State of Ohio v. Richard Burley
Court of Appeals No. WD-18-076
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY
Decided: September 25, 2020
2020-Ohio-4603
OSOWIK, J.
Trial Court No. 2017-CR-0345
Edward J. Stechschulte, for appellant.
DECISION AND JUDGMENT
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 (
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.
{¶ 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
{¶ 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
{¶ 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
{¶ 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
{¶ 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
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.
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}
{¶ 17} “Venue,” on the other hand, is governed by
{¶ 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
{¶ 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}
(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
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
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.
{¶ 22} Applying
{¶ 23} This leaves only Sections (A)(1) and (A)(7) to establish subject-matter jurisdiction. Again,
{¶ 24} Counts 2 through 14 allege violations of
{¶ 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
{¶ 27} Without citing any particular provision of
{¶ 28} Finally,
{¶ 29} For all of the above reasons, Burley‘s second assignment of error is found well-taken. Pursuant to
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.
{¶ 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.
(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
(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
| 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 | ||
The language of
R.C. 2923.31 and2923.32 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 ofR.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
$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
{¶ 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
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.
{¶ 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
{¶ 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.
{¶ 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.
Thomas J. Osowik, J.
Gene A. Zmuda, P.J.
CONCUR.