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State v. Pelfrey

Court of Appeals of Ohio, Second District, Montgomery

June 22, 2018

STATE OF OHIO Plaintiff-Appellee
GREGORY D. PELFREY Defendant-Appellant

          Criminal Appeal from Common Pleas Court Trial Court Case No. 15-CR-1306

          MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Attorney for Plaintiff-Appellee

          J. DAVID TURNER, Atty. Reg. No. 0017456 Attorney for Defendant-Appellant


          FROELICH, J.

         {¶ 1} Gregory D. Pelfrey was convicted in the Montgomery County of Common Pleas of theft from an elderly or disabled adult ($37, 500 or more, but less than $150, 000), a second-degree felony, and two counts of tampering with evidence, third-degree felonies. The charges stemmed from allegations that Pelfrey obtained a power of attorney from his grandmother, altered the date of it, and used it, unbeknownst to the grandmother, to obtain a $75, 000 mortgage loan on her home; Pelfrey's grandmother did not receive the money. After defendant was aware of the criminal investigation, defendant had two different individuals fabricate documents to help his case.

         {¶ 2} Pelfrey appeals from his conviction, raising five assignments of error. He argues that (1) the trial court erred in excluding his expert witness, (2) the trial court erred in denying his motion to continue the trial, (3) his convictions were based on insufficient evidence and against the manifest weight of the evidence, (4) the trial court violated his right to a speedy trial, and (5) the trial court erred in allowing parol evidence regarding the power of attorney.

         {¶ 3} For the following reasons, the trial court's judgment will be affirmed.

         I. Background and Procedural History

         {¶ 4} For approximately 48 years, Judith Daniel resided in a house on Connie Drive in Franklin, Ohio. Daniel and her husband purchased the home in 1967, the mortgage loan was paid off in 1983, the couple had raised their children there, and her husband died there in 2012. In March 2014, Daniel was 73 years old, and the home was in need of repair.

         {¶ 5} National Title Company in Centerville, Ohio, closes loans for people when they buy and sell real property. National Title's owner, Ray Woodie, also arranges loans for individuals through a network of private lenders; these loans usually involve situations where the borrower intended to "flip" the property, i.e., sell it again quickly. Woodie had previously arranged for private loans for Greg Dart, an acquaintance of Daniel's grandson, Pelfrey. In February 2014, Dart contacted Woodie, asking if Woodie could arrange for Pelfrey to obtain a private loan. Pelfrey told Woodie that he was going to fix up his grandmother's house. Woodie arranged for Pelfrey to obtain a $75, 000 loan from Troy Pinkerton, a participant in Woodie's private network of lenders; Daniel's house would serve as security for the loan.

         {¶ 6} On March 31, 2014, Pelfrey went to National Title to close on the private loan. When Pelfrey did not bring his grandmother to National Title and did not have a power of attorney for her, Woodie told Pelfrey that it was necessary to have Daniel's power of attorney to close on the loan.

         {¶ 7} According to Daniel, that same day (March 31), Pelfrey approached her about signing a power of attorney. Pelfrey told Daniel that he had sold his business to Dart for $100, 000, but that Dart was not going to pay the first $50, 000; instead, Dart would fix Daniel's house. Pelfrey told Daniel that he needed her to sign a power of attorney so that he could authorize Dart to perform the work. Daniel testified that, on March 31, she picked up Pelfrey at his girlfriend's residence, and they drove to a bank where Daniel had a document notarized granting Pelfrey a power of attorney for that one day. Daniel was apprehensive about the power of attorney and called Pelfrey afterward to see if he had used it; Pelfrey told Daniel that he had not.

         {¶ 8} On April 1, 2014, Woodie received a phone call from a man identifying himself as Pelfrey, asking Woodie to explain the transaction to his grandmother. Woodie spoke to the woman on the phone, and he believed he was talking to Daniel. At trial, Daniel denied that she had spoken with Woodie.

         {¶ 9} Later that day (April 1), Pelfrey returned to National Title with the power of attorney. While there, Pelfrey, as attorney in fact for Daniel, closed on a one-year $75, 000 loan from Pinkerton; neither Daniel nor Pinkerton was present. Under the terms of the promissory note, Daniel agreed to pay Pinkerton $991.13 for 12 months, followed by a balloon payment of $71, 390.40 on April 1, 2015. The note was secured by a mortgage on Daniel's residence. Pelfrey received a check made payable to Daniel for $71, 174 from National Title. (The check was not for the full $75, 000 due to closing costs.) Daniel testified that she never would have signed the power of attorney if she knew Pelfrey were going to obtain a mortgage loan and that she only signed the power of attorney because of his statement that it was needed for Dart to do repairs on her home.

         {¶ 10} The power of attorney presented to Woodie and recorded with the Warren County Recorder's Office was dated and notarized on April 1, 2014. At trial, Daniel acknowledged that her initials and signature were on the document, but she said it looked different from the one she had signed. Daniel had previously told Detective Daniel Osterfeld of the Centerville Police Department that Pelfrey had approached her about the power of attorney on April 1, not March 31.

         {¶ 11} The record does not reflect when the check to Daniel was cashed and how the check was spent, but no money was provided to Daniel. Daniel testified that Dart and Pelfrey came to her home a couple of times to discuss possible repairs. Daniel called Pelfrey the day after they had spoken about the repairs, and she told Pelfrey to stop the work on her house, because she did not think $50, 000 would cover it. Daniel testified that somebody built a small deck on the front of her house (but did not finish it), and a little room was built in her garage; she thought that the builder worked for Dart. It is unclear when that work on her house occurred.

         {¶ 12} On June 13, 2014, Daniel learned that the power of attorney had been used to secure a loan and that there was a lien on her house. Daniel also received correspondence from the Warren County Recorder's Office, which prompted her to call Pelfrey; Pelfrey came to Daniel's residence, took the correspondence, and said that he would take care of it. However, Daniel repeatedly received bills from Pinkerton that she was unable to pay.

         {¶ 13} At some point, Daniel spoke with Detective Osterfeld about the power of attorney and the lien on her house. Osterfeld spoke with Pelfrey about the March 31/April 1 transaction in late November 2014.

         {¶ 14} On April 29, 2015, Daniel executed a quit claim deed conveying her property, in lieu of foreclosure, to Pinkerton. Daniel vacated the residence in May 2015. Pinkerton testified that he performed approximately $25, 000 in repairs on the property and that he had a contract to sell the property for $110, 000.

         {¶ 15} In May 2015, Pelfrey was residing in Miami, Florida. There, he met Ruken Oral and began a relationship with her; Pelfrey introduced himself as Ryan Owen.

         {¶ 16} On November 6, 2015, Pelfrey was indicted for (1) theft from an elderly or disabled adult ($37, 500 or more, but less than $150, 000/ beyond scope of consent), in violation of R.C. 2913.02(A)(2) (Count 1); (2) forgery (uttering a forged power of attorney), in violation of R.C. 2913.31(A)(3) (Count 2); and (3) theft from an elderly or disabled adult ($37, 500 or more, but less than $150, 000/ deception), in violation of R.C. 2913.02(A)(3). Pelfrey was not immediately served with the indictment. The record reflects that, at this time, Pelfrey was incarcerated in Danville, Kentucky, on unrelated charges.

         {¶ 17} In January 2016, Oral learned Pelfrey's actual name upon looking up Pelfrey's ex-wife, whose name Pelfrey had mentioned. When Oral confronted Pelfrey about his identity, Pelfrey became angry and told Oral not to trust anyone named Detective Osterfeld if the detective ever contacted her.

         {¶ 18} On February 8, 2016, Pelfrey sent handwritten instructions to Oral, asking her to conduct research on Dart and for her to prepare an affidavit with specific averments that Pelfrey provided. Stated generally, the affidavit by Oral was to describe a sexual relationship between Oral and Dart, describe Dart as the person behind the power of attorney and the National Title loan, and indicate that Pelfrey was misled by Dart regarding the loan. Pelfrey asked Oral to mail three original copies back to him, noting, "This is very important to getting the charge dropped and released." Oral had an affidavit prepared, as instructed. The typed date on the affidavit was January 7, 2015, but it was notarized on February 25, 2016, in New Jersey, where Oral was then residing.

         {¶ 19} On June 29 or 30, 2016, Pelfrey, while incarcerated in Kentucky, completed paperwork requesting that he be returned to Ohio to face the pending charges, pursuant to the Interstate Agreement on Detainers (IAD), codified in Ohio as R.C. 2963.30.[1] On July 6, 2016, Pelfrey was served with the indictment in Danville, Kentucky, and returned to Ohio. Pelfrey appeared in Montgomery County, Ohio, for arraignment on July 12, 2016.

         {¶ 20} By July 2016, Oral believed Pelfrey was being "disloyal" to her, and on July 6, 2016, Oral contacted Detective Osterfeld. Oral met with the detective on July 13, 2016, and provided him the handwritten instructions by Pelfrey (State's Exhibit 11) and the typed and notarized affidavit she prepared (State's Exhibit 12). Oral testified that none of the statements in the affidavit was true. She stated that she did not know Dart when she prepared the affidavit.

         {¶ 21} The trial court set a scheduling conference for July 26, 2016. Pelfrey's counsel moved for a continuance to gather additional discovery; the trial court reset the conference for August 9, 2016. (The document containing counsel's motion and the court's entry was filed on July 27.) At the August 9, 2016 conference, the trial court scheduled the final pretrial conference for October 4 and the trial for October 17, 2016, and Pelfrey's counsel requested a continuance until that time; the court granted the continuance. (A written motion for continuance and the court's entry granting the motion were filed on August 10, 2016.)

         {¶ 22} In the late summer of 2016, while Pelfrey was in the Montgomery County Jail, Pelfrey became acquainted with Katrina Bercot, who spoke with him and visited him at the jail. Bercot's testimony is somewhat unclear, but it appears that her boyfriend was incarcerated with Pelfrey at the Montgomery County Jail and that her boyfriend "got [her] started" with helping Pelfrey.

         {¶ 23} In September 2016, Bercot received handwritten instructions from Pelfrey. The instructions told Bercot to type up a handwritten agreement that he was providing, print it, photocopy the agreement with signatures that he was providing, destroy the signatures, and mail three copies back to Pelfrey. Pelfrey also had a series of phone calls with Bercot (which were recorded by the jail), where they talked about having Bercot type up a document, put signatures on it, and deliver it to Pelfrey's attorney. The agreement stated, in its entirety:

I Greg Dart agree to complete the renovation and remodel at 3523 Connie St, Franklin, oh 45005. Pay any outstanding balance owed to any contractor, for work completed to date, and repay the $3, 000.00 I borrowed from you, for the 4pts to generate the loan against your Grandmas house from the proceeds at closing.
The renovation and remodel will be completed no later than September 1, 2014 at which time I will pay the loan off, and complete the purchase of Go reclaimed.
In exchange, I expect the proceeds from the loan to be signed over and endorsed to [I]ntrigue Property Management, So I can Handle the dispensing of any and all funds for record purposes, full access and rights to go reclaimed, LLC including but not limited to any unsold reclaimed material and inventory, Barns needing to be Dismantled, customer and vender contracts, Tools owned by the company, and any phone number, email, or Domain associated with business.

         This agreement will be considered Valid and Binding upon both parties agreeing to the terms Herein and signing and Dating below. (Grammatical, punctuation, and capitalization errors sic.) The typed agreement appeared to be signed by two individuals, Pelfrey and presumably Dart (illegible), on April 1, 2014. Bercot later provided the handwritten instructions (State's Exhibit 7), the ...

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