[This decision has been published in Ohio Official Reports at
92 Ohio St.3d 393.]
THE STATE OF OHIO, APPELLEE, v. EDMONDSON, APPELLANT.
[Cite as State v. Edmondson, 2001-Ohio-210.]
Criminal law—Theft by deception—False information submitted by applicant for
Aid to Dependent Children funds and food stamps who would have been
eligible for benefits if she had been truthful on her application but in an
amount less than she actually received—R.C. 2913.02, applied.
(No. 00-1438—Submitted March 27, 2001—Decided July 25, 2001.)
CERTIFIED by the Court of Appeals for Montgomery County, No. 18061.
__________________
COOK, J.
{¶ 1} The appellant, Michelle Edmondson, was convicted on two counts of
theft by deception for receiving government benefits after she submitted false
information to the Montgomery County Department of Human Services
(“MCDHS”) on her benefits application. Had she been truthful on her application,
Edmondson would have remained eligible for benefits, but in an amount less than
she actually received. This case asks us to decide whether Edmondson has stolen
the total amount of benefits that MCDHS gave her following the deception or only
the amount exceeding what she would have been eligible to receive had she
provided truthful information.
I
{¶ 2} During a four-year period between September 1990 and October
1994, Edmondson received nearly $13,000 in financial assistance from the Ohio
Aid to Dependent Children (“ADC”) program and food stamps from the federal
government worth almost $9,000. The benefits received by Edmondson were the
maximum amounts allotted under both the ADC and food stamp programs. At no
time during this period did Edmondson inform the MCDHS, which administered
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the distribution of benefits, that she was employed. Employment status is one of
several factors affecting the amount of assistance available to an applicant for
benefits.
{¶ 3} In 1994, MCDHS began to investigate whether Edmondson had been
employed while receiving government assistance. Edmondson admitted to a
welfare fraud investigator that she had worked at various jobs while collecting ADC
funds and food stamps. She also acknowledged that she failed to report her
employment to MCDHS despite being aware of her responsibility to report any
employment she obtained.
{¶ 4} A grand jury indicted Edmondson on two counts of theft by deception
in violation of R.C. 2913.02(A)(3). The first count alleged theft of ADC benefits
valued at $5,000 or more. The second count charged Edmondson with theft of food
stamps, also valued at $5,000 or more. Because the alleged value of the benefits
stolen exceeded $5,000 (but was less than $100,000), each count charged the
offense of grand theft, a fourth-degree felony. R.C. 2913.02(B)(2).
{¶ 5} Before trial, the parties stipulated that Edmondson collected
government benefits between October 1990 and September 1994 without informing
MCDHS of her employment during this period. As a result of the parties’
stipulations, the case proceeded to a bench trial limited to determining the value of
the benefits stolen by Edmondson. The prosecution contended that Edmondson
stole the total amount of benefits she received after misrepresenting her
employment status. In contrast, Edmondson contended that she could not be guilty
of stealing the full amount of benefits because, by MCDHS’s own admission, she
would have been eligible for assistance (albeit in a lesser amount) even if she had
reported her employment. Thus, Edmondson theorized that the dollar value of the
theft was limited to the amount exceeding what she would have received had she
truthfully reported her employment. The MCDHS calculated this “overpayment
amount” to be $2,415 in ADC benefits and $2,211 in food stamps.
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January Term, 2001
{¶ 6} The trial court agreed with Edmondson. It noted that Edmondson
would have received substantial benefits even if she had been truthful on her
application. The trial court therefore concluded that Edmondson “only received the
benefit of” the overpayment amount as a result of the deception. And because the
overpayment amount for both the ADC benefits and the food stamps was less than
$5,000 (but greater than $500), the trial court found Edmondson guilty of two
counts of fifth-degree felony theft, a lesser-included offense of grand theft. See
R.C. 2913.02(B)(2).
{¶ 7} The state obtained leave to appeal the trial court’s decision under R.C.
2945.67(A). The Second District Court of Appeals held that the trial court’s legal
analysis of the theft amount was incorrect. The court of appeals deemed it
irrelevant for purposes of the theft statute that Edmondson would have been entitled
to benefits even if she had truthfully reported her employment. Relying on its
earlier decisions, the court reasoned that “ ‘the deception’ is what ‘triggers the
offense’ and all welfare benefits the defendant received after the ‘initial
misrepresentation’ are to be included in the theft amount,” quoting State v.
Chambers (Sept. 28, 1982), Montgomery App. No. 7360, unreported. See, also,
State v. Crowder (Feb. 10, 1995), Montgomery App. No. 14478, unreported, 1995
WL 58679. The court of appeals certified its decision as being in conflict with the
judgment of the Sixth District Court of Appeals in State v. Luna (1994),
94 Ohio
App.3d 653,
641 N.E.2d 747. The cause is now before this court upon our
determination that a conflict exists.
II
{¶ 8} Before reaching the merits of Edmondson’s appeal, we note that the
procedural posture of this case presents an oddity: our decision has no practical
effect on this appellant. Nevertheless, it is important to emphasize that jurisdiction
in this court is proper.
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{¶ 9} Because it rejected the legal conclusion reached by the trial court, the
court of appeals originally reversed the trial court’s judgment and remanded for
further proceedings. The court of appeals later issued an amended entry in which
it affirmed the trial court’s judgment finding Edmondson guilty only of the lesser-included offenses. Edmondson therefore remained guilty of stealing only the
“overpayment amount” as calculated by MCDHS. The court of appeals’ correction
of its judgment was necessary insofar as reversal and remand would have been a
futile exercise; double-jeopardy principles barred the state from pursuing the grand
theft charges because the trial court’s finding of guilt on the lesser-included
offenses operated as an acquittal of the greater offenses. See Brown v. Ohio (1977),
432 U.S. 161,
97 S.Ct. 2221,
53 L.Ed.2d 187; see, also, State v. Curry (1991),
76
Ohio App.3d 175,
601 N.E.2d 176 (affirming judgment of acquittal because of
double-jeopardy principles despite sustaining state’s assignment of error in R.C.
2945.67[A] appeal). Thus, the court of appeals recognized that its decision could
not affect Edmondson’s conviction.
{¶ 10} Although the state’s appeal had no effect on Edmondson’s case, the
court of appeals had the statutory authority to exercise jurisdiction over it. R.C.
2945.67(A) grants discretion to the courts of appeals to allow appeals by the state
of a trial court’s “substantive law rulings made in a criminal case which result in a
judgment of acquittal so long as the judgment itself is not appealed.” State v.
Bistricky (1990), 51 Ohio St.3d 157,
555 N.E.2d 644, syllabus; see, also, State v.
Arnett (1986),
22 Ohio St.3d 186, 22 OBR 272,
489 N.E.2d 284, syllabus.
Although it was not required to do so, State v. Fisher (1988),
35 Ohio St.3d 22,
517
N.E.2d 911, the court of appeals exercised that discretion in this case by granting
leave to the state to appeal the substantive legal issue concerning the amount of the
theft. It then decided the question differently from the trial court. The court of
appeals also resolved the issue differently from another appellate district,
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January Term, 2001
prompting it (on Edmondson’s motion) to certify the record to this court for review
and final determination under Section 3(B)(4), Article IV of the Ohio Constitution.
{¶ 11} Though unusual, this procedural history poses no jurisdictional bar
to our review. The court of appeals validly exercised jurisdiction over the state’s
appeal under R.C. 2945.67(A). Bistricky at syllabus. When its decision on the legal
issue directly before it revealed an actual conflict between appellate judicial
districts on a rule of law, the court of appeals properly certified the case to this
court. Whitelock v. Gilbane Bldg. Co. (1993), 66 Ohio St.3d 594,
613 N.E.2d 1032,
paragraph one of the syllabus. Accordingly, the case is properly before us based
upon the certification of the Second District Court of Appeals.
III
{¶ 12} The elements of theft by deception appear at R.C. 2913.02, which
provides:
“(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.”
{¶ 13} The parties do not dispute that the state proved these essential
elements in Edmondson’s case. Thus, there is no dispute that Edmondson
knowingly obtained control over property (viz., ADC cash assistance and food
stamps) with purpose to deprive MCDHS of it. Nor is there any dispute that
Edmondson knowingly deceived MCDHS by misrepresenting her employment
status. See R.C. 2913.01(A) (defining “deception” to include “any false or
misleading representation … that creates, confirms, or perpetuates a false
impression in another”).
{¶ 14} The only dispute in this case involves the degree of theft offense
Edmondson committed. R.C. 2913.02(B)(2) categorizes theft offenses into
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different degrees depending on the value of the property or services stolen.
Edmondson urges us to follow the trial court’s conclusion that the value of the
stolen ADC funds and food stamps is limited to the “overpayment amount”
calculated by MCDHS.
{¶ 15} In support of her argument, Edmondson relies on State v. Luna,
supra, the case certified as being in conflict with the court of appeals’ decision in
this case. In Luna, the trial court convicted a defendant of theft of ADC benefits
by deception. On his benefits application, the defendant had falsely stated that he
was neither an owner nor buyer of any real property; in fact, the defendant was the
vendee on a land contract executed prior to his application for benefits. The state
argued that the sum of benefits received was the product of theft. The court of
appeals disagreed and explained that “the relevant inquiry is … what benefits did
appellant receive as a result of the deception that he would not have received had
he been truthful.” (Emphasis added.)
Id.,94 Ohio App.3d at 662,
641 N.E.2d at
753. The court therefore concluded that the defendant could have stolen only the
amount “over and above what he would have received had he been truthful.”
Id. at
663,
641 N.E.2d at 753.
{¶ 16} We disagree with the legal theory advanced by Edmondson and the
Luna court and instead endorse the conclusion reached by the Second District Court
of Appeals. Edmondson’s argument that she stole only the “overpayment amount”
relies upon the premise that she owned or possessed (and therefore did not steal)
the non-overpayment portion of the benefits she received. But this premise is
incorrect. Edmondson was not entitled to any benefits until MCDHS actually
determined her eligibility based on the information disclosed on her application.
See R.C. 5107.12; see, also, Ohio Adm.Code 5101:1-2-10(D)(2) (an applicant’s
failure to provide necessary information during the application process “shall result
in a denial” of benefits). The benefits remained government property until they
were actually paid to Edmondson. See R.C. 5101.54(B) (“food stamps … are
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January Term, 2001
the property of the department of job and family services from the time they are
received … by the department from the federal agency responsible for such
delivery until they are received by a household entitled to receive them”); see, also,
former R.C. 5107.01, 146 Ohio Laws, Part IV, 6935, 6950 (noting that ADC
payments are made from state and federal funds). When Edmondson actually
obtained the benefits from MCDHS, she received them only because MCDHS
deemed her eligible for government assistance based on the materially false
information she provided. Because Edmondson did not own any benefits until she
received them, her deception taints all of the ADC funds and food stamps that
MCDHS gave to her based on her materially false application. We reject
Edmondson’s view to the contrary, as it requires us to indulge in the legal fiction
that Edmondson somehow owned a portion of the benefits before she even received
them.
{¶ 17} In contrast to the rule advocated by Edmondson, the court of appeals’
decision in this case comports with the statutory elements of theft by deception.
R.C. 2913.02(A)(3) imposes criminal liability against a person “who deprives an
owner of his rightful possession of property through deceptive or fraudulent
means.” State v. Clifton (1989), 65 Ohio App.3d 117, 122,
583 N.E.2d 326, 329;
see, also, State v. Talley (1983),
94 N.J. 385, 390-391,
466 A.2d 78, 81 (the essential
nature of all theft offenses is the “ ‘involuntary transfer of property,’ “ either “
‘without [the victim’s] consent or with consent obtained by fraud or coercion,’ “
quoting from the Final Report of the New Jersey Criminal Law Revision
Commission, Vol. II: Commentary [1971] 216, Section 2C:20-2). The state must
prove that the accused engaged in a deceptive act to deprive the owner of possession
of property or services. The state must also prove that the accused’s
misrepresentation (or other conduct creating a false impression) actually caused the
victim to transfer property to the accused. Clifton,
65 Ohio App.3d at 121-122,
583
N.E.2d at 328-329; see, also, State v. Graven (1978),
54 Ohio St.2d 114, 126-127,
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8 O.O.3d 113, 120,
374 N.E.2d 1370, 1377-1378 (W. Brown, J., dissenting);
Williams v. State (1908),
77 Ohio St. 468,
83 N.E. 802, syllabus; 2 LaFave & Scott,
Substantive Criminal Law (1986) 391-392, Section 8.7(c). Finally, if the state
seeks a conviction for grand theft, R.C. 2913.02(B) requires proof that the accused
wrongfully obtained property or services valued at $5,000 or more. See State v.
Henderson (1979),
58 Ohio St.2d 171, 173-174,
12 O.O.3d 177, 178,
389 N.E.2d
494, 495 (factor that enhances the degree of theft offense is an element that the state
must prove beyond a reasonable doubt).
{¶ 18} The straightforward application of these elements supports the
state’s legal theory and undermines Edmondson’s position. Edmondson obtained
benefits only after she failed to be truthful about her employment status. In turn,
MCDHS relied on the information Edmondson provided when it approved her
benefits application and awarded over $5,000 in ADC funds and food stamps before
learning of Edmondson’s deception. The state does not have to prove the additional
fact, as Edmondson’s rule would require, that the accused obtained benefits for
which he or she was not otherwise eligible absent the deception. See State v. Robins
(1995), 233 Conn. 527, 530-531,
660 A.2d 738, 739 (interpreting Connecticut’s
larceny statute as requiring state to prove only that defendant obtained benefits by
filing false claim and not the additional element that defendant obtained benefits to
which he was not entitled). Imposing this additional burden on the state would add
an element that does not appear in the theft statute.
{¶ 19} Moreover, the rule advocated by Edmondson would potentially
invite mischief. Recipients could provide false information to enhance their level
of benefits knowing that the overpayment amount was the maximum for which they
could be held criminally responsible if the authorities detected the deception.
{¶ 20} The court of appeals correctly rejected Edmondson’s claim that she
stole only the “overpayment amount.” The correct valuation of the benefits stolen
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January Term, 2001
is the entire amount Edmondson received following her deception. We accordingly
affirm the judgment of the court of appeals.
Judgment affirmed.
MOYER, C.J., and F.E. SWEENEY, J., concur.
DOUGLAS, J., concurs in judgment.
RESNICK, PFEIFER and LUNDBERG STRATTON, JJ., dissent.
__________________
PFEIFER, J., dissenting.
{¶ 21} Edmondson was entitled to a certain amount of welfare benefits. She
provided false information and received welfare benefits in excess of the amount
to which she was entitled. The state prosecuted her for theft by deception of the
entire amount she received, which includes the amount to which she was entitled.
{¶ 22} Unlike the majority, I would rather engage in a legal fiction, that
entitlement is a form of ownership, than embrace the absurd. The theft offense
should be based on the difference between her entitlement and what she actually
received. To do otherwise is ridiculous.
{¶ 23} The majority is concerned about the potential “mischief” of welfare
recipients receiving more benefits than they are entitled to. The possibility that
people otherwise entitled to benefits might be too frightened to pursue them and
the possibility that the state might overreach in prosecuting these cases is more
troubling. Surely the state has more pressing business than prosecuting our
society’s most downtrodden for receiving benefits to which they are entitled. I
dissent.
RESNICK, J., concurs in the foregoing dissenting opinion.
__________________
LUNDBERG STRATTON, J., dissenting.
{¶ 24} I respectfully dissent from the majority’s decision to affirm the
judgment of the court of appeals.
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{¶ 25} In this case, the parties stipulated to the elements of theft by
deception. The only issue in dispute is the value of the property that the defendant
stole. The majority holds that the value of the property stolen is the entire amount
of benefits received. I respectfully disagree.
{¶ 26} The theft-by-deception statute, R.C. 2913.02(A)(3), provides, “No
person, with purpose to deprive the owner of property or services, shall knowingly
obtain or exert control over either the property or services … [b]y deception.”
R.C. 2913.02(B)(2) sets forth the degree of the theft offense based on the value of
the property stolen. Nowhere in the plain language of the theft statute is a
government assistance recipient required to forfeit the portion of the benefits to
which he or she is legally entitled.
{¶ 27} Nor do any Department of Human Services regulations require
repayment of benefits to which the defendant is entitled. Ohio Adm.Code 5101:6-
20-01(B) provides, “An individual may be disqualified from OWF [Ohio Works
First], PRC [Prevention, Retention, and Contingency Program], and/or food stamp
programs for intentional program violations.” (Emphasis added.) Further, Ohio
Adm.Code 5101:6-20-03(A)(1) requires repayment of the “fraudulent assistance”
before restoration to the program. Thus, even the Department of Human Services
regulations do not require that all benefits be repaid.
{¶ 28} Instead of the majority’s interpretation, I would adopt the reasoning
of State v. Luna (1994), 94 Ohio App.3d 653,
641 N.E.2d 747, the case with which
Edmondson is in conflict. Luna held that the relevant inquiry is what benefits the
defendant would have obtained had he or she been truthful. Luna,
94 Ohio App.3d
at 662,
641 N.E.2d at 753. In Luna, a government assistance applicant was
convicted of theft by deception and other crimes. The court held, “Although
appellant may have received excess benefits as a result of the deception, the record
is devoid of any evidence showing that but for the alleged deceptive answer
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January Term, 2001
appellant would not have been entitled to benefits of a certain amount.” Id. at 663,
641 N.E.2d at 753-754.
{¶ 29} In other theft cases, we do not measure the amount of the theft as the
majority does in this case. For example, suppose an employee works eight hours
one day but by deception convinces the employer that he or she worked ten hours
and, consequently, the employer pays the employee for ten hours of work. We
would find the employee guilty of theft for only the two hours of pay that he or she
obtained fraudulently. The law does not require the employee to forfeit all wages
to which he or she is entitled. I fail to see why this case should be any different.
{¶ 30} Therefore, I would hold that in a prosecution of theft of government
benefits by deception, the value of property for purposes of determining the
seriousness of the crime under R.C. 2913.02(B)(2) is the amount of benefits
received as a result of the deception rather than the sum of all benefits received.
{¶ 31} I do not believe that this interpretation of the law would encourage
government assistance recipients to lie in order to obtain benefits to which they are
not otherwise entitled. Contrary to the majority’s contention, serious penalties do
attach in addition to a criminal charge and possible prison. The defendant becomes
ineligible for further assistance until repayment, hardly an incentive for mischief as
claimed by the majority.
{¶ 32} In this case, the defendant received $12,829 in Aid to Dependent
Children (“ADC”) benefits, an overpayment of $2,415, and $8,836 in food stamps,
an overpayment of $2,211. She would have received $17,039 in ADC and food
stamps even when taking her wages into consideration. In my view, the law
requires us to allow her to keep that to which she is legally entitled, for we are not
seeking to punish qualified recipients or their children, for whom government
assistance provides a means to obtain essential food, clothing, housing, and medical
care. See Goldberg v. Kelly (1970), 397 U.S. 254,
90 S.Ct. 1011,
25 L.Ed.2d 287.
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{¶ 33} Nowhere else in Ohio law do we penalize defendants charged with
theft by requiring them to repay more than they stole. I agree with the trial court
that defendant would have still received substantial ADC and food stamp benefits
had she truthfully reported her employment status. Therefore, in calculating the
theft amount, the defendant should be criminally liable for only the $4,626 in
benefits she received because of her deception, an amount warranting a fifth-degree
felony conviction. Accordingly, I respectfully dissent and would reverse the
judgment of the court of appeals.
RESNICK, J., concurs in the foregoing dissenting opinion.
__________________
Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and
Kirsten A. Davies, Assistant Prosecuting Attorney, for appellee.
Arvin S. Miller, Montgomery County Assistant Public Defender, for
appellant.
__________________
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