[Cite as State v. Tabassum,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 25568

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE JAWAID TABASSUM COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 10 04 0925

DECISION AND JOURNAL ENTRY

Dated: December 30, 2011

MOORE, Judge.

{¶1} Appellant, Jawaid Tabassum, appeals from the judgment of the Summit County

Court of Common Pleas. This Court affirms.

I.

{¶2} On January 22, 2010, Fred Morehead walked into a convenience store owned and

operated by Jawaid Tabassum. Morehead purchased three “scratch off” lottery tickets and left

the store. When he went across the street to a café and scratched off one of the tickets, he

discovered he had won $1000. He returned to the convenience store to collect the money. When

Morehead presented the winning ticket, Tabassum told him he would cash the ticket but would

deduct $300 for taxes. Tabassum then gave Morehead $700. Morehead is unemployed, and has

a payee for his social security disability benefits related to mental health impairments.

{¶3} On April 12, 2010, Tabassum was indicted on the charge of theft from a disabled

adult in violation of R.C. 2913.02(A)(3), a felony of the fifth degree. The case proceeded to jury 2

trial, and on June 29, 2010, the jury found Tabassum guilty of theft and determined that

Morehead was a disabled adult within the meaning of the statute. On August 2, 2010, together

with restitution and other sanctions, the trial court sentenced Tabassum to twelve months of

incarceration which the court suspended upon the condition that Tabassum complete one year of

community control.

{¶4} Tabassum timely filed a notice of appeal and raises six assignments of error for

our review. We have consolidated the first and second assignments of error and rearranged the

remaining assignments of error for ease of discussion.

II.

ASSIGNMENT OF ERROR I

“THE COURT ERRONEOUSLY DENIED [TABASSUM]’S RULE 29 MOTION FOR ACQUITTAL AS THE STATE DID NOT PROVE FELONY THEFT BY DECEPTION FROM A DISABLED ADULT AS THERE WAS NOT ANY DOCUMENTATION OR TESTIMONY FROM A BONAFIDE AGENT OF ANY STATE OR FEDERAL AGENCY OR ANYONE ELSE WHO ATTESTED TO THE CERTIFICATION OF [] MOREHEAD AS PERMANENTLY AND TOTALLY DISABLED WHICH IS AN ESSENTIAL ELEMENT OF THE COUNT CHARGED IN THE INDICTMENT. THUS, [] TABASSUM’S CONVICTION FOR THEFT FROM A DISABLED PERSON IS AGAINST THE SUFFICIENCY AND/OR WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO DEMONSTRATE THAT THE STATE’S VICTIM WAS A DISABLED ADULT AS DEFINED BY R.C. 2913.01(DD) .”

ASSIGNMENT OF ERROR II

“THE COURT ERRONEOUSLY DENIED [TABASSUM]’S RULE 29 MOTION FOR ACQUITTAL AS THE STATE DID NOT PROVE DECEPTION AS THE LOTTERY TICKET IN QUESTION BELONGED TO [TABASSUM] AND NOT TO [MOREHEAD] AND [TABASSUM] DID IN FACT FOLLOW THE APPROPRIATE PROCEDURES AS TO THAT TICKET.”

{¶5} In his first and second assignment of error, Tabassum argues that his conviction

was not supported by sufficient evidence. Specifically, he argues that the State failed to prove

that the victim was a disabled adult and that Tabassum engaged in deception. We do not agree. 3

Although, in the statement of his first assignment of error, Tabassum raises the issue of manifest

weight, his arguments pertain only to the sufficiency of the evidence, and we limit our discussion

accordingly. See App.R. 16(A)(7) and App.R. 12(A)(2). However, a broader discussion of the

manifest weight of the evidence is set forth in response to Tabassum’s fourth assignment of error

below.

{¶6} A motion pursuant to Crim.R. 29 tests the sufficiency of the evidence presented

by the State. State v. Thompkins (1997),

. The issue of whether a

conviction is supported by sufficient evidence is a question of law, which we review de novo.

When considering a challenge to the sufficiency of the evidence, the court must determine

whether the prosecution has met its burden of production.

(Cook, J. concurring). In

making this determination, an appellate court must view the evidence in the light most favorable

to the prosecution:

“An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted 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.” State v. Jenks (1991),

, paragraph two of the syllabus.

{¶7} Here, Tabassum challenges his conviction for theft from a disabled adult in

violation of R.C. 2913.02(A)(3), which provides, “No person, with purpose to deprive the owner

of property or services, shall knowingly obtain or exert control over either the property or

services * * * by deception[.]” R.C. 2913.02(B)(3) provides that “theft from an elderly person or

disabled adult is a felony of the fifth degree.” A “disabled adult” is defined in R.C. 2913.01(DD)

as, 4

“a person who is eighteen years of age or older and has some impairment of body or mind that makes the person unable to work at any substantially remunerative employment that the person otherwise would be able to perform and that will, with reasonable probability, continue for a period of at least twelve months without any present indication of recovery from the impairment, or who is eighteen years of age or older and has been certified as permanently and totally disabled by an agency of this state or the United States that has the function of so classifying persons.”

{¶8} R.C 2913.01(A) defines “deception” as,

“knowingly deceiving another or causing another to be deceived by any false or misleading representation, by withholding information, by preventing another from acquiring information, or by any other conduct, act, or omission that creates, confirms, or perpetuates a false impression in another, including a false impression as to law, value, state of mind, or other objective or subjective fact.”

{¶9} As part of the State’s case-in-chief, it provided the testimony of Morehead, Buddy

Conley, Bobbie Wamsley, Kathy Harper, and Justin Morris. Morehead testified that he is forty-

nine years old. He does not work and receives a total of $494 at the beginning of each month

from Social Security and SSI because he suffers from anxiety, and he is bipolar and a depressant

schizophrenic. He sometimes does “side jobs,” resulting in earnings of $5 to $15 per job. In the

past, Morehead had panhandled, but he made very little money doing so; the most he has ever

made was $75.

{¶10} On January 22, 2010, Morehead was interested in renting a room from Conley.

Conley wanted $250 to rent the room, and Conley needed to borrow $50 to fix his truck.

However, Morehead only had $5 in quarters at that time.

{¶11} Later that day, Morehead was at the South Street Express, where he purchased

instant lottery tickets from Tabassum, who owns the store. He scratched off some tickets in the

store, but he did not win on those tickets. He then left the store and went across the street to

Hope Cafe, a church-run coffee house. There, he scratched off his last ticket. He recognized the

ticket as a winning ticket and took the ticket back to South Street Express. He was very excited 5

and showed the ticket to Tabassum. Morehead then attempted to exit the store. However,

Tabassum stopped him and offered to cash the ticket. Morehead agreed, but Tabassum stated

that he needed to withhold $300 for taxes. Tabassum then gave Morehead the balance of the

winnings of $700. Morehead went back to Hope Cafe with the money, and there he talked with

Conley. Morehead gave him $250 to rent Conley’s room and loaned Conley $50 to get his truck

fixed.

{¶12} Also, while he was at Hope Cafe, Morehead called Bobbie Wamsley, whom he

refers to as his “adopted mother” and who is the payee on this Social Security and SSI checks.

Morehead told her that he won $1000 on a lottery ticket and that Tabassum had withheld $300

for taxes. Wamsley advised him that taxes are not supposed to be withheld from the winnings.

{¶13} Later, Morehead encountered an acquaintance named Kathy Harper. Harper gave

Morehead a ride from Hope Cafe to Wamsley’s home. On the way, they stopped at Walmart,

and Morehead purchased fishing equipment and other items. He told Harper about winning on a

lottery ticket, and he told her that Tabassum had withheld money for taxes.

{¶14} The next day, Morehead contacted Tabassum about withholding the $300, and

Tabassum told him to come back to the store, and he would give Morehead the money back.

However, Tabassum did not give him the $300, and Morehead contacted the police and made a

report.

{¶15} Conley, Wamsley and Harper testified as to their interactions with Morehead on

January 22, 2010. Each individual’s testimony set forth essentially the same encounters with

Morehead as Morehead had set forth in his testimony.

{¶16} Justin Morris, an investigator for the Ohio Lottery Commission, testified that he

was contacted by the Commission’s Cleveland office to investigate a complaint made by 6

Morehead that Tabassum had cashed his ticket at his store and withheld money for taxes. Morris

further testified as to the proper procedure for obtaining winnings of $600 or more from an

instant ticket. In such circumstances, the winner would take the ticket to an authorized lottery

retailer. The retailer would then print a “pay to the bearer and claim” form, which the winner

would take to a bank to obtain the prize money. Although the lottery ticket should be signed, it

is not necessary for the winner to do so. No money is withheld from the winnings for tax

purposes. The rules as to cashing tickets of particular winning amounts are explained to lottery

retailers.

{¶17} Viewing the evidence in the light most favorable to the prosecution, the State

provided sufficient evidence that Morehead was a “disabled adult.” Morehead and Wamsley

both testified that Morehead suffers from certain conditions due to a childhood accident. Both

testified that Morehead does not work and receives Social Security and SSI due to his conditions.

A jury could reasonably infer that Morehead’s conditions prevented him from

“working at substantially remunerative employment,” and that these conditions would continue

for a period longer than twelve months. Further, a reasonable juror could determine that neither

panhandling nor the “side jobs” to which were testified constitute “substantially remunerative

employment.” Therefore, there was sufficient evidence from which a jury could find that

Morehead suffered from an impairment of the sort set forth within the statute. Because the

statute requires either proof of such an impairment or certification of a disability, the State was

not required to provide certification.

{¶18} Further, the State provided sufficient evidence that Tabassum engaged in

deception by making false representations that he could withhold taxes from lottery winnings

and that a lottery retailer is permitted to cash a lottery ticket in the amount of $1000. Morris 7

testified that neither course of action is permitted of lottery retailers. Morehead testified that

Tabassum cashed the ticket and withheld $300 for taxes. Harris and Wamsley confirmed that

Morehead told them that he had won money on a lottery ticket, from which the lottery “agent”

had withheld $300 for taxes. Further, Harris, Wamsley, and Conley testified that Morehead had

a significant amount of cash on the evening of January 22, 2010, which was out of the ordinary

for Morehead.

{¶19} Accordingly, Tabassum’s first and second assignments of error are overruled.

ASSIGNMENT OF ERROR IV

“THE CONVICTION OF [] TABASSUM WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

{¶20} In his fourth assignment of error, Tabassum argues that his conviction was against

the manifest weight of the evidence. We disagree. Although his assignment further specifies his

conviction was not supported by sufficient evidence, his argument does not address this point,

and, as we have already addressed his arguments as to the sufficiency of the evidence regarding

the elements of “deception” and “disabled adult,” we decline to further address the sufficiency of

the evidence. See App.R. 16(A)(7) and App.R. 12(A)(2).

{¶21} When a defendant asserts that his conviction is against the manifest weight of the

evidence,

“an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Otten (1986),

.

{¶22} In making this determination, this Court is mindful that “[e]valuating evidence

and assessing credibility are primarily for the trier of fact.” State v. Shue (1994),

8

App.3d 459, 466, citing Ostendorf-Morris Co. v. Slyman (1982),

, 47 and Crull

v. Maple Park Body Shop (1987),

.

{¶23} At trial Tabassum provided the testimony of himself, Charles Shanafelt, and

Joshua Clark. Tabassum testified that on January 22, 2010, he, Morehead, Shanafelt, and Clark

were present in the South Street Express. Morehead and Tabassum were playing lottery instant

win tickets. Tabassum won $1000 on one of his tickets, and Morehead seemed unhappy about

Tabassum’s win. Morehead asked Tabassum to “hook him up.” The next day, Morehead

returned to South Street Express when Tabassum was opening up the store. Morehead told

Tabassum to give him some money, and Tabassum offered him $20. Morehead declined and

demanded more money, and Tabassum told him that he would not give him more money.

Morehead became angry, and Tabassum put the $20 back and told Morehead that he would not

give him any money. Morehead left. A few days later, Morehead called Tabassum demanding

$300 because “the ticket could have been [Morehead’s].” Tabassum replied that it was his

ticket, and Morehead again became angry and stated that he was going to “bring the business

down.”

{¶24} Charles Shanafelt testified that he regularly patronizes the South Street Express,

and he knows Tabassum from his frequent visits to his store. Shanafelt is familiar with

Morehead from the area and the store, and he has observed Morehead to become agitated and

“temperamental.” On the date at issue, Shanafelt was in South Street Express when Tabassum

and Morehead were there. Morehead was not winning on his lottery tickets, and he threw them

in the trash in an angry way. Tabassum was also playing lottery tickets, and said that he “hit,”

and was smiling and held up the ticket. Morehead seemed disappointed about Tabassum’s win. 9

{¶25} Joshua Clark testified that he was working at South Street Express on January 22,

2010. He had been working there for about one week. Clark was familiar with Morehead from

his presence in the neighborhood. He described Morehead as “an angry person.” On the day at

issue, Tabassum was playing instant lottery tickets and won. Morehead was also at the store

playing lottery tickets, and he was losing and grumbling and grunting, and threw his tickets into

the trash can.

{¶26} On cross-examination of the State’s and defense witnesses, each party cast doubt

upon the opposing witnesses’ credibility. However, we have repeatedly stated that “the trier of

fact is in the best position to determine the credibility of witnesses and evaluate their testimony

accordingly.” State v. Johnson, 9th Dist. No. 25161,

, at ¶15. Further, the trier

of fact, here the jury, “has the right to place considerable weight on the testimony of the victim.”

State v. Felder (July 29, 1992), 9th Dist. No. 91CA005230, at *1.

{¶27} After reviewing the entire record, weighing the inferences and examining the

credibility of witnesses, we cannot say that the jury’s resolution of the conflicting testimony was

unreasonable. Consequently, this is not the exceptional case where the jury clearly lost its way

and created a manifest miscarriage of justice in finding Tabassum guilty of theft from a disabled

adult. Although inconsistencies existed between the witnesses’ testimony, “the jury is free to

believe all, part, or none of the testimony of each witness.” (Quotations and citations omitted.)

State v. Cross, 9th Dist. No. 25487,

. Where the evidence indicates that a

jury could reasonably choose between the State’s or the defendant’s version of the events, “[a]

conviction is not against the manifest weight because the jury chose to credit the State’s version

of events.” State v. Peasley, 9th Dist. No. 25062,

, at ¶18, citing State v. 10

Morgan, 9th Dist. No. 22848,

. Accordingly, Tabassum’s fourth

assignment of error is overruled.

ASSIGNMENT OF ERROR III

“[]THE TRIAL COURT COMMITTED PLAIN IF NOT STRUCTURAL ERROR WHEN IT OMITTED BASIC DEFINITIONS IN THE JURY INSTRUCTIONS AND, IN EFFECT, CHARGED FOR AN OFFENSE NOT INDICTED.[] THE COURT ERRONEOULSY CHANGED THE WORDING OF THE STATUTE WHICH DEFINES A DISABLED ADULT IN ITS INSTRUCTIONS TO THE JURY WHEN IT IMPERMISSIBLY SUBSTITUTED THE WORD ‘UNFIT’ FOR ‘UNABLE’ []. THIS CHANGE IN WORDING MISLEADS THE JURY AS THE PLAIN MEANING OF THE WORDS ACCORDING TO THE DICTIONARY ARE NOT THE SAME AND ARE NOT INTERCHANGEABLE.”

{¶28} In his third assignment of error, Tabassum argues that that trial court erred in its

instructions to the jury by deviating from the statutory language defining a “disabled adult.” We

disagree.

{¶29} Tabassum failed to object to the jury instruction of which he now complains.

Where a party has failed to raise an objection in the trial court, the objection may still be

assigned as error on appeal if a showing of plain error is made. State v. Hairston, 9th Dist. No.

05CA008768,

; Crim.R. 52(B). However, notice of a plain error is taken

with the utmost caution and only to prevent a manifest miscarriage of justice. State v. Bray, 9th

Dist. No. 03CA008241,

. Therefore, we will not reverse the trial court

decision unless it has been established that the trial court outcome clearly would have been

different but for the alleged error.

{¶30} Here, the trial court instructed the jury that a disabled adult is “a person who is 18

years of age or older who has some impairment of body or mind that makes the person unfit to

work at any substantially remunerative employment that the person otherwise would be able to

perform and that will, with reasonable probability, continue for a period of at least 12 months 11

without any present indication of recovery from the impairment, or who is 18 years of age or

older and has been certified as permanently and totally disabled by an agency of the State or the

United States that has the function of so classifying persons.” Tabassum argues that the court

erred by utilizing the word “unfit” in the instructions, instead of the term “unable," as used in the

statutory definition. Tabassum argues that this alleged error is “plain error now because not only

has the first part of the statute been rendered wrong but also the statutory language says ‘and’

which requires certification where none was given in this case.”

{¶31} However, as set forth in our discussion of Tabassum’s first and second

assignments of error, the statutory definition provides that a disabled adult is a person eighteen

years of age or older who suffers from an impairment of the type therein set forth “or” who has

been certified as disabled by an appropriate state or federal agency. R.C. 2913.01(D)(D). In

regard to the trial court’s use of the term “unfit” instead of “unable,” the dictionary definitions of

these words is very similar. Webster’s definition of “unfit” includes “incapable” and

“incompetent;” whereas its definition of “unable” likewise includes “incapable” and

“incompetent.” Merriam-Webster's Eleventh Collegiate Dictionary (2005) 1359, 1367.

Therefore, we cannot say that the trial court use of the term “unfit” instead of “unable”

constituted plain error. In any event, Tabassum has provided no indication of how the result of

the trial would have been different if the trial court had utilized the term “unable.” Accordingly,

Tabassum’s third assignment of error is overruled.

ASSIGNMENT OF ERROR V

“[] TABASSUM WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS BECAUSE OF PROSECUTORIAL MISCONDUCT AT TRIAL AND DURING CLOSING ARGUMENT WHEN HE PRESENTED HYPOTHETICALS DURING THE TRIAL WHICH HAD NO BASIS IN FACT OR LAW 12

ASSOCIATED WITH THIS CASE AND ONLY SERVED TO PREJUDICE OR BIAS THE JURY.”

{¶32} In his fifth assignment of error, Tabassum argues that he was denied a fair trial

because the State engaged in prosecutorial misconduct when it utilized a hypothetical situation

during redirect examination of Morris. We disagree. Although Tabassum further sets forth

alleged prosecutorial misconduct during closing arguments in his assignment of error, he has

provided no argument on this point, and, accordingly, we will limit our discussion to the

purported prosecutorial misconduct during redirect examination. See App.R. 16(A)(7) and

App.R. 12(A)(2).

{¶33} “The conduct of a prosecuting attorney during trial cannot be made a ground of

error unless that conduct deprives the defendant of a fair trial.” State v. Papp (1978),

. The defendant must show that there is a reasonable probability that but for the

prosecutor’s misconduct, the result of the proceeding would have been different. State v. Loza

(1994),

. Here, in support of his argument, Tabassum cites to the following

questions posed by the prosecution during redirect examination of Morris:

“Q. I think you just talked about, on cross, how[ ]Tabassum could make the claim on the ticket, right, to a bank?

“A. Yes.

“Q. And, in fact, we talked in direct that he did fill out a claim for the ticket?

“A. Yes.

“Q. Based on your knowledge of the lottery, does anything prevent[ ] Tabassum from having paid somebody $700 for that ticket, kept it, and then made the claim himself to you at the bank?

“A. There’s rules regarding that.

“Q. Aside from the rules, if he had done that, would it look like, as far as your paperwork says, that he claimed the $1000 ticket? 13

“A. Yes.”

At this point, the defense objected on the basis that the questioning was purely hypothetical, and

the court overruled the objection.

{¶34} Assuming without deciding that the hypothetical question was improper, we

cannot say that it deprived Tabassum of a fair trial. Tabassum has failed to demonstrate that

there is a reasonable probability that but for the prosecutor’s use of the above quoted

hypothetical during redirect examination, the result of the proceeding would have been different.

See Loza,

. Accordingly, Tabassum’s fifth assignment of error is overruled.

ASSIGNMENT OF ERROR VI

“THE PROSECUTION HAD OPEN FILE DISCOVERY, WHICH REQUIRED THE PROSECUTION TO GIVE TO THE DEFENSE ANY EXCULPATORY EVIDENCE IT MAY HAVE. I[N] THIS CASE, THE SIGNED LOTTERY TICKET WAS IN THE KNOWLEDGE OF THE PROSECUTION BUT WAS NOT MADE AVAILABLE TO THE DEFENSE FOR REVIEW.”

{¶35} In his final assignment of error, Tabassum argues that the prosecution failed to

provide the signed lottery ticket, which he alleges was exculpatory evidence. We disagree.

{¶36} Crim.R. 16(B), provides in relevant part,

“Upon receipt of a written demand for discovery by the defendant, and except as provided in * * * this rule, the prosecuting attorney shall provide copies or photographs, or permit counsel for the defendant to copy or photograph, the following items related to the particular case indictment, information, or complaint, and which are material to the preparation of a defense, or are intended for use by the prosecuting attorney as evidence at the trial, or were obtained from or belong to the defendant, within the possession of, or reasonably available to the state[.]”

{¶37} “Potentially exculpatory evidence subject to disclosure under Crim.R. 16 is

material ‘only if there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.’” State v. Iacona (Mar. 15,

2000), 9th Dist. No. CA 2891-M, at *5, quoting State v. Johnston (1988),

. 14

{¶38} We observe that Tabassum’s argument is predicated upon the assumption that the

State actually had possession of the lottery ticket. However, there is nothing in the record that

suggests that the State possessed and also withheld the lottery ticket from pretrial discovery.

Furthermore, the theory of the prosecution did not turn upon who signed the lottery ticket.

Morris acknowledged that winning tickets are often not signed. Further, Tabassum has not

established how production of the signed ticket would demonstrate who purchased the ticket and

who was entitled to its winnings. Therefore, we cannot say that the signed lottery ticket was

material, as Tabassum has not shown that there is a reasonable probability that disclosure of the

signed ticket would have changed the outcome of the proceeding. See Johnston, 39 Ohio St.3d

at paragraph five of the syllabus. Accordingly, Tabassum’s sixth assignment of error is

overruled.

III.

{¶39} Tabassum’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is 15

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

CARLA MOORE FOR THE COURT

BELFANCE, P. J. DICKINSON, J. CONCUR

APPEARANCES:

LYDIA EVELYN SPRAGIN, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.