719 N.E.2d 608 | Ohio Ct. App. | 1998
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In these consolidated appeals, defendant-appellant, Kenya Duncan, challenges her conviction, following a trial to a jury, on one count of engaging in a pattern of corrupt activity, in violation of R.C.
RENU agents observed the group drive to a nearby pharmacy. The pharmacy had, a Western Union money-transfer station from which a patron could send or receive money by wire transmission. If amounts over $3,000 were sent, identification of the sender had to be provided. The pharmacy clerk testified that several members of the group had patronized the Western Union service on three or four occasions, employing a unique folding of the cash used to pay for the money transfer.
On October 1, 1996, Duncan entered the pharmacy and prepared to send $2,800 to an addressee in Miami. On the form, Duncan identified herself as Sandra Cliphant. The clerk noticed that Duncan wore a necklace with the name Debbie on it. Duncan purchased the transfer with money folded in the same manner used by Carnell Morgan, another member of Duncan's group. Duncan left the pharmacy.
The group proceeded to a second pharmacy nearby with a Western Union service. There Duncan filled out a transfer form, identifying herself as Sandra Kerr and sent $2,500 in cash to Lataya Kerr in Miami.
While a RENU agent questioned the first pharmacy clerk, Duncan reentered the pharmacy. She explained that she had made a mistake in filling out the Western Union transfer form and that her last name was really Oliphant, not Cliphant. Both the agent and the clerk identified Duncan as the woman claiming to be Sandra Cliphant/Oliphant.
On October 2, 1996, RENU agents followed Duncan and three of her group to a check-cashing store. Before one of the group could complete an additional transfer, they were arrested. Three packets of bills, totalling $1,000 each, were confiscated.
Duncan was questioned by Officer Gramke and admitted making the Western Union transfers. She claimed, initially, that she made the transfers for one member of the group, but then declared that she gave a false name because she thought that the transfers might be illegal.
While awaiting trial, Duncan made statements to a cellmate, Vicky Alexander. Alexander testified that Duncan told her that the group brought marijuana and *83 cocaine into the country through New York. They hid the drugs in honey jars. In the last month of their operation, they sold $50,000 in illegal drugs in North Carolina. The group came to Cincinnati to dispose of the money gained in the drug sales.
At the conclusion of the state's case-in-chief, Duncan rested without presenting any evidence. The jury returned verdicts of guilty, Duncan was sentenced as appears of record, and these appeals followed.
While the trial court did not find that Duncan had no reasonable expectation of privacy in the discarded contents of the garbage bag, see State v. Brown (1984),
Review of the trial court's detailed findings of fact and legal conclusions entails a two-step inquiry. First, this court must review the trial court's findings of historical fact only for clear error, "giv[ing] due weight to inferences drawn from those facts" by the trial court. Ornelas v. United States (1996),
Here, the trial court's findings of fact are not clearly erroneous where the testimony reveals that the housekeepers retrieved the bags as they ordinarily would, without instruction from the RENU agents, and simply turned the bags over to the agents, with the permission of the on-duty manager. The trial court then correctly concluded that since the Fourth Amendment prohibits only those unreasonable searches involving state action, the evidence in this case was not seized in violation of Duncan's rights, as the seizure was not made at the behest *84
of or with the participation of any state official. Thus, the evidence was admissible in the state's case-in-chief. Burdeau v.McDowell (1921),
Duncan's second assignment of error, in which she claims the trial court erred by denying her motion to suppress statements she made to Officer Gramke following her arrest because the Miranda-rights waiver form was dated October 1, and the officer's summary of the interview was dated October 2, is overruled. The officer's unrebutted testimony was that Duncan was fully apprised of her rights before questioning. From these historical facts, the trial court correctly concluded that the statements were admissible in the state's case-in-chief. Coloradov. Connelly (1986),
In two interrelated assignments of error, Duncan challenges the weight and the sufficiency of the evidence adduced to support her convictions, and the denial of her Crim. R. 29 motion for judgment of acquittal made at the close of the state's case.
Duncan was indicted for and convicted of, inter alia, violating the Ohio RICO statute, R.C.
"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 activity or the collection of an unlawful debt."
An "enterprise". is defined as including "any individual, * * * 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.
A pattern of corrupt activity is "two or more incidents of corrupt activity * * * 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." R.C.
Duncan was also indicted and convicted for violating R.C.
"(1) No person shall conduct or attempt to conduct a transaction knowing that the property involved in the transaction is the proceeds of some form of unlawful *85 activity with the purpose of committing or furthering the commission of corrupt activity.
"(2) No person shall conduct or attempt to conduct a transaction knowing that the property involved in the transaction is the proceeds of some form of unlawful activity with the intent to conceal or disguise the nature, location, source, ownership, or control of the property or the intent to avoid a transaction reporting requirement under section
"(3) No person shall conduct or attempt to conduct a transaction with the purpose to promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on of corrupt activity."
Our review of the record fails to persuade us that the jury, sitting as the trier of fact, clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Tibbs v. Florida (1982),
While Duncan highlighted deficiencies in the testimony of the witnesses, the weight to be given the evidence and the credibility of the witnesses was primarily for the trier of fact to determine. State v. DeHass,
Moreover, the record reflects substantial, credible evidence from which the court could have reasonably concluded that all elements of the charged crimes were proven beyond a reasonable doubt. State v. Waddy (1991),
Duncan also argues that the trial court erred in denying her Crim. R. 29 motion for judgment of acquittal made at the close of the state's case. In its consideration of a Crim. R. 29 motion, the court must construe all evidence in a light most favorable to the state. State v. Evans (1992),
The evidence presented by the prosecution was such that reasonable minds could have concluded that Duncan engaged in a pattern of corrupt activity by violating the money-laundering statutes. Duncan was a member of a group that imported and sold illegal drugs. In September 1996, the group had gained $50,000 from the sale of illegal drugs. They stopped in Cincinnati to employ Western Union money transfers to deliver the money to Miami, Florida, so as to conceal the criminal origins of the funds. Duncan herself conducted at least two of the Western Union transmissions by employing a fictitious name.
Viewing the evidence in a light most favorable to the state, the trial court did not err in denying Duncan's motion for judgment of acquittal. Reasonable minds could have differed as to whether all the elements of the RICO and money-laundering offenses were proven, thus precluding an entry of judgment of acquittal. State v.Bridgeman. Therefore, the sixth assignment of error is overruled.
Duncan next claims that she was denied her constitutional right to a fair trial by a course of prosecutorial misconduct. She claims that the prosecutor repeatedly alleged, in argument and in questions posed to witnesses, and over her strenuous objections, that Duncan was engaged in drug trafficking despite the absence of an indictment for drug offenses and the absence of the seizure of any drugs from her.
The test for whether prosecutorial misconduct requires reversal is whether remarks were improper and, if so, whether they prejudicially affected the substantial rights of the accused.State v. Lott (1990),
The prosecutor's references to and questioning about drug trafficking were not erroneous because they provided the jury with the full background of the money-laundering and RICO offenses. Background information is admissible to give the jury the setting of the case. State v. Wilkinson (1980),
In this case, in particular, the state was required to prove beyond a reasonable doubt that Duncan was engaged in corrupt activity. R.C.
As the prosecutor's argument and questioning were not improper, given their relevance both to Duncan's motivation for making the Western Union transactions and to the background of the charged offenses, Duncan's fourth assignment of error is overruled.
In a related assignment of error, Duncan claims that the trial court erred by not granting her oral motion for a mistrial, made during the testimony of a law enforcement officer concerning a "96 Move," a technique employed by drug traffickers in which a car battery is hollowed out and used to transport illegal narcotics.
The state was attempting to elicit evidence of the condition of the battery removed from the van used by Duncan and her group. The trial court denied Duncan's motion, stating that there was considerable evidence of corrupt activity including questionable wire transfers and "of some involvement of one of the parties involved here with some people involved with drugs." Because the trial court expressed some sound reasoning process in denying the motion and did not act arbitrarily, unreasonably or unconscionably, this court will not reverse its decision. Statev. Widner (1981),
In Duncan's tenth assignment of error, she similarly alleges that the trial court committed plain error by allowing prejudicial "similar-acts evidence by co-defendants in as evidence against defendant."
We note as an initial matter that Duncan was tried without codefendants, although the other members of her criminal enterprise were indicted together and some of their pretrial motions were argued jointly. Duncan was indicted for money laundering and for engaging in a pattern of corrupt activity with others in violation of the Ohio RICO statute. The evidence of the actions of others, complained of in this assignment of error, was necessary to prove the state's case and to explain the immediate context of the offenses charged. As the admission of this evidence was not error and certainly did not rise to the level of plain error, the tenth assignment of error is overruled. Crim. R. 52; Evid. R. 103; State v. Wilkinson; State v. White.
In her fifth assignment of error, Duncan contends that her conviction should be vacated due to the unconstitutionally vague nature of the money-laundering statute, R.C.
As this court has noted:
"Under the vagueness doctrine, which is premised on the Fourteenth Amendment due-process requirement that a `law give fair notice of offending conduct,' a statute is void for vagueness if it `"fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute" * * * [or if] it encourages arbitrary and erratic arrests and convictions.' Papachristou v. Jacksonville (1972),
There are two types of vagueness challenges. In First Amendment cases, a statute is subject to invalidation for facial vagueness if it reaches a "substantial amount" of protected conduct. SeeKolender v. Lawson (1983),
Legislative enactments are presumed constitutional and are to be construed in conformity with the Ohio and federal Constitutions if at all possible. A court is under a duty to give a statute, whenever possible, a reasonable construction that would render it constitutionally definite. State v.Dorso (1983),
With respect to a criminal statute, the general rule is that "[o]ne to whose conduct a statute clearly applies may not successfully challenge it for vagueness," Parker v. Levy (1974),
According to Duncan, the money-laundering statute is infirm because of its vague definition of terms, including "transaction." To support her conviction for money laundering, the jury must have concluded, inter alia; that Duncan conducted or attempted to conduct a "transaction." The term appears in R.C.
"(L) `Transaction' includes a purchase, sale, trade, loan, pledge, investment, gift, transfer, transmission, delivery, deposit, withdrawal, payment, transfer between accounts, exchange of currency, extension of credit, purchase or sale of a payment instrument, use of a safe deposit box, or any other acquisition or disposition of property."
Duncan further questions the requirement, presumably of R.C.
Before examining the particular terminology that Duncan challenges, we note, as the trial court did, that the federal statute upon which the Ohio statute is modeled has withstood similar vagueness challenges. See, e.g., United States v. Haun
(C.A.6, 1993),
The statutory language objected to by Duncan is not vague. As noted, the standard is whether the statute fails to give a person of ordinary intelligence fair notice that his or her contemplated conduct is forbidden by statutes. Here, Duncan was a member of a group engaged in drug trafficking. They brought drugs into the country through New York City, hidden in honey jars. In September 1996, the group recorded $50,000 in drug sales. They stopped in Cincinnati to conduct wire transmissions of drug money to Miami, Florida. Duncan personally conducted several of the Western Union transmissions, under fictitious names, because she concluded the transmissions might be illegal. It is beyond serious dispute that fair notice of the illegality of the contemplated conduct was given to Duncan in particular.
Duncan further asserts that, in declaring unconstitutional the "liberal construction" provision of R.C.
In her eighth assignment of error, Duncan initially states that the trial court erred by refusing to grant her written request for special jury instructions on the definition of the word "enterprise," which included language that added a "continuity" requirement to the definition. She argues that the requested instructions were correct statements of law, pertinent to the case, and should have been given.
The trial court has the responsibility to give all jury instructions that are relevant and necessary for the jury to weigh the evidence and make findings of fact. See State v.Comen (1990),
Here the written jury instruction defining "enterprise" was a nearly verbatim recitation of the definition in R.C.
Duncan next claims that "the trial court improperly gave instructions regarding `conspiracy' and erroneous jury instructions on the Money Laundering statute." We assume that Duncan questions the "complicity" instruction given by the court. As the evidence adduced at trial could reasonably have been found to prove that Duncan aided and abetted the commission of money laundering, the court did not err. R.C.
Finally, the trial court gave the statutorily correct definition of a "pattern of corrupt activity" comprising two or more incidents of corrupt activity. R.C.
Duncan finally claims that the trial court erred by denying her motion for a new trial based upon the prejudicial and inflammatory remarks of a substitute, off-duty bailiff made to some of the jurors prior to their deliberations. *91
See Remmer v. United States (1954),
While waiting for the commencement of closing arguments, several jurors, including Michael Doddy, were approached by the substitute bailiff. The bailiff, who served the jurors during the first days of the trial, stated, according to Doddy, that he could not believe the trial was still going on. The bailiff expressed his belief that Duncan was "stupid for not pleading out." Five days later, following the return of the verdicts, Doddy discussed this matter with his neighbor, an assistant prosecutor for the city of Cincinnati. The matter was brought to the attention of the court in Duncan's motion for a new trial.
The trial court conducted a thorough voir dire of Doddy and the two other jurors who overheard some of the intemperate remarks made by the bailiff. Counsel for Duncan. and the state were permitted to question the jurors. Neither of the other two jurors heard the remarks about the trial length or the wisdom of Duncan going to trial. Doddy testified that the comments had no bearing on his deliberations. The trial court concluded that Duncan's rights to a fair trial were not prejudiced, in light of the court's instructions to the jury regarding what matters it could consider in its deliberations, and in light of Doddy's unrebutted statements.
As the trial court is granted broad discretion in assessing the impact of outside influences on jurors, State v. Phillips (1995),
As all of Duncan's assignments of error are without merit, the judgment of the trial court is affirmed.
Judgment affirmed.
DOAN, P.J., GORMAN and MARIANNA BROWN BETTMAN, JJ., concur. *92