[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
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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
                                                  6

(“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 amount and faxed it to NLC Financial Services, the mortgage
                                            2




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.



           Sonya was also indicted for these crimes.       She pled guilty to two misdemeanors and
          1


agreed to testify against her brother.

              The application listed Sonya’s income as $69,000, as opposed to the $15,000 indicated on
          2
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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,
                                             10

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
