[Cite as State v. Cisse, 2013-Ohio-3895.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : Case No. 12 CAA 10 0074 : JAGA N. CISSE : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, case no. 12 CR I 06 0210 B
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: September 6, 2013
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
CAROL HAMILTON O’BRIEN DAVID H. BIRCH DELAWARE CO. PROSECUTOR 286 South Liberty St. BRIAN J. WALTER Powell, OH 40365 140 North Sandusky St. Delaware, OH 43015 Delaware County, Case No.12 CAA 10 0074 2
Delaney, J.
{¶1} Appellant Jaga N. Cisse hereby appeals from the September 20, 2012
Judgment Entry of conviction and sentence of the Delaware County Court of Common
Pleas. Appellee is the state of Ohio. This case is related to State of Ohio v. Dame
Cisse, 5th Dist. Delaware No. 12 CAA 09 0070.
FACTS AND PROCEDURAL HISTORY
{¶2} Appellants Dame and Jaga Cisse are brothers from Senegal who are
naturalized U.S. citizens. Jaga’s first name was originally “Ndiaga,” but when he
became a citizen, he changed it to “Jaga” because the latter is easier for Americans to
pronounce. For the time period relevant to this case, Dame and Jaga lived together at
1776 Bairsford Drive, Columbus, Ohio. Both brothers were employed, sometimes
working multiple jobs, and enrolled in college courses. According to Dame, they rarely
saw each other despite living in the same house. Mail for both brothers came to the
house.
The JPMC Hiring Process
{¶3} J.P. Morgan Chase (JPMC) operates a major enterprise in central Ohio
with offices throughout the region and thousands of employees engaged in myriad
activities involving banking, loans, and mortgages.
{¶4} JPMC has an online application process by which applicants submit an
initial application online for a recruiter to review. If the applicant meets the initial criteria
for a position, the recruiter schedules an interview between the applicant and a JPMC
manager. The interview takes place at the office location where the manager is based. Delaware County, Case No.12 CAA 10 0074 3
{¶5} If the applicant’s interview is successful, the recruiter contacts the
applicant again to schedule a background check which includes fingerprinting,
photographing, and a drug test. This background check occurs at yet a different
location. At the time of these events, all fingerprinting and photographing for
background checks for employment with JPMC in the Columbus area was performed at
1111 Polaris Parkway, Columbus, Ohio. This location is in Delaware County.
{¶6} Finally, if the background check is successful, an offer of employment may
be extended. If something undesirable shows up in the background check, no offer of
employment is made and any offers already discussed are rescinded.
{¶7} At trial, a JPMC investigator acknowledged the inherent flaw in this hiring
process: the interviewer is not present at the background check location, nor is the
recruiter present at the interview. The possibility exists, therefore, that the person
interviewed is not the person who shows up to be fingerprinted, photographed, and
subsequently background-checked.
Dame Cisse is Rejected for a Position at JPMC and “Ndiaga” is Hired
{¶8} On or around November 9, 2009, Dame Cisse submitted an online
application to JPMC for the position of Executive Resolution Analyst. This application
was rejected.
{¶9} On January 12, 2010, “Ndiaga Cisse” submitted an online application to
JPMC which was duly reviewed by a recruiter. “Ndiaga’s” application was forwarded to
Robert Hall, the manager of a group called the Customer Request Management Team.
{¶10} Hall met with “Ndiaga Cisse” in person for an interview at the JPMC facility
at 3415 Vision Drive, Columbus, known as the “Easton” facility and located in Franklin Delaware County, Case No.12 CAA 10 0074 4
County. “Ndiaga” told Hall to call him “Jack.” “Jack” was working on a bachelor’s
degree in accounting and hoped that the temporary position might lead to a permanent
position with JPMC. “Jack” was very friendly and outgoing and Hall recommended him
to be hired. After the interview, Hall told the recruiter to contact “Jack” regarding the
background check process.
{¶11} The background check seemingly went smoothly because a few weeks
later, in late January or early February, 2010, “Jack” became one of Hall’s new team
members. On his first day at JPMC, Hall met “Jack” and five or six other new hires in
the lobby at the Easton facility, escorted him to his new desk, and helped him start in his
new position.
{¶12} About a week later, “Jack’s” JPMC ID badge arrived and Hall delivered it
to him. The badge is used to enter and exit the JPMC offices but employees usually do
not wear the badges throughout the workday. The badges display a photo of the
employee and their name.
{¶13} “Jack” worked on Hall’s team through May 2010; Hall described him as a
productive employee with an average work product, but very personable, friendly, and
always smiling. At the close of the busy season, Hall encouraged his team, including
“Jack,” to apply elsewhere for permanent positions with JPMC.
{¶14} Carly Richardson worked as an “Investor Reporting Mortgage” for JPMC;
the team she supervised reported Freddie Mac loans for mortgages. Richardson also
worked at the Easton location. Someone on her team referred his friend “Jaga” to her
as a potential new team member and Richardson interviewed him. “Jaga” had
accounting and mortgage experience on his resume and would not require another Delaware County, Case No.12 CAA 10 0074 5
background check because he was already employed by JPMC. Richardson brought
him onto her team as a temporary employee with the title “Investor Reporter, Operations
Analyst.”
Supervisor Discovers Discrepancy on “Jaga’s” ID Badge
{¶15} Richardson always referred to “Jaga” as “Jaga” but she heard other
employees call him “Jack.” She testified she was not impressed with his performance
as an employee and his slowness affected the competitiveness of her unit;
consequently, she visited “Jaga’s” cubicle frequently to make sure he stayed on task.
One day Richardson came into his cubicle and noticed “Jaga’s” JPMC ID badge lying in
plain sight; she was surprised to notice the photo was not of the man she knew as
“Jaga.” She said, “That’s not you,” and “Jaga” replied, “Yes it is; I lost weight.” “Jaga”
tried to snatch the badge from Richardson.
{¶16} Richardson left “Jaga’s” cubicle and reported the matter to her immediate
supervisor, who had access to the JPMC employee Passport system containing
employee photos. Together they pulled up the photo of “Jaga,” and it was not the man
working for Richardson as “Jaga Cisse.” Richardson looked on Facebook and
discovered that the man she knew as “Jaga” was in fact appellant Dame Cisse, and that
appellant Jaga (Ndiaga) Cisse was Dame’s brother. At trial, Richardson identified
Dame as the man who worked for her under the name “Jaga,” and Jaga as the man
pictured in the JPMC employee ID badge used by Dame.
The JPMC Investigation
{¶17} Richardson reported the matter to corporate security and Kelly O’Reilly
launched an investigation. O’Reilly was aware of Richardson’s Facebook research and Delaware County, Case No.12 CAA 10 0074 6
discovered through a LexisNexis search that Dame and Jaga lived at the same address.
Additional research tied the brothers together more closely. He found a blog written by
“Ndiaga Cisse” containing a photo that matched the photo on the JPMC employee ID
badge. He reviewed forensic imaging of “Jaga’s” JPMC computer that revealed emails
from the address papadame2000@gmail.com. One email contained an attachment of a
letter written by Dame Cisse to FINRA, a financial industries regulatory agency that
oversees brokers.
{¶18} O’Reilly also discovered JPMC paychecks payable to “Ndiaga Cisse,”
endorsed by Ndiaga Cisse over to Dame Cisse.
{¶19} O’Reilly’s next step was to interview Dame and Jaga Cisse. He met with
the JPMC employee known as “Jaga” on September 7, 2010 at the Easton facility.
“Jaga” stated his date of birth was March 4, 1977 and the last four digits of his Social
Security Number were 8575, consistent with the “real” Jaga Cisse. O’Reilly asked him
to explain the discrepancy in the photo on his employee ID badge. “Jaga” said there
was a delay in receiving his badge, and when he finally got it the photo was wrong, but
he never got around to asking for a new one. When his supervisor had confronted him
about the photo, “he was just joking” when he told her it was him but he lost weight.
“Jaga” said he didn’t have the badge on him during the interview, and also stated he
didn’t have any form of government ID on him, either; “Jaga” said he would get these
items and bring them back to the HR department that day. “Jaga” also stated he would
be willing to come back at a later date to be fingerprinted.
{¶20} O’Reilly confronted “Jaga” with a picture of Dame Cisse printed out from
Facebook, and “Jaga” denied it was him, claiming Papa Dame Cisse is his cousin from Delaware County, Case No.12 CAA 10 0074 7
Florida. “Jaga” declined to make a written statement and was suspended pending the
investigation.
{¶21} That evening, after O’Reilly was gone for the day, someone came into the
HR office and provided a driver’s license for Jaga Cisse, date of birth March 4, 1977.
The photo on the license matches the photo on the JPMC employee ID badge, but does
not match the individual working at JPMC as “Jaga Cisse.” The person also brought in
the JPMC employee ID badge and the photo on the badge had been noticeably
scratched.
{¶22} O’Reilly discovered an earlier JPMC application by Dame Cisse in the
company’s files dated November 9, 2009. A photograph of Dame Cisse had been taken
as part of the background check into that application: the person currently working for
JPMC as “Jaga Cisse” was in fact Dame Cisse.
{¶23} Finally, O’Reilly discovered a temporary employee by the name “Jaga
Cisse” had been hired with JPMC in May or June, 2011, and this “Jaga Cisse” was a
different individual than the “Jaga Cisse” interviewed by O’Reilly. This individual was
still in training and had been hired through a temporary agency. He was able to work
for a while for JPMC before being “red flagged” by corporate security.
{¶24} O’Reilly concluded Jaga and Dame worked together to evade the
background check for Dame because Jaga had obviously reported to the 1111 Polaris
Parkway location and undergone the background check, established by his photograph
on the employee ID badge and his fingerprints on file. Delaware County, Case No.12 CAA 10 0074 8
{¶25} O’Reilly got in touch with the supervisor who was training the “real Jaga”
and asked him to make Jaga available for an interview. Jaga left the training room to
take a phone call and never returned. Consequently O’Reilly never met Jaga in person.
The Columbus Police Department Investigation
{¶26} O’Reilly turned the results of his investigation over to the Columbus Police
Department. Detective Todd Schiff spoke to Jaga Cisse by telephone. Jaga confirmed
Dame was his brother but stated he had no means of reaching him. Schiff eventually
reached Dame Cisse by telephone; Dame denied working at JPMC during the dates in
question and said he last worked there as a temp in 2003.
{¶27} Schiff prepared a photo lineup which was shown to Carly Richardson; she
selected Dame as the person who worked for her as “Jaga” and Jaga as the person
pictured on the JPMC employee ID badge.
{¶28} Schiff obtained records of a Huntington Bank account held by Dame;
Dame had listed his current employer as JPMC.
First Indictment and Jury Trial: Mistrial
{¶29} Dame Cisse and Jaga Cisse were originally indicted together on August
26, 2011; Dame was charged with two counts of identity fraud pursuant to R.C.
2913.49(E), both felonies of the fifth degree, and Jaga was charged with one count of
identity fraud pursuant to R.C. 2913.49(D), a felony of the fifth degree.
{¶30} The case proceeded to joint jury trial. During appellee’s case in chief,
Schiff, testifying in narrative fashion and not in response to a specific question,
commented several times that appellants refused to speak to him without counsel
present. During cross-examination, Dame’s trial counsel, in the context of the general Delaware County, Case No.12 CAA 10 0074 9
willingness of witnesses and suspects to speak with law enforcement, asked, “And in
your experience, is an illegal alien open and eager to talk with you?” Appellee objected
and the trial court recessed for the day.
{¶31} Outside the presence of the jury, the trial court found pursuant to State v.
Leach, appellee allowed Schiff to raise an inference of guilt prejudicial to appellants by
referencing their pre-arrest silence. 102 Ohio St.3d 135, 2004-Ohio-2147, 807 N.E.2d
335. Appellee objected to the trial court’s characterization of the prosecutor’s
questions, but the trial court prompted appellants’ trial counsel for motions, and
appellants both moved for mistrial. The motions were granted and the trial court
observed, “Certainly there was no intention here on the part of [appellee] to create a
mistrial * * *. It’s obvious that there is substantial evidence that’s been presented here.
And this was after two days of trial something that was maybe brought out and certainly
not intended for that inference by [appellee] and probably not even by the detective, he
wasn’t really conscious of what he was saying regarding that issue.”
Re-Indictment and Trial
{¶32} On June 1, 2012, appellants were charged again by indictment. The
following information is taken from the joint indictment of Dame and Jaga, and
appellee’s bill of particulars. Each offense charged is a felony of the fifth degree.
Ct. DEFT. OFFENSE DATE(S) CONDUCT ALLEGED VERDICT I. Dame R.C. 12/23/09- Pretended to be Jaga Not 2913.49(E) 1/12/10 while applying for job Guilty Identity Fraud with JPMC II. Jaga R.C. 12/23/09- Allowed Dame to use Not 2913.49(D) 1/12/10 his ID info in applying Guilty Identity Fraud for position w/JPMC III. Dame R.C. 1/13/10- Pretended to be Jaga Not 2913.49(D) 1/20/10 during interview with Guilty Identity Fraud Robert Hall Delaware County, Case No.12 CAA 10 0074 10
IV. Jaga R.C. 1/13/10- Allowed Dame to use Not 2913.49(D) 1/20/10 his ID info during Guilty Identity Fraud interview w/Hall V. Jaga R.C. 1/21/10 Permitted Dame to use (No 2913.49(D) his ID info during Verdict) Identity Fraud background check VI. Dame R.C. 1/21/10 Held himself out as Jaga (No 2913.49(E) for purposes of background Verdict) Identity Fraud check VII. Dame R.C. 1/21/10 Encouraged Jaga to allow (No 2923.03(A)(2)/ him to use his ID info for Verdict) R.C. purposes of background 2913.49(D) check Aid & Abet Identity Fraud VIII. Dame R.C. 2/1/10- Posed as Jaga while Guilty 2913.49(E) 9/6/10 working for JPMC Identity Fraud IX. Jaga R.C. 2/1/10- Allowed Dame to pose as Guilty 2913.49(D) 9/6/10 Jaga while working for Identity Fraud JPMC X. Dame R.C. 9/7/10 Pretended to be Jaga during Guilty 2913.49(E) interview with JPMC Identity Fraud corporate security (O’Reilly) XI. Jaga R.C. 9/7/10 Permitted Dame to use his ID Guilty 2913.49(D) info during interview with JPMC Identity Fraud corporate security (O’Reilly)
Testimony of Dame and Jaga: Dame Makes Admissions but Both Claim Jaga Didn’t Know About Identity Theft
{¶33} Dame and Jaga testified at the second trial. Dame admitted to using
Jaga’s identity to gain employment with JPMC. Dame testified that he was offered a job
at JPMC which was later withdrawn; he applied again under the name “Ndiaga Cisse,”
using his brother’s information. He did not tell Jaga he was doing this or ask his
permission. Dame was unaware Jaga had changed his name when he became a
citizen, from Ndiaga, hence the discrepancy. Dame submitted the online application
using Jaga’s name, date of birth, Social Security number, and pertinent information. Delaware County, Case No.12 CAA 10 0074 11
When JPMC called to schedule an interview, Dame attended the interview with Robert
Hall. He knew the next part of the process would be the background check. Dame
testified he told Jaga someone from JPMC called and said he should come in for a
background check; Dame encouraged him to go because maybe it would turn into a job.
He still did not tell Jaga he had applied for a job in his name.
{¶34} Dame received a call from JPMC confirming his start date and began
working. He worked for Robert Hall for three months and then applied for another
position within JPMC. During his employment, he never told Jaga he was working
under his name. When Carly Richardson confronted him about the ID badge photo that
was not him, Dame admitted he claimed he lost weight, and said he told Kelly O’Reilly
that he knew it was a mistake but never bothered to correct it. When he was
suspended after the interview, he took Jaga’s driver’s license and some identifying
information while Jaga was in the shower and brought it into the HR department and
dropped it off. He did not have Jaga’s permission to use the documents.
{¶35} Dame insisted Jaga knew nothing about the identity fraud scheme. Dame
claimed that he signed the paychecks over to himself trying to make two signatures look
different.
{¶36} Jaga in turn testified that he never knew Dame used his information to
apply for a job at and work for JPMC. When he got a call to come in for a background
check, he thought it was “weird,” but his resume information was on the Ohio State
University career services’ website and he thought perhaps JPMC contacted him in
connection with that. He thought he had nothing to lose by going in for the background
check even though at that point he had never applied for any position with JPMC. Delaware County, Case No.12 CAA 10 0074 12
{¶37} The same day he was photographed and fingerprinted, he received an
offer letter in the mail from JPMC offering him a job. Jaga testified he thought about
taking it, but he was already going to school and working a different job, and it would be
too many hours. He claimed he called “a woman” at JPMC and turned the job down.
Jaga speculated at trial his brother set up a series of phone calls to make the possible
job scenario more believable so it was more likely Jaga would go in for the background
check. Jaga testified he never saw any paychecks in his name from JPMC, and he
never gave Dame permission to use his driver’s license or any other information. He
also testified the evidence regarding the JPMC hiring process is not accurate because
he was hired there in June 2011 without interviewing with any JPMC manager.
{¶38} Appellant moved for judgments of acquittal at the close of appellee’s
evidence and at the close of all the evidence, and the motions were overruled.
Appellants were found not guilty of some counts, guilty of others, and the jury was
unable to reach a verdict on others, as shown on the chart, supra. After the jury was
unable to reach a verdict as to Counts V., VI., and VII., appellee dismissed those
counts.
{¶39} Appellants were each sentenced to a term of community control, three
years for Dame and two years for Jaga. Appellants now appeal from the judgment
entries of their convictions and sentences.
{¶40} Appellant Jaga Cisse raises four assignments of error:
ASSIGNMENTS OF ERROR
{¶41} “I. THE TRIAL COURT ERRED BY NOT FINDING THAT JEOPARDY
ATTACHED TO THE APPELLANT WHEN A MISTRIAL WAS GRANTED.” Delaware County, Case No.12 CAA 10 0074 13
{¶42} “II. THE TRIAL COURT ERRED BY NOT FINDING THE APPELLEE’S
EXHIBITS HEARSAY AND PRECLUDING THEM.”
{¶43} “III. THE TRIAL COURT ERRED BY OVERRULING APPELLANT’S
MOTION FOR ACQUITTAL MADE AT THE CLOSE OF ALL EVIDENCE.”
{¶44} “IV. THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.”
ANALYSIS
I.
{¶45} In his first assignment of error, appellant argues the trial court erred in not
finding jeopardy attached after granting a mistrial. We disagree. This argument is
similar to that raised by appellant’s co-defendant and we adopt the same rationale.
{¶46} In Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 72 L.Ed.2d 416
(1982), the Supreme Court held: “ ‘ * * * [T]he circumstances under which such a
defendant may invoke the bar of double jeopardy in a second effort to try him are limited
to those cases in which the conduct giving rise to the successful motion for a mistrial
was intended to provoke the defendant into moving for a mistrial.” Prosecutorial
misconduct will bar a second trial only when such behavior was ‘intentionally’ calculated
to cause or invite mistrial. State v. Doherty, 20 Ohio App.3d 275, 276, 485 N.E.2d 783
(1st Dist.1984). Accordingly, not all retrials after jeopardy attaches are precluded. See
State v. Glover, 35 Ohio St.3d 18, 19, 517 N.E.2d 900 (1988). Rather, if a mistrial was
properly granted, then retrial is constitutionally permissible. Id., 19-20.
{¶47} The reviewing court examines the trial court's decision to grant a mistrial
with deference. Glover, supra, 35 Ohio St.3d at 19. A balancing test is employed Delaware County, Case No.12 CAA 10 0074 14
whereby appellant's right to be tried by the original tribunal is weighed against the
public's interest in the efficient implementation of justice. Id. At times, the public's
interest in a fair trial dominates over appellant's right to have his fate determined by a
certain tribunal. Id. Thus, “[w]here the facts of the case do not reflect unfairness to the
accused, the public interest in insuring that justice is served may take precedence.” Id.
In evaluating the propriety of a mistrial order, the reviewing court should apply flexible
standards “due to the infinite variety of circumstances in which a mistrial may arise.” Id.
at 19, citing United States v. Jorn, 400 U.S. 470, 480, 91 S.Ct. 547, 27 L.Ed.2d 543
(1971).
{¶48} In this case, it was prejudicial comments of appellee’s witness,
unprompted by appellee, which resulted in the trial court properly sustaining the
defendants’ joint motion for mistrial. It is apparent from the record that neither appellee
nor the trial court “goaded” trial counsel into asking for a mistrial. We find the judge's
action in declaring a mistrial was not instigated by prosecutorial misconduct designed to
provoke a mistrial, nor was the declaration of a mistrial an abuse of discretion.
{¶49} Accordingly, appellant’s protection against double jeopardy has not been
violated and his first assignment of error is overruled.
II.
{¶50} In his second assignment of error, appellant argues the trial court should
have excluded the copies of Facebook pages taken from the web offered as exhibits by
appellee. We disagree.
{¶51} The admission or exclusion of evidence is a matter left to the sound
discretion of the trial court. Absent an abuse of discretion resulting in material prejudice Delaware County, Case No.12 CAA 10 0074 15
to the defendant, a reviewing court should be reluctant to interfere with a trial court’s
decision in this regard. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967).
{¶52} First we note the exhibits at issue here are distinguishable from those in
the case cited by appellant, State v. Tooley, 11th Dist. Portage No. 2004-P-0064, 2005-
Ohio-6709, reversed on other grounds, 114 Ohio St.3d 366, 2007-Ohio-3698, 872
N.E.2d 894, cert. denied by Tooley v. Ohio, 552 U.S. 1115, 128 S.Ct. 912, 169 L.Ed.2d
757 (2008). Tooley was a child pornography case in which a law enforcement witness
testified about the ages and countries of origin of victims in computer images. The
“layers of hearsay” in that case referred to the many layers of investigation which had
involved the Department of Homeland Security and international law enforcement in
identifying victims in images generated by a worldwide web of child exploiters.
{¶53} In this case, as the trial court determined, the jury was free to look at the
photos from the Facebook pages and determine their weight. The Facebook photos
were only relevant to the investigation and how first Richardson and then investigators
determined who “Jaga Cisse” really was. In light of Dame’s subsequent admissions, the
admission of this evidence was harmless.
{¶54} Appellant’s second assignment of error is overruled.
III., IV.
{¶55} Appellant’s third and fourth assignments of error challenge the manifest
weight and sufficiency of the evidence and will be considered together. Appellant
argues appellee presented insufficient evidence of venue and the jury lost its way in
finding appellant knew of and participated in Dame’s plan of identity theft. We disagree. Delaware County, Case No.12 CAA 10 0074 16
{¶56} Appellant was found guilty of two counts of identity theft pursuant to R.C.
2913.49(D), which states, “No person, with intent to defraud, shall permit another
person to use the person's own personal identifying information.”
{¶57} The legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio
St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard
of review for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,
61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which
the Ohio Supreme Court held, “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.”
{¶58} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing
the entire record, weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence,
the jury clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be overturned and a new trial ordered.” State v. Thompkins, supra, 78
Ohio St.3d at 387. Reversing a conviction as being against the manifest weight of the Delaware County, Case No.12 CAA 10 0074 17
evidence and ordering a new trial should be reserved for only the “exceptional case in
which the evidence weighs heavily against the conviction.” Id.
{¶59} Appellant challenges the sufficiency of appellee’s evidence with respect to
the element of venue. It is axiomatic that “[v]enue, although not a material element of
the offense, must be proven by the state unless it is waived by the defendant.” State v.
Headley, 6 Ohio St.3d 475, 453 N.E.2d 716 (1983); State v. Draggo, 65 Ohio St.2d 88,
418 N.E.2d 1343 (1981). The issue of venue was raised several times through the
course of two trials; all parties have acknowledged the sole event which occurred in
Delaware County is the background check, to wit, Jaga Cisse reported to the JPMC
location at 1111 Polaris Parkway to be fingerprinted and photographed. The drug test
occurred elsewhere. The interview and work performed by Dame Cisse occurred at the
Easton location in Franklin County. Nevertheless, venue for all of the offenses is proper
in Delaware County, as it would have been in any county where any element of the
offense of identity theft occurred.
{¶60} R.C. 2901.12(A) governs venue in criminal cases and states that the trial
should be “held in a court having jurisdiction of the subject matter, and in the territory of
which the offense or any element thereof was committed.” Therefore, venue can exist in
any jurisdiction where any element of the crime was committed. State v. Plants, 5th
Dist. Tuscarawas No. 2009 AP 10 0054, 2010-Ohio-2930, ¶ 39, citing State v.
Chakirelis, 11th Dist. Lake No. 95-L-041, 1996 WL 200605 (March 29, 1996). The
standard of proof is beyond a reasonable doubt, although venue need not be proved in
express terms so long as it is established by all the facts and circumstances in the case.
State v. Dickerson, 77 Ohio St. 34, 82 N.E. 969 (1907), paragraph one of the syllabus. Delaware County, Case No.12 CAA 10 0074 18
{¶61} All eleven counts of the indictment assert the offenses occurred in
Delaware County; appellee’s bill of particulars states each offense occurred as part of a
continuing course of conduct. R.C. 2901.12(H) states:
When an offender, as part of a course of criminal conduct, commits
offenses in different jurisdictions, the offender may be tried for all of
those offenses in any jurisdiction in which one of those offenses or
any element of one of those offenses occurred. Without limitation
on the evidence that may be used to establish the course of
criminal conduct, any of the following is prima-facie evidence of a
course of criminal conduct:
(1) The offenses involved the same victim, or victims of the same
type or from the same group.
(2) The offenses were committed by the offender in the offender's
same employment, or capacity, or relationship to another.
(3) The offenses were committed as part of the same transaction or
chain of events, or in furtherance of the same purpose or objective.
(4) The offenses were committed in furtherance of the same
conspiracy.
(5) The offenses involved the same or a similar modus operandi.
(6) The offenses were committed along the offender's line of travel
in this state, regardless of the offender's point of origin or
destination. Delaware County, Case No.12 CAA 10 0074 19
{¶62} In this case, the offenses were committed as part of the same transaction
or chain of events, in furtherance of the same purpose: Dame Cisse obtaining
employment with JPMC. We find all of the offenses were properly venued in Delaware
County as part of a course of criminal conduct. See, State v. Jewell, 5th Dist. Delaware
No. 01CAA03006, 2002-Ohio-226.
{¶63} Appellant further argues there is no evidence Jaga knew of Dame’s
scheme of identity fraud, but we disagree. Jaga admittedly went to Polaris Parkway for
the background check; he claimed it was “weird” because he never applied for a job
with JPMC, but he went nevertheless. The jury was free to believe him or not. The
weight of the evidence and the credibility of the witnesses are determined by the trier of
fact. State v. Yarbrough, 95 Ohio St.3d 227, 231, 2002-Ohio-2126, 767 N.E.2d 216.
The jury also had the evidence of the paychecks payable to “Ndiaga” signed over to
Dame and the fact that the brothers lived together for months while this scheme went on
despite Jaga’s claims of ignorance. Dame was also able to access Jaga’s driver’s
license and other identifying paperwork, although both claimed Jaga did not give him
permission to do so.
{¶64} In short, we are unable to find, upon reviewing the entire record, the jury
clearly lost its way and created such a manifest miscarriage of justice that the conviction
must be overturned and a new trial ordered.
{¶65} Appellant’s two convictions for identity theft are supported by sufficient
evidence and are not against the manifest weight of the evidence. Appellant’s third and
fourth assignments of error are overruled. Delaware County, Case No.12 CAA 10 0074 20
CONCLUSION
{¶66} For the foregoing reasons, each of appellant’s four assignments of error is
overruled and the judgment of the Delaware County Court of Common Pleas is
affirmed.
By: Delaney, J. and
Gwin, P.J.
Baldwin, J., concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. CRAIG R. BALDWIN