[Cite as State v. Luton,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 106754

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

BRYAN LUTON

DEFENDANT-APPELLANT

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

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-605776-A

BEFORE: Celebrezze, J., E.A. Gallagher, A.J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: November 21, 2018 ATTORNEY FOR APPELLANT

Susan J. Moran 55 Public Square, Suite 1616 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor BY: Kelly Needham Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

FRANK D. CELEBREZZE, JR., J.:

{¶1} Defendant-appellant, Bryan Luton (“appellant”), brings the instant appeal

challenging his convictions for misuse of credit cards and grand theft. Specifically, appellant

argues that the state failed to establish that Cuyahoga County was the proper venue for the

criminal proceedings, and that his convictions were not supported by sufficient evidence and

against the manifest weight of the evidence. After a thorough review of the record and law, this

court affirms in part, modifies appellant’s misuse of credit cards conviction, vacates the trial

court’s sentence for misuse of credit cards, and remands for resentencing consistent with this

opinion.

I. Factual and Procedural History

{¶2} Appellant was employed by The Ridge Project, a nonprofit organization that

provides assistance to incarcerated individuals and their families, from approximately 2012 through 2015. Appellant held the position of caseworker facilitator. In this capacity, appellant

would visit prisons and halfway houses in Ohio and present The Ridge Project’s curriculum

regarding professional development and/or fatherhood. Appellant helped incarcerated

individuals as they reentered society by assisting them with employment and housing.

Appellant’s employment required a lot of traveling.

{¶3} When he first started his employment, appellant drove his personal vehicle to the

prisons and halfway houses that he visited. The Ridge Project would reimburse appellant for

the miles he drove. Eventually, The Ridge Project issued appellant a company vehicle and a

company credit card to purchase gasoline.1 On or around April 2014, The Ridge Project noticed

that appellant was using his company vehicle and company credit card for unauthorized

purposes.

{¶4} The Ridge Project took a closer look at appellant’s use of his company vehicle and

credit card and noticed additional discrepancies between the number of miles that appellant

actually drove and/or should have been driving, the number of miles appellant reported driving,

and the frequency with which appellant was purchasing gasoline with the company credit card.

For instance, appellant was purchasing gasoline and driving the company vehicle when he was on

vacation.

{¶5} The Ridge Project’s fiscal officer, Melissa Thomas, was unable to reconcile the

discrepancies between (1) the amount of gasoline appellant was purchasing and the number of

miles appellant was actually driving, and (2) the amount of gasoline appellant should have been

purchasing and the number of miles he should have been driving. The Ridge Project’s

1 Although the credit card was primarily issued to purchase gasoline, appellant could use the credit card to purchase other employment-related items if he obtained The Ridge Project’s approval. (Tr. 25.) executive director and cofounder, Ron Tijerina, requested that appellant reimburse the

organization for the unauthorized purchases. Appellant did not comply with this request. As a

result, appellant’s employment was terminated.

{¶6} In Cuyahoga C.P. No. CR-16-605776-A, the Cuyahoga County Grand Jury returned

a two-count indictment on May 24, 2016, charging appellant with (1) misuse of credit cards, a

fourth-degree felony in violation of R.C. 2913.21(B)(2), and (2) grand theft, a fourth-degree

felony in violation of R.C. 2913.02(A)(2). Appellant was arraigned on June 14, 2016. He

pled not guilty to the indictment.

{¶7} Appellant waived his right to a jury trial and elected to try the case to the bench. A

bench trial commenced on December 11, 2017. The state presented the testimony of three

witnesses: (1) Tijerina, (2) Thomas, and (3) The Ridge Project’s director, Japhet Ntia.

Appellant’s wife testified on behalf of the defense. At the close of trial, the trial court found

appellant guilty on both counts.

{¶8} On January 11, 2018, the trial court sentenced appellant to community control

sanctions for a period of five years on each count. The trial court ordered the counts to run

concurrently. Finally, the trial court ordered appellant to pay restitution to The Ridge Project in

the amount of $11,080.52.

{¶9} On January 23, 2018, appellant filed the instant appeal challenging his convictions.

He assigns three errors for review:

I. The state failed to establish venue sufficient to sustain appellant’s convictions.

II. The state failed to present sufficient evidence of the offenses charged.

III. Appellant’s conviction is against the manifest weight of the evidence.

II. Law and Analysis A. Venue

{¶10} In his first assignment of error, appellant argues that the state failed to establish

that Cuyahoga County was the proper venue for the misuse of credit cards and grand theft

offenses charged in the indictment.

Venue refers to the proper place in which to try a criminal matter. Under Article I, Section 10 of the Ohio Constitution and R.C. 2901.12, “evidence of proper venue must be presented in order to sustain a conviction for an offense.” State v. Hampton,

,

,

. Article I, Section 10 of the Ohio Constitution provides, in relevant part: “In any trial, in any court, the party accused shall be allowed * * * a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.” Former R.C. 2901.12(A) provides: “The trial of a criminal case in this state shall be held in a court having jurisdiction of the subject matter, and in the territory of which the offense or any element thereof was committed.”

Venue is not a material element of an offense charged, but it is, nevertheless, a fact the state must prove beyond a reasonable doubt in a criminal prosecution unless it is waived by the defendant. State v. Headley,

,

(1983), citing State v. Draggo,

,

(1981). “‘A conviction may not be had in a criminal case where the proof fails to show that the crime alleged in the indictment occurred in the county where the indictment was returned.’”

, quoting State v. Nevius,

,

(1947), paragraph three of the syllabus.

State v. May,

,

, ¶ 20-21 (8th Dist.).

{¶11} In the instant matter, we initially note that it is undisputed that appellant used his

company credit card in Cuyahoga County. Appellant’s credit card purchases were not,

however, limited to Cuyahoga County.

{¶12} At the time appellant was employed by The Ridge Project, he resided in South

Euclid, Ohio (Cuyahoga County). Appellant was not required to, and did not report to a

particular office of The Ridge Project on a daily basis. He spent a majority of his time traveling

to and from prisons and clients’ homes. {¶13} Based on the record before this court, it is unclear what office appellant was

assigned to work out of. Tijerina testified that appellant was assigned to The Ridge Project’s

Wooster, Ohio office (Wayne County). (Tr. 23.) On the other hand, Thomas testified that

appellant was assigned to The Ridge Project’s Canton, Ohio office (Stark County). (Tr. 66.)

Ntia testified that The Ridge Project is domiciled in Canton, Ohio. (Tr. 113.) The record

reflects that The Ridge Project also has an office in McClure, Ohio (Henry County).

{¶14} Tijerina explained that as part of his employment, appellant was required to travel

“[m]ainly in the Cuyahoga County area, Cleveland, and Wooster area, possibly in the other cities

around Cleveland.” (Tr. 23.) Appellant occasionally traveled to Richland Correctional

Institution, Grafton Correctional Institution, Lake Erie Correctional Institution, and Mansfield

Correctional Institution.

{¶15} Appellant argues that the state “failed to produce actual evidence that illegal

transactions occurred in Cuyahoga County,” and that the state’s witnesses and documentary

evidence failed to establish that the offenses charged in the indictment took place in Cuyahoga

County. Appellant’s brief at 4. Specifically, appellant contends that the state failed to

introduce receipts from the purportedly fraudulent credit card transactions, credit card statements

indicating where the transactions occurred, and failed to elicit testimony regarding the locations

where the transactions took place.

{¶16} After the state rested, defense counsel moved for a Crim.R. 29 judgment of

acquittal. The record reflects, however, that defense counsel’s motion was not premised on

venue grounds, but rather focused on whether the state met its burden of production and proved

the essential elements of the misuse of credit cards and grand theft offenses beyond a reasonable

doubt. Because appellant did not object to venue in Cuyahoga County at trial, he forfeited all but plain error. State v. Sylvester, 8th Dist. Cuyahoga No. 103841,

,

citing State v. Jackson,

,

,

.

{¶17} Pursuant to Crim.R. 52(B), “[p]lain errors or defects affecting substantial rights

may be noticed although they were not brought to the attention of the court.” A “[p]lain error is

an obvious error or defect in the trial proceedings that affects a substantial right. Under this

standard, reversal is warranted only when the outcome of the trial would have been different

without the error.” State v. Wilcox, 8th Dist. Cuyahoga No. 96079,

.

{¶18} The state is not required to prove venue in express terms. Rather, venue can be

established by the totality of the facts and circumstances of the case. State v. Price, 7th Dist.

Mahoning No. 14 MA 28,

, ¶ 36, citing State v. Chintalapalli,

,

,

; Headley,

,

; Hampton,

,

,

(“‘it is not essential that the venue

of the crime be proven in express terms, provided it be established by all the facts and

circumstances in the case, beyond a reasonable doubt, that the crime was committed in the

county and state as alleged in the indictment’”), quoting State v. Dickerson,

,

(1907), paragraph one of the syllabus.

{¶19} In this case, Ntia testified at trial that when the issues arose with appellant’s

company credit card, he went to the Canton Police Department to file a report. Ntia explained

that the Canton police advised him that he had to pursue the matter in Cuyahoga County because

that is where “the problems [with the fuel purchases] were made[.]” (Tr. 113-114.) Ntia

testified that he knew that the issues with the fuel purchases took place in Cuyahoga County

based on the receipts from the purchases. {¶20} Thomas testified that as part of her investigation of appellant’s credit card use, she

reviewed appellant’s timesheets, 2 accountability sheets, 3 credit card receipts, credit card

statements, and mileage reports, going all the way back to the beginning of appellant’s

employment in 2012. Thomas created spreadsheets of appellant’s fuel purchases based on the

data she obtained from these documents.

{¶21} The spreadsheets, which were introduced at trial as state’s exhibit Nos. 2, 3, and 4,

included information about the location of the fuel purchases. Thomas testified that she

determined where the fuel purchases were made by reviewing appellant’s credit card receipts.

{¶22} Thomas highlighted appellant’s suspicious transactions on the spreadsheets, for

instance, when appellant drove zero miles in between two fuel purchases. Finally, Thomas

explained that the investigation into appellant’s credit card use began in the first place based on

the following two transactions that occurred after appellant had driven zero miles: (1) a

September 14, 2015 transaction at “Marathon, Cleveland,” and (2) a September 19, 2015

transaction at “Shell, Cleveland.”

{¶23} Tijerina testified about three specific incidents during which appellant misused his

company credit card on April 23, 27, and 29, 2014. He explained that appellant was on

vacation from April 22, 2014 through April 29, 2014. However, appellant purchased gasoline

on three occasions during the period of time he was on vacation. On April 23 and 27, 2014,

appellant purchased fuel at “Speedway, Newburgh Hts.” On April 29, 2014, appellant

purchased fuel at “BP, Cleveland.”

2 Timesheets are documents in which appellant would record various times, such as when he left his house, arrived at a particular prison, finished his duties, and when he arrived home. (Tr. 93.)

3 Accountability sheets are documents in which appellant would describe, in more detail than timesheets, his daily activities, the locations he was at, and the number of miles he drove. (Tr. 91.) {¶24} Based on the testimony of Ntia, Thomas, and Tijerina, we find that the state

presented sufficient evidence to establish Cuyahoga County as the proper venue for the case.

Furthermore, we find that the state presented sufficient evidence to prove venue under R.C.

2901.12(H)’s course of criminal conduct provision.

{¶25} R.C. 2901.12(H), governing venue in criminal cases, provides,

When an offender, as part of a course of criminal conduct, commits offenses in different jurisdictions, the offender may be tried for all of those offenses in any jurisdiction in which one of those offenses or any element of one of those offenses occurred. Without limitation on the evidence that may be used to establish the course of criminal conduct, any of the following is prima-facie evidence of a course of criminal conduct:

(1) The offenses involved the same victim, or victims of the same type or from the same group.

(2) The offenses were committed by the offender in the offender’s same employment, or capacity, or relationship to another.

(3) The offenses were committed as part of the same transaction or chain of events, or in furtherance of the same purpose or objective.

(4) The offenses were committed in furtherance of the same conspiracy.

(5) The offenses involved the same or a similar modus operandi.

(6) The offenses were committed along the offender’s line of travel in this state,

regardless of the offender’s point of origin or destination.

(Emphasis added.)

{¶26} In this case, the state argues that the record contains sufficient evidence

demonstrating that appellant engaged in a course of criminal conduct pursuant to R.C.

2901.12(H) such that venue in Cuyahoga County was proper. Regarding the first factor, the

state argues that The Ridge Project was the victim of all of the fraudulent transactions.

Regarding the second factor, the state argues that appellant committed the offenses during his employment with The Ridge Project. Regarding the third and fourth factors, the state argues

that appellant committed the offenses in furtherance of the same purpose or objective and in

furtherance of the same conspiracy. Regarding the fifth factor, the state argues that the offenses

involved the same or similar modus operandi — using the company credit card at gas stations to

steal money from The Ridge Project.

{¶27} After reviewing the record, we find that at least two of the prima facie indicators

set forth in R.C. 2901.12(H) apply in this case. First, the misuse of credit cards and grand theft

offenses involve the same victim — The Ridge Project. Second, the offenses were committed

by appellant during his employment with The Ridge Project. Because the record demonstrates

that appellant engaged in a course of criminal conduct, we find that the state presented sufficient

evidence for a reasonable trier of fact to determine that venue in Cuyahoga County was proper.

{¶28} Based on the foregoing analysis, appellant’s first assignment of error is overruled.

B. Sufficiency

{¶29} In his second assignment of error, appellant argues that his convictions were not

supported by sufficient evidence.

{¶30} A challenge to the sufficiency of the evidence supporting a conviction requires a

determination of whether the state met its burden of production. State v. Hunter, 8th Dist.

Cuyahoga No. 86048,

, citing State v. Thompkins,

,

(1997). When reviewing 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 proven beyond a

reasonable doubt.’” State v. Leonard,

,

,

, ¶

77, quoting State v. Jenks,

,

(1991), paragraph two of the syllabus. In a sufficiency inquiry, an appellate court does not assess whether the state’s

evidence is to be believed, but whether, if believed, the evidence admitted at trial supported the

conviction.

.

1. Thomas’s Spreadsheets

{¶31} As an initial matter, we must address appellant’s arguments regarding the

spreadsheets of his fuel transactions that Thomas created. Appellant repeatedly contends that

Thomas’s spreadsheets were not actual evidence of his fuel transactions, but merely summaries

of the fuel transactions.

{¶32} Appellant also raises several arguments regarding the spreadsheets and Thomas’s

testimony that pertain to the manifest weight of the evidence and are not properly raised in a

sufficiency context. These arguments, which pertain to the credibility of the spreadsheets and

Thomas’s trial testimony rather than admissibility, will be addressed in further detail in the

analysis of appellant’s third assignment of error.

{¶33} After reviewing the record, we find that appellant invited any error with respect to

the admission of the spreadsheets or the trial court’s consideration of the spreadsheets. The

record reflects that defense counsel did not object to the admission of the spreadsheets at trial.

In fact, defense counsel stipulated to the admission of these exhibits. (Tr. 8.) Defense counsel

merely asked the trial court to consider that the spreadsheets were “internal documents generated

by The Ridge Project itself. They are not financial documents from financial institutions, rather

they’re an internal auditing.” (Tr. 8.) By stipulating to the admission of Thomas’s

spreadsheets, any error with respect to the trial court’s admission or consideration of the

spreadsheets was invited by appellant. {¶34} Pursuant to the invited error doctrine, “a party will not be permitted to take

advantage of an error that he himself invited or induced the trial court to make.” State ex rel.

The V Cos. v. Marshall,

,

(1998). This doctrine applies

when defense counsel ‘“was actively responsible’ for the trial court’s error” or “when a party has

asked the court to take some action later claimed to be erroneous[.]” State v. Campbell,

,

(2000), quoting State v. Kollar,

, 91,

(1915). “Invited error extends to stipulations.” State v. Franks, 8th Dist. Cuyahoga

No. 103682,

, ¶ 8, citing State v. McClendon, 10th Dist. Franklin No. 11AP-354,

, ¶ 37; see also Savage v. Savage, 4th Dist. Pike No. 15CA856,

, citing State v. Rogers,

,

,

(“[b]y stipulating to the admission of the [guardian ad litem’s] report, [appellant]

waived any error in its admission instead of merely forfeiting it by failing to timely assert an

objection.”). (Emphasis added.)

{¶35} Assuming, arguendo, that the invited error doctrine did not apply in this case, we

find no merit to appellant’s challenge to the trial court’s admission or consideration of the

spreadsheets. The state was not required to retain a forensic accountant or an expert witness to

review the purchases appellant made with his company credit card and take the information from

appellant’s accountability sheets, timesheets, credit card receipts, mileage reimbursement logs,

and credit card statements, and compile the information into a spreadsheet. These tasks were

well within Thomas’s purview as fiscal officer.

{¶36} For all of the foregoing reasons, we find no merit to appellant’s challenges to the

admission of Thomas’s spreadsheets or testimony, or the trial court’s consideration thereof.

2. Misuse of Credit Cards {¶37} First, appellant challenges his conviction for misuse of credit cards. Appellant

was convicted of misuse of credit cards in violation of R.C. 2913.21(B)(2), which provides, “[n]o

person, with purpose to defraud, shall * * * [o]btain property or services by the use of a credit

card, in one or more transactions, knowing or having reasonable cause to believe that the card has

expired or been revoked, or was obtained, is retained, or is being used in violation of law[.]”

R.C. 2913.21(D)(3) provides, in relevant part,

[i]f the cumulative retail value of the property and services involved in one or more violations of division (B)(2), (3), or (4) of this section * * * is seven thousand five hundred dollars or more and is less than one hundred fifty thousand dollars, misuse of credit cards in violation of any of those divisions is a felony of the fourth degree.

{¶38} Pursuant to R.C. 2901.22(A): “A person acts purposely when it is his specific

intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct

of a certain nature, regardless of what the offender intends to accomplish thereby, it is his

specific intention to engage in conduct of that nature.” “Defraud” means “to knowingly obtain,

by deception, some benefit for oneself or another, or to knowingly cause, by deception, some

detriment to another.” R.C. 2913.01(B).

{¶39} In support of his sufficiency challenge, appellant argues that the state failed to

demonstrate that his fuel transactions exceeded the scope of his employment, and that the state

failed to present any actual evidence of the fuel transactions at trial, but rather relied on

Thomas’s spreadsheets which were merely summaries of the transactions.

{¶40} As an initial matter, we note that the record before this court does, in fact, contain

statements from appellant’s company credit card. The state presented appellant’s credit card

statements — a “Transactions & Details” report — for appellant’s company-issued Capital One

credit card at trial. See state’s exhibit No. 10. {¶41} Tijerina testified that appellant needed to seek approval when he used the credit

card to purchase items other than gasoline. (Tr. 25.) Tijerina testified that he noticed

appellant was using his company credit card while he was on vacation. He explained that

appellant was on vacation from April 21 through April 29, 2014. The timesheets appellant

submitted also indicate appellant was on vacation at this time. Although appellant was on

vacation, he submitted gas station receipts from Speedway and BP for $75, $75, and $70.

(Tr. 27.) Tijerina advised appellant that he needed to reimburse The Ridge Project for these

unauthorized transactions. Appellant failed to do so.

{¶42} Thomas investigated appellant’s financial activities. She determined that

appellant purchased gas while he was on vacation and also purchased more gas than his company

vehicle would have required to drive the distances that appellant reported traveling. Based on

her analysis, Thomas concluded that appellant made unauthorized purchases with his company

credit card in 2013 totaling $3,251.15, 2014 totaling $6,408.58, and 2015 totaling $2,373.34, for

an aggregate total of $12,033.07.

{¶43} Ntia received a call from Tijerina regarding the fuel purchases appellant made

when he was on vacation. Ntia called appellant to inquire about the purchases. Appellant

informed Ntia that he was in Atlanta. Ntia asked for appellant’s mileage log, a log that

appellant was required to maintain in his company vehicle, but not required to submit to the

company. Ntia attempted to get the mileage log from appellant on or around September 18,

2015. Ntia made subsequent unsuccessful attempts to obtain the mileage log from appellant on

September 27, 28, 29, and 30, 2015. See state’s exhibit No. 13. Ntia testified that he was

never able to recover the mileage log from appellant, and as a result, they were not able to

compare appellant’s mileage log to the receipts from appellant’s fuel purchases. {¶44} Ntia testified that The Ridge Project attempted to verify appellant’s fuel purchases

by comparing the purchases appellant made to his timesheets and accountability sheets. Based

on these comparisons, Ntia determined that appellant’s fuel purchases did “not add up.” (Tr.

103.) After making this determination, Ntia provided Tijerina with a detailed report of the

situation and then turned the matter over to the fiscal department.

{¶45} After reviewing the record, we find that the testimony of Tijerina, Thomas, and

Ntia, if believed, was sufficient to support appellant’s misuse of credit cards conviction.

Appellant’s second assignment of error is overruled in this respect.

{¶46} Appellant further argues that there was insufficient evidence that he misused the

company credit card for a consecutive period of 90 days.

{¶47} R.C. 2913.21(D)(3) provides, in relevant part,

If the cumulative retail value of the property and services involved in one or more violations of division (B)(2), (3), or (4) of this section, which violations involve one or more credit card accounts and occur within a period of ninety consecutive days commencing on the date of the first violation, is seven thousand five hundred dollars or more and is less than one hundred fifty thousand dollars, misuse of credit cards in violation of any of those divisions is a felony of the fourth degree.

(Emphasis added.)

{¶48} The indictment charged appellant with fourth-degree felony misuse of credit cards,

alleging that appellant’s violation of R.C. 2913.21 occurred within a period of 90 consecutive

days. This language elevated the offense from a first-degree misdemeanor to a fourth-degree

felony. The trial court found appellant guilty of fourth-degree felony misuse of credit cards.

{¶49} As an initial matter, we note that appellant did not raise this issue below and thus,

has waived all but plain error. See State v. Fisher, 8th Dist. Cuyahoga No. 101365,

, ¶ 33. In order to prevail on a claim governed by the plain error standard, an appellant must demonstrate that the outcome at trial would have clearly been different but for the

alleged error.

citing State v. Waddell,

,

(1996).

{¶50} The state acknowledges that the evidence did not demonstrate that the violations

occurred within a period of 90 consecutive days. Accordingly, the state concedes that the trial

court erred by finding appellant guilty of fourth-degree felony misuse of credit cards.

{¶51} After reviewing the record, we find that the trial court committed plain error in

convicting appellant of fourth-degree felony misuse of credit cards. As the state concedes, the

evidence does not establish that appellant misused the company credit card for a period of 90

consecutive days. As noted above, however, the evidence in the record does support a

conviction for first-degree misdemeanor misuse of credit cards.

{¶52} “It is well established that this court has the authority to reduce a conviction to that

of a lesser included offense when it is supported by the record, rather than ordering an acquittal

or a new trial.” State v. Reddy,

,

,

(8th Dist.), citing State v. Davis,

,

(8th Dist. 1982), and

State v. Sumlin, 8th Dist. Cuyahoga No. 37559,

(June 29, 1978).

Although first-degree misdemeanor misuse of credit cards is not a lesser included offense of

fourth-degree felony misuse of credit cards, this court has applied the same rationale in

modifying a kidnapping conviction from a first-degree felony to a second-degree felony when the

evidence supported a conviction for the latter. See Fisher, 8th Dist. Cuyahoga No. 101365,

, at ¶ 38.

{¶53} Accordingly, we modify appellant’s misuse of credit cards conviction from a

fourth-degree felony to a first-degree misdemeanor. See Fisher at ¶ 38, citing Reddy at ¶ 35. Here, although we are not dealing with a lesser included offense, we find that the same rationale

is applicable.

{¶54} Based on the foregoing analysis, we sustain appellant’s second assignment of error

in this respect. Appellant’s misuse of credit cards conviction is modified from a fourth-degree

felony to a first-degree misdemeanor.

3. Grand Theft

{¶55} Second, appellant challenges his conviction for grand theft. Appellant was

convicted of grand theft, in violation of R.C. 2913.02(A)(2), which provides, “[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 * * * [b]eyond the scope of the express or implied consent of the

owner or person authorized to give consent[.]”

{¶56} In support of his sufficiency challenge, appellant argues that the state failed to

demonstrate that he used The Ridge Project’s property or services in a manner that exceeded the

scope of the organization’s express or implied consent, and that the value of the property or

services stolen was more than $7,500 and less than $150,000. Appellant contends that Thomas

failed to account for the fact that his employment responsibilities, which included meeting the

needs of clients, occasionally required him to work outside of traditional dates and times. For

instance, he asserts that he would occasionally be required to help a client move when he was on

vacation, and that he would deliver Christmas presents to clients when The Ridge Project’s

offices were closed.

{¶57} Tijerina testified that appellant was not authorized to use his company vehicle

while he was on vacation. Despite the company’s policy, however, appellant purchased gas

with the company credit card on multiple occasions while he was on vacation. After he learned that appellant was using the company vehicle and purchasing gas with the company credit card

while he was on vacation, Tijerina brought the issue to the attention of the fiscal department and

the deputy of operations, Chris Ridley. Tijerina also contacted appellant and asked about the

fuel purchases. Appellant advised Tijerina that somebody in his family was sick, and as a

result, he needed to travel out of state. Tijerina told appellant to reimburse the organization for

the unauthorized purchases and to refrain from using the company credit card. Tijerina

confronted appellant again when he discovered the full extent of appellant’s unauthorized

purchases. Appellant informed Tijerina that he would reimburse The Ridge Project, but he did

not do so. At this point, appellant’s employment was terminated.

{¶58} Ntia testified that appellant was not authorized to use the company vehicle for

private or personal reasons unless he requested and received prior written approval from

management. Ntia explained that appellant never submitted any paperwork requesting

permission to use his company vehicle for personal reasons.

{¶59} Ntia did not notice any discrepancies between the miles appellant drove and the

miles appellant reported driving when appellant was driving his own personal vehicle. When

appellant was issued a company vehicle, he was required to keep a mileage log, recording the

mileage every time he got into the car. Unlike the mileage reimbursement logs, which appellant

maintained and submitted to the organization when he was driving his personal vehicle, appellant

was not required to submit the mileage logs to The Ridge Project. Rather, appellant was only

required to maintain the log and keep it in the company vehicle.

{¶60} When appellant received a company vehicle, he was also issued a company credit

card for the primary purpose of purchasing gasoline. Because appellant kept the mileage log in

his vehicle, the company was unable to compare appellant’s mileage log to the fuel receipts that appellant submitted to the organization. Ntia testified that around September 27, 2015,

however, The Ridge Project wanted to compare appellant’s mileage log to the receipts from

his fuel transactions because “[appellant’s fuel] purchases were outrageous.” (Tr. 97.)

{¶61} Ntia called appellant to inquire about the purchases he made while he was on

vacation. Appellant stated that he was moving a client. Appellant subsequently informed Ntia

that he traveled to Atlanta. At this point, Ntia asked appellant for his mileage log. Ntia made

several attempts to obtain the mileage log from appellant in September 2015. See state’s exhibit

No. 13. Ntia testified that he was never able to recover the mileage log from appellant, and as a

result, they were not able to compare appellant’s mileage log to the receipts from appellant’s fuel

purchases. Ntia explained that when the organization compared appellant’s fuel transactions to

appellant’s timesheets and accountability sheets, appellant’s fuel transactions did “not add up.”

(Tr. 103.)

{¶62} Finally, as noted above, Thomas investigated appellant’s company credit card

usage. Thomas concluded that appellant made unauthorized purchases with his company credit

card in 2013 totaling $3,251.15, 2014 totaling $6,408.58, and 2015 totaling $2,373.34, for an

aggregate total of $12,033.07. (Tr. 60-61.)

{¶63} After reviewing the record, we find that the testimony of Tijerina, Ntia, and

Thomas, if believed, is sufficient to support appellant’s grand theft conviction. Appellant’s

second assignment of error is overruled in this respect.

4. R.C. 2913.61

{¶64} During oral arguments, appellant appeared to argue that the state failed to present

sufficient evidence that the cumulative retail value of the property and services pertaining to the

misuse of credit cards offense or the value of the property or services stolen pertaining to the grand theft offense was between $7,500 and $150,000. Specifically, appellant appeared to

contend that R.C. 2913.61(C)(1) and (2), governing aggregation of multiple theft offenses, did

not apply, and thus, the state was not permitted to aggregate the amounts of the individual credit

card transactions.

{¶65} Appellant did not raise this argument — either in the trial court or in his appellate

brief. “As a general matter, a party cannot present new arguments for the first time on appeal

that were not raised below, and a trial court cannot be said to have abused its discretion by failing

to consider arguments that were never presented to it.” State v. D.K., 8th Dist. Cuyahoga No.

106539,

, citing State v. Pratts, 8th Dist. Cuyahoga No. 104235,

, ¶ 43, and Wells Fargo Bank, N.A. v. Bluhm, 6th Dist. Erie No. E-13-052,

, ¶ 17; see also State v. Phillips,

,

(1995)

(“An issue is waived, absent a showing of plain error, if it is not raised at the trial level.”).

{¶66} Even if we were to consider appellant’s argument that the state was not permitted

to aggregate the amounts of the individual credit card transactions, we would find no error.

Appellant committed the grand theft and misuse of credit card offenses while he was in the same

employment with The Ridge Project, and the company was the only victim. See State v.

Preztak,

,

,

(8th Dist.).

C. Manifest Weight

{¶67} In his third assignment of error, appellant argues that his convictions are against the

manifest weight of the evidence.

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

whether the state met its burden of persuasion. State v. 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.” Thompkins,

,

. 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.”

{¶69} 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).

{¶70} In support of his manifest weight challenge, appellant relies on the arguments he

raised in challenging the sufficiency of the evidence. He further argues, “the [c]ourt

impermissibly relied upon a summary of purported evidence rather than upon an examination of

actual evidence. Since no actual evidence was introduced at trial, the weight of the evidence

falls short of a conviction.” Appellant’s brief at 10.

{¶71} In challenging Thomas’s spreadsheets and trial testimony, appellant argues that (1)

Thomas is not a forensic accountant; (2) Thomas did not have all of the necessary documentation when she compiled the spreadsheets, and as a result, had to fill in some gaps by looking

information up online; (3) some of the data she entered into the spreadsheets were estimates

rather than exact figures; and (4) as an employee of The Ridge Project, Thomas’s spreadsheets

and testimony were biased. As noted above, defense counsel stipulated to the admission of the

spreadsheets at trial.

{¶72} After reviewing the record, we cannot say that this is an exceptional case in which

the trial court clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered, or that the evidence weighs heavily against

appellant’s convictions.

{¶73} Appellant’s arguments challenging Thomas’s spreadsheets pertain to the credibility

of the spreadsheets and Thomas’s trial testimony, rather than the admissibility of the evidence.

The trial court, as the trier of fact, was in the best position to make this credibility determination.

{¶74} The record reflects that the tasks of reviewing appellant’s credit card transactions

and creating the spreadsheets were well within Thomas’s purview as The Ridge Project’s fiscal

officer. Thomas testified that she served as fiscal officer for six years and that she deals with all

of The Ridge Project’s financial aspects. Thomas has also worked in a financial capacity for 35

years.

{¶75} Thomas testified regarding the process she used and the information she reviewed

in order to generate the spreadsheets of appellant’s fuel transactions. Thomas explained that she

created the spreadsheets using data from appellant’s accountability sheets, timesheets, credit card

receipts, mileage reimbursement logs, and credit card statements. Thomas acknowledged that

she had to look up some of the information she included in the spreadsheets online. For

instance, she used the website “Mapquest” in order to determine how far appellant drove from his house to the locations to which he reported on a particular day. Additionally, if the price per

gallon of gasoline was not listed on a particular fuel receipt that appellant submitted, Thomas

looked up the pricing of gasoline in the area online. (Tr. 48.)

{¶76} Finally, on cross-examination, Thomas testified about the potential problems

regarding the process she used to generate the spreadsheets. For instance, she acknowledged

that she did not take into account the effect that factors such as drag, friction, or road conditions

would have on gas mileage. (Tr. 76.)

{¶77} The trial court, as the trier of fact, had sufficient information about the process

Thomas used to create the spreadsheets, the documents she reviewed, and the potential problems

with the process in order to weigh the credibility of the spreadsheets and Thomas’s trial

testimony. Furthermore, the trial court was in the best position to weigh the credibility of

Thomas and her proffered testimony about the spreadsheets she created.

{¶78} Finally, the defense’s theories of the case were that (1) appellant’s fuel transactions

were legitimate and authorized expenses in response to the needs of his clients, and/or (2) any

discrepancies regarding the fuel transactions were the result of appellant’s failure to properly

maintain his activity logs, poor management, or The Ridge Project’s failure to establish a clear

policy regarding company credit cards and vehicles. On the other hand, the state’s theory of the

case was that appellant deliberately misused his company credit card and company vehicle in a

manner that exceeded the scope of his employment and The Ridge Project’s consent.

Appellant’s convictions are not against the manifest weight of the evidence simply because the

trial court chose to believe the state’s version of the events rather than appellant’s theories. See

State v. Nelson,

,

(8th Dist.).

{¶79} For all of the foregoing reasons, appellant’s third assignment of error is overruled. III. Conclusion

{¶80} After thoroughly reviewing the record, we affirm appellant’s grand theft

conviction, modify appellant’s misuse of credit cards conviction from a fourth-degree felony to a

first-degree misdemeanor, vacate the trial court’s sentence on the fourth-degree felony misuse of

credit cards conviction, and remand the matter to the trial court for resentencing on the

first-degree misdemeanor misuse of credit cards conviction only.

{¶81} The record contains sufficient evidence establishing that Cuyahoga County is a

proper venue for the criminal proceedings; appellant’s convictions for grand theft and

first-degree misdemeanor misuse of credit cards are supported by sufficient evidence and are not

against the manifest weight of the evidence.

{¶82} Judgment affirmed in part, modified in part, vacated in part, and remanded for

resentencing.

It is ordered that appellant and appellee share 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 convictions having been affirmed

in part, any bail pending appeal is terminated. Case remanded to the trial court for resentencing.

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

Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., JUDGE

EILEEN A. GALLAGHER, A.J., and EILEEN T. GALLAGHER, J., CONCUR