STATE OF OHIO, Plaintiff-Appellee -vs- SCOTT A. LYNCH, Defendant-Appellant
Case No. 11 CA 75
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
June 6, 2012
2012-Ohio-2521
Hon. W. Scott Gwin, P. J., Hon. John W. Wise, J., Hon. Julie A. Edwards, J.
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 10 CR 911D; JUDGMENT: Affirmed in Part; Reversed in Part and Remanded
For Plaintiff-Appellee
JAMES J. MAYER, JR. PROSECUTING ATTORNEY ANDREW S. KELLER ASSISTANT PROSECUTOR 38 South Park Street Mansfield, Ohio 44902
For Defendant-Appellant
DAVID HOMER 13 Park Avenue West Suite 609 Mansfield, Ohio 44902
{¶1} Appellant Scott A. Lynch appeals his conviction, in the Court of Common Pleas, Richland County, for the offense of engaging in a pattern of corrupt activity (“EPCA”). The relevant facts leading to this appeal are as follows.
{¶2} On at least three occasions in the late summer and fall of 2010, METRICH task force officers set up controlled heroin buys at appellant’s residence on Clayburg Road in Greenwich, Richland County. In each instance, a confidential informant, working with the METRICH officers, went to the residence and purchased “balloons” of heroin; the transactions were recorded on audio and video.
{¶3} In addition, on August 6, 2010, METRICH officers executed a search warrant of appellant’s residence. The officers found, inter alia, drug paraphernalia, digital scales, a hypodermic needle and tourniquet, and a rifle. Appellant admitted to the officers that he had purchased heroin in Columbus, Ohio, and had sold about twenty-five “balloons” of heroin that week.
{¶4} In February 2011, appellant was indicted by the Richland County Grand Jury on one count of having a weapon under a disability, a felony of the third degree under
{¶5} On June 16, 2011, appellant appeared before the trial court and entered pleas of guilty to the first four of the above five counts. A bench trial was thereupon conducted as to the remaining count of EPCA.
{¶6} Appellant was found guilty on the EPCA count, in addition to his aforesaid pleas to the remaining four counts. He was subsequently sentenced by the trial court to a total of three years in prison. See Judgment Entries, July 15, 2011 and August 12, 2011.
{¶7} On August 26, 2011, appellant filed a notice of appeal. He herein raises the following three Assignments of Error:
{¶8} “I. THE CONVICTION FOR ENGAGING IN A PATTERN OF CORRUPT ACTIVITY IS CONTRARY TO LAW WHERE THERE IS NO EVIDENCE THAT THE VALUE OF THE CONTRABAND INVOLVED WAS OVER $500.00.
{¶9} “II. THE CONVICTION IS CONTRARY TO LAW WHERE THERE IS NO EVIDENCE THAT APPELLANT WAS AN ENTERPRISE SEPARATE AND APART FROM THE PATTERN OF CORRUPT ACTIVITY IN WHICH HE ENGAGED.
{¶10} “III. THE CONVICTION IS UNSUPPORTED BY THE WEIGHT OF THE EVIDENCE, WHERE THE ONLY EVIDENCE OF GLOBAL DRUG TRAFFICKING AND ITS CONNECTION TO LOCAL DRUG DEALING IS BASED ON COMMON KNOWLEDGE UNRELATED TO THE CASE.”
Standard of Review
{¶11} As we read appellant’s brief, he is chiefly advancing arguments based on a claim of insufficiency of the evidence. In reviewing a claim of insufficient evidence, “[t]he 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), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.
I.
{¶12} In his First Assignment of Error, appellant contends his EPCA conviction was not supported by evidence that the value of the contraband was more than $500.00. We disagree.
{¶13}
{¶14} As indicated in the aforesaid wording of the statute, “sale”, “possession” and “purchase” of contraband are all included to reach the $500.00 threshold. The bill of particulars in this matter clearly indicates that the price paid by the confidential informants for the heroin in the three trafficking counts, to which appellant pled guilty, totaled $650.00. “A guilty plea waives a defendant’s right to challenge sufficiency or manifest weight of the evidence.” State v. Hill, Cuyahoga App. No. 90513, 2008–Ohio–4857, ¶ 6, citing State v. Siders (1992), 78 Ohio App.3d 699, 701. Upon review, we conclude the trier of fact could find the amount of heroin exceeded the $500.00 jurisdictional amount as required by
{¶15} Appellant‘s First Assignment of Error is overruled.
II.
{¶16} In his Second Assignment of Error, appellant contends his EPCA conviction was not supported by evidence that his activities constituted a separate “enterprise” pursuant to statute. We agree.
{¶17} Appellant was charged under Count V of the indictment with violating
{¶18}
{¶19}
{¶20} Thus, in order to establish that a defendant engaged in a pattern of corrupt activity, the state must show that the defendant was employed by or “associated with” an “enterprise.” The Ohio Supreme Court has determined that “merely committing successive or related crimes is not sufficient to rise to the level of a RICO violation.” State v. Schlosser (1997), 79 Ohio St.3d 329, 333, 681 N.E.2d 911.
{¶21} The crux of appellant’s argument in this assigned error is his proposition that the State must prove the element of “enterprise” by showing the existence of an ongoing organization “separate and apart” from the predicate drug trafficking activities forming the pattern of corrupt activity. See Appellant’s Brief at 15. In State v. Scott, Morgan App.No. 06 CA 1, 2007-Ohio-303, this Court held that in order to establish the existence of an “enterprise” under Ohio’s RICO Act, there must be some evidence of: (1) an ongoing organization, formal or informal; (2) with associates that function as a continuing unit; and (3) with a structure separate and apart, or distinct, from the pattern of corrupt activity. Id. at ¶ 45, citing State v. Teasley, Franklin App.Nos. 00AP-1322, 00AP-1323, 2002-Ohio-2333, ¶ 53, citing State v. Warren (1992), Franklin App. No. 92AP-603, and United States v. Turkette (1981), 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246.
{¶22} Subsequent to our decision in Scott, the United States Supreme Court decided United States v. Boyle (2009), 556 U.S. 938, wherein the issue presented was “whether an association-in-fact enterprise under the Racketeer Influenced and Corrupt Organizations Act (RICO),
{¶23} The State urges in its response brief that despite our Scott decision, other relatively recent cases from the Fifth District have not heavily relied upon the interpretation of federal RICO cases and have not instituted a strict requirement that a “separate and distinct” structure be proven as part of the EPCA “enterprise.” See State v. Linkous, Licking App.No. 08CA51, 2009-Ohio-1896; State v. Yates, Licking App.No. 2009CA0059, 2009-Ohio-6622. Appellant also directs us to a 1990 case, State v. Hill, Stark App.No. CA-8094, 1990 WL 237485. However, we find our holding in Scott more closely aligns with the decision of the United States Supreme Court in Boyle. We will therefore herein consider whether the State indeed demonstrated a “structure separate and apart, or distinct, from the pattern of corrupt activity” concerning appellant’s heroin-dealing activities. See Scott, supra, at ¶ 45.
{¶24} The sole witness at the bench trial in the case sub judice was Detective Steve Blust of the Mansfield Police Department, currently assigned to the METRICH drug task force. Detective Blust was asked to explain “how heroin trafficking works.” Tr. at 20. He stated that heroin is grown in other countries, brought into the United States by various drug “organizations” and distributed throughout U.S. cities, and then “on down the line from bigger dealer to smaller dealer and to the user.” Id. Based on his
{¶25} “Q. So as you sit here today then, you don’t have any evidence that Mr. Lynch was directly related to any of these Ponchos or Joes or anybody else that –
{¶26} “A. Just Mr. Lynch told me he was going to a Mexican in Columbus and obtaining fifty balloons at a time.”
{¶27} Tr. at 28.
{¶28} Upon review, we concur with appellant’s observation that the fact heroin frequently comes into the United States from foreign countries and is then redistributed does not convert appellant’s separate instances of trafficking into an EPCA violation under the facts and circumstances presented. We find the evidence in this case failed to sufficiently demonstrate a distinct “structure” for purposes of proving the enterprise element of engaging in a pattern of corrupt activity under
{¶29} Appellant’s Second Assignment of Error is sustained.
III.
{¶30} In his Third Assignment of Error, appellant contends his EPCA conviction is against the manifest weight of the evidence.
{¶31} Based on our foregoing analysis, we find appellant’s Third Assignment of Error to be moot.
{¶32} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Richland County, Ohio, is hereby affirmed in part and reversed in part. Appellant’s convictions for having a weapon while under a disability and for trafficking in drugs are affirmed. Appellant’s EPCA conviction is hereby vacated, and the matter is remanded for further consideration of sentencing as to the aforesaid remaining four counts.
By: Wise, J.
Gwin, P. J., and
Edwards, J., concur.
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JUDGES
JWW/d 0502
STATE OF OHIO, Plaintiff-Appellee -vs- SCOTT A. LYNCH, Defendant-Appellant
Case No. 11 CA 75
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGMENT ENTRY
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Richland County, Ohio, is affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.
Costs to be split equally between the parties.
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JUDGES