State v. Geraldine A. Cannon

• Decision Date: 30 June 1999
• Docket Number: 98-L-032,99-LW-2950
• Parties: STATE OF OHIO, Plaintiff-Appellee, v. GERALDINE A. CANNON, Defendant-Appellant. CASE
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-Appellee, v. GERALDINE A. CANNON, Defendant-Appellant.

No. 98-L-032

99-LW-2950 (11th)

Court of Appeals of Ohio, Eleventh District, Lake County.

June 30, 1999

Criminal Appeal from the Court of Common Pleas Case No. 97 CR 000238

HON JUDITH A. CHRISTLEY, P.J., HON. ROBERT A. NADER, J., HON WILLIAM M. O'NEILL, J.

CHARLES E. COULSON, LAKE COUNTY PROSECUTOR, WERNER G. BARTHOL ASSISTANT PROSECUTOR, 105 Main Street, P.O. Box 490 Painesville, OH 44077, For Plaintiff-Appellee

ATTY. RICHARD P. MORRISON, 38118 Second Street, Willoughby, OH 44094, For Defendant-Appellant

OPINION

NADER J.

Appellant, Geraldine A. Cannon, appeals her conviction from the Lake County Court of Common Pleas.

Appellant was originally indicted by the Lake County Grand Jury on the following eight counts:

Receiving stolen property, in violation of R.C. 2913.51, for knowingly receiving an $830 check stolen from Ralph Frantz, on or about February 12, 1997;

Forgery, in violation of R.C. 2913.31, for depositing the above check while knowing that endorsement of Ralph Frantz was forged, on or about February 12, 1997;

Receiving stolen property, in violation of R.C. 2913.51, for knowingly receiving four checks stolen from Anthony Leone, on or about October 23, 1996;

Theft, in violation of R.C. 2913.02, for knowingly obtaining funds through deception, on or between October 23 and October 30, 1996;

Forgery, in violation of R.C. 2913.31, for depositing one of the checks stolen from Anthony Leone while knowing that his endorsement was forged, on October 27, 1997 (later amended to October 25);

Forgery, in violation of R.C. 2913.31, for depositing one of the checks stolen from Anthony Leone while knowing that his endorsement was forged, on October 24, 1997;

Forgery, in violation of R.C. 2913.31, for depositing one of the checks stolen from Anthony Leone while knowing that his endorsement was forged, on October 23, 1997; and,

Forgery, in violation of R.C. 2913.31, for depositing one of the checks stolen from Anthony Leone while knowing that his endorsement was forged, on October 28, 1997 (later amended to October 26).

Before trial, appellant filed a motion to have counts one and two tried separately from counts three through eight. She asserted that these charges were unrelated because there were different victims, and that trying them together allowed the prosecution to admit otherwise inadmissible "bad acts." The court denied the motion without giving a reason. Upon review of the transcript from the jury trial, held on November 20, 1997, we infer the facts to be as follows:

On October 23, 1996, Anthony Leone went to his bank to withdraw money after spending the day working at the Lube Stop. He had previously been invited to breakfast with Shannon Gillespie. While at the bank, Mr. Leone was informed that, earlier in the day, someone had attempted to cash one of his checks at the bank. Upon returning to his Fairport Harbor apartment, he discovered that someone had broken his doorjamb and entered his apartment. The intruder stole, among other things, his checkbook. In response to the break-in, Mr. Leone filed a police report, had his landlord fix the door, and closed his bank account.

Anita Walters, an administrative assistant at the L.C.E. Federal Credit Union ("credit union" or "bank"), testified that appellant was a customer of the bank and had both a savings account and a checking account. In late October of 1996, appellant deposited four checks drawn on Mr. Leone's account at various ATM machines. Appellant deposited the checks as follows: a check for $300, dated October 23, 1996, at the ATM machine at 70 Richmond Street in Painesville, Ohio on October 23; a check for $300, dated October 23, 1996, at the ATM machine at 8 North State Street in Painesville on October 24; a check for $200, dated October 24, 1996, at the ATM machine at 8 North State Street in Painesville on October 25; and, a check for $300 dated October 25, 1996, at the ATM machine at 15619 Waterloo Road in Cleveland, Ohio on October 26. Appellant also made an ATM deposit on October 27 for $250, but deposited a blank envelope into the machine, rather than one containing a check or money. Because Mr. Leone had closed his account, all four checks were returned to the credit union unpaid. As a result of these checks being dishonored and other withdrawals and checks written by appellant, the bank sustained losses of approximately $900, which appellant subsequently repaid.

Andrew Szymanski, a forensic document examiner called by the prosecution, testified that, from his review of the checks, it was his opinion that three different people had written and signed the four checks. Appellant unsuccessfully objected to Mr. Szymanski's testimony, claiming that he had only given his opinion, and had not given his opinion to a reasonable degree of scientific certainty.

On October 30, 1996, appellant went to the credit union and attempted to withdraw money from her account. She was told that the checks had been dishonored and that she had a balance, at that time, of only $25. Ms. Walters testified that, when shown the checks, appellant said, "I can't believe he gave me bad checks." She further testified that appellant seemed to imply that Mr. Leone was the one that gave her the bad checks. Appellant claimed that she said, "I can't believe she gave me bad checks," referring to the aforementioned Shannon Gillespie, who she claimed wrote the checks. Ms. Walters also testified to the authenticity and content of bank statements and bank records, which were used as evidence of deposits made by appellant.

Laraine Curley, an employee of the Lake County Veteran's Service Office ("veteran's office"), testified that, in February of 1997, their office sent a check to Ralph Frantz in the amount of $830. Mr. Frantz never received or endorsed this check and called the veteran's office, the post office, and the police in an attempt to locate it. Susan Goodman, a teller at the credit union, testified that, on February 12, 1997, appellant came into the credit union to deposit that check. The back of the check was endorsed as follows:

(signature) Ralph Frantz

c/o Geraldine Cannon

(signature) Geraldine Cannon

Appellant, Geraldine Cannon, endorsed the check in Ms. Goodman's presence. Because of the incident involving Mr. Leone's checks, the credit union had put an alert on appellant's account. As a result of a remaining overdraft, the credit union withheld $200 and distributed the remaining $630 from the check to appellant.

At the end of the prosecution's case, appellant made a Crim.R. 29 motion for acquittal, which was denied. Appellant objected to the admission of bank statements and bank records for a lack of foundation. The objection was overruled, and all exhibits were admitted. In her defense, appellant testified that Shannon Gillespie owed her money for stealing items from her house, and that she received the forged checks from Ms. Gillespie. On cross-examination, appellant denied that she had forced Ms. Gillespie to sign the checks and accused many of the prosecution's witnesses of lying at the behest of the prosecutor. The overall theme of appellant's testimony was that she may have been careless in accepting the checks from Ms. Gillespie, but that she had done nothing wrong.

The prosecution dismissed count three of the indictment and the jury found appellant guilty on the remaining seven counts. The trial court subsequently sentenced appellant to a total of two years in prison. Appellant appeals from the verdict and sentence and raises the following assignments of error for our review:

"[1.] The trial court erred to the prejudice of the defendant-appellant in dismissing the defendant-appellant's motion for separate trials.

"[2.] The trial court committed reversible error by allowing the state to amend the indictment which prejudiced the defendant-appellant by being prosecuted for crimes upon evidence which was not presented to the grand jury.

"[3.] The defendant-appellant was prejudiced in that the court allowed the state's Exhibits 2A and 2B (bank statements of the defendant-appellant) and state's Exhibit 3 (bank records [of] defendant-appellant's ATM machine deposit).

"[4.] The trial court erred to the prejudice of the defendant-appellant when it allowed, over objection of defendant-appellant, testimony of expert witness Andrew Szymanski.

"[5.] The trial court erred to the prejudice of the defendant-appellant by not granting her oral motion to dismiss count eight of the indictment as the Lake County Court of Common Pleas was not the proper venue, the alleged offense occurred in Cuyahoga County.

"[6.] The trial court erred to the prejudice of the defendant-appellant by allowing the state to proceed on count one of the indictment where the state alleged that Ralph Frantz was the owner of the check when actually the Veteran's Service Commission was the correct owner of the check.

"[7.] The jury verdict was against the manifest weight of the evidence and sufficiency of the evidence and should be reversed because it violates the Fourteenth Amendment of the United States Constitution Due Process Clause."

In her first assignment of error, appellant asserts that the charges against her were not related because there were two separate victims, the crimes occurred four months apart, and that by trying both counts together, the prosecution was able to unfairly introduce cumulative evidence. Appellee responds that even had the trials been separate, evidence of the other acts would have been admissible to show absence of mistake or accident. Appellee cites State v. Benner (1988), 40 Ohio St.3d 301, 533 N.E.2d 701, for the proposition that severance of counts is not required where...