[Cite as State v. McMillen, 2016-Ohio-370.]


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

STATE OF OHIO                                         C.A. No.       27666

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
LLOYD E. MCMILLEN                                     COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 2013 10 2910

                                 DECISION AND JOURNAL ENTRY

Dated: February 3, 2016



        SCHAFER, Judge.

        {¶1}     Defendant-Appellant, Lloyd McMillen, appeals the judgment of the Summit

County Court of Common Pleas convicting him of theft against the elderly. For the reasons set

forth below, we affirm.

                                                 I.

        {¶2}     On November 26, 2013, the grand jury indicted McMillen on one count of theft

against the elderly in violation of R.C. 2913.02(A)(3), (B)(3), a fifth degree felony. McMillen

pled not guilty and the matter proceeded to a jury trial. At the close of the State’s case-in-chief,

the trial court allowed McMillen to reserve his right to make a Crim.R. 29 motion for acquittal

following the defense’s case. After the defense rested at trial, McMillen made a Crim.R. 29

motion, which the trial court denied. The jury ultimately found McMillen guilty of the sole

count in the indictment and the trial court sentenced McMillen to 12 months in prison, but

suspended the imposition of that sentence and ordered McMillen to complete 12 months of
                                                 2


community control. The trial court also ordered McMillen to pay $330.00 in restitution to the

victim.

          {¶3}   McMillen filed this timely appeal, raising two assignments of error for our

review. To facilitate our analysis, we elect to address his assignments of error together.

                                                II.

                                     Assignment of Error I

          The trial court committed reversible error when it found Mr. McMillen
          guilty of theft from the elderly because the evidence was insufficient to
          support such a finding.

                                     Assignment of Error II

          Mr. McMillen’s conviction was against the manifest weight of the evidence,
          meriting reversal.

          {¶4}   In his two assignments of error, McMillen argues that it was erroneous for the

trial court to enter a judgment of conviction that was unsupported by either sufficient evidence or

the manifest weight of the evidence. We disagree.

          {¶5}   “‘We review a denial of a defendant’s Crim.R. 29 motion for acquittal by

assessing the sufficiency of the State’s evidence.’” State v. Smith, 9th Dist. Summit No. 27389,

2015-Ohio-2842, ¶ 17, quoting State v. Frashuer, 9th Dist. Summit No. 24769, 2010-Ohio-634,

¶ 33. A sufficiency challenge of a criminal conviction presents a question of law, which we

review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In carrying out this review,

our “function * * * 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.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

After such an examination and taking the evidence in the light most favorable to the prosecution,

we must decide whether “any rational trier of fact could have found the essential elements of the
                                                        3


crime proven beyond a reasonable doubt.” Id. Although we conduct de novo review when

considering a sufficiency of the evidence challenge, “we neither resolve evidentiary conflicts nor

assess the credibility of witnesses, as both are functions reserved for the trier of fact.” State v.

Jones, 1st Dist. Hamilton Nos. C-120570, C-120751, 2013-Ohio-4775 , ¶ 33.

          {¶6}   A sufficiency challenge     is     legally      distinct   from   a   manifest    weight

challenge. Thompkins at 387. Accordingly, when applying the manifest weight standard, we are

required to consider the whole record, “weigh the evidence and all reasonable inferences,

consider the credibility of the 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). Courts are cautioned to only reverse a conviction on manifest weight

grounds “in exceptional cases,” State v. Carson, 9th Dist. Summit No. 26900, 2013–Ohio–5785,

¶   32,     citing Otten at   340,   where        the       evidence   “weighs     heavily   against   the

conviction,” Thompkins at 387.

          {¶7}   This matter implicates McMillen’s conviction on theft against the elderly under

R.C. 2913.02(A)(3), which prohibits a person, “with purpose to deprive the owner of property or

services, [from] knowingly obtain[ing] or exert[ing] control over either the property or services *

* * [b]y deception[.]” Deception means:

          knowingly deceiving another or causing another to be deceived by any false or
          misleading representation, by withholding information, by preventing
          another from acquiring information, or by any other conduct, act, or omission that
          creates, confirms, or perpetuates a false impression in another, including a false
          impression as to law, value, state of mind, or other objective or subjective fact.

R.C. 2913.01(A).
                                                 4


       {¶8}    One purposely deprives another of property or services when he has the specific

intent to “[a]ccept, use, or appropriate money * * * with purpose not to give proper consideration

in return for the money * * * and without reasonable justification or excuse for not giving proper

consideration.” R.C. 2913.01(C)(3); see R.C. 2901.22(A). An individual “acts knowingly,

regardless of his purpose, when the person is aware that the person’s conduct will probably cause

a certain result or will probably be of a certain nature.” R.C. 2901.22(B). Where the victim is

elderly, and the defendant steals less than $1,000.00 worth of services or property, theft is a fifth

degree felony. R.C. 2913.02(B)(3).

       {¶9}    Here, the victim, who was 74 years of age at the time of the offense, testified via

deposition that on November 30, 2012, McMillen, a roofing subcontractor, came to her home in

Cuyahoga Falls, Ohio to fix a leak in her roof. The homeowner testified that she and McMillen

discussed possible repair options and costs after McMillen examined the roof. She further

testified that McMillen agreed to repair a soil vent, fix the chimney flashing, and reseal nails all

for $330.00. McMillen testified that he took several photographs of the roof on his cell phone,

which he claimed was standard protocol for subcontractors who needed to submit photographs of

their projects in order to get paid. McMillen, however, only took photographs of the roof before

his repairs. He never took photographs of the roof following his repairs because, according to

him, the battery on his cell phone had died. It is undisputed that McMillen never showed any of

the photographs to the homeowner, despite the fact that the homeowner testified that McMillen

agreed to provide her with “before” and “after” photographs, as she was not physically able to

inspect the quality of the repairs on her roof. The homeowner also claims that she asked to see

the photographs before McMillen left, but McMillen told her that his phone was not working and

that he would provide her with the photographs later, which he never did. The homeowner
                                               5


testified that McMillen was only on her roof for about 30 minutes before leaving, which

McMillen disputes. The homeowner stated that she gave a check for the full amount of $330.00

to McMillen because he represented to her that he had completed all of the work that they agreed

upon. The homeowner also testified that she never would have paid McMillen if she knew that

he did not repair her roof.

        {¶10} The homeowner testified that her roof continued to leak after McMillen departed.

She testified that she called McMillen on several occasions, but he either did not answer his

phone or he would agree to reexamine her roof, but never came. She also testified that she later

called two other roofers to independently examine her roof. According to the homeowner, the

results of the two roofers’ respective examinations caused her to doubt whether McMillen

performed any work on her roof at all. She testified that she again called McMillen and

demanded a full refund because she suspected that he did not do any work on her roof. After

McMillen refused to provide a refund, the homeowner contacted the police. According to the

homeowner, almost ten months after McMillen supposedly worked on the homeowner’s roof,

she hired another roofing company to finally repair her leaking roof. The new roofer testified at

trial that, in his opinion, it appeared as if no work had been done on the homeowner’s roof when

he arrived to fix it.

        {¶11} Detective Dominic Perella of the Cuyahoga Falls Police Department investigated

the homeowner’s complaint against McMillen. According to Detective Perella’s testimony, he

spoke with McMillen via telephone and asked McMillan to send him the “before” pictures that

he took of the homeowner’s roof.        It took McMillen nearly two months to send those

photographs to him.      Detective Perella testified that he subsequently showed McMillen’s

“before” photographs to the roofer who ultimately fixed the homeowner’s roof. According to the
                                                 6


new roofer, McMillen’s “before” photographs from November 2012 matched the condition of

the homeowner’s roof on the date that the new roofer appeared to fix the roof.

        {¶12} After viewing this evidence in a light most favorable to the State, we conclude

that the evidence presented at trial was sufficient for a jury to conclude that McMillen purposely

deprived the homeowner of $330.00 by deception. The homeowner testified that she paid

McMillen $330.00 for repair work that was never performed. This testimony was buttressed by

the subsequent roofer’s testimony that, in his opinion, it appeared as if no work was done to the

roof prior to his repairs in August 2013. In light of the foregoing, we determine that the State

met its burden of production in this matter.

        {¶13} Turning to McMillen’s manifest weight challenge, he contends that his

conviction was against the manifest weight of the evidence because the State’s witnesses lacked

credibility.   For example, McMillen alleges that the homeowner’s testimony regarding her

interactions with him on the day in question was “contradictory, unreasonable, doubtful and at

times incredible.” Moreover, McMillen argues that the testimony of the new roofer who was

hired to finally repair the roof ten months after the day in question was suspect, as his memory of

the roof’s condition was limited. However, the jury apparently accepted the testimony of the

State’s witnesses which, if believed, demonstrated that McMillen received $330.00 for work that

he claimed to have done, but did not actually perform. Although McMillen attempted to show

through direct and cross-examination that he actually performed the repairs to the homeowner’s

roof and that the State’s witnesses lacked credibility, the jury was free to disregard such a theory.

After reviewing the entire record, we cannot conclude that the jury lost its way and committed a

manifest miscarriage of justice in convicting McMillen of theft against the elderly. See State v.

Lewis, 9th Dist. Summit No. 21722, 2004-Ohio-1233 (concluding that defendant’s conviction for
                                                 7


theft by deception of the elderly was neither insufficient nor against the manifest weight of the

evidence).

       {¶14} Accordingly, McMillen’s two assignments of error are overruled.

                                                III.

       {¶15} McMillen’s two assignments of error are both overruled and the judgment of the

Summit County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       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.




                                                       JULIE A. SCHAFER
                                                       FOR THE COURT
                                               8



WHITMORE, J.
CONCURS.

CARR, P. J.
DISSENTING.

       {¶16} I respectfully dissent. I would reverse McMillen’s conviction as being against the

manifest weight of the evidence as the new roofer specifically testified that some recent work

had been done to the roof.

       {¶17} The transcript in this case reads more like a civil action than a criminal

prosecution. I agree with Judge Painter’s position that we should refrain from attempting to

remedy alleged civil wrongs in the criminal context.

       In several opinions written when he was a judge for the Hamilton County
       Municipal court, Judge Painter observed that too often civil wrongs are
       inappropriately placed into the context of criminal wrongdoing. In one case
       where the defendant was accused of theft for failing to make timely payments or
       return some furniture, the trial court wrote:

       From a public policy standpoint, allowing a criminal conviction in this type of
       case would, simply stated, be ridiculous. The prosecuting witnesses and their
       employer ***, have myriad rights and remedies in a court exercising civil
       jurisdiction.

       State v. Glenn, 56 Ohio Misc.2d 1, 3 (1990). Noting a disturbing tendency to
       bring criminal charges in cases more properly decided in a civil court, Judge
       Painter stated that “[g]reat care should be taken that the criminal law not be
       employed to attempt to right an alleged civil wrong. Criminals enough we have.”
       State v. Howell, 64 Ohio Misc.2d 23, 29 (1994).

State v. Gordon, 3d Dist. Putnam Nos. 12-10-04, 12-10-05, 2011-Ohio-5738, ¶ 59.

       {¶18} For these reasons, I would reverse and remand.


APPEARANCES:

KRISTEN KOWALSKI, Attorney at Law, for Appellant.

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