[Cite as State v. Sweet Distrib., 2013-Ohio-3822.]


                  Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                 Nos. 99312 and 99313


                                      STATE OF OHIO
                                                           PLAINTIFF-APPELLEE

                                                     vs.

                       SWEET DISTRIBUTING AND
                           SAMIR ELALOUL
                                                           DEFENDANTS-APPELLANTS




                                  JUDGMENT:
                            REVERSED AND REMANDED



                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-567353

        BEFORE: E.T. Gallagher, J., Keough, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: September 5, 2013
ATTORNEYS FOR APPELLANTS

Mark Marein
Steven L. Bradley
Marein & Bradley
222 Leader Building
526 Superior Avenue
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: James D. May
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

      {¶1} In this consolidated appeal, defendants-appellants, Samir Elaloul

(“Elaloul”) and Sweet Distributing, Inc. (“Sweet Distributing”) (collectively

referred to as “appellants”), appeal their tampering with records convictions. We

find merit to the appeal and reverse the convictions.

      {¶2} Appellants were charged in a 90-count indictment with engaging in

corrupt activity, aggravated theft, possession of criminal tools, and conspiracy.

The indictment also charged appellants with numerous counts of tampering with

records, money laundering, intent to avoid payment of tax, and unlawful

transportation of tobacco products. The state alleged that appellants defrauded

the state of Ohio of excise tax revenue by creating fraudulent tax returns.

      {¶3} Under Ohio law, tobacco wholesalers are required to file monthly tax

returns and pay a 17 percent inventory tax on other tobacco products (“OTP”)

acquired during the month. Wholesalers may claim a full tax credit against the

17 percent tax for all sales that the wholesaler made to out-of-state customers

during the month. The monthly tax returns include a schedule A, which lists

inventory acquired during the month, and a schedule B, which lists all sales

made to out-of-state customers during the month. The returns are due to be

filed one month after the month being reported.
       {¶4} Beginning in April 2009, Sweet Distributing began selling OTP to

Royal Wholesale Distributing (“Royal Wholesale”), which was incorporated and

had its principal place of business in Pennsylvania. From April 2009 through

December 2009, Sweet Distributing claimed tax credits for its sales to Royal

Wholesale as an out-of-state customer. Elaloul discovered that Royal Wholesale

was not a legitimate Pennsylvania company when its principal, Hashem Al-

Hamid (“Al-Hamid”), was arrested for tax-fraud in February 2010.

       {¶5} It is undisputed that appellants filed state tax returns for every month from April

2009 through January 2010. Appellants were convicted of tampering with records for allegedly

falsifying information on their January 2010 tax return. Elaloul testified at trial that he did not

claim credits for sales made to Royal Wholesale in January 2010 because he had learned that

Royal Wholesale was involved in a tax-fraud scheme. Appellants argued they did not claim

credits because they did not want to knowingly claim credits for out-of-state sales that they

learned were being distributed in Ohio.

       {¶6} A jury acquitted appellants of all counts except Counts 12 and 21, which alleged that

appellants prepared and uttered a false record in violation of R.C. 2913.42. These two counts

specifically identified the record in question as the January 2010 “State of Ohio excise tax

reporting forms.” Although these charges were identified as third-degree felonies in the

indictment, the court granted appellants’ motion to reduce them to first-degree misdemeanors

pursuant to State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735.
        {¶7} Appellants filed post-verdict motions for acquittal and for a new trial, arguing that

the verdicts were against the manifest weight of the evidence. Appellants also moved to dismiss

Counts 12 and 21 because they failed to state an offense under R.C. 2913.42. The court denied

these motions and sentenced appellants to fines of $1,000 each and sentenced Elaloul to

community control sanctions. Appellants now appeal and raise three assignments of error.

        {¶8} We find the first and third assignments of error dispositive of this appeal. In the first

assignment of error, appellants argue the evidence is insufficient to sustain a conviction under

R.C. 2913.42 for the crimes alleged in Counts 12 and 21. Count 12 alleges that appellants

prepared a false 2010 tax return. Count 21 alleges that appellants uttered the false 2010 tax return.

In the third assignment of error, appellants argue that R.C. 5703.26, which governs the

falsification of tax records, precludes the state from prosecuting them for tax-fraud under R.C.

2913.42. We agree.
            1




        {¶9} R.C. 2913.42(A) prohibits anyone from knowingly falsifying and uttering false

records “with purpose to defraud.” Similarly, R.C. 5703.26 prohibits anyone from knowingly

making, presenting, or filing a fraudulent tax return with the Ohio department of taxation with

intent to defraud the state. R.C. 5703.26 further states that “[w]ith respect to such acts or conduct,


        1  Although appellants argue their convictions were improperly indicted under R.C. 2913.42, they
maintain that they did not submit false information in their January 2010 tax return. As previously stated,
they assert that they did not claim a credit for out-of-state sales to Royal Wholesale, even though they
sold other tobacco products to Royal Wholesale, because they discovered that Al-Hamid was actually
distributing the products to Ohio retailers.
no conviction shall be had under any other section of the Revised Code.” Appellants assert that

based on this language, R.C. 5703.26 is the exclusive provision in the Ohio Revised Code under

which the filing of false tax returns may be prosecuted. Therefore, they argue, the state could not

prosecute them for preparing and uttering a false tax return under R.C. 2913.42, as charged in the

indictment.

       {¶10} The state argues that appellants’ interpretation of the language “no conviction shall

be had under any other section of the Revised Code” would render other tax statutes prohibiting

the filing of false or fraudulent returns meaningless. However, R.C. 5703.26 is a general

provision prohibiting the preparation and filing of any and all fraudulent tax returns. Applying the

rules of statutory construction set forth in R.C. 1.51, the Ohio Supreme Court has held that “where

there is no manifest legislative intent that the general provision prevail over the specific provision,

the specific provision applies.” Meyer v. UPS, 122 Ohio St.3d 104, 2009-Ohio-2463, 909 N.E.2d

106, ¶ 21, citing State v. Chippendale, 52 Ohio St.3d 118, 556 N.E.2d 1134 (1990). Therefore,

R.C. 5703.26 does not preclude the state from prosecuting the specific crimes involving false sales

and income tax returns under other sections of the tax code.
       {¶11} The state would have us disregard the plain language of R.C. 5703.26. However, if

the language used in a statute is clear and unambiguous, the statute must be applied as written, and

it is not appropriate to engage in further interpretation. State ex rel. Burrows v. Indus. Comm., 78

Ohio St.3d 78, 81, 676 N.E.2d 519 (1997). A court must “give effect to the words actually

employed in a statute, and should not delete words used, or insert words not used, in the guise of

interpreting the statute.” State v. Taniguchi, 74 Ohio St.3d 154, 156, 656 N.E.2d 1286 (1995),

citing State v. Waddell, 71 Ohio St.3d 630, 631, 646 N.E.2d 821 (1995).

       {¶12} R.C. 5703.26, which prohibits the filing of false or fraudulent tax returns, is more

specific than R.C. 2913.42, which applies to the tampering of all kinds of records, not just tax

records. Because R.C. 5703.26 expressly precludes prosecution for the falsification of tax records

under any other section of the Revised Code, appellants were wrongfully convicted of

tampering with records and for preparing and uttering false tax records under

R.C. 2913.42.

       {¶13} The first and third assignments of error are sustained. Having

determined that these assigned errors are dispositive of this appeal, the second

assignment of error is moot.

       {¶14} Case is reversed and remanded to the trial court to execute a

judgment entry vacating appellants’ convictions.

       It is ordered that appellants recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
     It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
