State v. Holloway , 2024 Ohio 3189 ( 2024 )

[Cite as State v. Holloway, 2024-Ohio-3189.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 113296
v. :
CASE HOLLOWAY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED
RELEASED AND JOURNALIZED: August 22, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-673380-C
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and James D. May, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Rick Ferrara, Assistant Public Defender, for appellant.
KATHLEEN ANN KEOUGH, A.J.:
Defendant-appellant, Case Holloway, appeals his convictions
following a jury trial. For the reasons that follow, we find some merit to the appeal
and, thus, we affirm in part, reverse in part, and remand the matter to the trial court
for resentencing on Counts 3, 7, 18, and 25.
I. Procedural History
In May 2022, the State named Holloway and his codefendants in a
30-count indictment that stemmed from a series of large-scale liquor thefts at Giant
Eagle stores in Northeast Ohio. Specific to Holloway, the State charged him with,
Count 1: Engaging in a Pattern of Corrupt Activity, a felony of the first
degree, in violation of R.C. 2923.32(A)(1).
Count 2: Conspiracy, a second-degree felony, in violation of R.C.
2923.01(A)(2).
Count 3: Grand theft, a felony of the fourth degree, in violation of R.C.
2913.02(A)(1).
Count 5: Felonious Assault, a first-degree felony, in violation of R.C.
2903.11(A)(2), with a furthermore specification that the victim was a
peace officer.
Count 6: Robbery, a felony of the second degree, in violation of R.C.
2911.02(A)(2).
Count 7: Theft, a fifth-degree felony, in violation of R.C. 2913.02(A)(1).
Count 8: Petty Theft, a misdemeanor of the first degree, in violation of
R.C. 2913.02(A)(1).
Count 15: Theft, a fifth-degree felony, in violation of R.C.
2913.02(A)(1).
Count 18: Theft, a fifth-degree felony, in violation of R.C.
2913.02(A)(1).
Count 25: Theft, a fifth-degree felony, in violation of R.C.
2913.02(A)(1).
Count 28: Attempted theft, a misdemeanor of the second degree, in
violation of R.C. 2903.02/2913.02(A)(1).
Count 30: Receiving stolen property, a fourth-degree felony, in
violation of R.C. 2913.51.
Prior to trial, the State nolled Counts 5 and 6. As a result, Counts 1
and 2 were amended, which reduced the degree of those offenses to second- and
third-degree felonies, respectively. Holloway rejected a plea offer, and the case
proceeded before a jury.
II. Trial
The State’s evidence established that from April 2022 until August
2022, Holloway, along with his co-defendants, Jessee Matthews, Deja Granger, and
Zionna Lee, engaged in a pattern of corrupt activity by coordinating and
orchestrating thefts from numerous Giant Eagle liquor stores in Cuyahoga County
and the surrounding counties in Northeast Ohio. The State presented three
witnesses, including Matthew Smith, a store detective for Giant Eagle in asset
protection, and Agents Andrew Campbell and Raashad Whitfield, with the Ohio
Investigation Unit (“OIU”), who were assigned to investigate the liquor thefts.
Additionally, the State presented several surveillance videos from Giant Eagle stores
that recorded the thefts, still photographs created from those videos, and social
media photographs.
Smith testified that in April 2022, he was a senior store detective for
Giant Eagle. He stated that he investigated incidents of internal and external thefts
and prepared reports for law enforcement for the prosecution of external thefts,
including these large-scale liquor thefts from Giant Eagle stores in Northeast Ohio.
He explained that as part of his investigative process in this case, he gathered
evidence from the surveillance systems at each Giant Eagle store and compiled
inventories of the missing items, including the total values.
Smith testified that Giant Eagle in North Ridgeville alerted him that
a large amount of liquor was missing from the store. As a result, he reviewed
surveillance video from the store and observed two individuals, later identified as
Matthews and Holloway, removing several cases of liquor from the store on April
23, 2022. Smith stated that he observed Matthews in the employee-only storeroom
placing several cases of liquor in a shopping cart, pushing the cart out of the liquor
store area as Holloway spoke with the cashier, and then subsequently passing the
cart to Holloway, who exited the store with the cart. According to Smith, the cart
contained $1,163.76 worth of liquor — a case of Patron and a case of Hennessy. The
jury observed video surveillance and still photographs depicting the conduct of both
Matthews and Holloway and reviewed the receipt the store generated corresponding
to each item, its price, and total nontax value. Smith stated that neither individual
paid for the liquor.
Smith next testified about another theft that occurred hours later on
April 23, 2022, at Giant Eagle in Rocky River. While he testified, the jury observed
surveillance footage and still photographs created from the videos, which showed
the actions of Matthews, Granger, and Holloway. In one video, Holloway is seen
dropping a bottle of liquor on the floor, causing the cashier and another employee
to clean up the liquid. According to Smith, he believed this was meant to be a
“distraction” while Matthews removed a case of Casamigos tequila from the back
storeroom, placed it on floor, and pushed it toward the exit of the liquor area. The
video then showed Holloway picking up the case of liquor, placing it in a shopping
cart, and pushing the cart out of the store without paying. The total nontaxed
amount was $327.29.
Smith next testified about a theft from the Giant Eagle store in Mentor
on the Lake. He stated that as part of his investigation, he observed surveillance
video showing Matthews talking with the cashier while Granger and Holloway
removed cases of liquor and other grocery items out of the store without paying.
Smith stated that the total amount was valued at $2,207.32. The surveillance video,
however, was not presented to the jury, who saw only the still photographs created
from the video.
Smith testified that he investigated thefts from the Willoughby Giant
Eagle store that occurred on June 11 and 12, 2022. According to Smith, Holloway
was only involved in the theft of liquor on June 11. The jury observed both video
surveillance footage and still photographs created from the video that showed
Holloway, Granger, and Matthews taking cases of liquor from the back storeroom
and pushing carts full of liquor out of the Giant Eagle store without paying. Smith
testified that the cases of liquor included Hennessey and Casamigos tequila, and the
value was $5,746.86. Regarding the theft that occurred on June 12, 2022, both
Granger and Matthews were observed taking $3,429.54 worth of liquor from the
Willoughby Giant Eagle store.
Smith next testified about thefts that occurred at a Giant Eagle store
in Parma on July 13 and 15, 2022. Holloway was not involved in the July 13 theft,
but surveillance video recorded Matthews and Granger entering the Giant Eagle,
leaving with $551.88 worth of stolen liquor, and driving away in a gray Toyota
Camry that was later identified as stolen. Smith also testified about Holloway’s
involvement in the theft that occurred at the same Giant Eagle on July 15, 2022.
Video surveillance recorded Matthews, Granger, Holloway, and Lee arriving in the
Toyota Camry and entering the Giant Eagle. During this incident, video surveillance
recorded Holloway lifting cases of Patron tequila from the storeroom over a low wall
and placing them on top of the shelf on the other side. Another video showed
Holloway and Matthews taking the cases down from the shelf and placing them in
shopping carts that Lee and Granger had positioned. The final video the jury viewed
showed Matthews, Granger, Lee, and Holloway pushing liquor-filled shopping carts
and some miscellaneous groceries from store. According to Smith, the total nontax
value was $3,350.24.
Smith also testified about an incident that occurred on August 5,
2022. He stated that video surveillance recorded Matthews, Granger, Lee, and
Holloway arriving in the Toyota Camry at Giant Eagle in Twinsburg. He stated that
they entered the store but exited shortly thereafter, emptyhanded. Smith stated that
the Twinsburg Giant Eagle does not have a liquor store.
OIU Agent Campbell testified that during his investigation, he and
Agent Whitfield interviewed Holloway at the Cuyahoga County Jail following his
arrest by the Brooklyn police department. He stated that during this interview,
Holloway volunteered detailed information about his involvement in the liquor
thefts, admitting to his participation. According to Agent Campbell, Holloway told
him that he was compensated with money and pills in exchange for his participation
in the thefts.
OIU Agent Whitfield testified that he also was involved in the
investigation of the liquor thefts from Giant Eagle stores in Cuyahoga County. He
stated that as part of his investigation, he searched social media accounts linked to
Matthews and Granger and found photographs on those accounts revealing their
involvement, along with Holloway, in the liquor thefts. In one photograph,
Holloway was seated inside the Toyota Camry. In other images, both Matthews and
Granger were photographed with liquor bottles matching those taken from Giant
Eagle. Additional images were discovered on both Matthews’s and Granger’s
Instagram accounts of liquor bottles and cases of liquor inside the Toyota Camry
and its trunk that matched those stolen from Giant Eagle.
III. The Verdict and Sentence
Following the State’s case, the trial court granted Holloway’s Crim.R.
29 motion to dismiss Counts 28 (attempted theft) and 30 (receiving stolen
property). The jury found Holloway not guilty of Count 15 (theft) but guilty of the
remaining counts. The trial court imposed a total aggregate sentence of four years
in prison.
Holloway now appeals, raising six assignments of error that will be
addressed together and out of order where appropriate.1
IV. Identification of Giant Eagle
In his first assignment of error, Holloway contends that he was denied
due process of law by the State’s failure to identify “Giant Eagle” in the indictment
or at trial as a natural person or a corporation or entity incorporated in the State of
Ohio. He contends that the State’s failure to identify Giant Eagle or the individual
stores as corporations in the indictment and bill of particulars, and its failure to offer
proof of the corporate existence of Giant Eagle and the individual stores, rendered
the indictment fatally defective and thus deprived the trial court of jurisdiction.
Holloway did not move to dismiss the indictment as defective
pursuant to Crim.R. 12 or move to dismiss the charges on this basis during trial. The
“failure to timely object to a defect in an indictment constitutes a waiver of the
error.” State v. Horner, 2010-Ohio-3830, ¶ 46, citing Crim.R. 12(C)(2) (objections
to defect in indictment must be raised before trial). Accordingly, we review for plain
error, which will only be recognized in exceptional circumstances to avoid a
miscarriage of justice. Id., citing State v. Frazier, 73 Ohio St.3d 323 (1995); Crim.R.
52(B).
1 Holloway filed his appellate brief, raising five assignments of error.The State
filed its brief and Holloway filed a reply brief. Subsequently, this court granted
Holloway’s request to supplement his brief, instanter, to raise the additional argument of
allied offenses. The State did not file a responsive brief.
The Ohio Supreme Court has recognized two criteria by which the
sufficiency of an indictment is to be determined: (1) “‘whether the indictment
‘contains the elements of the offense intended to be charged, and sufficiently
apprises the defendant of what he must be prepared to meet,’” and, (2) “‘in case any
other proceedings are taken against him for a similar offence [sic], whether the
record shows with accuracy to what extent he may plead a former acquittal or
conviction.’” Frazier at 332, quoting Russell v. United States, 369 U.S. 749, 763-
764 (1962).
Holloway has not alleged that he did not have adequate notice of the
charges against him or that he was misled or prejudiced by the State’s failure to aver
that Giant Eagle or its individual stores were a corporation. Based on our review of
the indictment, we find that it tracked the statutory definitions of the offenses
charged. Accordingly, Holloway was sufficiently apprised of the charges against
him, including that the named victim was Giant Eagle, and was adequately protected
against double jeopardy.
Moreover, Giant Eagle’s status as a corporation is not a necessary
element of any charge listed in the indictment. An indictment is not made invalid
or defective “for want to averment of matter not necessary to be proved” or because
of “defects or imperfections which do not tend to prejudice the substantial rights of
the defendant upon the merits.” R.C. 2941.08(J) and (K).
Relevant to the appeal, the State charged Holloway with violating R.C.
2923.32, engaging in a pattern of corrupt activity, and R.C. 2923.01, conspiracy —
neither of which require the State to prove the identity of a victim. Regarding the
charged theft offenses under R.C. 2913.02, the victim’s actual name is not an
element of the offense. See State v. Scott, 2017-Ohio-9193, ¶ 24 (10th Dist.).
R.C. 2913.02(A)(1) provides, in relevant part, that “no person, with
purpose to deprive the owner of property or services, shall knowingly obtain or exert
control over either the property or service. . . without the consent of the owner or
person authorized to give consent.” (Emphasis added.)
R.C. 2913.01(D) defines an “owner” as “any person, other than the
actor, who is the owner of, who has possession or control of, or who has any license
or interest in property or services, even though the ownership, possession, control,
license, or interest is unlawful.” (Emphasis added.) Ohio law recognizes a
“corporation” as a “person.” R.C. 1.59; Centerville v. Knab, 2020-Ohio-5219, ¶ 28;
see also R.C. 2901.01(B)(1)(a)(i) (a “person” under Chapter 29, includes a
“corporation”).
The Supreme Court of Ohio has stated that the focus of “ownership”
is whether a defendant has lawful ownership at the time of the offense:
It is apparent from the language of R.C. 2913.01(D) that title ownership
in a specific person other than the defendant is not an element of a theft
offense. Indeed under this definition a thief can steal from a thief. . . .
It is . . . the defendant’s relationship to the property which is
controlling. The important question is not whether the person from
whom the property is stolen was the actual owner, but rather whether
the defendant had any lawful right to possession.
State v. Rhodes, 2 Ohio St.3d 74, 76 (1982). “‘The gist of a theft offense is the
wrongful taking by the defendant, not the particular ownership of the property.’” In
re D.J., 2024-Ohio-738, ¶ 28 (8th Dist.), quoting State v. Jones, 2010-Ohio-902,
¶ 12 (8th Dist.), citing State v. Thomas, 2006-Ohio-6588 (8th Dist.). Accordingly,
the failure to identify or establish Giant Eagle or its individual stores as a corporation
does not render an indictment defective because Giant Eagle is a “person” and thus
an “owner” as contemplated under Ohio law.
Based on the foregoing, Holloway has not demonstrated that the
indictment was defective or that he was denied due process. We find no plain error
and overrule his first assignment of error.
V. Sufficiency of the Evidence
Holloway contends in his second assignment of error that the State
presented insufficient evidence to support his convictions for engaging in a pattern
of corrupt activity, conspiracy, and theft. Specifically, he contends that the State
failed to present sufficient evidence of (1) venue; (2) the store numbers alleged in
the indictment and thus failed to meet the elements of each theft offense; (3) that
Giant Eagle was a corporation registered to do business in the State of Ohio; and (4)
any “enterprise” or conspiracy therewith.
The test for sufficiency requires a determination of whether the
prosecution met its burden of production at trial. State v. Cottingham, 2020-Ohio-
4220, ¶ 32 (8th Dist.). An appellate court’s function when reviewing the sufficiency
of the evidence to support a criminal conviction is to examine the evidence admitted
at trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt. State v. Thompkins, 78
Ohio St.3d 380, 386 (1997) (Cook, J., concurring). The relevant inquiry is whether,
after viewing the evidence in a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt. Id.A. Venue
Holloway’s first challenge to the sufficiency of the evidence concerns
the State’s evidence regarding venue. Although venue is not a material element of
the offense charged, venue is a fact that the State must prove in a criminal
prosecution unless it is waived by the defendant. State v. Headley, 6 Ohio St.3d 475,
477 (1983). A defendant has waived the right to challenge venue when it is raised
for the first time on appeal. State v. Coley, 93 Ohio St.3d 253, 258 (2001), citing
State v. Campbell, 90 Ohio St.3d 320, 336 (2000); State v. Williams, 51 Ohio St.2d
112 (1977), paragraph one of the syllabus.
In this case, Holloway never challenged venue before or during trial
and, therefore, he waived his right to complain on this basis. Compare State v.
Yavorcik, 2018-Ohio-1824, ¶ 110 (8th Dist.) (defendant challenged venue in a
pretrial motion to dismiss and in his Crim.R. 29 motion for judgment of acquittal
during trial). Even if Holloway properly preserved the issue, the State presented
sufficient evidence to prove that Cuyahoga County was a proper venue for trial.
Ohio Constitution, Article I, Section 10, “‘fixes venue, or the proper
place to try a criminal matter.’” State v. Hampton, 2012-Ohio-5688, ¶ 19, quoting
Headley, 6 Ohio St.3d at 477 (explaining that the venue provision of the Ohio
Constitution embodies the rule “that the place of trial is to be where the offense
occurred.”) “Venue need not ‘be proven in express terms’ as long as it can ‘be
established by all the facts and circumstances in the case.’” State v. Brentlinger,
2017-Ohio-2588, ¶ 57 (3d Dist.), quoting State v. Dickerson, 77 Ohio St. 34 (1907),
syllabus.
“Ohio’s criminal venue statute, R.C. 2901.12(H), is broad.” Yavorcik,
2018-Ohio-1824, at ¶ 110 (8th Dist.). This provision reads, in relevant part:
(H) When an offender, as part of a course of criminal conduct, commits
offenses in different jurisdictions, the offender may be tried for all of
those offenses in any jurisdiction in which one of those offenses or any
element of one of those offenses occurred. Without limitation on the
evidence that may be used to establish the course of criminal conduct,
any of the following is prima-facie evidence of a course of criminal
conduct:
(1) The offenses involved the same victim, or victims of the same type
or from the same group.
(2) The offenses were committed by the offender in the offender’s same
employment, or capacity, or relationship to another.
(3) The offenses were committed as part of the same transaction or
chain of events, or in furtherance of the same purpose or objective.
(4) The offenses were committed in furtherance of the same conspiracy.
(5) The offenses involved the same or a similar modus operandi.
(6) The offenses were committed along the offender’s line of travel in
this state, regardless of the offender’s point of origin or destination.
R.C. 2901.12. The question of proper venue is ultimately resolved by determining
whether the defendant had a “significant nexus” with the jurisdiction in which he
was tried. State v. Carpenter, 2019-Ohio-58, ¶ 89 (3d Dist.).
Holloway contends that the State failed to ascertain whether any one
offense or element thereof occurred in Cuyahoga County because there was no
testimony that “Cuyahoga County” was a location where any offense occurred.
(Appellant’s brief, page 11.) We disagree and find that the State presented sufficient
evidence that the offenses occurred in Cuyahoga County or that Holloway had a
significant nexus with Cuyahoga County to allow the State to try the offenses against
Holloway in Cuyahoga County.
During Smith’s testimony, the State asked:
PROSECUTOR: Mr. Smith, these incidents of liquor theft, what’s the
vicinity, the county that they occurred?
SMITH: So a couple of them occurred in Cuyahoga County; a few
occurred in Lake. We had some in Lorain County, like North
Ridgeville. We had some farther down in Summit County.
(Tr. 837.) Although an objection was made, which was “denied in part and sustained
in part,” the record is silent as to what part was sustained and what part was
overruled. However, when the prosecutor “restate[d] the question” and asked:
PROSECUTOR: So, Mr. Smith, you investigated incidents in Cuyahoga
County?
SMITH: Yes.
PROSCUTOR: Okay. You investigated incidents in Lake County?
SMITH: Yes.
PROSECUTOR: And you had at least one incident in Lorain County?
SMITH: Yes.
PROSECUTOR: And the incidents we’ve been discussing here all
involved particular individuals?
SMITH: Yes.
(Tr. 834-838.) On cross-examination, defense counsel asked:
DEFENSE COUNSEL: Okay. So you had investigated at least 22
incidents; isn’t that right?
SMITH: All total?
DEFENSE COUNSEL: I should be more specific, yes. Of alleged theft
of liquor from the State liquor store within Giant Eagles mostly in
Cuyahoga County, and a little bit in Lake County and one in Lorain?
SMITH: Yes. I believed I had 27 incidents total attached to it, and not
all of them were successful. Not all of them were necessarily brought
forward. Yeah, there were 27, total, if I can recall, correctly.
DEFENSE COUNSEL: Okay. And today, you testified about seeing Mr.
Holloway during six of those incidents; isn’t that right?
SMITH: Yes.
(Tr. 880-881.)
Subsequently, during Agent Whitfield’s testimony, he agreed with the
prosecutor’s statement that he was “involved in an investigation in Cuyahoga County
of the theft of wholesale liquor from Giant Eagle’s liquor outlet retail
establishments.” (Tr. 912.) More importantly, Whitfield testified that after
Holloway was arrested by the Brooklyn Police Department, Holloway admitted that
he was involved in the thefts. (Tr. 950.)
Accordingly, viewing the evidence in favor of the State, we find that
sufficient evidence was presented to prove that venue was proper in Cuyahoga
County because either the theft offenses occurred in Cuyahoga County or Holloway
had a significant nexus with Cuyahoga County in committing these large-scale thefts
in Northeast Ohio.
B. Store Identification
Holloway next contends that his convictions for theft are based on
insufficient evidence because the State did not present any evidence connecting the
identity of the specific Giant Eagle stores with any physical locations or amounts
stolen.
Notwithstanding that the State was not required to connect the
individual stores to the specific instances of theft to prove that Holloway committed
the acts of theft, we could summarily reject this argument because Holloway has
failed to support his argument with any legal authority demonstrating error. See
App.R. 12 and 16.
Nevertheless, Holloway was convicted of theft in violation of R.C.
2913.02 as charged in Counts 7, 8, 18, 25. A review of the indictment and the bill of
particulars on each count demonstrates that Holloway had notice of which count
pertained to which store, its location, and date of the offense. Moreover, the State
presented sufficient evidence to allow a reasonable factfinder to determine which
theft count related to which Giant Eagle store.
In Count 7, the indictment identified that the date of the offense was
April 23, 2022, and occurred at the Giant Eagle Store #199. The State’s bill of
particulars identified that Giant Eagle Store #199 was located in North Ridgeville on
Center Ridge Road (Lorain County). During trial, Smith testified about the theft
that occurred at the North Ridgeville Store. He identified State’s exhibit No. 1 as the
receipt generated to determine the amount of liquor taken from that store. Smith
stated, “So this is a receipt for the theft from the North Ridgeville store on April 23rd
totaling retail nontax value of $1,163.76. This is what we determined to have been
in the cart that was pushed out by Case Holloway.” (Tr. 792.) He subsequently
identified Holloway in still photographs generated from surveillance video from the
North Ridgeville store.
In Count 8, the indictment identified that the date of the offense was
April 23, 2022, and occurred at the Giant Eagle #1297. The State’s bill of particulars
identified that Giant Eagle #1297 was located in Rocky River on Center Ridge Road
(Cuyahoga County). During trial Smith testified about the theft of liquor that
occurred at the Rocky River location on April 23, 2022. He identified State’s exhibit
No. 18 as the receipt generated to determine the amount of liquor taken from that
store, which was $327.19. Smith subsequently identified Holloway, along with
Matthews and Granger, in video surveillance evidence and photographs.
In Count 18, the indictment identified that the date of the offense was
June 11, 2022, and occurred at Giant Eagle #6831. The State’s bill of particulars
identified that Giant Eagle #6831 was located in Willoughby on Euclid Avenue (Lake
County). During trial, Smith testified about the theft of liquor that occurred at the
Willoughby location on June 11, 2022. He identified State’s exhibit No. 57 as the
receipts generated to determine the value of liquor taken from that store on both
June 11, 2022, and June 12, 2022. Relevant to Holloway, the receipt amount for the
theft on June 11, 2022, totaled $5,746.86. Smith subsequently identified Holloway
— along with Matthews and Granger — all exiting the store with a cart of liquor, in
video surveillance and photographs.
In Count 25, the indictment identified that the date of the offense was
July 15, 2022, and occurred at Giant Eagle #6388. The State’s bill of particulars
identified that Giant Eagle #6388 was located in Parma on Broadview Road
(Cuyahoga County). During trial, Smith testified about the theft of liquor that
occurred at the Parma location on July 15, 2022. He identified State’s exhibit No.
72 as the receipt generated to determine the value of liquor taken from that store on
July 15, 2022, which totaled $3,350.24. Additional grocery items totaling $26.77
were also taken. Smith identified Holloway, along with Matthews, Granger, and Lee,
in video surveillance and photographs. Additionally, he testified that surveillance
video recorded the individuals, including Holloway, leaving in a Toyota Camry.
Based on the foregoing, the State presented sufficient evidence to
support Holloway’s convictions for theft as charged in Counts 7, 8, 18, and 25. The
jury was presented with sufficient evidence allowing it to connect each theft offense
to each count by means of the date of the offense and the city in which the offense
occurred.
C. Giant Eagle Corporation
Holloway next challenges the sufficiency of the evidence of his theft
convictions by reincorporating the arguments he raised in his first assignment of
error in which he contended that the State failed to identify Giant Eagle as a natural
person or corporation registered to do business in the State of Ohio. We reject this
argument for the same reasons as previously explained in addressing his first
assignment of error.
D. Enterprise
Holloway’s final challenge to the sufficiency of the evidence concerns
the State’s purported failure to present sufficient evidence of an “enterprise” with
which he was associated in fact. Specifically, he contends that the State failed to elicit
testimony (1) of a “structure” to the alleged “enterprise” that he purposely supported
or participated in, and (2) that he conspired to purposely further the enterprise.
Ohio’s Racketeer Influenced and Corrupt Organizations Act (“RICO”)
was modeled after the federal RICO Act, 18 U.S.C. 1961 et seq. and Ohio courts have
applied federal case law in Ohio RICO cases. State v. Beverly, 2015-Ohio-219, ¶ 3.
R.C. 2923.32(A)(1), engaging in a pattern of corrupt activity, provides, in relevant
part that “[n]o person . . . associated with any enterprise shall conduct or participate
in, directly or indirectly, the affairs of the enterprise through a pattern of corrupt
activity.” R.C. 2923.31 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.”
Thus, in order to prove a RICO offense, the State must prove that (1)
the defendant committed two or more predicate offenses, (2) the defendant was
“employed by, or associated with” an “enterprise,” and (3) the defendant conducted
or participated in the enterprise “through a pattern of corrupt activity.” State v.
Miranda, 2014-Ohio-451, ¶ 13, citing R.C. 2923.32(A)(1). “‘The conduct required to
commit a RICO violation is independent of the conduct required to commit [the
underlying predicate offenses].’” Id., quoting State v. Dudas, 2009-Ohio-1001, ¶ 46
(11th Dist.). “The intent of RICO is ‘to criminalize the pattern of criminal activity,
not the underlying predicate acts.’” Id., quoting State v. Thomas, 2012-Ohio-5577,
¶ 61 (3d Dist.).
The State’s evidence conclusively established that Holloway
committed at least two theft offenses by removing liquor from the Giant Eagle stores
without paying and thus without consent from the owner. Additionally, the State
provided sufficient evidence that Holloway was associated with an “enterprise.”
R.C. 2923.31(C) defines “enterprise” as including “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.”
In this case, the enterprise was not a legal entity, but an “association
in fact.” “An association-in-fact enterprise has been defined as ‘a group of persons
associated together for a common purpose of engaging in a course of conduct.’”
Beverly, 2015-Ohio-219, at ¶ 9, quoting Turkette, 452 U.S. 576, 583 (1981); Boyle v.
United States, 556 U.S. 938, 948 (2009) (“[A]n association-in-fact enterprise is
simply a continuing unit that functions with a common purpose.”). “[M]erely
committing successive or related crimes, however, is not sufficient to rise to the level
of a RICO violation.” State v. Schlosser, 79 Ohio St.3d 329, 333 (1997).
Nevertheless, “the existence of an enterprise, sufficient to sustain a conviction for
engaging in a pattern of corrupt activity under R.C. 2923.32(A)(1), can be
established without proving that the enterprise is a structure separate and distinct
from a pattern of corrupt activity.” Beverly at ¶ 13.
In this case, the State presented sufficient evidence that Holloway was
engaged in an association-in-fact enterprise to support his conviction for engaging
in a pattern of corrupt activity and conspiracy. Store detective Smith and Agents
Campbell and Whitfield testified that they investigated at least 27 large-scale liquor
thefts from Giant Eagle liquor outlet retail establishments in Northeast Ohio that
involved Matthews, Granger, Lee, and Holloway, or a combination thereof. Agent
Campbell testified that he learned that Holloway and Matthews were distant
cousins, Matthews and Granger were romantically involved, and Holloway and Lee
were dating. Although Holloway was involved in only six of the investigated thefts,
his participation and involvement furthered the enterprise’s purpose of taking large
amounts of liquor for the purpose of selling it for cash and pills.
Additionally, Smith characterized the group’s methods and
operations as “sophisticated,” meaning that the participants would distract
employees, remove cases of liquor from back storerooms, load shopping carts, pass
off the loaded shopping carts to the other participants, and exit the store without
paying. Smith stated they used this “technique repeatedly,” and that the average
shoplifter is not this organized nor would the average shoplifter enter the stock room
to steal cases of liquor. Smith stated that these organized thefts occurred from at
least April 2022 until August 2022. Accordingly, we find that the State presented
sufficient evidence to support Holloway’s convictions for engaging in a pattern of
corrupt activity and conspiracy.
Holloway’s second assignment of error is overruled.
VI. Manifest Weight of the Evidence
“Weight of the evidence concerns 'the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather
than the other. . . . Weight is not a question of mathematics, but depends on its effect
in inducing belief.’” Eastley v. Volkman, 2012-Ohio-2179, ¶ 12, quoting Thompkins,
78 Ohio St.3d at 387. In a manifest-weight analysis, the reviewing court sits as a
“thirteenth juror” and reviews “‘the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses, and determines
whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be
reversed, and a new trial ordered.’” Thompkins at id., quoting State v. Martin, 20
Ohio App.3d 172, 175 (1st Dist. 1983). The discretionary power to grant a new trial
should be exercised only in exceptional cases where the evidence weighs heavily
against the conviction. Thompkins at 386.
In his fifth assignment of error, Holloway contends that his
convictions for engaging in a pattern of corrupt activity and conspiracy are against
the manifest weight of the evidence because he was not a full-time participant, no
evidence was presented that he planned or strategized about the thefts, and his only
objective in the enterprise was to get drugs for himself.
The justification surrounding why Holloway involved himself in the
enterprise of stealing large amounts of liquor from Giant Eagle stores in the
Northeast Ohio area does not render his convictions against the manifest weight of
the evidence. The evidence overwhelmingly demonstrated that Holloway actively
participated in the large-scale thefts by distracting store employees, entering
employee-only restricted areas, loading cases of liquor into shopping carts, and
pushing those carts out of the store beyond all points of sale. On at least one
occasion, these events occurred within hours of each other at two different locations.
Based on the foregoing, we find that the jury clearly did not lose its way requiring
this court to step in as the thirteenth juror, reverse his convictions, and order a new
trial. Holloway’s fifth assignment of error is overruled.
VII. Count 3 — Jury Instruction Regarding Venue
During its charge, the trial court verbally instructed the jury that
Count 3, grand theft, occurred in Cuyahoga County. However, because the State
charged Holloway with grand theft as an all-encompassing offense of the theft
offenses that occurred in Cuyahoga, Summit, Lake, and Lorain Counties over a
period of time, the trial court clarified to the jury that the offense was charged as “a
continuing course of conduct” and some of the events “may have happened outside
of Cuyahoga County.” (Tr. 1044.) As a result, the parties agreed that the written
instructions provided to the jury would not include the specific venue of “Cuyahoga
County” as it related to Count 3.
Holloway’s third and fourth assignments of error pertain to the trial
court’s alleged error in removing “Cuyahoga County” from Count 3, grand theft. In
his third assignment of error, Holloway contends that the trial court deprived him
of his right to due process under the U.S. and Ohio Constitutions when the court
removed venue from Count 3. He contends in his fourth assignment of error that
his counsel was ineffective by assenting to the trial court’s decision to remove the
requirement to prove venue under that count. We find no error.
Because Count 3 was charged as an aggregate of multiple thefts, R.C.
2901.12 did not require the identification of a specific venue. R.C. 2901.12, venue,
affords broad jurisdiction when the charged offenses include theft and conspiracy.
Regarding theft, subsection (C) provides that when the offense involves the unlawful
taking of property, i.e., theft, “the offender may be tried in any jurisdiction from
which the property was taken or received.” R.C. 2901.12(C).
Regarding conspiracy, subsection (D) provides that “the offender may
be tried in any jurisdiction in which the conspiracy . . . or any of its elements
occurred.” R.C. 2901.12(D). Subsection (E) further broadens the scope of the trial
court’s jurisdiction involving conspiracy offenses by stating:
When the offense is conspiracy . . . the offender may be tried in any
jurisdiction in which the offense that was the object of the conspiracy
. . . or any element of that offense, was intended to or could have taken
place. When the offense is complicity . . . the offender may be tried in
any jurisdiction in which the principal offender may be tried.
Moreover, R.C. 2901.12(G) provides that “[w]hen it appears beyond a
reasonable doubt that an offense or any element of an offense was committed in any
of two or more jurisdictions, but it cannot reasonably be determined in which
jurisdiction the offense or element was committed, the offender may be tried in any
of those jurisdictions.”
Finally, to complete the scope of the trial court’s grant of jurisdiction
over multiple offenses committed “as part of a course of criminal conduct,” R.C.
2901.12(H)(1)-(5) permits the State to try an offender in “any jurisdiction in which
one of those offenses or any element of one of those offenses occurred.” Accordingly,
the statutory language of R.C. 2901.12 grants sweeping jurisdiction over charges of
engaging in a pattern of corrupt activity, conspiracy, and theft that involved multiple
different jurisdictions. State v. Haddix, 93 Ohio App.3d 470, 479 (12th Dist. 1994)
(“A prosecution for engaging in a pattern of corrupt activity is properly venued in
any county in which a portion of the corrupt activity occurred.”).
In this case, the State established that Holloway committed two thefts
within Cuyahoga County, to wit: in Parma and Rocky River. See State v. Love, 2019-
Ohio-3168 (9th Dist.) (venue established when city is located exclusively within one
county). The State also established that these thefts occurred in furtherance of an
“enterprise” and “pattern,” which allowed all the offenses to be tried in Cuyahoga
County, where an element of the charged conduct occurred. Because R.C. 2901.12
allows for such broad jurisdiction over the conduct, the inclusion of Cuyahoga
County in the jury instruction regarding Count 3 was unnecessary. Accordingly, we
find no error, plain or otherwise, in the trial court’s decision to remove “Cuyahoga
County” from Count 3 in the written instructions provided to the jury.
Having found no error in the instructions, we further find no merit to
Holloway’s fourth assignment of error contending that his counsel was ineffective
for assenting to the trial court’s decision to delete “Cuyahoga County” from the jury
instructions on Count 3. To establish ineffective assistance of counsel, a defendant
must demonstrate that counsel’s performance fell below an objective standard of
reasonable representation and that he was prejudiced by that performance. State v.
Drummond, 2006-Ohio-5084, ¶ 205, citing Strickland v. Washington, 466 U.S.
668 (1984). Prejudice is established when the defendant demonstrates “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceedings would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland at 694.
Holloway has not demonstrated any defect in trial counsel’s
representation, nor has he demonstrated that a reasonable probability exists that
the result of the trial would have been different had counsel objected to the trial
court’s clarification and instruction.
Holloway’s third and fourth assignments of error are overruled.
VIII. Allied Offenses
In his sixth assignment of error, Holloway contends that the trial
court committed plain error in failing to merge the theft offenses in Counts 3, 7, 18,
and 25 because they are allied offenses. The State did not file any opposing
argument on this issue.
Under the plain error standard, an error is not reversible unless it
affected the outcome of the proceeding and reversal is necessary to correct a
manifest miscarriage of justice. State v. Rogers, 2015-Ohio-2459, ¶ 3; see also
Crim.R. 52. Applying the plain error standard to an allied offenses argument, “an
accused has the burden to demonstrate a reasonable probability that the convictions
are allied offenses of similar import committed with the same conduct and without
a separate animus” or import. Id. The defendant must meet this burden before a
reviewing court may reverse for plain error. Id.R.C. 2941.25 provides as follows:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment
or information may contain counts for all such offenses, but the
defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses
of the same or similar kind committed separately or with a separate
animus as to each, the indictment or information may contain counts
for all such offenses, and the defendant may be convicted of all of them.
In State v. Ruff, 2015-Ohio-995, the Supreme Court of Ohio clarified
how courts are to determine whether offenses are allied. The Court noted that the
allied-offenses analysis is dependent upon the facts of a case because R.C. 2941.25
focuses on the defendant’s conduct. Id. at ¶ 26. Nevertheless, conduct is but one
factor to consider when determining whether offenses are allied. Id. at ¶ 21. The
court explained:
As a practical matter, when determining whether offenses are allied
offenses of similar import within the meaning of R.C. 2941.25, courts
must ask three questions when defendant’s conduct supports multiple
offenses: (1) Were the offenses dissimilar in import or significance? (2)
Were they committed separately? and (3) Were they committed with
separate animus or motivation? An affirmative answer to any of the
above will permit separate convictions. The conduct, the animus, and
the import must all be considered.
Id. at ¶ 31.
With respect to import, the Court explained that offenses are of
dissimilar import “if they are not alike in their significance and their resulting
harm.” Id. at ¶ 21. Thus, “two or more offenses of dissimilar import exist within the
meaning of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses
involving separate victims or if the harm that results from each offense is separate
and identifiable.” Id. at ¶ 26.
The record demonstrates that the State arguably conceded that Count
3, grand theft, was an aggregate count of the underlying theft offenses as charged in
Counts 7, 18, and 25. Prior to trial, the State advised the trial court of the plea it
offered to Holloway:
The State would move to amend — move to amend Count 1 from a
felony of the first degree to a felony of the second degree.
The State would ask for a plea of Count 3, grand theft, a felony of the
fourth degree.
The State would then ask for a plea to Counts 7, 15, and 18.
Those are all thefts, felonies of the fifth degree.
Those counts would merge with Count [3], so ultimately there would
be sentencing on counts of Count 1 and Count 3.
(Tr. 257-258.) Subsequently during its initial closing argument during trial, the
State told the jury:
The Court is going to give you an instruction, and it’s a special
instruction with regard to Count 3. It’s grand theft.
And that count, it’s a capture-all, or collect-all count.
It goes from beginning or whenever you identify a course of conduct.
And so in an instance like that, you may add up all of the individual
thefts because it’s a course of conduct. It’s the same thing, the same
way, the same product, and you can add all that together to make it one
theft on behalf of the victim because we have one victim, Giant Eagle.
Ultimately, we have stores, but ultimately, really, it’s Giant Eagle.
(Tr. 982.)
In State v. Snyder, 2011-Ohio-6346, ¶ 19-20 (12th Dist.), the
defendant was convicted of one count of grand theft by deception and three counts
of passing bad checks. Id. at ¶ 1. In the grand-theft-by-deception count, the
defendant was charged with engaging in a continuing course of criminal conduct
from January 26, 2009 through March 3, 2009. Id. at ¶ 22. During that time, the
defendant issued three bad checks: one on February 11, 2009 and two on February
18, 2009. Id. The Twelfth District concluded that the defendant’s grand-theft-by-
deception and passing-bad-checks convictions were allied offenses of similar import
and subject to merger because, in part, the defendant issued the bad checks during
the continuing course of conduct alleged in the grand-theft-by-deception count of
the indictment. Id. at ¶ 25, 33.
A similar result is required in this case. Holloway, much like the
Snyder defendant, committed acts of theft that were the basis for Counts 7, 18, and
25, but as a course of conduct as alleged in Count 3, grand theft. Based on the record,
we find that Holloway has demonstrated plain error. Counts 7, 18, or 25 should have
merged with Count 3. Accordingly, the findings of guilt on Counts 3, 7, 18, and 25
remain intact; however, the sentences imposed on each are vacated, and the case is
remanded for the State to elect upon which count the trial court should impose
sentence. The assignment of error is sustained.
IX. Conclusion
Judgment affirmed in part, reversed in part, and remanded for
resentencing.
It is ordered that the parties share equally the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE
MICHAEL JOHN RYAN, J., and
SEAN C. GALLAGHER, J., CONCUR