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Date: 07-09-2019

Case Style:

STATE OF OHIO v. KATHY WOODBURN

Case Number: 18CA891

Judge: Mike Hess

Court: COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PIKE COUNTY

Plaintiff's Attorney: Robert Junk, Pike County Prosecuting Attorney, and Michael A. Davis, Pike County Assistant Prosecuting Attorney

Defendant's Attorney: Michael J. Lawson, Esq.

Description:


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In 2006, Woodburn’s father, Lawrence Zimmerman, entered an annuity
contract with Allstate Life Insurance Company and designated his wife and Woodburn’s
mother, Bertha Zimmerman, as his primary beneficiary. In 2010, Lawrence gave Bertha
a power of attorney, and in September 2014, she used it to request that $75,000 from
the annuity be distributed and deposited into an account she and Lawrence had at U.S.
Bank. Bertha planned to loan this money to Woodburn to build a barn with an
apartment for Bertha and Lawrence.
{¶4} On October 3, 2014, Woodburn, Bertha (who was age 75), and Ashley
Higginbotham (Woodburn’s daughter) executed a membership application and
agreement to open a joint and survivorship account at Atomic Credit Union (“ACU”).
The agreement requested “24-hour access” to the account and a Debit MasterCard for
each account holder. This would allow each holder to use ATMs and pay for services
Pike App. No. 18CA891 3
and purchases directly from the checking account. The same day, $1,000 of the
$75,000 annuity distribution was deposited into the ACU checking account and the
remaining $74,000 was deposited into the ACU savings account.
{¶5} On October 24, 2014, Bertha again used her power of attorney to request
“full surrender” of the remaining annuity balance via a check sent to Lawrence. Tyler
Williams, a former U.S. Bank employee, helped Bertha close the annuity because U.S.
Bank acted as an agent to Allstate with regard to annuities. According to him, Bertha
said the money was going to “the credit union” and Woodburn was going to “help
manage my money” and help take care of Bertha. On October 28, 2014, Allstate issued
a check to Lawrence for $109,569.21. After he endorsed the check, Woodburn
endorsed it and deposited the funds into the ACU savings account on November 1,
2014. On November 13, 2014, Lawrence died. By November 30, 2014, the ACU
savings account had a balance of $5.00 and the checking account had a balance of
$5,290.64. By July 15, 2015, the checking account was empty.
{¶6} Evidently due to memory issues, Bertha forgot that she had closed the
annuity and forgot about the ACU checking and savings account. At some point, she
went to U.S. Bank and learned she had no money left. According to Bertha, she never
authorized Woodburn to put her money into Woodburn’s personal account, spend her
money on Woodburn or others, or spend her money without her permission.
{¶7} The Pike County Prosecutor’s Office became involved and requested
assistance from the Bureau of Criminal Investigation (“BCI”). Special Agent Kevin
Barbeau, a certified fraud examiner at BCI, found no evidence that Bertha was coerced
into signing any documents. However, he found $113,625.98 from the following
Pike App. No. 18CA891 4
sources “should have benefited Bertha”: the $109,569.21 annuity check deposited into
the ACU savings account, a $1,271.45 check from Washington National Insurance
Company payable to Bertha and deposited into the ACU savings account, and
$2,785.32 in payments from Lawrence’s pension that were directly deposited into the
personal checking account of Woodburn and her husband. He found that of these
funds, $21,259.35 was expended for Bertha’s benefit, and $92,366.63 had been stolen.
Agent Barbeau found that on November 30, 2014, Woodburn transferred $147,282.47
from the ACU savings account to her and her husband’s personal checking account.
Based on the records from that checking account, Agent Barbeau determined that
between October 7, 2014, and November 30, 2015, Woodburn and her husband had
income of $65,229.15 and expenses of $205,838.96. Agent Barbeau noted their
expenses included items such as their mortgage, their insurance, dining, and personal
care. Agent Barbeau did not know where cash that had been withdrawn from the ACU
checking or savings account went.
{¶8} Agent Barbeau interviewed Woodburn, who stated that after Bertha
“cashed in CD’s” that belonged to Lawrence, the money was put into the ACU account.
The money was “for the use of” Bertha and for building a barn with an apartment for
Bertha and Lawrence. Woodburn claimed the barn was built but the apartment was not
because Lawrence “got sick and died very quickly” and Bertha wanted to live
elsewhere. Woodburn claimed an attorney told Bertha that “she was either going to
allow us to be able to take care of the money, or he was going to take over guardianship
of her.” Woodburn asserted the attorney told her that Lawrence did not want Bertha to
“be able to have sole access to the money” because other relatives had asked for loans
Pike App. No. 18CA891 5
“several times.” Woodburn stated that after Lawrence died, she told Bertha, “Mom you
know what [the lawyer] said that you needed to make sure that your funds were not
where anyone had access.” Woodburn told Bertha, “I am moving it into my account,”
and Bertha said “go ahead.” Woodburn claimed Bertha “had access to her money, if
she needed it” and just had to ask for it. Woodburn admitted Bertha was entitled to
money from Lawrence’s retirement fund and claimed Bertha agreed to this money being
deposited into Woodburn’s account. Woodburn stated she applied that money to
Bertha’s bills. Woodburn claimed that she always told Bertha when she was using
Bertha’s money and that Bertha consented to Woodburn using her money for
Woodburn’s personal expenses. Woodburn stated Bertha “did not worry about any of
the money being paid back, because she knew we were going to take care of her.”
{¶9} The Pike County grand jury indicted Woodburn on the following: (1) Count
One, theft from a person in a protected class in violation of R.C. 2913.02(A)(1), a
second-degree felony because the victim was an elderly person and the value of the
property taken was $37,500 or more and less than $150,000; (2) Count Two, theft from
a person in a protected class in violation of R.C. 2913.02(A)(2),1 a second-degree
felony because the victim was an elderly person and the value of the property taken
was $37,500 or more and less than $150,000; (3) Count Three, telecommunications
fraud in violation of R.C. 2913.05(A), a third-degree felony; and (4) Count Four, money
laundering in violation of R.C. 1315.55(A)(1), a third-degree felony.2 Woodburn waived
her right to a jury trial, and during the bench trial, defense counsel argued that pursuant
1 Count Two of the indictment cites R.C. 2913.02(A)(1) but its language tracks R.C. 2913.02(A)(2). 2 The grand jury also indicted Woodburn’s husband and daughter.
Pike App. No. 18CA891 6
to Wright v. Bloom, 69 Ohio St.3d 596, 635 N.E.2d 31 (1994), Bertha “at most” had a
one-third interest in the funds at issue based on the joint account agreement.
{¶10} The trial court found Woodburn guilty on Counts One and Two but
determined the amount taken was $30,788.87, i.e., one third of the $92,366.63 the state
argued had been stolen.3 Because that amount was $7,500 or more and less than
$37,500, the court reduced the counts to third-degree felonies. It found Woodburn not
guilty on the other counts. The state stipulated that Counts One and Two were allied
offenses of similar import that merged for sentencing purposes and elected to have the
court sentence Woodburn on Count One. The court imposed five years of community
control and ordered Woodburn to pay Bertha $30,788.87 in restitution.
II. ASSIGNMENTS OF ERROR
{¶11} Woodburn assigns the following error for our review:4
I. The trial court erred in applying Ohio joint account law when there is a joint survivorship agreement superseding the presumption of [p]roportionate deposits as ownership.

II. The trial court erred in applying joint account law without considering the Joint Account agreement with survivorship, when no agreement exists.

III. The trial court erred in finding that Kathy Woodburn was not an owner or person authorized to obtain and exert control over the funds allegedly stolen from Bertha Zimmerman.

IV. The trial court erred in any determination that Bertha Zimmerman had an interest in the $109,366.21 annuity funds given to Kathy Woodburn prior to depositing the funds into the Joint Account.

3 This decision implies the trial court concluded that the $92,366.63 came from the ACU account, which had three account holders, and did not include the pension money deposited directly into the personal account of Woodburn and her husband. 4 The assignments of error are taken from pages 1-2 of Woodburn’s appellate brief. Some of the assignments of error are stated differently elsewhere in the brief.
Pike App. No. 18CA891 7
V. The trial court err[ed] by concluding that Kathy Woodburn had a fiduciary role in relation to Bertha Zimmerman regarding funds given to her [b]y Lawrence Zimmerman.

III. LAW AND ANALYSIS
A. Standard of Review
{¶12} Although Woodburn asserts that her assignments of error raise both
questions of law subject to de novo review and a manifest weight of the evidence
challenge, the arguments in support of her assignments of error primarily focus on the
weight of the evidence supporting her convictions.
{¶13} State v. Brown, 4th Dist. Ross No. 18CA3643, 2018-Ohio-5431, states:
To determine whether a criminal conviction is against the manifest weight of the evidence, we must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts in the evidence, the trier of fact clearly lost its way and created a manifest miscarriage of justice. If the state presented substantial credible evidence upon which the trier of fact reasonably could conclude, beyond a reasonable doubt, that the state established the essential elements of the offense, the judgment of conviction is supported by the manifest weight of the evidence.

(Citations omitted.) Id. at ¶ 17. “The trier of fact is free to believe all, part, or none of
the testimony of any witness, and we defer to the trier of fact on evidentiary weight and
credibility issues because it is in the best position to gauge the witnesses’ demeanor,
gestures, and voice inflections, and to use these observations to weigh their credibility.”
State v. Miller, 4th Dist. Hocking No. 18CA3, 2019-Ohio-92, ¶ 28.
B. Relevant Statutory Provisions

{¶14} R.C. 2913.02(A)(1) and (A)(2) state:
(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways:

Pike App. No. 18CA891 8
(1) Without the consent of the owner or person authorized to give consent;

(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent[.]

{¶15} “ ‘Obtain’ means ‘ “just what it says, to get, to secure possession of.” ’ ”
State v. Dobbins, 4th Dist. Washington No. 11CA6, 2011-Ohio-6777, ¶ 12, quoting
State v. Healy, 156 Ohio St. 229, 239, 102 N.E.2d 233 (1951), quoting Tingue v. State,
90 Ohio St. 368, 372, 108 N.E. 222 (1914). “And ‘control’ means: ‘1. To exercise power
or influence over. 2. To regulate or govern. 3. To have a controlling interest in.’ ” Id.,
quoting Black’s Law Dictionary 143 (2d Pocket Ed.2001). “ ‘Owner’ means, * * * any
person, other than the actor, who is the owner of, who has possession or control of, or
who has any license or interest in property or services * * *.” R.C. 2913.01(D).
C. Caselaw on Joint and Survivorship Bank Accounts
{¶16} In Estate of Cowling v. Estate of Cowling, 109 Ohio St.3d 276, 2006-Ohio
2418, 847 N.E.2d 405, the Supreme Court of Ohio stated:
“The existence of a joint and survivorship bank account raises a rebuttable presumption that co-owners of the account share equally in the ownership of the funds on deposit.” Vetter v. Hampton (1978), 54 Ohio St.2d 227, 8 O.O.3d 198, 375 N.E.2d 804, paragraph three of the syllabus. This presumption applies in the absence of evidence to the contrary. Id. at paragraph four of the syllabus; see Wright v. Bloom (1994), 69 Ohio St.3d 596, 602-603, 635 N.E.2d 31. “A joint and survivorship account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit, unless there is clear and convincing evidence of a different intent.” In re Estate of Thompson (1981), 66 Ohio St.2d 433, 20 O.O.3d 371, 423 N.E.2d 90, paragraph one of the syllabus; see Uniform Probate Code 6-103. * * * [A]lthough [Thompson] adopted a new presumption for determining ownership of joint and survivorship accounts, the presumption of equal ownership continues to exist when net contributions are not proven. See Uniform Probate Code 6-103, Official Comment (courts should “divide the account equally among the parties to the extent that net contributions cannot be proven”).

Pike App. No. 18CA891 9
Id. at ¶ 12. “Net contributions” are “ ‘the sum of all deposits to an account made by or
for the party, less all payments from the account made to or for the party which have not
been paid to or applied to the use of another party and a proportionate share of any
charges deducted from the account, plus a proportionate share of any interest or
dividends earned.’ ” Id. at ¶ 13, quoting Uniform Probate Code 6–211. “[E]vidence of
net contributions must be proven by a preponderance of the evidence.” Id. at ¶ 15.
D. Ownership
{¶17} In some of her assignments of error, Woodburn challenges the trial court’s
finding that Bertha owned $30,788.87 of the funds the state alleged had been stolen. In
the first assignment of error, she argues that the presumption of ownership in proportion
to net contributions does not apply to money deposited into ACU because there is clear
and convincing evidence of a different intent. She appears to argue she had an
ownership interest in all of the ACU account funds because the ACU agreement shows
an intent to have a shared account and all of the funds were available to her. In the
second assignment of error, Woodburn argues that if the presumption of ownership in
proportion to net contributions applies, she owned the $109,366.21 in annuity funds
because she contributed that money to the ACU savings account by endorsing and
depositing the annuity check. In the third assignment of error, Woodburn asserts in part
that she owned the money at ACU because the ACU agreement authorized her to
withdraw the money without consent from any other account holder. In the fourth
assignment of error, Woodburn asserts the trial court erred to the extent it determined
Bertha had an interest in the $109,366.21 before it was deposited into ACU because
Lawrence gave the money to Woodburn before he died.
Pike App. No. 18CA891 10
{¶18} Our research has not revealed any cases from the Supreme Court of Ohio
or this court applying the above presumptions regarding the ownership of funds in joint
and survivorship bank accounts in a criminal case. We found only one Ohio appellate
court decision that has considered them in a criminal case. State v. Warrix, 2d Dist.
Montgomery No. 26556, 2015-Ohio-5390, ¶ 33-34 (affirming denial of motion to
withdraw guilty plea to theft from an elderly or disabled person because defendant’s
assertion that joint and survivorship accounts permitted her to spend the funds at issue
during the victim’s lifetime was unavailing based on the presumption of ownership in
proportion to net contributions and undisputed evidence that the accounts were funded
by money that belonged to the victim). To the extent these presumptions are relevant in
a criminal case, they cannot relieve the state of the burden of persuasion on an element
of an offense. See generally Francis v. Franklin, 471 U.S. 307, 314-315, 105 S.Ct.
1965, 85 L.E.2d 344 (1985) (discussing mandatory presumptions and permissive
inferences and when they violate the Due Process Clause).
{¶19} Here, the state presented substantial credible evidence upon which the
trial court reasonably could conclude, beyond a reasonable doubt, that Bertha owned at
least $30,788.87 of the funds the state alleged had been taken. Even though the ACU
agreement indicates all three account holders had access to account funds and
Woodburn endorsed and deposited the $109,366.21 annuity check, her own statements
demonstrate that money belonged to and was deposited for Bertha. During the
interview by Agent Barbeau, Woodburn never claimed Lawrence gave her that money.
Rather, she acknowledged it belonged to Bertha and claimed that she managed the
Pike App. No. 18CA891 11
money to protect Bertha from other relatives and obtained Bertha’s consent before she
transferred any of the money to her personal account and spent it on herself.
{¶20} The trial court’s finding that Bertha owned a portion of the funds the state
alleged had been stolen is not against the manifest weight of the evidence. Therefore,
we overrule the first, second, and fourth assignments of error, and we overrule the third
assignment of error to the extent it challenges the finding of ownership.
E. Consent
{¶21} In the third assignment of error, Woodburn also argues that she was a
“person authorized to obtain and exert control over” the $30,788.87 because the ACU
agreement gave her the right to withdraw all of the funds in the accounts. In the fifth
assignment of error, Woodburn maintains that the trial court erroneously concluded she
owed a “fiduciary duty” to Bertha in connection with the $109,366.21 in annuity funds
that required her to use the money for Bertha’s benefit. These arguments relate to the
issue of consent.
{¶22} The state did not present any evidence upon which the trial court could
conclude that Woodburn obtained or exerted control over funds at ACU without the
consent of Bertha. Holders of a joint and survivorship account “typically each have the
right to withdraw all the funds from an account.” Ingram v. Hocking Valley Bank, 125
Ohio App. 3d 210, 218, 708 N.E.2d 232 (4th Dist.1997). Consistent with that fact, the
ACU agreement, which all three account holders signed, requested “24-hour access” to
the account and a Debit MasterCard for each account holder that would allow them to
use ATMs and pay for services and purchases directly from the checking account.
Although Bertha did not remember opening the ACU checking and savings accounts,
Pike App. No. 18CA891 12
she told Williams that she planned to deposit the remaining annuity funds at the credit
union and have Woodburn “help manage” her money. Bertha admitted that she had
memory issues and that her signature appeared to be on the ACU agreement. There is
no evidence that Bertha’s signature was forged, that she was coerced into signing the
agreement, or that Woodburn’s withdrawal of money from ACU violated the account
terms to which Bertha agreed.
{¶23} No rational trier of fact could have found beyond a reasonable doubt that
Woodburn obtained or exerted control over the funds at ACU without the consent of
Bertha; the evidence demonstrates that Woodburn had consent to obtain and exert
control over these funds. Therefore, Woodburn’s conviction for violating R.C.
2913.02(A)(1) is not supported by sufficient evidence and is necessarily against the
manifest weight of the evidence. See State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio
1019, 9 N.E.3d 930, ¶ 146, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus (“When a court reviews the record for sufficiency,
‘[t]he relevant inquiry is 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’ ” (Alteration in Maxwell)); State v. Short, 2d
Dist. Montgomery No. 27192, 2017-Ohio-7200, ¶ 22 (“Where there is insufficient
evidence to support a conviction, it will also necessarily be against the manifest weight
of the evidence”).
{¶24} “ ‘Once a person lawfully has control over property with consent, that
person cannot thereafter exert control for a different purpose. That person already has
control. Instead, what changes is whether or not the individual [acted] within the scope
Pike App. No. 18CA891 13
of the consent.’ ” (Emphasis added in Dortch; alteration in Roberts.) State v. Roberts,
2d Dist. Montgomery No. 26431, 2015-Ohio-2716, ¶ 13, quoting State v. Dortch, 2d
Dist. Montgomery No. 17700, 1999 WL 819569, *4 (Oct. 15, 1999). “ ‘If the individual
begins to use the property for something outside what the owner specifically authorized,
the individual has gone beyond the owner’s consent. The [theft] statute allows for this
precise situation in R.C. 2913.02(A)(2).’ ” Id., quoting Dortch at *4.
{¶25} The state presented substantial credible evidence upon which the trial
court reasonably could conclude, beyond a reasonable doubt, that Woodburn exerted
control over the $109,569.21 in annuity funds beyond the scope of the express or
implied consent of Bertha. Woodburn is correct that the record does not contain written
instructions from Lawrence Zimmerman regarding use of the funds, evidence of a
guardianship or trust, or evidence that Woodburn used a power of attorney to gain
access to the funds, but R.C. 2913.02(A)(2) does not require such evidence. During the
interview by Agent Barbeau, Woodburn acknowledged the funds belonged to Bertha
and were for her use. Bertha testified that she never authorized Woodburn to spend the
money on herself, and the trial court was free to disbelieve Woodburn’s statement to the
contrary and conclude she used Bertha’s money beyond the scope of her consent.
{¶26} We conclude that Woodburn’s conviction on Count One, the violation of
R.C. 2913.02(A)(1), is not supported by sufficient evidence and is therefore against the
manifest weight of the evidence and sustain the third assignment of error in part.
However, the trial court’s finding that Woodburn exceeded the scope of express or
implied consent for purposes of Count Two, the violation of R.C. 2913.02(A)(2), is not
against the manifest weight of the evidence. We overrule the remainder of the third
Pike App. No. 18CA891 14
assignment of error to the extent it asserts otherwise and overrule the fifth assignment
of error.

Outcome: We overrule the first, second, fourth, and fifth assignments of error. We
overrule the third assignment of error in part and sustain it in part. We reverse the
conviction for theft from a person in a protected class in violation of R.C. 2913.02(A)(1),
affirm the finding of guilt for theft from a person in a protected class in violation of R.C.
2913.02(A)(2), and remand for the trial court to sentence Woodburn on that offense.

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