State v. Kuhar

Ohio Court of Appeals

State v. Kuhar

2016 Ohio 5280

Ohio Court of Appeals·Decided August 8, 2016·No. 15CA0053-M·Published·Cited by 4 cases

Opinion

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

STATE OF OHIO C.A. No. 15A0053-M Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE

JOHN D. KUHAR COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO

Appellant CASE No. 14 CR 0664

DECISION AND JOURNAL ENTRY Dated: August 8, 2016

WHITMORE, Judge.

{¶1} Appellant, John D. Kuhar, appeals from the June 16, 2015 judgment of the Medina County Court of Common Pleas. This Court affirms.

I

{¶2} Mr. Kuhar owns Medina Motorsport, Inc., a company that does custom restoration work on automobiles and builds engines, transmissions and differentials. Medina Motorsport, Inc. has been in existence for approximately thirty-six years. In March of 2014, Robert Wattenbarker contacted Mr. Kuhar regarding a remanufactured Richmond transmission for his ‘77 Chevy El Camino. As a down payment for the transmission, Mr. Wattenbarker mailed a check, dated April 3, 2014, to “Medina Motorsport[,] Inc[.]” in the amount of $1,600. The record indicates that Mr. Kuhar received the check and deposited it into his RBS Citizens Bank, Charter One account.

{¶3} After contacting Mr. Kuhar several times regarding his progress on the transmission, and not getting a satisfactory response, Mr. Wattenbarker contacted Detective Mary Gross with the Medina Police Department. In early July of 2014, Detective Gross and another detective visited Mr. Kuhar at his place of business about this issue. At that time, Mr. Kuhar admitted to “enter[ing] into a business arrangement or an agreement with Mr. Wattenbarker for this transmission.” Detective Gross testified that during her initial conversation with Mr. Kuhar, he stated that Mr. Wattenbarker “had become somewhat irritating with the phone calls” because “[h]e was calling a lot to check on the transmission.” Detective Gross also stated that Mr. Kuhar advised her that he had ordered new parts for the transmission, but due to his workload, he “just hadn’t gotten to it yet.” Detective Gross informed Mr. Kuhar that Mr. Wattenbarker was “not happy about the situation,” because he paid money “and had not received anything as of yet for that money that he had paid.” At that time, Detective Gross “strongly encouraged” Mr. Kuhar to contact Mr. Wattenbarker in order to resolve the issue.

{¶4} Subsequently, Detective Gross learned that Mr. Kuhar contacted Mr.

Wattenbarker via telephone two days later. However, as of September of 2014, Mr. Wattenbarker still had not received his transmission or a refund of the $1,600 down payment for the transmission.

{¶5} Mr. Kuhar was indicted on two counts of theft in violation of R.C. 2913.02(A)(2)

and R.C. 2913.02(A)(3), felonies of the fifth degree. He waived his right to a jury trial and a bench trial ensued. The trial court found Mr. Kuhar guilty on both counts of theft and sentenced him to two years of community control. It also imposed the following sanctions and conditions: (1) drug/alcohol screening; (2) no new offenses, including misdemeanors; and (3) theft counseling through Alternative Paths. Upon any violation of this sentence, the trial court would

sentence Mr. Kuhar to a prison term of two years. Further, prior to sentencing, the record indicates that Mr. Kuhar paid restitution to Mr. Wattenbarker in the amount of $1,600.

{¶6} Mr. Kuhar now appeals, raising three assignments of error.

II

Assignment of Error Number One

THE TRIAL COURT ERRED IN ALLOWING THE STATE TO QUESTION [MR. KUHAR] REGARDING SIMILAR ACTS[.]

{¶7} In his first assignment of error, Mr. Kuhar states that the trial court erred in allowing the State to cross-examine him regarding other acts. Specifically, Mr. Kuhar alleges that the State attempted to prove that he committed the act of theft against Mr. Wattenbarker by eliciting testimony regarding unfinished projects for other discontented customers.

{¶8} The State argues that it properly used other acts evidence to show that Mr. Kuhar never intended to perform the transmission work, or refund the money, at the time he and Mr. Wattenbarker entered into the contract. Further, the State argues that (1) Mr. Kuhar suffered no prejudice due to this line of questioning; (2) if an error existed, it was harmless; and (3) even in excising this line of questioning from the record, an overwhelming amount of evidence exists as to Mr. Kuhar’s guilt.

{¶9} It is well-settled that the trial court possesses broad discretion in determining the admission of evidence. State v. Maurer, 15 Ohio St.3d 239, 265 (1984). “As such, this [C]ourt will not overturn a trial court's evidentiary determination in the absence of an abuse of discretion that resulted in material prejudice to the defendant.” State v. Myers, 9th Dist. Summit No. 25737, 2012–Ohio–1820, ¶ 9. An abuse of discretion “implies that the court's attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶10} Pursuant to Evid.R. 404(B):

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

(Emphasis added.) “Proof of one of these purposes must go to an issue which is material in proving the defendant’s guilt for the crime at issue.” State v. Auerswald, 9th Dist. Medina No. 11CA0053-M, 2013-Ohio-742, ¶ 10, citing State v. DePina, 21 Ohio App.3d 91, 92 (9th Dist.1984), citing State v. Burson, 38 Ohio St.2d 157, 158 (1974). Additionally, R.C. 2945.59 provides:

In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant’s scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.

{¶11} In State v. Roper, 9th Dist. Summit No. 22566, 2005-Ohio-6327, ¶ 9, rev.’d on other grounds, this Court stated that:

[T]he standard for determining admissibility of such evidence is strict, and the statute section and rule must be construed against admissibility. * * * However, this strict admissibility standard must be considered contemporaneously with the fact that the trial court “occupies a ‘superior vantage’ in determining the admissibility of evidence.”

Id., quoting State v. Ali, 9th Dist. Summit No. 18841, 1998 WL 597654, *2 (Sept. 9, 1998), quoting State v. Rutledge, 9th Dist. Lorain No. 96CA006619, 1997 WL 760916, *4 (Nov. 19, 1997). “Further, in State v. Curry, 43 Ohio St.2d 66, 72-73 (1975), the Supreme Court of Ohio stated that ‘other acts’ testimony which forms part of the immediate background of the charged crime may be admissible as demonstrating a scheme, plan, or system.” Auerswald at ¶ 11. This

is because “[a] jury is entitled to know the ‘setting’ of a case, including evidence of other crimes that explains the circumstances or tends logically to prove any element of the offense charged.” State v. Thomas, 9th Dist. Lorain No. 10CA009756, 2011-Ohio-1629, ¶ 17, quoting State v. Wilkinson, 64 Ohio St.2d 308, 317 (1980), quoting United States v. Roberts, 548 F.2d 665, 667 (6th Cir.1977).

{¶12} In the present matter, over defense objection, the State cross-examined Mr. Kuhar as follows:

[The State]: * * * Do you recall the people sitting in the back of the courtroom?

[Mr. Kuhar]: Pardon?

[The State]: Do you recall the people sitting in the back of the courtroom? Do you recall them?

[Mr. Kuhar]: Yeah, I do.

[The State]: Are they customers of yours?

[Mr. Kuhar]: Yes.

[The State]: Was any of their property recovered by the Medina police the day you were arrested?

[Mr. Kuhar]: Not that I know of.

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