Youngstown Daily Legal News

Conviction stands for man who forged ex-wife's signature on mortgage modification form

JESSICA SHAMBAUGH
Special to the Legal News
Published: September 4, 2015

A man was properly convicted of theft, forgery and tampering with records after he forged his ex-wife’s signature on a form modifying their mortgage, according to a recent opinion from the 10th District Court of Appeals.

The three-judge appellate panel overruled all of Kenneth Proby’s arguments challenging his convictions from the Franklin County Court of Common Pleas. It found that there was proper evidence supporting the jury’s guilty verdict and that the trial court did not err by refusing Proby’s motion for a mistrial based on a shift in the handwriting analyst’s opinion.

The facts of the case state that Proby married Le’Kita Chambers in 2002. At that time, Le’Kita changed her last name to Proby.

In December 2003, the couple purchased a home together on Ducat Street. The purchase was secured with a mortgage to Wells Fargo Home Mortgage Inc. and both Le’Kita and Proby signed the mortgage.

In October 2006, the couple’s marriage came to an end through a decree of dissolution. Their separation agreement stated that Le’Kita’s surname would change to Brown and that Proby would keep the house so long as he continued to make payments, listed the home for sale and split any equity from the sale with Le’Kita.

Proby then fell several months behind on mortgage payments and eventually reached an agreement with Wells Fargo that he could enter a special forbearance agreement and keep the house if he made three on-time payments. He did so and entered the agreement using a form that contained notarized signatures from both himself and “Le’Kita T. Proby.”

Le’Kita later stated that she did not learn of the mortgage arrearage until her employer conducted a random credit check. She then filed contempt proceedings in domestic relations court on the grounds that Proby had violated the terms of their separation agreement.

Le’Kita claimed it was during that hearing that she first learned about the loan modification documents that reportedly contained her signature. She said she did not sign the note or authorize anyone else to sign it on her behalf. She further pointed out that the signature read “Le’Kita T. Proby” and she would have signed it “Le’Kita T. Brown.”

Proby denied those assertions and said that Le’Kita signed the first document as Le’Kita T. Brown, but the notary refused to certify the signature because the documents listed her as Le’Kita T. Proby. They then got a second form and she signed it as instructed, Proby stated.

Proby ultimately failed to make payments on the loan modification and the house went into foreclosure. Le’Kita then filed charges alleging Proby forged her signature on the loan modification documents.

Proby was charged with theft, tampering with records and forgery.

Prior to a jury trial, the state hired William Bennett, a handwriting analyst, to examine the document and he opined that Le’Kita did not sign the loan modification document and it was “highly probable” that Proby had signed her name.

On the day he was scheduled to testify however, Bennett told the prosecutor that he had re-examined the document and changed his opinion. He then testified that he was certain Proby had signed the “T. Proby” portion of Le’Kita’s name but could not be certain about her first name.

After Bennett refused to give an exact answer to his degree of certainty regarding who wrote Le’Kita’s first name, the defense moved for a mistrial. Proby’s counsel explained that the state should have notified him of Bennett’s changed opinion prior to him testifying and that had he known Bennett was certain about any portion of the name he would have hired his own expert.

The state responded by explaining that it had misunderstood Bennett and believed he was just explaining how he came to his “highly probable” finding.

The trial court found that Proby was not prejudiced by the testimony and that it actually played in his favor because it showed that Bennett’s opinion was not an exact science. It then denied his motion for a mistrial and the jury found him guilty as charged.

Proby then appealed to the 10th District, first arguing that his motion for a mistrial should have been granted.

The appellate court disagreed.

It held that even if the prosecutor erred by failing to disclose Bennett’s shift of opinion, Proby was not prejudiced. The court noted that if Proby was going to hire an expert to contradict Bennett’s finding, it should have done so after he opined that it was “highly probable” that Proby forged the signature, not after he changed that opinion.

“Moreover, and as further noted by the trial court, Bennett’s changed opinion likely benefited appellant, as it called into question Bennett’s credibility and the validity of his written reports. Defense counsel repeatedly made this point through vigorous and thorough cross-examination of Bennett and during closing argument,” Judge Lisa Sadler wrote for the court.

Proby next argued that his convictions were against the manifest weight and sufficiency of the evidence.

However, the appellate judges determined that even if the jury gave no weight to Bennett’s testimony, it still could have convicted him based on Le’Kita’s testimony that she did not sign the form and did not even know about the modification until well after it had taken place. They also noted that the jury had both loan documents with both signatures in front of it.

“The jury simply could have compared the set of known signatures of both appellant and Le’Kita to the questioned signatures on the loan modification documents and concluded that appellant forged Le’Kita’s signature on those documents,” Sadler stated.

“In sum, appellant has failed to demonstrate that the jury clearly lost its way and created such a manifest miscarriage of justice that his conviction must be reversed and a new trial ordered.”

Presiding Judge Susan Brown and Judge Betsy Luper Schuster concurred.

The case is cited State v. Proby, 2015-Ohio-3364.

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