[Cite as State v. Suffel, 2015-Ohio-222.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               PAULDING COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 11-14-05

        v.

CHRISTOPHER D. SUFFEL,                                     OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Paulding County Common Pleas Court
                            Trial Court No. CR-13-568

                                       Judgment Affirmed

                            Date of Decision: January 26, 2015




APPEARANCES:

        Harvey D. Hyman for Appellant

        Joseph R. Burkard for Appellee
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PRESTON, J.

       {¶1} Defendant-appellant, Christopher D. Suffel (“Suffel”), appeals the

May 14, 2014 judgment entry of sentence of the Paulding County Court of

Common Pleas. He argues that his convictions are against the manifest weight of

the evidence, that the trial court erred in overruling his Crim.R. 29 motions for

acquittal, and that the trial court erred in refusing his requested jury instruction

regarding “accident.” For the reasons that follow, we affirm.

       {¶2} On September 10, 2013, the Paulding County Grand Jury indicted

Suffel on Counts One, Two, and Three of forgery in violation of R.C.

2913.31(A)(3), fifth-degree felonies. (Doc. No. 1). Count One stemmed from an

August 6, 2013 incident in which Suffel allegedly produced a counterfeit $100 bill

to the clerk at the Valero store in Paulding, Ohio to pay for miscellaneous items.

(Doc. No. 14). Counts Two and Three stemmed from August 6, 2013 incidents in

which Suffel allegedly produced two counterfeit $50 bills and a counterfeit $100

bill, respectively, at the Eagles in Paulding, Ohio to pay for lottery tickets. (Id.).

       {¶3} On April 1, 2014, a jury trial was held on the indictment. (Apr. 1,

2014 Tr. at 5). The jury found Suffel guilty of all three counts in the indictment.

(Id. at 170-171); (Doc. No. 46).

       {¶4} The trial court held a sentencing hearing on May 12, 2014 and

sentenced Suffel to eight months imprisonment on each count, to be served

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consecutively for an aggregate prison term of 24 months. (May 12, 2014 Tr. at 9).

The trial court filed its judgment entry of sentence on May 14, 2014. (Doc. No.

47).

        {¶5} On June 12, 2014, Suffel filed a notice of appeal. (Doc. No. 49). He

raises three assignments of error for our review. We will address Suffel’s first and

second assignments of error together, followed by his third assignment of error.

                                   Assignment of Error No. I

        The verdict and the conviction of the appellant as to Counts I
        and II of the indictment were against the manifest weight of the
        evidence. (T. at pp. 170-171)

                                  Assignment of Error No. II

        The trial court erred in overruling the defendant’s Rule 29
        motions for acquittal. (T. at pp. 123 and 137)

        {¶6} In his first assignment of error, Suffel argues that his convictions for

Counts One and Two are against the manifest weight of the evidence.1

Specifically, he argues that the State presented no evidence “of any purpose to

defraud on the part of [Suffel]” or “to support an inference that [Suffel] knew the

two $50.00 bills were forged, nor that [Suffel] knew the $100.00 bill was forged

when he first presented it at Valero.” (Appellant’s Brief at 3). In his second


1
  Under his first assignment of error, Suffel does not argue that his conviction for Count Three is against
the manifest weight of the evidence. However, under his second assignment of error, Suffel disputes the
trial court’s overruling his Crim.R. 29 motions for acquittal, in which Suffel challenged each of the three
counts in the indictment. (See Apr. 1, 2014 Tr. at 120).

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assignment of error, Suffel argues that the trial court erred in overruling his

Crim.R. 29 motions for acquittal, which he made at the close of the State’s and his

cases at trial.   Specifically, he argues that “the State failed to demonstrate

[Suffel]’s purpose to defraud and his knowledge of the fact the bills were forged,

both essential elements of the charges.” (Id. at 5).

       {¶7} Crim.R. 29(A) provides that a court must order the entry of a

judgment of acquittal of a charged offense “if the evidence is insufficient to

sustain a conviction of such offense.” However, “a court shall not order an entry

of judgment of acquittal if the evidence is such that reasonable minds can reach

different conclusions as to whether each material element of a crime has been

proved beyond a reasonable doubt.” State v. Bridgeman, 55 Ohio St.2d 261

(1978), syllabus. “The Bridgeman standard ‘must be viewed in light of the

sufficiency of evidence test[.]’” State v. Hansen, 3d Dist. Seneca No. 13-12-42,

2013-Ohio-1735, ¶ 35, quoting State v. Foster, 3d Dist. Seneca No. 13-97-09,

1997 WL 576353, *2 (Sept. 17, 1997).           See also State v. Perkins, 3d Dist.

Hancock No. 5-13-01, 2014-Ohio-752, ¶ 28 (“[A] motion for acquittal tests the

sufficiency of the evidence.”), citing State v. Tatum, 3d Dist. Seneca No.

13-10-18, 2011-Ohio-3005, ¶ 43.

       {¶8} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

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trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio

St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89 (1997).

Accordingly, “[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.” Id. “In

deciding if the evidence was sufficient, we neither resolve evidentiary conflicts

nor assess the credibility of witnesses, as both are functions reserved for the trier

of fact.”   State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571,

2013-Ohio-4775, ¶ 33, citing State v. Williams, 197 Ohio App.3d 505,

2011-Ohio-6267, ¶ 25 (1st Dist.). See also State v. Berry, 3d Dist. Defiance No.

4-12-03, 2013-Ohio-2380, ¶ 19 (“Sufficiency of the evidence is a test of adequacy

rather than credibility or weight of the evidence.”), citing State v. Thompkins, 78

Ohio St.3d 380, 386 (1997).

       {¶9} On the other hand, in determining whether a conviction is against the

manifest weight of the evidence, a reviewing court must examine the entire record,

“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of

witnesses and determine[ ] whether in resolving conflicts in the evidence, the [trier

of fact] clearly lost its way and created such a manifest miscarriage of justice that

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

quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing

court must, however, allow the trier of fact appropriate discretion on matters

relating to the weight of the evidence and the credibility of the witnesses. State v.

DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. When applying

the manifest-weight standard, “[o]nly in exceptional cases, where the evidence

‘weighs heavily against the conviction,’ should an appellate court overturn the trial

court’s judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶

9, quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.

       {¶10} Suffel was convicted of three counts of forgery in violation of R.C.

2913.31(A)(3). That statute provides, “No person, with purpose to defraud, or

knowing that the person is facilitating a fraud, shall * * * [u]tter, or possess with

purpose to utter, any writing that the person knows to have been forged.” R.C.

2913.31(A)(3). Under his first and second assignments of error, Suffel disputes

only the “purpose to defraud” and “knows to have been forged” elements of

forgery set forth in R.C. 2913.31(A)(3). Therefore, we will limit our review under

Suffel’s first and second assignments of error to only those elements. See State v.

Alexander, 8th Dist. Cuyahoga No. 85688, 2005-Ohio-5200, ¶ 34.

       {¶11} “‘Defraud’ means to knowingly obtain, by deception, some benefit

for oneself or another, or to knowingly cause, by deception, some detriment to

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another.” R.C. 2913.01(B). “‘Forge’ means to fabricate or create, in whole or in

part and by any means, any spurious writing, or to make, execute, alter, complete,

reproduce, or otherwise purport to authenticate any writing, when the writing in

fact is not authenticated by that conduct.” R.C. 2913.01(G).2

        {¶12} To be convicted of violating R.C. 2913.31(A)(3), a person must act

“with purpose to defraud” or “knowing that the person is facilitating a fraud.”

(Emphasis added.) R.C. 2913.31(A)(3). To defraud, one must act “knowingly.”

R.C. 2913.01(B). “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.” R.C.

2901.22(A).        See also State v. Fugate, 2d Dist. Montgomery No. 25782,

2014-Ohio-415, ¶ 24. “A person acts knowingly, regardless of his purpose, when

he is aware that his conduct will probably cause a certain result or will probably be

of a certain nature. A person has knowledge of circumstances when he is aware

that such circumstances probably exist.” R.C. 2901.22(B). See also State v.

Windle, 11th Dist. Lake No. 2010-L-033, 2011-Ohio-4171, ¶ 31.




2
 Although Suffel does not dispute the “[u]tter, or possess with purpose to utter” element set forth in R.C.
2913.31(A)(3), “‘[u]tter’ means to issue, publish, transfer, use, put or send into circulation, deliver, or
display.” R.C. 2913.01(H).

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       {¶13} A jury may infer from circumstantial evidence that a defendant acted

purposely or knowingly.      State v. Jenkins, 4th Dist. Lawrence No. 05CA7,

2006-Ohio-2546, ¶ 27, citing State v. Shue, 97 Ohio App.3d 459, 466 (9th

Dist.1994); State v. Sidders, 3d Dist. Union No. 14-08-24, 2009-Ohio-409, ¶ 26,

citing State v. Buelow, 10th Dist. Franklin Nos. 07AP-317 and 07AP-318,

2007-Ohio-5929, ¶ 25; State v. Terry, 186 Ohio App.3d 670, 2010-Ohio-1604, ¶

22 (4th Dist.), citing State v. Seiber, 56 Ohio St.3d 4, 13-14 (1990); State v Coats,

3d Dist. Hancock No. 5-90-48, 1991 WL 218054, *2 (Aug. 29, 1991), citing State

v. Bradley, 26 Ohio App.2d 229 (4th Dist.1971). See also Fugate at ¶ 25. In fact,

“because the fact-finder is incapable of peering into the mind of the criminal

defendant,” the defendant’s mental state can often be established only by

circumstantial evidence. Terry at ¶ 22, citing State v. Adams, 4th Dist. Ross No.

94CA2041, 1995 WL 360247, *4 (June 8, 1995). “If the defendant does not

testify as to his state of mind, the fact-finder must decide what his intent is by

looking at the surrounding facts and circumstances.” Id., citing State v. Lott, 51

Ohio St.3d 160, 168 (1990). “Moreover, a series of facts and circumstances can

be employed by a jury as the basis for the ultimate conclusion in a case.” State v.

Gowins, 5th Dist. Stark No. 2007-CA-00170, 2008-Ohio-440, ¶ 24, citing Lott at

168.



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       {¶14} At trial, the State offered the testimony of Louis Johns (“Johns”) of

the United States Secret Service. (Apr. 1, 2014 Tr. at 54). He identified State’s

Exhibit 1 as a counterfeit $100 bill and State’s Exhibits 2 and 3 as counterfeit $50

bills. (Id. at 57-64). On cross-examination, Johns admitted that “[t]here are times

when individuals do not know they have” counterfeit currency in their possession.

(Id. at 64-65). He also agreed that “[i]t’s not uncommon” for people “to be duped

by fake currency.” (Id. at 65).

       {¶15} The State also called Robin McCord (“McCord”), who on the date of

the alleged offenses, August 6, 2013, was employed as a cashier at the Valero gas

station in Paulding. (Id. at 68-69). She testified that around 10 or 11 o’clock in

the morning that day, Suffel gave her a $100 bill that “had a blue tint” and “a

funny look” to pay for his purchases. (Id. at 70-71). According to McCord, she

used a counterfeit pen to determine the bill was counterfeit. (Id.). McCord

described how Suffel reacted when she told him that the bill was counterfeit:

       I think he said, WTF, but used the words.

       ***

       And he was visibly agitated, he was mad, you know. And then I

       showed it to him because I wanted him to know I wasn’t lying, and

       he grabbed it from me, and he paid for his purchases and left.



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(Id.). McCord also testified, “I believe he told me that he had * * * sold some

speakers or something on eBay or from somebody, and they gave him the money.”

(Id. at 72). McCord identified State’s Exhibit 1 as the counterfeit $100 bill that

Suffel handed to her. (Id. at 72-73). McCord called the police and informed them

of what happened. (Id. at 73).

       {¶16} On cross-examination, McCord explained that after she discovered

and told Suffel that the $100 bill was counterfeit, “he immediately grabbed money

out of his pocket” and replaced it with a $100 bill that McCord marked twice with

the counterfeit pen to confirm it was not counterfeit. (Id. at 76-77). She also

testified that Suffel “wanted to see the mark” that she made on the counterfeit bill

with the counterfeit pen, so she showed it to him. (Id. at 77).

       {¶17} The State called Sarah Kurtz (“Kurtz”) who on August 6, 2013 was

employed at the Eagles in Paulding.        (Id. at 79).   She testified that “maybe

between 1:30, 2:30” that day, Suffel, who is a “regular” at the Eagles, came in and

played “pull-off tickets,” which are games of chance. (Id. at 80-82). According to

Kurtz, Suffel handed her a $50 bill that “felt different than a usual 50,” but she

“dismissed that thought” because he was “a regular with his father.” (Id. at 81).

Kurtz testified that Suffel left the Eagles, and when he did, she “had two $50 bills

in [her] ticket drawer from him because he was the only one playing tickets at that

time.” (Id.). Suffel used the $50 bills to pay for the pull-off tickets. (Id. at 82).

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According to Kurtz, the Eagles at that time did not have a counterfeit pen to check

bills. (Id.).

        {¶18} Kurtz testified that Suffel came back to the Eagles “a couples hours

after his first time in,” sometime between four and six o’clock, and again played

pull-off tickets. (Id. at 83-84). According to Kurtz, Suffel handed her a $100 bill

to pay for $20 worth of tickets, and “that bill felt the same as the 50,” which was

more “like a paper, like a textile” than a regular bill. (Id. at 84). Kurtz “instantly

put it up to the light, and there was no * * * identifying strip that a $100 bill

should have.” (Id. at 85). Kurtz also observed that the $100 bill had a marking

from an “identifying pen.” (Id. at 89). She gave the $100 bill back to Suffel and

told him he needed to take it “back to the bank because it’s not right.” (Id. at 85).

According to Kurtz, Suffel “still wanted to play the $20 of tickets,” so he gave her

a regular $20 bill. (Id. at 87).

        {¶19} Kurtz testified that at that point, she “realize[d] that the two $50 bills

that [were] in [her] ticket drawer, more than likely [were] fake as well.” (Id. at

86). According to Kurtz, she determined that the two $50 bills that Suffel gave

her earlier in the day were counterfeit after comparing them with another $50 bill

that a patron used to buy tickets between Suffel’s visits to the Eagles. (Id. at

86-87). According to Kurtz, the two $50 bills had the same serial number and

“were not the same length and the same width” as the $50 bill from the other

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patron. (Id. at 87, 89). Kurtz identified State’s Exhibit 1 as the $100 bill and

State’s Exhibits 2 and 3 as the two $50 bills that Suffel handed to her. (Id. at

88-90). Kurtz testified that she was terminated from her employment at the Eagles

following “a situation in October concerning Keno and tickets being played.” (Id.

at 92).

          {¶20} On cross-examination, Kurtz testified that Suffel “would usually

come in a few times a week,” and on none of those other occasions did she come

across money that she estimated to be counterfeit. (Id. at 94). According to Kurtz,

on August 6, 2013, Suffel paid with bills other than the counterfeit bills. (Id. at

94-95). Kurtz determined that other currency with which Suffel paid that day was

genuine. (Id. at 95-96). Kurtz made change for Suffel earlier on August 6, 2013.

(Id. at 96). Kurtz admitted that after Suffel handed it to her, she showed the $100

bill to another patron who “was fooled” by the bill and did not think it was

counterfeit. (Id. at 98). When Suffel’s counsel asked Kurtz if she has ever stolen

anything, she responded, “I have been charged in the past, yes.” (Id. at 99).

Suffel’s counsel asked Kurtz about the termination of her employment at the

Eagles, and she explained, “It was an issue of playing Keno tickets after hours at

the Eagles.” (Id. at 99-100). Kurtz admitted that she was subsequently hired by

another establishment, Three Brothers, but she refused to go back to work after

four weeks when Three Brothers attempted to withhold her checks, citing a

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“similar incident” to what happened at the Eagles, which was, in Kurtz’s words,

“an influx in Keno sales.” (Id. at 100-101).

       {¶21} The State offered the testimony of Officer Regina Weidenhamer

(“Weidenhamer”) of the Paulding Police Department. (Id. at 103). She testified

that when she arrived for her shift at 2:00 p.m. that day, she had a note on her desk

“to go to the Valero in reference to counterfeit money.”           (Id. at 103-104).

According to Weidenhamer, she responded to Valero where she learned after

speaking with McCord and watching the store’s surveillance video that Suffel

presented a $100 bill at the store that McCord determined was counterfeit. (Id. at

104-105). Weidenhamer testified that the store’s surveillance video showed the

clerk marking the $100 bill and giving it back to Suffel. (Id. at 107).

       {¶22} Weidenhamer testified that about two hours after she was at Valero,

she received a call from the Eagles in reference to counterfeit money. (Id. at

105-106). At the Eagles, Weidenhamer learned from Kurtz that Suffel had been in

earlier in the day and presented two $50 bills, then came in later and presented a

$100 bill, and Kurtz suspected that all three bills were counterfeit. (Id. at 106).

Weidenhamer testified that she then questioned Suffel, who was still at the Eagles.

(Id. at 107). According to Weidenhamer, Suffel admitted that he had been to

Valero, but when she asked him “about the $100 bill that he had presented to

Valero at first,” he denied that he presented a counterfeit $100 bill at Valero and

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said “that no one had told him that” the $100 bill was counterfeit. (Id. at 107,

113). Weidenhamer testified that when she asked Suffel “where he received the

money,” Suffel told her that Dusty Dobbelaere (“Dobbelaere”) gave him the

money. (Id. at 107). According to Weidenhamer, Suffel at first did not tell her

why Dobbelaere gave him the counterfeit money, but then he said Dobbelaere

gave him the counterfeit money when Suffel sold him a speaker. (Id. at 107-108).

Weidenhamer identified State’s Exhibit 1 and State’s Exhibits 2 and 3 as the $100

bill that she got from Suffel and the two $50 bills that Kurtz gave her,

respectively. (Id. at 108).

       {¶23} On cross-examination, Weidenhamer testified that she was not

present when Suffel presented the bills on August 6, 2013. (Id. at 110). She

testified that she asked Valero for a copy of the surveillance video, but Valero

“failed to do so.” (Id. at 111). Weidenhamer testified that when she was speaking

with Suffel at the Eagles, “he said he would pay for everything, he would make it

right, and he pulled out a $100 bill which [Weidenhamer] looked at, checked, and

it was a good $100 bill, and that was returned to the Eagles.” (Id.). When asked

by Suffel’s counsel, Weidenhamer admitted that she has no evidence that Suffel

“had a printing press running, was counterfeiting bills, or anything like that.” (Id.

at 112). Aside from “the testimony of the witnesses,” Weidenhamer had no way



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to verify that the $100 bill that Suffel presented at Valero was the same $100 bill

he presented at the Eagles. (Id. at 113).

        {¶24} The State’s final witness was Dobbelaere,3 who testified that he

knows Suffel from high school but has had no interaction with him since his

sophomore year of high school, in 2000. (Id. at 115-116). Dobbelaere testified

that he did not purchase speakers from Suffel and that he never gave Suffel money

for speakers. (Id. at 116).

        {¶25} At the State’s request, the trial court admitted State’s Exhibits 1, 2,

and 3 without objection from Suffel, and the State rested. (Id. at 117-118). Suffel

moved for acquittal under Crim.R. 29, arguing that the State failed to establish that

Suffel knew the bills were counterfeit when he presented them. (Id. at 120-121,

122-123). The trial court overruled Suffel’s Crim.R. 29 motion. (Id. at 123).

        {¶26} Suffel called one witness, Dennis Price (“Price”), the trustee’s

secretary for the Eagles in Paulding, in an attempt to discredit Kurtz. (Id. at 129-

130). According to Price, when Kurtz was employed at the Eagles, “she was

playing the Ohio Lottery, Keno, during periods where she was off duty at night.”

(Id. at 131). Price testified that as a result of Kurtz’s employment with the Eagles,

he had a reason to distrust her. (Id. at 132).


3
  In its brief, the State asserts that Suffel told Weidenhamer that he sold speakers to “Dustin Ripke.”
(Appellee’s Brief at 2). Our review of the record does not reveal any mention of a “Dustin Ripke,” and it
appears that the State meant to refer instead to “Dustin Dobbelaere.”

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       {¶27} Suffel rested, and the State did not present any rebuttal evidence.

(Id. at 133). Suffel again moved for acquittal under Crim.R. 29, arguing that the

State failed to offer evidence as to Suffel’s intent. (Id. at 134). The trial court

overruled Suffel’s Crim.R. 29 motion. (Id. at 137).

       {¶28} We first address Suffel’s argument that the trial court improperly

denied his Crim.R. 29 motions for acquittal, which concerns the sufficiency of the

evidence. See State v. Velez, 3d Dist. Putnam No. 12-13-10, 2014-Ohio-1788, ¶

68, citing State v. Wimmer, 3d Dist. Marion No. 9-98-46, 1999 WL 355190, *1

(Mar. 26, 1999).     Viewing the evidence in a light most favorable to the

prosecution, we conclude that a rational trier of fact could have found the “purpose

to defraud” and “knows to have been forged” elements of forgery, set forth in R.C.

2913.31(A)(3), proven beyond a reasonable doubt.

       {¶29} The evidence revealed that on August 6, 2013, Suffel first went to

Valero, where the cashier told him that his $100 bill was counterfeit. After that,

Suffel went to the Eagles on two occasions and presented counterfeit bills,

including a counterfeit $100 bill that bore a mark from a counterfeit pen. The

evidence presented suggests that Suffel knew he was in possession of a counterfeit

$100 bill. McCord identified State’s Exhibit 1 as the counterfeit $100 bill that she

marked and handed back to Suffel. Kurtz identified that same exhibit as the

counterfeit $100 bill that Suffel handed to her. Moreover, according to McCord

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and Kurtz, the counterfeit bills that Suffel presented were noticeably different than

genuine bills. McCord described the $100 bill as having “a blue tint” and “a funny

look.” Kurtz described the bills as feeling different than genuine bills, lacking

security features, and being different sizes than genuine bills.

       {¶30} Most significantly, the evidence viewed in a light most favorable to

the prosecution demonstrates that Suffel told Weidenhamer at least two lies, which

suggested that Suffel knew the bills were counterfeit and that Suffel had the

purpose to defraud Valero and the Eagles.       First, Suffel denied to Weidenhamer

that he presented a counterfeit $100 bill at Valero and denied that the Valero

cashier told him the bill was counterfeit. Second, Suffel told Weidenhamer that he

got the counterfeit money from Dobbelaere in exchange for a speaker. The jury

was free to infer consciousness of guilt from Suffel’s dishonesty.            State v.

Brodbeck, 10th Dist. Franklin No. 08AP-134, 2008-Ohio-6961, ¶ 44 (“The jury

was at liberty to infer consciousness of guilt from appellant’s lie.”), citing State v.

Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, ¶ 54, citing State v. Johnson, 46

Ohio St.3d 96, 100 (1989).

       {¶31} We conclude that the trial court did not err in overruling Suffel’s

Crim.R. 29 motions for acquittal because a rational trier of fact could have found

that Suffel knew the bills were counterfeit and that he acted with the purpose to



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defraud Valero and the Eagles because he specifically intended to obtain, by using

counterfeit bills, a benefit for himself to the detriment of Valero and the Eagles.

       {¶32} We next address Suffel’s arguments that his convictions for Counts

One and Two are against the manifest weight of the evidence. In addition to

arguing that the State failed to present evidence that he knew the bills were

counterfeit or that he acted with purpose to defraud, Suffel points to Johns’s

testimony on cross-examination that people are often duped by counterfeit

currency and sometimes possess it unknowingly. Suffel also argues that Kurtz’s

testimony was not credible. Kurtz admitted that she had stolen in the past and that

her being fired from the Eagles stemmed from “an issue of playing Keno tickets

after hours.” Price testified that as a result of Kurtz’s employment at the Eagles,

he had a reason to distrust her.

       {¶33} Even removing the lens of favorability in favor of the prosecution,

through which we examine the sufficiency of the evidence, this is not an

exceptional case where the evidence weighs heavily against the convictions.

While Johns testified that people can be fooled by counterfeit currency, McCord

and Kurtz described the noticeably suspicious nature of the bills that Suffel handed

to them. And while Kurtz’s credibility may have been questionable, the jury

observed her testimony and Price’s testimony, and we are mindful of the jury’s

“superior, first-hand perspective in judging the demeanor and credibility of

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witnesses.” State v. Phillips, 10th Dist. Franklin No. 14AP-79, 2014-Ohio-5162, ¶

125, citing DeHass, 10 Ohio St.2d 230, at paragraph one of the syllabus.

       {¶34} The evidence weighing in favor of Suffel’s convictions is much

weightier than the evidence weighing against them. Most significant is Suffel’s

apparent untruthfulness to Weidenhamer. Also significant is the timing of the

events. Suffel attempted to pay for $20 worth of pull-off tickets at the Eagles with

a $100 bill that McCord had earlier that day marked with a counterfeit pen. When

the pen revealed that the bill was counterfeit, McCord told Suffel that the $100 bill

he presented to her was counterfeit. This is perhaps why Suffel does not argue

that his conviction for Count Three—which was based on his attempt to pay with

the counterfeit $100 bill at the Eagles—is against the manifest weight of the

evidence. What Suffel discounts, however, is that evidence related to Count Three

is also evidence that he knew the $100 bill he presented at Valero and the two $50

bills he presented at the Eagles were counterfeit and that he acted with the purpose

to defraud those establishments.

       {¶35} For these reasons, we cannot conclude that the jury clearly lost its

way and created such a manifest miscarriage of justice that Suffel’s convictions

for Counts One and Two must be reversed and a new trial ordered.

       {¶36} Suffel’s first and second assignments of error are overruled.



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                           Assignment of Error No. III

       The trial court erred in refusing the defendant’s requested jury
       instruction of accident. (t. [sic] at p. 140)

       {¶37} In his third assignment of error, Suffel argues that the trial court

erred by denying his request for the “accident” jury instruction found in Ohio Jury

Instructions, CR Section 421.01 (1983). Suffel argues that he established through

Johns, the State’s expert witness concerning counterfeit money, “that accidental

passing of counterfeit bills often occurs.” (Appellant’s Brief at 6). Suffel also

argues that the testimony of Weidenhamer, the investigating officer, “showed that

the defendant never admitted knowing that the bills he passed that night were

counterfeit.” (Id.). Finally, he argues that “there was evidence presented that [he]

denied knowing that the bills were counterfeit to both the cashier at the Valero

convenience store, as well as to the bar-tender [sic] at The Eagles.” (Id. at 7).

       {¶38} “‘When reviewing a court’s refusal to give a requested jury

instruction, an appellate court considers whether the trial court’s refusal to give

said instruction was an abuse of discretion under the facts and circumstances of

the case.’” State v. Simonis, 3d Dist. Seneca No. 13-14-05, 2014-Ohio-5091, ¶ 31,

quoting State v. Kunz, 6th Dist. Wood No. WD-10-047, 2011-Ohio-3115, ¶ 30,

citing State v. Wolons, 44 Ohio St.3d 64, 68 (1989). An abuse of discretion

suggests the trial court’s decision is unreasonable, arbitrary, or unconscionable.


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State v. Adams, 62 Ohio St.2d 151, 157 (1980). “Generally, a trial court must

provide the jury with all instructions that are relevant and necessary to weigh the

evidence and discharge their duties as the fact finders.” State v. Sunderman, 5th

Dist. Stark No. 2006-CA-00321, 2008-Ohio-3465, ¶ 21, citing State v. Joy, 74

Ohio St.3d 178, 181 (1995). However, “a court need not instruct the jury as a

party requests if ‘the evidence adduced at trial is legally insufficient’ to support

it.” State v. Juntunen, 10th Dist. Franklin Nos. 09AP-1108 and 09AP-1109, 2010-

Ohio-5625, ¶ 13, quoting State v. Barnd, 85 Ohio App.3d 254, 259 (3d Dist.1993).

“The trial court possesses the discretion ‘to determine whether the evidence

presented at trial is sufficient to require that [the] instruction be given.’” Id.,

quoting State v. Lessin, 67 Ohio St.3d 487, 494 (1993).

       {¶39} “‘Accident is that which is unintentional and unwilled and implies a

lack of criminal culpability.’” State v. Vintson, 9th Dist. Lorain No. 06CA009066,

2007-Ohio-6141, ¶ 31, quoting State v. Ross, 135 Ohio App.3d 262, 276 (12th

Dist.1999). The Ohio Jury Instructions section containing the “accident” jury

instruction that Suffel requested provides, in part:

       1.   The defendant denies any purpose to (describe). He denies that

       he committed an unlawful act and says that the result was accidental.

       2.   DEFINED.         An accidental result is one that occurs

       unintentionally and without any design or purpose to bring it about.

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Case No. 11-14-05



       An accident is a mere physical happening or event, out of the usual

       order of things and not reasonably (anticipated) (foreseen) as a

       natural or probable result of a lawful act.

(Emphasis sic.) Ohio Jury Instructions, CR Section 421.01 (1983).

       {¶40} In denying Suffel’s request for the “accident” jury instruction, the

trial court concluded that there was no evidence “that would support rendering an

instruction like this.” (Apr. 1, 2014 Tr. at 140). After reviewing the record, we

agree that the evidence was insufficient to support an “accident” instruction and

conclude that the trial court did not abuse its discretion in refusing to provide an

“accident” instruction to the jury. See Sunderman at ¶ 25.

       {¶41} First, Suffel’s reliance on Johns’s testimony that it is not uncommon

for people to unknowingly possess counterfeit currency is misplaced. Johns did

not testify that Suffel lacked a purpose to defraud or otherwise presented the

counterfeit bills accidentally, and Suffel overlooks the subjective elements of the

accident instruction.    See State v. Wegmann, 3d Dist. Allen No. 1-06-98,

2008-Ohio-622, ¶ 112. Second, Suffel’s argument that Weidenhamer’s testimony

“showed that the defendant never admitted knowing that the bills he passed that

night were counterfeit” also misses the mark. A lack of admission by Suffel to

law enforcement does not equate to a denial, for purposes of the “accident” jury

instruction, that he acted without purpose to defraud. Finally, Suffel improperly

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Case No. 11-14-05



relies on McCord’s and Kurtz’s testimony that Suffel denied knowing the bills he

gave them were counterfeit. This testimony is overshadowed by the evidence that

we discussed in addressing Suffel’s first and second assignments of error, which

demonstrates that Suffel’s presentation of the counterfeit bills was not an accident

and that he in fact acted with the purpose to defraud Valero and the Eagles.

       {¶42} What is more, the record reflects that the trial court instructed the

jury that to find Suffel guilty of the forgery counts, it had to find beyond a

reasonable doubt that he acted “with purpose to defraud, or knowing that he was

facilitating a fraud.” (Apr. 1, 2014 Tr. at 158-159). The trial court instructed the

jury concerning the definition of “defraud” and what it means to act “purposely”

and “knowingly.” (Id. at 159-160). “Therefore, ‘[t]he absence of accident was

necessarily part of the instructions that were delivered by the trial court.’” State v.

Fogler, 9th Dist. Medina 08CA0004-M, 2008-Ohio-5927, ¶ 16, quoting State v.

Staats, 9th Dist. Summit No. 15706, 1994 WL 122266, *5 (Apr. 13, 1994). In

other words, the trial court instructed the jury that, to find Suffel guilty of forgery,

it had to find that he acted purposely or knowingly; therefore, had the jury found

that Suffel lacked the requisite mental state and that the results of his actions were

accidental, the jury would have been required to find Suffel not guilty under the

trial court’s general instruction. State v. Hubbard, 10th Dist. Franklin No. 11AP-

945, 2013-Ohio-2735, ¶ 61, citing State v. Johnson, 10th Dist. Franklin No. 06AP-

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878, 2007-Ohio-2792, ¶ 63, State v. Manbevers, 4th Dist. Pickaway No. 93CA23,

1994 WL 529966 (Sept. 28, 1994), and Fogler at ¶ 16.

       {¶43} For these reasons, the trial court did not abuse its discretion when it

refused to instruct the jury concerning “accident.”

       {¶44} Suffel’s third assignment of err   or is overruled.

       {¶45} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                   Judgment Affirmed

ROGERS, P.J. and WILLAMOWSKI, J., concur.

/jlr




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