[Cite as State v. Fairchild, 2013-Ohio-2382.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                HARDIN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 6-12-18

        v.

LORI ANN FAIRCHILD,                                        OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Hardin County Common Pleas Court
                            Trial Court No. 20112205CRI

                                       Judgment Affirmed

                              Date of Decision: June 10, 2013




APPEARANCES:

        Michael J. Short for Appellant

        Bradford W. Bailey and Destiny R. Hudson for Appellee
Case No. 6-12-18


SHAW, J.

        {¶1} Defendant-appellant Lori Ann Fairchild (“Fairchild”) appeals the

October 10, 2012, judgment of the Hardin County Common Pleas Court

sentencing Fairchild to community control sanctions following Fairchild’s bench

trial conviction for Grand Theft, in violation of R.C. 2913.02(A)(3),(B)(2), a

felony of the fourth degree.1

        {¶2} On October 3, 2011, Fairchild was indicted for three counts of Grand

Theft, in violation of R.C. 2913.02(A)(1),(B)(2), R.C. 2913.02(A)(2),(B)(2), and

R.C. 2913.02(A)(3),(B)(2), all felonies of the fourth degree.                         (Doc. 1).      The

indictment alleged that on or about October 21, 2009, through on or about May 1,

2011, Fairchild knowingly obtained property or services without consent, and that

the value of the property or services stolen was more than five thousand dollars

and less than one hundred thousand dollars. (Doc. 1). The property or services

alleged to have been stolen were benefits from the Hardin County Department of

Jobs and Family Services (“HCDJFS”), specifically, food stamps. (Doc. 20).

        {¶3} On October 17, 2011, Fairchild pled not guilty to the charges. (Doc.

11).

        {¶4} On May 30, 2012, Fairchild filed a waiver of jury trial. (Doc. 26).




1
 Fairchild was actually convicted of three counts of Grand Theft, but they were found to be allied offenses
of similar import, and the State elected to sentence on the (A)(3) charge.

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          {¶5} A bench trial was held on May 30, 2012. At trial, the State called

Jessica Ziegler, formerly of HCDJFS, Jason Snyder, a Fraud Investigator for

HCDJFS, and Joe Carl, formerly of the Ada Police Department, and then the State

rested. The State produced evidence that Kenneth Fairchild (“Kenneth”) was

living in Fairchild’s home, that Fairchild was obligated to report Kenneth’s

presence to HCDJFS, that Fairchild did not notify HCDJFS of Kenneth residing in

the home, and that Fairchild continued to receive food stamps despite not being

eligible when factoring in Kenneth’s income.

          {¶6} At the conclusion of the State’s case, Fairchild made a Criminal Rule

29 motion for acquittal, which was denied, and then Fairchild presented her case-

in-chief, calling Kenneth, her fiancé, and taking the stand herself. When Fairchild

concluded her case-in-chief, the State recalled Jason Snyder in rebuttal. Following

Snyder’s testimony, the parties agreed to submit their closing arguments via trial

briefs.

          {¶7} The State filed its closing argument/trial brief on June 8, 2012. (Doc.

27). Fairchild filed her closing trial brief on June 11, 2012. (Doc. 28).

          {¶8} On July 13, 2012, the court convened to announce the decision, and

found Fairchild guilty of all three counts of Grand Theft. (Doc. 30). The court

then ordered a pre-sentence investigation and set the matter for sentencing. (Id.)




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       {¶9} On October 9, 2012, a sentencing hearing was held. (Doc. 38). The

court found that Fairchild’s convictions were allied offenses of similar import and

directed the State to elect the charge to which it wished to proceed for the

purposes of sentencing. The State elected to proceed with sentencing on Count 3,

Grand Theft, in violation of R.C. 2913.02(A)(3),(B)(2), a felony of the fourth

degree. Ultimately the trial court sentenced Fairchild to three years of community

control sanctions. (Id.) Among the provisions of Fairchild’s community control

sanctions, Fairchild was ordered to perform 80 hours of community service, and to

pay restitution of $9,456.00 to the Hardin County Department of Job and Family

Services. (Id.) Fairchild was also notified that in the event she violated her

community control sanctions, she would be sent to prison for 17 months. (Id.)

       {¶10} It is from this judgment that Fairchild appeals, asserting the

following assignments of error for our review.

                   ASSIGNMENT OF ERROR 1
       THE CONVICTION WAS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE.

                   ASSIGNMENT OF ERROR 2
       THE TRIAL COURT ERRED IN FINDING THE
       DEFENDANT GUILTY, AS THERE WAS INSUFFICIENT
       EVIDENCE TO SUPPORT THE CONVICTION.

       {¶11} As the nature of the discussion will relate to both assignments of

error, we elect to address the assignments of error together.



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                      First and Second Assignments of Error

       {¶12} In her first and second assignments of error, Fairchild argues that

there was insufficient evidence to convict her, and that her convictions were

against the manifest weight of the evidence. Specifically, Fairchild contends the

State failed to establish that Fairchild possessed the requisite mens rea of

“knowingly,” and that the State failed to establish that Kenneth Fairchild was a

member of Fairchild’s household.

       {¶13} Sufficiency of the evidence is a test of adequacy rather than

credibility or weight of the evidence. State v. Thompkins, 78 Ohio St.3d 380, 386

(1997). Whether the evidence is legally sufficient to sustain a verdict is a question

of law.   Id.   In reviewing the record for sufficiency, 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 proven beyond a

reasonable doubt. State v. Smith, 80 Ohio St.3d 89, 113 (1997).

       {¶14} The Supreme Court of Ohio has “carefully distinguished the terms

‘sufficiency’ and ‘weight’ in criminal cases, declaring that ‘manifest weight’ and

‘legal sufficiency’ are ‘both quantitatively and qualitatively different.’” Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 10, quoting State v. Thompkins,

78 Ohio St.3d 380 (1997), paragraph two of the syllabus.




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       {¶15} Unlike our review of the sufficiency of the evidence, an appellate

court's function when reviewing the weight of the evidence is to determine

whether the greater amount of credible evidence supports the verdict. Volkman,

supra, at ¶ 12; State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). In reviewing

whether the trial court's judgment was against the weight of the evidence, the

appellate court sits as a “thirteenth juror” and examines the conflicting testimony.

Id. In doing so, this Court must review the entire record, weigh the evidence and

all of the reasonable inferences, consider the credibility of witnesses, and

determine whether in resolving conflicts in the evidence, the factfinder “‘clearly

lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered.’” State v. Andrews, 3d Dist. No. 1–05–

70, 2006-Ohio-3764, ¶ 30, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st

Dist.1983); Thompkins, 78 Ohio St.3d at 387.

       {¶16} Fairchild was charged with violating R.C. 2913.02(A)(1),(B)(2),

R.C. 2913.02(A)(2),(B)(2), and R.C. 2913.02(A)(3),(B)(2), which read at the time

the Grand Jury returned its indictment,

       (A) No person, with purpose to deprive the owner of property
       or services, shall knowingly obtain or exert control over either
       the property or services in any of the following ways:

       (1) Without the consent of the owner or person authorized to
       give consent;



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        (2) Beyond the scope of the express or implied consent of the
        owner or person authorized to give consent;

        (3) By deception;

        ***

        (B)(1) Whoever violates this section is guilty of theft.

        (2) * * * If the value of the property or services stolen is five
        thousand dollars or more and is less than one hundred thousand
        dollars, a violation of this section is grand theft, a felony of the
        fourth degree. * * *2

        {¶17} The requisite mental state for committing a violation of R.C.

2913.02(A), “knowingly,” is defined in R.C. 2901.22(B).                              “A person acts

knowingly, regardless of his purpose, when he is aware that his conduct will

probably cause a certain result or will probably be of a certain nature. A person

has knowledge of circumstances when he is aware that such circumstances

probably exist.” R.C. 2901.22(B).

        {¶18} To prove that Fairchild committed Grand Theft as alleged in the

indictment, the State first called Jessica Ziegler (“Ziegler”), formerly of HCDJFS.

Ziegler testified that she worked for HCDJFS from July of 2002 until June of 2010

as an income maintenance case worker/eligibility referral specialist. (Tr. at 5).

Ziegler testified that as part of her duties, she would take the paper application

filled out by a person applying for federal and state programs, including, inter alia,

2
 The statute has since been amended. The (B)(2) portion cited now reads, “[i]f the value of the property or
services stolen is seven thousand five hundred dollars or more and is less than one hundred thousand
dollars, a violation of this section is grand theft, a felony of the fourth degree.”

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food stamps, and go through the application step by step with the person applying

to verify the person’s information. (Tr. at 5, 7).

         {¶19} Ziegler testified that she met with Fairchild on April 20, 2009,

regarding her application. (Tr. at 6). According to Ziegler, at that meeting with

Fairchild, and in the accompanying paperwork, Fairchild indicated that the

members of her household were Fairchild herself, and her two sons Atom and

Jake. (Tr. at 10). Ziegler testified that she informed Fairchild of the need to report

any changes to the information reported, including additional people in the home,

adding that if Fairchild was ever in any doubt about whether she should report

something, it was better to report a change. (Tr. at 12-13). Ziegler testified that

Fairchild stated that she understood and that Fairchild signed that she understood

her rights and responsibilities. (Tr. at 17). Copies of signed documents indicating

Fairchild’s duties and understanding were introduced into evidence. (State’s Exs.

1, 2).

         {¶20} The State next called Jason Snyder (“Snyder”), a Fraud Investigator

for HCDJFS.       (Tr. at 23).   Snyder testified that his department received a

complaint regarding Fairchild, which alleged that Fairchild had an unreported

person living in her home, namely Kenneth. (Tr. at 27). Snyder testified that after

receiving the complaint and reviewing Fairchild’s file to see if there were any

adult males listed as residing in the home (which there were not), Snyder began an


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investigation of Fairchild by speaking to people that Fairchild knew, including

Fairchild’s neighbors. (Tr. at 34-35). Snyder testified that “several witnesses

state[d] that [Kenneth] was there daily.” (Tr. at 70).

       {¶21} Snyder testified that he conducted surveillance on Fairchild’s home,

observing that Kenneth’s blue Audi was at Fairchild’s residence approximately 12

of the 18 times Snyder conducted surveillance. (Tr. at 36). Snyder testified that

during one of the instances in which he was conducting surveillance, he followed

Kenneth when Kenneth left Fairchild’s residence, and observed Kenneth driving

to pick up his 18 wheeler, which he used for his job as a truck driver. (Tr. at 37).

       {¶22} Snyder testified that he spoke with Fairchild and Kenneth, and

Fairchild indicated that Kenneth stayed at her home periodically. (Tr. at 39).

Snyder testified that Fairchild told him during an interview that Kenneth gave

Fairchild money and was her “sugar daddy.” (Tr. at 42). According to Snyder,

Fairchild testified that Kenneth was often on the road, as he was a truck driver.

(Tr. at 43). Snyder testified that Fairchild and Kenneth both told Snyder that

Kenneth’s primary residence was in Michigan, with Kenneth’s mother. (Tr. at

43). However, Snyder testified that Fairchild eventually “agreed that [Kenneth]

was there the majority of the time”—with “there” being Fairchild’s Ada residence.

(Tr. at 44). In addition, Snyder testified that he conducted further investigation of




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Kenneth’s alleged Michigan residence with his mother, and through that

investigation determined that Kenneth was not living in Michigan. (Tr. at 54).

       {¶23} Snyder testified that he conducted an investigatory tour of Fairchild’s

residence, and found that half of Fairchild’s bedroom was decorated with

Kenneth’s things. (Tr. at 49). Snyder also inquired as to whether Kenneth ate

food at Fairchild’s house, to which Fairchild said that she did not want to lose her

food stamps, so she was going to have to tell Snyder no. (Tr. at 45). Snyder

testified that Fairchild informed him that Kenneth was paying Fairchild’s bills, and

that Kenneth occasionally ate Fairchild’s food, and that Kenneth occasionally

bought Fairchild and her children Subway and pizza. (Tr. at 42).

       {¶24} Snyder also testified that on December 3, 2010, Fairchild filed for a

Civil Protection Order, and on that CPO, Fairchild listed Kenneth as a household

member. (Tr. at 40). Ultimately, Snyder concluded through his investigation that

“[b]ased on all of the evidence available that I had during the time I submitted the

case, I believe [Fairchild] failed to report Kenneth * * * in the home, and that at

that time created an overpayment.” (Tr. at 52).

       {¶25} Snyder testified that Kenneth being in Fairchild’s home affected

Fairchild’s eligibility for benefits.   (Id.)   Snyder testified that “[b]ased on

[Kenneth’s] income, believing that he was residing there a majority of the time,




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[Fairchild] would not receive any food stamps based—he went above the income

rate.” (Tr. at 54).

          {¶26} Snyder then testified that the dates used in the indictment, October

21, 2009, through May 1, 2011, were calculated based on when Kenneth’s income

could be verified by investigation. (Tr. at 57). Snyder testified that there was

evidence that Kenneth was in Fairchild’s home prior to the October 21, 2009 date

used, which would have resulted in an even greater overpayment to Fairchild, but

the October 21, 2009, date was used because it was as far back as Snyder could

trace Kenneth’s income and thus verify where overpayments had been issued. (Tr.

at 57). Snyder testified that State’s Exhibit 4 was a document illustrating the

amount of income reported by Fairchild for the indicted time period, and the

amount of income that should have been reported with Kenneth in the home.

(State’s Ex. 4). According to the calculation, Fairchild would not have been

eligible for food stamps and she had received an overpayment of $9,456.00. (Id).

          {¶27} On cross examination, Snyder testified that it took him a year to get

around to conducting the investigation of Fairchild because he was the only fraud

investigator in the county. (Tr. at 64). Snyder also testified that whether a person

is in the home is based on the “totality of it,” referring to all of the evidence. (Tr.

at 63).




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       {¶28} The State next called Joe Carl, a former Ada Police Officer. Carl

testified that he received a police report on December 5, 2010, about Kenneth’s

vehicle being vandalized at Fairchild’s home. (Tr. at 74). Carl testified that at the

time, Kenneth gave his mother’s Michigan address as his home address. (Tr. at

75). Carl testified that he had dealt with Kenneth before in Ada, when Kenneth

filed a report about missing football tickets that Kenneth had delivered to

Fairchild’s residence. (Tr. at 75-76).

       {¶29} After Carl testified, the State rested. Following Fairchild’s Criminal

Rule 29 motion for acquittal, and the denial of that motion, Fairchild presented her

case-in-chief, first calling Kenneth to the stand.

       {¶30} Kenneth testified that his residence was in Freeland, Michigan with

his mother. (Tr. at 82). He testified that after work he would regularly stop at

Fairchild’s home to check on her. (Tr. at 85). Kenneth testified that he stayed

with his friend Todd or at with friend Mark four or five nights a week. (Tr. at 86).

According to Kenneth, he only stayed at Fairchild’s residence two nights per week

at most because the children were rude and disrespectful. (Tr. at 87).

       {¶31} Kenneth testified that he received mail in Michigan and that he paid

Michigan taxes.     (Tr. at 87-88).      Kenneth also testified that his car was at

Fairchild’s residence so often because Fairchild needed to use it. (Tr. at 90).

Kenneth did admit in his testimony that he had been paying Fairchild’s bills, and


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that he had sent a letter that stated he slept at Fairchild’s residence between routes

as a driver. (Tr. at 93-94).

       {¶32} Fairchild then took the stand, and testified that Kenneth stayed with

her only one or two nights a week. (Tr. at 97). Fairchild testified that she reported

Kenneth was staying in her home to “everyone.” (Tr. at 100). Fairchild testified

that Kenneth was not a household member despite what she wrote on the CPO,

and that Kenneth did not reside with her. (Tr. at 113).

       {¶33} At the conclusion of Fairchild’s testimony, Fairchild rested. The

State then recalled Snyder in rebuttal. On rebuttal, Snyder testified that he never

witnessed Fairchild drive Kenneth’s car. (Tr. at 116). Snyder also testified that

when he asked where Kenneth stayed, the names Todd and Mike never came up.

(Tr. at 118).

       {¶34} On appeal, Fairchild argues that there was insufficient evidence to

convict her, specifically contending that the State did not present evidence that

Fairchild committed Grand Theft “knowingly.” However, the State presented

evidence that when Fairchild applied for food stamps, she stated that the only

people residing in her household were herself, and her two children. The State

presented evidence that Fairchild was informed that she needed to disclose anyone

else living in the residence at that time, and needed to disclose anyone that resided

in the residence in the future. In addition, Ziegler testified that she informed


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Fairchild that if Fairchild was in any doubt about whether she should report

something, that Fairchild should report it.

       {¶35} Moreover, not only did the State present evidence that Fairchild was

verbally informed, but Fairchild also signed documents stating that no one other

than herself and her two children were residing in her home and that she

understood her duty to disclose any changes. These documents were introduced

into the record. Based upon this evidence, we find that there was sufficient

evidence for the trial court to determine, beyond a reasonable doubt, that Fairchild

acted “knowingly.”

       {¶36} Fairchild also argues that there was insufficient evidence to establish

that the alleged thefts began on or about October 21, 2009. However, testimony

and evidence established that the October 21, 2009 date was chosen because it was

the earliest point at which Kenneth’s income could be verified, and although it

appeared that Kenneth had been a household member before that, it could not be

verified that financially it created an issue until then.     Snyder testified that

Fairchild was receiving an overpayment beginning from that October 21, 2009,

date, continuing through May 1, 2011, and the State entered a document

calculating this overpayment and the dates into evidence. Therefore we find that

sufficient evidence was introduced that the court could find beyond a reasonable




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doubt that the overpayments began October 21, 2009, and continued until May 1,

2011.

        {¶37} Accordingly, we find that there was sufficient evidence presented for

the trial court to find Fairchild guilty of the crimes as charged.      Therefore,

Fairchild’s second assignment of error is overruled.

        {¶38} In arguing that her conviction was against the manifest weight of the

evidence, Fairchild argues essentially that trial court improperly came to the

conclusion that Kenneth was a member of Fairchild’s household, and again, that

Fairchild did not act knowingly.

        {¶39} While Kenneth and Fairchild both testified that Kenneth only stayed

at Fairchild’s home at most two nights a week, the court, acting as trier-of-fact,

was free to find those statements disingenuous. In addition, while Kenneth stated

that he resided in Michigan with his mother, Snyder testified that claim was

investigated and found to be untrue. Moreover, Snyder testified that the other

people Kenneth claimed to regularly be staying with in Ohio were never

mentioned during Snyder’s investigation.

        {¶40} The testimony showed that Kenneth ate meals at, and regularly

stayed at, Fairchild’s home. Testimony established that Kenneth paid Fairchild’s

bills, ate her food, and had part of her bedroom decorated to his liking. Testimony

was presented that Kenneth was at Fairchild’s residence almost every day, and that


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Case No. 6-12-18


Fairchild stated Kenneth was there the “majority of the time.”       (Tr. at 44).

Furthermore, evidence established that Fairchild filed a CPO and listed Kenneth as

a member of her household. Under these circumstances, we cannot find that

Fairchild’s convictions were against the manifest weight of the evidence or that

the fact-finder clearly lost its way. Accordingly, Fairchild’s first assignment of

error is overruled.

       {¶41} For the foregoing reasons, Fairchild’s assignments of error are

overruled and the judgment of the Hardin County Common Pleas Court is

affirmed.

                                                              Judgment Affirmed

PRESTON, P.J. and ROGERS, J., concur.

/jlr




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