[Cite as State v. Sweet Distrib., 2013-Ohio-3822.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

Nos. 99312 and 99313

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

SWEET DISTRIBUTING AND 

SAMIR ELALOUL

DEFENDANTS-APPELLANTS 

JUDGMENT:

REVERSED AND REMANDED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-567353 

BEFORE: E.T. Gallagher, J., Keough, P.J., and Blackmon, J. 

RELEASED AND JOURNALIZED: September 5, 2013 
ATTORNEYS FOR APPELLANTS

Mark Marein 

Steven L. Bradley 

Marein & Bradley 

222 Leader Building 

526 Superior Avenue 

Cleveland, Ohio 44114 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: James D. May 

Assistant Prosecuting Attorney 

The Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
EILEEN T. GALLAGHER, J.: 

{¶1} In this consolidated appeal, defendants-appellants, Samir Elaloul 

(“Elaloul”) and Sweet Distributing, Inc. (“Sweet Distributing”) (collectively 

referred to as “appellants”), appeal their tampering with records convictions. We 

find merit to the appeal and reverse the convictions. 

{¶2} Appellants were charged in a 90-count indictment with engaging in 

corrupt activity, aggravated theft, possession of criminal tools, and conspiracy. 

The indictment also charged appellants with numerous counts of tampering with 

records, money laundering, intent to avoid payment of tax, and unlawful 

transportation of tobacco products. The state alleged that appellants defrauded 

the state of Ohio of excise tax revenue by creating fraudulent tax returns. 

{¶3} Under Ohio law, tobacco wholesalers are required to file monthly tax 

returns and pay a 17 percent inventory tax on other tobacco products (“OTP”) 

acquired during the month. Wholesalers may claim a full tax credit against the 

17 percent tax for all sales that the wholesaler made to out-of-state customers 

during the month. The monthly tax returns include a schedule A, which lists 

inventory acquired during the month, and a schedule B, which lists all sales 

made to out-of-state customers during the month. The returns are due to be 

filed one month after the month being reported. 
{¶4} Beginning in April 2009, Sweet Distributing began selling OTP to 

Royal Wholesale Distributing (“Royal Wholesale”), which was incorporated and 

had its principal place of business in Pennsylvania. From April 2009 through 

December 2009, Sweet Distributing claimed tax credits for its sales to Royal 

Wholesale as an out-of-state customer. Elaloul discovered that Royal Wholesale 

was not a legitimate Pennsylvania company when its principal, Hashem AlHamid (“Al-Hamid”), was arrested for tax-fraud in February 2010. 

{¶5} It is undisputed that appellants filed state tax returns for every month from April 

2009 through January 2010. Appellants were convicted of tampering with records for allegedly 

falsifying information on their January 2010 tax return. Elaloul testified at trial that he did not 

claim credits for sales made to Royal Wholesale in January 2010 because he had learned that 

Royal Wholesale was involved in a tax-fraud scheme. Appellants argued they did not claim 

credits because they did not want to knowingly claim credits for out-of-state sales that they 

learned were being distributed in Ohio. 

{¶6} A jury acquitted appellants of all counts except Counts 12 and 21, which alleged that 

appellants prepared and uttered a false record in violation of R.C. 2913.42. These two counts 

specifically identified the record in question as the January 2010 “State of Ohio excise tax 

reporting forms.” Although these charges were identified as third-degree felonies in the 

indictment, the court granted appellants’ motion to reduce them to first-degree misdemeanors 

pursuant to State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735. 
{¶7} Appellants filed post-verdict motions for acquittal and for a new trial, arguing that 

the verdicts were against the manifest weight of the evidence. Appellants also moved to dismiss 

Counts 12 and 21 because they failed to state an offense under R.C. 2913.42. The court denied 

these motions and sentenced appellants to fines of $1,000 each and sentenced Elaloul to 

community control sanctions. Appellants now appeal and raise three assignments of error. 

{¶8} We find the first and third assignments of error dispositive of this appeal. In the first 

assignment of error, appellants argue the evidence is insufficient to sustain a conviction under 

R.C. 2913.42 for the crimes alleged in Counts 12 and 21. Count 12 alleges that appellants 

prepared a false 2010 tax return. Count 21 alleges that appellants uttered the false 2010 tax return. 

 In the third assignment of error, appellants argue that R.C. 5703.26, which governs the 

falsification of tax records, precludes the state from prosecuting them for tax-fraud under R.C. 

2913.42.1

 We agree. 

{¶9} R.C. 2913.42(A) prohibits anyone from knowingly falsifying and uttering false 

records “with purpose to defraud.” Similarly, R.C. 5703.26 prohibits anyone from knowingly 

making, presenting, or filing a fraudulent tax return with the Ohio department of taxation with 

intent to defraud the state. R.C. 5703.26 further states that “[w]ith respect to such acts or conduct, 

 1 Although appellants argue their convictions were improperly indicted under R.C. 2913.42, they 

maintain that they did not submit false information in their January 2010 tax return. As previously stated, 

they assert that they did not claim a credit for out-of-state sales to Royal Wholesale, even though they 

sold other tobacco products to Royal Wholesale, because they discovered that Al-Hamid was actually 

distributing the products to Ohio retailers.
no conviction shall be had under any other section of the Revised Code.” Appellants assert that 

based on this language, R.C. 5703.26 is the exclusive provision in the Ohio Revised Code under 

which the filing of false tax returns may be prosecuted. Therefore, they argue, the state could not 

prosecute them for preparing and uttering a false tax return under R.C. 2913.42, as charged in the 

indictment. 

{¶10} The state argues that appellants’ interpretation of the language “no conviction shall 

be had under any other section of the Revised Code” would render other tax statutes prohibiting 

the filing of false or fraudulent returns meaningless. However, R.C. 5703.26 is a general 

provision prohibiting the preparation and filing of any and all fraudulent tax returns. Applying the 

rules of statutory construction set forth in R.C. 1.51, the Ohio Supreme Court has held that “where 

there is no manifest legislative intent that the general provision prevail over the specific provision, 

the specific provision applies.” Meyer v. UPS, 122 Ohio St.3d 104, 2009-Ohio-2463, 909 N.E.2d 

106, ¶ 21, citing State v. Chippendale, 52 Ohio St.3d 118, 556 N.E.2d 1134 (1990). Therefore, 

R.C. 5703.26 does not preclude the state from prosecuting the specific crimes involving false sales 

and income tax returns under other sections of the tax code. 
{¶11} The state would have us disregard the plain language of R.C. 5703.26. However, if 

the language used in a statute is clear and unambiguous, the statute must be applied as written, and 

it is not appropriate to engage in further interpretation. State ex rel. Burrows v. Indus. Comm., 78 

Ohio St.3d 78, 81, 676 N.E.2d 519 (1997). A court must “give effect to the words actually 

employed in a statute, and should not delete words used, or insert words not used, in the guise of 

interpreting the statute.” State v. Taniguchi, 74 Ohio St.3d 154, 156, 656 N.E.2d 1286 (1995), 

citing State v. Waddell, 71 Ohio St.3d 630, 631, 646 N.E.2d 821 (1995). 

{¶12} R.C. 5703.26, which prohibits the filing of false or fraudulent tax returns, is more 

specific than R.C. 2913.42, which applies to the tampering of all kinds of records, not just tax 

records. Because R.C. 5703.26 expressly precludes prosecution for the falsification of tax records 

under any other section of the Revised Code, appellants were wrongfully convicted of 

tampering with records and for preparing and uttering false tax records under 

R.C. 2913.42. 

{¶13} The first and third assignments of error are sustained. Having 

determined that these assigned errors are dispositive of this appeal, the second 

assignment of error is moot. 

{¶14} Case is reversed and remanded to the trial court to execute a 

judgment entry vacating appellants’ convictions. 

It is ordered that appellants recover from appellee 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. 

A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

EILEEN T. GALLAGHER, JUDGE 

KATHLEEN ANN KEOUGH, P.J., and 

PATRICIA ANN BLACKMON, J., CONCUR