State v. Christian

[Cite as State v. Christian, 2016-Ohio-516.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : C.A. CASE NO. 25256 : v. : T.C. NO. 11CR563 : EVA CHRISTIAN : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 12th day of February, 2016.

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KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

BROCK A. SCHOENLEIN, Atty. Reg. No. 0084707, 371 West First Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant

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FROELICH, J.

{ 1} Eva Christian was convicted in 2012 of two counts of insurance fraud, two

counts of making false alarm, and one count of engaging in a pattern of corrupt activity.

In committing these offenses, Christian hired two individuals to assist her in setting up a  -2-

fabricated burglary and a phony shooting at her home, and to vandalize a restaurant she

owned, in furtherance of her plan to commit insurance fraud. We affirmed her

convictions in part, as modified, and reversed in part. State v. Christian, 2d Dist.

Montgomery No. 25256, 2014-Ohio-2672.

{ 2} In our prior Opinion, we reversed Christian’s conviction for engaging in a

pattern of corrupt activity, finding that it was supported by insufficient evidence.

Specifically, we held that there was insufficient evidence that Christian had engaged in

an “enterprise” with the two individuals who helped her stage the events that gave rise to

her convictions for insurance fraud; the existence of such an “enterprise” is one element

of the offense of engaging in a pattern of corrupt activity. We relied on our holding in

State v. Beverly, 2d Dist. Clark No. 2011 CA 64, 2013-Ohio-1365, which held that, in order

to establish the “enterprise,” there must be some evidence of “(1) an ongoing

organization, formal or informal; (2) with associates that function as a continuing unit; and

(3) with a structure separate and apart, or distinct, from the pattern of corrupt activity.”

Christian at 74, quoting Beverly at 26. We found that the “structure” of the efforts of

Christian and her associates did not go beyond Christian’s efforts to stage crimes to

defraud her insurance companies, and thus that the organization did not have “a structure

separate and apart, or distinct, from the pattern of corrupt activity.” Christian at 76-79.

{ 3} The State appealed from our judgment reversing Christian’s conviction for

engaging in a pattern of corrupt activity. The State also asked us to certify a conflict

between our holding and several holdings of other courts of appeals, and we did certify

that Christian was in conflict with one of those cases. State v. Christian, 2d Dist.

Montgomery No. 25256, Decision & Entry, August 24, 2014. The certified question was:  -3-

To prove the element of enterprise in a trial for engaging in a pattern of

corrupt activity under R.C. 2923.32, must the State establish that the

organization, association, or group of persons has a structure that is

separate and apart, or distinct, from the pattern of corrupt activity in which

it engages?

{ 4} The Supreme Court accepted the case on both the State’s appeal and the

certified question. 10/22/2014 Case Announcements, 2014-Ohio-4629; State v.

Christian, Ohio S.Ct. Nos. 2014-1318 and 2014-1554.

{ 5} Our case, State v. Beverly, which presented an identical legal question

about the evidence required to prove an “enterprise,” was also pending before the

Supreme Court at that time. Beverly, 2d Dist. Clark No. 2011 CA 64, 2013-Ohio-1365,

accepted for review, 11/20/2013 Case Announcements, 2013-Ohio-5096. The Court

held Christian for its decision in Beverly.

{ 6} The Supreme Court decided Beverly in January 2015. State v. Beverly,

143 Ohio St.3d 258, 2015-Ohio-219, 37 N.E.3d 116. It held that “[n]othing in R.C.

Chapter 2923 [which includes R.C. 2923.32, defining the offense of engaging in a pattern

of corrupt activity] implicitly or explicitly states that an enterprise and a pattern of corrupt

activity must be proven with separate evidence.” Id. at 8. The court further stated

that, with respect to proof of the existence of an enterprise and of the associated pattern

of corrupt activity, one does not necessarily establish the other, but “logically, evidence

that proves one of the elements can sometimes prove the other, even though it doesn’t

necessarily do so.” Id. at 10.

{ 7} In so holding, the Court rejected this court’s holding in Beverly that there  -4-

was insufficient evidence that the defendants were involved in any type of ongoing

organization, functioning as a continuing unit, with a structure separate and apart from

the pattern of corrupt activity. The Supreme Court also, sua sponte, rejected any

argument that the conviction was against the manifest weight of the evidence.

{ 8} Subsequently, the Supreme Court vacated our judgment in Christian and

remanded for us to “consider the evidence of an enterprise in light of” its decision in

Beverly. State v. Christian, 143 Ohio St.3d 417, 2015-Ohio-3374, 38 N.E.3d 888, 1.

We permitted the parties to provide additional briefing, and briefing is now completed.

{ 9} Christian argues that, notwithstanding the Supreme Court’s decision in

Beverly, the evidence in her case in support of the count of engaging in a pattern of

corrupt activity was insufficient, because other elements of the definition of “enterprise” –

in addition to the separate structure of the enterprise – were unsupported by the evidence.

The State disagrees and further points out that Christian did not raise any other bases for

her sufficiency argument in her original appeal.

{ 10} As discussed in our prior opinion, R.C. 2923.32(A)(1) sets forth the offense

of engaging in a pattern of corrupt activity under which Christian was charged; it states:

“No person employed by, or associated with, any enterprise shall conduct or participate

in, directly or indirectly, the affairs of the enterprise through a pattern of corrupt activity *

* *.” An enterprise includes “any individual, sole proprietorship, partnership, limited

partnership, corporation, trust, union, government agency, or other legal entity, or any

organization, association, or group of persons associated in fact although not a legal

entity,” and it includes illicit as well as licit enterprises. R.C. 2923.31(C).

{ 11} In Beverly, 143 Ohio St.3d 258, 2015-Ohio-219, 37 N.E.3d 116, the  -5-

Supreme Court noted that the definition of an enterprise is “remarkably open-ended” and

that an “association-in-fact enterprise is simply a continuing unit that functions with a

common purpose.” Id. at 9, citing United States v. Turkette, 452 U.S. 576, 583, 101 S.

Ct. 2524, 69 L.Ed.2d 246 (1981) and Boyle v. United States, 556 U.S. 938, 948, 129 S.Ct.

2237, 173 L.Ed.2d 1265 (2009). The Court stated:

The [U.S.] Supreme Court stated that “the existence of an enterprise is an

element distinct from the pattern of racketeering activity and ‘proof of one

does not necessarily establish the other.’ ” * * * We agree with this

conclusion, that proof of one essential element does not “necessarily” prove

another. But we emphasize that, logically, evidence that proves one of the

elements can sometimes prove the other, even though it doesn’t necessarily

do so. The court in Boyle accentuated this point when it stated that “the

evidence used to prove the pattern of racketeering activity and the evidence

establishing an enterprise ‘may in particular cases coalesce.’ ” In so

stating, the court expressly rejected the notion that “the existence of an

enterprise may never be inferred from the evidence showing that persons

associated with the enterprise engaged in a pattern of racketeering activity.”

(Internal citations omitted.) Beverly at 10. The Court then held that “the existence of

an enterprise, sufficient to sustain a conviction for engaging in a pattern of corrupt activity

under R.C. 2923.32(A)(1), can be established without proving that the enterprise is a

structure separate and distinct from a pattern of corrupt activity.” Id. at 13.

{ 12} The facts in Beverly were that Beverly and another man, Brandon Imber,

committed a series of thefts and burglaries in and around Clark County, Ohio, in late 2010  -6-

and early 2011. The men drove (and perhaps stole) various vehicles, and then used

those vehicles to steal other items. For example, they took an Ohio Department of

Transportation truck and used it to steal an expensive stump grinder. They used a stolen

Chevrolet Caprice in the course of an attempted burglary. And they used a stolen truck

to commit several other burglaries. The Supreme Court found that, on these facts, “the

record provide[d] ample support for a rational trier of fact to conclude that Beverly and

Imber constituted an association-in-fact enterprise and that they engaged in a pattern of

corrupt activity. Indeed, we cannot imagine a trier of fact concluding otherwise.”

Beverly, 143 Ohio St.3d 258, 2015-Ohio-219, 37 N.E.3d 116, at 16.

{ 13} In Christian’s case, from at least early October 2009 through the end of

that year, Christian had numerous conversations to enlist the help of Darryl Adams and,

to a lesser extent, Adams’s wife Diane Jones, to stage events which would culminate in

the commission of insurance fraud and making false alarms. On Christian’s instructions,

Adams and Jones burglarized Christian’s home by removing items that she had packed

up for them, and stored those items for several weeks, but then they later returned the

items to Christian’s home. They also staged a shooting outside Christian’s home so that

she could claim to police that she was being “targeted” by someone, thus laying the

groundwork for the damage to her restaurant, which formed the basis of one of her

insurance claims.

{ 14} The most involved part of their plan involved destruction of property at

Christian’s restaurant, Cena. Christian hired Adams to “blow up” the place, and provided

him with access to the restaurant after hours. Christian fired an employee who

resembled Adams to set the employee up for the crime. When Adams’s initial attempt  -7-

to vandalize the restaurant by slashing furniture, unplugging refrigerators, and dumping

out liquor bottles did not produce the amount of damage desired by Christian, someone

(Adams and/or Christian) made several additional attempts to cause damage by breaking

appliances and inflicting other damage to the premises. Christian also started a fire,

which set off sprinklers in the restaurant.

{ 15} Christian paid Adams and Jones for their help. Some money was paid up

front and some was to be paid when Christian received the insurance check(s). It is

unclear from the record when or if the latter payments were ever made.

{ 16} In light of the Supreme Court’s holding in Beverly, we conclude that

Christian, Adams, and Jones were part of an “enterprise,” as demonstrated by the

conduct related to their crimes (i.e., they were “associated together for a common purpose

of engaging in a course of conduct,” id. at 16). Their association went on for several

months, during which Christian repeatedly called upon Adams and Jones to help her

stage various aspects of her crimes. These efforts included feigning a legitimate

relationship before the crimes began, Adams and Jones’s storage of Christian’s “stolen”

property for several weeks, and Adams’s efforts to increase the amount of damage to the

restaurant when Christian found his initial efforts to be insufficient. If the collaborative

efforts and offenses committed in Beverly, which we described as “disorganized and

chaotic,” 1 constituted proof of an enterprise, Christian’s planning and repeated

coordination with Adams and Jones to commit her crimes would also constitute proof of

an enterprise.

{ 17} Christian also argues that, notwithstanding whether her conduct with

1 Beverly, 2d Dist. Clark No. 2011-CA-64, 2013-Ohio-1365, at 31.  -8-

Adams and Jones constituted an enterprise because there was sufficient proof of its

“structure,” the definition of an enterprise still was not satisfied in her case because of

insufficient evidence that the enterprise functioned as a continuing unit. This argument

is based on our statement in Christian, 2d Dist. Montgomery No. 25256, 2014-Ohio-2672,

at 74, that an enterprise has three elements: “(1) an ongoing organization, formal or

informal; (2) with associates that function as a continuing unit; and (3) with a structure

separate and apart, or distinct, from the pattern of corrupt activity.” We cited our Opinion

in Beverly, as well as Turkette and other cases, in setting out these criteria. Christian

asserts that, even if the structure of an enterprise existed, it did not operate as a

continuing unit, and therefore her conviction was supported by insufficient evidence even

in light of the Supreme Court’s holding in Beverly. In further support of this argument,

she quotes a sentence from our prior Opinion, wherein we stated that Christian’s

“organization” with Adams and Jones “had a purpose, but it did not function as a

continuing unit and its structure was not separate and distinct from the corrupt activity in

which they engaged.” Christian at 77.

{ 18} The State correctly asserts that Christian did not challenge this aspect of

the proof of her conviction for engaging in a pattern of corrupt activity in her original

appeal, and we agree with the State’s argument that she should not be permitted to raise

additional arguments at this late juncture. Moreover, our entire prior opinion must be

analyzed in light of the Supreme Court’s decision in Beverly. Viewed from this

perspective, we conclude that there was sufficient evidence that the enterprise functioned

as a continuous unit when Christian, Adams, and Jones associated together over a period

of time for a common purpose.  -9-

{ 19} Given the Supreme Court’s holding that the criminal activity itself can

establish the structure of the enterprise, we must now view differently the nature of the

conduct constituting the “structure” on which the conviction for engaging in a pattern of

corrupt activity was based. With the facts proven at trial, we conclude that there was

sufficient evidence that the criminal organization or structure had the type of continuity

required by the statute. On this record, there was sufficient evidence from which a jury

could have concluded that the “associates” functioned as a continuing unit, and such a

verdict was not against the manifest weight of the evidence.

{ 20} Finally, Christian argues that “common purpose” is also an element of an

enterprise and that no reasonable jury could have found that she had a common purpose

with Adams and Jones. She asserts that she sought payment from her insurance

policies, whereas Adams and Jones sought quick cash from her to feed their drug habits.

She also points out that she did not work together with Adams and Jones in the way that

the defendants did in Beverly – going together from house to house and splitting what

they stole.

{ 21} We acknowledge the factual distinctions between the crimes in Beverly

and in this case, but even assuming, for the sake of argument only, that the State was

required to prove a common purpose, there was sufficient evidence from which the jury

could have found a common purpose in this case. Christian, Adams, and Jones

engaged in repeated efforts to stage the events on which her insurance claims were

based and, contrary to the assertion in Christian’s brief, Adams and Jones did not receive

all of their pay up front; some was to be paid when the insurance check(s) arrived. There

was sufficient evidence from which a jury could conclude that Christian, Adams, and  -10-

Jones acted with a common purpose.

{ 22} Therefore, we conclude that Christian’s conviction for engaging in a pattern

of corrupt activity was supported by sufficient evidence and was not against the manifest

weight of the evidence, and we reinstate that conviction.

{ 23} However, Christian was convicted of engaging in a pattern of corrupt

activity as a felony of the first degree. R.C. 2923.32(B)(1) provides that engaging in a

pattern of corrupt activity is a felony of the second degree, except as otherwise provided

in that section. One of the exceptions states that, if at least one of the incidents of corrupt

activity is a felony of the first, second, or third degree, the offense of engaging in a pattern

of corrupt activity is a felony of the first degree.

{ 24} Although Christian was convicted of insurance fraud as a felony of the third

degree (Count 2), in our prior judgment we modified the degree of this offense to a felony

of the fourth degree, because there was insufficient evidence as to the amount of the

fraud to support a felony of the third degree. See Christian, 2d Dist. Montgomery No.

25256, 2014-Ohio-2672, at 53-56. Christian’s reinstated conviction for engaging in a

pattern of corrupt activity is therefore modified from a felony of the first degree to a felony

of the second degree.

{ 25} Our reconsideration of Christian’s conviction for engaging in a pattern of

corrupt activity in light of the Supreme Court’s decision in Beverly, and our reinstatement

of her conviction on that offense, require us to briefly address some issues raised but not

fully addressed in Christian’s original appeal, because, at that time, we found them to be

moot. In light of our prior determination that Christian’s conviction for engaging in a

pattern of corrupt activity was supported by insufficient evidence, we did not fully address  -11-

the following issues in our prior opinion: alleged error in the jury instructions on engaging

in a pattern of corrupt activity, alleged error in the forfeiture of Christian’s house as

property “derived from, or realized through” engaging in a pattern of corrupt activity, and

alleged error in failure to merge the underlying predicate offenses with the count of

engaging in a pattern of corrupt activity. We now turn to these arguments.

{ 26} In her third assignment of error, Christian argued that the trial court had

not properly instructed the jury as to what constitutes an “enterprise,” as used in the

definition of engaging in a pattern of corrupt activity; she alleged that the trial court’s jury

instruction only included the statutory definition of an enterprise, and that prior cases from

this district required a more expansive definition. Although we did not reach the merits

of this assignment, we noted that the record belied Christian’s assertion that only the

statutory definition had been given in the instruction; the trial court “gave a lengthy

instruction on the element of ‘enterprise,’ which went beyond the statutory definition” and

encompassed the elements of enterprise set forth in United States v. Turkette, 452 U.S.

576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981) and Boyle v. United States, 556 U.S.

938, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009), as described elsewhere in the opinion.

{ 27} Recently, the Supreme Court relied on Turkette and Boyle in its decision

in Beverly, 143 Ohio St.3d 258, 2015-Ohio-219, 37 N.E.2d 116; these statements of the

law have not changed, although Beverly causes us to view differently the evidence that

may establish an enterprise. We now expressly find that the trial court’s jury instruction

on enterprise was an accurate and adequate statement of the definition of enterprise, and

that the definition provided was consistent with the Supreme Court’s interpretation of an

“enterprise” in Beverly. Christian’s third assignment of error is overruled.  -12-

{ 28} Christian also argued in her seventh assignment of error that the forfeiture

of her home, which the trial court ordered as a consequence of her conviction for engaging

in a pattern of corrupt activity, was improper. Specifically, she argued that the home was

not “derived from, or realized through” the conduct that constituted engaging in a pattern

of corrupt activity, that the house was incidental to the crimes she committed, that her

indictment failed to allege that her real estate was subject to forfeiture, and that no verdict

was returned on this question. She relied on R.C. 2981.04 and State v. Bowshier, 2d

Dist. Clark No. 2937, 1993 WL 81813 (Mar. 18, 1993), in support of her argument that the

indictment was required to allege that the property was subject to forfeiture and that the

jury was required to return a verdict on that issue.

{ 29} The State conceded that the forfeiture proceedings in this case did not

comply with R.C. 2981.04, which sets forth the manner in which a forfeiture may be

obtained, in that the indictment did not provide notice that the State sought forfeiture of

the property and the jury did not make the special finding required for such forfeiture.

However, the State argued that Christian had waived this argument by failing to raise it in

the trial court.

{ 30} In our prior opinion, we expressed skepticism about the State’s argument

that Christian had waived the requirements of R.C. 2981.04 by failing to object to the

forfeiture in the trial court. Christian, 2d Dist. Montgomery No. 25256, 2014-Ohio-2672,

136. However, because we vacated Christian’s conviction for engaging in a pattern of

corrupt activity, we likewise vacated the forfeiture of her property based on that conviction,

and we did not specifically address the shortcomings of the forfeiture proceedings in this

case.  -13-

{ 31} Forfeitures are not favored under the law and, whenever possible,

forfeiture statutes must be construed so as to avoid a forfeiture of property. State v.

Lilliock, 70 Ohio St.2d 23, 25-26, 434 N.E.2d 723 (1982); State v. West, 8th Dist.

Cuyahoga Nos. 97391 and 97900, 2013-Ohio-96, 31. The State’s ability to seek

forfeiture of property is created by statute, and the State acknowledged that it did not

comply with the statutory procedures required to effectuate a forfeiture. Because

forfeitures are disfavored, we do not share the State’s view that a forfeiture can be

properly imposed where the statutory procedures have not been followed simply because

the owner of the property fails to object.

{ 32} We are also unpersuaded by the State’s argument that Christian’s failure to

raise this argument in the trial court waived it, because her omission precluded the trial

court from correcting the errors. It is unclear from the record whether Christian was

aware of the potential forfeiture before the jury rendered its verdicts. Once the verdicts

were entered, neither the exclusion of the proposed forfeiture from the indictment nor its

exclusion from the verdict forms could have been corrected by the trial court.

{ 33} Due to the State’s admitted failure to comply with the statutory procedures

for forfeiture, the trial court may not order Christian to forfeit her home when she is

resentenced for engaging in a pattern of corrupt activity.

{ 34} Finally, Christian argued in her eighth assignment of error that her

conviction for the underlying offenses of insurance fraud and making false alarm should

have been merged at sentencing with her conviction for engaging in a pattern of corrupt

activity. Having reinstated Christian’s conviction for engaging in a pattern of corrupt

activity, we must now consider this argument.  -14-

{ 35} The argument that predicate offenses should be merged with a conviction

for engaging in a pattern of corrupt activity has been consistently rejected by Ohio courts,

on the basis that “a RICO violation is a discrete offense that can be prosecuted and

punished separately from its underlying predicate offenses.” State v. Moulton, 8th Dist.

Cuyahoga No. 93726, 2010–Ohio–4484, 38. See also State v. Miranda, 138 Ohio

St.3d 184, 2014-Ohio-451, 5 N.E.3d 603, 13-14; State v. Birdsong, 11th Dist. Lake

No. 2013-L-003, 2014-Ohio-1353, 62-68; State v. LaSalla, 8th Dist. Cuyahoga No.

99424, 2013-Ohio-4596, 26; State v. Montoya, 12th Dist. Clermont No. CA2012-02-

015, 2013-Ohio-3312, 68-71. Moreover, the Supreme Court has recognized that

among the purposes of the statute which criminalizes engaging in a pattern of corrupt

activity are enhanced sanctions to deal with the unlawful activities of those engaged in

organized crime and the imposition of cumulative liability for the criminal enterprise.

Miranda at 13. If the purpose of the statute is to provide enhanced sanctions, this

purpose is furthered by not merging the predicate offenses with the offense of engaging

in a pattern of corrupt activity. Id. at 14. Further, the Supreme Court has repeatedly

held that the conduct required to commit engaging in a pattern of corrupt activity “is

independent of the conduct required to commit [the underlying predicate offenses.]” Id.

at 13; Beverly at 5. Christian has not cited any cases which support her argument

that such offenses should merge. Thus, we reject Christian’s argument and overrule the

portion of her eighth assignment of error related to merger.

{ 36} As stated above, the Supreme Court vacated our prior judgment and

remanded for us to “consider the evidence of an enterprise” in light of its decision in

Beverly. Having done so, we will modify our judgment with respect to Christian’s  -15-

conviction for engaging in a pattern of corrupt activity (Count 5); we reinstate that

conviction, as modified to a felony of the second degree. We also reinstate our prior

judgment, which was vacated by the Supreme Court, insofar as it is not inconsistent with

or modified by the additional holdings set forth in this opinion.

{ 37} We remand this matter to the trial court for it to resentence Christian on

Count 5, engaging in a pattern of corrupt activity, a felony of the second degree, in

accordance with this Opinion, and omitting the forfeiture of her home. We also remand

this matter to the trial court for resentencing on Counts 2 and 3, in accordance with our

prior opinion.

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DONOVAN, P.J. and HALL, J., concur.

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Kirsten A. Brandt Brock A. Schoenlein Hon. Barbara P. Gorman