State v. Beverly (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State v. Beverly, Slip Opinion No. 2015-Ohio-219.]
NOTICE
This slip opinion is subject to formal revision before it is published in
an advance sheet of the Ohio Official Reports. Readers are requested
to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
65 South Front Street, Columbus, Ohio 43215, of any typographical or
other formal errors in the opinion, in order that corrections may be
made before the opinion is published.
SLIP OPINION NO. 2015-OHIO-219
THE STATE OF OHIO, APPELLANT, v. BEVERLY, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Beverly, Slip Opinion No. 2015-Ohio-219.]
Criminal law—Engaging in pattern of corrupt activity—R.C. 2923.32(A)(1)—
Existence of enterprise may be established without proving that enterprise
is structure separate and distinct from pattern of corrupt activity.
(No. 2013-0827—Submitted August 19, 2014—Decided January 27, 2015.)
APPEAL from the Court of Appeals for Clark County,
No. 2011 CA 64, 2013-Ohio-1365.
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SYLLABUS OF THE COURT
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.
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SUPREME COURT OF OHIO
PFEIFER, J.
BACKGROUND
{¶ 1} In August 2011, defendant-appellee, Jordan Beverly, was
convicted of various counts of receiving stolen property, burglary, and other
felonies. These convictions are not at issue in this case. Beverly was also found
guilty of engaging in a pattern of corrupt activity. R.C. 2923.32(A)(1). The
pattern involved Beverly and Brandon Imber stealing or receiving stolen vehicles
outside of Clark County. Beverly and Imber would then return to Clark County in
the stolen vehicle and begin knocking on doors of private homes. If somebody
opened the door, they would invent some excuse for knocking, by, for instance,
claiming to work for a tree service. If nobody answered the door, they would
break in and steal valuables, primarily electronics, jewelry, and guns.
{¶ 2} On appeal, the conviction for engaging in a pattern of corrupt
activity was reversed. The court of appeals concluded that “there is no evidence
in the record that Beverly and Imber were involved in any type of ongoing
organization, functioning as a continuing unit, with a structure separate and apart
from the pattern of corrupt activity.” 2013-Ohio-1365, ¶ 30. We accepted the
state’s discretionary appeal. 137 Ohio St. 3d 1414, 2013-Ohio-5096, 998 N.E.2d
512 (on reconsideration).
ANALYSIS
A. RICO and proving “enterprise” in Ohio
{¶ 3} The federal Racketeering Influenced and Corrupt Organizations
Act (“RICO”), 18 U.S.C. 1961 et seq., was the general model for Ohio’s own
corrupt-activity statute. State v. Schlosser, 79 Ohio St. 3d 329, 332, 681 N.E.2d
911 (1997). Ohio’s RICO statute, 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
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activity or the collection of an unlawful debt.” “Enterprise” is defined 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. “Enterprise” includes
illicit as well as licit enterprises.
R.C. 2923.31(C).
{¶ 4} The state’s sole proposition of law states:
In order to prove the existence of an “enterprise” to sustain
a conviction for engaging in a pattern of corrupt activity in
violation of R.C. 2923.32, the State is not required to prove that the
organization is a structure separate and distinct from the pattern of
activity in which it engages.
{¶ 5} As we have stated,
A RICO offense is dependent upon a defendant committing
two or more predicate offenses listed in R.C. 2923.31(I). However,
a RICO offense also requires a defendant to be “employed by, or
associated with” an “enterprise” and to “conduct or participate in”
an “enterprise through a pattern of corrupt activity.” R.C.
2923.32(A)(1). “Such pattern must include both a relationship and
continuous activity, as well as proof of the existence of an
enterprise. Thus, the conduct required to commit a RICO violation
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is independent of the conduct required to commit [the underlying
predicate offenses].” (Emphasis added.) State v. Dudas, 11th Dist.
Lake Nos. 2008-L-109 and 2008-L-110, 2009-Ohio-1001, ¶ 46.
*** The intent of RICO is “ ‘to criminalize the pattern of
criminal activity, not the underlying predicate acts.’ ” State v.
Thomas, 3d Dist. Allen Nos. 1-11-25 and 1-11-26, 2012-Ohio-
5577, ¶ 61, quoting State v. Dodson, 12th Dist. Butler No. 2009-
07-1147, 2011-Ohio-6222, ¶ 68.
State v. Miranda, 138 Ohio St. 3d 184, 2014-Ohio-451, 5 N.E.3d 603, ¶ 13.
{¶ 6} In Miranda, we held that “a RICO offense does not merge with its
predicate offenses for purposes of sentencing.” Id. at ¶ 3. Today, we conclude, in
essence, that a “pattern of corrupt activity” does not merge with the concept of
“enterprise.”
{¶ 7} There is no question that a RICO conviction depends on the state
being able to “prove both the existence of an ‘enterprise’ and the connected
‘pattern of racketeering activity.’ ” United States v. Turkette, 452 U.S. 576, 583,
101 S. Ct. 2524, 69 L. Ed. 2d 246 (1981). See Miranda at ¶ 13. The question in
this case is whether the same evidence can be used to prove both the existence of
an enterprise and the associated pattern of corrupt activity. We conclude that it
can and, therefore, also conclude that the state is not required to prove that the
defendants were associated with an organization having an existence as an entity
or structure separate and distinct from the pattern of activity in which it engages.
{¶ 8} Nothing in R.C. Chapter 2923 implicitly or explicitly states that an
enterprise and a pattern of corrupt activity must be proven with separate evidence.
The definition of “enterprise” is remarkably open-ended. It includes “any
individual, sole proprietorship, partnership, limited partnership, corporation, trust,
union, government agency, or other legal entity, or any organization, association,
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January Term, 2015
or group of persons associated in fact although not a legal entity.” R.C.
2923.31(C). See Boyle v. United States, 556 U.S. 938, 944, 129 S. Ct. 2237, 173
L. Ed. 2d 1265 (2009) (similar enumeration in 18 U.S.C. 1961(4) of what
constitutes an enterprise is “obviously broad”).
{¶ 9} The statutory scheme does not indicate how the existence of an
enterprise is to be proved, though various decisions of Ohio courts (Miranda and
cases cited therein; State v. Welch, 3d Dist. Wyandot No. 16-06-02, 2006-Ohio-
6684), and the United States Supreme Court have provided insight. It is easy to
prove the existence of certain enterprises, especially those with licit purposes:
there is a document memorializing the creation of a partnership or corporation,
etc. But here and in most cases involving a RICO-type conviction, the existence
of an enterprise is more difficult to establish because the enterprise is entirely an
“association in fact,” i.e., a de facto enterprise. Turkette, 452 U.S. at 583, 101
S. Ct. 2524, 69 L. Ed. 2d 246. 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.” Id. See Boyle at 948 (“an association-in-fact enterprise is
simply a continuing unit that functions with a common purpose).
{¶ 10} The Supreme Court stated 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.” Boyle at 947, quoting Turkette at 583. See
Miranda, 138 Ohio St. 3d 184, 2014-Ohio-451, 5 N.E.3d 603, ¶ 13. We agree
with this conclusion, that proof of one essential element does not “necessarily”
prove another. But we emphasize that, logically, evidence that proves one of the
elements can sometimes prove the other, even though it doesn’t necessarily do so.
The court in Boyle accentuated this point when it stated that “the evidence used to
prove the pattern of racketeering activity and the evidence establishing an
enterprise ‘may in particular cases coalesce.’ ” Id., quoting Turkette at 583. In so
stating, the court expressly rejected the notion that “the existence of an enterprise
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SUPREME COURT OF OHIO
may never be inferred from the evidence showing that persons associated with the
enterprise engaged in a pattern of racketeering activity * * *.” Id.
{¶ 11} The court in Boyle concluded that the following jury instruction
was not error: “the existence of an association-in-fact is oftentimes more readily
proven by what it does, rather than by abstract analysis of its structure.” Boyle,
556 U.S. at 951, 129 S. Ct. 2237, 173 L. Ed. 2d 1265. The penultimate sentence of
the Boyle opinion essentially answered the question before us when it stated that
“proof of a pattern of racketeering activity may be sufficient in a particular case to
permit a jury to infer the existence of an association-in-fact enterprise.” Id.
{¶ 12} At least one court of appeals in Ohio has wrangled with the issue
before us, resolved the case consistent with our decision today, and done so
without reference to Turkette or Boyle. Welch, 2006-Ohio-6684. The court in
that case reviewed the evidence under a sufficiency standard and concluded that
“any reasonable trier-of-fact could have found that Welch was operating as part of
an enterprise.” Id. at ¶ 28. In the very next sentence, the court stated, “The same
evidence cited above also supports the ‘pattern of corrupt activity’ element.” Id.
at ¶ 29.
{¶ 13} We hold that 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.
{¶ 14} We emphasize that we reach our conclusion after analyzing the
statutory scheme and applying it to the question before us. We have relied on
Turkette and Boyle for guidance, not because they are the law of the land (they are
not in Ohio, R.C. 2923.31 and 2923.32 are), but because the reasoning applied by
the Supreme Court is logical and apt. See Michigan v. Long, 463 U.S. 1032,
1044, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983) (United States Supreme Court will
not review state cases that rely “on an adequate and independent state ground”).
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January Term, 2015
{¶ 15} The court of appeals concluded that “Beverly’s conviction for
Engaging in a Pattern of Corrupt Activity is not supported by sufficient
evidence.” 2013-Ohio-1365, ¶ 31. We disagree. The standard when testing the
sufficiency of the evidence “ ‘is whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt.’ ” State v.
McKnight, 107 Ohio St. 3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 70, quoting
State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus.
{¶ 16} The record is replete with examples of Beverly and Imber
associating together for a common purpose of engaging in a course of conduct.
Beverly and Imber drove (and perhaps stole) an Ohio Department of
Transportation truck and used it to steal an expensive stump grinder. They used a
stolen Chevrolet Caprice in the course of an attempted burglary. And most
notoriously, for purposes of this case, they used a stolen truck to commit several
burglaries on January 28, 2011. It is clear to us that the record provides ample
support for a rational trier of fact to conclude that Beverly and Imber constituted
an association-in-fact enterprise and that they engaged in a pattern of corrupt
activity. Indeed, we cannot imagine a trier of fact concluding otherwise.
B. Manifest Weight of the Evidence
{¶ 17} The court of appeals determined that Beverly’s argument that his
conviction was against the manifest weight of the evidence was moot. The
argument is no longer moot, but we summarily reject it sua sponte. When testing
manifest weight, the court “ ‘ “reviewing 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 jury clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.” ’ ” McKnight at ¶ 71, quoting State v.
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Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997), quoting State v.
Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983). Having reviewed the
record in this case, we can only conclude that no miscarriage of justice occurred.
C. Jury Instructions
{¶ 18} The court of appeals also concluded that the trial court improperly
instructed the jury regarding the “enterprise” element of engaging in a pattern of
corrupt activity. The appellate court did not have the benefit of our recent
decision in State v. Griffin, ___ Ohio St.3d ___, 2014-Ohio-4767, ___ N.E.3d
___. We, sua sponte, on the authority of Griffin, reject the argument that the jury
instructions were improper.
{¶ 19} The jury instructions in this case comprise 50 pages of transcript.
The portion that discusses count one, engaging in a pattern of corrupt activity,
comprises just over two pages. That instruction reads:
Count One, the defendant is charged with engaging in a
pattern of corrupt activity in Count One of the indictment.
Before you can find the defendant guilty of this offense,
you must find beyond a reasonable doubt that between November
1st 2010, and January 28, 2011, at Clark and Madison Counties
and Clermont County he did while employed by or associated with
any enterprise conduct or participate in, either directly or
indirectly, the affairs of the enterprise through a pattern of corrupt
activity.
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.
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January Term, 2015
Conduct means to direct. Participate means to take part in
and is not limited to those who have directed the pattern of corrupt
activity. It encompasses those who have performed activities
necessary or helpful to the operation of the enterprise whether
directly or indirectly without an element of control.
Pattern of corrupt activity means two or more incidents of
corrupt activity. Whether or not there has been a prior conviction
that are related [sic] 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.
Corrupt activity means engaging in, attempting to engage
in, or soliciting, coercing or intimidating another person to engage
in any of the following:
Conduct constituting a violation of burglary under the Ohio
Revised Code Section 2911.12. Or conduct constituting a
violation of receiving stolen property under Ohio Revised Code
Section 2913.51, that is a felony of the first, second, third or fourth
degree.
If the property involved in the receiving stolen property
offense is a motor vehicle or a firearm, receiving stolen property is
a felony of the fourth degree.
Motor vehicle and firearm will be defined for you below
under Counts Two and Six respectively.
If you find that the State proved beyond a reasonable doubt
all the essential elements of engaging in a pattern of corrupt
activity, your verdict must be guilty.
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If you find that the State failed to prove beyond a
reasonable doubt any one of the essential elements of engaging in a
pattern of corrupt activity, your verdict must be not guilty.
If your verdict is guilty, you will then go on to separately
determine beyond a reasonable doubt whether or not at least one of
the incidents of corrupt activity is a felony of the first, second or
third degree.
{¶ 20} As was true in the instruction reviewed in Griffin, the definitions of
“enterprise” and “pattern of corrupt activity” are quoted from R.C. 2923.31. The
essence of the jury charge appears early in the instructions when the court stated
that the state must prove beyond a reasonable doubt that Beverly, “while
employed by or associated with any enterprise conduct[ed] or participate[d] in,
either directly or indirectly, the affairs of the enterprise through a pattern of
corrupt activity.”
{¶ 21} Again, as in Griffin, the instructions in this case could have been
differently, perhaps even better, stated. Nevertheless, it is clear in reviewing the
instructions in this case that they are substantially similar to the instructions that
we approved in Griffin. Accordingly, we summarily reverse the lower court’s
judgment that the jury instructions were insufficient as a matter of law.
CONCLUSION
{¶ 22} We reverse the judgment of the court of appeals and remand for
resentencing.
Judgment reversed
and cause remanded.
O’CONNOR, C.J., and O’DONNELL and KENNEDY, JJ., concur.
FRENCH, J., concurs in judgment only.
LANZINGER and O’NEILL, JJ., dissent.
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January Term, 2015
_________________________
LANZINGER, J., dissenting.
{¶ 23} I would affirm the judgment of the Second District Court of
Appeals. I do not quarrel with the syllabus as it is stated, but I respectfully dissent
from the manner in which the principle is applied here. Both the element of
“enterprise” and the element of “pattern of corrupt activity” must be proven by
the state beyond a reasonable doubt for a conviction under R.C. 2923.32(A)(1).
But when the majority concludes that “the state is not required to prove that the
defendants were associated with an organization having an existence as an entity
or structure separate and distinct from the pattern of activity,” it goes too far and
annihilates the element of enterprise. (Emphasis added.) Majority opinion at ¶ 7.
{¶ 24} At the very least, the majority opinion reduces the element of
enterprise to the idea of an association-in-fact, or “ ‘a continuing unit that
functions with a common purpose,’ ” quoting Boyle v. United States, 556 U.S.
938, 948, 129 S. Ct. 2237, 173 L. Ed. 2d 1265 (2009). That view of the term
“enterprise” waters the concept down to mean two or more people acting together
to commit the same crime. Yet “[t]he obvious intent of the General Assembly in
enacting the RICO statutes was to reduce the influence and power of organized
crime in the state.” State v. Stevens, 139 Ohio St. 3d 247, 2014-Ohio-1932, 11
N.E.3d 252, ¶ 16. It is not enough for a defendant to simply act in concert with
someone or be involved with a pattern of corrupt activity. As the court of appeals
stated:
The evidence in the record establishes that Beverly and
Imber were acting in concert when they engaged in the crime spree
leading to these charges. But there is no evidence in the record
that Beverly and Imber were involved in any type of ongoing
organization, functioning as a continuing unit, with a structure
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separate and apart from the pattern of corrupt activity. At best, the
evidence establishes that Beverly and Imber’s actions were
disorganized and chaotic in the commission of the burglaries and
thefts.
2013-Ohio-1365, at ¶ 31.
{¶ 25} The majority focuses here on the evidence relating to the “pattern”
of crime by Beverly and Brandon Imber—stealing or receiving stolen vehicles
outside of Clark County and breaking into homes and stealing valuables. I agree
that the pattern of corrupt activity was established but do not see how Beverly and
Imber were involved in any type of ongoing organization, functioning as a
continuing unit with a common purpose.
{¶ 26} I would also hold that inadequate instructions were given on the
element of enterprise based on the reasons stated in my dissent in State v. Griffin,
___ Ohio St.3d ___, 2014-Ohio-4767, ___ N.E.3d ___, ¶ 20 (Lanzinger, J.,
dissenting). The term “enterprise” could have been clarified using language in
Boyle, 556 U.S. at 945-946, 129 S. Ct. 2237, 173 L. Ed. 2d 1265 (an enterprise
requires a showing of at least three structural features: (1) purpose, (2)
relationships among those associated with the enterprise, and (3) sufficient
longevity to permit the associates to pursue the purpose), or in United States v.
Turkette, 452 U.S. 576, 583, 101 S. Ct. 2524, 69 L. Ed. 2d 246 (1981) (an enterprise
is “proved by evidence of an ongoing organization, formal or informal, and by
evidence that the various associates function as a continuing unit”).
{¶ 27} While it is true that evidence may prove more than one element
beyond a reasonable doubt, each element must be considered independently.
Here Beverly and Imber committed crimes together, but the state did not prove an
enterprise.
O’NEILL, J., concurs in the foregoing opinion.
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January Term, 2015
_________________________
Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, and
Michael J. Hendershot, Chief Deputy Solicitor; and D. Andrew Wilson, Clark
County Prosecuting Attorney, and Andrew R. Picek, Assistant Prosecuting
Attorney, for appellant.
Marshall G. Lachman, for appellee.
_________________________
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