[Cite as State v. Weiss, 2013-Ohio-5499.]




                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                   :       Hon. Sheila G. Farmer, J.
                                             :       Hon. Patricia A. Delaney, J.
-vs-                                         :
                                             :       Case Nos. 12-CA-125
TONYA Y. WEISS                               :                 12-CA-126
                                             :
        Defendant-Appellant                  :       OPINION

                                                     NUNC PRO TUNC


CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case Nos. 2011-CR-0439 &
                                                     2011-CR-0510



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    November 22, 2013




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOCELYN S. KELLY                                     SCOTT P. WOOD
239 West Main Street                                 144 East Main Street
Suite 101                                            P.O. Box 667
Lancaster, OH 43130                                  Lancaster, OH 43130
Fairfield County, Case Nos. 12-CA-125 and 12-CA-126                                  2



Farmer, J.

      {¶1}   On September 26, 2011, the Fairfield County Grand Jury indicted

appellant, Tonya Weiss, on one count of identity fraud in violation of R.C. 2913.49

(Case No. 2011-CR-439). On November 18, 2011, a second indictment was issued

charging appellant with five counts of telecommunications fraud in violation of R.C.

2913.05 (Case No. 2011-CR-510).          Said charges arose from incidents wherein

appellant called several individuals and alleged child molestation acts against her ex-

husband, Paul Jones. Appellant also called Fairfield County Job and Family Services

and pretended to be her ex-husband's girlfriend, Rachel Lucero, and requested that her

benefits be stopped.

      {¶2}   A jury trial commenced on August 28, 2012. The jury found appellant

guilty as charged. By judgment entry filed October 19, 2012, the trial court sentenced

appellant to an aggregate term of thirty-two months in prison.

      {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

      {¶4}   "THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE JURY'S

VERDICT AND TO CONVICT APPELLANT."

                                            II

      {¶5}   "THE TRIAL COURT MADE TWO RULINGS DURING TRIAL THAT

WERE UNDULY PREJUDICIAL TO APPELLANT."
Fairfield County, Case Nos. 12-CA-125 and 12-CA-126                                       3


                                             III

       {¶6}   "THE STATE COMMITTED PROSECUTORIAL MISCONDUCT DURING

CLOSING ARGUMENTS."

                                              I

       {¶7}   Appellant claims there was insufficient evidence to convict her for

telecommunications fraud because there was no proof of any "financial" detriment, and

challenges her conviction for identity fraud on the quality of the evidence. We disagree.

       {¶8}   On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks, 61 Ohio St.3d 259 (1991). "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." Jenks at

paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307 (1979).

       {¶9}   Appellant was convicted of telecommunications fraud in violation of R.C.

2913.05(A) which states the following:



              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.
Fairfield County, Case Nos. 12-CA-125 and 12-CA-126                                        4


       {¶10} Under R.C. 2913.01(B), "defraud" "means to knowingly obtain, by

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

some detriment to another."

       {¶11} Appellant claims there was no showing of any financial detriment to the

victims. To support her position, appellant points out that R.C. 2913.05(B) provides the

following:



              If an offender commits a violation of division (A) of this section and

       the violation occurs as part of a course of conduct involving other

       violations of division (A) of this section or violations of, attempts to violate,

       conspiracies to violate, or complicity in violations of section 2913.02,

       2913.04, 2913.11, 2913.21, 2913.31, 2913.42, 2913.43, or 2921.13 of the

       revised code, the court, in determining the degree of the offense pursuant

       to division (C) of this section, may aggregate the value of the benefit

       obtained by the offender or of the detriment to the victim of the fraud in the

       violations involved in that course of conduct. The course of conduct may

       involve one victim or more than one victim.



       {¶12} Appellant's position is that because the trial court was charged with

determining the aggregate value of the benefit obtained by her or the detriment to the

victims, the evidence was insufficient to support either determination. Per the bill of

particulars filed March 20, 2012, the state's theory was that the victims suffered a
Fairfield County, Case Nos. 12-CA-125 and 12-CA-126                                   5


detriment as a result of interfering with child custody rights and possible wrongful

prosecution:



               ***having devised a scheme to defraud, to-wit: did knowingly cause

      by deception some detriment, specifically denial and/or interference of

      custody rights or contact with children, and/or to wrongly create criminal

      liability against another, and/or to cause economic losses to another, all by

      making false allegations of child molestation or knowing acquiescence

      thereto by another, to wit: R.L. and/or P.J. In doing so, did knowingly

      disseminate, transmit, or cause to be disseminated or transmitted by a

      telecommunication, specifically a telephone call, falsely alleging child

      molestation and/or knowing acquiescence to same by P.J. and/or R.L. to

      another, to wit: P.C., or with purpose to execute or otherwise further the

      aforementioned scheme to defraud.



      {¶13} Appellant and Paul Jones were divorced. Mr. Jones began a romantic

relationship with Rachel Lucero who had two children. Ms. Lucero testified that as a

result of appellant's accusations to several individuals about her children being

molested by Mr. Jones, she suffered emotional detriment as well as financial detriment

(T. at 133-135):



               Q. You describe how you and Mr. Jones were unable to spend time

      together, or at least severely restricted the time you were together at the
Fairfield County, Case Nos. 12-CA-125 and 12-CA-126                                  6


      home, most of all.       What other impact did this have on you, these

      accusations?

             A. To me? Other than - - I mean, we were very worried, scared,

      wondering what would happen next. I was very worried about losing my

      children.

             Q. Did you have meetings with the school?

             A. I just went to the school one time to speak to them. I couldn't

      really get in to talk to them.

             Q. After this report was made?

             A. Correct.

             Q. And you had meetings with Fayette County Children's Services?

             A. I'm sorry?

             Q. You had meetings with Fayette County Children's Services?

             A. Yes, sir.

             Q. Had to go to court over this for a protection - - -

             Did you suffer any economic loss, just gas money, if nothing else,

      or baby-sitting?

             MR. WOOD: Objection. Leading.

             THE COURT: Sustained.

             Q. What other losses, if any, did you suffer as a result of this?

             A. Pretty much just - - you started to say gas or just trying to find

      someone to baby-sit.

             Q. Roughly how much out-of-pocket would you say this cost you?
Fairfield County, Case Nos. 12-CA-125 and 12-CA-126                                    7


             A. 75 to 100 at most.

             Q. More than zero, though.

             A. Oh, yeah.



      {¶14} Ms. Lucero also testified the investigator on the molestation claim

indicated she should not speak to or be seen with Mr. Jones or she would lose her

children. T. at 125-126. Making false molestation allegations against Mr. Jones clearly

created harm and could have caused a wrongful criminal prosecution.

      {¶15} We find there was sufficient credible evidence of a detriment to the

victims. Appellant's benefit was to separate Mr. Jones and Ms. Lucero and reunite with

Mr. Jones and in her own words, stated: "payback's a bitch, Paul, and it’s a 'coming to

you." T at 97-98, 102, 106, 108, 257-258, State's Exhibit E.

      {¶16} Appellant also claims there was insufficient evident to convict her of

identity fraud in violation of R.C. 2913.49(B)(1) which states: "No person, without the

express or implied consent of the other person, shall use, obtain, or possess any

personal identifying information of another person with intent to***[h]old the person out

to be the other person."

      {¶17} Appellant challenges the credibility of witness Kristin Ankrom, and argues

the party who made the telephone call disguised her voice.

      {¶18} Ms. Ankrom was an employee with Fairfield County Job and Family

Services.   T. at 455.      She was personally acquainted with Ms. Lucero, having

supervised her in a program. T. at 457. Ms. Ankrom testified she received a telephone

call from a person identifying herself as Rachel Lucero and asking for her benefits to be
Fairfield County, Case Nos. 12-CA-125 and 12-CA-126                                     8


terminated.   T. at 457-458.     Ms. Ankrom was immediately suspicious because the

woman sounded like she was disguising her voice, and the person sounded older and

gave the wrong date of birth. T. at 458, 460-461. The caller specifically answered to

"Rachel." T. at 462.

       {¶19} After the caller terminated the call, Ms. Ankrom scrolled through the

history of the phone and identified the phone number related to the call. T. at 465-466.

The number belonged to appellant. T. at 463-464, 466, State's Exhibit B. A call log of

appellant's telephone contained the office phone numbers for Job and Family services.

T. at 464, State's Exhibit B. Ms. Ankrom listened to a tape of appellant and identified

her as the caller. T. at 467-468, 474-476, State's Exhibit M. Ms. Lucero never gave

appellant permission to pretend to be her for any purpose or reason. T. at 116.

       {¶20} Upon review, we conclude there was sufficient credible evidence, if

believed by the jury, to substantiate the guilty findings.

       {¶21} Assignment of Error I is denied.

                                              II

       {¶22} Appellant claims the trial court erred on two evidentiary rulings: 1) letters

from Job and Family Services were inadmissible hearsay, and 2) the trial court

prohibited her from arguing that it was necessary for the state to prove that her

statements were false to satisfy the "scheme to defraud" element of the offense.

       {¶23} The admission or exclusion of evidence lies in the trial court's sound

discretion. State v. Sage, 31 Ohio St.3d 173 (1987). In order to find an abuse of that

discretion, we must determine the trial court's decision was unreasonable, arbitrary or
Fairfield County, Case Nos. 12-CA-125 and 12-CA-126                                     9

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5

Ohio St.3d 217 (1983).

      {¶24} Ms. Lucero testified she was romantically involved with Mr. Jones, and he

stayed with her and her children in a home in New Holland a couple of nights a week.

T. at 94-95. She testified a social worker for Job and Family Services visited with her

children at school, inquiring about the children's relationship with Mr. Jones. T. at 103.

Ms. Lucero received a letter to contact Job and Family Services. T. at 121. When she

did, she was told someone called in, stating her children were in harm's way living with

Mr. Jones. T. at 123-124. She was also told that her children would be taken from her

if she continued to speak to or be seen with Mr. Jones. T. at 124, 125-126. She

testified that as a result of the threat, she stayed away from Mr. Jones and was "very

worried, scared, wondering what would happen next," and she suffered economic loss.

T. at 133-134.

      {¶25} Thereafter, Ms. Lucero and her children received letters informing them

that the investigation had been dismissed. T. at 127, 129-130, State's Exhibits F, G,

and H. The exhibits established that an allegation of child molestation had been made

concerning Ms. Lucero's children and the investigation had been dismissed.

      {¶26} Appellant argues the exhibits constitute hearsay and therefore could not

be used to prove that the allegations had been made and that they were false. The trial

court found the exhibits not to be hearsay. T. at 128. The state argues the exhibits did

not constitute hearsay as they were not offered to prove the matter asserted, but to

prove that an investigation took place.     During closing argument, the state argued

appellant did not have a good faith belief that the children had been molested, but called
Fairfield County, Case Nos. 12-CA-125 and 12-CA-126                                      10


Job and Family Services out of vindictiveness and an effort to break up Mr. Jones and

Ms. Lucero. T. at 709-711.

        {¶27} We concur with the trial court's analysis that the thrust of the state's claim

of telecommunications fraud was the fact that appellant made a molestation allegation

not in good faith. As such, the state never argued that the allegation was false, just that

it was made. Ms. Lucero and Mr. Jones both denied any molestation. T. at 103-104,

125, 279. State's Exhibits F, G, and H, the letters informing Ms. Lucero and her children

that the investigation had been dismissed, were proof that an accusation had been

made and substantiated Ms. Lucero's and Mr. Jones's direct testimony.

        {¶28} During closing argument, defense counsel attempted to argue that the

state had to prove beyond a reasonable doubt that the allegations were false (T. at

718):



              So we would submit to you that based on the information that

        Tonya knew, she had an honest belief that those allegations regarding

        Paul Jones were true.

              Now, we don't have to prove that to you beyond a reasonable

        doubt. We don't have to prove to you beyond a reasonable doubt that

        Paul Jones is a child abuser. There's only one party in this trial that has

        the burden of proof, and that's the State. And the State has rested its

        entire case on the fact that these allegations are false. They have to

        prove that to you beyond a reasonable doubt.
Fairfield County, Case Nos. 12-CA-125 and 12-CA-126                                11


      {¶29} The state objected and the trial court sustained the objection, ruling the

falseness of the allegation was not an element. T. at 718-719. The trial court then

permitted defense counsel to make the following argument (T. at 719-721):



             They have to prove - - the State has to prove to you in their

      telecommunications fraud that my client perpetuated a deception. And the

      deception that they are alleging is that these allegations regarding Paul

      Jones are false.

             Now, did the State present any evidence to you that these

      allegations were thoroughly investigated and proven to be untrue? The

      answer is no. By my count, the State called 12 witnesses, but no one

      from Fairfield County who investigated these allegations, no one from

      Ross County who investigated these allegations, and no one from Fayette

      County who investigated these allegations. The only evidence that was

      presented to you by the State was a form letter sent from a Fayette

      County Job and Family Services caseworker who never testified, and the

      letter said that the case was closed.

             Why wouldn't that person testify? Why wouldn't we hear anything

      about the background of that person and the thorough investigation that

      she conducted before she sent that letter out? In fact, the investigation

      was so thorough that the suspect himself was not even interviewed. And

      apparently, only a phone message that's not returned is enough to clear

      somebody in Fayette County.
Fairfield County, Case Nos. 12-CA-125 and 12-CA-126                                   12


                So other than the self-serving denials by Paul Jones and Rachel

       Lucero, the State presented no evidence to you that these allegations are

       false.



       {¶30} It appears to be appellant's position that the only way to prove that the

allegation was false was through the investigators, however, the record is clear that Ms.

Lucero and Mr. Jones both denied the allegation and if their testimony was believed by

the jury, the element was proven. The deception/falsehood is an element of the offense

and as such, must be proven beyond a reasonable doubt.

       {¶31} Although we find it was error to not permit the argument as to "reasonable

doubt," we find the trial court instructed the jury that the deception had to be proven

beyond a reasonable doubt. T. at 755-776. Therefore, we find the error to be harmless.

Harmless error is described as "[a]ny error, defect, irregularity, or variance which does

not affect substantial rights shall be disregarded."          Crim.R. 52(A).   Overcoming

harmless error requires a showing of undue prejudice or a violation of a substantial

right. We find neither in this case.

       {¶32} Upon review, we find the continued argument by defense counsel as well

as the jury charge were sufficient to insure appellant a fair trial.

       {¶33} Assignment of Error II is denied.

                                              III

       {¶34} Appellant claims the prosecutor was guilty of prosecutorial misconduct

because of his repeated objections during defense counsel's closing argument, all but

one being overruled. We disagree.
Fairfield County, Case Nos. 12-CA-125 and 12-CA-126                                         13


       {¶35} The test for prosecutorial misconduct is whether the prosecutor's

comments and remarks were improper and if so, whether those comments and remarks

prejudicially affected the substantial rights of the accused. State v. Lott, 51 Ohio St.3d

160 (1990).     In reviewing allegations of prosecutorial misconduct, it is our duty to

consider the complained of conduct in the contest of the entire trial.              Darden v.

Wainwright, 477 U.S. 168 (1986).

       {¶36} Appellant argues the prosecutor's repeated objections, seven times in

twenty minutes, were excessive. The trial court attempted to keep the arguments on

track by reminding the prosecutor that he would have the opportunity to rebut defense

counsel's arguments. T. at 723. Appellant also argues the prosecutor personalized

defense counsel's arguments and attempted to "con" the jury, and cites to seven

references and two implications. Appellant argues these statements unduly influenced

the jury.

       {¶37} We are unwilling to categorize the prosecutor's objections as error,

although they appear to center on legal arguments, not factual inconsistencies. Further,

the arguments as to the believability of witnesses as to defense counsel's statements

are not clear error. If anything, repeated objections during defense counsel's closing

argument can negatively impact the jury's perception of the objections.                    The

personalization of argument is never good form by the state, as is any personalization of

any argument.

       {¶38} Upon review, we cannot find any of the complained of errors prejudicially

affected appellant's substantial rights or rose to the level of denying appellant a fair trial.

       {¶39} Assignment of Error III is denied.
Fairfield County, Case Nos. 12-CA-125 and 12-CA-126                            14


      {¶40} The judgment of the Court of Common Pleas of Fairfield County, Ohio is

hereby affirmed.

By Farmer, J.

Delaney, J. concur

Hoffman, P.J. concurs separately.




                                        _______________________________
                                        Hon. Sheila G. Farmer


                                        _______________________________
                                        Hon. William B. Hoffman


                                        _______________________________
                                        Hon. Patricia A. Delaney




SGF/sg 926
Fairfield County, Case Nos. 12-CA-125 and 12-CA-126                                     15


Hoffman, P.J., concurring

       {¶41} I concur in the majority analysis and disposition of Appellant’s three

assignments of error with one exception.

       {¶42} Concerning Appellant’s second assignment of error, I would find it was

error to admit State’s Exhibits F, G, and H as they constituted hearsay.1 However, in

light of the denial of molestation by Mr. Jones and Mr. Lucero, I find the error harmless.



                                                 ________________________________
                                                 HON. WILLIAM B. HOFFMAN




1
  The standard of review set forth in State v. Sage (1987), 31 Ohio St.3d 173, applies to
the admission of relevant evidence under Evid.R. 401.
[Cite as State v. Weiss, 2013-Ohio-5499.]


                  IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :       NUNC PRO TUNC
                                               :
        Plaintiff-Appellee                     :       JUDGMENT ENTRY
                                               :
-vs-                                           :
                                               :
TONYA Y. WEISS                                 :
                                               :       CASE NOS. 12-CA-125
        Defendant-Appellant                    :                 12-CA-126




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Fairfield County, Ohio is affirmed. Costs to

appellant.




                                               _______________________________
                                               Hon. Sheila G. Farmer




                                               _______________________________
                                               Hon. William B. Hoffman




                                               _______________________________
                                               Hon. Patricia A. Delaney
