[Cite as State v. Hess, 2012-Ohio-4516.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 13-12-11

        v.

MATTHEW A. HESS,                                          OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Seneca County Common Pleas Court
                            Trial Court No. 11-CR-0027

                                      Judgment Affirmed

                            Date of Decision: October 1, 2012




APPEARANCES:

        Scott B. Johnson for Appellant

        Derek W. DeVine and Heather N. Jans for Appellee
Case No. 13-12-11


PRESTON, J.

       {¶1} Defendant-appellant, Matthew Hess, appeals the Seneca County Court

of Common Pleas’ conviction by jury trial of theft and forgery. Hess argues his

conviction is against the manifest weight of the evidence. For the reasons that

follow, we affirm.

       {¶2} On March 2, 2011, a Seneca County grand jury indicted Hess of one

count of theft in violation of R.C. 2913.02(A)(1), a felony of the fifth degree, and

one count of forgery in violation of R.C. 2913.21(A)(3), a felony of the fifth

degree. (Doc. No. 1). Hess’ indictment was based on allegations that Hess had

stolen three checks from his ex-girlfriend, Valerie Puffenberger, forged her

signature on them, and cashed the checks to steal money from her account.

       {¶3} On March 14, 2011, the trial court held an arraignment hearing. (Doc.

No. 10). Hess entered a plea of not guilty to the charges. (Id.). The trial court

held a jury trial on October 3 through 4, 2011. (Doc. No. 42). The jury found

Hess guilty of theft and forgery. (Doc. Nos. 41-42).

       {¶4} On February 17, 2012, the trial court held a sentencing hearing. (Doc.

No. 49). The trial court sentenced Hess to three years of community control for

each offense, to be served concurrently. (Id.). The trial court ordered Hess to

serve six months in the Seneca County Jail, but determined that Hess was eligible

for house arrest with electronic monitoring in lieu of jail. (Id.). Additionally, the


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trial court ordered Hess to serve 90 days in the Seneca County Jail, to undergo

counseling and substance abuse treatment, and to pay restitution of $500. (Id.).

       {¶5} On February 24, 2012, Hess filed a notice of appeal. (Doc. No. 50).

Hess now raises one assignment of error for our review.

                            Assignment of Error No. I

       The defendant’s conviction was not supported by the manifest
       weight of the evidence

       {¶6} In his sole assignment of error, Hess argues that his conviction was

against the manifest weight of the evidence. Hess contends that the State failed to

prove he intended to defraud Puffenberger, and that the State also failed to prove

Puffenberger had not consented to him taking the money from her checking

account. Hess argues that he and Puffenberger had recently ended their ten-year

relationship at the time of the incident, that she was upset about his infidelity, and

that she was angry about repaying a truck loan she had co-signed for Hess. Hess

contends that Puffenberger had previously permitted him to fill in the amounts on

a check, and that she had given him the checks to help him financially until he was

able to move to Cincinnati with her and their children. According to Hess, this

evidence demonstrates that he had Puffenberger’s permission to write himself

checks from her checkbook, and that her allegations were based on her anger that

he had not moved to Cincinnati as she had requested.



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       {¶7} In determining whether a conviction is against the manifest weight of

the evidence, a reviewing court must examine 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. Thompkins, 78

Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175

(1st Dist.1983).    A reviewing court must, however, allow the trier of fact

appropriate discretion on matters relating to the weight of the evidence and the

credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967).

       {¶8} Hess was convicted of theft and forgery. R.C. 2913.02(A)(1), the

theft statute, states, “[n]o 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) [w]ithout the consent of the owner or

person authorized to give consent.”       R.C. 2913.31(A)(3), the forgery statute,

states, “[n]o person, with purpose to defraud, or knowing that the person is

facilitating a fraud, shall do any of the following: * * * (3) [u]tter, or possess with

purpose to utter, any writing that the person knows to have been forged.” R.C.

2913.01(H) defines the word “utter” as “to issue, publish, transfer, use, put or send

into circulation, deliver, or display.”


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      {¶9} The evidence presented at trial supports Hess’ convictions. Officer

Doug Skornicka testified that he responded to a theft and forgery complaint from

Puffenberger on October 15, 2010. (Oct. 3, 2011 Tr. at 130). Skornicka testified

that when he met with Puffenberger, she “was crying, upset, distraught. She was

talking on the phone with her bank at the time.” (Id. at 131). Skornicka collected

handwriting samples from Hess and Puffenberger that were sent to the Bureau of

Criminal Investigation (“BCI”). (Id. at 134-136).

      {¶10} Hess also submitted a sworn written statement to law enforcement.

(Ex. 6). According to Hess’ statement, Puffenberger and he had lived together and

had two children together. (Id.). Their relationship ended in the beginning of

2010, but they began reconciling in July 2010.       (Id.).   According to Hess,

Puffenberger planned to start a new job in Cincinnati and wanted Hess to move

with her. (Id.). Hess agreed to move to Cincinnati, but had a business that he

needed to sell first. (Id.). Hess was concerned about his finances if he was

unemployed, and Hess claimed Puffenberger told him to use her checks to pay his

rent and bills until he moved. (Id.). Hess did not immediately move to Cincinnati

because he had agreed to help the person who purchased his business transition.

(Id.). According to Hess’ statement, Puffenberger called him and told him they

needed to move in a week so she could begin her job. (Id.). Hess told her he




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could not move at that time, and “she flipped out on me and said she was going to

[the] police and say she didn’t let me use [the] checks * * *.” (Id.).

       {¶11} Puffenberger testified that she was the sole name on the checking

account and that she noticed that her account balance had significantly decreased

in October 2010. (Oct. 3, 2011 Tr. at 153-154). Puffenberger testified that she

called the bank and checked the digital printout of the checks, and “three of them

were wrote to [Hess] with my signature. So I was in hysterics, I went and looked

in my checkbook and I noticed that the check numbers when I was looking

through, the checks were missing and the duplicate carbon copies were also

missing.” (Id. at 156). Puffenberger testified she did not normally remove the

carbon copy beneath the checks, that she had not written the checks to Hess, and

she had not given him permission to use them. (Id. at 158, 172). According to

Puffenberger, there were two occasions in the weeks before the incident when

Hess had access to her checkbook. (Id. at 160). The first occasion was when she

took their children to Hedges Boyer Park and he stopped by to drop off some

coloring books for the children. (Id. at 161-162). Puffenberger testified that Hess

requested to leave the books in the car so they would be a surprise.           (Id.).

Puffenberger testified that she handed Hess her keys and he went to the car, “I

leave my purse in the car, shoved under like the driver’s seat, and I notice him- not

thinking anything of it- putting the books on the passenger side, leaning over the


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driver’s side. Comes back up, says he has to leave, and that was the end of it.”

(Id.). Puffenberger testified that Hess had access to her checkbook for the second

time when she went to his house to discuss her moving to Cincinnati with the

children. (Id. at 160). According to Puffenberger, “[w]e were talking, got up to

go to the restroom. Me knowing him for so long, I just leave my purse and I don’t

think anything of it that, I mean, anything is going to happen.” (Id.).

       {¶12} Puffenberger admitted under cross examination that there were a few

instances when she had helped Hess with his finances. Puffenberger testified that

she had co-signed a truck loan and that Hess had failed to make the payments so

the truck was repossessed in April 2010. (Id. at 163). Puffenberger testified that

she settled with the bank for $5,000 because the bank wanted her to make the

payments on the truck. (Id.). According to Puffenberger, she had also written a

check to Hess’ mother a few months before the trial “[b]ecause [Hess] said that he

was gonna plead and take probation and he needed help.”                   (Id. at 169).

Puffenberger also admitted that she and Hess had taken the children to a hotel in

September 2011 and that she had paid for the hotel. (Id. at 170). However,

Puffenberger denied Hess’ claim that she had requested him to move to Cincinnati

with her and further testified that their relationship was over. (Id. at 168).

       {¶13} Jessica Toms, a forensic scientist at BCI, testified that she had

analyzed the handwriting on the checks using the known handwriting samples


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collected from Hess and Puffenberger. (Id. at 180, 186). Toms testified that she

was able to identify Hess as the drafter of all three checks, with the exception of

the signature on one of the checks. (Id. at 187-188). Hess testified that she was

unable to identify the maker of the signature on that check because it was

unnaturally written, “I can’t tell whether it’s a tracing, whether the pen was bad,

whether it’s an attempt to copy somebody’s handwriting.” (Id. at 188). Toms

further testified:

       [m]y opinion is that check numbers 1039 and 1040, or 1044, State

       Exhibits 3 and 5, were written by the writer of the [Hess] samples in

       State’s Exhibit No. 1. And the body of check 1040, State’s Exhibit

       No. 4, was also written by the writer of the [Hess] samples, States

       Exhibit 1, with the exception of the maker’s signature.       Again,

       because it was unnaturally written, I can’t offer an opinion as the

       writer of that maker’s signature.

       {¶14} After reviewing the evidence, we cannot find that Hess’ conviction is

against the manifest weight of the evidence. “A defendant is not entitled to a

reversal on manifest weight grounds merely because inconsistent evidence was

offered at trial.” State v. Baatin, 10th Dist. No. 11AP-286, 2011-Ohio-6294, ¶ 13,

citing State v. Campbell, 10th Dist. No. 07AP-1001, 2008-Ohio-4831, ¶ 23. While

Hess correctly argues that his explanation of the incident is inconsistent with


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Puffenberger’s allegations, these inconsistencies do not render the conviction

against the manifest weight of the evidence.       The jury was aware of Hess’

statement, but chose to believe Puffenberger’s testimony, which is within the

province of the jury. Baatin at ¶ 13. Puffenberger’s testimony establishes that

Hess committed forgery by writing her signature on the checks, and theft by taking

the checks and money from Puffenberger’s account.

       {¶15} Hess’ assignment of error is, therefore, overruled.

       {¶16} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

SHAW, P.J. and WILLAMOWSKI, J., concur.

/jlr




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