STATE OF OHIO, Plaintiff-Appellee v. LISA J. RICH, Defendant-Appellant
Appellate Case No. 27337
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
March 30, 2018
2018-Ohio-1226
Trial Court Case No. 14-CR-3225/2 (Criminal Appeal from Common Pleas Court)
Rendered on the 30th day of March, 2018.
MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
GEORGE KATCHMER, Atty. Reg. No. 005031, 1886 Brock Road NE, Bloomingburg, Ohio 43106
Attorney for Defendant-Appellant
{¶ 1} Lisa J. Rich appeals from her conviction and sentence on one count of engaging in a pattern of corrupt activity, five counts of receiving stolen property, and one count of money laundering.
{¶ 2} Rich advances ten assignments of error. The first two challenge the legal sufficiency and manifest weight of the evidence to support her convictions for receiving stolen property. The third and fourth assignments of error challenge the legal sufficiency of the evidence to support her convictions for engaging in a pattern of corrupt activity and money laundering. The fifth assignment of error addresses the trial court‘s admission of “other acts” evidence, which Rich claims was irrelevant and unduly prejudicial. The sixth assignment of error challenges the constitutionality of Ohio‘s receiving-stolen-property statute, which Rich contends criminalizes civil negligence. The seventh assignment of error challenges the trial court‘s denial of her pre-trial suppression motion. The eighth assignment of error challenges the trial court‘s denial of her
{¶ 3} The present appeal stems from Rich‘s purchase of stolen merchandise from a loosely-knit group of drug addicted “boosters” for resale on the internet and at a pawn shop she operated with her husband, co-defendant Jeffrey Rich. At trial, the State presented nine witnesses who testified that they participated in the theft of merchandise from area businesses and the sale of that merchandise to Moraine City Pawn, which was owned by Lisa Rich. The witnesses testified that they stole the merchandise and sold it to the pawn shop over a period of several months to satisfy their heroin addictions. The
{¶ 4} The nine witnesses who admitted “boosting” the items testified that they sold the stolen merchandise to Moraine City Pawn practically every day and sometimes several times a day between late 2012 and early 2013. They frequently brought the same types of items into the pawn shop multiple times a day. They usually removed security stickers or tags from the stolen merchandise before taking it to the pawn shop. If they did not, Jeffrey Rich would insist that the stickers or tags be removed and then buy the items. At trial, the witnesses identified a number of dated Moraine City Pawn “buy slips” or “tickets” bearing their names and signatures, identifying the stolen items sold, stating the price paid, and including the initials of the pawn-shop worker who entered the information into a computer. Although the witnesses typically dealt with Jeffrey Rich and negotiated with him, Lisa Rich was involved too, sometimes dealing with the customers, completing paperwork for the transactions, and re-selling stolen merchandise on eBay. Over a six-week period between December 1, 2012 and January 13, 2013, one witness, Nathan Woodard, had sixty-two buy tickets in his name. His girlfriend had thirty-five more in her name. Woodard believed it was “pretty self-explanatory” where he was getting “every day brand new stuff” he sold to the pawn shop. He also testified that if Jeffrey Rich did not know he was a drug addict, then he “weren‘t that bright.” Another witness, Randall James
{¶ 5} Several witnesses testified that Jeffrey Rich sometimes would loan them money in the morning, enabling them to purchase heroin to start their day before engaging in retail theft. The fronted money typically then would be deducted from what the witnesses earned selling stolen items to the pawn shop later that day. One witness, Jeff Bowling, testified that Jeffrey Rich asked him to stop bringing in dollar-store batteries because they included a note on the cover asking the purchaser to contact a particular phonе number if the batteries were found for sale elsewhere. Bowling testified that Jeffrey Rich also asked him to vary the use of identification cards when bringing items to the pawn shop because he did not want the same identification card used too many times. According to Bowling, Jeffrey Rich stated that if the group got caught, not to “let it come back on him.”
{¶ 6} Moraine City Pawn employee Jessica Proud testified that she became suspicious about the group of individuals repeatedly selling new merchandise to the pawn shop. She was concerned because “the same kind of people were coming in continuously, bringing in the same types of items, in packages, multiples, coming in multiple times of day, the same kind of people.” Proud testified that Jeffrey Rich negotiated the price and purchased most of the merchandise although Lisa Rich was involved too. According to Proud, Lisa Rich bore primary responsibility for re-selling the merchandise on the internet. In Proud‘s opinion, the merchandise “was obviously stolen, or obtained some way that was not legal.” Proud testified that she expressed her concerns to Lisa Rich, who agreed with her. Jeffrey Rich overheard one such conversation between
{¶ 7} In January 2013, detectivе Jason Neubauer visited Moraine City Pawn in connection with an investigation into the possible sale of stolen merchandise on eBay. Neubauer met with Lisa Rich and her husband on that occasion. During the meeting, Jeffrey Rich identified twenty boxes of Nicorette gum that he had purchased from Nathan Woodard. In response, Neubauer explained “that this was a sign of an obvious retail theft” as “[t]ypically thieves will target property that is small and easy to conceal, also with a high dollar amount so they get a higher return.” The Riches then showed Neubauer two new Dyson vacuum cleaners and a new Generac generator. At that point, Neubauer explained to them that “thieves would target these types of property and that typically they either go directly into the store, pick the merchandise up, and walk out, or load it up into a cart and push the property out the door that way.”
{¶ 8} Thereafter, in April 2013, Neubauer and other officers arranged an undercover operation at Moraine City Pawn. On that occasion, a drug addict named John Cox took twenty boxes of Prilosec into the pawn shop to sell. The boxes had been provided by Kroger. Upon seeing the boxes, Jeffrey Rich gave Cox a knife or a screwdriver and had him remove the Kroger stickers outside and then bring the boxes back inside. Cox complied, and Jeffrey Rich purchased the merchandise. During the transaction, he also asked Cox to bring “a tool or something” in with the Prilosec the nеxt time so he could “write it up like that” and it wouldn‘t be recorded as “Prilosec directly.”
{¶ 9} The following day, a second undercover operation took place. On that occasion, Cox and an undercover officer took ten boxes of Prilosec, six boxes of Crest white strips, and six boxes of a weight-loss product into Moraine City Pawn. Once again, all of the merchandise had been provided by Kroger. The officer wandered around the shop while Cox sold the merchandise to Jeffrey Rich and received payment from Lisa Rich. A third undercover operation occurred five days later. On that occasion, Jeffrey Rich came outside the pawn shop to look at two new Dyson vacuum cleaners in an undercover van. He discussed the vacuums with Cox but ultimately declined to purchase them.
{¶ 10} Three days later, police executed a search warrant at Moraine City Pawn. At that time, they recovered numerous items, including large quantities of new merchandise in its original packaging of the type reportedly stolen and sold to the pawn shop by the State‘s nine witnesses. Some of the items still had store stickers on them, and some of the items had the sellers’ names associated with them. These names included some of the prosecution witnesses at trial. Approximately $3,000 worth of merchandise recovered from the pawn shop—including approximately seventy-five percent of the fish hooks—was traced to Dick‘s Sporting Goods. Additional stоlen items were traced to CVS pharmacy. Some Crest 3D white strips still had active security tags attached.
{¶ 11} Lisa Rich ultimately was indicted in connection with the foregoing incidents, along with her husband. As set forth above, a jury convicted her of engaging in a pattern of corrupt activity, a first-degree felony. She also was convicted on one count of money laundering, a third-degree felony, and five misdemeanor counts of receiving stolen property. The trial court sentenced her to five years of community control and imposed a
{¶ 12} In her first two assignments of error, Rich challenges the legal sufficiency and manifest weight of the evidence to support her convictions for receiving stolen property.1 Her primary argument is that the convictions depended largely on the information contained in the buy tickets or slips about which the prosecution witnesses testified. As set forth above, those tickets, which included the witnesses’ signatures, identified the stolen merchandise sold to the pawn shop on the dates contained in the indictment. Without those tickets, the witnesses lacked independent recollection of what stolen merchandise they sold to the pawn shop on any particular day. Rich argues on appeal, however, that the tickets constituted inadmissible hearsay because no one identified as a custodian of the records testified and qualified them as business records under
{¶ 13} When a defendant challenges the sufficiency of the evidence, she is arguing that the State presented inadequate evidence on an element of the offense to sustain the verdict as a matter of law. State v. Hawn, 138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d Dist.2000). “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
{¶ 14} Our analysis is different when reviewing a manifest-weight argument. When a conviction is challenged on appeal as being against the weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, 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. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A judgment should be reversed as being against the manifest weight of the evidence “only in the exceptional case in which the evidence weighs heavily against the conviction.” State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 15} With the foregoing standards in mind, we conclude that Rich‘s convictions for receiving stolen property are supported by legally sufficient evidence and are not against the weight of the evidence. Under
{¶ 16} Rich‘s argument about the pawn-shop buy tickets being inadmissible hearsay is unpersuasive for at least two reasons. First, when considering a challenge to the legal sufficiency of the evidencе, we must consider all of the evidence presented at trial, regardless of whether it was admitted erroneously. State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284, ¶ 17-20. In State v. Renner, 2d Dist. Montgomery No. 25514, 2013-Ohio-5463, this court extended the same principle to a manifest-weight challenge. Id. at ¶ 20 (“Considering all of the evidence presented at trial (including any evidence that may have been improperly admitted), the jury did not lose its way * * *.“). As this court recognized in Renner, the prosecution is entitled to rely on the trial court‘s evidentiary rulings in deciding how to present its case. Id. at ¶ 8. That rationale applies equally to legal-sufficiency and manifest-weight challenges.2 Therefore, contrary to Rich‘s argument, we are entitled to consider the challenged buy tickets when evaluating the legal sufficiency and manifest weight of the evidence.
{¶ 17} Second, Rich did not raise a hearsay objection to the buy tickets. She argued only that the tickets were not linked to evidence found at the pawn shop. In2
{¶ 18} As to the hearsay issue, we are limited to plain-error review. Courts apply the plain-error doctrine to prevent a “manifest injustice.” Rich must show that but for plain error, “the outcome of [her] trial clearly would have been otherwise.” State v. Chinn, 85 Ohio St.3d 548, 562, 709 N.E.2d 1166 (1999). We see no plain error here. Consistent with
{¶ 19} Finally, we are unpersuaded by Rich‘s argument about the State‘s key witnesses being heroin addicts who had poor memories. Although the witnesses could not recall, years later at the time of trial, what they sold the pawn shop on any particular day, they identified their signatures on dated buy tickets that listed the items they sold. They also admitted that those items would have been stolen merchandise because virtually everything they sold to Moraine City Pawn was stolen merchandise. For the foregoing reasons, Rich‘s convictions for receiving stolen property are bаsed on legally sufficient evidence and are not against the manifest weight of the evidence. Her first two assignments of error are overruled.
{¶ 20} In her third assignment of error, Rich challenges the legal sufficiency of the evidence to support her conviction for engaging in a pattern of corrupt activity. Her entire argument is as follows:
In the present matter, there is no evidence of the retail value of any of the items purportedly stolen. Nor is there any evidence of the amounts paid to the witnesses in this matter for the reasons argued in Appellant‘s First Assignment of Error. Nor is there any evidence as to when items testified to and sold to the Appellant were stolen. Thus, there is no evidence that “. . . the same person or persons within any one-hundred-eighty-day period . . .” stole the property in question, permitting aggregation of amounts. Thus there is no evidence that the $1,000.00 limit was reached.
Nor can the items used by the CI on or after April 10, 2013 be used for aggregation. A conviction for Receiving Stolen Property requires that the
property received is, in fact, stolen. State v. Ray, 2010-Ohio-513, State v. Parra, 2011-Ohio-3977. Hearsay statements cannot be used to supply evidence that an item is stolen. Id. As argued by Counsel in the present matter, the items from the sales by John Cox on April 10, 2013 involved products supplied by Kroger and were not stolen from the store. As such, there can be no evidence that any stolen property was received by the Appellant on this date. Thus, there is insufficient evidence under the
R.C. 2923.31 to support a conviction underR.C. 2923.32 .
(Appellant‘s brief at 11).
{¶ 21} Upon review, we find Rich‘s argument to be unpersuasive. She was convicted of engaging in а pattern of corrupt activity in violation of
{¶ 22} In our view, the evidence is legally sufficient to support a finding that Rich
{¶ 23} Rich asserts that the evidence is legally insufficient because the State failed to prove the “retail” value of the stolen merchandise. She also claims there is no evidence еstablishing how much the witnesses who sold the pawn shop stolen merchandise were
{¶ 24} The State was not required to prove a “retail” value of $1,000 or more because Rich was not charged with engaging in corrupt activity based on her committing organized retail theft. Rather, she was charged with engaging in corrupt activity based on her committing acts of money laundering and receiving stolen property. Under
{¶ 25} As for Rich‘s other arguments, the record belies her claim that there is no evidence establishing how much the witnesses who sold stolen merchandise were paid4
{¶ 26} In her fourth assignment of error, Rich challenges the legal sufficiency of the evidence to support her money-laundering conviction. Her entire argument is as follows:
Appellant inсorporates her argument in her Third Assignment of Error as if fully re-written herein. Due to the evidential failure to establish corrupt activity under Count 1, or in any testimony in the trial, there is a failure to establish corrupt activity under the Money Laundering statute and this conviction must be reversed.
(Appellant‘s brief at 12).
{¶ 27} Rich presents no new argument in support of this assignment of error, relying instead on the argument raised under her third assignment of error. Having
{¶ 28} In her fifth assignment of error, Rich contends the trial court erred in admitting “other acts” evidence that was irrelevant and unduly prejudicial. In particular, she challenges the trial court‘s admission of evidence concerning the prosecution witnesses’ drug addiction, the cost of their drug habits, the extent of their theft activities, their sales of merchandise to Moraine City Pawn on occasions other than those specified in the indictment, and their borrowing of money from her husband to satisfy their drug habits. Rich also complains about the trial court (1) allowing the jury to see pictures of large quantities of merchandise on the sales floor at the pawn shop and in a storage area, and (2) allowing the prosecutor to present some of the physical evidence itself to the jury. She asserts that the pictures and physical evidence were irrelevant and also inadmissible under
{¶ 29} We see no abuse of discretion in the trial court‘s admission of the challengеd items. The fact that the prosecution‘s witnesses were drug addicts who regularly were stealing and selling large quantities of new merchandise to the pawn shop helped provide background and context for the charged offenses. This evidence also was relevant to the issue of Rich‘s knowledge that the merchandise was stolen. The extent of the witnesses’ addiction explained why they sometimes brought the same types of stolen items to the pawn shop multiple times a day. The challenged evidence also was relevant insofar as it suggested that the Riches took advantage of their situation and supported their habits by loaning them money and later buying their stolen merchandise at a discount for re-sale. The fact that Jeffrey Rich loaned the witnesses money additionally
{¶ 30} With regard to
{¶ 31} We also reject Rich‘s reliance on
{¶ 32} In her sixth assignment of error, Rich challenges the constitutionality of Ohio‘s receiving-stolen-property statute, which she contends criminalizes civil negligence. The statute,
{¶ 33} Upon review, we find Rich‘s argument to be unpersuasive. Other Ohio appellate courts have addressed and rejected the same argument. See, e.g., State v. York, 8th Dist. Cuyahoga No. 49952, 1985 WL 8502, *4 (Oct. 24, 1985); State v. Skorvanek, 9th Dist. Wayne No. 2545, 1990 WL 94226, *2 (June 27, 1990); State v. Miller, 4th Dist. Pickaway No. 82 CA 24, 1984 WL 4270, *2-3 (March 6, 1984). We now join
{¶ 34} In arguing to the contrary, Rich suggests the statute‘s reference to “reasonable cause” implies a wholly-objective “reasonable man” standard, leaving open the possibility of a conviction based on simple negligence. But the statute‘s mens rea requirement fairly may be read to have a subjective component insofar as it requires the offender himself or herself to know or to have reasonable cause to believe the property at issue was stolen. Compare United States v. Saffo, 227 F.3d 1260, 1268-1269 (10th Cir.2000) (“[W]e hold that the ‘knowing or having reasonable cause to believe’ standard in
{¶ 35} With regard to Ohio‘s receiving-stolen-property statute, we note too that “[i]f the legislature had omitted ‘reasonable’ and had defined this element as ‘knowing or having cause to believe’ the property was stolen, the courts undoubtedly would have construed it to mean ‘reasonable cause,’ following our long-established tradition of fairness in the application of criminal law.” State v. Bentz, 2 Ohio App.3d 352, 353, 442 N.E.2d 90 (1st Dist.1981). Finally, we note that “reasonable cause to believe” language, or similar terminology, is found in many statutes and has been upheld many times, including by the United States Supreme Court. See, e.g., Gorin v. United States, 312 U.S. 19, 27-28, 61 S.Ct. 429, 85 L.Ed.2d 488 (1941) (“The obvious delimiting words in the
{¶ 36} In arguing that the “reasonable cause to believe” standard unconstitutionally imposes criminal liability for civil negligence, Rich relies exclusively on Elonis v. United States, 135 S.Ct. 2001, 192 L.Ed.2d 1 (2015). In that case, the defendant was convicted under
{¶ 37} Upon review, we find Rich‘s reliance on Elonis to be misplaced for at least two reasons. First, Elonis involved statutory interpretation, whereas Rich argues that criminalizing simple negligence violates the Constitution, which is something Elonis did not address. The Supreme Court simply declined to infer that Congress had intended a negligence standard to apply and, instead, read purpose or knowledge into the federal statute. Second, the Elonis majority reasoned that the trial court had applied a negligencе standard by focusing exclusively on whether a hypothetical “reasonable person” would have perceived the defendant‘s communications as threats. Unlike the jury instruction in Elonis, however,
{¶ 38} In her seventh assignment of error, Rich challenges the trial court‘s denial of her pre-trial suppression motion. In particular, she contends a search-warrant affidavit failed to establish the reliability of sources relied on by investigators. She also asserts that the affidavit failed to establish probable cause that she was buying and re-selling stolen merchandise. She notes that referenced items from a Kroger store involved in
{¶ 39} “In determining the sufficiency of probable cause in an affidavit submitted in support of a search warrant, ‘[t]he task of the issuing magistrate is simply tо make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989), paragraph one of the syllabus, quoting Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
{¶ 40} “In reviewing the sufficiency of probable cause in an affidavit submitted in support of a search warrant issued by a magistrate, neither a trial court nor an appellate court should substitute its judgment for that of the magistrate by conducting a de novo determination as to whether the affidavit contains sufficient probable cause upon which that court would issue the search warrant.” Id. at paragraph two of the syllabus. “Rather, the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. In conducting any after-the-fact scrutiny of an affidavit submitted in support of a search warrant, trial and appellate courts should accord great deference to the magistrate‘s determination of probable cause, and doubtful or marginal cases in this area should be resolved in favor of upholding the warrant.” Id.
{¶ 41} In the present case, police actually obtained two warrants, one in April 2013 and one in May 2013, both based on affidavits from Moraine detective Jason Neubauer. As relevant here, the April 2013 affidavit sought a warrant to search Moraine City Pawn
{¶ 42} In paragraph two of his affidavit, Neubauer averred that detective Bryan Sears from Centerville informed him in January 2013 about an investigation concerning the theft of baseball gloves from Play-It-Again Sports. Sears had discovered that the stolen gloves were being sold on eBay by Lisa Rich. According to Neubauer, Lisa Rich later confirmed buying the gloves at the pawn shop and selling them on eBay. Sears also informed Neubauer that the Riches were “selling other suspicious retail items such as Nicorette Gum and Dyson Vacuums.”
{¶ 43} In paragraph three of his affidavit, Neubauer averred that he spoke with the Riches at Moraine City Pawn on January 16, 2013. While there, the Riches showed him approximately twenty boxes of Nicorette gum they had purchased from Nathan Woodard. Neubauer also observed two new Dyson vacuums and a new generator that the Riches had purchased from Michael Elam. Neubauer warned the Riches not to buy new retail merchandise, particularly high-end items, because of the likelihood that such merchandise might be stolen.
{¶ 44} In paragraph four of his affidavit, Neubauer averred that on March 29, 2013 detective Mark Brown from Beavercreek advised him about an investigation of retail thefts from Dick‘s Sporting Goods by a suspect named Herlon Curtis. Brown told Neubauer that Curtis was stealing “Hummingbird Fishfinders, Cuddeback Ambush Game Cameras, and
{¶ 45} In paragraph five of his affidavit, Neubauer averred that he visited Moraine City Pawn on April 1, 2013. During that visit, he observed a large box full of Crest white strips. He also discovered that Jeffrey Rich had purchased a Home Depot gift card from a person named Tyler Wise, who Neubauer knew from a prior investigation was selling stolen gift cards. Wise previously had been “flagged” and identified to Jeffrey Rich as someone who was selling stolen property and whose business should be refused by the pawn shop. Neubauer also noticed that the pawn shop‘s buy tickets lacked serial numbers for property and did not include the amount paid.
{¶ 46} In paragraph six of his affidavit, Neubauer described an April 2, 2013 meeting in which he and other detectives discussed eight Middletown residents selling stolen merchandise to Moraine City Pawn. Detective Jon Rawlins stated that Jeffrey Rich was giving suspects a list of items he wanted to purchase. According to Rawlins, one of the suspects had admitted selling stolen items to the pawn shop аnd had said Jeffrey Rich was recording the transactions under other people‘s names.
{¶ 47} In paragraph seven of his affidavit, Neubauer described obtaining twenty marked boxes of Prilosec OTC from Kroger on April 10, 2013 for use in an undercover
{¶ 48} In paragraph eight of his affidavit, Neubauer averred that he accessed “Leads Online” on April 11, 2013 and located a buy ticket for Jeffrey Rich‘s Prilosec OTC transaction with the CI. The ticket failed to list an identification number for the CI. It described the item as “Prilosec Household” and failed to include a quantity, the purchase price, or a picture.
{¶ 49} In paragraph nine of his affidavit, Neubauer described a second undercover
{¶ 50} In paragraph ten of his affidavit, Neubauer averred that he accessed “Leads Online” on April 16, 2013 and located a buy ticket for the sеcond undercover transaction. The clerk was listed as Lisa Rich. The ticket did not include an identification number for the CI. It described the merchandise as “Household; Alli Crest Prilosec.” It did not include the quantity, the purchase price, or a picture.
{¶ 51} In paragraph eleven of his affidavit, Neubauer averred that on April 16, 2013 he obtained two Dyson vacuum cleaners from Kroger for use in another undercover operation. On that occasion, the CI wore a recording device and took the vacuum cleaners to Moraine City Pawn. The CI discussed the vacuums with Jeffrey Rich, who stated that he could not take any more. Jeffrey Rich added that “[t]hey‘re coming down pretty hard.” He also stated that he had not heard anything about the CI. Jeffrey Rich then made a couple of phone calls for the CI in an unsuccessful attempt to find a buyer for the vacuums. After the CI left, Jeffrey Rich called Neubauer and left a message for the detective to call him.
{¶ 53} In paragraph thirteen of his affidavit, Neubauer averred that he returned Jeffrey Rich‘s phone call. Jeffrey Rich told the detective about a person trying to sell him two new Dyson vacuum cleaners. Jeffrey Rich said the items made him suspicious and he thought the detective should know. Rich added that he “owed” the detective one, and he would let the detective “have this one.”
{¶ 54} In paragraph fourteen, Neubauer averred that, based on his training and experience, “the actions of the occupants at Moraine City Pawn * * * are consistent with individuals buying and selling stolen goods.”
{¶ 55} The proposed search warrant provided by Neubauer identified the following items as being subject to seizure from Moraine City Pawn:
- Stolen property, including but not limited to: personal care/hygiene products, cameras, sporting equipment, tools, electronic equipment, vacuums, and other items commonly associated with large scale retail theft organized crime.
- Any surveillance equipment including but not limited to: digital video recorders, computers, and monitors and the contents of these devices.
- Currency of any type or other items of value.
- Personal papers, documents, books, financial records, e-Bay
records, purchase and pawn slips, computers and related computer hardware and software all of which are believed to be derived from or instrumental in purchasing and selling stolen goods. - Firearms and ammunition, including but not limited to guns, pistols, revolvers, rifles, shotguns, machine guns and other weapons, and any and all records pertaining to firearms and ammunition.
- [6.] Paper documents or utility records indicating the ownership or occupancy of said premises.
- [7.] Labels, identifiable stickers, or documentation indicating the original owner of property.
- [8.] Further photograph, fingerprint, buccal swab, at the scene, any adult subjects found inside the premises for the purpose of comparison to any evidence found at the scene.
{¶ 56} Upon review, we conclude that Neubauer‘s affidavit supplied the issuing judge with a more-than-sufficient basis for finding a fair probability that stolen merchandise would be discovered inside the pawn shop. Although Neubauer provided little detail with regard to the veracity of some of his sources or his basis of knowledge with regard to some of his averments, other averments were sufficiently supported. We note too that the affidavit mentions Lisa Rich admittedly selling stolen baseball gloves on eBay and Jeffrey Rich buying a gift card from someone who previously had been identified to him as a known thief. In addition, Jeffrey Rich‘s recorded interactions with the CI provided strong evidence to support a finding of probable cause with regard to the Riches’ involvement in receiving stolen property. Jeffrey Rich‘s words and actions supported a
{¶ 57} Rich also argues that the search warrant was defective because it was so generalized that it permitted seizure of virtually anything. Upon review, we agree that portions of the warrant, particularly when read in isolation, were general. For example, the warrant authorized seizure of currency or “any other item of value.” It also authorized seizure of “items commonly associated with large scale retail theft organized crime.” Interpreted literally, these examples would permit the seizure of just about anything. In addition to being broad and general, the second example provides no guidance with regard to what constitutes an item associated with large scale retail theft (other than the specific examples that precede this language). We note too that the warrant authorized seizure of items seemingly unrelated to the information in Neubauer‘s affidavit. For example, the affidavit provided no information about theft of firearms. Yet the warrant authorized seizure of all types of firearms and weapons. And inventory receipts reflect that several firearms were seized.
{¶ 58} We nevertheless conclude that any shortcoming in the warrant‘s description
{¶ 59} Having reviewed the trial transcripts, we fail to see how Rich was prejudiced by the fact police acted pursuant to a warrant that included some general language and that authorized seizure of some items that perhaps were irrelevant to the charges against her. Rich was not convicted based on the prosecutor presenting the jury with firearms seized from the pawn shop, currency, or random “item[s] of value.”7 Rather, she was convicted based on the testimony of numerous prosecution witnesses who admitted stealing new merchandise from area businesses and selling it to Rich and her husband under circumstances that made it virtually impossible for the Riches not to have known the merchandise was stolen. The witnesses’ testimony was corroborated by buy tickets, pictures of merchandise, and actual physical merchandise that was illustrative of, if not
{¶ 60} With regard to the second search warrant, which was issued in May 2013, the record reflects that it pertained solely to the contents of computers and thumb drives seized from Moraine City Pawn during execution of the first search warrant. In his affidavit in support of the second search warrant, Neubauer averred that the Riches had admitted using eBay to sell items they purchased at the pawn shop. Neubauer also averred that Lisa Rich had told him she kept business records on a pawn shop computer. In addition, Neubauer stated that Jeffrey Rich had told him the pawn shop used a computerized surveillance system that included audio and video files, which potentially might have documented criminal transactions. Finally, the requested search warrant specifically identified the pertinent computer central processing units and thumb drives by serial number. Having reviewed Neubauer‘s affidavit and the second search warrant, we again see no basis for rejecting the issuing judge‘s probable-cause determination.8 For the foregoing reasons, we overrule the seventh assignment of error.
{¶ 61} In her eighth assignment of error, Rich challenges the trial court‘s denial of her Crim.R. 29 motion. She raises three issues. First, she cryptically asserts “that money laundering cannot be a predicate for money laundering.” Second, she cites an unspecified “conflict in men [sic] rea between the money laundering and receiving statutes which can
{¶ 62} Upon review, we find no error in the trial court‘s denial of Rich‘s Crim.R. 29 motion. Rich‘s argument about money laundering being a predicate for money laundering includes a transcript citation and a reference to State v. Pugh, 9th Dist. Summit No. 24905, 2010-Ohio-2741. On the cited transcript page, defense counsel actually argued that a money-laundering conviction could not be predicated solely on receiving stolen property. (Tr. Vol. IX at 1170-1171). In support, counsel cited Pugh. The Ninth District observed in Pugh that “[t]he act of transacting money alone does not amount to money laundering.” Pugh at ¶ 13. Although the appellant had transferred certain funds into her own account, the Ninth District found no evidence that she did so with the purpose to promote, manage, establish, or carry on a “corrupt activity” as required for a money-laundering conviction under
{¶ 63} Regardless of the merits of the Ninth District‘s decision, we find it to be distinguishable. As an initial matter, Rich was convicted of money laundering under
{¶ 64} Rich‘s other two arguments are even less persuasive. She cites a “conflict” between the mens rea in the statutes defining the offenses of money laundering and receiving stolen property. She suggests that this conflict “can lead to an unclear verdict.” As set forth above, the money-laundering statute,
{¶ 65} Finally, Rich asserts that she was entitled to relief under Crim.R. 29 because “there was no evidence that any of the items were actually stolen.” As we explained in our analysis of her first two assignments of error, however, the record contains legally sufficient evidence to support a finding that Rich participated in purchasing and re-selling stolen merchandise from drug-addicted thieves while knowing or having reasonable cause to believe the property had been obtained through theft. This conclusion is supported by the buy tickets discussed above and testimony from numerous prosecution witnesses who admitted stealing merchandise and selling it to the Riches under circumstances indicating that the Riches knew or had reasonable cause to believe the merchandise was stolen. Accordingly, the eighth assignment of error is overruled.
{¶ 66} In her ninth assignment of error, Rich addresses the trial court‘s jury instructions. She presents the following one-sentence argument: “Objections were raised as to the defining of receiving stolen property as corrupt activity in itself and to using the phrase ‘reasonable cause to believe’ which is not statutorily defined and utilizes a civil negligence standard as argued above.”
{¶ 67} This assignment of error lacks merit. In the proceedings below, defense counsel objected to the trial court instructing the jury that the offense of receiving stolen property qualifies as “corrupt activity.” Defense counsel specifically argued that receiving stolen property qualifies as “corrupt activity” only if it is accompanied by money laundering. (Tr. Vol. IX at 1214). Standing alone, defense counsel asserted that receiving stolen property does not constitute “corrupt activity.” (Id. at 1216-1217). The trial court
{¶ 68} We also reject Rich‘s challenge to the jury instruction about having “reasonable cause to believe.” Defense counsel objected to this instruction, which related to the receiving-stolen-property counts. As set forth above, the State was required to prove that Rich had obtained the merchandise at issue knowing or having reasonable cause to believe it had been obtained through the commission of a theft offense. Defense counsel argued that “reasonable cause to believe” as a mens rea was not statutorily defined and, therefore, should not be defined by the trial court. (Tr. Vol. IX at 1220). The trial court overruled the objection. (Id.). When addressing the charges against Jeffrey Rich, it then gave the jury the following instruction, which tracks OJI section 513.51(4):
In determining whether the Defendant Jeffrey Rich had reasonable cause to believe that the property had been obtained though the commission of a theft offense, you must put yourself in the position of the Defendant with his knowledge or lack of knowledge and under the circumstances and conditions that surrounded him at that time. You must consider the conduct of the persons involved and determine whether their acts and words and all the surrounding circumstances would have caused a person of ordinary prudеnce and care to believe that the property was obtained through the commission of a theft offense. * * *
(Tr. Vol. IX at 1297).
{¶ 69} We see no error in the foregoing instruction, which the trial court also applied to the charges against Lisa Rich.10 The first paragraph correctly instructed the jury to place itself in the defendant‘s position with the information known to him (or her) to determine whether he (or she) personally had reasonable cause to believe the property at issue was stolen. The second paragraph assisted the jury in determining whether the personal, subjective belief the defendant had about the nature of the property was a reasonable one. Taken together, the two paragraphs correctly conveyed the point that “reasonable cause to believe” was not purely objective insofar as it depended on facts actually known to the defendant and a belief personal to him (or her) from which the jury
{¶ 70} In her tenth assignment of error, Rich maintains that “cumulative error” deprived her of a fair trial. She asserts that several of the alleged errors she addressed above, even if individually harmless, constitute prejudicial error when aggregated.
{¶ 71} It is true that separately harmless errors may violate a defendant‘s right to a fair trial when the errors are aggregated. State v. Madrigal, 87 Ohio St.3d 378, 397, 721 N.E.2d 52 (2000). To find cumulative error, we first must find multiple errors committed at trial. Id. at 398. We then must find a reasonable probability that the outcome below would have been different but for the combination of separately harmless errors. State v. Thomas, 2d Dist. Clark No. 2000-CA-43, 2001 WL 1103328, *9 (Sept. 21, 2001). Here, however, we have not found multiple instances of separately harmless error. That being
{¶ 72} Based on the reasoning set forth above, we affirm the judgment of the Montgomery County Common Pleas Court.
. . . . . . . . . . . . .
WELBAUM, P. J. and FROELICH, J., concur.
Copies mailed to:
Mathias H. Heck
Heather N. Jans
George Katchmer
Hon. Michael W. Krumholtz