Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT David L. Doughten David L. Doughten
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor BY: Jonathan Block Assistant Prosecuting
BEFORE: E.T. Gallagher, J., Kilbane, P.J., and Laster Mays,
JOURNAL ENTRY AND OPINION
T. GALLAGHER, JUDGE
Defendant-appellant, Richard Lenard ("Lenard"),
appeals his theft and tampering with records convictions. He
raises two assignments of error:
1. The trial court erred by allowing the state to amend Count
1 of the indictment, theft, R.C. 2913.02(A)(3), after the
close of the state's case.
2. The evidence is insufficient to sustain a conviction of
tampering with records in violation of R.C. 2913.42.
There is no merit to the appeal, and the trial court's
judgment is affirmed.
Facts and Procedural History
Lenard was charged with one count of grand theft, in
violation of R.C. 2913.02(A)(3), and one count of tampering
with records, in violation of R.C. 2913.42(A)(1). Count 1
alleged that Lenard stole property from Steven Mladenovic
("Mladenovic") valued at $7, 500 or more, but less
than $150, 000. Count 2 alleged that Lenard perpetrated a
fraud on Shirley Kummerlen ("Kummerlen") and/or
Fifth Third Bank ("Fifth Third") by falsifying a
quit claim deed purportedly transferring Kummerlen's
house to Fifth Third.
In January 2014, Kummerlen moved to an apartment and
subsequently listed her North Royalton, Ohio home ("the
property") for sale on Craigslist. She had been trying
to sell the property, which was in foreclosure, for
approximately one year when she met a man, who introduced
himself as Richard Kelly, in the lobby of her apartment
building. The man, later identified as Lenard, represented to
Kummerlen that he could expedite the sale of her property.
(Tr. 231.) He explained that Fifth Third had accepted his
offer to purchase the home and that the sale of her house
would release her from her mortgage at Fifth Third. (Tr.
Lenard showed Kummerlen several official-looking documents.
One document indicated that Fifth Third was attempting to
collect a debt from Kummerlen. Among other things, the
document stated that "Fifth Third Bank has agreed to
enter into a deed in lieu of foreclosure for the * * *
property." It also stated: "At the conclusion of
the executed approved deed in lieu of foreclosure, Fifth
Third will absolve the reported mortgage debt from above
mentioned credit file."
A second document was a letter signed by Richard Kelly. The
letter, which was admitted into evidence, states, in relevant
My name is Richard Kelly of Investech Mortgage Securities. My
company was contacted by Fifth Third, whom is your mortgage
holder [sic] in an effort to resolve your foreclosed home
located at 11288 Drake Road, North Royalton, Ohio 44133. I
will be your contact and I would like the opportunity to work
Fifth Third is extending an [sic] limited offer of "cash
for deeds" program. Due to your recent foreclosure, I
can get you a check ranging from $1, 000 to $2, 000 in
exchange for the deed to the property, it is that simple.
This program allows the foreclosure process to be eliminated
and the foreclosure will be dissolved off your credit report
due the agreement between yourself and the Bank. It's a
win/win situation for all parties. This program has been very
successful. I will arrange all the paperwork needed for this
transaction and I can have the deal completed in about a week
with your assistance. However, this is a limited time offer
due to the foreclosure already filed in Cuyahoga County case
number CV-15-840946. I will need your cooperation by June 22,
2015 in order to process your check on time. ...