COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 73569 and 73570 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION BRADLEY BEAVERS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 29, 1998 CHARACTER OF PROCEEDING: Criminal appeals from Common Pleas Court Case Nos. CR-348290 and CR-350167 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor FERNANDO MACK Assistant Prosecuting Attorney The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: PATRICIA J. SMITH 4403 St. Clair Avenue Cleveland, Ohio 44103 -2- JUDGE TERRENCE O'DONNELL: Bradley Beavers appeals from common pleas court jury verdicts entered in two matters which had been consolidated for trial. In the first, case no. 348290, the jury found him guilty of two counts of passing bad checks and one count of theft in connection with his purchase of five automobiles from Ganley Nissan, Inc., located on Chagrin Blvd. in Shaker Heights, Ohio; in the second, case no. 350167, the jury found him guilty of three counts of grand theft, motor vehicle, in connection with his purchase of three vehicles from Ganley Pontiac Honda, Inc., located on Lorain Rd. in North Olmsted, Ohio. On these appeals, Beavers alleges that his convictions for passing bad checks are not supported by sufficient evidence, that the court erred in denying his request to use notes during his testimony, and that his sentences for passing bad checks are excessive. After a thorough review of these claims, we conclude they are not well taken and affirm the judgments of the trial court. The record here reveals that Beavers had been the sole proprietor of a used car dealership known as All Star Auto Sales, located at 2850 W. 25th Street in Cleveland. In case no. 348290, the record reveals that on August 15, 1996, Beavers agreed to purchase a total of five vehicles from Ganley Nissan -- four, a 1989 Chevrolet Beretta, a 1989 Mercury Tracer, a 1987 Honda Accord, and a 1989 Honda Civic, for $5,500, and one, a 1990 Honda Accord for $7,500. He took immediate possession of them and promised payment when the dealership transferred the titles. Thereafter, on -3- September 27, 1996, when Beavers picked up the titles for the five automobiles, he issued two checks to Ganley Nissan, one in the amount of $5,500 for the 1989 Beretta, the 1989 Tracer, the 1989 Civic, and the 1987 Accord, and the other for $7,500 as payment for the 1990 Accord. The bank subsequently returned those checks for insufficient funds and notified Beavers in his October 31, 1996 bank statement. Thereafter, for several months, employees of Ganley Nissan attempted unsuccessfully to contact Beavers about the deficiency. On November 18, 1996, Ganley Nissan's controller, Donald R. Hunter, sent a certified letter to Beavers notifying him that the checks had been returned for insufficient funds and seeking payment from him for the dishonored checks. Thereafter, around the end of 1996, Ganley Nissan's wholesale manager, Peter Csanad, inadvertently met Beavers at a car auction in Northfield, Ohio, and, using his cellular telephone, arranged for Beavers to speak to the general manager of the dealership concerning the overdrafts. Beavers agreed to pay Ganley Nissan $3,000 within a week; however, he failed to pay or return the cars and, as a result, Csanad filed a complaint with Detective Steven Hammett of the Shaker Heights Police Department. On January 3, 1997, Detective Hammett contacted Beavers who admitted that he wrote the checks and stated that he had sold the five automobiles to pay personal bills. Subsequently, the grand jury indicted him on two counts of passing bad checks and one count of theft in this case. -4- In case no. 350167, the record reflects that on August 1, 1996, Beavers agreed to purchase a 1985 GMC Jimmy, a 1989 Chrysler LeBaron, and a 1984 Cadillac DeVille from Ganley Pontiac in North Olmsted, Ohio for $2,500 and, thereafter, took possession of those vehicles but failed to ever pay for them. Ganley employees tried unsuccessfully to contact Beavers, and eventually filed a complaint with the North Olmsted Police Department, and Detective James Calvitti questioned Beavers about the vehicles he obtained from Ganley Pontiac while he was in jail on charges in case no. 348290. Beavers admitted taking the cars without paying for them and selling the GMC and the Cadillac, and told Calvitti to contact Bridge Auto Sales to locate the Chrysler. The Cleveland police subsequently found that vehicle parked in an empty lot used by Bridge Auto to store automobiles and, as a result, the grand jury indicted Beavers on three counts of grand theft, motor vehicle, in that case. The court then consolidated both cases for trial before a jury which found him guilty on all six counts, and the court sentenced him to serve consecutive terms of eight months incarceration on each count. Beavers now appeals raising three assignments of error for our review; the first states: I. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN A CONVICTION OF PASSING BAD CHECKS PURSUANT TO R.C. S2913.11. -5- Beavers contends his two convictions for passing bad checks are not supported by sufficient evidence, arguing that he did not know his checks would be dishonored, that he did not intend to defraud Ganley Nissan, and that unforeseeable events occurred after he wrote the checks which prevented him from conducting business and paying for the five automobiles. The state urges his convictions for passing bad checks are supported by sufficient evidence, arguing that he failed to rebut a statutory presumption that he intended to pass bad checks or, in the alternative, that he wrote the checks knowing he did not have sufficient funds in his bank account and, thereafter, refused to pay for the automobiles. The issue then presented for our review concerns whether Beavers' convictions for passing bad checks are supported by sufficient evidence. In State v. Martin (1983), 20 Ohio App.3d 172, the court noted at 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. Jackson v. Virginia (1979), 443 U.S. 307, 319 * * *. This test has also been cited in State v. Taylor (1997), 78 Ohio St.3d 15, where the court stated at 18: -6- * * * [t]he relevant inquiry is whether, after reviewing 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 * * *. Thus, the sufficiency test raises a question of law for the court to decide regarding whether the state has put forth evidence required to prove each of the essential elements of the offense beyond a reasonable doubt, prior to the time the jury may consider the case. In applying this test, the court should consider the evidence and all reasonable inferences drawn therefrom in a light most favorable to the state. In conducting this review, we note the court may not weigh the evidence to resolve the sufficiency question. Here, the state assumed the burden of proving beyond a reasonable doubt the essential elements of passing bad checks contained in R.C. 2913.11 which states in relevant part: (A) No person, with purpose to defraud, shall issue or transfer * * * a check * * * knowing that it will be dishonored. (B) For purposes of this section, a person who issues or transfers a check * * * is presumed to know that it will be dishonored if either of the following occurs: (1) * * *; (2) The check * * * was properly refused payment for insufficient funds upon presentment within thirty days after issue or the stated date * * * and the liability of the drawer * * * is not discharged by payment or satisfaction within ten days after receiving notice of dishonor. * * * -7- R.C. 2913.01(B) defines defraud as: to knowingly obtain, by deception, some benefit for oneself or another, or to knowingly cause, by deception, some detriment to another. Here, the record reveals that the state presented evidence that on September 27, 1996, Beavers wrote two checks to Ganley Nissan, one for $5,500 and another for $7,500, and that on that date, his checking account did not contain sufficient funds to pay those checks; that he received actual notice they had been dishonored from the bank in his October, 1996 bank statement; and that a Ganley representative advised him of the deficiency, but he failed to make payment on the checks or return the vehicles. Viewing this evidence and the inferences reasonably drawn therefrom most favorably to the prosecution, the court correctly concluded the state presented evidence to prove that Beavers issued the checks to obtain the vehicles from Ganley knowing that they would be dishonored because his account contained insufficient funds to satisfy the obligations, and that Beavers learned the bank had properly refused payment. Accordingly, we overrule this assignment of error. Beavers' second assignment of error states: II. THE TRIAL COURT ERRED BY NOT PERMITTING THE APPELLANT TO REVIEW HIS OWN PERSONAL NOTES BEFORE OR DURING HIS TESTIMONY. Beavers contends the court erred in denying his request to use notes during his direct examination. He now claims this denied him -8- an opportunity to refresh his recollection but he did not raise that issue with the trial judge. The state urges the court did not err in denying his request, arguing that Beavers did not make the request to refresh his memory but, rather, sought to testify directly from those notes. The issue then presented for our review concerns whether the trial court erred in denying Beavers' request to use notes at trial during his direct examination. The transcript reveals that on the September 18, 1997 Thursday morning session of court, following a recess where Beavers had been testifying on direct examination, prior to continuation of his examination, the following colloquy occurred: MR. BEAVERS: Your Honor, could I use notes that I have taken? THE COURT: No, you may not. No objection, argument or comment followed, and Beavers completed his testimony. Beavers now claims the court denied him an opportunity to refresh his recollection during his testimony. However, the transcript reveals at pp. 338-339 that the court permitted him later during his direct examination to refer to some personal notes made regarding his financial obligations and income. Evid.R. 612 permits a witness to use a writing to refresh his or her recollection before testifying. In State v. Stearns (1982), 7 Ohio App.3d 11, the court stated in relevant part at 16: Generally the recollection of a witness may be refreshed by directing his attention to a prior statement, so that the witness may correct testimony or explain an apparent inconsistency. * * *. The extent to which a -9- party may refresh the recollection of his own witness is ordinarily a matter for the trial court's discretion. * * *. Further, in Dayton v. Combs (1993), 94 Ohio App.3d 291, the court stated in relevant part at 297-298: The practice of refreshing a witness's recollection by means of a writing is prescribed by Evid.R. 612 * * *. Prior to employing a writing to refresh the recollection of a witness, it must be established that the witness lacks a present recollection of the information or events described in the writing. * * *. Once the trial court is satisfied that the witness has no present recollection of the relevant information or events, the witness is permitted to read the writing silently or have relevant portions thereof read to him. * * *. Here, the record reflects that Beavers neither requested to refresh his recollection, nor established that he lacked a present recollection of the information contained in the notes. Lacking this proper foundation, we cannot conclude the court abused its discretion, and the record reveals the court permitted reference to notes during his testimony. Thus, we overrule this assignment of error. Beavers' third assignment of error states: III. THE RECORD DOES NOT SUPPORT A SENTENCE OF FOUR YEARS AS THE EVIDENCE DOES NOT ESTABLISH THAT THIS OFFENSE IS OF A MORE SERIOUS NATURE THAN CONDUCT NORMALLY CONSTITUTING THE OFFENSE OF PASSING BAD CHECKS. Beavers contends the trial court erred in sentencing him to a term of four years for two counts of passing bad checks, urging that the statutory factors listed in R.C. 2929.12 fail to establish -10- that this case is more serious than others involving the crime of passing bad checks. The state contends the court properly sentenced Beavers to consecutive terms of eight months on each of the counts of passing bad checks; the aggregate four-year sentence is comprised of sentences for his other convictions on four counts of grand theft, motor vehicle, in both cases. Here, then, we must determine whether the trial court abused its discretion in imposing sentence on Beavers. Initially, we recognize that in State v. Perkins (1994), 93 Ohio App.3d 672, this court stated in relevant part at 684: A trial court is vested with broad discretion in imposing a felony sentence, and this court will not reverse the sentence unless it is statutorily incorrect or the trial court abused its discretion by failing to consider the statutory sentencing factors. (Citations omitted). The principle argument advanced here concerns application of R.C. 2929.12(B) which states in relevant part: (B) The sentencing court shall consider all of the following that apply regarding the offender, the offense, or the victim, and any other relevant factors, as indicating that the offender's conduct is more serious than conduct normally constituting the offense: (Emphasis added). (1) * * *. (2) The victim of the offense suffered serious physical, psychological, or economic harm as a result of the offense. * * * -11- In this regard, the court found in accordance with R.C. 2929.12(B)(2) that Beavers caused economic harm to Ganley. Further, in imposing sentence, R.C. 2929.12(D) requires a court to consider whether the offender is likely to commit future crimes and in that assessment, the court must consider whether the offender has a history of criminal convictions and whether the offender shows genuine remorse for the offense. In this regard, the court noted on the record at the time of sentencing Beavers' prior convictions for carrying a concealed weapon, drug abuse, and theft, and also observed that he showed no remorse for his crimes. After considering the penalty for the crime of passing bad checks ranges from six to eighteen months, the record establishes the trial court did not abuse its discretion in imposing consecutive sentences of eight months for the two counts of passing bad checks. Accordingly, this 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 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. PATRICIA A. BLACKMON, A.J., JOSEPH J. NAHRA, J., CONCUR JUDGE TERRENCE O'DONNELL 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 .