[Cite as State v. Allen, 2011-Ohio-4821.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 96014

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

JONAS ALLEN

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-512245 

BEFORE: Cooney, J., Jones, P.J., and E. Gallagher, J. 

RELEASED AND JOURNALIZED: September 22, 2011 
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ATTORNEY FOR APPELLANT

Thomas A. Rein 

Leader Building, Suite 940 

526 Superior Avenue 

Cleveland, Ohio 44114 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

By: Edward H. Kraus 

Assistant County Prosecutor 

9th Floor, Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 

COLLEEN CONWAY COONEY, J.: 

{¶ 1} Defendant-appellant, Jonas Allen (“Allen”), appeals his convictions for 

tampering with records, telecommunications fraud, and securing records by deception. 

Finding no merit to the appeal, we affirm. 

{¶ 2} In July 2008, Allen was indicted on five counts of tampering with records 

(Counts 1, 3, 4, 7, and 9), three counts of theft (Counts 2, 6, and 8), one count of 

telecommunications fraud (Count 5), and one count of securing records by deception (Count 
3

10). At the conclusion of the State’s case in Allen’s jury trial, the court granted Allen’s Rule 

29 motion as to one count of theft (Count 2), but denied his motion on the remaining counts. 

{¶ 3} In September 2010, the jury found Allen guilty of Counts 1, 3, 5, 7, 9, and 10, 

and not guilty of Counts 4, 6, and 8. Allen was sentenced to two months’ incarceration on 

Count 10, followed by two years of community control sanction for the remaining counts. 

{¶ 4} Allen now appeals, raising three assignments of error. 

Sufficiency and Manifest Weight of the Evidence

{¶ 5} In his first assignment of error, Allen argues that his convictions are not 

supported by sufficient evidence. In his second assignment of error, he argues that his 

convictions are against the manifest weight of the evidence. These two assignments are 

related to the same set of facts and will therefore be discussed together. 

{¶ 6} In State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶113, 

the Ohio Supreme Court explained the standard for sufficiency of the evidence: 

“Raising the question of whether the evidence is legally sufficient to support the jury 

verdict as a matter of law invokes a due process concern. State v. Thompkins (1997), 

78 Ohio St.3d 380, 386, 678 N.E.2d 541. In reviewing such a challenge, ‘[t]he 

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 (1991), 574 N.E.2d 492, 

paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99 

S.Ct. 2781, 61 L.Ed.2d 560.”
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{¶ 7} In a sufficiency review, however, this court does not make determinations of 

credibility. Rather, the court decides, based on the evidence presented if believed, whether any 

rational trier of fact could have found the defendant guilty of the crimes charged. 

{¶ 8} Although the test for sufficiency requires a determination of whether the 

prosecution has met its burden of production at trial, a manifest weight challenge questions 

whether the prosecution has met its burden of persuasion. Thompkins at 390. When 

considering a manifest weight claim, a reviewing court must examine the entire record, weigh 

the evidence, and consider the credibility of witnesses. State v. Thomas (1982), 70 Ohio 

St.2d 79, 80, 434 N.E.2d 1356. The court may reverse the judgment of conviction if it 

appears that the factfinder “‘clearly lost its way and created such a manifest miscarriage of 

justice that the conviction must be reversed and a new trial ordered.’” Thompkins at 387, 

quoting State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. 

{¶ 9} A judgment should be reversed as against the manifest weight of the evidence 

“only in the exceptional case in which the evidence weighs heavily against the conviction.”

Thompkins at 387. 

{¶ 10} Allen was convicted of four counts of tampering with records, under R.C. 

2913.42(A)(1), which states: 

{¶ 11} “No person, knowing the person has no privilege to do so, and with purpose to 

defraud or knowing that the person is facilitating a fraud, shall do any of the following: 
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[f]alsify, destroy, remove, conceal, alter, deface, or mutilate any writing, computer software, 

data, or record[.]”

{¶ 12} Allen was convicted of one count of telecommunications fraud, under R.C. 

2913.05(A), which states: 

{¶ 13} “No person, having devised a scheme to defraud, shall knowingly disseminate, 

transmit, or cause to be disseminated or transmitted by means of a wire, radio, satellite, 

telecommunication, telecommunications device, or telecommunications service any writing, 

data, sign, signal, picture, sound, or image with purpose to execute or otherwise further the 

scheme to defraud.”

{¶ 14} Finally, Allen was convicted of one count of securing records by deception, 

under R.C. 2913.43(A), which states: 

{¶ 15} “No person, by deception, shall cause another to execute any writing that 

disposes of or encumbers property, or by which a pecuniary obligation is incurred.”

{¶ 16} The following evidence was adduced at trial. 

{¶ 17} Allen, a mortgage broker, was employed by Automated Transfer Mortgage from 

2002-2008. 

{¶ 18} In 2005, Allen pursued a property through a sheriff’s auction. This property 

was a single-family home in Solon, Ohio (“Solon home”), that had been foreclosed upon due 

to the prior owner’s inability to maintain the mortgage. Although Allen’s sister, Sonya Allen 
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(“Sonya”), had no intention of living in the home, Allen filled out the loan application for a 

mortgage on the home in her name.1

 

{¶ 19} Sonya lived in a home on Alhambra Road in Cleveland (“Cleveland home”). 

In order to secure the mortgage, Allen fraudulently filled out a mortgage application (Form 

1003) with a false income amount2

 and faxed it to NLC Financial Services, the mortgage 

holder. Allen also created a false affidavit in which he stipulated that Sonya would occupy 

the Solon home and rent the Cleveland home to a friend of Allen’s named Darren Sweeney. 

Sonya testified that she never rented her Cleveland home to Sweeney. 

{¶ 20} Sonya admitted signing the mortgage application but claimed that she did not 

fill out the form herself, nor did she review the contents. Allen “took care of the whole 

thing” for her. After securing the mortgage, Sonya did not move into the Solon home. 

Instead, Allen rented the home to David Turner (“Turner”) and Celeste Lee (“Lee”). Under 

the false impression that they were leasing the home with an option to buy, Turner and Lee 

paid Allen a down payment of $10,000 and monthly rent of $2,000. Instead of using this 

income to pay the mortgage, Allen allowed the mortgage to default and enter foreclosure — in 

Sonya’s name. 

 1

 Sonya was also indicted for these crimes. She pled guilty to two misdemeanors and 

agreed to testify against her brother. 

2

 The application listed Sonya’s income as $69,000, as opposed to the $15,000 indicated on 
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{¶ 21} Sonya discovered that the home was in foreclosure and demanded that her 

brother remedy the situation. While Turner and Lee were still leasing and occupying the 

Solon home, Allen sold it to Deborah Pankuch (“Pankuch”). Pankuch testified that she 

originally contacted Allen in hopes that he could help improve her credit score by investing in 

property. He convinced her that purchasing the Solon home was a good investment. She 

trusted Allen and allowed him to handle all of the paperwork regarding her purchase of the 

Solon home. Although Pankuch admitted signing the mortgage application, she claimed that 

she did not review the contents of the form. Once again, Allen secured this sale by using a 

false income amount on the mortgage application (Form 1003). Without the means to pay 

the mortgage with her actual income, the mortgage defaulted and entered foreclosure, this time 

in Pankuch’s name. 

{¶ 22} Allen testified at trial and argued that he had secured the Solon home for his 

sister in an attempt to help her and her children live in a neighborhood with better schools. 

Allen denied any wrongdoing on his part. 

{¶ 23} Solon police lieutenant Chris Viland (“Viland”) testified regarding this 

particular fraud, as well as the dozens of others he had seen in recent years. He testified that 

all of the documents faxed to the mortgage companies had Allen’s fax number on them. 

 

her W2 form. 
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Viland testified about the false information contained in the mortgage applications, the 

affidavit, and the HUD down-payment form. He testified that, from his experience, Sonya 

and Pankuch were “straw” buyers, meaning false buyers who participated in the fraud. He 

testified that the totality of the documents and circumstances involved in the instant case led 

him to believe that Allen had committed mortgage fraud. 

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

sufficient evidence to establish, beyond a reasonable doubt, that Allen committed tampering 

with records, telecommunications fraud, and securing records by deception. Moreover, based 

on the aforementioned facts and circumstances, we find that the conviction is not against the 

manifest weight of the evidence. We cannot say that the jury lost its way and created a 

manifest injustice in convicting Allen. 

{¶ 25} Accordingly, Allen’s first and second assignments of error are overruled. 

Expert Witness

{¶ 26} In his third assignment of error, Allen argues that he was denied his right to a 

fair trial when the trial court allowed expert testimony from a witness who was not qualified as 

an expert. 

{¶ 27} Allen argues that the testimony of Steve Newcomb (“Newcomb”), an employee 

of the parent company of Argent Mortgage Company, denied him of his right to a fair trial. 
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{¶ 28} However, Newcomb was never determined by the trial court to be an expert. 

The trial court had full discretion to allow Newcomb to testify despite not being deemed an 

expert, because he was the representative of one of the companies involved in the mortgage 

fraud. Evid.R. 701, opinion testimony by lay witnesses, states: 

{¶ 29} “If the witness is not testifying as an expert, the witness’ testimony in the form 

of opinions or inferences is limited to those opinions or inferences which are (1) rationally 

based on the perception of the witness and (2) helpful to a clear understanding of the witness’

testimony or the determination of a fact in issue.”

{¶ 30} In fact, when Allen’s trial counsel objected to Newcomb’s testimony as being 

an expert opinion on a subject he was not directly involved in, the trial court sustained the 

objection. The court struck a portion of Newcomb’s testimony regarding his opinion of the 

fraud perpetrated by Allen on another mortgage company. The trial court gave the 

following curative instruction to the jury: 

{¶ 31} “Yesterday Mr. Newcomb gave his opinion as to some activities that he 

believed was fraud. I’m going to ask you to disregard his testimony as to that. I want you 

to disregard testimony about the first NLC loan and the 1003 form involved in that transaction. 

 That information will be stricken from the record.” 

{¶ 32} A jury is presumed to follow the instructions, including curative instructions, 

given by a trial judge. State v. Charley, Cuyahoga App. No. 82944, 2004-Ohio-3463, ¶51, 
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citing State v. Loza, 71 Ohio St.3d 61, 75, 1994-Ohio-409. Allen offers no evidence that the 

jury did not abide by the judge’s instruction. Moreover, Allen’s counsel did not object to 

these instructions when they were given nor does Allen challenge the clarity of these 

instructions on appeal. Accordingly, he has waived all but plain error. Puckett v. United 

States (2009), 556 U.S. 129, 129 S.Ct. 1423, 173 L.Ed.2d 266. 

{¶ 33} Without any evidence to the contrary, we presume that the jury followed the 

judge’s curative instruction. Thus, we find no error regarding Newcomb’s testimony. 

{¶ 34} Accordingly, Allen’s third assignment of error is overruled. 

Judgment affirmed. 

It is ordered that appellee recover of appellant 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 

conviction having been affirmed, any bail pending appeal is terminated. 

Case remanded to the trial court for execution of sentence. 
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A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure.

______________________________________________ 

COLLEEN CONWAY COONEY, JUDGE 

LARRY A. JONES, P.J., and 

EILEEN A. GALLAGHER, J., CONCUR