State v. Pelfrey

2018 Ohio 2427

• Court: Ohio Court of Appeals
• Decided: June 22, 2018
• Docket: 27474
• Status: Published

Opinion

[Cite as State v. Pelfrey, 2018-Ohio-2427.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 27474 : v. : Trial Court Case No. 15-CR-1306 : GREGORY D. PELFREY : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 22nd day of June, 2018.

MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee

J. DAVID TURNER, Atty. Reg. No. 0017456, P.O. Box 291771, 101 Southmoor Circle NW, Kettering, Ohio 45429 Attorney for Defendant-Appellant

............. -2-

FROELICH, J.

{¶ 1} Gregory D. Pelfrey was convicted in the Montgomery County of Common

Pleas of theft from an elderly or disabled adult ($37,500 or more, but less than $150,000),

a second-degree felony, and two counts of tampering with evidence, third-degree

felonies. The charges stemmed from allegations that Pelfrey obtained a power of

attorney from his grandmother, altered the date of it, and used it, unbeknownst to the

grandmother, to obtain a $75,000 mortgage loan on her home; Pelfrey’s grandmother did

not receive the money. After defendant was aware of the criminal investigation,

defendant had two different individuals fabricate documents to help his case.

{¶ 2} Pelfrey appeals from his conviction, raising five assignments of error. He

argues that (1) the trial court erred in excluding his expert witness, (2) the trial court erred

in denying his motion to continue the trial, (3) his convictions were based on insufficient

evidence and against the manifest weight of the evidence, (4) the trial court violated his

right to a speedy trial, and (5) the trial court erred in allowing parol evidence regarding the

power of attorney.

{¶ 3} For the following reasons, the trial court’s judgment will be affirmed.

I. Background and Procedural History

{¶ 4} For approximately 48 years, Judith Daniel resided in a house on Connie Drive

in Franklin, Ohio. Daniel and her husband purchased the home in 1967, the mortgage

loan was paid off in 1983, the couple had raised their children there, and her husband

died there in 2012. In March 2014, Daniel was 73 years old, and the home was in need

of repair.

{¶ 5} National Title Company in Centerville, Ohio, closes loans for people when -3-

they buy and sell real property. National Title’s owner, Ray Woodie, also arranges loans

for individuals through a network of private lenders; these loans usually involve

situations where the borrower intended to “flip” the property, i.e., sell it again quickly.

Woodie had previously arranged for private loans for Greg Dart, an acquaintance of

Daniel’s grandson, Pelfrey. In February 2014, Dart contacted Woodie, asking if Woodie

could arrange for Pelfrey to obtain a private loan. Pelfrey told Woodie that he was going

to fix up his grandmother’s house. Woodie arranged for Pelfrey to obtain a $75,000 loan

from Troy Pinkerton, a participant in Woodie’s private network of lenders; Daniel’s house

would serve as security for the loan.

{¶ 6} On March 31, 2014, Pelfrey went to National Title to close on the private loan.

When Pelfrey did not bring his grandmother to National Title and did not have a power of

attorney for her, Woodie told Pelfrey that it was necessary to have Daniel’s power of

attorney to close on the loan.

{¶ 7} According to Daniel, that same day (March 31), Pelfrey approached her

about signing a power of attorney. Pelfrey told Daniel that he had sold his business to

Dart for $100,000, but that Dart was not going to pay the first $50,000; instead, Dart would

fix Daniel’s house. Pelfrey told Daniel that he needed her to sign a power of attorney so

that he could authorize Dart to perform the work. Daniel testified that, on March 31, she

picked up Pelfrey at his girlfriend’s residence, and they drove to a bank where Daniel had

a document notarized granting Pelfrey a power of attorney for that one day. Daniel was

apprehensive about the power of attorney and called Pelfrey afterward to see if he had

used it; Pelfrey told Daniel that he had not.

{¶ 8} On April 1, 2014, Woodie received a phone call from a man identifying -4-

himself as Pelfrey, asking Woodie to explain the transaction to his grandmother. Woodie

spoke to the woman on the phone, and he believed he was talking to Daniel. At trial,

Daniel denied that she had spoken with Woodie.

{¶ 9} Later that day (April 1), Pelfrey returned to National Title with the power of

attorney. While there, Pelfrey, as attorney in fact for Daniel, closed on a one-year

$75,000 loan from Pinkerton; neither Daniel nor Pinkerton was present. Under the terms

of the promissory note, Daniel agreed to pay Pinkerton $991.13 for 12 months, followed

by a balloon payment of $71,390.40 on April 1, 2015. The note was secured by a

mortgage on Daniel’s residence. Pelfrey received a check made payable to Daniel for

$71,174 from National Title. (The check was not for the full $75,000 due to closing

costs.) Daniel testified that she never would have signed the power of attorney if she

knew Pelfrey were going to obtain a mortgage loan and that she only signed the power

of attorney because of his statement that it was needed for Dart to do repairs on her

home.

{¶ 10} The power of attorney presented to Woodie and recorded with the Warren

County Recorder’s Office was dated and notarized on April 1, 2014. At trial, Daniel

acknowledged that her initials and signature were on the document, but she said it looked

different from the one she had signed. Daniel had previously told Detective Daniel

Osterfeld of the Centerville Police Department that Pelfrey had approached her about the

power of attorney on April 1, not March 31.

{¶ 11} The record does not reflect when the check to Daniel was cashed and how

the check was spent, but no money was provided to Daniel. Daniel testified that Dart

and Pelfrey came to her home a couple of times to discuss possible repairs. Daniel -5-

called Pelfrey the day after they had spoken about the repairs, and she told Pelfrey to

stop the work on her house, because she did not think $50,000 would cover it. Daniel

testified that somebody built a small deck on the front of her house (but did not finish it),

and a little room was built in her garage; she thought that the builder worked for Dart. It

is unclear when that work on her house occurred.

{¶ 12} On June 13, 2014, Daniel learned that the power of attorney had been used

to secure a loan and that there was a lien on her house. Daniel also received

correspondence from the Warren County Recorder’s Office, which prompted her to call

Pelfrey; Pelfrey came to Daniel’s residence, took the correspondence, and said that he

would take care of it. However, Daniel repeatedly received bills from Pinkerton that she

was unable to pay.

{¶ 13} At some point, Daniel spoke with Detective Osterfeld about the power of

attorney and the lien on her house. Osterfeld spoke with Pelfrey about the March

31/April 1 transaction in late November 2014.

{¶ 14} On April 29, 2015, Daniel executed a quit claim deed conveying her

property, in lieu of foreclosure, to Pinkerton. Daniel vacated the residence in May 2015.

Pinkerton testified that he performed approximately $25,000 in repairs on the property

and that he had a contract to sell the property for $110,000.

{¶ 15} In May 2015, Pelfrey was residing in Miami, Florida. There, he met Ruken

Oral and began a relationship with her; Pelfrey introduced himself as Ryan Owen.

{¶ 16} On November 6, 2015, Pelfrey was indicted for (1) theft from an elderly or

disabled adult ($37,500 or more, but less than $150,000/ beyond scope of consent), in

violation of R.C. 2913.02(A)(2) (Count 1); (2) forgery (uttering a forged power of attorney), -6-

in violation of R.C. 2913.31(A)(3) (Count 2); and (3) theft from an elderly or disabled adult

($37,500 or more, but less than $150,000/ deception), in violation of R.C. 2913.02(A)(3).

Pelfrey was not immediately served with the indictment. The record reflects that, at this

time, Pelfrey was incarcerated in Danville, Kentucky, on unrelated charges.

{¶ 17} In January 2016, Oral learned Pelfrey’s actual name upon looking up

Pelfrey’s ex-wife, whose name Pelfrey had mentioned. When Oral confronted Pelfrey

about his identity, Pelfrey became angry and told Oral not to trust anyone named

Detective Osterfeld if the detective ever contacted her.

{¶ 18} On February 8, 2016, Pelfrey sent handwritten instructions to Oral, asking

her to conduct research on Dart and for her to prepare an affidavit with specific averments

that Pelfrey provided. Stated generally, the affidavit by Oral was to describe a sexual

relationship between Oral and Dart, describe Dart as the person behind the power of

attorney and the National Title loan, and indicate that Pelfrey was misled by Dart

regarding the loan. Pelfrey asked Oral to mail three original copies back to him, noting,

“This is very important to getting the charge dropped and released.” Oral had an affidavit

prepared, as instructed. The typed date on the affidavit was January 7, 2015, but it was

notarized on February 25, 2016, in New Jersey, where Oral was then residing.

{¶ 19} On June 29 or 30, 2016, Pelfrey, while incarcerated in Kentucky, completed

paperwork requesting that he be returned to Ohio to face the pending charges, pursuant

to the Interstate Agreement on Detainers (IAD), codified in Ohio as R.C. 2963.30.1 On

July 6, 2016, Pelfrey was served with the indictment in Danville, Kentucky, and returned

1 The paperwork is not in the record. Pelfrey’s motion to dismiss states that he signed the paperwork on June 29. At the October 18, 2016 arraignment on the B Indictment, the prosecutor stated that Pelfrey singed the paperwork on June 30. -7-

to Ohio. Pelfrey appeared in Montgomery County, Ohio, for arraignment on July 12,

2016.

{¶ 20} By July 2016, Oral believed Pelfrey was being “disloyal” to her, and on July

6, 2016, Oral contacted Detective Osterfeld. Oral met with the detective on July 13,

2016, and provided him the handwritten instructions by Pelfrey (State’s Exhibit 11) and

the typed and notarized affidavit she prepared (State’s Exhibit 12). Oral testified that

none of the statements in the affidavit was true. She stated that she did not know Dart

when she prepared the affidavit.

{¶ 21} The trial court set a scheduling conference for July 26, 2016. Pelfrey’s

counsel moved for a continuance to gather additional discovery; the trial court reset the

conference for August 9, 2016. (The document containing counsel’s motion and the

court’s entry was filed on July 27.) At the August 9, 2016 conference, the trial court

scheduled the final pretrial conference for October 4 and the trial for October 17, 2016,

and Pelfrey’s counsel requested a continuance until that time; the court granted the

continuance. (A written motion for continuance and the court’s entry granting the motion

were filed on August 10, 2016.)

{¶ 22} In the late summer of 2016, while Pelfrey was in the Montgomery County

Jail, Pelfrey became acquainted with Katrina Bercot, who spoke with him and visited him

at the jail. Bercot’s testimony is somewhat unclear, but it appears that her boyfriend was

incarcerated with Pelfrey at the Montgomery County Jail and that her boyfriend “got [her]

started” with helping Pelfrey.

{¶ 23} In September 2016, Bercot received handwritten instructions from Pelfrey.

The instructions told Bercot to type up a handwritten agreement that he was providing, -8-

print it, photocopy the agreement with signatures that he was providing, destroy the

signatures, and mail three copies back to Pelfrey. Pelfrey also had a series of phone

calls with Bercot (which were recorded by the jail), where they talked about having Bercot

type up a document, put signatures on it, and deliver it to Pelfrey’s attorney. The

agreement stated, in its entirety:

I Greg Dart agree to complete the renovation and remodel at 3523

Connie St, Franklin, oh 45005. Pay any outstanding balance owed to any

contractor, for work completed to date, and repay the $3,000.00 I borrowed

from you, for the 4pts to generate the loan against your Grandmas house

from the proceeds at closing.

The renovation and remodel will be completed no later than

September 1, 2014 at which time I will pay the loan off, and complete the

purchase of Go reclaimed.

In exchange, I expect the proceeds from the loan to be signed over

and endorsed to [I]ntrigue Property Management, So I can Handle the

dispensing of any and all funds for record purposes, full access and rights

to go reclaimed, LLC including but not limited to any unsold reclaimed

material and inventory, Barns needing to be Dismantled, customer and

vender contracts, Tools owned by the company, and any phone number,

email, or Domain associated with business.

This agreement will be considered Valid and Binding upon both

parties agreeing to the terms Herein and signing and Dating below.

(Grammatical, punctuation, and capitalization errors sic.) The typed agreement -9-

appeared to be signed by two individuals, Pelfrey and presumably Dart (illegible), on April

1, 2014. Bercot later provided the handwritten instructions (State’s Exhibit 7), the

handwritten agreement (State’s Exhibit 8), and the typed agreement (State’s Exhibit 9) to

the police.

{¶ 24} Bercot testified that she also sent text messages to an individual on

Pelfrey’s behalf, as instructed by Pelfrey. The messages told the recipient not to lie

about his (the recipient’s) involvement in the loan, his presence at the closing on April 1,

and about being with Pelfrey when the check was cashed. The messages show “Greg”

(presumably Dart) as the recipient, but Bercot did not know whom she had texted. (See

State’s Exhibit 13.) Bercot testified that she visited Pelfrey in jail and got the exact

wording and phone number for the messages from Pelfrey.

{¶ 25} The office of Pelfrey’s attorney received a copy of the purported April 1,

2014 agreement between Pelfrey and Dart, and it was relayed to Pelfrey’s attorney. On

October 7, 2016, Pelfrey’s counsel provided the prosecutor a copy of the purported April

1, 2014 agreement as part of counsel’s reciprocal discovery in this case.

{¶ 26} The same day (October 7), Pelfrey was indicted for tampering with

evidence, in violation of R.C. 2921.12(A)(2), based on his conduct regarding the affidavit

in February 2016 (B Indictment).

{¶ 27} Pelfrey appeared for his arraignment on the new tampering with evidence

charge on October 18, 2016. At that time, the prosecutor stated that “we have a new

trial date” of December 12, 2016, for both cases. The prosecutor noted that Pelfrey’s

speedy trial time on the initial charges was running under the IAD, and the December

date met those requirements. On the same date, the prosecutor informed Pelfrey’s -10-

attorney that additional discovery would be forthcoming that might implicate Pelfrey with

another additional criminal charge. Later that month, Pelfrey’s counsel received

information that the April 2014 agreement may have been fabricated.

{¶ 28} On November 16, 2016, Pelfrey was indicted for tampering with evidence,

in violation of R.C. 2921.12(A)(2), based on his conduct between September 1, 2016 and

October 14, 2016 related to the purported April 1, 2014 agreement (C Indictment).

Pelfrey’s counsel moved to withdraw as counsel the same day.

{¶ 29} The trial court appointed new counsel for Pelfrey on November 28, 2016.

The following day (November 29), Pelfrey and his counsel appeared for a final pretrial

conference. Counsel told the court that he had informed Pelfrey that he (the attorney)

was scheduled for trial on December 12 before a different judge and that he needed

additional time to get ready for this case. Counsel indicated that Pelfrey was willing to

sign a time waiver to accommodate a continuance of the trial date. Pelfrey told the court

that he understood that the time waiver applied to “all three” indictments. Pelfrey signed

the time waiver; the waiver form referenced R.C. 2945.71, but not the IAD. On

November 30, 2016, the trial court set the pretrial conference for February 21, 2017, and

the trial for March 6, 2017.

{¶ 30} On December 13, 2016, the parties met for a scheduling conference, at

which time the parties and the court discussed Pelfrey’s speedy trial deadline under the

IAD. The prosecutor indicated that Pelfrey needed to sign a new time waiver, because

his prior form did not include the IAD; Pelfrey indicated that he would not sign the form.

The prosecutor initially stated that the deadline was December 19, 2016; defense counsel

stated that he could not be prepared by then and had a conflict for that date. After looking -11-

at the case docket, the prosecutor then noted that Pelfrey’s speedy trial time under the

IAD was extended due to Pelfrey’s original counsel’s request for a continuance from

August 10 to October 17, 2016. Pursuant to that discussion, the trial court filed a revised

notice of appearance, setting the pretrial conference for January 17, 2017, and trial for

January 30, 2017. Defense counsel reiterated that Pelfrey would not agree to the

January 30 trial date, but he (counsel) would be ready for trial then.

{¶ 31} On January 10, 2017, Pelfrey filed several pretrial motions, including a

motion for the approval of a handwriting expert and fees. The motion indicated that the

expert would analyze handwritten notations on the power of attorney. The trial court

granted the motion on January 23, 2017.

{¶ 32} On January 17, 2017, Pelfrey filed a motion to dismiss, claiming that his

180-day right to a speedy trial under the IAD had lapsed.2 Pelfrey argued that the motion

for continuance filed by prior defense counsel in August 2016 should not have tolled the

IAD speedy trial time, and the State was required to try Pelfrey by December 28, 2016.

The trial court overruled the motion.

{¶ 33} The matter proceeded to a jury trial on January 30, 2017. Before jury

selection, the State sought to exclude Pelfrey’s handwriting expert on the ground that the

expert’s report was untimely. The trial court sustained the motion. At trial, Pelfrey

proffered the testimony of his handwriting expert, the expert report, and the documents

that the expert had examined.

2 On January 9, 2017, Pelfrey filed a pro se motion to dismiss on the same grounds. The trial court overruled the pro se motion as improper because Pelfrey was represented by counsel. -12-

{¶ 34} On February 1, 2017, after deliberations, the jury found Pelfrey guilty of all

counts. The court ordered a presentence investigation; both parties file sentencing

memoranda. At sentencing, the trial court merged Counts 1 and 2 into Count 3 and

sentenced Pelfrey to eight years for theft from an elderly or disabled adult ($37,500-

$150,000/deception). The court imposed 30 months for each of count of tampering with

evidence, to be served consecutively to each other and to Count 3, for an aggregate

sentence of 13 years in prison. Pelfrey was also ordered to pay $85,000 in restitution to

Daniel and court costs.3

{¶ 35} Pelfrey appeals from his convictions. We will address the assignments of

error in an order that facilitates our analysis.

II. Sufficiency and Manifest Weight of the Evidence

{¶ 36} In his third assignment of error, Pelfrey claims that his convictions were

based on insufficient evidence and against the manifest weight of the evidence.

{¶ 37} A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to sustain the verdict as a

matter of law. State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10,

citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “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),

paragraph two of the syllabus.

3 The $85,000 restitution order reflected the value of Daniel’s home prior to its conveyance to Pinkerton. Pinkerton testified that he was selling the home for $110,000 after performing $25,000 in repairs. -13-

{¶ 38} In contrast, “a weight of the evidence argument challenges the believability

of the evidence and asks which of the competing inferences suggested by the evidence

is more believable or persuasive.” Wilson at ¶ 12; see Eastley v. Volkman, 132 Ohio

St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19 (“ ‘manifest weight of the evidence’

refers to a greater amount of credible evidence and relates to persuasion”). When

evaluating whether a conviction is against the manifest weight of the evidence, the

appellate court must review the entire record, weigh the evidence and all reasonable

inferences, consider witness credibility, and determine whether, in resolving conflicts in

the evidence, 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, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶ 39} Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder’s decisions whether, and to what extent, to credit the testimony of

particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL

476684 (Aug. 22, 1997). The fact that the evidence is subject to different interpretations

does not render the conviction against the manifest weight of the evidence. Wilson at ¶

14. A judgment of conviction should be reversed as being against the manifest weight

of the evidence only in exceptional circumstances. Martin at 175.

{¶ 40} In reviewing challenges based on the sufficiency and/or manifest weight of

the evidence, we consider the evidence admitted at trial. This includes evidence that

was admitted erroneously. State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903

N.E.2d 284; State v. Rosales, 2d Dist. Montgomery No. 27117, 2018-Ohio-197, ¶ 16,

citing State v. Johnson, 2015-Ohio-5491, 55 N.E.3d 648, ¶ 95 (2d Dist.). And, we cannot -14-

consider evidence that was excluded by the trial court.

{¶ 41} Pelfrey makes a general argument that his convictions were based on

insufficient evidence and against the manifest weight of the evidence, because several of

the State’s witnesses were not credible. Pelfrey states in his appellate brief:

The victim in this case, Judy Daniel, is an elderly woman whose testimony

regarding important dates conflicted with the statements she made to the

investigating detective, Detective Osterfeld of the Centerville Police

Department. State’s witness Ray Woodie, who was from National Title,

processed the closing for the note and mortgage, and testified that at the

prompting of Detective Osterfeld, he prepared a scrivener’s affidavit that the

dates he originally inserted in the closing documents were incorrect.

State’s witnesses Karina Bercot and Ruken Oral testified that they were

granted immunity from prosecution in exchange for their testimony.

Witness Oral denied writing a key document, which the Defendant’s expert

witness would have testified, if permitted, that said document matched the

written statement she provided to the Centerville Police Department. The

exclusion of Defendant’s expert witness and reports adversely affected his

ability to present a defense as to that charge.

{¶ 42} In reaching its verdict, the jury was free to believe all, part, or none of the

testimony of each witness and to draw reasonable inferences from the evidence

presented. State v. Baker, 2d Dist. Montgomery No. 25828, 2014-Ohio-3163, ¶ 28. It

was the province of the jury to weigh the evidence and determine whether the State had

proven, beyond a reasonable doubt, that Pelfrey had committed theft, forgery, and -15-

tampering with evidence. State v. Ball, 2d Dist. Clark No. 2017-CA-54, 2018-Ohio-605,

¶ 27.

{¶ 43} In the State’s original indictment, the State charged Pelfrey with knowingly

uttering a forged power of attorney knowing that he was facilitating a fraud; it asserted

that the power of attorney used by him contained dates that he changed from the original

power of attorney signed by Daniel. (See Bill of Particulars, filed Jan. 26, 2017.) The

State further charged Pelfrey with theft of Daniel’s home equity and ownership interest in

her home by (1) exceeding the scope of any consent given by Daniel and (2) misleading

Daniel regarding the use of the power and using a fraudulent power of attorney beyond

the scope authorized by Daniel and after it had been revoked. The B and C Indictments

charged Pelfrey with tampering with evidence based on his causing two false documents

-- Oral’s affidavit and the April 1, 2017 agreement – to be made.

{¶ 44} At trial, the State’s witnesses and exhibits, if believed, provided sufficient

evidence to convict Pelfrey of each of the charged offenses. While Pelfrey argues that

the jury should not have credited some of the witnesses’ testimony, “witness credibility is

not a proper matter on review of the sufficiency of the evidence.” State v. Wilks, 2018-

Ohio-1562, __ N.E.3d __, ¶ 162.

{¶ 45} Through cross-examination, defense counsel challenged various aspects

of the State’s case, and there was some evidence that Daniel signed the power of attorney

on April 1 after talking with Woodie. As a result, the jury could have reasonably

concluded that Daniel was mistaken at trial when she testified that she signed the power

of attorney on March 31, 2014. In addition, there was evidence from which the jury could

have concluded that Pelfrey intended to use the funds to repair Daniel’s home and that -16-

he had begun those repairs. Nevertheless, the jury heard the conflicting evidence and

was tasked with determining each witness’s credibility. Upon review of the entire

transcript, we cannot conclude that the jury lost its way when it credited the State’s version

of events and found Pelfrey guilty as charged.

{¶ 46} Pelfrey’s third assignment of error is overruled.

III. Exclusion of Expert Witness

{¶ 47} In his first assignment of error, Pelfrey claims that the trial court erred by

excluding his expert witness.

{¶ 48} Crim.R. 16(K) provides:

An expert witness for either side shall prepare a written report summarizing

the expert witness’s testimony, findings, analysis, conclusions, or opinion,

and shall include a summary of the expert’s qualifications. The written

report and summary of qualifications shall be subject to disclosure under

this rule no later than twenty-one days prior to trial, which period may be

modified by the court for good cause shown, which does not prejudice any

other party. Failure to disclose the written report to opposing counsel shall

preclude the expert’s testimony at trial.

{¶ 49} The trial court has discretion to regulate discovery in a manner consistent

with Crim.R. 16. Crim.R. 16(L); State v. Mobley, 2d Dist. Montgomery No. 26858, 2016-

Ohio-4579, ¶ 23. If it comes to the court’s attention that a party has not complied with

Crim.R. 16 or the court’s discovery order, the trial court may “order such party to permit

the discovery or inspection, grant a continuance, or prohibit the party from introducing in

evidence the material not disclosed, or it may make such other order as it deems just -17-

under the circumstances.” Crim.R. 16(L)(1).

{¶ 50} The Ohio Supreme Court has held that “[a] trial court must inquire into the

circumstances surrounding a discovery rule violation and, when deciding whether to

impose a sanction, must impose the least severe sanction that is consistent with the

purpose of the rules of discovery.” Lakewood v. Papadelis, 32 Ohio St.3d 1, 511 N.E.2d

1138 (1987), paragraph two of the syllabus. This holding applies equally to discovery

violations committed by the State and by the defense. State v. Darmond, 135 Ohio St.3d

343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 42.

{¶ 51} Pelfrey sought to call a handwriting expert, David Hall, to testify about his

(Hall’s) comparison of a written statement provided by Oral to the Centerville Police

Department and a handwritten note dated September 17, 2016, which purports to be

signed by Oral. The September 17, 2016 note included a statement where Oral

apologized for “sleeping with Dart again”; Oral apparently denied creating the September

17 handwritten note. Pelfrey proffered that Hall’s opinion would have been that, after

comparing those two handwritten items, both documents were completed by the same

writer. Hall prepared a written report, which was dated January 28, 2017, i.e., two days

before trial.

{¶ 52} Before jury selection on January 30, 2017, the prosecutor sought to exclude

testimony from Hall, arguing that it had received Hall’s report on January 29 and that it

was untimely. The prosecutor noted that the documents at issue were created on July

23, 2016 and September 17, 2016, and there was no reason why Hall’s opinion could not

have been disclosed more than 21 days before trial. The prosecutor noted that prior

counsel knew about the two documents and could have had them compared earlier. The -18-

prosecutor further argued that the State was prejudiced by the late disclosure in that it

could not get its own expert to refute Hall’s conclusion.

{¶ 53} Defense counsel responded that he had filed a motion for a handwriting

expert on January 10, 2017, albeit to analyze a different document. Counsel stated that

he was not aware of these two documents until after he obtained prior counsel’s file on

the case approximately two weeks before trial. Counsel stated that he reviewed prior

counsel’s file over the next few days and discovered Oral’s September 17 note. Counsel

told the court that he turned the note over to the prosecutor and learned “this past Friday

while at the jail, that [Oral’s] claiming that that’s not her handwriting. The information

within it is – directly goes to her credibility; goes against her bias. The B indictment

directly, squarely rests on her shoulders and she’s admitting in a letter that she slept with

a material witness in the direct indictment, Greg Dart * * * .” Counsel stated that he could

not get an expert more than 21 days ago, because he did not have September 17

document and he had just become aware that Oral was denying that she wrote it. Finally,

defense counsel asserted that the State was not prejudiced, because Oral would not

testify until the next day. As stated above, defense counsel proffered Hall’s testimony

during the trial; his report and the two documents are part of the record.

{¶ 54} The trial court reasonably granted the State’s motion to exclude Pelfrey’s

expert. Pelfrey was indicted in November 2015, and his prior counsel entered a notice

of appearance in March 2016. On July 14, 2016, prior counsel acknowledged receipt of

the State’s discovery packet, requested discovery from the State, and acknowledged his

duty of reciprocal discovery. (Oral’s statement to the police was made on July 13, 2016,

the day before prior counsel received the State’s discovery packet.) -19-

{¶ 55} Original counsel withdrew on November 22, 2016, and new counsel was

appointed on November 28, 2016. The trial date of January 30, 2017 was set at the

December 13, 2016 scheduling conference; the parties understood that this trial date was

established due to the speedy trial constraints of the IAD. Although Pelfrey’s second trial

counsel apparently was not aware of Oral’s September 17 handwritten note and her

repudiation of that note until shortly before trial, Pelfrey’s original counsel was aware of

the note, as it was in his files. Prior counsel could have requested a comparison of the

two documents, but did not.

{¶ 56} Moreover, even though the State was aware that Pelfrey’s second attorney

wanted a handwriting comparison performed, Pelfrey’s January 10, 2017 motion for a

handwriting expert referred to handwritten notations on the power of attorney, not the two

documents signed by Oral. And, there is nothing in the record to suggest that the State

was aware (until it received Hall’s report) that Hall would be asked to examine two

documents by Oral. The State did not receive Hall’s reported until January 29, 2017, the

day before trial.

{¶ 57} On this record, the trial court did not abuse its discretion in granting the

State’s motion to exclude Hall’s testimony. The first assignment of error is overruled.

IV. Motion for Continuance

{¶ 58} In his second assignment of error, Pelfrey claims that the trial court erred

by denying his motion to continue the trial.

{¶ 59} While responding to the State’s motion to exclude Pelfrey’s handwriting

expert, Pelfrey’s counsel asked the court to continue the trial if it were to exclude the

expert. After granting the State’s motion to exclude Pelfrey’s expert, the court asked the -20-

parties to address Pelfrey’s motion for a continuance.

{¶ 60} The State opposed the motion, noting that the case had been set for trial

twice (October 17 and December 19), and the document at issue, i.e. Oral’s September

17, 2016 handwritten note, was not disclosed to the State before either of those trial dates.

The State further argued that Pelfrey had manufactured “multiple documents in this case

and should not be allowed to benefit from yet another continuance so he can create more

documents, or so he can continue to delay this process for documents to get into before

this Court documents that he has created and evidence related to them.” Additionally,

the prosecutor noted Pelfrey’s prior objections to continuances and his pro se motion to

dismiss based on a speedy trial violation.

{¶ 61} Pelfrey’s counsel responded that Pelfrey was willing to agree to a

continuance, despite his prior filings. Counsel also reiterated that he had found the

handwritten note from Oral in prior counsel’s file; Pelfrey did not provide it directly to him

(current counsel). The State replied that, because Oral’s purported note was addressed

to Pelfrey, Pelfrey had possessed the note at some point, and it was given to prior defense

counsel.

{¶ 62} The prosecutor further argued that the note could only be used for

impeachment of Oral, if it was admissible at all. Pelfrey’s counsel responded that the

note was admissible under Evid.R. 404(B) as evidence of Oral’s “motive to fabricate.”

{¶ 63} The trial court orally overruled the motion without explanation.

{¶ 64} The granting or denial of a continuance is a matter left to the sound

discretion of the trial court and will not be reversed absent an abuse of discretion. State

v. Unger, 67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981). “There are no mechanical tests -21-

for deciding when a denial of a continuance is so arbitrary as to violate due process. The

answer must be found in the circumstances present in every case, particularly in the

reasons presented to the trial judge at the time the request is denied.” (Citation omitted.)

State v. Fairman, 2d Dist. Montgomery No. 24299, 2011-Ohio-6489, ¶ 18; State v. Jones,

2d Dist. Clark No. 2013 CA 118, 2014-Ohio-4605, ¶ 15.

{¶ 65} “In determining whether a trial court abused its discretion when ruling on a

motion for a continuance, a reviewing court must weigh any potential prejudice to the

defendant against the trial court’s ‘right to control its own docket and the public’s interest

in the prompt and efficient dispatch of justice.’ ” State v. Pattson, 2d Dist. Montgomery

No. 23785, 2010-Ohio-5755, ¶ 19, quoting Unger. The trial court should consider such

factors as: (1) the length of the requested continuance; (2) any prior continuances; (3) the

inconvenience to the litigants, witnesses, opposing counsel and the court; (4) reasons for

the delay; (5) whether the defendant contributed to the delay; (6) and any other factors

relevant to the unique facts of that case. Unger at 67-68; Fairman at ¶ 19.

{¶ 66} We find no abuse of discretion in the trial court’s denial of a continuance.

Pelfrey requested a continuance on the morning of trial, so that he could present his

handwriting expert at a later trial date. The State received the handwriting expert’s report

on the day before trial, and there was no indication that the State was aware that Hall

would be examining Oral’s handwriting. Defense counsel had been aware that the trial

date had been moved forward to January 30, 2017 due to the statutory constraints of the

IAD and Pelfrey’s assertion of his speedy trial rights (i.e., his motion to dismiss based on

a violation of IAD’s time constraints). Although defense counsel had been appointed in

late November 2016, the change in counsel was occasioned by Pelfrey’s alleged -22-

fabrication of the April 1, 2014 agreement and prior counsel’s disclosure of that

agreement to the prosecutor, which made prior counsel a potential (and actual) witness.

The trial court could have reasonably concluded that Pelfrey contributed to the need for

the delay; that the inconvenience to the State, its witnesses, the court, and potential jurors

(who had been summoned and were waiting while the motions regarding the expert and

the continuance were addressed in a sidebar discussion) would be significant; and that

the circumstances warranted proceeding with the trial as scheduled.

{¶ 67} Additionally, we note that, even if the continuance had been granted, Pelfrey

would not have benefited, because the expert’s proposed testimony would not have been

admissible at trial. As stated above, the expert would have expressed the opinion that

the same person wrote (1) the statement Oral provided to the Centerville Police

Department and (2) the disputed September 17, 2016 note that Oral, during cross-

examination, denied writing. The first part of the disputed note expressed Oral’s remorse

for her statements to Detective Osterfeld and indicated that she spoke with the detective

because she “was so hurt” that Pelfrey was “still talking to” another woman. The second

part of the note suggested that Oral did, in fact, have a sexual relationship with Dart, as

her affidavit (the basis of the B Indictment) indicated.

{¶ 68} Evid.R. 616 permits the use of extrinsic evidence to impeach a witness for

bias, prejudice, interest, or any other motive to misrepresent. The note (assuming it was

written by Oral) -- not the expert’s proffered testimony and report -- was directed to Oral’s

relationships with others and her motives for her conduct. However, the first part of the

note did not suggest that Oral was untruthful in her statements to the detective, only that

she was sorry to have spoken with the detective. Nor did the note indicate that Oral had -23-

a motive to lie at trial when she testified that the statements in the affidavit were false.

{¶ 69} To the extent the note suggested that portions of the affidavit were truthful

(i.e., her relationship with Dart), the note is simply a prior inconsistent statement by Oral

that related to the credibility of her trial testimony. The expert’s opinion would have been

extrinsic impeachment testimony aimed at the credibility of Oral’s claim that she was not

the author of the note, and, by extension, her general credibility as a witness.

{¶ 70} Evid.R. 613 allows the admission of extrinsic evidence regarding a prior

inconsistent statement when two conditions are met: (1) the impeaching evidence is a

matter of consequence to the action’s resolution other than the witness’ credibility, and

(2) the evidence relates to a fact that may be established by extrinsic evidence under

Evid.R. 608(A), 609, 616(B), or at common law. State v. Reed, 155 Ohio App.3d 435,

2003-Ohio-6536, 801 N.E.2d 862, ¶ 29 (2d Dist.). The expert’s proposed testimony was

only directed to Oral’s credibility. Under these circumstances, the expert’s proposed

testimony would not have been admissible under Evid.R. 613(B). Thus, the expert’s

proposed testimony would not have been admissible even if the trial court had granted

Pelfrey’s continuance request.

{¶ 71} Pelfrey’s second assignment of error is overruled.

V. Right to Speedy Trial

{¶ 72} In his fourth assignment of error, Pelfrey claims that the trial court violated

his right to a speedy trial. We note that Pelfrey’s argument apparently relies on R.C.

2945.71, Ohio’s speedy trial statute. Pelfrey does not mention the IAD or discuss its

requirements in this assignment of error. Accordingly, we will confine ourselves to

Pelfrey’s statutory rights under R.C. 2945.71. -24-

{¶ 73} At the outset, Pelfrey’s motions to dismiss on speedy trial grounds were

based on an alleged violation of the IAD. Pelfrey did not seek dismissal of any of the

charges based on R.C. 2945.71. Accordingly, he has waived all but plain error. In order

to constitute plain error, the error must be an obvious defect in the trial proceedings, and

the error must have affected substantial rights. State v. Norris, 2d Dist. Montgomery No.

26147, 2015-Ohio-624, ¶ 22; Crim.R. 52(B). Plain error should be noticed “with the

utmost caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),

paragraph three of the syllabus; State v. Singleton, 2d Dist. Montgomery No. 26889,

2016-Ohio-5443, ¶ 45.

{¶ 74} The right to a speedy trial is guaranteed by the Sixth Amendment to the

United States Constitution and Article I, Section 10 of the Ohio Constitution. In Ohio,

R.C. 2945.71 requires the State to bring a felony defendant to trial within 270 days of

arrest. R.C. 2945.71(C). Each day during which the accused is held in jail in lieu of bail

on the pending charge is counted as three pursuant to the triple-count provision of R.C.

2945.71(E). This “triple-count” provision reduces to 90 days the time for bringing to trial

an accused who is incarcerated the entire time preceding trial. State v. Dankworth, 172

Ohio App.3d 159, 2007-Ohio-2588, 873 N.E.2d 902, ¶ 31 (2d Dist.).

{¶ 75} Pursuant to R.C. 2945.71(H), the time within which an accused must be

brought to trial is extended by “[t]he period of any continuance granted on the accused’s

own motion, and the period of any reasonable continuance granted other than upon the

accused’s own motion.”

{¶ 76} Pelfrey was indicted on November 6, 2015 for two counts of theft from an -25-

elderly or disabled adult and one count of forgery (A Indictment). At this time, Pelfrey

was incarcerated in Danville, Kentucky, and he was not immediately served with the

indictment. On June 30, 2016, Pelfrey sought to be returned to Ohio to face the charges.

On July 6, 2016, Pelfrey was served with the indictment and transferred to the

Montgomery County Jail. Pelfrey asserts in his appellate brief that his speedy trial time

began to run on July 7, 2016, the day after he was served with the indictment.

{¶ 77} Pelfrey was indicted for one county of tampering with evidence on October

7, 2016 (B Indictment), and a second count of tampering with evidence on November 16,

2016 (C Indictment). For speedy trial purposes, both of these charges were governed

solely by R.C. 2945.71.

{¶ 78} Pelfrey agrees that the speedy trial time on the original indictment was tolled

between July 26, 2016 and August 9, 2016, pursuant to defense counsel’s request for a

continuance to obtain additional discovery. Pelfrey was tried on all three indictments on

January 30, 2017. However, Pelfrey asserts that his speedy trial time on the original

indictment expired on October 18, 2016.

{¶ 79} Pelfrey’s argument on appeal presumes that his speedy trial ran under the

triple-count provision of R.C. 2945.71(E). However, Pelfrey was transferred to Ohio

pursuant to the IAD on July 6, 2016. By definition, the IAD applies to individuals who are

currently being incarcerated in another state. See R.C. 2963.30. Accordingly, Pelfrey

was not being held solely on the instant charges in lieu of bail while awaiting trial in this

case. Pelfrey was not entitled to the triple-count provisions of R.C. 2945.71.

{¶ 80} Pelfrey was brought to trial on January 30, 2017. Assuming for sake of

argument that Pelfrey’s speedy trial time under R.C. 2945.71 began on July 7, 2016, as -26-

Pelfrey claims, he was brought to trial within 270 days of that date. Pelfrey has not

demonstrated that his speedy trial rights under R.C. 2945.71 were violated. Accordingly,

his fourth assignment of error is overruled.

VI. Parol Evidence Rule

{¶ 81} In his fifth assignment of error, Pelfrey claims that the trial court abused its

discretion in allowing parol evidence regarding the power of attorney. Specifically,

Pelfrey asserts that Daniel should not have been permitted to testify “as to her

understanding of the contents of this power of attorney based on alleged prior or

contemporaneous statements by Defendant rather than the power of attorney itself * * *.”

{¶ 82} The parol evidence rule “is a rule of substantive law that prohibits a party

who has entered into a written contract from contradicting the terms of the contract with

evidence of alleged or actual agreements. When two parties have made a contract and

have expressed it in a writing to which they have both assented as the complete and

accurate integration of that contract, evidence, whether parol or otherwise, of antecedent

understandings and negotiations will not be admitted for the purpose of varying or

contradicting the writing.” Williams v. Spitzer Autoworld Canton, L.L.C., 122 Ohio St.3d

546, 2009-Ohio-3554, 913 N.E.2d 410, ¶ 14; Mishler v. Hale, 2014-Ohio-5805, 26 N.E.3d

1260, ¶ 29 (2d Dist.). “The principal purpose of the parol evidence rule is to protect the

integrity of written contracts.” Galmish v. Cicchini, 90 Ohio St.3d 22, 27, 734 N.E.2d 782

(2000). The parol evidence rule thus bars extrinsic evidence of prior oral representations

that contradict the parties’ final written contract. Williams at ¶ 17.

{¶ 83} Nevertheless, the parol evidence rule does not preclude a party from

presenting evidence that it was fraudulently induced to enter into a contract, if the -27-

fraudulent promise is independent of the contract terms or consistent with the contract

terms. Galmish at 28; Woods v. Cobbins, 2d Dist. Montgomery No. 20295, 2004-Ohio-

5767, ¶ 20. “It was never intended that the parol evidence rule could be used as a shield

to prevent the proof of fraud, or that a person could arrange to have an agreement which

was obtained by him through fraud exercised upon the other contracting party reduced to

writing and formally executed, and thereby deprive the courts of the power to prevent him

from reaping the benefits of his deception or chicanery.” Galmish at 28, quoting 37

American Jurisprudence 2d, Fraud and Deceit, Section 451, at 621-622 (1968) (footnotes

omitted.).

{¶ 84} Here, Daniel’s testimony about the power of attorney was relevant to

whether Pelfrey altered the power of attorney that Daniel actually signed and used a

forged document to obtain the $75,000 loan (Count 2 of the A Indictment). Daniel’s

testimony was also relevant to both theft counts, i.e., whether Daniel’s actions in obtaining

the $75,000 were beyond the scope of Daniel’s consent and whether Pelfrey obtained the

money by deceiving Daniel. Under these circumstances, the parol evidence rule did not

bar Daniel’s testimony.

{¶ 85} Daniel’s fifth assignment of error is overruled.

VII. Conclusion

{¶ 86} The trial court’s judgment will be affirmed.

.............

HALL, J. and TUCKER, J., concur.

Copies mailed to:

Mathias H. Heck Heather N. Jans -28-

J. David Turner Hon. Gregory F. Singer