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State v. Harris-Smith

Court of Appeals of Ohio, Second District, Montgomery

August 3, 2018

STATE OF OHIO Plaintiff-Appellee

          Criminal Appeal from Municipal Trial Court Case No. 2017-CRB-5058

          GARRETT P. BAKER, Attorney for Plaintiff-Appellee.

          DARRELL L HECKMAN, Attorney for Defendant-Appellant.


          DONOVAN, J.

         {¶ 1} This matter is before the Court on the December 11, 2017 Notice of Appeal of Johniecsa Harris-Smith. Harris-Smith appeals from the November 14, 2017 decision of the Dayton Municipal Court finding her guilty of two counts of falsification, in violation of R.C. 2921.13(A)(3), misdemeanors of the first degree, following Harris-Smith's no contest pleas. The court sentenced Harris-Smith to suspended sentences of 30 days and imposed fines of $25.00 on each offense. We hereby affirm the judgment of the trial court.

         {¶ 2} Harris-Smith was charged with two counts of falsification by way of complaint on August 4, 2017, and she entered not guilty pleas on August 11, 2017. Her complaints both provide that she "did unlawfully and knowingly make a false statement, or knowingly swear or affirm the truth of a false statement previously made, when the statement is made with purpose to mislead a public official, to wit: Montgomery County Auditor in performing the public official's official function."

         {¶ 3} At her November 17, 2017 plea hearing, Harris-Smith acknowledged that she chose to reject the State's offer to plead guilty to one count of obstruction of official business, a misdemeanor of the third degree, in exchange for the dismissal of the falsification charges, and she indicated that she intended to plead no contest to falsification. After the court accepted her no contest pleas, the prosecutor presented the following facts to the court. On March 21, 2017, Harris-Smith made false statements on two Ohio Dangerous Dog Registration Certificates for her dogs, "Buddy" and "Remy." The prosecutor asserted that State's Exhibit 1 was executed by Harris-Smith in the presence of Deputy Auditor Jody Hackett, an employee and agent of Montgomery County Auditor Karl Keith, and that Harris-Smith represented thereon that Buddy was a neutered male dog. State's Exhibit 1 provides in relevant part as follows: Dog description: * * * Sex: __Male (Neutered) __Female (Spayed)". There is a handwritten checkmark on the line between "Sex:" and "Male (Neutered)'"

         {¶ 4} According to the prosecutor, State's Exhibit 3, which is a form identical to State's Exhibit 1, except that it pertains to Remy, was also executed by Harris-Smith in the presence of Hackett, and Harris-Smith placed a checkmark on the line between "Male (Neutered)" and "Female (Spayed)".

         {¶ 5} Directly above Harris-Smith's signatures at the bottom of each form is the following certification:

I certify that, to the best of my knowledge and belief, the information on this form, under penalty of perjury, is true, correct, complete, and made in good faith. I understand that this form or the information it contains may be made available to federal, state, and/or local law enforcement agencies for such action within their jurisdiction as they deem appropriate. I understand that knowingly making any false or fraudulent statement or representation to the government may violate federal, state, or local criminal statutes, and may result in a fine, imprisonment, or both.

(Emphasis sic.)

         {¶ 6} The prosecutor stated that subsequent examinations of the dogs by Veterinarian Kelly Meyer revealed that they had not been neutered and spayed. The prosecutor stated that State's Exhibits 2 and 4 are Meyer's reports which detail her examinations of the dogs. The prosecutor stated that the "only way to obtain a dangerous dog registration certificate is to have a male dog neutered or a female dog spayed."

         {¶ 7} Counsel for Harris-Smith then advised the court that he did not contest the above facts but "would like to make a legal argument." Defense counsel argued that the statements made by Harris-Smith on the certificates were not knowingly made. He asserted that subsection (3) of R.C. 2921.13 does not apply to the facts herein, and he directed the court's attention to subsection (5) of R.C. 2921.13, which he argued "would be the more appropriate section under these facts if the State were to bring charges under these facts." Defense counsel argued that "subsection 5 is much more specific than subsection 3 and to read subsection 3 the way the State is asking would render it meaningless." Counsel argued that Crim.R. 7 did not allow the State to amend its complaint at the current stage of the proceedings.

         {¶ 8} Counsel for Harris-Smith directed the court's attention to State v. Parks, 13 Ohio App.3d 85, 468 N.E.2d 104 (10th Dist.1983), that the "issuing of student identification cards by a clerk at O.S.U. does not constitute the performance of an 'official function' within the meaning of that term as used in R.C. 2921.13(A)(3)." Id. at paragraph two of the syllabus. The Tenth District in Parks found as follows:

* * * [W]hile we have a great respect for tasks performed by the numerous clerical staffs of the various state agencies and offices, to say that each is a "public official" performing "official functions" for the purposes of R.C. 2921.13(A)(3) would be to stretch the reach of that statute beyond logic and reason.
It is a basic rule of statutory construction that where sections of a statute are in pari materia, they shall be construed together so as to give full force and effect to the legislative intent. See, generally, 50 Ohio Jurisprudence 2d (1961) 189, Statutes, Section 216, and numerous decisions cited therein. In the case at bar, the eight[1] subdivisions of R.C. 2921.13(A), each being a delineation of instances in which the making of a false statement becomes a criminal act, should be construed together when interpreting the intention of the legislature in enacting the statute.
A review of the falsification statute reveals that the legislature did not intend for all falsehoods made to minor functionaries to result in criminal liability. Indeed, each section appears to be aimed at prohibiting deceit in somewhat narrow circumstances. Also, R.C. 2921.13(A)(3) and (6) are the only two sections which specify a particular person to whom the false statement must be made, while R.C. 2921.13(A)(3) requires the person to be performing an "official function." * * * [W]e cannot say that the clerk involved herein, having no discretionary powers or any other indicia of independence, performs an "official function" when she issues student identification cards. * * *
This action would appear to fall under R.C. 2921.13(A)(8) as the appellant [student] deceptively sought to obtain a "valuable benefit" from the university [an identification card]. This rather innocuous action would not lead to criminal liability then, unless "* * * the person to whom such ...

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