State v. Bamonte , 2022 Ohio 1331 ( 2022 )

[Cite as State v. Bamonte, 2022-Ohio-1331.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 19AP-875
v. : (C.P.C. No. 18CR-1347)
Anthony Bamonte, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on April 21, 2022
On brief: Dave Yost, Attorney General, Benjamin W.
Karrasch, Steven T. Darnell, Kristin Pe, and Megan E. Grant-
Lee, for appellee. Argued: Steven T. Darnell.
On brief: Todd W. Barstow, for appellant. Argued: Todd W.
Barstow.
APPEAL from the Franklin County Court of Common Pleas
MENTEL, J.
{¶ 1} A jury found defendant-appellant, Anthony Bamonte, guilty of grand theft
under R.C. 2913.02(A)(3) and Medicaid fraud under R.C. 2913.40(B) in the Franklin
County Court of Common Pleas. His appeal challenges the legal sufficiency of the state's
evidence and its manifest weight, but as discussed below, we find no merit to either
argument and affirm the findings of guilt. However, our review of the record shows that
the trial court committed plain error by failing to merge the convictions as allied offenses
of similar import under R.C. 2941.25. Accordingly, we affirm in part, reverse in part, and
remand for resentencing.
I. Factual and Procedural History
{¶ 2} On March 20, 2018, plaintiff-appellee State of Ohio filed a two-count
indictment against Mr. Bamonte. Count 1 alleged that between March 19, 2011 and
No. 19AP-875 2
September 9, 2015, he committed grand theft as defined in R.C. 2913.02(A)(3) by obtaining
Ohio Department of Medicaid ("ODM") funds by deception, in an amount over $5,000 but
less than $100,000. Count 2 alleged that from March 14, 2011 to September 9, 2015, he
committed Medicaid fraud under R.C. 2913.40(B) by using false or misleading statements
or representations to obtain reimbursement, in an amount over $5,000 but less than
$100,000. Before trial, the state amended both counts to allege that the amounts Mr.
Bamonte stole were in excess of $7,500 and less than $150,000. The state also amended
Count 2 to allege that Mr. Bamonte committed the fraud between October 1, 2011 and
September 9, 2015. (Aug. 26, 2019 Tr. at 5.)
{¶ 3} A seven-day trial commenced on August 26, 2019. The state's case alleged
that Mr. Bamonte defrauded ODM by filing unauthorized claims on behalf of Medicaid
recipients for durable medical equipment ("DME") and medical supplies, based on
recipients' information obtained from home health care agencies with which his company,
ADB Medical Supplies, had done business. The state supported its allegations with
testimony from ODM investigators, Medicaid recipients, and owners and employees of
home health care agencies.
{¶ 4} Don Sabol testified about his work at ODM's Bureau of Health Plan Policy as
the Medicaid health system administrator, where he oversaw the rules governing DME
claims. Id. at 398-99. He explained that the Ohio Administrative Code defines DME, which
is covered by Medicaid, as "equipment that can stand repeated use, is primarily and
customarily used to serve a medical purpose, is not useful to a person in the absence or
illness or injury, and is appropriate for use in the home." Id. at 404. In contrast, "[s]upplies
are basic consumables or disposable things not designed for repeated use." Id. at 399.
Mr. Sabol explained that under the Medicaid reimbursement rules, "when Medicaid pays
for a physician visit or a home health visit, certain items are considered to be necessary for
the provision of that service," including supplies such as gloves. Id. at 406. Such items are
"included in [the] reimbursement" for the service and not subject to a separate
reimbursement. Id. In other words, "Medicaid will not pay for something that's already
included in a payment for a professional service." Id. at 407.
{¶ 5} The rule applies as well to home health services, Mr. Sabol explained. Thus,
"supplies for services included in payments to home health companies for home health
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services [are] built into the rate" and are "the cost of doing business" for those providers.
Id. at 408. According to Mr. Sabol, a DME or medical supply company should not bill
Medicaid using a recipient's number for gloves it furnishes because "[t]he recipient is not
receiving the actual supply item." Id. at 408-09. Rather, the supply company should be
sending the bill to "[t]he home health agency" that uses the gloves. Id. at 409. As an
example of when Medicaid would pay for gloves, Mr. Sabol explained that "[t]he patient
and prescriber would have to initiate the process for the order" and that gloves would only
be justified in the case of "[c]ertain conditions," including post-surgical wound care. Id.
However, he emphasized that it would never be appropriate for a DME company to bill
Medicaid for gloves used by a home health agency. Id. at 410. Mr. Sabol also explained
that in order for a company to obtain Medicaid reimbursement for DME, the regulations
require it to have conforming paperwork that includes a signed and dated "legible
prescription from an eligible prescriber" based on a "face-to-face examination," a patient
file or "a form or certificate of medical necessity," and "proof of delivery" of the equipment.
Id. at 412. He testified that ODM should not pay for medical supplies without meeting such
requirements or for supplies that a patient did not receive. Id. at 413-14.
{¶ 6} Patrick Tighe, the bureau chief of Claims Operations at ODM, testified about
the agency's Medicaid claims process. Id. at 849-50. He authenticated the "remittance
advices" the agency generated showing payments made to ADB Medical Supplies for
Medicaid claims. Id. at 854. He also explained that ODM does not have "any independent
way" of verifying the information in a provider's claim, such as whether a doctor's order
exists to support it, and must rely on the truthfulness of the provider to "know what to pay
and what to process." Id. at 865. ODM processes "a little over a million claims a week." Id.
at 866.
{¶ 7} Rachel Jones, the Section Chief of ODM's Surveillance and Utilization Review
Section, testified about the agency's fraud investigation that resulted in a referral to the
Ohio Attorney General. Id. at 210. She explained that ODM sent out explanation of medical
benefits ("EOMB") letters "on a monthly basis asking [Medicaid] recipients to verify the
services that were paid in the previous month on their behalf." Id. at 211. Ms. Jones
explained that if a Medicaid recipient has not received the services listed on the EOMB, the
recipient is asked "to indicate that on the letter" and return it in an enclosed envelope. Id.
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at 213. Based on EOMB letter responses received from Medicaid recipients, ODM referred
ADB Medical Supplies to the Ohio Attorney General. Id. The referral occurred after a
claims review process in which Ms. Jones and her staff noticed "[v]ery strange billing
patterns" by ADB Medical Supplies, including "billing for a year's worth of services in one
claim" or for services performed a year before the billing date. Id. at 214-15. Her staff also
"reached out" to the Medicaid recipients who had responded to confirm that "they had not
received the services" in question. Id. at 216. Ms. Jones stated that her office only referred
potential fraud cases to the Ohio Attorney General when the EOMB letter recipient's
response "clearly states they did not receive the supplies and they know nothing about the
supplies." Id. at 260.
{¶ 8} Mike McCabe also testified about the work of ODM's Surveillance and
Utilization Review Section, where he monitored the EOMB letter program. Id. at 368-69.
His investigation started when he "received two letters on consecutive days from two
different people claiming that they had not received the products that ADB had billed for
and were paid [for]." Id. at 369. After receiving the letters, Mr. McCabe reviewed ADB
Medical Supplies' claims and "notice[d] the same billing pattern on some other recipients."
Id. at 372. He also reviewed the company's reimbursement history, "looking for dramatic
jumps that may indicate something." Id. According to Mr. McCabe, ADB Medical Supplies
was reimbursed "approximately $84,000 from Medicaid" in 2012, but within "the first 25
or 24 weeks of 2013, they had already received $238,000 of reimbursement in less than six
months, almost a 300 percent increase, which is pretty dramatic." Id. He then noticed that
in March 2013 alone, the company received $128,000. Id. at 373. Mr. McCabe sent out
targeted EOMB letters to Medicaid recipients about ADB Medical Supplies' claims and
received 51 responses, which he sent directly to the special agent at the Ohio Attorney
General conducting the investigation. Id. at 373-74.
{¶ 9} A number of Medicaid recipients, their caregivers, and relatives testified
about billing discrepancies that prompted them to notify ODM via EOMB letters. R.A.
testified that her son was a Medicaid recipient whose condition required him to have a
home health aide. Id. at 114. R.A. never asked for medical gloves for her son's care, stated
that no gloves were ever shipped to their home, and testified that the aide caring for her son
had no need to wear gloves while providing care for him. Id. at 115-16. R.A. identified
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several EOMB forms that she had received that asked her to "check no" by any items listed
that she had not received. Id. at 116-19. She confirmed that she checked no listings on the
forms for gloves billed by ADB Medical Supplies. Id. at 119. R.A. testified that before
receiving the forms, she did not know that anyone was billing Medicaid for gloves for her
son. Id. at 121.
{¶ 10} G.B. testified that she was the home health aide for her sister, a Medicaid
recipient. Id. at 132-33. She stated that she had never ordered gloves from ADB Medical
Supplies. Id. at 135. According to G.B., she sometimes used gloves when taking care of her
sister, but always bought them herself at Walgreens or Walmart. Id. at 136. She also
testified that gloves and adult diapers were never shipped directly to her home. Id. at 160-
61.
{¶ 11} A.R., a Medicaid recipient, testified that she received home health services
from her daughter in 2013 and 2014, and that her daughter did not wear or use gloves when
assisting A.R. Id. at 165-66, 168. A.R. did not request or receive gloves during those years,
and she had never heard of ADB Medical Supplies. Id. at 166-67.
{¶ 12} F.I. testified that her daughter received in-home nursing and home health aid
services. Id. at 178-79. In 2013 and 2014, only the nurses used gloves while taking care of
her daughter. Id. at 179. The nurses provided services about twice a week during that time.
Id. F.I. stated that she received a box of gloves that she didn't order. Id. at 180. She received
a letter from ODM and filled out a response stating that she had never ordered gloves. Id.
at 181-84.
{¶ 13} J.Y. testified that her daughter was a Medicaid recipient who received home
health care services through Complete Home Healthcare. Id. at 272. She stated that she
had never heard of ADB Medical Supplies and had never received a delivery of "a year's
supply of gloves at once" in 2012 or 2013. Id. at 272-73.
{¶ 14} P.J. testified that her son was a Medicaid recipient who received home health
services. Id. at 314-15. Her son's care did not require medical gloves. Id. at 316. P.J. had
no knowledge of ADB Medical Supplies and had never received a shipment of gloves at her
home. Id.
{¶ 15} J.S. testified that she received an EOMB from ODM concerning supplies for
her daughter, a Medicaid recipient. Id. at 330, 335. She "check[ed] no" on the EOMB
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response form because her daughter had "never received [the] supplies" listed. Id. at 334.
According to J.S., her daughter did not require medical gloves and J.S. had never received
any shipments of gloves in 2013 and 2014. Id. at 329-30. J.S. had no knowledge of ADB
Medical Supplies. Id. at 334.
{¶ 16} L.G. testified that she was her mother's home health aide in 2013 and 2014.
Id. at 352. During that time, her mother also received in-home nursing care. Id. at 353.
Neither L.G. nor the nurses ever wore gloves when caring for her mother. Id. at 353-54.
L.G. testified that two boxes of medical supplies were delivered to her home that she had
not ordered. Id. at 355. Other than that shipment, she never received any deliveries of
medical supplies. Id. at 355-56.
{¶ 17} L.H. testified that her son was a Medicaid recipient and that she was his home
health aide. Id. at 500-02. She originally did her home health aide billing through
International Quality Healthcare. Id. at 502. L.H. used gloves when caring for her son but
always bought them herself. Id. She testified that from August 2013 to May 2014, she did
not receive any deliveries of gloves, and, more specifically, did not receive four boxes of
monthly deliveries of gloves to her home or a total of 40 boxes of gloves. Id. at 503-04.
L.H. also testified that she never ordered any medical supplies through ADB Medical
Supplies. Id. at 504.
{¶ 18} The state also called witnesses from several of the home health agencies that
had contractual arrangements with ADB Medical Supplies. A.O. testified as the 100 percent
owner of International Quality Healthcare, a home health care services company. Id. at
436-37. Her company supplied its employees with gloves and other supplies as necessities
for "do[ing] their work well" and did not bill Medicaid for supplies. Id. at 441. She testified
that her company became involved with ADB Medical Supplies in 2014 during a period that
Medicaid was switching to a managed care system and billing for home health services was
difficult. Id. at 442.
{¶ 19} A.O. testified that that she spoke directly with Mr. Bamonte, who promised
her help with getting reimbursement from the managed care companies. Id. at 444-45.
She agreed because her company was having problems with billing to the extent that payroll
was not being met. Id. at 445. After asking for references, A.O. provided ADB Medical
Supplies with her clients' information in order to bill on her company's behalf. Id. at 446.
No. 19AP-875 7
Her company had an excess of medical supply inventory because it had previously been a
DME provider. Id. at 447. Through Mr. Bamonte, A.O. entered into an agreement with
ADB Medical Supplies in which that company would be "the ones buying [International
Quality Healthcare] inventory and supplying it, and then they would bill it since they [had]
the billing capability." Id. at 448. She received two checks from ADB Medical Supplies in
September 2014 for over $32,000 of medical supplies. Id. at 450-51. In 2015 or 2016, A.O.
was contacted by the Ohio Attorney General, and realized then that ADB Medical Supplies
had billed her clients for more than the home health services they originally helped her with
in June, July, and August 2014. Id. at 453-54.
{¶ 20} B.J., a former employee of International Quality Healthcare, testified that he
worked on the company's "bookkeeping and HR and payroll and taxes." Id. at 519. He
testified that ADB Medical Supplies personnel came into the office "to help recover some
back claims" for home health services from managed care insurers that had not been paid
to International Quality Healthcare. Id. at 520, 529. The ADB Medical Supplies employees
"had total access to [the] electronic patient records" of International Quality Healthcare
clients. Id. at 521.
{¶ 21} B.J. described an overheard conversation in which an ADB Medical Supplies
employee told an insurer "that one client was eligible for certain [DME] * * * every three
months," which made him "uncomfortable" because "just because they're eligible, doesn't
necessarily mean that they need [the DME]." Id. at 522. After the arrangement with ADB
Medical Supplies ended, International Quality Healthcare "started getting complaints, calls
that were complaining about equipment, bills for equipment that [clients] claimed they did
not receive." Id. B.J. told clients that the bill was not from International Quality Healthcare
and "if it was something that they did not get, that they should report that to the State." Id.
While B.J. worked for International Quality Healthcare, he ordered gloves for International
Quality Healthcare aides "from a company called First Choice in Mississippi." Id. at 525.
International Quality Healthcare paid for the gloves itself, not Medicaid. Id.
{¶ 22} G.T. testified about her employment at Cincinnati Home Care, starting in
2012, where she was responsible for billing "Medicare, Medicaid, [and] any of the private
insur[ers]." Id. at 531. While working at Cincinnati Home Care, ADB Medical Supplies
contacted her and offered to supply gloves to Cincinnati Home Care clients, Medicaid
No. 19AP-875 8
recipients, and "be reimbursed" for them. Id. at 532-33. G.T. passed the offer onto the
owner of Cincinnati Home Care, which in the past "had always supplied those gloves to [its]
aides." Id. at 533. After the owner agreed, ADB Medical Supplies requested "client
information" from G.T., which she provided. Id. at 533-34. According to G.T., the
relationship between the two companies was "short-lived." Id. at 535. Cincinnati Home
Care received "between 20 and 30 cases of gloves" from ADB Medical Supplies. Id. G.T.
began to receive calls from "clients that were angry that they were being bothered" by ADB
Medical Supplies and she told the company to stop calling clients. Id. at 536.
{¶ 23} G.T. stated that it was her understanding that providing gloves to "staff
members that are going out into the homes" was a "cost of doing business" of a home health
agency. Id. at 536-37. She stated that she never agreed "to let ADB Medical Supplies bill
for over $13,000 worth of blood pressure monitors, heating pads, or underpads" to clients
of Cincinnati Home Care. Id. at 537.
{¶ 24} L.S., a former employee at Cincinnati Home Care, testified that the company
was approached by an ADB Medical Supplies representative who claimed "that there was a
new rule that had [come] out in which Medicaid clients could receive gloves and that the
home care agencies no longer had to supply them." Id. at 550-52. L.S. believed that what
the representative claimed "was too good to be true." Id. at 552. In exchange for Cincinnati
Home Care's "patient information list," ADB Medical Supplies offered to provide two boxes
of gloves a month. Id. at 552-53. Before this interaction, L.S. believed that "it was a cost of
doing business for an agency to provide gloves." Id. at 553. L.S. testified that Cincinnati
Home Care began to receive complaints from patients and their families after ADB Medical
Supplies contacted them, so she told its representative "to cease and desist." Id. at 554-55.
{¶ 25} M.M., Cincinnati Home Care's office manager, testified that "[t]he company
would order the gloves, and then we would just disburse them to the home health aides"
before its involvement with ADB Medical Supplies. Id. at 566-67. After Cincinnati Home
Care entered into its arrangement with ADB Medical Supplies to supply gloves, M.M. was
tasked with contacting clients and aides to "let them know that we would no longer be
supplying gloves for them." Id. at 568. A short time later, clients began to complain that
they were not receiving gloves and Cincinnati Home Care began ordering gloves itself again.
No. 19AP-875 9
Id. According to M.M., none of its clients required the use of reusable protective underpads
or automatic blood pressure cuffs. Id. at 568-69.
{¶ 26} T.W., a nurse working for Total Homecare Solutions, testified that his
responsibilities included taking medical supplies to clients' homes. Id. at 600-01. He
received a "cold call" from someone at ADB Medical Supplies in early 2013 claiming that
Total Homecare Solutions was "entitled to gloves" and could "back date and bill for two
years prior" to obtain reimbursement for them. Id. at 602. T.W. stated that ADB Medical
Supplies wanted the "names of our clients, date of births, [and] Medicaid numbers" and
after obtaining approval from his boss, he supplied the information. Id. at 603-04. Before
the arrangement with ADB Medical Supplies, T.W. ordered gloves from a pharmacy
supplier for Total Homecare Solutions. Id. at 605. During the three months that Total
Homecare Solutions did business with ADB Medical Supplies, the company never agreed
to allow ADB Medical Supplies to bill for diapers or underpads for its patients. Id. at 608.
{¶ 27} N.A., the owner of Total Homecare Solutions, testified that the company
provides in-home support to persons with developmental disabilities. Id. at 625-26. The
company first interacted with ADB Medical Supplies in March 2013. Id. at 627. According
to N.A., ADB Medical Supplies presented "an opportunity to be reimbursed for [medical]
gloves, something that we typically had to pay for ourselves." Id. at 628. N.A. could not
recall if the arrangement with ADB Medical supplies also covered reimbursement for
previously obtained supplies. Id. He acknowledged receiving two reimbursement checks
from ADB Medical supplies totaling a little over $5,300 for gloves provided in 2013. Id. at
628-30. After its relationship with ADB Medical Supplies ended, Total Homecare Solutions
went back to paying for gloves itself. Id. at 631. N.A. stated that his company never
authorized ADB Medical Supplies to bill over $11,000 for diapers and underpads. Id. at
632. According to N.A., Total Homecare Solutions would pay for any such items itself if a
client needed them but were not prescribed by a doctor. Id.
{¶ 28} T.S. was the office administrator for Classic Healthcare Services. Id. at 643.
Shortly after she started working there in October 2014, ADB Medical Supplies "came in to
help with some HMO billing" and also offered to "order gloves for us." Id. at 644-45. T.S.
explained that the typical process for obtaining medical supplies was that "we order it from
the DME company and the DME bills the insurance" for the supplies. Id. at 645. At Classic
No. 19AP-875 10
Healthcare Services, the owner ordered gloves and paid for them. Id. T.S. recalled two
deliveries of "about three boxes" of gloves from ADB Medical Supplies. Id. at 647-48. After
clients began to complain, Classic Healthcare Services stopped working with ADB Medical
Supplies. Id. The complaints also led to Classic Healthcare Services receiving a "write-up"
from a firm overseeing Medicaid complaints and the company had to attest that it was "no
longer doing business with" ADB Medical Supplies and was doing its own ordering. Id. at
647. T.S. also worked as a home health aide for Classic Healthcare Services and when asked
about three specific clients, confirmed that aides would either have had no or minimal use
for gloves for them. Id. at 649-50.
{¶ 29} F.B., the CEO and owner of Classic Healthcare Services, also testified. Id. at
660. She stated that her company became involved with ADB Medical Supplies at the end
of 2014 to help with billing managed care organizations after the introduction of
preauthorizations. Id. at 661. After working on the billing issues, representatives from ADB
Medical Supplies asked F.B. why she was ordering and paying for gloves herself when her
company could be billing Medicaid for them. Id. at 663. ADB Medical Supplies began
ordering gloves for Classic Healthcare Services' patients, which were delivered to the
company's office. Id. at 663-64. Clients "started calling" and complaining that Classic
Healthcare Services was "billing a lot of things for them" and threatened to report the
company for billing unnecessary supplies. Id. at 664-65. F.B. then terminated her
company's relationship with ADB Medical Supplies. Id. at 665. She testified that she never
asked ADB Medical Supplies to bill for gloves her company provided in 2013 and she never
received a reimbursement check from the company. Id. at 666.
{¶ 30} V.U., the owner of Quality Care, Cincinnati Home Care, and Comfort and
Care Home Health agencies, also testified. Id. at 798. She stated that each of her agencies
orders and pays for the gloves given to employees to use when caring for patients. Id. at
799. The agencies do not supply any medical equipment to patients. Id. V.U. recalled
receiving a call from ADB Medical Supplies offering to "bill and have Medicaid pay for the
gloves," claiming that her agencies did not have to pay for gloves. Id. at 800. ADB Medical
Supplies representatives met with V.U. and told her that because "you have a year to bill
Medicaid," the company "would go back and bill all the gloves that we had supplied
No. 19AP-875 11
previously, and then would bring us a check when the money [came] in." Id. at 801. V.U.
agreed and had an employee, G.T., work with ADB Medical Supplies on "logistics." Id.
{¶ 31} V.U. identified two cashier's checks from ADB Medical Supply to her
agencies, one for $1,250.00 and another for $6,517.05, that were "reimbursement from the
State" for "back billing" for gloves. Id. at 802-03. V.U. testified that her companies'
relationship with ADB Medical Supplies "ended when we started getting numerous calls
from our patients telling us that they were getting supplies like blood pressure [monitors],
diapers," and ADB Medical Supplies was told "to stop seeing our patients. We also told the
patients not to deal with them." Id. at 804. V.U. confirmed that she never authorized ADB
Medical Supplies "to bill close to $18,000 worth of billings for blood pressure monitors,
reusable protective underpads or diapers" on her companies' behalf. Id. at 805.
{¶ 32} A number of former ADB Medical Supplies employees also testified. D.S. did
clerical work for ADB Medical Supplies in 2014 and 2015. Id. at 877. She testified that
Mr. Bamonte "would ultimately make decisions when something needed to be done," was
there "[r]egularly," and agreed with the characterization that "the buck stopped with him."
Id. at 879. She accompanied other ADB Medical Supplies employees on visits to home
health agencies and confirmed that the agencies gave them "access to patient charts." Id.
at 880.
{¶ 33} D.W. worked for ADB Medical Supplies in 2013 and stated that Mr. Bamonte
and his sister Gina ran the company. Id. at 885. Five Bamonte siblings worked there, but
D.W. described Mr. Bamonte as "the owner." Id. at 886-87. According to D.W., she would
"get told" what to bill ODM by Mr. Bamonte or Gina. Id. at 888. "They told me what
supplies were provided, and I would bill them." Id. at 889. D.W. "printed out a paper every
week of what was billed -- the patient's names, the supplies, and amounts." Id. D.W.
testified that she never billed for something without being told what to bill. Id.
{¶ 34} R.S. worked for ADB Medical Supplies from January 2014 until February
2015. Id. at 909. His work required him "to take calls," "send orders," and "process
returns." Id. at 910. R.S. testified that Mr. Bamonte "owned the company" and "was also
in charge of the company." Id. at 911. Mr. Bamonte and Gina "made [it] very clear" to R.S.
that no supplies could be sent before billing occurred. Id. at 917. ADB Medical Supplies
"would bill first, and if everything cleared, then we could dispense the supplies." Id. at 916.
No. 19AP-875 12
R.S. testified that Mr. Bamonte taught him the "pitch" used on cold calls to get clients from
home health agencies, which was that ADB Medical Supplies "could get all of your clients
free gloves, you know. The State covers it, so they're entitled to them under some universal
precautions." Id. at 932. R.S. also accompanied Mr. Bamonte and Gina on meetings with
home health agencies but "really didn't understand what was going on, for the most part,
as far as what they were trying to accomplish." Id. at 933.
{¶ 35} Gregory Mounts is a special agent supervisor in the Health Care Fraud
Section of the Ohio Attorney General's Office. Id. at 956. He interviewed Mr. Bamonte on
January 8, 2015. Id. at 958. During the interview, Mr. Bamonte told Special Agent Mounts
that he was the "100 percent" owner of ADB Medical Supplies and "basically ran the
company," although his siblings also worked there. Id. at 958-59. Mr. Bamonte also told
Special Agent Mounts that he was "the only one who had access" to the company's business
banking account. Id. at 960. Mr. Bamonte disagreed with Special Agent Mounts that the
cost of gloves was a home health agency's cost of doing business: "He said it was not the
cost of doing business. He said that patients had that reimbursable right, I believe were his
words." Id. at 964.
{¶ 36} When confronted with EOMBs where Medicaid recipients indicated that they
had not received supplies, Mr. Bamonte responded that "the population they were dealing
with were schizophrenic and mentally retarded, and that the * * * parents of the consumers
were confused themselves. So they might not be aware that they were ordering that and/or
receiving those supplies." Id. at 964-65. Mr. Bamonte's explanation for billing a year's
worth of supplies in one month was "if a home health aide for an agency used gloves for an
entire year, what they would do is they would go in and get that patient's information and
then back bill that for the entire year. And he described it as restocking." Id. at 965. When
asked about providing reimbursement checks to home health agencies, Mr. Bamonte "said
you were not allowed to do that." Id. at 965-66.
{¶ 37} Wayne Morgan testified as the supervisor of the provider compliance area of
the Provider Network Management Bureau at ODM. Id. at 987. In that position, he
"oversee[s] a team of individuals that make sure that providers are eligible when they
initially apply, and that they stay eligible to be providers, and that they follow the rules and
regulations related to the Ohio Medicaid program." Id. at 987-88. Mr. Morgan
No. 19AP-875 13
authenticated an ODM provider application signed by Mr. Bamonte on behalf of ADB
Medical Supplies that required that the applicant "submit claims only for services that are
actually performed." Id. at 988-90.
{¶ 38} After ODM suspended ADB Medical Supplies "due to credible allegations of
fraud," Mr. Morgan testified that Mr. Bamonte called him "to know why his company was
suspended and what he could do to become unsuspended, and what was the process to
appeal the decision of the Department." Id. at 991-92. Mr. Morgan told Mr. Bamonte that
he could "request a reconsideration" from ODM's director. Id. In the letter requesting
reconsideration, Mr. Bamonte stated that ADB Medical Supplies, acting on behalf of home
health care companies, "purchased the gloves and billed Medicaid. The gloves were sent
either to the patients directly or to the home health care company itself, if requested by the
company." Id. at 994. The letter also stated: "For the patients that had already received
gloves, having been purchased by the home health companies, ADB filed the necessary
paperwork with Medicaid to receive reimbursement for the home health care companies as
they are entitled unto under the law." Id. at 994-95. However, according to Mr. Morgan,
there is no ODM form "that providers can fill out in order to try to get reimbursement to
home health agencies for gloves," as home health agencies are not entitled to the
reimbursement for gloves described by Mr. Bamonte. Id. at 995. The ODM director denied
Mr. Bamonte's request for reconsideration of his company's suspension. Id.
{¶ 39} Melanie Angle testified about her work on the investigation as a special agent
in the Medicaid Fraud Control Unit at the Ohio Attorney General. Id. at 1004-05. Special
Agent Angle testified about a "voluntary" meeting with Mr. Bamonte in May of 2019 during
which he stated that he owned ADB Medical Supplies. Id. at 1006-07. When Mr. Bamonte
was "asked directly if he provided all the supplies the State was alleging were not provided,"
he replied that "he did either order or provide all of the supplies." Id. at 1013-14. When
asked why some billings covered an entire year of patient supplies, Mr. Bamonte explained
that "sometimes it took a long time to get all the necessary documents in order, such as the
authorizations." Id. at 1014. Special Agent Angle also testified that Mr. Bamonte adopted
a statement Gina made during the interview that ADB Medical Supplies' "files sustained
mold due to water damage from the fire department" after two fires at a laundromat in the
company's building. Id. at 1017. However, testimony from the local fire chief who was
No. 19AP-875 14
"personally involved" in both incidents contradicted this statement, as the fire chief stated
that there was no "fire or water damage to the adjacent businesses" in the building. Id. at
1044-45.
{¶ 40} Jacob Mulinix is a special agent at the Health Care Fraud Section of the Ohio
Attorney General's Office who investigates Medicaid fraud allegations. Id. at 1081-82. His
investigation of ADB Medical Supplies started when he received two EOMB forms
indicating that recipients were not receiving supplies from the company. Id. at 1083. In
the course of the investigation, Special Agent Mulinix received "51 additional EOMB
forms," all of which he investigated by interviewing "the recipients, their families, their
caretakers, whoever would have any kind of direct knowledge of what was being received
in that home for that patient." Id. at 1084-85. When reviewing claims made by ADB
Medical Supplies, he also noticed "that there was an influx of claims in March of 2013, and
several of those claims went back at least a year, some of which went back almost two years."
Id. at 1086. Special Agent Mulinix also testified that Mr. Bamonte "identified himself as
the 100 percent owner of ADB Medical Supplies" during an interview. Id. In the weeks
after Special Agent Mulinix interviewed Mr. Bamonte, ADB Medical Supplies "backed out
or reversed several claims" made in the past for supplies. Id. at 1138. The company "went
in there and returned the billing, put negative numbers on the billing. Basically, they were
returning it." Id.
{¶ 41} According to Special Agent Mulinix, the amount of DME that ADB Medical
Supplies' supplier, McKesson, shipped "was significantly less than the amount of supplies"
billed to ODM. Id. at 1091. As an example, he pointed to the testimony of an ODM
recipient's mother who "testified that he [recipient] didn't receive these supplies and didn't
need them. The McKesson records don't match or support any of the billing prior to
December of '14 for what ADB Medical Supplies billed. And the patient file, which included
one doctor's order for this client, wasn't signed until December 16th of 2014. So none of
the claims prior to that would have been valid." Id. at 1137. For some Medicaid recipients,
"the McKesson records do not support any of the billing" done by ADB Medical Supplies on
the recipient's behalf "because there are no McKesson records for [the] client." Id. at 1151;
see also id. at 1153. Special Agent Mulinix also described a claim submitted by ADB Medical
Supplies for a patient who had died prior to the service dates on the claim. Id. at 1195.
No. 19AP-875 15
{¶ 42} When reviewing ADB Medical Supplies' bank records, Special Agent Mulinix
noticed several "larger-than-average transactions" that occurred over a four-week period in
2013. Id. at 1202-03. This "large billing influx" was comprised of a group of Medicaid
recipients on whose behalf ADB Medical Supplies "only billed once, never before, never
after." Id. at 1196. A journal of payment provided by ODM's Office of Budget Management
showed that the department paid ADB Medical Supplies $21,096 on March 14, 2013,
$69,722 on March 21, 2013, $37,712 on March 28, 2013, $11,165 on April 4, 2013, and
$14, 549 on April 11, 2013. (State's Ex. 14 at 10.) In this four-week period, the company
exceeded the total amount billed for the entire previous year. Compare id. at 10 with id. at
8-10 (showing ODM payments to ADB Medical Supplies from March 15, 2012 to March 7,
2013 amounting to less than $110,000).
{¶ 43} During the same period, Special Agent Mulinix also noticed that Mr.
Bamonte made a series of "larger-than-usual withdrawals" from his company's bank
accounts. (Tr. at 1213.) On March 21, 2013, the same day that ADB Medical Supplies
received its largest-ever payment from ODM of $69,722, Mr. Bamonte withdrew $59,704.
Id. at 1216-17. (See also State's Ex. 15 at 401.) On March 28, 2013, the date that the
company received $37,712 from ODM, Mr. Bamonte withdrew $16,846 from the company's
account. (State's Ex. 15 at 402.) At the same time, cashier's checks were made out to
Bamonte family members, as well as checks to several of the home health agencies from
which ADB Medical Supplies had obtained recipient information. (Tr. at 1322-32.) Special
Agent Mulinix testified that he calculated the "total loss" to ODM for improper Medicaid
billing by ADB Medical Supplies between March 14, 2011 and January 1, 2015 was
$79,139.11. Id. at 1237. (See also State's Ex. 34c (listing and totaling loss amounts to
individual witnesses and home health agencies).)
{¶ 44} The defense's sole witness was Mr. Bamonte himself. (Tr. at 1371.) He
testified that his sister Gina and employees of Cincinnati Home Care, Quality Care, and
Comfort and Care were responsible for determining how much ADB Medical Supplies billed
ODM as well as the amount his company was reimbursed. Id. at 1378, 1385-86, 1397-98.
Bamonte stated that Gina and his brother Dan negotiated the Medicaid billing and
reimbursement with representatives of Total Homecare Solutions. Id. at 1388-89. He also
testified that ADB Medical Supplies' employee D.W. "did all of our Medicaid billing." Id. at
No. 19AP-875 16
1380. Mr. Bamonte believed Gina and the home health care agencies had verified that all
medical supplies ordered on behalf of patients "were allowed" by their doctors' orders. Id.
at 1399. In addition, Mr. Bamonte claimed that he had reviewed a doctor's plan of care for
each Medicaid recipient that had testified, that each plan of care authorized the billing of
DME, and that the recipient's home health care agency had represented to ADB Medical
Supplies that it had provided DME to that recipient. Id. at 1414-30.
{¶ 45} When asked about his company's relationship with International Quality
Healthcare, Mr. Bamonte stated that ADB Medical Supplies had done "some consulting"
for the company to assist with its transition to managed care billing, but "they didn't pay
us. And so, that was kind of our first inkling that maybe they weren't on the level." Id. at
1405.
{¶ 46} Mr. Bamonte testified that the first time he was aware that recipients had not
actually received DME billed to Medicaid by ADB Medical Supplies was "when Special
Agent Mulinix came and met with us and said there were 60 people that said they didn't
receive stuff." Id. at 1422. Mr. Bamonte claimed that in the month that Special Agent
Mulinix had highlighted with the largest discrepancy between the amount billed to
Medicaid by ADB Medical Supplies and the amount billed to McKesson for DME, he had a
spreadsheet and paperwork showing that his company had bought DME from other
suppliers. Id. at 1443. On cross-examination, Mr. Bamonte claimed that he had provided
the state with receipts from DME suppliers in "supplemental discovery." Id. at 1493-94.
However, the defense did not introduce any exhibit to support these assertions. See id. at
1362, 1391 (listing single defense exhibit of an email between employees of Total Homecare
Solutions). Mr. Bamonte testified that as a result of a "self-audit," his company returned
$60,000 to ODM in order to comply with a safe harbor rule for correcting billing
discrepancies. Id. at 1454-55.
{¶ 47} On cross-examination, Mr. Bamonte was asked why ADB Medical Supplies
waited two years to bill Medicaid for DME for patients of Cincinnati Home Care, Quality
Care, and Comfort and Care. Id. at 1471. He replied that he "[didn't] know" because other
company employees did the billing, and that his "guess [was] they were gathering
information." Id. While admitting that "we probably could have done a lot better" with
record keeping, he insisted that has company only billed for DME that was actually supplied
No. 19AP-875 17
to Medicaid recipients. Id. at 1494. However, Mr. Bamonte acknowledged that when first
contacted about the ODM investigation, "Agent Mulinix told us that 60 people in the last
six months said they hadn't gotten supplies in some capacity or another." Id. at 1495.
{¶ 48} After the jury returned guilty verdicts on both counts, the trial court
sentenced Mr. Bamonte to three years of community control. (Nov. 25, 2019 Jgmt. Entry.)
In addition, the trial court imposed financial sanctions of $100,491.87, consisting of
$57,555.83 in restitution to ODM and $42,936.04 in investigative costs. Id. at 2.
{¶ 49} Mr. Bamonte appealed, asserting the following assignment of error:
THE TRIAL COURT ERRED AND DEPRIVED APPELLANT
OF DUE PROCESS OF LAW AS GUARANTEED BY THE
FOURTEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ARTICLE ONE SECTION TEN OF THE
OHIO CONSTITUTION BY FINDING HIM GUILTY OF
GRAND THEFT AND MEDICAID FRAUD, AS THOSE
VERDICTS WERE NO SUPPORTED BY SUFFICIENT
EVIDENCE AND WERE ALSO AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
II. Standard of Review
{¶ 50} Because "[t]he legal concepts of sufficiency of the evidence and weight of the
evidence are both quantitatively and qualitatively different," they require two different legal
standards. State v. Thompkins, 78 Ohio St.3d 380 (1997), paragraph two of the
syllabus. "The standard when testing the sufficiency of the evidence ' "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. Beverly, 143 Ohio St.3d 258, 2015-Ohio-219, ¶ 15, quoting State v.
McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, ¶ 70, quoting State v. Jenks, 61 Ohio St.3d
259 (1991), paragraph two of the syllabus, superseded by state constitutional amendment
on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 (1997), fn. 4. Legal
sufficiency is a question of law that asks whether the state's evidence passes a "test of
adequacy." Thompkins at 386. A conviction resulting from "legally insufficient evidence
constitutes a denial of due process." Id., citing Tibbs v. Florida, 457 U.S. 31, 45 (1982) ("the
Due Process Clause forbids any conviction based on evidence insufficient to persuade a
rational factfinder of guilt beyond a reasonable doubt"). A reviewing court "will not disturb
No. 19AP-875 18
a verdict on appeal on sufficiency grounds unless 'reasonable minds could not reach the
conclusion reached by the trier-of-fact.' " State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-
5283, ¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421, 430 (1997).
{¶ 51} The manifest weight of the evidence standard of review requires the appellate
court to consider the state's evidence as an additional, or "thirteenth juror." Thompkins at
387. "To evaluate a claim that a jury verdict is against the manifest weight of the evidence,
we review the entire record, weigh the evidence and all reasonable inferences, consider the
credibility of witnesses, and determine whether in resolving conflicts in the evidence, the
jury clearly lost its way and created such a manifest miscarriage of justice that we must
reverse the conviction and order a new trial." State v. Wilks, 154 Ohio St.3d 359, 2018-
Ohio-1562, ¶ 168, citing Thompkins at 387. Reversal on manifest weight grounds is
appropriate " 'only in the exceptional case in which the evidence weighs heavily against the
conviction.' " Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st
Dist.1983).
III. Analysis
{¶ 52} We begin by examining whether the evidence introduced at Mr. Bamonte's
trial was legally sufficient for any rational trier of fact to convict him of every element of two
charged offenses beyond a reasonable doubt. Beverly at ¶ 15. Mr. Bamonte was charged
with grand theft under R.C. 2913.02(A)(3) and Medicaid fraud under R.C. 2913.40(B).
(Mar. 20, 2018 Indictment.)
{¶ 53} The Ohio Revised Code's relevant definition of theft is: "No person, with
purpose to deprive the owner of property or services, shall knowingly obtain or exert control
over either the property or services * * * [b]y deception." R.C. 2913.02(A)(3). See also State
v. Frazier, 10th Dist. No. 10AP-112, 2010-Ohio-4440, ¶ 28 ("To prove that appellant
committed theft by deception, the State must show: (1) intent, (2) to deprive the owner,
(3) of something of value--i.e., property or services, (4) without the owner's consent, and
(5) by deception.").
{¶ 54} The statute also defines several elements of the offense. First, "[a] person
acts purposely when it is the person's specific intention to cause a certain result, or, when
the gist of the offense is a prohibition against conduct of a certain nature, regardless of what
the offender intends to accomplish thereby, it is the offender's specific intention to engage
No. 19AP-875 19
in conduct of that nature." R.C. 2901.22 (A). Second, "deception" is defined as "knowingly
deceiving another or causing another to be deceived by any false or misleading
representation, by withholding information, by preventing another from acquiring
information, or by any other conduct, act, or omission that creates, confirms, or perpetuates
a false impression in another, including a false impression as to law, value, state of mind,
or other objective or subjective fact." R.C. 2913.01(A). In addition, an "owner" is "any
person, other than the actor, who is the owner of, who has possession or control of, or who
has any license or interest in property or services" obtained by deception. R.C. 2913.01(D).
Finally, theft is elevated to grand theft "[i]f the value of the property or services stolen is
seven thousand five hundred dollars or more and is less than one hundred fifty thousand
dollars, * * * a felony of the fourth degree." R.C. 2913.02(B)(2).
{¶ 55} The state presented legally sufficient evidence for a reasonable jury to find
that Mr. Bamonte purposely deprived ODM of funds in excess of the $7,500.00 threshold
for grand theft, and that he used deception to accomplish this purpose. A.O., the owner of
International Quality Healthcare, testified that Mr. Bamonte contacted her directly with a
proposal to assist with difficulty in billing managed care insurers, but their agreement also
allowed ADB Medical Supplies to obtain her company's excess medical supplies and bill
ODM for it. (Tr. at 444-54.) Through this agreement, Mr. Bamonte obtained her clients'
information and billed ODM for supplies that the clients never received. Id. Employees for
another home health agency, Cincinnati Home Care, as well as its owner, described a
similar scheme, in which ADB Medical Supplies promised to obtain reimbursement for
DME, obtained client information, and billed ODM for supplies the clients never received.
Id. at 531–69, 798-805. N.A., the owner of Total Homecare Solutions, also testified that
Mr. Bamonte's company reimbursed his company for medical supplies while billing ODM
for them, and that ADB Medical Supplies billed ODM for unauthorized DME. Id. at 625-
632. In each case, Mr. Bamonte himself or representatives of ADB Medical Supplies falsely
represented that ODM would reimburse the home health care agency for medical supplies
that should have been part of the agencies' cost of doing business.
{¶ 56} The state's evidence also demonstrated that Mr. Bamonte deceived ODM by
filing claims on behalf of Medicaid recipients who never received the medical supplies billed
for or had no knowledge that his company had billed for supplies on their behalf. Nine
No. 19AP-875 20
different Medicaid recipients testified at trial that they had never ordered DME or had
knowledge of Mr. Bamonte's company. Id. at 114-21, 132-60, 165-67, 178-84, 272-73, 314-
16, 330-35, 352-56, 500-04. No witness initiated the claim for DME with ODM, as
required. See id. at 409 (testimony of Mr. Sabol that ODM only reimburses for medically
necessary DME and "[t]he patient and prescriber would have to initiate the process for the
order"). Furthermore, invoice records for McKesson, the DME supply company used by
ADB Medical Supplies, do not show that DME was ever ordered for some of the Medicaid
recipients on whose behalf Mr. Bamonte's company submitted claims to ODM. (Compare
State's Ex. 4 and State's Ex. 5 with State's Ex. 7; see also Tr. at 1091-1153 (testimony of
Special Agent Mulinix describing discrepancies between McKesson invoices and DME
claims to ODM submitted by ADB Medical Supplies).) This evidence was legally sufficient
to prove that Mr. Bamonte and ADB Medical Supplies made false representations to ODM
in order to obtain reimbursement for DME.
{¶ 57} Evidence also showed that Mr. Bamonte exerted control over the funds after
deceiving their owner to obtain them. Bank records and ODM's payment journal, as
introduced by the state and described by Special Agent Mulinix, showed that ODM, the
owner of Medicaid funds, paid ADB Medical Supplies after being presented with the false
DME claims. (State's Ex. 14.) Bank records also show that Mr. Bamonte personally
withdrew large sums immediately upon receipt of the funds from ODM. (State's Ex. 15 at
401-02.) The state's evidence demonstrated that the total loss to ODM was over $79,000,
far in excess of the $7,500 threshold required to prove grand theft under R.C.
2913.02(B)(2). The foregoing evidence was legally sufficient to prove that Mr. Bamonte
purposely submitted false claims to ODM to obtain funds for reimbursement of DME and
medical supplies, that he deceived both the home health care agencies in order to acquire
the information to submit those claims and ODM by their submission, and that the amount
of funds he obtained elevated the theft to grand theft.
{¶ 58} The foregoing evidence was also legally sufficient to prove its claim of
Medicaid fraud against Mr. Bamonte. R.C. 2913.40(B) states that "[n]o person shall
knowingly make or cause to be made a false or misleading statement or representation for
use in obtaining reimbursement from the Medicaid program." "A person acts knowingly,
regardless of purpose, when the person is aware that the person's conduct will probably
No. 19AP-875 21
cause a certain result or will probably be of a certain nature." R.C. 2901.22 (B). For the
reasons discussed, the evidence was legally sufficient to show that Mr. Bamonte knowingly
made false or misleading statements regarding the reimbursability of DME and medical
supplies to home health agencies in order to obtain the information necessary to submit
false claims for reimbursement from ODM.
{¶ 59} With regard to the manifest weight of the evidence analysis, our review of the
extensive evidence presented at trial, both in the form of testimony and the lengthy paper
record, reveals no "conflicts in the evidence" or examples of non-credible witness testimony
to justify reversal of the conviction. Wilks at ¶ 168. "Though appellate courts must sit as a
'thirteenth juror' when considering a manifest weight argument, it must also give great
deference to the trier of fact's determination on the credibility of the witnesses." State v.
Kurtz, 10th Dist. No. 17AP-382, 2018-Ohio-3942, ¶ 31, citing State v. Favor, 10th Dist. No.
08AP-215, 2008-Ohio-5371, ¶ 10. Mr. Bamonte has highlighted no evidentiary
inconsistencies in his briefing to support his manifest weight argument. Our independent
review concludes that the mountain of evidence introduced by the state weighed heavily in
favor of conviction on both counts.
{¶ 60} Mr. Bamonte's only argument in support of his assignment of error is that the
state produced no evidence that he "personally submitted any claims or bills to ODM or any
other provider, let alone claims or bills that were false or misleading." (Appellant's Brief at
3.)
{¶ 61} Under R.C. 2901.24(A), "[a]n officer, agent, or employee of an organization
* * * may be prosecuted for an offense committed by such organization, if he acts with the
kind of culpability required for the commission of the offense, and * * * [i]n the name of the
organization or in its behalf, he engages in conduct constituting the offense, or causes
another to engage in such conduct, or tolerates such conduct when it is of a type for which
he has direct responsibility." Mr. Bamonte's own statement to Special Agent Mounts was
that he was the "100 percent" owner of ADB Medical Supplies and "basically ran the
company." (Tr. at 958-59.) His company's employees testified that they were told what to
bill ODM by Mr. Bamonte or Gina, his sister, that billing never occurred without employees
being told what to bill, and that Mr. Bamonte was "in charge." Id. at 888-89, 911. This
evidence was not legally insufficient simply because Mr. Bamonte himself was not the
No. 19AP-875 22
"actual submitter of any claims to ODM," as he argues. (Appellant's Brief at 5.) It is legally
irrelevant that Mr. Bamonte himself never pressed the enter key or clicked a mouse when
submitting claims to ODM. The state's evidence was legally sufficient to show that he
caused his employees to engage in the prohibited conduct under R.C. 2901.24(A) and
weighed in favor of the jury reaching the same conclusion. He may not hide behind his
employees or the corporate form to escape liability for his actions. See Courtney Harvey
Ford-Mercury v. Ohio Motor Vehicle Dealers Bd., 7th Dist. No. 97 CA 42, 1999 Ohio App.
LEXIS 352, *9 (Feb. 4, 1999) (stating that legislative history shows that "the purpose behind
[R.C. 2901.24] was to eliminate the possibility of individuals or corporations using a
corporate structure as a shield from liability in criminal cases").
{¶ 62} For the foregoing reasons, we conclude that the state's evidence was legally
sufficient to convict Mr. Bamonte for both offenses, and the convictions were supported by
the manifest weight of the evidence. His sole assignment of error is overruled.
{¶ 63} Finally, we turn to the two issues on which we requested supplemental
briefing from the parties:
Whether the trial court committed plain error by failing to
conduct the analysis under R.C. 2941.25 required by State v.
Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, and merge
appellant's convictions for grand theft under R.C.
2913.02(A)(3) and Medicaid fraud under R.C. 2913.40(B)?
Whether the appellant's conviction for Medicaid fraud under
R.C. 2913.40(B) for a "continuing course of criminal conduct,"
as alleged in the March 20, 2018 Indictment and the May 10,
2018 Bill of Particulars, was authorized by R.C. 2913.61 under
the holding of State v. McGhee, 10th Dist. No. 07AP-216, 2007-
Ohio-6537?
(Jan. 25, 2022 Journal Entry.)
{¶ 64} With regard to the second issue, we conclude that McGhee did not prevent
the state from indicting Mr. Bamonte for Medicaid fraud based on a continuing course of
criminal conduct. In McGhee, we stated that by enacting R.C. 2913.61(C), "the General
Assembly has authorized [the state] to prosecute particular series of offenses as a single
offense, and, when the series is prosecuted as a single offense, has obviated the requirement
that appellant prove each offense in the series." McGhee at ¶ 16. Because Medicaid fraud
under R.C. 2913.40 was not one of the offenses enumerated in the statute, McGhee held
No. 19AP-875 23
that "R.C. 2913.61(C) provides no authority for a series of Medicaid fraud offenses to be
tried as a single offense." Id. at ¶ 17. However, the Ohio General Assembly subsequently
amended R.C. 2913.61(C) to include the offense of Medicaid fraud under R.C. 2913.40. See
2011 Am.Sub.H.B. No. 86, Section 2913.61(C). Thus, our holding in McGhee has been
abrogated, and the state's indictment of Mr. Bamonte was permitted under R.C. 2913.61.
{¶ 65} Turning to the merger issue, we begin with the premise that the prohibition
against "multiple punishments for the same offense" is among the Double Jeopardy
protections guaranteed under the Fifth Amendment to the United States Constitution and
Article I, Section 10 of the Ohio Constitution. State v. Pendleton, 163 Ohio St.3d 114, 2020-
Ohio-6833, ¶ 8. The Ohio Legislature enacted R.C. 2941.25 to codify this protection. Id. at
¶ 9. The statute states:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such
offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in
two or more offenses of the same or similar kind committed
separately or with a separate animus as to each, the indictment
or information may contain counts for all such offenses, and
the defendant may be convicted of all of them.
{¶ 66} "Because the prosecution selects the charges that may be brought based upon
the criminal conduct of an accused and that conduct may potentially support convictions
of multiple offenses, the judge must determine whether the conduct can be construed to
constitute a single or more than one offense." State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-
995, ¶ 13. In this case, the trial court did not conduct the R.C. 2941.25 analysis required by
Ruff of Mr. Bamonte's convictions. The state concedes this point. (Supp. Brief at 4.)
{¶ 67} In the syllabus of State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, the
Supreme Court of Ohio set forth the procedural remedy for such error:1
1At least one commercial legal database incorrectly warns that Whitfield has been "superseded by statute,"
citing its mention in United States v. Mackey, S.D. Ohio No. 3:04cr00096, 2014 U.S. Dist. LEXIS 163039,
*6 (Nov. 20, 2014). Addressing a string of cases cited by a defendant challenging his state convictions that
included Whitfield, the Mackey ruling incorrectly asserts that each case was superseded by R.C. 2929.191,
"as indicated" by the Supreme Court of Ohio in State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-
6434. Mackey, *6 at fn.4. However, R.C. 2929.191 addresses errors in judgments imposing post-release
No. 19AP-875 24
1. The state retains the right to elect which allied offense to
pursue on sentencing on a remand to the trial court after
appeal.
2. Upon finding reversible error in the imposition of multiple
punishments for allied offenses, a court of appeals must reverse
the judgment of conviction and remand for a new sentencing
hearing at which the state must elect which allied offense it will
pursue against the defendant.
3. Because R.C. 2941.25(A) protects a defendant only from
being punished for allied offenses, the determination of the
defendant's guilt for committing allied offenses remains intact,
both before and after the merger of allied offenses for
sentencing.
{¶ 68} The state argues that even though the trial court failed to merge
Mr. Bamonte's convictions, it "effectively merged the charges by sentencing [him] to
concurrent prison sentences (should he violate community control)." (Supp. Brief at 4.)
The state points to the sentencing hearing, during which the trial court advised Mr.
Bamonte that if he violated the community control requirements, it would impose two
concurrent 18-month sentences. Id.{¶ 69} However, because "a court speaks through its judgment entries," we must
"look to the judgment entry when determining the sentence imposed by the trial court."
State v. Berry, 10th Dist. No. 97AP-964, 1999 Ohio App. LEXIS 2983, *56 (June 29, 1999)
(citations omitted). See also State v. Hairston, 10th Dist. No. 07AP-160, 2007-Ohio-5928,
¶ 57 ("acknowledging a difference between the sentences that the trial court announced at
the sentencing hearing and the sentences that the trial court stated in its judgment entries,"
but only considering the latter). Here, the judgment entry does not mention two prison
terms served concurrently. The judgment entry states: "The Court hereby imposes a period
of Community Control for THREE (3) YEARS." (Nov. 25, 2019 Jgmt. Entry.) The entry
also warns that "if the Defendant violates Community Control, he will receive a prison term
of 18 months," but fails to say whether this term pertains to one count or the other. Id. at
2.
control, which was not at issue in Whitfield. Nor did Singleton cite or discuss Whitfield. The Supreme
Court of Ohio continues to cite Whitfield, including its syllabus law, without signaling any reservations
concerning its status as precedent. See State v. McFarland, 162 Ohio St.3d 36, 2020-Ohio-3343, ¶ 25; State
v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, ¶ 153.
No. 19AP-875 25
{¶ 70} Furthermore, construing the judgment entry as imposing concurrent
sentences would not remedy the error. According to the Supreme Court of Ohio, "even
when the sentences are to be served concurrently, a defendant is prejudiced by having more
convictions than are authorized by law." State v. Underwood, 124 Ohio St.3d 365, 2010-
Ohio-1, ¶ 31. As long as two convictions stand for the same conduct, "the court has imposed
greater punishment than the legislature authorized." State ex rel. Romine v. McIntosh, 162
Ohio St.3d 501, 2020-Ohio-6826, ¶ 16, citing Underwood. The "imposition of multiple
sentences for allied offenses of similar import is plain error." Underwood at ¶ 31, citing
State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, superseded by statute on other
grounds, State v. Froman, 162 Ohio St.3d 435, 2020-Ohio-4523, ¶ 39. For these reasons,
the trial court committed plain error by failing to analyze Mr. Bamonte's convictions under
R.C. 2941.25.
{¶ 71} We overrule Mr. Bamonte's assignment of error and affirm the findings of
guilt, but we "reverse the judgment of conviction and remand for a new sentencing hearing"
so that the state may exercise its "right to elect which allied offense to pursue" at
resentencing. Whitfield at paragraphs one and two of the syllabus. See State v. Hunt, 10th
Dist. No. 10AP-618, 2011-Ohio-4054, ¶ 29 (affirming two robbery convictions because the
state's evidence was legally sufficient and of manifest weight to support them, but
remanding under Whitfield because the convictions "arose out of a single criminal act, and
* * * the trial court's failure to merge the two robbery convictions at sentencing constitutes
plain error").
Judgment affirmed in part and reversed in part;
cause remanded.
KLATT and DORRIAN, JJ., concur.
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