State v. Malone
61 N.E.3d 46
Ohio Ct. App.2016Background
- Malone, operating as Frank’s Roofing (incorporated but later revoked), took substantial down payments from homeowners for nine roofing/repair jobs between 2013–2014 and failed to perform the work.
- Victims wrote checks to “Frank’s Roofing Inc.”; checks were deposited into business accounts controlled by Malone; some communications occurred from a business office.
- Indicted on a superseding 20-count bill including two RICO counts (engaging in a pattern of corrupt activity) and multiple theft counts; Malone pleaded not guilty.
- At close of the State’s case the trial court granted Crim.R. 29 acquittal on both RICO counts and one theft count; jury convicted Malone on the remaining 17 theft counts.
- Sentencing: six months’ prison on two counts (served concurrently) and five years’ community-control on seven other counts, with the court ordering the community-control term to be tolled (i.e., to run after release from prison).
- Appeal and cross-appeal: Malone argued the court lacked authority to toll/run community control consecutive to prison and failed to make consecutive-sentence findings; the State appealed the RICO acquittal ruling as to Count One.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Malone) | Held |
|---|---|---|---|
| Whether a court may order community-control sanctions to run after a prison term on separate counts | Court may structure sanctions for multiple offenses to impose prison on some counts and community control on others and order community control to commence after prison | Trial court lacked authority to "toll" community control; community control cannot be delayed absent statutory trigger and cannot run consecutive to prison without R.C. 2929.14(C)(4) findings | Court upheld sentencing structure: permitted prison on some counts and community control on others and allowed community control to be ordered to commence after completion of prison on separate counts; R.C. 2929.14(C)(4) findings not required here |
| Whether R.C. 2929.14(C)(4) findings are required when community control is ordered to run consecutive to a prison term on different counts | Not required because statute governs multiple prison terms, not a prison term plus community control | Malone argued those findings were required for any sentence structured as consecutive in effect | Court held the consecutive-sentence findings in R.C. 2929.14(C)(4) apply only to consecutive prison terms, not to community control ordered after prison |
| Whether Frank’s Roofing, Inc. could constitute an "enterprise" under R.C. 2923.31(C) for RICO purposes | The business (even if largely controlled by Malone) and business indicia (contracts, deposits, office) suffice for an enterprise; the corporation form or sole-proprietorship label is not determinative | Trial court treated the entity as a de facto sole proprietorship and held a lone individual cannot be an enterprise for RICO; Malone argued no enterprise for Count One | Appellate court held trial court erred as a matter of law to rule that an individual using a business cannot be an enterprise; statutory definition is broad and may include a sole proprietorship or corporation under these facts, but double-jeopardy prevents retrying the RICO count after acquittal |
| Whether reversal of the trial court’s legal ruling on the RICO element requires vacating the acquittal and remanding for retrial | State asked to review and reverse the Crim.R. 29 acquittal on legal grounds to permit retrial | Malone relied on double-jeopardy protection against retrial after acquittal | Court sustained State’s legal assignments (trial court erred in its legal reasoning) but affirmed the acquittal on double-jeopardy grounds, so no retrial allowed |
Key Cases Cited
- State v. Agner, 135 Ohio App.3d 286 (3d Dist. 1999) (reversed RICO conviction where evidence showed only a lone drug dealer with no association beyond himself)
- State v. Griffin, 141 Ohio St.3d 392 (2014) (Ohio Supreme Court: RICO jury instruction adequate; concepts like "common purpose" embodied in statutory language)
- State v. Stevens, 139 Ohio St.3d 252 (2014) (plurality addressing monetary-threshold interpretation under Ohio RICO and observing RICO aims at organized crime)
- State v. Bistricky, 51 Ohio St.3d 157 (1990) (court of appeals may exercise discretionary review under R.C. 2945.67 of legal rulings that produced an acquittal)
- State v. Hamilton, 97 Ohio App.3d 648 (3d Dist. 1994) (double-jeopardy bars retrial when acquittal has been entered)