[Cite as State v. Flanagan , 2019-Ohio-4665.]

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 : O P I N I O N

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 44702-1413Stark County, Case No. 2018CA0175 2

Baldwin, J. {¶1} Benjamin James Flanagan appeals the decision of the Stark Count y Court of Common Pleas convicting him o f Theft from a Person in a Prot ected 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 th e fifth degree. Appellee is

the State of Ohio.

STATEMENT OF FACTS AND THE CASE {¶2} Appellant performed work for Victoria Summers and she later dis covered unauthorized withdrawals from a jointly held checking account f or several thousand dollars. The ensuing investigation lead to charges against App ellant 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 soli citing assistance with maintenance on her property. Appellant’s wife was a casual acquaintance of Ms. Summers as both shared an interest in Borde r 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. S ummers 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 o nly 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 perf ormed, both by checks

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

{¶5} Ms. Summers explained that the money in the account was Mr. Saw atis’s and that she had power of attorney for him. Mr. Sawatis was li ving with her and under her care due to his medical condition. He was seventy-five year s old when the incident

described in the indictment occurred. {¶6} Ms. Summers was dissatisfied with Appellant’s work, so she disc ontinued using his services after issuing the two checks. Appellant con tended that he continued to work throughout June 2017 and that Ms. Summers suggested tha t she pay for his services by paying his credit card debt. {¶7} In July 2017, Ms. Summers noticed unauthorized debits in her ba nk 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 t hen visited her bank. While at the bank there was another attempt to debit her accoun t 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 pa yments to Chase or Discover that were not authorized by her in the following amoun ts: $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 t hat the payments had been made to credit card accounts that were held i n the name of Appellant’s wife, Shannon Flanagan. Detective Green approached Mrs. Flanagan about the payments and she indicated that she understood that her hus band had made the payments. She also believed that her husband was employed. Det ective Green approached Appellant, who claimed that he had no knowledge of t he payments. When he was told that his wife would be charged with criminal offens es as a result of theStark County, Case No. 2018CA0175 4

investigation, he insisted that his wife would not do such a th ing and that he was responsible. He admitted he was unemployed and was carrying hi s wife’s Chase credit card. He claimed that Ms. Summers had made a payment to the Ch ase Card via phone, but Summer’s phone records did not reflect any calls to Chase o r 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 s he pay him by paying his credit card debt and that she relayed this information via a ce ll phone. When asked why he did not offer this explanation to Detective Green, he compla ined that he did not have the opportunity. {¶9} Detective Green obtained the records for the credit cards at is sue and discovered payments to the credit card accounts that matched th e amount and approximate date of the withdrawals from the victim’s bank acco unt. The Detective also discovered the rejected payment in the amount of $1174.94, whic h she described as matching the amount and date of the charge that was submitted w hen Ms. Summers was present at the bank investigating the source of the unauthorize d charges. She did not approve that charge, the bank rejected it and the records offer ed 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 p ayments. {¶11} Ms. Summer’s possession of a cell phone was an issue in this ca se, 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 r ecords, but Detective GreenStark County, Case No. 2018CA0175 5

traced that number to a Renee Wilcox, so that number did not be long 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 t hat Appellant alleged she used her cell phone. {¶12} Appellant presented his case to the jury and was found guilty o n both counts. He filed a timely notice of appeal and submitted one a ssignment of error: {¶13} “I. APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.”

STANDARD OF REVIEW {¶14} When reviewing t he sufficiency of the ev idence, an appellate co urt does not

ask whether the evidence should be believed. State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “The relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecu tion, any rational trier of fact could have found the essential elements of the crime prove n beyond a reasonable

doubt.” Id. at paragraph two of the syllabus. State v. Poutney, 153 Ohio St.3d 474, 2018- Ohio-22, 97 N.E.3d 478, ¶19. Thus, “on review for evidentiary s ufficiency 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 , 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001), quoting Jenks at paragraph two of the syllabus. We will not “disturb a verdi ct on appeal on sufficiency grounds unless ‘reasonable minds could not reach the conclusion reached by the trier-of-fact.’ ” State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (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 eviden ce, even though the evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678 N.E.2d 541 (1997), superseded by constitutional amendment o n other grounds as stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v.

Issa , 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001). “[I]n determining whether the judgment below is manifestly agai nst the weight of the evidence, every reasonable intendment and every r easonable presumption must be made in favor of the judgment and the findi ng of facts.

* * “If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consiste nt with the verdict and judgment, most favorable to sustaining the verdict and judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 6 0, at 191–192 (1978). {¶16} The reviewing court must bear in mind, however, that credibilit y generally is

an issue for the trier of fact to resolve. State v. Issa , 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (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 p articularly competent to decide whether, and to what extent, to credit the testimony of particular witnesses, the appellate court must afford substantial deference to its determ inations of credibility. Barberton v. Jenney , 126 Ohio St.3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20. In o therStark County, Case No. 2018CA0175 7

words, “[w]hen there exist two fairly reasonable views of the e vidence 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, 131 Ohio App.3d 197, 201, 722 N.E.2d 125(7th Dist. 1999). Thus, an appellate court will leave the issues of weight and cr edibility of the evidence to the fact finder, as long as a rational basis exists in the reco rd 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 f ind 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.’ ” Thompkins, supra at 387, quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional cas e in which the evidence weighs heavily against the conviction.” Id.

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 r equires 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 s ervices in any of the following ways: (1) Without the consent of the owner or person authorized to gi ve consent;Stark County, Case No. 2018CA0175 8

(2) Beyond the scope of the express or implied consent of the o wner or person authorized to give consent; (3) By deception”

{¶19} The Appellee must also establish the victim was elderly or a di sabled adult. An “Elderly person” means a person who is sixty-five years of a ge or older. R.C. 2913.01(CC) and a “Disabled adult” means a person who is eighte en years of age or older and has some impairment of body or mind that makes the pe rson unable to work at any substantially remunerative employment that the person other wise would be able to perform and that will, with reasonable probability, continue fo r a period of at least twelve months without any present indication of recovery from the impa irment, 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 demo nstrates that he was a disabled adult, being over the age of eighteen and requiring co nstant 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 tha t Appellant possessed or

controlled the funds {¶21} During the trial, Appellant did not dispute that he received th e funds, but maintained that he had performed work that entitled him to paym ent and that Ms.Stark County, Case No. 2018CA0175 9

Summers had agreed to pay his credit card bills. This admissio n to the Detective, supplemented by bank records, undermines his contention there w as 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 sh e 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 ackno wledged 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 per son 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 tes timony 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 rev iew for evidentiary sufficiency we do not second-guess the jury's credibility deter minations,” Murphy , supra 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 ex ists in the record for its

decision.” Picklesimer, supra. {¶24} After viewing the evidence in a light most favorable to the pro secution, we hold that any rational trier of fact could have found the essen tial elements of the crime proven beyond a reasonable doubt, that the evidence is not agai nst the manifest weight of the evidence as nothing within the record supports a conclus ion that the jury lost itsStark County, Case No. 2018CA0175 10

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

conviction. {¶25} Appellant’s assignment of error is overruled and the decision o f the Stark County Court of Common Pleas is affirmed.

By: Baldwin, J. Wise, John, P.J. and Wise, Earle, J. concur.