685 N.E.2d 1307 | Ohio Ct. App. | 1996
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *648 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *649 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *650 Defendant Angel Mendez Feliciano has appealed from his convictions in the Lorain County Common Pleas Court on three counts of engaging in a pattern of corrupt activity, one count of conspiracy to engage in a pattern of corrupt activity, five counts of gambling, and one count of operating a gambling house. He has argued that (1) his convictions on the three counts of engaging in a pattern of corrupt activity were not supported by sufficient evidence and were against the manifest weight of the evidence; (2) the jury's finding that he had a firearm on or about his person or under his control during the commission of engaging in a pattern of corrupt activity was not supported by sufficient evidence and was against the manifest weight of the evidence; (3) the trial court incorrectly instructed the jury on "legally inadequate predicate offenses"; (4) the indictment was legally insufficient because it failed to specify what acts allegedly constituted the collection of an unlawful debt; (5) his conviction of conspiracy to engage in a pattern of corrupt activity was not supported by sufficient evidence and was against the manifest weight of the evidence; and (6) the trial court incorrectly denied his motion to suppress evidence seized from his pickup truck and residence.1
This court affirms the judgment of the trial court because (1) defendant's convictions on the three counts of engaging in a pattern of corrupt activity were supported by sufficient evidence and were not against the manifest weight of the evidence; (2) the jury's finding against defendant on the firearm specification was supported by sufficient evidence and was not against the manifest weight of the evidence; (3) the instruction on the predicate acts was not plain error; (4) the indictment against defendant adequately apprised him of the charges against him; (5) defendant's conviction of conspiracy to engage in a pattern of corrupt activity was supported by sufficient evidence and was not against the manifest weight of the evidence; and (6) the trial court did not err by denying defendant's motion to suppress evidence seized during the search of his pickup truck and residence. *651
In addition to watching defendant's businesses, each day the police searched the trash outside defendant's residence, Teresa Gonzalez's residence, and the Royal Corona Lounge. They found betting slips with three-digit numbers and amounts bet, records of winning numbers and payouts, and Pick-Three Ohio Lottery tickets.2 By comparing the winning numbers in the Ohio Lottery game and the winning numbers indicated in the organization's records, the police determined that people who placed bets on the three-digit number that was pulled in the Ohio Lottery drawing on a particular date won a certain amount of money for that day's bet. Also, the police were able to match the names or initials of some of the individuals on the betting slips with people who had been seen dropping off envelopes at the Royal Corona Lounge and Angel's Tobacco Shop. The betting slips indicated that the individuals whose names or initials were on the slips kept twenty percent of the total amount bet. This fact led the police to believe that the individuals who delivered the betting slips were "runners" for the organization who received a commission for placing bets for others.
Pursuant to a warrant, the police, on March 28, 1995, searched the Royal Corona Lounge, Angel's Tobacco Shop, William Acevedo's residence, Teresa Gonzalez's residence, and defendant's residence. They confiscated from the Royal Corona Lounge blank betting books and betting slips that had been dropped through the mail slot in the back door, from the tobacco shop betting *652 slips and cash, from defendant's residence $1.6 million in cash and boxes of blank betting books, and from Teresa Gonzalez's house $140,000 in cash and betting slips. The majority of betting slips that were confiscated were dated March 28, 1995, the date of the search. The police also searched a pickup truck of defendant's that was parked near the Royal Corona Lounge. They found $20,000 in cash, betting slips, and a loaded revolver. Based on evidence seized during the execution of the warrants, the police estimated that the gambling operation had a gross annual income of $3,425,343 and annual profits of $896,069.72.
On April 5, 1995, defendant was charged by a superseding indictment with three counts of engaging in a pattern of corrupt activity, violations of R.C.
The case was tried to a jury beginning August 29, 1995.3 On September 8, 1995, the jury found defendant guilty of three counts of engaging in a pattern of corrupt activity, one count of conspiracy to engage in a pattern of corrupt activity, five counts of gambling, and one count of operating a gambling house. The jury found him not guilty of carrying a concealed weapon. The jury also specifically determined that defendant had a firearm on or about his person or under his control during the commission of the first count of engaging in a pattern of corrupt activity. Defendant timely appealed to this court.
"An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is 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. Jenks (1991),
"[A]n appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, 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." State v.Otten (1986),
Defendant was charged with separate violations of R.C.
"Corrupt activity" is defined at R.C.
Defendant has asserted that the state failed to prove a felony as an underlying "corrupt activity." The indictment against defendant specified underlying "corrupt activities" of gambling, a violation of R.C.
Defendant is correct that, to the extent that none of his alleged predicate acts was a felony, he could not have been convicted of violating R.C.
Defendant has further argued that the state failed to prove the alternative basis of criminal liability under the three sections at issue, that the alleged enterprise was involved in the collection of an unlawful debt. "Unlawful debt" is defined, in part, at R.C.
As for the first prong of defendant's argument, he has asserted that, in order for the state to prove that the alleged enterprise collected an unlawful debt, it had to introduce evidence that persons who were not part of the enterprise owed money to it. Otherwise, according to defendant, the alleged collection would simply have been the movement of money within the enterprise itself. For support, he has relied on the Second Circuit United States Court of Appeals' interpretation of "collection of unlawful debt" as it is used in the Racketeer Influenced and Corrupt Organizations Act ("RICO"), Section 1961(6), Title 18, U.S.Code. In United States v. Giovanelli
(C.A.2, 1991),
"Indeed, if [the debtors] were only runners, we would have no difficulty rejecting the jury's finding. However, reviewing the evidence `in the light most favorable to the government, and construing all permissible inferences in its favor,' UnitedStates v. Puzzo,
Defendant has argued that, unlike in the Giovanelli case, there was no evidence presented that any of the runners in this case placed bets. The state introduced evidence that tended to show money owed by five individuals to the leaders of the gambling operation: Thelma Jones, Pablo Perez, Gilbert Shields, Joseph Moon, and Judy Thompson. Of these individuals, Thelma Jones, Pablo Perez, Joseph Moon, and Judy Thompson were listed in the indictment against defendant as being members of the enterprise. In addition, Thelma Jones and Pablo Perez were codefendants at defendant's trial. Gilbert Shields, although not listed in the indictment as a member of the enterprise, was alleged at trial to have been a "runner" for the organization. The state presented evidence that these five individuals failed to turn over to the leaders of the organization the full value of bets made by third parties. It did not, however, introduce any evidence in its case-in-chief that these five individuals also had placed bets on their own behalf. Thelma Jones, one of the codefendants at defendant's trial, testified as a defense witness in her own case that she was not a runner. According to her, she placed bets only for herself. This evidence cannot be considered, however, in determining whether the trial court incorrectly denied defendant's motion for acquittal at the close of the state's case. It will be considered in connection with defendant's manifest weight argument.
Although there was no evidence in the state's case-in-chief that runners were also placing their own bets, there was sufficient evidence for the jury to have found that bettors who were not members of the enterprise were extended credit. Joseph Moon, who testified in the state's case-in-chief, explained that monies owed to the leaders of the enterprise were frequently subtracted from future winnings. There was also evidence that runners would add money owed the leaders of the enterprise to the amount of money bet on a later date. In the case of debts that were satisfied by subtracting their amounts from future winnings, it would be reasonable to infer that, if the leaders of the enterprise satisfied the debt in this manner, it was the bettors, not the runners, who owed them money. After all, it was the bettors, not the runners, who were entitled to any gambling *656 winnings. The runners received their commission from the amount bet, not from a share of the winnings.
Since there was evidence in the state's case-in-chief that bettors owed money to the organization, the trial court correctly denied defendant's motion for acquittal at the close of the state's case. As for defendant's manifest weight argument, the jury could have reasonably concluded, based on Moon's testimony and Jones's assertion that she only placed her own bets, that individuals not connected to the enterprise were betting on credit.
The second part of defendant's argument is that there was no evidence presented that the enterprise "induced" a debtor to repay a debt. Defendant has asserted that the mere receipt of payment for a gambling bet is not collection of a debt within the meaning of R.C.
Defendant's convictions for engaging in a pattern of a corrupt activity were supported by sufficient evidence and were not against the manifest weight of the evidence. His first assignment of error is overruled.
Defendant's third assignment of error is that the trial court incorrectly instructed the jury on "legally inadequate predicate offenses" for the three counts of engaging in a pattern of corrupt activity. The three counts in the indictment specified that the predicate offenses were gambling and operating a gambling house. These offenses are misdemeanors unless the defendant was previously convicted of a gambling offense. R.C.
Defendant did not object to the trial court's instruction on the predicate acts and thus waived any right to assert it as error on appeal except to the extent that it constituted plain error. State v. Loza (1994),
According to defendant, he could have been convicted of violating R.C.
Furthermore, to the extent that R.C.
The purpose of an indictment is to afford a defendant notice of the charges against him. State v. Burkitt (1993),
By the indictment, defendant was charged with three counts of engaging in a pattern of corrupt activity and one count of conspiracy to engage in a pattern of corrupt activity. With respect to the "collection of an unlawful debt" element of those offenses, the indictment tracked the language of R.C.
R.C.
"(A) No person, with purpose to commit or to promote or facilitate the commission of * * * engaging in a pattern of corrupt activity, * * * shall do either of the following:
"(1) With another person or persons, plan or aid in planning the commission of any such offense;
"(2) Agree with another person or persons that one or more of them will engage in conduct that facilitates the commission of any such offense."
By the indictment against him, defendant was charged with conspiracy to engage in a pattern of corrupt activity, a violation of R.C.
For support, defendant has relied on United States v.Ruggiero (C.A.2, 1984),
The First Circuit United States Court of Appeals has also adopted this view. See United States v. Winter (C.A.1, 1981),
"Section 1962(d) explicitly prohibits conspiracies to violate RICO. The natural reading of that phrase is the proscription of any agreement the object of which is the conducting of or participation in the affairs of an enterprise through a pattern of racketeering activity. In other words, rather than creating a new law of conspiracy, RICO created a new objective for traditional conspiracy law — a violation of sections 1962(a), (b), or (c). Requiring an agreement personally to commit two predicate acts would establish a new form of conspiring in contradistinction to section 1962(d)'s base in traditional conspiracy law. Under the defendants' theory section 1962(d) would require not only an agreement to join in the conspiracy's objective, a RICO violation, but also an agreement to personally commit the underlying offense through the commission of two predicate acts. This involves a degree in the involvement in the affairs of the conspiracy that is not required in any other type of conspiracy, where agreeing to a prescribed objective is sufficient." (Citations omitted.) Id.,
This court agrees with the reasoning of the majority of the federal circuit courts of appeal. Consequently, to support a conviction of conspiracy to engage in a pattern of corrupt activity, the state does not have to prove that a defendant agreed to commit predicate acts himself that would have been sufficient to establish a "pattern of corrupt activity." Rather, the state can meet its burden by presenting evidence that the defendant agreed that others would commit the acts that would establish the "pattern of corrupt activity." In this case, so long as at least one of the persons who entered into an agreement with defendant to commit the predicate acts of gambling and operating a gambling house had a prior gambling conviction, his agreement with defendant to commit those acts *661 was enough to establish a conspiracy to engage in a pattern of corrupt activity.6
Defendant's conspiracy conviction was supported by sufficient evidence and was not against the manifest weight of the evidence. His fifth assignment of error is overruled.
Defendant moved the trial court to suppress evidence seized during the search of his home because it was fruit of an illegal search of his trash. The trial court denied the motion to suppress on July 25, 1995. It found that defendant did not have a reasonable expectation of privacy in his trash.
The United States Supreme Court has recognized that there is no reasonable expectation of privacy in garbage left for trash collection in an area which is susceptible to open inspection:
"[W]e conclude that respondents exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection. It is common knowledge that * * * garbage * * * left on or at the side of a public street [is] readily accessible to animals, children, scavengers, snoops, and other members of the public. Moreover, respondents placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through respondents' trash or permitted others, such as the police, to do so. Accordingly, having deposited their garbage `in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it' * * *, respondents could have had no reasonable expectation of privacy in the inculpatory items that they discarded." *662
(Citations omitted.) California v. Greenwood (1988),
Defendant has argued that, notwithstanding the Greenwood
holding, he had a reasonable expectation of privacy in his trash because (1) the trash was placed for collection within the curtilage of his property, (2) he used a private trash hauler, and (3) the private trash hauler disposed of the trash in its own landfill. The uncontroverted evidence was that defendant placed his garbage on his tree lawn for trash collection. Even if his tree lawn was within the curtilage of his property, as defendant has asserted, it was still an area that was readily open to public inspection within the meaning of Greenwood, supra. The tree lawn was accessible to any passerby on the public street. Moreover, the fact that a private trash hauler collected the trash and disposed of it in its own landfill did not give defendant a reasonable expectation of privacy in his garbage. The garbage, while on his tree lawn, was open to public inspection regardless of whether a private or municipal garbage collector hauled the trash away. See State v. Payne (1995),
Second, defendant has argued that the trial court incorrectly denied his motion to suppress evidence seized from his pickup truck, including the gun that was the basis for the firearm specification. During their search of the Royal Corona Lounge pursuant to a warrant, the police conducted a warrantless search of defendant's pickup truck that was parked in the vicinity of the lounge. The officer who conducted the search found a revolver on the floor while he was looking for evidence of gambling activity. Defendant was under arrest and in police custody at the time of the search.
Defendant moved the trial court to suppress evidence seized from his truck, arguing that the search did not fall within any of the exceptions to the warrant requirement. The court denied the motion on August 3, 1995, on the alternative grounds that the search fell within both the automobile and plain view exceptions to the warrant requirement.
The automobile exception permits police to conduct a warrantless search of a vehicle if there is probable cause to believe that it contains contraband or other evidence of a crime and exigent circumstances necessitate a search or seizure.State v. Mills (1992),
The police had probable cause to search the truck. An officer has probable cause to search a vehicle if, based on the totality of the circumstances, there was a fair probability that contraband or evidence of a crime would be found in it. State v.Denune (1992),
The trial court correctly denied defendant's motion to suppress evidence seized during the search of his pickup truck and residence. Defendant's sixth assignment of error is overruled.
Judgment affirmed.
QUILLIN, P.J., and REECE, J., concur.
