State v. Atkins

[Cite as State v. Atkins, 2013-Ohio-2326.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
:
-vs- :
: Case No. 12-CA-39
SHEVANN R. ATKINS :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Fairfield County
Court of Common Pleas, Case No. 2011-
CR-380
JUDGMENT: Affirmed in part; reversed in part; remanded
DATE OF JUDGMENT ENTRY: June 4, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOCELYN KELLY THOMAS ELWING
Assistant Prosecuting Attorney 60 West Columbus Street
239 West Main Street, Suite 101 Pickerington, OH 43147
Lancaster, OH 43130
[Cite as State v. Atkins, 2013-Ohio-2326.]
Gwin, P.J.
{¶1} Defendant-appellant Shevann R. Atkins (“Atkins”) appeals her convictions
and sentences in the Fairfield County Court of Common Pleas for one count of theft, a
fourth-degree felony in violation of R.C. 2913.02(A)(3), one count of illegal use of
supplemental nutrition assistance program benefits, a fourth-degree felony in violation
of R.C. 2913.46(B), and one count of tampering with records, a third-degree felony in
violation of R.C. 2913.42(A)(1).
Facts and Procedural History
{¶2} Between 2009 and 2011, Atkins submitted numerous applications for
benefits to Fairfield County Job and Family Services (“FCJFS”). In each application,
Atkins stated that she was a single woman living with her two minor children. She did
not disclose to FCJFS that her husband, Richard Atkins, was living with her and the
children. Through these misrepresentations, Atkins received an overpayment of $7,060
in supplemental nutrition assistance program or “SNAP” benefits. Atkins also received
an overpayment of over $13,000 in childcare cash assistance benefits due to her
misrepresentation concerning her living arrangements.
{¶3} In support of its assertion that Richard Atkins was a member of the
household who should have been disclosed, the state presented the testimony of
witnesses, as well as documentary evidence, and a recorded confession from Atkins to
an investigator of the Fairfield County Prosecutor's Office. Atkins contested the state's
allegations and testified in her own defense. She asserted that while her husband
frequently visited and occasionally stayed overnight, the two had a strained relationship
Fairfield County, Case No. 12-CA-39 3
and did not live together. Atkins further asserted that her confession was not voluntary
and resulted from inappropriate pressure applied by the investigator.
{¶4} At trial, the State argued that the third count of the indictment for
tampering with records was based on a single written application for childcare cash
assistance benefits submitted by Ms. Atkins on July 25, 2009.
{¶5} At the close of all evidence, and prior to submission to the jury, the trial
court determined that 2011 Am.Sub.H.B. No. 86 applied to modify the level of the
offense for the second count of the indictment charging illegal use of supplemental
nutrition assistance program benefits. As a result, the second count of the indictment
was reduced from a third-degree felony to a fourth-degree felony. The matter was then
submitted to the jury.
{¶6} Following four days of trial, a jury found Atkins guilty on all three counts of
the indictment.
Assignments of Error
{¶7} Atkins raises two assignments of error,
{¶8} “I. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO A
THIRD-DEGREE FELONY FOR THE OFFENSE OF TAMPERING WITH RECORDS
WHERE THE VERDICT FORM RETURNED BY THE JURY FAILED TO COMPLY
WITH THE REQUIREMENTS OF R.C. 2945.75(A)(2) FOR ENHANCING THE
DEGREE OF THE OFFENSE.
{¶9} “II. THE TRIAL COURT ERRED IN DETERMINING THAT THE
OFFENSES OF THEFT, ILLEGAL USE OF SUPPLEMENTAL NUTRITION
ASSISTANCE PROGRAM BENEFITS, AND TAMPERING WITH RECORDS WERE
Fairfield County, Case No. 12-CA-39 4
NOT ALLIED OFFENSES OF SIMILAR IMPORT SUBJECT TO THE MERGER
STATUTE.”
I.
{¶10} Atkins first contends that the verdict form returned by the jury on count
three of the indictment failed to comply with R.C. 2945.75(A)(2) and, therefore, Atkins
can only be sentenced for a misdemeanor of the first-degree.
{¶11} Atkins was convicted on the third count of the indictment for tampering
with records as a third-degree felony. This conviction for tampering with records was
based on a single written application for childcare cash assistance benefits submitted to
Fairfield County Job and family Services on July 25, 2009. This offense would constitute
a first-degree misdemeanor under R.C. 2913.42(B)(2)(a) unless the writing at issue was
found to be a government record, a circumstance that elevates the crime to a third-
degree felony under R.C. 2913.42(B)(4). However, the offense in the case at bar was
not properly elevated to a felony because the verdict form returned by the jury fails to
state the degree of the offense and fails to indicate any finding that the writing at issue
is a government record.
{¶12} The Supreme Court of Ohio has interpreted R.C. 2945.75 to provide the
requirements for what must be included in a jury verdict form. State v. Pelfrey, 112 Ohio
St.3d 422, 860 N.E.2d 735, 2007-Ohio-256, ¶14. The Pelfrey Court held that "pursuant
to the clear language of R.C. 2945.75, a verdict form signed by a jury must include
either the degree of the offense of which the defendant is convicted or a statement that
an aggravating element has been found to justify convicting a defendant of a greater
Fairfield County, Case No. 12-CA-39 5
degree of a criminal offense." Id. See also, State v. Nethers, 5th Dist. No. 07 CA 78,
2008-Ohio-2679, ¶ 51.
{¶13} The state concedes that the verdict form in the case at bar was not
sufficient under Pelfrey to convict Atkins of tampering with records as a felony of the
third degree.
{¶14} We agree. The jury verdict on count three did not contain the degree of
the offense or the additional finding that the writing at issue is a government record.
{¶15} Therefore, pursuant to Pelfrey, Atkins could only be convicted of the
lowest degree of the offense, a first-degree misdemeanor. Accordingly, the trial court
erred in sentencing Atkins as if the tampering with records was a felony of the third
degree.
{¶16} Atkins first assignment of error is sustained.
II.
{¶17} In her second assignment of error, Atkins argues that the trial court erred
by not merging the convictions for theft, illegal use of supplemental nutrition assistance
program benefits, and tampering with records for purposes of sentencing pursuant to
R.C. 2941.25.
{¶18} R.C. 2941.25, Multiple counts 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.
Fairfield County, Case No. 12-CA-39 6
(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.
{¶19} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d
1061, the Ohio Supreme Court revised its allied-offense jurisprudence. The Johnson
court overruled State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699(1999), “to the extent
that it calls for a comparison of statutory elements solely in the abstract under R.C.
2941.25.” The Court was unanimous in its judgment and the syllabus, “When
determining whether two offenses are allied offenses of similar import subject to merger
under R.C. 2941.25, the conduct of the accused must be considered. (State v. Rance
(1999), 85 Ohio St.3d 632, 710 N.E.2d 699, overruled.)” However, the Court could not
agree on how the courts should apply that syllabus holding. The Johnson case lacks a
majority opinion, containing instead two plurality opinions, and a separate concurrence
in the judgment and syllabus only. State v. Helms, 7th Dist. No. 08 MA 199, 2012-Ohio-
1147, ¶71 (DeGenaro, J., concurring in part and dissenting in part).
{¶20} Justice Brown’s plurality opinion sets forth a new two-part test for
determining whether offenses are allied offenses of similar import under R.C. 2941.25.
The first inquiry focuses on whether it is possible to commit both offenses with the same
conduct. Id. at ¶ 48, 710 N.E.2d 699. It is not necessary that the commission of one
offense will always result in the commission of the other. Id. Rather, the question is
Fairfield County, Case No. 12-CA-39 7
whether it is possible for both offenses to be committed by the same conduct. Id.,quoting State v. Blankenship, 38 Ohio St.3d 116, 119, 526 N.E.2d 816(1988).
Conversely, if the commission of one offense will never result in the commission of the
other, the offenses will not merge. Johnson at ¶ 51.
{¶21} If it is possible to commit both offenses with the same conduct, the court
must next determine whether the offenses were in fact committed by a single act,
performed with a single state of mind. Id. at ¶ 49, quoting State v. Brown, 119 Ohio
St.3d 447, 895 N.E.2d 149, 2008-Ohio-4569, ¶ 50 (Lanzinger, J., concurring in
judgment only). If so, the offenses are allied offenses of similar import and must be
merged. Johnson at ¶ 50. On the other hand, if the offenses are committed separately
or with a separate animus, the offenses will not merge. Id. at ¶ 51.
{¶22} Under Justice Brown’s plurality opinion in Johnson, “the court need not
perform any hypothetical or abstract comparison of the offenses at issue in order to
conclude that the offenses are subject to merger.” Id. at ¶ 47, 942 N.E. 2d 1061. Rather,
the court simply must ask whether the defendant committed the offenses by the same
conduct. Id.{¶23} To be found guilty of tampering with records in violation of R.C.
2913.42(A)(1), the state must prove that the accused, “knowing the person has no
privilege to do so, and with purpose to defraud or knowing that the person is facilitating
a fraud,” falsified, destroyed, removed, concealed, altered, defaced, or mutilated any
writing, computer software, data, or record. “Defraud” means to knowingly obtain, by
deception, some benefit for oneself or another or to knowingly cause, by deception,
some detriment to another.” R.C. 2913.01(B). “Deception” means knowingly deceiving
Fairfield County, Case No. 12-CA-39 8
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).
{¶24} To be found guilty of illegal use of supplemental nutrition assistance
program benefits or WIC program benefits in violation of R.C. 2913.46(B), the state
must prove that the accused knowingly possessed, bought, sold, used, altered,
accepted, or transferred supplemental nutrition assistance program benefits, WIC
program benefits, or any electronically transferred benefit in any manner not authorized
by the Food and Nutrition Act of 2008 (7 U.S.C. 2011 et seq.) or section 17 of the “Child
Nutrition Act of 1966,” 80 Stat. 885, 42 U.S.C. 1786, as amended.
{¶25} To be found guilty of theft in violation of R.C. 2913.02(A)(3), the state must
prove that the accused, with purpose to deprive the owner of property or services,
knowingly obtained or exerted control over either the property or services by deception.
{¶26} In the case at bar, the conduct that constitutes tampering with records was
complete when Atkins entered the false information upon the application for benefits
and submitted the form to FCJFS on July 25, 2009. Tampering does not require any
theft offense in order to be completed. Further, Atkins possessed, used and accepted
SNAP benefits from January 2, 2009 through July 31, 2011 in a manner not authorized
by the Food and Nutrition Act of 2008 (7 U.S.C. 2011 et seq.) or section 17 of the “Child
Nutrition Act of 1966,” 80 Stat. 885, 42 U.S.C. 1786, as amended. Atkins also received
over $13,000.00 in childcare cash assistance benefits. Atkins did not commit the crime
Fairfield County, Case No. 12-CA-39 9
of illegal use of supplemental nutrition assistance program benefits or WIC program
benefits in violation of R.C. 2913.46(B) until she exercise dominion and control over the
benefits. Atkins did not consummate the theft offense until she knowingly obtained or
exerted control over the childcare cash assistance benefits.
{¶27} Atkins relies upon State v. Rivarde, 197 Ohio App.3d 99, 2011-Ohio-
5354, 966 N.E.2d 301 to argue that her offenses were committed with the same animus.
In Rivarde the Twelfth District Court of Appeals found that tampering with records, a
violation of R.C. 2913.42, and Medicaid eligibility fraud, a violation of 2913.401, were
allied offenses of similar import. The Court observed,
To be found guilty of tampering with records in violation of R.C.
2913.42(A)(1) and (B)(4), a third-degree felony, the state must prove that
the accused, “knowing the person has no privilege to do so, and with
purpose to defraud or knowing that the person is facilitating a fraud,”
falsified, destroyed, removed, concealed, altered, defaced, or mutilated
any writing, computer software, data, or record kept by or belonging to a
local, state, or federal governmental entity.
To be found guilty of Medicaid-eligibility fraud in violation of R.C.
2913.401(B)(1), which, based on the facts of this case, rose to a fourth-
degree felony, the state must prove that the accused, “in an application for
medicaid benefits or in a document that requires a disclosure of assets for
the purpose of determining eligibility to receive medicaid benefits,”
knowingly made or caused to be made a “false or misleading statement.”
Fairfield County, Case No. 12-CA-39 10
197 Ohio App.3d 99, ¶19. Both statutes required the accused to make false statements,
which was the basis of the charge against Rivarde. Id. at ¶22. In the case at bar, neither
theft nor illegal use of supplemental nutrition assistance program benefits require a false
statement. Thus, unlike the statutes reviewed in Rivarde, the statutes in the case at bar
do not require the accused to act with the same animus.
{¶28} Atkins acted with a separate animus with respect to the three counts of the
indictment. Therefore, the trial court correctly sentenced her on each count.
{¶29} Atkins’ second assignment of error is overruled.
{¶30} For the foregoing reasons, the judgment of the Court of Common Pleas, of
Fairfield County, Ohio, is affirmed in part, reversed in part and this matter is remanded
to that court for proceedings in accordance with our opinion and the law.
By Gwin, P.J.,
Hoffman, J., and
Farmer, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER
WSG:clw 0522
[Cite as State v. Atkins, 2013-Ohio-2326.]
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
SHEVANN R. ATKINS :
:
:
Defendant-Appellant : CASE NO. 12-CA-39
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas, of Fairfield County, Ohio, is affirmed in part, reversed in
part and this matter is remanded to that court for proceedings in accordance with our
opinion and the law. Costs shared equally between the parties.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER