# State v. Cooper

> Ohio Court of Appeals · June 1, 1990 · 66 Ohio App. 3d 551

URL: https://www.frixlaw.com/law-library/cases/3755093

## Case

- **Full name:** State v. Cooper, [Fn]
- **Court:** Ohio Court of Appeals
- **Decided:** June 1, 1990
- **Citations:** 66 Ohio App. 3d 551; 4 Ohio App. Unrep. 105; 585 N.E.2d 868
- **Precedential status:** Published
- **Opinion:** Dissent by Grey
- **Judges:** Abele, Grey, Harsha
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3755093

## Opinion text

GREY, J.,
dissenting
One act may violate two statute^ but that principle is irrelevant here.
Batchelder, supra,
has no application, since it holds that in some cases a prosecutor may have the option of prosecuting under one or another of two possible statutes In this case the prosecutor has no such option because of the act of the legislature.
The legislature adopted R.C. 2913.02, a broad statute which includes all kinds of thefts, including the kind we have here, deceptively making false statements for the purpose of getting welfare benefits. The penalty for all thefts over $300, including theft by deception, is a fourth degree felony.
Had the legislature stopped with R.C. 2913.02, there would be no question in this case. But it did not, it went on to enact R.C. 2921.13, the falsification statute; which prohibits making a false statement when:
"(4) The statement is made with purpose to secure the payment of workers' compensation, unemployment compensation, aid for the aged, aid for the blind, aid for the permanently and totally disabled, aid to dependent children, general assistance retirement benefits, or other benefits administered by a governmental agency orpaid out of a public treasury." R.C. 2921.13(A). The penalty for violating this statute is a first degree misdemeanor.
This is a clear expression of legislative intent that a false filing for welfare benefits shall be a misdemeanor. If the legislature has decided in specific statutory language, that welfare fraud shall be a misdemeanor, can a prosecutor decide that it ought to be a felony? Hardly. This kind of decision is not, as in
Batchelder, supra,
within the discretion of the prosecutor
Discussion of irreconcilability is irrelevant here. This case presents a serious constitutional question. May the legislature, which has adopted a statute which makes a broad category of conduct a crime, also adopt a special statute which holds that some of the conduct included in that broad category shall be treated differently? Obviously, the legislature can treat some kinds of thefts more harshly, such as theft of a firearm under R.C. 2319.71(C). Inherent in the power to treat some crimes more harshly is the power to treat others less harshly, as for example R.C. 2905.01(C) which treatskidnapping as an aggravated first degree felony, but makes it a second degree felony when the victim is released unharmed.
Exercise of this power to distinguish between crimes requires that the legislatures act separately and specifically. This is the purpose of R.C. 1.51 which holds that the specific controls the general. This is the reasoning behind
State
v.
Volpe, supra,
which says in the first paragraph of the syllabus:
"1. Where there is no manifest legislative intent that a general provision of the Revised Code prevail over a special provision, the special provision takes precedence." (State v.
Frost)
[1979], 57 Ohio S. 2d 121, 11 O.O.3d 294 , 387 N.E.2d 235 , paragraph one of the syllabus, approved and followed.) See also generally,
State
v.
Gilham
(1988), 40 Ohio app. 3d 293.
*107
I would sustain the assignment of error, I would adopt a position which is contrary to the decisions from the Second and Tenth Districts cited in the majority opinion, and would certify this issue to the Ohio Supreme Court.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3755093. Public record. Not legal advice.