[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
