[Cite as State v. Chandler, 2016-Ohio-1017.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2015-T-0033
- vs - :
KEITH DONTALE CHANDLER, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2014 CR
00632.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Keith Chandler, appeals his convictions in the
Trumbull County Court of Common Pleas on multiple counts of Tampering with Records
and Forgery. The issue before this court is whether the crimes of Tampering with
Records and Forgery are irreconcilable with the allegedly “more specific” crime of
Falsification. For the following reasons, we affirm the decision of the court below.
{¶2} On September 18, 2014, the Trumbull County Grand Jury returned an
Indictment, charging Chandler with Tampering with Records (Count 1), a felony of the
third degree in violation of R.C. 2913.42(A)(1), (B)(1) and (4); Forgery (Count 2), a
felony of the fifth degree in violation of R.C. 2913.31(A)(3), (C)(1)(a) and (b); and
Tampering with Records (Counts 3-8), felonies of the third degree in violation of R.C.
2913.42(A)(1) and (B)(4).
{¶3} On September 26, 2014, Chandler was arraigned on the Indictment and
entered a plea of “not guilty” to all Counts.
{¶4} On January 22, 2015, Chandler filed a Motion to Dismiss the charges
against him on the grounds that the prosecutor violated his discretion by charging him
under “more generic and more serious felony statutes,” rather than with Falsification, a
misdemeanor of the first degree in violation of R.C. 2921.13(A)(5), “which is quite
specific to the conduct which the Defendant is alleged to have committed.”
{¶5} On January 29, 2015, the State filed its Response.
{¶6} On February 4, 2015, the trial court denied Chandler’s Motion to Dismiss.
{¶7} On February 11, 2015, Chandler filed a Motion for Reconsideration, to
which the State filed a Response on February 13, 2015.
{¶8} On February 18, 2015, the trial court denied Chandler’s Motion for
Reconsideration.
{¶9} On February 19, 2015, Chandler entered a plea of “no contest” to all
Counts of the Indictment. At the change of plea hearing, the State made the following
proffer as to what the evidence would have shown:
With respect to Counts 1 and 2, on or about the second day of
October of 2009 this defendant presented a falsified DD 214. That
is his military discharge papers. The military discharge papers
were * * * altered to reflect that this defendant was a Purple Heart
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recipient or had been awarded the Purple Heart, when in reality he
had not been. The defendant used that document to obtain Purple
Heart plates, in particular plate number 431-YBW with a Purple
Heart designation on that.
With respect to Count 3, on September 6th of 2011 the defendant
went to the title agency and again renewed that same plate, the
431-YBW, certifying on the document that was kept by the state of
Ohio that he was indeed a Purple Heart recipient entitled to that
plate.
With respect to Count 4, on 11/17/2011 he went in and obtained a
new plate, 774-YIR, also with a Purple Heart designation, again
certifying that he was indeed a Purple Heart recipient on a
document kept by the state of Ohio.
With respect to Count 5, on June 8th of 2012 he transferred the
774-YIR plate at the Bureau of Motor Vehicles again certifying that
he was a Purple Heart recipient on a document kept by the state of
Ohio.
With respect to Count 6, on July 20th of 2012 he then obtained a
renewal for the 774-YIR plate, again certifying that he was indeed a
Purple Heart recipient, getting the Purple Heart plate on the
certification kept by the state of Ohio.
With respect to Count 7, on August 12th of 2013 the defendant
again transferred and renewed his 774-YIR plate * * * on the
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document collected and retained by the state department of motor
vehicles.
Finally, on October 12th he transferred and/or renewed his plate on
the 431-YBW, again certifying that he was indeed a Purple Heart
recipient. All the documents that he certified this on were indeed
documents kept by the state of Ohio which is a government entity.
Those were in order to defraud the state and obtain Purple Heart
plates.
{¶10} On March 18, 2015, Chandler’s sentencing hearing was held. The trial
court sentenced Chandler to “5 years of community control on each count to run
concurrently subject to the general supervision and control of the Adult Probation
Department,” as well as to further “specific sanctions and conditions” imposed by the
court.
{¶11} On March 27, 2015, the trial court issued a written Entry on Sentence.
{¶12} On April 7, 2015, Chandler filed a Notice of Appeal. On appeal, he raises
the following assignment of error:
{¶13} “[1.] The trial court erred, as a matter of law, by concluding that the
provisions contained in R.C. 2921.13(A)(5) did not prevail over the general provisions
under which the appellant was charged, and denying appellant’s motions on that basis.”
{¶14} Issues regarding statutory construction and a statute’s application to
undisputed facts are reviewed under the de novo standard. Akron Centre Plaza Ltd.
Liab. Co. v. Summit Cty. Bd. of Revision, 128 Ohio St.3d 145, 2010-Ohio-5035, 942
N.E.2d 1054, ¶ 10.
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{¶15} Chandler maintains that the trial court erred by convicting him under the
general statutes, Tampering with Records and Forgery, rather than the specific statute,
Falsification. Chandler’s argument that he could not be convicted of the charges in the
Indictment rests upon the following rule of statutory construction:
If a general provision conflicts with a special or local provision, they
shall be construed, if possible, so that effect is given to both. If the
conflict between the provisions is irreconcilable, the special or local
provision prevails as an exception to the general provision, unless
the general provision is the later adoption and the manifest intent is
that the general provision prevail.
R.C. 1.51; State v. Volpe, 38 Ohio St.3d 191, 527 N.E.2d 818 (1988), paragraph one of
the syllabus (“[w]here there is no manifest legislative intent that a general provision of
the Revised Code prevail over a special provision, the special provision takes
precedence”).
{¶16} In a criminal context, R.C. 1.51 is applicable “only when a general and a
special provision constitute allied offenses of similar import and additionally do not
constitute crimes committed separately or with a separate animus for each crime.”
State v. Chippendale, 52 Ohio St.3d 118, 120, 556 N.E.2d 1134 (1990); State v. Boyle,
11th Dist. Portage No. 2012-P-0003, 2012-Ohio-5581, ¶ 19-23. “Where it is clear that a
general provision of the Criminal Code applies coextensively with a special provision,
R.C. 1.51 allows a prosecutor to charge on both.” Chippendale at paragraph two of the
syllabus. Conversely, “[w]here it is clear that a special provision prevails over a general
provision or the Criminal Code is silent or ambiguous on the matter, under R.C. 1.51, a
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prosecutor may charge only on the special provision.” Id. at paragraph three of the
syllabus.
{¶17} A general provision and a special provision are irreconcilable, i.e., do not
apply coextensively, where they “provide for inconsistent and irreconcilable results on a
particular issue.” State v. Conyers, 87 Ohio St.3d 246, 249, 719 N.E.2d 535 (1999).
See, e.g., Volpe at 193 (R.C. 2915.02(A)(5), “treat[ing] possession of a gambling device
as a first degree misdemeanor,” and R.C. 2923.24, “mak[ing] possession of criminal
tools, arguably such instruments as gambling devices, a fourth degree felony,” are
irreconcilable inasmuch as they “provide for different penalties for the same conduct”),
and Conyers at 249 (“[u]nder former R.C. 2967.15(C)(2), parolees are excepted from
the escape statute, whereas under R.C. 2921.01(E), parolees are included within the
class of individuals subject to the escape statute,” thus creating an irreconcilable
conflict).
{¶18} Seven of Chandler’s convictions were for Tampering with Records in
violation of R.C. 2913.42(A)(1) and (B)(4): “No person, knowing the person has no
privilege to do so, and with purpose to defraud or knowing that the person is facilitating
a fraud, shall * * * [f]alsify, destroy, remove, conceal, alter, deface, or mutilate any
writing, computer software, data, or record * * *. If the writing, data, computer software,
or record is kept by or belongs to a local, state, or federal governmental entity, a felony
of the third degree.”
{¶19} Chandler claims that an irreconcilable conflict exists with Falsification in
violation of R.C. 2921.13(A)(5) and (F)(1): “No person shall knowingly make a false
statement, or knowingly swear or affirm the truth of a false statement previously made,
when * * * [t]he statement is made with purpose to secure the issuance by a
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governmental agency of a license, permit, authorization, certificate, registration, release,
or provider agreement. * * * Whoever violates division (A) * * * (5) * * * of this section is
guilty of falsification * * * a misdemeanor of the first degree.”
{¶20} For the purposes of R.C. 1.51, we do not find Tampering with Records
and Falsification irreconcilable in that they do not provide different penalties for the
same conduct. Unlike third-degree Tampering with Records, misdemeanor Falsification
“clearly does not require that the statement be made in writing or that the falsified
writing or record be kept by a governmental entity.” State v. Hall, 6th Dist. Lucas No. L-
01-1374, 2004-Ohio-1654, ¶ 35. Contrary to Chandler’s position, a comparison of the
two statutes demonstrates that third-degree Tampering is the specific provision and
misdemeanor Falsification the general statute. The broad range of conduct that could
constitute Falsification under R.C. 2921.13(A)(5) is significantly narrowed for the
purposes of third-degree Tampering by restricting the type of statements proscribed to
writings, computer software, data, or records which are kept by a government entity.
The inclusion of these additional elements distinguish third-degree Tampering with
Records from misdemeanor Falsification. Id. at ¶ 36 (“[c]learly, the General Assembly
considered that the uttering of a falsified written document or record, that was to be
maintained by a governmental agency, was more egregious conduct, necessitating a
greater degree of offense, than making a statement, whether oral or written, for the
purpose of securing the issuance of a license or permit”); accord State v. Garrett, 8th
Dist. Cuyahoga No. 92349, 2009-Ohio-5363, ¶ 44-50.
{¶21} Chandler counters that Hall is “outdated law” as a result of the Ohio
Supreme Court’s subsequent decision in State v. Johnson, 128 Ohio St.3d 153, 2010-
Ohio-6314, 942 N.E.2d 1061, which overruled prior case law regarding allied offenses
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of similar import.1 Chandler’s argument does not avail. As stated by the Ohio Supreme
Court in Chippendale, analysis in light of R.C. 1.51 is only necessary when a general
and a special provision constitute allied offenses of similar import. In Hall, the court of
appeals applied R.C. 1.51 in order to make the determination that Tampering with
Records and Falsification were “not irreconcilable.” Hall at ¶ 35. Although the court did
not expressly find that Tampering with Records and Falsification were allied offenses,
its analysis of the statutes under R.C. 1.51 presupposed such a determination. In order
for the specific provision to prevail, however, the statutes must be in conflict, and not
merely allied offenses.
{¶22} Chandler was also found guilty of Forgery in violation of R.C.
2913.31(A)(3), (C)(1)(a) and (b): “No person, with purpose to defraud, or knowing that
the person is facilitating a fraud, shall * * * [u]tter, or possess with purpose to utter, any
writing that the person knows to have been forged. * * * Whoever violates division (A)
of this section is guilty of forgery * * * a felony of the fifth degree.” “‘Utter’ means to
issue, publish, transfer, use, put or send into circulation, deliver, or display.” R.C.
2913.01(H). “‘Forge’ means to fabricate or create, in whole or in part and by any
means, any spurious writing, or to make, execute, alter, complete, reproduce, or
otherwise purport to authenticate any writing, when the writing in fact is not
authenticated by that conduct.” R.C. 2913.01(G).
{¶23} As in the case of Tampering with Records, we find the conduct proscribed
by the Forgery by utterance statute narrower than the conduct proscribed by the
Falsification statute. Like Tampering, Forgery by utterance concerns written records.
1. We note that Johnson itself has become outdated in light of State v. Ruff, 143 Ohio St.3d 114, 2015-
Ohio-995, 34 N.E.3d 892.
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Moreover, the nature of a forged writing is not necessarily the same as a falsified
statement.
[I]nherently, forgery includes the act of falsifying. However, this
does not always result in the unlawful act of falsification pursuant to
R.C. 2921.13. That a forged writing may also contain false
information is only incidental, and not necessary to commit the
offense. While * * * documents * * * may contain false information *
* * indicating falsification, the act of signing another’s name at the
bottom of that statement for the purpose of authenticating the
document is a separate act of forgery. * * * Acts committed under
the falsification statute do not necessarily violate the forgery
statute. Forgery invalidates the authenticity of the writing not the
substance of the writing. Therefore, the violations of the two
statutes result from different conduct. The statutes prohibit
separate and distinct offenses and therefore, the statutes are
reconcilable.
State v. Sufronko, 105 Ohio App.3d 504, 509, 664 N.E.2d 596 (4th Dist.1995). To the
extent that Forgery by utterance and Falsification so overlap, we find Forgery to be the
more specific statute.
{¶24} Chandler’s sole assignment of error is without merit.
{¶25} For the foregoing reasons, Chandler’s convictions for Tampering with
Records and Forgery are affirmed. Costs to be taxed against appellant.
TIMOTHY P. CANNON, J., concurs,
THOMAS R. WRIGHT, J., concurs in judgment only. \
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