State v. StevensState v. Stevens
Lead Opinion
{¶ 1} Appellants, Zachary Bondurant and Jeffrey Stevens, were involved in the sale of drugs in Highland County from late 2010 until early 2011. Although the total amount of money involved in the sales attributed to each appellant was $460 and $250 respectively, they were both charged with engaging in a pattern of corrupt activity under
{¶ 2}
{¶ 3} Under Ohio’s RICO statutes, there are two reasonable interpretations regarding the monetary threshold that must be met in order to obtain a RICO conviction under
{¶ 4} It is a longstanding principle of Ohio law that criminal statutes that are found to be ambiguous are to be construed in favor of the defendant. Accordingly, since we find that the Ohio RICO statute applicable here is ambiguous in that the interpretation that favors the defendants is reasonable, we must interpret the statute in favor of appellants. That means that the minimum threshold found in
Facts and Procedural History
{¶ 5} Over the course of several months, the Highland County Sheriffs Department and the U.S. 23 Pipeline Task Force engaged in a prolonged investigation into drug activity centered in and around Highland County. That investigation revealed what the prosecution referred to as a “drug ring” that was headed by a man named Rodger Cassell and that included both Stevens and Bondurant. There were allegedly a total of nine individuals involved. Both Stevens and Bondurant were charged with engaging in a pattern of corrupt activity. Stevens was also charged with eight counts of trafficking in drugs and eight counts of possession of drugs. Bondurant was charged with six counts of possession of drugs and six counts of trafficking in drugs in a school zone. Both appellants entered pleas of not guilty, and a joint jury trial proceeded against both men.
{¶ 6} After the state presented its case, both men moved for acquittals under
{¶ 7} Appellants filed separate appeals in the Fourth District Court of Appeals. The key issue raised by both men was a challenge to their convictions under Ohio’s RICO statutes. The principal argument that each made was that the state failed to offer evidence demonstrating that either of them was involved in drug sales that totaled $500 or more. The state in essence argued in response that it was sufficient to prove that the total amount of drug sales attributable to the enterprise as a whole was over $500. The state at trial had produced evidence that the total sales of the enterprise were well over $35,000. However, the evidence of actual sales offered by the state attributable to Stevens had amounted to about $250, and the state’s evidence offered with respect to Bondurant had attributed $460 worth of drug sales to him. Thus, neither appellant, during the time period covered by the extended investigation, was shown to have engaged in total drug sales of $500 or more.
{¶ 8} After the court of appeals affirmed the convictions and sentences in a consolidated opinion, we accepted each appellant’s discretionary appeal.
Analysis
{¶ 9}
{¶ 10} The key focus of our analysis is
when the proceeds of the violation, the payments made in the violation, the amount of a claim for payment or for any other benefit that is false or deceptive and that is involved in the violation, or the value of the contraband or other property illegally possessed, sold, or purchased in the violation exceeds five hundred dollars [now one thousand dollars], or any combination of violations described in division (I)(2)(c) of this section when the total proceeds of the combination of violations, payments made in the combination of violations, amount of the claims for payment or for other benefits that is false or deceptive and that is involved in thecombination of violations, or value of the contraband or other property illegally possessed, sold, or purchased in the combination of violations exceeds five hundred dollars [now one thousand dollars].
(Emphasis added.)
{¶ 11} The legislature’s continued use of the phrase “combination of violations” in this statute is ambiguous as it could be read to apply to more than one violation for an individual, or it could be read to refer to the total violations of the entire enterprise. Within the context of this statute, it is susceptible of more than one reasonable interpretation. See State v. Jordan,
{¶ 12} We are guided by the rules of statutory interpretation as codified in the rule of lenity,
{¶ 13} However, the Fourth District Court of Appeals’ decision to evaluate the legislative intent in drafting
{¶ 14} Appellants’ proposed interpretation is clearly reasonable.
{¶ 15} It seems doubtful that the legislature intended to hold even small-time drug dealers liable for a first-degree felony through the operation of
{¶ 16} There are already laws in place prohibiting the sale of illegal narcotics. Thus, the purpose of the Ohio RICO Act would not be furthered by accepting the conclusion that the threshold amount set forth in
{¶ 17} Although the above considerations illustrate the reasonableness of appellants’ proposed construction of
Conclusion
{¶ 18} Based upon the foregoing analysis, we conclude that in order to obtain a conviction for engaging in a pattern of corrupt activity,
Judgment reversed and causes remanded.
Notes
.
Concurrence Opinion
concurring in judgment only.
{¶ 19} I concur with the decision to reverse the court of appeals’ judgment, but not because I find the definition of “corrupt activity” in
{¶ 20} It is imprecise to frame the issue as whether
{¶ 21}
{¶ 22} This does not mean that the statute requires proof that the defendant personally profited, or personally possessed contraband, in excess of the threshold (although either scenario would satisfy the statute). A defendant could still commit an incident of “corrupt activity” under
{¶ 23} But here, the court of appeals found that Stevens and Bondurant each satisfied
{¶ 24} I see no interpretation of
{¶ 26} However, even if sufficient evidence did support Stevens’s RICO conviction, I would reverse based on Stevens’s second proposition of law for the reasons stated by Justice Kennedy in her separate opinion.
. Although serial numbers on some of the bills included in the $35,000 matched the “buy” money used in the drug-trafficking crimes involving Bondurant, the state never specified the exact amount at trial.
Concurrence Opinion
concurring in part and dissenting in part.
{¶ 27} Respectfully, I dissent from the lead opinion’s conclusion that
{¶ 28} While the lead opinion does not address Stevens’s second proposition of law regarding
{¶ 29} This court accepted a total of three propositions of law from the appellants, and each requires a specific answer. Jeffrey Stevens advances the following two propositions of law:
1.R.C. § 2923.31(I)(2)(e) requires a threshold amount of $500.00 value of contraband sold. Where the statute is ambiguous as to whether the aggregation of the combined value of contraband sold is an aggregation of the individual’s illicit activities or an aggregation of the enterprise’s illicit activities, the trial and appellate courts erred in adopting an interpretation against the accused and his liberty interest by aggregating the enterprise as a whole rather than the individual.
2. The defendant was convicted of Engaging in a Pattern of Corrupt Activity underR.C. § 2923.32(A)(1) and his predicate acts were all fifth degree felonies. The statute is ambiguous as to whether the predicateacts are the individual’s acts or any other actor in the enterprise. The statute should be interpreted as to the individual, not the enterprise and thus where a jury makes no finding of a felony predicate act of the first, second, or third degree, the defendant should be sentenced as a second degree felony rather than a first degree felony under [R.C.] 2923.32(B).
{¶ 30} Zachary Bondurant advances one proposition of law:
A defendant may only be convicted of engaging in a pattern of “corrupt activity” as defined inR.C. 2923.31(I)(2)(c) if the value of the contraband for that defendant’s activities is equal to or exceeds the threshold amount set forth in the statute.
{¶ 31} While presented differently, Bondurant’s sole proposition of law and Stevens’s first proposition of law pertain to the same inquiry: whether through applying the rule of lenity or applying the statute’s plain meaning,
Background
{¶ 32} At the joint trial of Stevens and Bondurant, the testimony of fellow participants in the corrupt enterprise established that those other participants had been convicted of second- and third-degree-felony drug offenses for their roles in the enterprise. A jury found Stevens and Bondurant guilty of dozens of violations for possessing and trafficking in drugs. After merging the possession and trafficking counts, the trial court sentenced Stevens on five counts of fifth-degree trafficking in drugs. After merging counts, the court sentenced Bondurant on three counts of fourth-degree-felony acts of trafficking in drugs in a school zone. The trafficking convictions were all pursuant to
{¶ 33} Regarding Bondurant’s sole proposition of law and the first proposition of law of Stevens, I would hold that because the RICO statutory scheme targets the corrupt enterprise and not the individuals involved in it, the aggregated proceeds of $35,000 from the group’s corrupt activity are attributable to appel
{¶ 34} We begin with
{¶ 35}
{¶ 36} Next is the definition of “pattern of corrupt activity.”
{¶ 37} Finally comes the language central to this case.
Any violation of section * * * 2925.03 * * * of the Revised Code, [or] any violation of section 2925.11 of the Revised Code that is a felony of the first, second, third, or fourth degree and that occurs on or after July 1, 1996, * * * when the proceeds of the violation, the payments made in the violation, the amount of a claim for payment or for any other benefit that is false or deceptive and that is involved in the violation, or the value of the contraband or other property illegally possessed, sold, or purchased in the violation exceeds five hundred dollars, or any combination of violations described in division (I)(2)(c) of this section when the total proceeds of the combination of violations, payments made in the combination of violations, amount of the claims for payment or for other benefits that is false or deceptive and that is involved in the combination of violations, or valueof the contraband or other property illegally possessed, sold, or purchased in the combination of violations exceeds five hundred dollars.
(Emphasis added.)
{¶ 38} The interpretation that the lead opinion gives
{¶ 39} The rule of lenity does not require reversal. “Since context gives meaning,” we cannot say that the statute is ambiguous until we consider the language as it is used in the statute rather than in isolation. United States v. Santos,
{¶ 40} We have already applied the RICO statute based on its context and purpose, ruling unanimously that violating RICO is a strict-liability offense. State v. Schlosser,
{¶ 41} The part of former
any combination of violations described in division (I)(2)(c) of this section when the total proceeds of the combination of violations, payments made in the combination of violations, amount of the claims for payment or for other benefits that is false or deceptive and that is involved in the combination of violations, or value of the contraband or other propertyillegally possessed, sold, or purchased in the combination of violations exceeds five hundred dollars.
(Emphasis added.) With this statute, the General Assembly straightforwardly “impose[d] cumulative liability for the criminal enterprise,” Schlosser at 335, when “total proceeds of the combination of violations” produced more than $500.
{¶ 42} “Total” means “viewed as an entity.” Webster’s Third New International Dictionary 2414 (1986). The proceeds that are attributable to these defendants in the enterprise comprise a portion of the proceeds of the combination of violations, not the total. Total proceeds were more than $35,000. Therefore, the statute does not require each defendant to have derived more than $500 in proceeds from the corrupt activity. It requires merely that the combined efforts of the criminal enterprise yielded more than $500 in proceeds. Former
{¶ 43} Because the statute is not ambiguous,
{¶ 44} Even if ambiguity could be divined within former
Stevens’s First-Degree-Felony Conviction Under
{¶ 45} Although Stevens was properly convicted of a RICO violation, his second proposition of law compels a holding in his favor. I would reverse
{¶ 46}
Whoever violates this section is guilty of engaging in a pattern of corrupt activity. Except as otherwise provided in this division, engaging in corrupt activity is a felony of the second degree. Except as otherwise provided in this division, if at least one of the incidents of corrupt activity is a felony of the first, second, or third degree, * * * engaging in a pattern of corrupt activity is a felony of the first degree.
(Emphasis added.)
{¶ 47} The state asserts that the statute is worded so that an accused may be convicted of a first-degree felony so long as “one of the incidents of corrupt activity” committed by anyone in the enterprise is “a felony of the first, second, or third degree.” For support, the state cites
{¶ 48} The state’s position concerning the complicity statute is unpersuasive. Stevens was not convicted under
{¶ 49}
{¶ 50} Therefore, I concur in the majority result to the extent that a majority reverses Stevens’s conviction for a first-degree-felony RICO violation, but I would remand the case to the trial court for entry of judgment of conviction on a second-degree felony for that violation.
Dissenting Opinion
dissenting.
{¶ 51} We are not presented with an 18-year-old high school senior who was arrested for selling a dime bag of marijuana and prosecuted for a violation of Ohio’s Racketeer-Influenced and Corrupt Organizations (“RICO”) statutes based on some tenuous tie between his product and a multibillion-dollar Colombian drug cartel.
{¶ 52} We are presented with two men, each between 30 and 40 years old, who repeatedly sold heroin, crack cocaine, and powder cocaine to a number of people in a number of counties over a number of months.
{¶ 53} As the appellate court recognized, the state’s theory in this case is that Jeffrey Stevens was the right-hand man, and Zachary Bondurant was the left-hand man, of Rodger Cassell, the purported leader of their criminal enterprise. State v. Bondurant,
{¶ 54} The suggestion that Bondurant and Stevens are anything less than professional purveyors of some of the most destructive drugs in society is, at best, disingenuous.
{¶ 55} But my quarrel is not simply over the lead opinion’s mischaracterization of the nature of this appeal. It is with the lead opinion’s improper analysis of the criminal statute at issue,
{¶ 56} The statute is unambiguous, both in wording and in context. The convictions of Bondurant and Stevens should be affirmed.
Analysis
{¶ 57} The Organized Crime Control Act of 1970, Pub.L. No. 91-452, 84 Stat. 941, codified as 18 U.S.C. 1961 et seq., was enacted after Congress found that organized crime in the United States, including drug trafficking, was “ ‘a highly sophisticated, diversified, and widespread activity.’ ” State v. Schlosser,
{¶ 58} To effectuate its goals, the law’s sponsors eschewed precise wording. Instead, they used commodious language to broadly encompass crimes committed by an enterprise. See H.J., Inc. v. Northwestern Bell Tel. Co.,
{¶ 59} Ohio, like many states, enacted its own version of RICO through the adoption of
{¶ 60}
when the proceeds of the violation, the payments made in the violation, the amount of a claim for payment or for any other benefit that is false or deceptive and that is involved in the violation, or the value of the contraband or other property illegally possessed, sold, or purchased in the violation exceeds five hundred dollars [now one thousand dollars], or any combination of violations described in division (I)(2)(c) of this section when the total proceeds of the combination of violations, payments made in the combination of violations, amount of the claims for payment or for other benefits that is false or deceptive and that is involved in the combination of violations, or value of the contraband or other propertyillegally possessed, sold, or purchased in the combination of violations exceeds five hundred dollars [now one thousand dollars].
(Emphasis added.)
{¶ 61} At the time of its enactment, Ohio’s RICO Act was described by one of its sponsors as “‘the toughest and most comprehensive [RICO] Act in the nation.’ ” Schlosser,
{¶ 62} There is no doubt that criminal statutes must be strictly construed against the state in certain situations.
{¶ 63} As we recently reaffirmed, unanimously, Ohio’s RICO statute is focused on the criminal enterprise, not on the individuals that comprise the enterprise. State v. Miranda,
{¶ 64} “Combination” means many things, and its definitions are clear and relevant here: “the act of combining or the state of being combined,” “a number of things combined,” “something formed by combining,” “an alliance of persons or parties,” and “a group thus formed.” The Random House Dictionary of the English Language 408 (2d Ed.1987). See also Rush Beverage Co., Inc. v. S. Beach Beverage Co., Inc., N.D.Ill. No. 01 C 5684,
{¶ 65} The lead opinion’s conclusion that the General Assembly’s use of the term “combination” in
{¶ 66} As Justice White wrote in Turkette:
“The rule [of lenity] comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.” Callanan v. United States,364 U.S. 587 , 596,81 S.Ct. 321 , 326,5 L.Ed.2d 312 (1961) (footnote omitted). There being no ambiguity in the RICO provisions at issue here, the rule of lenity does not come into play. See United States v. Moore,423 U.S. 122 , 145,96 S.Ct. 335 , 346,46 L.Ed.2d 333 (1975), quoting United States v. Brown,333 U.S. 18 , 25-26,68 S.Ct. 376 , 379-380,92 L.Ed. 442 (1948) (“ ‘The canon in favor of strict construction [of criminal statutes] is not an inexorable command to override common sense and evident statutory purpose. * * * Nor does it demand that a statute be given the “narrowest meaning”; it is satisfied if the words are given their fair meaning in accord with the manifest intent of the lawmakers’ ”); see also Lewis v. United States,445 U.S. 55 , 60-61,100 S.Ct. 915 , 918-919,63 L.Ed.2d 198 (1980).
{¶ 67} The lead opinion’s analysis corrupts the court’s teachings on the rule of lenity, as well as the context of Ohio’s RICO statute and the plain meaning of the words used in the statute. And the lead opinion’s conclusion gives rise to an undue, unfair, and unwelcome ambiguity in a statute that affords important protections to Ohioans.
{¶ 68} I strongly dissent.
. Any intimation by the lead opinion that the sweep of Ohio’s RICO statutory scheme is so broad that it will lead to unfettered prosecutions of naive adolescents is unsupported. If the legislative scheme permitted a genuine constitutional affront of that type based on such an attenuated theory for engaging in a pattern of corrupt activity, this court would undoubtedly remedy it. See State v. Young,