[Cite as State v. Minich, 2017-Ohio-9262.]

IN THE COURT OF APPEALS 

ELEVENTH APPELLATE DISTRICT 

LAKE COUNTY, OHIO 

STATE OF OHIO, : O P I N I O N 

 Plaintiff-Appellee, : 

 CASE NO. 2016-L-077

 - vs - : 

PATRICIA M. MINICH, : 

 Defendant-Appellant. : 

Criminal Appeal from the Lake County Court of Common Pleas. 

Case No. 2015 CR 000211. 

Judgment: Affirmed. 

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 DefendantAppellant). 

TIMOTHY P. CANNON, J. 

{¶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. 
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{¶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 
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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 fifthdegree Theft felony (Count 22), and two were fourth-degree Grand Theft felonies (Counts 
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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 

at the time of the offenses. No other merger issues were raised at sentencing by either 

defense counsel or the prosecution. The state elected to proceed to sentencing on 

Counts 15, 18, 20, 22, and 23. 

{¶11} Following a pre-sentence investigation, the trial court sentenced appellant 

to eighteen months each on Counts 15, 18, and 20, twelve months on Count 22, and four 

years on Count 23, all to be served consecutive to each other, for a total prison term of 

nine and one-half years. The trial court also ordered appellant to make restitution to the 

victims of the offenses: $26,996.00 to the state of Ohio; $122,588.75 to the Engels; and 

$76,978.96 to Chase Card Services. 

{¶12} Appellant filed a notice of appeal from the trial court’s sentencing entry and 

raises two assignments of error for our review. 
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{¶13} Appellant’s first assignment of error states: 

{¶14} “The court erred to the prejudice of the defendant by failing to merge counts 

seventeen through twenty-four for purposes of sentencing.” 

{¶15} Appellant argues the trial court failed to conduct a merger inquiry on Counts 

17-24 and that the trial court should have merged, pursuant to R.C. 2941.25, Counts 17-

24 as allied offenses of similar import. 

{¶16} Appellant did not raise these arguments in the trial court and has, therefore, 

forfeited all but plain error review on appeal. See Crim.R. 52(B). “[A] forfeited error is not 

reversible error unless it affected the outcome of the proceeding and reversal is 

necessary to correct a manifest miscarriage of justice.” State v. Rogers, 143 Ohio St.3d 

385, 2015-Ohio-2459, ¶3. Regarding issues of merger, the accused must “demonstrate 

a reasonable probability that the convictions are for allied offenses of similar import 

committed with the same conduct and without a separate animus; absent that showing, 

the accused cannot demonstrate that the trial court’s failure to inquire whether the 

convictions merge for purposes of sentencing was plain error.” Id.; see also State v. 

Barnard, 11th Dist. Ashtabula Nos. 2016-A-0010 & 2016-A-0011, 2016-Ohio-7842, ¶15-

17. 

{¶17} R.C. 2941.25 “incorporates the constitutional protections against double 

jeopardy. These protections generally forbid successive prosecutions and multiple 

punishments for the same offense.” State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio2, ¶7. “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.” R.C. 2941.25(A). 
 6

“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.” 

R.C. 2941.25(B). 

{¶18} “The determination whether an offender has been found guilty of allied 

offenses of similar import ‘is dependent upon the facts of a case because R.C. 2941.25 

focuses on the defendant’s conduct,’ and ‘an offense may be committed in a variety of 

ways’.” State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, ¶18, quoting State v.

Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, ¶26 & ¶30. “As a practical matter, when 

determining whether offenses are allied offenses of similar import within the meaning of 

R.C. 2941.25, courts must ask three questions when the defendant’s conduct supports 

multiple offenses: 

(1) Were the offenses dissimilar in import or significance? 

(2) Were they committed separately? and 

(3) Were they committed with separate animus or motivation? 

Ruff, supra, at ¶31; see also id. at ¶13, citing State v. Moss, 69 Ohio St.2d 515, 519 

(1982). “An affirmative answer to any of the above will permit separate convictions.” Id.

at ¶31. 

{¶19} “[T]wo or more offenses of dissimilar import exist within the meaning of R.C. 

2941.25(B) when the defendant’s conduct constitutes offenses involving separate victims 

or if the harm that results from each offense is separate and identifiable.” Id. at ¶23. The 

victim of Counts 23-24 was identified as Richard Engel; the victim of Counts 17-22 was 
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identified as the state of Ohio. Therefore, merger of Counts 23-24 with Counts 17-22 

would have been improper. 

{¶20} The trial court merged Count 17 into Count 18, Count 19 into Count 20, and 

Count 21 into Count 22. Therefore, the remaining argument is whether the trial court 

should have inquired into the merger of Counts 18, 20, and 22. The convictions for these 

three counts were for the unemployment compensation benefits appellant stole from the 

state of Ohio. On three separate occasions, appellant applied for unemployment benefits 

from the state; each application was a claim for benefits that was only good for one year. 

Appellant also submitted weekly claims for benefits during the time she was receiving 

them under each separate application. Count 18 refers to appellant’s conduct that 

occurred between August 7, 2011, and January 21, 2012. Count 20 refers to appellant’s 

conduct that occurred between August 4, 2012, and September 21, 2013. Count 22 refers 

to appellant’s conduct that occurred between October 6, 2013, and January 25, 2014. 

{¶21} Appellant’s conduct resulted in three offenses of the same or similar kind, 

but each offense was based on a separate and distinct act, and each act had its own 

independent animus. Therefore, appellant cannot demonstrate that the trial court’s failure 

to inquire whether the convictions for Counts 18, 20, and 22 merge for purposes of 

sentencing was plain error. 

{¶22} Appellant’s first assignment of error is without merit. 

{¶23} Appellant’s second assignment of error states: 

{¶24} “The court erred to the prejudice of appellant by failing to dismiss and/or 

permitting a conviction on count 23 identity fraud.” 
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{¶25} Appellant essentially argues the trial court should have granted her Crim.R. 

29(A) motion for judgment of acquittal on Count 23, which charged Identity Fraud Against 

a Person in a Protected Class, in violation of R.C. 2913.49(B)(1). 

{¶26} Crim.R. 29(A) requires the trial court to grant a motion for judgment of 

acquittal if the evidence is insufficient to sustain a conviction on the charged offenses. 

“Thus, when an appellant makes a Crim.R. 29 motion, he or she is challenging the 

sufficiency of the evidence introduced by the state.” State v. Patrick, 11th Dist. Trumbull 

Nos. 2003-T-0166 & 2003-T-0167, 2004-Ohio-6688, ¶18. 

{¶27} When reviewing whether sufficient evidence was presented to sustain a 

conviction, “[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, 61 Ohio St.3d 

259 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307 

(1979). Thus, a claim of insufficient evidence invokes a question of due process, the 

resolution of which does not allow for a weighing of the evidence. State v. Habo, 11th 

Dist. Portage No. 2012-P-0056, 2013-Ohio-2142, ¶14. 

{¶28} R.C. 2913.49(B)(1) provides: “No person, without the express or implied 

consent of the other person, shall use, obtain, or possess any personal identifying 

information of another person with intent to * * * [h]old the person out to be the other 

person[.]” Identity Fraud is generally a felony of the fifth degree. R.C. 2913.49(I)(2). 

When the victim of the offense is an elderly person, the degree of the offense is raised 

and is referred to as Identity Fraud against a Person in a Protected Class. R.C. 

2913.49(I)(3). In this case, where the “value of the credit, property, services, debt, or 
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other legal obligation involved in the violation or course of conduct” was between $7,500 

and $150,000, a violation of R.C. 2913.49(B)(1) is a felony of the second degree. Id. 

{¶29} Appellant argues there was insufficient evidence that she committed this 

offense against a “person,” under the plain language of the statute, because the identity 

or persona she assumed was that of an entity. In the alternative, if “person” is defined to 

include an entity, appellant argues there was insufficient evidence that she committed the 

second-degree felony version of this offense because an entity cannot be considered 

“elderly.” 

{¶30} Appellant was charged with violating R.C. 2913.49 by fraudulently 

assuming the identity of Richard Engel, an elderly person at the time of the offense. At 

trial, the prosecution introduced the form it alleged appellant submitted to the Office of 

Unemployment Compensation in October 2013, titled “Request to Employer for 

Separation Information,” which included Richard Engel’s personal identifying information 

(his name in the form of a purported signature). Richard Engel testified at trial that what 

was presented as his signature on that form was not actually his signature and that he 

did not authorize anyone to sign the form on his behalf. 

{¶31} Appellant argues she was not employed by Richard Engel, but by Jackson 

Hewitt Tax Service, and therefore she would not have been permitted to collect 

unemployment benefits through Richard Engel. The culmination of her argument is the 

assertion that, if she fraudulently assumed the identity of anything, she fraudulently 

assumed the identity of Jackson Hewitt Tax Service, not Richard Engel. 

{¶32} The applications appellant submitted for unemployment benefits each listed 

“Richard Engel” as her employer. In response to her applications, the “Request to 
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Employer for Separation Information” form was mailed and addressed to Richard Engel, 

not Jackson Hewitt, by the Office of Unemployment Compensation. The employer’s 

certification at the bottom of the form includes Richard Engel’s purported signature. The 

certification also indicates Richard Engel is the owner of Jackson Hewitt Tax Service; 

nevertheless, the form was addressed to Richard Engel, and it was purportedly signed by 

Richard Engel. Additionally, the multiple decisions issued to appellant by the Office of 

Unemployment Compensation, titled “Determination of Unemployment Compensation 

Benefits,” identify Richard Engel as the employer; they do not mention Jackson Hewitt 

Tax Service. These documents were all presented by the state at trial. Diane Jarrell, a 

Claim Specialist with the Office of Unemployment Compensation tasked with investigating 

fraud, also testified that “Richard Engel we had as her employer and requested the wages 

that she had earned in the time period that she had collected benefits.” 

{¶33} The state therefore presented evidence, sufficient to survive a Crim.R. 

29(A) motion, that appellant held herself out to be Richard Engel by submitting the form, 

which included Richard Engel’s personal identifying information in the form of his 

purported signature, to the Office of Unemployment Compensation without Richard 

Engel’s express or implied consent. 

{¶34} Appellant’s first argument is not well taken, and appellant does not dispute 

that Richard Engel was an elderly person at the time of the offense. We need not reach 

appellant’s alternative argument regarding assigning an age to an entity.

{¶35} After oral argument, we granted the parties leave to file supplemental briefs 

on the issue of whether the “value of the credit, property, services, debt, or other legal 
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obligation” used to enhance the degree of the felony must be a financial loss that was 

incurred by the elderly victim.

{¶36} “No person, without the express or implied consent of the other person, shall 

use, obtain, or possess any personal identifying information of another person with intent 

to * * * (1) Hold the person out to be the other person[.]” R.C. 2913.49(B). “If the value 

of the credit, property, services, debt, or other legal obligation involved in the violation or 

course of conduct is seven thousand five hundred dollars or more and is less than one 

hundred fifty thousand dollars, identity fraud against a person in a protected class is a 

felony of the second degree.” (Emphasis added.) R.C. 2913.49(I)(3). 

{¶37} When the offender commits a violation of R.C. 2913.49(B) as “part of a 

course of conduct” that involves violations of R.C. 2913.02 (Theft) and R.C. 2913.31 

(Forgery), “the court, in determining the degree of the offense pursuant to division (I) of 

this section, may aggregate all credit, property, or services obtained or sought to be 

obtained by the offender and all debts or other legal obligations avoided or sought to be 

avoided by the offender in the violations involved in that course of conduct.” R.C. 

2913.49(H)(1). “The course of conduct may involve one victim or more than one victim.” 

Id.

{¶38} Here, appellant’s course of conduct was committing Theft by wrongfully 

obtaining unemployment compensation benefits from the state and then committing 

Identity Fraud, by holding herself out to be Richard Engel and forging documents, in order 

to prevent discovery of her theft from the state. Thus, appellant’s course of conduct 

involved more than one victim—Richard Engel (an elderly victim) and the state of Ohio. 
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The amount of “credit, property, or services obtained” by appellant as a result of this 

course of conduct was $26,996.00 in unemployment benefits. 

{¶39} The state presented sufficient evidence to support the elevation of 

appellant’s conviction of Identity Fraud to a felony of the second degree.

{¶40} Appellant’s second assignment of error is without merit.

{¶41} The judgment of the Lake County Court of Common Pleas is affirmed.

DIANE V. GRENDELL, J., 

THOMAS R. WRIGHT, J., 

concur.