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State v. Harris

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 1, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
WENDALL HARRIS, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-624340-A

         JUDGMENT: AFFIRMED IN PART AND DISMISSED IN PART

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Anthony M. Stevenson, Assistant Prosecuting Attorney, for appellee.

          Paul W. Flowers Co., L.P.A., and Louis E. Grube, for appellant.

          JOURNAL ENTRY AND OPINION

          PATRICIA ANN BLACKMON, PRESIDING JUDGE.

         {¶ 1} Wendall Harris ("Harris") appeals from his theft conviction and associated suspended prison sentence and assigns the following errors for our review:

I. The trial court erred by failing to grant the motion for judgment of acquittal because the state presented insufficient evidence to sustain a guilty verdict for the crime of theft.
II. The trial court erred by imposing both a prison term and community control sanctions.
III. The trial court erred by imposing a prison term despite making a factual finding that community control sanctions were appropriate.
IV. The record clearly and convincingly does not support the considerations that are required in support of a prison sentence pursuant to R.C. 2929.11 and 2929.12.

         {¶ 2} Having reviewed the record and pertinent law, we affirm Harris's conviction and dismiss as moot his appeal in relation to his sentence. The apposite facts follow.

         {¶ 3} On February 23, 2017, Harris opened an account in the name of World Five Star Auto Sales ("WFSAS") at Dollar Bank. On April 4, 2017, Harris deposited a check for $41, 000 made payable to WFSAS into this account. The check was from Atlanta Biz Noir, Inc., a company in Detroit, Michigan. In the memo section of the check "2014 Cadillac Escalade Luxury" was written.

         {¶ 4} The next day, April 5, 2017, Harris cashed a check from WFSAS for $4, 800 at Dollar Bank. The check was made payable to Harris, and he signed the back of the check as the payee. He also signed the front of the check on behalf of WFSAS as the payor.

         {¶ 5} On April 10, 2017, the $41, 000 check was returned for insufficient funds, which left WFSAS's account with a negative balance of $4, 758.26. Dollar Bank sent correspondence to WFSAS, and Harris personally, demanding return of the money. Neither WFSAS nor Harris returned the money to the bank, and eventually, Dollar Bank closed the account and sustained the loss. On December 29, 2017, Harris was charged with one count of theft in violation of R.C. 2913.02(A)(2), a fifth-degree felony. On May 10, 2018, this case was tried to the bench, and the court found Harris guilty as charged. On June 12, 2018, the court sentenced Harris to six months in prison, suspended this sentence, and further sentenced Harris to one year of community control sanctions. It is from this conviction and sentence that Harris appeals.

         Sufficiency of the Evidence

         {¶ 6} Crim.R. 29 mandates that the trial court issue a judgment of acquittal where the prosecution's evidence is insufficient to sustain a conviction for the offense. Crim.R. 29(A) and sufficiency of the evidence require the same analysis. State v. Taylor, 8th Dist. Cuyahoga No. 100315, 2014-Ohio-3134. "An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." ...


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