[Cite as State v. Barnthouse, 2019-Ohio-5209.]




                     IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                      HAMILTON COUNTY, OHIO




STATE OF OHIO,                                   :   APPEAL NO. C-180286
                                                     TRIAL NO. B-1705430
        Plaintiff-Appellee,                      :

  vs.                                            :     O P I N I O N.

CHADWICK BARNTHOUSE,                             :

     Defendant-Appellant.                        :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 18, 2019


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald Springman,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson,
Assistant Public Defender, for Defendant-Appellant.
                    OHIO FIRST DISTRICT COURT OF APPEALS



BERGERON, Judge.

       {¶1}   Looking to replace several windows in their home, Donald and Rita

Stopler, via a chain of referrals, contacted defendant-appellant Chadwick Barnthouse

in November 2014.       He provided the Stoplers with a favorable estimate, which

convinced them to enter into a contract with him for the job, and consistent with

their agreement, the Stoplers handed him a check for several thousand dollars.

Unfortunately, Mr. Barnthouse never performed his end of the bargain, nor did he

return all of the money. Eventually convicted for theft, Mr. Barnthouse now appeals,

challenging his conviction on weight and sufficiency grounds. Our review of the

record, however, convinces us that the jury had before it sufficient and credible

evidence upon which to convict him. We accordingly affirm his conviction.

                                         I.

       {¶2}   After receiving an outreach from Mrs. Stopler, Mr. Barnthouse visited

the Stopler residence, inspected the windows, and provided the Stoplers with an

estimate of $7,200 for the total cost of the window replacement (i.e., parts and

labor). Encouraged because Mr. Barnthouse’s estimate fell below other estimates

that they had received, the Stoplers entered into a written contract with him for the

work, signed by both Mr. Barnthouse and Mrs. Stopler. Though Mr. Stopler did not

sign the contract, both Mr. and Mrs. Stopler testified that he was present when the

contracting occurred.

       {¶3}   The contract called for Mr. Barnthouse to remove seven windows and

to install new windows in their place. The total price was $7,267, of which the

Stoplers paid $6,200 upfront to Mr. Barnthouse in the form of a personal check from

their joint-checking account. After about six weeks, with no windows materializing,

Mrs. Stopler contacted Mr. Barnthouse, who claimed that the windows were


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delivered, but in the wrong size. After another six weeks elapsed, Mr. Barnthouse

reported that the windows were again delivered in the wrong size. Eventually, the

Stoplers grew suspicious with Mr. Barnthouse’s evasiveness and the lack of any new

windows. After giving him several opportunities to perform under the contract, they

turned the matter over to the authorities.

       {¶4}   Mr. Barnthouse ultimately returned $1,000 to the Stoplers, but never

repaid the balance nor did he perform any of the work required under the contract.

A warrant for his arrest was issued in spring of 2015, but authorities did not

apprehend him until 2017. After his arrest, Mr. Barnthouse was indicted and tried

before a jury for the theft of the $5,200 still owed to the Stoplers. A jury ultimately

found him guilty, and the trial court sentenced him to a year in prison (for which he

was credited 267 days) and ordered him to pay restitution in the amount of $5,200.

       {¶5}   Mr. Barnthouse now appeals his conviction and raises a single

assignment of error challenging both the weight and sufficiency of the evidence

supporting his conviction.

                                             II.

       {¶6}   In reviewing the sufficiency of the evidence, the court must ask,

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

rational trier of fact could have found all the essential elements of the crime beyond a

reasonable doubt. State v. Brooks, 1st Dist. Hamilton No. C-000763, 2001 WL

1590643, *2 (Dec. 14, 2001). Evaluation of a challenge to the manifest weight of the

evidence requires that the appellate court review the entire record, weigh the

evidence and 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, resulting in a manifest miscarriage of justice. Id.


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                                           A.

       {¶7}   Initially, Mr. Barnthouse challenges the evidence underlying the

elevation of the offense pursuant to R.C. 2913.02(B)(3) to a theft involving a person

in a protected class. R.C. 2913.02(B)(3) provides that:

       if the victim of the offense is an elderly person * * * a violation of [R.C.

       2913.02] is theft from a person in a protected class, and division (B)(3)

       of this section applies. * * * If the value of the property or services

       stolen is one thousand dollars or more and is less than seven thousand

       five hundred dollars, theft from a person in a protected class is a felony

       of the fourth degree.

R.C. 2913.01(CC) defines an “elderly person” as “a person who is sixty-five years of

age or older.” In this case, Mr. Stopler was 65 or older, whereas Mrs. Stopler was

not, and that distinction draws most of Mr. Barnthouse’s attention on appeal.

       {¶8}   Based on the ramifications under R.C. 2913.02(B)(3), Mr. Barnthouse

insists that if he stole from anyone, it was Mrs. Stopler rather than her husband, and

thus the elevation of the crime to a fourth-degree felony pursuant to R.C.

2913.02(B)(3) should not have occurred. Mr. Barnthouse emphasizes the lack of

proof that Mr. Stopler qualified as the “owner” of the funds in the joint-checking

account or that he contributed financially to the funds from the joint-checking

account. This formalistic argument posited by Mr. Barnthouse, however, places too

high a standard on the requisite proof of ownership for purposes of the elevation of a

conviction under R.C. 2913.02. Indeed, he seems to demand some type of auditing

precision that would need to trace each dollar handed to him to an income source

originating with Mr. Stopler.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶9}    The theft statute, R.C. 2913.02(A), however, is not so draconian. It

provides that “[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 *

* * (3) [b]y deception[.]” R.C. 2913.01(D) defines an “owner” as “any person, other

than the actor, who is the owner of, who has possession or control of, or who has any

license or interest in property or services[.]” The standard for proving ownership

under R.C. 2913.02 requires showing that the defendant deprived someone “ ‘of

property who had “possession or control of, or any license or any interest in” that

property.’ ” State v. Grayson, 11th Dist. Lake No. 2006-L-153, 2007-Ohio-1772, ¶ 26,

quoting State v. Rhodes, 2 Ohio St.3d 74, 76, 442 N.E.2d 1299 (1982); State v.

Miller, 2015-Ohio-644, 29 N.E.3d 258, ¶ 30 (3d Dist.) (same). Moreover, “[t]he

important question is not whether the person from whom the property was stolen

was the actual owner, but rather whether the defendant had any lawful right to

possession.” Id.

       {¶10} The undisputed evidence presented by the state at trial demonstrated

that the money which Mr. Barnthouse received came from a joint-checking account

held in both Mr. and Mrs. Stoplers’ names. Mr. Stopler testified that the account was

a shared account and “State’s Exhibit 2” depicts an image of the check to Mr.

Barnthouse which bears the names of both of the Stoplers. Mr. Stopler certainly had

an interest in the joint-checking account and the lawful right to possess and spend

those funds.

       {¶11} The jury accordingly had before it sufficient evidence that enabled it to

conclude that the “victim,” Mr. Stopler, was an “owner” of the checking account and

over the age of 65 at the time of the incident, thus satisfying the requisites of R.C.

2913.02(A)(3) and (B)(3) for “theft from a person in a protected class.” See State v.


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Flanagan, 5th Dist. Stark No. 2017-CR-2423, 2019-Ohio-4665, ¶ 22 (account

holder’s testimony and bank records sufficient to establish that joint-checking

account holder was also “owner” on account); State v. Jones, 8th Dist. Cuyahoga No.

92921, 2010-Ohio-902, ¶ 13 (state presented sufficient evidence from which a

rational trier of fact could conclude that the victim was the “owner” of the stolen

property, because evidence adduced proved that victim “possessed” the items). This

evidence also disposes of Mr. Barnthouse’s weight challenge regarding the elevation

to a fourth-degree felony—the jury had before it evidence of Mr. Stopler’s age, the

joint-checking account, and the joint presence of the Stoplers when Mr. Barnthouse

came and pitched them on his proposal. We see nothing to cast doubt on the jury’s

findings or the trial court’s judgment. Thus the R.C. 2913.02(B)(3) finding was

supported by both the sufficiency and weight of the evidence.

                                           B.

       {¶12} Mr. Barnthouse also challenges the weight and sufficiency of the

evidence demonstrating his intent to deceive.      For matters involving theft “by

deception,” a conviction under R.C. 2913.02(A)(3) requires the state to establish that

the defendant engaged in a deceptive act to deprive the victim of possession of

property or services. State v. Edmonson, 92 Ohio St.3d 393, 398, 750 N.E.2d 587

(2001) (“The state must prove that the accused engaged in a deceptive act to deprive

the owner of possession of property or services.”). R.C. 2913.01(A) defines deception

as “knowingly deceiving another * * * by withholding information, by preventing

another from acquiring information, or by any other conduct, act, or omission that

creates * * * a false impression in another[.]”

       {¶13} In cases involving a contract for services, such as here, the state can

prove a violation of R.C. 2913.02(A)(3) by demonstrating that at the time Mr.


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Barnthouse “took the money he had no intent to repay the money or perform under

the contract in exchange.” State v. Burton, 5th Dist. Delaware No. 15CAA100083,

2016-Ohio-5380, ¶ 20; State v. Smith, 12th Dist. Butler No. CA2004-11-275, 2005-

Ohio-6551, ¶ 9 (“[T]he state must demonstrate that at the time the defendant took

the money, he had no intent to repay the money or perform under the contract in

exchange.”). Generally, performance of a significant amount of such a contract tends

to demonstrate intent to perform, while minimal work performed tends to show the

opposite. Burton at ¶ 20; State v. Kerr, 6th Dist. Ottawa No. OT-13-036, 2015-Ohio-

2228, ¶ 20 (“[P]erformance of a significant amount of the work under the contract

demonstrates an intent to perform the contract[.]”). This is a fact-dependent inquiry

that requires consideration of all of the evidence and context.

       {¶14} Here, both the Stoplers testified that Mr. Barnthouse never performed

any work required under the contract. While they did acknowledge that he claimed

to have ordered the windows, Mr. Barnthouse never presented evidence

corroborating any such purchase. If Mr. Barnthouse actually ordered the windows

and was hoodwinked by the manufacturer, that might help show that he actually

intended to perform. See Kerr at ¶ 22 (“We conclude that appellant’s placing an

order for the building * * * alone does not constitute significant performance of the

contract[.]”). But such evidence is not before us—instead, we see a contractual

promise with absolutely no performance.

       {¶15} Furthermore, although he returned $1,000 to the Stoplers, trial

testimony indicates that he failed to repay the remaining $5,200 despite repeated

promises to the Stoplers, and failed to contact the Stoplers for approximately two

years thereafter. See State v. Lewis, 9th Dist. Summit No. 21722, 2004-Ohio-1233, ¶

26 (defendant’s failure to return money or contact victims supported inference that


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                     OHIO FIRST DISTRICT COURT OF APPEALS



defendant took the victim’s money with no intent to perform consideration for the

money and satisfied both the weight and sufficiency of the conviction).

       {¶16} While none of this is conclusive evidence of intent, it certainly

provided the jury with circumstantial evidence that Mr. Barnthouse never intended

to perform the contract or return the money. Circumstantial evidence is “ ‘proof of

facts or circumstances by direct evidence from which [the factfinder] may reasonably

infer other related or connected facts that naturally flow according to the common

experience of people.’ ” State v. Shabazz, 145 Ohio St.3d 404, 2016-Ohio-1055, 57

N.E.3d 1119, ¶ 18, quoting Ohio Jury Instructions, CR Section 409.01(4) (Rev. Aug.

17, 2011). And when we delve into questions of intent, circumstantial evidence is

often all that we have. State v. Adams, 1st Dist. Hamilton No. C-180337, 2019-Ohio-

3597, ¶ 9 (“We typically consider circumstantial evidence surrounding these events

to evaluate intent, absent a defendant’s admission.”).

       {¶17} Based on the evidence presented by the state, the jury could have

reasonably concluded that Mr. Barnthouse did not intend to do the work or repay the

remaining money to the Stoplers, and that he engaged in a deceptive act to deprive

Mr. Stopler of the money, i.e., entering into the contract by which he promised to

perform the work on the Stoplers’ home. See State v. Dalton, 11th Dist. Portage No.

2008-P-0097, 2009-Ohio-3149, ¶ 32 (fact that defendant accepted payment, avoided

contact with victim and performed minimally on the contract supported the

inference that the defendant intended to deprive the victim of her money by

deception).

       {¶18} As to the weight of the evidence, Mr. Barnthouse references various

facts in the record which he essentially contends negate intent to deceive. Among

these is (1) the fact he did not seek out the Stoplers, (2) entering the written contract,


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(3) providing his legitimate contact information, (4) accepting payment via check, (5)

returning calls, and (6) returning a portion of the money. Notwithstanding the

foregoing points, however, there was ample, credible evidence provided via the

Stoplers’ testimony to support the jury’s conclusion that Mr. Barnthouse intended to

deceive and took the money by deception. The jury was free to credit the Stoplers’

testimony and other evidence as it saw fit and, as a reviewing court, we give

substantial deference to that credibility assessment. See State v. Groesser, 5th Dist.

Stark No. 2017CA00182, 2018-Ohio-2713, ¶ 48, 50-51 (noting that it is the

providence of the trier of fact to choose between reasonable or conflicting views of

the evidence, which the reviewing court may only disturb upon finding the trier of

fact clearly lost its way); State v. Wells, 2d Dist. Champaign No. 2008 CA 6, 2009-

Ohio-908, ¶ 51 (appellate court to give deference to credibility determinations of the

trier of fact).

        {¶19} Nothing in the record before us indicates that, in resolving any

conflicts in the evidence, the jury clearly lost its way resulting in a manifest

miscarriage of justice.   Simply because the jury did not interpret or credit the

evidence in the manner Mr. Barnthouse puts forth, does not mean that it lost its way;

his conviction was supported by the weight of the evidence.        For the foregoing

reasons, we accordingly overrule Mr. Barnthouse’s single assignment of error and

affirm the judgment of the trial court.
                                                                 Judgment affirmed.

MOCK, P.J., and WINKLER, J., concur.


Please note:
       The court has recorded its own entry this date.




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