents, so his argument is harmless at worst. Accordingly, we find the third assignment of error is not well-taken. In his fourth assignment of error, appellant asserts that the court erred by refusing to instruct the jury that R.C. 1337.13, dealing with a durable power of attorney for health care, provided an absolute defense to all charges in the indictment. The court gave the following jury instruction on fiduciary duty: What is a power of attorney. A power of attorney maybe [sic] defined as a written authorizationto an agent to perform specified acts on behalf of his principal. It is an agency created by a formal instrument in writing and for most purposes is not required although certain acts must be authorized by such written power. Under a power of attorney or when a power of attorney is exercised you are instructed that a fiduciary relationship -14- exists between the principal, Mrs. Fuchs, and in this case and [sic] the agent under the power of attorney, Mr. Keith, in this case. The fiduciary relationship imposes a duty on the agent that the agent within the limits of the agency deal fairly and honestly with his principal and imposes the responsibility to disclose any conflicts between the principal's interest and the agent's interest, which might make the agent act in his own best interest at the expense or the detriment of the principal. Appellant's argument lacks merit for two reasons. First, as appellant concedes, R.C. 1337.13 did not come into effect until October 1991, after the date Fuchs signed the power of attorney. He cannot claim protection under a statute that did not exist at the time the power of attorney arose. Second, even if R.C. 1337.13 had been in effect, the court did not err by refusing to instruct the jury on the durable power of attorney since it had no application under the facts of the case. Requested jury instructions need only be given if they are correct statements of the law applicable to the facts in the case and reasonable minds might reach the conclusion sought by the instruction. Murphy v. Carrolton Mfg. Co. (1991), 61 Ohio St.3d 585, 591, quoting Markus & Palmer, Trial Handbook for Ohio Lawyers (3 Ed.1991) 860, Section 36:2. R.C. 1337.13 states: (A)(1) An attorney in fact under a durable power of attorney for health care shall make health care decisions for the principal only if the instrument substantially complies with section 1337.12 of the Revised Code and specifically authorizes the attorney in fact to make health care decisions for the principal, and only if the attending physician of the principal determines that he has lost -15- the capacity to make informed health care decisions for himself. Except as otherwise provided in divisions (B) to (F) of this section and subject to any specific limitations in the instrument, the attorney in fact may make health care decisions for the principal to the same extent as the principal could make those decisions for himself if he had the capacity to do so. Except as otherwise provided in divisions (B) to (F) of this section, in exercising his authority, the attorney in fact shall act consistently with the desires of the principal or, if the desires of the principal are unknown, shall act in the best interest of the principal. (emphasis added). R.C. 1337.13(A) has no application to this case since it relates to health care decisions only and applies only in the event the attending physician for the principal determines that he has lost the capacity to make informed health care decisions for himself. The evidence showed Fuchs' attending physician found her fully competent at the time appellant committed the acts constituting the offenses in this case. As a matter of law, R.C. 1337.13 could not apply. The court properly instructed the jury in general terms on fiduciary duty. Accordingly, this court finds that the court did not err by refusing to instruct the jury on R.C. 1337.13 and appellant's fourth assignment of error is without merit. Upon consideration whereof, this court finds that substantial justice has been done the party complaining, and the judgment of the Cuyahoga County Court of Common Pleas is affirmed. -16- 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 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. WILLIAM H. VICTOR, P.J. EDWARD J. MAHONEY, J., CONCUR. CHARLES D. ABOOD JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .