State v. Franklin ( 2011 )

[Cite as State v. Franklin, 2011-Ohio-6802.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case Nos. 24011
Plaintiff-Appellee : Appellate Case Nos. 24012
:
v. :
: Trial Court Case Nos. 2008-CR-2354/2
ANTHONY JAMES FRANKLIN : Trial Court Case Nos. 2009-CR-1117
:
Defendant-Appellant :
: (Criminal Appeal from
: (Common Pleas Court)
:
...........
OPINION
Rendered on the day of 30th day of December, 2011.
...........
MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. #0070162,and by
LAURA M. WOODRUFF, Atty. Reg. #0084161, Montgomery County Prosecutor’s Office,
Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third
Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
DANIEL J. O’BRIEN, Atty. Reg. #0031461, 1210 Talbott Tower, 131 North Ludlow
Street, Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
FAIN, J.
{¶ 1} Defendant-appellant Anthony J. Franklin appeals from his conviction and
sentence, following a jury trial, on one count of Possession of Heroin in an amount less than
2
one gram, one count of Possession of Heroin in an amount equaling or exceeding ten grams,
but less than fifty grams, and one count of Engaging in a Pattern of Corrupt Activity.
Franklin was sentenced to twelve months’ imprisonment on the first possession charge, eight
years’ imprisonment on the charge of possessing more than ten grams but less than fifty grams
of heroin, and eight years’ imprisonment for engaging in a pattern of corrupt activity, with all
sentences to be served concurrently. Franklin was also fined $15,000 for possession of
heroin in an amount exceeding ten grams, and $20,000 for engaging in a pattern of corrupt
activity.
{¶ 2} Franklin contends that the trial court erred when it refused to dismiss
re-indictment “B” for failure to set forth the predicate offenses of the charge of Engaging in a
Pattern of Corrupt Activity. Franklin further maintains that the trial court erred in overruling
his Batson claim and allowing the State to dismiss jurors at voir dire for racially-motivated
reasons.
{¶ 3} In addition, Franklin contends that the trial court erred by failing to provide
complete and correct instructions on applicable law, by demonstrating an overt bias toward
Franklin and his attorney throughout the trial, by admitting into evidence prejudicial items that
had no probative value, and by failing to declare a mistrial after repeated acts of prosecutorial
misconduct. Franklin also argues that the trial court erred in joining his trial with that of
co-defendant De’Argo Griffin. And finally, Franklin contends that the cumulative effect of
all the errors combined deprived him of the right to a fair trial, and that we should examine the
record for other possible error.
{¶ 4} We conclude that the indictment charging Franklin with Engaging in a Pattern of
3
Corrupt Activity in the words of the statute – R.C. 2923.32(A)(1) – is not defective because it
fails to specify each corrupt activity in which Franklin is alleged to have participated. The
trial court also did not err in accepting as true the prosecutor's race-neutral explanations for
two peremptory challenges.
{¶ 5} We further conclude that the trial court did not err in failing to provide an
accurate, non-misleading definition of "to participate in" as used in the Engaging in a Pattern
of Corrupt Activity statute. However, the trial court did err in failing to instruct the jury
concerning the "structure" requirement for violations of the federal Racketeering Influenced
and Corrupt Activities Act, Section 1961, et. seq., Title 18 U.S.Code, set forth in Boyle v.
United States (2009), 556 U.S. 938,129 S.Ct. 2237, 173 L.Ed.2d 1265. The error was
prejudicial and requires reversal of Franklin’s conviction for Participating in an Enterprise
Engaging in a Pattern of Corrupt Activity.
{¶ 6} We additionally conclude that Franklin was not deprived of a fair trial as a result
of the trial court's "overt bias" toward him or his counsel. The irritation expressed by the trial
court, out of the presence of the jury, because lead defense counsel was not initially present
when the jury announced that it had returned a verdict, did not amount to overt bias toward
Franklin, and could not, in any event, have prejudiced the jury, since the jury was not
thereafter in the presence of the trial court until its verdict, which had been reduced to writing,
was read in open court.
{¶ 7} We also conclude that the trial court did not err in admitting, over Franklin’s
objection, a compact disc case and a photograph thereof, of an instructional video for drug
dealers entitled: “Never Get Busted Again.” The case was found in a car with Franklin, in
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proximity to a baggie containing heroin, and was relevant to claims that he had participated in
an enterprise engaging in a pattern of corrupt activity.
{¶ 8} In addition, we conclude that the trial court did not err in declining to declare a
mistrial after the prosecutor's use of a demonstrative exhibit showing the date and location of
each criminal act in which each defendant was involved, and bearing the words
“drug-trafficking group.” The exhibit was for demonstrative purposes only, and the State
showed the exhibit only briefly, while questioning some witnesses. The State also agreed to
delete the term “drug-trafficking group” from the exhibit. The trial court also did not err in
denying Franklin’s motion to sever his trial from that of a co-defendant.
{¶ 9} Finally, we conclude that Franklin was not deprived of a fair trial as a result of
cumulative error. We decline Franklin’s invitation to examine the record in search of any
error that he failed to assign.
{¶ 10} Accordingly, the judgment of the trial court is Affirmed in part, and Reversed
in part, and this cause is Remanded for further proceedings.
I
{¶ 11} These cases (consolidated appeals CA 24011 and 24012) arise from a series of
drug-related incidents that occurred between June 16, 2006, and April 1, 2009. On June 19,
2006, Dayton police officer Joey Myers was working as a plainclothes drug detective. On
that day, Myers started to use a payphone at a mini-mart on Third Street in Dayton to call
suspected numbers of drug dealers, when he heard someone yell, “Hey.” An individual later
identified as Franklin walked across the street and asked what Myers was looking for. Upon
learning that Myers was seeking crack cocaine and was trying to contact a dealer with whom
5
he had dealt before, Franklin said his “stuff” was good, and gave Myers a torn-off piece of
paper with a cell phone number and the name “Peanut” written above the number. Franklin
went back across the street and waved to Myers occasionally while Myers pretended to make
multiple calls on the pay phone.
{¶ 12} Eventually, Myers yelled to Franklin that he was going to turn around.
Franklin then walked to the rear of a Shell gas station where some alleys intersected. When
Myers pulled into the entrance of the area, he told Franklin that he had driven around the
block because he had seen a cop. At that point, Franklin said that he thought Myers had
wanted weed, which is a street term for marijuana. Myers knew then that Franklin was
spooked for some reason, and asked his back-up crew to make contact with Franklin, who had
since met up with three other individuals.
{¶ 13} Uniformed officers detained Franklin briefly in reference to a drug
investigation. At that point, Myers contacted one of the officers and said that he was going to
place a call to the cell phone number that he had been given. The officers released Franklin.
Myers called the cell phone number, and said he was looking for some “hard,” which is a
street name for crack cocaine. The voice asked Myers about his location. When Myers said
that he was on Third Street and described his vehicle, the voice immediately said, “Ain’t
nothing going on,” and hung up. The officers who had released Franklin saw him talking on
a cell phone as he walked away from them.
{¶ 14} Detective Barett went to the area where Myers had made contact with Franklin
to look for contraband, because street-corner dealers generally do not carry drugs. Instead,
they hide drugs nearby and get them for each transaction. Barett found a 2000 Ford Taurus
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parked behind a vacant building. Barett checked the glove box because the vehicle was
damaged and he thought it might have been involved in a hit-and-run. He found a digital
scale in the glove box. There was also a wadded-up sales receipt in the passenger door, with
a small piece of crack cocaine inside. The sales receipt, which was from Auto Zone, matched
up with the piece of torn paper on which Franklin had written his phone number. Franklin
was subsequently convicted of possession of more than one gram, but less than five grams of
crack cocaine, a fourth-degree felony.
{¶ 15} On October 13, 2007, Dayton police officer John Garrison initiated a traffic
stop when he observed a Chevrolet Caprice run up over the curb and into the grass while
parking on McCabe Street. Before the officers could get their cruiser stopped, three of the
four subjects, including Franklin, who was driving, exited the Caprice and began walking
toward 2811 McCabe. This was unusual. Franklin walked to the rear of his vehicle, dipped
down for a second, and walked toward the apartment. The other individuals with Franklin
were Delaquan Spears, Daeshawn Foster, and Lorenzo Thomas.
{¶ 16} Approximately 1.73 grams of crack cocaine was discovered at the back of the
car, where Franklin had dipped down. Approximately 3.38 and 2.77 grams of crack cocaine
were discovered, respectively, where Foster and Thomas had been sitting in the car. When
Foster was searched, the police found about $480 in cash, along with two cell phones and two
scraps of paper that contained two different phone numbers and the word “Peanut” written
between the phone numbers. Franklin was later convicted of possession of less than one
gram of crack cocaine, a fifth-degree felony.
7
{¶ 17} Detective Mark Spiers of the Dayton Police Department was one of the officers
involved in the June 2006 incident. On June 6, 2008, Spiers was working in the narcotics
unit and again encountered Franklin. Spiers was in the area of Salem and Grand Avenues,
checking the pay phones, because officers have learned over the years that many drug deals
are set up using pay phones. Spiers noticed a white female holding a small piece of paper
and attempting to get a phone number from the paper. From experience, Spiers knew that
drug dealers often give out their phone numbers on small pieces of paper. Spiers investigated
the licenses plates of the woman’s car, which was a blue Subaru, and found that the vehicle
was from outside Montgomery County. Many heroin buyers do not live in Dayton, but come
to Dayton now that heroin is on the rise. Spiers decided to conduct surveillance and advised
other deputies to head that way.
{¶ 18} A white Neon automobile occupied by two females pulled into the parking lot
next to the Subaru. The female who was making the phone call walked over and talked to the
people inside the Neon. Both vehicles then left the gas station, proceeding north on Salem
Avenue. The vehicles then began circling the area. At one point, four vehicles were
stopped, facing southbound, and the police believed the seller would pull up to each door and
make a quick transaction before pulling off. No contact was made, and the four vehicles then
proceeded in a caravan to a McDonald’s restaurant. None of the occupants of the vehicles
patronized the restaurant, however. After about fifteen or twenty minutes, two vehicles left
the parking lot. The police decided to maintain surveillance on the Subaru and the Neon.
After about five minutes, the two females in the Neon got into the Subaru, and made a number
of turns, eventually losing the police. After this occurred, the police saw a maroon Jeep
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Liberty that had originally been part of the caravan, and followed it to a parking lot at the
intersection of North Gettysburg and James H. McGee Boulevard.
{¶ 19} The police saw a man in a car wash on the other side of Gettysburg talking on a
white cell phone and looking in the direction of the Jeep Liberty. This individual then got
into the front passenger seat of a metallic blue GMC Yukon. The Yukon was being driven by
Franklin. Eventually, the Jeep Liberty and the GMC Yukon met in an isolated parking lot at
14 Carat Gold. At that point, the police could not maintain surveillance, due to the location,
and made contact with both cars. As the police pulled up, Franklin was getting out of the
driver’s side. Franklin looked in Spiers’s direction and made a tossing motion. Two gel
caps of heroin were found near Franklin, and $550 in cash was found in Franklin’s pocket.
Franklin was charged with possession of heroin in an amount less than one gram, a
fifth-degree felony, arising from this incident.1
{¶ 20} In the case before us, Franklin was tried with co-defendant, De’Argo Griffin,
who was also charged with drug possession and with engaging in a pattern of corrupt activity.
The next incident raised at trial involved undercover officer Myers (who had previously dealt
with Franklin), and De’Argo Griffin. On October 16, 2008, Myers was conducting
surveillance in the area of Gettysburg, when he saw that a marked crew had made a traffic
stop, was surrounded by multiple people, and was alone. Myers turned his vehicle around to
see if the officer was okay. Both the driver and passenger of the stopped car gave Myers
contact information about drug activity. When one of the people in the vehicle placed a call,
1
This Possession of Heroin case (designated as Montgomery County Common Pleas Court Case No. 2008
CR 0235/2), was tried together with Montgomery County Common Pleas Court Case No. 2009 CR 1117/1, the
Pattern of Corrupt Activity case. Both cases have been consolidated for purposes of the current appeal.
9
Myers was able to listen to the voice, which provided another number to call. Myers also
heard the voice on the second call, which gave information on where to go to purchase eight
caps of heroin. Myers was placed in the car with the buyers, and they subsequently
purchased the heroin for eighty dollars from a person driving a white Chrysler automobile.
Keith Strickland was driving the seller’s car and Griffin was in the front passenger seat.
{¶ 21} After the police stopped Strickland’s vehicle, Myers heard Griffin’s voice and
matched it to the voice he had heard on the phone. The police also recovered a cell phone
from Griffin, and the number of the phone matched the number that the buyers had dialed.
{¶ 22} On January 22, 2009, Officer John Walters of the Montgomery County
Sheriff’s Office stopped a Pontiac Grand Prix for a window tint violation. Walters was in
the area that day in response to a citizen complaint. A citizen had taken a picture of the
license plate of a white Jeep Grand Cherokee, and had observed the Jeep in the area and being
involved in a drug transaction.
{¶ 23} The driver of the Grand Prix, Monique Pope, appeared overly nervous when the
car was stopped. On checking, Officer Walters also noticed that the Jeep Grand Cherokee
that had been recently involved in a drug transaction was registered in Pope’s name. Based
on that information, Walters called for a canine free-air search. The dog alerted, and officers
then searched the Grand Prix. Franklin was the front seat passenger, Griffin was the right
rear passenger, and David Miner was the left rear passenger. One suspected heroin capsule
was found underneath the driver’s seat and a bag containing 32 gel capsules of heroin,
weighing 2.48 grams, was found inside the rear passenger armrest. Pope had $901 in
currency.
10
{¶ 24} Deputy Bemis of the Montgomery County Sheriff’s Office conducted the
canine free air search on January 22, 2009. Four days later, Bemis noticed a white Jeep
Cherokee following a black Saturn too closely. Bemis stopped the vehicle, which was being
driven by Monique Pope, with Franklin as the passenger. Bemis recognized them from the
stop on January 22, 2009, and decided to do a free-air sniff of the vehicle. The dog again
alerted, and Bemis located heroin, with a net weight of 7.10 grams, underneath the center
console housing on the passenger side. The police also found a DVD entitled: “Never Get
Busted Again,” located near the heroin, and $254 in currency on Franklin. The dog
additionally alerted to the currency.
{¶ 25} In February 2009, the organized crime unit received information about an
individual known as “Tight” who was selling drugs from a room at the Knight’s Inn on
Maxton Avenue in Butler Township. The unit was given a phone number to use, and placed
a call seeking to purchase heroin. After being told to go to a place on Hoover Avenue, the
unit decided not to pursue it, due to lack of time to coordinate. Subsequently, on March 17,
2009, the organized crime unit received another call from the narcotics unit, indicating that
“Tight” was back at the Knight’s Inn. At that time, the two units decided to conduct a joint
operation.
{¶ 26} Plainclothes detective Paul Henson called the cell number provided, and
arranged with “Tight” to purchase three caps of heroin at Room 323. When Henson entered
the room, Daeshawn Foster answered the door, and another person later identified as De’Argo
Griffin was lying on the bed next to the window. Griffin asked whether Henson had called
for “Tight” or “Fresh.” When Henson responded, “Tight,” Griffin said, “Okay, he’s yours.
11
Go ahead and deal with him.” Trial Transcript, p. 372. Foster reached in a clear baggie
that was lying on the bed, removed three capsules and said he needed thirty dollars. When
Henson told him that he only had forty dollars, Foster said, “Oh, that’s what I mean.” Id. at
p. 375. Griffin then said, “Knock that sh*t off. They’re ten dollars apiece. Either give him
another cap or give him ten dollars back.” Id. at p. 376. Foster then gave Henson a fourth
cap of heroin.
{¶ 27} After Henson left, the police entered the room and arrested Foster and Griffin.
In addition to the four caps of heroin that had been sold to Henson, the police located 89
capsules, or 6.38 grams of heroin on the bed next to Foster. They also recovered $810 from
Griffin and $2,542 from Foster, which included the two twenties the police had used to buy
the heroin.
{¶ 28} The final matter discussed at trial involved events that occurred from March 31
to April 1, 2009. On March 31, 2009, Dayton Police Department narcotics detective David
House was working as an undercover officer attempting to make a heroin purchase. After
calling a phone number and agreeing to purchase a gram of heroin for $100, House was
directed during a series of conversations to go to Fairbanks Avenue. When he arrived, a grey
and white conversion van quickly flashed its lights, leading House to believe he should pull
over. House pulled over to the driver’s side, and the driver told him to pull up and turn
around. As House tried to do so, the van took off at a high rate of speed. House was unable
to get the license plate, but noticed that it was a temporary tag. After calling the individuals
again, he was told that he was the “police.” House was then directed to several more places,
and the individuals ultimately identified House by name. Thus, the transaction never
12
occurred.
{¶ 29} The next day, House was working with detective Kevin Phillips, and spotted a
white and grey conversion van with a temporary license plate. House watched the vehicle
pull into the parking lot of an AMPM convenience store located on Salem Avenue. House
contacted two narcotics officers and asked them to make contact with the vehicle. The
officers were in a marked cruiser. When the cruiser drove through the lot, the side passenger
door of the van was flung open, and Franklin jumped out of the seat by the door. Franklin
fled on foot, but was apprehended shortly thereafter and brought back to the van. Griffin was
sitting in the front passenger seat of the van, and Daeshawn Foster was in the third seat, which
was a bench seat in the back.
{¶ 30} The officers found a bag of heroin in the map pocket on the back of Griffin’s
seat, which was directly in front of where Franklin was sitting. The bag contained about 27
grams of heroin. There was also a baggie containing 27 gel capsules of what appeared to be
heroin, and a baggie containing a four-gram chunk of heroin. These baggies were sitting in a
cup holder behind the driver’s seat. A large baggie of unused gel capsules was lying on the
center console immediately to Griffin’s left. In addition, bags containing unused gel capsules
and baggies containing what appeared to be heroin residue were found in the storage pouches
behind the seats where Franklin had been sitting. The officers also found a razor, a South
Park DVD case, and a plate in the back storage area behind the back bench. Four cell phones
were located in the area of the drugs, one of which was a black LG cell phone.
{¶ 31} While the officers were there, the LG cell phone rang. Detective Hall
answered the phone and was told by an individual (later identified as Heather Reineke) that
13
she needed “eight.” Hall directed Reineke to the AMPM mart, where she was subsequently
arrested. After Reineke was arrested, Hall verified that her cell phone number matched the
number of the phone that had been calling the LG cell phone. Detective House also
recovered $3,500 in cash from Franklin’s front left pocket, and $53 from his left rear pocket.
Foster and Griffin each had around $260 in cash.
{¶ 32} At the time of the arrest, Reineke lived in Sidney, Ohio, and purchased drugs in
Dayton, because it was the closest place to do so. Reineke began purchasing heroin in
November 2008 from a person named “Peanut.” She had received the number from a friend
in Shelby County, and it was programmed into her cell phone. Reineke indicated that she had
purchased heroin four or five hundred times, and was calling the Peanut number two or three
times a day. When she called the number, it was not always the same voice on the end of the
line. Reineke would tell them who she was, and would ask to get eight caps, or ten caps.
She would be given instructions about where to go. Reineke had come down twice on April
1, 2009, to buy drugs, and had purchased drugs earlier that day in Dayton.
{¶ 33} Reineke also indicated that when she called the Peanut number, sometimes she
went to side streets, and sometimes went to the Knight’s Inn. When she showed up to
purchase drugs, she did not always see the same person. There were five or six men she
bought from after calling the Peanut number. Reineke stated that she had never seen either
Griffin or Franklin before, and that she would not be able to identify any dealer from whom
she had bought. When she purchased drugs, she was either high or in withdrawal and wanted
to get her drugs and get out as soon as possible.
{¶ 34} After hearing the evidence, the jury found Franklin guilty of Engaging in a
14
Pattern of Corrupt Activity from May 13, 2006, to April 1, 2009. Underpinning the verdict
were findings that Franklin was involved in the sale of crack cocaine on June 19, 2006, that he
was involving in transporting drugs for sale (heroin) on June 8, 2008, that he was involved in
possession of 7.1 grams of heroin on January 26, 2009, and that he was involved in possession
of 33.19 grams of heroin on April 1, 2009. The jury also found Franklin guilty of five
counts of Possession of Criminal Tools, one count of Possession of Heroin in the amount of
33.19 grams on April 1, 2009, and one count of Possession of Heroin in an amount less than
one gram on June 6, 2008. Franklin was sentenced to eight years in prison on the Pattern of
Corrupt Activity charge, eight years for Possession of Heroin on April 1, 2009, twelve months
for Possession of Criminal Tools, and twelve months for Possession of Heroin on June 6,
2008. All sentences were to run concurrently.
{¶ 35} Franklin appeals from his conviction and sentence.
II
{¶ 36} Franklin’s First Assignment of Error is as follow:
{¶ 37} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DID
NOT DISMISS RE-INDICTMENT ‘B’ FOR FAILING TO SET FORTH THE PREDICATE
OFFENSES OF THE CHARGE OF ENGAGING IN A PATTERN OF CORRUPT
ACTIVITY.”
{¶ 38} The Sixth Count of the October 26, 2009 indictment, entitled “Re-indictment
‘B’ ,” alleges that: “ANTHONY JAMES FRANKLIN AKA: PEANUT, DAESHAWN J.
FOSTER, and DE’ARGO AD GRIFFIN between the dates of MAY 13, 2006 THROUGH
APRIL 2, 2009 in the County of Montgomery, aforesaid, and State of Ohio, employed by, or
15
associated with, any enterprise did 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 and
at least one incident of corrupt activity is a felony of the second degree, to-wit: POSSESSION
OF HEROIN (10 - 50 GRAMS), in violation of O.R.C. 2925.11(A), a felony of the second
degree, which occurred on APRIL 1, 2009, at or near 2317 SALEM AVENUE, DAYTON,
OHIO; contrary to form of the statute (in violation of Section 2923.32(A)(1) of the Ohio
Revised Code) in such case made and provided, and against the peace and dignity of the State
of Ohio.”
{¶ 39} R.C. 2923.32(A)(1) provides: “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 or the collection of an unlawful debt.”
{¶ 40} R.C. 2923.32(B)(1) provides, in pertinent part: “Whoever violates this section
is guilty of engaging in a pattern of corrupt activity. * * * . Except as otherwise provided in
this division, if at least one of the incidents of corrupt activity is a felony of the first, second,
or third degree, * * * , engaging in a pattern of corrupt activity is a felony of the first degree.”
{¶ 41} Thus, in order to charge Franklin with Engaging in a Pattern of Corrupt
Activity as a felony of the first degree, it was incumbent upon the State to allege that at least
one of the incidents comprising the corrupt activity was a felony of the first, second, or third
degree (or certain other unclassified felonies not relevant herein). The indictment did contain
an allegation to that effect. Otherwise, the indictment charged the offense in the words of the
statute proscribing the offense, with the addition of a time-frame.
16
{¶ 42} Franklin contends that the indictment is defective because it did not allege
specific offenses comprising the corrupt activity, other than the one second-degree felony of
Possession of Heroin. He first cites State v. Burkitt (1993), 89 Ohio App.3d 214, a decision
of this court, in support of that proposition. In Burkitt, the defendant argued that he had not
been put on notice of all of the predicate offenses for a charge of Engaging in a Pattern of
Corrupt Activity that he should have been prepared to defend himself against. The defendant
did not argue that the indictment was defective. Id. at 224. We opined that: “It appears that
the indictment may in fact have been insufficient to notify the appellant of everything he could
expect to have to defend himself against.” Id. (Emphasis added.) We then concluded that
the defendant had not raised this issue in the trial court, and that it did not rise to the level of
plain error. Thus, we never actually held that an Engaging in a Pattern of Corrupt Activity
indictment is deficient if it does not specify the predicate offenses, and we necessarily held
that even if it were deficient for that reason, it would not affect the subject-matter jurisdiction
of the trial court, since a plain-error analysis would not have been germane in that event.
{¶ 43} Franklin cites State v. Grimm (April 25, 1997), Miami App. Nos. 96-CA-37
and 96-CA-38, in support of the proposition that an Engaging in a Pattern of Corrupt Activity
indictment must specify the predicate offenses. In Grimm, the issue was raised in a petition
for post-conviction relief. In affirming the denial of the petition, we held that because the
deficiency of the indictment could have been raised in a direct appeal, the defendant was
barred by the doctrine of res judicata from raising it in a petition for post-conviction relief.
Obviously, we did not hold that an indictment for Engaging in a Pattern of Corrupt Activity is
defective if it does not specify the predicate offenses, since we did not reach that issue.
17
{¶ 44} In State v. Childs, 88 Ohio St.3d 194, 2000-Ohio-298, the Supreme Court of
Ohio held that a conspiracy indictment must specify the required overt act in the furtherance
of the conspiracy, even when the overt act is specified in a bill of particulars. But that
opinion is noteworthy in that the Supreme Court of Ohio expressly distinguished a contrary
result in State v. Murphy (1992), 65 Ohio St.3d 554 (a case in which a felony-murder
indictment did not specify the events comprising the felony underlying the felony-murder
charge), because the conspiracy statute, R.C. 2923.01(B), expressly requires that an overt act
be both alleged and proven. The Engaging in a Pattern of Corrupt Activity statute, in
contrast, does not require that the specific incidents comprising the corrupt activity must be
both alleged and proven.
{¶ 45} Franklin also cites State v. Siferd, 151 Ohio App.3d 103, 2002-Ohio-6801.
Significantly, in Siferd, it was held that the defendant could not raise the defective indictment
issue after he had pled to the indictment and the trial had begun, citing Crim. R. 12(B)(2) –
now Crim. R. 12(C)(2) – and State v. Lee (March 25, 1992), Lorain App. No. 91-CA-005137.
Siferd, at ¶24. In the case before us, Franklin did not challenge the sufficiency of the
indictment until late in the trial.
{¶ 46} The general rule is that an indictment utilizing the words of the applicable
section of the statute is sufficient. Murphy, 65 Ohio St.3d at 583, citing State v. Landrum
(1990), 53 Ohio St.3d 107, 119. It is true, as Franklin points out, that the Supreme Court of
Ohio in State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, ¶11, opined that: “ * * * an
indictment that tracks the language of the charged offense and identifies a predicate offense by
reference to the statute number need not also include each element of the predicate offense in
18
the indictment.” But it does not necessarily follow that an indictment that does not identify a
predicate offense by reference to the statute number is deficient. And State v. Buehner, at
¶10, cites with approval State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, ¶30, in which
the Supreme Court of Ohio held that: “Here, the omission of the underlying felony [to a
Kidnapping charge brought under R.C.2905.01(A)(2)] in the indictment was remedied
because the bill of particulars identified the underlying felony, as is permitted where the
indictment sufficiently tracked the wording of the kidnapping statute.”
{¶ 47} Finally, Franklin cites State v. Cimpritz (1953), 158 Ohio St. 490. In that case,
an indictment for Attempted Burglary was held to have been deficient because it failed to
allege that the breaking and entering, or attempt to break and enter, was “maliciously and
forcibly done,” which was an essential element of the offense under the statute then in effect.
Thus, the indictment in that case failed to charge an offense utilizing the words of the
applicable statute, unlike the indictment in the case before us.
{¶ 48} Franklin does not allege that he was without notice of the predicate acts upon
which the State intended to rely in proving the charge of Engaging in a Pattern of Corrupt
Activity. Those acts were specified in a bill of particulars that the State filed well before
trial.
{¶ 49} Franklin’s First Assignment of Error is overruled.
III
{¶ 50} Franklin’s Second Assignment of Error is as follows:
{¶ 51} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
OVERRULED APPELLANT’S BATSON CLAIM AND ALLOWED THE STATE TO
19
CHALLENGE AND TO DISMISS PROSPECTIVE AFFICAN-AMERICAN [sic] JURORS
AT VOIR DIRE FOR RACIALLY MOTIVATED REASONS.”
{¶ 52} Under this assignment of error, Franklin contends that the trial court committed
reversible error when it allowed the State to dismiss two African-American jurors during voir
dire.
{¶ 53} “A challenge to the State's exercise of a peremptory challenge upon the ground
of racial discrimination is a three-step process. First, the opponent of the peremptory
challenge must make a prima facie case of racial discrimination. Then, the proponent of the
challenge must provide a racially neutral explanation for the challenge. But the explanation
need not rise to the level justifying a challenge for cause. Finally, the trial court must find,
based upon all of the circumstances, whether the opponent has proved purposeful racial
discrimination.” State v. Williams, Montgomery App. No. 19963, 2005-Ohio-3172, ¶15,
citing Batson v. Kentucky (1966), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69.
{¶ 54} “A trial court's factual finding that the state did not exercise its peremptory
challenges with a racially discriminatory intent ‘largely turn[s] on evaluation of credibility.’
Batson v. Kentucky, supra, 476 U.S. at 98, 106 S.Ct. at 1724, 90 L.Ed.2d at 89, fn. 21. As a
result, the trial court's determination is to be accorded great deference, and will not be
disturbed on appeal unless, based on the record, it is clearly erroneous.” State v. Nobles
(1995), 106 Ohio App.3d 246, 281. (Citations omitted.)
{¶ 55} In the case before us, Franklin initially objected to the array, because it
contained only one male and two or three females who appeared to be African-American.
The trial court noted that it would take the issue under advisement. The court then
20
questioned jurors about whether they had any reason they could not serve. One
African-American female, Mrs. D,2 asked to be excused because her husband was a diabetic
and an advanced glaucoma patient, and she had to be at home to give him medication. Trial
Transcript, pp. 19-20. When the court heard that D’s daughter could give the medication, the
court said it would take that under consideration. D then interrupted to ask if a question in
the jury questionnaire involving having a felon in the family would include a grandson. Id. at
pp. 21-22. The court indicated this question would be discussed later. Id. at p. 22.
{¶ 56} In a sidebar conference that occurred shortly thereafter, Franklin’s counsel
noted that only one African-American female (D) was in the first panel of twelve jurors, and
that her presence was tenuous, due to her husband’s medical condition. Franklin’s counsel
also noted that the next nine potential jurors consisted of one black female and no males. Id.
at pp. 27-28.
{¶ 57} After the court finished its questions, the prosecutor questioned D and other
jurors about whether they knew someone who had been convicted of a felony. D indicated
that her grandson had a felony drug charge, and that to her knowledge, he had not been treated
right and had been accused of things others had done. Id. at p. 51. D also stated that she felt
her grandson had been given so much time, but that she could be fair and impartial if she
believed the defendants would get fair treatment. Id. at pp. 51-52. When D was questioned
by the defense, she again said she could be fair and impartial. Id. at pp. 117-19.
{¶ 58} After challenges for cause had been made, the court heard testimony from a
jury coordinator about how prospective jurors are chosen in Montgomery County, which is
done by computer, based on an algorithm. The trial judge also noted that he had previously
2
The jurors’ full names are omitted to protect their privacy.
21
served as chair of a jury committee among the judges, which reviewed racial composition of
juries. The court overruled the defense objection to the jury selection process, because there
was not sufficient proof regarding unfairness in jury selection. The court then went on to
consider peremptory challenges. On its fourth peremptory challenge, the State asked to strike
D. After the defense objected, the court asked the State to provide reasons why the selection
was racially neutral. In response, the prosecutor stated as follows:
{¶ 59} “The State’s basis with respect to Ms. [D] is multi-fold. One very significant
certain [sic] is that she had a grandson who was a felon. Not only was he a felon, but he was
a felon who – for drug charges. That’s the heart of our case here. She stated that she
thought he had gotten a bad deal, that he had been sentenced way too hard, clearly had
lingering resentment with respect to how her grandson was treated. Her resentment was so
high that I was asking another question about do you think you could be fair and impartial,
and she jumped and raised her hand and I was talking about something else completely about
people who knew people in law enforcement. She was so eager to say about her grandson
and how that affected her. She also raised the same with the Court before we even got to the
point where we’re talking about knowing somebody who’s a felon. So that is something that
is heavily playing on her mind. She did say that she could be fair and impartial, but the way
she stated was she thinks she can be fair and impartial once she heard all the evidence. And
she also made the statement that she could be fair and impartial if she thought the person had
gotten a fair shake. That just is not somebody who’s coming in – she’s coming in here with
emotional biases because of her – because of her son. She also has put on the jury
questionnaire that – or I’m sorry – I said son. It was her grandson – that she did have child –
22
or husband care issues with respect to his glaucoma and his diabetes, and that was clearly
weighing on her heavily.” Id. at pp. 194-95.
{¶ 60} The prosecutor also noted that she had consistently excused others from this
particular jury panel who had loved ones involved in the criminal justice system. After
hearing the explanation, the court concluded that the State had provided a racially neutral
explanation.
{¶ 61} On appeal, Franklin contends that the prosecutor’s recollection is inaccurate,
and was made to a judge who had “already joined the prosecutor’s team.” We disagree. The
trial judge was attentive and responsive to the defense arguments about jury selection. In
fact, after opening statements, the judge took time to hear substantial testimony from the
Director of Jury Management for Montgomery County regarding jury selection techniques.
According to the 2000 census, about 18% of the population in Montgomery County is
African-American. The director indicated that under-representation of African-Americans in
jury pools is typically about two percent, and the jury system in Montgomery County is within
the guidelines of what jury commissions and courts throughout the nation find acceptable.
{¶ 62} The trial judge was also in a position to gauge the credibility of the prosecutor’s
account, and to see the demeanor of the prospective juror. The judge’s decision was not
clearly erroneous.
{¶ 63} The State also made a peremptory challenge to another African-American juror,
Ms. B. Upon being challenged by the defense pursuant to Batson, the State indicated that its
information was largely based on information from the State’s representative. According to
the State, B was text-messaging a lot while they were in court and was one of the people who
23
were lying down and sleeping in the hallway. In addition, the State’s representative was
concerned because B was employed by Sugarcreek Packing Company, which was described as
a relatively small business that is a source of many of the State’s active major drug
investigations. The defense responded that B had child-care issues that would explain why
she was on the phone, that she had no criminal record, and that she had some college
education. The prosecutor then added some of her own observations of non-verbal matters,
like the fact that B had gasped or had sighed, had been slumped over several times, and did
not act like she was interested in being there. The prosecutor even mentioned that B had said
“You got [sic] to be kidding me,” at one point when the court called a break. Id. at p. 250.
{¶ 64} The trial court concluded that the involvement with the Sugarcreek Packing
Company was a race-neutral explanation. Furthermore, the court stated that in order to have
a proportionate number of African-American jurors, two would not be quite enough, and three
would be more than proportionate to the population. The court noted that the jury was
somewhere in-between at present, but a third African-American was not necessary.
Accordingly, the court overruled the Batson objection.
{¶ 65} After reviewing the record, we do not conclude that the trial judge’s decision
was clearly erroneous. Franklin criticizes the trial court for not requiring more factual
information, but the State did indicate that Sugarcreek Packing was not large and that major
drug investigations were ongoing, per the State’s representative. The trial court was not
required to call a police officer to the stand to reveal details of the investigation. The State
only needed to provide a race-neutral explanation, and “ ‘[t]he second step of this process
does not demand an explanation that is persuasive, or even plausible.’ ” State v. Gowdy, 88
24
Ohio St.3d 387, 392, 2000-Ohio-355, quoting from Purkett v. Elem (1995), 514 U.S. 765,
768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834.
{¶ 66} Accordingly, Franklin’s Second Assignment of Error is overruled.
IV
{¶ 67} Franklin’s Third Assignment of Error is as follows:
{¶ 68} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
FAILED TO PROVIDE COMPLETE AND CORRECT INSTRUCTIONS TO THE JURY
ON THE LAW APPLICABLE TO THIS CASE.”
{¶ 69} Under this assignment of error, Franklin contends that the trial court’s
instructions to the jury were prejudicial in three respects: (1) the court erroneously instructed
the jury on the definition of the term “participate in,” as used in R.C. 2923.32(A)(1); (2) the
court erroneously denied Franklin’s request to instruct the jury on precedent in this appellate
district regarding the standard to be used to convict defendants of engaging in a pattern of
corrupt activity; and (3) the court erred when it denied Franklin’s request to instruct the jury
on applicable federal law, as required in this appellate district. We will discuss each of these
matters.
A. Definition of “Participate In.”
{¶ 70} As a general matter, “[t]he trial court has discretion to determine proper jury
instructions. ‘The trial court does not commit reversible error if the instructions are
sufficiently clear to enable the jury to understand the law as applied to the facts.’ ” State v.
Darkenwald, Cuyahoga App. No. 83440, 2004-Ohio-2693, ¶48. (Citation omitted.)
“Whether the jury instructions correctly state the law is a question of law which an appellate
25
court reviews de novo. * * * A reviewing court will not reverse unless an instruction is so
prejudicial that it may induce an erroneous verdict.” Id. (Citations omitted.)
{¶ 71} Franklin was charged with having violated R.C. 2923.32(A)(1), which provides
that:
{¶ 72} “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 or the collection of an unlawful debt.”
{¶ 73} The trial court defined “participate in,” over the objection of the defense, as:
{¶ 74} “Participating in – to participate means to take part in and is not limited to
those who has [sic] directed the pattern of corrupt activity. Participate encompasses those
who have performed activities necessary or helpful to the operation of the enterprise either
directly or indirectly without an element of control.” Trial Transcript, p. 1863.
{¶ 75} Franklin argued below, and contends here as well, that the definition of
“participate in” is derived from a decision of the Third District Court of Appeals in Siferd,
supra, 151 Ohio App.3d 103, 2002-Ohio-6801. In Siferd, the court concluded that a
defendant need not have taken part in directing the affairs of an enterprise in order to be
held culpable, but need only have participated in its affairs, as that term is used in ordinary
meaning according to the usage of English language. Id. at ¶34. The court, therefore,
held that the trial court did not err in instructing the jury that “ ‘[t]he phrase “conduct or
participate in, directly or indirectly,” is to be given ordinary meaning according to the
usage of the English language.’ ” Id. at ¶37.
{¶ 76} Franklin contends that we have not determined that Siferd’s interpretation is
26
correct. Franklin also maintains that we previously held in State v. Hughes (March 13,
1992), Miami App. No. 90-CA-54, that there is no need to establish definitions for terms
that individuals of ordinary intelligence can easily understand.
{¶ 77} In Hughes, the defendant contended that R.C. 2923.32 was
unconstitutionally void for vagueness because, among other things, the term “associated
with” was undefined. We rejected this contention, concluding that this is not a term of art,
nor is it a term that persons of ordinary intelligence could not understand when reading
R.C. 2923.32(A)(1) in its entirety. Id. at *5. We did not, however, reject the use of
dictionary definitions in jury instructions, nor did we reject such definitions to explain the
terms in R.C. 2923.32. In fact, we actually referred to the dictionary definition of
“associate” during our analysis. Id.
{¶ 78} In reviewing the jury instructions in the case before us, we do not conclude
that the jury was confused or misled in any way by the definition. Furthermore, while we
have not previously considered Siferd, Franklin did not argue at trial that he was a mere
participant in the enterprise rather than a director; Franklin raised the argument that the
trial court should require instructions explaining that the State must prove the existence of
an enterprise as well as a pattern of corrupt activity.
{¶ 79} Franklin’s first argument is without merit.
B. Standards in the Second District Court of Appeals
and the Application of Federal Law
{¶ 80} In his second argument, Franklin contends that the trial court erred in
refusing to instruct the jury in accordance with State v. Fritz, 178 Ohio App.3d 65,
27
2008-Ohio-4389. According to Franklin, we concluded in Fritz that evidence of an
ongoing organization, with the defendant as a decision-maker and supplier, and another
party as seller, functioned as a continuing unit and established the existence of an
enterprise. Franklin, therefore, argues that the trial court should have instructed the jury
on these requirements. Franklin’s third argument is that the jury should have been
instructed in accordance with federal law, which defines an “enterprise.”
{¶ 81} The State responds by noting that in Fritz we were comparing the evidence
favorably with our prior decision in State v. Humphrey, Clark App. No. 2002 CA 30,
2003-Ohio-3401, which found sufficient evidence of an enterprise. In addition, the State
contends that we previously declined to adopt the federal definition of “enterprise” in State
v. Owen (Feb. 19, 1999), Miami App. No. 98 CA 1. We will consider these arguments
together, because they are interrelated.
{¶ 82} “[I]t is prejudicial error in a criminal case to refuse to administer a requested
charge which is pertinent to the case, states the law correctly, and is not covered by the
general charge.” State v. Scott (1986), 26 Ohio St.3d 92, citing State v. Nelson (1973), 36
Ohio St.2d 79. Furthermore, “[w]hen examining alleged errors in a jury instruction, a
reviewing court must consider the jury charge as a whole and ‘must determine whether the
jury charge probably misled the jury in a matter materially affecting the complaining party's
substantial rights.’ * * * Whether the jury instructions correctly state the law is a question
of law which an appellate court reviews de novo. * * * .” State v. Darkenwald, Cuyahoga
App. No. 83440, 2004-Ohio-2693, ¶48. (Citations omitted.)
{¶ 83} After the State rested, Franklin moved to dismiss the corrupt pattern charge,
28
because of lack of proof of an enterprise. Franklin’s argument was based on Boyle, supra,(2009), 556 U.S. 938, 129 S.Ct. 2237, 173 L.Ed.2d 1265, which held that the existence of an
enterprise is a separate element from the pattern of racketeering activity. Trial Transcript, pp.
1705 and 1716. The defense also asked the trial court to instruct the jury in this regard, and
with regard to the fact that the members of an enterprise must be functioning as a continuing
group, and must be attempting to do some common purpose as a group. Id. at pp. 1708-09.
The defense renewed the motion to dismiss after resting, and also extensively argued the
application of the law in Boyle, when jury instructions were being considered. Id. at pp.
1832-36.
{¶ 84} The trial court overruled the motions to dismiss, and refused to instruct the jury
as requested. The court instructed the jury only on the definition of “enterprise” found in
R.C. 2923.31(C), which states that:
{¶ 85} “ ‘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.”
{¶ 86} In Herakovic v. Catholic Diocese of Cleveland, Cuyahoga App. No. 85467,
2005-Ohio-5985, the Eighth District Court of Appeals observed that the definition of
enterprise in R.C. 2923.31(C) “is substantially the same as the federal RICO definition of
enterprise.” Id. at ¶21. The Eighth District further stressed that, “[i]n fact, R.C. 2923.31(C)
uses the language set forth in the United States Supreme Court's decision of United States v.
29
Turkette, which expanded the definition of ‘enterprise’ to include illicit as well as licit
enterprises.” Id.
{¶ 87} In United States v. Turkette (1981), 452 U.S. 576, 583, 101 S.Ct. 2524,
2228-29, 69 L.Ed.2d 246, the United States Supreme Court held that:
{¶ 88} “In order to secure a conviction under RICO, the Government must prove both
the existence of an ‘enterprise’ and the connected ‘pattern of racketeering activity.’ The
enterprise is an entity, for present purposes a group of persons associated together for a
common purpose of engaging in a course of conduct. The pattern of racketeering activity is,
on the other hand, a series of criminal acts as defined by the statute. 18 U.S.C. § 1961(1)
(1976 ed., Supp. III). The former is proved by evidence of an ongoing organization, formal
or informal, and by evidence that the various associates function as a continuing unit. The
latter is proved by evidence of the requisite number of acts of racketeering committed by the
participants in the enterprise. While the proof used to establish these separate elements may
in particular cases coalesce, proof of one does not necessarily establish the other. The
‘enterprise’ is not the ‘pattern of racketeering activity’; it is an entity separate and apart from
the pattern of activity in which it engages. The existence of an enterprise at all times remains
a separate element which must be proved by the Government.”
{¶ 89} In two early cases, we refrained from deciding whether to follow federal
authority, which had held that an enterprise is required to exist separate and apart from the
pattern of corrupt activity. Our reasoning was that we found “ample evidence in the record of
the existence of an organizational structure beyond what was required for the participants to
sell drugs.” State v. Zorn (Feb 12, 1999), Miami App. No. 98 CA 16, and State v. Owen
30
(Feb. 19, 1999), Miami App. No. 98 CA 17. In these cases, which involved different
members of the same drug-selling organization, we noted some “dissonance” among federal
courts, because some circuits required an existence of the enterprise “separate and apart” from
the pattern of criminal activity, while others did not feel that proof of a more formalized
structure was required. Zorn, at *5.3
{¶ 90} Both before and after our decisions in Zorn and Owen, other appellate districts
in Ohio had applied federal law in cases brought under R.C. 2923.32. For example, in State
v. Teasley, Franklin App. Nos. 00AP–1322, 00AP–1323, 2002-Ohio-2333, the Tenth District
Court of Appeals noted that:
{¶ 91} “R.C. 2923.32 (‘the Ohio RICO Act’) is patterned after the Federal RICO Act,
Section 1962, Title 18, U.S.Code. Sheets v. Carmel Farms, Inc. (1997), Franklin App. No.
96APE09–1224. Consequently, Ohio courts often look to federal case law for guidance in
applying Ohio's RICO Act. Id. In keeping with this practice, this court has applied the
three-part test used by the federal courts to determine whether an ‘enterprise’ exists under the
Federal RICO Act to Ohio's RICO Act. State v. Warren (1992), Franklin App. No.
92AP–603. In Warren, this court concluded 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.;
3
This dissonance may be more imagined than real. For example, in one of the cases cited in Zorn, the
United States Second Circuit Court of Appeals agreed with Turkette that the government is required to prove both
the existence of an “enterprise” and a “pattern of activity.” United States v. Mazzei (C.A. 2, 1983), 700 F.2d 85, 89.
Relying on Turkette’s statement that at times the proof may “coalesce,” the Second Circuit observed that “it did not
read Turkette to hold that proof of these separate elements be distinct and independent, as long as the proof offered is
sufficient to satisfy both elements.” Id.31
United States v. Turkette (1981), 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246.”
Teasley, 2002-Ohio-2333, at ¶53.
{¶ 92} The above test, taken from Turkette, has been applied by other Ohio appellate
districts. See State v. Scott, Morgan App. No. 06 CA 1, 2007-Ohio-303, ¶ 45 (Fifth
District); Herakovic, 2005-Ohio-5985, at ¶23-24 (Eighth District, civil RICO case); State v.
Boyd, Ottowa App. No. OT-06-034, 2008-Ohio-1229, ¶38-39 (Sixth District); and Ramminger
v. Archdiocese of Cincinnati, Hamilton App. No. C-060706, 2007-Ohio-3306, ¶20 (First
District, civil RICO case).4
{¶ 93} In addition, the Eighth District Court of Appeals held in 1994 that “an
enterprise ‘is not a “pattern of racketeering activity,” but must be “an entity separate and apart
from the pattern of activity in which it engages.[”] ’ ” U.S. Demolition & Contracting, Inc. v.
O'Rourke Constr. Co. (1994), 94 Ohio App.3d 75, 85, quoting from Old Time Enterprises,
Inc. v. Internatl. Coffee Corp. (C.A.5, 1989), 862 F.2d 1213, 1217. Accord State v. Theisler,
Trumbull App. No. 2005-T-0106, 2007-Ohio-213, ¶30-33 (Eleventh District) (noting that
Ohio’s RICO statutes are patterned after federal law, and that an “enterprise is not a ‘pattern
4
The Fifth District Court of Appeals subsequently followed Scott in State v. Cochran, Licking App. No.
09CA0088, 2009-Ohio-5977, holding again that an enterprise is established by the three-part test, which includes “a
structure separate and apart, or distinct, from the pattern of corrupt activity.” Id. at ¶17. Inexplicably, in an earlier
decision in 2009, the Fifth District ignored its own prior authority and stated that “Since Ohio courts have not required
that an ‘enterprise’ have an existence separate and apart from the underlying corrupt activity, defendant's convictions
were supported by sufficient evidence.” State v. Linkous, Licking App. No. 08CA51, 2009-Ohio-1896, ¶115. The Fifth
District repeated this holding in State v. Yates, Licking App. No. 2009 CA 0059, 2009-Ohio-6622, ¶32-33, again, without
referring to its own prior authority. We also note that in 2002, the Supreme Court of Ohio certified a conflict between
Teasley and two other cases regarding “Whether, in a prosecution for engaging in a pattern of corrupt activity under R.C.
2923.32, the state is required to prove the existence of an ongoing organization separate and distinct from the pattern of
corrupt activity in order to establish the existence of an 'enterprise' as defined in R.C. 2923.31(C).” State v. Teasley, 96
Ohio St.3d 1510, 2002-Ohio-4950 (Table). The conflict cases were State v. Elersic, Lake App. Nos. 2002-L-062 and
2000-L-164, 2001-Ohio-8787, and State v. Wilson (1996), 113 Ohio App.3d 737, from the Fourth and Ninth Districts,
respectively. The Supreme Court of Ohio later dismissed the certification of conflict as having been improvidently
certified, stating that no conflict existed. See State v. Teasley, 99 Ohio St.3d 1226, 2003-Ohio-4047, ¶1. The court
did not elaborate on its reasoning.
32
of racketeering activity,’ but must be ‘an entity separate and apart from the pattern of activity
in which it engages.’ ”); Morrow v. Reminger & Reminger Co., L.P.A., 183 Ohio App.3d 40,
58-59, 2009-Ohio-2665, ¶36 (Tenth District, civil RICO case); Boyd, 2008-Ohio-1229, ¶39
(Sixth District); Ramminger, 2007-Ohio-3306, ¶20 (First District, civil RICO case);
Flanagan v. Eden, Cuyahoga App. No. 85252, 2005-Ohio-3133, ¶14 (Eighth District, civil
RICO case); State v. Johnson, Wyandot App. No. 16-03-09, 2004-Ohio-1513, ¶23 (Third
District); and Teasley, 2002-Ohio-2333, ¶53. But see, State v. Wilson (1996), 113 Ohio
App.3d 737 (Ninth District).5
{¶ 94} In several cases decided after Zorn and Owen, we applied Turkette’s evaluation
of the existence of an “enterprise” in determining if the defendant’s conviction for engaging in
a pattern of corrupt activity was established by sufficient evidence. See State v. Humphrey,
Clark App. No. 02CA0025, 2003-Ohio-2825, ¶34; State v. Humphrey, Clark App. No. 2002
CA 30, 2003-Ohio-3401, ¶41(separate appeals involving cousins and co-defendants involved
in the same criminal “enterprise”); and State v. Fritz, 178 Ohio App.3d 65, 2008-Ohio-4389.
In fact, in the latter Humphrey decision, we specifically cited Turkette, noting that the
evidence indicated the existence of an ongoing organization that functioned as a continuing
unit. 2003-Ohio-3401, at ¶41. Subsequently, in Fritz, we cited Owen, and noted that we had
previously “ ‘resolved cases questioning the existence of an enterprise under the corrupt
5
The Ninth District Court of Appeals has taken inconsistent positions. Prior to the Wilson decision, the
Ninth District had applied Turkette’s definition of an association-in-fact as having been demonstrated by an
ongoing organization that is formal or informal, and by evidence that the associates function as a continuing unit.
See State v. Davis (July 19, 1995), Lorain App. No. 94CA005964. In yet another example of inconsistency, the
Eleventh District Court of Appeals took a position in Theisler that differs from its prior decision in State v. Elersic,
Lake App. Nos. 2000-L-062, 2000-L-164, 2001-Ohio-8787, which indicated that Ohio had not adopted the federal
approach requiring an enterprise to have an existence separate from the corrupt activity.
33
activity statute without reference to the federal requirements.’ ” 2008-Ohio-4389, at ¶48.
Despite having made this statement, we did use the federal requirements in Fritz, when we
held that the evidence established the existence of an enterprise, because it showed that the
defendants had associated in an ongoing organization with a decision-maker and supplier, and
a seller, and had also functioned as a continuing unit. Id. at ¶51.
{¶ 95} In 2009, in Boyle, supra, the United States Supreme Court returned to the topic,
to consider “whether an association-in-fact enterprise must have ‘an ascertainable structure
beyond that inherent in the pattern of racketeering activity in which it engages.’ ” 129 U.S. at
2244. The district court had refused an instruction that the government must establish that
the enterprise “ ‘had an ongoing organization, a core membership that functioned as a
continuing unit, and an ascertainable structural hierarchy distinct from the charged predicate
acts.’ ” Id. at 2242. (Citation omitted.)
{¶ 96} The Supreme Court separated its inquiry into three parts – whether the
association must have a structure; whether the structure must be “ascertainable”; and whether
the structure must go beyond what is inherent in the pattern of racketeering activity in which
its members engage. Id. at 2244. The Court first concluded that an association must have
at least three structural features: “a purpose, relationships among those associated with the
enterprise, and longevity sufficient to permit these associates to pursue the enterprise’s
purposes.” Id. Next, the Court held that the word “ascertainable” was redundant and
potentially misleading, because each element of any crime must be “ascertainable” in order for
the jury to find that the element has been proven beyond a reasonable doubt. Id.
{¶ 97} Regarding the last part of the inquiry, the Supreme Court reiterated its holding
34
in Turkette that “the existence of an enterprise is a separate element that must be proved.” Id.
The Court stressed, as it had in Turkette, that “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.’ ” Id. at 2245, quoting Turkette, 452 U.S. at 583.
{¶ 98} The Court did reject the petitioner’s argument that an association-in-fact
enterprise must have structural attributes like a structural hierarchy, chain of command,
membership dues, an internal discipline mechanism, and so forth. In this regard, the Court
stated that:
{¶ 99} “We see no basis in the language of RICO for the structural requirements that
petitioner asks us to recognize. As we said in Turkette, an association-in-fact enterprise is
simply a continuing unit that functions with a common purpose. Such a group need not have
a hierarchical structure or a ‘chain of command’; decisions may be made on an ad hoc basis
and by any number of methods – by majority vote, consensus, a show of strength, etc.
Members of the group need not have fixed roles; different members may perform different
roles at different times. The group need not have a name, regular meetings, dues, established
rules and regulations, disciplinary procedures, or induction or initiation ceremonies. While
the group must function as a continuing unit and remain in existence long enough to pursue a
course of conduct, nothing in RICO exempts an enterprise whose associates engage in spurts
of activity punctuated by periods of quiescence. Nor is the statute limited to groups whose
crimes are sophisticated, diverse, complex, or unique; for example, a group that does nothing
but engage in extortion through old-fashioned, unsophisticated, and brutal means may fall
squarely within the statute's reach.” Id. at 2245-46.
35
{¶ 100} Based on its discussion, the Supreme Court concluded that the district court
did not err in refusing the requested jury instructions, and had adequately instructed the jury
about the elements of an enterprise, because the instructions made clear that the existence of
an enterprise was a “separate element from the pattern of racketeering activity.” Id. at 2247.
The Court also stressed that the jury had been instructed that the government “was required to
prove that there was ‘an ongoing organization with some sort of framework, formal or
informal, for carrying out its objectives’ and that ‘the various members and associates of the
association function[ed] as a continuing unit to achieve a common purpose.’ ” Id. (Brackets in
original; citation omitted.)
{¶ 101} After Boyle was decided, we considered whether a defendant could be found
guilty of engaging in a pattern of corrupt activity under R.C. § 2923.32 where the undisputed
evidence at trial indicated that the defendant was the president and owner of a corporation.
The defendant argued that he could not be found guilty of “forming an enterprise when he was
merely associating with himself.” State v. Clayton, Montgomery App. No. 22937,
2009-Ohio-7040, ¶40. We rejected this argument. First, we relied on the decision of the
Eighth District Court of Appeals in U.S. Demolition & Contracting, supra. Id. at ¶43. We
noted that the court in U.S. Demolition & Contracting had “pointed out that ‘[the Ohio pattern
of corrupt activity statutes] are patterned after the Racketeering Influenced and Corrupt
Organizations Act (“RICO”), Section 1961 et seq., Title 18, U.S.Code.* * * In applying [the
Ohio pattern of corrupt activity statutes], Ohio courts look to federal case law applying
RICO.’ ” Id., quoting from U.S. Demolition & Contracting, 94 Ohio App.3d 75, 83.
(Brackets in original.)
36
{¶ 102} In Clayton, we then relied specifically on the decision of the United States
Supreme Court in Cedric Kushner Promotions, Ltd. v. King (2001), 533 U.S. 158, 121 S.Ct.
2087, 150 L.Ed.2d 198. We noted that in King:
{¶ 103} “[T]he U.S. Supreme Court applied RICO and specifically addressed the
argument presently advanced by Clayton. In King, the plaintiff alleged that the defendant
violated RICO statutes by engaging in a pattern of corrupt activity in the conduct of his
business. The defendant maintained that he could not be a ‘person’ operating a separate
‘enterprise’ because he was the president and sole shareholder of his closely held corporation.
The U.S. Supreme Court held that the requisite distinctness between the defendant and his
corporation was sufficient to establish that they were legally distinct entities, thus that the
defendant, as the sole shareholder/officer/employee was the ‘person,’ and his corporation was
the ‘enterprise.’
{¶ 104} “Similar to the defendant in King, Clayton was the president and owner of
ELTA. In that role, Clayton was the separate and distinct ‘person,’ while the ELTA was the
‘enterprise’ that he acted through when he engaged in a pattern of corrupt activity, to wit;
aggravated theft and money laundering. Thus, the State adduced sufficient evidence to
convict Clayton of engaging in a pattern of corrupt activity.” 2009-Ohio-7040 at ¶44-45.
{¶ 105} In light of the preceding discussion, we agree with Franklin that the trial court
should have instructed the jury, consistent with the federal law on “enterprise” outlined in
Turkette and Boyle. We have never specifically rejected the application of federal law, and,
in fact, have both impliedly and expressly applied federal law to Ohio RICO cases when
deciding questions of sufficiency of the evidence.
37
{¶ 106} As we noted, the Supreme Court of Ohio has said that “it is prejudicial error
in a criminal case to refuse to administer a requested charge which is pertinent to the case,
states the law correctly, and is not covered by the general charge.” Scott, 26 Ohio St.3d 92,
101. The definitions outlined in Turkette and Boyle are pertinent, and state the law correctly.
They are also not covered by the general charge, which contained only the statutory
definition of enterprise. Although there is evidence in the record that could support a finding
of an enterprise, the jury was not properly instructed on the point.
{¶ 107} Franklin’s Third Assignment of Error is sustained in part. The conviction for
Engaging in a Pattern of Corrupt Activity will be reversed and this cause will be remanded for
further proceedings.
V
{¶ 108} Franklin’s Fourth Assignment of Error is as follows:
{¶ 109} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
DEMONSTRATED A PERMEATING OVERT BIAS TOWARD APPELLANT AND HIS
TRIAL COUNSEL THROUGHOUT THE TRIAL, DEPRIVING APPELLANT OF HIS
RIGHT TO A FAIR TRIAL.”
{¶ 110} Under this assignment of error, Franklin contends that the trial court
demonstrated bias against him and his counsel at several points during the trial, and deprived
Franklin of the right to a fair trial. Franklin points to the trial court’s alleged attempt to
rehabilitate a State witness by questioning the witness as to his conclusions before the State
had a chance to do so on redirect examination; the court’s comments during discussion of a
substitution of counsel motion filed by Franklin’s co-defendant; alleged disparaging remarks
38
made to Franklin’s counsel during discussion of a speedy trial motion; and the court’s
frustration with Franklin’s counsel for not having been readily available when the jury
returned its verdict.
{¶ 111} “ ‘In a trial before a jury, the court's participation by questioning or comment
must be scrupulously limited, lest the court, consciously or unconsciously, indicate to the jury
its opinion on the evidence or on the credibility of a witness.’ State ex rel. Wise v. Chand
(1970), 21 Ohio St.2d 113, 119, 50 O.O.2d 322, 325, 256 N.E.2d 613, 617 * * *.
{¶ 112} “In order to determine whether a trial court's remarks are prejudicial, the
Supreme Court of Ohio has set forth the following guidelines:
{¶ 113} “ ‘(1) The burden of proof is placed upon the defendant to demonstrate
prejudice, (2) it is presumed that the trial judge is in the best position to decide when a breach
is committed and what corrective measures are called for, (3) the remarks are to be considered
in light of the circumstances under which they are made, (4) consideration is to be given to
their possible effect upon the jury, and (5) to their possible impairment of the effectiveness of
counsel.’ State v. Wade (1978), 53 Ohio St.2d 182, 188, 7 O.O.3d 362, 365, 373 N.E.2d
1244, 1248.” State v. Hopfer (1996), 112 Ohio App.3d 521, 537. (Citations omitted.)
{¶ 114} Upon reviewing the record regarding the trial court’s questioning of Gary
Schaffer, a forensic chemist at the Miami Valley Regional Crime Lab, we conclude that
Franklin has failed to sustain the burden of proving that the court’s remarks were prejudicial.
The court was merely trying to clarify the testimony. In addition, Franklin did not object at
the time. In fact, Franklin did not mention the matter until after the jury had returned from a
lunch break and another witness was to be presented. At that time, Franklin’s counsel
39
mentioned the court “taking over the cross-examination of a witness” and simply asked the
court to instruct the jury at the end of the day that if the court had done anything to indicate
that it favored one side or the other, that was not correct. Trial Transcript, pp. 1065-66. The
trial court did give the jury such an instruction at the end of that day. Id. at p. 1217.
{¶ 115} Regarding the trial judge’s alleged bias, we note that Franklin filed a motion
for disqualification with the Supreme Court of Ohio in November 2009. Among other
things, the motion contended that the trial judge intended to use the threat of criminal
sanctions against another defendant on Judge Wagner’s docket, Monique Pope, in order to get
Pope to testify against Franklin, with whom she was romantically involved. The motion also
alleged that the trial judge was communicating ex parte with the State’s attorneys, and that the
judge had continued Franklin’s case in order to give the State time to file additional charges.
The Supreme Court of Ohio denied the motion for disqualification in December 2009, finding
it without merit. The court concluded that Franklin had presented no evidence of bias; merely
subjective belief.
{¶ 116} In State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, the Supreme Court
of Ohio noted that:
{¶ 117} “ ‘[A] criminal trial before a biased judge is fundamentally unfair and denies a
defendant due process of law.’ * * * Judicial bias has been described as ‘a hostile feeling or
spirit of ill will or undue friendship or favoritism toward one of the litigants or his attorney,
with the formation of a fixed anticipatory judgment on the part of the judge, as
contradistinguished from an open state of mind which will be governed by the law and the
facts.’ ” Id. at ¶48. (Citations omitted.)
40
{¶ 118} With respect to judicial bias, the Supreme Court of Ohio further observed that:
{¶ 119} “In Liteky v. United States (1994), 510 U.S. 540, 555, 114 S.Ct. 1147, 127
L.Ed.2d 474, the Supreme Court held that ‘opinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current proceedings, or of prior
proceedings, do not constitute a basis for a bias or partiality motion unless they display a
deep-seated favoritism or antagonism that would make fair judgment impossible. Thus,
judicial remarks during the course of a trial that are critical or disapproving of, or even hostile
to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.’
On the other hand, ‘[t]hey may do so [support a bias challenge] if they reveal an opinion that
derives from an extrajudicial source; and they will do so if they reveal such a high degree of
favoritism or antagonism as to make fair judgment impossible.’ ” Id. at ¶49. (Bracketed
material and italics in original.)
{¶ 120} At trial, three incidents occurred out of the presence of the jury, which
Franklin alleges show bias on the part of the trial court. One involved a discussion during
which the trial court mistakenly concluded that a member of Franklin’s counsel’s family had
notarized an affidavit for Franklin’s co-defendant. Upon being advised of this mistake, the
trial court apologized to counsel. The second instance involved the trial court’s reference to
Franklin’s counsel as a “shotgun kind of lawyer.” We do not find the trial court’s
characterization of counsel’s comprehensive advocacy of his clients’ interests to have been
disapproving or disparaging.
{¶ 121} During a third incident the trial court expressed frustration when Franklin’s
counsel was not available in a timely fashion to hear the jury verdict. However, the trial
41
court did wait for Franklin’s counsel and took no action against him. The irritation expressed
by the trial court, out of the presence of the jury, because lead defense counsel was not
initially present when the jury announced it had returned a verdict did not amount to overt bias
toward defendant, and could not, in any event, have prejudiced the jury, since the jury was not
thereafter in the presence of the trial court until its verdict, which had been reduced to writing,
was read in open court
{¶ 122} We have reviewed the entire transcript and find no evidence of improper bias
or improper conduct on the trial court’s part. In fact, the court went out of its way during the
trial to accommodate Franklin’s counsel with respect to making a record on the Batson issue.
{¶ 123} Franklin’s Fourth Assignment of Error is overruled.
VI
{¶ 124} Franklin’s Fifth Assignment of Error is as follows:
{¶ 125} “THE TRIAL COURT PREJUDICIALLY ERRED WHEN IT ADMITTED
INTO EVIDENCE ITEMS THAT HAD NO PROBATIVE VALUE AND THAT UNDULY
PREJUDICED APPELLANT.”
{¶ 126} Under this assignment of error, Franklin contends that the trial court erred in
allowing the State to present evidence of a photograph of a DVD case, as well as the actual
DVD case, which was entitled: “Never Get Busted Again.” The DVD case, along with a
baggie of heroin, was recovered from a car in which Franklin and Pope were riding on January
26, 2009. Franklin maintains that the evidence was not relevant and was unduly prejudicial.
{¶ 127} “The admission or exclusion of relevant evidence rests within the sound
discretion of the trial court.” State v. Haines, 112 Ohio St.3d 393, 2006-Ohio-6711, ¶50.
42
Therefore, we review the decision for an abuse of discretion, which means that the trial court
must have acted arbitrarily, unreasonably or unconscionably. AAAA Enterprises, Inc. v. River
Place Community Urban Redevelopment Corp. (1990), 50 Ohio St.3d 157, 161.
{¶ 128} It was the State’s burden to prove the existence of an ongoing organization,
with associates that function as a continuing unit, which engages in criminal activity. The
title of the DVD suggests that its possessor may have committed past criminal acts and desires
to commit further criminal acts without being apprehended. To the extent that other evidence
proved an ongoing organization and Franklin’s association with it, the title of the DVD was
relevant to prove that the organization engages in criminal activity. Being relevant for that
purpose, the DVD was admissible. Evid. R. 402. Accordingly, the trial court did not abuse
its discretion in admitting the evidence.
{¶ 129} Franklin’s Fifth Assignment of Error is overruled.
VII
{¶ 130} Franklin’s Sixth Assignment of Error is as follows:
{¶ 131} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
FAILED TO DECLARE A MISTRIAL AFTER REPEATED ACTS OF PROSECUTORIAL
MISCONDUCT DURING THE TRIAL DEPRIVED APPELLANT OF HIS RIGHT TO A
FAIR TRIAL.”
{¶ 132} Under this assignment of error, Franklin contends that the prosecution
committed misconduct by repeatedly showing the jury a cardboard poster that labeled Franklin
and his co-defendant as part of a “drug-trafficking group.”
{¶ 133} “The test for prosecutorial misconduct is whether remarks were improper and,
43
if so, whether they prejudicially affected substantial rights of the accused. * * * The
touchstone of analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’ ”
State v. Jones, 90 Ohio St.3d 403, 420, 2000-Ohio-187. (Citations omitted.) Our review of
the record fails to disclose prosecutorial misconduct. The trial was also not unfair.
{¶ 134} The defense originally objected to the poster before opening statements, and
the State explained that the poster was being used for demonstrative purposes, to help the jury
keep track of the incidents. The trial court overruled the objection, and said it would caution
the jury that the poster was not evidence. The trial court then instructed the jury on that
point. See Trial Transcript, pp. 279-81.
{¶ 135} On the second day of trial, Franklin’s counsel again objected to the poster
being displayed to the jury when not in use. At this time, the State said the poster had faced
backwards the previous day, and noted that if the jury had seen the front of the poster, it
would have been accidental and brief. The court again stated that the State could use the
poster, but instructed the State to hide the poster when it was not being used. Id. at 353-54.
After this discussion occurred, the court raised the matter on its own accord, and cautioned the
State not to overly use the poster. Id. at 492-96. During this discussion, the State offered to
delete the words “drug-trafficking group” from the exhibit.6
{¶ 136} The State once more asked the court for clarification on when it could use the
poster, and the court told the State that it could use the poster for the moment being talked
about, but then to take it down. Id. at pp. 501-02. The remaining part of the record does not
indicate that the State repeatedly used the poster, nor does it indicate that any misuse occurred.
6
The State’s comments are listed as “inaudible” at p. 494 of the transcript, but the audiovisual record of the proceedings indicates
44
{¶ 137} Franklin’s Sixth Assignment of Error is overruled.
VIII
{¶ 138} Franklin’s Seventh Assignment of Error is as follows:
{¶ 139} “THE JOINDER OF APPELLANT’S CASE WITH CO-DEFENDANT
DE’ARGO GRIFFIN’S CASE VIOLATED APPELLANT’S DUE PROCESS RIGHT TO A
FAIR TRIAL, A RIGHT GUARANTEED BY THE UNITED STATES CONSTITUTION.”
{¶ 140} Franklin argues under this assignment of error that the joinder of his case with
Griffin’s case violated his due process right to a fair trial. In this regard, Franklin contends
that the case concerns offenses committed on multiple dates, including two incidents in which
Franklin was not even alleged to have been involved. Franklin also claims that confusion
existed on the part of the trial court and jury.
{¶ 141} Crim. R. 8(A) provides that:
{¶ 142} “Two or more defendants may be charged in the same indictment, information
or complaint if they are alleged to have participated in the same act or transaction or in the
same series of acts or transactions constituting an offense or offenses, or in the same course of
criminal conduct. Such defendants may be charged in one or more counts together or
separately, and all of the defendants need not be charged in each count.”
{¶ 143} R.C. 2945.13 additionally states that:
{¶ 144} “When two or more persons are jointly indicted for a felony, except a capital
offense, they shall be tried jointly unless the court, for good cause shown on application
that the State offered to delete the term from the exhibit. See audiovisual record, Day 2, at 1:49:13-20.
45
therefor by the prosecuting attorney or one or more of said defendants, orders one or more of
said defendants to be tried separately.”
{¶ 145} The Supreme Court of Ohio has stressed that “[j]oinder of offenses is favored
because it conserves resources by avoiding duplication inherent in multiple trials and
minimizes the possibility of incongruous results that can occur in successive trials before
different juries.” State v. Hamblin (1988), 37 Ohio St.3d 153, 158. In Hamblin, the court
concluded that joinder was proper, because the offenses were “part of a continuing course of
criminal conduct.” Id.{¶ 146} “A defendant claiming error in the trial court's refusal to allow separate trials *
* * has the burden of affirmatively showing that his rights were prejudiced; he must furnish
the trial court with sufficient information so that it can weigh the considerations favoring
joinder against the defendant's right to a fair trial, and he must demonstrate that the court
abused its discretion in refusing to separate the charges for trial.” State v. Torres (1981), 66
Ohio St.2d 340, syllabus. Accord State v. Ramey, Clark App. No. 2010 CA 19,
2011-Ohio-1288, ¶59.
{¶ 147} In the case before us, Franklin and Griffin were alleged to have been involved
in a pattern of corrupt activity, which would necessarily have involved their participation in an
ongoing organization with associates that function as a continuing unit. The testimony at trial
involved eight incidents of drug possession or trafficking. Franklin was involved in four
incidents where Griffin was not present; Griffin was involved in two incidents where Franklin
was not present; and they were involved together in two incidents. However, the incidents
in which the two were separately involved had overlapping participants. For example, Foster
46
was involved with Franklin in an incident in July 2007, and in an incident with Griffin in
March 2009. Foster was also present during incidents that involved both Griffin and Franklin
in January and March 2009.
{¶ 148} Although the time frames in the case before us are not as close together as
those in Hamblin, the incidents involving Franklin and Foster are intertwined and are alleged
to have been part of the pattern of corrupt activity necessary to prove a violation of R.C.
2923.32. If Franklin and Griffin had been tried separately, the State would have been
required to present the same evidence in each trial to prove the violation.
{¶ 149} Furthermore, we see no evidence of confusion in the record. Franklin cites to
a transcript not in evidence in this appeal, in which the trial court allegedly said that the jury
was confused. See Franklin Brief, pp. 30-31, referring to p. 766 of the Griffin transcript,
which according to Franklin, equates with p. 1105 of the transcript filed in this appeal. Even
if a remark about confusion had been made, it is clear from the context that the issue involved
whether Griffin had been charged with a crime arising from an incident involving Foster and
Griffin. Specifically, the jury had asked why Foster was charged and Griffin was not
charged. After discussing the jury’s question, the court concluded that the question was not
relevant, and declined to answer it. This was consistent with the State’s position throughout
trial that even if Griffin or Franklin had not previously been indicted for possession of an
illegal substance or with trafficking for a particular incident, the State could use those
instances as predicate acts to show a pattern of corrupt activity. See Trial Transcript, pp.
652-655. The trial court agreed with the State.
47
{¶ 150} Furthermore, we find it irrelevant that the trial court inadvertently referred to
Griffin as Anthony Griffin while giving jury instructions. The court immediately realized
and corrected this one-time error. Id. at p. 1181.
{¶ 151} Franklin’s Seventh Assignment of Error is overruled.
IX
{¶ 152} Franklin’s Eighth and Ninth Assignments of Error are as follows:
{¶ 153} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY THE
COMBINATION OF ALL OF THE ERRORS IT COMMITTED IN THIS CASE, I.E., THE
CUMULATIVE EFFECT OF ALL OF THE ERRORS DEPRIVED APPELLANT OF HIS
RIGHT TO A FAIR TRIAL.
{¶ 154} “THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ANY
OTHER ERRORS THAT ARE NOT SET FORTH IN THE FOREGOING THAT CAN
NONETHELESS BE FOUND IN THE RECORD OF THIS CASE.”
{¶ 155} Franklin does not present any argument under these assignments of error. “
Where no individual, prejudicial error has been shown, there can be no cumulative error.”
State v. Jones, Montgomery App. No. 20349, 2005-Ohio-1208, ¶66, citing State v.
Blankenship (1995), 102 Ohio App.3d 534, 557. Because we have found only one instance
of error in instructing the jury, we cannot find cumulative error. “There are no multiple errors
to cumulate.” Id. We also decline the invitation to search the record for additional errors.
{¶ 156} Franklin’s Eighth and Ninth Assignments of Error are overruled.
X
48
{¶ 157} All of Franklin’s assignments of error having been overruled, with the
exception of Franklin’s Third Assignment of Error, which is sustained in part, Franklin’s
conviction for Engaging in a Pattern of Corrupt Activity is Reversed, the judgment of the trial
court is Affirmed in all other respects, and this cause is Remanded for further proceedings
consistent with this opinion.
.............
GRADY, P.J., and FROELICH, J., concur.
Copies mailed to:
Mathias H. Heck
Kirsten A. Brandt
Daniel J. O’Brien
Hon. Steven K. Dankof