State v. Schulman
| Decision Date | 20 August 2020 |
| Docket Number | No. 19AP-566,19AP-566 |
| Citation | 2020 Ohio 4146,157 N.E.3d 848 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Yaakov M. SCHULMAN, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
On brief: Ron O'Brien, Prosecuting Attorney, and Daniel J. Stanley, for appellee. Argued: Daniel J. Stanley.
On brief: Samuel H. Shamansky Co., L.P.A., Samuel H. Shamansky, Donald L. Regensburger, and Colin E. Peters, Columbus, for appellant. Argued: Samuel H. Shamansky.
DECISION
{¶ 1} Defendant-appellant, Yaakov M. Schulman, appeals from the judgment of the Franklin County Court of Common Pleas convicting him of illegal voting in violation of R.C. 3599.12. For the following reasons, we affirm the judgment of the trial court.
{¶ 2} On September 14, 2017, a Franklin County Grand Jury indicted appellant in case No. 17CR-5021 on one count of false voter registration, in violation of R.C. 3599.11, a felony of the fifth degree, and one count of illegal voting, in violation of R.C. 3599.12, a felony of the fourth degree. Appellant entered a plea of not guilty to all charges.
{¶ 3} On October 2, 2017, appellant filed a demand for discovery, which plaintiff-appellee, State of Ohio, responded to with an initial discovery packet on October 30, 2017. A supplemental response to appellant's request for discovery was filed on May 21, 2019.
{¶ 4} After a number of continuances, the case proceeded to a jury trial on June 3, 2019. At the start of the trial, the parties stipulated to the findings of the handwriting analyst, William Bennet, "that all writing on questioned documents were the handwriting of the defendant Yaakov Schulman including signatures." (State's Ex. E.) The parties also stipulated that appellant was not a United States citizen but a lawful resident alien commonly referred to as a "Green Card holder." (Tr. Vol. 1 at 42.)
{¶ 5} The state first called Special Agent Kevin Barbeau. Barbeau testified that he worked for the Ohio Attorney General's Office, Bureau of Criminal Investigation, assigned to the Southeast Ohio Special Investigations Unit. Barbeau stated that the Ohio Secretary of State's Office provided him a list of individuals, including appellant, that were potentially connected to false voter registration and illegal voting. Barbeau was given copies of appellant's voter registration form, application for an absentee ballot, and absentee ballot envelope.
{¶ 6} Barbeau testified he interviewed appellant at his home concerning the board of elections' documents. According to Barbeau, appellant originally claimed he was a United States citizen and produced his green card, which more accurately noted he was a permanent resident, non-citizen. Barbeau recounted appellant said he moved to the United States in August 2012, and he filled out the voter registration form at the Bureau of Motor Vehicles ("BMV"). While appellant acknowledged "that he had filled [out the application for absentee ballot]" and absentee ballot envelope, he denied ever voting in an election. (Tr. Vol. 1 at 61.) Barbeau testified the absentee ballot envelope says "that there's a ballot within the envelope, and it's got [appellant's] last four of his Social Security number and his signature on it, and it's an envelope from the Board of Elections." (Tr. Vol. 1 at 79.)
{¶ 7} The state called Alicia Healy as its next witness. Appellant objected contending that Healy was not on the prosecutor's witness list. The prosecutor initially argued that the witness had been disclosed in discovery, and Healy was subpoenaed on May 10, 2019 so appellant should have known she was a witness. The prosecutor also claimed that he verbally told opposing counsel about the witness, which was disputed by appellant. The trial court concluded that while the witness was not disclosed, appellant would be allowed to interview her "a couple minutes or so" before cross-examination. (Tr. Vol. 1 at 97.)
{¶ 8} Healy testified she is the voter services supervisor for the board of elections, where she has worked since 2013. According to Healy, when a voter registration comes into the board of elections, it is scanned into the system and three different individuals review each form. Once an application is processed, the voter will receive a letter acknowledging he or she is a registered voter in Franklin County. Healy described what individuals constituted a qualified voter in Ohio and Franklin County. According to Healy, the only way to become a registered voter in Ohio is by filling out the voter registration form. Healy testified that voter registration forms are kept in the normal course of business at the board of elections electronically with the originals stored in a location off-site. Healy stated she accessed appellant's voter registration form as part of her investigation in this case and testified it was a true and accurate copy of the voter registration retained by the board of elections. Healy continued noting the registration form included appellant's name, address, birth date, signature, and was dated September 13, 2012. Healy testified that above appellant's signature, the form reads "I declare, under penalty of election falsification, I am a citizen of the United States, will have lived in this state for 30 days immediately preceding the next election, and I will be at least 18 years of age at the time of the general election." (Tr. Vol. 1 at 127-28.) Healy testified, based on her experience and training at the board of elections, the voter registration process has not changed since 2012.
{¶ 9} The state called Matthew Kelly as its third witness. Appellant objected and moved to exclude Kelly, arguing he was also not disclosed as a witness. The prosecutor repeatedly claimed that Kelly was disclosed as a witness but eventually conceded that "[h]e must not have been put in there." (Tr. Vol. 1 at 139.) The trial court asked what the nature of the testimony entailed:
{¶ 10} The prosecutor offered to "tak[e] a continuance and giv[e] defense counsel ample time to interview him and discuss the two question documents." (Tr. Vol. 1 at 143.) The trial court provided the following limiting instruction: "[I]f the testimony of this witness is to authenticate some documents that were not only subject to discovery, but are openly being discussed throughout the trial, I'll allow the witness to testify, I guess, on the condition that * * * this person is just authenticating some documents." (Tr. Vol. 1 at 144.) The trial court also allowed appellant's counsel to interview Kelly and if any other "red flags" arose, the court would revisit the issue. (Tr. Vol. 1 at 144.) During the recess, counsel for appellant interviewed Kelly and noted no objection after speaking with the witness.
{¶ 11} Kelly has been the manager of absentee voting for the board of elections since February 5, 2019. According to Kelly, all absentee voter applications are scanned into the system. The original absentee ballot applications have a "retention schedule of four years," and the identification envelope "that is returned to us that we scan back in with the ballots as they come in" has a 22-month retention schedule. (Tr. Vol. 1 at 158.) Kelly testified (Tr. Vol. 1 at 159.) When the ballots are taken from the envelope, there are no identifying marks that connect the ballot to the voter. Kelly stated he reviewed appellant's entire record and looked at the records attached to his file to confirm the records were accurate. Kelly testified he knows how the records are kept at the board of elections and identified appellant's application and envelope as true and accurate copies. Kelly testified the envelope, marked as Exhibit C, included appellant's name and address, which matched the information on the other documents:
The record indicates appellant's absentee voter identification envelope was signed on October 20, 2012. Above appellant's name and address, the envelope notes in capitalized bold letters "ABSENTEE BALLOT CONTAINED HEREIN WAS MAILED TO." (State's Ex. C.) The envelope also includes a statement that reads in relevant part:
I declare under penalty of election falsification that I am a qualified elector of the State of Ohio and that the ballot or ballots within contained no voting marks of any kind when I received them, and that I caused the ballot or ballots to be marked, enclosed in the identification envelopes, and sealed in the envelope.
(State's Ex. C.)
{¶ 12} The prosecutor then asked Kelly "[h]ow do you know that this envelope with Mr. Schulman's name and address on it, whether or not it contained a ballot or not to be processed and counted in the 2012 general election." (Tr. Vol. 1 at 173.) Appellant objected to the question, which was ultimately overruled. Kelly testified:
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