Opinion
No. 109198
03-11-2021
STATE OF OHIO, Plaintiff-Appellee, v. LATASHA WISNIEWSKI, Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Brent Kirvel, Assistant Prosecuting Attorney, for appellee. Friedman & Gilbert, Mary Catherine Corrigan, and Marcus Sidoti, for appellant.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-18-634380-B and CR-19-640690-B
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Brent Kirvel, Assistant Prosecuting Attorney, for appellee. Friedman & Gilbert, Mary Catherine Corrigan, and Marcus Sidoti, for appellant. LARRY A. JONES, SR., J.:
{¶ 1} Defendant-appellant Latasha Wisniewski ("Wisniewski") challenges her three theft-related convictions that were rendered after a bench trial. For the reasons that follow, we affirm.
Factual Background
{¶ 2} The charges and convictions in this case arose from Wisniewski's relationship with the widowered victim, C.B., who, at the time Wisniewski met him, was in his late 80s and terminally ill. C.B.'s wife had passed away in early 2017, and C.B. and Wisniewski met at Alcoholics Anonymous and became involved in a relationship in the late summer — early fall 2017. At the relevant times, Wisniewski was 37 to 38 years old.
{¶ 3} C.B. had two adult daughters who lived near him and would regularly check on him. They both objected to his involvement with Wisniewski. C.B. took offense to their objections and, therefore, during the majority of the relevant time period, C.B. was estranged from his daughters. The locks to the doors on the house were changed, and the daughters could not gain access.
{¶ 4} C.B. was a Korean War veteran, who had "penny pinched" and lived modestly throughout his life. Because of his lifestyle, he was in a financially sound position in his later years — his Parma Heights house, which he had built and resided in for approximately 60 years, was paid for; he owned his vehicle; and he had accumulated savings and stocks. Within less than a year of meeting Wisniewski, C.B.'s savings were gone, he had a home equity line of credit and car loans, and his stocks had been cashed out. Further, during the course of C.B. and Wisniewski's relationship, Wisniewski was added to the deed to C.B.'s house.
{¶ 5} The state presented the testimony of Wisniewski's codefendant in this case, Lisa Dotson ("Dotson"), to explain the scheme that the two engaged in. Dotson is Wisniewski's aunt (the two are close in age, being only approximately a year apart). Dotson had an opioid and gambling addiction. She testified against Wisniewski for consideration by the state not only in this case, but also for consideration in another case in which she committed theft against an elderly person and was responsible for $200,000 in restitution to the victim's estate.
{¶ 6} Dotson was aware that, prior to Wisniewski's involvement with C.B., Wisniewski had defrauded another elderly victim, and that at the time Wisniewski introduced C.B. to her, Wisniewski was on probation for the crimes she had committed against the other elderly man. Dotson testified that when Wisniewski introduced her to C.B., her (Dotson's) thought was that C.B. was Wisniewski's "new thing," and it was "like the same thing" as with the other elderly man. At the time, Dotson was a home healthcare aide and was involved in taking care of an elderly woman, Marguerite, who had dementia.
{¶ 7} Dotson testified that Wisniewski and C.B.'s relationship was intimate. Within just a couple weeks of Wisniewski meeting C.B., she had C.B. pay over $6,000 for cosmetic procedures, such as breast augmentation, Botox treatments, and "butt shots."
{¶ 8} During this time, Wisniewski became an authorized user on C.B.'s checking account. Dotson then engaged in a check cashing "kickback" scheme with Wisniewski. Dotson would cash checks made out to her from C.B.'s account and Wisniewski would allow her to keep some of the proceeds. Some of the checks were signed by Wisniewski and some were signed by C.B. Further, Dotson fraudulently used C.B.'s credit card to purchase gift cards, which she would then sell at a discounted rate.
{¶ 9} Dotson also fabricated a story about the woman she cared for, Marguerite. She told C.B. that Marguerite's family froze Marguerite's accounts and Marguerite needed money. She convinced C.B. to "loan" her money on Marguerite's behalf. C.B. "loaned" the money, and Dotson and Wisniewski made off with the proceeds. Dotson also convinced C.B. to loan her $3,000, which Dotson did pay back.
{¶ 10} Further, Dotson cashed out C.B.'s stocks. She convinced another elderly man (a relative of Dotson and Wisniewski's who was in a nursing home) to pretend like he was C.B. so that they could change the direct deposit of the dividends of one of C.B.'s stocks to an account on which Wisniewski had added herself as an authorized account holder. Dotson was aware that Wisniewski convinced C.B. to take out a $25,000 home equity loan.
{¶ 11} In regard to the home equity loan, the record demonstrates that Wisniewski initially failed in her attempt. The bank sent the $25,ooo check to C.B.'s home, he retrieved it, and not having any knowledge about it, returned it to the bank. Wisniewski then set up electronic remote banking for C.B.'s account and directed that the $25,000 be directly deposited into his account. As mentioned, Wisniewski also put herself on the deed to C.B.'s home. She told C.B. that she and her children were moving in. They never did move in, and Dotson testified that it was her belief that Wisniewski had only intended to move in after C.B. had passed away.
{¶ 12} Wisniewski also signed up for a service offered by the U.S. mail service called "informed delivery" that allowed her to monitor the mail being delivered to C.B.'s address. Dotson testified that both she and Wisniewski would get the mail from C.B.'s mailbox so that they could retrieve the credit card bills without C.B. seeing them. To the extent that C.B. even used credit cards, it was minimal. The charges on the credit cards were excessive as compared to his historical use of credit cards and he did not even know that some of the cards had been opened in his name. Some of the cards had been opened electronically and were connected to an email address belonging to Wisniewski; C.B. did not use a computer and, therefore, did not even have an email address.
{¶ 13} Dotson admitted that she went on a Las Vegas trip funded, in part, with the funds she had misappropriated from C.B. While on that vacation, she learned from Wisniewski that the Parma Heights Police Department was investigating C.B.'s finances.
{¶ 14} The record demonstrates that Dotson and Wisniewski's exploitation of C.B. all came to light when C.B. learned that Wisniewski was dating another man during the same timeframe she was purportedly "dating" C.B. The other man went to C.B.'s home and confronted him about Wisniewski wanting to end her relationship with him (the other man). This confrontation led to both men discovering that Wisniewski was involved with yet another man. According to Dotson, C.B. became "paranoid" after learning of Wisniewski's infidelity and he would often go out late at night, driving around Cleveland looking for Wisniewski.
{¶ 15} Eventually, C.B. went to the Parma Heights Police Department and made a report. One of his daughters met him at the police department, where she found her father visibly upset, "sick to his stomach," and "mentally drained." Unfortunately, C.B. let Wisniewski back into his life, but by September 2018, he admitted that he had made a mistake and wanted her out of his life. C.B. passed away in January 2019. Wisniewski was initially indicted in November 2018; the case proceeded to trial in August 2019, after C.B. had died.
{¶ 16} In addition to Dotson's testimony, the state presented the testimony of several representatives from the relevant financial institutions. They testified to encounters with Wisniewski that led them to believe that she was improperly taking advantage of C.B. For example, a representative from one of the banks testified that one of C.B.'s daughters opened a new account for C.B. without Wisniewski's name on it, but, later, Wisniewski sought to be on the account, and the representative refused to do it. Voluminous exhibits entered into evidence by the state showed C.B.'s finances during the time he was involved with Wisniewski.
Indictments, Convictions, and Sentence
{¶ 17} Three indictments were returned against Wisniewski alleging crimes she committed against C.B. She was first charged in Cuyahoga C.P. No. CR-18-634380-B with six counts of theft with elderly specifications. Wisniewski was also charged in Cuyahoga C.P. No. CR-19-640690-B with one count of theft with an elderly specification and two vehicle forfeiture specifications, and one count of money laundering. The last case was Cuyahoga C.P. No. CR-19-637290-A, and charged two counts of misuse of credit cards and one count of theft.
{¶ 18} The first two cases proceeded to a bench trial. After resting its case, the state dismissed Counts 1, 2, 3, 5, and 6 of the first case, CR-18-634380-B. The trial court found Wisniewski guilty of Count 4, theft by deception with the elderly specification. The court found her not guilty of Count 7, misuse of credit cards. In the second case, CR-19-640690-B, the trial court found Wisniewski guilty of both counts — theft with elderly and forfeiture specifications and money laundering. The state dismissed the third case, CR-18-637290-A, after the court returned its verdicts.
{¶ 19} Thus, Wisniewski was found guilty of three counts: (1) theft by deception with an elderly specification, (2) theft with elderly and vehicle forfeiture specifications, and (3) money laundering. The trial court sentenced her to an aggregate 36-month prison term and ordered restitution to C.B.'s estate.
Assignments of Error
{¶ 20} Wisniewski appeals, raising the following two assignments of error for our review:
First Assignment of Error: The conviction was based on facts different to those presented to the grand jury and outlined in the indictment(s) violat[ing] the appellant's right to due process pursuant to the constitution(s) of the United States and the state of Ohio.
Second Assignment of Error: The evidence was insufficient to sustain any of the three (3) convictions.
Law and Analysis
Indictments
{¶ 21} In her first assignment of error, Wisniewski contends that the convictions were based on facts different than those that were presented to the grand jury and set forth in the indictments, thereby violating her constitutional due process rights.
{¶ 22} Article I, Section 10, Ohio Constitution provides: "[N]o person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury." This provision "'guarantees an accused that the essential facts constituting the offense for which he [or she] is tried will be found in the indictment by the grand jury.'" State v. Jackson, 134 Ohio St.3d 184, 2012-Ohio-5561, 980 N.E.2d 1032, ¶ 12, quoting State v. Pepka, 125 Ohio St.3d 124, 2010-Ohio-1045, 926 N.E.2d 611, ¶ 14.
{¶ 23} "The purposes of an indictment are to give an accused adequate notice of the charge and enable an accused to protect himself or herself from any future prosecutions for the same incident." State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, 853 N.E.2d 1162, ¶ 7, citing Weaver v. Sacks, 173 Ohio St. 415, 417, 183 N.E.2d 373 (1962), and State v. Sellards, 17 Ohio St.3d 169, 170, 478 N.E.2d 781 (1985). As expounded upon in State v. Childs, 88 Ohio St.3d 194, 724 N.E.2d 781 (2000):
A criminal indictment serves several purposes. First, by identifying and defining the offenses of which the individual is accused, the indictment serves to protect the individual from future prosecutions for the same offense. State v. Sellards (1985), 17 Ohio St.3d 169, 170, 17 OBR 410, 411, 478 N.E.2d 781, 783-784. In addition, the indictment compels the government to aver all material facts constituting the essential elements of an offense, thus affording the accused adequate
notice and an opportunity to defend. Id. at 170, 17 OBR at 411, 478 N.E.2d at 783.Childs at 198.
{¶ 24} "The sufficiency of an indictment is subject to the requirements of Crim.R. 7 and the constitutional protections of the Ohio and federal Constitutions." Buehner at ¶ 8. Crim.R. 7(B) specifies the "nature and contents" of an indictment and states:
The indictment shall be signed in accordance with Crim.R. 6(C) and (F) and contain a statement that the defendant has committed a public offense specified in the indictment. * * * The statement may be made in ordinary and concise language without technical averments or allegations not essential to be proved. The statement may be in the words of the applicable section of the statute, provided the words of that statute charge an offense, or in words sufficient to give the defendant notice of all the elements of the offense with which the defendant is charged. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specified means. Each count of the indictment or information shall state the numerical designation of the statute that the defendant is alleged to have violated. Error in the numerical designation or omission of the numerical designation shall not be ground for dismissal of the indictment or information, or for reversal of a conviction, if the error or omission did not prejudicially mislead the defendant.
{¶ 25} Count 4 of CR-18-634380-B charged in part that Wisniewski opened a Chase Bank account wherein she deposited funds she obtained from C.B. to pay for "personal and luxury items for herself." According to Wisniewski,
there was not a single iota of evidence submitted regarding any independent accounts held by the Appellant. Rather, there was significant testimony, which if believed, indicated that the majority of this theft occurred by way of cashing checks, requesting loans for family and friends. The presentation of the facts thus was completely different than that which was memorialized in the indictment.
{¶ 26} In regard to the conviction on Count 1 in CR-19-640690-B, the indictment charged, in part, that Wisniewski deceived C.B. with "romantic companionship" and an "unfulfilled promise to marry" him. Wisniewski contends that the evidence at trial,
left little question that the Appellant and C.B. were in a romantic and sexual relationship. There was no evidence whatsoever presented to support a claim that Appellant ever promised to marry or do anything more than move in with C.B., and further there was no evidence that the Appellant left C.B.'s personal needs unmet in an effort to liquidate his assets and obtain ownership.
{¶ 27} As it relates to the conviction on Count 2 in CR-19-640690-B for the crime of money laundering, Wisniewski contends that there was "absolutely no evidence that the Appellant ever made cash withdrawals, ACH payments or that Appellant herself was ever one to make a single unauthorized debit card purchase, and as she was on the accounts, it would have been impossible for her to make unauthorized debit card purchases," as alleged in the indictment.
{¶ 28} Upon review, we are not persuaded by any of Wisniewski's contentions. Relative to her challenges, the indictment served its purpose: it gave her notice of the charges against her so that she could mount her defense. Wisniewski stipulated to exhibit Nos. 17-21, which were credit card statements. Collectively, those exhibits show thousands of dollars in purchases for things such as tanning and merchandise from Footlocker and Victoria's Secret. The purchases matched electronic payments from C.B.'s accounts at Dollar Bank, Huntington Bank, and Chase Bank.
{¶ 29} Other exhibits presented by the state (including statements from Voya Financial, American Funds, GBU Financial, and Allstate Mutual) show that between October 2017 and December 2017, Wisniewski liquidated $82,000 in funds from C.B.'s accounts. Wisniewski was also duplicitous in getting a relative to pose as C.B. to liquidate stock, and in getting C.B. to "loan" $32,000 to Marguerite because Wisniewski and Dotson lied to C.B. about Marguerite's family freezing her assets.
{¶ 30} In light of the above, Wisniewski's due process rights were not violated. The indictments properly informed her of the charges against her and the evidence at trial supported the charges on which she was convicted as set forth in their respective indictment. The first assignment of error is therefore overruled.
Sufficiency of the Evidence
{¶ 31} For her second assignment of error, Wisniewski contends that the evidence was insufficient to sustain her convictions.
{¶ 32} Where a party challenges the sufficiency of the evidence supporting a conviction, a determination of whether the state has met its burden of production at trial is conducted. State v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41, citing State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997). An appellate court reviewing sufficiency of the evidence must determine "'whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.'" State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶ 33} With a sufficiency inquiry, an appellate court does not review whether the state's evidence is to be believed but whether, if believed, the evidence admitted at trial supported the conviction. State v. Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25, citing Thompkins at 387. A sufficiency of the evidence argument is not a factual determination, but a question of law. Id. at 386, citing State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148 (1955).
{¶ 34} According to Wisniewski, the state "presented absolutely no evidence that [she] engaged in any amount of deception." Rather, "[b]y all accounts, [she] and C.B. were engaged in a consensual manner and true relationship classified as a boyfriend-girlfriend relationship." The evidence presented in this case was more than sufficient to sustain the convictions. For the sake of brevity, we herein incorporate the facts of this case and our discussion resolving the first assignment of error. In sum, Wisniewski, who was 37-38 years of age during the relevant time period, preyed on C.B., an elderly, terminally ill widower, and drained him of his life savings. The record is replete with instances of her deception.
{¶ 35} We further note that issues of credibility, as Wisniewski raises with portions of Dotson's testimony, are not for consideration when examining sufficiency of the evidence. See State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79. But nonetheless, even if we were considering her testimony under a manifest-weight-of-the-evidence review, we would find Wisniewski's contention about Dotson's credibility without merit. Wisniewski cannot successfully contend that Dotson was credible in instances where it would inure to her benefit, but incredible in instances where it is detrimental to her.
{¶ 36} In light of the above, the second assignment of error is overruled.
{¶ 37} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant's convictions having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
LARRY A. JONES, SR., JUDGE ANITA LASTER MAYS, P.J., and
EMANUELLA D. GROVES, J., CONCUR