[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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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.
{¶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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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.
{¶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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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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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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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.
{¶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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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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{¶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
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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.
PRESTON and WILLAMOWSKI, J.J., confirm.
/jnc
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