[Cite as State v. Gibson, 2014-Ohio-136.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY
STATE OF OHIO : : Appellate Case No. 2013-CA-11 Plaintiff-Appellee : : Trial Court Case No. 12-CR-310 v. : : KATHY S. GIBSON : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ...........
OPINION
Rendered on the 17th day of January, 2014.
...........
KEVIN S. TALEBI, Atty. Reg. #0069198, by JANE A. NAPIER, Atty. Reg. #0061426, Champaign County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078 Attorneys for Plaintiff-Appellee
BRIAN D. BRENNAMAN, Atty. Reg. #0088988, 1616 Turner Road, Xenia, Ohio 45385 Attorney for Defendant-Appellant
.............
FAIN, P.J.
{¶ 1} Defendant-appellant Kathy S. Gibson appeals from her convictions and
sentences, following a guilty plea, on one count of Theft from an Elderly Person or Disabled 2
Adult, in violation of R.C. 2913.02(A)(1), (B)(3), a fourth-degree felony, and eight counts of
Forgery, in violation of R.C. 2913.31(A)(2), (C)(1)(b), felonies of the fifth degree. She contends
that the trial court committed plain error when if failed to aggregate all of the offenses under R.C.
2913.61(C)(1).
{¶ 2} We conclude that the trial court did err when it failed to aggregate the eight
Forgery offenses, but we conclude that the trial court was not required, under R.C.
2913.61(C)(1), to aggregate those offenses with the Theft offense, which itself represented
multiple acts of theft that had been aggregated under that statute into a single Theft offense. We
further conclude, however, that the trial court’s failure to have aggregated the eight Forgery
offenses did not result in a manifest miscarriage of justice in this case, was not an obvious defect
in the proceedings, and therefore does not rise to the level of plain error. Consequently, the
judgment of the trial court is Affirmed.
I. The Course of Proceedings
{¶ 3} Gibson was charged by indictment with one count of Theft, in violation of R.C.
2913.02(A)(1),(B)(1), 2913.71(B), a felony of the fifth degree; one count of Theft from an
Elderly Person or Disabled Adult, in violation of R.C. 2913.02(A)(1),(B)(3), a felony of the
fourth degree; and nineteen counts of Forgery, in violation of R.C. 2913.31(A)(2),(C)(1)(b),
felonies of the fifth degree. Gibson’s 87-year-old grandfather, Frank Smith, was identified in the
indictment as the victim with respect to all of the offenses with which Gibson was charged. The
count of Theft from an Elderly Person or Disabled Adult expressly refers to the aggregation of
multiple offenses into that single offense, under the authority of R.C. 2913.61(C)(1). [Cite as State v. Gibson, 2014-Ohio-136.] {¶ 4} Gibson entered into a plea bargain, wherein she pled guilty to the count of Theft
from an Elderly Person or Disabled Adult, and to eight counts of Forgery, with all the other
counts being dismissed. She was sentenced to imprisonment for sixteen months for Theft from
an Elderly Person or Disabled Adult, and to eight months for each of the eight Forgery offenses.
The trial court ordered the eight-month sentences for Forgery to be served concurrently with one
another, but consecutively to the sixteen-month sentence for Theft from an Elderly Person or
Disabled Adult, for a total sentence of twenty-four months.
{¶ 5} From her conviction and sentence, Gibson appeals. Her sole assignment of error
is as follows:
THE TRIAL COURT ERRED IN CONVICTING DEFENDANT ON
COUNTS 4, 6, 8, 10, 12, 14, 16, AND 18.
{¶ 6} Gibson contends that pursuant to R.C. 2913.61(C)(1), all of her convictions
should have been aggregated into one count.
II. The Specific Provisions of R.C. 2913.61(C)(1) Prevailing Over
the More General Provisions of R.C. 2913.61(C)(2), Gibson’s Forgery
Counts Should Have Been Aggregated into One Count of Forgery
{¶ 7} R.C. 2913.61(C)(1) and 2913.61(C)(2) provide as follows (emphasis added):
(1) 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 violations of division (A)(1) of section 1716.14, section
2913.02, 2913.03, or 2913.04, division (B)(1) or (2) of section 2913.21, or section
2913.31 or 2913.43 of the Revised Code involving a victim who is an elderly 4
person or disabled adult, 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.
(2) If an offender commits a series of offenses under section 2913.02 of the
Revised Code that involves a common course of conduct to defraud multiple
victims, all of the offenses may be tried as a single offense. If an offender is
being tried for the commission of a series of violations of, attempts to commit a
violation of, conspiracies to violate, or complicity in violations of division (A)(1)
of section 1716.14, section 2913.02, 2913.03, or 2913.04, division (B)(1) or (2) of
section 2913.21, or section 2913.31 or 2913.43 of the Revised Code, whether
committed against one victim or more than one victim, involving a victim who is
an elderly person or disabled adult, pursuant to a scheme or course of conduct, all
of those offenses may be tried as a single offense. If the offenses are tried as a
single offense, the value of the property or services involved 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 of the offenses in the course of
conduct.
{¶ 8} All of the offenses of which Gibson was convicted were committed with her 5
grandfather as the victim.1 The State acknowledges that they were all committed pursuant to a
scheme or course of conduct. The State contends that under the provisions of R.C.
2913.61(C)(2), unlike the provisions in R.C. 2913.61(C)(1), it had the option to aggregate the
Forgery counts into one count, and it chose not to. As the State points out, the operative verb in
division (C)(2) of the statute is “may,” as opposed to “shall,” the operative verb in division (C)(1)
of the statute.
{¶ 9} The crucial issue is which division of the statute applies to Gibson, (C)(1) or
(C)(2). By their terms, both divisions apply, but one mandates aggregation, while the other
merely permits it.
{¶ 10} The statutory construction rule of lenity found in R.C. 2901.04(A), which
requires that a statutory provision defining offenses or penalties be strictly construed against the
state and liberally construed in favor of the accused, is not helpful here. Aggregation of multiple
offenses could favor a defendant in some situations, by precluding the imposition of consecutive
sentences for multiple offenses. But it could work to a defendant’s disadvantage in others, since
the aggregation of multiple offenses could elevate the degree of the offense. R.C.
2913.31(C)(1).
{¶ 11} We find R.C. 1.51 to be the correct tool of statutory construction to apply in this
case. R.C. 1.51 provides as follows:
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
1 Each forgery count states that Gibson committed it “with purpose to defraud, or knowing that she is facilitating a fraud on Frank B. Smith,” her grandfather. 6
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.
{¶ 12} R.C. 2913.61(C)(2) deals with the situation in which a defendant is being
charged with a series of forgeries (or other stated crimes) committed against one or more victims,
involving a victim who is elderly or disabled, pursuant to a scheme or course of conduct. R.C.
2913.61(C)(1) deals with a narrower, more specifically defined, situation, in which a defendant is
being charged with a series of forgeries, involving a victim who is elderly or disabled,
“committed by the offender in the offender's same employment, capacity, or relationship to
another.” The requirement that the offense be committed in a single employment, capacity, or
relationship to another person is a narrower, more specific requirement, found in division (C)(1)
of the statute, but not found in division (C)(2) of the statute.
{¶ 13} Gibson committed all of these offenses in her relationship to her 87-year-old
grandfather, the victim. It is unlikely that she could have committed these offenses without the
existence of that relationship, since she obtained the checks she forged from her daughter, the
victim’s great-granddaughter.
{¶ 14} We conclude that the more specific provisions of R.C. 2913.61(C)(1), which
require the aggregation of multiple offenses, prevail over the more general provisions of R.C.
2913.61(C)(2), which merely permit aggregation.
{¶ 15} We find further support for this construction of R.C. 2913.61 in the general
principle of statutory construction that conflicting provisions are to be harmonized, if possible, so
that effect may be given to each. See R.C. 1.52(B). If the provisions of R.C. 2913.61(C)(1), 7
requiring the aggregation of multiple offenses where they are committed in a single employment,
capacity, or relationship to another person, were deemed not to prevail over the provisions of
R.C. 2913.61(C)(2), which merely permit the aggregation of multiple offenses, then the
mandatory aggregation provisions of R.C. 2913.61(C)(1) would have no effect, since they would
always be trumped by the permissive aggregation provisions of R.C. 2913.61(C)(2). Where
possible, a court should not construe a statutory enactment in such a manner that it would never
have any effect, since the General Assembly should be presumed not to have created a statutory
nullity.
III. Because R.C. 2913.61(C)(1) Refers to Two Distinct Series of Offenses,
Each Series of Offenses Must Separately Be Aggregated, but those Two Aggregations Need
Not Be Aggregated Together into a Single Aggregation
{¶ 16} Although we disagree with the State’s contention that Gibson’s eight Forgery
offenses should not have been aggregated into a single Forgery offense, we also disagree with
Gibson’s contention that the single Forgery offense resulting from that aggregation must further
be aggregated with the Theft from an Elderly Person or Disabled Adult offense, which, itself, was
the result of aggregating several such offenses. To reach this conclusion, we parse the words of
R.C. 2913.61(C).
{¶ 17} R.C. 2913.61(C)(1) provides that “[w]hen a series of [theft] offenses * * * , or a
series of violations of * * * [certain other criminal statutes, including 2913.31, the forgery
statute] involving a victim who is an elderly person or disabled adult, is committed by the
offender in the offender’s same employment, capacity, or relationship to another, all of those 8
offenses shall be tried as a single offense.” (Emphasis added.) Two distinct series of offenses
are set forth in the statute: a series of theft offenses, and a series of offenses under other statutes.
{¶ 18} We conclude, from the fact that the statute refers to two different series of
offenses, that the aggregation required by the statute is with respect to each series of offenses,
separately, in a case in which more than one of those series is involved. Had the General
Assembly intended to require the aggregation of all the offenses, in both series, into a single
offense, it would presumably have enacted a statute reading like the following:
When a series of offenses under section 2913.02 of the Revised Code,
violations of, attempts to commit a violation of, conspiracies to violate, or
complicity in violations of division (A)(1) of section 1716.14, section 2913.02,
2913.03, or 2913.04, division (B)(1) or (2) of section 2913.21, or section 2913.31
or 2913.43 of the Revised Code involving a victim who is an elderly person or
disabled adult, 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.
{¶ 19} By specifying a single series of offenses to be aggregated into a single offense,
the General Assembly would have made it clear that all of the offenses in that series of offenses
must be aggregated into a single offense. The statute the General Assembly actually enacted
does not do that. By specifying two separate series of offenses, connected in the disjunctive – 9
“or” – the General Assembly has manifested its intent that the offenses in each series are to be
separately aggregated.
{¶ 20} We conclude, therefore, that although Gibson’s eight Forgery offenses should
have been aggregated into a single Forgery offense, that single Forgery offense was not required
to be aggregated with the single Theft offense, itself the result of an aggregation of multiple Theft
offenses.
IV. The Failure to have Aggregated Gibson’s Forgery Offenses, Having
Caused No Manifest Miscarriage of Justice, Does Not Constitute Plain Error
{¶ 21} The parties agree that Gibson did not assert, in the trial court, that her Forgery
offenses were required to be aggregated, either with one another, or with the Theft offense, as
well. Indeed, Gibson pled guilty to the eight Forgery counts, which, unlike the Theft count,
neither alleged that the named victim was an elderly person, nor contained aggregation
allegations. Therefore, Gibson’s assignment of error must be analyzed under the plain-error
standard of review.
{¶ 22} In the circumstances of this case, the absence of the elderly-victim allegation in
the forgery counts to which Gibson was allowed to plead guilty worked to her benefit. Without
the allegation, the threshold for enhancement of the forgeries to fourth-degree felonies rose from
$1,000 to $7,500, and the aggregation issues relating to R.C. 2913.61(C)(1) and (2) do not apply.
Specifically, Gibson was charged in the indictment with having violated R.C.
2913.31(A)(2)(C)(b)(1):
(A) No person, with purposed to defraud, or knowing that the person is 10
facilitating a fraud, shall do any of the following:
***
(2) Forge any writing so that it purports to be genuine when it actually is
spurious, or to be the act of another who did not authorize that 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;
(C)(1)(a) Whoever violates division (A) of this section is guilty of forgery.
(b) Except as otherwise provided in this division or division (C)(1)(c) of
this section, forgery is a felony of the fifth degree. * * *
{¶ 23} Gibson’s failure to raise the aggregation issue in the trial court allowed her to
enter guilty pleas to eight fifth-degree felonies rather than one fourth-degree felony. She was
sentenced to eight concurrent eight-month sentences on the forgery convictions.
{¶ 24} If the forgery counts had been aggregated, however, either based on the total
amount of the forgeries alleged in the indictment ($2,469.81), or based on the total amount of the
forgeries to which Gibson pled guilty ($1,275.12), she would have been subject to the greater
prison-sentence range applicable to a fourth-degree felony, under R.C. 2913.31(C)(1)(c):
(c) If the victim of the offense is an elderly person or disabled adult,
division (C)(1)(c) of this section applies to the forgery. Except as otherwise
provided in division (C)(1)(c) of this section, forgery is a felony of the fifth
degree. If property or services are involved in the offense or of the victim suffers
a loss, forgery is one of the following: [Cite as State v. Gibson, 2014-Ohio-136.] (i) If the value of the property or services or the loss to the victim is one
thousand dollars or more and is less than seven thousand five hundred dollars, a
felony of the fourth degree;
***.
{¶ 25} So, if Gibson had pled guilty to a single forgery count aggregated as a series of
forgery offenses committed against an elderly person, she would have been subject to the six- to
eighteen-month prison term applicable to a fourth-degree felony, rather than the six- to
twelve-month prison term applicable to fifth-degree felonies. R.C. 2929.14(A)(4) and (5).
{¶ 26} In State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978), the Supreme
Court has provided guidance for the consideration of plain error:
Ordinarily, * * * the failure to object * * * constitutes a waiver of any
claim of error relative thereto. Further, * * * [it] does not constitute a plain error
or defect under Crim.R. 52(B) unless, but for the error, the outcome of the trial
clearly would have been otherwise. Notice of plain error under Crim.R. 52(B) is to
be taken with the utmost caution, under exceptional circumstances and only to
prevent a manifest miscarriage of justice.
{¶ 27} Although the outcome of the proceedings in the trial court would have been
different had Gibson’s forgery counts been aggregated, notice of plain error under the
circumstances of this case is not necessary to prevent a manifest miscarriage of justice. Gibson
arguably benefitted by having failed to raise the issue of the aggregation of her felony counts in
the trial court, and could receive a harsher sentence for those forgeries if we were to reverse those
convictions and remand. The exercise of the utmost caution in the circumstances of this case
impels us in the direction of not recognizing plain error here. [Cite as State v. Gibson, 2014-Ohio-136.] {¶ 28} Furthermore, for a court to notice plain error, the error must be an obvious defect
in a trial court’s proceedings. State v. Steele, ___ Ohio St.3d ___, 2013-Ohio-2470, ___ N.E.2d
___, ¶ 30. The parties have not directed our attention to any prior cases, and we are not aware of
any, deciding which of the statutory aggregation provisions – the mandatory aggregation
provision in R.C. 2913.61(C)(1), or the permissive aggregation provision in R.C. 2913.61(C)(2)
– is to be applied in a case, like the one before us, where both provisions are arguably applicable.
As in Steele, there is no explicit case law providing an answer to a difficult legal question,
compounded in the case before us by the further question of whether the forgeries and thefts
should be jointly aggregated into a single offense. Therefore, as in Steele, “it would be difficult
to conclude that the trial court’s [error] constitutes an obvious error.” Id.
{¶ 29} Gibson’s sole assignment of error is overruled.
V. Conclusion
{¶ 30} Gibson’s sole assignment of error having been overruled, the judgment of the
trial court is Affirmed.
WELBAUM, J., concurs.
HALL, J., concurring in the judgment:
{¶ 31} I agree to affirm the judgment of the trial court and that the failure to aggregate
the multiple forgery offenses does not constitute plain error. However I do so because I find no
error at all, plain or otherwise, based on my conclusion that the provision for mandatory
aggregation of a series of violations, as specified in R.C. 2913.61(C)(1), does not apply to the
multiple forgery offenses at issue. 13
{¶ 32} The record reflects that the appellant and her adult daughter (a co-defendant for
some of the appellant’s offenses) were at the appellant’s 87-year-old grandfather’s residence
when the daughter stole a number of checks from the grandfather’s desk. The appellant claimed
she was not aware of the theft until after they left the residence. The record contains no evidence
to the contrary. Then, from July 15, 2012 until August 8, 2012, the appellant committed multiple
forgeries that were each independent offenses. She was charged with two theft offenses and
nineteen forgeries but entered a negotiated plea to one theft offense and eight forgeries. The
record does not indicate that the forgeries involved an on-going exploitation of the appellant’s
“relationship” with her grandfather. The only “relationship” between them evident from the
record is the familial one.
{¶ 33} When originally conceived , aggregation under R.C. 2913.61 (C) applied only to
theft offenses and had a single mandatory aggregation requirement. It provided that when
offenses were “committed by the offender in his same employment, capacity, or relationship to
another, all such offenses shall be tried as a single offense * * *.” This aggregation of theft
offenses committed in the same employment, capacity, or relationship was intended to replace the
embezzlement statute, former R.C 2907.34. As explained in 1973 Legislative Service
Commission commentary: “Under the new code, embezzlement is not defined as a separate
offense, but is a series of theft offenses committed by an offender within a given span of time in
his same employment, capacity, or relationship to another.”
{¶ 34} It is apparent to me that the word “relationship” in R.C. 2913.61(C) was
intended to refer to a fiduciary-type relationship, or some relationship involving trust and
confidence where an offender can repeatedly take advantage of his or her position to 14
“embezzle” from his or her victim. The statute did not necessarily preclude aggregation of
offenses by someone acting in a familial relationship, 2 but its purpose was to substitute for
embezzlement where there was repetitive theft in the same employment, capacity, or relationship.
“The Ohio Supreme Court in State v. Doll (1970), 24 Ohio St.2d 130, analyzed the history and
purpose of embezzlement statutes that preceded R.C. 2913.61(C). The Doll court stated the basic
purpose of the statute is to deter a tempted fiduciary from a breach of his trust.” (Emphasis
added) State v. Weaver, 8th Dist. Cuyahoga No. 58114, 1990 WL 118347, *3 (Aug. 16, 1990).
2 One of the examples the Legislative Service Commission commentary refers to involves a “person who systematically and improperly appropriates the property of a senile relative.” But even that example suggests exploitation as part of an on-going relationship with the victim, as opposed to offenses committed separately and apart from interaction with the victim. [Cite as State v. Gibson, 2014-Ohio-136.] {¶ 35} Amendments to the statute in 1998 separated section (C) into subsections (C)(1)
and (C)(2). And 1999 legislation added language expanding the statute to require aggregation of
various financial or property offenses against an elderly or disabled person. Presently,
subsection (C)(1) requires aggregation for all theft offenses committed “in the offender’s same
employment, capacity, or relationship to another * * *.” Aggregation under subsection (C)(1) also
is required for deceptive charitable solicitation, theft, unauthorized use of motor vehicles, misuse
of credit cards, forgery, or securing writings by deception if the offense involves an elderly or
disabled victim and if the offense is committed “in the offender’s same employment, capacity, or
relationship to another * * *.” Under R.C. 2913.61(C)(2), offenses committed “pursuant to a
scheme or course of conduct * * * may be tried as a single offense.” (Emphasis added).3
{¶ 36} Other case law supports the notion that the aggregation statute applies where
there is an “ongoing relationship and ensuing conduct [that] closely resemble[s] an
embezzlement-type of offense * * *.” State v. Rice, 103 Ohio App.3d 388, 402, 659 N.E.2d 826
(10th Dist.1995). That is contrasted with a case where each transaction was independent and
“there was no continuing relationship involved in the sense contemplated by the statute.” State v.
Payne, 10th Dist. Franklin No. 79AP-259, 1979 WL 209475, *4 (Dec. 4, 1979).
{¶ 37} I have reviewed each of the forty-two Ohio cases citing R.C. 2913.61(C) and
numerous cases that otherwise refer to the aggregation statute. Virtually all involve an
employment or bookkeeper-type relationship. One that departs from the norm is State v. Greer,
3d Dist. Union No. 14-99-26, 1999-Ohio-940, 1999 WL 1075442 (Dec. 1, 1999). There, Tammy
3 Although count two of the appellant’s indictment (theft from an elderly person, a fourth-degree felony) refers to the aggregation provision of R.C. 2913.61(C)(1), it is my belief that aggregation of the multiple theft violations in this case is permissive under R.C. 2913.61(C)(2), rather than mandatory. This is a discrepancy that, at most, involves harmless error. 16
Greer wrote eleven checks on a closed account over a five-day period to Mosier’s IGA for
merchandise, gas, and cash. The court held that the offenses should be aggregated because of
Greer’s “continuing and on-going relationship” as a customer of Mosier’s IGA. Id. at *2. Another
aberration is State v. Vitale, 8th Dist. Cuyahoga No. 35121, 1976 WL 191084 (Sept. 2, 1976). In
Vitale, the victim was a customer of a real-estate company where Vitale worked. They began
dating. Over time, the victim invested money in a real-estate venture in which Vitale was
involved. After they broke up, he failed to return her money. Although the Vitale court
determined that R.C. 2913.61(C) did not apply because he was charged with larceny by trick
(former R.C. 2907.21) rather than theft, the opinion is devoid of commentary that the on-going
dating relationship would have been insufficient to qualify under the “relationship to another”
language of the statute. Notably, my review of cases revealed no case where the “relationship” at
issue was simply a familial one.
{¶ 38} In my view, when reading the words of the statute in the context of its history,
mandatory aggregation under R.C. 2913.61(C)(1) should not apply because there is no
exploitation of an on-going, interpersonal relationship of trust and confidence between the
appellant and her grandfather.4 That analysis also leads me to the conclusion that because there is
no error in this case, there is no plain error. Moreover, had counsel raised the aggregation
argument at sentencing, the record of the lack of a “relationship” could have been made more
clear, or the negotiations leading to the plea could have been more explicit, either of which would
explain why there would be no different result, thus no plain error. Accordingly, I conclude that
4 I recognize that the precise issue I have discussed, no more than a familial “relationship”, was not specifically addressed in the briefs. Nonetheless interpretation of the statute is necessary for resolution of this appeal. 17
Appellant’s multiple forgery offenses, which were committed without any indication of
exploitation of an on-going relationship of trust or confidence, were not required to be aggregated
into a single offense and the trial court did not err with respect to those multiple offenses.
Copies mailed to:
Kevin S. Talebi Jane A. Napier Brian D. Brennaman Hon. Nick A. Selvaggio
Case Name: State of Ohio v.Kathy S. Gibson Case No: Champaign App. No. 2013-CA-11 Panel: Fain, Hall, Welbaum Author: Mike Fain Summary: