State v. Burley

[Cite as State v. Burley, 2020-Ohio-4603.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-18-076
Appellee Trial Court No. 2017-CR-0345
v.
Richard Burley DECISION AND JUDGMENT
Appellant Decided: September 25, 2020
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
Edward J. Stechschulte, for appellant.
*****
OSOWIK, J.
Introduction
{¶ 1} Following a jury trial, the defendant-appellant, Richard Burley, was
convicted by the Wood County Court of Common Pleas of one count of engaging in a
pattern of corrupt activity (R.C. 2923.32) and 13 counts of forgery (R.C. 2913.31(A)(3)).
The trial court sentenced Burley to an aggregate term of ten years, six months in prison.
On appeal, Burley raises twelve assignments of error, among them that the state failed to
present legally sufficient evidence that he engaged in a “pattern” of “corrupt activity,” as
those terms are defined in R.C. 2923.32. As set forth below, we agree that the state’s
evidence falls short in this case and therefore that his conviction must be vacated.
Separately, we also find that Burley’s forgery convictions must be vacated for the reason
that the trial court lacked subject-matter jurisdiction over those offenses. Accordingly,
we vacate Burley’s convictions and corresponding sentences in their entirety.
Background
{¶ 2} In October or November of 2016, “D.C.,” the victim in this case, was
reviewing his Huntington Bank statement and noticed a $600 deduction for a purchase at
Home Depot. Upon further review of his on-line account and monthly statement, D.C.
identified 21 unauthorized purchases at Home Depot, WalMart, Meijer, Sears, and
Target. D.C., who is a resident of Perrysburg Township in Wood County, contacted his
local bank branch in Lucas County. He also contacted the police.
{¶ 3} Perrysburg Township Police Detective Dustin Glass began an investigation
that included reviewing D.C.’s bank statement and then contacting each businesses’
“asset protection officer.” Detective Glass requested records pertaining to the
“transactional history” of each incident of fraud against D.C.’s account and any
surveillance videos from the respective stores. Three companies responded to Detective
Glass: Meijer, Walmart and Home Depot. All of the affected stores are located in
Michigan.
2.
{¶ 4} From Meijer, Detective Glass received a “summary of transactions.” The
transactions described in that document “tick[ed] and tie[d],” by amount and date, to six
fraudulent transactions set forth on D.C.’s Huntington Bank statement. Meijer also
provided Detective Glass with “still shots,” created from surveillance videos. The still
shots show what appears to be the same person, a man, presenting a check to the cashier.
The state pursued criminal charges with respect to four of the incidents, i.e., Counts 5, 8,
11, and 12.
{¶ 5} From Walmart, Detective Glass received evidence of five fraudulent
purchases. The evidence consisted of electronic “signature slips,” which included
information regarding the date, time and amount of the purchase. The slips all indicate
that the signor was “Michael Colter.” Walmart also provided still shots showing a person
presenting those checks at the time of check out. Again, the evidence appeared to “tick
and tie,” by date and amount, to the fraudulent transactions that appeared on D.C.’s bank
account. The indictment against Burley includes five counts of forgery relative to the
alleged fraudulent purchases at Walmart, i.e., Counts 3, 6, 9, 10, and 14.
{¶ 6} According to the state, Detective Glass also received records from Home
Depot in the form of paper records and still shots to support four criminal charges, i.e.,
Counts 2, 4, 7, and 13. The legal sufficiency of that evidence is at issue in this case and
addressed with respect to Burley’s supplemental assignment of error.
{¶ 7} When Detective Glass reviewed the still shots provided by the three stores,
he was “taken aback” and “immediately recognized” the person as the defendant, Richard
3.
Burley. Glass had recently conducted an “almost 45 minute[] face-to-face” interview of
Burley in a previous forgery case (Wood County Common Pleas case No. 2015-CR-015;
hereinafter “the 2015 case”). Records from the 2015 case—which were admitted in this
case—indicate that Burley was charged with four counts of forgery, in violation of R.C.
2913.31(A)(3) and (C)(1)(b). The victims in that case were an Ohio couple, “A.B.” and
“L.B.” Under a plea agreement, Burley pled guilty to two counts and was sentenced to
two years of community control on January 21, 2016.
{¶ 8} On July 20, 2017, Burley was charged with 14 offenses in this case. In
Count 1, Burley was charged with engaging in a pattern of corrupt activity, in violation of
R.C. 2923.32(A)(1) and (B)(1), a second-degree felony. Count 1 identified 17 “incidents
of corrupt activity,” all of them forgery offenses, in violation of R.C. 2913.31(A)(3) and
(C)(1)(b). The first four “incidents” stem from the 2015 case, just described.
Additionally, the indictment includes 13 “additional incidents of corrupt activity as set
forth in Counts Two through Fourteen of this indictment.” Those forgery counts charge
Burley with violating R.C. 2913.31(A)(3) and (C)(1)(b), all fifth-degree felonies. The
offenses relate to the fraud perpetrated against D.C. and are alleged to have occurred
between October 23 and November 16, 2016.
{¶ 9} Burley, a resident of Detroit, Michigan, was arrested on January 8, 2018.
The record does not indicate where Burley was arrested, other than it was outside of this
state and that he waived his right to challenge extradition to Ohio. The trial was held on
4.
October 1 and 2, 2018, during which the state called four witnesses to testify: D.C.,
representatives from Meijer and Walmart, and Detective Glass.
{¶ 10} Over the objection of defense counsel, Detective Glass was allowed to
testify about his 2015 interview of Burley. According to the detective, Burley admitted
that he “was given” nine Huntington Bank account numbers from “an individual in
Toledo, a female.” With an account number, Burley would “doctor” the last few digits,
add a Huntington Bank routing number and then create checks in the name of a fictitious
person. Next, Burley would “get expired Michigan IDs and * * * create a fake I.D.,” that
was in the same name as the check. The name used in the 2015 case was “Anthony
Knight.” Burley told the detective that he presented the forged checks to buy gift cards
and alcohol. Detective Glass testified that gift cards are frequently used in fraud cases
because they can be sold at less than face value, for cash.
{¶ 11} At the conclusion of the state’s case, Burley moved for an acquittal on
“subject matter jurisdiction and venue grounds.” Burley argued that the state failed to
show that “the offenses occurred in Ohio, let alone Wood County.” Alternatively, Burley
argued that the state failed to present legally sufficient evidence to support the four
forgery counts that were alleged to have occurred at Home Depot. The trial court denied
Burley’s motion.
{¶ 12} The jury found Burley guilty on all 14 counts, and the trial court moved
immediately to sentencing. By judgment entry dated October 9, 2018, the trial court
sentenced Burley to a prison term of four years as to Count 1 and six months as to each
5.
count set forth in Counts 2 through 14, all terms to be served consecutively, for an
aggregate term of ten and one-half years. It also sentenced him to three years of
postrelease control, pursuant to R.C. 2967.28.
{¶ 13} Burley appealed and raised 11 assignments of error for our review. In a
“supplemental brief,” he raised an additional assignment of error.
Assignment of Error No. 1: Appellant’s conviction for engaging in
a pattern of corrupt activity was not supported by sufficient evidence to
prove beyond a reasonable doubt each and every element of the crime
charged.
Assignment of Error No. 2: The trial court erred in denying
Appellant’s Rule 29 Motion for Acquittal as there was not sufficient
evidence to prove its burden as to venue as to Counts 2 through 14 of the
indictment.
Assignment of Error No. 3: Appellant’s conviction for forgery as
to Counts 2, 4, 7 and 13 were not supported by sufficient evidence to prove
beyond reasonable doubt each and every element of the crime charged.
Assignment of Error No. 4: The jury’s verdict finding Appellant
guilty of forgery as to Counts 2, 4, 7 and 13 was against the manifest
weight of the evidence.
Assignment of Error No. 5: Appellant was deprived of his right to
a fair trial by the admission of extensive details about Appellant’s prior
6.
conviction for the same offense in violation of Evid.R. 403 and Evid.R.
404.
Assignment of Error No. 6: The Trial Court abused its discretion
in denying Appellant’s Motion for Continuance made on the basis of alibi
evidence.
Assignment of Error No. 7: The Trial Court denied Appellant
effective assistance of counsel as guaranteed by the Sixth, and Fourteenth
Amendments to the United States Constitution and comparable provisions
of the Ohio Constitution.
Assignment of Error No. 8: The Trial Court abused its discretion
by admitting Mr. Burley’s prior confession from 2015 when the State did
not disclose its intent to use the confession until the day of trial.
Assignment of Error No. 9: The Trial Court failed to consider the
seriousness and recidivism factors of R.C. § 2929.12 and, therefore,
Appellant’s sentence is clearly and convincingly contrary to law.
Assignment of Error No. 10: The Trial Court erred in sentencing
Appellant to consecutive sentences pursuant to R.C. 2929.14(C)(4).
Assignment of Error No. 11: Appellant received ineffective
assistance of counsel as guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution and comparable provisions
of the Ohio Constitution.
7.
Supplemental Assignment of Error No. 1: Appellant’s conviction
for engaging in a pattern of corrupt activity was not supported by sufficient
evidence to prove beyond a reasonable doubt that Appellant engaged in a
“pattern of corrupt activity.”
The trial court lacked subject-matter jurisdiction over the forgery offenses.
{¶ 14} We address Burley’s assignments of error out of order. In his second
assignment of error, he claims that the trial court erred in denying his motion for an
acquittal as to the forgery counts set forth in Counts 2 through 14. Burley argues that
“the state failed to present sufficient evidence that any of the forgery charges * * * were
committed in Wood County.”
{¶ 15} Crim.R. 29(A) requires a trial court to order an acquittal “if the evidence is
insufficient to sustain a conviction of such offense or offenses.” The standard of review
for a decision regarding a Crim.R. 29 motion for acquittal is the same as that for a
decision on a sufficiency challenge, i.e.: “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. Gonzales, 6th Dist.
Wood No. WD-12-037, 2014-Ohio-545, ¶ 35.
{¶ 16} R.C. 2901.11 grants jurisdiction to Ohio courts over criminal offenses that
occur in Ohio. “Jurisdiction” refers to the judicial power to hear and determine a
criminal prosecution. State v. Williams, 53 Ohio App.3d 1, 4-5, 557 N.E.2d 818 (10th
Dist.1988). This is called “territorial jurisdiction” or “subject matter jurisdiction.” Id.
8.
at 5. The question of subject-matter jurisdiction “is so basic that it can be raised at any
stage before the trial court or any appellate court, or even collaterally in subsequent and
separate proceedings.” State v. Shrum, 7 Ohio App.3d 244, 245, 455 N.E.2d 531 (1st
Dist.1982).
{¶ 17} “Venue,” on the other hand, is governed by R.C. 2901.12. Venue refers to
“the appropriate place of trial for a criminal prosecution (or dispute) as between different
geographical subdivisions within a state, it being assumed that the court or courts
involved have subject matter jurisdiction.” Id. at 245, fn. 2. In other words, once
jurisdiction is established, then venue is determined.
{¶ 18} On appeal, Burley argues that the state failed to present sufficient evidence
that any element, of any of the forgery charges, was committed in Ohio. Both parties
frame Burley’s second assignment of error as one “concerning venue.” The state claims
that Wood County was the proper venue under R.C. 2901.12 (G), (H), and (I). Thus, it
argues that R.C. 2901.12(G) applies because elements of the forgery offenses were
committed in “any of two or more jurisdictions,” including Wood County; that R.C.
2901.12(H) applies because Burley committed the offenses as part of a continuing
“course of criminal conduct”; and/or that R.C. 2901.12(I) applies because the offenses
“involve[d] a computer [or] computer network” located in Wood County. The state’s
reliance on the venue statute is misplaced inasmuch as the venue statute “‘presupposes
that the state has jurisdiction to try an offender, and speaks to the question of where the
trial is to take place.’” (Emphasis in the original.) State v. Yarbrough, 104 Ohio St.3d 1,
9.
2004-Ohio-6087, 817 N.E.2d 845, ¶ 46, quoting 1974 Committee Comment to H 511.
See also State v. Cody, 8th Dist. Cuyahoga No. 100797, 2015-Ohio-2261, ¶ 15
(Remarking that R.C. 2901.12 does not establish territorial jurisdiction and that “[t]he
General Assembly did not include ‘course of criminal conduct’ in R.C. 2901.11.”).
{¶ 19} Therefore, this court must determine whether Ohio had jurisdiction over the
state’s prosecution of 13 forgery counts. “Subject matter jurisdiction is a question of law,
which we review de novo.” (Quotations omitted.) Cody at ¶ 11.
{¶ 20} R.C. 2901.11, entitled “Criminal law jurisdiction,” provides, in part,
(A) A person is subject to criminal prosecution and punishment in
this state if any of the following occur:
(1) The person commits an offense under the laws of this state, any
element of which takes place in this state.
(2) While in this state, the person attempts to commit, or is guilty of
complicity in the commission of, an offense in another jurisdiction, which
offense is an offense under both the laws of this state and the other
jurisdiction, or, while in this state, the person conspires to commit an
offense in another jurisdiction, which offense is an offense under both the
laws of this state and the other jurisdiction, and a substantial overt act in
furtherance of the conspiracy is undertaken in this state by the person or
another person involved in the conspiracy, subsequent to the person’s
entrance into the conspiracy. In any case in which a person attempts to
10.
commit, is guilty of complicity in the commission of, or conspires to
commit an offense in another jurisdiction as described in this division, the
person is subject to criminal prosecution and punishment in this state for
the attempt, complicity, or conspiracy, and for any resulting offense that is
committed or completed in the other jurisdiction.
(3) While out of this state, the person conspires or attempts to
commit, or is guilty of complicity in the commission of, an offense in this
state.
(4) While out of this state, the person omits to perform a legal duty
imposed by the laws of this state, which omission affects a legitimate
interest of the state in protecting, governing, or regulating any person,
property, thing, transaction, or activity in this state.
(5) While out of this state, the person unlawfully takes or retains
property and subsequently brings any of the unlawfully taken or retained
property into this state.
(6) While out of this state, the person unlawfully takes or entices
another and subsequently brings the other person into this state.
(7) The person, by means of a computer, computer system, computer
network, telecommunication, telecommunications device,
telecommunications service, or information service, causes or knowingly
permits any writing, data, image, or other telecommunication to be
11.
disseminated or transmitted into this state in violation of the law of this
state. (Emphasis added.)
{¶ 21} The General Assembly intended to grant Ohio broad jurisdiction. R.C.
2901.11(G) (“This section shall be liberally construed, consistent with the constitutional
limitations, to allow this state the broadest possible jurisdiction over offenses and persons
committing offenses in, or affecting this state.”).
{¶ 22} Applying R.C. 2901.11(A) to the facts of this case, we find that Sections
(A)(2), (A)(5) and (A)(6) do not apply because they require the defendant’s physical
presence “in[] this state.” There is no evidence that Burley was ever in Ohio during any
point of his forgery crime spree. Likewise, this case does not involve the omission of a
legal duty imposed by the state of Ohio, and therefore, Section (A)(4) does not apply.
Similarly, because the indictment does not allege that Burley was engaged in a
conspiracy as to any of the forgery counts in this case, Section (A)(3) does not apply.
See, e.g., Cody at ¶ 22-23.
{¶ 23} This leaves only Sections (A)(1) and (A)(7) to establish subject-matter
jurisdiction. Again, R.C. 2901.11(A)(1) confers jurisdiction to this state when the
defendant commits an offense in violation of Ohio law, “any element of which takes
place in this state.” See, e.g., Shrum, 7 Ohio App.3d at 245, 455 N.E.2d 531. (Trial
court in Ohio had subject-matter jurisdiction to try defendant for rape that occurred in
Kentucky because an element of the offense, i.e., the employment of force and threat of
force began in Ohio where the victim was abducted).
12.
{¶ 24} Counts 2 through 14 allege violations of R.C. 2913.31(A)(3), which
provides, in part, that “[n]o person, with purpose to defraud, or knowing that the person is
facilitating a fraud, shall do any of the following: * * * (3) Utter, or possess with purpose
to utter, any writing that the person knows to have been forged.” A person who violates
Section (A)(3) is guilty of forgery. R.C. 2913.31(C)(1)(a). To “utter” is “to issue,
publish, transfer, use, put or send into circulation, deliver, or display.” R.C. 2913.01(H).
The acts of forging and uttering are separate and distinct crimes. State v. Ferrette, 18
Ohio St.3d 106, 109, 480 N.E.2d 399 (1985). Thus, one who forges may not necessarily
utter and one who utters a forged document need not have created the spurious writing.
State v. McGhee, 37 Ohio App.3d 54, 57, 523 N.E.2d 864 (8th Dist.1987).
{¶ 25} As to each forgery offense in this case, the indictment alleged that Burley
“with purpose to defraud, or knowing that he was facilitating a fraud on [D.C.], did utter,
or possess with purpose to utter, a writing, to wit: * * * that Richard Burley knew to have
been forged.” The 13 forgery counts are distinguished only by their particular facts, i.e.,
the date of the alleged offense, the check number, and the amount. Burley is alleged to
have uttered all 13 forged checks at stores located in Michigan.
{¶ 26} We agree with Burley that “the entirety of [all of] his forgery offenses”
were committed in Michigan. “An offense is completed and criminal liability attaches
and is irrevocable as soon as the actor satisfies all the elements of an offense.” State v.
Capone, 3d Dist. Crawford No. 3-03-18, 2003-Ohio-5302, ¶ 11. Thus, when Burley
“transferr[ed], use[d] * * * delivere[d] or display[ed]” those 13 checks, knowing that they
13.
were forged, Burley committed the offense of forgery under R.C. 2913.31(A)(3). See
Ferrette at 109 (The “presentation of [an altered lottery] ticket for purposes of receiving
cash, knowing that it has been so altered, constitute[s] * * * uttering under R.C.
2913.31(A)(3).”). See also Capone at ¶ 11 (“Under R.C. 2913.31(A)(3), [the defendant]
completed the crime and criminal liability attached when he possessed [the check], which
he knew to be forged, with the intent to utter or transfer that check. An exchange for
value is not element of the offense.”). Because none of the elements of any of the
forgery offenses charged in Counts 2 through 14 “[took] place in this state,” R.C.
2901.11(A)(1) does not apply.
{¶ 27} Without citing any particular provision of R.C. 2901.11, the state suggests
that this case was properly tried in Ohio because “[D.C.] and his account are in Wood
County.” But, Burley was not charged with a theft offense. Moreover, theft is not a
necessary element of the crime of forgery. Therefore, the fact that the victim and his
bank account are located in Ohio is irrelevant as to whether Burley committed the crime
of forgery. See, e.g., State v. Lyons, 9th Dist. Summit No. 11779, 1985 WL 10599(Mar. 6, 1985) (Affirming dismissal of indictment under R.C. 2901.11(A)(1) where the
defendant was charged with one count of receiving stolen property and none of the
elements of that offense occurred in Ohio. The fact that stolen property received by the
defendant had been obtained through the commission of a theft offense in Ohio is
“irrelevant and fails to vest jurisdiction in Ohio courts.”).
14.
{¶ 28} Finally, R.C. 2901.1(A)(7) confers jurisdiction in Ohio if the defendant “by
means of a computer * * * causes * * * any writing, data [or] image * * * to be * * *
transmitted into [Ohio]” in violation of Ohio law. As discussed above, Burley’s crimes
were completed when he presented the forged checks for payment, which he
accomplished in person, at various Michigan stores, and not through use of a computer.
The fact that the checks were then fed into a check reader and approved, and money was
subsequently transferred out of D.C.’s Ohio account has no bearing on the crime of
forgery. Accordingly, because no element of Burley’s forgeries, identified in Counts 2
through 14, involved the use of a computer, Section (A)(7) does not apply either.
{¶ 29} For all of the above reasons, Burley’s second assignment of error is found
well-taken. Pursuant to R.C. 2901.11, we find that the state of Ohio lacked subject-
matter jurisdiction over Counts 2 through 14 of the indictment. Therefore, Burley’s
convictions, as to those counts, and their corresponding sentences, must be and hereby
are ordered vacated. Accord Cody, 8th Dist. Cuyahoga No. 100797, 2015-Ohio-2261, at
¶ 29 (Vacating conviction for 11 counts of identity fraud where “there was no evidence
that [the defendant] used [the] identities or identification information in furtherance of his
criminal enterprise in laundering money * * * that affected the state of Ohio.”).
The state failed to establish the existence of a pattern of corrupt activity.
{¶ 30} Burley presents multiple challenges to his conviction with respect to
Count 1, the Ohio RICO Act offense. R.C. 2923.32(A)(1) provides, in part, that “[n]o
person employed by, or associated with, any enterprise shall conduct or participate in,
15.
directly or indirectly, the affairs of the enterprise through a pattern of corrupt activity
* * *.” Like its federal counterpart, the aim of the Ohio RICO Act is to eradicate
organized crime. State v. Schlosser, 79 Ohio St.3d 329, 681 N.E.2d 911 (1998) (Holding
that R.C. 2923.32 is a strict liability offense).
{¶ 31} We begin with Burley’s “supplemental assignment of error,” in which he
argues that the state failed to present legally sufficient evidence to establish the “pattern
of corrupt activity” element of the offense. This element encompasses not only a pattern
but a corrupt activity. R.C. 2923.31 defines those terms as follows:
(E) “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.
***
“Corrupt activity” means engaging in, attempting to engage in,
conspiring to engage in, or soliciting, coercing, or intimidating another
person to engage in any of the following: * * * (2) Conduct constituting any
of the following: * * * (c) Any violation of section * * * 2913.31 * * *
when the proceeds of the violation * * * or the value of the contraband or
other property illegally * * * purchased in the violation exceeds one
thousand dollars or any combination of violations described in division
16.
(I)(2)(c) of this section when the total proceeds of the combination of
violations * * * or value of the * * * property illegally * * * purchased in
the combination of violations exceeds one thousand dollars. (Emphasis
added.)
{¶ 32} In the indictment, the state claimed a total of 17 “incidents” of corrupt
activity, all of them forgeries under R.C. 2913.31: four from the 2015 case and an
additional 13 incidents “as set forth in Counts Two through Fourteen.” At trial, the state
presented evidence with respect to only two of the forgeries from 2015 and therefore it
presented, at most, evidence of 15 incidents of corrupt activity. (See state’s Ex. 10).
Without addressing the sufficiency of any particular incident, we identify each incident in
the table below:
Incident No. Location / Store Victim Amount
1 JC Penney A.B. and L.B. $90.97
2 Meijer A.B. and L.B. $117.44
3 Home Depot D.C. $106.63
4 Walmart D.C. $89.31
5 Home Depot D.C. $98.75
6 Meijer D.C. $96.98
7 Walmart D.C. $155.11
8 Home Depot D.C. $116.93
9 Meijer D.C. $83.72
10 Walmart D.C. $104.63
11 Walmart D.C. $102.92
12 Meijer D.C. $65.79
13 Meijer D.C. $83.72
14 Home Depot D.C. $630.83
15 Walmart D.C. $103.16
Total $2,046.89
17.
{¶ 33} Burley argues that the state failed to produce evidence of at least two
corrupt activities, i.e., “a pattern,” where the total value of the illegally purchased
property, as to each corrupt activity, exceeds $1,000. In support, Burley relies upon State
v. Liggins, 6th Dist. Sandusky No. 16CAS32, 2018-Ohio-243. There, the state alleged
three incidents of corrupt activity, all of them for drug trafficking, in violation of R.C.
2925.03. The evidence submitted at trial established that the proceeds for the three
incidents amounted, in total, to $1,050. Id. at ¶ 17. The court found that, because the
proceeds “exceeded $1,000,” the state established that the defendant “committed a
corrupt activity.” But, the court also found that a “pattern of corrupt activity” requires
the state to produce evidence of two or more corrupt activities, which was not present. It
explained,
The language of R.C. 2923.31 and 2923.32 is plain and clear. A
pattern of corrupt activity requires two or more corrupt activities. R.C.
2923.31(E). [Thus], [i]n order for drug trafficking in violation of R.C.
2925.03 to constitute a corrupt activity the total proceeds of a violation of
that statute or a combination of violations of that statute must exceed
$1000. R.C. 2923.31(I)(2)(c). When those definitions are read in
conjunction with each other, in order for the state to establish a pattern of
corrupt activity it must produce evidence of at least two corrupt activities
where the proceeds of each corrupt activity exceeded $1,000. If the general
assembly had intended for the pattern of corrupt activity proceeds to exceed
18.
$1,000, the “exceeds one thousand dollars” element would have been
included as part of the definition of “pattern of corrupt activity,” rather than
as part of the definition of “corrupt activity.” The General Assembly’s
deliberate act of defining “corrupt activity” means, at the minimum, the
proceeds of “pattern of corrupt activity” must be at least $2,000.02, since
the proceeds of each “corrupt activity” must at least be $1,000.01. Id. at
¶ 23.
{¶ 34} In response, the state argues that Liggins’ interpretation of “pattern of corrupt
activity” was “wrong” and asks this court to ignore it.
{¶ 35} First, contrary to the state’s argument, Liggins, did not hold that “each and
every transaction * * * must be above * * * $1,000.” (Appellee brief at 38). Such a
finding would run contrary to the explicit language of R.C. 2923.31(I)(2)(c), which
provides that a corrupt activity may include “any combination of violations * * * when
the total * * * value of the * * * property illegally * * * purchased in the combination of
violations exceeds one thousand dollars.” (Emphasis added.) Id. Indeed, the court in
Liggins found sufficient evidence of a single corrupt activity precisely because it
aggregated the individual drug transactions. We also disagree with the state’s argument
that Liggins is in “direct conflict” with the Ohio Supreme Court’s decision in State v.
Stevens, 139 Ohio St.3d 247, 2014-Ohio-1932, 11 N.E.3d 252, ¶ 18 (“[I]n order to obtain
a conviction for engaging in a pattern of corrupt activity, R.C. 2923.31(I)(2)(c) and
2923.32(A) must be construed so that the stated threshold amount applies to each
19.
individual, and not to the enterprise as a whole.”). Stevens presented a different issue on
appeal than the one presented in Liggins and this case. Finally, for the record, we agree
with Liggins that the language of R.C. 2923.31 and 2923.32 is “plain and clear.”
Accordingly, we find that, in order for the state to establish that a “pattern of corrupt
activity” existed in this case, it must point to evidence in the record of at least two corrupt
activities, where the value of each corrupt activity, i.e., the property illegally purchased,
exceeds $1,000, for a total value of at least $2,000.02).1
{¶ 36} With the above in mind, we turn to the evidence presented in this case. The
aggregate value of the property illegally purchased by Burley, i.e., the 15 incidents of
forgery set forth in the table, equals $2,046.89. Burley, however, disputes the legal
sufficiency of the evidence with respect to the Home Depot forgeries, identified in
Counts 2, 4, 7, and 13 (which correspond in the table to Incident Nos. 3, 5, 8, and 14).
{¶ 37} According to D.C.’s bank records, there were six fraudulent purchases
made at Home Depot against his account. The state pursued four of them. After two
days of trial, when no Home Depot representative appeared to testify, the court
1
In calculating whether the monetary threshold required by R.C. 2923.31(E) and (I)(2)(c)
was met, Burley separates the 2015 forgeries from the forgeries set forth in Counts 2
through 14, choosing to aggregate them separately. (“Here the total proceeds from
Counts 2 through 14 * * * equals $1,838.48, * * * but the two checks [from the 2015
case] equaled $208.41”). The state offers no guidance on how the incidents should be
grouped. We take no position on this, other than to recognize that the statute provides
that, in determining whether the threshold is met, we may consider “any combination of
violations.” Therefore, as in Liggins, we are concerned with the bottom line, i.e., whether
the value of the illegal purchases is “at least $2,000.02,” without regard to when the
forgeries occurred. Id. at ¶ 23.
20.
disallowed the admission of any Home Depot records purporting to show Burley
presenting four checks for purchase that correlated to the fraud set forth on D.C.’s bank
statements. Despite promising that it would “voluntarily dismiss [the Home Depot]
forgery counts” in the event the witness did not appear, the state chose instead to argue
that there was sufficient circumstantial evidence to allow the jury to decide Burley’s guilt
or innocence as to those counts. The state relied exclusively on the following exchange
with Detective Glass:
Q. So you obtained similar information from Home Depot?
A. I did. I obtained transactional history and video surveillance from
Home Depot also, sir.
Q. Without getting into the details, were there any surprises to you?
A. No, there was not.
{¶ 38} Proof beyond a reasonable doubt as to each element of an offense is
required before a trier of fact may make a finding of guilt. R.C. 2901.05(A). Here, there
is no evidence in the record from which a rational factfinder could have found beyond a
reasonable doubt that Burley uttered the specific checks identified in the Home Depot
counts of the indictment, e.g., check No. 1038 in the amount of $630.83 on or about
November 16, 2016, as alleged in Count 13. Accordingly, we find that the Home Depot
incidents may not be included for purposes of calculating the “value of property illegally
purchased.” Accord State v. Morris, 143 Ohio App.3d 817, 759 N.E.2d 394 (10th
Dist.2001) (Although there was evidence that former employee forged two checks, there
21.
was insufficient evidence that he forged a third check where the employer could not
identify the defendant’s signature on the back of the check in question and despite the
fact “there was no other reasonable explanation for [the check] passing through [the
defendant’s] personal bank account.”).
{¶ 39} When we deduct the value of the Home Depot forgeries, $953.14, from the
total value of all the alleged forgeries, $2,046.89, the total is $1,093.75. That amount is
sufficient to establish a single incident of corrupt activity but not a second. Because there
was no evidence of a second corrupt activity, the state failed to establish a “pattern of
corrupt activity.” Therefore, Burley’s conviction is premised upon legally insufficient
evidence and must be vacated. Burley’s supplemental assignment of error is found well-
taken.
Conclusion
{¶ 40} In sum, we find Burley’s second assignment of error well-taken, in part.
To the extent that Burley challenges the trial court’s subject-matter jurisdiction over the
forgery offenses, set forth in Counts 2 through 14 of the indictment, we agree that the
court lacked jurisdiction under R.C. 2901.11, and therefore those convictions and
corresponding sentences are hereby vacated.
{¶ 41} We also find Burley’s supplemental assignment of error well-taken.
Therefore, we vacate his conviction and sentence for the engaging in a pattern of corrupt
activity offense, as set forth in Count 1 of the indictment.
22.
{¶ 42} In light of our findings with respect to Burley’s second and supplemental
assignments of error, assignments of error Nos. 1 and 3 through 11 are moot, and we
decline to address them. The state is ordered to pay the cost of this appeal pursuant to
App.R. 24.
Judgment vacated.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
23.