State v. Walter Evans

• Decision Date: 01 August 1993
• Docket Number: C-910515,C-910443,93-LW-2062
• Parties: STATE OF OHIO, Plaintiff-Appellee, v. WALTER EVANS, Defendant-Appellant. APPEAL
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-Appellee, v. WALTER EVANS, Defendant-Appellant.

Nos. C-910443, C-910515

93-LW-2062 (1st)

Court of Appeals of Ohio, First District Hamilton

August 18, 1993

TRIAL NO. B-893269

Criminal Appeals From: Hamilton County Court of Common Pleas

Joseph T. Deters, Prosecuting Attorney, No. 0012084, and Christian J. Schaefer, Esq., No. 0015494, 411 Hamilton County Courthouse, Court and Main Streets, Cincinnati, Ohio 45202 for Plaintiff-Appellee,

Howard D. Cade, III, Esq., No. 0040187, 22 West Ninth Street Cincinnati, Ohio 45202, for Defendant-Appellant.

DECISION

PER CURIAM.

This cause came on to be heard upon the appeals, the tran-scripts of the docket, journal entries and original papers from the Hamilton County Court of Common Pleas, the transcripts of the proceedings, and the briefs and arguments of appellant pro se, and counsel.

I. INTRODUCTION

After trial by jury, Walter Evans appeals his convictions for theft (R.C. 2913.02), breaking and entering (R.C. 2911.13), and vandalism (R.C. 2909.05).^[1] The convictions rose from an embezzlement scheme in which appellant stole money, files, and personal property from his employer, Subrogation Recovery Consul-tants, Inc. ("SRC"). When appellant first became associated with SRC, it was owned by Patricia Shott, who was the sole shareholder and director of the corporation. While appellant was misappropri-ating SRC assets, Shott sold the corporation to Tim Smith, who then became the exclusive shareholder and director. With the money that appellant siphoned from the corporation during Shott's regime, he attempted to buy a controlling share of SRC stock. While SRC was under Smith's command, appellant attempted to operate a competing subrogation enterprise using files that he took during a break-in at the SRC offices.

In thirty assignments of error, appellant brings a broad-based attack on evidentiary rulings, sufficiency and weight of the evidence, jury instructions, trial court discretion, prosecutorial misconduct, and the constitutionality of his conviction.^[2] The assignments of error are not well made.

II. EVIDENCE

In the first assignment of error, appellant claims that the trial court improperly admitted testimony concerning crimes for which he previously had been accused. During appellant's cross- examination of Tim Smith, SRC director and former attorney for appellant, he attacked the witness's legal professional competence. To rehabilitate the witness during redirect, the prosecutor elicited information about criminal cases in which Smith previously had successfully represented appellant. In those earlier prose-cutions, Smith defended appellant against charges of domestic violence, assault, theft, and carrying a concealed weapon. In addition to rehabilitating the witness, appellant maintains that his own bad character was shown by Smith's testimony.

Generally, the trial judge has wide latitude to make eviden-tiary rulings. Peters v. Ohio State Lottery Comm. (1992), 63 Ohio St. 3d 296, 587 N.E.2d 290; Renfro v. Black (1990), 52 Ohio St. 3d 27, 32, 556 N.E.2d 150, 155. However, Evid. R. 404(A) prohibits the admission of character evidence to show that a person conformed with prior conduct on a particular occasion. Character evidence may, however, be used for other reasons. Despite the general prohibition, evidence of convictions for crimes of dishonesty can be used to impeach the credibility of a witness. Evid. R. 609(A)(3). In addition, the prosecution can give pertinent evidence of the character of a victim of crime to rebut earlier testimony attacking that person's individual traits. Evid. R. 404(A)(2). The character of a witness also can be attacked with past conduct to show his or her truthfulness or dishonesty. Evid. R. 404(A)(3) (incorporating Evid. R. 607, 608, and 609).

In this case, appellant was not found guilty of the domestic violence, theft, and concealed weapon charges. Therefore, the Evid. R. 609 past-conviction exception does not apply. State v. Tharp (1976), 49 Ohio App. 2d 291, 295, 361 N.E.2d 469, 472. The past-conviction exception also will not allow evidence of the misdemeanor assault conviction because that crime is not one of dishonesty. State v. Nolan (1992), 78 Ohio App. 3d 564, 568-70, 605 N.E.2d 480, 483-84. Moreover, the state's evidence of Smith's competence is not permitted to show the character of a victim because SRC, not the witness, was the object of appellant's crimes. Evid. R. 404(A)(2). Finally, the character evidence could not be used to show Smith's credibility as a witness under Evid. R. 404(A)(3) because that trait could not properly be attacked or supported by showing his ability as an attorney. See, e.g., State v. Clark (Aug. 14, 1991), Hamilton App. Nos. C-900245, C-099246, unreported. Therefore, the prior instances of appellant's conduct do not fit into any of the relevant exceptions that allow character evidence.

When a person intentionally or unintentionally misleads or induces a trial judge to make an error, that party may not attack the judgment on the basis of actions for which he was responsible. Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co. (1986), 28 OhioSt. 3d 20, 502 N.E.2d 590, paragraph one of the syllabus; State ex rel. Royal v. City of Columbus (1965), 3 Ohio St. 2d 154, 156, 209 N.E.2d 405, 407. Here, appellant invited error during cross-examination by attacking Smith's legal competence, not his credibility. Evid. R. 404(A)(3). Therefore, because appellant was the proponent of improper character evidence on cross-examination, he cannot assign as error otherwise impermissible testimony presented by his opponent as rebuttal. Center Ridge Ganley, Inc. v. Stinn (1987), 31 Ohio St. 3d 310, 313, 511 N.E.2d 106, 109. Because the error was invited by the appellant, the assignment of error is not well made.^[3]

In his second assignment of error, appellant argues that the trial court erred by permitting the state to submit evidence of his prior securities violations. Unless a crime is punishable by death or imprisonment for greater than one year, an accused may not be impeached by any prior conviction unless it "involved dishonesty or false statement." Evid. R. 609(A)(1)-(3).

Although appellant's exact prior statutory violation is not clear from the record, the prosecution questioned him about "attempted sale of unregistered securities." (T.p 7594.) Selling nonexempt unregistered securities is prohibited and illegal, but it is not necessarily a fraudulent act. See, generally, State v. Trivedi (1982), 8 Ohio App. 3d 412, 416, 457 N.E.2d 868, 873. Because there is no evidence in the record that appellant "defraud-ed any person" during the commission of these crimes, they were not properly admitted under Evid. R. 609(A)(3). Id.

Questions concerning past crimes that are not admissible under Evid. R. 609 still may be used to impeach a witness's credibility under Evid. R. 404(A)(3) and 611(B). During his cross-examination and in response to an unrelated question, appellant volunteered that his prior "security charge was groundless." (T.p. 7589.) When the prosecutor subsequently questioned appellant about his conviction for that crime, the jury was able to see that the charge was not groundless. Consequently, appellant's credibility permissibly was attacked. The second assignment of error is overruled.(fn )

In his third assignment of error, appellant argues that the trial court erred by allowing the prosecution to impeach his credibility with extrinsic evidence. Under Evid. R. 608(B), any party may attack the credibility of any witness by inquiring into specific instances of that person's conduct that illustrate untruthfulness. This impeachment, however, may be done by questions only, not extrinsic evidence. Evid. R. 608(B); State v. Watson (1991), 61 Ohio St. 3d 1, 8, 572 N.E.2d 97, 104-05.

In this case, appellant, who at one time was a licensed attorney, was impeached by the circumstances surrounding his disbarment from the practice of law. First, the prosecutor inquired into this specific instance of appellant's conduct. Because the conduct involved misappropriation of client funds, thequestions attacked appellant's character for truthfulness, and the court did not err by allowing the inquiries. Subsequently, however, the court allowed the prosecutor to read a letter detailing complaints against appellant by the victim of the misappropriation. That letter was extrinsic evidence used to impeach appellant. See, e.g., State v. Theuring (1988), 46 Ohio App. 3d 152, 155, 546 N.E.2d 436, 439 (police report). Therefore, the court violated Evid. R. 608(B) by allowing the prosecutor to read its contents to the jury.

When the trial court wrongly admits evidence against an accused, the court of appeals will not order a new trial when the error is harmless. Crim. R. 33(E)(3) and 52(A); State v. Bayless (1976), 48 Ohio St. 2d 73, 357 N.E.2d 1035, paragraph seven of the syllabus, vacated in part on other grounds (1978), 438 U.S. 911, 98 S. Ct. 3135. To be harmless error, there must be no reasonable possibility that the evidence contributed to appellant's convic-tion. Id. The error is harmless if there was a mass of permissi-ble evidence that thoroughly accomplished the same result. Id.

Here the essence of appellant's defense was that he had SRC's consent for the use to which he put its resources. Shott and Smith, SRC's only two shareholders and directors, both testified that appellant did not have consent. Additionally, there was evidence that appellant forged endorsements on checks payable to clients (T.p. 1638, St. Exh. 47), added payee names on checks payable to SRC (T.p. 1122, St. Exh. 32), falsified SRC books to divert money owed to clients (T.p. 3955, St. Exh. 176), forged an SRC corporate...