State v. Harris-Smith , 2018 Ohio 3069 ( 2018 )

[Cite as State v. Harris-Smith, 2018-Ohio-3069.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27822
:
v. : Trial Court Case No. 2017-CRB-5058
:
JOHNIECSA HARRIS-SMITH : (Criminal Appeal from
: Municipal Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 3rd day of August, 2018.
...........
GARRETT P. BAKER, Atty. Reg. No. 0084416, 335 West Third Street, Room 372,
Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
DARRELL L HECKMAN, Atty. Reg. No. 0002389, One Monument Square, Suite 200,
Urbana, Ohio 43078
Attorney for Defendant-Appellant
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DONOVAN, J.
{¶ 1} This matter is before the Court on the December 11, 2017 Notice of Appeal
of Johniecsa Harris-Smith. Harris-Smith appeals from the November 14, 2017 decision
of the Dayton Municipal Court finding her guilty of two counts of falsification, in violation
of R.C. 2921.13(A)(3), misdemeanors of the first degree, following Harris-Smith’s no
contest pleas. The court sentenced Harris-Smith to suspended sentences of 30 days
and imposed fines of $25.00 on each offense. We hereby affirm the judgment of the trial
court.
{¶ 2} Harris-Smith was charged with two counts of falsification by way of
complaint on August 4, 2017, and she entered not guilty pleas on August 11, 2017. Her
complaints both provide that she “did unlawfully and knowingly make a false statement,
or knowingly swear or affirm the truth of a false statement previously made, when the
statement is made with purpose to mislead a public official, to wit: Montgomery County
Auditor in performing the public official’s official function.”
{¶ 3} At her November 17, 2017 plea hearing, Harris-Smith acknowledged that
she chose to reject the State’s offer to plead guilty to one count of obstruction of official
business, a misdemeanor of the third degree, in exchange for the dismissal of the
falsification charges, and she indicated that she intended to plead no contest to
falsification. After the court accepted her no contest pleas, the prosecutor presented the
following facts to the court. On March 21, 2017, Harris-Smith made false statements on
two Ohio Dangerous Dog Registration Certificates for her dogs, “Buddy” and “Remy.”
The prosecutor asserted that State’s Exhibit 1 was executed by Harris-Smith in the
presence of Deputy Auditor Jody Hackett, an employee and agent of Montgomery County
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Auditor Karl Keith, and that Harris-Smith represented thereon that Buddy was a neutered
male dog. State’s Exhibit 1 provides in relevant part as follows: “Dog description: * *
* Sex: ___ Male (Neutered) ___Female (Spayed)”. There is a handwritten checkmark
on the line between “Sex:” and “Male (Neutered).’”
{¶ 4} According to the prosecutor, State’s Exhibit 3, which is a form identical to
State’s Exhibit 1, except that it pertains to Remy, was also executed by Harris-Smith in
the presence of Hackett, and Harris-Smith placed a checkmark on the line between “Male
(Neutered)” and “Female (Spayed)”.
{¶ 5} Directly above Harris-Smith’s signatures at the bottom of each form is the
following certification:
I certify that, to the best of my knowledge and belief, the information
on this form, under penalty of perjury, is true, correct, complete, and made
in good faith. I understand that this form or the information it contains may
be made available to federal, state, and/or local law enforcement agencies
for such action within their jurisdiction as they deem appropriate. I
understand that knowingly making any false or fraudulent statement or
representation to the government may violate federal, state, or local criminal
statutes, and may result in a fine, imprisonment, or both.
(Emphasis sic.)
{¶ 6} The prosecutor stated that subsequent examinations of the dogs by
Veterinarian Kelly Meyer revealed that they had not been neutered and spayed. The
prosecutor stated that State’s Exhibits 2 and 4 are Meyer’s reports which detail her
examinations of the dogs. The prosecutor stated that the “only way to obtain a
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dangerous dog registration certificate is to have a male dog neutered or a female dog
spayed.”
{¶ 7} Counsel for Harris-Smith then advised the court that he did not contest the
above facts but “would like to make a legal argument.” Defense counsel argued that the
statements made by Harris-Smith on the certificates were not knowingly made. He
asserted that subsection (3) of R.C. 2921.13 does not apply to the facts herein, and he
directed the court’s attention to subsection (5) of R.C. 2921.13, which he argued “would
be the more appropriate section under these facts if the State were to bring charges under
these facts.” Defense counsel argued that “subsection 5 is much more specific than
subsection 3 and to read subsection 3 the way the State is asking would render it
meaningless.” Counsel argued that Crim.R. 7 did not allow the State to amend its
complaint at the current stage of the proceedings.
{¶ 8} Counsel for Harris-Smith directed the court’s attention to State v. Parks, 13
Ohio App. 3d 85, 468 N.E.2d 104 (10th Dist.1983), that the “issuing of student
identification cards by a clerk at O.S.U. does not constitute the performance of an ‘official
function’ within the meaning of that term as used in R.C. 2921.13(A)(3).” Id. at paragraph
two of the syllabus. The Tenth District in Parks found as follows:
* * * [W]hile we have a great respect for tasks performed by the
numerous clerical staffs of the various state agencies and offices, to say
that each is a “public official” performing “official functions” for the purposes
of R.C. 2921.13(A)(3) would be to stretch the reach of that statute beyond
logic and reason.
It is a basic rule of statutory construction that where sections of a
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statute are in pari materia, they shall be construed together so as to give
full force and effect to the legislative intent. See, generally, 50 Ohio
Jurisprudence 2d (1961) 189, Statutes, Section 216, and numerous
decisions cited therein. In the case at bar, the eight1 subdivisions of R.C.
2921.13(A), each being a delineation of instances in which the making of a
false statement becomes a criminal act, should be construed together when
interpreting the intention of the legislature in enacting the statute.
A review of the falsification statute reveals that the legislature did not
intend for all falsehoods made to minor functionaries to result in criminal
liability. Indeed, each section appears to be aimed at prohibiting deceit in
somewhat narrow circumstances. Also, R.C. 2921.13(A)(3) and (6) are the
only two sections which specify a particular person to whom the false
statement must be made, while R.C. 2921.13(A)(3) requires the person to
be performing an “official function.” * * * [W]e cannot say that the clerk
involved herein, having no discretionary powers or any other indicia of
independence, performs an “official function” when she issues student
identification cards. * * *
This action would appear to fall under R.C. 2921.13(A)(8) as the
appellant [student] deceptively sought to obtain a “valuable benefit” from the
university [an identification card]. This rather innocuous action would not
lead to criminal liability then, unless “* * * the person to whom such
statement is directed relies upon it to his detriment.”
1
The current version of R.C. 2921.13(A) contains 15 subdivisions.
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However, since the appellant’s conduct, as a matter of law, does not
violate R.C. 2921.13(A)(3), appellant’s sole assignment of error is well-
taken.
Id. at *86-87.
{¶ 9} The municipal court rejected defense counsel’s argument that subsection (5)
of R.C. 2921.12(A) controls herein, relying on State v. Brown, 2d Dist. Montgomery No.
11217, 1988 WL 129184 (Nov. 29, 1988). In Brown, the trial court dismissed Brown’s
indictment on two counts of theft by deception, in violation of R.C. 2913.02(A)(3), finding
that Brown should have been indicted pursuant to R.C. 2921.13(A)(4), which prohibits the
making of false statements to obtain “aid to dependent children benefits or other benefits,
such as food stamps.” Id. at *1. In reversing and remanding the matter, this Court
determined as follows in Brown:
* * * [T]he necessary predicate for the prevailing of a more specific
statute over a more general statute in accordance with R.C. 1.51, is missing
in this case. R.C. 2913.02(A)(3) and R.C. 2921.13(A)(4) are not in
irreconcilable conflict. R.C. 2913.02(A)(3) prohibits knowingly obtaining or
exerting control over property or services by deception. R.C.
2913.02(A)(4) prohibits the making of a false statement with the purpose of
securing benefits administered by a governmental agency or paid out of a
public treasury. Each of the two statutory prohibitions carries a different
penalty. The two provisions are not irreconcilable. Theft by Deception
requires as an element the actual obtaining of property or services. The
actual obtaining of services is not required for Falsification, since merely
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making a false statement with the purpose of securing benefits, regardless
of whether those benefits are actually obtained, is prohibited by that statute.
Since the two statutes are not in irreconcilable conflict, R.C. 1.51
does not come into play. * * *
Id. at *1-2.
{¶ 10} The municipal court further concluded “that the knowingly part has been
satisfied * * * through the information on the documents. There has been no dispute as
to whether or not she actually submitted or prepared the document.”
{¶ 11} After the court found Harris-Smith guilty, defense counsel argued as
follows:
At the time she executed the * * * documents she marked the
documents male and female. She did not intend that to indicate that the
animals were spayed or neutered. I think the fact that the * * * spayed and
neutered portion is in parentheses after could make that, those documents
a bit, a bit misleading to her.
{¶ 12} Harris-Smith then advised the court as follows:
Yes, I would like the court to know that I did not intentionally or I did
not lie on any forms that I filled out. The one, my dog was actually pregnant
at the time, so there is no way I would have went and said she was spayed
or neutered. The one who, the other dog Buddy was the father of the
puppies. So, * * * like he was saying, that’s what I was trying to tell him
from the beginning is that I was just marking that they were a female dog
and a male dog, not that they were spayed or neutered. * * * I would not
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lie about anything like that knowing my dog was pregnant and we were just
getting finished and I was just following the courts you know, they said go
get the dangerous dog tags and that’s what I went down there to do.
{¶ 13} Harris-Smith asserts two assignments of error herein, which we will
consider together.
THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO
ESTABLISH THE CUPLABLE MENTAL STATE OF “KNOWLINGLY.”
THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO
ESTABLISH THAT THE DEFENDANT’S STATEMENT WAS MADE TO
MISLEAD A PUBLIC OFFICIAL IN PERFORMING HER OFFICIAL
FUNCTION.
{¶ 14} In her first assignment of error, Harris-Smith argues that the “resolution of
this assignment of error turns on the form in question.” She asserts that, because R.C.
2921.13 “requires the culpable mental state of ‘knowingly[,]’ reasonable ignorance of the
meaning of a form is a defense.” She argues that the form “is not clear enough to justify”
an inference that she knowingly represented that her dogs were spayed or neutered.
According to Harris-Smith, it “is just as reasonable to assume that neutered or not
neutered is a statistical datum, not a prerequisite to registration.” She asserts that her
“poignant explanation at sentencing * * * fully explains why the appropriate culpable
mental state was not established.”
{¶ 15} In her second assignment of error, Harris-Smith argues that “the State
stubbornly insisted that it did not seek an amendment and proceeded on R.C.
2921.13(A)(3). This is a fatal mistake.” She asserts that R.C. 2921.13(A)(3) “requires
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a knowingly false statement ‘with purpose to mislead a public official in performance of
his official function’. Not every such statement to a public official is relating to his official
functions. If that were true, there would be no need [for] subsection five which
specifically refers to applications for licenses.” Harris-Smith directs our attention to Parks,
which she asserts “fully covers the issues in this case [and] should be dispositive of this
appeal.”
{¶ 16} The State responds that “we can infer that [Harris-Smith] knowingly misled
a public official from the surrounding circumstances.” According to the State, Harris-
Smith “made no attempt to cross out the language on the forms, or refuse to sign the
forms, inquire as to the language on the forms, white out the language on the forms, or
refuse to sign the form[s] in front of Deputy Auditor Jodi Hackett. To the contrary,
Appellant signed the forms attesting to the truthfulness of the information contained within
them.” The State asserts that, pursuant to R.C. 955.22(I)(1)(c)(ii), an owner of a
dangerous dog must provide evidence to the county auditor that the dog is spayed or
neutered, or a statement from a veterinarian that spaying or neutering is medically
contraindicated, to obtain a dangerous dog registration certificate. The State notes that
Harris-Smith acknowledged at sentencing that the “animals were intact,” and that she was
“was aware of facts and circumstances[ ] which were inconsistent with what was attested
to after she read a warning statement against submitting a false statement to the
government.”
{¶ 17} The State notes that “it seems as though the crux of Appellant’s argument
in her Second Assignment of Error is that Appellant should have been found not guilty of
R.C. § 2921.13(A)(3) because the State chose a more general code section over a more
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specific code section.” The State asserts that it “validly exercised its discretion in
charging Appellant with R.C. § 2921.13(A)(3).” According to the State, the “necessary
predicate for a specific statute to prevail over a general statute is an irreconcilable
conflict. See R.C. § 1.51. Such conflict arises when the same conduct receives different
penalties under two different statutes.” The State directs our attention to Brown. The
State argues that statutes “are not in conflict simply because a defendant can be
convicted under two statutes for the same or similar conduct.” The State asserts that the
“penalties for R.C. § 2921.13(A)(3) and R.C. § 2921.13(A)(5) are the same. As these
are separate subsections under the same statute, the general versus specific analysis
does not apply,” and “R.C. § 1.51 does not come into play.”
{¶ 18} In reply, Harris-Smith argues that the “State ignored the main thrust of
appellant’s argument – that the addition of parentheses around the words ‘spayed’ and
‘neutered’ created an ambiguity that precluded a finding of knowing falsity by Ms. Harris-
Smith.” Citing Chipperfield v. Missouri. Air Conservation Comm. 229 S.W.3d 226 (S.D.
Mo.2007), Harris-Smith argues that the “words ‘spayed’ and ‘neutered’ were NOT
ESSENTIAL to the registration of the American bulldog and the pit bulldog, in question.”
{¶ 19} The court in Chipperfield noted as follows:
Parentheses are used “[t]o set off matter not intended to be part of
the main statement” and “[t]o enclose any explanatory word not a part of a
written or printed statement.” Government Printing Office Style Manual §§
8.91 and 8.93 (2000). “Parentheses should be used ... to enclose
parenthetical material that is only remotely connected with the content ... or
to enclose incidental explanatory matter.” Webster's New World English
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Grammar Handbook 170 (2002). In other words, parentheses “are used in
pairs to enclose matter that is helpful but not essential.” The Redbook, A
Manual on Legal Style § 1.33 (2002). Consequently, the meaning of the
words within the parentheses should be considered as incidental
explanatory matter which is not a part of, or at least is not essential to, the
main statement.
Id. at *252.
{¶ 20} As this Court has previously noted:
A sufficiency of the evidence argument disputes whether the State
has presented adequate evidence on each element of the offense to sustain
the verdict as a matter of law. State v. Wilson, 2d Dist. Montgomery No.
22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St. 3d 380,
386, 678 N.E.2d 541 (1997). “The relevant inquiry is whether, after viewing
the evidence in a light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proven beyond
a reasonable doubt.” State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus.
State v. Johnson, 2d Dist. Montgomery No. 26961, 2017-Ohio-5498, ¶ 14.
{¶ 21} R.C. 2921.13 provides:
(A) No person shall knowingly make a false statement, or knowingly
swear or affirm the truth of a false statement previously made, when any of
the following applies:
***
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(3) The statement is made with purpose to mislead a public official
in performing the public official’s official function.
***
(5) The statement is made with purpose to secure the issuance by a
governmental agency of a license, permit, authorization, certificate,
registration, release, or provider agreement.
{¶ 22} R.C. 2901.22(B) defines “knowingly” and provides:
A person acts knowingly, regardless of purpose, when the person is
aware that the person’s conduct will probably cause a certain result or will
probably be of a certain nature. A person has knowledge of circumstances
when the person is aware that such circumstances probably exist. When
knowledge of the existence of a particular fact is an element of an offense,
such knowledge is established if a person subjectively believes that there is
a high probability of its existence and fails to make inquiry or acts with a
conscious purpose to avoid learning the fact.
{¶ 23} A definition of “public official” is found in R.C. 102.01(B), which provides
that the term “means any person who is elected or appointed to an office or is an
employee of any public agency.”
{¶ 24} R.C. 955.22 provides in part as follows:
(I)(1) The county auditor shall issue a dangerous dog registration
certificate to a person who is the owner of a dog, who is eighteen years of
age or older, and who provides the following to the county auditor:
***
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(c) With respect to the person and the dog for which the registration
is sought, all of the following:
***
(ii) Either satisfactory evidence of the fact that the dog has been
neutered or spayed or a statement from a licensed veterinarian that
neutering or spaying of the dog is medically contraindicated[.]
{¶ 25} Regarding Harris-Smith’s first assignment of error, we conclude that
sufficient evidence established the culpable mental state of knowingly, and we find
unavailing her argument that the presence of the parentheses around the words
“neutered” and “spayed” on her applications for dangerous dog certificates created an
ambiguity.
{¶ 26} R.C.2937.07 governs a court’s actions on a plea of no contest in
misdemeanor cases and provides in relevant part: “A plea to a misdemeanor offense of
‘no contest’ * * * shall constitute an admission of the truth of the facts alleged in the
complaint and * * * the judge or magistrate may make a finding of guilty or not guilty from
the explanation of the circumstances of the offense.” Each complaint alleged that Harris-
Smith knowingly made a false statement or knowingly affirmed the truth of a false
statement to the county auditor, and by pleading no contest, she is deemed to have
admitted those facts. Harris-Smith further admitted to the court that she knew her dogs
were intact, yet she certified under penalty of perjury that they were not. Given the
language of R.C. 955.22(I)(1)(c)(ii), which mandates the issuance of a dangerous dog
certificate upon, inter alia, “satisfactory evidence that the dog has been neutered or
spayed,” we cannot agree with Harris-Smith that the words “neutered” and “spayed” were
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“not essential to the registration” of Buddy and Remy. In other words, we conclude that
the words enclosed in parentheses in this instance serve to qualify, clarify, or explain the
words before them. Having reviewed the evidence in a light most favorable to the
prosecution, and having concluded that any rational trier of fact could have found the
element of knowingly proven beyond a reasonable doubt, Harris-Smith’s first assignment
of error is overruled.
{¶ 27} Regarding Harris-Smith’s second assignment of error, we find her
reliance on Parks to be misplaced, since Hackett, a public official to whom Harris-Smith
knowingly made false statements about her dogs, performed an official function when she
issued the dangerous dog registration certificates to Harris-Smith, as required by R.C.
955.22(I)(1). In other words, unlike in Parks, Harris-Smith’s conduct violated R.C.
2921.13(A)(3), since sufficient evidence established that her statements were made with
purpose to mislead Hackett in performing her official function of issuing dangerous dog
certificates. Any suggestion, pursuant to Parks, that the State’s decision to prosecute
her pursuant to R.C. 2921.13(A)(3), instead of R.C. 2921.13(A)(5), is “a fatal mistake,”
accordingly lacks merit. Harris-Smith’s second assigned error is overruled.
{¶ 28} The judgment of the municipal court is affirmed.
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WELBAUM, P.J. and FROELICH, J., concur.
Copies mailed to:
Garrett P. Baker
Darrell L. Heckman
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Hon. Deirdre E. Logan