        [Cite as State v. Elahee, 2017-Ohio-7085.]
                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO




STATE OF OHIO,                                       :   APPEAL NO. C-160640
                                                         TRIAL NO. 16CRB-12621
       Plaintiff-Appellee,                           :

 vs.                                                 :      O P I N I O N.

ROBERT ELAHEE,                                       :

       Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: August 4, 2017



Paula B. Meuthing, City Solicitor, Natalia S. Harris, City Prosecutor, and Jennifer
Bishop, Assistant City Prosecutor, for Plaintiff-Appellee City of Cincinnati, State of
Ohio,

Michael Trapp, for Defendant-Appellant Robert Elahee.
                           OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Judge.


       {¶1}       Robert Elahee was found guilty of attempted theft after a bench trial. He

appeals, claiming the conviction was not supported by sufficient evidence because the

state failed to prove he had the purpose to commit theft and that he took a substantial

step toward committing a theft offense. We overrule the assignment of error and affirm

the trial court’s judgment.

                        Factual and Procedural Background

       {¶2}       Annette McFarland was downtown having a drink when she was

approached by Elahee, who asked her if she had a state ID. When she responded that

she did, he asked her if she wanted to make some extra money. McFarland was

interested, so she got into a car driven by another man, whom Elahee had hired to drive

them, and they drove to the Fifth Third Bank in Hyde Park.

       {¶3}       As they were driving, Elahee directed her to open a checking account and

obtain starter checks and a bank card so he could go to another bank and cash a check.

After successfully cashing the check, she and the driver would each be paid $100.

       {¶4}       The plan was for her to deposit $45 of her own cash and five or six dollars

from Elahee to open the account. She entered the bank to open the account and spoke

with the bank manager, Marybeth Calendine.             Calendine began asking McFarland

questions to determine the best account for her. McFarland became confused and could

not answer the questions. McFarland said that she needed to call her mother and would

return shortly.

       {¶5}       McFarland returned to the car and told Elahee the bank would not give

her a bank card. Instead, the bank would mail her a card. Elahee then started calling

her names and instructed her on the necessary steps to open a checking and savings

account. She returned to the bank five or ten minutes later.




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        {¶6}     This time, McFarland insisted on a checking and savings account.

Calendine asked questions to ensure a checking and savings account would best suit her

needs. Based on McFarland’s responses, Calendine recommended a product that was

not a checking account. Again McFarland left to call her mother.

        {¶7}     She returned to the car, and Elahee continued to yell at her. When she

reentered the bank 15 minutes later, McFarland told Calendine about the plan because

she was afraid of Elahee. Calendine called the police.

        {¶8}     Officer Victoria Wysel responded to Fifth Third Bank after hearing a radio

run about possible fraud. After interviewing Calendine and McFarland, Wysel spoke

with Elahee, who claimed that McFarland was a friend of his and had asked him for a

ride to the bank. When Wysel found several starter checks from Wells Fargo in Elahee’s

pocket, he denied the checks were his.

        {¶9}     Wysel brought the starter checks to Calendine, and she attempted to

verify whether the starter checks were valid. Calendine testified that starter checks are

given to individuals when they initially open a checking account. Customers can use the

starter checks until their checks arrive in the mail. When a bank is presented with a

starter check, it raises a red flag. Calendine further explained that Fifth Third Bank no

longer issues starter checks. The bank orders the checks, and the customer receives the

checks ten days later in the mail.

        {¶10} Elahee did not introduce any evidence.

        {¶11} The trial court found him guilty. The court sentenced Elahee to 90 days

in jail, a $100 fine, and court costs.

        {¶12} In one assignment of error, Elahee claims the state failed to prove he had

the purpose to commit theft and that he took a substantial step toward committing the

theft offense.



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                                  Law and Analysis

       {¶13} When reviewing a challenge to the sufficiency of the evidence, we must

determine, after viewing the evidence in a light most favorable to the prosecution,

whether any rational trier of fact could have found the essential elements of the offense

proved beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99

S.Ct. 2781, 61 L.Ed.2d 560 (1979).

       {¶14} Elahee was charged with attempted theft in violation of R.C.

2913.02(A)(1) and 2923.02(B). R.C. 2913.02(A)(1) states:

       (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.

       {¶15} R.C. 2923.02(B), the attempt statute, states:

       No person, purposely or knowingly, and when purpose or knowledge is

       sufficient culpability for the commission of an offense, shall engage in

       conduct that, if successful, would constitute or result in the offense.

       {¶16} The Ohio Supreme Court has further defined a criminal attempt as “when

one purposely does or omits to do anything which is an act or omission constituting a

substantial step in a course of conduct planned to culminate in his commission of the

crime.” State v. Woods, 48 Ohio St.2d 127, 357 N.E.2d 1059 (1976), paragraph one of

the syllabus, vacated on other grounds, 438 U.S. 910, 98 S.Ct. 3133, 57 L.Ed.2d 153

(1978). To constitute a substantial step, the offender's conduct need not be the last




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proximate act prior to the commission of the offense, but it “must be strongly

corroborative of the actor's criminal purpose.” Id.

       {¶17} The focus is on the defendant’s overt acts that “convincingly demonstrate

a firm purpose to commit a crime, while allowing police intervention * * * in order to

prevent the crime when the criminal intent becomes apparent.” State v. Group, 98 Ohio

St.3d 248, 2002-Ohio-7247, 781 N.E.2d 980, ¶ 102, quoting Woods at 132. “ ‘Precisely

what conduct will be held to be a substantial step must be determined by evaluating the

facts and circumstances of each particular case.’ ” State v. Miller, 3d Dist. Seneca No.

13-12-52, 2013-Ohio-3194, ¶ 31, quoting State v. Butler, 5th Dist. Holmes No. 2012-CA-

7, 2012-Ohio-5030, ¶ 28.

       {¶18} Elahee first claims that the state failed to prove that he had the purpose to

commit a theft. We disagree. McFarland testified that Elahee approached her and

offered her money to open a checking account. He instructed her to open the account

with $50 and obtain starter checks for him to cash. After successfully cashing the

checks, McFarland and the driver would each be paid $100. McFarland’s testimony was

sufficient to establish that Elahee had the purpose to commit theft. He intended to write

checks for at least $200 to pay McFarland and the driver, knowing the account would

not contain $200.

       {¶19} Elahee also claims the state failed to prove that he took a substantial step

toward committing the theft offense. The state offered sufficient evidence, if believed, to

support that Elahee took a substantial step.

       {¶20} Elahee solicited McFarland to open a bank account, hired a driver to take

them from downtown to the bank, and repeatedly instructed McFarland about opening

the account. And McFarland’s testimony was corroborated by Calendine. The trier of

fact could find that all of the overt actions Elahee took convincingly demonstrated a firm



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purpose to commit a crime. Therefore, we cannot find that there was insufficient

evidence to convict Elahee of attempted theft.

                                      Conclusion

       {¶21} Because we find no merit to Elahee’s sole assignment of error, we

overrule it and affirm the trial court’s judgment.

                                                                Judgment affirmed.


MOCK, P.J., and DETERS, J., concur.




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