2006 Ohio 2246 | Ohio Ct. App. | 2006
{¶ 2} In February 2005, a Butler County grand jury indicted appellant for two counts of complicity to ethnic intimidation in violation of R.C.
{¶ 3} In May 2005, appellant pled guilty to one of the complicity to ethnic intimidation counts. The state merged the remaining counts. The facts read by the state at the plea hearing indicated that appellant drove two individuals to the home of an African-American woman, where those individuals burned a cross in the yard. The common pleas court convicted appellant of the ethnic intimidation count to which she pled guilty.
{¶ 4} The common pleas court held a sentencing hearing in June 2005. After determining that appellant had committed the crime "as part of an organized criminal activity," that a prison term was consistent with the purposes and principles of sentencing set forth in R.C.
{¶ 5} Appellant assigns two errors on appeal, both relating to her prison sentence. In her first assignment of error, appellant argues that the common pleas court erred in sentencing her to prison rather than community control. In her second assignment of error, appellant argues that the sentence ordered by the common pleas court violated her Sixth Amendment right to a jury trial.
{¶ 6} Initially, we note that an appellate court may not disturb an imposed sentence unless it finds by clear and convincing evidence that the sentence is not supported by the record, or is otherwise contrary to law. R.C.
{¶ 7} For ease of discussion, we first address appellant's second assignment of error regarding the Sixth Amendment right to a jury trial. In State v. Foster,
{¶ 8} We now return to appellant's first assignment of error. In this assignment of error, appellant contests the following three findings made by the common pleas court in ordering a prison sentence: (1) that appellant committed the offense "as part of an organized criminal activity," (2) that appellant was not amenable to community control, and (3) that a prison sentence was consistent with the purposes and principles of sentencing set forth in R.C.
{¶ 9} R.C.
{¶ 10} "If the court makes a finding described in division (B)(1)(a), (b), (c), (d), (e), (f), (g), (h), or (i) of this section and if the court, after considering the factors set forth in section
{¶ 11} We first address the common pleas court's finding, pursuant to R.C.
{¶ 12} Courts have found crimes to be "part of an organized criminal activity" where the crime resulted from organized gang activity, State v. Jones (June 13, 2000), Franklin App. No. 99AP-704, 2000 WL 756843, *10; where the defendant participated in a drug trafficking operation, see, e.g., State v. Sawyer,
Allen App. No. 1-03-82,
{¶ 13} Courts have not found crimes to be "part of an organized criminal activity" where a defendant, acting alone, sold a small amount of crack cocaine to an informant, State v.Eckliffe, Lake App. No. 2001-L-104, 2002-Ohio-7135, ¶ 27; where a defendant purchased a small amount of crack cocaine for himself and a friend, State v. Biggs, Franklin App. No. 01AP-1185, 2002-Ohio-4999, ¶ 32; where a defendant, acting alone, engaged in illegal sexual conduct with minors he met on the internet, Statev. Fimognari, Wood App. No. WD-04-095,
{¶ 14} Griffin and Katz summarize the essential elements of the finding as follows:
{¶ 15} "a criminal activity which because of the number of participants and planned utilization of those participants poses more of a risk to the public order than an activity carried out by a single individual acting in isolation from other offenders or than multiple individuals acting together spontaneously or impulsively." Griffin and Katz, Ohio Felony Sentencing Law (2004), 563, Section 5:21.
{¶ 16} In finding that appellant committed the offense "as part of an organized criminal activity," the court noted that "there were five or six people involved in this criminal activity." The pre-sentence investigation report ("PSI"), which was considered by the court, indicates that appellant drove two individuals to the scene of the cross-burning, and that those individuals participated in the cross-burning. The PSI further indicates that appellant left the scene with two different individuals who also participated in the cross-burning.
{¶ 17} Appellant has failed to show, by clear and convincing evidence, that the common pleas court's "organized criminal activity" finding was not supported by the record or was otherwise contrary to law. The record indicates that six individuals were involved, to some degree, in the cross-burning incident. The record also indicates that the crime was not simply a spontaneous act, but involved some level of planning and coordination. The record supports the conclusion that the group of six individuals acting in a coordinated fashion posed a greater risk to the public order than an individual committing the crime alone. Appellant asserts, as she did at the sentencing hearing, that she was not involved in the planning of the act. However, even if that claim is believed, she nevertheless facilitated the crime, and admitted when she pled guilty that she "aided or abetted" others in committing the crime. Appellant's purported lack of a role in the planning of the crime does not render the common pleas court's "organized criminal activity" finding "not supported by the record."
{¶ 18} We now address the common pleas court's finding pursuant to R.C.
{¶ 19} Appellant has failed to show, by clear and convincing evidence, that the common pleas court's amenability determination was not supported by the record or was otherwise contrary to law. The record does show that appellant was 18 years old at the time of the crime, and that her only previous criminal violation was a minor traffic citation. The record also shows that she was romantically involved with a 40-year old man who was one of the principal participants in the crime, and who may have influenced her actions. Nevertheless, there is support in the record for the court's view that appellant had not fully acknowledged her role in the ethnic intimidation crime, despite having pled guilty. In a statement contained in the PSI, appellant said that she saw the crime take place, but had no part in committing it. A later part of the PSI indicates that appellant denied being present when the crime occurred. In light of the seriousness of appellant's crime and the information in the PSI, the record supports the common pleas court's decision that some prison time was warranted, and that appellant was not amenable to community control.
{¶ 20} We now address appellant's argument that a prison sentence was not consistent with the purposes and principles of sentencing in R.C.
{¶ 21} Appellant has failed to show by clear and convincing evidence that the court's imposition of a prison sentence was inconsistent with the purposes and principles articulated in R.C.
{¶ 22} We also find no support in the record for appellant's argument regarding the seriousness and recidivism factors in R.C.
{¶ 23} Based on our analysis above, we overrule appellant's first assignment of error. Having overruled both of appellant's assignments of error, we affirm the judgment of the common pleas court.
Walsh and Young, JJ., concur.
