COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67802 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : MARY PERKINS : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JULY 13, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-296710. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Karen L. Johnson, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Donald Green, Esq. Assistant County Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, OH 44113 -3- DAVID T. MATIA, J.: Defendant-appellant, Mary E. Perkins, appeals from the judgment of the Cuyahoga County Court of Common Pleas convicting her of theft pursuant to R.C. 2913.02. Appellant assigns one error for review concerning the application of R.C. 1.51. This court, finding error, affirms appellant's conviction but remands this case back for resentencing. I. STATEMENT OF FACTS On August 26, 1993, defendant-appellant, Mary E. Perkins, was indicted for one count of theft of property under R.C. 2913.02 and one count of trafficking in food stamps under R.C. 2913.46. On December 14, 1993, appellant filed a motion to dismiss the theft count of the indictment based on the contention that she should have been charged with either falsification under R.C. 2921(A)(4) or fraud in the Aid to Dependant Children statute, R.C. 5107, as opposed to the felony of theft. On July 5, 1994, appellant's motion to dismiss was denied. On August 24, 1994, appellant entered a plea of no contest to theft. The second count of the indictment was nolled. Appellant was found guilty of theft and sentenced to a term of 18 months incarceration. Sentence was suspended and probation stayed pending appeal. Appellant timely filed this appeal. ASSIGNMENT OF ERROR Defendant-appellant, Mary E. Perkins, states as her sole assignment of error: -4- THE TRIAL COURT COMMITTED ERRED (SIC) WHEN IT FAILED TO DISMISS THE THEFT CHARGE AGAINST THE APPELLANT BECAUSE THE SPECIFIC STATUTORY PROVISIONS UNDER R.C. 5107.04 AND 5107.99 PREVAIL OVER THE GENERAL PROVISION UNDER 2913.02 PURSUANT TO R.C. 1.51. A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO DISMISS THE CHARGE OF THEFT Defendant-appellant argues the trial court erred in denying her motion to dismiss the charge of theft. Specifically, appellant argues the misdemeanor crime of fraud under the Aid to Dependant Children statute is a "special provision" involving the same or similar offense as the felony of theft which is a "general provision." As such, appellant argues that the trial court erred in prosecuting her for theft since it is prohibited by R.C. 1.51. Appellant's sole assignment of error is well taken in part. B. OHIO REVISED CODE 1.51 Appellant argues the trial court erred in prosecuting her for the felony of theft, which is a "general provision," as opposed to fraud under the Aid to Dependant Children, R.C. 5107, which is a "special provision." Appellant bases this argument on R.C. 1.51 which 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. -5- As the Ohio Supreme Court has stated, if one of the statutes is general and one specific and they involve the same or similar offenses, we must then determine whether the offenses constitute allied offenses of similar import. State v. Chippendale (1990), 52 Ohio St.3d 118; State v. Volpe (1988), 38 Ohio St.3d 191. To be allied offenses of similar import: *** the elements of the two crimes are compared. If the elements of the offenses correspond to such a degree that the commission of one crime will result in the commission of the other, the crimes are allied offenses of similar import and the court must then proceed to the second step. In the second step, the defendant's conduct is reviewed to determine whether the defendant can be convicted of both offenses. Newark v. Vazirani (1990), 48 Ohio St.3d 83. See, also, R.C. 2941.25. C. THE TRIAL COURT DID NOT ERR IN DENYING APPELLANT'S MOTION TO DISMISS THE CHARGE OF THEFT. Appellant was indicted and convicted of theft under R.C. 2913.02 which reads in pertinent part: 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; Appellant argues she should have been indicted under R.C. 5107.04 which reads in its entirety: (A) As used in this section "erroneous payments" means payments of aid made under -6- this chapter to persons who are not entitled to receive them, including aid paid as a result of misrepresentation or fraud, and aid paid due to an error by the recipient or by the county department of human services that made the payment. (B) The amount of aid payable under this chapter in respect to any children living in the same home shall be determined on the basis of actual need as determined by the state department of human services based on state appropriations, taking into account the resources and income for other resources of such children, their parents, and the relatives in whose home they are living. (C) The county department of human services shall take action to recover erroneous payments, which may include instituting a civil action. Whenever aid has been furnished to a recipient for whose support another person is responsible such other person shall, in addition to the liability otherwise imposed, as a consequence of failure to support such recipient, be liable for all aid furnished to such recipient. The value of the aid so furnished may be recovered in a civil action brought by the county department. (D) Each county department of human services shall retain fifty per cent of the nonfederal share of the erroneous payments it recovers under the section. The department of human services shall receive the remaining fifty per cent of the nonfederal share of the recovered payments. As is evident by the clear language of the statute, R.C. 5107.04 is not a criminal offense but rather a civil remedy. R.C. 5104.04 defines "erroneous payments" and provides for the recovery of such payments. Unlike R.C. 2913.02, nowhere does the R.C. 5107.04 state a positive duty or enjoin a specific duty. -7- See R.C. 2901.03. Not only is the application of the penalty proposed by R.C. 5107.99 unclear, but the penalty statute's constitutionality may at a later date be called into question for it is beyond the scope of issues raised in this appeal. Accordingly, the elements of both provisions cannot constitute allied offenses of similar import. See State v. Volpe, supra. The trial court did not err in its application of R.C. 1.51 or in its denial of appellant's motion to dismiss the charge of theft. Appellant's sole assignment of error is not well taken. Judgment affirmed. -8- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATTON, C.J. and O'DONNELL, J., CONCUR. DAVID T. MATIA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67802 : STATE OF OHIO : : : CONCURRING Plaintiff-Appellee : : OPINION vs. : : : MARY PERKINS : : : Defendant-Appellant : : DATE: JULY 13, 1995 O'DONNELL, J., CONCURRING: Due process and the void-for-vagueness doctrine require a penal statute to define a criminal offense so that ordinary people understand what conduct is prohibited. Kolender v. Lawson (1983), 1 Ohio St.3d 352, 357. The legislature must establish minimal guidelines so that the statute's enforcement is not left to the whim of policemen, prosecutors, and juries. Kolender, supra, at 358. A statute will be ruled unconstitutionally void if it is vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all ***." Coates v. Cincinnati (1971), 402 U.S. - 2 - 611, 614. R.C. 5107.04 does not prohibit any conduct, or set any standard of conduct but merely authorizes the county department of human services to recover "erroneous payments". Because R.C. 5107.04 does not define any criminal conduct it is useless as a basis to charge criminal conduct. Accordingly, the prosecutor properly charged appellant with the crime of theft under R.C. 2913.02. I, therefore, concur in .