[Cite as State v. Haggerty, 2011-Ohio-6705.]




           IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                   :

        Plaintiff-Appellee                      :    C.A. CASE NO. 24405

vs.                                            :    T.C. CASE NO. 09CR3077

STEVEN E. HAGGERTY                              :

        Defendant-Appellant                     :

                                       . . . . . . . . .

                                          O P I N I O N

                 Rendered on the 23rd day of December, 2011.

                                       . . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; Andrew T. French, Asst. Pros.
Attorney, Atty. Reg. No. 0069384, P.O. Box 972, Dayton, OH 45422

        Attorneys for Plaintiff-Appellee

Michael C. Thompson, Atty. Reg. No. 0041420, 5 N. Williams Street,
Wright-Dunbar Business Village, Dayton, OH 45402-2843
     Attorney for Defendant-Appellant

                                       . . . . . . . . .

        GRADY, P.J.:

        {¶ 1} Defendant,             Steven    E.   Haggerty,   appeals   from   his

convictions for aggravated theft, R.C. 2913.02(A)(3), (B)(3), and

attempted grand theft, R.C. 2913.02(A)(3), 2923.02(A).

        {¶ 2} In 2007, when she was eighty-seven years of age, Roma
Flora executed a general power of attorney in favor of her son,

Steven E. Haggerty, in order to allow him to pay her bills and

manage her financial affairs.      Thereafter, over a period of

approximately two years, Haggerty appropriated over $60,000 from

his mother’s depository accounts to his own use.      He also took

gold coins worth $21,450 and $21,984 belonging to his mother, and

Defendant caused her to convey the title to her condominium to

him by quit-claim deed.

     {¶ 3} When his mother learned of Haggerty’s thefts she reported

them to police.   Haggerty was charged by Indictment with two theft

offenses.

     {¶ 4} Count One of the Indictment charges a violation of R.C.

2913.02(A)(3).    That section provides:

     {¶ 5} “No person, with purpose to deprive the owner of property

or services, shall knowingly obtain or exert control over either

the property or services . . . [b]y deception.”

     {¶ 6} R.C. 2913.02(B)(3) provides, in pertinent part:

     {¶ 7} “If the value of the property or services stolen is one

hundred thousand dollars or more, theft from an elderly or disabled

person is a felony of the first degree.”

     {¶ 8} Count One of the Indictment alleged that Haggerty, “with

purpose to deprive the owner, to wit: Roma Flora, an elderly or

disabled person, of property, did knowingly and by deception,

obtain or exert control over said owner’s property, to wit: U.S.
Currency having a value of One Hundred Thousand Dollars ($100,000)

or more.”

     {¶ 9} Count   Two   of   the   Indictment   charged   an   attempted

violation, R.C. 2923.02(A), of R.C. 2913.02(A)(3), specifying that

Haggerty “did purposely or knowingly engage in conduct that, if

successful, would have constituted or resulted in the offense of

Grand Theft of over $25,000 (elderly or disabled person.)”

     {¶ 10} R.C. 2913.02(B)(3) provides, in pertinent part:

     {¶ 11} “If the value of the property stolen is twenty-five

thousand dollars or more, and is less than one hundred thousand

dollars, theft from an elderly person or disabled adult is a felony

of the second degree.”

     {¶ 12} Being an attempted offense, per R.C. 2923.02(E)(1) the

violation charged in Count Two of the Indictment is a felony of

the third degree.

     {¶ 13} R.C.2913.01(CC) provides:

     {¶ 14} “‘Elderly person’ means a person who is sixty-five years

of age or older.”

     {¶ 15} Defendant was convicted of the offenses with which he

was charged, following a bench trial.     The court entered a judgment

of conviction that imposed a three year prison term for each

offense, to be served concurrently.          The court also ordered

Defendant “to pay complete restitution to Roma Flora for economic

loss in the amount of Nineteen Thousand, One Hundred Twenty-Six
Dollars and Fifty-Three Cents ($19,126.53).”

     {¶ 16} Defendant filed a timely notice of appeal from the

judgment of conviction.

     FIRST ASSIGNMENT OF ERROR

     {¶ 17} “THE STATE’S EVIDENCE WAS INSUFFICIENT TO SUPPORT GUILT

OF THEFT FROM AN ELDERLY OR DISABLED ADULT AND ATTEMPT TO COMMIT

GRAND THEFT BEYOND A REASONABLE DOUBT.”

     {¶ 18} Defendant argues that the trial court erred in overruling

his Crim.R. 29 motion for acquittal because his convictions for

theft from an elderly person or disabled adult, count one, and

attempted theft from an elderly person or disabled adult, count

two, are not supported by legally sufficient evidence.

     {¶ 19} When considering a Crim.R. 29 motion for acquittal, the

trial court must construe the evidence in a light most favorable

to the State and determine whether reasonable minds could reach

different conclusions on whether the evidence proves each element

of the offense charged beyond a reasonable doubt.          State v.

Bridgeman (1978), 55 Ohio St.2d 261.    The motion will be granted

only when reasonable minds could only conclude that the evidence

fails to prove all of the elements of the offense.    State v. Miles

(1996), 114 Ohio App.3d 738.

     {¶ 20} A Crim.R. 29 motion challenges the legal sufficiency

of the evidence.   A sufficiency of the evidence argument challenges

whether the State has presented adequate evidence on each element
of the offense to allow the case to go to the jury or sustain the

verdict as a matter of law.   State v. Thompkins, (1997), 78 Ohio

St.3d 380.   The proper test to apply to such an inquiry is the

one set forth in paragraph two of the syllabus of State v. Jenks

(1991), 61 Ohio St.3d 259:

     {¶ 21} “An appellate court's function when reviewing the

sufficiency of the evidence to support a criminal conviction is

to examine the evidence admitted at trial to determine whether

such evidence, if believed, would convince the average mind of

the defendant's guilt beyond a reasonable doubt.      The 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.”

     {¶ 22} Count One of the indictment charges that Defendant,

having a purpose to deprive the owner, Roma Flora, an elderly or

disabled person, of property, did knowingly and by deception obtain

and exert control over said owner’s property, to wit: U.S. Currency

having a value of $100,000.00 or more, in violation of        R.C.

2913.02(A)(3), (B)(3).

     {¶ 23} The total value of the stolen property was determined

to be approximately $204,249.55, consisting of $60,845.55 in checks

Defendant wrote on his mother’s bank accounts, $21,420.00 worth

of gold coins Defendant took from his mother’s safety deposit box,
$24,984.00 worth of gold coins that were to be shipped to his

mother’s home that Defendant diverted to himself, and the value

of his mother’s condominium, $97,000.00, the title to which

Defendant got his mother to convey to him.

     {¶ 24} Defendant argues that the evidence was insufficient to

support his conviction on Count One because the value of U.S.

Currency that was stolen was not $100,000 or more, as the indictment

alleged.   However, the particular form of the property that was

stolen is not an essential element of a violation of R.C.

2913.02(A)(3).    The articles stolen need only be “property”

belonging to another with a value in excess of the specified amount.

 The evidence was sufficient to prove that allegation.          The

reference to “U.S. Currency” is mere surplusage that may be stricken

from an indictment or motion.    Crim.R. 7(C).

     {¶ 25} Defendant further argues that with respect to the money

he stole by writing checks on his mother’s bank accounts to pay

for his personal expenses, the amount of restitution the trial

court ordered Defendant to pay, $19,126.53, necessarily reflects

the value of the property he stole, and therefore he should have

been convicted of only a third degree felony per R.C. 2913.02(B)(3).

     R.C. 2929.18(A)(1) authorizes the sentencing court to order

“[r]estitution by the offender to the victim of the offender’s

crime . . ., in an amount based on the victim’s economic loss.”

 There was evidence that Defendant had returned most of the stolen
property   prior   to   trial.     For   example,   Defendant   provided

prosecutors a certified check in the amount of $45,000.00.           He

also executed a deed reconveying title to the condominium to his

mother.    The value of his mother’s net “economic loss” for purposes

of restitution is therefore not determinative of the value of her

property Defendant stole.

     {¶ 26} Defendant also argues that the property belonging to

his mother that he appropriated to his own use and/or name was

not obtained by deception, because he acted pursuant to the

authority his mother granted him in her power of attorney.

     {¶ 27} R.C. 2913.01(A) provides:

     {¶ 28} “‘Deception’   means   knowingly   deceiving   another   or

causing another to be deceived by any false or misleading

representation, by withholding information, by preventing another

from acquiring information, or by any other conduct, act, or

omission that creates, confirms, or perpetuates a false impression

in another, including a false impression as to law, value, state

of mind, or other objective or subjective fact.”

     {¶ 29} Roma Flora testified that she executed the power of

attorney with an understanding that Defendant would exercise the

power to her use and benefit, not his own, and that she never

authorized Defendant to engage in the transfers which are the

subject of the theft charges against him.      She also testified that

her blindness prevented her from understanding the nature and
result of the quit-claim deed she executed at Defendant’s request.

 That evidence was sufficient to prove the element of deception

in the violation of R.C. 2913.02(A)(3) alleged in the indictment.

     {¶ 30} Finally,   Defendant   argues   that   the   evidence   was

insufficient to prove the offense of Attempted Grand Theft of

property belonging to his mother valued in excess of $25,000, as

charged in Count Two of the Indictment.

     {¶ 31} Defendant admitted that on May 4, 2009, he contacted

Triangle Credit Union and asked to close his mother’s account and

to cut him a check for the money in that account in the amount

of $36,000.00.   Defendant further admitted that on June 3, 2009,

he contacted MetLife and asked to close his mother’s account and

to issue him a check for the money in that account in the amount

of $42,967.22.   Defendant did these things after he was told by

his mother’s attorney that his power of attorney had been revoked.

 These checks were never cashed, however, because stop payment

orders were issued by the payors after they found out that

Defendant’s power of attorney had been revoked.          That evidence

was sufficient to prove the attempted grand theft offense charged

in Count Two.

     {¶ 32} The first assignment of error is overruled.

     SECOND ASSIGNMENT OF ERROR

     {¶ 33} “THE CONVICTIONS FOR THEFT FROM AN ELDERLY OR DISABLED

ADULT AND ATTEMPT TO COMMIT GRAND THEFT ARE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.”

     {¶ 34} Defendant argues that his convictions for theft and

attempted theft from an elderly person are against the manifest

weight of the evidence because the trier of facts, the trial court,

lost its way in choosing to believe the testimony of the State’s

witnesses, particularly Roma Flora, whose memory of what happened

is confusing, illogical and inconsistent.

     {¶ 35} A   weight   of    the   evidence   argument   challenges   the

believability of the evidence and asks which of the competing

inferences suggested by the evidence is more believable or

persuasive.     State v. Hufnagle (Sept. 6, 1996), Montgomery App.

No. 15563.      The proper test to apply to that inquiry is the one

set forth in State v. Martin (1983), 20 Ohio App.3d 172, 175:

     {¶ 36} “The court, reviewing the entire record, weighs the

evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the

evidence, the jury lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and

a new trial ordered.”         Accord: State v. Thompkins, 78 Ohio St.3d

380, 1997-Ohio-52.

     {¶ 37} The credibility of the witnesses and the weight to be

given to their testimony are matters for the trier of facts to

resolve.     State v. DeHass (1967), 10 Ohio St.2d 230.          In State

v. Lawson (August 22, 1997), Montgomery App. No. 16288, we observed:
       {¶ 38} “Because the factfinder . . . has the opportunity to

see    and   hear   the   witnesses,   the   cautious     exercise    of   the

discretionary power of a court of appeals to find that a judgment

is against the manifest weight of the evidence requires that

substantial     deference     be   extended    to   the     fact     finder’s

determinations of credibility.         The decision whether, and to what

extent, to credit the testimony of particular witnesses is within

the peculiar competence of the fact finder, who has seen and heard

the witness.”

       {¶ 39} This court will not substitute its judgment for that

of the trier of facts on the issue of witness credibility unless

it is patently apparent that the trier of facts lost its way in

arriving at its verdict.           State v. Bradley (Oct. 24, 1997),

Champaign App. No. 97-CA-03.

       {¶ 40} Defendant claims that the money and property he took

from his mother was a loan, rather than theft, and that she permitted

him to use her money to pay for his personal expenses, but that

she forgot due to a failing memory as a result of old age.                 That

claim is belied by this record.

       {¶ 41} Defendant’s mother demonstrated a good recollection of

when

       {¶ 42} she did and did not loan money to family members,

including past loans she made to Defendant.         She was certain that

she never gave Defendant permission to use her money and assets
to pay for his personal expenses, never gave Defendant permission

to take the gold coins out of her safety deposit box or intercept

the shipment of gold coins heading to her home, never gave Defendant

permission to keep those coins, and did not knowingly transfer

ownership of her condominium to Defendant.

     {¶ 43} The credibility of the witnesses and the weight to be

given to their testimony were matters for the trier of facts, the

trial court here, to decide.      DeHass.     The trial court did not

lose its way simply because it chose to believe Roma Flora and

the other State’s witnesses, rather than Defendant, which it had

a right to do.    Id.

     {¶ 44} Reviewing this record as a whole, we cannot say that

the evidence weighs heavily against a conviction, that the trier

of facts lost its way in choosing to believe the State’s witnesses,

or   that   a   manifest   miscarriage   of   justice   has   occurred.

Defendant’s convictions are not against the manifest weight of

the evidence.

     {¶ 45} Defendant’s second assignment of error is overruled.

The judgment of the trial court will be affirmed.

FAIN, J., And DONOVAN, J., concur.

Copies mailed to:

Andrew T. French, Esq.
Michael C. Thompson, Esq.
Hon. Connie S. Price
