State v. Campbell, 2008 Ohio 2143 (Ohio App. 4/28/2008), 07-CA-A-08-0041.
| Decision Date | 28 April 2008 |
| Docket Number | No. 07-CA-A-08-0041.,07-CA-A-08-0041. |
| Citation | 2008 Ohio 2143 |
| Parties | State of Ohio. Plaintiff-Appellee. v. Willie L. Campbell. Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Kyle E. Rohrer, Delaware County Prosecutor's Office, 140 North Sandusky Street, 3rd Fl., Delaware, OH 43015, for Plaintiff-Appellant.
John R. Cornely, 941 Chatham Lane, Ste. 201, Columbus, OH 43221, for Defendant-Appellee.
Before: Hon. W. Scott Gwin, P.J., Hon. John W. Wise, J., Hon. Patricia A. Delaney, J.
{¶1} Defendant-appellant Willie L. Campbell appeals from his conviction and sentence in the Delaware County Court of Common Pleas on seven counts of Complicity to Forgery, felonies of the fifth degree in violation of R.C. 2923.03(A)(2); five counts of Forgery, felonies of the fifth degree in violation of R.C. 2913.31(A)(3); one count of Carrying a Concealed Weapon, a felony of the fourth degree in violation of R.C. 2923.12(A); one count of Having Weapons While Under a Disability, a felony of the fifth degree in violation of R.C. 2923.13(A)(2), and one count of Engaging in a Pattern of Corrupt Activity, a felony of the second degree in violation of R.C. R.C. 2923.32(A)(1). The plaintiff appellee is the State of Ohio.
{¶2} On August 21, 2006, the City of Westerville Police Department received a call regarding an attempt to pass a forged check at the U.S Bank Branch located inside a Giant Eagle Store in the City of Westerville, Ohio.1 As a result, Mr. Terrance Hall was apprehended after attempting to pass a forged check.
{¶3} Mr. Hall provided officers with a description of the individuals who brought him to the bank, and a description of their vehicle. Acting upon this information, officers stopped a vehicle matching the description. Appellant was in the driver's seat of the vehicle, Mr. Ricky Rhodes was in the passenger seat, and Mr. Brian Glasco was in the backseat of the vehicle. Mr. Rhodes' girlfriend owned the vehicle.
{¶4} In response to questioning by the officer, appellant stated that there was a handgun in the glove box of the vehicle. Officers searched the vehicle and found a loaded C252 7.62 Czech semi-automatic handgun in the glove box. Waste paper from payroll checks, as well as numerous checks were found between the front seats. Additional checks were also found in the rear seat.
{¶5} The Bill of Particulars filed by the State set forth five counts of forgery and seven counts of complicity to commit forgery, all of which involved the accounts of Quality Employee Management and Cafe Brioso, between the dates of August 16 and August 21, 2006. The Bill of Particulars also set forth one count of engaging in a pattern of corrupt activity. The State alleged that the predicate offenses were forgery and complicity to forgery committed from August 16, 2006 to August 21, 2006, in connection with Terence Hall, Brian Glasco, Rickey Rhodes and Savaughn Conner. The enterprise was defined as consisting of Terrance Hall, Brian Glasco, Rickey Rhodes, and Savaughn Conner.
{¶6} On July 6, 2007, the State of Ohio filed a Notice of Intention to Use 404(B) Evidence. The State of Ohio indicated that it wished to present evidence regarding counterfeit checks passed on the accounts of Quality Employee Management and Cafe Brioso between the dates of August 16 and August 21, 2006, and surveillance video stills of those checks being passed. Specifically, those checks were passed in the names of Christopher E. Butts, Tony D.S. Baker, Louis F. Taylor, Roger Canada, Joanna Shipp, Antoine L. Thompson, Meredith C. Hodge, and Cynthia Dudley. The State wished to introduce this evidence to demonstrate that the appellant was part of a larger forgery scheme throughout the greater Columbus, Ohio area.
{¶7} Appellant responded noting that the counterfeit checks the State sought to introduce were not contained in the Indictment or the Bill of Particulars. The information further encompassed individuals not named in either the Indictment or Bill of Particulars. Appellant requested additional time to review and prepare for the new evidence. On July 9, 2007, the trial court denied appellant's request for a continuance.
{¶8} On July 10, 2007, the trial court in a hearing prior to the start of trial granted the State of Ohio's request to use the requested evidence. The trial court determined that with a limiting instruction the evidence of the counterfeit checks passed on the accounts of Quality Employee Management and Cafe Brioso that were not included in the Indictment or Bill of Particulars were admissible. The trial court again denied appellant's motion to continue to allow time to prepare for the new evidence.
{¶9} On July 12, 2007, the Jury returned guilty verdicts on all fifteen (15) counts against appellant. The trial court deferred sentencing and ordered a pre-sentence investigation report. On August 21, 2007 the trial court sentenced appellant to terms of imprisonment of six (6) months as to each of the seven (7) counts of Complicity to Forgery, to terms of imprisonment of six (6) months as to each of the five (5) counts of Forgery, to a term of imprisonment of twelve (12) months as to the count of Carrying a Concealed Weapon, to a term of imprisonment of two (2) years as to the count of Having a Weapon Under Disability, and to a term of imprisonment of seven (7) years as to the count of Engaging in a Pattern of Corrupt Activity. The trial court then ordered the sentences in counts one (1) through twelve (12) to be served concurrently, with the sentences in counts fourteen (14) and fifteen (15) to run consecutively to the other counts. This resulted in a total term of incarceration of nine (9) years and six (6) months.
{¶10} It is from these verdicts and sentences the appellant appeals raising the following three assignments of error:
{¶11} "I. THE TRIAL COURT VIOLATED THE APPELLANT'S RIGHT TO KNOW THE NATURE AND CAUSE OF ACTION AGAINST HIM WHEN IT PERMITTED THE STATE OF OHIO TO PRESENT EVIDENCE OF COUNTERFEIT CHECKS NOT SET FORTH IN THE INDICTMENT OR BILL OF PARTICULARS TO PROVE AN ELEMENT OF THE OFFENSE.
{¶12} "II. THE EVIDENCE AT TRIAL WAS INSUFFICIENT TO SUSTAIN THE CONVICTIONS FOR CARRYING A CONCEALED WEAPON AND HAVING A WEAPON WHILE UNDER DISABILITY.
{¶13}
{¶14} In his first assignment of error, appellant argues that the prosecution did not give him proper notice in Count Fifteen of the indictment of the predicate acts of corrupt activity it would rely upon to prove that appellant engaged in a pattern of corrupt activity. Appellant argues that the failure of the Indictment and Bill of Particulars to set forth the complete scope of the criminal enterprise underlying the corrupt activity count in the indictment deprived him of due process of law.
{¶15} The prosecution contends that appellant was on notice. The State argues that appellant was aware it intended to present the Forgery and Complicity to Forgery conduct set forth in Counts One through Twelve of the Indictment as "predicate acts." Those predicate acts supported the charge that the appellant engaged in a pattern of corrupt activity in violation of R.C. 2923.32(A) (1) as set forth in Count Fifteen of the Indictment. Further, in the Notice of Intention to Use 404(B) Evidence filed July 6, 2007 appellant was notified that the State intended to present evidence of checks being cashed by individuals not named in Count Fifteen of the Indictment, not as predicate offenses, but rather, in order to prove the existence and the extent of the "criminal enterprise."
{¶16} R.C. 2923.32(A) (1) prohibits "engaging in a pattern of corrupt activity" and states that "[n]o 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 * * *." The offense is further defined in R.C. 2923.31, which states in pertinent part:
{¶17} "(C) `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. "Enterprise" includes illicit as well as licit enterprises.
{¶18} "* * *
{¶19} "(E) `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. *
{¶20} "* * *
{¶21} "(I) `Corrupt activity' means engaging in, attempting to engage in, conspiring to engage in, or soliciting, coercing, or intimidating another person to engage in any of the following: * * * any violation of section * * * 2925.03 * * * of the Revised Code * * * that is a felony of the first, second, third or fourth degree * * * when the proceeds of the violation * * * or the value of the contraband * * * possessed, sold or purchased in the violation exceeds five hundred dollars, or any combination of violations * * * when the * * * value of the contraband * * * possessed, sold, or purchased in the combination of violations exceeds five hundred dollars."
{¶22} The indictment of appellant in the case at bar listed five counts of Forgery in violation of R.C. 2913.31(A) (3) and seven counts of Complicity to Forgery in violation of R.C. 2923.03(A)(2) as the predicate offenses for the Pattern of Corrupt Activity charge. The indictment further alleged that appellant and four named individuals comprised the criminal enterprise.
{¶23} In order to establish that a defendant engaged in a...
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