State v. Thompson , 2014 Ohio 202 ( 2014 )

[Cite as State v. Thompson, 2014-Ohio-202.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99628
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
LONNIE THOMPSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED FOR RESENTENCING
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-553640
BEFORE: Stewart, P.J., Celebrezze, J., and Keough, J.
RELEASED AND JOURNALIZED: January 23, 2014
ATTORNEY FOR APPELLANT
Robert Botnick
The Botnick Law Firm, L.L.C.
11510 Buckeye Road
Cleveland, OH 44104
FOR APPELLANT
Lonnie Thompson, Pro Se
Inmate No. 640-614
Trumbull Correctional Institution
P.O. Box 901
Leavittsburg, OH 44430
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: James A. Gutierrez
Anna M. Woods
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, P.J.:
{¶1} Defendant-appellant Lonnie Thompson was found to be the mastermind of a
counterfeit check cashing scheme in which he created corporate payroll checks and
recruited people to cash those checks at area stores in exchange for a small cut of the
proceeds. A jury found him guilty of multiple counts of engaging in a pattern of corrupt
activity, forgery, theft, telecommunications fraud, and identity theft. He complains on
appeal about the weight and sufficiency of the evidence going to the forgery counts, that
the convictions for telecommunications fraud and identity theft should have merged for
sentencing, and that his sentence was disproportionate to those given to similar offenders.
I
{¶2} Thompson first argues that the court erred by denying his Crim.R. 29(A)
motion for a judgment of acquittal on the forgery counts. Although he concedes that the
state offered evidence to show that he forged checks in 2007, he maintains that the state
offered no proof to show the origination of the counterfeit checks cashed during the
period charged in the indictment (from March 2008, to September 2008).
A
{¶3} A motion for judgment of acquittal should be granted only if the evidence is
“insufficient to sustain a conviction” for the charged offenses. Crim.R. 29(A). The trial
judge reviews a motion for judgment of acquittal by viewing the evidence in a light most
favorable to the state and deciding if that evidence is such that “reasonable minds can
reach different conclusions as to whether each material element of the crime has been
proved beyond a reasonable doubt.” State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d
184 (1978), syllabus. This is the same standard applied to due process claims concerning
the sufficiency of the evidence. See State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492(1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979) (“the relevant inquiry is whether, after reviewing 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”).
{¶4} The state charged Thompson with forgery under R.C. 2913.31(A)(3), which
required proof that Thompson, acting with a purpose to defraud, uttered, or possessed
with purpose to utter, any writing that he knew to have been forged. “Uttering” is
defined in R.C. 2913.01 as “to issue, publish, transfer, use, put or send into circulation,
deliver, or display.”
B
{¶5} The state offered substantial evidence to show that Thompson, in conjunction
with Janell Calloway, recruited people to take payroll checks that Thompson created and
cash them at area locations of a national retail store. Calloway testified that her
involvement with Thompson began in late 2006 or early 2007 when he provided her with
two counterfeit payroll checks that she was able to cash in exchange for $500. A few
days later, Calloway and another person met with Thompson and watched him fill out
checks using a typewriter. Calloway was successful in cashing those checks and
subsequently agreed to recruit other people to cash Thompson’s counterfeit payroll
checks.
{¶6} As the enterprise grew, Calloway persuaded others to give her photocopies of
their paychecks so Thompson could use those checks as templates for his counterfeit
checks. In addition to real paychecks, Thompson would sometimes use business cards
and duplicate them onto checks to make them look official. When Calloway found the
recruits, she would give their names to Thompson and he would prepare the counterfeit
checks. At the height of the operation, during the period from March 2008 to October
2008, Calloway estimated that she recruited approximately 100 people for Thompson’s
counterfeit check cashing scheme.
{¶7} The police first learned about the fraud when one of the recruits gave them
information in the hopes of lenient treatment in an unrelated criminal case. The recuit
told police that Calloway accompanied her as she cashed two counterfeit payroll checks.
The police spoke with the retailer’s fraud investigator and learned that the retailer had
been monitoring an unusually high number of counterfeit payroll checks that it had
cashed. Because those checks sometimes used the name of the person cashing the
checks (and either a driver’s license or social security number), the police were able to
work with the retailer and track down a number of the recruits and piece together the
enterprise, including Calloway’s participation.
{¶8} The police spoke with Calloway and she agreed to cooperate with them and
set up a sting in which she would give Thompson names provided to her by the police.
She had second thoughts, however, and told Thompson about the sting. Two days later
she told the police that she wanted to back out. The police hastily obtained a search
warrant for Thompson’s premises. They found a computer and printer, along with a
black book containing names, addresses, and social security numbers of various
individuals. They also found copies of legitimate payroll checks taped to the underside
of a dresser drawer.
C
{¶9} Viewing the evidence most favorably to the state, we conclude that a rational
trier of fact could find that the state offered evidence going to each element of forgery as
charged under R.C. 2913.31(A)(3). Importantly, Thompson was not charged with
forging the writing of another under subdivision (A)(1) of R.C. 2913.31 — he was only
charged with uttering, or delivering, a writing that he knew to have been forged. So
rather than having to offer evidence to show that Thompson actually forged the checks,
the state only had to offer evidence to show that Thompson, in facilitating a fraud, knew
the checks he gave to Calloway were forged. That being the case, the state offered
ample evidence to show that during the time frame from March 2008, to September 2008,
Thompson knew the checks he gave to Calloway were forged.
{¶10} The object of the criminal enterprise was to negotiate counterfeit payroll
checks. Evidence showed that Thompson prepared the checks using information that he
asked Calloway to obtain from her recruits. At the beginning of the enterprise, he drove
Calloway and her recruits to the retail locations to cash the counterfeit checks. Even
after his relationship with Calloway strengthened to the point where she alone
accompanied the recruits, he kept track of the checks and told Calloway to return all
uncashed checks to him. This was done so that he could record check numbers to ensure
that they were not repeated. Not wanting to repeat check numbers was evidence that
Thompson knew that the checks were counterfeit.
{¶11} On one occasion, Calloway was arrested while using a phony identification
when trying to cash one of the counterfeit checks. She called Thompson to tell him that
she and the recruits had been stopped by the police. Thompson told her, “whatever [you]
do, don’t let them get that paper.” She said that the recruits actually ate the checks.
Thompson’s directive that Calloway and her recruits not let the checks fall into the hands
of the police manifested his understanding that the checks were counterfeit.
{¶12} In addition to evidence regarding the nature of the criminal enterprise,
Thompson instructed Calloway on how to fabricate accounts for the checks. For
example, he told her to find someone with a legitimate payroll check and photocopy the
paycheck so he could use it as a template for a counterfeit check. The police were able
to confirm this testimony when a search of Thompson’s residence uncovered two
legitimate paychecks, from different companies, that he had hidden. Thompson did not
work for either company, so the jury could have considered the checks as circumstantial
evidence that he was using them in furtherance of a scheme to cash counterfeit payroll
checks.
{¶13} All of this evidence was specifically directed at the time frame from March
2008 to September 2008. What is more, the state offered more than just the testimony of
Calloway — 15 of the recruits agreed to plead guilty in exchange for their testimony
against Thompson. They collectively confirmed Calloway’s testimony that they were
recruited to cash counterfeit payroll checks. One of the recruits, Theresa Frescki,
specifically testified that Thompson drove her to a retail store to cash a counterfeit check
and that she received the check from Calloway’s son, who in turn had received the check
from Thompson. We therefore find that the state presented sufficient evidence to show
that Thompson, in facilitating a fraud, knew the checks he gave to Calloway were forged.
II
{¶14} Thompson next argues that his convictions were against the manifest weight
of the evidence, but does not independently argue that point. He does nothing more than
reincorporate the facts he addressed in his first assignment of error. In addition, his
entire argument states: “The manifest weight of the evidence fails to demonstrate
Appellant as the ring leader behind this elaborate check cashing scheme and the
witnesses’ testimony relating to this involvement was either stale or completely biased.”
{¶15} “A claim that a jury verdict is against the manifest weight of the evidence
involves a separate and distinct test that is much broader [than the test for sufficiency].”
State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 193. We
have consistently held that the App.R. 16(A)(7) obligation to present an argument with
respect to each assignment of error presented for review does not allow an appellant to
“incorporate” an argument about the weight of the evidence into an earlier argument that
a conviction is not supported by sufficient evidence. See, e.g., State v. Milligan, 8th Dist.
Cuyahoga No. 98140, 2012-Ohio-5736, ¶ 6. To allow otherwise would be to ignore the
separate and distinct nature of arguments going to the sufficiency and weight of the
evidence. .
{¶16} Thompson does not differentiate his sufficiency of the evidence argument
from his manifest weight of the evidence argument, so we can summarily overrule this
assignment of error. And to the extent there is some differentiation between the two
arguments, he fails to present an argument going to the weight of the evidence. Rather,
he reaches a conclusion — the witnesses’ testimony was either “stale or completely
biased” — without actually explaining how that conclusion is warranted. Again, this is a
failure of the App.R. 16(A)(7) obligation to present an argument with respect to each
assignment of error presented for review. We therefore overrule this assigned error.
III
{¶17} In his third assignment of error, Thompson argues that his convictions for
telecommunications fraud and identity theft, contained in Counts 30 and 31 respectively,
should have merged for sentencing. He maintains that the court specifically found those
counts to be allied offenses, but did not merge them despite ordering that they be served
concurrently.
{¶18} When a defendant’s conduct results in the commission of two or more
“allied” offenses of similar import, that conduct can be charged separately, but the
defendant can be convicted and sentenced for only one offense. R.C. 2941.25(A).
Offenses are “allied” and must be merged for sentencing if the defendant’s conduct is
such that a single act could lead to the commission of separately defined offenses, but
those separate offenses were committed with a state of mind to commit only one act. See
State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 48-50.
{¶19} Count 30, the telecommunications fraud count (R.C. 2913.05(A)), charged
that Thompson, having devised a scheme to defraud, knowingly completed an online
credit card application by using another person’s name. Count 31, the identity theft
count (R.C. 2913.49(B)(1)), charged that Thompson, without the express or implied
consent of the victim, used personal identifying information of the victim to hold himself
out to be the victim.
{¶20} During sentencing, the court ordered the telecommunications fraud and
identity theft counts to run concurrent to each other stating, “because I find those are the
same acts, just one transaction.” The state argues that applying for a credit card using
another person’s name is separate from taking the identity of an actual person, but we see
no distinction. The common thread with both charges was that Thompson held himself
out to be another person — Thompson could not have committed telecommunications
fraud by applying for a credit card in another person’s name unless he actually used that
person’s name as his own. In this circumstance, Thompson’s conduct was such that a
single act (applying for a credit card using another person’s name) could give rise to the
two charged offenses, but those offenses were committed with a single state of mind to
commit only one act. The court correctly concluded that the offenses were committed by
the same act, but erred by failing to merge those counts for sentencing. We sustain this
assignment of error and remand for resentencing at which time the state may choose
which of the two offenses it will pursue for sentencing. State v. Whitfield, 124 Ohio
St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 25.
IV
{¶21} In a pro se assignment of error, Thompson argues that the court abused its
discretion by imposing a total sentence of 32 and one-half years. The length of
Thompson’s sentence was the result of the court ordering a number of the counts to be
served consecutively.
A
{¶22} R.C. 2953.08(A) places strict limits on an appellate court’s ability to review
criminal sentences. In particular, R.C. 2953.08(G)(2) states that “[t]he appellate court’s
standard for review is not whether the sentencing court abused its discretion.” The court
has full discretion to sentence within the statutory range, State v. Foster, 109 Ohio St.3d
1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the syllabus, so we have no
authority to review a claim that the sentences ordered on individual counts was an abuse
of the court’s discretion. State v. Akins, 8th Dist. Cuyahoga No. 99478, 2013-Ohio-5023,
¶ 18. Thompson makes no argument that any of the sentences fell outside the statutory
range for the applicable degree of felony, so we cannot review this aspect of his
assignment of error.
B
{¶23} The same ban on a reviewing court applying an abuse of discretion standard
applies to the court’s directive that Thompson serve some of those sentences
consecutively. The decision whether to order an offender to serve prison terms
consecutively is within the court’s discretion. R.C. 2929.14(C)(4) states: “If multiple
prison terms are imposed on an offender for convictions of multiple offenses, the court
may require the offender to serve the prison terms consecutively * * *.” (Emphasis
added.) To be sure, the court must make certain findings before imposing consecutive
sentences, and the failure to make those findings would render consecutive sentences
“contrary to law” under R.C. 2953.08(A)(4). Akins at ¶ 14. But those findings were
properly made and Thompson makes no argument that they were not. We thus have no
basis for reviewing the court’s decision to impose consecutive sentences.
C
{¶24} Finally, Thompson argues that his sentence was disproportionate to those
given to his codefendants.
{¶25} The concept of “proportionality” in felony sentencing arises only in the
context of consecutive sentences. Under R.C. 2929.14(C)(4), one of the findings the
court must make before it can impose consecutive sentences is that “consecutive
sentences are not disproportionate to the seriousness of the offender’s conduct and to the
danger the offender poses to the public.” Notably, this finding relates solely to the
offender’s conduct and not to the conduct of any others — it does not require the court to
compare the offender’s conduct to that of others. As we previously noted, Thompson
raised no argument that the court failed to make the required findings before imposing
consecutive sentences, so he cannot claim that consecutive sentences are disproportionate
to his conduct.
{¶26} What Thompson actually argues is that his sentence is not “consistent with
sentences imposed for similar crimes committed by similar offenders” as required by R.C.
2929.11(B). We have held that “consistency” in sentencing is not the same as
uniformity. State v. Bonness, 8th Dist. Cuyahoga No. 96557, 2012-Ohio-474, ¶ 27.
When codefendants accept plea bargains for reduced charges in exchange for agreeing to
testify against a codefendant, they are no longer “similar” offenders for purposes of R.C.
2929.11(B). Sentences given to codefendants under those circumstances are
incomparable, so the court had no obligation to sentence Thompson similarly to his
codefendants.
{¶27} Thompson’s convictions are affirmed, however we reverse in part and
remand to the trial court for resentencing consistent with this opinion.
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 Cuyahoga
County Court of Common Pleas to carry this judgment into execution. The defendant’s
convictions having been affirmed, 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.
MELODY J. STEWART, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
KATHLEEN ANN KEOUGH, J., CONCUR