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State v. Liggins

Court of Appeals of Ohio, Sixth District, Sandusky

June 22, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
LARRY LIGGINS, Defendant-Appellant.

          Criminal Appeal from the Court of Common Pleas of Sandusky County, Ohio Case No. 15-CR-944

          Michael Dewine, Ohio Attorney General, Atty. Christopher L. Kinsler, Associate Assistant Attorney General, for Appellee

          Andrew R. Mayle, Mayle Ray & Mayle LLC, for Appellant.

          BEFORE: Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges. Sitting by assignment

          OPINION AND JUDGMENT ENTRY

          ROBB, P.J., SITTING BY ASSIGNMENT

         {¶1} Defendant-Appellant Larry Liggins appeals from his engaging in a pattern of corrupt activity and drug trafficking convictions entered in Sandusky County Common Pleas Court. Appellant sets forth six arguments as to why his conviction should be reversed. First, Appellant contends the trial court erred in allowing the state to amend the indictment. Second, he argues the jury instruction defining "engaging in a pattern of corrupt activity" was incorrect and the trial court incorrectly indicated he could be found guilty based on the jury finding him guilty of a single underlying felony. Third, Appellant asserts the state did not meet its burden of production. Fourth, he contends the verdicts were against the manifest weight of the evidence. Fifth, he argues he cannot be guilty of a second-degree felony engaging in a pattern of corrupt activity because he was not indicted for that offense and that offense is not the lesser included offense of first-degree felony engaging in a pattern of corrupt activity (which was the indicted offense). Lastly, he asserts trial counsel was ineffective and he was deprived of a fair trial.

         {¶2} The dispositive issue in this case is whether the state presented sufficient evidence to support the conviction for engaging in a pattern of corrupt activity. For the reasons expressed below, we hold that it did not meet its burden of production. The conviction for engaging in a pattern of corrupt activity is reversed and the sentence for that crime is vacated. The remaining convictions are affirmed.

         Statement of the Case and Facts

         {¶3} Appellant was indicted for one count of engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A) and five counts of drug trafficking in violation of R.C. 2925.03. 9/23/15 Indictment. The engaging in a pattern of corrupt activity charge was a first-degree felony and contained a specification that at least one of the incidents of corrupt activity was a felony of the first, second, or third-degree. This charge also indicated the offense occurred between June 18, 2014 and July 30, 2014 and that the incidents of corrupt activity were stated in the remaining charges of the indictment. The five drug trafficking counts were for differing degrees of felonies based on the weight of the cocaine trafficked. The second count of the indictment was a fourth-degree felony for an incident occurring on July 5, 2015. The third count was a fifth-degree felony for an incident occurring on July 6, 2015. The fourth count was a fifth-degree felony for a second incident occurring on July 6, 2015. The fifth count was a third-degree felony for an incident occurring on July 17, 2015. The sixth count was a third-degree felony for an incident occurring on July 20, 2015. The state filed a bill of particulars that was similar to the indictment. 1/5/16 Bill of Particulars.

         {¶4} Appellant pled not guilty to the indictment. 9/25/15 J.E. Prior to trial, the state dismissed count six of the indictment and moved to amend the indictment pursuant to Crim.R. 7. 4/13/16 Motion to Dismiss; 7/6/16 Motion to Amend Indictment. In the motion to amend the indictment, the state asserted there were typographical errors in counts two through five. Those counts indicated the criminal activity occurred in 2015; however, the indictment should have indicated the activity occurred in 2014. 7/6/16 Motion to Amend. The state moved to amend count two to indicate the offense occurred on July 5, 2014, count three occurred on July 6, 2014, court four occurred on July 6, 2014, and count five occurred on July 17, 2014. 7/6/16 Motion to Amend. The trial court granted the motion to amend. 7/7/16 J.E.

         {¶5} The jury trial commenced on July 14, 2016. At trial evidence was submitted that Keith Nettles was the primary drug trafficker in the Fremont, Sandusky County, Ohio area in 2014. Tr. 136. Various people worked for Nettles including Appellant and Deborah Wolverton. During the Fremont Police Department's and the Drug Task Force's investigation of Nettles in 2014, they obtained a wiretap for his phone. Various recorded phone calls were played for the jury during the trial and it was stipulated at trial that one of the numbers Nettles called was Appellant's. Wolverton also testified at trial. She explained that Nettles was a drug dealer, her boyfriend, and kept drugs at various locations in her house and yard. Tr. 84, 91. She testified Appellant delivered drugs to people for Nettles. Tr. 86. She identified Nettles' voice and Appellant's voice on some of the calls. She and Special Agent Mike Noel from the Toledo DEA explained the terms used during the calls.

         {¶6} The first set of calls played for the jury were from July 5, 2014. Tr. 90-91, 139-140. The first two calls on that date were between Nettles and Wolverton. Tr. 90-91, 139-140. They were talking about "two 6's," which was explained to be two packages of six grams of cocaine. Tr. 91. The street value of "two 6's" is $600, which means each 6 is $300. Tr. 140-141. Nettles told Wolverton to get the drugs from her house and give them to Appellant and Appellant would deliver them to Darnell at a bar called the Copper Penny. Tr. 94-95. The next call played was a call between Appellant and Nettles. Upon hearing this call, Wolverton explained Nettles was telling Appellant that she was supposed to give him something to deliver. Tr. 97.

         {¶7} The next set of calls played were from July 6, 2014. These calls were between Nettles and Appellant. Tr. 98-100, 142-144. In the first two calls there was a reference to "two baseballs" - "you got to get two baseballs, one base - one, one baseball, the other want the other baseball." Tr. 100. Wolverton explained a "baseball" is three grams of crack similar to what is also referred to as an "8-ball" and the street value is $150 for one ball, baseball, or 8-ball. Tr. 100, 103. Agent Noel testified he had not heard of the term "baseball" before, and that it is usually referred to as a ball, which is 3.5 grams of cocaine. Tr. 152. Following those calls, Appellant and Nettles talked again. Tr. 145. In this call there was a statement that one of the buyers wanted another one. Tr. 102, 145. The next call was Wolverton to Nettles to see if she had permission to give Appellant another 8-ball to deliver, which she did. Tr. 104-105, 146. The cost for these three 8-balls was $450. Tr. 105. Wolverton testified she personally handed the cocaine to Appellant to deliver. Tr. 116, 122.

         {¶8} The next set of calls played for the jury were from July 17, 2014. Wolverton indicated these calls were between Nettles and another male whose voice she did not recognize and one call where Nettles was asking Appellant to go to his house. Tr. 106-107. There was a discussion in one of the calls for people to meet at Five Guys and the unknown male wants "four." Tr. 109. Wolverton testified this meant the unknown male wanted four 8-balls, which would cost $600. Tr. 110.

         {¶9} Appellant testified at trial. He contended the calls either referred to him showing cars to potential buyers for Nettles or to baseball tickets. He explained he did drive Nettles places, but he also explained that Nettles sold cars and Appellant would drive the cars to potential buyers so they could see the cars. Tr. 175, 180, 198. Appellant stated he is a baseball fan and Nettles got him tickets to a Detroit Tigers baseball game. They could not attend the baseball game so he was delivering the tickets to someone who could go. He testified the reference to baseball was a reference to the baseball tickets. Tr. 177-179.

         {¶10} The jury found Appellant guilty of counts one through four of the indictment and not guilty of count five of the indictment. Thus, the jury found Appellant guilty of one fourth-degree felony drug trafficking offense, two fifth-degree felony drug trafficking offenses, and engaging in a pattern of corrupt activity. However, since the jury did not find Appellant guilty of count five of the indictment, a third-degree felony trafficking offense, it answered the enhancement to count one in the negative. The jury stated the state did not establish one of the incidents of corrupt activity was a third-degree felony.

         {¶11} The court proceeded immediately to sentencing. The trial court sentenced Appellant to 96 months for engaging in a pattern of corrupt activity a second-degree felony. He received 18 months for the fourth-degree felony drug trafficking conviction and 12 months for each third-degree felony drug trafficking conviction. All sentences were ordered to be served concurrently for an aggregate sentence of 96 months.

         {¶12} Appellant timely appealed the convictions. The third assignment of error will be addressed first since it is dispositive.

         Third Assignment of Error

         "The verdict under count one violates Liggins' due process rights because it is not supported by sufficient evidence as to the essential element of the monies involved exceeding $1, 000. Nor is the verdict supported by the weight of the evidence."

         {¶13} This assignment of error raises both sufficiency of the evidence and manifest weight of the evidence arguments.

         {¶14} This court has recently explained:

"Sufficiency and manifest-weight challenges are separate and legally distinct determinations." State v. Hatten,186 Ohio App.3d 286, 2010-Ohio-499, 927 N.E.2d 632, ¶ 17 (2d Dist.), citing State v. Thompkins,78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). "A sufficiency of the evidence argument challenges whether the State has presented adequate evidence on each element of the offense to allow the case to go to the jury or to sustain the verdict as a matter of law." State v. Shaw, 2d Dist. Montgomery No. 21880, 2008-Ohio-1317, ¶ 28, citing Thompkins at 387. When reviewing for the sufficiency of the evidence, an appellate court's function 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." State v. Jenks,61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. "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." Id. "A manifest weight of the evidence challenge contests the believability of the evidence presented." State v. Wynder, 11th Dist. Ashtabula No. 2001-A-0063, 2003-Ohio-5978, ΒΆ 23. When determining whether a conviction is against the manifest weight of the evidence, the appellate court must review the entire record, weigh the evidence and all reasonable inferences drawn from it, consider the witnesses' credibility, ...

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