[Cite as State v. Mason, 2018-Ohio-3329.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                    JUDGES:
                                                 Hon. John W. Wise, P. J.
        Plaintiff-Appellee                       Hon. Patricia A. Delaney, J.
                                                 Hon. Earle E. Wise, Jr., J.
-vs-
                                                 Case No. CT2017-0083
TROY A. MASON

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Court of Common
                                              Pleas, Case No. CR2017-0129


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                       August 17, 2018



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

D. MICHAEL HADDOX                             PATRICK T. CLARK
PROSECUTING ATTORNEY                          ASSISTANT PUBLIC DEFENDER
GERALD V. ANDERSON II                         250 East Broad Street
ASSISTANT PROSECUTOR                          Suite 1400
27 North Fifth Street, P.O. Box 189           Columbus, Ohio 43215
Zanesville, Ohio 43701
Muskingum County, Case No. CT2017-0083                                                   2

Wise, John, P. J.

      {¶1}   Defendant-Appellant Troy A. Mason appeals from his convictions, in the

Muskingum County Court of Common Pleas, on thirty-three felony counts of tampering

with records and/or forgery. Appellee is the State of Ohio. The relevant facts leading to

this appeal are as follows.

      {¶2}   Between July 2014 and December 2016, Appellant Mason was charged and

convicted in eight misdemeanor cases filed in the Zanesville Municipal Court.

Throughout the various arrest, processing, and prosecution stages of these

misdemeanor cases, appellant pretended to be his brother, Robert Mason. Appellant

accordingly signed certain complaints, jail records, affidavits, and guilty plea forms with

Robert's name. Appellant later confessed to law enforcement officials that he had used

his brother's name in this fashion.

      {¶3}   On March 29, 2017, Appellant Mason was indicted by the Muskingum

County Grand Jury on eight felony counts of tampering with records (R.C. 2913.42(A)(1))

and twenty-five felony counts of forgery (R.C. 2913.31(A)(2)). Appellant pled not guilty,

and the matter proceeded to a jury trial on August 29, 2017. Prior to going forward, the

State dismissed Count 30, one of the forgery counts.

      {¶4}   After hearing the evidence and arguments, the jury found appellant guilty of

twenty-four counts of forgery and eight counts of tampering with records. On September

8, 2017, appellant filed a Crim.R. 29(C) motion for acquittal after the verdict, which the

trial court denied via a judgment entry on September 11, 2017.

      {¶5}   At sentencing, the State and appellant stipulated to merger of offenses as

follows:
Muskingum County, Case No. CT2017-0083                                                3


            Count 1 (tampering with records) was merged with Counts 2, 3, 4, 5,

     and 6 (all forgery).

            Count 7 (tampering with records) was merged with Counts 8, 9, and

     10 (all forgery).

            Count 11 (tampering with records) was merged with Counts 12, 13,

     14, and 15 (all forgery).

            Count 16 (tampering with records) was merged with Counts 17, 18

     and 19 (all forgery).

            Count 20 (tampering with records) was merged with Counts 21, 22,

     23, 24, and 25 (all forgery).

            Count 26 (tampering with records) was merged with Counts 27 and

     28 (both forgery).

            Count 29 (tampering with records) was merged with Count 31

     (forgery).

            Count 32 (tampering with records) was merged with Count 33

     (forgery).

     {¶6}   Although the State and appellant proposed a jointly recommended

sentence of five years in prison, the trial court rejected same and ordered appellant on

October 10, 2017 to serve eight consecutive eighteen-month terms, for an aggregate

prison sentence of twelve years. A nunc pro tunc sentencing entry, correcting a

scrivener’s error, was issued on October 25, 2017.

     {¶7}   On November 9, 2017, appellant filed a notice of appeal. He herein raises

the following sole Assignment of Error:
Muskingum County, Case No. CT2017-0083                                                          4


          {¶8}   “I. THE TRIAL COURT VIOLATED TROY MASON'S RIGHT TO DUE

    PROCESS AND A FAIR TRIAL WHEN, IN THE ABSENCE OF SUFFICIENT

    EVIDENCE, IT OVERRULED HIS CRIM.R. 29(C) MOTION FOR ACQUITTAL ON

    COUNTS 1, 7, 11, 16, 20, 26, AND 32 OF THE INDICTMENT.”1

                                                     I.

          {¶9}   In his sole Assignment of Error, appellant argues the trial court erred and

    violated his rights to due process and a fair trial by overruling his motion for acquittal. We

    disagree.

          {¶10} An appellate court reviews a denial of a Crim.R. 29 motion for acquittal

    using the same standard used to review a sufficiency of the evidence claim. See State

    v. Larry, 5th Dist. Holmes No. 15CA011, 2016-Ohio-829, ¶ 20, citing State v. Carter

    (1995), 72 Ohio St.3d 545, 553, 651 N.E.2d 965, 1995–Ohio–104. Thus, “[t]he relevant

    inquiry is whether, after viewing the evidence in a light most favorable to the prosecution,

    any rational trier of fact could have found the essential elements of the crime proven

    beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492,

    paragraph two of the syllabus.

          {¶11} In the case sub judice, appellant was convicted of tampering with records

    in violation of R.C. 2913.42(A)(1), which states:

          {¶12} “No person, knowing the person has no privilege to do so, and with the

    purpose to defraud, or knowing that the person is facilitating a fraud, shall *** “[f]alsify,




1 We note appellant does not challenge the remaining count of tampering with records
(Count 29) in the text of his assigned error.
Muskingum County, Case No. CT2017-0083                                                        5


destroy, remove, conceal, alter, deface, or mutilate any writing, computer software, data,

or record.”

      {¶13} Appellant was also convicted of forgery in violation of R.C. 2913.31(A)(2),

which states:

      {¶14} “No person, with purpose to defraud, or knowing that the person is

facilitating a fraud, shall *** [f]orge any writing so that it purports to be genuine when it is

actually spurious, or to be the act of another who did not authorize the act, or to have

been executed at a time or place or with terms different from what in fact was the case,

or to be a copy of an original when no such original existed.”

      {¶15} In raising his argument as to sufficiency of the evidence, appellant does not

herein factually dispute that he repeatedly forged his brother’s signature and fraudulently

presented himself to law enforcement and court officials as charged; his present focus

is on the legislative meaning behind the tampering with records statute.

      {¶16} As a general rule, issues of statutory construction are reviewed de novo by

appellate courts. Divernuity Properties, L.L.C. v. Stark Cty. Bd. of Revision, 5th Dist.

Stark No. 2012 CA 00048, 2012-Ohio-4364, ¶ 16. It is a well-established principle of

statutory construction that a statute is to be read, to the extent practicable, to give effect

to all its parts. See Weckbacher v. Sprintcom, Inc., 5th Dist. Stark No. 2006 CA 00033,

2006-Ohio-4398, 2006 WL 2459077, ¶ 9. See, also, R.C. 1.47(B).

      {¶17} As an initial matter, appellant concedes that the Ohio Supreme Court’s

decision in State v. Brunning, 134 Ohio St.3d 438, 2012-Ohio-5752, 983 N.E.2d 316,

indicates that a person may be convicted of tampering with records pursuant to R.C.

2913.42 if he or she files a form with law enforcement containing false information with
Muskingum County, Case No. CT2017-0083                                                     6

a purpose to defraud. Id. at ¶ 32. However, appellant urges that Brunning, which involved

a convicted sex offender filing an address-verification form with a county sheriff, does

not address the issues raised herein.

      {¶18} Appellant first urges that the term “falsify” in the records tampering statute,

R.C. 2913.42(A)(1), supra, is ambiguous. He directs us to the textual canon of noscitur

a sociis, which “interprets a general term to be similar to more specific terms in a series.”

See In re R.V., 2nd Dist. No. 2009-CA-107, 190 Ohio App.3d 313, 2010-Ohio-5050, 941

N.E.2d 1216, ¶ 24. (Grady, J., dissenting). Appellant accordingly posits that the

remaining terms set forth in R.C. 2913.42(A)(1), namely “destroy,” “remove,” “conceal,”

“alter,” “deface,” and “mutilate” are indicative of acts involving an existing record or

documents, and that interpreting “falsify” to mean creating a forged document for the first

time would be inconsistent with those terms.

      {¶19} Appellant secondly asks us to consider R.C. 2913.42(A)(1) in pari materia

with R.C. 2913.31(A)(2), contending that if a person indeed "falsifies" a record by

creating one, then the two statutes in this context have identical elements, rendering one

of them surplusage.

      {¶20} Should we accept that the term “falsify” in the records tampering statute is

ambiguous, appellant urges that we apply the rule of lenity, which is codified in R.C.

2901.04(A) and generally provides that “sections of the revised Code defining offenses

or penalties shall be strictly construed against the state, and liberally construed in favor

of the accused.” See State v. Harp, 12th Dist. Clermont No. CA2016-11-072, 2017-Ohio-

9096, 91 N.E.3d 761, ¶ 14.
Muskingum County, Case No. CT2017-0083                                                    7


       {¶21} However, the principles of statutory construction also indicate that separate

terms should reasonably be given distinct meaning. See D.A.B.E., Inc. v. Toledo–Lucas

County Bd. of Health, 96 Ohio St.2d 250, 254, 2002-Ohio-4172, 773 N.E.2d 536 (stating

“all words [in a statute] should have effect and no part should be disregarded”). The term

“falsify” has been commonly defined as “to state untruthfully or alter in order to deceive.”

Dept. of Pub. Safety v. Garrett, 4th Dist. Ross No. 94-CA-2031, 1995 WL 363248, citing

The American Heritage Dictionary, 1976. As the State aptly argues in its response

herein, if “falsify” in the records tampering statute (R.C. 2913.42(A)(1)) was legislatively

intended to mean only the act of “alter[ing]” an existing document or record, then one

statutory term would be unnecessary and would have to be disregarded. Because the

General Assembly did include the distinct prohibition against falsifying under R.C.

2913.42(A)(1), we find that appellant’s acts of untruthfully using his brother’s name on

official documents were sufficient to effect the violations of the records tampering statute

as charged.

       {¶22} Accordingly, appellant's sole Assignment of Error is overruled.

       {¶23} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Muskingum County, Ohio, is hereby affirmed.

By: Wise, John, P. J.
Delaney, J., and
Wise, Earle, J., concur.

.
JWW/d 0731
