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State v. Minich

Court of Appeals of Ohio, Eleventh District, Lake

December 28, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
PATRICIA M. MINICH, Defendant-Appellant.

         Criminal Appeal from the Lake County Court of Common Pleas. Case No. 2015 CR 000211.

          Charles E. Coulson, Lake County Prosecutor, and Anna C. Kelley, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

          Robert N. Farinacci, 65 North Lake Street, Madison, OH 44057 (For Defendant-Appellant).

          OPINION

          TIMOTHY P. CANNON, JUDGE.

         {¶1} Appellant, Patricia M. Minich, appeals from the judgment entry of sentence issued by the Lake County Court of Common Pleas on June 24, 2016, following a jury trial, sentencing appellant to nine and one-half years in prison on various charges of theft, grand theft, and identity fraud. For the reasons that follow, the trial court's judgment is affirmed.

         {¶2} Appellee, the state of Ohio, brought two separate indictments against appellant on September 18, 2015, and February 12, 2016, charging her with a total of 28 felony counts. After various amendments were made to these indictments, the cases were consolidated, and four counts were dismissed; 24 counts were renumbered and prosecuted at trial.

         {¶3} Appellant was charged with multiple violations of R.C. 2913.02(A), which 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 in any of the following ways: * * * (2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent; [or] (3) By deception[.]"

         {¶4} Specifically, appellant was charged with eight counts of Grand Theft in violation of (A)(2) (Counts 1, 3, 5, 7, 9, 15, 17, 19); eight counts of Grand Theft in violation of (A)(3) (Counts 2, 4, 6, 8, 10, 16, 18, 20); three counts of Theft in violation of (A)(2) (Counts 11, 13, 21); and three counts of Theft in violation of (A)(3) (Counts 12, 14, 22). Each Grand Theft count was charged as a fourth-degree felony, the value of the property or services being $7, 500 or more but less than $150, 000. See R.C. 2913.02(B)(2). Each Theft count was charged as a fifth-degree felony, the value of the property or services being $1, 000 or more but less than $7, 500. See id. The victims of Counts 1-16 were alleged to be "Karyn E. Engel and/or Richard A. Engel and/or Jackson Hewitt"; the victim of Counts 17-22 was alleged to be the state of Ohio.

         {¶5} Appellant was also charged with one count of Identity Fraud Against a Person in a Protected Class, in violation of R.C. 2913.49(B)(1), a felony of the second degree (Count 23); and one count of Forgery, in violation of R.C. 2913.31(A)(3), a felony of the third degree (Count 24). The victim of these two offenses was alleged to be Richard A. Engel, an elderly person at the time of the offenses, to wit: between 66 and 68 years of age.

         {¶6} The charges stem from appellant's employment with Karyn and Richard Engel, who own multiple Jackson Hewitt franchises located throughout northeast Ohio. Appellant began working for the Engels in 2002 as a tax preparer, then worked as a branch manager, and finally as the general manager of the franchises. The charges allege that appellant stole nearly $200, 000 from the Engels and/or their franchises, between January 1, 2007, and July 30, 2014, by misappropriating cash funds and using company credit cards and bank accounts to pay for personal expenses without the Engels' consent. The charges also allege that appellant stole unemployment compensation benefits from the state of Ohio while working for the Engels and that she forged Richard Engel's signature on forms she submitted to receive the stolen benefits.

         {¶7} At trial, the state established that as a result of these offenses, Chase Credit Card Services absorbed $76, 978.96 of the unauthorized credit card charges; the Engels and/or their Jackson Hewitt franchises lost an additional $122, 588.75; and the state lost $26, 966.00.

         {¶8} The jury found appellant not guilty of Counts 2, 4, 6, 8, 10, 12, 14, and 16.

         {¶9} The jury returned a verdict of guilty on eleven violations of R.C. 2913.02(A)(2): four were fifth-degree Theft felonies (Counts 1, 11, 13, 21), and seven were fourth-degree Grand Theft felonies (Counts 3, 5, 7, 9, 15, 17, 19). The jury also returned a verdict of guilty on three violations of R.C. 2913.02(A)(3): one was a fifth-degree Theft felony (Count 22), and two were fourth-degree Grand Theft felonies (Counts 18, 20). Finally, the jury returned verdicts of guilty on Count 23, Identity Fraud Against a Person in a Protected Class, a second-degree felony in violation of R.C. 2913.49(B)(1), and on Count 24, Forgery, a third-degree felony in violation of R.C. 2913.31(A)(3).

         {¶10} For purposes of sentencing, the trial court merged Counts 1, 3, 5, 7, 9, 11, 13, and 15, all of which had been committed against the Engels and/or their Jackson Hewitt franchises. The trial court found these offenses required merger, pursuant to R.C. 2913.61(C)(1), which provides, in pertinent part: "When a series of offenses under [R.C. 2913.02] 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 trial court also merged Counts 17 and 18, Counts 19 and 20, and Counts 21 and 22, all of which had been committed against the state of Ohio. Finally, the trial court merged Counts 23 and 24, which had been committed against Richard Engel, an elderly person ...


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