[Cite as State v. Luton, 2018-Ohio-4708.]

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, 134 Ohio St.3d 447, 2012-Ohio-5688, 983 N.E.2d 324, ¶ 20. 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, 6 Ohio St.3d 475, 477, 

453 N.E.2d 716 (1983), citing State v. Draggo, 65 Ohio St.2d 88, 90, 418 N.E.2d 

1343 (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.’” Hampton at ¶ 19, quoting State v. Nevius, 147 

Ohio St. 263, 71 N.E.2d 258 (1947), paragraph three of the syllabus.

State v. May, 2015-Ohio-4275, 49 N.E.3d 736, ¶ 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. Id. 

{¶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, 2016-Ohio-5710, ¶ 16, 

citing State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, ¶ 142. 

{¶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, 2011-Ohio-5388, ¶ 7. 

{¶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, 2015-Ohio-1199, ¶ 36, citing State v. Chintalapalli, 88 Ohio St.3d 43, 

45, 2000-Ohio-266, 723 N.E.2d 111; Headley, 6 Ohio St.3d at 477, 453 N.E.2d 716; Hampton, 

134 Ohio St.3d 447, 2012-Ohio-5688, 983 N.E.2d 324, at ¶ 19 (“‘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, 77 Ohio St. 34, 82 

N.E. 969 (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, 2006-Ohio-20, ¶ 41, citing State v. Thompkins, 78 Ohio St.3d 380, 390, 

678 N.E.2d 541 (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, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 

77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (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. Thompkins at 387. 

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, 81 Ohio St.3d 467, 471, 692 N.E.2d 198 (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, 90 

Ohio St.3d 320, 324, 738 N.E.2d 1178 (2000), quoting State v. Kollar, 93 Ohio St. 89, 91, 112 

N.E. 196 (1915). “Invited error extends to stipulations.” State v. Franks, 8th Dist. Cuyahoga 

No. 103682, 2016-Ohio-5241, ¶ 8, citing State v. McClendon, 10th Dist. Franklin No. 11AP-354, 

2011-Ohio-6235, ¶ 37; see also Savage v. Savage, 4th Dist. Pike No. 15CA856, 

2015-Ohio-5290, ¶ 17, citing State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 

860, ¶ 20-21 (“[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, 

2015-Ohio-597, ¶ 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. Id., citing State v. Waddell, 75 Ohio St.3d 163, 166, 661 N.E.2d 1043 (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, 192 Ohio App.3d 108, 2010-Ohio-5759, 948 N.E.2d 454, ¶ 35 

(8th Dist.), citing State v. Davis, 8 Ohio App.3d 205, 207, 456 N.E.2d 1256 (8th Dist.1982), and 

State v. Sumlin, 8th Dist. Cuyahoga No. 37559, 1978 Ohio App. LEXIS 10489 (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, 

2015-Ohio-597, 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, 2018-Ohio-2522, ¶ 17, citing State v. Pratts, 8th Dist. Cuyahoga No. 104235, 

2016-Ohio-8053, ¶ 43, and Wells Fargo Bank, N.A. v. Bluhm, 6th Dist. Erie No. E-13-052, 

2015-Ohio-921, ¶ 17; see also State v. Phillips, 74 Ohio St.3d 72, 93, 656 N.E.2d 643 (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, 181 Ohio App.3d 106, 2009-Ohio-621, 907 N.E.2d 1254, ¶ 14-15 (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, 

2009-Ohio-3598, ¶ 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, 78 Ohio St.3d at 388, 678 

N.E.2d 541. 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.” 

Id. 

{¶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, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 

(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, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, 

¶ 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, 

2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (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, 2017-Ohio-5568, 93 N.E.3d 472, ¶ 58 (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