source: Caselaw Access Project

author: Baldwin, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. Brent RARDON, Defendant-Appellant
    No. 17 CAA 04 0027
    Court of Appeals of Ohio, Fifth District, Delaware County.
    DATE OF JUDGMENT: May 15, 2018
    CAROL HAMILTON O'BRIEN, Prosecuting Attorney, By: KIMBERLY E. BURROUGHS, Assistant Prosecuting Attorney, Delaware Co. Prosecutor's Office, 140 North Sandusky Street, Delaware, Ohio 43015, For Plaintiff-Appellee.
    CHARLES A. KOENIG, TODD A. LONG, Koenig & Long, LLC, 5354 North High Street, Columbus, Ohio 43214, for Defendant-Appellant.
    JUDGES: Hon. William B. Hoffman, P.J., Hon. Craig R. Baldwin, J., Hon. Earle E. Wise, J.
   Baldwin, J.

{¶ 1} Defendant-appellant Brent Rardon appeals his conviction and sentence from the Delaware County Court of Common Pleas on one count each of trafficking in drugs and possession of drugs. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶ 2} On August 26, 2016, the Delaware County Grand Jury indicated appellant on two counts of trafficking in drugs in violation of R.C. 2925.03(A)(2), one (Count One) a felony of the second degree and one (Count Three) a felony of the fourth degree, and two counts of possession of drugs in violation of R.C. 2925.11(A), one (Count Two) a felony of the second degree and one (Count Four) a felony of the fourth degree. The indictment covered the period from January 1, 2015 through September 9, 2015. At his arraignment on November 18, 2016, appellant entered a plea of not guilty to the charges.

{¶ 3} A jury trial commenced on February 28, 2017. The following testimony was adduced at trial.

{¶ 4} Keven Liston, along with Wade Kirk, founded and is the co-owner of Supzilla Sport Nutrition, a health and wellness business which sells supplements, vitamins, protein powders and other health and wellness items. Supzilla has eleven retail stores throughout central Ohio and Indiana. In late 2013/early 2014, appellant, who was a personal trainer, purchased the Powell, Ohio location and operated that location in partnership with Liston and other Supzilla owners.

{¶ 5} Liston testified that on September 3, 2015, he was contacted by Austin Pagani, who was working at the Powell store. Pagani sent Liston a picture stating that he did not feel comfortable selling what was in the picture. Liston then went immediately to the Powell store and inspected and photographed the item. He testified that the item "was a two pound UMP [Ultimate Muscle Provider] container, which is a protein container, and it had packing material in there along with vials of steroids." Trial Transcript, Vol. I at 145. Typically, UMP containers contain powder protein. Liston testified that based upon his own experience using steroids in the past, he believed that the vials found in the UMP container contained illegal anabolic steroids. At the time, appellant was in Nebraska.

{¶ 6} Because he was concerned with how appellant's sale of the illegal steroids out of a Supzilla storefront would negatively impact the Supzilla brand and with the potential damage to customers, Liston contacted appellant by phone on September 4, 2015 and told him that Austin Pagani had informed him about the anabolic steroids. Liston testified that he told appellant that they could no longer do business with him and that when appellant returned, appellant should meet Liston at the Powell location, grab his belongings and they could discuss buy-out options. According to Liston, appellant, who appeared agreeable to a buy-out, initially denied ownership of the steroids, but then admitted that the steroids were his. Appellant also denied selling the steroids, but, according to Liston, apologized for having the steroids at the store.

{¶ 7} Liston testified that he never called the police and that he also found two boxes with syringes and vials of liquid steroids and oral steroids in the back room behind the retail store and photographed them.

{¶ 8} When appellant was out of town from September 4, 2015 through September 8, 2015, Liston and Austin Pagani continued operating the Powell Supzilla store.

On September 8, 2015, the Powell Police Department was contacted by Ryan McFann, appellant's friend, regarding a civil matter at the Powell Supzilla. After McFann told Officer Scott Sanford of the Powell Police Department that the business should be closed and that there should not be anyone in the store, the police left a message for appellant to get in touch with them. When the police spoke with appellant, he indicated to them that Liston and Wade Kirk were at the store and had changed out his account routing numbers for the store and that no one was supposed to be on the premises. Appellant also told the police that he was the only one on the lease. After determining that appellant was the only one on the lease, the police escorted Liston, Kirk and Austin Pagani off the premises. Based on information received from Liston about what was inside the store, Powell police obtained a search warrant and searched the Powell Supzilla location. They seized the UMP container, vials with pink and orange caps, and a number of syringes.

{¶ 9} At trial, Austin Pagani testified that he was hired in August of 2015 to work at the Powell Supzilla store. He testified that he knew that appellant was using steroids during this period because he was shown the box in the back of the store and observed appellant inject himself with steroids in the back of the store "at least a minimum of two times a week." Trial Transcript, Vol. II at 214. According to Pagani, the vials of anabolic steroids that appellant used had either pink or orange caps and appellant told him that one contained testosterone cypionate and the other testosterone propionate. When asked if he was using steroids during this time period, Pagani stated that he was because he was preparing for the world championships in 2015. Appellant, he testified, showed him how to inject them into his buttocks and thighs. While Pagani initially obtained his personal supply of anabolic steroids from someone else, he testified that he asked appellant to supply him with DBOL (methandrostenolone) and Anavar, which is another anabolic steroid.

{¶ 10} When asked if he had ever seen appellant selling steroids out of the Powell Supzilla, Pagani testified that he had and that people would walk into the back of the store and leave with a container that he knew was empty. He testified that appellant was "very open" about the sale of steroids and told Pagani what he was selling, who was buying it and what they were buying it for. Trial Transcript, Vol. II at 218. Appellant asked him to give pre-packaged containers to specific individuals. On two or three occasions, the people came in and the container was exchanged without any money collected. The third time, in September of 2015, when appellant was leaving Ohio to visit family, he asked Pagani to hand the customer the UMP container, collect the money and then put the money into a blue money bag that was near the store's iPad-based cash register. The $200.00 to $300.00 that Pagani collected from the customer was not registered on the iPad in accordance with appellant's instructions. When he looked into the UMP container, Pagani observed the same orange and pink capped vials that he had seen appellant use to inject himself with anabolic steroids along with silver packages of DBOL and Anavar, anabolic steroids.

{¶ 11} Pagani testified that he saw appellant purchase various items from Ryan McFann, who he thought was appellant's supplier. He further testified that he observed appellant open packages from McFann and split the items in the packages up.

{¶ 12} Because he had never exchanged a package containing what he thought were illegal steroids for cash before and thought that he could get in trouble, Pagani testified that he contacted Keven Liston and photographs were taken of the UMP container. According to Pagani, between September 4, 2015 and September 8, 2015, attempts were made to remove the UMP container from the store. He testified that Cody Martin, who he believed had purchased anabolic steroids from appellant, came to the store on September 4, 2015 and asked to use the bathroom at the back of the store. Pagani testified that he saw Martin take the vials that were in the UMP container and put them into a different container in an attempt to remove them from the store. Martin, after being confronted by Pagani, left the store without the steroids. On September 8, 2015, Ryan McFann arrived shortly after the store opened to look for the steroids in the back of the store and took Pagani's store key.

{¶ 13} Jessica Kaiser, who is a forensic scientist with the Bureau of Criminal Investigation, testified that 20 glass vials with orange caps that had been seized by the police tested positive for testosterone enanthate, a Schedule III controlled substance. The total weight was 170.20 grams. She further testified that 69 glass vials with pink caps that were seized contained testosterone propionate, also a Schedule III controlled substance. The weight was 624.36 grams. She testified that three glass vials with pink caps contained 27.33 grams of testosterone propionate. Testing revealed that another vial seized contained 9.17 grams of testosterone enanthate although the label said testosterone cypionate. Kaiser testified that capsules that were seized during the search were found to contain 29.73 grams of methandrostenolone, a Schedule III controlled substance. A total of 831.50 grams of testosterone was seized during the search.

{¶ 14} Over appellant's objection on the basis of Evid.R. 404(B), the trial court permitted Powell Detective Ryan Pentz to testify about over 26,000 text messages appellant participated in between January 1, 2015 through September 8, 2015. As part of his investigation, Detective Pentz obtained a search warrant for appellant's phone and had a forensic download performed on the phone generating a roughly 2,500 page report. Detective Pentz testified that as he was reviewing the messages, he would write down certain terms and then search for them in the report. The following testimony was adduced when he was asked what those terms were:

{¶ 15} A: You know, one of the very first terms I did a search for, because it's a term I saw was steroids. And then, you know, I learned a new term, cypionate. I would learn a new term of CYP. I would learn a new test, testosterone. I would learn a term of SARMS. And I noticed how they would reference certain terms. Sometimes it might be-testosterone might be referenced test. And so I just started doing research for all these different terms that I was learning through this report.

{¶ 16} Q: Was one of those terms gear?

{¶ 17} A: I learned the word gear, and learned through the report that gear was being referenced as steroids. So then I would do a search for gear and come up-every time I could find the word gear.

{¶ 18} Q: And after you did the search, you mentioned something about seeing the context of how that was used?

{¶ 19} A: Correct. So once I found these terms and where they were at within the report, I would read the context of what's going on, who is saying what, who is sending what, who is replying, what are they saying, and look at the context of that terminology, and how it's being referenced.

{¶ 20} Trial Transcript, Vol. II at 403-404.

{¶ 21} Detective Pentz testified that State's Exhibit 16 was a message between appellant and Hailey Clark, who had worked for appellant at the Powell Supzilla from 2014 until May of 2015 and who testified at trial, in which appellant talked about having legal troubles involving "roids and Supzilla." Trial Transcript, Vol. III at 413. Appellant, in one of the messages to Clark that was admitted as Exhibit 16, stated when asked why he was being accused of selling steroids that it was "Probably cuz I have it. And I've gave some to friends out of my personal stash." He further told Clark in a message dated September 4, 2015 that he had "gear" at the store that Liston had found. In conversations with Cody Martin dated between January 22, 2015 and August 23, 2015 (Exhibit 74), appellant was asked by Martin how much it would cost to be hooked up with steroids and was asked if "tren and test for starters" would be okay. Appellant indicated to Martin that the cost would be $220.00 for tren and $200.00 for "test" and in later messages instructed Martin on how to inject the substances. Appellant also informed Martin that there were side effects from steroid use and, in one exchange dated April 21, 2015, sent Martin a photograph of what appears to be four vials of anabolic steroids in a row and indicated that they were for sale. The vials appear to contain "Trenbolene Enanthate," "Testosterone Cypionate," "Tri Test" and "Masteron." Detective Pentz testified that he researched the name of the company on the vials, which was Boehringer Ingelheim, and that it was a pharmaceutical company.

{¶ 22} Detective Pentz also testified about the contents of conversations between appellant and Jake Coyler, which were admitted as Exhibit 76. On April 23, 2015, the two talked about "tren" and "test" in their messages and a reference was made to "Boehringer test". One of the vials that was in the photograph that appellant sent to Cody Martin contained "Tri Test." In messages dated starting on January 14, 2015 between appellant and Jeff Yates that were admitted as Exhibit 77, appellant suggested that Yates get "on some gear" and recommended that Yates use "Tren, test, mast." When asked where he can get some mast, appellant responded that he might have some in his personal stash and that the cost was $85.00. On February 2, 2015, Yates sent a message to appellant stating that he needed "test cyp x 2 Mast and tren" and appellant indicated that he will let Yates know.

{¶ 23} Appellant's conversations with Josh Rodrigez were testified to by the Detective and admitted as Exhibit 78. In a message to appellant dated June 23, 2015, Rodrigez told appellant that he needed his "gear" and appellant indicated that he should have it by Friday and that the cost was $300.00 for the gear, which included tren. Detective Pentz, when asked the significance of the term "gear" used in this context, testified that the term was being used "as a slang word for steroids." Trial Transcript, Vol. III at 453. Detective Pentz also was questioned about conversations between appellant and Tim Cronin, a friend of appellant's who was a police officer in Nebraska, which were admitted as Exhibit 81. During the conversations, which started on June 12, 2015 and continued until August 14, 2015, Cronin asked appellant about Anavar and appellant referred him to a website named Roidsource.biz. In a message to Cronin dated August 14, 2015, appellant asked him how much "var" he wants and Cronin indicated that he wants 200 tabs. Appellant then sent a message to Ryan McFann, asking how much the 200 tabs would cost and after receiving a reply, sent a message to Cronin stating that the cost was $300.00. In another message, appellant informed Cronin that "var" was a light steroid. Appellant, in a message to Cronin dated August 14, 2015, tells Cronin that "[i]f you run your gear correctly you won't get gyno".

{¶ 24} Detective Pentz testified that he discovered text message exchanges between appellant and Ryan McFann that led him to believe that appellant was buying drugs from McFann. The messages were admitted as Exhibit 83. On June 16, 2015, McFann sent appellant a detailed list of the prices for various drugs including "Enanthate", "test", "Prop", "Cyp", "Tren" and "Mast", among other items, and indicated that there was a $200.00 minimum order. In a message to appellant dated June 20, 2015, McFann told appellant that he had "a bunch of prop I over ordered" and asked appellant if he wanted "to work a bulk buy on em." Throughout the messages, which date from May 4, 2015 to August 28, 2015, appellant indicated that he needed "cyp", "tren", "test" and "var" and was quoted prices by McFann.

{¶ 25} Detective Pentz also examined appellant's chronological messages from September 4, 2015 through September 8, 2015 (Exhibits 85-88). In a message to appellant from Cody Martin dated September 4, 2015, Martin indicated that he could not get "it" because "Austin said he wasn't' aloud (sic)." Detective Pentz testified that this confirmed with what Austin Pagani had said about Cody Martin coming into the store to try to remove items. In another message from Ryan McFann to appellant dated September 4, 2015, McFann told appellant to say that they were trying to blackmail him. On the same date, McFann sent a message to appellant advising him to say that the UMP container with the "gear" in it was not his. In a September 7, 2015 message to appellant, McFann advised him to contact the police and act like the "gear" found in his Supzilla store was a "complete setup." On September 8, 2015, appellant and McFann agreed, as evidenced by messages, that appellant would call the police and tell them that Kevin Liston and his associates had been in control of the store for a week and "anything in there illegal was put thwre (sic) by them in an attempt to blackmail you." Tim Cronin, in a September 8, 2015 message to appellant, instructed him to tell the police that he had not been at the store for over a week and that he had found the steroids.

{¶ 26} On cross-examination, after testifying at length about the messages, Detective Pentz testified that prior to this case, his involvement in drug cases was pretty minimal and that he did not consult with an expert on steroids.

{¶ 27} After the State rested, appellant called Kyle Brammer as a witness. Brammer testified that he worked for a sports supplement distributor and was familiar with the ban on pro-hormones in late 2014 or early 2015. He testified that some pro-hormones had not been banned and were still on the market. According to him, manufacturers of pro-hormones used the names of commonly known steroids for their products as a marketing tactic to attract more purchasers who would be intrigued that they might get the same result as from an illegal substance. He testified that Hi-Tech Pharmaceuticals produced and marketed pro-hormones under the brand names Anavar, Sustanon 250 and Anabol which were "basically illegal precursor names, but they are not the actual product." Trial Transcript, Vol. III at 585.

{¶ 28} Appellant testified on his own behalf at trial. He testified that he was a personal trainer and body builder and that, as a body builder, he had used steroids and pro-hormones. Appellant testified that some common names of steroids were "ren, cyp, sus, EQ, Anavar,...mast." Trial Transcript, Vol. IV at 618. When asked if they were associated with anything other than steroids, appellant testified that they also were associated with pro-hormones. According to appellant, pro-hormones were legal to sell prior to their ban in 2014 and mirrored the effects of steroids. He testified that not all pro-hormones were banned, but that "[i]t was the compound that was banned." Trial Transcript, Vol. IV at 625. Following the ban, pro-hormones which did not contain the prohibited compounds remained to be legal to sell. Appellant testified that after the ban, the same names were used for the pro-hormones.

{¶ 29} Prior to the ban, appellant had been selling pro-hormones. He testified that he had purchased pro-hormones from Ryan McFann and that, after the ban, there were still pro-hormones available. He testified that in early 2015, he started selling new supplements being developed by a company owned by McFann which were a mixture of legal pro-hormones and SARMS (selective androgen receptor modulators). When asked if he put these products on his shelf, appellant said that he did not because they did not have labels "and came under the shady gray area." Trial Transcript, Vol. IV at 635. Appellant testified that he did not sell steroids, but sold pro-hormones. He testified that the vials of steroids recovered during the search of the store were not his.

{¶ 30} On cross-examination, appellant admitted that he possessed small amount of illegal steroids or "gear" in the Powell Supzilla store.

{¶ 31} The jury, at the conclusion of the evidence and the end of deliberations, found appellant guilty of a lesser included offense of trafficking in drugs as charged in Count One and possession of drugs as charged in Count Two. The jury found appellant not guilty of the other two counts. The parties agreed that Count One and Two were allied offenses and the State elected to proceed at sentencing on Count Two due to merger. As memorialized in a Judgment Entry filed on April 18, 2017, appellant was sentenced to three years in prison and fined $10,000.00.

{¶ 32} Appellant now raises the following assignments of error on appeal:

{¶ 33} I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ALLOWED THE STATE TO INTRODUCE INADMISSIBLE AND HIGHLY PREJUDICIAL EVIDENCE OF PRIOR BAD ACTS OF THE APPELLANT, IN VIOLATION OF RULE 404(B) OF THE OHIO RULES OF EVIDENCE.

{¶ 34} II. THE TRIAL COURT ERRED WHEN IT PERMITTED LAY WITNESS OPINION TESTIMONY OF THE MEANING OF APPELLANT'S COMMUNICATIONS, IN VIOLATION OF RULE 701 OF THE OHIO RULES OF EVIDENCE.

{¶ 35} III. THE VERDICTS RETURNED BY THE JURY WERE INCONSISTENT WITH THE PHYSICAL EVIDENCE AND COULD NOT SUPPORT THE FINDINGS OF GUILTY ON COUNTS ONE AND TWO.

{¶ 36} IV. THE VERDICTS WERE NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE.

I

{¶ 37} Appellant, in his first assignment of error, argues that the trial court erred in allowing Detective Pentz to testify about the more than 26,000 text communications between appellant and various other individuals between January 1, 2015 and September 8, 2015 because this was inadmissible and highly prejudicial evidence of other bad acts in violation of Evid.R. 404(B).

{¶ 38} Evid. R. 404(B) provides, in relevant part, as follows:

(B) Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

{¶ 39} R.C. 2945.59 similarly provides:

In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.

{¶ 40} As noted by the court in State v. Nucklos , 171 Ohio App.3d 38, 2007-Ohio-1025, 869 N.E.2d 674 at paragraph 78 :

Evid.R. 404(B) and its companion statutory provision, R.C. 2945.59, are concerned with extrinsic acts. "An extrinsic act is simply any act which is not part of the operative facts or episode of the case; i.e., it is 'extrinsic' usually because of a separation of time, space, or both." Weissenberger's Ohio Evidence Treatise (2006), Section 402.21. "Generally, extrinsic acts may not be used to suggest that the accused has the propensity to act in a certain manner." State v. Crotts, 104 Ohio St.3d 432, 2004-Ohio-6550, 820 N.E.2d 302, ¶ 18.

{¶ 41} "Because R.C. 2945.59 and Evid.R. 404(B) codify an exception to the common law with respect to evidence of other acts of wrongdoing, they must be construed against admissibility, and the standard for determining admissibility of such evidence is strict." State v. Broom , 40 Ohio St.3d 277, 281-82, 533 N.E.2d 682, 689-90 (1988). Evidence to prove the "type" of person the defendant is in order to show he acted in conformity therewith in the instant case is barred by Evid.R. 404(B). State v. Greene , 2012-Ohio-5624, 983 N.E.2d 773, ¶ 35.

{¶ 42} The Ohio Supreme Court has set forth a three-part test for determining the admissibility of other acts evidence:

The first step is to consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Evid.R. 401. The next step is to consider whether evidence of the other crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other acts evidence is presented for a legitimate purpose, such as those stated in Evid.R. 404(B). The third step is to consider whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice. See Evid.R 403.

{¶ 43} State v. Williams , 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 20.

{¶ 44} The trial court's admission of other acts evidence is reviewed under an abuse of discretion standard. State v. Morris , 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528. In order to find an abuse of discretion, we must find the trial court's decision was arbitrary, unconscionable, or unreasonable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 45} At trial, appellant objected to Detective Pentz's testimony about the text messages which covered the period from January 1, 2015 through September 8, 2015 between appellant and various individuals. Appellant specifically argued that none of the messages related to the substances seized from his store on September 8, 2015. Appellant argued, therefore, that such evidence "constitutes 404B evidence..." Trial Transcript, Vol. II at 282.

{¶ 46} However, we concur with appellee that the text message conversations did not constitute evidence of prior bad acts in violation of Evid.R. 404(B). The indictment alleged that appellant had trafficked in drugs and/or possessed drugs during the period from January 1, 2015 through September 9, 2015. As appellee argued before the trial court:

[w]ith regard to the question about whether or not this is 404B evidence, it's not. It's evidence of trafficking in steroids and possession of steroids during the period of the indictment. Yes, for the bulk amount, we have to weigh the stuff that we actually recovered. But all of that evidence during the period of the indictment from January 1, 2015 through September 8, demonstrates that he [appellant] was receiving steroids, he was packaging them for sale. He was distributing them to other people, that he was in possession of them. And all of that then reflects that the steroids that were located in the back of his store amongst his personal items in those boxes are, in fact, his steroids.

{¶ 47} Trial Transcript, Vol. II at 285.

{¶ 48} We find that the evidence relates to the counts charged in the indictment and the circumstances surrounding appellant's prosecution, which leaves this evidence outside the purview of Evid.R. 404(B). The text message conversations were not "extrinsic acts" because they were part of the operative facts in this case and related directly to conduct alleged in the indictment.

{¶ 49} Appellant's first assignment of error is, therefore, overruled.

II

{¶ 50} Appellant, in his second assignment of error, contends that the trial court violated Evid.R.701 when it permitted lay witness opinion testimony pertaining to the meaning of appellant's communications. Appellant specifically argues that the trial court erred in permitting Detective Pentz to testify regarding his conclusions as to the meaning of terms used in appellant's over 26,000 text messages and in permitting him to testify regarding the believability of one witness' testimony over appellant's testimony.

{¶ 51} Initially, we note that appellee argues that appellant did not properly preserve for appeal his argument relating to Detective Pentz's opinion testimony regarding the meaning of terminology used in the text messages. Appellee concedes that at trial, appellant's defense counsel objected twice to such testimony, but his objections were overruled. The trial court, in overruling the second objection, stated that Detective Pentz was entitled to give his opinion under Evid.R. 701.

{¶ 52} Evid.R 103(A) states, in relevant part, as follows: "Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and

{¶ 53} (1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or..."

{¶ 54} We find that appellant objected twice to Detective Pentz's testimony and that he did not need to continually reassert his objection to the admissibility of such testimony. See State v. Davis , 10th Dist. No. 96APC04-524, 1996 WL 673541.

{¶ 55} The admission or exclusion of relevant evidence rests in the sound discretion of the trial court. State v. Sage , 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph two of the syllabus. The term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Wilmington Steel Products, Inc. v. Cleveland Elec. Illum. Co. , 60 Ohio St.3d 120, 122, 573 N.E.2d 622, 624 (1991).

{¶ 56} " Evid.R. 701 affords the trial court considerable discretion in controlling the opinion testimony of lay witnesses." State v. Harper, 5th Dist. Licking No. 07 CA 151, 2008-Ohio-6926, 2008 WL 5412416, ¶ 42, citing City of Urbana ex rel. Newlin v. Downing, 43 Ohio St.3d 109, 113, 539 N.E.2d 140 (1989) and State v. Kehoe, 133 Ohio App.3d 591, 603, 729 N.E.2d 431 (12th Dist.1999). "If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." Lay opinion, inferences, impressions or conclusions are therefore admissible if they are those that a rational person would form on the basis of the observed facts and if they assist the jury in understanding the testimony or delineating a fact in issue. Id. "[A]n opinion or inference otherwise admissible is not objectionable solely because it embraces an ultimate issue to be decided by the trier of fact". Evid.R. 704.

{¶ 57} The distinction between lay and expert-witness opinion testimony is that lay testimony results from a process of reasoning familiar in everyday life, while expert testimony results from a process of reasoning that only specialists in the field can master. State v. McKee , 91 Ohio St.3d 292, 744 N.E.2d 737 (2001).

{¶ 58} We find that the trial court did not abuse its discretion in holding that Detective Pentz's lay opinion testimony regarding the text messages was admissible under Evid.R. 701 and that the trial court's decision was not arbitrary, unconscionable or unreasonable. Detective Pentz's testimony was rationally based on his perceptions and helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. At trial, Detective Pentz testified that he reviewed a 2,500 page PDF report that contained 26,000 text messages taken from appellant's phone. He testified that he did not review every text message, but reviewed the report, starting at the beginning. He further testified that he kept a note pad next to him and would write down certain terms and then search the report for words and phrases that matched that context. According to him, as he located the terms and where they were within the report, "I would read the context of what's going on, who is saying what, who is sending what, who is replying, what are they saying, and look at the context of that terminology, and how it's being referenced." Trial Transcript, Vol. II at 404. We further note that a binder of the text messages was marked as more than one Exhibit and admitted at trial. The jury thus had the chance to independently review the text messages including, for example, Exhibit 74, which specifically discussed the sale of "steroids". Furthermore, the jury also heard testimony from Kevin Liston and others as to the meaning of the terms used in the messages. Liston, for example, testified that the term "gear" was "just a short-term for steroids where if you're talking in public, you don't want people to,...understand what you're talking about with steroids, so you say gear." Trial Transcript, Vol. I at 142. Austin Pagani also testified that "gear" referred to steroids and not pro-hormones. Trial Transcript, Vol. II at 225.

{¶ 59} Appellant, as is stated above, also maintains that the trial court erred in permitting Detective Pentz to give an opinion as to the credibility of Austin Pagani. Pagani testified that Cody Martin, on September 4, 2015, had attempted to remove vials of steroids from the back room of the Powell Supzilla store but was not successful. During his testimony, Detective Pentz later testified about text messages found on appellant's phone. The following is an excerpt from his testimony at trial:

{¶ 60} Then text messaging, 3:18 to Cody Martin: Call me when you get a chance. 3:19, phone call from Cody. 3:58: You get it? Cody-from the defendant to Cody: You get it?

Cody: No man.
Defendant says why.
Cody says: I couldn't. Austin said he wasn't allowed.

{¶ 61} Q: Detective, did you put any significance in into this after having talked to Austin?

{¶ 62} A: I did. Cody, after talking to Austin-

MR. LONG: Objection, Your Honor.
MR. WALTER: This is already in the record as testimony from Austin.
MR. LONG: He's rendering a conclusion.
That's for the jury to reach.
THE COURT: I'll overrule.

{¶ 63} Q: You've heard Austin testify here, right?

{¶ 64} A: Correct.

{¶ 65} Q: Did you take what you saw in the text messages and what you heard from Austin, what was the significance you heard from that?

{¶ 66} A: It backed up what Austin was saying, that Cody came to the store to try to remove the packages.

{¶ 67} Trial Transcript, Vol. III at 497-498.

{¶ 68} Appellant later testified that he had asked Cody Martin to go to the store and get appellant's personal items out of the store, including his sweater, vest, shirt and some shoes.

{¶ 69} Appellant now argues that Detective Pentz's testimony was impermissible credibility testimony that established that Pagani was being truthful while appellant was not. However, Detective Pentz did not state that he believed the witness was telling the truth or give an explicit opinion as to Pagani's credibility. See, for example, State v. Myers , 5th Dist. Richland No. 03-CA-61, 2004-Ohio-3052, 2004 WL 1327929 at paragraph 64 (June 9, 2004) ("The detective conducted an initial interview with Ms. Adkins that was not tape recorded. Over a week later he interviewed her and this time made a recording of the interview. The testimony objected to by appellant was that the second statement was consistent with the first statement (T. at 910). The officer was testifying to a fact, not expressing an opinion about the credibility or veracity of the complainant."). We find, therefore, that the trial court did not err in allowing his testimony since it was not impermissible credibility testimony. Detective Pentz was testifying as to a fact, not expressing an opinion at to Pangani's credibility or veracity.

{¶ 70} Appellant's second assignment of error is, therefore, overruled.

III

{¶ 71} Appellant, in his third assignment of error, argues that the jury verdicts were inconsistent with the physical evidence and could not support a finding of guilty on Counts One and Two.

{¶ 72} Appellant, in the case sub judice, was indicted on one count (Count One) of trafficking in drugs (testosterone), one count (Count Two) of possession of drugs (testosterone), one count (Count Three) of trafficking in drugs (methandrostenolone), and one count (Count 4) of possession of drugs (methandrostenolone). While appellant was found not guilty of the two counts related to methandrostenolone, he was found guilty of the two counts involving testosterone. Appellant notes that there was testimony at trial that all of the drugs were located in the same UMP container in the Powell Supzilla back room and argues that his convictions, therefore, were inconsistent with the physical evidence. According to appellant, "[t]he jury could not reasonably come to the conclusion that Appellant owned or possessed only part of the contents of the UMP container."

{¶ 73} An inconsistent verdict may be a result of leniency and compromise by the jurors, rather than being caused by jury confusion. State v. Fraley, 5th Dist. Perry App. No. 03CA12, 2004-Ohio-4898, 2004 WL 2066571, ¶ 15, citing United States v. Powell , 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984). See, also, State v. Ballard, 8th Dist. No. 88279, 2007-Ohio-4017, 2007 WL 2269570, ¶ 18. "Consistency between verdicts on several counts of an indictment is unnecessary where the defendant is convicted on one or some counts and acquitted on others; the conviction generally will be upheld irrespective of its rational incompatibility with the acquittal." State v. Trewartha, 165 Ohio App.3d 91, 2005-Ohio-5697, 844 N.E.2d 1218 at paragraph 15 (10th Dist), citing State v. Adams , 53 Ohio St.2d 223, 374 N.E.2d 137 (1978) vacated in part on other grounds in Adams v. Ohio, 439 U.S. 811, 99 S.Ct. 69, 58 L.Ed.2d 103 (1978). Every count of a multiple-count indictment is considered to be distinct and independent of all the other counts; therefore, inconsistent verdicts on different counts do not justify overturning a verdict of guilt. Id. (Citations omitted). As the Ohio Supreme Court has stated, "the sanctity of the jury verdict should be preserved and could not be upset by speculation or inquiry into such matters to resolve the inconsistency." State v. Lovejoy , 79 Ohio St.3d 440, 444, 683 N.E.2d 1112 (1997).

{¶ 74} Because appellant's argument is that the juror's verdicts were inconsistent across multiple counts rather than within a single count, based on the law set forth above, we cannot justify overturning the jury verdict.

{¶ 75} Accordingly, appellant's third assignment of error is overruled.

IV

{¶ 76} Appellant, in his fourth and final assignment of error, maintains that the verdicts were against the manifest weight of the evidence.

{¶ 77} In determining whether a conviction is against the manifest weight of the evidence, the court of appeals functions as the "thirteenth juror," and after "reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be overturned and a new trial ordered." State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as stated by State v. Smith , 80 Ohio St.3d 89, 684 N.E.2d 668 (1997). Reversing a conviction as being against the manifest weight of the evidence and ordering a new trial should be reserved for only the "exceptional case in which the evidence weighs heavily against the conviction." Id.

{¶ 78} Appellant's argument focuses on the credibility of the witnesses. Appellant argues that Kevin Liston, Austin Pagani and Detective Pentz were not credible witnesses. However, the weight to be given to the evidence and the credibility of the witnesses are issues for the trier of fact. State v. DeHass , 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967). The trier of fact "has the best opportunity to view the demeanor, attitude, and credibility of each witness, something that does not translate well on the written page." Davis v. Flickinger , 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). The jury as the trier of fact was free to accept or reject any and all of the evidence offered by the parties and assess the witness's credibility. "While the jury may take note of the inconsistencies and resolve or discount them accordingly * * * such inconsistencies do not render defendant's conviction against the manifest weight or sufficiency of the evidence." State v. Craig , 10th Dist. Franklin No. 99AP-739, 2000 WL 297252 (Mar. 23, 2000) citing State v. Nivens , 10th Dist. Franklin No. 95APA09-1236, 1996 WL 284714 (May 28, 1996). Indeed, the jury need not believe all of a witness' testimony, but may accept only portions of it as true. State v. Raver , 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, 2003 WL 723225, ¶ 21, citing State v. Antill , 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).

{¶ 79} In the case sub judice, the jury heard the witnesses, viewed the evidence, which included the text messages, and heard appellant testify. There was testimony from Austin Pagani that he had observed appellant selling testosterone in the Powell Supzilla store. Kevin Liston testified that when he confronted appellant, appellant admitted to owning the substances found in the store. Moreover, during the text message conversations between appellant and numerous other individuals that were admitted, appellant, as noted by appellee, "discussed the use and sale of testosterone over the eight months leading up to this discovery of more than 800 grams of testosterone at the Powell Supzilla." In text messages between Ryan McFann and appellant, the two discuss telling the police that Liston and others had planted the steroids in the store in an attempt to blackmail appellant.

{¶ 80} We find, upon reviewing the facts as set forth in detail above, that this is not an " 'exceptional case in which the evidence weighs heavily against the conviction.' " State v. Thompkins , 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983). The jury neither lost its way nor created a miscarriage of justice in convicting appellant.

{¶ 81} Appellant's fourth assignment of error is, therefore, overruled.

{¶ 82} Accordingly, the judgment of the Delaware County Court of Common Pleas is affirmed.

Hoffman, P.J. and Earle Wise, J. concur.


author: KATHLEEN ANN KEOUGH, P.J.:

text:
    SMS FINANCIAL 30, L.L.C., Plaintiff-Appellee v. FREDERICK D. HARRIS, M.D., INC., et al., Defendants-Appellants
    No. 105710
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: May 24, 2018
    Samantha A. Vajskop, Daniel J. Myers, Myers Law, L.L.C., 600 East Granger Road, Second Floor, Cleveland, Ohio 44131, ATTORNEYS FOR APPELLANTS
    David M. Cuppage, Scott D. Simpkins, Climaco, Wilcox, Peca & Garafoli Co., L.P.A., 55 Public Square, Suite 1950, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Keough, P.J., Laster Mays, J., and Jones, J.
    JOURNAL ENTRY AND OPINION
   KATHLEEN ANN KEOUGH, P.J.:

{¶ 1} Defendants-appellants, Frederick Harris, M.D., Inc. and Frederick Harris, M.D. (collectively "appellants") appeal the trial courts decision entering judgment against them and in favor of plaintiff-appellee, SMS Financial 30, L.L.C. ("SMS") in the amount of $46,762.64, plus interest. For the reasons that follow, we affirm in part, reverse in part, and remand with instructions to the trial court.

{¶ 2} On January 20, 2016, SMS filed a complaint against Frederick Harris, M.D., Inc. ("Harris M.D.") for breach of a Small Business Line of Credit Agreement with National City Bank ("LOC"), and against Frederick Harris, M.D., individually, ("Harris") for breach of Guaranty of Payment-Waiver of Rights in favor of National City Bank ("Guaranty"). Appellants admitted that the LOC was executed, but denied the material allegations of the complaint. Appellants also challenged the validity of the assignment of the LOC to SMS and whether SMS's action was (1) time-barred, (2) seeking to collect on the wrong account, and (3) barred pursuant to R.C. 1701.87.

{¶ 3} Both parties moved for summary judgment, which the court denied in part. The court only granted summary judgment in favor of the appellants on SMS's request for attorney fees contained in the complaint. In denying appellants' request for summary judgment on the merits of the case, the trial court found that there were genuine issues of material fact regarding whether SMS's claim was barred pursuant to R.C. 1701.87, and whether the assignment of the LOC and personal guaranty to SMS was proper. The trial court found, however, that the LOC was a negotiable instrument and that the action was not time-barred under R.C. 1303.16 because the LOC was accelerated on May 1, 2012-within the six-year statute of limitations of the complaint.

{¶ 4} The matter proceeded to a bench trial where the trial court heard the following evidence.

{¶ 5} On March 22, 2000, Harris, on behalf of Harris M.D., executed the LOC in the amount of $50,000 and a security agreement with National City Bank ("National City"). Pursuant to the terms and conditions of the LOC, National City would issue various loans or advances to the borrower, Harris M.D., when requested-"from time to time." This LOC was personally guaranteed by Harris, individually, and secured by a financing statement listing Harris's property and inventory. The financing statement was filed with the Ohio Secretary of State and the Cuyahoga County Recorder. At trial, appellants admitted that Harris signed the LOC on behalf of his company and that advances were drawn on the LOC.

{¶ 6} In 2013, Harris M.D. dissolved. Attorney Milton Jefferson testified that he represented appellants and assisted with the dissolution. On June 18, 2013, Attorney Jefferson sent correspondence to PNC, as successor by merger to National City, notifying it of the dissolution of the corporation and that there were no remaining assets in the corporation to be used to settle outstanding debts. Included with the correspondence were a notice of dissolution, a certificate of dissolution, and a PNC bank statement. Attorney Jefferson testified that he sent the notice by regular and certified mail. Although the certified mail return of service card was not presented at trial, he testified that PNC must have received the notice because he was contacted by PNC after the notice was sent.

{¶ 7} On October 29, 2014, SMS acquired and purchased the LOC from PNC Bank, the successor by merger to National City Bank in November 2009. Pursuant to the Loan Sale Agreement, PNC sold, assigned, and transferred any and all rights in and to the LOC to SMS. As a result of the execution of the Allonge, the General Assignment, and Loan Sale Agreement, SMS became the owner and holder of the LOC, and all reports, records, payment histories, and related documents pertaining to the LOC.

{¶ 8} Included in these records are six months of account statements issued by PNC to Harris M.D. from February 2012 to July 2012. These statements appear much like a credit card statement, depicting the previous balance, payments received, amounts advanced or "purchases," if any, credits, cash advances, late and over-limit fees, finance charges, new balance, past due amount, minimum payment due, total amount due, and due date. Additionally, the statement provides the total credit limit, total available credit, and a calculation on how interest is accruing on the account.

{¶ 9} The statements demonstrate that the last payment made by appellants was in April 2012. However, the statements do not provide when the last purchase or advance was made. Pursuant to the LOC, appellants were required to make payments on or before the due date of at least the minimum payment reflected on each periodic statement. As of May 1, 2012, appellants were in default of the terms and conditions set forth in the LOC, including the failure to pay principal, interest, and finance charges. As of the date of default and pursuant to the LOC, the interest rate changed from the contract rate of 3.25 percent to the default rate of 6.25 percent per annum.

{¶ 10} On or about October 23, 2015, SMS notified appellants through a Demand Notice that the account was in default, and as a result, any "rights, powers, privileges, and other remedies" available to SMS under the LOC, in law, or in equity "may be exercised by SMS at any time whether or not any legal action is commenced." SMS further notified appellants that it was declaring all of the indebtedness evidenced by the LOC, including the Guaranty, to be immediately due and payable. As of October 16, 2015, the principal amount due was $46,762.64 with $10,633.30 in accrued interest, for a total amount due and payable of $57,395.94. Despite being notified, appellants failed and refused to pay the default balance on the LOC.

{¶ 11} Following a bench trial, the court issued a written decision entering judgment in favor of SMS and against the appellants, jointly and severally, in the principal amount of $45,762.64, plus $10,633.30 interest as of October 16, 2015, with interest accruing from that date at a rate of 6.25 percent per annum until paid in full.

{¶ 12} Appellants appeal, raising as their sole assignment of error that the trial court erred when it entered judgment in favor of SMS because its claims were barred and otherwise unenforceable. Specifically, appellants raise four issues for this court to review: (1) whether a creditor who fails to make a claim before the R.C. Title XVII statutory deadline can later attempt to enforce that claim against a corporation that has been legally dissolved under R.C. Title XVII; (2) whether a cause of action based upon a negotiable instrument is time-barred when it is filed more than six years after the instrument is due, accelerated, and/or in default; (3) whether SMS may maintain an action to enforce a negotiable instrument when it cannot establish that the specific negotiable instrument is the same instrument that was assigned to it; and (4) whether a personal guaranty on a negotiable instrument is enforceable when the underlying debt has been, at some point, fully paid and when the guaranty's underlying debt has been released by operation of law.

I. Statute of Limitations

{¶ 13} The parties filed cross-motions for summary judgment. One basis upon which the appellants moved for summary judgment was that SMS's complaint was time-barred. They maintained that the LOC was a negotiable instrument and thus subject to the relevant six-year statute of limitations. See R.C. 1303.16(a). SMS opposed appellants' motion, contending that the LOC was not a negotiable instrument and thus was subject to the relevant statute of limitations for a written contract. See R.C. 2305.06. In its written decision denying appellants summary judgment, the trial court found that the LOC was a negotiable instrument and subject to a six-year statute of limitations, but that the LOC was accelerated on May 1, 2012, which was within the statute-of-limitations period.

{¶ 14} Appellants contend on appeal that while the court was correct in determining that the LOC was a negotiable instrument subject to a six-year statute of limitations, the court was incorrect in its finding that the complaint was filed within that time period because PNC made an automatic demand for payment in 2009 when it terminated the LOC. SMS maintains on appeal, as it did in the trial court, that the LOC is not a negotiable instrument, but even if it were, the complaint was filed within the relevant six-year statutory period because acceleration of the LOC occurred at the earliest in May 2013, and at the latest in October 2015.

A. Is the LOC a Negotiable Instrument?

{¶ 15} R.C. 1303.03(A) defines a negotiable instrument.

[A] "negotiable instrument" means an unconditional promise or order to pay a fixed amount of money, with or without interest or other charges described in the promise or order, if it meets all of the following requirements:
(1) It is payable to bearer or to order at the time it is issued or first comes into possession of a holder.
(2) It is payable on demand or at a definite time.
(3) It does not state any other undertaking or instruction by the person promising or ordering payment to do any act in addition to the payment of money, but the promise or order may contain any of the following:
(a) An undertaking or power to give, maintain, or protect collateral to secure payment;
(b) An authorization or power to the holder to confess judgment or realize on or dispose of collateral;
(c) A waiver of the benefit of any law intended for the advantage or protection of an obligor.

See Calvary SPV I, LLC v. Krantz , 8th Dist. Cuyahoga No. 97422, 2012-Ohio-2202, 2012 WL 1758400, citing U.C.C. 3-104 (1972) (a negotiable instrument is a writing signed by the maker, containing an unconditional promise to pay a sum certain in money, on demand or at a definite time, to the order of a particular person or entity or to the bearer); Fed. Deposit Ins. Corp. v. Wood , 758 F.2d 156, 160 (6th Cir.1985), citing Mich. Comp. Laws Ann. 440.3104 (1967) ; U.C.C. 3-104 (1972) (a negotiable instrument, such as a note, is a writing signed by the maker, containing an unconditional promise to pay a sum certain in money, on demand or at a definite time, to order or to bearer); Enoch v. Brandon , 249 N.Y. 263, 164 N.E. 45 (1928) (negotiable instrument must contain an unconditional promise to pay a fixed sum, on demand, or at a fixed or determinable future time, to order or to bearer).

{¶ 16} Case law exists, however, suggesting that an open-end line of credit, or revolving line of credit, is not a negotiable instrument because the amount advanced under the agreement may not be fixed or determined with certainty, or without reference to other documents. See Yin v. Soc. Natl. Bank Ind. , 665 N.E.2d 58, 62-63 (Ind. App. 1996) (the line of credit at issue was not a negotiable instrument because it lacked an unconditional promise to pay a sum certain); FDIC v. Musser , E.D.PA No. 12-7231, 2017 WL 878208 (Mar. 6, 2017) (promissory note supporting a revolving line of credit with a limit of $3 million to draw on but containing no fixed amount is not a negotiable instrument); Smith v. Palasades Collection, L.L.C. , N.D.Ohio No. 1:07 CV 176, 2007 WL 1039198, at *6 (Apr. 3, 2007) (negotiable instrument is a writing signed by the maker containing an unconditional promise to pay a sum certain in money on demand or at a definite time, to the order of a particular person or entity or to the bearer); Cadle Co. v. Richardson , 597 So.2d 1052 (La.App.1992) (holding that a revolving loan account is not a negotiable instrument because it does not contain an unconditional promise to pay a sum certain).

{¶ 17} In this regard, a line of credit is based on a contingency-whether the borrower draws on the credit line. Consequently, if the borrower never draws on the line of credit, nothing is owed. If the borrower does draw on the line of credit, in order to ascertain the principal owed, one must look beyond the agreement itself to calculate the amount owed, thus removing it from being classified as a negotiable instrument. Accordingly, if the LOC is not a negotiable instrument, it is merely a written contract and enforcement becomes an action on an account or contract (much like a credit card agreement). See Taylor v. First Resolution Inv. Corp., 148 Ohio St.3d 627, 2016-Ohio-3444, 72 N.E.3d 573, ¶ 116-119 (Kennedy, J., concurring);

Discover Bank v. Swartz , 2016-Ohio-2751, 51 N.E.3d 694, ¶ 17 (2d Dist.) (actions based on promissory notes and credit card accounts differ because the note is a separate enforceable contract whereas credit card statements do not demonstrate the underlying contract or agreed upon terms); Lemke v. Barclays Bank Delaware , E.D.Mich No. 1:14-CV-14449, 2015 WL 3441145, at *5 (Mar. 31, 2015) (negotiable instrument is an unconditional promise to pay a fixed amount of money; credit card agreement is not a negotiable instrument).

{¶ 18} In this case, the LOC is an open-end line of credit. No fixed amount is due because the amount is determinable upon whether appellants borrowed under the line of credit. Therefore, in order to determine the amount due, the parties must look beyond the line of credit agreement, and look to the monthly statements provided by the lender. Therefore, the LOC in this case is not a negotiable instrument; thus the statute of limitations found in R.C. 1303.16(a) does not apply. In this regard, the action becomes an action on an account, to which general contract law principles apply. See Swartz at ¶ 17.

{¶ 19} R.C. 2305.06 governs the statute of limitations for a written contract. When the LOC and guaranty were executed, the statute of limitations was 15 years. See former R.C. 2305.06. However, on September 28, 2012, the statute was amended to provide that actions on written contracts are governed by an eight-year statute of limitations. R.C. 2305.06. The General Assembly explained that if the cause of action accrued prior to September 28, 2012, the statute of limitations is the lesser of 15 years from the date of accrual or eight years from September 28, 2012, the effective date of the amendment. 2012 Am.Sub.S.B. No 224, Section 4.

B. When Does the Statute of Limitations Commence?

{¶ 20} In this case, the parties disputed when the relevant statute of limitations commenced. After considering the evidence and testimony at trial, the trial court found that the LOC was not accelerated on May 1, 2012 (as originally determined at summary judgment), but on October 23, 2015, when SMS sent appellants a notice of default.

{¶ 21} Because we have determined that the LOC is not a negotiable instrument, and that general contract principles apply, this court does not necessarily need to decide exactly when the action accrued. Appellants maintained during summary judgment, at trial, and here on appeal that the "statute of limitations began to run as early as October 2009, and no later than January 8, 2010 when PNC/NCB closed appellants' account." See Appellant's appellate brief, p. 13.

{¶ 22} Assuming without deciding that appellants are correct in their assertions and we accept their argument on when the statute of limitations commenced, the action is not time-barred. SMS filed its complaint on January 20, 2016; therefore, applying the October 2009 or the January 8, 2010 accrual date, the complaint was filed within both the 15-year or 8-year statute of limitations for breach of the LOC and Guaranty of Payment and Waiver.

{¶ 23} Accordingly, the action is not time-barred as being outside the relevant statute of limitations.

II. R.C. Title XVII Deadline

{¶ 24} During trial, Attorney Jefferson testified about the notice of dissolution he sent to Harris M.D.'s creditors, including PNC. He stated that he sent the requisite notice pursuant to R.C. 1701.87 by certified mail. Although documentary evidence was not submitted supporting that Attorney Jefferson sent the notice by regular and certified mail, the trial court found the testimony of Attorney Jefferson credible and accepted that he sent PNC the notice of dissolution by certified mail as required by R.C. 1701.87. Nevertheless, the trial court found in its written decision that the notice "did not state all the requirements contained within R.C. 1701.87(B)."

{¶ 25} Appellant appeals the trial court's conclusion, contending that the notification fully complied with R.C. 1701.87 and therefore, SMS is not entitled to collect on the debt because PNC did not assert its right following receipt of the notice of dissolution. SMS did not file a cross-appeal challenging any finding the trial court made, but argues on appeal that the record does not support the trial court's finding that the dissolution notice was sent by certified mail. SMS maintains that this argument is properly made although no cross-appeal has been filed because it is not being used a "sword," but rather as a "shield" to protect the court's determination that SMS is entitled to collect on the debt. See Loewenstine v. Delta Air Lines, Inc. , 7 Ohio App.3d 185, 186-187, 455 N.E.2d 3 (1st Dist.1982), citing Parton v. Weilnau , 169 Ohio St. 145, 171, 158 N.E.2d 719 (1959).

{¶ 26} R.C. 1701.87 requires a corporation to give "notice of a dissolution by certified or registered mail, return receipt requested, to each known creditor and to each person that has a claim against the corporation, including claims that are conditional, unmatured, or contingent upon the occurrence or nonoccurrence of future events." R.C. 1701.87(A). The notice shall provide:

(1) That all claims shall be presented in writing and shall identify the claimant and contain sufficient information to reasonably inform the corporation of the substance of the claim;
(2) The mailing address to which the person must send the claim;
(3) The deadline, which shall be not less than sixty days after the date the notice is given, by which the corporation must receive the claim;
(4) That the claim will be barred if the corporation does not receive the claim by the deadline;
(5) That the corporation may make distributions to other creditors or claimants, including distributions to shareholders of the corporation, without further notice to the claimant.

R.C. 1701.87(B)(1)-(5). A claim is barred if a claimant given written notice under R.C. 1701.87(A) does not deliver the claim to the dissolved corporation by the deadline stated in the notice. R.C. 1701.87(D).

{¶ 27} In this case, the evidence and testimony demonstrate that the notice of dissolution was properly sent to PNC pursuant to R.C. 1701.87. The cover letter dated June 18, 2013, that was sent to PNC by Attorney Jefferson provided that the notice of dissolution and a PNC Bank Statement were included as enclosures. The notice, which was a fill-in-the-blank Form 561, titled "Notice of Dissolution to Creditors and Claimants against Corporation (pursuant to [R.C.] 1701.87 )," provided the following information: (1) all claims shall be presented in writing and shall identify the claimant and contain sufficient information to reasonably inform the corporation of the substance of the claim; (2) the mailing address to which the person must send the claim is, which was Harris's personal mailing address; (3) the deadline by which the corporation must receive the claim is sixty days after the date this notice is given; and (4) that the claim will be barred if the corporation does not receive the claim by the deadline. The notice also advised that "[t]he corporation may make distributions to other creditors or claimants, including distributions to shareholders of the corporation, without further notice to the claimant." These notifications mirror those contained in R.C. 1701.87(B).

{¶ 28} Accordingly, we find that the notice sent to PNC by Attorney Jefferson included the mandatory requirements of R.C. 1701.87. The trial court erred in its finding that the requirements were not satisfied.

{¶ 29} We find, however, that the trial court did not err in determining that the notice was sent by certified mail. Attorney Jefferson testified that he sent the notice by regular and certified mail. The trial court found this testimony credible, and nothing in the record refutes this finding. Although SMS contends that the court erred in making this finding because no evidence was presented corroborating Attorney Jefferson's testimony, we recognize that the trier of fact is in the best position to determine credibility of the witnesses. State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Moreover, in weighing the evidence, this court "must always be mindful of the presumption in favor of the finder of fact." Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 21, citing Seasons Coal Co., Inc. v. Cleveland , 10 Ohio St.3d 77, 80, 461 N.E.2d 1273, fn. 3 (1984).

{¶ 30} Accordingly, the weight of the evidence shows that Harris M.D. complied with R.C. 1701.87. No evidence was presented and no argument was made with the trial court that PNC delivered its claim to Harris M.D. prior to the 60-day deadline stated in the notice. Because Harris M.D. dissolved and PNC did not deliver its claim to the corporation by the deadline stated, the trial court erred in entering judgment against Harris M.D. Pursuant to R.C. 1701.87(D), the claim is forever barred against Harris M.D.

{¶ 31} However, the dissolution of a corporation does not dissolve Harris's personal guaranty under the LOC because he personally guaranteed the LOC independent of any promise by his business. Therefore, the dissolution of the corporation is of no consequence to Harris's individual liability by virtue of the Guaranty.

{¶ 32} "A guaranty is a promise by one person to pay the debts of another." Valspar Corp. v. Nguyen , 5th Dist. Delaware No. 11 CAE 12 0116, 2012-Ohio-2710, 2012 WL 2261010, ¶ 15, citing 52 Ohio Jurisprudence 3d, Guaranty and Suretyship, Section [2]. A personal guaranty agreement is reviewed under the law of contracts and a reviewing court should give the contract's language its plain and ordinary meaning unless some other meaning is evidenced within the document. Id. , citing Alexander v. Buckeye Pipe Line Co. , 53 Ohio St.2d 241, 374 N.E.2d 146 (1978). Ohio law recognizes guaranty contracts as valid. Birdsall v. Heacock , 32 Ohio St. 177 (1877).

A contract of guaranty is "[a] collateral engagement for the performance of the undertaking of another, and it imports the existence of two different and distinct obligations-one being that of the principal debtor and the other that of the guarantor. The obligation of a guarantor is collateral and secondary to the obligation of the principal debtor. * * * The principal debtor is not a party to the guaranty, and the guarantor is not a party to the principal obligation. The undertaking of the former is independent of the promise of the latter; and the responsibilities which are imposed by the contract of guaranty differ from those which are created by the contract to which the guaranty is collateral." 52 Ohio Jurisprudence 3d, Guaranty and Suretyship, Section 3, 239 - 240.

Valspar at ¶ 21.

{¶ 33} In this case, Harris, in his individual capacity, signed the Guaranty of Payments-Waiver of Rights, guaranteeing "the prompt payment of the indebtedness evidenced by and arising under the above Agreement when each payment becomes due * * *." The Guaranty specifically provides that the "lender may proceed directly against Guarantor, whether or not Lender shall have first made any presentment or demand for payment to anyone and whether or not Lender proceeds against anyone else or against security." Therefore, even if Harris M.D. was in existence, the lender could demand payment directly from Harris individually. The dissolution of Harris M.D. did not alter Harris's liability because he personally guaranteed Harris M.D.'s timely payment of the LOC. See Scioto Cty. Bd. Of Commrs./Revolving Loan Fund Bd. v. McDermott Industries, L.L.C. , 4th Dist. Scioto No. 12CA3504, 2014-Ohio-240, 2014 WL 279665, (dissolution of corporation did not alter parties' personal guaranty of corporation's payment of the note); Cascade Indust., Inc. v. Metro Pools, Inc. , 8th Dist. Cuyahoga No. 41552, 1980 WL 355104 (June 19, 1980) (personal guaranty agreement executed by former shareholders was not conditioned on their remaining officers and/or shareholders in the corporation; thus, their withdrawal from the corporation had no legal effect on the enforceability of the guaranty agreement).

{¶ 34} Accordingly, even though the notice of dissolution prevents the enforcement and collection of the debt against Harris M.D., it does not dissolve Harris of his individual obligation as a personal guarantor of the debt.

III. Is the Personal Guaranty Still in Effect?

{¶ 35} Appellants also contend that the personal guaranty is not in effect because the debt was paid off at various points of time. The trial court found that the guaranty reaches beyond the initial advances and continues to be enforceable as to any account balance, even after the LOC reaches a zero balance. We agree with the trial court's conclusion.

{¶ 36} The personal guaranty provides that Harris is individually liable for each payment that becomes due under the LOC. Specifically, it states that the guarantor:

guarantees the prompt payment of the indebtedness evidenced by and arising under the above Agreement when each payment becomes due, and approves all the provisions of the above Agreement. Guarantor's liability under this Guaranty shall remain in effect until the indebtedness evidenced by this Agreement is fully paid or until Lender gives Guarantor a written release. (Emphasis added).

The term "each" contemplates that more than one payment may become due, and in that event, the guarantor would be liable for that payment as well.

{¶ 37} Harris contends, however, that the personal guaranty was satisfied when the account reached a zero balance because the guaranty does not state that it is "continuing" or "unconditional." Harris maintains that his liability under the guaranty remained in effect until the LOC was "fully paid"-when the LOC was paid or obtained a zero balance. He contends that because the guaranty is ambiguous regarding whether the guaranty applies only to the initial advance under the LOC or all subsequent advances, the ambiguity should be construed against SMS.

{¶ 38} A personal guaranty that provides that the guarantor agreed to "personally and unconditionally" guarantee "each and every obligation * * * until paid" is an enforceable guaranty for all indebtedness.

Amerisourcebergen Drug Corp. v. Hallmark Pharmacies , 10th Dist. Franklin No. 05AP-1250, 2006-Ohio-2746, 2006 WL 1495073, ¶ 13. However, this precise language is not required or mandated to render enforceable a guaranty for all indebtedness. Instead, " 'words used in a guaranty are to be interpreted in light of the surrounding circumstances and of the object intended to [be] accomplished.' " G.F. Business Equip., Inc. v. Liston , 7 Ohio App.3d 223, 224, 454 N.E.2d 1358 (10th Dist.1982), quoting Morgan v. Boyer , 39 Ohio St. 324, 326 (1883). Because a guaranty is construed in the same manner as contracts, "[a] court need not go beyond the plain language of the agreement to determine the parties' rights and obligations if the contract is clear and unambiguous." Maines Paper & Food Serv., Inc. v. Eanes , 8th Dist. Cuyahoga No. 77302, 2000 WL 1429418, at *2 (Sept. 28, 2000). A guaranty is not rendered ambiguous by the absence of certain terms if the surrounding circumstances and the object intended to be accomplished is readily apparent from the document itself.

{¶ 39} In this case, although the guaranty Harris signed is not as concise as the guaranty in Amerisourcebergen , it provides that Harris "guarantees prompt pay of the indebtedness evidenced by and arising under the above Agreement when each payment becomes due, and approves all the provisions of the above Agreement." The provisions of the LOC include the ability to obtain additional advances, and it is undisputed that Harris obtained additional advances under the LOC. The provisions of the LOC provide that it is an "open-end credit account" with an initial amount of $50,000 from which the borrower may obtain loans or advances "from time to time," and "[a]ny amount repaid will again be available to borrow." Additionally, the provisions of the LOC provide that the borrower shall at least make the minimum payment reflected on the monthly statement on or before the due date.

{¶ 40} Harris also agreed that his "liability under this Guaranty remains in effect until the indebtedness evidenced by the Agreement is fully paid or until Lender gives Guarantor a written release." Finally, Harris agreed that he "will not use, and Guarantor waives, any defense to Guarantor's direct and absolute obligation to pay the indebtedness evidenced by this Agreement when due, together with any interest accruing on the indebtedness evidenced by this Agreement." Despite agreeing to make each payment as it became due, Harris also agreed to waive any defenses against paying the obligation.

{¶ 41} A line of credit functions much like a credit card where a maximum amount is available for use over a period of time and the borrower can borrow against that amount as needed. The payments are made based on the amount that is borrowed against the overall line of credit. Unlike a loan secured by a promissory note where an amount is disbursed in a lump sum, has a fixed or variable rate of interest, and a fixed repayment term, the amount to be repaid under a line of credit is dependent on the amount borrowed against it. Therefore, by the very nature of the LOC, the balance could reach zero on multiple occasions. The Guaranty unambiguously encompasses all indebtedness under the LOC.

{¶ 42} Reviewing the Guaranty in the context of the entire LOC, the trial court's finding that the guaranty was still in effect even after the account obtained a zero balance at one point during the life of the account, was not against the manifest weight of the evidence.

{¶ 43} Accordingly, we find that the trial court did not err in finding that the personal guaranty was still in effect.

IV. Is this the Correct Debt?

{¶ 44} The appellants further contend that SMS has failed to show that the LOC governs the debt they are attempting to collect. Specifically, appellants contend that the alleged account number on the LOC does not match the account number on the assigned debt or bank statements. Appellants contend this is significant because appellants allegedly had multiple lines of credit with National City. The trial court concluded that the SMS was collecting the correct debt. We agree.

{¶ 45} A review of the evidence shows that handwritten numbers appear on the top of the first page of the LOC and the UCC financing statement filed with the Ohio Secretary of State and the Cuyahoga County Recorder. No testimony or evidence was presented regarding what the handwritten numbers represented. However, appellants contend that these numbers represent the account number assigned to the LOC with National City. Harris also testified that the handwritten number on the LOC was the account number assigned to this LOC.

{¶ 46} However, no evidence was presented by appellants to establish that the handwritten numbers on the LOC were in fact the account number assigned to the LOC. Had appellants believed that SMS was collecting on the wrong debt, they could have provided evidence demonstrating that additional accounts existed with National City Bank. From the record, it appears that at the very least appellants could have presented such evidence from an Experian Credit Report included in the file SMS obtained during its purchase of the account from PNC. See generally Knox Cty. Local Emergency Planning Commt. v. Santmyer Oil Co. , 5th Dist. Knox No. 01CA0035, 2002-Ohio-3590, 2002 WL 1465896, ¶ 37 (in civil case, where a preponderance of the evidence is the burden of proof, there remains some responsibility on the defendant to refute the evidence presented).

{¶ 47} A review of the exhibits submitted at trial reveals that while the handwritten numbers and the account number on the PNC bank statements and Schedule of Loans do not match, what does match and remains consistent and constant is the UCC financing statement file number assigned by the Ohio secretary of state. This evidence demonstrates that SMS is collecting on the correct debt.

{¶ 48} On May 12, 2000, a financing statement was filed by National City with the Ohio secretary of state bearing the unknown handwritten number of "5482219243014020," which is the same number handwritten on the LOC application. As part of the filing, the secretary of state assigned a file number to the financing statement-"AP0240976." A continuation of the UCC financing statement was filed on November 17, 2004 by National City containing the initial file number of "AP0240976." On the continuation, the "Filers Unique ID is "[xxxxxxxxxxxx]4574," which is the same number that appears on the National City bank statements, the PNC bank statements, and the Schedule of Loans that PNC sold to SMS Financial. On December 1, 2009, National City filed another continuation of the UCC financing statement, again noting the initial file number of "AP0240976" and again noting the account number ending in 4574. At all times, the secretary of state file number remained consistent.

{¶ 49} Additionally, we note that on the bottom of the pages of the LOC, the financing statement filed with the Ohio secretary of state, and the financing statement filed with the Cuyahoga County Recorder's Office, the documents bear a fax number, the name "National City Bank," and the date of March 22, 2000, which is the date the LOC was executed.

{¶ 50} In light of evidence that the LOC and UCC filing bears this faxed date, contains a secretary of state file number that remains constant throughout all the continuations filed, and the continuations bear the account number that SMS is attempting to collect on, the trial court's decision was not against the manifest weight of the evidence.

{¶ 51} When conducting a manifest weight review, this court reviews the entire record, " 'weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.' " Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20, quoting Tewarson v. Simon , 141 Ohio App.3d 103, 115, 750 N.E.2d 176 (9th Dist.2001).

{¶ 52} Based on the record before this court, we find that the evidence presented at trial allowed the trial court to reasonably conclude that the LOC containing the personal guaranty governs the debt upon which SMS is attempting to collect. The manifest weight of the evidence reveals that the trial court did not lose its way and create such a manifest miscarriage of justice that the judgment must be reversed. Accordingly, the assignment of error is affirmed in part, and reversed in part.

{¶ 53} Judgment affirmed in part, reversed, in part, and remanded for the trial court to modify its judgment by entering judgment in favor of SMS Financial and only against Frederick D. Harris, M.D., personally.

ANITA LASTER MAYS, J., and LARRY A. JONES, SR., J., CONCUR.