State v. Cooper

585 N.E.2d 868, 66 Ohio App. 3d 551, 4 Ohio App. Unrep. 105

• Court: Ohio Court of Appeals
• Decided: June 1, 1990
• Docket: No. 1596.
• Status: Published

Opinions

ABELE, P. J.

This is an appeal from a Ross County Common Pleas Court judgment convicting appellant of theft in violation of R.C. 2913.02. Appellant moved to dismiss the indictment on the grounds he should have been charged with the crime of falsification under R.C. 2921.13(A) (4) instead of the crime of theft. After the court overruled the motion, appellant changed his plea to no contest.

We affirm.

ASSIGNMENT OF ERROR

"FALSIFICATION, R.C. 2921.13(A)(4), IS A SPECIFIC STATUTE IRRECONCILABLE WITH THE GENERAL THEFT STATUTE, R.C. 2901.02, IN REGARD TO THE RECEIPT OF WELFARE BENEFITS BY MEANS OF A FALSE STATEMENT ON A WELFARE REPORT FORM."

Appellant citesR.C. 1.51 for the proposition that the state must bring charges against him under the specific falsification statute rather than the general theft statute R.C. 1.51 provides:

"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."

Appellant notes the Ohio Supreme Court, in State v. Volpe (1988), 38 Ohio St. 3d 191, paragraph one of the syllabus, recently held:

"Where there is no manifest legislative intent that a general provision of the Revised Code prevail over a special provision, the special provision takes precedence." (State v. Frost [1979], 57 Ohio St.2d 121, 11 O.O.3d 294 387 N.E.2d 235, paragraph one of the syllabus, approved and followed.)

In Volpe the court decided that R.C. 2915.02(AX5), a specific gambling devices statute, prevails over R.C. 2923.24, a general criminal tools statute We note the Volpe court applied the R.C. 1.51 interpretation rule only after noting the two criminal statutes were irreconcilable since they provide different penalties for the same conduct.

Appellee notes the two statutes in the case at bar can be reconciled, the therefore the R.C. 1.51 interpretation rule does not apply. We agree. R.C. 2913.02 involves the obtaining of property or services and R.C. 2921.13(A) (4) involves the making of a false statement. Acts committed under the latter statute do not always violate the former statute Three unreported appellate decisions cited by appellee agree the theft statute and the falsification statute do not create an irreconcilable conflict. See, State v. Brown (Nov. 29, 1988), Montgomery App. No. 11217, unreported; State v. Aaron (May 21, 1985), Franklin App. No. 83AP-1202; State v. Chambers (Sept. 28, 1982), Montgomery App. No. 7360, unreported.

We note the bare fact appellant's conduct violates more than one statute does not force the state to prosecute him under the lesser statute. In United States v. Batchelder (1979), 442 U.S. 114, 123-124, the court wrote:

"This court has long recognized that when an act violates more than one criminal statute; the Government may prosecute under either so long as it does not discriminate against any class of defendants." See, also, Paul Adams Coal Co. v. Mamone (1988), 46 Ohio App. 3d, 174, 176; State v. Oliver (1987), 31 Ohio App. 3d 100; State v. Miles (1983), 8 Ohio App. 3d 410.

In his reply brief, appellant argues the word "secure" in the falsification statute means "obtain" as that word is used in the theft statute; and hence the two statutes are irreconcilable While we agree the words are similar, we find the falsification statute does not require proof the defendant secured or obtained anything. The falsification statute merely requires proof of a false statement made "with purpose to secure" certain governmental benefits. The benefits need not be secured.

Appellant's assignment of error is overruled.

Judgment affirmed.

GREY, J., dissent with attached dissenting opinion. HARSHA, J., concur in judgment & opinion.