[Cite as State v. Miller, 2014-Ohio-4348.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                       WOOD COUNTY


State of Ohio                                    Court of Appeals Nos. WD-13-054
                                                                       WD-14-006
        Appellee
                                                 Trial Court Nos. 12 CR 515
v.                                                                11 CR 513

Johnny Miller                                    DECISION AND JUDGMENT

        Appellant                                Decided: September 30, 2014

                                             *****

        Paul A. Dobson, Wood County Prosecuting Attorney, and
        David T. Harold, Assistant Prosecuting Attorney, for appellee.

        Lawrence A. Gold, for appellant.

                                             *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a July 25, 2013 judgment of the Wood County Court

of Common Pleas, which found appellant guilty of one count of forgery, in violation of

R.C. 2913.31, a felony of the fifth degree, and guilty of a community control violation

resulting from the forgery. Appellant was on community control stemming from a 2011

robbery conviction at the time of the forgery incident.
       {¶ 2} Appellant was sentenced to a one-year term of incarceration for the forgery

conviction, ordered to be served concurrently to a three-year term of incarceration

imposed for the community control violation. For the reasons set forth below, this court

affirms the judgment of the trial court.

       {¶ 3} Appellant, Johnny Miller, sets forth the following three assignments of error:

              FIRST ASSIGNMENT OF ERROR: APPELLANT’S

       CONSTITUTIONAL RIGHTS UNDER THE FREE EXERCISE AND

       ESTABLISHMENT CLAUSE OF THE UNITED STATES

       CONSTITUTION WERE INFRINGED UPON BY BEING FORCED TO

       ATTEND A RELIGIOUS BASED PROGRAM, ALCOHOLICS

       ANONYMOUS, WITHOUT A SECULAR ALTERNATIVE.

              SECOND ASSIGNMENT OF ERROR: THE STATE FAILED TO

       PRESENT SUFFICIENT EVIDENCE UPON WHICH TO BASE A

       CONVICTION.

              THIRD ASSIGNMENT OF ERROR: APPELLANT’S

       CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE

       EVIDENCE PRESENTED AT TRIAL.

       {¶ 4} The following undisputed facts are relevant to this appeal. On December 5,

2011, appellant was found guilty of one count of robbery, in violation of R.C. 2911.02, a

felony of the third degree. On February 27, 2012, appellant was sentenced to community

control in lieu of a suspended five-year term of incarceration.




2.
       {¶ 5} Of particular significance to the instant case, appellant was ordered to attend

Alcoholics Anonymous (“AA”) meetings as a condition of community control and to

submit executed attendance forms to verify compliance with that condition of community

control.

       {¶ 6} For approximately the next six months, appellant appeared to be working on

the requirements of community control. Notably, at no point during the process of

appellant’s indictment, conviction, placement on community control, and participation in

community control did appellant ever convey concerns or objections of any kind in

connection to the condition of AA meeting attendance.

       {¶ 7} On August 8, 2012, appellant attended a meeting with his parole officer.

During the meeting, appellant was requested to submit the requisite AA attendance

verification forms. Appellant submitted documents to the parole officer that resembled

AA attendance forms, but which appeared to the parole officer to possibly be of suspect

origins.

       {¶ 8} Based upon his assessment that the appellant’s AA forms did not appear

legitimate, appellant’s parole officer questioned appellant about the documents. During

this exchange, appellant conceded to his parole officer that he had utilized his personal

computer to generate faux documents intended to replicate both AA attendance forms and

stamps. Appellant ultimately confessed to creating the documents, creating the

attendance stamp, and forging signatures while not actually attending the AA meetings.

Notably, at the time the deception was discovered, appellant again conveyed no concerns




3.
or objection of any kind in connection to the community control condition of attendance

of AA meetings.

       {¶ 9} On September 20, 2012, appellant was indicted on one count of forgery in

connection to his submission of counterfeit AA attendance documents and forgery of

signatures on those forms. On May 22, 2013, following a bench trial, appellant was

found guilty of forgery and of the related community control violation. Appellant was

sentenced to a one-year term of incarceration on the forgery conviction, ordered to be

served concurrently to a three-year term of incarceration for the community control

violation. This appeal ensued.

       {¶ 10} In the first assignment of error, appellant maintains that his first

amendment rights have been infringed upon via the mandated attendance at AA

meetings. In support, appellant states, “it is incontrovertible that Alcoholics Anonymous

(AA) is fundamentally based on a religious concept of a higher power.” The underlying

premise of appellant’s constitutional contention is that the AA attendance requirement

constituted coerced participation in religion. We are not persuaded.

       {¶ 11} We note at the outset that there is an abundance of case law at the federal

level finding both that mandated AA participation is not a violation of First Amendment

rights, with other cases finding that it was a violation of First Amendment rights.

Significantly, relevant precedent on this issue consistently turns on case specific factors

including both whether or not the party clearly and adequately conveyed religious-based

concerns or objections to AA attendance, and in those cases in which the concern was




4.
properly raised, whether secular alternatives to AA were offered. Inouye v. Kemna, 504

F.3d 705 (9th Cir.2007); Kerr v. Farrey, 95 F.3d 472 (7th Circ.1996).

       {¶ 12} The record reflects that appellant never conveyed any religious concerns or

objections to AA attendance prior to the forgery and community control convictions

underlying this case. More significantly, the record contains no evidence demonstrating

that appellant was ever encouraged or coerced to join any religion or religious institution,

was ever encouraged or coerced to attend any service or event of any religion or religious

institution, or was ever encouraged or coerced to meet with any representative of any

religion or religious institution. Put differently, the record is devoid of any evidence

showing that appellant ever attended an AA meeting whose primary purpose was to

advance religious beliefs rather than to promote sobriety and recovery from addiction and

substance abuse.

       {¶ 13} We further note that the record is devoid of any legal support for

appellant’s contention that the AA principle that AA attendees are not to reveal the

identities of other AA attendees to the outside world is in any way compromised by

requiring one on parole to verify his or her own attendance to his or her own parole

officer.

       {¶ 14} We have carefully reviewed and considered this matter. We find that the

record reflects that appellant did not convey any concerns or objections to attendance of

AA meetings, religious or otherwise, at any time relevant to this case. We find that the

record reflects no evidence that appellant ever attended an AA meeting which constituted




5.
the advancement of religion rather than the advancement of sobriety and substance abuse

recovery. Wherefore, we find appellant’s first assignment of error not well-taken.

       {¶ 15} In appellant’s second assignment of error, he contends that his forgery

conviction was not based upon sufficient evidence. In support, appellant unilaterally

concludes that no evidence of a purpose to defraud was presented by appellee. Appellant

appears to rely upon his recently voiced constitutional based objections to AA meetings

as constituting an affirmative legal defense to manufacturing counterfeit AA meeting

attendance documents and forging signatures upon them. We are not persuaded.

       {¶ 16} It is well-established that in sufficiency of the evidence challenges, the

court must determine whether evidence has been presented which, if believed, would

convince the average mind of the defendant’s guilt beyond a reasonable doubt. The test

is, when viewing the evidence in a light most favorable to the prosecution, could any

rational trier of fact 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.

       {¶ 17} The record in this case clearly reflects that appellant submitted documents

that he created on his own computer for the purpose of falsely resembling legitimate AA

attendance forms. The record in this case clearly reflects that appellant created a faux

attendance stamp for the purpose of falsely resembling a legitimate AA attendance stamp.

The record in this case reflects that appellant forged signatures upon the fake documents

to falsely purport to have attended AA meetings that he did not attend.




6.
       {¶ 18} Ohio’s forgery statute, R.C. 2913.31, establishes that, “No person, with

purpose to defraud, or knowing that the person is facilitating a fraud shall * * * forge any

writing of another without the other person’s authority.” We find that the record in this

matter clearly demonstrates that appellant forged the writings of others with the purpose

of facilitating a fraud to his parole officer by falsely claiming compliance with a term of

probation that appellant did not comply with. Wherefore, we find appellant’s second

assignment of error not well-taken.

       {¶ 19} In appellant’s third assignment of error, he similarly contends that his

conviction was against the manifest weight of the evidence. It is well-established that in

reviewing manifest weight of the evidence claims, this court acts as a “thirteenth juror” to

determine whether the trier of fact lost its way and created such a manifest miscarriage of

justice that the conviction must be overturned and a new trial ordered. State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1978).

       {¶ 20} We note that in support of the third assignment of error, appellant makes no

new arguments. Appellant states, “Appellant incorporates by reference the arguments

presented in the first two assignments of error.” Given our adverse determinations in

response to the first two assignments of error, we find appellant’s third assignment of

error not well-taken.




7.
       {¶ 21} Wherefore, we find that substantial justice has been done in this matter.

The judgment of the Wood County Court of Common Pleas is hereby affirmed.

Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                       Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Thomas J. Osowik, J.                           _______________________________
                                                           JUDGE
Stephen A. Yarbrough, P.J.
CONCUR.                                        _______________________________
                                                           JUDGE


Arlene Singer, J.                              _______________________________
CONCURS AND WRITES                                         JUDGE
SEPARATELY.



       SINGER, J.

       {¶ 22} I concur with the judgment of the majority, however, without commenting

on the appropriateness of a First Amendment challenge to mandatory Alcoholics

Anonymous attendance. I find that the appellant here did not clearly or adequately object

to AA attendance to properly raise a First Amendment issue.


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.



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