[Cite as State v. Hayes, 2017-Ohio-7718.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105048




                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                    ANGELA D. HAYES
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-599682-A

        BEFORE: S. Gallagher, J., Keough, A.J., and Stewart, J.

        RELEASED AND JOURNALIZED: September 21, 2017
ATTORNEY FOR APPELLANT

Ruth R. Fischbein-Cohen
3552 Severn Road, #613
Cleveland, Ohio 44118


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Amanda Hall
Assistant Prosecuting Attorney
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




SEAN C. GALLAGHER, J.:
       {¶1} Angela Hayes seeks to overturn her convictions for three separate instances

of passing bad checks and an aggregated grand theft of over $10,000. On appeal, Hayes

argues the following: (1) that there was insufficient evidence to show she intended to

defraud anyone on the charges of passing bad checks; (2) that her trial counsel was

ineffective for failing to investigate a potential witness who would confirm Hayes’s

insufficient-funds story; and (3) that the four convictions should have merged because

they all stemmed from “one insufficient funds saga” and the record “is devoid of any

[allied-offense] analysis made during sentencing.”       Finding no merit to any of the

arguments, we affirm.

       {¶2} Hayes owned and operated two companies, but each maintained a bank

account at a separate financial institution. For the ease of discussion, we will refer to

Hayes as the owner of the accounts because the separate nature of the corporate assets is

irrelevant for our purposes. Hayes opened an account at Huntington Bank that largely

remained in the red — the account had a negative balance for 39 days surrounding the

dates of the suspect transactions. In early April 2015, Hayes attempted to deposit a

check worth $21,346 into the Huntington Bank account. In three separate transactions

over a three-day period, Hayes issued checks from the Huntington Bank account to be

deposited into her other corporation’s U.S. Bank account. The three checks totaled over

$11,000. Hayes withdrew over $10,000 from the U.S. Bank account over the same

three-day period, and that act was the basis of the aggregated grand theft charge.
      {¶3} The $21,346 check that Hayes attempted to deposit into her Huntington Bank

account could not be processed. Hayes’s corporate name was wrong, and the two-party

check lacked the signature of the second party that was necessary before the check could

be deposited.   According to Hayes, her employee had dropped off the check at a

Huntington Bank branch but never obtained a receipt of deposit and Hayes was called by

someone at Huntington Bank to pick up the faulty check. Hayes then had the drafter

redraw the check, and after some legal gymnastics with respect to trade names of Hayes’s

corporation, the check was deposited into the Huntington Bank account toward the end of

April 2015.

      {¶4} At trial, Hayes claimed that she had relied on the $21,346 check to cover the

U.S. Bank transactions. Instead of attempting to discredit Hayes’s check-cashing saga,

the state elicited testimony demonstrating how Hayes had written the three checks to U.S.

Bank without sufficient funds and, once the $21,346 check meant to cover those checks

was deposited, Hayes immediately withdrew the money before U.S. Bank was made

whole. In May 2015, U.S. Bank also sent Hayes a statutorily required notice of dishonor,

seeking repayment within ten days. Hayes did not repay or otherwise satisfy the debt.

From this evidence, the jury found that Hayes had intended to defraud U.S. Bank by

passing three bad checks knowing the checks would be dishonored and, in addition, had

committed grand theft of over $10,000 by withdrawing that amount after the fact.
      {¶5} Before trial, Hayes proffered a letter purportedly written by a Huntington

Bank branch manager from the location where she attempted to deposit the $21,346

check. The letter stated:

      A two party check was presented for deposit in the beginning of April 2015.
       The deposit was rejected due to the names on the check not being accurate.
       We could not get in contact with [a Hayes employee] who deposited the
      check so Angela Hayes picked up the check and was referred to the
      Pavillion branch. Angela Hayes had her attorney expedite the fictitious
      name update to redeposit a new check number 015470 amount of
      $21,346.00 on April 21st, 2015.

Hayes did not present her employee as a witness to verify the unfulfilled deposit or her

attorney who resolved the fictitious name issue.

      {¶6} In the first assignment of error, Hayes claims her convictions for passing bad

checks were based on insufficient evidence because the state failed to prove that Hayes

purposely defrauded U.S. Bank by issuing checks knowing the checks would be

dishonored. Importantly, Hayes is not challenging her conviction for grand theft.

      {¶7} A claim of insufficient evidence raises the question whether the evidence is

legally sufficient to support the verdict as a matter of law. State v. Thompkins, 78 Ohio

St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. In reviewing a sufficiency 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, 61 Ohio St.3d 259, 574 N.E.2d

492 (1991), paragraph two of the syllabus.
        {¶8} In order to convict an offender of passing bad checks under R.C. 2913.11(B),

the state must prove that the offender, with purpose to defraud, transferred or issued a

check or other negotiable instrument knowing that it would be dishonored. “‘Defraud’

means to knowingly obtain, by deception, some benefit for oneself or another, or to

knowingly cause, by deception, some detriment to another.” R.C. 2913.01(B). For the

purposes of passing bad checks, an offender who issues a check is presumed to know that

it will be dishonored if the check was refused for insufficient funds within 30 days of

presentment and the liability is not discharged by payment or satisfaction within ten days

after receiving the notice of dishonor. R.C. 2913.01(C)(2); see also tr. 490:8-21.

        {¶9} In this case, the jury was free to presume that Hayes passed the bad checks

knowing the checks would be dishonored because of the statutory presumption under

R.C. 2913.11(C)(2). The three checks were properly refused payment for insufficient

funds within 30 days. Id. U.S. Bank sent a notice of dishonor that Hayes admitted to

receiving, and she failed to repay U.S. Bank the value of the written checks within ten

days.   Id. Further, “defraud” is defined as receiving a benefit by deception. R.C.

2913.01(B).    The jury heard evidence that Hayes attempted to deposit a $21,346,

two-party check without one of the parties’ signatures and then immediately wrote three

checks from that account totaling over $10,000. Even after learning that the $21,346

check was not accepted and after belatedly depositing the check, Hayes failed to satisfy or

discharge the debt to U.S. Bank.      She obtained a benefit by deception in that she

presented checks knowing they would be dishonored for insufficient funds according to
the statutory presumption. State v. Hines, 12th Dist. Butler No. CA94-09-182, 1995

Ohio App. LEXIS 2823, 7 (July 3, 1995), citing State v. Stemen, 90 Ohio App. 309, 317,

106 N.E.2d 662 (2d Dist.1951) (intent to defraud arises when offender has no reasonable

grounds to believe the funds in the account would be sufficient to cover the checks

issued).

       {¶10} Further, and in addition to the statutory presumption, the only time the

Huntington Bank account had a positive balance was the ten days after the $21,346 check

was belatedly deposited, but before Hayes liquidated the account. The jury was free to

infer from the fact that the account remained negative for well over a month surrounding

the disputed transactions that Hayes had no reasonable grounds to believe that she had the

necessary funds to cover the three checks issued to U.S. Bank. State v. Bankston, 8th

Dist. Cuyahoga No. 92777, 2010-Ohio-1576, ¶ 41 (account documents demonstrated a

history of a negative balance for 21 days and that was sufficient for the jury to infer an

intent to defraud). Her three convictions for passing bad checks are based on sufficient

evidence.1

       {¶11} In her second assignment of error, Hayes claims that but for her attorney’s

failure to subpoena a branch manager for Huntington Bank, who would have merely

bolstered Hayes’s testimony regarding the unsuccessful attempt to deposit the $21,346

check in the first week of April, the jury would not have convicted her of passing bad


       1
         Hayes also indicated that if we reversed the convictions of passing bad checks for the lack of
sufficient evidence, then we should also reverse her grand theft conviction. In light of the fact that
we found sufficient evidence of passing bad checks, we need not address the derivative argument.
checks. Hayes, however, ignores the statutory presumption from R.C. 2913.11(C)(2).

App.R. 16(A)(7).

      {¶12} In order to substantiate a claim of ineffective assistance of counsel, the

appellant must show that (1) counsel’s performance was deficient, and (2) the deficient

performance prejudiced the defendant so as to deprive him of a fair trial. State v.

Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 98, citing Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).             Judicial

scrutiny of defense counsel’s performance must be highly deferential. Strickland at 689.

The defendant has the burden of proving his counsel rendered ineffective assistance.

State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 223.

      {¶13} For the sake of discussion, in light of the fact that Hayes must prove both

prongs, we will solely address the alleged prejudice stemming from trial counsel’s failure

to secure the Huntington Bank branch manager. Hayes cannot demonstrate any prejudice

caused by the failure to call a witness who would have presented duplicative evidence on

an undisputed issue.

      {¶14} The jury heard Hayes’s testimony demonstrating the sequence of events that

the branch manager would have confirmed — that there was an unsuccessful attempt to

deposit the $21,346 check in the first week of April and it was not deposited into the

Huntington Bank account until late April. Instead of disputing the defense’s theory, the

state introduced evidence that even after the $21,346 check was finally deposited, after

Hayes had undisputed knowledge that she had written checks to U.S. Bank in reliance on
that incomplete deposit, Hayes immediately withdrew the proceeds from the Huntington

Bank account in a series of transactions without making U.S. Bank whole. Hayes closed

and liquidated her Huntington Bank account within ten days — the only period of time

the account ever had a positive balance.

       {¶15} In fact, Hayes’s actions following the belated deposit actually bolster the

state’s case. Hayes twice benefitted from a single deposit in an account that for the most

part maintained a negative balance — demonstrating she never intended to have sufficient

funds to cover the checks deposited in the U.S. Bank account.               The letter is not

exculpatory; it confirmed facts not actually in dispute.

       {¶16} Notwithstanding, the whole of Hayes’s argument in support of the prejudice

prong is that “[a]ppellant believes that she would have been able to prevent a guilty

verdict, had the necessary witness who authored the aforestated letter been issued a

subpoena to appear to court, and this acted to her prejudice.” This in and of itself is

insufficient under App.R. 16(A)(7) and in contravention of the standard that places the

burden on the defendant to prove both prongs of the ineffective assistance of counsel

claim. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, at ¶ 223, citing

Strickland, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, and State v. Gondor, 112

Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62. All we are left with is Hayes’s

“belief” that the letter would have resulted in a complete acquittal. We were provided no

citations to authority (other than blanket citations to black letter law not in dispute) or any
legal analysis to consider. We were presented with a conclusion and not one based on

the reasonable inferences derived from the evidence introduced at trial.

       {¶17} Most important, Hayes ignores the statutory presumption relieving the state

of its burden to otherwise prove that Hayes presented checks knowing those instruments

would be dishonored. R.C. 2913.11(C)(2). It is undisputed that U.S. Bank took the

necessary steps to provide Hayes the notice of dishonor in May 2015 and that after the

$21,346 check was finally deposited into the Huntington Bank account, Hayes failed to

pay U.S. Bank.

       {¶18} Hayes’s position on appeal is illogical, relying on an argument that appears

favorable only when contrary positions are ignored.2 In this particular case, the reason

for the delay in processing the $21,346 check in the beginning of April is irrelevant when

the statutory presumption under R.C. 2913.11(C)(2) is considered. “[T]he presumption

of knowledge of dishonor does not arise unless the instrument is presented for payment

within 30 days” and the instrument is not satisfied within ten days of the notice of

dishonor.    R.C. 2913.11, 1974 Committee Comment to H.B. No. 511. The branch

manager’s testimony would not have explained why Hayes failed to satisfy the debt to

U.S. Bank when the $21,346 check meant to cover the U.S. Bank deposits finally cleared.


       2
          For an unexplained reason, and although it was the crux of the state’s case during trial, the
state’s brief also ignored the statutory presumption from R.C. 2913.11(C)(2). Tr. 459:10-25.
Nevertheless, Hayes bears the burden of demonstrating error on appeal, so we need not dwell on the
state’s failure. Hayes referenced the statutory presumption in her briefing, but she dismissed it with
the unsubstantiated declaration that U.S. Bank’s notice of dishonor was statutorily deficient. The
jury was instructed otherwise, and Hayes has not challenged the jury instructions.
 She obtained a benefit by deception, i.e., with the purpose to defraud, in that it is

presumed she issued checks knowing they would be dishonored for insufficient funds.

R.C. 2913.11(C)(2).         Since the presumption arises after the belated deposit,

substantiating the reason for the delay is immaterial.

       {¶19} Having failed to demonstrate prejudice even if we presumed a deficient

performance and having failed to address the statutory presumption of guilt, as required

under App.R. 16(A)(7) to prove an error occurred, Hayes’s second assignment of error

must be overruled.

       {¶20} Finally, Hayes argues in her third assignment of error that the three counts

of passing bad checks and the grand theft count must merge as a matter of law because all

four counts were the product of one insufficient-funds saga. According to Hayes, the

“various counts are all repetitive and they merely try to punish her for one and the same

act four times.”3

       {¶21} Under R.C. 2941.25, courts must use a three-part inquiry to determine

whether a defendant can be convicted of multiple offenses if those offenses arose from

the same act or transaction:

       (1) Were the offenses dissimilar in import or significance? (2) Were they
       committed separately? and (3) Were they committed with separate animus

       3
         Hayes also believes that the trial court bears the burden of ensuring compliance with R.C.
2941.25 under State v. Rogers, 8th Dist. Cuyahoga No. 98292, 2013-Ohio-3235. Hayes did not raise
any allied-offense issues at sentencing. In State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38
N.E.3d 860, ¶ 3, the Ohio Supreme Court held that a defendant forfeits all but plain error, and a
forfeited error is not reversible unless the error affected the outcome of the proceeding and is
necessary to correct a manifest miscarriage of justice. The trial court has no burden under Rogers.
       or motivation? An affirmative answer to any of the above will permit
       separate convictions. The conduct, the animus, and the import must all be
       considered.

State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31. In addition, “a

defendant’s conduct that constitutes two or more offenses against a single victim can

support multiple convictions if the harm that results from each offense is separate and

identifiable from the harm of the other offense.” Id. at ¶ 26.

       {¶22} The test is stated in the disjunctive form: the existence of any one prong

suffices for the imposition of separate sentences. State v. Esner, 8th Dist. Cuyahoga No.

104594, 2017-Ohio-1365, ¶ 6. Thus, in order to reverse a conviction, the defendant has

to address all prongs of Ruff. It is no longer sufficient to focus on the offender’s conduct

in isolation on appeal. State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d

266, ¶ 11 (the conduct-based analysis from State v. Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314, 942 N.E.2d 1061, has been rendered obsolete); see also State v. Dennis,

8th Dist. Cuyahoga No. 104742, 2017-Ohio-4437, ¶ 21.

       {¶23} We summarily find no merit to Hayes’s final argument. Although the grand

theft was facilitated by the passing of bad checks, and thus could be considered a single

course of conduct, the crimes were all based on separate and distinct acts. See, e.g., State

v. Smith, 11th Dist. Geauga No. 2014-G-3185, 2014-Ohio-5076, ¶ 26. The individual

crimes of passing bad checks were completed once Hayes presented the checks to U.S.

Bank for deposit on three separate occasions knowing the checks would dishonored.

See, e.g., State v. Washington, 8th Dist. Cuyahoga No. 100994, 2014-Ohio-4578, ¶ 28
(once one crime is complete, the commission of a second crime is separate and distinct

from the commission of the first). Hayes then withdrew money on three other occasions,

forming the basis of the aggregated grand theft offense. Esner at ¶ 8. Hayes has not

addressed the separate conduct or dissimilar import prongs of the allied-offense analysis,

and it is not a function of an appellate court to argue those issues on her behalf. App.R.

16(A)(7). Accordingly, her third assignment of error is overruled.

       {¶24} We affirm.

       It is ordered that appellee recover from 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 convictions having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, A.J., CONCURS;
MELODY J. STEWART, J., DISSENTS WITH SEPARATE OPINION


MELODY J. STEWART, J., DISSENTING:
         {¶25} Hayes defended the charges against her by claiming that she lacked the

requisite “purpose to defraud” by issuing a check “knowing that it will be dishonored[.]”

See R.C. 2913.11(B).      She testified that an earlier deposit one of her employees had

made to the first bank account had been rejected without her knowledge, so she had no

idea that checks she wrote on that account for deposit into the second bank account would

be rejected for want of sufficient funds.

         {¶26} The centerpiece of Hayes’s defense should have been the testimony of the

bank manager of the first bank account, who would have given testimony supporting

Hayes’s version of the facts. That witness was identified to the state just prior to jury

selection, with defense counsel’s statement to the court that “there’s one more witness

that my client determined that she would like to have, and she believes it’s an important

witness to her case[.]”    When the court asked defense counsel when she learned the

identity of the witness, defense counsel said “[t]here were conversations with my client

about potentially bringing him in. However, she was told that the witness was not in

town.”     The court denied the continuance.     The following day, after the jury had been

empaneled, defense counsel told the court that “I received a letter today from my client

that came from the branch manager” and that the letter was “almost an exculpatory letter

that will help us a lot through the trial.”   Hayes requested to have the letter admitted as

evidence in lieu of the branch manager’s testimony.      The court noted that the letter was

hearsay and made an initial ruling to exclude it.       The state then objected to Hayes’s

request to compel the branch manager’s attendance at trial because that person had not
been named on Hayes’s witness list. Defense counsel told the court that she had been

unable to subpoena the branch manager prior to trial because she was unable to determine

the branch manager’s identity.   The court ultimately refused to order the branch manager

to appear at trial, but told defense counsel that if she was able to produce him, it would

allow his testimony subject to the state’s right to voir dire the branch manager.      The

branch manager did not testify and Hayes proffered his letter into the record.

       {¶27} Although we give defense counsel the benefit of the doubt in matters of trial

strategy, State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 115, a

failure to investigate is not a matter of trial strategy.    State v. Schlosser, 2d Dist.

Montgomery Nos. 17192 and 17193, 1999 Ohio App. LEXIS 2386, at 24 (May 28, 1999).

 “[C]ounsel has a duty to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary.” Strickland v. Washington,

466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This duty is one that

requires defense counsel to “investigate ‘the circumstances of the case and to explore all

avenues leading to facts relevant to the merits of the case and the penalty in the event of

conviction.’” State v. Johnson, 24 Ohio St.3d 87, 89, 494 N.E.2d 1061 (1986), quoting

1 A.B.A. Standards for Criminal Justice (1982 Supp.), No. 4-4.1.

       {¶28} Defense counsel did not investigate this aspect of the case.        By defense

counsel’s own admission, it was Hayes who ascertained the identity of the branch

manager; it was Hayes who obtained the letter from the branch manager; and it was

Hayes who concluded that the branch manager’s testimony would be helpful to the
defense.   Defense counsel told the court that Hayes had been told that the branch

manager was unavailable and “[f]or a long time, [Hayes] was trying to reach him and

schedule a meeting to talk to the person, to the manager, and she wasn’t able to do that.”

       {¶29} Not only did defense counsel fail to investigate, she was unaware of the

value of the branch manager’s evidence.     Defense counsel admitted to the court prior to

jury selection that “I had no conversation with” the branch manager prior to trial.      In

addition, it was Hayes who “formed her opinion then that it is important” to call the

branch manager as a witness.      This is not a case where the client investigated on her

own, without informing defense counsel.       Defense counsel was aware of the branch

manager — she stated that she had “conversations with my client about potentially

bringing him in[.]”     Despite those conversations, defense counsel conceded that the

branch manager had not been named on her witness list because “we weren’t sure if we

want him or not.” It is difficult to understand how defense counsel could make an

informed decision to know whether she wanted the branch manager as a witness without

first speaking to him. This lack of investigation resulted in defense counsel asking the

court to either grant a continuance or issue a subpoena to compel the branch manager’s

attendance at trial.   The court denied those requests, ultimately dooming any hope that

Hayes had of introducing the letter into evidence. Hayes has established the deficient

performance prong of the Strickland test.

       {¶30} The branch manager’s letter was sufficiently probative of a lack of intent to

defraud that there is a reasonable probability that had it been offered into evidence, Hayes
would have overcome the presumption of fraud such that the outcome of trial would have

been different.

       {¶31} Intent is the key point here.       The state had to show that Hayes acted with a

specific intent to defraud.      See R.C. 2901.22(A) (defining “purpose” as having a

“specific intent to cause a certain result.”).    The bank manager’s letter shows that Hayes

had no knowledge that the deposit had been dishonored. This was important because the

facts show that Hayes wrote checks totaling $11,065 from the Huntington account for

deposit into the U.S. Bank account, and that she withdrew only $10,000 from the U.S.

Bank account — an amount less than the Huntington deposit. Hayes engaged in fraud if

she knew that the Huntington deposit had been dishonored and wrote the checks anyway.

       {¶32} The branch manager’s letter that Hayes proffered into evidence supported

her assertion that she was unaware that the initial deposit had been dishonored.            The

letter stated:

       A two party check was presented for deposit in the beginning of April 2015.
        The deposit was rejected due to the names on the check not being accurate.
        We could not get in contact with [a Hayes employee] who deposited the
       check so Angela Hayes picked up the check and was referred to the
       Pavillion branch. Angela Hayes had her attorney expedite the fictitious
       name update to redeposit a new check number 015470 amount of
       $21,346.00 on April 21st, 2015.

       {¶33} The letter supports Hayes’s assertion that she was unaware that the check

her employee deposited into her account had been dishonored when she wrote the checks

and made the withdrawals from the account.          The letter indicates that it was after Hayes
issued drafts against the account and made a withdrawal that the bank contacted her and

Hayes rectified the situation by redepositing the check.

       {¶34} The majority concludes that evidence from the bank manager would have

been cumulative to Hayes’s testimony that she had been unaware that the deposit had

been dishonored when she wrote the checks and made the withdrawals at issue.          This

conclusion is at odds with comments the state made in closing argument, where it implied

that Hayes had fabricated her version of events, telling the jury in closing argument that

“[s]he’s trying to con you, ladies and gentlemen.”    When referring to five recordings of

police interviews with Hayes, the state noted that “[i]n four of them she never mentions

the Huntington Bank manager.”      The state also told the jury that Hayes had “subpoena

power” and that if “[y]ou want that manager’s testimony, put them [sic] on the stand.”

The state’s argument was intended to make the jury think that Hayes fabricated the bank

manager.   Had Hayes offered the bank manager’s letter and testimony, she could have

eliminated any questions about the veracity of her defense.    It is reasonably likely that

the trial would have ended differently. Strickland, 466 U.S. at 696, 104 S.Ct. 2052, 80

L.Ed.2d 674.

       {¶35} The majority also focuses on Hayes’s actions taken after the crimes had

allegedly been completed as proof of her intent to defraud, using the R.C. 2913.11(C)(2)

statutory presumption that she presented checks knowing that they would be dishonored.

The R.C. 2913.11(C)(2) presumption is not irrebutable and cannot by itself defeat an

ineffective assistance of counsel claim. Hayes could defeat the presumption by showing
that she had no idea that the Huntington deposit had been dishonored, which set in motion

the falling dominos resulting in there being insufficient funds to cover the checks drawn

on her U.S. Bank account.    The evidence showed that Hayes’s employee made a $21,346

deposit to Hayes’s Huntington account and then Hayes wrote $11,065 in checks from

Huntington for deposit into U.S. Bank.     At the time she wrote the checks, there were

sufficient funds in the Huntington account to cover them. Hayes then withdrew $10,000

from the U.S. Bank account. If Hayes did not know that the Huntington deposit had

been dishonored, she could reasonably think that she had sufficient funds in the U.S.

Bank account to cover the withdrawals. The state’s assumption that Hayes knew she did

not have sufficient funds to prove the fraud is premised on her knowing that the

Huntington deposit had been dishonored.     The bank manager’s letter would have refuted

the claim that Hayes knew her deposit had been dishonored.

       {¶36} In fact, the argument the state makes on appeal supports the first prong of

Hayes’s ineffective assistance of counsel claim: it states that “the decision to subpoena

the Huntington Bank manager was simply too late, and Appellant should not have waited

until the day of the trial to attempt to subpoena the witness.” Appellee’s brief at 7.   As

for the prejudice claim, the state makes a rote statement about “the significant evidence”

against Hayes and her failure “to show the significance of the witness.” Id.    The state’s

assertion that Hayes failed to show the significance of the bank manager was refuted by

its assertion at trial that Hayes should have called him as a witness. And if the evidence

against Hayes was one-sided, it was because defense counsel failed to provide
countervailing evidence that she lacked the purpose to defraud.         For the foregoing

reasons, I would sustain the second assignment of error and reverse for a new trial.
