April 29, 2016
In the News: Defense Argues $1,600 Theft Case Is Civil, Not Criminal Matter
Written by Erb Legal LLC
A judge is expected to rule Friday on whether the owner of Medina Motorsports is guilty of taking $1,600 from a client who did not receive the product for which he paid.
John Kuhar, 63, of the 900 block of West Liberty Street in Medina, is charged with two counts of theft, fifth-degree felonies that carry up to a year in prison if he’s convicted. Kuhar also faces other lawsuits in court with similar allegations.
Prosecutors argue Kuhar is a “con man” who takes clients’ money with no intention of doing the work he promises.
But Kuhar’s attorney, Thomas L. Erb Jr., insisted at trial that Kuhar should be acquitted because case law shows the case is a civil matter, not a criminal matter.
During the 2-hour bench trial Monday afternoon, Robert Wattenbarker, of New York, testified he wanted to buy a rebuilt transmission for his 1977 Chevrolet El Camino. He found Medina Motorsports on eBay and entered into an agreement with Kuhar in April 2014, he said.
Wattenbarker sent Kuhar a personal check for $1,600 as a down payment for the item, which would require time to build. The total was expected to reach up to $2,800 once the product was complete.
“I was going to give it a week to see how it was going,” Wattenbarker testified. “So I called him the following week and he told me, ‘Oh man, I’m deathly sick. I haven’t started yet.’”
Wattenbarker said he called the next two weeks and heard similar excuses from Kuhar. Then his calls were ignored, he said, and that’s when he became suspicious.
“I started to feel like he was giving me the runaround,” he said.
Wattenbarker found his check had been cashed and called Medina police to report what he described as stolen money.
Medina police Detective Mary Gross testified she went to Kuhar’s office in Medina and encouraged him to call Wattenbarker. A couple days later, Kuhar and Wattenbarker spoke on the phone and agreed that Kuhar would pay Wattenbarker back.
Kuhar told Wattenbarker in the summer that he already purchased some of the parts required to make his item, so Kuhar would have to return the parts to their vendors before he could pay Wattenbarker back.
By September, Wattenbarker still had not received his payment.
Kuhar was indicted by a Medina County grand jury and was arrested Oct. 10.
Under cross-examination by county Assistant Prosecutor Scott Salisbury, Kuhar was asked why Wattenbarker still had not received his money.
“I was told I was not to have contact with him after I was indicted,” Kuhar testified.
Salisbury said that didn’t explain why Kuhar didn’t return the money before the indictment.
“I told him I didn’t have a problem returning the money, but I had to get my money back before I could get him his money back,” Kuhar said. “It can sometimes take up to two months to get your money back or your parts returned.”
Kuhar, who’s operated Medina Motorsports for close to 36 years, said he had started gathering the parts to build Wattenbarker’s transmission but had not yet started work on it.
“So you would have receipts for your purchases, then?” Salisbury asked.
Kuhar said he didn’t have receipts because he bought them at “swap meets,” which he described as auto parts flea markets.
“In the automotive world, you don’t get a receipt,” Kuhar said. “You should get a receipt, but you don’t get one.”
Salisbury then suggested it’s possible Kuhar never bought any parts at all.
Kuhar’s attorney said the prosecution’s argument was without merit and asked county Common Pleas Judge Christopher J. Collier to dismiss the case. The attorney said Collier had another case in his courtroom that was overturned by an appeals court because the case should have been a civil matter.
“There is absolutely no direct or circumstantial evidence against my client in this case,” Erb said.
Salisbury urged Collier to find Kuhar guilty, referencing several other former customers of Kuhar’s, who made similar allegations.
“This is a recipe for how to be a con man,” Salisbury said. “If we allow him to come into a court of law and say he took substantial steps to complete the order, we’ll have people getting ripped off all over the place.”