You are on page 1of 2

Page 1

49 of 100 DOCUMENTS
STATE OF OHIO, Plaintiff-Appellee, v. THOMAS D. TANNER,
Defendant-Appellant
Case No. 79-CA-21
Court of Appeals of Ohio, Fifth Appellate District, Knox County
1980 Ohio App. LEXIS 11989

February 8, 1980
NOTICE:
PURSUANT TO RULE 2(G) OF THE OHIO
SUPREME COURT RULES FOR THE REPORTING
OF OPINIONS, UNPUBLISHED OPINIONS MAY BE
CITED SUBJECT TO CERTAIN RESTRAINTS,
LIMITATIONS AND EXCEPTIONS.

COUNSEL: [*1] Otho Eyster, Prosecuting Attorney,
Counsel for Appellee
Mark W. Baserman, Logee, Hostetler, Stutzman &
Broehl, Counsel for Appellant
JUDGES: PUTMAN, P.J., Rutherford, J. and Dowd, J.,
concur
OPINION BY: PUTMAN
OPINION
OPINION
PUTMAN, P.J.
The accused was indicted for one count of
unlawfully, with purpose to defraud, issuing or
transferring a Two-Hundred Dollar ($ 200.00) check,

knowing that it would be dishonored, in violation of R.C.
2913.11. He was convicted by a jury and sentenced to
imprisonment.
He testified in substance that he could not remember
the underlying objective facts, but that he had no intent to
defraud by reason of his belief in good faith that he had
enough money to cover the check.
On appeal, his court-appointed counsel styles four
Assignments of Error. We sustain the first and overrule
the other three because they are not supported by the
record.
The first Assignment of Error complains of
testimony by an employee of the Huntington Bank in
Ashland, Ohio, employed as the supervisor of the
bookkeeping department. The critical portions of her
testimony occur at pages 59 and 61. The error
complained of appears at Record page 61 which is
mechanically reproduced [*2] and attached hereto and
made a part hereof. In substance, the witness, over
objection, was permitted to testify, "We suspected him of
kiting between three banks" and, further, "He had an
account at our bank, one at the Mount Vernon bank, and
one also in a bank in Wooster. He was floating funds
between the three banks which is an illegal practice."
It is apparent that the witness had no testimonial
knowledge to support her conclusions, and the trial court

Page 2
1980 Ohio App. LEXIS 11989, *2

should have sustained the objection formerly overruled,
struck the testimony, and instructed the jury to disregard
it. We cannot say this would have cured the error and
saved the trial because we have no way to know what
would have followed. However, we are certain that
absent those minimum efforts on the part of the trial court
that the basic fairness of this trial was destroyed.
For the foregoing reasons, the first Assignment of
Error is sustained. The judgment of the Court of
Common Pleas of Knox County is reversed. The
conviction and sentence is vacated, and this cause is
remanded to that court for further proceedings according
to law.
A. The first time, yes. Then it came back again
apparently on account closed.
Q. [*3] Do you recall -- do you know how much
was in that account at the time it was refused?
A. I brought some records with me. Just a minute.
On January the 11th, there would have been a balance of
fourteen cents.
Q. Fourteen cents?
A. Yes, sir.
Q. Why did you close the Defendant's account?
A. We suspected him of kiting between three banks.

Q. What is kiting?
MR. RESSING: Objection to her suspicions.
THE COURT: Overruled.
BY MR. SMITH:
Q. You may answer.
A. He had an account at our bank, one at the Mount
Vernon bank and one also in a bank in Wooster. He was
floating funds between the three banks which is an illegal
practise.
Q. And the account was closed on January 25th, 1979?
A. Yes, sir, I closed it.
MR. SMITH: I have no further questions of this witness.
THE COURT: Cross-examine?
JUDGMENT ENTRY
For the reasons stated in the Memorandum-Opinion
on file, the first Assignment of Error is sustained. The
judgment of the Court of Common Pleas of Knox County
is REVERSED. The conviction and sentence is vacated,
and this cause is remanded to that court for further
proceedings according to law.