State v. Joyce Adams-Nienaber, 88-LW-2045

Decision Date13 June 1988
Docket Number10469,88-LW-2045
PartiesSTATE of Ohio, Plaintiff-Appellee, v. Joyce ADAMS-NIENABER, Defendant-Appellant.
CourtOhio Court of Appeals

Lee C Falke, Prosecuting Attorney for Montgomery County by Ted Millspaugh, Assistant Prosecutor for the State of Ohio Dayton, for plaintiff-appellee.

Dennis L. Bailey, Dayton, for defendant-appellant.

OPINION

FAIN Judge.

Defendant-appellant Joyce Adams-Nienaber appeals from her conviction on two counts of forgery, claiming that her motion for a judgment of acquittal should have been granted, since the allegedly forged charge slips were not themselves admitted in evidence. Although there was secondary evidence of the forgeries, she claims that the best evidence rule requires acquittal. We conclude that the best evidence rule does not preclude a conviction where, as in this case, the prosecution offers the original documents, but they are excluded from evidence upon the defendant's motion because of some writing on the documents that cannot be accounted for, with no showing that the extraneous writing on the documents was in any way the fault of the prosecution. Accordingly, the judgment of the trial court will be affirmed.

I

Adams-Nienaber was indicted on two counts of Forgery involving her use of a stolen credit card. She was also indicted on one count of Receiving Stolen Property in connection with her possession and use of the stolen credit card.

During the trial, the prosecutor offered the charge slip to which Adams-Nienaber allegedly forged the credit card holder's name. Adams-Nienaber objected to the admission of the charge slip because of some writing on the slip for which none of the witnesses could account. The trial court sustained the objection and excluded the evidence.

Brian Thomas, the service station attendant from whom Adams-Nienaber purchased gasoline and some cigarettes, testified that Adams-Nienaber gave him the stolen credit card in the name of Clara Metzger, that he took it into his office and imprinted the card onto the charge slip, that he subsequently took the charge slip and card out to Adams-Nienaber, whom he identified at trial, and that he witnessed her sign the name "Clara Metzger" to the charge slip.

After the State rested, Adams-Nienaber moved for a judgment of acquittal, which was overruled. At the conclusion of all of the testimony, the jury returned a verdict convicting Adams-Nienaber as charged, a judgment of conviction was entered on the verdict, and she was sentenced accordingly. From her convictions and sentences for Forgery, Adams-Nienaber appeals.

II

Adams-Nienaber's sole Assignment of Error as follows:

THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION FOR ACQUITTAL ON THE TWO COUNTS OF FORGERY SINCE THE ALLEGEDLY FORGED INSTRUMENT WAS NOT ADMITTED AS EVIDENCE.

Preliminarily, the State cites State v. Parks (1982), 7 Ohio App.3d 276, for the proposition that since Adams-Nienaber proceeded with her defense after her motion for judgment of acquittal made at the close of the State's case was overruled, she waived any error in connection with the motion for judgment of acquittal. This Court has some doubts concerning the correctness of State v. Parks, supra, a decision of this Court, but it is not necessary to decide whether to overrule the Parks in deciding this case. We find no error in the trial court's overruling of the motion for judgment of acquittal.

...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT