[Cite as State v. Dilley, 2012-Ohio-5288.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 98098
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
WILLIAM DILLEY DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-558185
BEFORE: Keough, J., Blackmon, A.J., and Stewart, J.
RELEASED AND JOURNALIZED: November 15, 2012 ATTORNEY FOR APPELLANT
Thomas A. Rein Leader Building, Suite 940 526 Superior Avenue Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor James A. Gutierrez Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113 KATHLEEN ANN KEOUGH, J.:
{¶1} Defendant-appellant, William Dilley, appeals from the trial court’s
judgment, rendered after a bench trial, finding him guilty of tampering with records,
perjury, and attempted theft, and sentencing him to two years incarceration. He contends
that his convictions were not supported by sufficient evidence and against the manifest
weight of the evidence, and that the matter should be remanded for de novo resentencing
because the trial court failed to properly sentence him to postrelease control. Finding no
merit to the appeal, we affirm.
Background
{¶2} In January 2012, Dilley was charged with one count each of tampering with
records, in violation of R.C. 2913.42(A)(2); perjury, in violation of R.C. 2921.11(A);
attempted theft, in violation of R.C. 2923.02/2913.02(A)(2); and theft, in violation of
R.C. 2913.02(A)(2).
{¶3} The state’s evidence at trial demonstrated the following. Until early 2009,
when his employment was terminated, Dilley was a financial advisor for Smith Barney in
its Pepper Pike office. As a financial advisor, Dilley counseled clients about their
investments and procured investments for them. In 2008, one of his clients was Betty
Montgomery, a 92-year-old woman who resided in the assisted living area of Stratford
Commons, a nursing home. {¶4} Dilley had managed Montgomery’s investments since 1995, when she
executed a will and a trust. The will contained pour-over provisions leaving all of her
assets and possessions to the trust. The trust provided that three named individuals were
to receive monetary distributions ranging from $1,000 to $3,000 upon her death, and the
remainder of the trust assets were to be divided and distributed evenly to two charitable
organizations: one-half to Holy Family Cancer Home and one-half to Save-A-Pet.
{¶5} In 2003, Montgomery, who had no children or known heirs, was admitted to
the Stratford Commons assisted living facility. At trial, Dr. Marwan Hilal, a staff
physician at Stratford Commons who cared for Montgomery from 2003 until her death in
2009, reviewed notes from nursing staff, monthly summaries of her condition, and
medication and treatment forms. Notations on the documents indicated that in 2003,
Montgomery suffered from “anxiety and depression.” In 2004, she “required moderate
assistance in financial decisions” and was “more forgetful and slightly disoriented.” The
notes indicated that by September 2005, Montgomery “seem[ed] forgetful and slightly
disoriented” and required “maximum assistance in financial decisions.”
{¶6} Dr. Hilal testified that in January 2007, the nursing notes indicated that
Montgomery had “dementia and [a] change in mental status” and in December 2007, was
“confused and forgetful.” The nursing notes for each of January, February, March, and
April 2008 also indicated that Montgomery was “confused.” On June 30, 2008, Dr. Hilal
examined Montgomery and noted that she suffered from “moderate to severe dementia.”
According to Dr. Hilal, the ability to make sound judgments, especially those regarding financial decisions, is impaired even in the early stages of dementia. He testified further
that Montgomery’s condition worsened from 2006 to 2008, and she would not have had
the mental capacity in 2008 to make an informed decision about transferring the assets of
her estate.
{¶7} This conclusion was consistent with the testimony of Frances Koleszar, who
testified that she had been good friends with Montgomery since 1964. Koleszar testified
that she and her husband visited Montgomery at Stratford Commons several times a year,
but by 2007, Montgomery had difficulty remembering who they were. Koleszar stated
that in December 2007, when she and her husband stopped in to visit Montgomery, she
was unable to recognize them at all and repeatedly asked them who they were.
{¶8} Dr. Hilal’s conclusion about Montgomery’s mental capacity was also
consistent with the testimony of licensed practical nurses who worked at Stratford
Commons and interacted with Montgomery. Veronica Kennedy-Williams testified that
she cared for Montgomery daily from 2006 to 2008 and observed her mental condition
progressively worsen. Jose A. Giener testified that he had regular contact with
Montgomery from 2006 to 2008 and observed that she declined physically and mentally
during that time. Barbara Hooten, who cared for Montgomery at least twice a week,
testified that Montgomery was confused and unable to comprehend where she was, the
current season, or the current calendar year.
{¶9} According to Hooten, a man who had been talking to Montgomery and
Montgomery’s friend John (who also lived at Stratford Commons) approached her one day at the nurses’ station and asked her to sign some documents. Upon realizing that the
documents related to financial matters, Hooten spoke to Tricia Wollschleger, a social
worker at Stratford Commons, and asked her to handle the situation because “it didn’t
seem right.”
{¶10} Wollschleger testified that she went to the lobby, where she saw Dilley,
Montgomery, John, and an unidentified woman sitting on a couch. When Tricia
introduced herself and asked if she could help, the unidentified woman stood up, said
something that made Wollschleger realize she was a notary public, and walked out the
door.
{¶11} On April 15, 2008, Dilley returned to Stratford Commons with a different
notary who witnessed Montgomery sign an amended trust that made Dilley the sole
beneficiary of the trust. Debra Benjamin, the notary, testified that she had never met
Dilley before he called her and asked her to meet him at Stratford Commons. Dilley met
Benjamin in the lobby when she arrived, and they went to Montgomery’s room, where
Dilley chatted with Montgomery for about 15 minutes. They then went to the lobby area
and sat at a table. Benjamin testified that Dilley got out papers, and told her that he had
taken care of Montgomery’s finances for many years, and was going to be the executor of
Montgomery’s will. Dilley never told Benjamin that he was going to be the sole
beneficiary of the amended trust.
{¶12} Benjamin testified that Dilley showed her Montgomery’s birth certificate,
and she confirmed with several Stratford Commons employees who walked up to the table that the woman at the table was indeed Betty Montgomery. According to
Benjamin, one staff member witnessed Montgomery’s signature on the documents, but
the other staff members left before she signed anything. Benjamin stated that no
Stratford Commons administrators were ever at the table overseeing the transaction.
{¶13} Kennedy-Williams, the nurse who witnessed Montgomery’s signature,
stated that there were no administrators from Stratford Commons either at or standing
around the table when Montgomery signed the amended trust. She testified further that
Dilley said that he was going to be taking care of Montgomery’s finances but never told
her that he would be a beneficiary of the trust.
{¶14} Jon Lawrence, Dilley’s boss at Smith Barney, testified that Smith Barney’s
written policies regarding bequests to its financial advisors by clients other than family
members forbid any bequest under circumstances that create the appearance of a conflict,
and provide that special caution regarding such bequests be exercised when the client is
elderly or the client’s judgment may be impaired. Smith Barney’s policies further
require that the financial advisor make management aware of such a bequest as soon as
the bequest becomes known to the advisor. Lawrence testified that these policies, which
only reiterate industry standards, were distributed in writing to Smith Barney’s financial
advisors in 2007, and Dilley was aware of the policies.
{¶15} Montgomery passed away in January 2009. The value of the amended trust
upon her death was approximately $750,000. {¶16} Lawrence testified that in March 2009, after Dilley presented the amended
trust to Smith Barney for approval, he reviewed the 1995 trust and the 2008 amended
trust with Smith Barney’s legal department. The two documents were identical, except
that the beneficiaries under the original trust had been deleted, and Dilley was now listed
as the sole beneficiary of the amended trust. Lawrence met with Dilley, who denied that
he knew of the beneficiary change prior to Montgomery’s death. He also denied that he
knew the notary who signed the amended trust or who created the amended trust
document. After further investigation, Smith Barney terminated Dilley’s employment.
Beth Michael, a risk officer at Smith Barney, testified that after his termination, she found
the 2008 amended trust document in Dilley’s computer files.
{¶17} Subsequently, Smith Barney initiated an interpleader action regarding the
validity of the amended trust. David M. Gareau, the attorney for Holy Family Cancer
Home, testified that when he deposed Dilley for the interpleader action, Dilley admitted
that he had “cut and pasted” documents on his computer to created the amended trust.
To save litigation costs, Holy Family Cancer Home and Save-A-Pet eventually settled the
interpleader action. As a result of the settlement, Dilley received $75,000 and remained
as trustee of the amended trust; the remaining assets were divided evenly between Holy
Family Cancer Home and Save-A-Pet.
{¶18} At the close of the state’s case, the trial court granted Dilley’s Crim.R. 29
motion for acquittal as to Count 4, theft, and denied the motion with respect to the other
counts. Dilley did not testify, and the trial court subsequently found him guilty of tampering with records, perjury, and attempted theft. The court sentenced him to two
years on each count, to be served concurrently.
Analysis
A. Sufficiency and Manifest Weight of the Evidence
{¶19} In his first and second assignments of error, Dilley contends that his
convictions were not supported by sufficient evidence and against the manifest weight of
the evidence.
{¶20} The test for sufficiency requires a determination of whether the prosecution
met its burden of prodution at trial. State v. Bowden, 8th Dist. No. 92266,
2009-Ohio-3598, ¶ 12. 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 guilty 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 reasonble doubt.
State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.
{¶21} A manifest weight challenge, on the other hand, questions whether the
prosecution mets it burden of persuasion. State v. Ponce, 8th Dist. No. 91329,
2010-Ohio-1741, ¶ 17, citing State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d 1356
(1982). A reviewing court may reverse the judgment of conviction if it appears that 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.” Thompkins at 387. A finding that
a conviction was supported by the manifest weight of the evidence necessarily includes a
finding of sufficiency. Id. at 388.
{¶22} Dilley was convicted of attempted theft under R.C. 2913.02(A)(2), which
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 * * * (2)
beyond the scope of the express or implied consent of the owner or person authorized to
give consent.”1
{¶23} He was also convicted of tampering with records under R.C. 2913.42, which
provides that
[n]o person, knowing the person has no privilege to do so, and with purpose to defraud * * * shall (1) falsify * * * any writing, computer softward, data, or record; (2) utter any writing or record, knowing it to have been tampered with as provided in division (A)(1) of this section.
{¶24} Dilley contends that his convictions were not supported by sufficient
evidence and against the manifest weight of the evidence because the state failed to prove
that Montgomery suffered from dementia and was not capable of making an informed
decision about her finances. He argues that no one ever gave Montgomery a cognitive
test that indicated she was unable to make reasonable decisions, she was never declared
incompetent by a court, and was never placed in the dementia ward at Stratford
Under R.C. 2923.02(A), “[n]o person, purposely or knowingly, * * * shall engage in conduct 1
that, if successful, would constitute or result in the offense.” Commons. Accordingly, he contends there was no evidence that Montgomery could not
competently decide to give her estate to him.
{¶25} Further, he contends that even if Montgomery suffered from dementia, there
was no evidence he knew about the dementia and knowingly took advantage of it. He
asserts that Montgomery signed the amended trust in the lobby of Stratford Commons, a
public place, and there were many people around who knew that she was signing
documents but did not stop her, including her friend John and a staff member from
Stratford Commons who witnessed her signature. Dilley further contends that it is
apparent he did not defraud Montgomery because the amended trust was never
invalidated, and he received $75,000 as settlement in the interpleader action and is still
the trustee of the amended trust. Dilley’s arguments are without merit.
{¶26} The evidence at trial regarding Montgomery’s deficient mental faculties and
Dilley’s knowledge of her condition was overwhelming. Four staff members from
Stratford Commons testified that Montgomery’s mental faculties declined steadily from
her admission to the facility until her death in 2009. Dr. Hilal, Montgomery’s personal
physician at Stratford Commons, testified that Montgomery had moderate to severe
dementia and would not have had the mental capacity in 2008 to make an informed
decision about transferring the assets of her estate. Frances Koleszar, Montgomery’s
friend for more than 40 years, testified that she noticed obvious changes in Montgomery’s
demeanor and ability to carry on a conversation, and that by December 2007,
Montgomery did not even know who she was. Montgomery’s medical records from those years noted that she was confused and required “maximum assistance” when
making decisions and dealing with financial matters. And significantly, in his deposition
in the interpleader action, which was admitted into evidence, Dilley testified that he had
managed Montgomery’s assets for years, saw her regularly, and was aware of her
declining mental state.
{¶27} This evidence, combined with (1) Dilley’s false statement to Benjamin, the
notary who witnessed Montgomery’s signature, that the changes would make him the
executor of Montgomery’s will, (2) his failure to disclose to Smith Barney in April 2008
that he was now the sole beneficiary of Montgomery’s trust, and (3) his subsequent
attempts to deny any knowledge about the transaction, unequivocally demonstrates that
Dilley knew of Montgomery’s diminished mental capacity and took advantage of her
condition for his own financial gain.
{¶28} Dilley’s argument that his receipt of $75,000 in the interpleader action and
the continuing validity of the trust demonstrate he did nothing wrong is not persuasive.
Both David Gareau, counsel for Holy Family Cancer Center, and Save-A-Pet founder
Arthur Kaplansky, testified that the charities settled with Dilley to avoid the cost of
litigation and to gain access to the funds, and that the settlement was not a concession that
Dilley had done nothing wrong. They testified further that although the charities
conceded that Dilley could remain as trustee, the agreement had no significance because
all trust funds were disbursed as a result of the settlement; thus Dilley is a trustee of a
trust with no assets. {¶29} The state offered extensive evidence in this case that with knowledge of
Montgomery’s diminished mental capacity, Dilley took valid will and trust documents,
altered them on his work computer to make himself the sole beneficiary of the trust, and
had Montgomery sign them. Further, the parties stipulated that Dilley then filed the
amended trust documents with the probate court on April 24, 2008. In light of this
evidence, the trial court did not lose its way or create a miscarriage of justice in finding
Dilley guilty of attempted theft and tampering with records.
{¶30} Dilley’s conviction for perjury was also not against the manifest weight of
the evidence. Under R.C. 2921.11(A), which prohibits perjury, “[n]o person, in any
official proceeding, shall knowingly make a false statement under oath or affirmation * *
* when [the] statement was material.”
{¶31} The transcript of Dilley’s deposition from the interpleader action, which was
admitted into evidence, demonstrated that on four separate occasions, Dilley testified that
two supervisors or administrators from Stratford Commons witnessed Montgomery’s
signature on the amended trust document. Appellant characterized these people as “the
top people that ran the nursing home.”
{¶32} Dilley’s statements were material because of the possible inferences to be
drawn from the administrators’ presence or absence: the administrators’ presence at the
signing would support an inference that Stratford Commons had no concern regarding
Montgomery’s competence, whereas the administrators’ absence supports an inference that Dilley knew that Stratford Commons would not have allowed Montgomery to change
her trust to make Dilley the sole beneficiary.
{¶33} Dilley’s deposition testimony, however, directly contradicted the trial
testimony of nurse Kennedy-Williams and notary Benjamin. Both Kennedy-Williams
and Benjamin testified that there were no administrators from Stratford Commons either
at or standing around the table when Montgomery signed the amended trust documents.
{¶34} The weight of the evidence and the credibility of the witnesses are matters
primarily for the trier of fact to assess. State v. Bradley, 8th Dist. No. 97333,
2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967).
In light of Kennedy-Williams’s and Benjamin’s testimony contradicting Dilley’s
deposition testmony, the trial court did not lose its way in finding that Dilley knew his
testimony was false when given and hence, was guilty of perjury.
{¶35} The first and second assignments of error are therefore overruled. B.
Postrelease Control
{¶36} At sentencing, the trial court advised Dilley that his sentence was subject to
“three years mandatory postrelease control following the completion of your prison
sentence.”
{¶37} In his third assignment of error, Dilley contends that the matter must be
remanded for a de novo resentencing because the trial court failed to properly impose
postrelease control. Specifically, he contends that the trial court improperly told him that
postrelease control was mandatory, when in fact, for third degree felonies that are not felony sex offenses and do not involve physical harm to the victim (such as involved
here), postrelease control is discretionary with the parole board.
{¶38} In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332,
the Ohio Supreme Court held that where postrelease control was erroneously imposed,
resentencing is limited to the proper imposition of postrelease control. Id. The
defendant is not entitled to be resentenced on the entire sentence; only the portion that is
void may be vacated and otherwise amended. State v. Gregley, 8th Dist. No. 97469,
2012-Ohio-3450.
{¶39} In this case, the trial court admittedly erred in telling Dilley that postrelease
control was mandatory. The journal entry of sentencing, however, correctly stated that
postrelease control was discretionary. Furthermore, defense counsel informed the court
at oral argument that in September 2012, the trial court granted Dilley’s motion for
judicial release and reduced his prison term to two years of community control sanctions
under the control of the probation department. Thus, Dilley is no longer in prison.
{¶40} Under these circumstances, we hold that any error in the imposition of
postrelease control was harmless. Because the journal entry of sentencing was correct,
Dilley was never actually subject to three years mandatory postrelease control, even
though the trial court so advised him. Furthermore, Dilley is out of prison and subject
to up to three years postrelease control only if he violates the community control
sanctions, and the court imposes the remainder of the original prison sentence.
Accordingly, the third assignment of error is overruled. {¶41} Affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
PATRICIA ANN BLACKMON, A.J., and MELODY J. STEWART, J., CONCUR