State v. DeRemer , 120 N.E.3d 490 ( 2018 )

[Cite as State v. DeRemer, 2018-Ohio-3931.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28692
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CHARLES T. DEREMER COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR-2016-05-1717
DECISION AND JOURNAL ENTRY
Dated: September 28, 2018
SCHAFER, Presiding Judge.
{¶1} Appellant-Defendant, Charles DeRemer appeals his conviction of grand theft in
the Summit County Court of Common Pleas. For the reasons that follow, we affirm in part and
reverse in part.
I.
{¶2} DeRemer worked as an independent contract courier for EZ Delivery, a company
in the business of delivering marketing materials known as “red bags” for the law firm of
Kisling, Nestico and Redick (KNR). EZ Delivery paid DeRemer four dollars for every bag
delivered. In turn, EZ Delivery would charge KNR five dollars or seven dollars per delivery
depending on the time of day the delivery was made. KNR and EZ Delivery ultimately
discovered numerous discrepancies over several months in the number of bag deliveries
DeRemer claimed to have made compared with the number of bags that should have been
delivered.
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{¶3} The Summit County Grand Jury subsequently indicted DeRemer on one count of
grand theft in violation of R.C. 2913.02(A)(3), a felony of the fourth degree. Following a trial,
the jury found DeRemer guilty and the trial court sentenced DeRemer according to law.
{¶4} DeRemer filed this timely appeal, raising five assignments of error for our review.
II.
Assignment of Error I
The trial court committed reversible error when it found Mr. DeRemer
guilty because the evidence was insufficient to support such findings.
{¶5} In his first assignment of error, DeRemer contends that his conviction for grand
theft was based on insufficient evidence. We disagree.
{¶6} A challenge to the sufficiency of the evidence to support a criminal conviction
presents a question of law. State v. Thompkins, 78 Ohio St. 3d 380, 386 (1997). Upon review,
“the relevant inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt.” State v. Jenks, 61 Ohio St. 3d 259 (1991), paragraph two of the
syllabus. Although we conduct the review de novo, “we neither resolve evidentiary conflicts nor
assess the credibility of witnesses, as both are functions reserved for the trier of fact.” State v.
Jones, 1st Dist. Hamilton Nos. C-120570, C-120751, 2013-Ohio-4775, ¶ 33.
{¶7} This matter implicates DeRemer’s conviction for grand theft. The essential
elements of theft as stated in R.C. 2913.02(A)(3) are as follows: “No person, with purpose to
deprive the owner of property or services, shall knowingly obtain or exert control over either the
property or services * * * [b]y deception.” Additionally, “[i]f the value of the property or
services stolen is seven thousand five hundred dollars or more and is less than one hundred fifty
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thousand dollars, a violation of this section is grand theft, a felony of the fourth degree.” R.C.
2913.02(B)(2).
{¶8} Michael Simpson, Alin Mazilu, Scott Ruhl, Michelle Blain, Krystal Hoisington,
Julie Branch, Detective David Zampelli of the Fairlawn Police Department, and Holly Tusko all
testified on behalf of the State. Mr. Simpson testified that he owns and operates EZ Delivery, a
company in the business of delivering bags of marketing materials for the personal injury law
firm of KNR to individuals involved in car accidents. KNR paid EZ Delivery $5 for every bag
delivered in the morning and $7 for every bag it delivered in the afternoon. EZ Delivery
employed several independent contract couriers to make deliveries. Mr. Simpson stated that he
hired DeRemer, his long-time friend, to be one of EZ Delivery’s couriers. At the times relevant
to this case, DeRemer was responsible for making deliveries in Akron and Summit County and
was paid $4 per bag delivered.
{¶9} Mr. Simpson further testified that KNR used a computer program, Argo, to scrape
names and addresses from publicly available police reports to identify potential clients. The
addresses would then be uploaded into a routing program and app, Route4Me, to determine the
most cost effective route for delivery. The routes were generally available between 10a.m. and
11a.m daily. However, DeRemer would typically not pick-up his morning deliveries until noon
and his afternoon deliveries until 3p.m. or 3:30p.m. Mr. Simpson testified that it was common
for DeRemer to postpone delivering some of the morning deliveries to the afternoon in an effort
to save time if they were located on the outskirts of the county.
{¶10} The couriers, also known as “drivers”, were responsible for sending an invoice to
EZ Delivery every two weeks with their morning and afternoon bag delivery totals. DeRemer
would submit invoices for his Summit County and Akron routes, often via picture message. Mr.
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Simpson testified that he did not specifically check or compare DeRemer’s invoices to anything.
Rather, Mr. Simpson would only “spot check” the courier’s GPS locations through the
Route4Me app. Mr. Simpson stated that his sister and employee, Michelle Blain, would then
create an invoice combining the numbers submitted by the couriers and Mr. Simpson would
submit the final invoice to KNR for payment. Mr. Simpson testified that as far as he knew,
someone at KNR was reviewing the invoices because he was getting paid.
{¶11} However, Mr. Simpson was eventually contacted by Holly Tusko, a KNR
employee, in February 2016 concerning an invoice that was not being paid because the bag
delivery numbers did not match the numbers generated by Argo. Mr. Simpson stated that he was
shocked that the numbers did not match. He testified that he was able that evening to compare
the EZ Delivery invoice he had submitted to KNR to the routes created through Route4Me and
see that none of the numbers were correct for the Akron and Summit County territories. Mr.
Simpson stated he spoke to DeRemer that night and that DeRemer stated he may have turned in
the invoice from the week or month before. However, Mr. Simpson further testified, that he met
with Ms. Tusko and they were able to compare all of EZ Delivery’s invoices back to March 2015
and determine that none of the numbers for the Akron or Summit County routes matched the
numbers generated by Argo. Nonetheless, when they checked the numbers for the Stark,
Youngstown, and Cincinnati drivers’ territories, “[e]verything was fine.” Mr. Simpson stated
that he did not inflate the numbers, rather, “the exact numbers that [were] on [DeRemer]’s sheets
were the exact numbers that [he] turned in to KNR.”
{¶12} Mr. Simpson testified that as a result of the inflated numbers he had to pay KNR
back more than $43,000.00. In order to accomplish this, Mr. Simpson stated that EZ Delivery
basically did business with KNR for six weeks without being paid in order to accomplish the pay
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back. He further stated that in order to pay the EZ Delivery drivers, he was forced to deplete his
personal savings.
{¶13} Mr. Simpson also testified that although he asked DeRemer to come in and speak
with him about the invoicing issues, the two never spoke face-to-face. DeRemer did not come
back to work after being confronted with the bag delivery number discrepancies.
{¶14} Mr. Mazilu testified that he designs software for clients through his company,
SKE GlobalTech. He stated that he designed Argo for KNR to scrape police report data from
different sources and centralize it into one database that KNR could use for marketing purposes.
Mazilu further testified that when Argo retrieves the information, it compares it to the existing
database and disregards any duplicate information. Mazilu stated that although users can input
additional names and addresses, the user interface does not allow users to alter, delete, or
duplicate the names and addresses Argo scrapes itself. Additionally, Mazilu stated that the bulk
of the information in the database comes from the Ohio Department of Safety and not from
manual insertions. Mazilu then described the process for extracting the data from Argo for a
specific region and importing that information into the Route4Me program in order to map the
most efficient route to deliver the entire list. Mazilu testified that other than normal maintenance
issues, he has not had any “problems” with Argo nor has Argo ever been “compromised”.
{¶15} Scott Ruhl testified that he is the Lead Data Specialist at KNR and that he
oversees the Data Department. He stated that he is responsible for “making sure that all the
prints for the labels for mailers get out on time to different offices”, overseeing the red bag
deliveries, and communicating with the different courier services. He explained his process for
preparing the routes for the couriers as follows:
I would create a sheet of labels and put them on mailers, and then I would put
those mailers in the red bags, and then I would go through the routing program,
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Route4Me, and what it did is it took a spreadsheet and it collaborated all the
addresses; so, put them in the best order to deliver them in, starting with [KNR’s]
address first, and it was just to, you know, save time.
And then I would stack them all up and have them ready for whoever picked them
up.
Mr. Ruhl further testified that Argo then generated the spreadsheet used to create the address
labels and to upload the addresses into the Route4Me program and that he printed the
spreadsheet twice a day. The spreadsheet was then saved to a shared file and timestamped. Mr.
Ruhl also stated that the spreadsheet could not be manipulated, however, if after being uploaded
into Route4Me, an address was determined by the program to not be valid, after attempting to
validate an address, Mr. Ruhl would delete any invalid addresses from the list and they would
not appear on the final route. Additionally, if multiple people lived at the same address, Mr.
Ruhl stated that only one bag would be delivered with all of the individuals’ address labels
attached to the same bag.
{¶16} Mr. Ruhl testified that he would prepare DeRemer’s routes by uploading the
spreadsheet created by Argo to Route4Me and then emailing the optimized route to DeRemer.
Mr. Ruhl would then copy and paste the route into a Word document and save a timestamped
copy. The State admitted as evidence, copies of Word documents. Mr. Ruhl stated he did not
alter the copies, except to add the information from the timestamp. He further stated that, to his
knowledge, DeRemer understood that when multiple individuals lived at one address and all of
the address labels were attached to one bag, only the one bag was to be delivered. Mr. Ruhl
stated that DeRemer typically picked up his morning routes between 10:45 a.m. and 11:30 a.m.
Mr. Ruhl stated that most days DeRemer did not finish all of the deliveries on the morning route
before picking up his afternoon route. In those situations, Mr. Ruhl would then put the
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undelivered addresses on DeRemer’s afternoon route. Mr. Ruhl did not do this for other
couriers.
{¶17} Ms. Blain testified that she worked for her brother’s companies, MRS
Investigations and EZ Delivery from late Summer 2014 until February 2016. She stated that in
addition to doing payroll for the companies, she put together the routes for the local drivers, “got
the Route4Me program up and running, taught the drivers how to use them, [ and] monitored
daily their routes * * *.” She stated that after Mr. Ruhl uploaded the routes to Route4Me, she
would be able to see how many deliveries there were, where the courier currently was, and what
time the courier started and stopped. She also printed a hardcopy of the delivery route for the
local drivers. She stated that if multiple people lived at the same address, the address would only
be listed on the route once and a single bag would be delivered with individual labels for each
person attached. Ms. Blain testified that DeRemer was the person who trained her to assemble
the red bags for delivery and specifically showed her how to do the labels when there were
multiple labels to be put on an individual bag. She further stated that she monitored the drivers
in Toledo and Cincinnati on a daily basis to ensure that the deliveries were being made since
they did not have contact with those drivers. She stated she was able to do this through the
Route4Me app.
{¶18} Ms. Blain also stated that she did not monitor the local drivers since Mr. Simpson
trusted DeRemer and did not have a concern about DeRemer since there was never an issue of
bags not being delivered. Ms. Blain did, however, state that DeRemer would typically leave
bags from his morning route to be added to his afternoon route. When this happened, Ms. Blain
would send the address to KNR to be included in the afternoon route. However, if that address
was left out of the afternoon route, Ms. Blain would handwrite where in the afternoon route that
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undelivered morning delivery should be made. Ms. Blain stated this happened less than twenty
times in the year and a half she was assembling the deliveries for EZ Delivery.
{¶19} In reference to her payroll responsibilities, Ms. Blain testified that she did payroll
every two weeks. She stated that every two weeks the drivers would send her their bag counts
for the morning and afternoon deliveries. Ms. Blain would then compile those numbers into a
spreadsheet and turn it into Mr. Simpson. Although Ms. Blain stated that there was not a
standard way for the drivers to submit their numbers, all of the drivers with the exception of
DeRemer emailed, while DeRemer usually “just took a picture of the handwritten one he had at
home and sent it to [her] via text.” The State admitted as evidence images Ms. Blain identified
as the texts she received from DeRemer for payroll purposes. Ms. Blain explained that the sheets
submitted by DeRemer were broken down by the week, the day, and then by the morning and
afternoon delivery count and also provided a total number of deliveries made per day. Although
Ms. Blain stated that she would “spot check” the other drivers per instruction from Mr. Simpson,
she did not check if DeRemer’s numbers were correct since Mr. Simpson told her “he wasn’t
worried about [DeRemer].” Ms. Blain testified that she then entered the numbers from the sheets
submitted by DeRemer into the final invoice to be submitted to Mr. Simpson who would in turn
submit it to KNR. Ms. Blain stated she was not aware of any issues with DeRemer’s invoices
until March or April 2016, after she had stopped working for EZ Delivery.
{¶20} Ms. Branch testified that she is a bookkeeper at KNR. She stated that her
responsibilities include taking “care of the day-to-day accounting office tasks, such as paying
bills and depositing all of the income, as well as some reimbursement checks to the firm.”
Additionally, Ms. Branch does the monthly financial statements and helps the paralegals and
other staff with settlement memos for clients. Ms. Branch stated that she receives invoices from
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EZ Delivery every two weeks and that those invoices required approval from Ms. Hoisington in
order to be paid. However, Ms. Branch also stated that there were times she would pay the
invoices without Ms. Hoisington’s approval so the bills would be paid in a timely manner.
Nonetheless, Ms. Branch never reviewed EZ Delivery’s invoices for accuracy as it was not part
of her job. In order to pay the invoices, Ms. Branch would enter a check to be paid and after it
printed, she would give them to Rob Nestico to be signed. After the check was signed, Mr.
Simpson would be able to pick up the check.
{¶21} Ms. Hoisington testified that before being terminated from KNR she held several
positions, including Data Supervisor and New Client Administrator. She stated that when she
was the Data Supervisor she would receive Mr. Simpson’s invoices from Ms. Blain or Ms.
Branch, and was responsible for checking those invoices against Argo. Ms. Hoisington stated
that Argo divided the numbers into morning and afternoon deliveries for each territory and how
many deliveries should have been made each day. Although Ms. Hoisington was responsible for
checking these numbers, she stated that she was extremely busy and just glanced at the invoices
for Akron and Summit to make sure there wasn’t anything out of the ordinary rather than
checking the numbers as she should. After reviewing the invoices, she would either initial the
invoices or email them back to Ms. Branch and inform her they were approved. Ms. Hoisington
finally testified that she was terminated from KNR “[b]ecause of this situation, because [she] did
not do her job and check those areas like [she] should have daily.”
{¶22} Detective Zampelli testified that he took Mr. Simpson’s initial report of the theft
at the Fairlawn Police Department. He stated that Mr. Simpson alleged that he owned a
company that delivered advertisements for KNR and that one of his delivery drivers had
fabricated numbers of the amounts of deliveries he had made, resulting in a loss of $26,424.00 to
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Mr. Simpson’s company. Det. Zampelli advised Mr. Simpson that he would need to provide
supporting documentation and that Mr. Simpson eventually provided documentation to that
effect. Det. Zampelli stated that Mr. Simpson provided EZ Delivery’s invoices, DeRemer’s
handwritten invoices, a series of addresses covering the month of February 2016, and a
spreadsheet covering the time period of March 2015 through February 2016 showing what was
billed versus what should have been billed.
{¶23} After reviewing Mr. Simpson’s documentation, Det. Zampelli stated it appeared
very clear to him that there was an obvious inflation of numbers totaling 6,606 deliveries that
DeRemer appeared to have been paid for that he did not make. Det. Zampelli then contacted Ms.
Tusko, a KNR employee, in an effort to determine if they reviewed any other drivers’ records
and if the problem was consistent with other drivers. He also reached out to DeRemer and
DeRemer agreed to meet with him. DeRemer maintained that he did not falsify any records and
that he did not owe Mr. Simpson any money. Instead, DeRemer blamed the computer system at
KNR.
{¶24} Ms. Tusko testified that she is the Intake Manager at KNR and manages the intake
team, the data team, the receptionist, and the case coordinators. She stated that she was Ms.
Hoisington’s supervisor and that Ms. Hoisington was responsible for reviewing the invoices
submitted by EZ Delivery, but was terminated for not doing so. She stated that she first
discovered that Ms. Hoisington was not reviewing the invoices in March 2016 when somebody
brought an invoice to her with a question. She further stated that she could see just on the face of
the invoice that there could be a potential issue. Specifically, she stated that she had previously
been responsible for reviewing the invoices and that the numbers seemed inflated and the total
dollar amount seemed higher than what she had normally seen. As a result, she decided to “spot
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check” a few of the numbers and compare them to the addresses submitted for those days and
discovered discrepancies. Consequently, she decided to “dig a little bit deeper”. Once she had
compiled all the numbers in an Excel spreadsheet, she immediately took it to Rob Nestico, the
managing partner.
{¶25} Ms. Tusko testified that following an audit of EZ Delivery invoices, she
concluded that EZ Delivery’s numbers were inflated for the Akron and Summit County
territories. In making that conclusion, Ms. Tusko stated she went through each date of service
and compared each of the addresses on the routes to the actual number that was submitted for a
particular morning or afternoon’s delivery. If they did not match, she would mark it accordingly
and put the information into a spreadsheet. Using this method, Ms. Tusko determined that for
March 2015, 44 morning deliveries and 156 afternoon deliveries, for a total of 200 deliveries
were overbilled for the Summit County territory. Accordingly, Ms. Tusko concluded that the
driver overbilled EZ Delivery $800.00 and in turn, EZ Delivery overbilled KNR a total of
$1,312.00. Ms. Tusko stated that she continued this process for every subsequent month until
February 2016. She further determined based on the spreadsheets that in 2015, 141 bags were
overbilled for the Summit County territory in April, 187 in May, 235 in June, 178 in July, 176 in
August, 132 in September, 226 in October, 186 in November, and 214 in December. Ms. Tusko
also determined that in 2016, 212 bags were overbilled in January and 187 bags were overbilled
in February for the Summit County territory. Based on these numbers, Ms. Tusko concluded that
a total of 2,274 deliveries were overbilled for the Summit County territory, resulting in DeRemer
overbilling EZ Delivery $9,096.00 and in turn, EZ Delivery overbilling KNR $14,730.00.
{¶26} Ms. Tusko repeated the same process for the Akron territory determining that in
2015, 96 bags were overbilled for the Akron territory in March, 264 in April, 238 in May, 388 in
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June, 332 in July, 411 in August, 385 in September, 424 in October, 341 in November, and 579
in December. She further determined that in 2016, 410 bags were overbilled in January and 459
in February. The total bags Ms. Tusko determined had been overbilled in the Akron territory
amounted to 4,327, resulting in DeRemer overbilling EZ Delivery in the amount of $17,308.00,
and in turn, EZ Delivery overbilling KNR by a total of $27,793.00.
{¶27} Ms. Tusko stated that she created these reports in order to determine “how much
of an inflation in dollar value and how many total red bags were overbilled.” The State
admitted as evidence the documents Ms. Tusko generated as a result of her audit conducted in
March 2016. Ms. Tusko stated she was able to compile all of these numbers because everything
was saved to the KNR server.
{¶28} Ms. Tusko stated that following the audit, she gave all of the information to Mr.
Nestico and that she believed Mr. Nestico reviewed them with Mr. Simpson. Ms. Tusko further
stated that Mr. Simpson or EZ Delivery paid back to KNR the amount EZ Delivery had
overbilled KNR. She also stated that EZ Delivery is still working for KNR and KNR has had no
further issues with EZ Delivery.
{¶29} Viewing this evidence in a light most favorable to the prosecution, we conclude
that the State presented sufficient evidence to allow a rational trier of fact to find that DeRemer
had committed the crime of grand theft by deception, and that the value of the property or
services stolen was between $7,500.00 and $150,000.00, beyond a reasonable doubt. DeRemer
was responsible for sending an invoice to EZ Delivery every two weeks stating the number of
deliveries he made. Mr. Simpson then presented KNR with an invoice using DeRemer’s exact
numbers. However, when the numbers on DeRemer invoices were compared to the routes
created through the Route4Me app, none of the numbers matched. Indeed, a review of these
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documents shows DeRemer’s invoices claimed he delivered 6,606 more bags than the number of
addresses listed on his routes. Accordingly, DeRemer overbilled EZ Delivery by $26,424.00
and, consequently, EZ Delivery overbilled KNR by over $43,000.00.
{¶30} Therefore, DeRemer’s first assignment of error is overruled.
Assignment of Error II
Mr. DeRemer’s convictions are against the manifest weight of the evidence.
{¶31} In his second assignment of error, DeRemer contends that his convictions are
against the manifest weight of the evidence because there was no evidence that DeRemer
attempted to deprive anyone of any property or service by deception since “all the evidence
indicates that it was actually the poor record keeping of Mr. Simpson that caused the discrepancy
in the financial and billing records in this case.” We disagree.
{¶32} To determine whether a criminal conviction is against the manifest weight of the
evidence, we “must review the entire record, weigh the evidence and all reasonable inferences,
consider the credibility of witnesses and determine whether, in resolving conflicts in the
evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice
that the conviction must be reversed and a new trial ordered.” State v. Otten, 33 Ohio App. 3d
339, 340 (9th Dist.1986). “Weight of the evidence concerns ‘the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather than the
other.’” (Emphasis sic.) State v. Thompkins, 78 Ohio St. 3d 380, 387 (1997). Nonetheless, “[a]n
appellate court should exercise the power to reverse a judgment as against the manifest weight of
the evidence only in exceptional cases.” State v. Carson, 9th Dist. Summit No. 26900, 2013-
Ohio-5785, ¶ 32, citing Otten at 340.
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{¶33} In this case, both Mr. Simpson and Ms. Blain admitted that they did not check
DeRemer’s delivery numbers before submitting them to KNR for payment. Additionally, Ms.
Tusko testified that although it was her responsibility to check EZ Delivery’s invoices for
accuracy, she did not do so. However, based on this evidence and the testimony outlined above,
we cannot say that the jury lost its way in this matter. See Thompkins, 78 Ohio St. 3d at 387;
Otten, 33 Ohio App. 3d at 340. Both Mr. Simpson and Ms. Blain testified that the numbers they
reported on the EZ Delivery invoices were the exact numbers DeRemer submitted to Ms. Blain.
Additionally, the State submitted as evidence the text message images DeRemer sent to Ms.
Blain showing the number of deliveries DeRemer stated he had delivered during the relevant two
week period. “This Court has repeatedly held that the trier of fact is in the best position to
determine the credibility of witnesses and evaluate their testimony accordingly.” State v.
Johnson, 9th Dist. Summit No. 25161, 2010-Ohio-3296, ¶ 15. “[T]he jury is free to believe all,
part, or none of the testimony of each witness.’” State v. Clark, 9th Dist. Wayne No. 14AP0002,
2015-Ohio-2978, ¶ 24, quoting Prince v. Jordan, 9th Dist. Lorain No. 04CA008423, 2004-Ohio-
7184, ¶ 35. Moreover, “[a] verdict is not against the manifest weight of the evidence because the
finder of fact chooses to believe the State’s witnesses rather than the defendant’s version of the
events.” State v. Martinez, 9th Dist. Wayne No. 12CA0054, 2013-Ohio-3189, ¶ 16.
{¶34} Therefore, DeRemer’s second assignment of error is overruled.
Assignment of Error III
The trial court committed reversible error when it admitted exhibits that had
been recreated a year after the actual events had taken place.
{¶35} In his third assignment of error, DeRemer contends that the trial court erred by
allowing the State to admit as evidence records of DeRemer’s daily routes as established by the
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Route4Me app and the audit reports created by Ms. Tusko because they were “compilations and
summaries” and violated the best evidence rule. We disagree.
{¶36} The first documents DeRemer argues were improperly admitted are copies of
DeRemer’s daily routes as established by the Route4Me app. Specifically, DeRemer argues that
there was no evidence that the documents showing DeRemer’s daily routes were produced by the
same impression as the original and that they could not be substantiated as being an accurate
reproduction of the original because there was no evidence of handwritten addresses that may
have been added.
{¶37} Evid.R. 803(6) governs the admissibility of business records. With regard to this
rule, the Supreme Court of Ohio has expounded the following:
To qualify for admission under Rule 803(6), a business record must manifest four
essential elements: (i) the record must be one regularly recorded in a regularly
conducted activity; (ii) it must have been entered by a person with knowledge of
the act, event or condition; (iii) it must have been recorded at or near the time of
the transaction; and (iv) a foundation must be laid by the “custodian” of the record
or by some “other qualified witness.”
State v. Davis, 116 Ohio St. 3d 404, 2008-Ohio-2, ¶ 171, quoting Weissenberger, Ohio Evidence
Treatise 600, Section 803.73 (2007). “A trial court has broad discretion to admit a business
record into evidence pursuant to Evid.R. 803(6), and an appellate court will not disturb a trial
court’s decision unless the trial court has abused its discretion.” State v. Baker, 9th Dist. Summit
No. 21414, 2003-Ohio-4637, ¶ 9.
{¶38} The best evidence rule, however, provides that ‘[t]o prove the content of a
writing, recording, or photograph, the original writing, recording, or photograph is required,
except as otherwise provided in [the Ohio Rules of Evidence] or by statute enacted by the
General Assembly not in conflict with a rule of the Supreme Court of Ohio.” Evid. R. 1002. “A
duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as
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to the authenticity of the original or (2) in the circumstances it would be unfair to admit the
duplicate in lieu of the original.” Evid.R. 1003.
{¶39} As discussed above, Scott Ruhl testified that he is the Lead Data Specialist at
KNR and that he prepared the routes for the couriers. Mr. Ruhl specifically testified that he
would prepare DeRemer’s routes by uploading the spreadsheet created by Argo to Route4Me
and then emailing the optimized route to DeRemer. Mr. Ruhl would then copy and paste the
route into a Word document and save a timestamped copy. The State admitted as evidence
copies of the Word documents Mr. Ruhl saved of DeRemer’s daily routes as established by the
Route4Me app. Mr. Ruhl stated he did not alter the copies, except to add the information from
the timestamp. Additionally, DeRemer’s trial counsel stated that prior to trial he received copies
of DeRemer’s daily Route4Me routes both with and without the date and time added.
{¶40} Concerning the occasional handwritten address on DeRemer’s daily routes, Ms.
Blain testified that when DeRemer would leave bags from his morning route to be added to his
afternoon route, Ms. Blain would send the address to KNR to be included in the afternoon route.
However, if that address was left out of the afternoon route, Ms. Blain would handwrite the
undelivered morning address into DeRemer’s afternoon route where the undelivered morning
delivery should be made to promote efficiency. Therefore, any handwritten addresses on
DeRemer’s afternoon route were previously included in his morning route for that particular day.
Ms. Blain stated she did this less than twenty times in the year and a half she was assembling the
deliveries for EZ Delivery.
{¶41} Accordingly, we conclude that the trial court did not abuse its discretion by
admitting as evidence copies of DeRemer’s daily routes as established by the Route4Me app.
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{¶42} The second documents DeRemer argues were improperly admitted are Ms.
Tusko’s audit reports. DeRemer argues that these documents should not have been admitted
because they are compilations and summaries. Pursuant to Evid.R. 1006, “[t]he contents of
voluminous writings, recordings, or photographs which cannot conveniently be examined in
court may be presented in the form of a chart, summary or calculation” under the condition that
the original or duplicates are made available for examination or copying by the other party at a
reasonable time and place. In this case, however, the audit reports created by Ms. Tusko and
admitted at trial consisted of information taken from DeRemer’s daily Route4Me routes, EZ
Delivery’s invoices submitted to KNR for payment, and a calculation of value based on
DeRemer’s daily Route4Me routes. Indeed, Ms. Tusko specifically testified that conducting the
audit, she went through each date of service and compared each of the addresses on the routes to
the actual number that was submitted on EZ Delivery’s invoice for a particular morning or
afternoon’s delivery.
{¶43} At trial, EZ Delivery’s invoices were admitted without objection and several
witnesses testified that KNR paid EZ Delivery $5 for every bag delivered in the morning and $7
per bag delivered in the afternoon. We have also determined that the trial court did not abuse its
discretion in admitting DeRemer’s daily Route4Me routes. Accordingly, all of the information
contained and summarized within the audit reports is also available in other parts of the record
from the information’s original source. DeRemer’s trial counsel acknowledged that he had
received all of the above information during discovery.
{¶44} Therefore, DeRemer’s third assignment of error is overruled.
Assignment of Error IV
Trial court committed reversible error and violated Mr. DeRemer’s rights to
due process when it sentenced him in violation of Crim.R. 25(B).
18
{¶45} In his fourth assignment of error, DeRemer contends that the trial court erred and
violated his due process rights when it sentenced him in violation of Crim.R. 25(B).
{¶46} We review a trial court’s application and effect of a Rule of Criminal Procedure
de novo. State v. South, 162 Ohio App. 3d 123, 2005-Ohio-2152, ¶ 9 (9th Dist.).
{¶47} Crim.R. 25(B) states as follows:
After verdict or finding of guilt. If for any reason the judge before whom the
defendant has been tried is unable to perform the duties of the court after a verdict
or finding of guilt, another judge designated by the administrative judge, or, in the
case of a single-judge division, by the Chief Justice of the Supreme Court of
Ohio, may perform those duties. If such other judge is satisfied that he cannot
perform those duties because he did not preside at the trial, he may in his
discretion grant a new trial.
“This rule inferentially commands that unless unable to do so, the judge who presided at a
criminal trial must also preside at post-conviction proceedings, including sentencing.” Beatty v.
Alston, 43 Ohio St. 2d 126, 127 (1975). “The rule does not favor sentencing by judges unfamiliar
with the defendant and the facts of the case against him.” State v. Roper, 9th Dist. Summit No.
23454, 2008-Ohio-1053, ¶ 15, citing Beatty at 127.
{¶48} In this case, a visiting judge was appointed by assignment from the Chief Justice
of the Ohio Supreme Court to be a visiting judge from February 6, 2017, until February 10,
2017, for the Summit County Common Pleas Court, General Division, “and to conclude any
proceedings in which he participated that are pending at the end of that period.” DeRemer’s jury
trial began on February 6, 2017 and concluded on February 10, 2017, when the jury returned a
guilty verdict. However, following a presentence investigation, DeRemer’s sentencing hearing
occurred before the duly-elected judge rather than the visiting judge. DeRemer objected to the
duly-elected judge issuing his sentence “on the basis of jurisdiction and also the fact that [the
judge] didn’t actually hear the trial.” In response, the prosecutor stated that he did not believe it
19
was a proper objection and that it “happens all the time in Summit County[.]” Although the
duly-elected judge did not expressly address DeRemer’s arguments, the judge later stated that
she had “jurisdiction to sentence in this matter;” but would schedule the restitution hearing
before the visiting judge if DeRemer desired. The duly-elected judge thereafter sentenced
DeRemer and scheduled a restitution hearing before the visiting judge.1 Nonetheless, the duly-
elected judge did not state, and the record does not show, that the judge before whom DeRemer
was tried was unable to perform his duties and that the duly-elected judge was then designated
by the administrative judge to perform the duties of the court due to that inability. See Crim.R.
25(B); Beatty at 127.
{¶49} On appeal, the State argues that even if the trial court did not comply with
Crim.R. 25(B), the judge before whom DeRemer was tried later conducted the restitution hearing
and issued the final judgment of conviction containing DeRemer’s sentence and an order for
restitution. However, a review of the restitution hearing shows that DeRemer renewed all of his
prior objections and the visiting judge did not consider the Crim.R. 25(B) issue. Additionally, a
sentencing hearing was not part of the restitution hearing and the visiting judge merely deferred
to the duly-elected judge’s sentence when he issued the final judgment of conviction containing
the sentence and restitution order.
{¶50} Therefore, DeRemer’s fourth assignment of error is sustained and we remand this
matter for resentencing in compliance with Crim.R. 25(B). See State v. Lewis, 2d Dist.
Montgomery No. 18735, 2001 Ohio App. LEXIS 4094, 11-12 (2001).
1
Prior to the restitution hearing, DeRemer filed a notice of appeal. This Court dismissed that
appeal, determining that the sentencing order was not a final and appealable order because the
trial court imposed restitution as part of the sentence, but did not specify the amount of
restitution in that order. See State v. DeRemer, 9th Dist. No. 28585, May 3, 2017.
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Assignment of Error V
The cumulative effect of the trial court’s errors denied Mr. DeRemer a fair
trial.
{¶51} In his fifth assignment of error, DeRemer contends that even if this Court
concludes that the trial court committed harmless errors in the above assignments of error, then
the cumulative error doctrine should apply. However, as indicated by our resolution of the
previous assignments of error, DeRemer has not identified multiple errors. As such, the
cumulative error doctrine does not apply and does not support the reversal of DeRemer’s
convictions. See State v. Hunter, 131 Ohio St. 3d 67, 2011-Ohio-6524, ¶ 132 (“[T]he doctrine of
cumulative error is not applicable to the present case, because there were no multiple errors.”)
Therefore, we overrule DeRemer’s fifth assignment of error.
III.
{¶52} DeRemer’s first, second, third, and fifth assignments of error are overruled.
DeRemer’s fourth assignment of error is sustained. Therefore, the judgment of the Summit
County Court of Common Pleas is affirmed in part and reversed in part.
Judgment affirmed in part
and reversed in part.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
21
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JULIE A. SCHAFER
FOR THE COURT
TEODOSIO, J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.