dissenting. I respectfully dissent from the majority’s decision to affirm the judgment of the court of appeals.
*400In this case, the parties stipulated to the elements of theft by deception. The only issue in dispute is the value of the property that the defendant stole. The majority holds that the value of the property stolen is the entire amount of benefits received. I respectfully disagree.
The theft-by-deception statute, R.C. 2913.02(A)(3), 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 * * * [b]y deception.” R.C. 2913.02(B)(2) sets forth the degree of the theft offense based on the value of the property stolen. Nowhere in the plain language of the theft statute is a government assistance recipient required to forfeit the portion of the benefits to which he or she is legally entitled.
Nor do any Department of Human Services regulations require repayment of benefits to which the defendant is entitled. Ohio Adm.Code 5101:6-20-01(B) provides, “An individual may be disqualified from OWF [Ohio Works First], PRC [Prevention, Retention, and Contingency Program], and/or food stamp programs for intentional program violations.” (Emphasis added.) Further, Ohio Adm. Code 5101:6-20-03(A)(1) requires repayment of the “fraudulent assistance” before restoration to the program. Thus, even the Department of Human Services regulations do not require that all benefits be repaid.
Instead of the majority’s interpretation, I would adopt the reasoning of State v. Luna (1994), 94 Ohio App.3d 653, 641 N.E.2d 747, the case with which Edmondson is in conflict. Luna held that the relevant inquiry is what benefits the defendant would have obtained had he or she been truthful. Luna, 94 Ohio App.3d at 662, 641 N.E.2d at 753. In Luna, a government assistance applicant was convicted of theft by deception and other crimes. The court held, “Although appellant may have received excess benefits as a result of the deception, the record is devoid of any evidence showing that but for the alleged deceptive answer appellant would not have been entitled to benefits of a certain amount.” Id. at 663, 641 N.E.2d at 753-754.
In other theft cases, we do not measure the amount of the theft as the majority does in this case. For example, suppose an employee works eight hours one day but by deception convinces the employer that he or she worked ten hours and, consequently, the employer pays the employee for ten hours of work. We would find the employee guilty of theft for only the two hours of pay that he or she obtained fraudulently. The law does not require the employee to forfeit all wages to which he or she is entitled. I fail to see why this case should be any different.
Therefore, I would hold that in a prosecution of theft of government benefits by deception, the value of property for purposes of determining the seriousness of the crime under R.C. 2913.02(B)(2) is the amount of benefits received as a result of the deception rather than the sum of all benefits received.
Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and Kirsten A. Davies, Assistant Prosecuting Attorney, for appellee. Arvin S. Miller, Montgomery County Assistant Public Defender, for appellant.I do not believe that this interpretation of the law would encourage government assistance recipients to lie in order to obtain benefits to which they are not otherwise entitled. Contrary to the majority’s contention, serious penalties do attach in addition to a criminal charge and possible prison. The defendant becomes ineligible for further assistance until repayment, hardly an incentive for mischief as claimed by the majority.
In this case, the defendant received $12,829 in Aid to Dependent Children (“ADC”) benefits, an overpayment of $2,415, and $8,836 in food stamps, an overpayment of $2,211. She would have received $17,039 in ADC and food stamps even when taking her wages into consideration. In my view, the law requires us to allow her to keep that to which she is legally entitled, for we are not seeking to punish qualified recipients or their children, for whom government assistance provides a means to obtain essential food, clothing, housing, and medical care. See Goldberg v. Kelly (1970), 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287.
Nowhere else in Ohio law do we penalize defendants charged with theft by requiring them to repay more than they stole. I agree with the trial court that defendant would have still received substantial ADC and food stamp benefits had she truthfully reported her employment status. Therefore, in calculating the theft amount, the defendant should be criminally liable for only the $4,626 in benefits she received because of her deception, an amount warranting a fifth-degree felony conviction. Accordingly, I respectfully dissent and would reverse the judgment of the court of appeals.
Resnick, J., concurs in the foregoing dissenting opinion.