[Cite as State v. Ziemba, 2012-Ohio-1717.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.      25886

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
VALERIE R. ZIEMBA                                    COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 10 05 1214

                                 DECISION AND JOURNAL ENTRY

Dated: April 18, 2012



        WHITMORE, Presiding Judge.

        {¶1}     Defendant-Appellant, Valerie Ziemba, appeals from the judgment of the Summit

County Court of Common Pleas. This Court affirms in part and reverses in part.

                                                I

        {¶2}     Ziemba applied for and received food assistance and Ohio Works First cash

assistance through the Summit County Department of Job and Family Services (“DJFS”) from

2007 to 2009.        Ziemba represented on her initial application and subsequent eligibility

verifications that three of her daughters lived with her. DJFS calculated Ziemba’s benefits based

on the information she supplied. After Ziemba’s former husband notified DJFS that none of the

former couple’s children resided with Ziemba, DJFS conducted an investigation and learned that

Ziemba repeatedly failed to report that her children no longer lived with her as of October 2007.

DJFS referred Ziemba’s case to its benefit recovery unit, as it determined that she was ineligible

for over $14,000 of the benefits she had received.
                                                 2


       {¶3}    On May 18, 2010, a grand jury indicted Ziemba on the following counts: (1)

illegal use of food stamps or WIC program benefits, in violation of R.C. 2913.46(B); (2) theft, in

violation of R.C. 2913.02(A)(3); and (3) tampering with records, in violation of R.C.

2913.42(A)(1)(B)(4). The matter proceeded to a jury trial, and the jury found Ziemba guilty on

all three counts. The jury further found, as to the first two counts, that the value of the property

involved was “$5,000 or more and less than $100,000.”

       {¶4}    The court issued its sentencing entry on March 9, 2011. The court found Ziemba

guilty on all three counts in accordance with the jury’s verdict and sentenced her to a twenty-four

month term of community control.

       {¶5}    Ziemba now appeals from the trial court’s judgment and raises four assignments

of error for our review.

                                                 II

                                Assignment of Error Number One

       THE TRIAL COURT ERRED IN DENYING RULE 29 MOTIONS FOR
       ACQUITTAL AS THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A
       CONVICTION FOR ILLEGAL USE OF FOOD STAMPS OR WIC PROGRAM
       BENEFITS[.]

       {¶6}    In her first assignment of error, Ziemba argues that her conviction for the illegal

use of food stamps or WIC program benefits is based on insufficient evidence. We disagree.

       {¶7}    In order to determine whether the evidence before the trial court was sufficient to

sustain a conviction, this Court must review the evidence in a light most favorable to the

prosecution. State v. Jenks, 61 Ohio St.3d 259, 273 (1991).

       An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, would convince the average mind
       of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
       whether, after viewing the evidence in a light most favorable to the prosecution,
                                               3


       any rational trier of fact could have found the essential elements of the crime
       proven beyond a reasonable doubt.

Id. at paragraph two of the syllabus; see also State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

“In essence, sufficiency is a test of adequacy.” Thompkins, 78 Ohio St.3d at 386.

       {¶8}    The version of R.C. 2913.46 in effect at the time of Ziemba’s indicted offenses

read as follows:

       No individual shall knowingly possess, buy, sell, use, alter, accept, or transfer
       food stamp coupons, WIC program benefits, or any electronically transferred
       benefit in any manner not authorized by the “Food Stamp Act of 1977,” 91 Stat.
       958, 7 U.S.C.A. 2011, as amended, or section 17 of the “Child Nutrition Act of
       1966,” 80 Stat. 885, 42 U.S.C.A. 1786, as amended.

Former R.C. 2913.46(B).       “‘WIC program benefits’ includes money, coupons, delivery

verification receipts, other documents, food, or other property received directly or indirectly

pursuant to section 17 the ‘Child Nutrition Act of 1966,’ 80 Stat. 885, 42 U.S.C.A. 1786, as

amended.” Former R.C. 2913.46(A)(1)(b). Repeated violations of R.C. 2913.46 “over a period

of twelve months” represent a course of conduct that may be charged as one offense. Former

R.C. 2913.46(A)(2). Whoever violates R.C. 2913.46 is guilty of the illegal use of food stamps or

WIC program benefits. Former R.C. 2913.46(D).

       {¶9}    In 2008, the Food Stamp Act of 1977 was amended so as to: (1) strike the name of

the Act and replace it with the “Food and Nutrition Act of 2008”; and (2) replace any references

to the food stamp program with references to the supplemental nutrition assistance program.

Food, Conservation, and Energy Act of 2008, Pub.L. No. 110-234, Title IV, § 4001(b), 122 Stat.

1092. The General Assembly revised R.C. 2913.46 on October 16, 2009, to reflect the foregoing

changes to the federal legislation. Ziemba’s indictment, however, tracked the language in the

earlier version of R.C. 2913.46 because that was the version in effect at the time of her alleged

offenses.
                                                 4


       {¶10} The indictment here charged Ziemba with violating R.C. 2913.46 by engaging in

a course of conduct from June 1, 2007, through April 30, 2009. As set forth above, to obtain a

conviction under Former R.C. 2913.46(B), the State was required to prove that Ziemba accepted

her benefits in a manner not authorized by the Food Stamp Act of 1977. Ziemba first argues that

the State could not prove that she violated the Food Stamp Act of 1977 after May 22, 2008,

because the Act was repealed on that date and no longer existed. She argues that, as the federal

law underlying her charge did not exist as of May 22, 2008, her conviction for illegally using

food stamps or WIC benefits in violation of that federal law cannot stand. She relies upon State

v. Gill, 63 Ohio St.3d 53 (1992).

       {¶11} In Gill, the Ohio Supreme Court considered the constitutionality of R.C. 2913.46

given that the statute incorporated the Food Stamp Act of 1977 “as amended.” Gill at 54-55.

The Court determined that the statute was constitutional because the language “as amended”

only incorporated amendments to the federal law that took place before R.C. 2913.46’s

enactment. Id. at 55-56. Specifically, the Court explained that “by using the language ‘as

amended,’ [the General Assembly] did not intend to adopt amendments to the federal law

subsequent to the effective date of R.C. 2913.46[], but, rather, the General Assembly simply

intended to incorporate the federal food stamp law as it existed on the date R.C. 2913.46[] was

enacted.” Id. at 55. The Court distinguished the phrase “as amended” from the phrase “as now

or hereafter amended” and concluded “that a reasonable interpretation of R.C. 2913.46[] is that

the General Assembly intended to prohibit any activity involving food stamps in a manner

inconsistent with the federal food stamp law as the federal law read on the date R.C. 2913.46[]

was enacted.” Id. at 56. Accordingly, each time R.C. 2913.46 is revised, it only incorporates the

federal law as it exists on or before the date of R.C. 2913.46’s revision.
                                                  5


       {¶12} Notably, the defendant in Gill argued that the interpretation the Court ultimately

adopted was “unworkable” because multiple revisions to the federal food stamp law had

occurred even after R.C. 2913.46’s enactment and, due to the revisions, “some present lawful

recipients would commit an Ohio crime by obtaining food stamps.”                   Id.    The Court

acknowledged the defendant’s point, but held that the problem could be avoided through further

revisions to R.C. 2913.46 “to incorporate amended versions of the federal food stamp law.” Id.

       {¶13} Ziemba is incorrect in her assertion that the federal law here did not exist after

May 22, 2008. The law still existed on that date; it was simply amended to change its name and

add references to the supplemental nutrition assistance program. The amendments did not alter

the substance of the crime with which Ziemba was charged. And while the General Assembly

did revise R.C. 2913.46 to reflect the revisions to the federal law, it was not able to accomplish

that revision until October 16, 2009. The delay is admittedly regrettable, but even a shorter time

period would not have allayed Ziemba’s claim here. Under Ziemba’s construction, for the State

to be able to convict her for acts she engaged in from May 22, 2008, (the day the amendments to

the federal law took place) through April 30, 2009, (the last day of the time period set forth in

Ziemba’s indictment), the General Assembly would have had to revise R.C. 2913.46 the same

day Congress amended the federal law. That construction is simply not feasible. Further,

Ziemba has not shown that she was prejudiced as a result of the State relying upon the former

version of the federal law, as the two versions at issue are not substantially different. See State v.

Marzolf, 9th Dist. No. 24459, 2009-Ohio-3001, ¶ 6-15. We, therefore, reject Ziemba’s first

argument.
                                               6


       {¶14} Next, Ziemba argues that her conviction is based on insufficient evidence because

the State failed to prove that she obtained benefits in a manner not authorized by federal law.

We disagree.

       {¶15} The parties stipulated that Karl Ziemba obtained temporary custody of Ziemba’s

children in April 2007 and that full legal custody in Karl’s favor was entered on October 29,

2007. Leslie Dean, a fraud investigator with DJFS, testified that Ziemba received both food

stamps and cash benefits for her children, but that she was not eligible for those items once the

children were not living with her. Natasha Glover, another DJFS investigator, testified that she

investigated Ziemba and determined that Ziemba was not entitled to the amount of benefits she

received due to the fact that her children were no longer living with her. Glover specified that

Ziemba received food stamps/food assistance as well as Ohio Works First cash assistance. She

explained that to be eligible for any cash assistance an applicant must have children in the home

and that the amount of any food stamp issuance varies depending on the number of people

residing in the home. Glover produced a chart of the difference between what Ziemba actually

received in assistance versus what she would have been entitled to receive had DJFS known her

children were not living with her. Glover testified that Ziemba received an overage benefit of

food stamps/food assistance in the amount of $6,934 and an overage benefit of cash assistance in

the amount of $7,493.

       {¶16} Gail Bell, a case manager for DJFS, testified that she met with Ziemba in person

both at the time of Ziemba’s initial application for assistance and each time Ziemba renewed her

request for assistance. Bell met with Ziemba on March 29, 2007, July 30, 2007, February 14,

2008, August 22, 2008, and February 2, 2009. Ziemba’s initial application listed four of her

children as members of her household. At the July 30, 2007 meeting and every meeting
                                                 7


thereafter, Ziemba indicated that three of her children were residing in her household and that

Karl Ziemba was an absent parent. Bell testified that she read and explained Ziemba’s rights and

responsibilities under the law when she met with her, as well as the requirement that Ziemba

report any household member changes within ten days of the change occurring. Each of the

verification forms that Ziemba signed on the foregoing dates contained all her rights and

responsibilities and specified that she was required to be truthful in her application for benefits,

to report any household changes, and to return any overpaid benefits should it later be

determined that she did not meet the eligibility requirements for them. Bell confirmed that

Ziemba would not have been eligible for the amount of assistance she actually received had

DJFS known her children were no longer living with her.

       {¶17} Viewing the evidence in a light most favorable to the prosecution, a rational trier

of fact could have concluded that the State set forth sufficient evidence to show that Ziemba

knowingly accepted benefits to which she was not entitled by repeatedly providing DJFS with

false information. Ziemba has not provided this Court with any authority for the proposition that

the State was required to have one or more of its witnesses affirmatively state that Ziemba’s

actions violated federal law. See App.R. 16(A)(7). Multiple witnesses from DJFS testified that

Ziemba was not entitled to the full amount of benefits she received because she misrepresented

her eligibility requirements. Ziemba’s argument that her conviction for the illegal use of food

stamps or WIC program benefits lacks merit. Accordingly, her first assignment of error is

overruled.
                                                    8


                                Assignment of Error Number Two

       THE TRIAL COURT COMMITTED PLAIN ERROR OF COMMISSION
       WHEN IT IN EFFECT CHARGED THE JURY IT COULD CONVICT FOR
       CONDUCT CONTRARY TO A REPEALED STATUTE AND COMMITTED A
       SEPARATE BUT COMPOUNDING PLAIN ERROR OF OMISSION WHEN IT
       FAILED TO INFORM THE JURY WHETHER MULTIPLE COUNTS OF AN
       INDICTMENT CONSTITUTED SEPARATE AND DISTINCT MATTERS[.]

       {¶18} In her second assignment of error, Ziemba argues that the trial court committed

plain error in instructing the jury. We disagree.

       {¶19} Generally, a defendant’s failure to object to an allegedly erroneous jury

instruction limits any review of the alleged error to a review for plain error. State v. Johnson, 9th

Dist. No. 25525, 2011-Ohio-3941, ¶ 20.         Under Crim.R. 52(B), “[p]lain errors or defects

affecting substantial rights may be noticed although they were not brought to the attention of the

court.” “Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v. Long,

53 Ohio St.2d 91 (1978), paragraph three of the syllabus.

       {¶20} First, Ziemba argues that the trial court erred by instructing the jury that they

could find her guilty of a violation of the Food Stamp Act of 1977. Ziemba’s argument

encompasses the argument she set forth in her first assignment of error, in which she alleged that

the State could not convict her for any activities that occurred after May 22, 2008, the day the

federal law was amended. Based on our resolution of Ziemba’s first assignment of error, her

argument is moot and we decline to address it. App.R. 12(A)(1)(c).

       {¶21} Second, Ziemba argues that the court committed plain error by not instructing the

jury that it must independently consider the counts in her indictment. Although the trial court

did not specifically instruct the jury that it must consider each count separately, the court did

instruct the jury that the State had the burden to prove, beyond a reasonable doubt, “every
                                                 9


essential element of the offenses charged in the indictment.” The court stated that Ziemba’s not

guilty plea “put[] in issue or in dispute all of the essential elements of each of the crimes

alleged.” Moreover, the court separately instructed the jury on each count, as well as the

definitions for those counts, and ended its explanation of each count with an instruction that, if

the jurors found that the State proved all the essential elements of that count, then their verdict

must be guilty. The court also reviewed each of the three separate jury verdict forms with the

jury. Based on our review of the record, we conclude that the court did not commit plain error

by not instructing the jury that each count was separate and independent. See Akron v. Martin,

9th Dist. No. 17286, 1996 WL 11984, *3 (Jan. 10, 1996); State v. Dykes, 11th Dist. No. 92-L-

078, 1993 WL 548456, *8-9 (Dec. 17, 1993). Ziemba’s second assignment of error is overruled.

                               Assignment of Error Number Three

       THE TRIAL COURT VIOLATED CONSTITUTIONAL PROTECTIONS OF
       DOUBLE JEOPARDY AND COMMITTED PLAIN ERROR WHEN IT
       FAILED TO MERGE CONVICTIONS FOR ILLEGAL USE OF FOOD
       STAMPS OR WIC PROGRAM BENEFITS, FOR THEFT AND FOR
       TAMPERING WITH RECORDS WHERE THE RECORD IS DEVOID OF
       ANY EVIDENCE THAT APPELLANT HAD ANY SEPARATE ANIMUS FOR
       EACH OFFENSE[.]

       {¶22} In her third assignment of error, Ziemba argues that the trial court erred by

convicting her of allied offenses of similar import.

       {¶23} Initially, we note that the trial court’s sentencing entry here only sentences

Ziemba to one term of community control. The court did not attach the community control

sanction to any particular count. The Ohio Supreme Court has held that “[a] sentence is the

sanction or combination of sanctions imposed for each separate, individual offense.” State v.

Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, paragraph one of the syllabus. “Under the Ohio

sentencing statutes, the judge lacks the authority to consider the offenses as a group and to
                                                 10


impose only an omnibus sentence for the group of offenses.” Id. at ¶ 9. Compounding the error

here, the parties and the trial court did not discuss the allied offense issue at the time of

sentencing.

       In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Ohio Supreme
       Court held that “[w]hen 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.” Id. at syllabus. Since then, this Court has consistently
       remanded cases for further proceedings in the trial court to apply Johnson for the
       first time. See, e.g., State v. Creel, 9th Dist. No. 25476, 2011-Ohio-5893, ¶ 4.

State v. Daniels, 9th Dist. No. 25808, 2011-Ohio-6414, ¶ 12. The State here argues that this

Court should not remand this matter because Johnson already had been issued at the time the

trial court imposed Ziemba’s sentence and the parties were charged with notice of the decision.

Even so, the allied offense issue still must be addressed because the imposition of multiple

sentences for allied offenses of similar import amounts to plain error. State v. Underwood, 124

Ohio St.3d 365, 2010-Ohio-1, ¶ 31. This Court cannot determine whether Ziemba’s convictions

are, in fact, allied offenses of similar import without applying Johnson. Because this Court has

consistently refused to apply Johnson in the first instance, we must remand the matter for the

trial court to apply it. Creel at ¶ 4. If one or more of the offenses are allied, the State also must

have the opportunity to elect the offense(s) upon which it wishes to proceed to sentencing. Id.

Further, upon remand, the trial court must be cognizant of the bar against the imposition of “an

omnibus sentence for [a] group of offenses.” Saxon at ¶ 9. Ziemba’s third assignment of error is

sustained.

                                Assignment of Error Number Four

       INEFFECTIVE ASSISTANCE OF APPOINTED TRIAL COUNSEL
       VIOLATED DOUBLE JEOPARDY PROTECTION AND DENIED
       FUNDAMENTAL DUE PROCESS TO APPELLANT’S PREJUDICE.
                                                11


       {¶24} In her fourth assignment of error, Ziemba argues that she was denied the effective

assistance of counsel. We disagree.

       {¶25} To prove an ineffective assistance claim, Ziemba must show two things: (1) that

counsel’s performance was deficient to the extent that “counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that “the deficient

performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To

demonstrate prejudice, Ziemba must prove that “there exists a reasonable probability that, were it

not for counsel’s errors, the result of the trial would have been different.” State v. Bradley, 42

Ohio St.3d 136 (1989), paragraph three of the syllabus.          “An error by counsel, even if

professionally unreasonable, does not warrant setting aside the judgment of a criminal

proceeding if the error had no effect on the judgment.” Strickland at 691. Furthermore, this

Court need not address both Strickland prongs if an appellant fails to prove either one. State v.

Ray, 9th Dist. No. 22459, 2005-Ohio-4941, ¶ 10.

       {¶26} Ziemba argues that her trial counsel was ineffective because she failed to: (1)

clearly argue her Crim.R. 29 motions with regard to the State not proving that Ziemba accepted

benefits in a manner not authorized by federal law; and (2) object when the court instructed the

jury that it could convict Ziemba under a repealed federal law. This Court addressed the

arguments underlying Ziemba’s ineffective assistance claim in Ziemba’s first and second

assignments of error and rejected them. Ziemba’s conviction for the illegal use of food stamps

or WIC program benefits is supported by sufficient evidence and does not constitute a conviction

under a repealed law. Consequently, Ziemba cannot demonstrate prejudice as a result of her trial

counsel’s failure to argue her Crim.R. 29 motions more clearly or object to the court’s instruction

on the federal law at issue.
                                                12


       {¶27} Ziemba also argues that her trial counsel was ineffective because she did not raise

the allied offenses issue. Because Ziemba’s sentence must be vacated and the matter must be

remanded for a determination of the allied offense issue, however, Ziemba was not prejudiced by

her counsel’s failure to raise the issue. Ziemba’s fourth assignment of error is overruled.

                                                III

       {¶28} Ziemba’s first, second, and fourth assignments of error are overruled. Ziemba’s

third assignment of error is sustained and her sentence is reversed pursuant to that determination.

The judgment of the Summit County Court of Common Pleas is affirmed in part, reversed in

part, and the cause is remanded for further proceedings consistent with the foregoing opinion.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.
                                                 13




                                                      BETH WHITMORE
                                                      FOR THE COURT



DICKINSON, J.
CONCURS.

BELFANCE, J.
CONCURRING IN JUDGMENT ONLY.

       {¶29} I concur in the majority’s judgment.           With respect to Ms. Ziemba’s first

assignment of error, I agree that sufficient evidence was presented to sustain a guilty verdict on

the charge of illegal use of food stamps or WIC program benefits.

       {¶30} The central premise to Ms. Ziemba’s sufficiency argument is not only must the

State prove that her conduct violated the Food Stamp Act of 1977, but it must also prove as an

essential element to the offense that the act was in force on the date of the alleged violation.

Notably, Ms. Ziemba has not provided any authority on this point. In other words, Ms. Ziemba

has not provided any authority suggesting that the Ohio legislature cannot choose to criminalize

conduct that violates the provisions of a former federal statute.

       {¶31} Thus, I am not convinced that the fact that the Food Stamp Act of 1977 was

repealed in May 2008 has any effect when analyzing the sufficiency of the evidence. As

reflected by the discussion of the testimony in the main opinion, the State presented evidence

that Ms. Ziemba’s conduct prior to and subsequent to May 2008 violated the Food Stamp Act of

1977; the fact that the Food Stamp Act of 1977 was repealed in 2008 does not change the fact

that Ms. Ziemba’s conduct, when viewed in a light most favorable to the State, violated the Food

Stamp Act of 1977. In addition, Ms. Ziemba also does not address the fact that the State
                                                14


adduced evidence that her conduct violated the Food Stamp Act of 1977 during a time frame

when the act was in effect. Thus, even assuming that Ms. Ziemba’s argument has some merit,

she has not specifically argued that her conduct before the Food Stamp of Act of 1977 was

repealed, for which she was also indicted, was not sufficient to establish a violation of former

R.C. 2913.46.

       {¶32} In addition, I am not persuaded by Ms. Ziemba’s argument that the State had to

elicit testimony expressly stating that Ms. Ziemba’s conduct violated the Food Stamp Act of

1977, in part, because eliciting such testimony from a witness would essentially usurp the role of

the jury. The jury was instructed about the general purpose of the Food Stamp Act of 1977 and

of the fact that the Food Stamp Act of 1977 had eligibility requirements. There was testimony

that Ms. Ziemba knew what the eligibility requirements were. There was ample testimony that

Ms. Ziemba did not meet the eligibility requirements to receive the level of benefits she was

receiving. Accordingly, I agree that sufficient evidence was presented.

       {¶33} Finally, I agree that Ms. Ziemba has not established the trial court committed

plain error in its jury charge. I concur in the majority’s judgment.


APPEARANCES:

MARK H. LUDWIG, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
