State v. Burkhart ( 2012 )

[Cite as State v. Burkhart, 2012-Ohio-439.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. John W. Wise, J.
-v.- :
:
CRAIG BURKHART : Case No. 11AP030010
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2010CR010002
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 3, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MICHAEL J. ERNEST JACOB T. WILL
125 East High Avenue 116 Cleveland Avenue, NW
New Philadelphia, OH 44663 Suite 808
Canton, OH 44702
Farmer, J.
{¶1} On January 6, 2010, the Tuscarawas Grand Jury indicted appellant, Craig
Burkhart, on one count of engaging in a pattern of corrupt activity in violation of R.C.
2923.32, five counts of grand theft in violation of R.C. 2913.02, and three counts of
aggravated theft in violation of R.C. 2913.02. Said charges arose from numerous
solicitations of funds from many individuals by appellant's mother, Valerie Gordon,
appellant's stepfather, Joel Gordon, and appellant's aunt, Paula Levengood Lee. The
three believed they were soliciting funds to support appellant in a lawsuit against the city
of New Philadelphia. In fact, there was no lawsuit, and appellant was using the funds to
support his drug addiction.
{¶2} A bench trial commenced on November 22, 2011. The trial court found
appellant guilty as charged. By judgment entry filed March 2, 2011, the trial court
sentenced appellant to an aggregate term of eight years in prison.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "THE APPELLANT'S CONVICTION FOR ENGAGING IN A PATTERN OF
CORRUPT ACTIVITY IN VIOLATION OF R.C. 2923.32 WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE, AS THE STATE FAILED TO PROVE THE
ELEMENT OF AN ENTERPRISE."
II
{¶5} "THE APPELLANT'S CONVICTION FOR AGGRAVATED THEFT IN
VIOLATION OF R.C. 2913.02 WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE, AS THE STATE FAILED TO PROVE THE AGE OF THE VICTIM."
I
{¶6} Appellant claims his conviction for engaging in a pattern of corrupt activity
was against the manifest weight of the evidence as the state failed to prove the element
of an "enterprise." We disagree.
{¶7} On review for manifest weight, a reviewing court is to examine the entire
record, weigh the evidence and all reasonable inferences, consider the credibility of
witnesses and determine "whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered." State v. Martin (1983), 20 Ohio App.3d 172, 175.
See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new
trial "should be exercised only in the exceptional case in which the evidence weighs
heavily against the conviction." Martin at 175.
{¶8} Appellant was convicted of engaging in a pattern of corrupt activity in
violation of R.C. 2923.32(A)(1) with the predicate offenses being five counts of grand
theft and three counts of aggravated theft. We note appellant does not challenge his
convictions on the predicate offenses.1
1
Appellant originally challenged his conviction on one of the aggravated theft counts, but
withdrew Assignment of Error II at oral argument.
{¶9} R.C. 2923.32(A)(1) provides, "[n]o 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 or the collection of an unlawful debt."
{¶10} R.C. 2923.31(C) states "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."
{¶11} R.C. 2923.31(E) defines "pattern of corrupt activity" as "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."
{¶12} Appellant does not dispute the fact that he accepted money under
deception from Joel Gordon, Valerie Gordon, Paula Levengood Lee, Norma Murphy,
Bert Dinsio, Richard Levengood, Cynthia Lumpcik, and Julie Murphy. The deception
was that appellant needed funds to facilitate his lawsuit against the city of New
Philadelphia. Appellant admitted he did not need funds to finance the lawsuit as the
lawsuit did not exist. Appellant used the funds for his own purposes, to support his drug
addiction.
{¶13} Appellant specifically argues his three family members who solicited the
funds, Joel Gordon, Valerie Gordon, and Paula Levengood Lee, did not know of his
scheme to use the money for drugs nor did they know they were obtaining the monies
under false pretenses. In other words, they believed there was a lawsuit and money
was needed to finance the lawsuit. It is uncontested they engaged in an effort to obtain
funds from individuals to finance the fabricated lawsuit. They believed in the pretense
concocted by appellant.
{¶14} Appellant argues this activity does not meet the definition of "enterprise"
because the solicitors were victims just as much as the solicited victims.
{¶15} In State v. Schlosser, 79 Ohio St.3d 329, 1998-Ohio-716, the Supreme
Court of Ohio addressed a similar fact pattern in its review of the culpable mental state
for R.C. 2923.32. In Schlosser, relatively innocent telemarketers engaged in the
solicitation of customers. The offender's predicate offenses were violations of R.C.
4712.02(J), failure to register as a credit services organization. As pointed out at 335,
the focus of the activity is the action of the offender and what purpose he/she was
intending to cause:
{¶16} "The pattern of corrupt activity is demonstrated by the fact that the
appellee committed the predicate offense. The General Assembly has determined that
if a defendant has engaged in two or more acts constituting a predicate offense, he or
she is engaging in a pattern of corrupt activity and may be found guilty of a RICO
violation." (Emphasis sic.)
{¶17} This definition was further refined in State v. Scott, Morgan App. No. 06
CA 1, 2007-Ohio-303, ¶45:
{¶18} "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. 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."
{¶19} From the evidence presented, appellant initiated an ongoing organization
to obtain funds by deception i.e., concocted the tale of the lawsuit to obtain funds from
others to support his drug habit. The Gordons and Levengood Lee were his associates
that functioned as a continuing unit for over one year and as relatives of appellant, were
separate and apart from appellant's deception.
{¶20} Upon review, we conclude the definition of "enterprise" as defined in the
statute has been established by the manifest weight of the evidence. We find no
manifest miscarriage of justice.
{¶21} Assignment of Error I is denied.
II
{¶22} This assignment of error was withdrawn at oral argument.
{¶23} The judgment of the Court of Common Pleas of Tuscarawas County, Ohio
is hereby affirmed.
By Farmer, J.
Hoffman, P.J. and Wise, J. concur.
_s/ Sheila G. Farmer_______________
_s/ William B. Hoffman_____________
_s/ John W. Wise _______________
JUDGES
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
v. : JUDGMENT ENTRY
:
CRAIG BURKHART :
:
Defendant-Appellant : CASE NO. 11AP030010
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Tuscarawas County, Ohio is affirmed.
Costs to appellant.
s/ Sheila G. Farmer_______________
_s/ William B. Hoffman_____________
_s/ John W. Wise _______________
JUDGES