[Cite as State v. Flanagan,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. John W. Wise, P.J. Plaintiff - Appellee : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, J. -vs- : : BENJAMIN JAMES FLANAGAN, : Case No. 2018CA00175 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2017- CR-2423

JUDGMENT: Affirmed

DATE OF JUDGMENT: November 12, 2019

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO WAYNE E. GRAHAM, JR. Prosecuting Attorney 4450 Belden Village St., N.W. Stark County, Ohio Suite 703 Canton, Ohio 44718 By: RONALD MARK CALDWELL Assistant Prosecuting Attorney Appellate Section 110 Central Plaza South, Suite 510 Canton, Ohio 44702-1413 Stark County, Case No. 2018CA0175 2

Baldwin, J.

{¶1} Benjamin James Flanagan appeals the decision of the Stark County Court

of Common Pleas convicting him of Theft from a Person in a Protected Class, a violation

of R.C. 2913.02(A)(l)and/or(A)(2)and/or (A)(3)(B)(3), a felony of the third degree and

Attempt to Commit an Offense, Theft from a Person in Protected Class, a violation of R.C.

2923.02(A)(1), and/or (A)(2) and/or (A)(3)(B)(3) a felony of the fifth degree. Appellee is

the State of Ohio.

STATEMENT OF FACTS AND THE CASE

{¶2} Appellant performed work for Victoria Summers and she later discovered

unauthorized withdrawals from a jointly held checking account for several thousand

dollars. The ensuing investigation lead to charges against Appellant who was convicted

and sentenced to thirty six months in prison and ordered to pay restitution to the co-owner

of the account.

{¶3} Appellant responded to a Facebook post by Victoria Summers soliciting

assistance with maintenance on her property. Appellant’s wife was a casual

acquaintance of Ms. Summers as both shared an interest in Border Collies. Ms. Summers

attended the Appellant’s wedding, in December 2016, so she was familiar with Appellant.

{¶4} Appellant agreed to perform the work on the property, and Ms. Summers

agreed to pay ten dollars per hour for all work completed. The terms of the agreement

were disputed by Appellant as he contended that he had agreed only to work on a per

project basis but he conceded that Ms. Summers made one payment of thirty dollars and

one payment of three hundred dollars to Appellant for work performed, both by checks

drawn on an account that reflect her name as well as the name Kernie Sawatis. Stark County, Case No. 2018CA0175 3

{¶5} Ms. Summers explained that the money in the account was Mr. Sawatis’s

and that she had power of attorney for him. Mr. Sawatis was living with her and under

her care due to his medical condition. He was seventy-five years old when the incident

described in the indictment occurred.

{¶6} Ms. Summers was dissatisfied with Appellant’s work, so she discontinued

using his services after issuing the two checks. Appellant contended that he continued

to work throughout June 2017 and that Ms. Summers suggested that she pay for his

services by paying his credit card debt.

{¶7} In July 2017, Ms. Summers noticed unauthorized debits in her bank account

statement reflecting payment to a Chase Bank Credit Card and to a Discover Card. She

notified Chase Bank and the Stark County Sheriff’s Office and then visited her bank.

While at the bank there was another attempt to debit her account for the amount of

$1174.56. She was asked if she had authorized the transfer and she answered that she

had not, so the payment was not made. Ms. Summers found five payments to Chase or

Discover that were not authorized by her in the following amounts: $1585.00, $816.12,

$3000.00, $1203.08, $1602.58 for a total of $8206.78.

{¶8} The Stark County Sheriff’s Office investigated and discovered that the

payments had been made to credit card accounts that were held in the name of

Appellant’s wife, Shannon Flanagan. Detective Green approached Mrs. Flanagan about

the payments and she indicated that she understood that her husband had made the

payments. She also believed that her husband was employed. Detective Green

approached Appellant, who claimed that he had no knowledge of the payments. When

he was told that his wife would be charged with criminal offenses as a result of the Stark County, Case No. 2018CA0175 4

investigation, he insisted that his wife would not do such a thing and that he was

responsible. He admitted he was unemployed and was carrying his wife’s Chase credit

card. He claimed that Ms. Summers had made a payment to the Chase Card via phone,

but Summer’s phone records did not reflect any calls to Chase or Discover. During the

trial Appellant admitted he had received the $30.00 and $300.00 check and expanded his

story to include an assertion that Ms. Summers suggested that she pay him by paying his

credit card debt and that she relayed this information via a cell phone. When asked why

he did not offer this explanation to Detective Green, he complained that he did not have

the opportunity.

{¶9} Detective Green obtained the records for the credit cards at issue and

discovered payments to the credit card accounts that matched the amount and

approximate date of the withdrawals from the victim’s bank account. The Detective also

discovered the rejected payment in the amount of $1174.94, which she described as

matching the amount and date of the charge that was submitted when Ms. Summers was

present at the bank investigating the source of the unauthorized charges. She did not

approve that charge, the bank rejected it and the records offered by the state reflected

the rejection.

{¶10} Detective Green also reviewed the Appellant’s bank records and found that

Appellant had insufficient funds to make any of the contested payments.

{¶11} Ms. Summer’s possession of a cell phone was an issue in this case, as

Appellant claimed that she used the phone to make transactions and to authorize him to

withdraw funds. He also claimed to have spoken to her on July 4th for forty-seven minutes

on this cell phone. That call was found in Appellant’s phone records, but Detective Green Stark County, Case No. 2018CA0175 5

traced that number to a Renee Wilcox, so that number did not belong to Victoria

Summers. Subsequent to her hiring and termination of Appellant, Ms. Summers did

obtain a cell phone, but she did not have it during that time that Appellant alleged she

used her cell phone.

{¶12} Appellant presented his case to the jury and was found guilty on both

counts. He filed a timely notice of appeal and submitted one assignment of error:

{¶13} “I. APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”

STANDARD OF REVIEW

{¶14} When reviewing the sufficiency of the evidence, an appellate court does not

ask whether the evidence should be believed. State v. Jenks,

,

(1991), paragraph two of the syllabus. “The relevant inquiry is whether, after

viewing the evidence in the 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.”

at paragraph two of the syllabus. State v. Poutney,

, 2018-

Ohio-22,

. Thus, “on review for evidentiary sufficiency we do not

second-guess the jury's credibility determinations; rather, we ask whether, ‘if believed,

[the evidence] would convince the average mind of the defendant's guilt beyond a

reasonable doubt.’ ” State v. Murphy,

,

(2001),

quoting Jenks at paragraph two of the syllabus. We will not “disturb a verdict on appeal

on sufficiency grounds unless ‘reasonable minds could not reach the conclusion reached

by the trier-of-fact.’ ” State v. Ketterer,

,

,

, ¶ 94, quoting State v. Dennis,

,

(1997). Stark County, Case No. 2018CA0175 6

{¶15} As to the weight of the evidence, the issue is whether the jury created a

manifest miscarriage of justice in resolving conflicting evidence, even though the

evidence of guilt was legally sufficient. State v. Thompkins,

, 386–387,

(1997), superseded by constitutional amendment on other grounds as

stated by State v. Smith,

,

, 1997–Ohio–355; State v.

Issa,

,

(2001).

“[I]n determining whether the judgment below is manifestly against the

weight of the evidence, every reasonable intendment and every reasonable

presumption must be made in favor of the judgment and the finding of facts.

**

“If the evidence is susceptible of more than one construction, the reviewing

court is bound to give it that interpretation which is consistent with the

verdict and judgment, most favorable to sustaining the verdict and

judgment.”

Seasons Coal Co., Inc. v. Cleveland,

,

(1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

{¶16} The reviewing court must bear in mind, however, that credibility generally is

an issue for the trier of fact to resolve. State v. Issa,

,

(2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31.

Because the trier of fact sees and hears the witnesses and is particularly competent to

decide whether, and to what extent, to credit the testimony of particular witnesses, the

appellate court must afford substantial deference to its determinations of credibility.

Barberton v. Jenney,

, 2010–Ohio–2420,

. In other Stark County, Case No. 2018CA0175 7

words, “[w]hen there exist two fairly reasonable views of the evidence or two conflicting

versions of events, neither of which is unbelievable, it is not our province to choose which

one we believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002–Ohio–1152, at

¶ 13, quoting State v. Gore,

,

(7th Dist. 1999).

Thus, an appellate court will leave the issues of weight and credibility of the evidence to

the fact finder, as long as a rational basis exists in the record for its decision. State v.

Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24.

{¶17} Once the reviewing court finishes its examination, an appellate court may

not merely substitute its view for that of the jury, but must find that “ ‘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.’ ”

, quoting State v. Martin,

,

, 720–721(1st Dist. 1983). Accordingly, reversal

on manifest weight grounds is reserved for “the exceptional case in which the evidence

weighs heavily against the conviction.”

ANALYSIS

{¶18} Appellant was convicted of a violation of R.C. 2913.02, Theft, when the

victim was an elderly person or disabled adult. That section requires the Appellee to

establish that Appellant:

“***with purpose to deprive the owner of property or services, shall

knowingly obtain or exert control over either the property or services in any

of the following ways:

(1) Without the consent of the owner or person authorized to give consent; Stark County, Case No. 2018CA0175 8

(2) Beyond the scope of the express or implied consent of the owner or

person authorized to give consent;

(3) By deception”

{¶19} The Appellee must also establish the victim was elderly or a disabled adult.

An “Elderly person” means a person who is sixty-five years of age or older. R.C.

2913.01(CC) and a “Disabled adult” means a person who is eighteen years of age or

older and has some impairment of body or mind that makes the person unable to work at

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

perform and that will, with reasonable probability, continue for a period of at least twelve

months without any present indication of recovery from the impairment, or who is eighteen

years of age or older and has been certified as permanently and totally disabled by an

agency of this state or the United States that has the function of so classifying persons.”

R.C. 2913.01(DD).

{¶20} Mr. Sawatis, an owner of the checking account, is undeniably an elderly

person, being over sixty-five years of age, and the record demonstrates that he was a

disabled adult, being over the age of eighteen and requiring constant care and attention

in his activities of daily living. Appellant does not contest these facts, but instead attacks

the credibility of Ms. Summers, contends that the owner of the subject bank account did

not testify and argues that there was insufficient evidence that Appellant possessed or

controlled the funds

{¶21} During the trial, Appellant did not dispute that he received the funds, but

maintained that he had performed work that entitled him to payment and that Ms. Stark County, Case No. 2018CA0175 9

Summers had agreed to pay his credit card bills. This admission to the Detective,

supplemented by bank records, undermines his contention there was no proof he

received the funds and had possession or control over the funds.

{¶22} Ms. Summers testified that this was a joint account and that she had Mr.

Sawatis power of attorney, giving her the power to control the funds. Appellant contended

that Ms. Summers authorized him to access the account and acknowledged receiving two

checks drawn on the account. Based upon Ms. Summer’s testimony, the jury could

reasonably conclude that she was an owner of the account, a person authorized to give

consent to access the account as well as the person responsible for control of the account

on Mr. Sawatis’s behalf. The bank records supplemented her testimony regarding

ownership of the account and Appellant has offered no evidence to contradict the

conclusion that she was an owner or the person controlling the account.

{¶23} Finally, Appellant argues that Ms. Summers is not credible and suggests

that her testimony is not credible. As we noted above, “on review for evidentiary

sufficiency we do not second-guess the jury's credibility determinations,”

and, with regard to manifest weight, we “will leave the issues of weight and credibility of

the evidence to the fact finder, as long as a rational basis exists in the record for its

decision.” Picklesimer, supra.

{¶24} After viewing the evidence in a light most favorable to the prosecution, we

hold that any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt, that the evidence is not against the manifest weight

of the evidence as nothing within the record supports a conclusion that the jury lost its Stark County, Case No. 2018CA0175 10

way and this is not an exceptional case in which the evidence weighs heavily against the

conviction.

{¶25} Appellant’s assignment of error is overruled and the decision of the Stark

County Court of Common Pleas is affirmed.

By: Baldwin, J.

Wise, John, P.J. and

Wise, Earle, J. concur.