638 N.E.2d 1096 | Ohio Ct. App. | 1994
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *472 Defendant-appellant, Huel Haddix, appeals an order of the Preble County Court of Common Pleas denying his motion for a new trial.
On December 16, 1992, appellant was indicted by the Preble County Grand Jury on one count of engaging in a pattern of corrupt activity in violation of R.C.
Assignment of Error No. 1:
"The trial court erred to the prejudice of defendant-appellant when it permitted the state to cross-examine him from exhibits not produced in discovery and when it refused to declare a mistrial."
Assignment of Error No. 2: *473
"The trial court erred to the prejudice of defendant-appellant when it overruled his motion to dismiss and failed to properly instruct the jury regarding appellant's mental state."
Assignment of Error No. 3:
"The trial court erred to the prejudice of defendant-appellant when it refused to dismiss two counts of receiving stolen property because of improper venue."
Assignment of Error No. 4:
"The trial court erred to the prejudice of defendant-appellant when it overruled his motion for a new trial."
Assignment of Error No. 5:
"The trial court erred to the prejudice of defendant-appellant when it permitted evidence of like and similar acts as well as evidence regarding a pervasive crime problem to be presented to the jury."
In his first assignment of error, appellant argues that the trial court erred in permitting plaintiff-appellee, the state of Ohio, to cross-examine appellant from exhibits that the state had failed to disclose in discovery, and in subsequently refusing to declare a mistrial.
During the trial, appellant denied being involved in a pattern of corrupt activity or in receiving stolen property. By testifying, he placed his credibility in issue. On cross-examination, for impeachment purposes, appellant was questioned about false tax returns which inflated his income and which were submitted to a bank to secure a loan on his daughter's residence. The state admits it did not provide the tax returns to appellant despite a timely request for discovery. The state contends, however, that the introduction of the tax returns at trial was harmless, since the state used them to impeach appellant's testimony and credibility on cross-examination, and not as part of its case-in-chief.
Crim.R. 16(B)(1)(c) provides:
"Documents and tangible objects. Upon motion of the defendant the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, available to or within the possession, custody or control of the state, and which are material to the preparation of his defense, or are intended for use by the prosecuting attorney as evidence at the trial, or were obtained from or belong to the defendant."
Crim.R. 16(B) imposes on the prosecutor a duty to disclose certain information upon a proper discovery request made by the defendant. The rule does not distinguish between whether documents are intended to be used by the prosecutor in its case-in-chief or in cross-examination. Accordingly, the state's failure to *474 disclose appellant's income tax returns despite appellant's proper discovery request violated Crim.R. 16(B)(1)(c).
Failure to comply with a discovery request for documents does not automatically result in the exclusion of the documents. Pursuant to Crim.R. 16(E)(3), when a party fails to provide discovery, the trial court may order the party to permit discovery or inspection, grant a continuance, prohibit the party from introducing into evidence the material not disclosed, or make any other order it deems just under the circumstances. The imposition of sanctions for discovery violations is within the discretion of the trial court. State v. Harcourt (1988),
Assuming, arguendo, that the trial court's decision to allow the state to use the tax returns for cross-examination was an abuse of discretion, we find any error to be harmless beyond a reasonable doubt. "Error in the admission of evidence in criminal proceedings is harmless if there is no reasonable probability that the evidence may have contributed to the accused's conviction." State v. Bayless (1976),
The tax returns, which were already known to appellant, inasmuch as he signed them, were not used as substantive evidence of the crimes with which appellant was charged, but to impeach his credibility on cross-examination. The evidence involved falsifying loan application materials wholly unrelated to the charged offenses. Further, there is other evidence in the record which also tends to discredit appellant.
During trial, the state presented the testimony of Robert Hanks, an undercover informant working with a Task Force set up by the Ohio Organized Crime Investigations Commission. Hanks testified as to several criminal transactions in stolen property in which appellant was involved. In particular, Hanks testified that on June 25, 1990, he delivered a stolen Suzuki ATV Quadrunner to appellant, who took possession of it. Dennis Olinger, an accomplice in the corrupt activity, similarly testified. Olinger's general testimony was that appellant would frequently act as a "fence," buying stolen goods at a cheap price and later reselling them at a profit. Olinger testified that on October 10, 1991, he brought three lawn tractors, which he had stolen earlier, to appellant who agreed to buy two of them. When appellant testified, he vehemently denied receiving the stolen Quadrunner from Hanks or the lawn tractors from Olinger. He further stated that these items were never delivered to him.
Appellant's denial of having ever received stolen goods directly conflicted with the testimony of Hanks and Olinger. The jury evidently believed Hanks and *475 Olinger and found appellant guilty. We cannot say that there is a reasonable probability that the disputed income tax returns contributed to appellant's conviction. Appellant's first assignment of error is overruled.
In his second assignment of error, appellant argues that the trial court erred in overruling his motion to dismiss and in failing to instruct the jury as to appellant's culpable mental state with regard to R.C.
With the exception of R.C.
"(B) When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in such section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense."
An analysis of the few cases that have addressed the issue reveals that there are arguably three possible rules. One rule is that recklessness is the required culpable mental state to commit the corrupt activity offense of R.C.
A second possible rule is that no culpable mental state is required, as R.C.
A third possible rule is that the culpable mental state found in the statutory definition of the predicate offenses is the culpable mental state that must be proved to establish a RICO violation. This is the position taken by the state and the trial court in the case at bar. This is also the position this court took in State v. Haddix (1994),
The Second Circuit noted that the federal RICO statute does not require a scienter element over and above that required in the predicate offenses. As a result, the Second Circuit concluded that it is necessary to look to the scienter elements found in the statutory definition of the predicate offense to determine the degree of culpability that must be proved to establish a RICO violation. United States v. Biasucci (C.A.2, 1986),
The Second Circuit rule was followed in other circuits as well. See, e.g., Genty v. Resolution Trust Corp. (C.A.3, 1991),
We have reviewed the foregoing Ohio cases and now findHughes and Thrower to be unpersuasive. The "recklessness rule" of Hughes is based upon a strict reading of R.C.
RICO was created as a "device to prevent and reverse the draining of billions of dollars from America's economy by unlawful conduct." United States v. *477 Bagaric (C.A.2, 1983),
This court now finds that R.C.
Accordingly, the trial court was not required to instruct the jury as to the culpable mental state with regard to the instant RICO charges and its failure to do so was not error. Appellant's second assignment of error is overruled. *478
In his third assignment of error, appellant argues that the trial court erred in finding venue in Preble County with regard to Counts 27 and 30 of the indictment.
On June 25, 1990, a 1990 Suzuki ATV Quadrunner was stolen from its owner's residence in Preble County by Rondle Swango and Ricky Webb, transported to Hanks' garage located in Preble County and then transported to appellant's residence in Butler County, where appellant took possession of the stolen Quadrunner. These events constituted the basis for Count 26 of the indictment.
On the evening of October 9, 1990, Olinger and Webb went to appellant's residence, where the three men talked about looking for a specific type of tractor. Later that evening, Olinger and Webb broke into two residences in Butler County, where they stole a John Deere 950 and two John Deere 112s, which they took to appellant's residence. Appellant agreed to buy the two John Deere 112s, but not the John Deere 950. The latter was later picked up by Hanks. These events constituted the basis for Count 27 of the indictment.
Finally, the events leading to Count 30 of the indictment are as follows: On November 12, 1990, Olinger, Webb and Swango broke into the Middletown Honda/Kawasaki store in Warren County, where they stole four new ATVs. They then transported the ATVs to a farm in Montgomery County. From there, they contacted appellant, who looked at the ATVs and agreed to buy all four.
R.C.
"(C) When the offense involved the unlawful taking or receiving of property or the unlawful taking or enticing of another, the offender may be tried in any jurisdiction from which or into which the property or victim was taken, received, or enticed.
"* * *
"(H) When an offender, as part of a course of criminalconduct, commits offenses in different jurisdictions, he may betried for all of those offenses in any jurisdiction in which oneof those offenses or any element of one of those offensesoccurred. Without limitation on the evidence that may be used to establish such course of criminal conduct, any of the following is prima-facie evidence of a course of criminal conduct;
"(1) The offenses involved the same victim, or victims of the same type or from the same group.
"(2) The offenses were committed by the offender in his same employment, or capacity, or relationship to another. *479
"(3) The offenses were committed as part of the same transaction or chain of events, or in furtherance of the same purpose or objective.
"(4) The offenses were committed in furtherance of the same conspiracy.
"(5) The offenses involved the same or a similar modus operandi.
"(6) The offenses were committed along the offender's line of travel in this state, regardless of his point of origin or destination." (Emphasis added.)
In State v. Giffin (1991),
In his fourth assignment of error, appellant argues the trial court erred in overruling his May 18, 1993 motion for a new trial. Appellant contends that proof that the jury, during deliberations, improperly considered unproven violence on the part of the appellant and his family, entitles him to a new trial.
After the jury had returned with its guilty verdicts on the indictment, and while it was deliberating with regard to the issue of forfeiture, the trial court brought to the attention of the parties a note from the jury, which stated: "Can you keep the defendant's family and witnesses here until we exit the building? (We are concerned for our safety)." The court stated that the note, which was made part of the record, was handed to it by the bailiff when the bailiff told the court that the jury had reached verdicts. At the June 21, 1993 hearing on the motion for a new trial, the bailiff testified as follows:
"[by the bailiff, Robert E. Davis]
"A. They knocked on the door, when I opened the door, they told me they had just about reached a verdict and wanted to know if the Defendant and/or his family had to be present when they read the verdict and who read the verdict.
"I instructed them to write that on a piece of paper and I would give it to the Judge.
"* * *
"A. No sir, there was several people discussing that on Wednesday, half the jury went to Frische's [sic], and by happenstance, the Haddix family also went to Frische's [sic], and there was some discussion about comments they overheard, but they did not relate anything to me. *480
"[by Richard J. Wessel, counsel for appellant]
"Q. When you were given that note, about protection from the Sheriff, was it your opinion then and there that the jury had a verdict?
"A. Yes.
"* * *
"Q. Mr. Davis, when is the very first time that you were aware that there was concern on the part of the jury about their protection? The very first time?
"A. Was real close to when they told me they had a verdict because they were concerned as to whether or not Mr. Haddix and his family had to be present when they returned the verdict.
"* * *
"Q. Did any member of the jury actually tell you what their verdict was?
"A. No sir."
The trial court overruled appellant's motion, finding that the jury had not revealed its verdicts prior to their announcement in open court, and that there had been no improper or unauthorized contact with the jury by anyone during the trial or the jury deliberations.
A new trial may be granted for the misconduct of a jury where the substantial rights of the defendant have been materially affected. Crim.R. 33(A); State v. Hipkins (1982),
We find that the trial court did not abuse its discretion in overruling appellant's motion. The record shows that at no time prior to the delivery of the note to the bailiff did the jury or any juror indicate concern about safety. During the hearing, the trial court stated that shortly after it was given the note, it was told that the jury had reached verdicts. Because we find nothing in the record to demonstrate that the guilty verdicts were influenced by the jury's concern for its safety, the refusal of the trial court to grant a new trial will not be disturbed. Appellant's fourth assignment of error is overruled.
In his fifth and last assignment of error, appellant argues that the trial court erred in allowing evidence of like and similar acts and evidence with regard to a pervasive crime problem to be presented to the jury. Specifically, appellant contests the introduction into evidence of (1) various stolen items received by appellant for which he was not charged, (2) two tapes which secretly recorded two *481 conversations between appellant and Hanks, and which occurred after the stolen ATV Quadrunner was delivered to appellant,3 and (3) the testimony of the Task Force Director, Steven Walker, about the purpose of the Task Force and its effect on criminal enterprises.
Because the first two items fall within the scope of Evid.R. 404(B), we will treat them together.
Evid.R. 404(B) provides:
"Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."
Evidence of other acts of a defendant which are unrelated to the charges for which he is being tried is generally inadmissible. State v. Thompson (1981),
We find that evidence of appellant's receipt of several stolen items and tape-recorded conversations is admissible under Evid.R. 404(B), as it was used by the state to show appellant's guilty knowledge as well as appellant's scheme, plan or system in doing the underlying crimes with which he was charged. From the outset, appellant has denied being involved in fencing stolen property or receiving stolen property from Olinger or Swango. The trial court, therefore, did not err in allowing the foregoing evidence to be presented to the jury.
Appellant next complains about Walker's testimony and characterizes it as a "call to the community to rid the area of crime * * *." The pertinent portions of Walker's testimony are as follows:
"A. Here, what we wanted to do was take a [sic] in-depth look at all of these criminal enterprises and determine how broad this problem actually is.
"* * *
"[by Robert Smith, counsel for the state]
"Q. Why would you wait two years to bring down indictments? *482
"A. Well in the situation that we're involved in here, as we've already talked about, we have eleven different criminal enterprises. We have criminal enterprises with tentacles reaching into several different states.
"We have recovered over three million dollars in stolen property. We have estimates of thirty million dollar criminal interruption. We have tentacles of these organizations reaching into foreign countries.
"Ultimately we were involved in nine court-ordered wire taps."
After reviewing the entire record, we find that appellant was not prejudiced by Walker's testimony. Unlike appellant, we do not view the testimony as being a call to the community to rid the area of crime. The testimony was limited in scope and clearly designed to establish that appellant was only a small part of the focus of the investigation. Further, it was invited by defense counsel's arguments. Indeed, in his opening argument and in his cross-examination of Hanks, defense counsel repeatedly asked why the Task Force had waited several years to file criminal charges and to execute search warrants. The trial court did not err in allowing Walker's testimony. Appellant's fifth assignment of error is overruled.
Judgment affirmed.
WILLIAM W. YOUNG, J., concurs.
KOEHLER, P.J., concurs in part and dissents in part.
Dissenting Opinion
This court in State v. Haddix (1994),
R.C.
"(B) When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in such section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense." *483
This interpretation was followed by the majority of the Second District Court of Appeals in Hughes, supra. The court inHughes concluded that since R.C.
The majority's rationale is not supported by persuasive authority from other state and federal courts. While this theory may ultimately be adopted by a higher court, I am not prepared to find the RICO statute is constitutionally valid on this new theory.
It would appear appellant is being convicted of a violation of the RICO statute by the application of differing culpable mental states. I believe the same culpable mental state should be applicable to appellant's conviction in Preble County as in Butler County. Therefore, I dissent on the second assignment of error as determined by the majority. I concur with the majority in finding the first, third, fourth, and fifth assignments of error to be without merit.