[Cite as State v. Balo, 2011-Ohio-3341.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY



STATE OF OHIO,                                            CASE NO. 1-10-48

   PLAINTIFF-APPELLEE,

  v.

CRYSTAL BALO,                                                   OPINION

   DEFENDANT-APPELLANT.



                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR2009 0296

                                      Judgment Affirmed

                               Date of Decision: July 5, 2011




APPEARANCES:

        F. Stephen Chamberlain for Appellant

        Jana Emerick for Appellee
Case No. 1-10-48




ROGERS, P.J.

       {¶1} Defendant-Appellant, Crystal Balo, appeals from the judgment of the

Court of Common Pleas of Allen County sentencing her to a three-year term of

community control, and ordering her to pay $2,974.32 in restitution to Anthem

Blue Cross/Blue Shield (“Anthem”). On appeal, Crystal contends that she was

incorrectly indicted, that the trial court erred in failing to grant her motion to

dismiss the indictment, and that her conviction was against the manifest weight of

the evidence. Based on the following, we affirm the judgment of the trial court.

       {¶2} In September 2009, the Allen County Grand Jury indicted Crystal on

one count of insurance fraud in violation of R.C. 2913.47(B)(1),(C), a felony of

the fourth degree. In response, Crystal entered a written plea of not guilty to count

one of the indictment (“original indictment”), and subsequently filed a request for

a bill of particulars.

       {¶3} In October 2009, the Allen County Grand Jury returned an amended

indictment charging Crystal on one count of grand theft by deception in violation

of R.C. 2913.02(A)(3),(B)(2), a felony of the fourth degree.        The indictment

(“amended indictment”) stated in pertinent part:

       Crystal D. Balo, whose real and true name is to the Grand Jury
       unknown

       did, with purpose to deprive the owner of property or services,
       knowingly obtain or exert control over either the property or

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         services by deception; said theft having been committed through
         a series of theft offenses in the offender’s same employment,
         capacity, or relationship to another and the aggregate value of
         all property and services involved in all offenses in the series
         being five thousand ($5,000.00) dollars or more;

         in violation of the Ohio Revised Code Section
         2913.02(A)(3),(B)(2), a felony of the 4th degree, and against the
         peace and dignity of the State of Ohio.

Subsequently, the State entered a nolle prosequi on the original count of insurance

fraud.

         {¶4} In February 2010, the State filed the bill of particulars. The bill of

particulars stated in pertinent part:

         As to the sole count of the Amended Indictment: beginning on
         approximately January 1, 2004, when the defendant’s brother,
         Richard Roby, became ineligible for coverage through the
         defendant’s health insurance, and continuing until the time
         defendant’s employment with Allen County was terminated in
         approximately September 2009, the defendant knowingly aided
         and abetted Richard Roby and/or Steven Balo in obtaining
         property or services, to-wit: health insurance (including
         prescription and vision coverage) benefits, and did so by
         deception, through failing to provide defendant’s employer
         and/or Anthem insurance company with the information that
         Richard Roby and/or Steven Balo were no longer eligible for
         health insurance coverage, and did so with purpose to deprive
         the insurance company of the value of said coverage deceptively
         obtained or retained and the value of benefits actually paid,
         which in the aggregate total over $5,000.00.

         {¶5} In March 2010, Crystal filed a motion to dismiss the amended

indictment on grounds that the indictment, as well as the accompanying bill of

particulars, was vague. Specifically, Crystal argued that the State should have set


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forth each instance of theft, rather than simply referring to the instances as “a

series of theft offenses,” pursuant to R.C. 2913.61(C)(1).

       {¶6} The State responded to Crystal’s motion to dismiss, arguing that the

amended indictment, as well as the bill of particulars, was sufficient to inform

Crystal of the precise nature of the offense. The State also argued that Crystal was

sufficiently informed of each instance of theft via discovery filed by the State.

       {¶7} On March 31, 2010, the trial court filed an order overruling Crystal’s

motion to dismiss. Despite this order, the trial court held a hearing on Crystal’s

motion to dismiss on April 1, 2010.            Based upon additional evidence and

arguments proffered by Crystal during the hearing, the trial court vacated its

original order denying Crystal’s motion to dismiss the indictment. In so doing the

trial court requested supplemental briefs from Crystal and the State.

       {¶8} In her supplemental brief, Crystal argued that the indictment and bill

of particulars were insufficient to put her on notice of the pending charge. First,

Crystal argued that the State should have set forth each instance of theft, rather

than simply referring to the instances as “a series of theft offenses.” Second,

Crystal argued that the language within the amended indictment conflicted with

the language within the bill of particulars. Specifically, Crystal argued that the

amended indictment contained verbiage indicating that there was only one victim,

whereas the bill of particulars contained verbiage indicating that there were

multiple victims.

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       {¶9} In response, the State argued that the amended indictment tracked the

language of the statute Crystal allegedly violated. The State also argued that the

verbiage contained within the bill of particulars did not indicate that there were

multiple victims, but rather described the means by which Crystal’s ex-husband,

Steven Balo, and brother, Richard Roby, committed the target offense.

       {¶10} The trial court, again, overruled Crystal’s motion to dismiss the

indictment, stating in pertinent part:

       The “Amended” Indictment clearly states that the Defendant is
       charged with a series of theft offenses and that there is a single
       victim.

       The Bill of Particulars puts Defendant on notice that the basis of
       the charge is that she deceptively failed to notify her employer or
       health insurance company that Richard Roby and/or Steven
       Balo were no longer eligible for insurance coverage and, in doing
       so, she aided and abetted Richard Roby and/or Steven Balo in
       stealing health insurance coverage and benefits.

       The Court finds that the Bill of Particulars does not reflect the
       fact that there are multiple victims, which, if true, would be in
       conflict with the charging indictment.

       The Court further finds that the Defendant has been provided
       proper notice of the charges against her and the Bill of
       Particulars (not in conflict with the “Amended” Indictment) is
       sufficient to put her on notice as to the conduct constituting the
       crime.

       Order Overruling Motion to Dismiss Amended Indictment, p. 4.

       {¶11} In May 2010, the matter proceeded to a bench trial, during which the

following facts and testimony were adduced.


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       {¶12} Sometime prior to January 1, 2004, Allen County contracted with

ACMG, Inc. (“ACMG”) to provide health insurance to its employees. On January

1, 2004, Allen County discontinued its relationship with ACMG and became an

active member of the County Employee Benefits Consortium of Ohio

(“CEBCO”). CEBCO, acting as a representative for multiple member counties,

contracts with Anthem to provide health insurance to the employees of member

counties.

       {¶13} As a member of CEBCO, every Allen County employee is required

to complete a new insurance enrollment form detailing, inter alia, the employee’s

name, address, social security number, the employee’s dependents, the

dependents’ birthdates, and whether they want to be part of the single, two-party,

or family plan.    Under the insurance plan an employee’s spouse, biological

children, step-children, adopted children, and those who are in the legal custody of

the employee qualify as dependents, and are eligible to receive benefits under the

insurance plan. Once the enrollment form is completed the data is entered into

Benefit Solver, a computer program provided by CEBCO. Benefit Solver contains

the employee’s name, birthdate, social security number, as well as the names of

the employee’s dependents and their birthdates.

       {¶14} Under the insurance plan, the employee is responsible for notifying

the employer of any changes that would affect him/her or his/her dependents’

eligibility. A dependent child’s eligibility terminates either at the end of the

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calendar year in which they turn nineteen-years (19) old, or at the end of the

calendar year in which the child turns twenty-five (25) years old if the child

qualifies as a federal tax exemption. A dependent spouse’s eligibility terminates

upon death or divorce. If the employee’s spouse becomes ineligible as a result of

a divorce, then the employee must submit a copy of the divorce decree to its

employer.

      {¶15} When a change occurs that affects the benefits of an employee or

his/her dependents, Allen County requires the employee to submit a Change Form.

These forms are provided by CEBCO and are located in every Allen County

department. The Change Form is primarily used to designate new dependents or

dependents who are no longer eligible to receive benefits. Once the Change Form

has been completed the employee submits it to his/her departmental supervisor.

The Change Form is then forwarded to Allen County’s Benefits Coordinator, who

works in the Allen County Commissioner’s Office (“Commissioner’s Office”).

The benefits coordinator enters the Change Form’s information into Benefit

Solver. The information is then uploaded to CEBCO and Anthem. After entering

the information into Benefit Solver the benefits coordinator places the original

Change Form in the department’s insurance file, which is kept in the benefit

coordinator’s custody.

      {¶16} In 2002, Crystal began full-time employment with Allen County as

its Benefits Coordinator. In her capacity as Benefits Coordinator Crystal was

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responsible for administering Allen County’s insurance plan, which included

enrolling employees in the insurance plan, receiving Change Forms, entering

changes in Benefit Solver, and submitting the changes to the insurance company.

In November 2003, in anticipation of the health insurance changeover from

ACMG to CEBCO, Crystal submitted an enrollment form to secure health

insurance for herself and her dependents. Crystal listed Steven, her husband at the

time, Roby, her brother of whom she had custody at the time, and her daughter as

dependents.   Because Crystal was the subscriber she received explanation of

benefit forms (“EOB’s”) from Anthem, detailing the care she or her dependents

received. All EOB’s were mailed, via ordinary mail, to Crystal’s residence.

      {¶17} In early 2006, Crystal took a position in the Allen County Auditor’s

Office (“Auditor’s Office”). In her stead, Nicole Ward became the new Benefits

Coordinator for Allen County. In March 2009, Ward began an audit of Allen

County’s health insurance plan. The initial focus of the audit was to determine the

eligibility of dependents, specifically those between the ages of nineteen and

twenty-five years old, listed on an employee’s insurance plan. Ward sent an e-

mail to the head of each department in Allen County requesting that their

employees complete a Dependent Verification Form (“Verification Form”). In the

meantime, Ward enlisted the help of her supervisor, Rebecca Saine, the Allen

County Administrator. Saine accessed Benefit Solver and generated a list of

employees whose dependents were over the age of nineteen. As the Verification

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Forms were returned, Ward and Saine cross-referenced the Verification Forms

with Saine’s list. Despite having not received a Verification Form from Crystal,

Saine noticed that Crystal listed Steven as a dependent spouse. This discovery

caused further investigation into Crystal’s insurance file, because Saine knew that

Crystal and Steven divorced in 2006. In addition to Steven, Crystal maintained

Roby as a dependent under her insurance plan, despite the fact that Roby, at that

point in time, was twenty-four years old.1 Upon review of Crystal’s insurance file

the only documents contained therein were Crystal’s ACMG enrollment form

from 2002, which listed Steven and Roby as dependents; Crystal’s CEBCO

enrollment form, dated November 2003, which listed Steven and Roby as

dependents; and a Change Form, dated November 2004, adding Crystal’s newborn

daughter to her insurance plan.              Crystal’s insurance file did not contain any

Change Forms pertaining to Steven or Roby, nor did it contain a divorce decree.

        {¶18} In April 2009, Ward personally delivered a letter to Crystal

requesting her to complete a Verification Form. On that same day Crystal left

Ward a voicemail. Saine transcribed the voicemail, and the same was read into the

record. The transcription read in pertinent part:

        Hey, Nicole, this is Crystal in the Auditor’s Office. Hey, I got
        your letter today about the dependent verification on my brother
        that I had custody of. He was canceled off of the plan, well,
        should have been cancelled off the plan like three (3) or four (4)

1
 There was no evidence that Roby qualified as an IRS dependent, thus he should have been removed from
Crystal’s insurance at the end of the calendar year in which he turned nineteen-years old, a fact Crystal
seemingly concedes in her voicemail to Ward.

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Case No. 1-10-48


      years ago. There shouldn’t be any activity for him because he
      hasn’t been on the plan for, like I said, it’s been – well, he’s 24.
      So, I cancelled him when he was 19 because I had custody of him
      up until – well, I had custody of him till he was 18. So I don’t
      know if you want me to fill this form out or what you want me to
      do, but he should not be on the plan. Um, and like I said, there
      shouldn’t be anything submitted for him. * * *

      {¶19} After listening to the voicemail Saine contacted Juergen Waldick, the

Allen County Prosecutor, about her findings. Prosecutor Waldick instructed her to

inform Rhonda Eddy, the Allen County Auditor, of her findings and then meet

with him to discuss the matter.

      {¶20} Lieutenant Clyde Breitigan, a detective with the Allen County

Sheriff’s Department, began an investigation of the matter in May 2009. During

Lieutenant Breitigan’s investigation he spoke with Crystal several times. During

one of their conversations Crystal stated that she had a copy of a Change Form

removing Steven and Roby from her insurance plan. Crystal called the Auditor’s

Office, and asked Anthony Stechschulte, Director of Accounting in the Auditor’s

Office, to look for the Change Form in her payroll file. Stechschulte found the

Change Form in Crystal’s payroll file. Later that same day Lieutenant Breitigan

went to the Auditor’s Office to obtain a copy of the Change Form.

      {¶21} Stechschulte testified that the Change Form he found in Crystal’s

payroll file had six roller marks near the bottom of the page. Stechschulte further

testified that the roller marks were likely caused by the copier in the Auditor’s

Office, which had been purchased in 2008. The copier started to make the marks

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in the spring of 2009, a phenomenon that the Auditor’s Office previous copier did

not share. Stechschulte continued that he placed a blank piece of paper through

the copier to determine whether the roller marks would appear. The six roller

marks did appear and the marks matched those on the Change Form Stechschulte

found in Crystal’s payroll file.

       {¶22} Carrie Lucas, a claims manager at Anthem, testified that Anthem

paid out $5,727.52 in claims for Steven, and $2,974.32 in claims for Roby, after

they became ineligible to receive benefits under Crystal’s insurance plan.

       {¶23} Subsequently, the trial court found Crystal guilty of grand theft by

deception.

       {¶24} In June 2010, the matter proceeded to sentencing. The trial court

sentenced Crystal to a three-year term of community control. The trial court

further ordered Crystal to pay $2,974.32 in restitution to Anthem.

       {¶25} It is from this judgment Crystal appeals, presenting the following

assignments of error for our review.

                                   Assignment of Error No. I

       THE DEFENDANT WAS INCORRECTLY INDICTED IN
       THIS CASE THEREBY MAKING THE CONVICTION VOID.

                                   Assignment of Error No. II

       THE TRIAL COURT ERRED BY FAILING TO GRANT THE
       DEFENDANT’S MOTION TO DISMISS.



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                              Assignment of Error No. III

      THE DEFENDANT’S CONVICTION WAS AGAINST THE
      MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT
      TRIAL.

                            Assignment of Error No. I

      {¶26} In her first assignment of error, Crystal contends that she was

improperly indicted. Specifically, Crystal contends that she should have been

indicted for insurance fraud, rather than theft by deception, because the more

specific statutory provision, insurance fraud, must take precedence over the more

general statutory provision, theft by deception. We disagree.

      {¶27} Crystal contends that she was improperly indicted for theft by

deception, pursuant to R.C. 2913.02(A)(3). Citing State v. Volpe (1988), 38 Ohio

St.3d 191, Crystal contends that the State’s original indictment alleging insurance

fraud was proper, as the facts of the case revolved around allegedly fraudulent

insurance claims. Consequently, Crystal contends that her conviction under R.C.

2913.02(A)(3) is void.

      {¶28} In Volpe, defendants were caught with betting machines and

convicted of possessing criminal tools. The defendants, citing R.C. 1.51, argued

that they should have been charged under the more specific prohibition, R.C.




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2915.02(A)(5), which outlaws possession of gambling machines.2 A unanimous

Supreme Court agreed, reasoning:

         “Given that the General Assembly clearly enacted R.C.
         2915.02(A)(5) to reach criminal possession and control of a
         gambling device and classified such conduct as a misdemeanor
         of the first degree under R.C. 2915.02(F), we hold that R.C.
         2923.24, a general statute prohibiting possession and control of
         criminal tools and classifying such conduct as a fourth degree
         felony, cannot be used to charge and convict a person of
         possessing and controlling a gambling device. * * * ”

Volpe, 38 Ohio St.3d at 194.

         {¶29} We find the present case is distinguishable from Volpe, in that

Crystal, unlike the defendants in Volpe, could not have been convicted of the

specific offense. The Revised Code defines insurance fraud as follows:

         (B) No person, with purpose to defraud or knowing that the
         person is facilitating a fraud, shall do either of the following:

         (1)    Present to, or cause to be presented to, an insurer any
         written or oral statement that is part of, or in support of, an
         application for insurance, a claim for payment pursuant to a
         policy, or a claim for any other benefit pursuant to a policy,
         knowing that the statement, or any part of the statement, is false
         or deceptive;

         (2)    Assist, aid, abet, solicit, procure, or conspire with another
         to prepare or make any written or oral statement that is intended
         to be presented to an insurer as part of, or in support of, an
         application for insurance, a claim for payment pursuant to a
         policy, or a claim for any other benefit pursuant to a policy,

2
  R.C. 1.51 reads: “If a general provision conflicts with a special or local provision, they shall be construed,
if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special
or local provision prevails as an exception to the general provision, unless the general provision is the later
adoption and the manifest intent is that the general provision prevail.”


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Case No. 1-10-48


       knowing that the statement, or any part of the statement, is false
       or deceptive.

R.C. 2913.47(B)(1), (2) (Emphasis Added). Pursuant to the foregoing language,

the State, in order to prove insurance fraud, must prove that the defendant, or an

individual conspiring with the defendant, presented, prepared, or made a “written

or oral statement” to the insurer. R.C. 2913.47 defines ‘statement’ as:

       [I]nclud[ing], but is not limited to, any notice, letter, or
       memorandum; proof of loss; bill of lading; receipt for payment;
       invoice, account, or other financial statement; estimate of
       property damage; bill for services; diagnosis or prognosis;
       prescription; hospital, medical, or dental chart or other record;
       x-ray, photograph, videotape, or movie film; test result; other
       evidence of loss, injury, or expense; computer-generated
       document; and data in any form.

R.C. 2913.47(A)(5). Having considered the foregoing definition, we find that a

statement, whether oral or written, can only be made through an affirmative act,

not an omission or failure to act.

       {¶30} Turning to the facts of the case, we find that the only statement

Crystal made to her employer, to CEBCO, or to Anthem occurred in November

2003, when she submitted her enrollment form. The enrollment form listed Steven

and Roby as dependents. It is undisputed that Steven and Roby were eligible to

receive benefits at the time Crystal submitted the enrollment form. Subsequently,

however, Crystal never made any oral or written statements to her employer, to

CEBCO, or to Anthem concerning Roby’s and Steven’s ineligibility. As the State

correctly noted during oral arguments, Crystal’s inaction could not constitute

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insurance fraud, as no oral or written statements were made to the insurer.

Consequently, we find that the State was not required to charge Crystal with

violating a law she, through her inaction, could not have violated.

       {¶31} Theft by deception, unlike insurance fraud, does not require an oral

or written statement. Rather, it simply requires the theft to be committed via

‘deception,’ which is defined as “knowingly deceiving another or causing another

to be deceived by * * * withholding information, by preventing another from

acquiring information, or by any other * * * omission that creates, confirms, or

perpetuates a false impression in another * * *.” R.C. 2913.01(A). In light of this

definition, the remaining elements of theft by deception, and the facts of the case

at bar, we find that the State’s amended indictment was proper.

       {¶32} Accordingly, we overrule Crystal’s first assignment of error.

                                 Assignment of Error No. II

       {¶33} In her second assignment or error, Crystal contends that the trial

court erred in denying her motion to dismiss the amended indictment.

Specifically, Crystal contends that the amended indictment failed to identify each

instance of theft, the date of each theft, the requisite culpability for each theft, the

value of each theft, and how the owner was deprived of property or services in

each theft. We disagree.

       {¶34} Although Crystal only assigns error to the trial court’s denial of her

motion to dismiss the amended indictment, her assignment appears to also

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challenge the propriety of the bill of particulars. Accordingly, we will discuss the

sufficiency of the amended indictment and the bill of particulars.

                             Motion to Dismiss an Indictment

       {¶35} “The [sufficiency] of an indictment is a question of law, requiring a

de novo review.” State v. Reinhart, 3d Dist. No. 15-06-07, 2007-Ohio-2284, ¶12,

quoting State v. Hernon, 9th Dist. No. 2933-M, 2000 WL 14009, citing State v.

Smoot, 2nd Dist. No. 96-CA-107, 1997 WL 432225. A motion to dismiss charges

in an indictment tests the sufficiency of the indictment, without regard to the

quantity or quality of evidence that may be produced by either the State or the

defendant. State v. Eppinger, 162 Ohio App.3d 795, 2005-Ohio-4155, ¶37, citing

State v. Patterson (1989), 63 Ohio App.3d 91, 95.         A reviewing court must

examine the face of the charging instrument to determine its sufficiency. See State

v. Egler, 3d Dist. No. 4-07-22, 2008-Ohio-4053, ¶14; State v. Desote, 3d Dist.

Nos. 12-03-05, 09, 2003-Ohio-6311, ¶8, quoting Patterson, 63 Ohio App.3d at 95;

Eppinger, 2005-Ohio-4155, at ¶37. Pursuant to Crim.R. 7(B), an indictment or

information:

       [M]ay be made in ordinary and concise language without
       technical averments or allegations not essential to be proved.
       The statement may be in the words of the applicable section of
       the statute, provided the words of that statute charge an offense,
       or in words sufficient to give the defendant notice of all the
       elements of the offense with which the defendant is charged.
       (Emphasis Added).



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       {¶36} If the indictment “contains the elements of the offense charged and

fairly informs a defendant of the charge against which he must defend, and * * *

enables him [or her] to plead an acquittal or conviction in bar of future

prosecutions for the same offense,” it will satisfy federal and state constitutional

requirements. State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, ¶9, quoting

State v. Childs, 88 Ohio St.3d 558, 564-65, 2000-Ohio-425, quoting Hamling v.

United States (1974), 418 U.S. 87, 117-118. Generally, an indictment is sufficient

if it recites the language of the relevant criminal statute. State v. Siferd, 151 Ohio

App.3d 103, 2002-Ohio-6801, ¶22, citing State v. Childs, 88 Ohio St.3d 194, 198,

2000-Ohio-298. The indictment must also “state the numerical designation of the

statute that the defendant is alleged to have violated.” Siferd, 2002-Ohio-6801, at

¶22, quoting Crim.R. 7(B).

       {¶37} Here, Crystal was indicted with one count of theft by deception. The

offense of theft by deception reads in pertinent part:

       (A) No person, with purpose to deprive the owner of property
       or services, shall knowingly obtain or exert control over either
       the property or services in any of the following ways:

       ***

       (3) By deception

R.C. 2913.02(A)(3). Where there have been multiple theft offenses perpetrated in

the offender’s employment, R.C. 2913.61(C)(1) requires the State to try all of the

offenses as a single offense. R.C. 2913.61(C)(1) provides in pertinent part:

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Case No. 1-10-48


        When a series of offenses under section 2913.02 of the Revised Code, or
        a series of violations of, attempts to commit a violation of, conspiracies
        to violate, or complicity in violation of * * * section 2913.02 * * * of the
        Revised Code * * * is committed by the offender in the offender's same
        employment, capacity, or relationship to another, all of those offenses
        shall be tried as a single offense. The value of the property or services
        involved in the series of offenses for the purpose of determining the
        value as required by division (A) of this section is the aggregate value
        of all property and services involved in all offenses in the series.
        (Emphasis Added).

        {¶38} Upon review of the amended indictment, it is clear that the language

contained therein tracks the language of R.C. 2913.02(A)(3), the charged offense,

as well as R.C. 2913.61(C)(1), which modifies the manner in which the State must

try the case.        Furthermore, the amended indictment contains the numerical

designation of the statute which Crystal allegedly violated. Accordingly, we find

that, on its face, the indictment was sufficient.

        {¶39} Crystal contends that the indictment was insufficient because the

State failed to identify each theft offense and the value of those offenses.3 R.C.

2913.61(C)(1) requires the State to charge multiple theft offenses under R.C.

2913.02 as a single offense, and to aggregate the value of the property or services




3
  We find Crystal’s contention that the indictment should have contained the date of each offense is
subsumed by her contention that the indictment should have enumerated each instance of theft by
deception. See State v. Gingell (1982), 7 Ohio App.3d 364, 367 (The exact dates and times of when the
offenses allegedly occurred are not generally required in the indictment, as it is usually irrelevant to the
preparation of a defense.); State v. Sellards (1985), 17 Ohio St.3d 169, 171.

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associated with each theft.4 R.C. 2913.61(C)(1). According to the plain language

of this provision the State is not required to list each instance of theft in the

indictment, nor is the State required to list the value of each piece of property or

instance of service that was alleged to have been obtained through deception.

Instead, the State only needs to identify the multiple theft offenses as a “series of

theft offenses,” and identify the aggregate value of the property or services

obtained via deception. See R.C. 2913.61(C)(4). Furthermore, since the State, in

the case at bar, must try multiple theft offenses as a single offense, it stands to

reason that the State only needs to identify the requisite culpability (i.e.,

purposefully), and how the owner was deprived of the property or services (i.e.,

deceptively) once in the amended indictment, which it did.

         {¶40} Crystal further contends that the amended indictment’s use of

“series of theft offenses” rather than enumerating each instance of theft, left her to

speculate as to which theft offense she allegedly committed.5 We disagree. The

amended indictment included the numerical designation of theft by deception, as

required by Crim.R. 7(B). We find that the presence of this numerical designation

4
  Although not directly addressed in Crystal’s appellate brief, Crystal does revisit her contention that the
bill of particulars is in conflict with the indictment. Particularly, Crystal contends that the bill of particulars
alleges that there were multiple victims, whereas the indictment alleges one victim. The trial court
disagreed, and so do we. The bill of particulars states in pertinent part that Crystal “did * * * with purpose
to deprive the insurance company of the value of said coverage.” (Emphasis Added). From this language it
is clear that the bill of particulars identifies only one victim, the insurance company. Accordingly, pursuant
to R.C. 2913.61(C)(1), the State must aggregate and try the individual theft offenses as a single theft
offense. See State v. Crish, 3d. Dist. No. 1-08-13, 2008-Ohio-5196.
5
  Pursuant to R.C. 2913.01(K), ‘theft offense’ is defined to encompass many offenses including, but not
limited to, theft by deception (R.C. 2913.02(A)(3)), Medicaid fraud (R.C. 2913.40), passing bad checks
(R.C. 2913.11), misuse of credit cards (R.C. 2913.21), insurance fraud (R.C. 2913.47), and receiving stolen
property (R.C. 2913.51).

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is sufficient to dispel any speculation as to which theft offense Crystal allegedly

committed.

       {¶41} In light of the foregoing, we find that the trial court did not err when

it denied Crystal’s motion to dismiss the amended indictment, as the amended

indictment was sufficient.

                                 Bill of Particulars

       {¶42} Where the indictment fails to fully inform the defendant of the

offense with which he or she is charged, the defendant is entitled to a bill of

particulars. State v. Crish, 3d. Dist. No. 1-08-13, 2008-Ohio-5196, ¶17, State v.

Brown (1993), 90 Ohio App.3d 674, 681. “Pursuant to Crim.R. 7(E), a bill of

particulars shall set forth the ‘nature of the offense charged and the conduct of the

defendant alleged to constitute the offense.’ ” State v. Miniard, 4th Dist. No.

04CA1, 2004-Ohio-5352, ¶21. “The purpose of a bill of particulars is not to

provide the defendant with specifications of the evidence or to serve as a substitute

for discovery; rather, the purpose of a bill of particulars is to ‘elucidate or

particularize the conduct of the accused.’ ” State v. Latorres, 11th Dist. Nos. 2000-

A-0060, 0062, 2001 WL 901045, quoting State v. Lawrinson (1990), 49 Ohio

St.3d 238, 239. A bill of particulars need not include information that is within the

knowledge of the defendant or information that a defendant could discover with

due diligence.   State v. Sessler, 3d Dist. No. 3-06-23, 2007-Ohio-4931, ¶11,

quoting Miniard, 2004-Ohio-5352, at ¶23. Additionally, a bill of particulars need

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Case No. 1-10-48


not be precise, but rather “need only be directed toward the conduct of the accused

as it is understood by the [S]tate to have occurred.” Gingell, 7 Ohio App.3d at

367.

        {¶43} Crystal contends that the bill of particulars was not helpful because it

did not adequately particularize the conduct which constituted theft by deception.

We disagree.       Upon review of the bill of particulars we find that the State

sufficiently expounded upon the nature of the offense and the conduct which gave

rise to the offense. In the bill of particulars Crystal first learns that she is being

charged as an accomplice to theft by deception,6 that the thefts occurred between

January 2004 and September 2009, that Steven and Roby were the principal

offenders, that she aided them in obtaining health insurance benefits (i.e., services)

to which they were not entitled, that her deception was the result of her failure to

provide Allen County or Anthem with information that Steven and Roby were no

longer eligible to receive benefits, and that as a result of her deceptive omission

she deprived Anthem of an aggregate total of over $5,000.00.                     Although the

foregoing information does not particularize every instance of theft, as Crystal

contends it should, we find that the bill of particulars meets the parameters of

Crim.R. 7(E). Any remaining information, such as the dates and values of each

instance of theft, were discoverable.           In fact, the record reveals that Crystal,

through discovery, obtained all of the EOB forms, which contained the dates and
6
  Although Crystal was an accomplice to theft by deception, she may be indicted and convicted as a
principal. R.C. 2923.03(F).

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Case No. 1-10-48


values of each alleged theft, police reports, as well as other relevant information in

the State’s custody. In light of the foregoing, we find that Crystal’s contentions

pertaining to the inadequacy of the bill of particulars are without merit.

        {¶44} Having found that the indictment and bill of particulars were

sufficient, we overrule Crystal’s second assignment of error.

                                       Assignment of Error No. III

        {¶45} In her third assignment of error, Crystal contends that her conviction

was against the manifest weight of the evidence. Specifically, Crystal contends

that Stechschulte’s testimony concerning the roller marks was inadmissible “junk

science,” which caused the trier of fact to lose its way. Crystal further contends

that it was improper to indict her criminally, when the issue was civil in nature.7

We disagree on both accounts.

        {¶46} When an appellate court analyzes a conviction under the manifest

weight standard it must review the entire record, weigh all of the evidence and all

of the reasonable inferences, consider the credibility of the witnesses, and

determine whether, in resolving conflicts in the evidence, the fact finder clearly

lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380,

387, 1997-Ohio-52, superseded by constitutional amendment on other grounds as


7
  Although this contention is based in policy, and has nothing to do with the manifest weight of the
evidence, we will discuss it under the third assignment of error, but apart from Crystal’s contention that
Stechschulte’s testimony concerning the roller marks caused the trier of fact to lose its way.

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Case No. 1-10-48


stated by State v. Smith, 80 Ohio St.3d 89, 1997-Ohio-335, quoting State v. Martin

(1983), 20 Ohio App.3d 172, 175. Only in exceptional cases, where the evidence

“weighs heavily against the conviction,” should an appellate court overturn the

trial court’s judgment. Id.

                                    Roller Mark Evidence

       {¶47} Crystal contends that Stechschulte’s testimony concerning the roller

marks on the bottom of the Change Form found in the Auditor’s Office was

inadmissible.    Specifically, Crystal contends that Stechschulte’s test print to

determine whether the copier made roller marks that matched those on the Change

Form was tantamount to inadmissible “junk science.” We disagree.

       {¶48} We begin by noting that Crystal did not object to the admissibility of

Stechschulte’s testimony concerning the test print. Accordingly, we review for

plain error. In order to have plain error under Crim.R. 52(B) there must be an

error, the error must be an “obvious” defect in the trial proceedings, and the error

must have affected “substantial rights.” State v. Barnes, 94 Ohio St.3d 21, 27,

2002-Ohio-68. Plain error is to be used “with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.”

Id. Plain error exists only in the event that it can be said that “but for the error, the

outcome of the trial would clearly have been otherwise.” State v. Biros, 78 Ohio

St.3d 426, 431, 1997-Ohio-204; see State v. Johnson, 3d Dist. No. 2-98-39, 1999-

Ohio-825.

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Case No. 1-10-48


      {¶49} Upon reviewing the record, we find that the trial court’s admission of

Stechschulte’s testimony concerning the test print was not plain error. Although

Crystal baldly contends that Stechschulte’s testimony was scientific in nature, we

find nothing scientific about Stechschulte’s test print and subsequent comparison

of the Change Form and test page. Any individual of average intelligence could

have performed the comparison that Stechschulte performed. See State v. Smith,

97 Ohio St.3d 367, 2002-Ohio-6659, ¶40 (doctors’ comments on similarity of

weave-pattern on victim’s face and victim’s cushion were not elicited as expert

testimony but were instead made in his capacity as a lay witnesses); State v. Jells

(1990), 53 Ohio St.3d 22, 28-29 (police officer’s testimony on footprint

comparisons admissible as lay opinion).           What is essential is whether

Stechschulte’s testimony was based on personal knowledge. Here, there is no

doubt that Stechschulte possessed personal knowledge about the comparison, as he

was the individual who conducted the comparison. In light of the foregoing, we

find that Stechschulte’s testimony concerning his comparison of the Change Form

and test page was properly admitted.

      {¶50} Moreover, had we found that Stechschulte’s testimony concerning

the test print was inadmissible, there was other competent, credible evidence

tending to prove that the Change Form was a recent creation.           Stechschulte

testified that the copier located in the Auditor’s Office was obtained in 2008; that

the previous copier did not make roller marks on the paper; that the present copier

                                       -24-
Case No. 1-10-48


began to make roller marks on the paper in early 2009; and, that the Change Form

had roller marks on it similar to those made by the present copier. Alone, this

testimony provided sufficient basis for the trier of fact to determine whether the

Change Form was a recent creation. Consequently, we do not find that the trier of

fact lost its way.

       {¶51} Accordingly, we find that Crystal’s conviction was not against the

manifest weight of the evidence.

                             Civil Action versus Criminal Action

       {¶52} Crystal contends that it was improper to indict her criminally, when

the issue was civil in nature. We disagree.

       {¶53} In support of her contention Crystal cites R.C. 2901.03(A), which

reads: “No conduct constitutes a criminal offense against the state unless it is

defined as an offense in the Revised Code.” By citing this provision, Crystal

seemingly contends that her actions do not constitute a crime, and thus she could

not be criminally liable. We disagree. Upon review of the record we find that the

evidence presented at trial was sufficient for the trier of fact to conclude that

Crystal’s inaction and the consequences of that inaction met the elements of theft

by deception.        Consequently, Crystal was properly charged with a criminal

offense.

       {¶54} Accordingly, we overrule Crystal’s third assignment of error.



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       {¶55} Having found no error prejudicial to Crystal herein, in the particulars

assigned and argued, we affirm the judgment of the trial court.

                                                                  Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., confirm.

/jnc




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