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State v. Agostini

Court of Appeals of Ohio, Twelfth District, Warren

May 30, 2017

STATE OF OHIO, Plaintiff-Appellee,
JERRY T. AGOSTINI, JR., Defendant-Appellant.


          Mike DeWine, Ohio Attorney General, Stephen Maher, and David P. Fornshell, Warren County Prosecuting Attorney, Kirsten Brandt, for plaintiff-appellee

          Bryan Hicks, for defendant-appellant.


          HENDRICKSON, P.J.

         {¶ 1} Defendant-appellant, Jerry T. Agostini, Jr., appeals from his convictions in the Warren County Court of Common Pleas stemming from a criminal enterprise in which he obtained motor vehicles and money through deception from various car dealerships located throughout Ohio and Kentucky. For the reasons set forth below, we affirm appellant's convictions.

         {¶ 2} On August 28, 2015, appellant was indicted in Warren County Court of Common Pleas Case No. 15CR31283 on the following counts: one count of engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1), a felony of the second degree; eight counts of grand theft of a motor vehicle by deception in violation of R.C. 2913.02(A)(3), felonies of the fourth degree; ten counts of theft by deception in violation of R.C. 2913.02(A)(3), where three counts were felonies of the fourth degree and seven counts were felonies of the fifth degree; two counts of attempted grand theft of a motor vehicle by deception in violation of R.C. 2913.02(A)(3) and 2923.02(A), felonies of the fifth degree; one count of attempted theft by deception in violation of R.C. 2913.02(A)(3) and 2923.02(A), a felony of the fifth degree; two counts of receiving stolen property of a motor vehicle in violation of R.C. 2913.51(A), felonies of the fourth degree; four counts of receiving stolen property in violation of R.C. 2913.51(A), where two counts were felonies of the fourth degree and two were felonies of the fifth degree; and one count of theft of a check by deception in violation of R.C. 2913.02(A)(3), a misdemeanor of the first degree.

         {¶ 3} On December 21, 2015, appellant was indicted in Warren County Court of Common Pleas Case No. 15CR31555 on one count of identity fraud in violation of R.C. 2913.49(B)(1) and one count of forgery in violation of R.C. 2913.31(A)(1), felonies of the second degree as the victim of the offenses, Don Weber, was an elderly person.

         {¶ 4} The charges arose out of appellant's conduct between January 21, 2014, and February 25, 2015, wherein appellant used his company, Engineered Environmental, LLC, false financial documents, and the identity of others to obtain or attempt to obtain 12 motor vehicles and various pieces of commercial construction equipment from car dealerships and businesses located in Fort Mitchell, Kentucky and Cuyahoga, Warren, and Hamilton Counties in Ohio.[1] Engineered Environmental was a home improvement company that had three bank accounts with Chase Bank. Bank records for these accounts indicated that the highest balance in any of these accounts was $375. Appellant, however, represented his business as a multimillion dollar business and presented false financial statements to car dealerships and the dealerships' credit companies in order to obtain financing for vehicles. Appellant presented documentation purportedly for Engineered Environmental for the years ending in December 2012 and December 2013. The financial documents falsely claimed to have been audited by the prestigious accounting firm "DeLoitte & Touche, USA, LLP" and set forth a gross profit for Engineered Environmental of $3, 077, 000 in 2012 and $3, 427, 300 in 2013 and a net income of $350, 500 in 2012 and $376, 300 in 2013.

         {¶ 5} Using these false documents and either his own identity or that of Robert Yenke or Don Weber, appellant deceptively obtained vehicles or commercial equipment for his business.[2] When obtaining the vehicles, appellant would also exploit the sales practice of financing "upfit" improvements to the vehicles to fraudulently obtain cash for vehicle upgrades that were never completed.[3] In a typical upfit transaction, a customization is performed by a company that receives a referral from the vehicle dealership. The cost of the upfit is estimated and is added to the customer's loan amount for the vehicle purchase. When the loan proceeds become available, the dealership pays the upfit provider directly after receiving an invoice. The customer makes monthly payment towards the loan, and this payment is applied towards the cost of the vehicle and the cost of the upf it.

         {¶ 6} Appellant did not follow this practice with respect to upfitting the vehicles he fraudulently obtained. Rather than using a business known to the dealerships for the upfit work, appellant claimed the work was completed by various businesses with whom he had a relationship. Appellant produced false invoices from these businesses claiming that the upfit work had been completed and paid for by appellant's business, even though no work had been started or completed on the vehicles. The dealerships then sent checks to Engineered Environmental for the cost of the upfit work appellant alleged he had already paid.[4] Appellant cashed these checks at various CheckSmart locations. Through his deceptive actions, appellant was able to obtain over $75, 000 in cash for upfit work that was never performed.

         {¶ 7} Eventually law enforcement was apprised of appellant's conduct and an investigator in the economic crime unit of the Ohio Attorney General's Office began looking into the matter. This investigation led to the charges set forth in the indictments.

         {¶ 8} The two indictments were consolidated for trial, and a jury trial commenced on January 19, 2016. The state called more than 30 witnesses and presented hundreds of documents related to appellant's financial transactions with the dealerships and the dealerships' credit companies. These documents, as well as photographs of the vehicles fraudulently obtained by appellant, the false invoices appellant presented for the cost of the upfits, a cut up check bearing Yenke's signature found in appellant's residence, an audio clip of appellant's voice, video recordings of appellant cashing the upfit checks at CheckSmart, and photographs and documents pertaining to photo lineups performed by the Union Township Police Department and Warren County Sheriff's Office, were accepted into evidence by the trial court. Following the state's presentation of its case-in-chief, appellant moved for acquittal pursuant to Crim.R. 29, but his motion was denied by the trial court. Thereafter, appellant rested his defense without calling any witnesses, and the matter was submitted to the jury.

         {¶ 9} The jury rendered guilty verdicts on all counts set forth in both indictments. After merging some of appellant's convictions as allied offenses of similar import, appellant was sentenced to an aggregate prison term of 19 years. The trial court ordered appellant to pay restitution in the amount of $142, 309.08.

         {¶ 10} Appellant timely appealed his convictions, raising five assignments of error.


         {¶ 11} Assignment of Error No. 1:


         {¶ 13} In his first assignment of error, appellant argues the trial court committed prejudicial and reversible error in instructing the jury. Appellant raises two arguments: the first argument involves the trial court's "attempt" jury instruction as it pertained to Counts 18, 19, and 20 in Case No. 15CR31283, and the second argument involves the court's failure to give a jury instruction regarding the credibility of an eyewitness identification resulting from a photo lineup.

         A. "Attempt" Jury Instruction

         {¶ 14} Counts 18 and 20 charged appellant with attempted grand theft of a motor vehicle by deception and, respectively, involved a 2015 Mercedes-Benz Freightliner Van from Fyda Freightliner in Hamilton County, Ohio and a 2014 Audi A5 from Audi Connection in Hamilton County, Ohio. Count 19 charged appellant with attempted theft by deception of a 50G Compact Excavator and HH60 Hydraulic Breaker valued at more than $77, 000 from Murphy Tractor in Hamilton Ohio. Although appellant submitted loan documents to obtain the various vehicles and commercial equipment identified, he was, for various reasons, unsuccessful in obtaining possession of the items and was therefore charged with attempt.

         {¶ 15} The trial court's jury instructions for Counts 18, 19, and 20 mirrored the standard instructions as set forth in Ohio Jury Instructions, CR Section 523.02(1). For instance, with respect to Count 18, the trial court instructed the jury, in relevant part, as follows:

Count 18 is attempted grand theft of a motor vehicle by deception. Defendant is charged with the attempt to commit the offense of grand theft of a motor vehicle by deception.
Before you can find the Defendant guilty, you must find beyond a reasonable doubt that on or about the 25th day of November 2014, and in a continuous course of criminal conduct occurring in Warren County, Ohio, and other counties whereby venue is properly placed in Warren County, Ohio, the Defendant attempted with purpose to deprive the owner Fyda Freightliner, of its property to obtain and exert control over a motor vehicle, to wit: Mercedes-Benz Freightliner van, with a value of $57, 899, by deception, that, if successful, would constitute the commission of the offense of grand theft of a motor vehicle by deception.

         Counts 19 and 20 were identical in format, with appropriate changes being made to identify the date of the offense, the victim of the crime, the property appellant sought, and the value of such property.

         {¶ 16} Appellant contends the jury instructions were incomplete, as the court gave "no instruction whatsoever as to what the legal definition of attempt is." Specifically, appellant argues the trial court committed plain error in not providing the following additional instruction to the jury:

CRIMINAL ATTEMPT (ADDITIONAL). A "criminal attempt" occurs when one (purposely) (knowingly) does or (omits) (fails) to do anything that is an act or (omission) (failure) constituting a substantial step in a course of conduct planned to culminate in his/her commission of the offense. To constitute a substantial step, the conduct must be strongly corroborative of the actor's criminal (purpose) (knowledge).

Ohio Jury Instructions, CR Section 523.02(3).

         {¶ 17} Appellant acknowledges he failed to object to the trial court's attempt instruction and, therefore, waived all but plain error. "With respect to an allegedly improper jury instruction, plain error exists only where, but for the error, the outcome of the trial would have been clearly different." State v. Roberts, 12th Dist. Butler No. CA2001-09-203, 2002-Ohio-4482, ¶ 26, citing State v. Underwood, 3 Ohio St.3d 12 (1983), syllabus. See also Crim.R. 30(A).

         {¶ 18} While it would have been accurate and acceptable for the trial court to have given the jury instruction in CR Section 523.02(3), such an instruction was not required. State v. Fellows, 7th Dist. Jefferson No. 09 JE 36, 2010-Ohio-2699, ¶ 51. Nor was such an instruction "essential to the jury's deliberative processes." State v. Martin, 2d Dist. Montgomery No. 15615, 1996 Ohio App. LEXIS 5994, *14 (Dec. 6, 1996). As the instruction that was given was accurate and sufficient to instruct on the elements of attempt, we find that the trial court did not commit plain error in instructing the jury on attempt. See Fellows at ¶ 51.

         B. Photo Lineup Jury Instruction

         {¶ 19} Appellant also argues that with respect to Count 20, the attempted grand theft of an Audi A5 from Audi Connection, the trial court should have provided an instruction in accordance with R.C. 2933.83(C)(3) as evidence adduced at trial indicated detectives from the Warren County Sheriff's Office did not comply with statutory requirements in administering a photo lineup to Gregory P. Meyer, a sales representative at Audi Connection.

         {¶ 20} R.C. 2933.83(B) requires any law enforcement agency that conducts live lineups and photo lineups to adopt minimum procedures for conducting the lineups. "Unless impracticable, a blind or blinded administrator shall conduct the live lineup or photo lineup." R.C. 2933.83(B)(1). One manner in which to ensure an administrator is "blind" or "blinded" is to conduct the photo lineup using a "folder system, " wherein a suspect's photograph, five "filler" photographs, and four blank photographs are individually placed in separate folders, marked 1 through 10, and shown in random order to the witness. See R.C. 2933.83(A)(6) and (B)(1). "When evidence of a failure to comply with any of the provisions of this section * * * is presented at trial, the jury shall be instructed that it may consider credible evidence of noncompliance in determining the reliability of any eyewitness identification resulting from or related to the lineup." (Emphasis added.) R.C. 2933.83(C)(3).

         {¶ 21} At trial, Meyer testified appellant attempted to purchase an Audi A5 as a birthday gift for his "wife, " Sara Curry.[5] Appellant told Meyer the car would be in his company's name, and he provided two years of audited financials for the company. Meyer did not believe the financials appellant provided were authentic, but nonetheless told appellant his loan application would be submitted for ...

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