[Cite as State v. Byrd, 2016-Ohio-8135.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.       27868

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
JOHNNIE BYRD III                                      COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 2013 03 0665 (A)

                                 DECISION AND JOURNAL ENTRY

Dated: December 14, 2016




        HENSAL, Judge.

        {¶1}     Johnnie Byrd appeals a judgment of the Summit County Court of Common Pleas

that convicted and sentenced him for engaging in a pattern of corrupt activity, grand theft,

telecommunications fraud, illegal use of food stamps, and money laundering. For the following

reasons, this Court affirms.

                                                 I.

        {¶2}     In 2009, Mr. Byrd asked his girlfriend, Heather Fry, to form a corporation so that

he could run a convenience store in Akron. After creating Byrd House, Inc., Ms. Fry also

completed the paperwork that was required for the store to sell tobacco and alcohol and accept

electronic benefits transfer (EBT) cards. Mr. Byrd could not complete the paperwork in his own

name because he had a disqualifying criminal history.            He was, however, named as the

corporations’ president and statutory agent, and he established a checking account on behalf of

the corporation.
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       {¶3}    From 2009 to 2012, Mr. Byrd operated the convenience store. Because of the

number of EBT transactions that it had for its size, it drew the attention of law enforcement,

which began investigating the store. The investigation examined whether the store allowed

customers to use EBT funds for improper items such as tobacco and alcohol. It also examined

whether the store allowed customers to convert EBT funds into cash. After a series of controlled

buys revealed that both practices were occurring in the store, the Grand Jury indicted Mr. Byrd

for engaging in a pattern of corrupt activity, grand theft, telecommunications fraud, and illegal

use of food stamps. Suspecting that Mr. Byrd was using the revenue of the company to pay the

mortgages of properties that his mother owned, the Grand Jury also indicted Mr. Byrd for money

laundering. A jury found him guilty of the offenses, and the trial court sentenced him to nine

years in prison. Mr. Byrd has appealed his convictions, assigning as error that they are not

supported by sufficient evidence and are against the manifest weight of the evidence. Mr. Byrd

has argued his assignments of error together, and this Court will address them together.

                                                II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED WHEN IT OVERRULED A TIMELY DEFENSE
       MOTION FOR ACQUITTAL PURSUANT TO CRIMINAL RULE 29 AS
       THERE WAS NOT SUFFICIENT EVIDENCE PRESENTED BY THE STATE
       OF OHIO TO ESTABLISH A PRIMA FACIE CASE OF THE CRIMES
       CHARGED.

                                 ASSIGNMENT OF ERROR II

       THE VERDICT OF THE TRIAL COURT WAS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE SINCE THE STATE OF OHIO FAILED TO
       PROVE EACH AND EVERY ELEMENT OF THE CRIMES CHARGED
       BEYOND A REASONABLE DOUBT.

       {¶4}    Mr. Byrd argues that the trial court should have granted his Criminal Rule 29

motion and that his convictions are against the manifest weight of the evidence. Under Criminal
                                                 3


Rule 29(A), a defendant is entitled to a judgment of acquittal on a charge against him “if the

evidence is insufficient to sustain a conviction * * *.” Whether a conviction is supported by

sufficient evidence is a question of law, which we review de novo. State v. Thompkins, 78 Ohio

St.3d 380, 386 (1997). In making this determination, we must view the evidence in the light

most favorable to the prosecution:

       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.

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

       {¶5}    If a defendant asserts that a conviction is against the manifest weight of the

evidence,

       an appellate court must review the entire record, weigh the evidence and all
       reasonable inferences, consider the credibility of witnesses and determine
       whether, in resolving conflicts in the evidence, the trier of fact 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the evidence pertains to the

greater amount of credible evidence produced in a trial to support one side over the other side.

Thompkins, 78 Ohio St.3d at 387. An appellate court should only exercise its power to reverse a

judgment as against the manifest weight of the evidence in exceptional cases. State v. Carson,

9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340.

       {¶6}    Mr. Byrd argues that his illegal-use-of-food-stamps and telecommunications-

fraud convictions were not supported by sufficient evidence because there was no evidence that

he knew illegal transactions were occurring at the store. He notes that the two witnesses who
                                                4


testified that they had used their benefits to buy impermissible items or receive cash at the store

both testified that it was someone else who completed their transactions. He also notes that there

was no evidence that he was at the store at the time law enforcement conducted the controlled

buys. He further notes that the EBT terminals do not itemize what has been purchased, so there

would be no way for him to review transactions after they had been completed and learn that

fraud was occurring at the store.

       {¶7}    Revised Code Section 2913.46(B), concerning the illegal use of food stamps,

provides that “[n]o individual shall knowingly possess, buy, sell, use, alter, accept, or transfer

supplemental nutrition assistance program benefits * * * or any electronically transferred benefit

in any manner not authorized * * *.” Section 2913.05(A), concerning telecommunications fraud,

provides that “[n]o person, having devised a scheme to defraud, shall knowingly * * * transmit,

or cause to be * * * transmitted by means of a wire, * * * telecommunications device, or

telecommunications service any * * * data, sign, signal, * * * or image with purpose to execute

or otherwise further the scheme to defraud.”

       A person acts knowingly * * * when the person is aware that the person’s conduct
       will probably cause a certain result or will probably be of a certain nature. A
       person has knowledge of circumstances when the person is aware that such
       circumstances probably exist. When knowledge of the existence of a particular
       fact is an element of an offense, such knowledge is established if a person
       subjectively believes that there is a high probability of its existence and fails to
       make inquiry or acts with a conscious purpose to avoid learning the fact.

R.C. 2901.22(B). Recognizing that establishing someone’s mental state is “often difficult to

prove directly,” the Ohio Supreme Court has held that it can “be inferred from the surrounding

circumstances.” State v. Logan, 60 Ohio St.2d 126, 131 (1979).

       {¶8}    Ms. Fry testified that Mr. Byrd ran the day-to-day operations at the store. The

agents who investigated the store testified that it was only 820 square feet, but had EBT sales
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that were characteristic of a store the size of Wal-Mart. Upon review of the record, we conclude

that, although there was no direct evidence that Mr. Byrd knew illegal EBT activity was

occurring within the store, in light of the magnitude of the illegal activity, his knowledge of it

can be inferred from the surrounding circumstances. Compare State v. NRAG, L.L.C., 12th Dist.

Fayette No. CA2008-12-043, 2009-Ohio-4137, ¶ 23 (concluding that there was insufficient

evidence to find that company knew of employee’s illegal sales when CEO of company refused

to engage in an improper transaction).

       {¶9}    Regarding his conviction for grand theft under Section 2913.02, Mr. Byrd argues

that the State failed to establish beyond a reasonable doubt the amount of the EBT transactions

that were improper. He notes that the State’s own witnesses testified that their fraudulent

transactions included authorized goods.

       {¶10} Initially, we note that the “value of stolen property is not an essential element of

the offense of theft but, rather, is a finding that enhances the penalty of the offense.” State v.

Smith, 121 Ohio St.3d 409, 2009-Ohio-787, ¶ 13. Mr. Byrd, therefore, was not entitled to a

judgment of acquittal on the grand theft count even if the State could not establish the amount of

the theft. Regarding the amount of the theft, the State attempted to prove it by comparing the

amount of the convenience store’s EBT sales to those done by stores of comparable size and

location. According to agents, the five stores it examined that were similar to Mr. Byrd’s store

had EBT sales that normally ranged from $2,000 to $4,000 a month. Mr. Byrd’s store, on the

other hand, had EBT sales that sometimes exceeded $100,000 in a month. According to an

accountant, between October 2009 and March 2012, Mr. Byrd’s store had total sales that were

just under two million dollars. Approximately 72% were EBT sales. The State, noting that the

most EBT sales any of the comparable stores had during those months was about $12,000,
                                                6


argued that, even if Mr. Byrd’s store had $12,000 in legitimate sales each month, the illegal

transactions would still total over $750,000. The State’s calculation is accurate. Upon review of

the record, we conclude that, viewing the evidence in a light most favorable to the State, the

jury’s finding that Mr. Byrd stole between $750,000 and $1,500,000 is supported by sufficient

evidence.

       {¶11} Regarding his conviction for money laundering, Mr. Byrd argues that he could not

have used any of the money he withdrew from the convenience store’s bank account to purchase

rental property for his mother because the evidence established that she purchased all of the

properties before he began running the store. The State’s argument at trial, however, was not

that he used illegally-obtained funds to purchase properties for his mother, but that he used the

funds to help pay off the mortgages on some of those properties.

       {¶12} The jury found Mr. Byrd guilty of violating Section 1315.55(A)(1) or (3). Section

1315.55(A)(1) provides that “[n]o person shall conduct or attempt to conduct a transaction

knowing that the property involved in the transaction is the proceeds of some form of unlawful

activity with the purpose of committing or furthering the commission of corrupt activity.”

Section 1315.55(A)(3) provides that “[n]o person shall conduct or attempt to conduct a

transaction with the purpose to promote, manage, establish, carry on, or facilitate the promotion,

management, establishment, or carrying on of corrupt activity.”        According to Mr. Byrd’s

mother, although she was the one who obtained the mortgages on her rental properties, Mr. Byrd

made the payments. According to the accountant, Mr. Byrd withdrew over $900,000 from the

convenience store’s bank account and made over $69,000 in payments on the mortgages during

the time that the convenience store was operating. Although there was no direct evidence that

Mr. Byrd used the money he withdrew from the convenience store’s account to make those
                                                  7


mortgage payments, viewing the evidence in a light most favorable to the State, we conclude that

there was circumstantial evidence that he used illegally obtained EBT funds to pay off the

mortgages.

       {¶13} Finally, regarding his conviction for engaging in a pattern of corrupt activity, Mr.

Byrd argues that, if his other convictions fail, this conviction must also be reversed. Because his

other offenses are supported by sufficient evidence, however, we conclude that the trial court did

not err when it overruled his Criminal Rule 29(A) motion with respect to the engaging-in-a-

patter-of-corrupt-activity offense.

       {¶14} Regarding whether Mr. Byrd’s convictions were against the manifest weight of

the evidence, Mr. Byrd argues that, even if there was sufficient evidence to warrant the charges

going to the jury, no reasonable trier of fact could have found him guilty beyond a reasonable

doubt. The Ohio Supreme Court has recognized that “the weight to be given the evidence and

the credibility of the witnesses are primarily for the trier of the facts.” State v. DeHass, 10 Ohio

St.2d 230 (1967), paragraph one of the syllabus. This Court has also recognized that “[t]he trier

of fact is in the best position to judge the credibility of the witnesses[.]” State v. Curry, 9th Dist.

Summit No. 23104, 2007-Ohio-238, ¶ 19. Upon careful review of the record, we conclude that

this is not the exceptional case in which the jury lost its way when it found Mr. Byrd guilty of the

offenses. Mr. Byrd’s assignments of error are overruled.

                                                 III.

       {¶15} Mr. Byrd’s convictions are supported by sufficient evidence and are not against

the manifest weight of the evidence. The judgment of the Summit County Court of Common

Pleas is affirmed.

                                                                                  Judgment affirmed.
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       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



WHITMORE, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

ANGELA M. KILLE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
