State v. Terry

186 Ohio App. 3d 670, 2010 WL 1408680
CourtOhio Court of Appeals
DecidedMarch 31, 2010
DocketNo. 09CA23
StatusPublished
Cited by7 cases

This text of 186 Ohio App. 3d 670 (State v. Terry) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Terry, 186 Ohio App. 3d 670, 2010 WL 1408680 (Ohio Ct. App. 2010).

Opinion

Harsha, Judge.

{¶ 1} An Athens County jury convicted Thoma E.S. Terry of one count of grand theft, one count of forgery, one count of receiving stolen property, and one count of passing bad checks. The charges stemmed from Terry’s deposit of a check for $38,921.24 into the bank account of a friend. After that check cleared the bank, the friend obtained a cashier’s check in Terry’s name for a sum slightly less than the deposit. Terry negotiated the cashier’s check for cash and another cashier’s check. Later, when he attempted to wire a large sum to a bank in Japan, the bank president became suspicious. Terry claimed that the $38,921.24 check was his paycheck and produced documents to demonstrate that he was employed as a receiving officer for a Chinese plastics company. The bank president, who knew Terry from high school, remained skeptical and called the police. An investigation revealed that the $38,921.24 check was real, but it had been stolen and altered so that it would be payable to Terry.

{¶ 2} On appeal, Terry initially argues that the state produced insufficient evidence to prove the “knowingly” element of any of his convictions. Although the jury had to rely on circumstantial evidence in determining his mental state, the totality of the circumstances allowed reasonable jurors to conclude that Terry (1) possessed the check, (2) knew it was stolen, and (3) knew it was altered. Therefore, sufficient evidence supports his convictions for theft, forgery, and receiving stolen property.

{¶ 3} However, the evidence was legally insufficient to convict Terry of the crime of passing bad checks. That crime is designed to punish the circulation of worthless or bogus checks, i.e., checks negotiated or transferred by one who knows they will reach the drawee bank and be dishonored for insufficient funds, or a closed account, for example. The crime was not intended to punish one who negotiates altered or forged checks with the belief that the check will be honored. Terry’s scheme depended on the drawee bank accepting the forged check and honoring it, which it did. Therefore, the state failed to put forth sufficient [674]*674evidence indicating that Terry knew the check would be dishonored, and we reverse his conviction for passing bad checks.

{¶ 4} Terry also contends that the state produced insufficient evidence of the specification in his forgery indictment that would allow the state to seize the money he had when he was arrested. However, this argument is premised on a factual inaccuracy. Although the grand jury initially indicted Terry for forgery with this specification, the jury did not ultimately convict him of it. In fact, before closing arguments, Terry stipulated that the money could be forfeited to the state.

{¶ 5} Next, Terry argues that his convictions were against the manifest weight of the evidence. He contends that the jury lost its way in concluding that he acted knowingly in any of the charged offenses. We again conclude that the circumstantial evidence warranted a guilty finding. Thus, we hold that Terry’s convictions for grand theft, forgery, and receiving stolen property were not against the manifest weight of the evidence. And because no one has raised the issue of merger on the theft and receiving-stolen-property convictions, we do not address it either.

I. Summary of the Case

{¶ 6} On October 23, 2008, Venice Regional Medical Center of Venice, Florida issued check number 0050852 in the amount of $38,921.24 made payable to Mondial Assistance, an insurance company. Venice mailed the check to Mondial’s office in Ontario, Canada. The details concerning what happened to the check after it was mailed are unclear. But, as illustrated by the following circumstances brought out at trial, the state sought to establish that Terry was involved in a money-laundering scheme involving the check.

{¶ 7} On November 6, 2008, someone sent a DHL shipment from Brampton, Ontario to Terry’s home address. DHL attempted to deliver the shipment on November 7, 2008, but apparently Terry was not home to receive the package. Later that day, Terry received an e-mail from “Ye Junpei” of “Feilong Plastic Co” stating that Terry had missed a DHL shipment containing a payment sent to him from a Feilong customer named Robert Dean. The e-mail instructed Terry to receive the shipment on the next delivery attempt and then to contact Junpei after he deposited the check. When DHL made delivery on November 10, 2008, “T.Terry” signed for the package.

{¶ 8} The next day, Terry and his friend, Lori Wolfe, drove to the banking window at the Hocking Valley Bank in Albany, Ohio. Wolfe gave the teller a check for $38,921.24 to be deposited into her account. The state contends that this was the same check Venice had previously issued to Mondial. But now the check was payable to “Thomas E.S. Terry” and both Terry and Wolfe endorsed [675]*675the back of it. The teller informed Terry and Wolfe that the funds from the check would not be available for 11 business days.

{¶ 9} Eleven business days later, on November 28, Wolfe came back to the Albany branch and attempted to withdraw the amount of the check, $38,921.24. However, Wolfe had drawn some checks on the account in the meantime and the teller informed her that the available balance was around $38,800. The teller additionally informed Wolfe that the bank could not give her that much cash but could issue her a cashier’s check. Wolfe told the teller that she would confer with her friend who was waiting outside because it was his money. Wolfe returned after a few minutes and had the teller draw up a cashier’s check in the amount of $38,700 payable to Thoma Terry.

{¶ 10} Later that day, Terry entered the main branch of Hocking Valley Bank in Athens, Ohio. He presented the teller with the $38,700 cashier’s check and asked for cash. A bank supervisor told Terry that the bank did not have that much cash on hand. The supervisor offered to provide him with $20,000 in cash and the balance in the form of another cashier’s check, for $18,700. Terry agreed. Terry off-handedly explained to the bank supervisor that he was starting a recording studio and needed the cash to pay lawyers.

{¶ 11} A week later, Terry returned to the Athens bank location and again met with the supervisor, stating that he wished to wire $23,000 to a bank in Tokyo, Japan. While Terry filled out the necessary paperwork, the bank supervisor spoke with the bank president, Scott Nisley, who informed the supervisor that the bank did not have the ability to wire funds on Saturday. Terry was told that he would have to return on Monday to complete the transaction.

{¶ 12} When Terry entered the bank early Monday morning, Nisley questioned him about a separate check that Terry had deposited for $4,588.93 from Geico Insurance Company.1 After Nisley expressed his concern that the Geico check was not valid, Terry showed Nisley a letter that purported to be from Geico. It stated that Terry had won $100,000 and the check was intended to cover the estimated 3.8 percent taxes on the winnings. Nisley explained that this letter made him even more suspicious because $4,588.93 is not 3.8 percent of $100,000. Furthermore, Nisley believed that the actual taxes would have been closer to 20 percent.

[676]*676{¶ 13} At some point, the discussion shifted to the $38,921.24 check. Nisley expressed his doubt to Terry that this check was legitimate. Terry told Nisley that it was his paycheck.

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Cite This Page — Counsel Stack

Bluebook (online)
186 Ohio App. 3d 670, 2010 WL 1408680, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-terry-ohioctapp-2010.