[Cite as State v. Morgan, 2013-Ohio-122.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                        :

        Plaintiff-Appellee                           :            C.A. CASE NO.    25023

v.                                                   :            T.C. NO.   10CR2883

MICHELE MORGAN                                       :            (Criminal appeal from
                                                                  Common Pleas Court)
        Defendant-Appellant                          :

                                                     :

                                            ..........

                                            OPINION

                         Rendered on the      18th       day of         January      , 2013.

                                            ..........

KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

BAHJAT M. ABDALLAH, Atty. Reg. No. 0078504, 15 West Fourth Street, Suite 100,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

MICHELE MORGAN, 8521 Lyons Gate Way, Apt. A, Miamisburg, Ohio 45342
     Defendant-Appellant

                                            ..........

FROELICH, J.

                {¶ 1} Michele Morgan was convicted of theft in violation of R.C.
                                                                                           2

2913.02(A)(2), a fourth-degree felony, after a bench trial in the Montgomery County Court

of Common Pleas. The court sentenced her to five years of community control, which

included the requirement that she pay restitution of $8,657.62 to her former boyfriend,

Rodney Rooks.

       {¶ 2}      Morgan’s appellate counsel filed a brief pursuant to Anders v. California,

386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that after thoroughly examining

the record and the law, he found no potentially meritorious issues for appeal. Counsel set

forth three potential assignments of error, namely (1) that the verdict was based on

insufficient evidence and was against the manifest weight of the evidence, (2) that there was

insufficient evidence to support the amount of restitution ordered, and (3) that the verdict

and judgment entry are defective, because they improperly refer to the offense as “grand

theft ($5000).”

       {¶ 3}      By entry, we informed Morgan that her attorney had filed an Anders brief

on her behalf and granted her 60 days from that date to file a pro se brief. Morgan

requested and was granted an extension of time in which to file a pro se brief. However, to

date, no pre se brief has been filed.

       {¶ 4}      Appellate counsel first raised that Morgan’s conviction was based on

insufficient evidence and was against the manifest weight of the evidence. “A sufficiency

of the evidence argument disputes whether the State has presented adequate evidence on

each element of the offense to allow the case to go to the jury or sustain the verdict as a

matter of law.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10,

citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).              When
                                                                                              3

reviewing whether the State has presented sufficient evidence to support a conviction, the

relevant inquiry is whether any rational finder of fact, after viewing the evidence in a light

most favorable to the State, could have found the essential elements of the crime proven

beyond a reasonable doubt. State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096

(1997). A guilty verdict will not be disturbed on appeal unless “reasonable minds could not

reach the conclusion reached by the trier-of-fact.” Id.

       {¶ 5}    In contrast, “a weight of the evidence argument challenges the believability

of the evidence and asks which of the competing inferences suggested by the evidence is

more believable or persuasive.” Wilson at ¶ 12. When evaluating whether a conviction is

contrary to the manifest weight of the evidence, the appellate court must review the entire

record, weigh the evidence and all reasonable inferences, consider witness credibility, 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.” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, citing State v.

Martin 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶ 6}     Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder’s decisions whether, and to what extent, to credit the testimony of particular

witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22,

1997). However, we may determine which of several competing inferences suggested by

the evidence should be preferred. Id. The fact that the evidence is subject to different

interpretations does not render the conviction against the manifest weight of the evidence.

Wilson at ¶ 14. A judgment of conviction should be reversed as being against the manifest
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weight of the evidence only in exceptional circumstances. Martin, 20 Ohio App.3d at 175,

485 N.E.2d 717.

       {¶ 7}    At trial, the State presented substantial evidence that Morgan used Rooks’s

checking account to pay numerous bills between June 2009 and July 2010. The payments

included fourteen checks to the apartment complex where Morgan lived for Morgan’s rent,

as well as several telephone and utility bills; the payments totaled $8,657.62. All of the

payments were made through the bank’s Online Bill Payment service. The telephone and

utility payments were electronic fund transfers; Morgan’s rent payments were written checks

produced by the bank and sent by the bank to the apartment complex. Rooks testified that

he did not establish online access to his checking account, and he did not make online

payments. He further stated that Morgan did not have permission to use his account to pay

her bills. After Rooks notified the police, Morgan sent several text messages to Rooks, in

one of which she stated that she would pay back any money that she owed to Rooks.

       {¶ 8}      While testifying on her own behalf, Morgan did not contest that she used

money from Rooks’s checking account to pay her bills. She argued, however, that Rooks

agreed to use his checking account to help her pay her bills on time, and that she, in return,

provided cash to Rooks. Morgan stated that she believed the theft charges were made by

Rooks in retaliation for Morgan’s breaking up with him.

       {¶ 9}    Various documents were offered into evidence by the State, including the

checks made out to Morgan’s apartment complex from Rooks’s checking account, Rooks’s

bank statements, a transcript of text messages from Morgan to Rooks, and Morgan’s written

statement to the Miami Township Police Department.           Morgan offered three exhibits
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consisting of telephone records, Facebook messages between Rooks and her, and pay stubs

from her employment.

       {¶ 10} Upon review of the entire record, we find no arguable claim that Morgan’s

conviction was based on insufficient evidence or against the manifest weight of the

evidence. There was substantial evidence of Morgan’s use of Rooks’s money to pay bills

during 2009 and 2010, and the only issue was whether Rooks had agreed to allow Morgan to

use his checking account for that purpose. Rooks testified that Morgan used his checking

account without his consent.      Although Morgan asserted that she and Rooks had an

agreement that allowed her to pay her bills from Rooks’s account, the trial court specifically

found that it “didn’t find [Morgan’s] testimony to be credible at all.” While rendering its

verdict, the court told Morgan, “Nothing that you say makes sense. You have different and

conflicting versions of almost everything you said.” We defer to the trial court’s findings of

credibility. Appellate counsel’s first potential assignment of error is frivolous.

       {¶ 11} Appellate counsel next raises that there was insufficient evidence to support

the amount of restitution ordered. Counsel notes that “the only issue as it pertains to

restitution is whether or not the Court finds any ‘set-off’ arguments made by Appellant

Morgan to be credible.” Rooks testified that the amount of money that Morgan used to pay

her bills totaled $8,657.62, and the State offered bank records and checks to substantiate that

testimony. 1 Morgan did not dispute that payments totaling $8,657.62 were made from


          1
          The State’s amended bill of particulars stated that Morgan stole
   $8,416.62, which was $241 less than the amount asserted by the State at trial.
   However, this discrepancy is due to a miscalculation as to the total value of the
   14 checks made from Rooks’s checking account to Morgan’s apartment
   complex. The amended bill of particulars stated that the 14 checks totaled
                                                                                               6

Rooks’s account to pay her bills. Morgan testified that Rooks was reimbursed for the funds

that were used to pay her bills, but there was no documentary evidence to support that

assertion and the trial court did not find Morgan’s testimony to be credible. Based on the

record, there was sufficient evidence to support the trial court’s restitution order, and any

claim to the contrary is frivolous.

       {¶ 12} Finally, appellate counsel claims that the trial court’s verdict form and

judgment entry are erroneous, because they refer to Morgan’s offense as “grand theft

($5000).”

       {¶ 13}    Morgan was charged in February 2011 with theft, in violation of R.C.

2913.02(A)(2) (theft beyond the scope of consent).         At the time of the offense, R.C.

2913.02(B)(2) stated that a violation of R.C. 2913.02 was a felony of the fourth degree if the

value of the property or services stolen was $5,000 or more, but less than $100,000. Due to

2011 Am.Sub. H.B. 86, effective September 30, 2011, theft is now a fourth-degree felony if

the value of the property or services stolen is $7,500 or more, but less than $150,000.

       {¶ 14} In H.B. 86, the General Assembly expressly stated when the amendments

were to be applicable: “The amendments * * * apply to a person who commits an offense

specified or penalized under those sections on or after the effective date of this section and to

a person to whom division (B) of section 1.58(B) of the Revised Code makes the

amendments applicable.”        See State v. Wilson, 2d Dist. Montgomery No. 25057,

2012-Ohio-5912, ¶ 7.      Moreover, under R.C. 1.58(B), “[i]f the penalty, forfeiture, or



   $5,542; the checks (which were offered into evidence as State’s Ex. 1) actually
   totaled $5,783.
                                                                                             7

punishment for any offense is reduced by a reenactment or amendment of a statute, the

penalty, forfeiture, or punishment, if not already imposed, shall be imposed according to the

statute as amended.” See Wilson at ¶ 8. Morgan’s case was tried in December 2011, and

she was sentenced in January 2012. Accordingly, Morgan was entitled to any benefits

provided by the amendment to R.C. 2913.02 in H.B. 86.

       {¶ 15}    The State proved at trial that Morgan committed theft of $8,657.62, and

when orally informing Morgan of its verdict, the trial court found Morgan “guilty of one

count of grand theft, a felony of the fourth degree, which would continue to be a fourth

degree felony under the new statute.” 2 When asked by the court if that statement was

correct, defense counsel concurred.      Because Morgan was entitled to be sentenced under

H.B. 86, the trial court incorrectly referenced $5,000 in its verdict and judgment entry as the

minimum value for fourth-degree felony theft. However, this is an apparent typographical

error with no consequence to the validity of Morgan’s conviction, considering that Morgan

committed a fourth-degree felony under both former law and H.B. 86. We find no potentially

meritorious claim based on the trial court’s reference to the former minimum value of

$5,000 in its verdict form and judgment entry.

       {¶ 16}    Pursuant to our duty under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102

L.Ed.2d 300 (1988), we have conducted an independent review of the entire record, and we

have found no potential assignments of error having arguable merit.

       {¶ 17} The judgment of the trial court will be affirmed.. . . . . . . . . .

          2
           Although the trial court did not specify the value of the stolen property in
   its verdict, the record establishes that the court found Morgan guilty of
   committing theft in the amount of $8,657.62.
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FAIN, P.J. and DONOVAN, J., concur.

Copies mailed to:

Kirsten A. Brandt
Bahjat M. Abdallah
Michele Morgan
Hon. Mary Katherine Huffman
