State v. Lynch , 2012 Ohio 2521 ( 2012 )

[Cite as State v. Lynch, 2012-Ohio-2521.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. 11 CA 75
SCOTT A. LYNCH
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 10 CR 911D
JUDGMENT: Affirmed in Part; Reversed in Part and
Remanded
DATE OF JUDGMENT ENTRY: June 6, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES J. MAYER, JR. DAVID HOMER
PROSECUTING ATTORNEY 13 Park Avenue West
ANDREW S. KELLER Suite 609
ASSISTANT PROSECUTOR Mansfield, Ohio 44902
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 11 CA 75 2
Wise, J.
{¶1} Appellant Scott A. Lynch appeals his conviction, in the Court of Common
Pleas, Richland County, for the offense of engaging in a pattern of corrupt activity
(“EPCA”). The relevant facts leading to this appeal are as follows.
{¶2} On at least three occasions in the late summer and fall of 2010, METRICH
task force officers set up controlled heroin buys at appellant’s residence on Clayburg
Road in Greenwich, Richland County. In each instance, a confidential informant,
working with the METRICH officers, went to the residence and purchased “balloons” of
heroin; the transactions were recorded on audio and video.
{¶3} In addition, on August 6, 2010, METRICH officers executed a search
warrant of appellant’s residence. The officers found, inter alia, drug paraphernalia,
digital scales, a hypodermic needle and tourniquet, and a rifle. Appellant admitted to the
officers that he had purchased heroin in Columbus, Ohio, and had sold about twenty-
five “balloons” of heroin that week.
{¶4} In February 2011, appellant was indicted by the Richland County Grand
Jury on one count of having a weapon under a disability, a felony of the third degree
under R.C. 2923.13(A)(3), (based on the allegation that on or about August 6, 2010,
appellant had a .22 rifle in his home despite prior felony convictions); three counts of
trafficking in drugs, felonies of the fourth degree under R.C. 2925.03(A), (based on
allegations that on or about August 4, 2010, appellant sold heroin (.18 grams) to a
government agent in the vicinity of a juvenile, that on or about October 6, 2010,
appellant sold heroin (1.17 grams) to a government agent, and that on or about
November 2, 2010, appellant sold heroin (1.08 grams) to a government agent); and one
Richland County, Case No. 11 CA 75 3
count of engaging in a pattern of corrupt activity (“EPCA”), a felony of the second
degree under R.C. 2923.32, (based on the allegation that between August 1, 2010 and
November 3, 2010, appellant engaged in a pattern of corrupt activity in Richland
County, Ohio by “necessarily associat[ing] with others known and unknown to traffic in
Heroin, a substance that is produced almost entirely in Southeast Asia,” purchasing his
heroin supply from an individual designated as “a Mexican" in Columbus, Ohio. See Bill
of Particulars, June 13, 2011, at 3.
{¶5} On June 16, 2011, appellant appeared before the trial court and entered
pleas of guilty to the first four of the above five counts. A bench trial was thereupon
conducted as to the remaining count of EPCA.
{¶6} Appellant was found guilty on the EPCA count, in addition to his aforesaid
pleas to the remaining four counts. He was subsequently sentenced by the trial court to
a total of three years in prison. See Judgment Entries, July 15, 2011 and August 12,
2011.
{¶7} On August 26, 2011, appellant filed a notice of appeal. He herein raises
the following three Assignments of Error:
{¶8} “I. THE CONVICTION FOR ENGAGING IN A PATTERN OF CORRUPT
ACTIVITY IS CONTRARY TO LAW WHERE THERE IS NO EVIDENCE THAT THE
VALUE OF THE CONTRABAND INVOLVED WAS OVER $500.00.
{¶9} “II. THE CONVICTION IS CONTRARY TO LAW WHERE THERE IS NO
EVIDENCE THAT APPELLANT WAS AN ENTERPRISE SEPARATE AND APART
FROM THE PATTERN OF CORRUPT ACTIVITY IN WHICH HE ENGAGED.
Richland County, Case No. 11 CA 75 4
{¶10} “III. THE CONVICTION IS UNSUPPORTED BY THE WEIGHT OF THE
EVIDENCE, WHERE THE ONLY EVIDENCE OF GLOBAL DRUG TRAFFICKING AND
ITS CONNECTION TO LOCAL DRUG DEALING IS BASED ON COMMON
KNOWLEDGE UNRELATED TO THE CASE.”
Standard of Review
{¶11} As we read appellant’s brief, he is chiefly advancing arguments based on
a claim of insufficiency of the evidence. In reviewing a claim of insufficient evidence,
“[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259,
574 N.E.2d 492, paragraph two of the syllabus.
I.
{¶12} In his First Assignment of Error, appellant contends his EPCA conviction
was not supported by evidence that the value of the contraband was more than
$500.00. We disagree.
{¶13} R.C. 2923.31(I)(2)(c), as written at the time of the offense at issue, stated
in pertinent part as follows: “ ‘Corrupt activity’ means engaging in, attempting to engage
in, conspiring to engage in, or soliciting, coercing, or intimidating another person to
engage in *** [c]onduct constituting any *** violation of section 2907.21, 2907.22,
2907.31, 2913.02, 2913.11, 2913.21, 2913.31, 2913.32, 2913.34, 2913.42, 2913.47,
2913.51, 2915.03, 2925.03, 2925.04, 2925.05, or 2925.37 of the Revised Code, ***
when the proceeds of the violation, the payments made in the violation, the amount of a
claim for payment or for any other benefit that is false or deceptive and that is involved
Richland County, Case No. 11 CA 75 5
in the violation, or the value of the contraband or other property illegally possessed,
sold, or purchased in the violation exceeds five hundred dollars, or any combination of
violations described in division (I)(2)(c) of this section when the total proceeds of the
combination of violations, payments made in the combination of violations, amount of
the claims for payment or for other benefits that is false or deceptive and that is involved
in the combination of violations, or value of the contraband or other property illegally
possessed, sold, or purchased in the combination of violations exceeds five hundred
dollars[.]”
{¶14} As indicated in the aforesaid wording of the statute, “sale”, “possession”
and “purchase” of contraband are all included to reach the $500.00 threshold. The bill of
particulars in this matter clearly indicates that the price paid by the confidential
informants for the heroin in the three trafficking counts, to which appellant pled guilty,
totaled $650.00. “A guilty plea waives a defendant's right to challenge sufficiency or
manifest weight of the evidence.” State v. Hill, Cuyahoga App. No. 90513, 2008–Ohio–
4857, ¶ 6, citing State v. Siders (1992), 78 Ohio App.3d 699, 701. Upon review, we
conclude the trier of fact could find the amount of heroin exceeded the $500.00
jurisdictional amount as required by R.C. 2923.31.
{¶15} Appellant's First Assignment of Error is overruled.
II.
{¶16} In his Second Assignment of Error, appellant contends his EPCA
conviction was not supported by evidence that his activities constituted a separate
“enterprise” pursuant to statute. We agree.
Richland County, Case No. 11 CA 75 6
{¶17} Appellant was charged under Count V of the indictment with violating R.C.
2923.32(A)(1), which states as follows: “No person employed by, or associated with,
any enterprise shall conduct or participate in, directly or indirectly, the affairs of the
enterprise through a pattern of corrupt activity * * *.”
{¶18} R.C. 2923.31(E) reads: “ ‘Pattern of corrupt activity’ means two or more
incidents of corrupt activity, whether or not there has been a prior conviction, that are
related to the affairs of the same enterprise, are not isolated, and are not so closely
related to each other and connected in time and place that they constitute a single
event.”
{¶19} R.C. 2923.31(C) further states as follows: “ ‘Enterprise’ includes any
individual, sole proprietorship, partnership, limited partnership, corporation, trust, union,
government agency, or other legal entity, or any organization, association, or group of
persons associated in fact although not a legal entity. ‘Enterprise’ includes illicit as well
as licit enterprises.”
{¶20} Thus, in order to establish that a defendant engaged in a pattern of corrupt
activity, the state must show that the defendant was employed by or “associated with”
an “enterprise.” The Ohio Supreme Court has determined that “merely committing
successive or related crimes is not sufficient to rise to the level of a RICO violation.”
State v. Schlosser (1997), 79 Ohio St.3d 329, 333, 681 N.E.2d 911.
{¶21} The crux of appellant’s argument in this assigned error is his proposition
that the State must prove the element of “enterprise” by showing the existence of an
ongoing organization “separate and apart” from the predicate drug trafficking activities
forming the pattern of corrupt activity. See Appellant’s Brief at 15. In State v. Scott,
Richland County, Case No. 11 CA 75 7
Morgan App.No. 06 CA 1, 2007-Ohio-303, this Court held that in order to establish the
existence of an “enterprise” under Ohio's RICO Act, there must be some evidence of:
(1) an ongoing organization, formal or informal; (2) with associates that function as a
continuing unit; and (3) with a structure separate and apart, or distinct, from the pattern
of corrupt activity. Id. at ¶ 45, citing State v. Teasley, Franklin App.Nos. 00AP-1322,
00AP-1323, 2002-Ohio-2333, ¶ 53, citing State v. Warren (1992), Franklin App. No.
92AP-603, and United States v. Turkette (1981), 452 U.S. 576, 583, 101 S.Ct. 2524, 69
L.Ed.2d 246.
{¶22} Subsequent to our decision in Scott, the United States Supreme Court
decided United States v. Boyle (2009), 556 U.S. 938, wherein the issue presented was
“whether an association-in-fact enterprise under the Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. § 1961 et seq., must have ‘an ascertainable
structure beyond that inherent in the pattern of racketeering activity in which it
engages.’ ” Id. at 940-941. The United States Supreme Court ultimately held that “such
an enterprise must have a ‘structure’ but that an instruction framed in this precise
language is not necessary.” Id. at 941. The Court further noted: “As we explained in
Turkette, [supra] the existence of an enterprise is an element distinct from the pattern of
racketeering activity and “proof of one does not necessarily establish the other. ***. On
the other hand, if the phrase is used to mean that the existence of an enterprise may
never be inferred from the evidence showing that persons associated with the
enterprise engaged in a pattern of racketeering activity, it is incorrect. We recognized in
Turkette that the evidence used to prove the pattern of racketeering activity and the
evidence establishing an enterprise ‘may in particular cases coalesce.’ ” Boyle at 947,
Richland County, Case No. 11 CA 75 8
quoting Turkette. The Court concluded, in pertinent part: “The instructions the District
Court judge gave to the jury in this case were correct and adequate. These instructions
explicitly told the jurors that they could not convict on the RICO charges unless they
found that the Government had proved the existence of an enterprise. See App. 111.
The instructions made clear that this was a separate element from the pattern of
racketeering activity. Ibid.” Id. at 951.
{¶23} The State urges in its response brief that despite our Scott decision, other
relatively recent cases from the Fifth District have not heavily relied upon the
interpretation of federal RICO cases and have not instituted a strict requirement that a
“separate and distinct” structure be proven as part of the EPCA “enterprise.” See State
v. Linkous, Licking App.No. 08CA51, 2009-Ohio-1896; State v. Yates, Licking App.No.
2009CA0059, 2009-Ohio-6622. Appellant also directs us to a 1990 case, State v. Hill,
Stark App.No. CA-8094, 1990 WL 237485. However, we find our holding in Scott more
closely aligns with the decision of the United States Supreme Court in Boyle. We will
therefore herein consider whether the State indeed demonstrated a “structure separate
and apart, or distinct, from the pattern of corrupt activity” concerning appellant’s heroin-
dealing activities. See Scott, supra, at ¶ 45.
{¶24} The sole witness at the bench trial in the case sub judice was Detective
Steve Blust of the Mansfield Police Department, currently assigned to the METRICH
drug task force. Detective Blust was asked to explain “how heroin trafficking works.” Tr.
at 20. He stated that heroin is grown in other countries, brought into the United States
by various drug “organizations” and distributed throughout U.S. cities, and then “on
down the line from bigger dealer to smaller dealer and to the user.” Id. Based on his
Richland County, Case No. 11 CA 75 9
experience, he also specified: “A lot of the black tar heroin is coming from Columbus,
Ohio, which is brought in here mostly by Mexican organizations who then distribute it. A
lot of the dealers from Richland County go down to Columbus [Ohio] and purchase the
black tar from the Mexicans there and bring it back and sell it.” Tr. at 21. In regard to
appellant, Blust recalled that appellant would obtain heroin, up to fifty balloons at a time,
from the Mexican dealers in Columbus, either by himself or by using a runner. Tr. at 23.
Blust described that Richland County dealers would often connect with alleged
Columbus sellers named “Joe Ricardos”, “Poncho” or “Joe Carlos”, but Blust conceded
that several different people used these names. The following exchange took place on
cross-examination:
{¶25} “Q. So as you sit here today then, you don’t have any evidence that Mr.
Lynch was directly related to any of these Ponchos or Joes or anybody else that –
{¶26} “A. Just Mr. Lynch told me he was going to a Mexican in Columbus and
obtaining fifty balloons at a time.”
{¶27} Tr. at 28.
{¶28} Upon review, we concur with appellant’s observation that the fact heroin
frequently comes into the United States from foreign countries and is then redistributed
does not convert appellant’s separate instances of trafficking into an EPCA violation
under the facts and circumstances presented. We find the evidence in this case failed to
sufficiently demonstrate a distinct “structure” for purposes of proving the enterprise
element of engaging in a pattern of corrupt activity under R.C. 2923.32(A)(1).
Appellant’s EPCA conviction must therefore be reversed on grounds of insufficient
evidence.
Richland County, Case No. 11 CA 75 10
{¶29} Appellant's Second Assignment of Error is sustained.
III.
{¶30} In his Third Assignment of Error, appellant contends his EPCA conviction
is against the manifest weight of the evidence.
{¶31} Based on our foregoing analysis, we find appellant’s Third Assignment of
Error to be moot.
{¶32} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Richland County, Ohio, is hereby affirmed in part and reversed in
part. Appellant’s convictions for having a weapon while under a disability and for
trafficking in drugs are affirmed. Appellant’s EPCA conviction is hereby vacated, and the
matter is remanded for further consideration of sentencing as to the aforesaid remaining
four counts.
By: Wise, J.
Gwin, P. J., and
Edwards, J., concur.
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JUDGES
JWW/d 0502
Richland County, Case No. 11 CA 75 11
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
SCOTT A. LYNCH :
:
Defendant-Appellant : Case No. 11 CA 75
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Richland County, Ohio, is affirmed in part,
reversed in part and remanded for further proceedings consistent with this opinion.
Costs to be split equally between the parties.
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JUDGES