The online versions of legislation provided on this website are not official. Enrolled bills are the final version passed by the Ohio General Assembly and presented to the Governor for signature. The official version of acts signed by the Governor are available from the Secretary of State's Office in the Continental Plaza, 180 East Broad St., Columbus.
|
As Passed by the House
123rd General Assembly
Regular Session
1999-2000 | Sub. S. B. No. 2 |
SENATORS CARNES-WATTS-MUMPER-OELSLAGER-JOHNSON-SPADA-
GARDNER-ARMBRUSTER-
REPRESENTATIVE SLOGAN-TAYLOR-MYERS-BUEHRER-
DePIERO-WILLAMOWSKI-CALLENDER-TIBERI-HOUSEHOLDER-CATES-VESPER-
FORD-BRADING-CORE-AMSTUTZ-KREBS-TERWILLEGER-BUCHY-PERZ-PADGETT-
HOLLISTER-SCHULER-JONES-GARDNER-BARRETT-BOYD-FLANNERY-HEALY-
KRUPINSKI-JACOBSON-CORBIN-BRITTON-SALERNO
A BILL
To amend sections 1716.01, 1716.14, 1716.99, and 2913.61 of the
Revised Code and to amend section 2913.61 of
the Revised Code contingent on Sub. H.B. 2 of the 123rd General Assembly
becoming law, as concurred in on June 8, 1999, and, if the contingency occurs,
to supersede the version of section 2913.61 of the Revised Code as amended by
Sections 1 and 2 of this act to clarify that multiple offenses of theft may be
tried as a single offense when they involve a common
course of conduct to
defraud multiple victims, to modify the law regarding prohibitions against
committing
a deceptive act or practice or misleading a person as to a
material fact relative to the solicitation of contributions for a
charitable organization, for a charitable purpose, or in response to a
charitable sales promotion, to
enhance the penalty for solicitation fraud when the victim of the offense is
an elderly person or disabled adult, and to permit in specified circumstances
the aggregation of contributions involved in solicitation fraud with other
property or services obtained in a course of conduct involving solicitation
fraud and specified other offenses.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 1716.01, 1716.14, 1716.99, and 2913.61
of the Revised Code be amended to read as follows:
Sec. 1716.01. As used in this chapter:
(A)(1) "Charitable organization" means either of the
following:
(1)(a) Any person that is determined by the internal revenue
service to be a tax exempt organization pursuant to section
501(c)(3) of the Internal Revenue Code;
(2)(b) Any person that is or holds itself out to be
established for any benevolent, philanthropic, patriotic,
educational, humane, scientific, public health, environmental
conservation, civic, or other eleemosynary purpose or for the
benefit of law enforcement personnel, fire fighters
FIREFIGHTERS, or other
persons who protect the public safety, or any person who in any
manner employs a charitable appeal as the basis of any
solicitation or an appeal that suggests that there is a
charitable purpose to any solicitation.
(2) "Charitable organization" is not limited to only those
organizations to which contributions are tax deductible under
section 170 of the Internal Revenue Code.
"Charitable organization" does not include an employer who
is not engaged in the business of soliciting contributions or
conducting charitable sales promotions but who incidentally
solicits contributions for a charitable organization or purpose;
or a compensated employee of an employer not engaged in the
business of soliciting contributions or conducting charitable
sales promotions, when the employee solicits contributions or
conducts charitable sales promotions at the direction of his THE
EMPLOYEE'S employer.
(B)(1) "Charitable purpose" means either of the following:
(1)(a) Any purpose described in section 501(c)(3) of the
Internal Revenue Code;
(2)(b) Any benevolent, philanthropic, patriotic, educational,
humane, scientific, public health, environmental conservation,
civic, or other eleemosynary objective or any objective that
benefits law enforcement personnel, fire fighters FIREFIGHTERS,
or other persons who protect the public safety.
(2) "Charitable purpose" is not limited to only those purposes
for which contributions are tax deductible under section 170 of
the Internal Revenue Code.
(C) "Charitable sales promotion" means any advertising or
sale conducted by a person who represents that the purchase or
use of goods or services offered by the person will benefit, in
whole or in part, any charitable organization or charitable
purpose. The provision of advertising services to a charitable
organization, either for compensation or as a donation, does not
of itself constitute a charitable sales promotion.
(D) "Commercial co-venturer" means any person who for
profit regularly and primarily is engaged in trade or commerce
other than in connection with soliciting for charitable
organizations or charitable purposes and who conducts a
charitable sales promotion.
(E) "Contribution" means the promise, pledge, or grant of
any money or property, financial assistance, or any other thing
of value in response to a solicitation. "Contribution" does not
include any bona fide fees, or any dues or assessments paid by
members, provided that membership is not conferred solely as a
consideration for making a contribution in response to a
solicitation.
(F) "DECEPTIVE ACT OR PRACTICE" MEANS KNOWINGLY MISREPRESENTING
ANY MATERIAL FACT RELATED TO THE PLANNING, CONDUCTING, OR EXECUTING OF ANY
SOLICITATION OF CONTRIBUTIONS FOR A CHARITABLE ORGANIZATION OR CHARITABLE
PURPOSE OR TO THE PLANNING, CONDUCTING, OR EXECUTING OF A CHARITABLE SALES
PROMOTION,
WHEN THE MISREPRESENTATION INDUCES ANY PERSON TO MAKE A
CONTRIBUTION TO A CHARITABLE ORGANIZATION, FOR A CHARITABLE
PURPOSE, OR IN RESPONSE TO A CHARITABLE SALES PROMOTION.
(G) "Fund-raising counsel" means any person who, for
compensation, plans, manages, advises, consults, or prepares
material for or with respect to the solicitation in this state of
contributions for any charitable organization or at any time has
custody of contributions from a solicitation, but does not
solicit contributions and does not employ, procure, or otherwise
engage any compensated person to solicit contributions.
"Fund-raising counsel" does not include the following:
(1) An attorney, investment counselor, or banker who in
the conduct of his THE ATTORNEY'S, INVESTMENT COUNSELOR'S, OR
BANKER'S profession advises a client;
(2) A charitable organization or a bona fide officer,
employee, or volunteer of a charitable organization, when the
charitable organization has full knowledge of the services being
performed on its behalf and either of the following applies:
(a) The services performed by the charitable organization,
bona fide officer, employee, or volunteer are performed on behalf
of the charitable organization that employs the bona fide officer
or employee or engages the services of the bona fide volunteer;
(b) The charitable organization on whose behalf the
services are performed shares some element of common control or
an historic or continuing relationship with the charitable
organization that performs the services or employs the bona fide
officer or employee or engages the services of the bona fide
volunteer;
(3) An employer who is not engaged in the business of
soliciting contributions or conducting charitable sales
promotions but who incidentally solicits contributions for a
charitable organization or purpose without compensation;
(4) A compensated employee of an employer who is not
engaged in the business of soliciting contributions or conducting
charitable sales promotions, when the employee solicits
contributions or conducts charitable sales promotions at the
direction of his THE EMPLOYEE'S employer.
(G)(H) "Internal Revenue Code" means the "Internal Revenue
Code of 1986," 100 Stat. 2085, 26 U.S.C.A. 1, as amended.
(H)(I) "Person" has the same meaning as in section 1.59 of
the Revised Code and includes a group, foundation, or any other
entity however styled.
(I)(J) "Professional solicitor" means any person who, for
compensation, performs on behalf of or for the benefit of a
charitable organization any service in connection with which
contributions are or will be solicited in this state by the
compensated person or by any person it employs, procures, or
otherwise engages directly or indirectly to solicit
contributions. "Professional solicitor" does not include the
following:
(1) An attorney, investment counselor, or banker who in
the conduct of his THE ATTORNEY'S, INVESTMENT COUNSELOR'S, OR
BANKER'S profession advises a client;
(2) A charitable organization or a bona fide officer,
employee, or volunteer of a charitable organization, when the
charitable organization has full knowledge of the services being
performed on its behalf and either of the following applies:
(a) The services performed by the charitable organization,
bona fide officer, employee, or volunteer are performed on behalf
of the charitable organization that employs the bona fide officer
or employee or engages the services of the bona fide volunteer;
(b) The charitable organization on whose behalf the
services are performed shares some element of common control or
an historic or continuing relationship with the charitable
organization that performs the services or employs the bona fide
officer or employee or engages the services of the bona fide
volunteer;
(3) An employer who is not engaged in the business of
soliciting contributions or conducting charitable sales
promotions but who incidentally solicits contributions for a
charitable organization or purpose without compensation;
(4) A compensated employee of an employer who is not
engaged in the business of soliciting contributions or conducting
charitable sales promotions, when the employee solicits
contributions or conducts charitable sales promotions at the
direction of his THE EMPLOYEE'S employer.
(J)(K)(1) "Solicit" or "solicitation" means to request or a
request directly or indirectly for money, property, financial
assistance, or any other thing of value on the plea or
representation that such money, property, financial assistance,
or other thing of value or a portion of it will be used for a
charitable purpose or will benefit a charitable organization.
"Solicit" or "solicitation" includes but is not limited to the
following methods of requesting or securing the promise, pledge,
or grant of money, property, financial assistance, or any other
thing of value:
(1)(a) Any oral or written request;
(2)(b) Making any announcement to the press, on radio or
television, by telephone or telegraph, or by any other
communication device concerning an appeal or campaign by or for
any charitable organization or for any charitable purpose;
(3)(c) Distributing, circulating, posting, or publishing any
handbill, written advertisement, or other publication that
directly or by implication seeks to obtain any contribution;
(4)(d) Selling or offering or attempting to sell any
advertisement, advertising space, book, card, tag, coupon,
chance, device, magazine, membership, merchandise, subscription,
sponsorship, flower, ticket, admission, candy, cookies, or other
tangible item, or any right of any description in connection with
which an appeal is made for any charitable organization or
charitable purpose, or when the name of any charitable
organization is used or referred to in any such appeal as an
inducement or reason for making the sale, or when in connection
with the sale or offer or attempt to sell, any statement is made
that all or part of the proceeds from the sale will be used for
any charitable purpose or will benefit any charitable
organization.
(2) A solicitation is considered as having taken place
FOR PURPOSES OF DIVISION
(K)(1) OF THIS SECTION whether
or not the person making the solicitation receives any
contribution. A solicitation does not occur when a person
applies for a grant or an award to the government or to an
organization that is exempt from federal income taxation under
section 501(a) and described in section 501(c)(3) of the Internal
Revenue Code.
(L) "THEFT OFFENSE" HAS THE SAME MEANING AS IN SECTION 2913.01
of the Revised Code.
(M) "ELDERLY PERSON" AND "DISABLED ADULT" HAVE THE SAME MEANINGS
AS IN SECTION 2913.01 of the Revised Code.
Sec. 1716.14. (A) The following acts and practices are
hereby prohibited and declared unlawful as applied to the
planning, conducting, or executing of any solicitation of
contributions for a charitable organization or charitable purpose
or to the planning, conducting, or executing of a charitable
sales promotion:
(1) Operating in violation of, or failing to comply with,
any of the requirements of this chapter or any rule adopted under
this chapter;
(2) Committing any unfair or deceptive act or practice;
(2) MISLEADING ANY PERSON AS TO ANY MATERIAL FACT CONCERNING THE
SOLICITATION OF CONTRIBUTIONS FOR A CHARITABLE ORGANIZATION OR CHARITABLE
PURPOSE OR CONCERNING A CHARITABLE SALES PROMOTION;
(3) Using any representation that implies that the
contribution is for or on behalf of a charitable organization, or
using any emblem, device, or printed matter belonging to or
associated with a charitable organization, without first having
been authorized in writing to do so by the charitable
organization;
(4) Using a name, symbol, or statement that is so closely
related or similar to that used by another charitable
organization, public official, or public agency in such a manner
that the use of the name, symbol, or statement tends to confuse
or mislead a person being solicited for contributions, except
that the name, symbol, or statement may be used if written
permission is obtained from the other charitable organization,
public official, or public agency and filed with the attorney
general prior to any solicitation for a charitable purpose or
prior to engaging in any charitable sales promotion;
(5) Misleading any person in any manner in the belief, or
misrepresenting MAKING OR USING ANY REPRESENTATION
to any person THAT IMPLIES, that the organization on whose
behalf a solicitation or charitable sales promotion is being
conducted is a charitable organization or that the proceeds of
the solicitation or charitable sales promotion will be used for a
charitable purpose if either of those is not the fact;
(6) Misleading any person in any manner in the belief, or
misrepesenting MAKING OR USING ANY REPRESENTATION to any person
THAT IMPLIES, that any other
person sponsors,
endorses, or approves of the solicitation or charitable sales
promotion when that other person has not given its consent in
writing to that representation or to the use of its name for any
of those purposes;
(7) Using or exploiting the fact of registration in such a
manner as to lead any person to believe that the registration in
any manner constitutes an endorsement or approval by the state;
(8) Representing directly or by implication that a
charitable organization will receive a fixed or estimated
percentage of the gross revenue from a solicitation campaign that
is greater than that set forth in the contract filed with the
attorney general pursuant to section 1716.08 of the Revised Code,
or that a charitable organization will receive an actual or
estimated dollar amount or percentage per unit of goods or
services purchased or used in a charitable sales promotion, that
is greater than that agreed to by the commercial co-venturer and
the charitable organization;
(9) Filing false or misleading information in any document
required to be filed with the attorney general under this
chapter;
(10) Filing false or misleading information in response to
a request from the attorney general under section 1716.15 of the
Revised Code;
(11) Failing to provide complete and timely payment to a
charitable organization of the proceeds from a solicitation
campaign or a charitable sales promotion;
(12) OPERATING IN VIOLATION OF, OR FAILING TO COMPLY WITH, ANY OF THE
REQUIREMENTS OF THIS CHAPTER OR ANY RULE ADOPTED UNDER THIS CHAPTER.
(B) The act of soliciting contributions for any charitable
organization or charitable purpose or engaging in a charitable
sales promotion without complying with the requirements of this
chapter or any rule adopted pursuant to this chapter, is a
nuisance.
Sec. 1716.99. (A) Whoever violates ANY PROVISION OF sections 1716.02
to 1716.17 of the Revised Code or any rule adopted pursuant to those
sections, OTHER THAN DIVISION (A)(1) OF SECTION 1716.14
of the Revised Code, is guilty of solicitation fraud, a misdemeanor of the
first degree.
(B) Each occurrence of a solicitation of a contribution
from any person in violation of ANY PROVISION OF sections 1716.02 to
1716.17 of
the Revised Code or any rule adopted under those sections,
OTHER THAN DIVISION (A)(1) OF SECTION 1716.14 of the Revised Code, is
considered a separate offense of solicitation fraud.
(B)(1) WHOEVER VIOLATES DIVISION (A)(1) OF SECTION
1716.14 of the Revised Code IS GUILTY OF SOLICITATION FRAUD AND SHALL BE PUNISHED
AS PROVIDED IN DIVISIONS (B)(2) TO (4) OF THIS SECTION.
(2) EXCEPT AS OTHERWISE PROVIDED IN DIVISION (B)(4) OF THIS
SECTION, DIVISION (B)(3) OF THIS SECTION APPLIES TO SOLICITATION
FRAUD, AND SOLICITATION FRAUD IS ONE OF THE FOLLOWING:
(a) EXCEPT AS OTHERWISE PROVIDED IN DIVISIONS
(B)(2)(b) TO (d) OF
THIS SECTION, A MISDEMEANOR OF THE FIRST DEGREE OR,
IF THE OFFENDER PREVIOUSLY HAS BEEN CONVICTED OF OR PLEADED GUILTY TO A THEFT
OFFENSE OR A
VIOLATION OF DIVISION (A)(1) OF SECTION 1716.14 of the Revised Code, A FELONY OF THE
FIFTH DEGREE.
(b) IF THE VALUE OF THE CONTRIBUTION OR CONTRIBUTIONS MADE IN THE
VIOLATION IS FIVE HUNDRED DOLLARS OR MORE BUT LESS THAN FIVE THOUSAND DOLLARS,
A FELONY OF
THE FIFTH DEGREE OR, IF THE OFFENDER PREVIOUSLY HAS BEEN CONVICTED
OF OR PLEADED GUILTY TO A THEFT OFFENSE OR A VIOLATION OF DIVISION
(A)(1) OF SECTION
1716.14 of the Revised Code, A FELONY OF THE FOURTH DEGREE.
(c) IF THE VALUE OF THE CONTRIBUTION OR CONTRIBUTIONS MADE IN THE
VIOLATION IS FIVE THOUSAND DOLLARS OR MORE BUT LESS THAN ONE
HUNDRED THOUSAND DOLLARS, A FELONY OF THE
FOURTH DEGREE OR, IF THE OFFENDER PREVIOUSLY HAS BEEN CONVICTED OF
OR PLEADED GUILTY TO A THEFT OFFENSE OR A VIOLATION OF DIVISION
(A)(1) OF SECTION
1716.14 of the Revised Code, A FELONY OF THE THIRD DEGREE.
(d) IF THE VALUE OF THE CONTRIBUTION OR CONTRIBUTIONS MADE IN THE
VIOLATION IS ONE HUNDRED THOUSAND DOLLARS OR MORE, A FELONY OF THE THIRD
DEGREE.
(3) WHEN AN OFFENDER COMMITS A SERIES OF OFFENSES IN VIOLATION OF
DIVISION (A)(1) OF SECTION 1716.14 of the Revised Code AS PART OF
A COMMON SCHEME OR PLAN TO DEFRAUD MULTIPLE VICTIMS, ALL OF THE OFFENSES MAY
BE TRIED AS A SINGLE OFFENSE. IF THE OFFENSES ARE TRIED AS A SINGLE OFFENSE,
THE VALUE OF THE CONTRIBUTIONS FOR
PURPOSES OF DETERMINING THE VALUE AS REQUIRED BY DIVISION (B)(2)
OF THIS SECTION IS THE AGGREGATE VALUE OF ALL CONTRIBUTIONS INVOLVED IN ALL
OFFENSES IN THE COMMON
SCHEME OR PLAN TO DEFRAUD MULTIPLE VICTIMS. IN PROSECUTING A
SINGLE OFFENSE UNDER THIS DIVISION, IT IS NOT NECESSARY TO
SEPARATELY ALLEGE AND PROVE EACH OFFENSE IN THE SERIES. RATHER,
IT IS SUFFICIENT TO ALLEGE AND PROVE THAT THE OFFENDER, WITHIN A
GIVEN SPAN OF TIME, COMMITTED ONE OR MORE OFFENSES AS PART OF A
COMMON SCHEME OR PLAN TO DEFRAUD MULTIPLE VICTIMS AS DESCRIBED IN
THIS DIVISION.
(4) IF THE VICTIM OF THE OFFENSE IS AN ELDERLY PERSON OR DISABLED ADULT,
DIVISION (B)(4) OF THIS SECTION AND SECTION 2913.61 of the Revised Code APPLY TO
SOLICITATION FRAUD, AND SOLICITATION FRAUD IS ONE OF THE FOLLOWING:
(a) EXCEPT AS OTHERWISE PROVIDED IN DIVISIONS
(B)(4)(b) TO (d) OF THIS SECTION, A
FELONY OF THE FIFTH DEGREE;
(b) IF THE VALUE OF THE CONTRIBUTIONS MADE IN THE VIOLATION IS
FIVE HUNDRED DOLLARS OR MORE AND IS LESS THAN FIVE THOUSAND DOLLARS, A FELONY
OF THE FOURTH DEGREE;
(c) IF THE VALUE OF THE CONTRIBUTIONS MADE IN THE VIOLATION IS
FIVE THOUSAND DOLLARS OR MORE AND IS LESS THAN TWENTY-FIVE THOUSAND DOLLARS, A
FELONY OF THE THIRD DEGREE;
(d) IF THE VALUE OF THE CONTRIBUTIONS MADE IN THE VIOLATION IS
TWENTY-FIVE THOUSAND DOLLARS OR MORE, A FELONY OF THE SECOND DEGREE.
(C) Any person who is found guilty of solicitation fraud
ANY ACT OR OMISSION PROHIBITED UNDER THIS CHAPTER shall forfeit the
bond described in
section 1716.05 or 1716.07 of the Revised Code to the state
treasury to the credit of the charitable foundations fund
established under section 109.32 of the Revised Code and shall be
prohibited from registering with the attorney general or from
serving as a fund-raising counsel or professional solicitor in
this state for a period of five years after his conviction.
Sec. 2913.61. (A) When a person is charged with a theft
offense involving property or services valued at five
hundred dollars or more, a theft offense
involving property or services valued at five hundred dollars or
more and less than five thousand dollars, a theft offense involving
property or services valued at five
thousand dollars or more and less than one hundred thousand dollars, or a
theft offense involving property or services valued at one hundred thousand
dollars or more, the jury or court trying the accused
shall determine the value of the property or services as of the
time of the offense and, if a guilty verdict is returned,
shall return the finding of value as part of the verdict. In any
case in which the jury or court determines that the value of the property
or services at the time of the offense was five hundred dollars or more,
it is unnecessary to find and return the exact value, and it is
sufficient if the finding and return is to the effect that the value of the
property or services involved was five hundred dollars or more and
less than
five thousand dollars, was five thousand dollars or more and less than one
hundred thousand dollars, or was one hundred thousand dollars or more.
(B) If more than one item of property or services is
involved in a theft offense, the value of the property or
services involved for the purpose of determining the value as
required by division (A) of this section is the aggregate value
of all property or services involved in the offense.
(C)(1) When AN OFFENDER COMMITS a series of offenses under section
2913.02 of the
Revised Code is committed by the offender in the offender's same
employment, capacity, or relationship to another, all of
those offenses shall be
tried as a single offense, and the value of the property or services involved
for the purpose of determining the value as
required by division (A) of this section is the aggregate value
of all property and services involved in all offenses in the
series. In prosecuting a single offense under this division, it
is not necessary to separately allege and prove each offense in
the series. It is sufficient to allege and prove that the
offender, within a given span of time, committed one or more
theft offenses in the offender's same employment, capacity, or
relationship to another.
(2) If an offender is being tried for the
commission of COMMITS a series of offenses under section 2913.02 of
the Revised Code against more than one
victim pursuant to a scheme or THAT INVOLVE A COMMON course of
conduct TO DEFRAUD MULTIPLE
VICTIMS, 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 or services involved, for the purpose of determining
the value as required by division (A) of this section, is the
aggregate value of all property and services involved in the
series of ALL OF THE offenses
IN THE COMMON COURSE OF CONDUCT TO DEFRAUD MULTIPLE VICTIMS.
(3) IN PROSECUTING A SINGLE OFFENSE UNDER DIVISION (C)(1) OR (2)
OF THIS SECTION, IT IS NOT NECESSARY TO SEPARATELY ALLEGE AND PROVE EACH
OFFENSE IN THE SERIES. RATHER, IT IS SUFFICIENT TO
ALLEGE AND PROVE THAT THE OFFENDER, WITHIN A GIVEN SPAN OF TIME,
COMMITTED ONE OR MORE THEFT OFFENSES IN THE OFFENDER'S SAME
EMPLOYMENT, CAPACITY, OR RELATIONSHIP TO ANOTHER AS DESCRIBED IN
DIVISION (C)(1) OF THIS SECTION OR THAT INVOLVE A COMMON
COURSE OF CONDUCT TO DEFRAUD MULTIPLE VICTIMS AS DESCRIBED IN DIVISION
(C)(2)
OF THIS SECTION.
(D) The following criteria shall be used in determining
the value of property or services involved in a theft offense:
(1) The value of an heirloom, memento, collector's item,
antique, museum piece, manuscript, document, record, or other
thing that has intrinsic worth to its owner and
that either is
irreplaceable or is replaceable only on the expenditure of
substantial time, effort, or money, is the amount that would
compensate the owner for its loss.
(2) The value of personal effects and household goods, and
of materials, supplies, equipment, and fixtures used in the
profession, business, trade, occupation, or avocation of its
owner, which property is not covered under division (D)(1) of
this section and which retains substantial utility for its
purpose regardless of its age or condition, is the cost of
replacing the property with new property of like kind and
quality.
(3) The value of any real or personal property
that is not
covered under division (D)(1) or (2) of this section, and the
value of services, is the fair market value of the property or
services. As used in this section, "fair market value" is the
money consideration that a buyer would give and a seller would
accept for property or services, assuming that the buyer is
willing to buy and the seller is willing to sell, that both are
fully informed as to all facts material to the transaction, and
that neither is under any compulsion to act.
(E) Without limitation on the evidence that may be used to establish the
value of property or services involved in a theft offense:
(1) When the property involved is personal property held
for sale at wholesale or retail, the price at which the property
was held for sale is prima-facie evidence of its value.
(2) When the property involved is a security or commodity
traded on an exchange, the closing price or, if there is no
closing price, the asked price, given in the latest market
quotation prior to the offense is prima-facie evidence of the
value of the security or commodity.
(3) When the property involved is livestock, poultry, or
raw agricultural products for which a local market price is
available, the latest local market price prior to the offense is
prima-facie evidence of the value of the livestock, poultry, or
products.
(4) When the property involved is a negotiable instrument,
the face value is prima-facie evidence of the value of the
instrument.
(5) When the property involved is a warehouse receipt,
bill of lading, pawn ticket, claim check, or other instrument
entitling the holder or bearer to receive property, the face
value or, if there is no face value, the value of the property
covered by the instrument less any payment necessary to receive
the property is prima-facie evidence of the value of the
instrument.
(6) When the property involved is a ticket of admission,
ticket for transportation, coupon, token, or other instrument
entitling the holder or bearer to receive property or services,
the face value or, if there is no face value, the value of the
property or services that may be received by the
instrument is
prima-facie evidence of the value of the instrument.
(7) When the services involved are gas, electricity,
water, telephone, transportation, shipping, or other services for
which the rate is established by law, the duly established rate
is prima-facie evidence of the value of the services.
(8) When the services involved are services for which the
rate is not established by law, and the offender has been
notified prior to the offense of the rate for the services,
either in writing, orally, or by posting in a manner
reasonably calculated to come to the attention of potential
offenders, the rate contained in the notice is prima-facie
evidence of the value of the services.
Section 2. That existing sections 1716.01, 1716.14, 1716.99, and
2913.61 of the Revised Code are hereby repealed.
Section 3. Subject to Section 5 of this act, that section 2913.61 of the
Revised Code that results from Sub. H.B. 2 of the 123rd General Assembly
contingently be amended to read as follows:
Sec. 2913.61. (A) When a person is charged with a theft
offense involving, OR WITH A VIOLATION OF DIVISION
(A)(1) OF SECTION 1716.14 of the Revised Code INVOLVING A VICTIM WHO IS AN ELDERLY
PERSON OR DISABLED ADULT THAT INVOLVES property or services valued at five
hundred dollars or more, a theft offense
involving property or services valued at five hundred dollars or
more and less than five thousand dollars, a theft offense involving
property or services valued at five
thousand dollars or more and less than twenty-five thousand dollars, a
theft offense involving property or services valued at twenty-five
thousand
dollars or more and less than one hundred thousand dollars,
or a theft offense involving property or services valued at one hundred
thousand
dollars or more, the jury or court trying the accused
shall determine the value of the property or services as of the
time of the offense and, if a guilty verdict is returned,
shall return the finding of value as part of the verdict. In any
case in which the jury or court determines that the value of the property
or services at the time of the offense was five hundred dollars or more,
it is unnecessary to find and return the exact value, and it is
sufficient if the finding and return is to the effect that the value of the
property or services involved was five hundred dollars or more and
less than
five thousand dollars, was five thousand dollars or more and less than
twenty-five thousand dollars, was twenty-five thousand dollars or more and
less than one
hundred thousand dollars, or was one hundred thousand dollars or more.
(B) If more than one item of property or services is
involved in a theft offense OR IN A VIOLATION OF DIVISION (A)(1)
OF SECTION 1716.14 of the Revised Code INVOLVING A VICTIM WHO IS AN ELDERLY PERSON OR
DISABLED ADULT, the value of the property or
services involved for the purpose of determining the value as
required by division (A) of this section is the aggregate value
of all property or services involved in the offense.
(C)(1) When a series of offenses under section 2913.02 of the
Revised Code, or a series of violations of, attempts to commit a
violation of, conspiracies to violate, or complicity in violations of
DIVISION (A)(1) OF SECTION 1716.14, section 2913.02,
2913.03, or 2913.04, division (B)(1) or (2) of section
2913.21, or section 2913.31 or 2913.43 of the Revised Code involving a victim
who is an elderly person or disabled adult,
is committed by the offender in the offender's same
employment, capacity, or relationship to another, all of
those offenses shall be
tried as a single offense, and the. THE value of the
property or services involved IN THE SERIES OF OFFENSES for the purpose
of determining the value as
required by division (A) of this section is the aggregate value
of all property and services involved in all offenses in the
series. In prosecuting a single offense under this division, it
is not necessary to separately allege and prove each offense in
the series. It is sufficient to allege and prove that the
offender, within a given span of time, committed one or more
theft offenses in the offender's same employment, capacity, or
relationship to another.
(2) If an offender is being tried for the
commission of COMMITS a series of offenses under section 2913.02 of
the Revised Code against more than one victim, or
THAT INVOLVES A COMMON COURSE OF CONDUCT TO DEFRAUD MULTIPLE VICTIMS, ALL
OF THE OFFENSES MAY BE TRIED AS A SINGLE OFFENSE. IF AN OFFENDER IS BEING
TRIED FOR THE COMMISSION OF a series of violations of, attempts to commit
a
violation of, conspiracies to violate, or complicity in violations of
DIVISION (A)(1) OF SECTION 1716.14, section
2913.02, 2913.03, or 2913.04, division (B)(1) or (2) of section 2913.21, or
section 2913.31 or 2913.43 of the Revised Code, whether
committed against one
victim or more than one victim, involving a victim who is an
elderly person or disabled adult,
pursuant to a scheme or course of conduct,
all of those offenses may be tried as a single offense, and.
IF THE OFFENSES ARE TRIED AS A SINGLE OFFENSE, the value
of the
property or services involved, for the purpose of determining
the value as required by division (A) of this section, is the
aggregate value of all property and services involved in the
series of ALL OF THE offenses IN THE COURSE OF CONDUCT.
(3) IN PROSECUTING A SINGLE OFFENSE UNDER DIVISION (C)(1) OR (2)
OF THIS SECTION, IT IS NOT NECESSARY TO SEPARATELY ALLEGE AND PROVE EACH
OFFENSE IN THE SERIES. RATHER, IT IS SUFFICIENT TO
ALLEGE AND PROVE THAT THE OFFENDER, WITHIN A GIVEN SPAN OF TIME,
COMMITTED ONE OR MORE THEFT OFFENSES IN THE OFFENDER'S SAME
EMPLOYMENT, CAPACITY, OR RELATIONSHIP TO ANOTHER AS DESCRIBED IN
DIVISION (C)(1) OF THIS SECTION OR THAT INVOLVE A COMMON
COURSE OF CONDUCT TO DEFRAUD MULTIPLE VICTIMS OR A SCHEME OR COURSE OF CONDUCT
AS DESCRIBED IN DIVISION (C)(2) OF THIS SECTION.
(D) The following criteria shall be used in determining
the value of property or services involved in a theft offense:
(1) The value of an heirloom, memento, collector's item,
antique, museum piece, manuscript, document, record, or other
thing that has intrinsic worth to its owner and
that either is
irreplaceable or is replaceable only on the expenditure of
substantial time, effort, or money, is the amount that would
compensate the owner for its loss.
(2) The value of personal effects and household goods, and
of materials, supplies, equipment, and fixtures used in the
profession, business, trade, occupation, or avocation of its
owner, which property is not covered under division (D)(1) of
this section and which retains substantial utility for its
purpose regardless of its age or condition, is the cost of
replacing the property with new property of like kind and
quality.
(3) The value of any real or personal property
that is not
covered under division (D)(1) or (2) of this section, and the
value of services, is the fair market value of the property or
services. As used in this section, "fair market value" is the
money consideration that a buyer would give and a seller would
accept for property or services, assuming that the buyer is
willing to buy and the seller is willing to sell, that both are
fully informed as to all facts material to the transaction, and
that neither is under any compulsion to act.
(E) Without limitation on the evidence that may be used to establish the
value of property or services involved in a theft offense:
(1) When the property involved is personal property held
for sale at wholesale or retail, the price at which the property
was held for sale is prima-facie evidence of its value.
(2) When the property involved is a security or commodity
traded on an exchange, the closing price or, if there is no
closing price, the asked price, given in the latest market
quotation prior to the offense is prima-facie evidence of the
value of the security or commodity.
(3) When the property involved is livestock, poultry, or
raw agricultural products for which a local market price is
available, the latest local market price prior to the offense is
prima-facie evidence of the value of the livestock, poultry, or
products.
(4) When the property involved is a negotiable instrument,
the face value is prima-facie evidence of the value of the
instrument.
(5) When the property involved is a warehouse receipt,
bill of lading, pawn ticket, claim check, or other instrument
entitling the holder or bearer to receive property, the face
value or, if there is no face value, the value of the property
covered by the instrument less any payment necessary to receive
the property is prima-facie evidence of the value of the
instrument.
(6) When the property involved is a ticket of admission,
ticket for transportation, coupon, token, or other instrument
entitling the holder or bearer to receive property or services,
the face value or, if there is no face value, the value of the
property or services that may be received by the
instrument is
prima-facie evidence of the value of the instrument.
(7) When the services involved are gas, electricity,
water, telephone, transportation, shipping, or other services for
which the rate is established by law, the duly established rate
is prima-facie evidence of the value of the services.
(8) When the services involved are services for which the
rate is not established by law, and the offender has been
notified prior to the offense of the rate for the services,
either in writing, orally, or by posting in a manner
reasonably calculated to come to the attention of potential
offenders, the rate contained in the notice is prima-facie
evidence of the value of the services.
Section 4. Subject to Section 5 of this act, that existing section 2913.61 of
the Revised Code that results from Sub. H.B. 2 of the 123rd General Assembly
contingently is hereby repealed.
Section 5. The amendments by this act adding division (M) to section 1716.01
and division (B)(4) to section 1716.99 and Sections 3 and 4 of this act are
contingent on Sub. H.B. 2 of the 123rd General Assembly becoming law, as
concurred in on June 8, 1999, pages 776-777, House Journal. If the
contingency occurs, the version of section 2913.61 of the Revised Code in
Sections 3 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 and 2 of this
act.
|