State v. Mason , 118 N.E.3d 1057 ( 2018 )

[Cite as State v. Mason, 2018-Ohio-3329.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P. J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. CT2017-0083
TROY A. MASON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. CR2017-0129
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 17, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX PATRICK T. CLARK
PROSECUTING ATTORNEY ASSISTANT PUBLIC DEFENDER
GERALD V. ANDERSON II 250 East Broad Street
ASSISTANT PROSECUTOR Suite 1400
27 North Fifth Street, P.O. Box 189 Columbus, Ohio 43215
Zanesville, Ohio 43701
Muskingum County, Case No. CT2017-0083 2
Wise, John, P. J.
{¶1} Defendant-Appellant Troy A. Mason appeals from his convictions, in the
Muskingum County Court of Common Pleas, on thirty-three felony counts of tampering
with records and/or forgery. Appellee is the State of Ohio. The relevant facts leading to
this appeal are as follows.
{¶2} Between July 2014 and December 2016, Appellant Mason was charged and
convicted in eight misdemeanor cases filed in the Zanesville Municipal Court.
Throughout the various arrest, processing, and prosecution stages of these
misdemeanor cases, appellant pretended to be his brother, Robert Mason. Appellant
accordingly signed certain complaints, jail records, affidavits, and guilty plea forms with
Robert's name. Appellant later confessed to law enforcement officials that he had used
his brother's name in this fashion.
{¶3} On March 29, 2017, Appellant Mason was indicted by the Muskingum
County Grand Jury on eight felony counts of tampering with records (R.C. 2913.42(A)(1))
and twenty-five felony counts of forgery (R.C. 2913.31(A)(2)). Appellant pled not guilty,
and the matter proceeded to a jury trial on August 29, 2017. Prior to going forward, the
State dismissed Count 30, one of the forgery counts.
{¶4} After hearing the evidence and arguments, the jury found appellant guilty of
twenty-four counts of forgery and eight counts of tampering with records. On September
8, 2017, appellant filed a Crim.R. 29(C) motion for acquittal after the verdict, which the
trial court denied via a judgment entry on September 11, 2017.
{¶5} At sentencing, the State and appellant stipulated to merger of offenses as
follows:
Muskingum County, Case No. CT2017-0083 3
Count 1 (tampering with records) was merged with Counts 2, 3, 4, 5,
and 6 (all forgery).
Count 7 (tampering with records) was merged with Counts 8, 9, and
10 (all forgery).
Count 11 (tampering with records) was merged with Counts 12, 13,
14, and 15 (all forgery).
Count 16 (tampering with records) was merged with Counts 17, 18
and 19 (all forgery).
Count 20 (tampering with records) was merged with Counts 21, 22,
23, 24, and 25 (all forgery).
Count 26 (tampering with records) was merged with Counts 27 and
28 (both forgery).
Count 29 (tampering with records) was merged with Count 31
(forgery).
Count 32 (tampering with records) was merged with Count 33
(forgery).
{¶6} Although the State and appellant proposed a jointly recommended
sentence of five years in prison, the trial court rejected same and ordered appellant on
October 10, 2017 to serve eight consecutive eighteen-month terms, for an aggregate
prison sentence of twelve years. A nunc pro tunc sentencing entry, correcting a
scrivener’s error, was issued on October 25, 2017.
{¶7} On November 9, 2017, appellant filed a notice of appeal. He herein raises
the following sole Assignment of Error:
Muskingum County, Case No. CT2017-0083 4
{¶8} “I. THE TRIAL COURT VIOLATED TROY MASON'S RIGHT TO DUE
PROCESS AND A FAIR TRIAL WHEN, IN THE ABSENCE OF SUFFICIENT
EVIDENCE, IT OVERRULED HIS CRIM.R. 29(C) MOTION FOR ACQUITTAL ON
COUNTS 1, 7, 11, 16, 20, 26, AND 32 OF THE INDICTMENT.”1
I.
{¶9} In his sole Assignment of Error, appellant argues the trial court erred and
violated his rights to due process and a fair trial by overruling his motion for acquittal. We
disagree.
{¶10} An appellate court reviews a denial of a Crim.R. 29 motion for acquittal
using the same standard used to review a sufficiency of the evidence claim. See State
v. Larry, 5th Dist. Holmes No. 15CA011, 2016-Ohio-829, ¶ 20, citing State v. Carter
(1995), 72 Ohio St. 3d 545, 553, 651 N.E.2d 965, 1995–Ohio–104. Thus, “[t]he relevant
inquiry is whether, after viewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St. 3d 259, 574 N.E.2d 492,
paragraph two of the syllabus.
{¶11} In the case sub judice, appellant was convicted of tampering with records
in violation of R.C. 2913.42(A)(1), which states:
{¶12} “No person, knowing the person has no privilege to do so, and with the
purpose to defraud, or knowing that the person is facilitating a fraud, shall *** “[f]alsify,
1 We note appellant does not challenge the remaining count of tampering with records
(Count 29) in the text of his assigned error.
Muskingum County, Case No. CT2017-0083 5
destroy, remove, conceal, alter, deface, or mutilate any writing, computer software, data,
or record.”
{¶13} Appellant was also convicted of forgery in violation of R.C. 2913.31(A)(2),
which states:
{¶14} “No person, with purpose to defraud, or knowing that the person is
facilitating a fraud, shall *** [f]orge any writing so that it purports to be genuine when it is
actually spurious, or to be the act of another who did not authorize the 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.”
{¶15} In raising his argument as to sufficiency of the evidence, appellant does not
herein factually dispute that he repeatedly forged his brother’s signature and fraudulently
presented himself to law enforcement and court officials as charged; his present focus
is on the legislative meaning behind the tampering with records statute.
{¶16} As a general rule, issues of statutory construction are reviewed de novo by
appellate courts. Divernuity Properties, L.L.C. v. Stark Cty. Bd. of Revision, 5th Dist.
Stark No. 2012 CA 00048, 2012-Ohio-4364, ¶ 16. It is a well-established principle of
statutory construction that a statute is to be read, to the extent practicable, to give effect
to all its parts. See Weckbacher v. Sprintcom, Inc., 5th Dist. Stark No. 2006 CA 00033,
2006-Ohio-4398, 2006 WL 2459077, ¶ 9. See, also, R.C. 1.47(B).
{¶17} As an initial matter, appellant concedes that the Ohio Supreme Court’s
decision in State v. Brunning, 134 Ohio St. 3d 438, 2012-Ohio-5752, 983 N.E.2d 316,
indicates that a person may be convicted of tampering with records pursuant to R.C.
2913.42 if he or she files a form with law enforcement containing false information with
Muskingum County, Case No. CT2017-0083 6
a purpose to defraud. Id. at ¶ 32. However, appellant urges that Brunning, which involved
a convicted sex offender filing an address-verification form with a county sheriff, does
not address the issues raised herein.
{¶18} Appellant first urges that the term “falsify” in the records tampering statute,
R.C. 2913.42(A)(1), supra, is ambiguous. He directs us to the textual canon of noscitur
a sociis, which “interprets a general term to be similar to more specific terms in a series.”
See In re R.V., 2nd Dist. No. 2009-CA-107, 190 Ohio App. 3d 313, 2010-Ohio-5050, 941
N.E.2d 1216, ¶ 24. (Grady, J., dissenting). Appellant accordingly posits that the
remaining terms set forth in R.C. 2913.42(A)(1), namely “destroy,” “remove,” “conceal,”
“alter,” “deface,” and “mutilate” are indicative of acts involving an existing record or
documents, and that interpreting “falsify” to mean creating a forged document for the first
time would be inconsistent with those terms.
{¶19} Appellant secondly asks us to consider R.C. 2913.42(A)(1) in pari materia
with R.C. 2913.31(A)(2), contending that if a person indeed "falsifies" a record by
creating one, then the two statutes in this context have identical elements, rendering one
of them surplusage.
{¶20} Should we accept that the term “falsify” in the records tampering statute is
ambiguous, appellant urges that we apply the rule of lenity, which is codified in R.C.
2901.04(A) and generally provides that “sections of the revised Code defining offenses
or penalties shall be strictly construed against the state, and liberally construed in favor
of the accused.” See State v. Harp, 12th Dist. Clermont No. CA2016-11-072, 2017-Ohio-
9096, 91 N.E.3d 761, ¶ 14.
Muskingum County, Case No. CT2017-0083 7
{¶21} However, the principles of statutory construction also indicate that separate
terms should reasonably be given distinct meaning. See D.A.B.E., Inc. v. Toledo–Lucas
County Bd. of Health, 96 Ohio St. 2d 250, 254, 2002-Ohio-4172, 773 N.E.2d 536 (stating
“all words [in a statute] should have effect and no part should be disregarded”). The term
“falsify” has been commonly defined as “to state untruthfully or alter in order to deceive.”
Dept. of Pub. Safety v. Garrett, 4th Dist. Ross No. 94-CA-2031, 1995 WL 363248, citing
The American Heritage Dictionary, 1976. As the State aptly argues in its response
herein, if “falsify” in the records tampering statute (R.C. 2913.42(A)(1)) was legislatively
intended to mean only the act of “alter[ing]” an existing document or record, then one
statutory term would be unnecessary and would have to be disregarded. Because the
General Assembly did include the distinct prohibition against falsifying under R.C.
2913.42(A)(1), we find that appellant’s acts of untruthfully using his brother’s name on
official documents were sufficient to effect the violations of the records tampering statute
as charged.
{¶22} Accordingly, appellant's sole Assignment of Error is overruled.
{¶23} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Muskingum County, Ohio, is hereby affirmed.
By: Wise, John, P. J.
Delaney, J., and
Wise, Earle, J., concur.
.
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