STATE OF OHIO, Plaintiff-Appellee, - vs - DANNA WEIMER, Defendant-Appellant.
CASE NO. 2013-L-005
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO
June 23, 2014
2014-Ohio-2882
COLLEEN MARY O‘TOOLE, J.
[Cite as State v. Weimer, 2014-Ohio-2882.] Criminal Appeal from the Lake County Court of Common Pleas, Case No. 12 CR 000426. Judgment: Affirmed in part; reversed in part; vacated in part; and remanded.
Russell S. Bensing, 1370 Ontario Street, 1350 Standard Building, Cleveland, OH 44113 (For Defendant-Appellant).
OPINION
COLLEEN MARY O‘TOOLE, J.
{¶1} Appellant, Danna Weimer, appeals from the December 13, 2012 judgment of the Lake County Court of Common Pleas, sentencing her for receiving stolen property, possession of drugs, possession of heroin, possession of cocaine, possession of dangerous drugs, aggravated possession of drugs, tampering with evidence, aggravated burglary, aggravated murder, and engaging in a pattern of corrupt activity.
{¶2} This case arises from the burglary of Eleanor Robertson‘s (“Robertson“) home and her death by homicide on June 12, 2012. On August 14, 2012, appellant was indicted by the Lake County Grand Jury on 17 counts involving Robertson and two other victims, Egidius Stroombeek (“Stroombeek“) and Paul Hatcher (“Hatcher“): counts 1 and 3, receiving stolen property, felonies of the fifth degree, in violation of
{¶4} A jury trial commenced on October 1, 2012. At the trial, the state presented 37 witnesses and nearly 300 exhibits. The testimony revealed that Robertson was an active 77-year-old woman who lived alone on Canterbury Drive in Madison Township, Lake County, Ohio. She was known throughout her neighborhood for selling raffle tickets to raise money for various organizations and for paying kids in cash for helping her around her house.
{¶5} In the early morning hours on June 13, 2012, two neighbors, Jerry Deel (“Deel“) and Christine Arnold (“Arnold“), noticed that Robertson‘s garage door was open and that her van was not inside. Both Deel and Arnold found this very unusual because Robertson always closed her garage door. Later that afternoon, the neighbors observed all of Robertson‘s curtains closed, another unusual sighting. The neighbors then noticed that Robertson‘s garage door was closed, and assumed that she was home. However, attempts to reach Roberston via telephone were unsuccessful. Thus, Deel and Arnold went to Robertson‘s house, knocked on the door, but received no answer.
{¶7} Sergeant Ralph Caswell (“Sergeant Caswell“) with the Madison Township Police Department (“MTPD“) was the first officer to arrive at Robertson‘s house. After determining that the home had been burglarized, Sergeant Caswell called for assistance to help him process the scene. He also issued a Silver Alert, i.e., a bulletin to notify the community when an elderly person is missing. Jamie Walsh (“Walsh“), a forensics examiner with the Lake County Crime Lab, and his team, later arrived at the residence and began processing the scene. Robertson‘s body was ultimately discovered in her bedroom, partially under her mattress and a pile of clothing.
{¶8} The following day, Dr. Erica Armstrong (“Dr. Armstrong“) with the Cuyahoga County Coroner‘s Office performed an autopsy on Robertson‘s body. Dr. Armstrong determined that Robertson had sustained both blunt force and sharp force injuries to her head, trunk, arms, legs, abdomen, back, neck, and shoulders. Dr. Armstrong also determined that Robertson had been stabbed 94 times. Robertson‘s body also had some charring and some alteration by some type of chemical. It was not possible to narrow down the exact time of death. However, Dr. Armstrong indicated that
{¶9} In addition to the foregoing evidence, it was also revealed at trial that prior to the discovery of Robertson‘s dead body at her home, appellant and her son, Zachary, were involved in an incident with the Euclid Police Department (“EPD“). Around 5:30 p.m. on June 13, 2012, Patrolman Donald Ivory (“Patrolman Ivory“) with the EPD was on general patrol duty. He was patrolling a high drug activity area near Gold Werks, a local pawn shop.
{¶10} Patrolman Ivory observed a woman slumped over in the front seat of her vehicle. When Patrolman Ivory approached the woman to see if she needed any assistance, he saw that she was actually leaning over into the passenger seat and touching a magnet to several pieces of jewelry. He also saw a large box of jewelry on the floor of her vehicle. The woman indicated that the jewelry belonged to her son who was inside the pawn shop. Patrolman Ivory asked the woman for her identification. As she was going through her purse, Patrolman Ivory observed a syringe. The car was full of belongings and a digital scale was also observed inside of her purse. The woman was identified as appellant.
{¶11} Patrolman Ivory testified that after appellant‘s son exited Gold Werks, he told Patrolman Ivory that his name was “Gregory,” that he did not have any identification on him, and that the jewelry in the car belonged to his mother. However, a later search of his person revealed that he did in fact have an identification card and that his name was Zachary Weimer. Both appellant and Zachary were arrested. Appellant‘s vehicle
{¶12} Shorty after the Euclid incident, the EPD learned of a Silver Alert for a missing elderly woman in Madison Township named Eleanor Robertson and contacted the MTPD. Lieutenant Tim Brown (“Lieutenant Brown“) with the MTPD testified that after speaking with Patrolman Ivory, he learned about the strongbox that was found in appellant‘s vehicle in Euclid with the name, “E. Robertson.” Because the victim‘s name in the Madison Township case was “Eleanor Robertson,” Lieutenant Brown and Detective Timothy Doyle (“Detective Doyle“), also with the MTPD, went to the EPD. They initially met with Patrolman Ivory and other EPD officers. Thereafter, Lieutenant Brown and Detective Doyle interviewed appellant and Zachary. Detective Doyle testified that appellant was not truthful when questioned by the officers.
{¶13} Investigation on the case continued. At trial, Nestor Angulo (“Angulo“) and Patrick Finney (“Finney“), who both knew appellant and Zachary for a long time, along with Detective Elizabeth Kirk with the MTPD, collectively indicated that appellant and Zachary were drug abusers. To support their habits, appellant and Zachary would sell items at local pawn shops. Finney and Joseph Krizman (“Krizman“), who also knew appellant and Zachary, testified that appellant worked as a cleaning lady in exchange for drugs and money.
{¶14} Appellant‘s other son, Greg Weimer (“Greg“), and his live-in girlfriend, Erin Perkins (“Perkins“), testified that appellant and Zachary were always together and that appellant drove Zachary everywhere because he did not have a car. Greg indicated that appellant had been Robertson‘s neighbor for many years when she lived on
{¶15} Perkins and Megan Cool (“Cool“), another Canterbury Drive neighbor, saw appellant and Zachary at Greg‘s house shortly before noon on June 12, 2012. Cool observed appellant and Zachary outside of Greg‘s residence engaged in a loud argument with four or five people. According to Greg, appellant and Zachary subsequently left his home and went to Andover Bank to cash a forged check of Greg‘s for $100. Thereafter, Angulo testified that he received eight calls from Zachary. Angulo indicated that appellant and Zachary met with him because they wanted drugs. However, Angulo was unable to provide them with any.
{¶16} Further, Greg testified that the day before the argument at his house, Zachary had cashed a forged check of Greg‘s for $150. Greg additionally indicated that he had recently loaned Zachary $200. After finding out from the bank about the forged checks, Greg became angry. He demanded that he be paid back.
{¶17} Later on in the afternoon on June 12, 2012, Finney and Krizman indicated that appellant went to a house on Benjamin Road in Madison Township, which was occupied by several of Zachary‘s previous friends. Finney stated that Zachary briefly lived at that house until he was thrown out for stealing. According to Finney and Krizman, although Zachary was no longer welcome at the house, appellant was, and she would go there to cook and clean for the men in exchange for cash or drugs. Finney said that appellant did drugs every time she went there. During the afternoon at
{¶18} After appellant left the Benjamin Road house, cell phone records and video from her Sexton Road home surveillance system, which were admitted at trial as state‘s exhibits, reveal her movements and contact with Zachary. Appellant‘s cell phone hit off a tower near Robertson‘s house at 8:30 p.m. Appellant did not return to her own home until 9:46 p.m. Appellant and Zachary had frequent communication throughout the night and early morning hours via cell phone and text messages. At 4:44 a.m., on June 13, 2012, Zachary arrived at appellant‘s home on Sexton Road in Robertson‘s van. Zachary unloaded Robertson‘s belongings near appellant‘s vehicle. When he was finished, Zachary left appellant‘s house in Robertson‘s van to purchase drugs from Charles McElroy (“McElroy“). McElroy testified that Zachary called him three times on June 12 and eight times on June 13, 2012. McElroy said that Zachary bought heroin and was driving a van that he had never seen before.
{¶19} Zachary returned to appellant‘s home in Robertson‘s van at 10:56 a.m. Appellant helped Zachary dispose Robertson‘s van and sort through her property. They placed some of Robertson‘s belongings in appellant‘s car and some others in a safe in appellant‘s bedroom. Appellant and Zachary disposed some remaining items in a burn pile in appellant‘s backyard. Thereafter, appellant and Zachary took Robertson‘s property to Gold Werks in Euclid, where they were caught by Patrolman Ivory.
{¶20} After their arrest, Robertson‘s family members positively identified over 50 pieces of Robertson‘s jewelry and other household items, which were found in appellant‘s vehicle as well as in a locked safe in appellant‘s bedroom. In addition,
{¶21} Further information concerning Robertson‘s murder was obtained from Richard Gould (“Gould“), a Lake County Jail inmate. Gould testified that he indicated to authorities that Zachary told him the following: Zachary and his “buddy” went to an elderly woman‘s home who had a safe with jewelry and cash; they knocked on the door and rushed into the house when she answered; Zachary stabbed the woman with a screw driver until he got tired, then moved her body to her bed; Zachary and his “buddy” barricaded the door, lit candles to make the death look accidental, rummaged through the home for anything they could sell, and cleaned the house with bleach to destroy any evidence; and they loaded up the woman‘s property into her van and left her house. According to Gould, Zachary did not reveal the identity of his “buddy.”
{¶22} In addition to telling authorities about the foregoing information, Gould provided them with letters written by appellant and Zachary, which Gould stored for Zachary in Gould‘s jail cell. Additional letters were also recovered from appellant‘s and Zachary‘s cells. Collectively, the letters, which were admitted at trial as state‘s exhibits,
{¶23} Lastly, during the investigation involving Robertson, two other victims, Hatcher and Stroombeek, were discovered. Hatcher‘s name was on prescription medication bottles found in appellant‘s safe. Hatcher testified that appellant did not have his permission to take his medications. Also found in appellant‘s safe was medication and jewelry belonging to Stroombeek. Lisa Ungers (“Ungers“) testified that Stroombeek is like a father to her. Ungers indicated that appellant had been Stroombeek‘s cleaning lady and caregiver. Ungers and Michael Cutler, a business associate of Stroombeek‘s, testified that appellant was fired after she made unauthorized purchases on Stroombeek‘s credit card, in addition to other behaviors and violations.
{¶24} At the close of the state‘s case, defense counsel moved for a
{¶25} Following deliberations, the jury returned guilty verdicts on all counts of the indictment. The trial court deferred sentencing and referred the matter to the Adult Probation Department for a pre-sentence investigation and report, a victim impact statement, and a drug and alcohol evaluation.
{¶27} “[1.] The trial court erred by failing to grant a judgment of acquittal, pursuant to
{¶28} “[2.] The trial court erred by entering a judgment of conviction of aggravated burglary and aggravated murder that was against the manifest weight of the evidence, in derogation of Defendant‘s right to due process of law, as protected by the Fourteenth Amendment to the United States Constitution.
{¶30} “[4.] The trial court erred by entering a judgment of conviction of engaging in a pattern of corrupt activity that was against the manifest weight of the evidence, in derogation of Defendant‘s right to due process of law, as protected by the Fourteenth Amendment to the United States Constitution.
{¶31} “[5.] The trial court erred in admitting hearsay evidence concerning statements made by a co-defendant, in violation of Defendant‘s right to confrontation, as protected by the Sixth Amendment to the United States Constitution.”
{¶32} Preliminarily, we note that appellant does not take issue with the suppression or her sentence. Rather, appellant‘s appeal centers around issues related to her trial. For ease of discussion, we will address appellant‘s assignments of error out of order. Appellant‘s first and fifth assignments are interrelated. Thus, we will discuss them in a consolidated fashion beginning with the fifth assignment.
{¶33} In her fifth assignment of error, appellant argues that the trial court erred in admitting hearsay evidence concerning statements made by Zachary, her co-defendant, in violation of her right to confrontation, as protected by the Sixth Amendment to the United States Constitution.
{¶35} The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right (* * *) to be confronted with the witnesses against him (* * *).” The United States Supreme Court, in Crawford v. Washington, 541 U.S. 36, 51 (2004), determined the Confrontation Clause “applies to ‘witnesses’ against the accused – in other words, those who ‘bear testimony.‘” The Supreme Court held the right to confrontation applies to all “testimonial statements.” Id. at syllabus. To determine whether a statement is testimonial in nature, the proper inquiry is “‘whether a reasonable person in the declarant‘s position would anticipate his statement being used against the accused in investigating and prosecuting the crime.‘” State v. Metter, 11th Dist. Lake No. 2012-L-029, 2013-Ohio-2039, ¶35, quoting United States v. Cromer, 389 F.3d 662, 675 (6th Cir.2004).
{¶36} “Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law — as does [Ohio v. Roberts, 448 U.S. 56 (1980)], and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” (Emphasis added.) Crawford at 68. In Crawford, the Supreme Court noted that a statement made in furtherance of a conspiracy is an example of an inherently non-testimonial statement. Id. at 56.
{¶38} While in jail awaiting trial, Zachary allegedly made statements to Gould, also a Lake County Jail inmate. Zachary told Gould that he went to Robertson‘s door, she answered, and he bum-rushed her and entered the home. Zachary also told Gould that “him and his buddy” were at Robertson‘s home; that after he stabbed Robertson, “him and his buddy” then put her in a bed and were going to cover-up the crime; and that “his buddy” cleaned the blood that was left around the house. Zachary never revealed the identity of “his buddy.”
{¶39} Zachary‘s statements concerning the crime were not made for later use in a prosecution, and thus, the statements are inherently nontestimonial. Co-conspirator statements are inherently nontestimonial because the purpose for making the statements is not for later use at trial. See United States v. Mooneyham, 473 F.3d 280, 286 (6th Cir. 2007) (applying Crawford to co-conspirator statements). Moreover, as stated, the Crawford Court specifically identified statements in furtherance of a conspiracy as examples of statements that are inherently nontestimonial. See Crawford at 56.
{¶41} In general, a co-conspirator‘s statements to a third party which simply describe the events that occurred are not made in furtherance of the conspiracy. Braun, supra, at ¶113. For example, in Braun, the Eighth Appellate District determined the trial court erred in its admission of statements made by a co-conspirator to an individual while they shared the same pod in the Cuyahoga County Jail. The co-conspirator bragged about the death of the victim, stating that he and the appellant called the victim for drugs and to set up a robbery. The co-conspirator relayed that he and the appellant robbed the victim, shot the victim, then disposed of the victim‘s body and the bloody
{¶42} Akin to the statements in Braun, Zachary‘s statements to Gould were not made in furtherance of the conspiracy, but were a recitation of events that occurred prior to, during, and immediately following her murder. The admission of Gould‘s statements violated appellant‘s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution.
{¶43} Although the trial court committed constitutional error, such error can be harmless in certain circumstances.
{¶44} “A constitutional error can be held harmless if we determine that it was harmless beyond a reasonable doubt. Whether a Sixth Amendment error was harmless beyond a reasonable doubt is not simply an inquiry into the sufficiency of the remaining evidence. Instead, the question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, ¶78. (Citation omitted.)
{¶45} Appellant was charged with aggravated burglary, a felony of the first degree, in violation of
{¶46} Appellant was also charged with aggravated murder, an unclassified felony, in violation of
{¶47} In this case, appellant was prosecuted under a theory of complicity. “To support a conviction for complicity by aiding and abetting * * *, the evidence must show that the defendant supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime, and that the defendant shared the criminal intent of the principal.” State v. Johnson, 93 Ohio St.3d 240, syllabus (2001). “Such intent may be inferred from the circumstances surrounding the crime.” Id. “Criminal intent * * * can be inferred from the presence, companionship and conduct of a criminal defendant both before and after the offense is committed, State v. Pruett (1971), 28 Ohio App.2d 29, 34, * * *, and may be proven by either direct or circumstantial evidence. See State v. Mootispaw (1996), 110 Ohio App.3d 566, 570, * * *; State v. Cartellone (1981), 3 Ohio App.3d 145, 150, * * *.” State v. Nievas, 121 Ohio App.3d 451, 456-457 (8th Dist.1997). (Parallel citations omitted.)
{¶48} At trial, the state‘s position was that appellant was apparently either waiting around to pick up Zachary or helping him at Robertson‘s house. The state argued at trial that appellant, who was Robertson‘s neighbor for many years, was the
{¶49} According to Greg, appellant and Zachary subsequently left his home and went to Andover Bank to cash a forged check of Greg‘s, the second forged check in two days. After finding out from the bank about the forged checks, Greg became angry. He demanded that he be paid back. Zachary promised to pay Greg back for the money he took. Thereafter, Angulo testified that he received eight calls from Zachary. Angulo indicated that appellant and Zachary met with him because they wanted drugs. However, Angulo was unable to provide them with any. Appellant and Zachary were in desperate need for money to pay back Greg as well as for money to buy other drugs.
{¶50} Around 2:30 that afternoon, appellant‘s cell phone hit off a cell tower near Robertson‘s house. The state theorized that one could reasonably conclude that appellant dropped off Zachary at or near Robertson‘s home. Finney and Krizman indicated that appellant later went to the Benjamin Road house to do drugs. While there, she and Zachary exchanged text messages. Appellant texted Zachary that she was going home and he responded that he would talk to her later. Appellant left the Benjamin Road residence between 7:30 and 8:00 p.m. Around 8:30 p.m., appellant‘s cell phone again hit off a cell tower near Robertson‘s house. Around 9:15 p.m.,
{¶51} Shortly after 10:00 p.m., appellant sent a text message to Zachary for him to call her “ASAP.” At 10:18 p.m., appellant called Zachary. They spoke for 95 seconds. At 10:49 p.m., Zachary called her back. They conversed for 46 seconds. Between these calls, appellant was seen on the surveillance video exiting her house, looking at the cameras and different locations around the driveway near her vehicle. Appellant and Zachary exchanged six more phone calls between 11:16 p.m. and 11:25 p.m.
{¶52} At 11:51 p.m., appellant texted Zachary indicating that she was tired and could not stay awake much longer. Zachary did not respond. Appellant sent two more texts shortly after midnight on June 13, 2012, indicating for him to let her know if he needed a ride because she was tired. Zachary did not respond. At 12:45 a.m., appellant texted Zachary that she was going to bed and asked if she should leave the door opened for him. He did not respond.
{¶53} At 4:18 a.m., Zachary called appellant. They spoke for 23 seconds. Zachary called her again at 4:36 a.m. They talked for 377 seconds. At 4:44 a.m., Zachary arrived at appellant‘s home on Sexton Road in Robertson‘s van. Video surveillance showed Zachary unloading Robertson‘s belongings near appellant‘s vehicle and placing bags in a garbage can. While there, appellant called Zachary‘s cell phone. They conversed for 38 seconds. At 5:22 a.m., Zachary left appellant‘s house in Robertson‘s van to purchase drugs from McElroy with money stolen from Robertson.
{¶54} At 9:04 a.m., Zachary called appellant. They spoke for 119 seconds. Between 10:13 a.m. and 10:56 a.m., they were in contact 10 more times. At 10:56 a.m., Zachary returned to appellant‘s home in Robertson‘s van. Around 11:15 a.m., appellant and Zachary left her house. Appellant drove her own vehicle and Zachary drove Robertson‘s van. For the next 13 minutes, they were in constant contact. In one text message, appellant provided Zachary with directions, telling him to “take next left.” After appellant helped Zachary dispose Robertson‘s van, they returned to appellant‘s Sexton Road residence at 12:07 p.m. in her vehicle.
{¶55} As captured on video surveillance, appellant and Zachary then sorted through Robertson‘s property. They placed some of it in appellant‘s vehicle, some in her locked safe, and disposed the rest of it in a burn pile in her backyard. Thereafter, appellant and Zachary took Robertson‘s property to Gold Werks in Euclid, to sell for drug money, where they had an encounter with Patrolman Ivory. Appellant was caught at that time with some of Robertson‘s property in her car. Later, Robertson‘s other property was discovered in appellant‘s locked safe. Also, a half-eaten Nutrigrain bar from Robertson‘s house was discovered on appellant‘s bed.
{¶56} After their arrests, appellant lied to police when asked if Zachary had a cell phone. Appellant also lied to police that she did not know Robertson, her neighbor of many years.
{¶58} Gould’s testimony was also the only evidence that suggested another individual was, in fact, in Robertson’s home prior to, during, and after the murder. Although Zachary never revealed the identity of “his buddy,” the state linked Zachary’s use of the term “buddy” with the letters exchanged between Zachary and appellant while both were incarcerated. Specifically, in her closing argument, the prosecutor stated: “Again, the tone of the letter, my bear cub forever, you’re my best friend forever. You’ll always be my buddy. Interesting use of the words, buddy. Especially when you listen to Gould’s statement where Zac Weimer said me and my buddy committed this offense.”
{¶59} Additionally, the fact that these statements were the only evidence suggesting there was, in fact, a conspiracy also brings into focus the last phrase of
{¶60} Based on the evidence presented at trial, we conclude there was a reasonable possibility that Gould’s testimony contributed to appellant’s convictions for aggravated murder and aggravated burglary. As noted, the state presented other evidence as to these charges, but the evidence that placed appellant in the home prior to, during, and after the murder was impermissibly admitted.
{¶62} Appellant’s first assignment of error is overruled and her fifth assignment of error has merit.
{¶63} In her second assignment of error, appellant contends that the trial court erred in entering a judgment of conviction for aggravated burglary and aggravated murder, against the manifest weight of the evidence. Based on the disposition of appellant’s first and fifth assignments of error, her second assignment of error is moot.
{¶64} In her third assignment of error, appellant alleges that the trial court erred in failing to grant her
{¶65} With regard to sufficiency, in State v. Bridgeman, 55 Ohio St.2d 261 (1978), the Ohio Supreme Court established the test for determining whether a
{¶67} “‘Sufficiency’ challenges whether the prosecution has presented evidence on each element of the offense to allow the matter to go to the jury, while ‘manifest weight’ contests the believability of the evidence presented.
{¶68} “’ “The test (for sufficiency of the evidence) is whether after viewing the probative evidence and the inference[s] drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all of the elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence.” ’
{¶69} “In other words, the standard to be applied on a question concerning sufficiency is: when viewing the evidence ‘in a light most favorable to the prosecution,’ ‘(a) reviewing court (should) not reverse a jury verdict where there is substantial evidence upon which the jury could reasonably conclude that all of the elements of an offense have been proven beyond a reasonable doubt.‘” (Emphasis sic.) (Citations omitted.)
{¶70} “[A] reviewing court must look to the evidence presented * * * to assess whether the state offered evidence on each statutory element of the offense, so that a rational trier of fact may infer that the offense was committed beyond a reasonable doubt.” State v. March, 11th Dist. Lake No. 98-L-065, 1999 Ohio App. LEXIS 3333, *8 (July 16, 1999). The evidence is to be viewed in a light most favorable to the prosecution when conducting this inquiry. State v. Jenks, 61 Ohio St.3d 259, paragraph
{¶71} Appellant was charged with engaging in a pattern of corrupt activity, a felony of the first degree, in violation of
{¶72}
{¶73}
{¶74} In the instant matter, appellant challenges both the elements of “enterprise” and “pattern of corrupt activity.” She contends that these elements are separate and asserts that proof of one does not establish the other. Appellant also asserts that she and Zachary acted “separately.”
{¶76} In State v. Elersic, 11th Dist. Lake Nos. 2000-L-062 and 2000-L-164, 2001 Ohio App. LEXIS 5210 (Nov. 21, 2001), this court noted that “Ohio has not adopted the federal approach which required that the enterprise have an existence separate from the pattern of corrupt activity.” Id. at *16, fn. 5. See, also, State v. Perry, 11th Dist. Lake No. 2011-L-125, 2012-Ohio-4888, ¶98 (“To better understand this statute, the Twelfth Appellate District recently analyzed the definition of ‘enterprise’ and adopted a ‘streamlined’ definition from the federal case of Boyle v. U.S., [supra], noting ‘“an association-in-fact enterprise is simply a continuing unit that functions with a common
{¶77} We note that the Ohio Supreme Court recently decided State v. Stevens, Slip Opinion No. 2014-Ohio-1932. The question before the Court was whether the threshold monetary amount stated in
{¶78} Although the parties in the case at bar do not argue the exact issue presented and decided in Stevens, the policy behind that case concerning RICO applies here. See Stevens, supra, at ¶15-16 (“The RICO laws were enacted to punish the enterprise and those controlling the enterprise, not the petty criminals. * * * There are already laws in place prohibiting the sale of illegal narcotics. * * * The obvious intent of the General Assembly in enacting the RICO statutes was to reduce the influence and power of organized crime in the state.“)
{¶79} We further note that State v. Beverly, S. Ct Case No. 2013-0827, is currently pending before the Ohio Supreme Court and raises the issue of whether, in establishing the existence of the enterprise element in Ohio’s Engaging in a Pattern of Corrupt Activity statute, the state is required to prove that the enterprise has an existence separate and distinct from the pattern of corrupt activity in which it engaged.
{¶81} The state then attempted to argue that appellant and Zachary committed the offenses against Robertson to obtain property they could sell for money to purchase drugs. Yet, the acts surrounding Robertson are “closely related to each other and connected in time and place” and, thus, constitute a “single event” of conduct.
{¶82} Essentially, the state presented evidence that two individuals, both with a drug habit, committed separate crimes to obtain money to support his or her drug habit. Then, the two engaged in the crimes against Robertson to acquire money for the
{¶83} Accordingly, pursuant to Schlee, supra, there is not sufficient evidence upon which the jury could reasonably conclude beyond a reasonable doubt that the elements of enterprise and engaging in a pattern of corrupt activity were proven. Therefore, the trial court erred in overruling appellant’s
{¶84} Appellant’s third assignment of error is with merit.
{¶85} In her fourth assignment of error, appellant maintains that the trial court erred in entering a judgment of conviction for engaging in a pattern of corrupt activity, against the manifest weight of the evidence.
{¶86} Based on our foregoing analysis in appellant’s third assignment of error, we find her fourth assignment of error to be moot.
{¶87} For the foregoing reasons, the judgment of the Lake County Court of Common Pleas is affirmed in part, reversed in part, vacated in part, and remanded for further proceedings. Specifically, the judgment is affirmed with respect to Counts 1 through 14. The matter is remanded to the trial court for a new trial with respect to Counts 15 and 16, aggravated burglary and aggravated murder, respectively.
TIMOTHY P. CANNON, P.J., concurs,
DIANE V. GRENDELL, J., concurs in part and dissents in part, with a Dissenting Opinion.
DIANE V. GRENDELL, J., concurs in part and dissents in part, with a Dissenting Opinion.
{¶88} I concur with the majority’s conclusion that Danna’s convictions on counts 1-14 remain valid, since no assignments of error were raised in relation to these counts. I dissent as to the majority’s analysis and decision on each of the assignments of error, the decision to vacate Danna’s conviction for Engaging in a Pattern of Corrupt Activity, and to order a new trial on the Aggravated Burglary and Aggravated Murder charges. There was sufficient evidence to support these convictions and any error related to the admission of testimony in this case was harmless.
{¶89} Danna was convicted of Engaging in a Pattern of Corrupt Activity based on her ongoing and dangerous course of criminal conduct with her son, Zachary Weimer, which included theft, the sale of stolen goods, the use of such money to purchase drugs, and the murder of the victim in this case.
{¶90} A pattern of corrupt activity is one that involves two or more incidents related to affairs of the same enterprise.
{¶91} An enterprise includes “any individual, * * * or group of persons associated in fact although not a legal entity,” encompassing “illicit as well as licit enterprises.”
{¶92} Danna and Zachary worked together in the murder of the victim, enabling them to commit the theft of an extensive amount of items in her home, which they planned to sell, presumably to obtain money for the purchase of drugs. There was testimony that Danna and Zachary use drugs with each other, are frequently seen together, and had pooled money in the past in order to purchase drugs. Both individuals had stolen items from multiple victims, and the two stole jointly from the murder victim. They went to the same pawn shop, both together and separately, to sell stolen items to facilitate their drug use. This activity is properly classified as an association-in-fact, given that the two worked together and independently to obtain drug money through criminal means, furthering a common purpose over a continuing period of time. While the majority attempts to characterize the crimes as separately committed and insufficient to connect them to a common enterprise, the testimony regarding their joint activities, the common goals of their offenses, and the ultimate commission of the murder and related crimes, creates the necessary link. The murder in this case solidifies this association and establishes the link between their activities.
{¶94} Further, while charges under this statute often involve large criminal enterprises, it does not follow that the facts of this case do not also fall under the statutory requirements and warrant such a conviction. State v. Gregg, 11th Dist. Ashtabula No. 2006-A-0013, 2007-Ohio-1201, ¶ 29 (“there is no requirement that ‘an enterprise must be a formal, structured organization‘“).
{¶95} The majority cites Stevens, supra, for the proposition that Engaging in a Pattern of Corrupt Activity is not applicable to “petty criminals” or those who engage in the sale of narcotics. In addition to the fact that the court in that case was considering an issue different from the one raised in the present matter, it is clear that Danna and Zachary’s behavior cannot be characterized as that of a petty criminal. While drug use
{¶96} Regarding the first and fifth assignments of error, I disagree with the conclusion that a new trial should be held on the Aggravated Burglary and Aggravated Robbery charges. The majority’s determination is based on the conclusion that the testimony of a witness, Richard Gould, that Zachary had a “buddy” present at the scene of the murder was impermissibly admitted and contributed to Danna’s convictions.
{¶97} The majority concludes that Gould’s testimony regarding Zachary’s statements was inadmissible and did not fall under the co-conspirator hearsay exception, since the statements were not made in furtherance of a conspiracy. Regardless of this, the admission of the statements amounted to harmless error and a new trial is not warranted.
{¶98} Regarding the assertion that these statements harmed Danna, since they placed her at the victim’s home, there was already evidence in the record to place her at or near the victim’s house on the date of the crimes. This evidence includes cell phone records and testimony that she was at a neighboring home. Testimony about the extensive number of items taken from the victim’s home and the lack of physical evidence provide support for the State’s theory that Zachary received assistance in cleaning and potentially removing items from the home. This is reinforced by video evidence showing Danna retrieving cleaning supplies from her home on the date of the murder.
{¶100} Importantly, the State was not required to prove that Danna was at the scene at the time of the murder. The murder charge was based on a theory of complicity, in which Danna aided and abetted and/or solicited the crimes.
{¶101} The jury had a multitude of evidence tying Danna to the Aggravated Robbery and Aggravated Murder convictions, rendering the admitted statements harmless. See State v. Boles, 11th Dist. Ashtabula No. 2013-A-0026, 2014-Ohio-744, ¶ 35 (where there is an abundant amount of evidence of guilt, the improper admission of evidence is harmless error). Danna was seen repeatedly with Zachary on the date of the murder, and provided him with a ride on that day. Testimony showed that Zachary
{¶102} For the foregoing reasons, I respectfully dissent from the majority’s decision to vacate Danna’s conviction for Engaging in a Pattern of Corrupt Activity, and to order a new trial for the Aggravated Burglary and Aggravated Murder counts. I agree, however, that there is no basis for reversing the other 14 convictions.