[Cite as State v. Cobb, 2017-Ohio-7836.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                   :

                 Plaintiff-Appellee,             :

v.                                               :                  No. 16AP-656
                                                               (C.P.C. No. 15CR-2427)
Aries Cobb,                                      :
                                                             (REGULAR CALENDAR)
                 Defendant-Appellant.            :


                                           D E C I S I O N

                                   Rendered on September 26, 2017


                 On brief: Michael DeWine, Attorney General, Samuel J.
                 Kirk, III and Christopher S. Cellier, for appellee. Argued:
                 Samuel J. Kirk, III.

                 On brief: Henderson, Mokhtari & Weatherly Co., L.P.A.,
                 and Justin M. Weatherly, for appellant. Argued: Justin M.
                 Weatherly.

                  APPEAL from the Franklin County Court of Common Pleas

TYACK, P.J.
        {¶ 1} Aries Cobb is appealing from her conviction on charges of medicaid fraud,
theft and telecommunication fraud. She assigns two errors for our consideration:
                 Assignment of Error I:

                 THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF
                 LAW TO SUPPORT A FINDING BEYOND A REASON-
                 ABLE DOUBT THAT THE APPELLANT WAS GUILTY OF
                 MEDICAID FRAUD, THEFT, AND TELECOMMUNI-
                 CATIONS FRAUD.
No. 16AP-656                                                                              2


              Assignment of Error II:

              APPELLANT'S CONVICTIONS FOR MEDICAID FRAUD,
              THEFT, AND TELECOMMUNICATIONS FRAUD WERE
              AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶ 2} Dr. Cobb formed Edu-at-Tech, LLC to perform tutoring services for
students with learning disabilities. She eventually began billing for laboratory services
she arguably did not provide. Similarly she billed for speech-language pathology services
which testimony at trial indicated were never provided.
       {¶ 3} At times Dr. Cobb claimed that she was operating a public school out of her
home. At other times, Dr. Cobb claimed she was operating a community clinic so she
could be paid for performing medical tests. Her description of what Edu-at-Tech, LLC
was and what it was doing seemed to vary based on what she thought could get her paid.
       {¶ 4} Dr. Cobb's description of Edu-at-Tech, LLC as a public school fell apart
when Dr. Cobb's medical biller informed the Ohio Department of Medicaid that Dr. Cobb
was not operating a public school.
       {¶ 5} Dr. Cobb's description of Edu-at-Tech, LLC as an entity providing medical
testing also came under scrutiny. A surprise inspection by the Ohio Department of Health
indicated that the testing Dr. Cobb claimed was not being performed.
       {¶ 6} Dr. Cobb made statements which served to sink her into deeper trouble.
For instance, Dr. Cobb claimed that she provided services at a school which had been
closed for ten years.
       {¶ 7} Patient files for Dr. Cobb's students did not support claims of speech
therapy services being provided. Later documents provided by Dr. Cobb were documents
allegedly authored by a consultant who clearly denied at trial that she (the consultant) had
anything to do with the documents.
       {¶ 8} Similarly, documents to support billings for laboratory testing were shown
to be fraudulent, as were some documents apparently created to justify billing for speech
services.
       {¶ 9} In determining whether a verdict is against the manifest weight of the
evidence, this court acts as a "thirteenth juror." This role allows the court to weigh the
evidence in order to determine whether the trier of fact "clearly lost its way and created
No. 16AP-656                                                                                3


such a manifest miscarriage of justice that the conviction must be reversed and a new trial
ordered." State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20
Ohio App.3d 172, 175 (1st Dist.1983). However, the power to reverse on "manifest weight"
grounds should only be used in exceptional circumstances, i.e., when "the evidence
weighs heavily against the conviction." Thompkins at 387, quoting Martin at 175.
       {¶ 10} An appellate court acting in its role as "thirteenth juror" also must keep in
mind the trier of fact's superior, first-hand position in judging the demeanor and
credibility of witnesses. "On the trial of a case, either civil or criminal, the weight to be
given the evidence and the credibility of the witnesses are primarily for the trier of facts."
State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. A court of
appeals cannot reverse a jury verdict on manifest-weight grounds unless all three
appellate judges concur. Thompkins at 389.
       {¶ 11} The trial judge served as the trier of fact after the right to a jury trial was
waived.   The judge could reasonably find that Dr. Cobb repeatedly billed the Ohio
Department of Medicaid for services which were not provided, after using electronic
means of communicating the billings. The trial court judge could readily disbelieve Dr.
Cobb's claims in her testimony that she did not create a scheme to defraud and steal.
       {¶ 12} The trial court's verdicts were supported by more than sufficient evidence.
The trial court's verdicts were in accord with the manifest weight of the evidence.
       {¶ 13} The two assignments of error are overruled. The judgment of the Franklin
County Court of Common Pleas is affirmed.
                                                                        Judgment affirmed.

                     LUPER SCHUSTER and BRUNNER, JJ., concur.
