As Reported by House Criminal Justice Committee 1
123rd General Assembly 4
Regular Session Sub. S. B. No. 2 5
1999-2000 6
SENATORS CARNES-WATTS-MUMPER-OELSLAGER-JOHNSON-SPADA- 8
GARDNER-ARMBRUSTER-REPRESENTATIVES LOGAN-TAYLOR-MYERS-BUEHRER- 9
DePIERO-WILLAMOWSKI-CALLENDER 10
_________________________________________________________________ 11
A B I L L
To amend sections 1716.01, 1716.14, 1716.99, and 13
2913.61 of the Revised Code and to amend section 14
2913.61 of the Revised Code contingent on Sub. 15
H.B. 2 of the 123rd General Assembly becoming 16
law, as concurred in on June 8, 1999, and, if the
contingency occurs, to supersede the version of 17
section 2913.61 of the Revised Code as amended by
Sections 1 and 2 of this act to clarify that 18
multiple offenses of theft may be tried as a 19
single offense when they involve a common course 20
of conduct to defraud multiple victims, to modify 21
the law regarding prohibitions against committing 22
a deceptive act or practice or misleading a 23
person as to a material fact relative to the 24
solicitation of contributions for a charitable 25
organization, for a charitable purpose, or in
response to a charitable sales promotion, to 26
enhance the penalty for solicitation fraud when 27
the victim of the offense is an elderly person or 28
disabled adult, and to permit in specified
circumstances the aggregation of contributions 29
involved in solicitation fraud with other
property or services obtained in a course of 30
conduct involving solicitation fraud and 31
specified other offenses.
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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 33
Section 1. That sections 1716.01, 1716.14, 1716.99, and 35
2913.61 of the Revised Code be amended to read as follows: 36
Sec. 1716.01. As used in this chapter: 45
(A)(1) "Charitable organization" means either of the 47
following: 48
(1)(a) Any person that is determined by the internal 50
revenue service to be a tax exempt organization pursuant to 51
section 501(c)(3) of the Internal Revenue Code; 52
(2)(b) Any person that is or holds itself out to be 54
established for any benevolent, philanthropic, patriotic, 55
educational, humane, scientific, public health, environmental 56
conservation, civic, or other eleemosynary purpose or for the 57
benefit of law enforcement personnel, fire fighters FIREFIGHTERS, 59
or other persons who protect the public safety, or any person who 60
in any manner employs a charitable appeal as the basis of any 61
solicitation or an appeal that suggests that there is a 62
charitable purpose to any solicitation. 63
(2) "Charitable organization" is not limited to only those 65
organizations to which contributions are tax deductible under 66
section 170 of the Internal Revenue Code. 67
"Charitable organization" does not include an employer who 69
is not engaged in the business of soliciting contributions or 70
conducting charitable sales promotions but who incidentally 71
solicits contributions for a charitable organization or purpose; 72
or a compensated employee of an employer not engaged in the 73
business of soliciting contributions or conducting charitable 74
sales promotions, when the employee solicits contributions or 75
conducts charitable sales promotions at the direction of his THE 76
EMPLOYEE'S employer. 77
(B)(1) "Charitable purpose" means either of the following: 79
(1)(a) Any purpose described in section 501(c)(3) of the 81
Internal Revenue Code; 82
(2)(b) Any benevolent, philanthropic, patriotic, 84
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educational, humane, scientific, public health, environmental 85
conservation, civic, or other eleemosynary objective or any 86
objective that benefits law enforcement personnel, fire fighters 87
FIREFIGHTERS, or other persons who protect the public safety. 88
(2) "Charitable purpose" is not limited to only those 90
purposes for which contributions are tax deductible under section 91
170 of the Internal Revenue Code. 92
(C) "Charitable sales promotion" means any advertising or 94
sale conducted by a person who represents that the purchase or 95
use of goods or services offered by the person will benefit, in 96
whole or in part, any charitable organization or charitable 97
purpose. The provision of advertising services to a charitable 98
organization, either for compensation or as a donation, does not 99
of itself constitute a charitable sales promotion. 100
(D) "Commercial co-venturer" means any person who for 102
profit regularly and primarily is engaged in trade or commerce 103
other than in connection with soliciting for charitable 104
organizations or charitable purposes and who conducts a 105
charitable sales promotion. 106
(E) "Contribution" means the promise, pledge, or grant of 108
any money or property, financial assistance, or any other thing 109
of value in response to a solicitation. "Contribution" does not 110
include any bona fide fees, or any dues or assessments paid by 111
members, provided that membership is not conferred solely as a 112
consideration for making a contribution in response to a 113
solicitation. 114
(F) "DECEPTIVE ACT OR PRACTICE" MEANS KNOWINGLY 116
MISREPRESENTING ANY MATERIAL FACT RELATED TO THE PLANNING, 117
CONDUCTING, OR EXECUTING OF ANY SOLICITATION OF CONTRIBUTIONS FOR 118
A CHARITABLE ORGANIZATION OR CHARITABLE PURPOSE OR TO THE 119
PLANNING, CONDUCTING, OR EXECUTING OF A CHARITABLE SALES
PROMOTION, WHEN THE MISREPRESENTATION INDUCES ANY PERSON TO MAKE 121
A CONTRIBUTION TO A CHARITABLE ORGANIZATION, FOR A CHARITABLE 122
PURPOSE, OR IN RESPONSE TO A CHARITABLE SALES PROMOTION. 123
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(G) "Fund-raising counsel" means any person who, for 125
compensation, plans, manages, advises, consults, or prepares 126
material for or with respect to the solicitation in this state of 127
contributions for any charitable organization or at any time has 128
custody of contributions from a solicitation, but does not 129
solicit contributions and does not employ, procure, or otherwise 130
engage any compensated person to solicit contributions. 131
"Fund-raising counsel" does not include the following: 132
(1) An attorney, investment counselor, or banker who in 134
the conduct of his THE ATTORNEY'S, INVESTMENT COUNSELOR'S, OR 135
BANKER'S profession advises a client; 136
(2) A charitable organization or a bona fide officer, 138
employee, or volunteer of a charitable organization, when the 139
charitable organization has full knowledge of the services being 140
performed on its behalf and either of the following applies: 141
(a) The services performed by the charitable organization, 143
bona fide officer, employee, or volunteer are performed on behalf 144
of the charitable organization that employs the bona fide officer 145
or employee or engages the services of the bona fide volunteer; 146
(b) The charitable organization on whose behalf the 148
services are performed shares some element of common control or 149
an historic or continuing relationship with the charitable 150
organization that performs the services or employs the bona fide 151
officer or employee or engages the services of the bona fide 152
volunteer; 153
(3) An employer who is not engaged in the business of 155
soliciting contributions or conducting charitable sales 156
promotions but who incidentally solicits contributions for a 157
charitable organization or purpose without compensation; 158
(4) A compensated employee of an employer who is not 160
engaged in the business of soliciting contributions or conducting 161
charitable sales promotions, when the employee solicits 162
contributions or conducts charitable sales promotions at the 163
direction of his THE EMPLOYEE'S employer. 164
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(G)(H) "Internal Revenue Code" means the "Internal Revenue 166
Code of 1986," 100 Stat. 2085, 26 U.S.C.A. 1, as amended. 167
(H)(I) "Person" has the same meaning as in section 1.59 of 169
the Revised Code and includes a group, foundation, or any other 170
entity however styled. 171
(I)(J) "Professional solicitor" means any person who, for 173
compensation, performs on behalf of or for the benefit of a 174
charitable organization any service in connection with which 175
contributions are or will be solicited in this state by the 176
compensated person or by any person it employs, procures, or 177
otherwise engages directly or indirectly to solicit 178
contributions. "Professional solicitor" does not include the 179
following: 180
(1) An attorney, investment counselor, or banker who in 182
the conduct of his THE ATTORNEY'S, INVESTMENT COUNSELOR'S, OR 183
BANKER'S profession advises a client; 184
(2) A charitable organization or a bona fide officer, 186
employee, or volunteer of a charitable organization, when the 187
charitable organization has full knowledge of the services being 188
performed on its behalf and either of the following applies: 189
(a) The services performed by the charitable organization, 191
bona fide officer, employee, or volunteer are performed on behalf 192
of the charitable organization that employs the bona fide officer 193
or employee or engages the services of the bona fide volunteer; 194
(b) The charitable organization on whose behalf the 196
services are performed shares some element of common control or 197
an historic or continuing relationship with the charitable 198
organization that performs the services or employs the bona fide 199
officer or employee or engages the services of the bona fide 200
volunteer; 201
(3) An employer who is not engaged in the business of 203
soliciting contributions or conducting charitable sales 204
promotions but who incidentally solicits contributions for a 205
charitable organization or purpose without compensation; 206
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(4) A compensated employee of an employer who is not 208
engaged in the business of soliciting contributions or conducting 209
charitable sales promotions, when the employee solicits 210
contributions or conducts charitable sales promotions at the 211
direction of his THE EMPLOYEE'S employer. 212
(J)(K)(1) "Solicit" or "solicitation" means to request or 214
a request directly or indirectly for money, property, financial 215
assistance, or any other thing of value on the plea or 216
representation that such money, property, financial assistance, 217
or other thing of value or a portion of it will be used for a 218
charitable purpose or will benefit a charitable organization. 219
"Solicit" or "solicitation" includes but is not limited to the 220
following methods of requesting or securing the promise, pledge, 221
or grant of money, property, financial assistance, or any other 222
thing of value: 223
(1)(a) Any oral or written request; 225
(2)(b) Making any announcement to the press, on radio or 227
television, by telephone or telegraph, or by any other 228
communication device concerning an appeal or campaign by or for 229
any charitable organization or for any charitable purpose; 230
(3)(c) Distributing, circulating, posting, or publishing 232
any handbill, written advertisement, or other publication that 233
directly or by implication seeks to obtain any contribution; 234
(4)(d) Selling or offering or attempting to sell any 236
advertisement, advertising space, book, card, tag, coupon, 237
chance, device, magazine, membership, merchandise, subscription, 238
sponsorship, flower, ticket, admission, candy, cookies, or other 239
tangible item, or any right of any description in connection with 240
which an appeal is made for any charitable organization or 241
charitable purpose, or when the name of any charitable 242
organization is used or referred to in any such appeal as an 243
inducement or reason for making the sale, or when in connection 244
with the sale or offer or attempt to sell, any statement is made 245
that all or part of the proceeds from the sale will be used for 246
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any charitable purpose or will benefit any charitable 247
organization. 248
(2) A solicitation is considered as having taken place FOR 251
PURPOSES OF DIVISION (K)(1) OF THIS SECTION whether or not the 253
person making the solicitation receives any contribution. A 254
solicitation does not occur when a person applies for a grant or 255
an award to the government or to an organization that is exempt 256
from federal income taxation under section 501(a) and described 257
in section 501(c)(3) of the Internal Revenue Code. 258
(L) "THEFT OFFENSE" HAS THE SAME MEANING AS IN SECTION 260
2913.01 OF THE REVISED CODE. 261
(M) "ELDERLY PERSON" AND "DISABLED ADULT" HAVE THE SAME 263
MEANINGS AS IN SECTION 2913.01 OF THE REVISED CODE. 264
Sec. 1716.14. (A) The following acts and practices are 273
hereby prohibited and declared unlawful as applied to the 274
planning, conducting, or executing of any solicitation of 275
contributions for a charitable organization or charitable purpose 276
or to the planning, conducting, or executing of a charitable 277
sales promotion: 278
(1) Operating in violation of, or failing to comply with, 280
any of the requirements of this chapter or any rule adopted under 281
this chapter; 282
(2) Committing any unfair or deceptive act or practice; 284
(2) MISLEADING ANY PERSON AS TO ANY MATERIAL FACT 286
CONCERNING THE SOLICITATION OF CONTRIBUTIONS FOR A CHARITABLE 287
ORGANIZATION OR CHARITABLE PURPOSE OR CONCERNING A CHARITABLE 288
SALES PROMOTION;
(3) Using any representation that implies that the 290
contribution is for or on behalf of a charitable organization, or 291
using any emblem, device, or printed matter belonging to or 292
associated with a charitable organization, without first having 293
been authorized in writing to do so by the charitable 294
organization; 295
(4) Using a name, symbol, or statement that is so closely 297
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related or similar to that used by another charitable 298
organization, public official, or public agency in such a manner 299
that the use of the name, symbol, or statement tends to confuse 300
or mislead a person being solicited for contributions, except 301
that the name, symbol, or statement may be used if written 302
permission is obtained from the other charitable organization, 303
public official, or public agency and filed with the attorney 304
general prior to any solicitation for a charitable purpose or 305
prior to engaging in any charitable sales promotion; 306
(5) Misleading any person in any manner in the belief, or 308
misrepresenting MAKING OR USING ANY REPRESENTATION to any person 310
THAT IMPLIES, that the organization on whose behalf a 311
solicitation or charitable sales promotion is being conducted is 312
a charitable organization or that the proceeds of the 313
solicitation or charitable sales promotion will be used for a
charitable purpose if either of those is not the fact; 314
(6) Misleading any person in any manner in the belief, or 316
misrepesenting MAKING OR USING ANY REPRESENTATION to any person 317
THAT IMPLIES, that any other person sponsors, endorses, or 320
approves of the solicitation or charitable sales promotion when 321
that other person has not given its consent in writing to that 322
representation or to the use of its name for any of those 323
purposes;
(7) Using or exploiting the fact of registration in such a 325
manner as to lead any person to believe that the registration in 326
any manner constitutes an endorsement or approval by the state; 327
(8) Representing directly or by implication that a 329
charitable organization will receive a fixed or estimated 330
percentage of the gross revenue from a solicitation campaign that 331
is greater than that set forth in the contract filed with the 332
attorney general pursuant to section 1716.08 of the Revised Code, 333
or that a charitable organization will receive an actual or 334
estimated dollar amount or percentage per unit of goods or 335
services purchased or used in a charitable sales promotion, that 336
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is greater than that agreed to by the commercial co-venturer and 337
the charitable organization; 338
(9) Filing false or misleading information in any document 340
required to be filed with the attorney general under this 341
chapter; 342
(10) Filing false or misleading information in response to 344
a request from the attorney general under section 1716.15 of the 345
Revised Code; 346
(11) Failing to provide complete and timely payment to a 348
charitable organization of the proceeds from a solicitation 349
campaign or a charitable sales promotion; 350
(12) OPERATING IN VIOLATION OF, OR FAILING TO COMPLY WITH, 352
ANY OF THE REQUIREMENTS OF THIS CHAPTER OR ANY RULE ADOPTED UNDER 353
THIS CHAPTER.
(B) The act of soliciting contributions for any charitable 355
organization or charitable purpose or engaging in a charitable 356
sales promotion without complying with the requirements of this 357
chapter or any rule adopted pursuant to this chapter, is a 358
nuisance. 359
Sec. 1716.99. (A) Whoever violates ANY PROVISION OF 368
sections 1716.02 to 1716.17 of the Revised Code or any rule 369
adopted pursuant to those sections, OTHER THAN DIVISION (A)(1) OF 370
SECTION 1716.14 OF THE REVISED CODE, is guilty of solicitation 371
fraud, a misdemeanor of the first degree. 372
(B) Each occurrence of a solicitation of a contribution 374
from any person in violation of ANY PROVISION OF sections 1716.02 375
to 1716.17 of the Revised Code or any rule adopted under those 377
sections, OTHER THAN DIVISION (A)(1) OF SECTION 1716.14 OF THE 378
REVISED CODE, is considered a separate offense of solicitation 379
fraud.
(B)(1) WHOEVER VIOLATES DIVISION (A)(1) OF SECTION 1716.14 382
OF THE REVISED CODE IS GUILTY OF SOLICITATION FRAUD AND SHALL BE
PUNISHED AS PROVIDED IN DIVISIONS (B)(2) TO (4) OF THIS SECTION. 383
(2) EXCEPT AS OTHERWISE PROVIDED IN DIVISION (B)(4) OF 385
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THIS SECTION, DIVISION (B)(3) OF THIS SECTION APPLIES TO 386
SOLICITATION FRAUD, AND SOLICITATION FRAUD IS ONE OF THE 387
FOLLOWING:
(a) EXCEPT AS OTHERWISE PROVIDED IN DIVISIONS (B)(2)(b) TO 390
(d) OF THIS SECTION, A MISDEMEANOR OF THE FIRST DEGREE OR, IF THE 392
OFFENDER PREVIOUSLY HAS BEEN CONVICTED OF OR PLEADED GUILTY TO A
THEFT OFFENSE OR A VIOLATION OF DIVISION (A)(1) OF SECTION 394
1716.14 OF THE REVISED CODE, A FELONY OF THE FIFTH DEGREE. 395
(b) IF THE VALUE OF THE CONTRIBUTION OR CONTRIBUTIONS MADE 397
IN THE VIOLATION IS FIVE HUNDRED DOLLARS OR MORE BUT LESS THAN 398
FIVE THOUSAND DOLLARS, A FELONY OF THE FIFTH DEGREE OR, IF THE 400
OFFENDER PREVIOUSLY HAS BEEN CONVICTED OF OR PLEADED GUILTY TO A 401
THEFT OFFENSE OR A VIOLATION OF DIVISION (A)(1) OF SECTION 402
1716.14 OF THE REVISED CODE, A FELONY OF THE FOURTH DEGREE. 403
(c) IF THE VALUE OF THE CONTRIBUTION OR CONTRIBUTIONS MADE 405
IN THE VIOLATION IS FIVE THOUSAND DOLLARS OR MORE BUT LESS THAN 406
ONE HUNDRED THOUSAND DOLLARS, A FELONY OF THE FOURTH DEGREE OR, 408
IF THE OFFENDER PREVIOUSLY HAS BEEN CONVICTED OF OR PLEADED 409
GUILTY TO A THEFT OFFENSE OR A VIOLATION OF DIVISION (A)(1) OF 410
SECTION 1716.14 OF THE REVISED CODE, A FELONY OF THE THIRD 411
DEGREE.
(d) IF THE VALUE OF THE CONTRIBUTION OR CONTRIBUTIONS MADE 413
IN THE VIOLATION IS ONE HUNDRED THOUSAND DOLLARS OR MORE, A 414
FELONY OF THE THIRD DEGREE. 415
(3) WHEN AN OFFENDER COMMITS A SERIES OF OFFENSES IN 417
VIOLATION OF DIVISION (A)(1) OF SECTION 1716.14 OF THE REVISED 418
CODE AS PART OF A COMMON SCHEME OR PLAN TO DEFRAUD MULTIPLE 419
VICTIMS, ALL OF THE OFFENSES MAY BE TRIED AS A SINGLE OFFENSE. 420
IF THE OFFENSES ARE TRIED AS A SINGLE OFFENSE, THE VALUE OF THE 421
CONTRIBUTIONS FOR PURPOSES OF DETERMINING THE VALUE AS REQUIRED 422
BY DIVISION (B)(2) OF THIS SECTION IS THE AGGREGATE VALUE OF ALL 423
CONTRIBUTIONS INVOLVED IN ALL OFFENSES IN THE COMMON SCHEME OR 425
PLAN TO DEFRAUD MULTIPLE VICTIMS. IN PROSECUTING A SINGLE 426
OFFENSE UNDER THIS DIVISION, IT IS NOT NECESSARY TO SEPARATELY 427
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ALLEGE AND PROVE EACH OFFENSE IN THE SERIES. RATHER, IT IS 428
SUFFICIENT TO ALLEGE AND PROVE THAT THE OFFENDER, WITHIN A GIVEN 429
SPAN OF TIME, COMMITTED ONE OR MORE OFFENSES AS PART OF A COMMON 430
SCHEME OR PLAN TO DEFRAUD MULTIPLE VICTIMS AS DESCRIBED IN THIS 431
DIVISION.
(4) IF THE VICTIM OF THE OFFENSE IS AN ELDERLY PERSON OR 433
DISABLED ADULT, DIVISION (B)(4) OF THIS SECTION AND SECTION 434
2913.61 OF THE REVISED CODE APPLY TO SOLICITATION FRAUD, AND 435
SOLICITATION FRAUD IS ONE OF THE FOLLOWING:
(a) EXCEPT AS OTHERWISE PROVIDED IN DIVISIONS (B)(4)(b) TO 438
(d) OF THIS SECTION, A FELONY OF THE FIFTH DEGREE; 439
(b) IF THE VALUE OF THE CONTRIBUTIONS MADE IN THE 441
VIOLATION IS FIVE HUNDRED DOLLARS OR MORE AND IS LESS THAN FIVE 442
THOUSAND DOLLARS, A FELONY OF THE FOURTH DEGREE; 443
(c) IF THE VALUE OF THE CONTRIBUTIONS MADE IN THE 445
VIOLATION IS FIVE THOUSAND DOLLARS OR MORE AND IS LESS THAN 446
TWENTY-FIVE THOUSAND DOLLARS, A FELONY OF THE THIRD DEGREE; 447
(d) IF THE VALUE OF THE CONTRIBUTIONS MADE IN THE 449
VIOLATION IS TWENTY-FIVE THOUSAND DOLLARS OR MORE, A FELONY OF 450
THE SECOND DEGREE.
(C) Any person who is found guilty of solicitation fraud 452
ANY ACT OR OMISSION PROHIBITED UNDER THIS CHAPTER shall forfeit 453
the bond described in section 1716.05 or 1716.07 of the Revised 455
Code to the state treasury to the credit of the charitable 456
foundations fund established under section 109.32 of the Revised 457
Code and shall be prohibited from registering with the attorney 458
general or from serving as a fund-raising counsel or professional 459
solicitor in this state for a period of five years after his 460
conviction.
Sec. 2913.61. (A) When a person is charged with a theft 469
offense involving property or services valued at five hundred 471
dollars or more, a theft offense involving property or services 472
valued at five hundred dollars or more and less than five 473
thousand dollars, a theft offense involving property or services 474
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valued at five thousand dollars or more and less than one hundred 475
thousand dollars, or a theft offense involving property or 476
services valued at one hundred thousand dollars or more, the jury 477
or court trying the accused shall determine the value of the 478
property or services as of the time of the offense and, if a 479
guilty verdict is returned, shall return the finding of value as 480
part of the verdict. In any case in which the jury or court 481
determines that the value of the property or services at the time 482
of the offense was five hundred dollars or more, it is 483
unnecessary to find and return the exact value, and it is
sufficient if the finding and return is to the effect that the 484
value of the property or services involved was five hundred 485
dollars or more and less than five thousand dollars, was five 487
thousand dollars or more and less than one hundred thousand 488
dollars, or was one hundred thousand dollars or more.
(B) If more than one item of property or services is 490
involved in a theft offense, the value of the property or 491
services involved for the purpose of determining the value as 492
required by division (A) of this section is the aggregate value 493
of all property or services involved in the offense. 494
(C)(1) When AN OFFENDER COMMITS a series of offenses under 496
section 2913.02 of the Revised Code is committed by the offender 498
in the offender's same employment, capacity, or relationship to 499
another, all of those offenses shall be tried as a single 501
offense, and the value of the property or services involved for 502
the purpose of determining the value as required by division (A) 503
of this section is the aggregate value of all property and 504
services involved in all offenses in the series. In prosecuting 505
a single offense under this division, it is not necessary to 506
separately allege and prove each offense in the series. It is 507
sufficient to allege and prove that the offender, within a given 508
span of time, committed one or more theft offenses in the 509
offender's same employment, capacity, or relationship to another. 510
(2) If an offender is being tried for the commission of 513
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COMMITS a series of offenses under section 2913.02 of the Revised 514
Code against more than one victim pursuant to a scheme or THAT 515
INVOLVE A COMMON course of conduct TO DEFRAUD MULTIPLE VICTIMS, 517
ALL OF THE OFFENSES MAY BE TRIED AS A SINGLE OFFENSE, AND, IF THE
OFFENSES ARE TRIED AS A SINGLE OFFENSE, the value of the property 519
or services involved, for the purpose of determining the value as 520
required by division (A) of this section, is the aggregate value 521
of all property and services involved in the series of ALL OF THE 522
offenses IN THE COMMON COURSE OF CONDUCT TO DEFRAUD MULTIPLE 523
VICTIMS.
(3) IN PROSECUTING A SINGLE OFFENSE UNDER DIVISION (C)(1) 525
OR (2) OF THIS SECTION, IT IS NOT NECESSARY TO SEPARATELY ALLEGE 526
AND PROVE EACH OFFENSE IN THE SERIES. RATHER, IT IS SUFFICIENT 527
TO ALLEGE AND PROVE THAT THE OFFENDER, WITHIN A GIVEN SPAN OF 528
TIME, COMMITTED ONE OR MORE THEFT OFFENSES IN THE OFFENDER'S SAME 529
EMPLOYMENT, CAPACITY, OR RELATIONSHIP TO ANOTHER AS DESCRIBED IN 530
DIVISION (C)(1) OF THIS SECTION OR THAT INVOLVE A COMMON COURSE 532
OF CONDUCT TO DEFRAUD MULTIPLE VICTIMS AS DESCRIBED IN DIVISION 533
(C)(2) OF THIS SECTION. 534
(D) The following criteria shall be used in determining 536
the value of property or services involved in a theft offense: 537
(1) The value of an heirloom, memento, collector's item, 539
antique, museum piece, manuscript, document, record, or other 540
thing that has intrinsic worth to its owner and that either is 542
irreplaceable or is replaceable only on the expenditure of 543
substantial time, effort, or money, is the amount that would 544
compensate the owner for its loss. 545
(2) The value of personal effects and household goods, and 547
of materials, supplies, equipment, and fixtures used in the 548
profession, business, trade, occupation, or avocation of its 549
owner, which property is not covered under division (D)(1) of 550
this section and which retains substantial utility for its 551
purpose regardless of its age or condition, is the cost of 552
replacing the property with new property of like kind and 553
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quality. 554
(3) The value of any real or personal property that is not 557
covered under division (D)(1) or (2) of this section, and the 558
value of services, is the fair market value of the property or 559
services. As used in this section, "fair market value" is the 560
money consideration that a buyer would give and a seller would 561
accept for property or services, assuming that the buyer is 562
willing to buy and the seller is willing to sell, that both are 563
fully informed as to all facts material to the transaction, and 564
that neither is under any compulsion to act. 565
(E) Without limitation on the evidence that may be used to 567
establish the value of property or services involved in a theft 568
offense:
(1) When the property involved is personal property held 570
for sale at wholesale or retail, the price at which the property 571
was held for sale is prima-facie evidence of its value. 572
(2) When the property involved is a security or commodity 574
traded on an exchange, the closing price or, if there is no 575
closing price, the asked price, given in the latest market 576
quotation prior to the offense is prima-facie evidence of the 577
value of the security or commodity. 578
(3) When the property involved is livestock, poultry, or 580
raw agricultural products for which a local market price is 581
available, the latest local market price prior to the offense is 582
prima-facie evidence of the value of the livestock, poultry, or 583
products. 584
(4) When the property involved is a negotiable instrument, 586
the face value is prima-facie evidence of the value of the 587
instrument. 588
(5) When the property involved is a warehouse receipt, 590
bill of lading, pawn ticket, claim check, or other instrument 591
entitling the holder or bearer to receive property, the face 592
value or, if there is no face value, the value of the property 593
covered by the instrument less any payment necessary to receive 594
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the property is prima-facie evidence of the value of the 595
instrument. 596
(6) When the property involved is a ticket of admission, 598
ticket for transportation, coupon, token, or other instrument 599
entitling the holder or bearer to receive property or services, 600
the face value or, if there is no face value, the value of the 601
property or services that may be received by the instrument is 603
prima-facie evidence of the value of the instrument. 604
(7) When the services involved are gas, electricity, 606
water, telephone, transportation, shipping, or other services for 607
which the rate is established by law, the duly established rate 608
is prima-facie evidence of the value of the services. 609
(8) When the services involved are services for which the 611
rate is not established by law, and the offender has been 612
notified prior to the offense of the rate for the services, 613
either in writing, orally, or by posting in a manner reasonably 615
calculated to come to the attention of potential offenders, the 616
rate contained in the notice is prima-facie evidence of the value 617
of the services.
Section 2. That existing sections 1716.01, 1716.14, 619
1716.99, and 2913.61 of the Revised Code are hereby repealed. 620
Section 3. Subject to Section 5 of this act, that section 622
2913.61 of the Revised Code that results from Sub. H.B. 2 of the 623
123rd General Assembly contingently be amended to read as 624
follows:
Sec. 2913.61. (A) When a person is charged with a theft 626
offense involving, OR WITH A VIOLATION OF DIVISION (A)(1) OF 628
SECTION 1716.14 OF THE REVISED CODE INVOLVING A VICTIM WHO IS AN
ELDERLY PERSON OR DISABLED ADULT THAT INVOLVES property or 629
services valued at five hundred dollars or more, a theft offense 630
involving property or services valued at five hundred dollars or 631
more and less than five thousand dollars, a theft offense 632
involving property or services valued at five thousand dollars or 634
more and less than twenty-five thousand dollars, a theft offense 635
16
involving property or services valued at twenty-five thousand 636
dollars or more and less than one hundred thousand dollars, or a 638
theft offense involving property or services valued at one
hundred thousand dollars or more, the jury or court trying the 640
accused shall determine the value of the property or services as 641
of the time of the offense and, if a guilty verdict is returned, 642
shall return the finding of value as part of the verdict. In any 643
case in which the jury or court determines that the value of the 644
property or services at the time of the offense was five hundred 645
dollars or more, it is unnecessary to find and return the exact 646
value, and it is sufficient if the finding and return is to the 647
effect that the value of the property or services involved was 648
five hundred dollars or more and less than five thousand dollars, 650
was five thousand dollars or more and less than twenty-five 651
thousand dollars, was twenty-five thousand dollars or more and
less than one hundred thousand dollars, or was one hundred 653
thousand dollars or more.
(B) If more than one item of property or services is 655
involved in a theft offense OR IN A VIOLATION OF DIVISION (A)(1) 656
OF SECTION 1716.14 OF THE REVISED CODE INVOLVING A VICTIM WHO IS 657
AN ELDERLY PERSON OR DISABLED ADULT, the value of the property or 658
services involved for the purpose of determining the value as 659
required by division (A) of this section is the aggregate value 660
of all property or services involved in the offense. 661
(C)(1) When a series of offenses under section 2913.02 of 663
the Revised Code, or a series of violations of, attempts to 664
commit a violation of, conspiracies to violate, or complicity in 665
violations of DIVISION (A)(1) OF SECTION 1716.14, section 666
2913.02, 2913.03, or 2913.04, division (B)(1) or (2) of section 667
2913.21, or section 2913.31 or 2913.43 of the Revised Code 668
involving a victim who is an elderly person or disabled adult, is 670
committed by the offender in the offender's same employment, 671
capacity, or relationship to another, all of those offenses shall 672
be tried as a single offense, and the. THE value of the property 674
17
or services involved IN THE SERIES OF OFFENSES for the purpose of 675
determining the value as required by division (A) of this section 676
is the aggregate value of all property and services involved in 677
all offenses in the series. In prosecuting a single offense 678
under this division, it is not necessary to separately allege and 679
prove each offense in the series. It is sufficient to allege and 680
prove that the offender, within a given span of time, committed 681
one or more theft offenses in the offender's same employment, 682
capacity, or relationship to another. 683
(2) If an offender is being tried for the commission of 686
COMMITS a series of offenses under section 2913.02 of the Revised 687
Code against more than one victim, or THAT INVOLVES A COMMON 688
COURSE OF CONDUCT TO DEFRAUD MULTIPLE VICTIMS, ALL OF THE 689
OFFENSES MAY BE TRIED AS A SINGLE OFFENSE. IF AN OFFENDER IS
BEING TRIED FOR THE COMMISSION OF a series of violations of, 690
attempts to commit a violation of, conspiracies to violate, or 692
complicity in violations of DIVISION (A)(1) OF SECTION 1716.14, 693
section 2913.02, 2913.03, or 2913.04, division (B)(1) or (2) of 694
section 2913.21, or section 2913.31 or 2913.43 of the Revised 695
Code, whether committed against one victim or more than one 697
victim, involving a victim who is an elderly person or disabled 698
adult, pursuant to a scheme or course of conduct, all of those 700
offenses may be tried as a single offense, and. IF THE OFFENSES 701
ARE TRIED AS A SINGLE OFFENSE, the value of the property or 703
services involved, for the purpose of determining the value as 704
required by division (A) of this section, is the aggregate value 705
of all property and services involved in the series of ALL OF THE 706
offenses IN THE COURSE OF CONDUCT.
(3) IN PROSECUTING A SINGLE OFFENSE UNDER DIVISION (C)(1) 708
OR (2) OF THIS SECTION, IT IS NOT NECESSARY TO SEPARATELY ALLEGE 709
AND PROVE EACH OFFENSE IN THE SERIES. RATHER, IT IS SUFFICIENT 710
TO ALLEGE AND PROVE THAT THE OFFENDER, WITHIN A GIVEN SPAN OF 711
TIME, COMMITTED ONE OR MORE THEFT OFFENSES IN THE OFFENDER'S SAME 712
EMPLOYMENT, CAPACITY, OR RELATIONSHIP TO ANOTHER AS DESCRIBED IN 713
18
DIVISION (C)(1) OF THIS SECTION OR THAT INVOLVE A COMMON COURSE 715
OF CONDUCT TO DEFRAUD MULTIPLE VICTIMS OR A SCHEME OR COURSE OF
CONDUCT AS DESCRIBED IN DIVISION (C)(2) OF THIS SECTION. 716
(D) The following criteria shall be used in determining 718
the value of property or services involved in a theft offense: 719
(1) The value of an heirloom, memento, collector's item, 721
antique, museum piece, manuscript, document, record, or other 722
thing that has intrinsic worth to its owner and that either is 724
irreplaceable or is replaceable only on the expenditure of 725
substantial time, effort, or money, is the amount that would 726
compensate the owner for its loss. 727
(2) The value of personal effects and household goods, and 729
of materials, supplies, equipment, and fixtures used in the 730
profession, business, trade, occupation, or avocation of its 731
owner, which property is not covered under division (D)(1) of 732
this section and which retains substantial utility for its 733
purpose regardless of its age or condition, is the cost of 734
replacing the property with new property of like kind and 735
quality. 736
(3) The value of any real or personal property that is not 739
covered under division (D)(1) or (2) of this section, and the 740
value of services, is the fair market value of the property or 741
services. As used in this section, "fair market value" is the 742
money consideration that a buyer would give and a seller would 743
accept for property or services, assuming that the buyer is 744
willing to buy and the seller is willing to sell, that both are 745
fully informed as to all facts material to the transaction, and 746
that neither is under any compulsion to act. 747
(E) Without limitation on the evidence that may be used to 749
establish the value of property or services involved in a theft 750
offense:
(1) When the property involved is personal property held 752
for sale at wholesale or retail, the price at which the property 753
was held for sale is prima-facie evidence of its value. 754
19
(2) When the property involved is a security or commodity 756
traded on an exchange, the closing price or, if there is no 757
closing price, the asked price, given in the latest market 758
quotation prior to the offense is prima-facie evidence of the 759
value of the security or commodity. 760
(3) When the property involved is livestock, poultry, or 762
raw agricultural products for which a local market price is 763
available, the latest local market price prior to the offense is 764
prima-facie evidence of the value of the livestock, poultry, or 765
products. 766
(4) When the property involved is a negotiable instrument, 768
the face value is prima-facie evidence of the value of the 769
instrument. 770
(5) When the property involved is a warehouse receipt, 772
bill of lading, pawn ticket, claim check, or other instrument 773
entitling the holder or bearer to receive property, the face 774
value or, if there is no face value, the value of the property 775
covered by the instrument less any payment necessary to receive 776
the property is prima-facie evidence of the value of the 777
instrument. 778
(6) When the property involved is a ticket of admission, 780
ticket for transportation, coupon, token, or other instrument 781
entitling the holder or bearer to receive property or services, 782
the face value or, if there is no face value, the value of the 783
property or services that may be received by the instrument is 785
prima-facie evidence of the value of the instrument. 786
(7) When the services involved are gas, electricity, 788
water, telephone, transportation, shipping, or other services for 789
which the rate is established by law, the duly established rate 790
is prima-facie evidence of the value of the services. 791
(8) When the services involved are services for which the 793
rate is not established by law, and the offender has been 794
notified prior to the offense of the rate for the services, 795
either in writing, orally, or by posting in a manner reasonably 797
20
calculated to come to the attention of potential offenders, the 798
rate contained in the notice is prima-facie evidence of the value 799
of the services.
Section 4. Subject to Section 5 of this act, that existing 801
section 2913.61 of the Revised Code that results from Sub. H.B. 2 802
of the 123rd General Assembly contingently is hereby repealed. 803
Section 5. The amendments by this act adding division (M) 805
to section 1716.01 and division (B)(4) to section 1716.99 and 806
Sections 3 and 4 of this act are contingent on Sub. H.B. 2 of the 807
123rd General Assembly becoming law, as concurred in on June 8, 808
1999, pages 776-777, House Journal. If the contingency occurs, 809
the version of section 2913.61 of the Revised Code in Sections 3 810
and 4 of this act that was contingent on Sub. H.B. 2 supersedes
the version of section 2913.61 of the Revised Code in Sections 1 811
and 2 of this act. 812