Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-17-624340-A
AFFIRMED IN PART AND DISMISSED IN PART
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Anthony M. Stevenson, Assistant Prosecuting
Attorney, for appellee.
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
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.
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."