State v. Cody, 100797.
| Citation | 34 N.E.3d 189 |
| Decision Date | 11 June 2015 |
| Docket Number | No. 100797.,100797. |
| Parties | STATE of Ohio, Plaintiff–Appellee v. John Donald CODY a.k.a. Bobby Thompson, Defendant–Appellant. |
| Court | United States Court of Appeals (Ohio) |
Timothy Young, Ohio Public Defender By: Francisco E. Luttecke, Assistant State Public Defender, Columbus, OH, for appellant.
Mike DeWine, Attorney General By: Brad L. Tammaro, Assistant Attorney General, Special Prosecuting Attorney, Grove City, OH, for appellee.
Before: BOYLE, P.J., KEOUGH, J., and McCORMACK, J.
KATHLEEN ANN KEOUGH
, J.
{¶ 1} Defendant-appellant, John Donald Cody a.k.a. Bobby Thompson,1 appeals his convictions. For the reasons that follow, we find that the state Ohio lacked jurisdiction over Counts 13 through 23 of the indictment, therefore, only those convictions, including the one-year sentence, are vacated. We also vacate the trial court's sentencing term ordering Thompson to spend every Veteran's Day in solitary confinement. Thompson's remaining convictions and sentence are otherwise affirmed.
{¶ 2} This case arises from an investigation regarding the United States Naval Veteran's Association (“USNVA”), a charity organized and created by a person holding himself out to be Bobby Thompson. Through the investigation, it was discovered that the USNVA was a sham, fabricated by a person named John Donald Cody, who manipulated unsuspecting individuals across the United States to donate to this charity, unlawfully procuring millions of dollars.
{¶ 3} In mid–2010, the state of Ohio began its investigation into the USNVA after a story was published in the St. Petersburg Times that the charity was fictitious. Through its investigation, the state revealed that Ohio residents had been solicited by various professional fundraisers contracted by USNVA to donate money to the USNVA. It was discovered that approximately $2 million was solicited on behalf of the USNVA from resident-donors in the state of Ohio.
{¶ 4} As a result of the investigation, on October 13, 2010, Appellant was indicted in Cuyahoga C.P. No. CR–10–543025 on charges of engaging in a pattern of corrupt activity involving the USNVA, money laundering, and aggravated theft. In December 2010, another indictment was issued against Appellant in Cuyahoga C.P. No. CR–10–545577 on 22 additional charges, including engaging in a pattern of corrupt activity, aggravated theft, money laundering, tampering with records, and identity fraud.
{¶ 5} A warrant was subsequently issued for Appellant's arrest. In April 2012, Appellant was finally apprehended in the state of Oregon. After Appellant was in custody in Ohio, a new indictment was issued against him in July 2012, Cuyahoga C.P. No. CR–12–565050. Appellant was charged with one count each of engaging in a pattern of corrupt activity pertaining to the criminal enterprise of the USNVA, complicity to commit theft, tampering with records, complicity to tamper with records, identity fraud (a felony of the second degree), and possessing criminal tools; and seven counts of complicity to commit money laundering, and 11 counts of identity fraud (felonies of the fifth degree). The previous indictments issued in Case Nos. CR–10–543025 and CR–10–545577 were dismissed and the surviving indictment in Case No. CR–12–565050 ultimately was tried before a jury that heard testimony from 47 witnesses and viewed over 200 exhibits.
{¶ 6} At the close of evidence, the court granted Appellant's renewed Crim.R. 29
motion for judgment of acquittal as it pertained to Count 24, possessing criminal tools. The court concluded that the state of Ohio lacked jurisdiction to pursue this charge because, although the criminal tools were found in Appellant's possession when he was arrested, they were located in the state of Oregon.
{¶ 7} The jury returned a guilty verdict on the 23 remaining counts. After considering merger, the trial court imposed a total sentence of 28 years in prison and ordered that Appellant spend every Veteran's Day in solitary confinement.
{¶ 8} Appellant now appeals raising three assignments of error. This court sua sponte ordered the parties to address an additional issue regarding the instructions given to the jury on Counts 13 through 23.
.
* * * The commission of the offense was part of a course of continuing conduct involving offenses committed in Cuyahoga County per R.C. 2901.12(E)
, and/or (H).
{¶ 10} In his first assignment of error, Appellant contends that the trial court erred and violated due process when it entered convictions for 11 counts of identity fraud for which it did not have jurisdiction. Appellant presents the following issue: whether Ohio has jurisdiction to prosecute these identity-fraud crimes, which were committed in another state, where no element of the offenses was committed in Ohio, and the crimes did not result from criminal offenses committed in Ohio. He relies on Ohio's jurisdictional statute, R.C. 2901.11
.
{¶ 11} The state contends that Ohio has jurisdiction over these crimes because they were committed in a continuing course of criminal conduct pursuant to Ohio's venue statute under R.C. 2901.12(H)
. Specifically, the state contends that Ohio has jurisdiction over the 11 identity-fraud counts because these charges naturally flowed in the course of events of Appellant's crimes of engaging in a pattern of corrupt activity, theft, and tampering with records involving the USNVA. Additionally, the state asserts that the use of the identities allowed Appellant to evade apprehension and avoid detection by the state of Ohio after the indictment and arrest warrant were issued. The state does not identify or make any argument pertaining to any section under R.C. 2901.11 to establish jurisdiction for these 11 counts.
grants jurisdiction to Ohio courts over criminal offenses that occur in Ohio. “Jurisdiction” refers to the judicial power to hear and determine a criminal prosecution. State v. Williams, 53 Ohio App.3d 1, 4–5, 557 N.E.2d 818 (10th Dist.1988). This is called “territorial jurisdiction” or “subject matter jurisdiction.” Id. at 5, 557 N.E.2d 818.
{¶ 13} “Venue,” on the other hand, is governed by R.C. 2901.12
. Venue commonly refers to the appropriate place of trial for a criminal prosecution within a state. Id., citing State v. Shrum, 7 Ohio App.3d 244, 245, 455 N.E.2d 531 (1st Dist.1982), fn.3 (venue refers to the appropriate place of trial for a criminal prosecution as between different geographical subdivisions within a state, it being assumed that the court or courts involved have subject matter or territorial jurisdiction).
{¶ 14} Therefore, jurisdiction and venue are not the same; once jurisdiction is established, then venue is determined. In fact, “the Legislative Service Committee comments to R.C. 2901.12
state, ‘[t]his section presupposes that the state has jurisdiction to try an offender, and speaks to the question of where the trial is to take place.’ ” (Emphasis sic.) State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845, ¶ 46, quoting 1974 Committee Comment to H 511.
{¶ 15} Accordingly, the state's reliance on R.C. 2901.12(H)
to establish territorial jurisdiction over Appellant pertaining to Counts 13 through 23 is misplaced. “The General Assembly did not include ‘course of criminal conduct’ in R.C. 2901.11, the jurisdictional statute.” Yarbrough at ¶ 45.
{¶ 16} Nevertheless, this court must still determine whether Ohio had jurisdiction over these 11 identity fraud counts pursuant to R.C. 2901.11
. “ ‘Subject matter jurisdiction is a question of law, which we review de novo.’ ” ABN AMRO Mtge. Group, Inc. v. Evans, 8th Dist. Cuyahoga No. 96120, 2011-Ohio-5654, 2011 WL 5326070, ¶ 5, quoting Udelson v. Udelson, 8th Dist. Cuyahoga No. 92717, 2009-Ohio-6462, 2009 WL 4695358, ¶ 13.
{¶ 17} Counts 13 though 23 pertain to evidence that was discovered following Appellant's arrest in the state of Oregon. When Appellant was finally apprehended in the state of Oregon in April 2012, he possessed on his person three wallets that each contained different identifications—Anderson Yazzie (Count 18), Kenneth D. Morsette (Count 16), and Alan Lacy (Count 19). A review of the record reveals that the names Anderson Yazzie, Kenneth D. Morsette, and Alan Lacy have no apparent connection to the USNVA. However, Appellant used the identity of Kenneth D. Morsette in March 2012 to rent a room at a rooming house in Portland, Oregon.
{¶ 18} In addition to the wallets, Appellant also possessed a set of keys. One of the keys opened a storage locker in Portland, Oregon. The locker was rented under the name of Alan Lacy (Count 19). Inside the storage locker were two suitcases—one with over $940,000 in cash bundled inside newspapers, and the second suitcase with numerous identification documents for seven other individuals—Anatoly Volokhonskiy (Count 13), Arthur V. Burrola (Count 14), Dale Booqua (Count 15), Richard L. Overturf, Jr. (Count 17), Michael Delaney (Count 20), Vincent Yazzie (Count 21), Albert Gross–Ventre (Count 22). There was no evidence that Appellant used these identities or identification information in furtherance of his criminal enterprise in laundering money through the USNVA.
{¶ 19} During the course of the investigation, it was...
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