[Cite as State v. Mahvi, 2018-Ohio-4944.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                       GEAUGA COUNTY, OHIO


 STATE OF OHIO,                                    :        OPINION

                   Plaintiff-Appellee,             :
                                                            CASE NO. 2017-G-0140
         - vs -                                    :

 ALI PASCAL MAHVI,                                 :

                   Defendant-Appellant.            :


 Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 2016 C
 000198.

 Judgment: Affirmed.


 James R. Flaiz, Geauga County Prosecutor, and Nicholas A. Burling, Assistant
 Prosecuting Attorney, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH
 44024 (For Plaintiff-Appellee).

 Brandan E. Delay, 20545 Center Ridge Road, Suite 424, Rocky River, OH 44116 (For
 Defendant-Appellant).



THOMAS R. WRIGHT, P.J.


        {¶1}      Appellant, Ali Pascal Mahvi, appeals his convictions for illegal use of food

stamp benefits and Medicaid eligibility fraud, asserting that the state failed to present

credible evidence demonstrating that he provided false information in applying for those

benefits. We affirm.

        {¶2}      Appellant lives with his wife and three adult children in Russell Township,
Geauga County, Ohio.       Prior to 2012, his primary source of income was from two

businesses he operated and owned. The first was Exquisite Caribbean Resorts, LLC, an

entity involved in the development of a large tract of land on the island of St. Lucia.

Although Exquisite Caribbean Resorts did not own the tract, it had an interest in a

Panamanian company that owned the land. The second was Idria Energy, engaged in

the trade of petroleum products with foreign nations, including the Soviet Union.

       {¶3}   After 2012, appellant’s income from the businesses declined sharply. At

some point within the next four years, a foreclosure action was filed against his private

residence. He also had difficulty paying monthly bills associated with the home and

various business expenses.

       {¶4}   In late 2013, appellant discussed his financial problems with two men he

met at a local church, Ralph Criswell and Ronald Pollock, owners of a local insurance

agency. After learning of the extent of appellant’s financial woes, they individually agreed

to loan him money to pay his personal and business debts. Over the ensuing three years,

until August 2016, Criswell loaned appellant $92,000, and Pollock loaned him $106,000.

       {¶5}   In addition to the loans, Criswell and Pollock recommended that appellant

obtain financial assistance from the government. Consequently, in March 2014, appellant

submitted an online application for food stamps with the county’s Department of Jobs and

Family Services. Under the “real estate” part of the application, appellant listed the family

home in Russell Township and a condominium in Florida. However, he did not disclose

that his family had bank accounts.

       {¶6}   Appellant’s online application was denied. Nevertheless, approximately

one week later, a case worker at the department interviewed him. As part of the process




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of submitting a new application, appellant told the case worker that he and his family had

five bank accounts with a collective balance of approximately $700. Based upon this new

application, appellant and his family were awarded food stamps.

       {¶7}   Three months later, appellant filed a separate written application for

Medicaid coverage. His only statement as to income was that that he was self-employed

and there had been no net income from his businesses in 2014. He lists no other sources

of income. In light of this, the application for Medicaid coverage was approved.

       {¶8}   After receiving food stamps for approximately one year, appellant returned

to the county department for a redetermination interview. In answering a case worker’s

questions, appellant again referred to five bank accounts for his entire family, stating the

total funds in those accounts as less than $700.

       {¶9}   Similarly, in April 2015, appellant applied for renewal of the Medicaid

coverage. As to his income, he again asserted that he did not receive any salary or funds

from either of his two companies.

       {¶10} Appellant and his family continued to receive food stamps and Medicaid

coverage until some point in 2016. In March of that year, the county department of jobs

and family services received an anonymous tip regarding the loans appellant and his

family had been receiving during the entire two-year period.         This tip triggered an

investigation into appellant’s family finances, including the family bank accounts and his

income from the two companies.

       {¶11} The investigation culminated in a search of appellant’s family residence in

September 2016. As the search was being conducted, a department fraud investigator

interviewed appellant and his wife. It was at this point that appellant first informed the




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department that he held an interest, through Exquisite Caribbean Resorts, in the tract of

land on St. Lucia.

       {¶12} In December 2016, appellant was indicted on: one count of illegal use of

supplemental nutrition assistance program benefits, a third-degree felony under R.C.

2913.46(B); one count of Medicaid eligibility fraud, a fourth-degree felony under R.C.

2913.401(B)(1); and two counts of grand theft, fourth-degree felonies under R.C.

2913.02(A)(3). All counts allege that the benefits appellant received under both the food

stamp program and the Medicaid program had a value of between $7,500 and $150,000.

       {¶13} Appellant waived his right to a jury trial, and a two-day bench trial was held.

The court found appellant not guilty of the grand theft counts. The court also found him

not guilty of illegal use of supplemental nutrition assistance benefits, as charged, but guilty

of a lesser included fifth-degree version of the offense. As to the Medicaid eligibility fraud

count, the trial court found him not guilty as charged, but guilty of the lesser included first-

degree misdemeanor version of the offense. The court’s decision to reduce the severity

of both counts was based upon the finding that the state did not prove beyond a

reasonable doubt that the amount of benefits appellant received was $1,000 or more.

       {¶14} After conducting a sentencing hearing, appellant was sentenced to three

years community control, including 210 days in the county jail, with 180 days suspended,

and $2,750 fine.

       {¶15} Appellant assigns the following as error:

       {¶16} “[1.] The verdict in the trial court on [the illegal use count] is against the

manifest weight of the evidence.

       {¶17} “[2.] The verdict in the trial court on [the Medicaid fraud count] is against the




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manifest weight of the evidence.”

       {¶18} Under his first assignment, appellant asserts that his conviction for illegal

use of supplemental nutrition assistance benefits (i.e., food stamps) is against the

manifest weight of the evidence. The “illegal use” count was primarily predicated upon

false statements about the extent of his family’s bank accounts in applying for food

stamps. In challenging the state’s evidence, he contends that the testimony of the county

department’s employees should have been rejected as unbelievable.

       {¶19} “‘Unlike sufficiency of the evidence, manifest weight of the evidence raises

a factual issue. “The court, reviewing the entire record, weighs the evidence and all

reasonable inferences, considers the credibility of the witnesses and determines whether

in resolving conflicts in the evidence, the [trier of fact] lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered.”’ State v. Higgens, 11th Dist. No. 2005-L-215, 2006-Ohio-5372, at ¶35, citing

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541.

       {¶20} “Further, ‘[t]he discretionary power to grant a new trial should be exercised

only in the exceptional case in which the evidence weighs heavily against the conviction.’

State v. Fritts, 11th Dist. No. 2003-L-026, 2004-Ohio-3690, at ¶23, citing State v. Martin

(1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. This is so since ‘[t]he role of the

appellate court is to engage in a limited weighing of the evidence introduced at trial in

order to determine whether the state appropriately carried its burden of persuasion.’ Id.

citing Thompkins at 390, 678 N.E.2d 541 (Cook, J. concurring). ‘The reviewing court must

defer to the factual findings of the trier of fact as to the weight to be given to evidence and

the credibility of the witnesses.’ Id. citing State v. DeHass (1967), 10 Ohio St.2d 230, 227




                                              5
N.E.2d 212, paragraph one of the syllabus.” State v. McKinney, 11th Dist. Lake No. 2006-

L-169, 2007-Ohio-3389, ¶46-47.

      {¶21} Illegal use of supplemental nutrition assistance benefits is defined in R.C.

2913.46(B):

      {¶22} “(B) No individual shall knowingly possess, buy, sell, use, alter, accept, or

transfer 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.”

      {¶23} Under the plain language, this statute proscribes taking or accepting food

stamps in any manner not authorized. 7 U.S.C. 2015 delineates ineligibility for food

stamps:

      {¶24} “(a) Additional specific conditions rendering individuals ineligible

      {¶25} “In addition to meeting the standards of eligibility prescribed in section 2014

of this title, households and individuals who are members of eligible households must

also meet and comply with the specific requirements of this section to be eligible for

participation in the supplemental nutrition assistance program.

      {¶26} “(b) Fraud and misrepresentation; * * *

      {¶27} “(1) Any person who has been found by any State or Federal court or

administrative agency to have intentionally (A) made a false or misleading statement, or

misrepresented, concealed or withheld facts, * * * for the purpose of using, presenting,

transferring, acquiring, receiving, or possessing program benefits shall, immediately upon

the rendering of such determination, become ineligible for further participation in the




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program * * *.

       {¶28} “(2) Each State agency shall proceed against an individual alleged to have

engaged in such activity either by way of administrative hearings, after notice and an

opportunity for a hearing at the State level, or by referring such matters to appropriate

authorities for civil or criminal action in a court of law.”

       {¶29} In relation to the “illegal use” count, the state presented testimony and other

evidence showing that, in applying for food stamps, appellant did not disclose all of the

liquid assets at his disposal. If believed, the state’s evidence demonstrated: (1) when

appellant completed his online application, he was told that he was obligated to disclose

all bank accounts and real estate in which he and his family had an interest; (2) in his

online application and during his face-to-face interview at the county department, he only

disclosed that he and his family had five total bank accounts containing approximately

$700; (3) during its subsequent investigation of appellant’s finances, the department

found that he and his family had over ten bank accounts that contained significant amount

of funds during the two-year period; (4) in regard to real estate, appellant only cited the

family residence in Geauga County and a condominium in Florida; and (5) after the

department instituted its investigation, he admitted owning an interest in a tract of land on

St. Lucia through his company.

       {¶30} In challenging the credibility of those testifying, appellant argues that none

of the county employees were qualified to testify in relation to the bank accounts because

they did not have college degrees in forensic accounting.         However, such was not

necessary to determine the basic facts that appellant had access to more bank accounts

than he disclosed, and that those accounts contained additional undisclosed funds.




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       {¶31} As to the additional funds, appellant asserts that, even if he had disclosed

the existence of those funds to the department, he and his family still would have been

eligible for food stamps because the funds in question were from the personal loans that

he received from his two church friends. He emphasizes that funds from loans do not

constitute income for purposes of determining eligibility. But, even if true, failure to

disclose the existence of those funds renders him ineligible. 7 U.S.C. 2015(b)(1) and (2).

       {¶32} Furthermore, at trial, appellant testified that he received more than

$500,000 in loans during the two-year period, but when pressed, accounted for less than

$400,000 in loans, supporting an inference that there was approximately $100,000 in the

various bank accounts not attributable to loans.

       {¶33} Regarding the real estate on St. Lucia, appellant argues he had no duty to

disclose because he did not own the tract personally and the land had no equity due to

pending mortgages. There was evidence that, although he did not own the entire tract,

he held an interest in the land through Exquisite Caribbean Resorts, along with several

other investors. His failure to disclose renders him ineligible. 7 U.S.C. 2015(b)(1) and

(2).

       {¶34} There is ample evidence supporting the finding that, when applying for food

stamps, appellant intentionally withheld information concerning his family bank accounts

and real estate interests. The trial court did not lose its way. Appellant’s conviction for

illegal use of supplemental nutrition assistance benefits is not against the manifest weight

of the evidence, and his first assignment lacks merit.

       {¶35} Under his second assignment, appellant claims his conviction for Medicaid

eligibility fraud is also against the manifest weight of the evidence. As the grounds for




                                             8
this assignment, he relies upon the same arguments that he asserted in support of his

first assignment.

       {¶36} Medicaid eligibility fraud is defined in R.C. 2913.401(B):

       {¶37} “(B) No person shall knowingly do any of the following in an application for

enrollment in the medicaid program or in a document that requires a disclosure of assets

for the purpose of determining eligibility for the medicaid program:

       {¶38} “(1) Make or cause to be made a false or misleading statement; * * *.”

       {¶39} The state’s “Medicaid fraud” count against appellant is predicated upon the

allegation that, in filing his application for Medicaid coverage, appellant made a false

statement about his income. The state presented evidence demonstrating that: (1) as of

June 2014, appellant owned two companies, Idria Energy and Exquisite Caribbean

Resorts; (2) both entities had open bank accounts under his name; (3) in applying for

Medicaid, appellant stated that he was self-employed and that he had received no “net

income” from that employment during that year; (4) he failed to report that, as of the date

of his application, his business accounts contained more than $6,000; and (5) when

appellant applied for renewal of the coverage in April 2015, he did not report that the

company accounts had more than $13,000.

       {¶40} Appellant argues that the funds in the business accounts were from the

money he received from his two church friends as loans, and that he would often move

the funds between the various personal and business accounts so that his three children

could not access them.     As to this point, the trial court could reasonably infer that

appellant’s testimony regarding where he obtained those funds was not believable, and

that some of the funds in the business accounts stemmed from the businesses. In




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conjunction with this point, the trial court specifically found that appellant used funds from

the business accounts to pay personal and household expenses.

       {¶41} The state presented ample evidence showing that appellant made false or

misleading statements concerning his income when applying for Medicaid coverage. As

the trial court did not lose its way in considering that evidence, appellant’s conviction for

Medicaid eligibility fraud is not against the manifest weight of the evidence. Thus, his

second assignment also lacks merit.

       {¶42} The judgment of the Geauga County Court of Common Pleas is affirmed.



CYNTHIA WESTCOTT RICE, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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