IN THE SUPREME COURT OF OHIO MEMORANDUM IN RESPONSE

Transcription

1 IN THE SUPREME COURT OF OHIO f' =rr ^:,f^ E ^^; 7Af F r^:,,^; A7:/! ;r ^^ r r^, ^ y^^ c^^, 8 ^^ ^ STATE OF OHIO, Appellee, -vs- FRANK REGAN, Appellant. Case No On Appeal from the Delaware County Court of Appeals Fifth District Court of Appeals Case No. 13 CAA MEMORANDUM IN RESPONSE Carol Hamilton O'Brien ( ) Delaware County Prosecuting Attorney Mark C. Sleeper ( ) Assistant Prosecuting Attorney 140 N. Sandusky St., 3ra Floor Delaware, Ohio (740) (740) FAX Eric J. Allen ( ) 713 South Front Street Columbus, Ohio (614) (614) FAX COUNSEL FOR APPELLEE COUNSEL FOR APPELLANT N^y }G / F's ^ S'.,.E$ e s^ ^. ri r" C Or:i ird S Ed ^i% "%ar;t; v^:^ ',. 5K;,.""f,S,ff f.l.is` iip'r

2 TABLE OF CONTENTS TABLE OF CONTEN'I'S ii TABLE OF AUTHORITIES iii EXPLANATION OF WHY THIS CASE DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION, NOR IS IT OF PUBLIC OR GREAT GENERAL INTEREST STATEMENT OF FACTS...2 STATEMENT OF THE CASE...6 ARGUMENT I. Response to First Proposition of Law II. Response to Second and Third Propositions of Law III. Response to Fourth Proposition of Law CONCLUSION CERTIFICATE OF SERVICE I ii

3 TABLE OF AUTHORITIES DelativaNe v. Van Arsdall (1986), 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674, State ex rel. CelebYezze v. Howard, 77 Ohio App. 3d 387, 391, 602 N.E.2d 665 (10th Dist. Franklin County 1991)...12 State v. Green, 66 Ohio St.3d 141, 147, 609 N.E.2d 1253, 1259 (1993)...11 State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991)...13 State v. Maurer (1984), 15 Ohio St.3d 239, 473 N.E.2d :10 State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343, 344 (1987)...10 State v. Shipley, 94 Ohio App.3d 771, 776, 641 N.E.2d 822, 825 (5th Dist.1994) State u Williams, 134 Ohio St.3d 521, 526, 2012-Ohio-5695, 983 N.E.2d 1278, 1283.;.1, 7 RULES AND STATUTES R. C (A) R. C (B) R.C (A)(3) R.C ( A)(3) Evidence Rule 404(13) passim Evidence Rule iii

4 THIS CASE DOES NOT INVOLVE A SUBSTANTIAL CONSTITUIONAL QUESTION, NOR IS IT OF PUBLIC OR GREAT GENERAL INTEREST Frank Regan was convicted of theft by deception and forgery for selling a counterfeit baseball card. Evidence was presented at trial that Regan had sold the same type of counterfeit baseball card on two other occasions. In his first proposition of law, Regan asserts that the trial court erred in. admitting that evidence. However, applying the three-step analysis set forth in State v. Williams, 134 Ohio St.3d 521, 526, 2012-Ohio-5695, 983 N.E.2d 1278, clearly denlonstrates that the admission of the other acts evidence under Evidence Rule 404(B) was not an abuse of discretion. Next, Regan asserts that he was prevented from introducing evidence that he was not criminally charged in either of the other two incidents and that lie offered to pay the victim back. However, Regan failed to preserve the issue by either proffering the excluded testimony or otherwise objecting to the trial court's ruling. The trial court's exclusion of this evidence was not plain error. Finally, Regan argues that his convictions were not supported by sufficient evidence. Considering the evidence in the light most favorable to the State, there is ample evidence upon which a rational trier of fact could find that all of the elements of the offenses were proven beyond a reasonable doubt. None of the propositions of law raise substantial constitutional questions. The application of abuse of discretion and plain error standards to the trial court's evidentiary rulings are not of public or great general interest. For those reasons, the State respectfully submits that this Court should decline jurisdiction. 1

5 STATEMENT OF FACTS In early February 2012, Forrest Ewing, a resident of Beavercreek, Ohio, found a Craigslist advertisement posted by an individual named "Rich" from Louisville, Kentucky, who was selling five vintage baseball cards. Tr. 44, 47. According to "Rich," his uncle passed away a few weeks earlier and the cards were found in a safety deposit box. Tr. 47. The cards were allegedly authenticated by an agency known as the Professional Sports Authenticator and were being sold to raise money for the deceased uncle's wife. Id. Mr. Ewing responded via and the parties later spoke via phone, during which they agreed to exchange a 1952 Topps Mickey Mantle rookie card (#311 in the set) for the price of $8, Tr. 50. Mr. Ewing asked for a picture of the card prior to purchase, but "Rich" indicated he could not provide a picture. Tr "Rich" did provide a supposedauthentication number. Id. "Rich" also said that he would accept cash as the sole manner of payment and that he was only in town for "a couple of days" so the transaction had to occur "fast." Tr. 52. The parties agreed to meet at the PNC Bank branch located on Maxtown Crossing in Westerville on February 21, Tr. 54. At approximately 3:30 p.m. on February 21, Mr. Ewing met "Rich" and withdrew $8, that he subsequently gave to "Rich" in exchange for the supposedly authentic card. Id. A few days later, Mr. Ewing tried to sell the card on ebay, however, he received multiple s from prospective purchasers indicating the card was fraudulent. Tr At that time, Mr. Ewing contacted the Westerville Police Department and Detective Timothy Ray was assigned to investigate the case. Tr. 61. Detective Ray began his investigation by obtaining security video from the PNC Bank braneh in question that showed an unidentified male (later deten-nined to be Frank Regan) 2

6 receiving Mr. Ewing's money in exchange for the spurious baseball card. Tr The unidentified male had parked out of the view of any external cameras; consequently Det. Ray was unable to try to track him via his license plate. Next, Detective Ray concluded the address used by the suspect, was fraudulent. However, Detective Ray was able to determine the person who created the account was using a Time Warner internet provider ("IP") address from the Cleveland area. Tr Upon speaking with the homeowner associated with said IP address, Detective Ray learned the internet connection was not secured, meaning any person could use the homeowner's wireless network without needing a password. Tr After this portion of his investigation was unsuccessful, Detective Ray subpoenaed records of the phone used to communicate with Mr. Ewing. Tr The records demonstrated the phone used by the suspect was a"tllrow-away" Tracphone purchased at a Walmart store in Cleveland using a credit card in the name of Paul Sabatino. Tr Upon further investigation, Detective Ray determined. Mr, Sabatino lived in close proximity to the unsecured wireless internet signal that was used to create the fraudulent Yahoo account. Tr Detective Ray was soon contacted by an attorney from Cleveland who indicated that he represented a man named Frank Regan, and that Regan was the person Det. Ray was looking for. Tr Det. Ray pulled up a photo of Regan using a law enforcement database, and noticed that the photo matched the suspect who appeared in the bank video. Tr Regan caine in for an interview in May 2012 at the Westerville Police Department. Tr, 206. Regan described Mr. Sabatino as a "good friend." State's Exhibi.t 12. Regan also stated to Detective Ray during the course of the interview that he did sell the card but he was not aware the card was fraudulent. Id. 3

7 Additional testimony was presented regarding Regan selling two other counterfeit Mickey Mantle baseball cards in similar manners. One incident was investigated by the Mentor Police Department (hereinafter "Mentor" case) and one incident was investigated by the Bergen County New Jersey Prosecutor's Office (hereinafter "New Jersey" case). Witli regards to the Mentor case, an individual named Jason Nedrich found an ad on Craigslist (on approximately March 5, 2012, only two weeks after the Westerville theft) for another 1952 Topps Mickey Mantle rookie card, #311. T^ Like the previous card sold to Mr. Ewing in Westerville, this card was also allegedly authenticated by the Professional Sports Authenticator agency. Id. Regan arranged to sell the card for $13,000, cash only, and the parties agreed to meet at a bank. Tr Once again, Regan used another "throw-away" phone and another fraudulent Yahoo account, but this time used the address of jamyrni11s530.,yahoo.com. Tr Regan used the name John Smith for that transaction. Tr Regan again did not park near the bank even though there were open parking spaces nearby. Tr In the New Jersey case, Regan sold another fraudulent 1952 Topps Mickey Mantle rookie card in November Tr The victim, Stephen Spitaleri, answered a Craigslist ad in which the listed price for the PSA-authenticated card was $10,000. Tr After negotiating a price of $6,000 over the phone, the parties agreed to meet in the parking lot of Yonkers Raceway in New York for the cash purchase. Id. Prior to the exchange, the victim learned that he was unable to attend the transaction due to an employment conflict and sent his father-in-law instead. Tr A few months later, Spitaleri took the card to an acquaintance to have the card evaluated in anticipation of Spitaleri selling it. Tr That person observed the card to be fraudulent. Id. Yet again, Regan used another "throw-away" phone and another 4

8 fraudulent Yahoo account to facilitate the transaction. Tr

9 STATEMENT OF THE CASE On December 7, 2012, Frank Regan was indicted for one count of theft by deception, a felony of the fourtll degree, and one count of forgery, a felony of the fifth degree. The case proceeded to jury trial on July 25 and 26, The jury returned verdicts of guilty on both counts of the indictment. Regan timely appealed his conviction to the Fifth District Court of Appeals. That court aflirmed the conviction, and the trial court's evidentiary rulings, on August 28, Regan now timely appeals the appellate court's ruling. 6

10 Response to Regan's First Proposition of Law ARGUMENT Tlae trial court did not abuse its discretion in admitting evidence of the Mentor and New Jersey incidents under Evidence Rule 404(B). A. Standard of Review Regan's first proposition of law states that the trial court abused its discretion in overruling his motion in limine. In the relevant portion, the motion in limine sought to preclude the State from introducing evidence regarding specific instances when Regan sold other counterfeit baseball cards, Since a ruling on a motion in limine is merely interlocutory, the assignment of error is more properly understood as an argument that the trial court abused its discretion in admitting 404(B) evidence. "Trial court decisions regarding the admissibility of other-acts evidence under Evid.R. 404(B) are evidentiary determinations that rest within the sound discretion of the trial court. Appeals of such decisions are considered by an appellate court under an abuse-of-discretion standard of review." State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, syllabus. Evidence Rule 404(B) permits the introduction of evidence of other crimes, wrongs, or acts of an accused to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In considering the admissibility of this "other acts" evidence, trial courts should conduct a three-step analysis. State v. Williams, 134 Ohio St.3d 521, 526, 2012-Ohio-5695, 983 N.E.2d 1278, The first step is to consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Evid.R The next step is to consider whether evidence of the other 7

11 crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other acts evidence is presented for a legitimate purpose, such as those stated in Evid.R. 404(B). The third step is to consider whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice. See Evid.R 403. Applying the Williams three-step analysis to the evidence admitted in this case demonstrates that the trial court did not abuse its discretion in admitting that evidence. B. The evidence was relevant. Regan was charged with theft by deception in violation of R.C (A)(3) and forgery in violation of R.C (A)(3). At issue in both charges is whether Regan deceived Mr. Ewing. The explicit language of the theft charge required the State to prove beyond a reasonable doubt that Regan obtained control over Mr. Ewing's money by deception. The forgery charge required the State to prove beyond a reasonable doubt that Regan uttered a writing he knew to have been forged (the baseball card), having done so with purpose to defraud. "Defraud" means to knowingly obtain, by deception, some benefit for oneself or another, or to knowingly cause, by deception, soyne detriment to another. R.C (B). "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 iinpression as to law, value, state of mind, or other objective or subjective fact. R.C (A). Essentially both statutes required proof that Regan sold a baseball card to Mr. Ewing that he knew to be counterfeit. The question then is very simple: does the evidence of other instances in which Regan sold other counterfeit copies of the same Mickey Mantle rookie card 8

12 make it more probable that Regan knew the card he sold Mr. Ewing was counterfeit? The answer is also sirnple: of course it does. Consider the manner in which Mr. Ewing attempted to sell the card after he purchased it. Mr. Ewing put the card for sale using his own ebay account, which would create a record of the transaction that could be linked to his identity. Contrast that with the manner in which Regan sold the baseball card. In the Craigslist add he posted, Regan used a fake name, a fake address, a throw-away phone number, a fake story about how he obtained the card, a fake story about there only being a short time frame to complete the sale, and Regan said he would only accept cash for the transaction. The fact that Regan did the exact same thing with the exact same type of card on two other occasions is certainly relevant to the issue of his knowledge that he sold Mr. Ewing a counterfeit baseball card. C. The evidence was not general character evidence offered to prove Regan acted in conformity therewith. The State did not seek to admit general evidence demonstrating that Regan is a con man in order to show that he conned Mr. Ewing. Instead, specific evidence relating to the Mentor and New Jersey incidents was admitted to show a common scheme or plan involving counterfeit Mickey Mantle baseball cards, and to provide further evidence of Regan's intent to deceive. That is the exact type of evidence that is permitted under Evid. R. 404(B). In addition, the trial court gave a limiting instruction to help ensure that the jury did not consider the evidence as general character evidence. Tr D. The probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. Relevant evidence, challenged as being outweighed by its prejudicial effects, should be reviewed in a light most favorable to the proponent of the evidence, maximizing its probative 9

13 value and minitnizing any prejudicial effect to one opposing admission. State v. Maurer (1984), 15 Ohio St.3d 239, 473 N.E.2d 768. Here, the probative value of the evidence was high. The similarities between the incident with Mr. Ewing and the Mentor and New Jersey incidents were striking. The evidence established a clear pattern of deception by Regan. Conversely, the danger of unfair prejudice was low. The State presented strong circumstantial evidence that Regan knew he was selling a fake baseball card based on the manner in which he sold it to Mr. Ewing. The fact that he had done the same thing on two previous occasions was merely used to support that evidence. Response to Regan's Second and Third Propositions of Law The trial court did not abuse its discretion by precluding evidence that Regan paid back the victim in the Mentor incident and was not criminally charged in either the Mentor or New Jersey incidents. A. Standard of Review Regan's second and third propositions of law both relate to the trial court's decision to exclude evidence that Regan paid back the purchaser of the counterfeit baseball card in the Mentor incident, and that Regan was not criminally charged in either Mentor or New Jersey. The second proposition of law is that Regan should have been permitted to raise those issues via cross examination of the State's witnesses. The third proposition of law is that Regan should have been pennitted to raise those issues in another manner, although it is not entirely clear how because there was no proffer of the precluded evidence. As both propositions of law relate to the same evidence, they will be addressed together. Generally, a trial court's decision to exclude evidence is evaluated on the same abuse of discretion standard as a decision to admit evideilee. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343, 344 (1987). The abuse of discretion standard also applies to limits placed on cross 10

14 examination. "[T]rial judges retain wide latitude...to impose reasonable limits on such crossexamination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." State v, Green, 66 Ohio St.3d 141, 147, 609 N.E.2d 1253, 1259 (1993), quoting Delaware v. Van Arsdall (1986), 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674, 683. However, those standards of review likely do not apply because Regan failed to properly preserve these issues for appeal. The only discussion about the evidence that Regan sought to admit took place before the jury was empaneled. Tr At that time the trial court made a preliminary ruling that Regan would not be permitted to present evidence that he was not charged in the otller incidents or that he had offered to pay back the victim. Id. As the Fifth District Court of Appeals noted, Regan did not renew his objection on the record, he did not attempt to introduce the testimony at trial, and he did not otherwise move the trial court to admit the evidence. Regan therefore waived all but plain error. B. The trial court properly excluded evidence that Regan paid back the Mentor victim. Regan sought to introduce evidence that he had paid back one of the other people who had purchased one of his counterfeit baseball cards for the purpose of showing that he did not have the intent to deceive Mr. Ewing. The victim in the Mentor incident, Jason Nedrich, did testify and would have been able to answer questions about being paid back during cross examination. However, the trial court precluded Regan's attorney from asking any questions related to that subject. That decision was proper for two reasons. First, questions regarding offers to pay back the money may have been barred by Evidenee Rule 408. That rule states, in pertinent part, "[e]vidence of (1) fiirnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable 11

15 consideration in compromising or attempting to compromise a claim whicb was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount." Regan's offer to pay money back to Mr. Nedrich would seem to fall under this rule. However, there is an apparent split between appellate districts as to whether Evid. R. 408 applies in criminal cases. See State v. Shipley, 94 Ohio App.3d 771, 776, 641 N.E.2d 822, 825 (5th Dist. 1994) (applying Evid. R. 408 to bar testimony in a criminal case regarding statements made by an attorney during compromise negotiations), but see State ex rel. Celebrezze v. Howard, 77 Ohio App. 3d 387, 391, 602 N.E.2d 665 (10th Dist. Franklin County 1991) (holding that Evid. R. 408 only applies to civil cases). Second, and more importantly, the evidence was irrelevant to the issue of whether Regan had the requisite criminal intent for the theft or forgery charges in this case. Although it is not clear in the record, the State believes the evidence would have been that Regan paid back 1VIr. Nedrich only after he had been contacted by police. The fact that Regan paid back the money after he was caught has no probative value on the question of whether he intended to defraud the victim at the time he sold the card. C. The trial court properly excluded evidence that Regan was not criminally charged in the other incidents. Regan also sought to introduce evidence that he was not charged in either Mentor or New Jersey. That evidence is again irrelevant to the issues in this case. Criminal charges are sometimes not pursued for any number of reasons that have nothing to do with whether a crime was actually committed. We do not know wliy Mentor and New Jersey did not pursue charges against Regan. Perhaps a necessary witness refused to cooperate. Perhaps the agencies decided to spend their limited resources prosecuting other crimes. Perhaps Mentor has a policy of not 12

16 pursuing theft charges when restitution is paid in full. Despite Regan's arguments to the contrary, the fact that criminal charges were not filed does not tell us anything about the merits of any charges that could have been filed. And more importantly, the fact that charges were not filed does not tell us anything about Regan's intent to defraud in either one of those incidents. Response to Regan's Fourth Proposition of Law Regan's convicti.ons for thef't and forgery were supported by legally suffccient evidence. A. Standard of Review In Regan's fourth proposition of law he contends that his convictions were based on legally insufficient evidence. "An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction 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. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus. The decision reached by the trier of fact should not be reversed unless the appellate court finds that reasonable minds could not reach that conclusion. Id. at 273. B. Regan's convictions were supported by sufficient evidence. As previously mentioned, both the forgery and theft offenses required proof that Regan knew he was selling a fake baseball card.. Although there was no direct evidence that Regan knew the card was fake, there was plenty of circumstantial evidence from which the jury could find those elements proven beyond a reasonable doubt. Regan posted a Craigslist ad to sell the card under a fake name, using a fake address, using a throw-away phone number, that had 13

17 a fake story about how he acquired the card, and a fake story creating a limited timetable to complete the sale. Regan would only accept cash for the transaction. Although he appeared on video camera at the bank, Regan completed the transaction away from his home area where he was unlikely to be recognized, and he parked his car away from the parking lot where it may have been caught on camera. Surely a reasonable mind could conclude from those circumstances that Regan knew he was selling a fake card and was taking steps to try to avoid being caught. On top of that, Regari had done nearly the exact same thing on two other occasions, using different fake names, fake addresses, fake phone numbers, fake stories about how he acquired the card, and using cash-only transactions. Those circumstances provided further evidence that, if believed, would support convictions for theft and forgery. Regan's convictions were therefore supported by legally sufficient evidence. CONCLUSION The trial court did not abuse its discretion in admitting other acts evidence under Evidence Rule 404(B). The trial court also did not abuse its discretion in preventing Regan from raising the issue of repaying the Mentor victim and not being criminally charged in either prior incident. Regan's convictions for theft and forgery were supported by sufficient evidence. For those reasons, the State respectfully requests that all of the propositions of law be overruled. Respectfully Submitted, CAROL HAMILTON O'BRIEN Delaware County Prose uting Attorney Mark C. Sleeper ( 0796 V- Assistant Prosecuting Attorney -^e^.-^----^--^_. 14

18 CERTIFICATE OF SERVICE The undersigned Attorney hereby certifies that a true and accurate copy of the foregoing document was served upon Eric J. Allen, Counsel for Appellant, via U.S. mail to 713 South Front Street, Columbus, Ohio on this 7t" day of November, Mark C. Sleepe ( ) Assistant Prosecuting Attorney 15