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State v. Weakley

Court of Appeals of Ohio, Eighth District, Cuyahoga

November 2, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
LAMONT WEAKLEY DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-600835-A

          ATTORNEYS FOR APPELLANT Mark A. Stanton Chief Public Defender BY: Cullen Sweeney Noelle A. Powell Assistant Public Defenders

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: James D. May Assistant Prosecuting Attorney

          BEFORE: E.A. Gallagher, P.J., Blackmon, J., and Laster Mays, J.

          JOURNAL ENTRY AND OPINION

          EILEEN A.GALLAGHER, PRESIDING JUDGE

         {¶1} Defendant-appellant Lamont Weakley appeals his convictions after a jury found him guilty of 20 counts arising out of a scheme to use personal information stolen from patients of American Dental Centers to obtain fraudulent lines of credit and make purchases at various retail stores (the "fraudulent credit scheme"). Weakley contends that his convictions should be vacated and a plea agreement enforced because he was denied the effective assistance of counsel during plea negotiations and at trial. He also contends that the trial court erred in denying his motions for a mistrial and a new trial after a witness testified regarding his prior incarceration during her direct examination and a document, which was not admitted into evidence, referencing his probation for a federal offense was included with the exhibits given to the jury during their deliberations. Finally, Weakley contends that the jury's verdict of forfeiture was not supported by sufficient evidence. For the reasons that follow, we reverse the trial court's judgment, vacate Weakley's convictions and remand for further proceedings.

         Factual and Procedural Background

         {¶2} On December 1, 2015, a Cuyahoga County Grand Jury indicted Weakley on 34 counts of a 45-count indictment for his role in the fraudulent credit scheme as follows:

• one count of engaging in a pattern of corrupt activity (Count 1);
• two counts of conspiracy (Counts 2 and 3);
• 13 counts of identity fraud (Counts 4, 5, 13, 19, 21, 23, 25, 29, 31, 35, 39, 41 and 43);
• two counts of receiving stolen property (Counts 7 and 8);
• one count of having a weapon while under disability (Count 9);
• two counts of telecommunications fraud (Counts 10 and 11);
• one count of aggravated theft (Count 12);
• seven counts of grand theft (Count 14, 20, 24, 26, 32, 40 and 42);
• two counts of theft (Count 22 and 36);
• one count of petty theft (Count 30);
• one count of money laundering (Count 44) and
• one count of possessing criminal tools (Count 45).

         A number of the counts included a forfeiture of weapon specification, a forfeiture of property specification and a one-year firearm specification. Two codefendants -Melissa Coles and Dewayne McDaniel - were also indicted in connection with the fraudulent credit scheme.

         {¶3} Patrece Wheatley, with whom Weakley had a long-term, "off and on" relationship, was Weakley's alleged source of the personal information used in the fraudulent credit scheme. Wheatley admitted stealing patient information she was entrusted to handle as a financial advisor for American Dental Centers including names, addresses, dates of birth and social security numbers and giving that information to Weakley at his request. Weakley, along with his two codefendants, allegedly used that information to create fake driver's licenses and identification cards in the names of the alleged victims, establish lines of credit in the names of the alleged victims and make various purchases, including purchases of jewelry, clothing, gift cards and cell phones using the credit that had been established.

         {¶4} In October 2015, police arrested Weakley for his role in the scheme. After his arrest, Wheatley contacted the Richmond Heights police about picking up Weakley's personal belongings. When Wheatley arrived at the police station to collect Weakley's belongings, she was questioned by the police. During questioning, Wheatley disclosed that she had previously retrieved two bags of Weakley's belongings from a house on Coit Road in Cleveland and that she had those bags in her garage. Police detectives drove Wheatley home and she gave them the bags of Weakley's belongings. Among the items inside the bags were folders containing the patient information Wheatley had allegedly given to Weakley, driver's licenses and identification cards for several of the victims with Weakley's or Cole's photographs, jewelry, receipts in other people's names and a loaded firearm. The fraudulent credit scheme allegedly involved 16 victims and $253, 806 in credit was allegedly obtained through the scheme.

         {¶5} After plea negotiations fell apart, the state dismissed counts 7, 10, 11 and 44, and the case proceeded to a jury trial on the remaining 30 counts. Defense counsel did not request bifurcation of any of the counts prior to trial.

         {¶6} At trial, the state presented testimony from ten witnesses including Wheatley, codefendant Coles, two Richmond Heights police detectives who investigated the fraudulent credit scheme, a forensic scientist from the Ohio Bureau of Criminal Investigation who testified regarding the presence of Weakley's DNA on the firearm found in one of the bags Wheatley turned over to police and five of the alleged victims. The state also presented numerous exhibits including fake driver's licenses and identification cards, credit account information, temporary retail credit cards and shopping passes, receipts, photographs of the alleged perpetrators and various items purchased using the fraudulently obtained credit, including gift cards, cell phones and jewelry.

         Patrece Wheatley's Testimony Regarding Weakley's Incarceration

         {¶7} Wheatley was the state's first witness. A few minutes into her direct examination, the state inquired whether Weakley had ever asked her for money. In response, Wheatley testified as follows:

Q. Okay. Did he ever ask you for money?
A. Yes.
Q. He did?
A. Yes.
Q. What kind of money?
A. Just $100 here and there.
Q. $100 here and there?
A. Mm-hmm.
Q. Did it become a regular kind of thing?
A. Only when he was incarcerated.

          {¶8} Because of the reference to Weakley's prior incarceration, defense counsel moved for a mistrial. He argued that Wheatley's testimony was prejudicial, notwithstanding his prior stipulation that Weakley had been convicted of a felony, because it suggested that there were multiple times in which Weakley was incarcerated.

         {¶9} The trial court rejected Weakley's interpretation of Wheatley's testimony and denied the motion for a mistrial, concluding that the error was harmless because the jury already knew Weakley had a prior felony conviction:

THE COURT: Okay, go ahead and be seated. Okay, we came to side bar because the witness mentioned quote, "Only when he was incarcerated." So my suspicion is when we came to side bar and [defense counsel] said he wanted to make a motion he wanted to have a motion for a mistrial right?
[DEFENSE COUNSEL]: Yes, your honor.
THE COURT: Okay, so the court is not going to give a mistrial motion [sic]. In opening statement it was explained that Mr. Weakley had been charged with this offense, and so it wouldn't be beyond the stretch that he was at some time arrested for this case. And there has been evidence that at some unknown point in time he was convicted of a felony; and therefore those would be two plausible explanations for the gentleman being incarcerated. Okay? Now, so - so on that ground alone the court is not granting any mistrials.

         {¶10} As the trial progressed, the parties agreed to streamline the presentation of the evidence and entered into the following stipulation:

The parties stipulate and agree to each and every part of the criminal charge in Count 4. The same stipulation applies to Counts 5, 12, 13, 14, 19, 20, 21, 22, 23, 24, 25, 26, 29, 30, 31, 32, 35, 36, 39, 40, 41, 42 and 43 except defendant Lamont Weakley's involvement in the commission of the criminal offense. The state is still required to prove his involvement in this criminal offense and his involvement in the criminal offenses of these other counts. The defendant still denies his involvement in each of the criminal offenses.

         A written copy of the stipulation and a chart of the offenses were provided to the jury.

         {¶11} After the state rested, Weakley moved for a judgment of acquittal on Counts 1, 2, 3, 4, 8, 9 and 43. The trial court denied the motion. Weakley presented testimony from one witness, the person responsible for managing the Coit Road property, who testified that he had never seen Weakley at the property. Weakley then renewed his Crim.R. 29 motion. Once again, the trial court denied the motion and the case went to the jury.

         The Jury's Verdict

         {¶12} On November 2, 2016, the jury returned its verdicts, finding Weakley guilty of 20 counts: one count of engaging in a pattern of corrupt activity (Count 1); two counts of conspiracy (Counts 2 and 3); two counts of aggregate identity fraud charges (Counts 4 and 5); one count of having a weapon while under disability (Count 9); one count of aggravated theft (Count 12); individual fraud and theft charges related to six victims (Counts 13, 14, 23, 24, 29-32, 35, 36, 39 and 40), one count of possession of criminal tools (Count 45), and the associated weapon forfeiture, property forfeiture and one-year firearm specifications. The jury found Weakley not guilty of the receiving stolen property charge related to the firearm (Count 8) and the individual identity fraud and theft charges related to several other alleged victims (Counts 19, 20, 21, 22, 25, 26, 41-43).

         Unadmitted Document Provided to Jury ...


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