State v. Rivarde
966 N.E.2d 301
Ohio Ct. App.2011Background
- Appellant Teri Rivarde was convicted in Butler County Court of Common Pleas of grand theft and two counts of tampering with records.
- Indictment (April 1, 2009) charged one count of grand theft under R.C. 2913.02(A)(3) and two counts of tampering with records under R.C. 2913.42(A)(1),(B)(4).
- Allegations: Rivarde falsified a Butler County JFS assistance application on March 15, 2006 and May 2006 to improperly obtain over $13,000 in food stamps and Medicaid benefits.
- Trial occurred over three days; verdicts: guilty on all counts; sentence included six months in jail, five years of community control, and restitution totaling $13,074.42.
- Appellant argued on appeal that the tampering and Medicaid-fraud statutes created an improper duplicative or duplicitous charge; and that charging multiple statutes was improper when a specific statute applied.
- Court analyzed whether tampering with records and Medicaid-eligibility fraud are allied offenses of similar import and whether R.C. 1.51 permits charging on both.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are tampering with records and Medicaid-eligibility fraud allied offenses of similar import? | Rivarde argues the specific Medicare/Medicaid fraud statute should bar duplicative charging under the general tampering statute. | Rivarde contends that the general tampering statute should not be applied where a specific statute applies. | Yes; they are allied offenses; Johnson analysis applied. |
| May the state charge and convict under both statutes when allied offenses exist? | State could charge both under 1.51 if coextensive. | State may be limited to the more specific statute. | Prosecution may charge on both, but conviction/sentencing limited by 1.51 when coextensive; in this case, conviction on tampering stood. |
| Was Rivarde properly charged in a single tampering count for lies about food-stamp and Medicaid benefits? | Duplicitous indictment created separation-of-powers concerns. | Prosecutor has charging discretion to pursue tampering based on same conduct. | No error; prosecutorial charging discretion allowed; no separation-of-powers violation. |
Key Cases Cited
- State v. Johnson, 128 Ohio St.3d 153 (2010-Ohio-6314) (two-step allied-offenses Johnson test)
- State v. Chippendale, 52 Ohio St.3d 118 (1990-Ohio-) (coextensive application of general and special provisions when intent is coextensive)
- State v. Volpe, 38 Ohio St.3d 191 (1988-Ohio-) (special vs. general statute irreconcilable conflict; precedence rules)
- State v. Hayes, 2008-Ohio-4813 (2008-Ohio-4813) (framework for allied offenses and 1.51 analysis)
- State v. Eppinger, 162 Ohio App.3d 795 (2005-Ohio-4155) (applies Johnson allied-offenses framework)