[Cite as State v. Proby,
2015-Ohio-3364.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 14AP-1067
v. : (C.P.C. No. 14CR-760)
Kenneth C. Proby, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on August 20, 2015
Ron O'Brien, Prosecuting Attorney, and Michael P. Walton,
for appellee.
Mark G. Kafantaris, for appellant.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Defendant-appellant, Kenneth C. Proby, appeals from a judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas pursuant
to jury verdicts finding him guilty of theft, tampering with records, and forgery. For the
following reasons, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On February 13, 2014, appellant was indicted on one count of theft, in
violation of R.C. 2913.02, a fifth-degree felony, two counts of tampering with records, in
violation of R.C. 2913.42, third-degree felonies, and two counts of forgery, in violation of
R.C. 2913.31, fifth-degree felonies. Appellant entered a not guilty plea to the charges and
requested a jury trial, at which the following evidence was presented.
No. 14AP-1067 2
{¶ 3} Appellant and Le'Kita Chambers were married in 2002. At the time of the
marriage, Le'Kita legally assumed appellant's surname and was thereafter known as
Le'Kita Proby. In December 2003, the couple purchased a home located at 3754 Ducat
Street in Columbus. The purchase was secured by a note and mortgage to Wells Fargo
Home Mortgage, Inc. ("Wells Fargo"). It is undisputed that appellant and Le'Kita signed
both the note and the mortgage.
{¶ 4} In October 2006, the marriage between appellant and Le'Kita was
terminated pursuant to a decree of dissolution. The separation agreement, incorporated
into the decree of dissolution, allowed appellant to retain possession of the home on the
condition that he continued to make payments on the note, listed the home for sale at fair
market value, and split any equity upon sale of the home with Le'Kita. The decree of
dissolution also included a provision legally changing Le'Kita's surname to Brown.
{¶ 5} Appellant thereafter fell several months behind on the mortgage payments.
Working with Wells Fargo, appellant was ultimately offered a "partial claims"
modification whereby the United States Department of Housing and Urban Development
("HUD") would disburse $4,776.47 to cover the arrearage in exchange for a promissory
note and subordinate mortgage lien on the property. HUD's disbursement of the funds
was contingent on both appellant and Le'Kita signing a Special Forbearance Agreement
with Wells Fargo obligating them to make three on-time payments on the note
demonstrating their financial fitness to warrant the modification. The Special
Forbearance Agreement was executed on September 15, 2007. After three on-time
payments were made, HUD disbursed the funds to Wells Fargo to cure the arrearage. A
Partial Claims Promissory Note and subordinate mortgage lien in favor of HUD were
executed on December 17, 2007. The subordinate mortgage includes a signature
acknowledgement by a commissioned notary public in the state of Ohio.
{¶ 6} Le'Kita testified that she first learned of the mortgage arrearage as part of a
random credit check made by her employer in September 2007. She thereafter initiated
contempt proceedings in domestic relations court based on appellant's failure to comply
with the terms of the separation agreement. Although appellant produced documentation
in the domestic relations court demonstrating that the mortgage was no longer in arrears,
Le'Kita only later learned that this documentation consisted of the loan modification
No. 14AP-1067 3
documents from Wells Fargo and HUD. In a January 2008 order, the domestic relations
court found appellant in contempt and ordered him to, among other things, bring the first
mortgage current, continue to pay the first mortgage, and actively market the property.
The order further stated that "[a]t closing, petitioner-wife to receive from pet[itioner]-
Husband[']s share of net proceeds $5000.00 for additional debt against property based
upon husband[']s previous failure to pay." (State's Exhibit L, 3.)
{¶ 7} According to Le'Kita, she did not sign the Special Forbearance Agreement or
the Partial Claims Promissory Note and subordinate mortgage and did not authorize
appellant or anyone else to sign those documents on her behalf. She specifically noted
that both documents were signed "Le'Kita T. Proby" and that she would not have signed
her name in this manner because her legal name at the time was Le'Kita T. Brown. She
further noted that the subordinate mortgage incorrectly stated that she and appellant
were married. She acknowledged that the subordinate mortgage included a notary's
certification; however, she denied signing the document.
{¶ 8} Appellant testified that he agreed to assume the mortgage debt and
accordingly signed the separation agreement because he did not want to encumber
Le'Kita with marital debt because she had financial problems. After the dissolution was
finalized, he unsuccessfully attempted to sell the house and fell behind on the mortgage
payments. He and Le'Kita jointly agreed to proceed with the loan modification process in
order to facilitate the sale of the house and preclude it from going into foreclosure.
According to appellant, Le'Kita located a notary, and she and appellant signed the loan
modification documents in the notary's presence. However, because the documents listed
Le'Kita's surname as Proby and she signed the documents using the surname Brown, the
notary refused to certify her signature. According to appellant, Wells Fargo had provided
him two sets of the loan modification documents. After appellant retrieved the second set
of documents from his home, he and Le'Kita returned to the notary's office. Le'Kita
signed the second set of documents in the notary's presence, this time using the surname
Proby.
{¶ 9} Appellant ultimately failed to make the payments on the loan modification
and the mortgage again went into arrears. Because no quitclaim deed was ever recorded,
No. 14AP-1067 4
appellant and Le'Kita remained fee simple owners of the home until it went into
foreclosure.
{¶ 10} In 2012, Le'Kita informed the prosecutor's office that appellant had forged
her signature on the loan modification documents. The prosecutor reported the
allegations to HUD officials, who thereafter obtained handwriting exemplars from
appellant, Le'Kita, and the notary.
{¶ 11} William T. Bennett, a retired handwriting analyst employed by the
Columbus Division of Police for approximately 39 years, testified on direct examination in
the state's case that he compared the handwriting exemplars obtained from appellant and
Le'Kita to the signatures on the 2003 loan documents and the 2007 loan modification
documents. On May 7, 2013, Bennett issued two written reports in which he opined that
(1) Le'Kita signed her name on the 2003 loan documents, (2) Le'Kita did not sign her
name on the 2007 loan modification documents, (3) appellant signed his own name on
the 2007 loan modification documents, (4) it was "highly probable" that appellant signed
Le'Kita's name on the 2007 loan modification documents, (5) it was "very likely" that
appellant signed the names of the two witnesses listed on the 2007 loan modification
documents, and (6) the notary signed her own name on the 2007 subordinate mortgage.
(State's Exhibit N.) When asked to explain the terms of art used in describing the
opinions set forth in his written report, Bennett averred, "Well, there's different levels.
Positive is about as good as you get. After that, highly probable, then you've got probable
and then … very likely, likely." (Tr. Vol. I, 218.)
{¶ 12} Bennett went on to explain that because appellant's handwriting exemplar
did not include the cursive form of Le'Kita's first name, he could not opine as to whether
appellant signed Le'Kita's first name on the loan modification documents; however, he
opined that appellant signed Le'Kita's middle initial, "T.," and her former last name,
"Proby." (Tr. Vol. I, 227.)
{¶ 13} When asked on cross-examination whether the opinion in his report that
Le'Kita did not sign the loan modification documents meant that he was "positive" she did
not do so, Bennett responded "Yes." (Tr. Vol. I, 256.) When questioned whether the
opinion in his report that it was "highly probable" that appellant signed Le'Kita's name on
No. 14AP-1067 5
the loan modification documents referred to her full name or to only the "T. Proby"
portion of her name, Bennett responded:
Let me put it this way. I explained to the prosecutor earlier
before we came in here today that my opinion has changed a
little bit since then. … [B]efore I said highly probable
because I wasn't sure about the first name. But all the time I
spent putting this together for trial and everything, of course,
I have to go back over everything and basically do the
examination again to get it fresh in my mind. And I changed
my opinion from highly probable on here to basically I don't
know for sure on the first name; but the middle initial and last
name, yes, he did do.
(Tr. Vol. I, 259.)
{¶ 14} Bennett acknowledged that handwriting analysis is not "an exact science";
rather, it is "opinionated." (Tr. Vol. I, 260.) He also acknowledged that determining
whether a signature has been forged is easier than determining who forged the signature;
accordingly, he was able to opine that he was "positive" Le'Kita did not sign her name on
the loan modification documents. (Tr. Vol. I, 260.) However, when asked if he was less
confident about who signed Le'Kita's name on those documents, he responded, "I don't
have any problem with my confidence on this." (Tr. Vol. I, 260.) Expounding on his
response, Bennett stated that his "highly probable" opinion in the report "dealt more with
that first name. When I do away with the first name, just go with the last name, I don't
have a problem with it." (Tr. Vol. I, 260-61.)
{¶ 15} On redirect examination, Bennett explained that although he could not
identify appellant as the person who signed Le'Kita's first name, he felt "quite
comfortable" identifying appellant as the person who signed the "T. Proby" portion of
Le'Kita's name. (Tr. Vol. I, 267.) He stated on recross-examination that "the difference
between positive and highly probable is very minute." (Tr. Vol. I, 269.)
{¶ 16} On further redirect examination, the prosecutor asked Bennett "if we would
ask you what's your opinion as to whether or not [appellant] wrote out Le'Kita T. Proby,
would your answer still be highly probable?" (Tr. Vol. I, 271.) Bennett responded, "As far
as Le'Kita, I'd say, very capable. As far as T. Proby, I'd say, yes, he did do it." (Tr. Vol. I,
271.) The prosecutor then averred, "I guess the reason I'm asking you that is I'm trying to
understand, you're breaking it down between Le'Kita and T. Proby now when we've been
No. 14AP-1067 6
testifying in court today. At the time you wrote the report you didn't make that
distinction. And I'm just wondering is there a difference in opinion or is it that we're
focusing on one part of the signature versus the other now?" (Tr. Vol. I, 271.) To this
query, Bennett responded, "No. I think it's a difference in opinion." (Tr. Vol. I, 271.)
{¶ 17} Following Bennett's testimony, defense counsel moved for a mistrial. After
a lengthy discussion with defense counsel and the prosecutor, the particulars of which are
outlined in detail in our discussion of the first assignment of error, the trial court denied
the motion.
{¶ 18} At the conclusion of trial, the jury found appellant guilty on all five counts in
the indictment. The trial court issued a judgment entry consistent with the jury's verdicts
and imposed a sentence in accordance with law.
II. ASSIGNMENTS OF ERROR
{¶ 19} In a timely appeal, appellant asserts the following three assignments of
error:
[I.] The trial court erred to the prejudice of appellant when it
denied his motion for mistrial predicat[e]d on the state's
Crim.R. 16(K) violation regarding the changed opinion of its
handwriting expert.
[II.] Appellant's convictions for one count of theft; two counts
of tampering with records; and two counts of forgery in
violation of R.C. 2913.02, R.C. 2913.42 and R.C. 2913.31,
respectively, are based upon insufficient evidence.
[III.] Appellant's convictions for one count of theft; two
counts of tampering with records; and two counts of forgery in
violation of R.C. 2913.02, R.C. 2913.42 and R.C. 2913.31,
respectively, are against the manifest weight of the evidence.
III. DISCUSSION
A. First Assignment of Error – Mistrial
{¶ 20} In his first assignment of error, appellant argues that the trial court abused
its discretion when it denied his motion for mistrial based on the prosecutor's failure to
comply with the requirements of Crim.R. 16(K) regarding Bennett's testimony. Appellant
asserts he was prejudiced by the prosecutor's failure to timely inform him of a change in
Bennett's expert opinion.
No. 14AP-1067 7
{¶ 21} As noted above, Bennett testified on direct examination in the state's case
that he opined in two written reports issued in May 2013 that Le'Kita did not sign the loan
modification documents and that it was "highly probable" that appellant signed Le'Kita's
name on those documents. He then averred that because appellant's handwriting sample
did not include the cursive form of Le'Kita's first name, he could not opine as to whether
appellant signed "Le'Kita" on the documents; however, he could opine that appellant
signed Le'Kita's middle initial (T.) and her former last name (Proby). (Tr. Vol. I, 227.)
{¶ 22} On cross-examination, Bennett testified that he told the prosecutor before
he came in to testify that he changed his opinion "a little bit" since he issued the written
reports and used the term of art "highly probable" in his written report because he was
not certain that appellant signed Le'Kita's first name. (Tr. Vol. I, 259.) After reexamining the loan modification documents and the handwriting exemplars, he changed
his opinion from "highly probable" to "basically I don't know for sure on the first name;
but the middle initial and last name, yes, he did do." (Tr. Vol. I, 259.) Following this
statement, Bennett averred that he did not draft a new report; rather, he told the
prosecutor about it "this morning" and was told to "testify to it the way that you believe."
(Tr. Vol. I, 260.)
{¶ 23} Bennett averred on recross-examination that he changed his expert opinion
"probably [a] couple days ago" and told the prosecutor about the change "[t]his morning."
(Tr. Vol. I, 269.) He further averred that when he was told the case was going to trial, he
"basically had to do the examination again" and acknowledged that it would have been "a
good idea" to let the prosecutor know before the trial started that he had changed his
opinion. (Tr. Vol. I, 270.) On re-direct examination, Bennett characterized his testimony
as constituting a "difference in opinion." (Tr. Vol. I, 271.)
{¶ 24} Following Bennett's testimony, the court adjourned for the evening. When
trial commenced the next morning, defense counsel, outside the jury's presence, moved
for a mistrial based on the prosecutor's alleged failure to comply with Crim.R. 16(K). In
particular, defense counsel argued that Crim.R. 16(K) obligated the prosecutor to advise
the defense of any changes to Bennett's May 2013 written reports. Defense counsel
averred that if he had known of the change in Bennett's opinion, "we may have made a
different decision here, or I could hire an expert to say is this really accurate and then
No. 14AP-1067 8
make a decision at that point." (Tr. Vol. II, 280.) Defense counsel further stated, "[t]he
prosecutor knew. We could have called a timeout in the trial and figured out something.
… Allowing us to be ambushed with that information in front of the jury is prejudicial,
it's prosecutorial misconduct, it's unconstitutional." (Tr. Vol. II, 280-81.)
{¶ 25} In response, the prosecutor averred that when he conferred with Bennett in
the morning prior to Bennett testifying, Bennett for the first time explained his difficulty
in determining whether appellant had signed Le'Kita's first name on the loan modification
documents. According to the prosecutor, Bennett stated that "I feel conclusively that
[appellant] did the T. Proby but I can't make the Le'Kita." (Tr. Vol. II, 282.) The
prosecutor understood Bennett's statement to mean that he "was giving me further
information about why he reached highly probable on his report, was because the one
word he could make, the one word he couldn't. And so, therefore, he was saying highly
probable for that Le'Kita Proby." (Tr. Vol. II, 282.) The prosecutor further stated, "I don't
think on direct he said anything about changing his opinion to say that T. Proby was
conclusive and that he was conclusive now on apparently the whole thing. I don't know
that we even clarified exactly what he was conclusive about except now it may be that it's
the T. Proby." (Tr. Vol. II, 282-83.) The prosecutor further averred that when he spoke
with Bennett, "it did not occur to me that this was a change of opinion. It occurred to me
that he was telling me this is why I have this opinion but he hadn't said that specifically in
his report and so I didn't tell [defense counsel]." (Tr. Vol. II, 283.)
{¶ 26} The trial court then asked defense counsel to articulate how appellant had
been prejudiced by the change in Bennett's opinion. The court specifically averred:
Because, I mean, the fact that he testified that he changed his
opinion actually works, I think, to your favor. I mean, it calls
into question all the work that he's done up to this point on
the one hand, and rather than saying the entire name that it
was probable, by parsing it out now saying, well, now I can't
really tell based upon the first name and I'm only looking now
at the last, the middle, the last name, probably works to your
benefit, at least from my recollection of the testimony.
I mean, the fact that it came in late, the fact that it came in at
trial, yes, is of concern; but, at least the cases that I've had an
opportunity to review always talk about the prejudice that's
No. 14AP-1067 9
been derived by that and whether or not the results of the trial
would have been different but for the information.
(Tr. Vol. II, 285-86.)
{¶ 27} After a brief recess, defense counsel argued that appellant was prejudiced by
Bennett's changed opinion because appellant's trial strategy, and ultimately his decision
to go to trial, was predicated at least in part on a report that indicated it was "highly
probable" that appellant signed Le'Kita's name to the loan modification documents.
Defense counsel noted that since "highly probable" was something less than the "high
end," there was some "wiggle room there we intended to work with. And then we heard
the testimony unfold yesterday and it was anything but that." (Tr. Vol. II, 288.) Defense
counsel further argued, "if that report had said 100 percent, I likely would have consulted
my own expert and potentially called that person as a witness; but with a less than 100
percent report I didn't feel the need to." (Tr.Vol. II, 291.)
{¶ 28} The trial court noted that despite efforts by both the prosecutor and defense
counsel to coax Bennett to express his changed opinion using the terms of art positive,
highly probable, probable, or very likely, he never did so; rather, he only would opine that
he did not know whether appellant signed Le'Kita's first name and felt comfortable
identifying appellant as the person who signed "T. Proby." The court ultimately
concluded that although the prosecutor violated Crim.R. 16 insofar as he was aware of a
potential change in Bennett's expert testimony and did not provide that information to
the defense at the time he became aware of the potential change, appellant had suffered
no resulting prejudice.
{¶ 29} An appellate court reviewing a trial court's decision on a motion for mistrial
defers to the judgment of the trial court, as it is in the best position to determine whether
circumstances warrant a mistrial. State v. Glover, 35 Ohio St.3d 18, 19 (1988).
Accordingly, we review a trial court's decision on a motion for mistrial for an abuse of
discretion. Columbus v. Aleshire,
187 Ohio App.3d 660,
2010-Ohio-2773, ¶ 42 (10th
Dist.), citing State v. Sage,
31 Ohio St.3d 173, 182 (1987). The term abuse of discretion
implies that the court's attitude is unreasonable, arbitrary, or unconscionable. State v.
Adams,
62 Ohio St.2d 151, 157 (1980). An abuse of discretion involves views or actions
" 'that no conscientious judge, acting intelligently, could honestly have taken.' " State v.
No. 14AP-1067 10
Hancock,
108 Ohio St.3d 57,
2006-Ohio-160, ¶ 130, quoting State ex rel. Wilms v. Blake,
144 Ohio St. 619, 624 (1945).
{¶ 30} " 'A mistrial should not be ordered in a criminal case merely because some
error or irregularity has intervened, unless the substantial rights of the accused or the
prosecution are adversely affected.' " State v. Walburg, 10th Dist. No. 10AP-1087, 2011-
Ohio-4762, ¶ 52, quoting State v. Reynolds, 49 Ohio App.3d 27, 33 (2d Dist.1988).
Rather, a trial court should only declare a mistrial when "the ends of justice so require and
a fair trial is no longer possible." State v. Franklin,
62 Ohio St.3d 118, 127 (1991). In
determining whether a criminal defendant was deprived of a fair trial, an appellate court
must determine whether, absent the error or irregularity, "the jury would have found the
[defendant] guilty beyond a reasonable doubt." Aleshire at ¶ 42, citing State v. Maurer,
15 Ohio St.3d 239, 267 (1984).
{¶ 31} Crim.R. 16 governs discovery in criminal prosecutions. State v. Palmer,
12th Dist. No. CA2013-12-243, 2014-Ohio-5491, ¶ 37, citing State v. Wilson, 12th Dist. No.
CA2012-12-254,
2013-Ohio-3877, ¶ 14. As to expert witness testimony, Crim.R. 16(K)
provides:
Expert Witnesses; Reports. An expert witness for either
side shall prepare a written report summarizing the expert
witness's testimony, findings, analysis, conclusions or
opinion, and shall include a summary of the expert's
qualifications. The written report and summary of
qualifications shall be subject to disclosure under this rule no
later than twenty-one days prior to trial, which period may be
modified by the court for good cause shown, which does not
prejudice any other party. Failure to disclose the written
report to opposing counsel shall preclude the expert's
testimony at trial.
{¶ 32} The purpose of Crim.R. 16(K) " 'is to avoid unfair surprise by providing
notice to the defense and allowing the defense an opportunity to challenge the expert's
findings, analysis, or qualifications, possibly with the support of an adverse expert who
could discredit the opinion after carefully reviewing the written report.' " State v. Fetty,
11th Dist. No. 2011-P-0091, 2012-Ohio-6127, ¶ 36, quoting State v. Perry, 11th Dist. No.
2011-L-125,
2012-Ohio-4888, ¶ 55.
No. 14AP-1067 11
{¶ 33} Pursuant to Crim.R. 16(L)(1), when a party fails to provide discovery, the
trial court may, inter alia, grant a continuance, prohibit the party from introducing into
evidence the undisclosed material, or make any other order it deems just under the
circumstances. State v. Schuttinger, 10th Dist. No. 12AP-705, 2013-Ohio-5793, ¶ 12.
Whether to impose sanctions for a party's failure to comply with discovery rules is subject
to abuse of discretion review.
Id., citing State v. Harcourt,
46 Ohio App.3d 52 (12th
Dist.1988), paragraph one of the syllabus.
{¶ 34} In addition, "[p]rosecutorial violations of Crim.R. 16 are reversible only
when there is a showing that (1) the prosecution's failure to disclose was a willful violation
of the rule, (2) foreknowledge of the information would have benefited the accused in the
preparation of his defense, and (3) the accused suffered some prejudicial effect." State v.
Joseph, 73 Ohio St.3d 450, 458 (1995); see also State v. Jackson,
107 Ohio St.3d 53,
2005-Ohio-5981, ¶ 131.
{¶ 35} In the present case, the trial court found that the prosecutor's failure to
immediately notify appellant of Bennett's changed opinion was a violation of Crim.R.
16(K). Assuming, arguendo, that the trial court properly so found, we nonetheless find
that the trial court did not abuse its discretion in refusing to grant appellant's motion for
mistrial because of the prosecutor's failure to strictly comply with Crim.R. 16(K). First,
although the prosecutor's failure to disclose was willful in the sense that he did not
immediately notify defense counsel about Bennett's changed opinion, the prosecutor
explained that in his discussion with Bennett immediately prior to Bennett's testimony, he
believed that Bennett was merely explaining how he had arrived at a conclusion of "highly
probable" in his written report. The prosecutor averred that he did not inform defense
counsel because it did not occur to him that what Bennett told him constituted a change of
opinion; rather, the prosecutor interpreted Bennett's statements as an expansion of the
opinion set forth in his written reports.
{¶ 36} Even if the prosecutor willfully violated the rule, appellant has failed to
demonstrate that foreknowledge of Bennett's changed opinion would have benefited him.
Appellant argues that had he known of Bennett's changed opinion, he would have
obtained his own handwriting expert and reconsidered his entire trial strategy. However,
as Bennett testified, the difference between "positive" and "highly probable" is "very
No. 14AP-1067 12
minute." (Tr. Vol. I, 269.) Appellant does not explain why an opinion of "positive" would
have prompted him to obtain his own expert but the opinion of "highly probable" did not.
{¶ 37} Finally, appellant has failed to show that he was prejudiced by Bennett's
changed testimony. As noted by the trial court, Bennett never testified that he was
"positive" that appellant had signed the "T. Proby" portion of Le'Kita's name to the loan
modification documents. Rather, he opined only that he did not know whether appellant
signed Le'Kita's first name and felt comfortable identifying appellant as the individual
who signed "T. Proby." Moreover, and as further noted by the trial court, Bennett's
changed opinion likely benefited appellant, as it called into question Bennett's credibility
and the validity of his written reports. Defense counsel repeatedly made this point
through vigorous and thorough cross-examination of Bennett and during closing
argument.
{¶ 38} In short, because appellant has failed to satisfy all three prongs of the
Joseph/Jackson test, no reversible error occurred in the denial of appellant's motion for
mistrial based on the prosecutor's Crim.R. 16 violation. Accordingly, we need not disturb
the trial court's decision to deny appellant's motion for mistrial. See State v. Anderson,
10th Dist. No. 08AP-1071, 2009-Ohio-6566, ¶ 27 ("Because appellant cannot satisfy all
three Jackson prongs, we discern no reversible error from the prosecution's Crim.R. 16
violation."). The first assignment of error is overruled.
B. Second and Third Assignments of Error – Sufficiency and
Manifest Weight of the Evidence
{¶ 39} In his second and third assignments of error, respectively, appellant argues
that his convictions were not supported by sufficient evidence and were against the
manifest weight of the evidence.
{¶ 40} "Sufficiency of the evidence is a legal standard that tests whether the
evidence introduced at trial is legally sufficient to support a verdict." State v. Cassell, 10th
Dist. No. 08AP-1093, 2010-Ohio-1881, ¶ 36, citing State v. Thompkins,
78 Ohio St.3d
380, 386 (1997). In reviewing a challenge to the sufficiency of the evidence, an appellate
court must determine "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
No. 14AP-1067 13
proven beyond a reasonable doubt." State v. Jenks,
61 Ohio St.3d 259 (1991), paragraph
two of the syllabus.
{¶ 41} "While sufficiency of the evidence is a test of adequacy regarding whether
the evidence is legally sufficient to support the verdict as a matter of law, the criminal
manifest weight of the evidence standard addresses the evidence's effect of inducing
belief." Cassell at ¶ 38, citing State v. Wilson, 113 Ohio St.3d 382,
2007-Ohio-2202, ¶ 25,
citing
Thompkins at 386. "When a court of appeals reverses a judgment of a trial court on
the basis that the verdict is against the weight of the evidence, the appellate court sits as a
'thirteenth juror' and disagrees with the factfinder's resolution of the conflicting
testimony."
Thompkins at 387, citing Tibbs v. Florida,
457 U.S. 31, 42 (1982). " '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.' "
Id., quoting State v.
Martin,
20 Ohio App.3d 172, 175 (1st Dist.1983). This discretionary authority " 'should be
exercised only in the exceptional case in which the evidence weighs heavily against the
conviction.' "
Id., quoting
Martin at 175.
{¶ 42} Furthermore, " '[w]hile the jury may take note of inconsistencies and
resolve or discount them accordingly, … such inconsistences do not render defendant's
conviction against the manifest weight or sufficiency of the evidence.' " State v. Gullick,
10th Dist. No. 13AP-317, 2014-Ohio-1642, ¶ 10, quoting State v. Nivens, 10th Dist. No.
95APA09-1236 (May 28, 1996). "A jury, as the finder of fact and the sole judge of the
weight of the evidence and the credibility of the witnesses, may believe or disbelieve all,
part, or none of a witness's testimony."
Id., citing State v. Antill,
176 Ohio St. 61, 67
(1964). A conviction is not against the manifest weight of the evidence because the jury
believed the state's version of events over the appellant's version. Id. at ¶ 11, citing State v.
Houston, 10th Dist. No. 04AP-875,
2005-Ohio-449, ¶ 38. A reviewing court must give
great deference to the jury's determination of witness credibility.
Id., citing State v.
Chandler, 10th Dist. No. 05AP-415,
2006-Ohio-2070, ¶ 19.
{¶ 43} Appellant was convicted on one count of theft by deception, in violation of
R.C. 2913.02, based on his procurement of funds from Wells Fargo and HUD using forged
No. 14AP-1067 14
documents. Appellant also was convicted on two counts of tampering with records, in
violation of R.C. 2913.42, based on his uttering of Le'Kita's forged signatures on the loan
modification documents submitted to Wells Fargo and HUD. In addition, appellant was
convicted on two counts of forgery, in violation of R.C. 2913.31, stemming from his
signing Le'Kita's name on the loan modification documents. Appellant does not argue
that the state failed to present evidence establishing all the elements of the offenses for
which he was convicted. Instead, appellant argues that a number of issues undermine his
convictions and establish that the jury clearly lost its way in convicting him.
{¶ 44} Appellant acknowledges that his convictions all resolve to whether he forged
Le'Kita's signature on the loan modification documents. Appellant argues that Le'Kita
signed the loan modification documents but after appellant defaulted on the loan, she
claimed that he forged her signature to avoid any financial responsibility on the note and
mortgage. Appellant contends that the greater weight of the evidence compels this
conclusion.
{¶ 45} Appellant acknowledges Le'Kita's testimony that she did not sign the loan
modification documents. Appellant argues that while Le'Kita's denial was "compelling," it
did not "withstand scrutiny" when considering the language in the domestic court's
January 2008 order that "[a]t closing, petitioner-wife to receive from pet[itioner]-
Husband[']s share of net proceeds $5000.00 for additional debt against property based
upon husband[']s previous failure to pay." (Appellant's Brief, 14; State's Exhibit L, 3.)
Appellant contends that this language demonstrates that Le'Kita knew in January 2008
that appellant had obtained approximately $5,000 to cure the first mortgage arrearage
because she signed the loan modification documents in 2007. Appellant maintains that
the 2008 domestic relations order corroborates his testimony that Le'Kita signed the
documents.
{¶ 46} Contrary to appellant's argument, the language in the 2008 domestic
relations order does not establish that Le'Kita signed the loan modification documents or
even knew the documents existed. The domestic relations order does not expressly
identify the loan modification documents. Further, although Le'Kita testified that
appellant produced documentation in the domestic relations court demonstrating that the
mortgage was no longer in arrears, she averred that the documentation consisted of "a
No. 14AP-1067 15
printout that you get online [from] Wells Fargo … showing payments received." (Tr.
Vol. II, 338.) She further testified that she only later learned that the documentation
appellant produced consisted of the loan modification documents from Wells Fargo and
HUD.
{¶ 47} Moreover, on cross-examination, Le'Kita testified that although there was
some discussion about $5,000 at the contempt hearing, that discussion was not related to
the additional debt incurred by appellant in obtaining the loan modification. Rather, the
$5,000 figure was just part of the agreement worked out between counsel for Le'Kita and
counsel for appellant pertaining to appellant's failure to pay certain debts.
{¶ 48} Appellant also asserts that the jury should have afforded little weight to
Bennett's testimony that appellant signed the "Proby" portion of Le'Kita's name on the
loan modification documents. Appellant specifically contends that Bennett's opinion was
entitled to little weight because (1) appellant's handwriting samples were obtained at the
prosecutor's office pursuant to subpoena, while Le'Kita's handwriting samples were
obtained at her workplace, (2) the loan modification documents to which Bennett
compared the handwriting exemplars were copies and not originals, (3) the handwriting
exemplars were obtained several years after the loan modification documents were
executed, and (4) Bennett admitted that the nature of handwriting analysis is
"opinionated" rather than an "exact science." (Tr. Vol. I, 260.)
{¶ 49} The record does not establish how much, if any, weight the jury afforded
Bennett's testimony. At oral argument, counsel for appellant suggested that an expert's
testimony "has a lot of sway" with a jury. However, the jury was instructed that the same
rules that apply to considering the credibility of general witness testimony should be
applied in considering the credibility of an expert witness. We presume the jury followed
this instruction and applied the proper standard in assessing Bennett's credibility. State
v. Mammone, 139 Ohio St.3d 467,
2014-Ohio-1942, ¶ 147.
{¶ 50} Furthermore, assuming the jury did find Bennett's testimony credible, such
was its prerogative. The jury heard Bennett's testimony, including the portions of
testimony appellant now argues undermine his credibility. During closing argument,
defense counsel highlighted potential problems with Bennett's testimony, including those
now advanced by appellant. As the factfinder and sole judge of the weight of the evidence
No. 14AP-1067 16
and witness credibility, the jury was entitled to believe or disbelieve all, part, or none of
Bennett's testimony. Gullick at ¶ 10. Although this court may consider Bennett's
credibility, the jury was best able to view him and observe his demeanor, gestures, and
voice inflections and use those observations in weighing his credibility. State v. Tatum,
10th Dist. No. 10AP-626, 2011-Ohio-907, ¶ 13.
{¶ 51} In addition, even if the jury gave no weight to Bennett's testimony, other
evidence in the record supported appellant's convictions. Le'Kita testified that she did not
sign the loan modification documents and did not authorize appellant or anyone else to
sign those documents on her behalf. It was within the jury's province to believe Le'Kita's
testimony. Gullick at ¶ 10. The jury also had before it several exhibits containing
signatures of both appellant and Le'Kita, including the 2003 loan documents, the 2007
loan modification documents, and the 2013 handwriting exemplars. The jury simply
could have compared the set of known signatures of both appellant and Le'Kita to the
questioned signatures on the loan modification documents and concluded that appellant
forged Le'Kita’s signature on those documents.
{¶ 52} Finally, appellant contends that the presence of a notary's signature on the
subordinate mortgage, by itself, creates reasonable doubt as to whether appellant forged
Le'Kita's signature on that document. The jury was aware of the evidence pertaining to
the notary's signature and arguably could have resolved it in the state's favor.
{¶ 53} In sum, appellant has failed to demonstrate that the jury clearly lost its way
and created such a manifest miscarriage of justice that his convictions must be reversed
and a new trial ordered. Because appellant's convictions were supported by sufficient
evidence and were not against the manifest weight of the evidence, his second and third
assignments of error are overruled.
IV. CONCLUSION
{¶ 54} Having overruled appellant's first, second, and third assignments of error,
we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN, P.J., and LUPER SCHUSTER, J., concur.
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