[Cite as State v. Lenard,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 105998

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

RICHARD LENARD

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART; VACATED IN PART; AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-15-599742 and CR-16-602457-A

BEFORE: Keough, J., E.T. Gallagher, P.J., and Celebrezze, J.

RELEASED AND JOURNALIZED: August 23, 2018 ATTORNEY FOR APPELLANT

Joseph V. Pagano P.O. Box 16869 Rocky River, Ohio 44116

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor By: Jonathan Block Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 KATHLEEN ANN KEOUGH, J.:

{¶1} Defendant-appellant, Richard Lenard, appeals his convictions and sentence. For the

reasons that follow, we affirm in part, vacate in part, and remand for further proceedings.

I. Procedural History and Facts

{¶2} In Cuyahoga C.P. No. CR-15-599742, Lenard was named in a six-count indictment

charging him with securing writings by deception, identity fraud, tampering with records, theft,

and two counts of forgery. An elderly and value specification was attached to some of the

counts. In Cuyahoga C.P. No. CR-16-602457, Lenard was named in a three-count indictment

charging him with burglary, grand theft, and securing writings by deception. A value

specification was attached to two of the counts. The cases stem from real estate transactions in

Euclid and Parma where Lenard acted as the seller or an agent to the seller. The cases were

consolidated over objection and tried before a jury where the following evidence was presented;

additional facts will be discussed within the relevant assignments of error.

A. The Euclid Property

{¶3} In early 2015, Philip Ray Bentley (“Philip”) wanted to make a property investment

as part of his wife’s retirement plan (collectively, “the Bentleys”). Philip testified that he found

a home in Euclid, Ohio listed on Craigslist, and called the contact — Ryan Smith. According to

Philip, Smith told him that he was selling the home on behalf of his uncle. Smith gave Philip

the combination to the lockbox on the home’s door, and Philip went to the property with his son.

According to Philip, the house had extensive water damage and black mold. Nevertheless,

Philip offered Smith $13,000 to purchase the residence, which Smith accepted.

{¶4} The Bentleys met Smith at a restaurant in Twinsburg for Philip’s wife, Blanche, to

sign a purchase agreement. Blanche testified that she did not really understand the document, but just signed it after her husband reviewed it and advised her to sign. She stated that she

voluntarily signed the purchase agreement on April 25, 2015, and it was her understanding that

they were buying a house.

{¶5} At the suggestion of Smith, the Bentleys used General Title Services. Michael Gray

from the title company contacted Philip, and based on the conversation, Philip believed that a

title search of the property would be performed. A few days later, Smith called the Bentleys to

arrange a meeting at his Beachwood office for the payment of $3,000 earnest money. Philip

testified that he met with a woman named Maria and presented her with a $3,000 check made

payable to General Title Services. Subsequently, Smith contacted Philip and advised that the

contract on the house was ready to close. Philip was instructed to bring two checks to closing

— one for $771 payable to General Title Services, and the other for $10,000 payable to Riviera

Funding.

{¶6} On May 11, 2015, the Bentleys met with Maria and a notary public. The checks

were given to Maria, and Blanche voluntarily signed the closing disclaimer after Philip reviewed

the documents and advised her to sign them. According to Philip, he was told by Smith, Gray,

and Maria that there were no liens on the property, and that the lien listed on the closing

disclaimer had been removed. Philip testified that based on these assertions, he believed the

house passed the title search. The Bentleys both testified that they believed they purchased the

Euclid property after this meeting.

{¶7} The Bentleys invested $4,000 to start repairing their home. A few weeks later,

however, the Bentleys received a foreclosure notification regarding the property. Philip called

Smith, who told him there was no need for concern because the notification involved his uncle’s

credit card. Later, however, Philip discovered an $80,000 lien on the property and that the true owner was Bank of America. He stated that he tried to contact Smith again, but Smith’s

telephone number was no longer in service. The Bentleys had to abandon the property.

{¶8} Believing that the sale of the house was fraudulent, Philip started his own

investigation and discovered that Riviera Funding was owned by Richard Lenard. After

speaking with the notary who was present at closing, he learned that a man named “Richard” was

involved in flipping houses. Based on this information, Philip searched for a “Richard Lenard”

on Facebook, and his search revealed a Richard Lenard whom he recognized and knew as “Ryan

Smith.” The Bentleys subsequently filed a report with Beachwood police.

{¶9} Detective Allan Baumgartner testified that he investigated the Bentleys’ complaint

against Ryan Smith a.k.a. Richard Lenard. As part of his investigation, he reviewed auditor

records and the documents provided by the Bentleys that the seller, Antoun Saydeh (“Saydeh”)

signed. He contacted Saydeh and questioned him about the details of the property, reviewed

documentation that Saydeh allegedly signed, and presented Saydeh with surveillance

photographs taken from Huntington Bank. Based on his investigation, Detective Baumgartner

believed the real estate transaction was fraudulent.

{¶10} Saydeh testified that in early 2005 he was contacted by the bank regarding his

Euclid property. He was advised that if he signed a quitclaim deed, his property foreclosure

would be completed. Saydeh testified that he met with Richard Kelly (“Kelly”), who presented

him with a quitclaim deed, which he signed. Surveillance still-photographs showed Saydeh at

Huntington Bank with the man he knew as Kelly. When presented with documents pertaining

to lead-based paint and residential property disclosures, and a standard purchase agreement,

Saydeh testified that the signature on the documents was not his. He stated that he did not sign or authorize anyone to sign those documents on his behalf. At trial, Saydeh identified Lenard as

the man he knew as Kelly.

{¶11} Maria Mhoon testified that she was hired by Lenard to facilitate real estate

transactions. At Lenard’s request, she would meet with individuals, present them with

documentation to sign, and collect any checks. Specific to the Bentleys, she stated that she met

with the Bentleys at Lenard’s instruction and presented them with documentation to sign. She

stated she accepted checks from them and also presented them with a check. Mhoon testified

that she gave all signed documents and checks to Lenard.

B. The Parma Property

{¶12} In 2014, Milolijub Matic (“Matic”) wanted to purchase a home for his daughter and

granddaughter. He saw an internet advertisement regarding a home for sale in Parma, Ohio.

He met with Richard Lenard, managing member of AMC Financial, who showed him the

property and subsequently negotiated an agreement to purchase the home. Matic agreed to a

land-sale contract to purchase the home for $34,000, with $15,000 as a down payment with an

agreement to pay $1,000 per month for one year. At the end of the year, a balloon payment of

$7,900 was required. Matic presented Lenard with a cashier’s check for $15,150 payable to

Cleveland Title Agency, and then made the monthly $1,000 payments payable to AMC Financial.

{¶13} When Lenard requested the balloon payment at the end of September 2015, Matic

became suspicious because he received documentation from Lenard that he did not remember

signing. Matic consulted with attorney Alex Rakic, who advised him that Midland Bank had a

lien against the property. The bank ultimately took possession of the Parma property. Matic

testified that he had to purchase the property from the bank to become the rightful owner. As part of the police investigation, Matic was presented with a photo array from which he identified

Lenard as the man who sold him the home.

{¶14} Attorney Rakic testified that his research revealed the presence of a lien on the

property, that the land-contract agreement between AMC Financial and Matic was never

recorded with the county auditor’s office, and that AMC Financial was not a registered company

with the Ohio secretary of state.

{¶15} At the close of the state’s case, the trial court granted Lenard’s Crim.R. 29 motion

for acquittal on the burglary offense as charged in Count 1 in CR-16-602457 (Parma case). The

jury found Lenard guilty of the remaining counts of grand theft and securing writings by

deception, including the furthermore specifications attendant to both counts that the value of the

property was $7,500 or more but less than $150,000.

{¶16} In CR-15-599742 (Euclid case), the jury found Lenard not guilty of identity fraud

and one count of forgery, but guilty of the remaining counts — securing writings by deception,

tampering with records, theft, and forgery. In each of those counts, the jury found that the

value of the property was $7,500 or more but less than $37,500, but found that the victim was not

an elderly person, making the offenses fourth-degree felonies.

{¶17} The trial court sentenced Lenard to 12 months in CR-15-599742 to be served

consecutively to 12 months imposed in CR-16-602457. The sentences were also ordered

consecutive to cases unrelated to this appeal — CR-15- 597800 (16 months), CR-15-602350 (6

years), and CR-15-602274 (7 years) — for a total sentence of 16 years and 4 months.

Additionally the court ordered restitution in the amount of $13,000 to the Bentleys, and $27,000

to Matic.

{¶18} Lenard now appeals, raising eight assignments of error. II. Other Acts Evidence

{¶19} Prior to trial, the state filed a notice of intent to introduce other acts evidence

pursuant to Evid.R. 404(B), specifically to introduce testimony through Detective David Sword,

that Lenard used an alias in these cases that he also used in a prior real estate transaction in North

Royalton where theft was alleged. The state maintained that the evidence would show a pattern

of activity and an intent to defraud. The defense objected, contending that the evidence would

be unduly prejudicial. The trial court granted the state’s request, but limited the testimony only

to the North Royalton matter. In his first assignment of error, Lenard contends that the trial

court erred by allowing this testimony.

{¶20} “The trial court has broad discretion in the admission and exclusion of evidence,

including evidence of other acts under Evid.R. 404(B).” State v. Kirkland,

,

,

, citing State v. Morris,

,

,

, ¶ 22. Reviewing courts should be “slow to interfere” unless

the trial court “clearly abused its discretion and the defendant has been materially prejudiced

thereby[.]” State v. Hymore,

,

(1967). “Abuse of

discretion” is an “‘unreasonable, arbitrary, or unconscionable use of discretion, or as a view or

action that no conscientious judge could honestly have taken.’”

, quoting State

v. Brady,

,

,

.

{¶21} Evid.R. 404(B) provides that evidence of other crimes, wrongs, or acts is permitted

to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or the

absence of mistake or accident. Additionally, R.C. 2945.59 provides that:

[i]n any criminal case in which the defendant’s motive or intent, the absence of

mistake or accident on his part, or the defendant’s scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive

or intent, the absence of mistake or accident on his part, or the defendant’s

scheme, plan, or system in doing the act in question may be proved, whether they

are contemporaneous with or prior or subsequent thereto, notwithstanding that

such proof may show or tend to show the commission of another crime by the

defendant.

{¶22} In deciding whether to admit other acts evidence, trial courts should conduct a

three-step analysis:

The first step is to consider whether the other acts evidence is relevant to making

any fact that is of consequence to the determination of the action more or less

probable than it would be without the evidence. * * * The next step is to consider

whether evidence of the other crimes, wrongs, or acts is presented to prove the

character of the accused in order to show activity in conformity therewith or

whether the other acts evidence is presented for a legitimate purpose, such as

those stated in Evid.R. 404(B). The third step is to consider whether the

probative value of the other acts evidence is substantially outweighed by the

danger of unfair prejudice.

State v. Williams,

,

,

.

{¶23} Applying this test to the challenged testimony, we find no abuse of discretion by

the trial court. First, Lenard’s use of the same fictitious name in a prior real estate transaction in

North Royalton is relevant to refute Lenard’s defense that he was an innocent party receiving the

blame for actions the Bentleys, Saydeh, and Matic knowingly undertook. The testimony

demonstrated that Lenard had knowledge of his actions. The evidence was also introduced for a valid purpose — to prove identity, an absence of mistake, and provided context in identifying

Lenard.

{¶24} Finally, the probative value is not outweighed by any unfair prejudice, and Lenard

fails to identify how he was prejudiced by this testimony. The trial court mitigated any potential

prejudice by providing prior to Detective Sword’s testimony a limiting instruction that ordered

the jury to not consider other acts evidence for any improper purpose. (Tr. 803-804.) The court

also gave the jury a final instruction regarding other acts evidence. (Tr. 1000-1001.) It is

presumed that the jury followed these limiting instructions. See State v. Jones,

,

,

.

{¶25} Accordingly, the trial court did not abuse its discretion in allowing this other acts

testimony. Lenard’s first assignment of error is overruled.

III. Pretrial Identification

{¶26} Lenard contends in his second assignment of error that the trial court erred by

admitting Matic’s pretrial identification when he was unable to identify Lenard in court. Lenard

makes two arguments: (1) that the admission of the photo array was improper because the exhibit

was not authenticated; and (2) Matic’s pretrial identification was unduly suggestive.

{¶27} Matic’s inability to identify Lenard at trial is irrelevant. Generally, there is no

requirement that a witness must make an in-court identification of a defendant in criminal cases

because the accused’s identity can be established through direct or circumstantial evidence. In re

A.W., 8th Dist. Cuyahoga No. 103269,

, citing State v. Collins, 8th Dist.

Cuyahoga No. 98350,

; State v. Lawwill, 12th Dist. Butler No.

CA2007-01-014,

. {¶28} Evid.R. 901 requires the authentication or identification of evidence as a condition

precedent to admissibility. Testimony of a witness with knowledge “that a matter is what it is

claimed to be” is sufficient to authenticate the purported evidence. Evid.R. 901(B)(1). Courts

have interpreted this subsection of the rule to allow “any competent witness who has knowledge

that a matter is what its proponent claims may testify to such pertinent facts, thereby establishing,

in whole or in part, the foundation for identification.” State v. Black, 7th Dist. Mahoning No. 16

MA 0085,

, quoting TPI Asset Mgt. v. Conrad-Eiford,

,

,

(2d Dist.). We review the court’s ruling on the

adequacy of authentication for an abuse of discretion. State v. Bowling, 8th Dist. Cuyahoga No.

93052,

, ¶ 33, citing State v. Easter,

,

(4th Dist. 1991).

{¶29} In this case, Matic testified that state’s exhibit No. 75 was the photo array he was

shown at the Parma police station after making his report. He recalled that he was asked to

identify the person who sold him the Parma property. Matic testified that he made a circle

underneath the identified photograph. And Detective John Porec testified that he investigated

the report made by Matic regarding the sale of the Parma real estate. He stated that he met with

Matic, and a blind administrator presented Matic with a photo array that included Lenard’s

picture. According to Detective Porec, Matic identified Lenard from the photo array. The

photo array was therefore properly admitted.

{¶30} Lenard also contends on appeal that the photo array identification was unduly

suggestive. This argument was not a basis for Lenard’s objection below, thus waiving all but

plain error on appeal. We find no plain error because Detective Porec explained how the photo

lineup was created, and the lineup was presented to Matic through the use of a blind administrator. Matic selected the individual he believed to be Lenard based on his interactions

with Lenard during the purchase of the Parma property. The totality of circumstances

demonstrate that the identification was reliable. Moreover, Matic was subject to

cross-examination during trial and any alleged defect or unreliability with his photo array

identification could have been questioned.

{¶31} Accordingly, Lenard’s second assignment of error is overruled.

IV. Sufficiency of the Evidence

{¶32} Lenard contends in his third assignment of error that his convictions are not

supported by sufficient evidence, and the trial court erred by denying his motions for acquittal.

{¶33} A Crim.R. 29 motion challenges the sufficiency of the evidence. The test for

sufficiency requires a determination of whether the prosecution met its burden of production at

trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266,

, ¶ 12. 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. State v.

Murphy,

,

(2001). “‘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. Walker,

,

,

, ¶ 12, quoting State v. Jenks,

,

(1991), paragraph two of the syllabus

A. The Euclid Property {¶34} Lenard was convicted of three offenses pertaining to the Euclid property —

securing writings by deception in violation of R.C. 2913.43(A), tampering with records in

violation of R.C. 2913.42(A)(1), and theft in violation of R.C. 2913.02(A)(3).1

{¶35} Lenard contends that insufficient evidence was presented to support his convictions

regarding the property because (1) Philip did not sign any of the Euclid property documents, (2)

the documents that Blanche voluntarily signed disclosed (a) the lien and the pending foreclosure

action on the Euclid property and (b) that only a quitclaim deed, rather than a warranty deed,

would be executed; (3) Saydeh voluntarily signed a quitclaim deed as provided for in the

purchase agreement; and (4) any statements regarding the status of the lien on the property was

made by Mhoon and thus, cannot be attributed to him. We discern from these statements that

Lenard contends that the state failed to prove the element of deceit.

{¶36} Pursuant to R.C. 2913.01(A), “deception” is defined 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.

{¶37} In Count 1, Lenard was convicted of securing writings by deception, which

pursuant to R.C. 2913.43 prohibits a person, by the use of deception, to cause another to execute

any writing that disposes of or encumbers property, or by which a pecuniary obligation is

incurred. In Count 4, Lenard was convicted of theft, which pursuant to R.C. 2913.02(A)(3),

1 We need not address the finding of guilt as to the forgery charge in Count 5 because that offense merged with the theft offense in Count 4, and the state elected that Lenard be sentenced on Count 4. See State v. Ramos, 8th Dist. Cuyahoga No. 103596,

(when counts in an indictment are allied offenses and there is sufficient evidence to support the offense on which the state elects to have the defendant sentenced, the reviewing court need not consider the sufficiency of the evidence on the count that is subject to merger because any error would be harmless); State v. Rucker, 8th Dist. Cuyahoga No. 105628,

. provides that “[n]o person, with purpose to deprive the owner of property or services, shall

knowingly obtain or exert control over either the property or services * * * (3) By deception.”

{¶38} Lenard’s contention that Philip did not sign any of the real estate documents is

irrelevant because both Philip and Blanche were the named victims. Sufficient testimony and

evidence was presented to prove that Blanche signed the real estate documents pertaining to the

Euclid property.

{¶39} Lenard’s “buyer beware” or “caveat emptor” defense does not apply. In a civil

context, caveat emptor only applies when the seller or vendor does not engage in fraud, despite

defects being open and discoverable. See Layman v. Binns,

,

(1988). “An action for fraud may be grounded upon the failure to fully disclose facts of a

material nature where there exists a duty to speak.”

.

{¶40} Although the documents Blanche signed disclosed the lien on the property and that

no title search would be performed, the jury saw that the documents contained two noticeably

different font and type sizes. The substantially smaller font size contained disclosures and the

disclaimers. Specific to the standard purchase agreement, the smaller font size reads that the

Title company does not “agree to or offer” any title services, including “title search(s).” The

disclaimer also stated that the buyer was “told by a representative at General Title Services LLC

of these facts.” Blanche and Philip both testified that no one from General Title told them a title

search would not be performed. The closing disclaimer also contains in the smaller font size

that a mortgage and foreclosure existed on the property. Viewing the evidence in the light most

favorable to the state, the jury could reasonably find that these documents presented by Lenard

were deceptive. {¶41} The state demonstrated that Lenard lied and deceived the Bentleys through the

entire real estate transaction. He lied about his name and that he was selling the property for his

uncle. He presented documentation to the Bentleys that he knew to be false. Even though the

documentation arguably disclosed all the defects in title, the evidence demonstrated that Lenard

had no authority to sell the property. Any statements made by Mhoon are attributed to Lenard

because she was acting at his direction at all times. Moreover, even though the quitclaim deed

was recorded, this does not make Lenard’s actions lawful or legal; Lenard took the Bentleys’

money through deception and false pretenses.

{¶42} In Count 3, Lenard was convicted of tampering with records in violation of R.C.

2913.42(A)(1), which provides that “[n]o person, knowing the person has no privilege to do so,

and with purpose to defraud or knowing that the person is facilitating a fraud, shall * * * (1)

Falsify, destroy, remove, conceal, alter, deface, or mutilate any writing, computer software, data,

or record.”

{¶43} Lenard knew he was not a representative of the bank, and that Saydeh did not have

authority to sell the property because Saydeh had surrendered the property to the bank through a

bankruptcy years prior. Moreover, sufficient evidence was presented that Lenard did not have

permission to sign Saydeh’s name to the residential property forms, the standard purchase

agreement, or the lead-based paint addendum. Accordingly, sufficient evidence was presented

to prove the offenses regarding the Euclid property.

{¶44} Lenard also contends that the degrees of the offenses were not supported by the

jury verdicts. A furthermore specification was attached to Counts 1 and 4, wherein it was

alleged that Lenard committed these offenses against an elderly person and the value was

between $7,500 and $37,500. A finding of both would enhance an otherwise fifth-degree felony to a felony of the third degree. The jury found that the victim was not elderly but that the value

was between $7,500 and $37,500. Lenard maintains that the specification was an all-or-nothing

specification to warrant enhancing the degree of the offenses, meaning that the jury had to find

that the victim was elderly and the value of the property. We disagree.

{¶45} In State v. Jennings, 8th Dist. Cuyahoga No. 99631,

, this court

modified a defendant’s theft conviction that contained a specification that the victim was elderly

and that the value of the property was between $1,000 and $7,500. Adding the furthermore

clause enhanced the degree of the theft offense from a first-degree misdemeanor to a

fourth-degree felony. This court found that the state failed to prove that the victim was an

elderly person as defined under R.C. 2913.01(CC), but that the state presented sufficient

evidence of the theft offense and the value of the property being between $1,000 and $7,500.

Accordingly, this court modified the conviction to a fifth-degree felony, thus not applying an

“all-or-nothing” approach to the specification.

{¶46} Our review of the record shows that the jury was asked to make two independent

findings under the furthermore specification attendant to Counts 1 and 4 — whether the state

proved that the victim was elderly and the value of the amount pilfered was between $7,500 and

$37,500. The jury’s finding that the value was over $7,500, but under $37,500, was sufficient to

enhance the degree of the offense from a fifth-degree felony to a felony of the fourth degree.

B. The Parma Property

{¶47} Regarding the Parma property, Lenard was convicted of two offenses — securing

writings by deception in violation of R.C. 2913.43(A); and theft in violation of R.C.

2913.02(A)(3). Lenard contends that insufficient evidence was presented to support his

convictions regarding the property because the documents that Matic signed voluntarily disclosed a lien on the property, he moved into the residence, and he made payments pursuant to the terms

of the installment contract. Again, Lenard maintains no deception occurred.

{¶48} The record reflects that Lenard employed the same tactics with Matic as he did

with the Bentleys. He held himself out as the seller of the home, when in fact, he was not the

owner. Lenard’s false and deceptive statements induced Matic into signing a fictitious

agreement to purchase real estate. Matic testified that he was not made aware of the lien on the

property, and that he paid Lenard over $27,000 for property that Lenard did not own.

{¶49} Viewing the evidence in the light most favorable to the state, sufficient evidence

was presented supporting Lenard’s convictions in both cases. Accordingly, the assignment of

error is overruled.

V. Manifest Weight of the Evidence

{¶50} In his fourth assignment of error, Lenard contends that his convictions are against

the manifest weight of the evidence.

{¶51} In contrast to a sufficiency argument, a manifest weight challenge questions

whether the state met its burden of persuasion. Bowden, 8th Dist. Cuyahoga No. 92266,

, ¶ 12. A reviewing court “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.” State v. Thompkins,

,

(1997). A conviction should be reversed as against the manifest weight of

the evidence only in the most “exceptional case in which the evidence weighs heavily against the

conviction.”

{¶52} Although we review credibility when considering the manifest weight of the

evidence, we are cognizant that determinations regarding the credibility of witnesses and the

weight of the testimony are primarily for the trier of fact. State v. Bradley, 8th Dist. Cuyahoga

No. 97333,

, citing State v. DeHass,

,

(1967). The trier of fact is best able “to view the witnesses and observe their demeanor,

gestures, and voice inflections, and use these observations in weighing the credibility of the

proffered testimony.” State v. Wilson,

,

,

,

¶ 24. The jury may take note of any inconsistencies and resolve them accordingly, “believ[ing]

all, part, or none of a witness’s testimony.” State v. Raver, 10th Dist. Franklin No. 02AP-604,

, ¶ 21, citing State v. Antill,

, 67,

(1964).

{¶53} Lenard contends that his convictions pertaining to the Euclid property are against

the manifest weight of the evidence because Saydeh was not credible. Specifically, he argues

that Saydeh executed a quitclaim deed even though he surrendered the property to Bank of

America two years earlier in his bankruptcy proceeding. The jury was in the best position to

view Saydeh’s credibility and determine the weight to be given to his testimony based upon the

circumstances and facts presented at trial.

{¶54} Lenard also contends that his convictions are against the manifest weight of the

evidence for the same reasons he raised in his sufficiency challenge — the buyers knew what

they were signing and were on notice of the liens. For the same reasons previously discussed,

Lenard used deception to induce the Bentleys and Matic into executing documents to purchase

real estate that Lenard had no authority to sell. Lenard’s culpability cannot be diminished by the

victims’ innocent role in these cases. {¶55} This is not the exceptional case where the jury clearly lost its way and created such

a manifest miscarriage of justice that Lenard’s convictions must be reversed and a new trial

ordered. The jury’s verdict of finding Lenard not guilty of certain offenses and specifications

reveal that the jury reviewed the evidence, listened to the testimony, and held the state to its

burden. Accordingly, Lenard’s fourth assignment of error is overruled.

VI. Authentication of Business Records

{¶56} “‘Hearsay’ is a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Evid.R.

801(C). Pursuant to Evid.R. 802, hearsay is inadmissible unless it falls within one of the

exceptions listed in Evid.R. 803.

{¶57} Evid.R. 803(6) provides the “business records exception” to the hearsay rule and

states that the following records are not excluded by the hearsay rule:

memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or as provided by Rule 901(B)(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. (Emphasis added).

This rule allows the admission of business records if they are made in the course of a regularly

conducted business activity because the courts presume that such records are trustworthy given

the self-interest to be served by the accuracy of such entries. Weis v. Weis,

,

(1947).

{¶58} In his fifth assignment of error, Lenard contends that the trial court erred by

admitting and allowing Jim McKinley to authenticate business documents that he did not

personally obtain and because he was not the records custodian. Lenard contends that the trial court abused its discretion in admitting the documents because McKinley did not prepare the

exhibits and was not familiar with how the records were made or stored. We disagree;

McKinley was a qualified witness under Evid.R. 803(6).

{¶59} The phrase “other qualified witness” does not necessarily mean that the witness

must have firsthand knowledge of the transaction giving rise to the record. State v. Sherrills, 8th

Dist. Cuyahoga No. 89844,

; citing State v. Vrona,

,

(9th Dist. 1988).

Rather, it must be demonstrated that the witness is sufficiently familiar with the operation of the business and with the circumstances of the record’s preparation, maintenance, and retrieval, that he can reasonably testify on the basis of this knowledge that the record is what it purports to be, and that it was made in the ordinary course of business consistent with the elements of Rule 803(6).

Sherrills at

citing State v. Shaheen, 3d Dist. Hancock No. 5-97-03,

(July 29, 1997), citing State v. Patton, 3d Dist. Allen No. 1-91-12,

(Mar. 5, 1992).

{¶60} McKinley testified that for the past 16 years he has worked in the field of financial

investigations. Previously, he worked for Huntington Bank, but currently he works for U.S.

Bank as a financial crimes investigator. He testified that as part of his investigative duties, he

orders financial documentation through the bank’s systems and reviews surveillance videos.

{¶61} McKinley stated that still photos can be taken from video, and information on the

photograph will depict the branch where the video was taken, the time, and date. He testified

that the surveillance videos are electronically stored at U.S. Bank’s central office in Minnesota,

but that he can access these videos kept in their ordinary course of business through the computer

network system. McKinley then identified the still photographs taken from the surveillance

video at two U.S. Bank locations, one taken on May 11, 2015 and the other on April 28, 2015. He also identified the account documents for two accounts of which Lenard is the account holder

— General Title Services and Riviera Funding L.L.C. According to McKinley, these documents

are kept in U.S. Bank’s ordinary course of business to which he has access.

{¶62} Based on McKinley’s experience and duties at U.S. Bank, we find no abuse of

discretion in allowing him to identify and authenticate the still photographs and account records.

He did not testify about the contents of the documents, but only identified them as U.S. Bank

records.

{¶63} Even assuming that McKinley lacked the ability to authenticate the records, Lenard

has failed to demonstrate how he was prejudiced by the admission of the records. His defense

theory was that the buyers knew what they were voluntarily signing and therefore, no deception

occurred. He did not argue mistaken identity or that he was not the owner of General Title or

Riviera Funding.

{¶64} Moreover, even if the records were excluded, other overwhelming admissible

evidence was presented to support Lenard’s convictions. Accordingly, any error would be

harmless. See Crim.R. 52(A) (“any error, defect, irregularity, or variance which does not affect

substantial rights shall be disregarded”); State v. Williams,

,

(1983) (a reviewing court may overlook an error where the remaining admissible evidence,

standing alone, constitutes “overwhelming” proof of a defendant’s guilt). Lenard’s fifth

assignment of error is overruled.

VII. Discovery Violation

{¶65} Saydeh testified during trial that he was shown photographs of Lenard through an

email with a detective. At side-bar, defense counsel indicated that the emails between Detective

Baumgartner and Saydeh were not provided to him through discovery. Accordingly, counsel requested that either Saydeh’s testimony be stricken or a mistrial be granted. Following the

discussion, it was apparent that the prosecutor was also unaware of the email correspondence.

Copies of the emails in which Saydeh made a photo identification of Lenard and compared his

signatures were provided to the defense. The trial court determined that the least restrictive

sanction for the discovery violation was a continuance, and asked defense counsel how much

time he needed to review the documents and prepare. Counsel indicated he did not need

additional time and withdrew the motion, but reiterated his dissatisfaction with the detective

about withholding the information from all parties.

{¶66} In his sixth assignment of error, Lenard contends that the trial court erred by

denying his request to dismiss or strike Saydeh’s testimony based on the Crim.R. 16 violation.

Because the motion for a mistrial or to strike the testimony was withdrawn, the assignment of

error will be reviewed for plain error. In order to prevail under a plain error analysis, the

appellant bears the burden of demonstrating that the outcome of the trial clearly would have been

different but for the error. State v. Long,

,

(1978). Notice

of plain error “is to be taken with the utmost caution, under exceptional circumstances and only

to prevent a manifest miscarriage of justice.”

at paragraph three of the syllabus; Crim.R.

52(B).

{¶67} In this case, the trial court did not commit plain error. First, counsel withdrew his

motion after reviewing the emails. Additionally, the court offered counsel time to review the

documents and prepare accordingly; counsel declined the continuance. Finally, Lenard fails to

demonstrate that the outcome of the trial clearly would have been different. The emails between

the detective and Saydeh contained a photo identification and signature comparisons — identifications that Saydeh also made at trial. Accordingly, Lenard’s sixth assignment of error is

overruled.

VIII. Restitution Order

{¶68} Lenard contends in his seventh assignment of error that the trial court erred by

ordering restitution that is not supported by evidence of actual economic loss.

{¶69} A trial court has discretion to order restitution in an appropriate case and may base

the amount it orders on a recommendation of the victim, the offender, a presentence investigation

report, estimates or receipts indicating the cost of repairing or replacing property, and other

information, but the amount ordered cannot be greater than the amount of economic loss suffered

as a direct and proximate result of the commission of the offense. R.C. 2929.18(A)(1). A trial

court is required to conduct a hearing on restitution only if the offender, victim, or survivor

disputes the amount of restitution ordered. Id.; State v. Lalain,

,

,

, ¶ 27

{¶70} Prior to ordering restitution, “a sentencing court must engage in a ‘due process

ascertainment that the amount of restitution bears a reasonable relationship to the loss suffered.’”

State v. McLaurin, 8th Dist. Cuyahoga No. 103068,

, ¶ 13, quoting State v.

Borders, 12th Dist. Clermont No. CA2004-12-101,

. “The court must

determine the amount of restitution to a reasonable degree of certainty, ensuring that the amount

is supported by competent, credible evidence.” McLaurin at ¶ 13, citing State v. Warner,

,

(1990). Although the decision to impose restitution is

discretionary with the court, its determination of the amount of loss is a factual question that we

review under the competent, credible evidence standard. State v. Warner,

,

(1990); State v. Didion,

,

,

(3d Dist.).

{¶71} Lenard objected at sentencing to the restitution order, contending that no

documentation was presented to the court during sentencing to support the restitution order. On

appeal, Lenard makes a general statement, without explanation, that the restitution order does not

bear a reasonable relationship to the actual loss suffered.

{¶72} Our review of the record demonstrates that the court considered trial testimony

regarding the amounts paid to Lenard for the purchase of real estate. In State v. Kingsbury, 8th

Dist. Cuyahoga No. 102973,

, this court reviewed a restitution order that was

based on evidence not presented at a restitution hearing but on the testimony and documentary

evidence presented at trial. Therefore, as long as competent and credible evidence was

presented during trial upon which a restitution order could be based, a separate restitution hearing

may not be required.

{¶73} Nevertheless, we find that the restitution amount is not supported by the record,

and that the court did not consider Lenard’s ability to pay. In Kingsbury, this court concluded

that competent and credible evidence was presented to support a restitution award, but the

amount of restitution was not supported by the record. Id. at ¶ 18. This court found that this

unsupported amount, albeit likely a mathematical error, coupled with the trial court’s failure to

consider Kingsbury’s present and future ability to pay the restitution ordered, amounted to plain

error. Id. at ¶ 20.

{¶74} In this case, the documentation at trial showed that the Bentleys issued three

separate checks totaling $13,771 to entities owned by Lenard. The evidence demonstrated that

Lenard deposited those checks into his respective business accounts. However, the evidence also showed that a cashier’s check was presented to Blanche in the amount of $400 allegedly

from Saydeh. Additionally, testimony was presented that the Bentleys spent approximately

$4,000 in renovating the property. These amounts, if deemed relevant, were not considered by

the trial court in making the restitution order.

{¶75} Additionally, although Matic testified that he paid AMC Financial $27,000 towards

the purchase of the Parma property, the documentation at trial showed that Matic issued

numerous personal checks totaling only $11,000, and a cashiers check to Cleveland Title Agency

for $15,150. Additionally, the land contract depicts that an additional $100 deposit was paid.

When added together, these amounts do not equal the restitution order of $27,000. Moreover,

additional evidence was presented that Matic had to purchase the property from the bank in

order to obtain ownership. Whether Matic suffered any additional economic loss as a direct and

proximate cause of the commission of Lenard’s offenses during this subsequent purchase was not

considered.

{¶76} Finally, the trial court failed to consider Lenard’s present and future ability to pay

prior to ordering restitution as required pursuant to R.C. 2929.18. This court has previously held

that a court’s failure to make this consideration amounts to plain error. See, e.g., State v. Burns,

8th Dist. Cuyahoga No. 95465,

. We recognize that this issue was not raised on

appeal; however, because the record does not support the trial court’s restitution order and the

issue of restitution will be revisited on remand, this court finds that the trial court’s failure to

make this consideration is further grounds for reversal.

{¶77} Accordingly, the assignment of error is sustained. The restitution orders are

vacated, and the cases are remanded to the trial court to conduct a restitution hearing and

consider Lenard’s present and future ability to pay. IX. Consecutive Sentences

{¶78} In his eighth assignment of error, Lenard contends that his sentence is contrary to

law and that consecutive sentences were not properly imposed.

A. Contrary to Law

{¶79} Our review of felony sentences is governed by R.C. 2953.08(G)(2), which allows

“an appellate court [to] vacate or modify a felony sentence on appeal only if it determines by

clear and convincing evidence that the record does not support the trial court’s findings under

relevant statutes or that the sentence is otherwise contrary to law.” State v. Marcum,

,

,

, ¶ 1, 21. A sentence is not clearly and convincingly

contrary to law “where the trial court considers the purposes and principles of sentencing under

R.C. 2929.11 as well as the seriousness and recidivism factors listed in R.C. 2929.12, properly

applies post-release control, and sentences a defendant within the permissible statutory range.”

State v. A.H., 8th Dist. Cuyahoga No. 98622,

.

{¶80} Lenard’s sentences are not contrary to law. In CR-15-599742, he was sentenced to

12-month concurrent sentences on each of Counts 1, 3, and 4, all felonies of the fourth degree.

A 12-month sentence is within the permissible range for fourth-degree offenses. R.C.

2929.14(A)(4).

{¶81} Additionally, the sentence is not contrary to law because the trial court stated on

the record that it considered all relevant seriousness and recidivism factors (tr. 1066) and the

court included in its sentencing journal entry in each case that it considered all required factors

and that prison is consistent with the purpose of R.C. 2929.11. See, e.g., State v. Kamleh, 8th

Dist. Cuyahoga No. 97092,

, citing State v. Payne,

,

,

(trial court’s statement that it considered the required statutory factors, without more, is sufficient to fulfill its obligations under the sentencing

statutes). Accordingly, the trial court’s sentence is not contrary to law.

B. Consecutive Sentences

{¶82} Consecutive sentences may be imposed only if the trial court makes the required

findings pursuant to R.C. 2929.14(C)(4). State v. Bonnell,

,

,

. Under the statute, consecutive sentences may be

imposed if the trial court finds that (1) consecutive sentences are necessary to protect the public

from future crime or to punish the offender, and (2) consecutive sentences are not

disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses

to the public. In addition, the court must find that any of the following applies:

(1) the offender committed one or more of the multiple offenses while awaiting trial or sentencing, while under a sanction, or while under postrelease control for a prior offense;

(2) at least two of the multiple offenses were committed as part of one or more courses of the conduct, and the harm caused by two or more of the offenses was so great or unusual that no single prison term for any of the offenses committed as part of the courses of conduct adequately reflects the seriousness of the offender’s conduct; or

(3) the offender’s history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the offender.

{¶83} In order to impose consecutive sentences, the trial court must both make the

statutory findings mandated under R.C. 2929.14(C)(4) at the sentencing hearing and incorporate

those findings into its sentencing entry. Bonnell at the syllabus.

{¶84} In this case, the record reflects that the trial court both made the statutory findings

at the sentencing hearing and incorporated those findings into the sentencing entry. However,

Lenard does not challenge whether the court made the findings, but rather contends they are unsupported by the record. Specifically, he contends that the record does not support that the

harm was so great or unusual because (1) the victims voluntarily signed the documents that

disclosed the liens and foreclosure actions; (2) any “alleged harm * * * was preventable by

reading the documents”; and (3) Blanche paid only $13,000 for a house that had a much higher

market value. These arguments are absurd.

{¶85} Lenard chose to hold himself out as a person who had the authority to market and

sell these properties. But for his deceitful actions, the victims would not have been harmed.

Moreover, the Bentleys paid $13,000 for a house that they never owned, still do not own, and is

not in their possession; the market value of the house is irrelevant. Accordingly, Lenard’s

sentence is not contrary to law and consecutive sentences were properly imposed. The

assignment of error is overruled.

{¶86} Judgment affirmed in part, vacated in part, and remanded to the trial court to

conduct a restitution hearing and consider Lenard’s present and future ability to pay at that

hearing.

It is ordered that the parties share equally the 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 and a restitution hearing.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure. KATHLEEN ANN KEOUGH, JUDGE

EILEEN T. GALLAGHER, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR