[Cite as State v. Atkins, 2013-Ohio-2326.]

COURT OF APPEALS 

FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsSHEVANN R. ATKINS 

 Defendant-Appellant 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. William B. Hoffman, J. 

: Hon. Sheila G. Farmer, J. 

: 

: 

: Case No. 12-CA-39 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Criminal appeal from the Fairfield County 

Court of Common Pleas, Case No. 2011-

CR-380 

JUDGMENT: Affirmed in part; reversed in part; remanded 

DATE OF JUDGMENT ENTRY: June 4, 2013 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JOCELYN KELLY THOMAS ELWING 

Assistant Prosecuting Attorney 60 West Columbus Street 

239 West Main Street, Suite 101 Pickerington, OH 43147 

Lancaster, OH 43130
[Cite as State v. Atkins, 2013-Ohio-2326.]

Gwin, P.J. 

{¶1} Defendant-appellant Shevann R. Atkins (“Atkins”) appeals her convictions 

and sentences in the Fairfield County Court of Common Pleas for one count of theft, a 

fourth-degree felony in violation of R.C. 2913.02(A)(3), one count of illegal use of 

supplemental nutrition assistance program benefits, a fourth-degree felony in violation 

of R.C. 2913.46(B), and one count of tampering with records, a third-degree felony in 

violation of R.C. 2913.42(A)(1). 

Facts and Procedural History 

{¶2} Between 2009 and 2011, Atkins submitted numerous applications for 

benefits to Fairfield County Job and Family Services (“FCJFS”). In each application, 

Atkins stated that she was a single woman living with her two minor children. She did 

not disclose to FCJFS that her husband, Richard Atkins, was living with her and the 

children. Through these misrepresentations, Atkins received an overpayment of $7,060 

in supplemental nutrition assistance program or “SNAP” benefits. Atkins also received 

an overpayment of over $13,000 in childcare cash assistance benefits due to her 

misrepresentation concerning her living arrangements. 

{¶3} In support of its assertion that Richard Atkins was a member of the 

household who should have been disclosed, the state presented the testimony of 

witnesses, as well as documentary evidence, and a recorded confession from Atkins to 

an investigator of the Fairfield County Prosecutor's Office. Atkins contested the state's 

allegations and testified in her own defense. She asserted that while her husband 

frequently visited and occasionally stayed overnight, the two had a strained relationship 
Fairfield County, Case No. 12-CA-39 3 

and did not live together. Atkins further asserted that her confession was not voluntary 

and resulted from inappropriate pressure applied by the investigator. 

{¶4} At trial, the State argued that the third count of the indictment for 

tampering with records was based on a single written application for childcare cash 

assistance benefits submitted by Ms. Atkins on July 25, 2009. 

{¶5} At the close of all evidence, and prior to submission to the jury, the trial 

court determined that 2011 Am.Sub.H.B. No. 86 applied to modify the level of the 

offense for the second count of the indictment charging illegal use of supplemental 

nutrition assistance program benefits. As a result, the second count of the indictment 

was reduced from a third-degree felony to a fourth-degree felony. The matter was then 

submitted to the jury. 

{¶6} Following four days of trial, a jury found Atkins guilty on all three counts of 

the indictment. 

Assignments of Error 

{¶7} Atkins raises two assignments of error, 

{¶8} “I. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO A 

THIRD-DEGREE FELONY FOR THE OFFENSE OF TAMPERING WITH RECORDS 

WHERE THE VERDICT FORM RETURNED BY THE JURY FAILED TO COMPLY 

WITH THE REQUIREMENTS OF R.C. 2945.75(A)(2) FOR ENHANCING THE 

DEGREE OF THE OFFENSE. 

{¶9} “II. THE TRIAL COURT ERRED IN DETERMINING THAT THE 

OFFENSES OF THEFT, ILLEGAL USE OF SUPPLEMENTAL NUTRITION 

ASSISTANCE PROGRAM BENEFITS, AND TAMPERING WITH RECORDS WERE 
Fairfield County, Case No. 12-CA-39 4 

NOT ALLIED OFFENSES OF SIMILAR IMPORT SUBJECT TO THE MERGER 

STATUTE.” 

I. 

{¶10} Atkins first contends that the verdict form returned by the jury on count 

three of the indictment failed to comply with R.C. 2945.75(A)(2) and, therefore, Atkins 

can only be sentenced for a misdemeanor of the first-degree. 

{¶11} Atkins was convicted on the third count of the indictment for tampering 

with records as a third-degree felony. This conviction for tampering with records was 

based on a single written application for childcare cash assistance benefits submitted to 

Fairfield County Job and family Services on July 25, 2009. This offense would constitute 

a first-degree misdemeanor under R.C. 2913.42(B)(2)(a) unless the writing at issue was 

found to be a government record, a circumstance that elevates the crime to a thirddegree felony under R.C. 2913.42(B)(4). However, the offense in the case at bar was 

not properly elevated to a felony because the verdict form returned by the jury fails to 

state the degree of the offense and fails to indicate any finding that the writing at issue 

is a government record. 

{¶12} The Supreme Court of Ohio has interpreted R.C. 2945.75 to provide the 

requirements for what must be included in a jury verdict form. State v. Pelfrey, 112 Ohio 

St.3d 422, 860 N.E.2d 735, 2007-Ohio-256, ¶14. The Pelfrey Court held that "pursuant 

to the clear language of R.C. 2945.75, a verdict form signed by a jury must include 

either the degree of the offense of which the defendant is convicted or a statement that 

an aggravating element has been found to justify convicting a defendant of a greater 
Fairfield County, Case No. 12-CA-39 5 

degree of a criminal offense." Id. See also, State v. Nethers, 5th Dist. No. 07 CA 78, 

2008-Ohio-2679, ¶ 51. 

{¶13} The state concedes that the verdict form in the case at bar was not 

sufficient under Pelfrey to convict Atkins of tampering with records as a felony of the 

third degree. 

{¶14} We agree. The jury verdict on count three did not contain the degree of 

the offense or the additional finding that the writing at issue is a government record. 

{¶15} Therefore, pursuant to Pelfrey, Atkins could only be convicted of the 

lowest degree of the offense, a first-degree misdemeanor. Accordingly, the trial court 

erred in sentencing Atkins as if the tampering with records was a felony of the third 

degree. 

{¶16} Atkins first assignment of error is sustained. 

II. 

{¶17} In her second assignment of error, Atkins argues that the trial court erred 

by not merging the convictions for theft, illegal use of supplemental nutrition assistance 

program benefits, and tampering with records for purposes of sentencing pursuant to 

R.C. 2941.25. 

{¶18} R.C. 2941.25, Multiple counts states: 

 (A) Where the same conduct by defendant can be construed to 

constitute two or more allied offenses of similar import, the indictment or 

information may contain counts for all such offenses, but the defendant 

may be convicted of only one. 
Fairfield County, Case No. 12-CA-39 6 

 (B) Where the defendant's conduct constitutes two or more 

offenses of dissimilar import, or where his conduct results in two or more 

offenses of the same or similar kind committed separately or with a 

separate animus as to each, the indictment or information may contain 

counts for all such offenses, and the defendant may be convicted of all of 

them. 

{¶19} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 

1061, the Ohio Supreme Court revised its allied-offense jurisprudence. The Johnson

court overruled State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699(1999), “to the extent 

that it calls for a comparison of statutory elements solely in the abstract under R.C. 

2941.25.” The Court was unanimous in its judgment and the syllabus, “When 

determining whether two offenses are allied offenses of similar import subject to merger 

under R.C. 2941.25, the conduct of the accused must be considered. (State v. Rance 

(1999), 85 Ohio St.3d 632, 710 N.E.2d 699, overruled.)” However, the Court could not 

agree on how the courts should apply that syllabus holding. The Johnson case lacks a 

majority opinion, containing instead two plurality opinions, and a separate concurrence 

in the judgment and syllabus only. State v. Helms, 7th Dist. No. 08 MA 199, 2012-Ohio1147, ¶71 (DeGenaro, J., concurring in part and dissenting in part). 

{¶20} Justice Brown’s plurality opinion sets forth a new two-part test for 

determining whether offenses are allied offenses of similar import under R.C. 2941.25. 

The first inquiry focuses on whether it is possible to commit both offenses with the same 

conduct. Id. at ¶ 48, 710 N.E.2d 699. It is not necessary that the commission of one 

offense will always result in the commission of the other. Id. Rather, the question is 
Fairfield County, Case No. 12-CA-39 7 

whether it is possible for both offenses to be committed by the same conduct. Id.,

quoting State v. Blankenship, 38 Ohio St.3d 116, 119, 526 N.E.2d 816(1988). 

Conversely, if the commission of one offense will never result in the commission of the 

other, the offenses will not merge. Johnson at ¶ 51. 

{¶21} If it is possible to commit both offenses with the same conduct, the court 

must next determine whether the offenses were in fact committed by a single act, 

performed with a single state of mind. Id. at ¶ 49, quoting State v. Brown, 119 Ohio 

St.3d 447, 895 N.E.2d 149, 2008-Ohio-4569, ¶ 50 (Lanzinger, J., concurring in 

judgment only). If so, the offenses are allied offenses of similar import and must be 

merged. Johnson at ¶ 50. On the other hand, if the offenses are committed separately 

or with a separate animus, the offenses will not merge. Id. at ¶ 51. 

{¶22} Under Justice Brown’s plurality opinion in Johnson, “the court need not 

perform any hypothetical or abstract comparison of the offenses at issue in order to 

conclude that the offenses are subject to merger.” Id. at ¶ 47, 942 N.E. 2d 1061. Rather, 

the court simply must ask whether the defendant committed the offenses by the same 

conduct. Id. 

{¶23} To be found guilty of tampering with records in violation of R.C. 

2913.42(A)(1), the state must prove that the accused, “knowing the person has no 

privilege to do so, and with purpose to defraud or knowing that the person is facilitating 

a fraud,” falsified, destroyed, removed, concealed, altered, defaced, or mutilated any 

writing, computer software, data, or record. “Defraud” means to knowingly obtain, by 

deception, some benefit for oneself or another or to knowingly cause, by deception, 

some detriment to another.” R.C. 2913.01(B). “Deception” means knowingly deceiving 
Fairfield County, Case No. 12-CA-39 8 

another or causing another to be deceived by any false or misleading representation, by 

withholding information, by preventing another from acquiring information, or by any 

other conduct, act, or omission that creates, confirms, or perpetuates a false impression 

in another, including a false impression as to law, value, state of mind, or other objective 

or subjective fact.” R.C. 2913.01(A). 

{¶24} To be found guilty of illegal use of supplemental nutrition assistance 

program benefits or WIC program benefits in violation of R.C. 2913.46(B), the state 

must prove that the accused knowingly possessed, bought, sold, used, altered, 

accepted, or transferred supplemental nutrition assistance program benefits, WIC 

program benefits, or any electronically transferred benefit in any manner not authorized 

by the Food and Nutrition Act of 2008 (7 U.S.C. 2011 et seq.) or section 17 of the “Child 

Nutrition Act of 1966,” 80 Stat. 885, 42 U.S.C. 1786, as amended. 

{¶25} To be found guilty of theft in violation of R.C. 2913.02(A)(3), the state must 

prove that the accused, with purpose to deprive the owner of property or services, 

knowingly obtained or exerted control over either the property or services by deception. 

{¶26} In the case at bar, the conduct that constitutes tampering with records was 

complete when Atkins entered the false information upon the application for benefits 

and submitted the form to FCJFS on July 25, 2009. Tampering does not require any 

theft offense in order to be completed. Further, Atkins possessed, used and accepted 

SNAP benefits from January 2, 2009 through July 31, 2011 in a manner not authorized 

by the Food and Nutrition Act of 2008 (7 U.S.C. 2011 et seq.) or section 17 of the “Child 

Nutrition Act of 1966,” 80 Stat. 885, 42 U.S.C. 1786, as amended. Atkins also received 

over $13,000.00 in childcare cash assistance benefits. Atkins did not commit the crime 
Fairfield County, Case No. 12-CA-39 9 

of illegal use of supplemental nutrition assistance program benefits or WIC program 

benefits in violation of R.C. 2913.46(B) until she exercise dominion and control over the 

benefits. Atkins did not consummate the theft offense until she knowingly obtained or 

exerted control over the childcare cash assistance benefits. 

{¶27} Atkins relies upon State v. Rivarde, 197 Ohio App.3d 99, 2011-Ohio5354, 966 N.E.2d 301 to argue that her offenses were committed with the same animus. 

In Rivarde the Twelfth District Court of Appeals found that tampering with records, a 

violation of R.C. 2913.42, and Medicaid eligibility fraud, a violation of 2913.401, were 

allied offenses of similar import. The Court observed, 

 To be found guilty of tampering with records in violation of R.C. 

2913.42(A)(1) and (B)(4), a third-degree felony, the state must prove that 

the accused, “knowing the person has no privilege to do so, and with 

purpose to defraud or knowing that the person is facilitating a fraud,” 

falsified, destroyed, removed, concealed, altered, defaced, or mutilated 

any writing, computer software, data, or record kept by or belonging to a 

local, state, or federal governmental entity. 

 To be found guilty of Medicaid-eligibility fraud in violation of R.C. 

2913.401(B)(1), which, based on the facts of this case, rose to a fourthdegree felony, the state must prove that the accused, “in an application for 

medicaid benefits or in a document that requires a disclosure of assets for 

the purpose of determining eligibility to receive medicaid benefits,” 

knowingly made or caused to be made a “false or misleading statement.” 
Fairfield County, Case No. 12-CA-39 10 

197 Ohio App.3d 99, ¶19. Both statutes required the accused to make false statements, 

which was the basis of the charge against Rivarde. Id. at ¶22. In the case at bar, neither 

theft nor illegal use of supplemental nutrition assistance program benefits require a false 

statement. Thus, unlike the statutes reviewed in Rivarde, the statutes in the case at bar 

do not require the accused to act with the same animus. 

{¶28} Atkins acted with a separate animus with respect to the three counts of the 

indictment. Therefore, the trial court correctly sentenced her on each count. 

{¶29} Atkins’ second assignment of error is overruled. 

{¶30} For the foregoing reasons, the judgment of the Court of Common Pleas, of 

Fairfield County, Ohio, is affirmed in part, reversed in part and this matter is remanded 

to that court for proceedings in accordance with our opinion and the law. 

By Gwin, P.J., 

Hoffman, J., and 

Farmer, J., concur 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. WILLIAM B. HOFFMAN 

 _________________________________ 

 HON. SHEILA G. FARMER 

WSG:clw 0522
[Cite as State v. Atkins, 2013-Ohio-2326.]

IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

SHEVANN R. ATKINS : 

 : 

 : 

 Defendant-Appellant : CASE NO. 12-CA-39 

 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of 

the Court of Common Pleas, of Fairfield County, Ohio, is affirmed in part, reversed in 

part and this matter is remanded to that court for proceedings in accordance with our 

opinion and the law. Costs shared equally between the parties. 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. WILLIAM B. HOFFMAN 

 _________________________________ 

 HON. SHEILA G. FARMER