State v. Griffin (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State v. Griffin, Slip Opinion No. 2014-Ohio-4767.]
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. 2014-OHIO-4767THE STATE OF OHIO, APPELLANT, v. GRIFFIN, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Griffin, Slip Opinion No. 2014-Ohio-4767.]
Criminal law—R.C. 2923.32—Jury instructions—Definition of “enterprise.”
(Nos. 2013-1129 and 2013-1319—Submitted May 27, 2014—Decided
October 30, 2014.)
APPEAL from and CERTIFIED by the Court of Appeals of Montgomery County,
No. 24001, 2013-Ohio-2230.
_______________________
PFEIFER, J.
BACKGROUND
{¶ 1} Appellee, De’Argo Griffin, was convicted of, among other things,
engaging in a pattern of corrupt activity. The convictions were affirmed. 2d Dist.
Montgomery No. 24001, 2012-Ohio-503. The Second District Court of Appeals
granted Griffin’s application to reopen his appeal to allow him to argue that his
appellate counsel had been ineffective for failing to challenge the jury instructions
defining the term “enterprise.” The court of appeals ultimately concluded that the
jury instructions had been inadequate, based on that district’s decision in State v.
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Franklin, 2d Dist. Montgomery Nos. 24011 and 24012, 2011-Ohio-6802, and
reversed the conviction for engaging in a pattern of corrupt activity. 2d Dist.
Montgomery No. 24001, 2013-Ohio-2230.
{¶ 2} The court of appeals certified that its judgment is in conflict with
the Ninth District Court of Appeals’ judgment in State v. Habash, 9th Dist.
Summit No. 17073, 1996 WL 37752 (Jan. 31, 1996). We agreed that a conflict
exists, 137 Ohio St.3d 1456, 2013-Ohio-4657, 1 N.E.3d 423, and ordered the
parties to brief the following issue:
In a trial for engaging in a pattern of corrupt activity under
R.C. 2923.32, is an instruction sufficient to convey the law on the
element of “enterprise” when the instruction states the elements of
the offense, provides the statutory definitions of “enterprise” and
“pattern of corrupt activity,” and informs the jury that it has to find
both beyond a reasonable doubt?
{¶ 3} We also accepted jurisdiction over the state’s discretionary appeal.
136 Ohio St.3d 1509, 2013-Ohio-4657, 995 N.E.2d 1212. The state presents one
proposition of law:
In a trial for engaging in a pattern of corrupt activity under
R.C. 2923.32, a jury instruction which states the elements of the
offense, provides the statutory definitions of the elements, and
informs the jury that it has to find both an “enterprise” and a
“pattern of corrupt activity” beyond a reasonable doubt is
sufficient to convey the law on the element of “enterprise.” The
court is not required to instruct the jury using language from
federal case law on the element of “enterprise.”
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{¶ 4} We consolidated the cases sua sponte. 137 Ohio St.3d 1456, 2013-
Ohio-4657, 1 N.E.3d 423. The issue certified and the proposition of law are
sufficiently similar that we will address them as one issue.
ANALYSIS
{¶ 5} Jury instructions are critically important to assist juries in
determining the interplay between the facts of the case before it and the applicable
law. We have stated that jury instructions “must be given when they are correct,
pertinent, and timely presented.” State v. Joy, 74 Ohio St.3d 178, 181, 657
N.E.2d 503 (1995), citing Cincinnati v. Epperson, 20 Ohio St.2d 59, 253 N.E.2d
785 (1969), paragraph one of the syllabus. We also stated that a “court must give
all instructions that are relevant and necessary for the jury to weigh the evidence
and discharge its duty as the factfinder.” Id., citing State v. Comen, 50 Ohio St.3d
206, 553 N.E.2d 640 (1990), paragraph two of the syllabus. Even so, it is clear
that there must be a limit. No purpose is served, for instance, by requiring courts
to present redundant jury instructions or instructions that are so similar to other
instructions to be presented as to be confusing.
{¶ 6} The trial court issued the following instruction with respect to
“enterprise” and “pattern of corrupt activity”:
Mr. Griffin is also charged with engaging in a pattern of corrupt
activity. So before you can find the defendant guilty you must find
beyond a reasonable doubt * * * that the defendant, from on or
about the 13th day of May 2006 to on or about the 2nd day of
April 2009, and in Montgomery County, Ohio, while employed by
or associated with an enterprise, conducted or participated in
directly or indirectly the affairs of the enterprise through a pattern
of corrupt activity * * *.
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Now 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.
Participate in. Participate means to take part in, and is not
limited to those who have directed the pattern of corrupt activity.
Participate encompasses those who have performed activities
necessary or helpful to the operation of the enterprise, whether
directly or indirectly, without an element of control.
Corrupt activity means engaging in, attempting to engage
in, conspiring to engage in, or soliciting, coercing or intimidating
another person to engaging in any of the following conduct:
Possession of one gram or more of cocaine, possession of
one gram or more of crack cocaine, possession of one gram or
more of heroin, trafficking in heroin, trafficking in cocaine,
trafficking in crack cocaine.
Now pattern of corrupt activity means two or more
incidents of corrupt activity, whether or not there has been a prior
conviction, that are related to the affairs of the same enterprise, are
not isolated, and are not so closely related to each other and
connected in time and place that they constitute a single event.
Thus, when deciding this matter of engaging in pattern of
corrupt activity, I would suggest that you first determine if the
State has met this burden of proving a pattern of corrupt activity
beyond a reasonable doubt.
***
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Now if you decide that there are two or more incidents of
corrupt activity, then you must further decide beyond a reasonable
doubt if they occurred while Mr. Griffin was employed by or
associated with an enterprise, conducted or participated in, directly
or indirectly, the affairs of the enterprise through a pattern of
corrupt activity. Again, each of these incidents must be considered
separate and apart from each other. Now if you find the State
failed to prove beyond a reasonable doubt any one of the essential
elements of the offense of engaging in a pattern of corrupt activity,
your verdict must be not guilty as to that charge.
{¶ 7} The entire jury charge in this case comprises over 46 pages of
transcript. The portion relevant to this case comprises three pages. The
definitions given to the jury for “enterprise,” “pattern of corrupt activity,” and
“corrupt activity” quote subsections of R.C. 2923.31.
{¶ 8} We are convinced that the jury instructions, when read and
understood together, adequately convey the entirety of the substantive law that
Griffin would have incorporated from another source. Griffin asked for a
definition of “enterprise” based on United States v. Turkette, 452 U.S. 576, 101
S.Ct. 2524, 69 L.Ed.2d 246 (1981), or Boyle v. United States, 556 U.S. 938, 129
S.Ct. 2237, 173 L.Ed.2d 1265 (2009), to convey that “enterprise” requires that the
people in the organization have acted in concert and with a common purpose. It is
difficult to summarize certain legal principles into terms that lay people can use to
reach factual conclusions. There are times when more information is not better.
There are times when more information is more likely to confuse than to inform a
jury.
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{¶ 9} The verdict also conveys the essence of the substantive law,
lending more support to our conclusion that the jury was appropriately and
adequately informed on the issue before us. It states as follows:
We the Jury, being duly impaneled, find the Defendant,
De’Argo Griffin, GUILTY of the offense of Engaging in a Pattern
of Corrupt Activity, in that we do find beyond a reasonable doubt
that the defendant, from on or about the 13th day of May, 2006, to
on or about the 2nd day of April, 2009, and in Montgomery
County, Ohio, while employed by or associated with an enterprise,
conducted or participated in, directly or indirectly, the affairs of the
enterprise through a pattern of corrupt activity.
{¶ 10} All the elements that Griffin sought to have included in the jury
instructions were included, though in a different form than he requested, and those
elements were also included in the verdict. According to Griffin, the key
elements that should have been included in the jury instructions are that the
members of the enterprise had to have a common purpose and that they had to
have acted in concert. We have no difficulty concluding that the concepts of
“common purpose” and “acting in concert” are included in the concepts of
“associating with an enterprise” and “conducting or participating in the affairs of
that enterprise.”
{¶ 11} Although the context was different, we note that “there are
limitations in the English language with respect to being both specific and
manageably brief, and it seems to us that although the prohibitions may not satisfy
those intent on finding fault at any cost, they set out in terms that the ordinary
person exercising ordinary common sense can sufficiently understand and comply
with, without sacrifice to the public interest.” United States Civ. Serv. Comm. v.
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Natl. Assn. of Letter Carriers, AFL-CIO, 413 U.S. 548, 578-579, 93 S.Ct. 2880,
37 L.Ed.2d 796 (1973). The Supreme Court was discussing whether the plaintiffs
in that case should have known that their conduct was prohibited. Id. at 579. The
court concluded that the plaintiffs could quibble about various definitions, but,
ultimately, they should have known that their conduct was proscribed. Id. at 578-
579.
{¶ 12} Similarly here, Griffin is quibbling about definitions—and it is
obvious that different definitions could have been given. We are somewhat
handicapped in that no alternative jury instructions were presented for our review.
Griffin’s reference to Boyle and Turkette, however, is sufficient for us to
understand the instructions that he sought. It is clear to us that the instructions
sought by Griffin were so similar in content to those that the court presented to
the jury that they were not “necessary for the jury to weigh the evidence and
discharge its duty as the factfinder.” Joy, 74 Ohio St.3d at 181, 657 N.E.2d 503,
citing Comen, 50 Ohio St.3d 206, 553 N.E.2d 640, at paragraph two of the
syllabus. We also conclude that the jury instructions offered, which included
extensive quotations from relevant statutes, sufficiently conveyed the law
regarding the term “enterprise.”
{¶ 13} Accordingly, we reverse the judgment of the court of appeals, and
we remand to the trial court for sentencing. We also answer the certified question
in the affirmative.
Judgment reversed
and cause remanded.
FARMER, O’DONNELL, KENNEDY, FRENCH, and O’NEILL, JJ., concur.
LANZINGER, J., dissents.
SHEILA FARMER, J., of the Fifth Appellate District, sitting for O’CONNOR,
C.J.
_________________________
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LANZINGER, J., dissenting.
{¶ 14} While I agree with the majority that “[t]here are times when more
information is not better” and that “[t]here are times when more information is
more likely to confuse than to inform a jury,” majority opinion at ¶ 8, this is not
one of those times.
{¶ 15} De’Argo Griffin was jointly tried with Anthony Franklin, and both
were convicted of drug-offense crimes and of engaging in a pattern of corrupt
activity under Ohio’s Racketeer Influences and Corrupt Organizations Act
(“RICO”), specifically R.C. 2923.32. Each defendant appealed. Franklin’s RICO
conviction was reversed on the ground that the jury instruction explaining the
term “enterprise” was inadequate.1 The state did not appeal that judgment.
Griffin’s convictions were affirmed at first,2 but after Franklin’s RICO conviction
was reversed, the court of appeals also reversed Griffin’s RICO conviction.3 I
would affirm the judgment of the court of appeals that treated both defendants
similarly.
{¶ 16} This is the type of case in which written instructions would have
helped the jury. How should the crucial element of “enterprise” be defined in a
state RICO case? R.C. 2923.32 provides that “[n]o person employed by, or
associated with, any enterprise shall conduct or participate in, directly or
indirectly, the affairs of the enterprise through a pattern of corrupt activity or the
collection of an unlawful debt.”
{¶ 17} I believe that the statutory language is insufficient. There is no
question that R.C. 2923.31(C) was read as part of the instructions. The trial court
stated during its charge that
1
State v. Franklin, 2d Dist. Montgomery Nos. 24011 and 24012, 2011-Ohio-6802.
2
2d Dist. Montgomery No. 24001, 2012-Ohio-503.
3
2d Dist. Montgomery No. 24001, 2013-Ohio-2230.
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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.
(Emphasis added.)
{¶ 18} As currently written, the statute is very broad, and although it does
not say exactly what an enterprise is, it tells us what it includes. It is something,
either a legal entity or not a legal entity. In fact, the Ninth District Court of
Appeals makes the confounding observation that the word “enterprise” may
“encompass a single individual.” See State v. Habash, 9th Dist. Summit No.
17073, 1996 WL 37752, *6 (Jan. 31, 1996).
{¶ 19} Griffin asked for additional language to convey to the jurors that
“enterprise” requires an entity in which people in the organization have acted in
concert with each other and with a common purpose. Presumably, this is to
distinguish the situation in which two individuals commit crimes at the same time,
but not necessarily together or for a common purpose. R.C. 2923.31(C) does not
include the defendant’s proposed recitation of federal law, on which Ohio’s RICO
statute was based. “[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, 26 Ohio St.3d
92, 497 N.E.2d 55 (1986), citing State v. Nelson, 36 Ohio St.2d 79, 303 N.E.2d
865 (1973). Griffin’s request for clarification of the term “enterprise” was not
redundant or confusing, because it supplemented the meaning of the term.
{¶ 20} An additional jury instruction on the term “enterprise” could have
been fashioned from language in Boyle v. United States, 556 U.S. 938, 945-946,
129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009) (an enterprise requires a showing of at
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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”). The requested instruction on the term
should have been given.
{¶ 21} I would therefore affirm the judgment of the court of appeals and
also answer the certified question in the negative.
_________________________
Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, Kirsten
A. Brandt, and Carley J. Ingram, Assistant Prosecuting Attorneys, for appellant.
Harris, Meyer, Heckman & Denkewalter, L.L.C., and Darrell L. Heckman,
for appellee.
Timothy Young, Ohio Public Defender, and Peter Galyardt, Assistant
Public Defender, for amicus curiae, Office of the Ohio Public Defender.
_________________________
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