[Cite as State v. Wolfe, 2024-Ohio-701.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2023-P-0017
Plaintiff-Appellee, Criminal Appeal from the - vs - Court of Common Pleas
NEIL S. WOLFE, Trial Court No. 2022 CR 00361 Defendant-Appellant.
OPINION
Decided: February 26, 2024 Judgment: Affirmed
Victor V. Vigluicci, Portage County Prosecutor, and Kristina K. Reilly, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Paul M. Grant, 209 South Main Street, Eighth Floor, Suite 3, Akron, OH 44308 (For Defendant-Appellant).
MARY JANE TRAPP, J.
{¶1} Appellant, Neil S. Wolfe (“Mr. Wolfe”), appeals the judgment entry of the
Portage County Court of Common Pleas that sentenced him to a 36-month term of
imprisonment and ordered him to pay $150,000 in restitution. A jury found Mr. Wolfe
guilty of grand theft for taking $150,000 from a homeowner while acting as a building
contractor.
{¶2} Mr. Wolfe raises two assignments of error, contending (1) the trial court
erred as a matter of law by allowing the state to admit other acts evidence, and (2) his
conviction is against the manifest weight of the evidence. {¶3} After a careful review of the record and pertinent law, we find Mr. Wolfe’s
assignments of error to be without merit.
{¶4} Firstly, the state’s other acts evidence was admissible to prove
intent/absence of mistake, a material issue at trial. The evidence offered demonstrated
Mr. Wolfe defrauded other customers the same way and with a similar intent, contrary to
Mr. Wolfe’s assertion that the instant case is a mere contractual dispute over conditions
precedent to him performing any work while keeping the client’s deposit. Further, the
probative value of this evidence was high, and Mr. Wolfe did not demonstrate that the
evidence unfairly prejudiced him or appealed to the jury’s emotions.
{¶5} Secondly, the manifest weight of the evidence supports the jury’s verdict.
Simply because the jury chose to believe the state’s version of theft over Mr. Wolfe’s
version of a contract dispute does not mean the jury so lost its way that a manifest
injustice occurred and that a new trial must be ordered.
{¶6} The judgment of the Portage County Court of Common Pleas is affirmed.
Substantive and Procedural Facts
{¶7} In late March 2022, Mr. Wolfe was indicted by the Portage County Grand
Jury, charging him with one count of grand theft, a third-degree felony, in violation of R.C.
2913.02.
{¶8} In January 2023, the state filed a motion to revoke Mr. Wolfe’s bond
because he continued acting as a contractor in violation of a court order in a pending case
in the Cuyahoga County Court of Common Pleas. Mr. Wolfe filed a brief in opposition,
contending he was acting as a project manager under the direction and control of Wheeler
Construction & Renovation pursuant to the court’s order. After a hearing, the trial court
Case No. 2023-P-0017 granted the state’s motion, revoked Mr. Wolfe’s bond, and ordered that he be held without
bond until the scheduled trial date, January 31, 2023.
The State’s Case in Chief
{¶9} The state presented to the jury the testimony of the victims, Deborah and
Fred McLaughlin (respectively, “Mrs. and Mr. McLaughlin,” collectively, the
“McLaughlins”); Mr. McLaughlin’s son, Justin McLaughlin (“Justin”); Detective Michael
Hanna (“Det. Hanna”) of the Portage County Sheriff’s Office; and Monica Gregory (“Ms.
Gregory”), an investigator from the Ohio Attorney General’s Office (the “AG”).
{¶10} The state’s testimony and evidence revealed that the McLaughlins own a
farm in Portage County, where they raise cattle, pigs, and goats and breed dogs. In 2020,
after struggling to care for Mrs. McLaughlin’s parents, who lived in an adjacent county,
and Mr. McLaughlin’s mother, who lived with them, they decided to build a separate
structure on their property for another residence. The proposed building was
approximately 11,000 square feet and included a therapeutic dog kennel and more
storage room for their equipment.
{¶11} Mr. McLaughlin put his plans and a description of the project on a website
to solicit bids.
{¶12} Mr. Wolfe was one of the contractors who responded. After several dinners
going over Mr. McLaughlin’s drawings and the specifications for the project, Mr. Wolfe put
in a bid of $350,000. The amount of the bid was for the concrete work, the block work,
and the shell of the structure, including the roof and the siding. Mr. McLaughlin, who
owned his own heavy equipment, planned to do the initial excavation and draining prior
to Mr. Wolfe pouring the concrete foundation.
Case No. 2023-P-0017 {¶13} Mr. Wolfe prepared a contract that he presented to Mr. McLaughlin at their
second-to-last dinner. Mr. McLaughlin, however, disagreed with several of the clauses.
He wanted to make sure he could get a full refund if one of the parties breached the
contract. Mr. Wolfe agreed and removed the clauses. Mr. Wolfe and Mr. McLaughlin had
their last dinner the following night, at which Mr. McLaughlin signed the new contract and
gave Mr. Wolfe a check for $150,000 as a deposit. They agreed a large deposit was
necessary to purchase all the materials upfront, given the COVID-19 pandemic and spike
in wood prices.
{¶14} The contract contained a provision providing, “THIS CONTRACT
constitutes the entire understanding of the parties and no other understanding, collateral
or otherwise, shall be binding unless in writing signed by both parties. If this contract is
broken by the BUYER or PURCHASER, he (or she) agrees to forfeit any cash down
payment made, (UP TO A MAXIMUM OF 00.00% OF SALES PRICE + EXPENSES).”
{¶15} After signing the contract and paying the deposit, Mr. McLaughlin heard
from Mr. Wolfe intermittently for a few months, and each time Mr. Wolfe had yet to
purchase any of the materials. Meanwhile, Mr. McLaughlin was digging the site to get it
prepared. Later that fall, Mr. Wolfe’s mason arrived at the construction site and put stake
corners in the ground. At that time, Mr. McLaughlin and Mr. Wolfe got into a heated
argument. Mr. McLaughlin attempted to fire Mr. Wolfe over the lack of materials. The
McLaughlins had been excavating the site and were hoping to pour the concrete before
the oncoming winter. The mason left during the argument and never returned. Mr.
McLaughlin’s son, Justin, broke up the argument. Mr. McLaughlin could not complete the
excavation because Mr. Wolfe did not supply any of the materials for the drains.
Case No. 2023-P-0017 {¶16} Sometime that fall, Mr. Wolfe informed Mr. McLaughlin that the job would
“run better” if they had professional drawings and referred Mr. McLaughlin to his “architect
friend,” Robert Brown (“Mr. Brown”). In late spring, Mr. McLaughlin decided to have Mr.
Brown do the drawings, and he paid him $4,000.
{¶17} By that time, the price of wood had spiked dramatically, and Mr. Brown
suggested using ICF (insulated concrete form) building blocks, which are stronger and
more durable than wood. Mr. McLaughlin later discovered Mr. Brown was not a licensed
architect. He took Mr. Brown’s designs to a licensed architect to ensure the structure was
sound, especially since he was switching the building materials from wood to ICF, and to
get the designs certified and stamped, paying another $900.
{¶18} By late summer 2021, the McLaughlins decided to cancel their contract with
Mr. Wolfe since he had not responded or provided any materials. After some back and
forth via text and email, the McLaughlins tried calling Mr. Wolfe. Mr. Wolfe reported them
to the Hudson Police Department for telephone harassment.
{¶19} The McLaughlins’ attorney called the AG to file a complaint against Mr.
Wolfe. Ms. Gregory, an investigator in the consumer protection division, testified on direct
examination that the AG had filed civil lawsuits against Mr. Wolfe in 2003, 2017, and 2021
based on similar customer complaints. The pending 2021 Cuyahoga County case
consisted of six consumers who had contracted with Mr. Wolfe and either did not “have
the work done, or it was halfway done or partially done or shoddy workmanship.”
{¶20} She advised the McLaughlins to file a police report based on her
investigation of Mr. Wolfe’s bank records and because Mr. Wolfe had performed no work
on the contract. Ms. Gregory already had Mr. Wolfe’s bank records and cancelled checks
since she had several ongoing investigations against him, including the 2021 Cuyahoga 5
Case No. 2023-P-0017 County case. While the McLaughlins’ $150,000 had been deposited in Mr. Wolfe’s
business bank account, he commingled his business and personal funds, and she
determined he never used any of the money on the McLaughlins’ project. When Mr.
Wolfe deposited the McLaughlins’ check into his account, he had a balance of
approximately $4,000 to $6,000. The records demonstrated that the deposit was used to
pay approximately $54,000 in personal loans.
{¶21} On cross-examination, Ms. Gregory further testified that the 2021
Cuyahoga case was still pending, with a preliminary injunction issued to prevent Mr. Wolfe
from holding himself out as a contractor and two findings of contempt in violation of that
injunction. Mr. McLaughlin testified at one of two contempt hearings in the 2021
Cuyahoga County case. According to Ms. Gregory, Mr. McLaughlin testified that there
were no conditions precedent in his contract with Mr. Wolfe that had to be completed
before Mr. Wolfe began the project and/or purchased the materials.
{¶22} On redirect, Ms. Gregory explained she has seen 50 or more complaints
against Mr. Wolfe in the past 20 years.
{¶23} On September 6, 2021, the McLaughlins decided to press criminal charges
against Mr. Wolfe, and they reported the incident to the Portage County Sheriff’s Office.
{¶24} The state admitted into evidence the parties’ contract, a copy of the
$150,000 check, the stamped conceptual rendering design of the structure, and a
Snapchat video Jason took of the excavation he and Mr. McLaughlin completed in
October 2020.
The Defense
{¶25} The defense presented the testimony of Mr. Wolfe.
Case No. 2023-P-0017 {¶26} Mr. Wolfe explained that this was a breach of contract issue, not a criminal
matter. He did not believe he was required to purchase materials with the deposit per the
terms of the contract, which was a “fixed-price contract.” Rather, the $150,000 was due
on signing and represented his earned profit. He worked over 200 hours on the project,
and he paid himself first as per his accounting practices. Any volatility in the price of
materials would “eat his profit” and was a result of the COVID-19 pandemic prices being
abnormally high. When Mr. McLaughlin told him later he wanted to switch the materials
to ICF, Mr. Wolfe was under the impression the contract was cancelled since it was a
“change order.” He did not return the money because he “was ready, willing, and able to
perform” and he was “entitled to my profit.” In addition, the contract had no termination
date.
{¶27} He further claimed there were conditions precedent before he was required
to perform his “end of the deal.” Mr. McLaughlin was supposed to move the gas lines, do
the excavation, create the footers, put in the drain tile and the vertical rebar, and get an
inspection prior to his bringing in the concrete. The gas company took two and a half
months to move the gas lines. Similarly, the footers were never completed. In addition,
Mr. McLaughlin mentioned radiant floor heating, which must be placed before the
concrete is poured.
{¶28} Mr. Wolfe spoke with Mr. McLaughlin probably twice a week for the first 10
to 12 months. In January 2021, he received a text from Mr. McLaughlin informing him
that the McLaughlins wanted to do the project themselves. In late August 2021, 13
months into the project, Mrs. McLaughlin called him and terminated the contract. Mr.
Wolfe told the McLaughlins he would like to meet when his attorney was in town so they
Case No. 2023-P-0017 could negotiate a settlement. He was entitled to a profit since he was not the breaching
party.
{¶29} Mr. Wolfe clarified that Mr. Brown is a licensed exterior designer and that
plans do not need to be stamped by a licensed architect. He detailed his Better Business
Bureau rating (“BBB”), which was always around an “A” until 2019, when the AG came
after him due to a “lack of clauses” in his contracts. He never intended to steal, trick, or
deceive Mr. McLaughlin, there was no judgment in the 2021 Cuyahoga County case, and
he does not have any other convictions. He does not lie, and he has been in the
contracting business for over 46 years.
{¶30} During cross-examination, Mr. Wolfe was asked about previous incidents
with former clients. Lynn and John VanAuker (the “VanAukers”) contracted with Mr. Wolfe
for labor for a pole barn for their horses on their property. The VanAukers would provide
the materials. Unfortunately, Mr. VanAuker passed away. Several months later, Ms.
VanAuker told Mr. Wolfe that she wished to proceed, but this time he would provide the
labor and materials. They agreed on a contract price of $45,885 and a deposit of $18,885.
Ultimately, the deal “went south,” and Mr. Wolfe was convicted of a fifth-degree
misdemeanor for unauthorized use of property. In his words, he ended up refunding her
the entire amount – not taking the 30% he was owed per their agreement.
{¶31} The state then inquired whether Mr. Wolfe had continued acting as a
contractor while under the injunction in the 2021 Cuyahoga County case prohibiting him
from doing any contracting work. He claimed that while he took money and specifications
for a project from a client, Jean Holyfield, in October 2022, he did so on the behalf of
Wheeler Construction pursuant to the terms of the court’s order.
Case No. 2023-P-0017 {¶32} The state introduced complaints from the BBB website that were made
against Mr. Wolfe for failing to perform, failing to file permits, overcharging products, and
poor workmanship. The printed BBB information also reflected that Mr. Wolfe has an “F”
rating. The state also introduced text messages and emails between the McLaughlins
and Mr. Wolfe that reflected the McLaughlins sought the return of their deposit and that
Mr. Wolfe disagreed any money was owed or that materials needed to be purchased from
the deposit.
State’s Rebuttal Witness
{¶33} The state presented a rebuttal witness following the close of the defense’s
case. Briana Longstreth (“Mrs. Longstreth”) testified that in June 2021 she purchased a
home with her husband. They were expecting a baby and decided to build an addition to
their new home. In July 2021, they posted on a website to solicit bids, and Mr. Wolfe
responded. Mr. Wolfe was very kind and assured them the project would be completed
within their timeline.
{¶34} Once the Longstreths signed the contract, which was written by Mr. Wolfe,
and gave Mr. Wolfe a deposit of $94,000, Mr. Wolfe “changed completely.” He became
unresponsive and would not answer their calls or text messages. Mrs. Longstreth’s
understanding was that the deposit was for the excavation of the basement, the
blockwork, the concrete, and delivery of the lumber because Mr. Wolfe told them the
prices of lumber would be rising.
{¶35} In January 2022, the excavation began through an excavator they knew
personally, whom they connected with Mr. Wolfe. The excavation did not go well because
the plans and the drawings did not match. The plans were drawn by Mr. Brown, who was
referred by Mr. Wolfe. Later, they discovered the plan lacked specifications and 9
Case No. 2023-P-0017 contained structural issues. The excavator had to return to dig deeper at an additional
cost. After the excavation, the Longstreths discovered that Mr. Wolfe did not obtain a
necessary permit, and the hole that was dug was too close to the property line to pass
the zoning requirements. The hole stood open for so long that it was exposed to rainfall,
which flooded their existing basement.
{¶36} The Longstreths later learned Mr. Wolfe’s business was in receivership and
only $25,000 out of the $94,000 had been set aside for their project. They were able to
collect only $5,000 from Mr. Wolfe’s bond. At the time of the jury trial, the Longstreths
were still in the process of building the addition to their home.
Jury Verdict and Sentencing
{¶37} Prior to closing arguments, the state requested that the limiting instruction
for “other acts evidence” be removed from the proposed instructions since they introduced
the evidence in rebuttal to Mr. Wolfe’s testimony. While defense counsel did not
“necessarily agree” the state did not use other-acts evidence during its case-in-chief, he
did not object to the removal of the instruction.
{¶38} The jury found Mr. Wolfe guilty of one count of grand theft, a third-degree
felony, in violation of R.C. 2913.02.
{¶39} In March 2023, after a presentence investigation, the trial court held a
sentencing hearing at which Mr. Wolfe was sentenced to a term of 36 months in prison
and ordered to pay $150,000 in restitution.
{¶40} Mr. Wolfe raises two assignments of error for our review:
{¶41} “[1.] The trial court erred as a matter of law when it allowed evidence of
Wolfe’s prior acts evidence in violation of the Due Process Clause of the 14th Amendment
to the U.S. Constitution and Article I, Sections 1, 10 & 16 of the Ohio Constitution. 10
Case No. 2023-P-0017 {¶42} “[2.] Wolfe’s conviction is against the manifest weight of the evidence in
violation of the Due Process Clause of the 14th Amendment to the U.S. Constitution and
Article I, Sections 1, 10 & 16 of the Ohio Constitution.”
Other-Acts Evidence
{¶43} In his first assignment of error, Mr. Wolfe contends the trial court erred by
allowing other-acts evidence pursuant to Evid.R. 404(B) and R.C. 2945.59 that were not
relevant to the facts and prejudiced the jury.
{¶44} “The admissibility of other-acts evidence under Evid.R. 404(B) is a
question of law that we review de novo.” State v. Worley, 164 Ohio St.3d 589, 2021-
Ohio-2207, 174 N.E.3d 754, ¶ 117. “But the trial court’s weighing of the probative value
of admissible evidence against the danger of unfair prejudice to the defendant pursuant
to Evid.R. 403(A) involves an exercise of judgment and will be reviewed for an abuse of
discretion.” Id.
{¶45} “Evidence of other acts may not be used to prove by inference that the
accused acted in conformity with those other acts or that he or she has a propensity to
act in that way.” Worley at ¶ 118; Evid.R. 404(B).
{¶46} “Other-acts evidence may be admissible for nonpropensity purposes—i.e.,
as ‘proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident.’” Worley at ¶ 118; see R.C. 2945.59 (“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 *
* *, notwithstanding that such proof may show or tend to show the commission of another
crime by the defendant”).
Case No. 2023-P-0017 {¶47} “To justify the admission of other-acts evidence for a nonpropensity
purpose, the evidence must pertain to a ‘“material” issue that is actually in dispute.’”
Worley at ¶ 118, quoting State v. Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, 161
N.E.3d 651, ¶ 27, quoting Huddleston v. United States, 485 U.S. 681, 686, 108 S.Ct.
1496, 99 L.Ed.2d 771 (1988).
{¶48} Mr. Wolfe contended that he did not commit a crime and that this was purely
a contractual dispute. “Other-acts evidence is admissible to negate a defendant’s claim
of mistake or accident with respect to the commission of the alleged crime; such evidence
tends ‘[t]o show, by similar acts or incidents, that the act in question was not performed
inadvertently, accidentally, involuntarily, or without guilty knowledge.’” Hartman at ¶ 52,
quoting McCormick, Evidence, Section 190, at 804 (4th Ed.1994).
{¶49} The state contended that the testimony of Ms. Longstreth and evidence
from Mr. Wolfe’s other clients, such as Mrs. VanAuker and Ms. Holyfield, demonstrated
Mr. Wolfe’s “modus operandi” or “method of working,” i.e., he enters into contracts with
people, promises great work, and fails to perform, keeping the deposits. However,
“method of working” is more akin to using other-acts evidence to show intent and absence
of mistake. “Modus operandi” evidence is evidence of “signature, fingerprint-like
characteristics unique enough ‘to show that the crimes were committed by the same
person.’” Hartman at ¶ 37, quoting Weissenberger, Federal Evidence, Section 404.17
(7th Ed.2019). In other words, “modus operandi” is concerned with identifying the
perpetrator, and Mr. Wolfe’s identity was already known and not a material issue. In any
case, the state’s other-acts evidence was admissible to prove he defrauded other
customers the same way with a similar intent and that this was not a mere dispute over
“contract clauses,” which was a material issue at trial. 12
Case No. 2023-P-0017 {¶50} Although the state intended to use this evidence in its case-in-chief, it
presented the testimony of Ms. Longstreth as a rebuttal witness and cross-examined Mr.
Wolfe regarding his other victims. In these incidents, Mr. Wolfe answered solicited bids,
wrote the contracts, and took deposits with the customer’s understanding that at least a
portion would be used to purchase materials. Once Mr. Wolfe received the deposit,
however, little work was performed, and no materials were purchased. Mr. Wolfe also
recommended the same “architect,” Mr. Brown. The facts surrounding these incidents
establish a similar method of operation to that in this case, making the other-acts evidence
probative that the act in question was not performed “‘inadvertently, accidentally,
involuntarily, or without guilty knowledge.’” Hartman at ¶ 52, quoting McCormick,
Evidence, Section 190, at 804.
{¶51} Mr. Wolfe also contends that Ms. Gregory’s testimony was irrelevant to the
instant case since it regarded the pending litigation in the 2021 Cuyahoga County case.
Our review, however, reveals the contrary. Ms. Gregory’s testimony was relevant since
the AG was part of the McLaughlin investigation that led to criminal charges being filed
against him. The state’s brief mentions the AG’s familiarity with Mr. Wolfe was not offered
to prove Mr. Wolfe’s character. Ms. Gregory had already been investigating Mr. Wolfe
when the McLaughlins contacted her. Because she was in possession of Mr. Wolfe’s
bank records, she discovered that after Mr. Wolfe deposited the McLaughlins’ deposit, he
paid approximately $54,000 in personal loans and failed to purchase any materials. Mr.
Wolfe had the opportunity to cross-examine Ms. Gregory, and both he and Ms. Gregory
testified the Cuyahoga County case was pending with no verdict against him. Most
fundamentally, he did not object to the trial court’s exclusion of a limiting jury instruction
during an explicit discussion of the jury instructions toward the end of trial. 13
Case No. 2023-P-0017 {¶52} Mr. Wolfe asserts that even if the other-acts evidence was admissible under
Evid.R. 404(B), it was inadmissible under Evid.R. 403(A), which “requires a trial court to
exclude relevant evidence if ‘its probative value is substantially outweighed by the danger
of unfair prejudice.’” Worley at ¶ 124, quoting Evid.R. 403(A).
{¶53} In Worley, the Supreme Court of Ohio explained that “[t]he exclusion of
relevant evidence under Evid.R. 403(A) requires more than mere prejudice, because
anything adverse to a party’s case could be deemed prejudicial to that party. State v.
Crotts, 104 Ohio St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 23 (Evid.R. 403(A)
requires exclusion only of ‘evidence that is unfairly prejudicial’ [emphasis sic]).” Id. at ¶
125. The court has held:
{¶54} “‘“Unfair prejudice is that quality of evidence which might result in an
improper basis for a jury decision. Consequently, if the evidence arouses the jury’s
emotional sympathies, evokes a sense of horror, or appeals to an instinct to punish, the
evidence may be unfairly prejudicial. Usually, although not always, unfairly prejudicial
evidence appeals to the jury’s emotions rather than intellect.”’ Oberlin v. Akron Gen. Med.
Ctr., 91 Ohio St.3d 169, 172, 743 N.E.2d 890 (2001), quoting Weissenberger, Ohio
Evidence, Section 403.3, at 85-87 (2000).” Id.
{¶55} Just as in Worley, the probative value of the other-acts evidence was high,
and Mr. Wolfe has not shown that the evidence unfairly prejudiced him or appealed to the
jury’s emotions. See Worley at ¶ 126. The evidence was directly probative of a material
issue in dispute, namely, intent and/or lack of mistake.
{¶56} In addition, Mr. Wolfe cannot now complain about other-acts evidence when
he opened the door through his own testimony. The doctrine of invited error precludes a
defendant from making an affirmative and apparent strategic decision at trial and then 14
Case No. 2023-P-0017 complaining on appeal that the result of that decision constitutes reversible error. State
v. Doss, 8th Dist. Cuyahoga No. 84433, 2005-Ohio-775, ¶ 7.
{¶57} Mr. Wolfe’s first assignment of error is without merit.
Manifest Weight of the Evidence
{¶58} In his second assignment of error, Mr. Wolfe contends his conviction is
against the manifest weight of the evidence because the evidence reflected a contractual
dispute rather than a crime of grand theft.
{¶59} A court reviewing the manifest weight of the evidence observes the entire
record, weighs the evidence and all reasonable inferences, considers the credibility of the
witnesses, and determines 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. Schlee, 11th Dist. Lake No. 93-L-082, 1994
WL 738452, *5 (Dec. 23, 1994). A challenge to the weight of the evidence requires a
court to consider whether the state met its burden of persuasion. State v. McFeely, 11th
Dist. Ashtabula No. 2008-A-0067, 2009-Ohio-1436, ¶ 78.
{¶60} Mr. Wolfe contends there was ample evidence of a dispute regarding the
conditions precedent in the contract by way of Justin’s testimony and Mr. Wolfe’s
testimony. However, the state’s evidence revealed a more sordid story that the jury was
free to believe, i.e., Mr. Wolfe answered the McLaughlins’ solicitation for bids for a
construction project, promised to perform, took the McLaughlins’ deposit, represented
that the price of materials would be rising, and failed to perform the work or purchase any
materials. The evidence further revealed this is Mr. Wolfe’s pattern of dealing; he even
recommended the same “exterior designer.”
Case No. 2023-P-0017 {¶61} As we have often stated, simply because the jury believed the state’s
version of events rather than the defendant’s version does not mean the jury lost its way.
“The choice between credible witnesses and their conflicting testimony rests solely with
the finder of fact and an appellate court may not substitute its own judgment for that of
the finder of fact.” State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986). This
is because the trier of fact “is best able to view the witnesses and observe their demeanor,
gestures and voice inflections, and use these observations in weighing the credibility of
the proffered testimony.” Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461
N.E.2d 1273 (1984). “A fact finder is free to believe all, some, or none of the testimony
of each witness appearing before it.” State v. Fetty, 11th Dist. Portage No. 2011-P-0091,
2012-Ohio-6127, ¶ 58.
{¶62} Mr. Wolfe’s second assignment of error is without merit.
{¶63} The judgment of the Portage County Court of Common Pleas is affirmed.
MATT LYNCH, J.,
ROBERT J. PATTON, J.,
concur.
Case No. 2023-P-0017