Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Court Trial Court Case No.
MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No.
0084470, Attorney for Plaintiff-Appellee
DAVID TURNER, Atty. Reg. No. 0017456 Attorney for
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
3} For the following reasons, the trial court's
judgment will be affirmed.
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
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
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
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. 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
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.
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 ...