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State v. Lenard

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 1, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
RICHARD MARCUS LENARD DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-597800-A

          ATTORNEY FOR APPELLANT David L. Doughten David L. Doughten Co., L.P.A.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Jonathan Block Assistant Prosecuting Attorney

          BEFORE: E.T. Gallagher, J., Kilbane, P.J., and Laster Mays, J.

          JOURNAL ENTRY AND OPINION

          EILEEN T. GALLAGHER, JUDGE

         {¶1} 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.

         {¶2} There is no merit to the appeal, and the trial court's judgment is affirmed.

         I. Facts and Procedural History

         {¶3} 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.

         {¶4} 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. 230-231.)

         {¶5} 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."

         {¶6} A second document was a letter signed by Richard Kelly. The letter, which was admitted into evidence, states, in relevant part:

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 with you.
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. ...

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