State v. Napper

2012 Ohio 1028

Opinion

[Cite as State v. Napper, 2012-Ohio-1028.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Sheila G. Farmer, J. -vs- : : SHAUN D. NAPPER : Case No. 11CAA080073 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 10CRI060336

JUDGMENT: Affirmed

DATE OF JUDGMENT: March 13, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

DOUGLAS DUMOLT SHAUN D. NAPPER, PRO SE 140 North Sandusky Street 1688 North 4th Street 3rd Floor Columbus, OH 43201 Delaware, OH 43015 Delaware County, Case No. 11CAA080073 2

Farmer, J.

{¶1} On March 2, 2010, appellant, Shaun Napper, engaged the services of an

attorney, Valerie Roller, Esq. Appellant agreed to the fee arrangement and gave Ms.

Roller a check for $1,000.00. Ms. Roller represented appellant in a pretrial the next

day. A few days later, Ms. Roller discovered the $1,000.00 check had bounced. Ms.

Roller gave appellant over a month to make good on the check, but appellant failed to

do so.

{¶2} On June 25, 2010, the Delaware County Grand Jury indicted appellant on

one count of passing bad checks in violation of R.C. 2913.11 and one count of

possessing criminal tools in violation of R.C. 2923.24. The latter count was

subsequently dismissed.

{¶3} A jury trial commenced on June 2, 2011. The jury found appellant guilty

as charged. By judgment entry filed July 21, 2011, the trial court sentenced appellant to

two years of community control.

{¶4} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶5} "IT WAS ERROR AND AN ABUSE OF PROCESS FOR THE APPELLEE

TO USE A CRIMINAL PROCESS FOR THE COLLECTION OF A CIVIL DEBT."

II

{¶6} "IT WAS ERROR FOR THE TRIAL COURT TO DENY DEFENDANT'S

RULE 29 MOTION FOR ACQUITTAL, AS UPON CONSIDERATION OF ALL THE

EVIDENCE, THE PROSECUTION FAILED TO ESTABLISH THE ELEMENTS OF Delaware County, Case No. 11CAA080073 3

CRIMINAL INTENT TO DEFRAUD THE PAYEE AND KNOWLEDGE THAT THE

CHECK WOULD NOT BE PAID AT THE TIME IT WAS ISSUED AND WAS NOT

REFUNDABLE."

III

{¶7} "IT IS ERROR TO FIND THAT APPELLANT COULD BE FOUND GUILTY

OF A CRIMINAL ACT, PUNISHABLE BY THE STATE ALONE FROM A MERE CIVIL

WRONG, ACTIONABLE BY CIVIL LITIGATION."

IV

{¶8} "IT WAS ERROR NOT TO ASSIGN THE BURDEN OF ESTABLISHING

THE FAIRNESS AND REASONABLENESS OF ROLLER'S SERVICES TO THE

DEFENDANT BEFORE ADJUDICATING HIM GUILTY."

V

{¶9} "IT WAS ERROR TO FIND THE APPELLANT GUILTY WITHOUT THE

STATE HAVING ESTABLISHED ALL ELEMENTS OF THE CRIME FOR WHICH HE

WAS BEING CHARGED."

I, II, III, IV, V

{¶10} In his assignments of error, appellant challenges his conviction for passing

a bad check. Appellant claims a criminal action was improper for the collection of a civil

debt, his CrimR. 29 motion for acquittal should have been granted, and his conviction

was against the sufficiency and manifest weight of the evidence. We disagree.

{¶11} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks (1991), 61 Ohio St.3d 259. "The relevant inquiry is whether, after viewing the Delaware County, Case No. 11CAA080073 4

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." Jenks at

paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307. On

review for manifest weight, a reviewing court is to examine the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of witnesses and

determine "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 reversed and

a new trial ordered." State v. Martin (1983), 20 Ohio App.3d 172, 175. See also, State

v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new trial "should be

exercised only in the exceptional case in which the evidence weighs heavily against the

conviction." Martin at 175.

{¶12} Crim.R. 29 governs motion for acquittal. Subsection (A) states the

following:

{¶13} "The court on motion of a defendant or on its own motion, after the

evidence on either side is closed, shall order the entry of a judgment of acquittal of one

or more offenses charged in the indictment, information, or complaint, if the evidence is

insufficient to sustain a conviction of such offense or offenses. The court may not

reserve ruling on a motion for judgment of acquittal made at the close of the state's

case."

{¶14} The standard to be employed by a trial court in determining a Crim.R. 29

motion is set out in State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus:

{¶15} "Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of

acquittal if the evidence is such that reasonable minds can reach different conclusions Delaware County, Case No. 11CAA080073 5

as to whether each material element of a crime has been proved beyond a reasonable

doubt."

{¶16} Appellant was convicted of passing a bad check in violation of R.C.

2913.11(B) which states, "[n]o person, with purpose to defraud, shall issue or transfer or

cause to be issued or transferred a check or other negotiable instrument, knowing that it

will be dishonored or knowing that a person has ordered or will order stop payment on

the check or other negotiable instrument." Subsection (C)(2) states the following:

{¶17} "(C) For purposes of this section, a person who issues or transfers a

check or other negotiable instrument is presumed to know that it will be dishonored if

either of the following occurs:

{¶18} "(2) The check or other negotiable instrument was properly refused

payment for insufficient funds upon presentment within thirty days after issue or the

stated date, whichever is later, and the liability of the drawer, indorser, or any party who

may be liable thereon is not discharged by payment or satisfaction within ten days after

receiving notice of dishonor."

{¶19} R.C. 2913.01(B) states "defraud" "means to knowingly obtain, by

deception, some benefit for oneself or another, or to knowingly cause, by deception,

some detriment to another."

{¶20} Appellant argues it was an abuse of process for Ms. Roller to use the

criminal process for the collection of a bad check. We find this argument to lack merit.

Appellant's check bounced and appellant refused to make good on the check after over

a month and a ten day demand letter. Ms. Roller took the matter to the police

department. When Westerville Police Officer John Snyder conducted an investigation Delaware County, Case No. 11CAA080073 6

and spoke with appellant, appellant admitted "that he knew the check was not going to

be honored as he had a car payment coming up at the same time he wrote the check,

and that he didn't have enough money in the account to cover the check." T. at 161.

{¶21} Appellant argues the state did not prove "purpose to defraud" because the

insufficient funds was the result of negligence, and appellant had called Ms. Roller after

giving her the check and told her that the check would probably be dishonored. Further,

appellant argues the $1,000.00 check was not for services rendered, but was a retainer

fee. After performing legal services for appellant, appellant paid Ms. Roller with an

additional $500.00 check which was honored by his bank.

{¶22} Ms. Roller testified she told appellant her fee was $300.00 per hour and it

would take five to six hours to prepare his case for a pretrial scheduled for the next day.

T. at 117. The parties agreed to a flat fee of $1,500.00, and appellant signed a contract

listing the $300.00 per hour figure. T. at 151-152; Defendant's Exhibit A. Appellant

gave her a $1,000.00 check and then gave her a $500 check the next day in order to

have time to transfer funds into his account. T. at 119-120. Ms. Roller deposited the

$1,000.00 check and worked on appellant's case for over five hours. T. at 124-125.

{¶23} A few days after providing legal services for appellant by attending the

pretrial, appellant informed Ms. Roller that the $1,000.00 check might be dishonored. T.

at 126-129. Once Ms. Roller found the $1,000.00 check was dishonored, she prepared

a request to withdraw as counsel. T. at 128. Thereafter, appellant accused Ms. Roller

of bad representation. T. at 132.

{¶24} After giving appellant over a month to make good on the check, Ms. Roller

sent appellant a demand letter on April 15, 2010, requesting that the amount be paid. Delaware County, Case No. 11CAA080073 7

T. at 133, 134-135; State's Exhibit 2. Ms. Roller has never received payment on the

bounced check. T. at 140.

{¶25} Defendant's Exhibits B and C indicate the two checks ($1,000.00 and

$500.00) were for "legal services" regarding a Franklin County Municipal Court case

wherein appellant was the plaintiff.

{¶26} We find the evidence presented established the $1,000.00 check was

given for legal services, Ms. Roller provided legal services, the check was dishonored

by appellant's bank, and appellant did not make good on the check after over a month

and a ten day demand letter.

{¶27} Upon review, we find sufficient evidence to support the conviction and no

manifest miscarriage of justice.

{¶28} Assignments of Error I, II, III, IV, and V are denied.

{¶29} Attached to appellant's appellate brief is an appendix entitled "B. Probable

Issues for Review and Part of the Record Ineffective Assistance of Counsel Index."

Pursuant to App.R. 16(A)(3), an appellant should include in the brief "[a] statement of

the assignments of error presented for review, with reference to the place in the record

where each error is reflected."

{¶30} Upon review, we find the issue of ineffective assistance of counsel is not

properly before this court as an assignment of error and therefore will not be addressed. Delaware County, Case No. 11CAA080073 8

{¶31} The judgment of the Court of Common Pleas of Delaware County, Ohio is

hereby affirmed.

By Farmer, J.

Delaney, P.J. and

Hoffman, J. concur.

_s/ Sheila G. Farmer____________

_s/ Patricia A. Delaney__________

_s/ William B. Hoffman___________

JUDGES

SGF/sg 228 IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : SHAUN D. NAPPER : : Defendant-Appellant : CASE NO. 11CAA080073

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Delaware County, Ohio is affirmed. Costs to

appellant.