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State v. Christian

Court of Appeals of Ohio, Second District, Montgomery

October 20, 2017

STATE OF OHIO Plaintiff-Appellee
v.
EVA CHRISTIAN Defendant-Appellant

         Criminal Appeal from Common Pleas Court T.C. NO. 11-CR-563

          HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, Attorney for Plaintiff-Appellee

          BROCK A. SCHOENLEIN, Atty. Attorney for Defendant-Appellant

          OPINION

          DONOVAN, J.

         {¶ 1} Defendant-appellant Eva Christian appeals a decision of the Montgomery County Court of Common Pleas, Criminal Division, resentencing her to nine years in prison. Christian filed a timely notice of appeal on August 25, 2016.

         {¶ 2} We set forth the history of the case in State v. Christian, 2d Dist. Montgomery No. 25256, 2014-Ohio-2672 (hereinafter "Christian I "), and repeat it herein in pertinent part:

In March 2011, Christian was indicted as follows: Count One, insurance fraud (related to her home), in an amount greater than or equal to $5, 000 but less than $100, 000; Count Two, insurance fraud (related to the restaurant), in an amount greater than $100, 000; Count Three, making false alarm (related to the burglary at her home), resulting in economic harm of more than $5, 000 but less than $100, 000; and Count Four, making false alarm (related to the vandalism and fire at the restaurant), with economic harm of $500 or more but less than $5, 000. In June 2011, an additional count of engaging in a pattern of corrupt activity (Count Five) was added by a separate indictment. Christian filed a motion to suppress evidence, which was overruled following a hearing. The matter was tried to a jury over several days in May 2012. The jury found Christian guilty on all counts.
The trial court sentenced Christian to 18 months and 36 months, respectively, on counts one and two of insurance fraud; it sentenced her to 18 and 12 months, respectively, on counts three and four, making false alarms. The court sentenced Christian to nine years on the count of engaging in a pattern of corrupt activity. The court ordered that counts one through four were to be served consecutively to each other but concurrently with count five, for an aggregate term of nine years. The trial court ordered Christian to pay restitution as follows: $51, 751.96 to Cincinnati Insurance, $21, 485.29 to Erie Insurance; $8, 647.33 to the Montgomery County Sheriff's Department; and $2, 748.77 to the Miami Township Fire
Department. The court also ordered Christian to pay court costs and to forfeit her house, due to its use in her offense of engaging in a pattern of corrupt activity. It informed Christian that she would be subject to postrelease control for five years on Count Five and that she may be subject to post-release control for three years on all of the other offenses.

Id. at ¶ 21, 22.

         {¶ 3} In Christian I, we reversed Christian's conviction for engaging in a pattern of corrupt activity. Additionally, we modified Christian's convictions for insurance fraud (Count II) and making false alarms (Count III) to reflect lower degrees of the offenses pursuant to H.B. 86. Thereafter, we remanded the matter to the trial court for resentencing on Counts II and III. The State appealed our decision to the Ohio Supreme Court, which reversed and remanded on the basis of its decision in State v. Beverly, 143 Ohio St.3d 258, 2015-Ohio-219, 37 N.E.3d 116. State v. Christian, 143 Ohio St.3d 417, 2015-Ohio-3374, 38 N.E.3d 888.

         {¶ 4} In State v. Christian, 2016-Ohio-516, 56 N.E.3d 391 (2d Dist.) (hereinafter "Christian II"), we stated the following in pertinent part:

In our prior Opinion [Christian I], 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.
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 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.

In so holding, the Court rejected this court's holding in Beverly that there 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.
Subsequently, the Supreme Court vacated our judgment in Christian [I] 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. ***

Christian II at ¶¶ 2-8.

         {¶ 5} On remand, we held in light of the Ohio Supreme Court's interpretation of the statutory definition of an "enterprise" for purposes of engaging in a pattern of corrupt activity, as set forth in Beverly, 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. Therefore, we reinstated Christian's prior conviction of that offense, but we modified it from a felony of the first degree to a felony of the second degree, due to our prior judgment (Christian I) that the underlying offense was a felony of the fourth degree, rather than a felony of the third degree. Finally, we remanded the matter to the trial court for resentencing on Counts II, III, and V. Christian II at ¶¶ 36, 37.

         {¶ 6} Thereafter, a hearing was held before the trial court on July 27, 2016, at which Christian was resentenced as follows:

Count I, Insurance Fraud (Fourth Degree Felony): Eighteen months;
Count II, Insurance Fraud (Reduced to a Fourth Degree ...

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