State v. Spencer
| Decision Date | 28 February 2023 |
| Docket Number | 2021 CA 00085 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. THOMAS SPENCER Defendant-Appellant |
| Court | Ohio Court of Appeals |
Appeal from the Licking County Court of Common Pleas, Case No. 19 CR 416
For Plaintiff-Appellee:
WILLIAM C. HAYES
LICKING COUNTY PROSECUTOR
CLIFFORD J. MURPHY
For Defendant-Appellant:
ELIZABETH A. MOTE
Wolfe Law Group, LLC
{¶1} Defendant-Appellant Thomas Spencer appeals his October 6, 2021 conviction and sentence by the Licking County Court of Common Pleas. Plaintiff-Appellee is the State of Ohio.
{¶2} On October 11, 2018, the Licking County Grand Jury indicted Defendant-Appellant Thomas Spencer for two counts of forgery felonies of the fifth degree, based on crimes that allegedly occurred on July 18, 2018. Spencer appeared at his arraignment on October 16, 2018 and entered a plea of not guilty to the charges. He was appointed trial counsel.
{¶3} Spencer's trial counsel filed a motion to withdraw on October 24, 2018, which was granted on October 29, 2018. Second trial counsel was appointed. Second appointed trial counsel filed a discovery request on November 8, 2018. The State provided the discovery on November 8, 2018 and demanded reciprocal discovery, which the trial ordered to be provided by November 22, 2018.
{¶4} A pretrial was held on November 9, 2018, which scheduled the matter for trial on November 29, 2018. On November 9, 2018, Spencer filed a motion to continue the jury trial. Also on November 9, 2018, Spencer filed a notice of the affirmative defense of duress. The trial court granted the motion to continue and scheduled the jury trial for December 20, 2018.
{¶5} On November 14, 2018, Spencer filed a motion to reduce bond, which was denied on November 16, 2018, but Spencer posted bond on November 26, 2018 and was released from the county jail.
{¶6} On December 6, 2018, Spencer filed a motion to continue the jury trial. The trial court granted the motion and rescheduled the jury trial to January 22, 2019. On January 10, 2019, Spencer filed a motion to continue the jury trial because he was in the Pickaway County Jail on another offense and had a holder warrant from Clark County on another offense. The trial court granted the motion to continue the jury trial and rescheduled the jury trial to February 21, 2019.
{¶7} Spencer provided the State with the reciprocal discovery on January 14, 2019.
{¶8} On February 20, 2019, the trial court sua sponte continued the jury trial to March 5, 2019 due to a conflicting trial.
{¶9} On February 27, 2019, Spencer's trial counsel filed a motion to continue the jury trial, which trial counsel withdrew when Spencer filed a pro se motion to dismiss due to a speedy trial violation on February 28, 2019.
{¶10} The jury trial commenced on March 5, 2019, but Spencer failed to appear. The trial court issued a capias for Spencer's arrest, and he was arrested on May 7, 2019. The jury trial was rescheduled to May 9, 2019. On May 9, 2019, the State filed a motion to dismiss the indictment without prejudice, which the trial court granted on May 9, 2019.
{¶11} On May 30, 2019, the Licking County Grand Jury returned an indictment charging Spencer with one count of forgery, a felony of the fifth degree in violation of R.C. 2913.31(A)(1), and one count of forgery, a felony of the fifth degree in violation of R.C. 2913.31(A)(3), based on a crime that allegedly occurred on July 18, 2018.
{¶12} On May 26, 2020, the Ohio Department of Rehabilitation and Correction submitted notice to the State that Spencer was currently imprisoned with 878 days remaining on his prison sentence based on his conviction and sentence in Cuyahoga County. In the notice, Spencer requested an early disposition of any untried indictment, information, or complaint under Section 2941.401.
{¶13} Spencer was arraigned on October 27, 2020, entered a plea of not guilty, and requested appointed trial counsel. The trial court appointed trial counsel on October 30, 2020. First appointed counsel requested discovery on November 2, 2020.
{¶14} The trial court held a pretrial on November 18, 2020, where it scheduled the jury trial for March 23, 2021.
{¶15} On February 19, 2021, first appointed counsel filed a motion to withdraw. The trial court granted the motion on March 10, 2021 and appointed second trial counsel. Second appointed counsel requested discovery on March 10, 2021.
{¶16} Second appointed counsel filed a motion to withdraw on March 12, 2021. The trial court granted the motion and appointed third trial counsel on March 15, 2021.
{¶17} The trial court held a pretrial on March 19, 2021. The pretrial order scheduled the jury trial for March 23, 2021. As to speedy trial provisions, the pretrial order stated they were "currently tolled."
{¶18} On March 22, 2021, Spencer filed a motion to continue the jury trial, which the trial court granted on March 23, 2021. The trial court rescheduled the jury trial to May 5, 2021, noting that speedy trial time was tolled due to the defense motion to continue.
{¶19} On April 14, 2021, the State filed the bill of particulars, and demanded reciprocal discovery.
{¶20} Spencer filed a motion to continue the jury trial, which the trial court granted on May 4, 2021. The jury trial was rescheduled to June 17, 2021, noting that speedy trial time was tolled due to the defense motion to continue. On June 3, 2021, the State filed a motion to continue, which the trial court granted on June 4, 2021. The jury trial was rescheduled to July 14, 2021.
{¶21} On June 7, 2021, Spencer filed a motion to dismiss based on speedy trial violations. The State filed a motion to continue the jury trial, which the trial court denied on July 8, 2021. On July 14, 2021, the State filed its response to the motion. The trial court held a hearing on July 14, 2021, where it discussed Spencer's motion to dismiss and also Spencer's notification that he wished to waive the jury trial and change his plea to guilty. At the hearing, the trial court stated it reviewed the motion to dismiss and the State's response, where it calculated the dates, and found that the speedy trial time had not run. (T. 3). The trial court next inquired as to Spencer's request to enter a plea of guilty. Spencer stated that he had "bamboozled" his appointed counsel by pretending to plead guilty so that he could get before the trial court to explain his situation. (T. 14). At that statement, appointed counsel moved to withdraw from the case, which the trial court granted. (T. 15). Spencer stated he wished to represent himself. The trial court conducted its inquiry and permitted Spencer to represent himself but appointed Spencer standby trial counsel. Via judgment entry filed July 14, 2021, the trial court scheduled the jury trial for September 1, 2021.
{¶22} On July 21, 2021, Spencer filed a pro se motion to dismiss. On July 26, 2021, Spencer filed a pro se notice of appeal with this court, which we dismissed on August 31, 2021 for lack of a final, appealable order.
{¶23} The jury trial commenced on October 5, 2021. Spencer represented himself at trial. The following facts were adduced at trial.
{¶24} On July 18, 2018, Spencer and his wife, Michelle Fernan, entered the People's Bank branch, located in Heath, Ohio. Spencer presented check # 102739 to the bank teller, drawn on the account of the Velvet Ice Cream company and payable to Spencer in the amount of $985.00. Fernan also presented a check drawn on the account of the Velvet Ice Cream company, payable to Fernan, in the amount of $985.00. Velvet Ice Cream Company was an account holder at People's Bank. Spencer was not an account holder at People's Bank.
{¶25} Spencer told the teller that he had just started working at Velvet Ice Cream and he did not have direct deposit because he had just started working there. He signed the back of the check, presented his driver's license and phone number to the teller, and placed his thumb print on the check. The teller cashed the check and provided Spencer with the funds. Spencer and Fernan left the bank branch.
{¶26} After they left, the bank branch manager contacted the Velvet Ice Cream chief financial officer, who stated Spencer and Fernan were not employees, vendors, or payees of Velvet Ice Cream. The check number did not appear in the Velvet Ice Cream records. The CFO testified check # 102739 was not a check authorized by the company; there were multiple differences between the authorized checks used by the Velvet Ice Cream company and the check cashed by Spencer on July 18, 2018.
{¶27} The bank branch manager contacted the Heath Police Department. The bank branch manager reviewed the surveillance video for the Heath branch on July 18, 2018, where she identified Spencer, Fernan, and a third individual named Drew Westover in the bank lobby while cashing the Velvet Ice Cream checks. The surveillance video was entered into evidence. Patrolman Jason Black of the Heath Police Department used LEADS to identify identified Spencer as the individual cashing the check.
{¶28} The Licking County Grand Jury indicted Spencer on one count of forgery under R.C. 2913.31(A)(1) and one count of forgery under R.C. 2913.31(A)(3). The two counts were based on one fraudulent check cashed by Spencer on July 18, 2018. On April 14, 2021, the State filed the bill of particulars. The bill of particulars stated that on July 18, 2018, three individuals had presented fraudulent checks for payment at ...
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