[Cite as State v. Gibson,

.]

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,

.] {¶ 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,

.] (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,

,

(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,

.] {¶ 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 ___,

, ___ 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.”

{¶ 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),

, 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,

, *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,

.] {¶ 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,

,

(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,

, *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,

,

(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,

(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: