State v. Sherfey
| Decision Date | 21 April 2014 |
| Docket Number | Case No. 13-CA-37 |
| Citation | 2014 Ohio 1717 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. TODD N. SHERFEY Defendant-Appellant |
| Court | Ohio Court of Appeals |
JUDGES:
Hon. W. Scott Gwin, P.J.
For Plaintiff-Appellee
DARREN L. MEADE
For Defendant-Appellant
SCOTT P. WOOD
{¶1} Appellant Todd N. Sherfey ["Sherfey"] appeals his conviction and sentence for one count of receiving stolen property a felony of the fifth degree in violation of R.C. 2913.51 following a jury trial in the Fairfield County Court of Common Pleas.
{¶2} Sherfey was a business owner in Lancaster, Fairfield County, Ohio, operating a precious metals brokerage. In addition to buying and selling precious metals, Sherfey also bought and sold gift cards. With regard to both precious metals and gift cards, Sherfey would profit by buying low and selling high. Typically, Sherfey would sell the gift cards to an Internet clearinghouse. Although there are no governmental regulations regarding the buying and selling of gift cards, Sherfey applied the regulations and documentation relating to the buying and selling of precious metals to the buying and selling of gift cards, including documenting personal information regarding the seller and photocopying governmental identification, usually a driver's license, and providing that information to law enforcement.
{¶3} T.J. Maxx, a retail chain store, through its loss prevention department, discovered that there were a number of individuals who were running a theft ring. These individuals would steal merchandise and other individuals would exchange the merchandise for gift cards. The gift cards would be sold or traded for illegal drugs. When a number of individuals involved in the theft ring were apprehended by law enforcement, one member of the theft ring, Shane Stoughton, in exchange for immunity from prosecution, implicated Sherfey. Stoughton claimed that Sherfey knew the giftcards were generated from stolen property and that he purchased the gift cards for cash. Stoughton agreed to cooperate with police to obtain incriminating information about Sherfey during a sting operation police conducted on December 30, 2011.
{¶4} Prior to the sting operation, Lt. Shane Wilson of the Lancaster Police Department talked to Sherfey about concerns that Stoughton was involved in a theft ring that illegally obtained gift cards from various stores, including T.J. Maxx, that Stoughton then sold to Sherfey. The participants in the theft ring sold approximately $15,000 worth of gift cards at Sherfey's store in 2011. In the three months leading up to the sting operation on December 30, 2011, Stoughton made 15 transactions involving gift cards at Sherfey's business. Stoughton sold $4,500 worth of gift card at Sherfey's business as a result of these transactions.
{¶5} T.J. Maxx conducted its own internal investigation. This investigation uncovered the theft ring. Company investigator Andrew Holloway conducted surveillance in which he observed Stoughton and his associates conducting the activity at the Lancaster T.J. Maxx store. The investigation revealed that Stoughton and the other participants would then go to Sherfey's store apparently to sell the gift cards. Holloway determined that between September and December 2011, T.J. Maxx lost approximately $14,000 as a result of thefts. Holloway made contact with the Lancaster Police Department. On December 29, 2011, officers apprehended persons involved in the theft ring, including Stoughton.
{¶6} Though Sherfey was not always the person Stoughton conducted the transactions with, Sherfey did on occasion conduct business with Stoughton. Sherfeywas "right there" "almost all of the time" and would almost always be involved in the transactions by discussing with his wife (who worked at the store) what percentage of the face value of the gift cards they would pay Stoughton, counting out cash, or calling in cards to a 1-800 number to verify the amount of the cards. In addition to the transactions at his store, Sherfey met Stoughton or his cohorts a couple of times at a nearby parking lot to exchange gift cards for cash, with the dollar amount being approximately $200-$300. Sherfey would engage in suspicious activity when the theft ring participants would sell gift cards at his store. For example, he would direct the sellers to remove the batteries from their cell phones and place them in a refrigerator in the store, go to a back room to discuss matters, and turn the volume on a radio up louder apparently to avoid detection.
{¶7} Stoughton would use terms commonly understood to relate to theft to explain how he had obtained the gift cards, such as "hit a lick, hustled up some cards." Sherfey considered Stoughton to be a friend. Sherfey implored Stoughton to "get legit." He further advised Stoughton to get help for Stoughton's heroin addiction.
{¶8} Approximately two days before the sting operation, Sherfey told Stoughton that Stoughton was on a "do not buy" list kept by the Lancaster Police Department. The following day, Sherfey told Stoughton that if Stoughton wanted to sell gift cards to him Stoughton "would have to bring somebody else in to do it."
{¶9} After the Lancaster Police Department apprehended Stoughton on December 29, 2011, Stoughton agreed to cooperate with the police as a confidential informant to gather incriminating information about Sherfey. On December 30, 2011,after initial police protocols to ensure the operation was controlled, Stoughton went to Sherfey's store with a gift card T.J. Maxx created and the police gave him. There, he talked with Sherfey in a back room after Sherfey turned up the volume on a radio. Sherfey told Stoughton he could not buy gift cards from Stoughton, and that Stoughton could figure out what to do. Sherfey then loaned Stoughton $170, stating to Stoughton, "I can loan you money. It
{¶10} After his initial contact with Sherfey, Stoughton met with police. Karlee Cumbo, one of the other participants in the theft ring, also agreed to cooperate with police. The police and Stoughton placed a recorded call to Sherfey. Stoughton told Sherfey he had "hustled up some more cards" and wanted to know if Sherfey would buy them. Sherfey stated he could not buy the cards from Stoughton, but he would be able to buy cards "from people" that day. Stoughton told Sherfey that he and his girlfriend would be there shortly.
{¶11} The police issued Stoughton three gift cards purporting to be from T.J. Maxx and valued at more than $1,000. Stoughton walked with Cumbo into Sherfey's store with the cards in his hand. Sherfey stated he could not buy the cards from Stoughton. Stoughton then handed the cards to Cumbo. Sherfey directed Stoughton outside, saying "Let's go talk."
{¶12} While outside, Sherfey made statements that indicated his knowledge of the illegal nature of the cards Stoughton was selling and had been selling. Sherfey told Stoughton he would prefer it if Stoughton would "send in" another person rather than bringing the other person inside the business. Sherfey had previously told Stoughtonthat Stoughton was on a "do not buy" list he believed the Lancaster Police Department was keeping. While outside the store, Sherfey talked about how his business associate advised him not to buy gift cards from people on the list. At that point, Stoughton indicated to Sherfey that was the reason he brought Cumbo. Sherfey and Stoughton also discussed T.J. Maxx becoming aware of the fraudulent gift card activity. Sherfey told Stoughton if he did not stop, Stoughton was "going to get caught."
{¶13} Sherfey explained that as a result of the police and T.J. Maxx becoming aware of the fraudulent gift card activity, he was lowering the amount he would pay for T.J. Maxx cards as opposed to gift cards from other stores. This was Sherfey's attempt to dissuade people from selling the cards to him. Stoughton also talked to Sherfey about Stoughton's addiction to illegal drugs and how that was causing him to engage in "illegal" activity. Cumbo sold the gift cards to Sherfey's wife inside the business while Sherfey and Stoughton talked outside. Sherfey's wife Olga Sherfey, worked at the business. Olga documented the transaction as with any other gift card transaction. After Olga purchased the gift cards from Cumbo, she put them in the business drawer.
{¶14} Immediately after the transaction, law enforcement entered the store, seized the cards from the business drawer where Olga had placed them and arrested Sherfey and charged him with receiving stolen property.
{¶15} On August 24, 2012, Sherfey was indicted with two counts of receiving stolen property in violation of R.C. 2913.51. In Count 1 of the Indictment, the state alleged that the theft offense involved property listed in R.C. 2913.71 and, therefore, was a felony of the fifth degree. In Count 2 of the Indictment, the state alleged that thevalue of the property involved was $1,000 or more, making the offense a felony of the fifth degree.
{¶16} Prior to the beginning of the jury trial, the state dismissed Count 1 of the Indictment and the trial proceeded on Count 2 only (referenced throughout the trial as Count A). After the presentation of evidence and deliberations, the jury returned a verdict of guilty to receiving stolen property and additionally found that the value of the property exceeded $1,000.
{¶17} On April 15, 2013, Sherfey was sentenced to 11 months in a state penal institution, suspended for 3 years of community control, with the condition that he serve 30 days in the Fairfield...
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