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State v. Rich

Court of Appeals of Ohio, Second District, Montgomery

March 30, 2018

STATE OF OHIO Plaintiff-Appellee
v.
JEFFREY R. RICH Defendant-Appellant

          Criminal Appeal from Common Pleas Court Trial Court Case No. 14-CR-3225/1

          MATHIAS H. HECK, JR., by HEATHER N. JANS, Attorney for Plaintiff-Appellee.

          GEORGE KATCHMER, Attorney for Defendant-Appellant.

          OPINION

          HALL, J.

         {¶ 1} Jeffrey R. Rich appeals from his conviction and sentence on one count of engaging in a pattern of corrupt activity, seven 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 his convictions for receiving stolen property. The third and fourth assignments of error challenge the legal sufficiency of the evidence to support his 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 his pre-trial suppression motion. The eighth assignment of error challenges the trial court's denial of his Crim.R. 29 motion. The ninth assignment of error addresses the trial court's jury instructions. In his tenth assignment of error, Rich maintains that cumulative error deprived him of a fair trial.

         {¶ 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 he operated with his wife, co-defendant Lisa 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 Rich's wife. 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 stolen merchandise frequently consisted of bulk items in original packaging. Among other things, it included fishing hooks, lures and reels, tools, batteries, headphones, Nicorette gum, cosmetics and hygiene items, movies, video games, flea and tick medication and gift cards. The items came from Dick's Sporting Goods, Wal-Mart, Lowes, Home Depot, PetSmart, Sears, Kroger, Kohl's, Big Lots, and Target, as well as various dollar stores and drug stores.

         {¶ 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, 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. Over a six-week period between December 1, 2012 and January 13, 2013, one witness, Nathan Woodard, had sixty-two 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 Rich did not know he was a drug addict, then Rich "weren't that bright." Another witness, Randall James Alcorn, admitted selling "thousands" of stolen items to the pawn shop, usually carrying the items inside in large bags.

         {¶ 5} Several witnesses testified that 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 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 phone number if the batteries were found for sale elsewhere. Bowling testified that 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, 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 Rich negotiated the price and purchased most of the merchandise although his wife Lisa was involved too. Lisa Rich also 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, who agreed with her. Rich overheard one such conversation between Proud and his wife. He responded by telling them to mind their own business and "shut up." At one point, Rich also instructed Proud to stop taking pictures of the merchandise and not to be so specific about the items on buy slips or tickets she completed.

         {¶ 7} In January 2013, detective Jason Neubauer visited Moraine City Pawn in connection with an investigation into the possible sale of stolen merchandise on eBay. Neubauer met with Rich and his wife on that occasion. During the meeting, 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." Rich and his wife 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, 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 Rich purchased the merchandise. During the transaction, Rich also asked Cox to bring "a tool or something" in with the Prilosec the next 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 Rich and received payment from Rich's wife. A third undercover operation occurred five days later. On that occasion, Rich came outside the pawn shop to look at two new Dyson vacuum cleaners in an undercover van. Rich 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 stolen items were traced to CVS pharmacy. Some Crest 3D white strips still had active security tags attached.

         {¶ 11} Rich ultimately was indicted in connection with the foregoing incidents. As set forth above, a jury convicted him of engaging in a pattern of corrupt activity, a first-degree felony. Rich also was convicted on one count of money laundering, a third-degree felony, and seven misdemeanor counts of receiving stolen property. The trial court imposed a five-year prison term for engaging in a pattern of corrupt activity and shorter concurrent terms of incarceration for all other offenses. It also imposed fines totaling $30, 000 and ordered Rich to pay court costs. The trial court stayed execution of Rich's sentence pending appeal.

         {¶ 12} In his first two assignments of error, Rich challenges the legal sufficiency and manifest weight of the evidence to support his convictions for receiving stolen property. [1] His 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 Evid.R. 803(6). Rich also argues that the State failed to link the numerous buy tickets to specific merchandise seized from the pawn shop. Finally, Rich asserts that the prosecution witnesses were heroin addicts who had no real memories of the discrete transactions in question.

         {¶ 13} When a defendant challenges the sufficiency of the evidence, he 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 guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

         {¶ 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 R.C. 2913.51(A), the State was required to establish that Rich had received, retained, or disposed "of property of another knowing or having reasonable cause to believe that the property [had] been obtained through commission of a theft offense." Viewing the evidence in a light most favorable to the prosecution, the jury could have found the foregoing elements proven beyond a reasonable doubt. In finding Rich guilty of receiving stolen property, the jury also did not clearly lose its way and create a manifest miscarriage of justice because the evidence does not weigh heavily against his convictions. To the contrary, the evidence overwhelmingly supports a finding that Rich received stolen merchandise from drug- addicted "boosters" while knowing or having reasonable cause to believe the property had been obtained by theft.

         {¶ 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 evidence, 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. He argued only that the tickets were not linked to evidence found at the pawn shop. In essence, Rich argued below that no one could say any particular merchandise seized from the pawn shop was the actual merchandise identified in the buy tickets. For example, although fish hooks from Dick's Sporting Goods were seized from the pawn shop, and prosecution witnesses testified about selling Rich fish hooks stolen from Dick's Sporting Goods, the State did not prove that its witnesses stole the particular hooks found in the pawn shop when police raided it. But no such showing was required. Nothing in R.C. 2913.51(A) obligated the State to track down the exact fish hooks stolen from Dick's Sporting Goods and sold to Moraine City Pawn or to link those exact fish hooks to corresponding buy tickets. See State v. Loch, 10th Dist. Franklin No. 02AP-1065, 2003-Ohio-4701, ¶ 34 ("The level of proof appellant demands to demonstrate that each stolen item sold by the thieves to VIP was the same item later confiscated from VIP would be nearly impossible to obtain. The present circumstances do not lend themselves to direct proof that the items confiscated were the same items admittedly stolen and sold to VIP. Rather, due to the extremely high volume of items confiscated and stolen, many of which were the exact same make and model as each other, the present circumstances are the type that must depend upon circumstantial evidence."). In any event, this argument is not a hearsay argument, which is what Rich raises on appeal.

         {¶ 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 his 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 Evid.R. 803(6), the record reflects that the buy tickets were created when the pawn shop purchased the stolen merchandise, the tickets were kept by the pawn shop in the course of business, it was the regular practice of the pawn shop to create the tickets, and the tickets were completed by the Riches or Jessica Proud, each of whom would have had actual knowledge of the transactions. Proud testified to the foregoing facts, in so many words, which may be why defense counsel did not raise a hearsay objection. (See, e.g., Tr. Vol. VII at 777, 790-795). Although Proud did not refer to herself as the "custodian" of the records, she undoubtedly was at least an "other qualified witness" within the meaning of Evid.R. 803(6), which enabled her to lay a foundation establishing the tickets as business records. See State v. Hood, 135 Ohio St.3d 137, 2012-Ohio-6208, 984 N.E.2d 1057, ¶ 40 ("A 'qualified witness' for this purpose would be someone with 'enough familiarity with the record-keeping system of the business in question to explain how the record came into existence in the ordinary course of business.' "). Therefore, any hearsay objection to the buy tickets ultimately would have been futile. Proud at least arguably did qualify the buy tickets as business records. But even if she did not, she certainly could have qualified them as such if Rich had raised the issue by objecting to their admission.[3] That being so, we see no manifest injustice to support a finding of plain error.

         {¶ 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 based on legally sufficient evidence and are not against the manifest weight of the evidence. His first two assignments of error are overruled.

         {¶ 20} In his third assignment of error, Rich challenges the legal sufficiency of the evidence to support his conviction for engaging in a pattern of corrupt activity. His 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 under R.C. 2923.32.

(Appellant's brief at 10-11).

         {¶ 21} Upon review, we find Rich's argument to be unpersuasive. He was convicted of engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1). As relevant here, the statute required proof that Rich, while employed by or associated with an "enterprise, " namely Moraine City Pawn, had participated in the affairs of the enterprise through a "pattern of corrupt activity." Under R.C. 2923.31(E), a "pattern of corrupt activity" means "two or more incidents of corrupt activity, whether or not there has been a prior conviction, that are related to the affairs of the same enterprise, are not isolated, and are not so closely related to each other and connected in time and place that they constitute a single event." The corrupt activity alleged by the State included money laundering and receiving stolen property, both of which are identified as corrupt activity in R.C. 2923.31(I). Under R.C. 2923.32(B)(1), the offense was a first-degree felony because one of the incidents of corrupt activity, money laundering, was a third-degree felony.

         {¶ 22} In our view, the evidence is legally sufficient to support a finding that Rich engaged in a pattern of corrupt activity. Moraine City Pawn qualified as an "enterprise, " which "includes any individual, sole proprietorship, partnership, limited partnership, corporation, * * * or other legal entity, or any organization, association, or group of persons associated in fact although not a legal entity." R.C. 2923.31(C). Rich does not argue otherwise. He also does not dispute that he was employed by or associated with the enterprise. Finally, the record supports a finding that he participated in the affairs of the enterprise through a pattern of corrupt activity, namely money laundering and receiving stolen property. Rich's participation in numerous acts of receiving stolen property is addressed in our analysis of his first two assignments of error above. With regard to money laundering, the State was required to prove that Rich conducted or attempted to conduct a transaction "knowing that the property involved in the transaction is the proceeds of some form of unlawful activity with the purpose of committing or furthering the commission of corrupt activity." R.C. 1315.55(A). On appeal, Rich does not address the elements of the money-laundering charge in any detail. Regardless, the evidence supports a finding that he bought stolen property from drug-addicted retail thieves or "boosters." He then conducted numerous transactions in which he re-sold the stolen merchandise in the pawn shop and on the internet with knowledge that it constituted the proceeds of theft offenses. He did so with a purpose to convert the stolen property into "clean" cash, thereby exhibiting a purpose to further the commission of his corrupt activity.

         {¶ 23} Rich asserts that the evidence is legally insufficient because the State failed to prove the "retail" value of the stolen merchandise. He also claims there is no evidence establishing how much he paid the witnesses who sold him stolen merchandise or when these transactions occurred. It does not appear, however, that Rich raised his argument about proof of "retail value" below. In any event, the State correctly notes that it was not required to prove the retail value of the stolen merchandise. The phrase "retail value" pertains to R.C. 2923.31 (I)(5)(a)(i), which defines corrupt activity as including "[organized retail theft." Under R.C. 2923.31(Q), "[organized retail theft" means "the theft of retail property with a retail value of one ...


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