Opinion
No. 108726
04-23-2020
STATE OF OHIO, Plaintiff-Appellee, v. KALETHA MIMS, Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Hannah Smith, Assistant Prosecuting Attorney, for appellee. Thomas Rein, for appellant.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-633829-A Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Hannah Smith, Assistant Prosecuting Attorney, for appellee. Thomas Rein, for appellant. SEAN C. GALLAGHER, P.J.:
{¶ 1} Kaletha Mims is appealing her conviction for tampering with records in violation of R.C. 2913.42(A)(1), a third-degree felony offense under division (B)(4) of that section. Mims claims that her conduct constituted the commission of falsification under R.C. 2921.13(A)(5), which is a misdemeanor of the first degree, and therefore, there is insufficient evidence of Mims having committed tampering with records.
Although Mims also claims that her conviction is against the weight of the evidence, we need not consider that argument. Her sole claim is that there is no evidence supporting the tampering-with-records conviction irrespective of the credibility of the state's evidence. The facts are undisputed; the sole issue is whether the facts support the particular conviction in this case. A claim that a jury verdict is against the weight of the evidence involves a separate and distinct test that is much broader than the test for sufficiency and reviews the weight, or credibility, of the state's case. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 193. Mims has not presented separate arguments in support of the claim that the conviction was against the weight of the evidence based on credibility determinations. As a result, we will solely address Mims's arguments under the sufficiency standard as the claim was presented. App.R. 16(A)(7); State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 2. State v. Kirk, 8th Dist. Cuyahoga No. 108136, 2019-Ohio-4890, ¶ 30.
{¶ 2} Mims was pulled over and arrested for operating her vehicle under the influence ("OVI") in the early morning hours of June 29, 2018. She refused to submit to chemical testing to determine her blood alcohol content, and her driver license was administratively suspended, effective immediately as of the arrest. The arresting officer confiscated Mims's license to enforce the suspension. Sometime during the same day of her release from the OVI offense, Mims proceeded to a Bureau of Motor Vehicles ("BMV") licensing office and requested a duplicate license, claiming to have "lost" her original. The BMV's database had not been updated with the current status following Mims's arrest. The testimony established that the process of transferring the information regarding the arrest from the local police department to the BMV database is not immediate, but had the BMV been aware of the arrest and suspension, the BMV would have prevented Mims from obtaining a duplicate license.
{¶ 3} In her application for a duplicate license, Mims filled out a written application on which the BMV agent noted that Mims's stated reason for seeking a duplicate was that the original license was "lost," and Mims signed an electronic document confirming that her license was not suspended or confiscated at the time of her application. The BMV office issued the duplicate license based on Mims's oral and written statements. Three months later, Mims was arrested for another OVI offense. In processing the subsequent violation, Mims presented the duplicate license to the arresting officer, who became suspicious of the duplicate after reviewing Mims's history and discovering the suspension.
{¶ 4} Mims was convicted of tampering with records under R.C. 2913.42(A)(1) for providing false statements to the BMV in obtaining the duplicate driver license. That section provides, in pertinent part, that "[n]o 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 * * * any writing, computer software, data, or record." If the writing, data, or record is kept by or belongs to a state or federal governmental entity, the crime is a third-degree felony. R.C. 2913.42(B)(4). The term "falsify" as used under R.C. 2913.42(A)(1) "has been commonly defined as 'to state untruthfully or alter in order to deceive.'" (Emphasis added.) State v. Mason, 2018-Ohio-3329, 118 N.E.3d 1057, ¶ 21 (5th Dist.), quoting Dept. of Pub. Safety v. Garrett, 4th Dist. Ross No. 94-CA-2031, 1995 Ohio App. LEXIS 2861 (June 13, 1995).
{¶ 5} In this case, there is sufficient evidence that Mims committed the crime of tampering with records. There is no dispute that Mims was aware that her driver license was administratively suspended effective immediately upon her arrest for the first OVI offense. In fact, as a result of the arrest, Mims's driver license was confiscated. The forms provided during the arrest also notified Mims of the suspension and its immediacy. It is further undisputed that Mims, having knowledge that she was not entitled to obtain a driver license, presented herself to the BMV and untruthfully stated that she lost her original driver license and that her license had not been suspended or confiscated.
{¶ 6} Finally, it is undisputed that Mims falsified the information on electronic and written documents kept by the BMV, a local governmental entity, in the continuing course of their normal operations. Mims acknowledged on the electronic document that she was attesting to the fact that her license had not been suspended. Mims thus falsified a writing or a record with the purpose to defraud — Mims received a duplicate license that she was not entitled to obtain. Mims's conviction is based on sufficient evidence. See, e.g., State v. Brunning, 134 Ohio St.3d 438, 2012-Ohio-5752, 983 N.E.2d 316, ¶ 30 (falsifying an address-verification form by providing false information to populate the form constituted the crime of tampering with records under R.C. 2913.42); State v. McDonald, 9th Dist. Medina No. 02CA0045-M, 2003-Ohio-2427, ¶ 11 (offender committed the tampering with records crime by indicating his license was lost when in actuality the license was suspended); State v. Lenard, 8th Dist. Cuyahoga No. 104986, 2017-Ohio-4074, ¶ 25 (citing McDonald with approval); State v. Harper, 10th Dist. Franklin Nos. 00AP-23, 00AP-24, 00AP-25, 00AP-26, and 00AP-27, 2000 Ohio App. LEXIS 6015, 6 (Dec. 21, 2000) (providing false information on BMV forms constitutes the crime of tampering with records). Mims's argument regarding the sufficiency of the evidence is overruled.
The trial court specifically based its verdict on McDonald. Tr. 124:22-125:4. It is for this reason that we need not consider Mims's argument that the trial court erroneously relied on State v. Rodriguez, 8th Dist. Cuyahoga No. 89198, 2007-Ohio-6835, in reaching its verdict. The record does not support Mims's contention. App.R. 16(A)(7). Nevertheless, in Rodriguez, it is unclear whether the offender was convicted of tampering with records under R.C. 2913.42(A)(1) or (A)(2) (uttering a falsified document, writing, or record), which are separate offenses under State v. Amison, 8th Dist. Cuyahoga No. 104728, 2017-Ohio-2856, ¶ 10, overruled on other grounds. Rodriguez is of limited value in analyzing the current conviction specifically under R.C. 2913.42(A)(1).
{¶ 7} It appears, although inartfully presented, that Mims is attempting to claim that the crime of falsification under R.C. 2921.13 is a more specific section proscribing her conduct, and therefore, under R.C. 1.51, she should have been charged with falsification and not tampering with records under R.C. 2913.42. Mims first raised this issue, albeit briefly, at trial.
{¶ 8} R.C. 1.51 provides that
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.According to Mims, her conduct could be construed to have constituted the commission of falsification under R.C. 2921.13, a misdemeanor of the first degree, and because R.C. 2921.13 is the more specific provision, it prevails when there is an irreconcilable conflict. Mims claims that her conviction for tampering with records must therefore be reversed.
{¶ 9} Inasmuch as Mims relied on this argument at trial, and even if we presume for the sake of discussion that (1) Mims preserved the issue for appellate review and (2) demonstrated that R.C. 2921.13 and 2913.42 were irreconcilable for the purposes of R.C. 1.51, we briefly note that panels in this and other courts have overruled similar arguments. In such cases, it was concluded that falsification under R.C. 2921.13 (falsification) is a general provision and the more specific provision R.C. 2913.42 (tampering with records) would prevail in the event of a conflict. State v. Garrett, 8th Dist. Cuyahoga No. 92349, 2009-Ohio-5363, ¶ 49-50; State v. Poupard, 2018-Ohio-777, 108 N.E.3d 146, ¶ 29 (6th Dist.); State v. Chandler, 11th Dist. Trumbull No. 2015-T-0033, 2016-Ohio-1017, ¶ 20. According to Garrett and similar cases, the crime of falsification can occur regardless of whether the falsification occurred in a writing or record that is kept by a governmental agency, and therefore, falsification is the more general provision as between R.C. 2921.13 and 2913.42. Garrett at ¶ 49-50. Tampering with records occurs only if there is a falsification of a writing or record and, in the current context, that writing or record is kept by a governmental entity. Garrett. Thus, the elements of tampering with records is the more specific provision relating to the prohibited conduct at issue. Id. In light of the limited arguments presented in this appeal, there is no basis to contravene or distinguish the precedent established in Garrett; therefore, we overrule Mims's arguments to the contrary. App.R. 16(A)(7).
{¶ 10} Mims's conviction for tampering with records is affirmed.
It is ordered that appellee recover from appellant 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. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
SEAN C. GALLAGHER, PRESIDING JUDGE PATRICIA ANN BLACKMON, J., and
ANITA LASTER MAYS, J., CONCUR