State v. Feliciano

• Citation: 685 N.E.2d 1307,115 Ohio App.3d 646
• Decision Date: 20 November 1996
• Docket Number: No. 95CA006278,95CA006278
• Parties: The STATE of Ohio, Appellee, v. FELICIANO, Appellant. * Ninth District, Lorain County
• Court: United States Court of Appeals (Ohio)

Page 646

115 Ohio App.3d 646

685 N.E.2d 1307

The STATE of Ohio, Appellee, v. FELICIANO, Appellant. ^*

No. 95CA006278.

Court of Appeals of Ohio,

Ninth District, Lorain County.

Decided Nov. 20, 1996.

Gregory A. White, Lorain County Prosecuting Attorney, Elyria, for appellee.

Daniel Wightman, Avon Lake, for appellant.

DICKINSON, Judge.

Defendant Angel Mendez Feliciano has appealed from his convictions in the Lorain County Common Pleas Court on three counts of engaging in a pattern of corrupt activity, one count of conspiracy to engage in a pattern of corrupt activity, five counts of gambling, and one count of operating a gambling house. He has argued that (1) his convictions on the three counts of engaging in a pattern of corrupt activity were not supported by sufficient evidence and were against the manifest weight of the evidence; (2) the jury's finding that he had a firearm on or about his person or under his control during the commission of engaging in a pattern of corrupt activity was not supported by sufficient evidence and was against the manifest weight of the evidence; (3) the trial court incorrectly instructed the jury on "legally inadequate predicate offenses"; (4) the indictment was legally insufficient because it failed to specify what acts allegedly constituted the collection of an unlawful debt; (5) his conviction of conspiracy to engage in a pattern of corrupt activity was not supported by sufficient evidence and was against the manifest weight of the evidence; and (6) the trial court incorrectly denied his motion to suppress evidence seized from his pickup truck and residence. ¹

This court affirms the judgment of the trial court because (1) defendant's convictions on the three counts of engaging in a pattern of corrupt activity were supported by sufficient evidence and were not against the manifest weight of the evidence; (2) the jury's finding against defendant on the firearm specification was supported by sufficient evidence and was not against the manifest weight of the evidence; (3) the instruction on the predicate acts was not plain error; (4) the indictment against defendant adequately apprised him of the charges against him; (5) defendant's conviction of conspiracy to engage in a pattern of corrupt activity was supported by sufficient evidence and was not against the manifest weight of the evidence; and (6) the trial court did not err by denying defendant's motion to suppress evidence seized during the search of his pickup truck and residence.

I

Defendant and others were suspected of operating a numbers game in Lorain County. Beginning in 1994, officers of the Lorain Police Department conducted extensive surveillance of two businesses owned by defendant, the Royal Corona Lounge and Angel's Tobacco Shop. The police believed that those businesses were used as fronts for the gambling operation. Over a period of months, the officers observed various individuals arrive at both locations each evening between 6:30 and 7:30 p.m. to drop off what the police suspected were betting slips for that day. The police were able to identify these people from the license plate numbers on their vehicles and from videotapes of them walking to and from their vehicles. The officers also observed defendant and four others, Teresa Gonzalez, Victor Castro Rosario, Amador Rosas, Sr., and William Acevedo, pick up the envelopes and then meet at different locations each evening from approximately 7:30 p.m. to 8:30 p.m. The state alleged that these five individuals were the leaders of the gambling operation.

In addition to watching defendant's businesses, each day the police searched the trash outside defendant's residence, Teresa Gonzalez's residence, and the Royal Corona Lounge. They found betting slips with three-digit numbers and amounts bet, records of winning numbers and payouts, and Pick-Three Ohio Lottery tickets. ² By comparing the winning numbers in the Ohio Lottery game and the winning numbers indicated in the organization's records, the police determined that people who placed bets on the three-digit number that was pulled in the Ohio Lottery drawing on a particular date won a certain amount of money for that day's bet. Also, the police were able to match the names or initials of some of the individuals on the betting slips with people who had been seen dropping off envelopes at the Royal Corona Lounge and Angel's Tobacco Shop. The betting slips indicated that the individuals whose names or initials were on the slips kept twenty percent of the total amount bet. This fact led the police to believe that the individuals who delivered the betting slips were "runners" for the organization who received a commission for placing bets for others.

Pursuant to a warrant, the police, on March 28, 1995, searched the Royal Corona Lounge, Angel's Tobacco Shop, William Acevedo's residence, Teresa Gonzalez's residence, and defendant's residence. They confiscated from the Royal Corona Lounge blank betting books and betting slips that had been dropped through the mail slot in the back door, from the tobacco shop betting slips and cash, from defendant's residence $1.6 million in cash and boxes of blank betting books, and from Teresa Gonzalez's house $140,000 in cash and betting slips. The majority of betting slips that were confiscated were dated March 28, 1995, the date of the search. The police also searched a pickup truck of defendant's that was parked near the Royal Corona Lounge. They found $20,000 in cash, betting slips, and a loaded revolver. Based on evidence seized during the execution of the warrants, the police estimated that the gambling operation had a gross annual income of $3,425,343 and annual profits of $896,069.72.

On April 5, 1995, defendant was charged by a superseding indictment with three counts of engaging in a pattern of corrupt activity, violations of R.C. 2923.32(A)(1), (A)(2), and (A)(3), one count of conspiracy to engage in a pattern of corrupt activity, a violation of R.C. 2923.01(A)(1) and (A)(2), five counts of gambling, violations of R.C. 2915.02(A)(2), one count of operating a gambling house, a violation of R.C. 2915.03(A)(1), and one count of carrying a concealed weapon, a violation of R.C. 2923.12. The first count of engaging in a pattern of corrupt activity included a specification that defendant had a firearm on or about his person or under his control while committing the offense.

The case was tried to a jury beginning August 29, 1995. ³ On September 8, 1995, the jury found defendant guilty of three counts of engaging in a pattern of corrupt activity, one count of conspiracy to engage in a pattern of corrupt activity, five counts of gambling, and one count of operating a gambling house. The jury found him not guilty of carrying a concealed weapon. The jury also specifically determined that defendant had a firearm on or about his person or under his control during the commission of the first count of engaging in a pattern of corrupt activity. Defendant timely appealed to this court.

II

A

Defendant's first assignment of error is that his convictions on the three counts of engaging in a pattern of corrupt activity were not supported by sufficient evidence and were against the manifest weight of the evidence. Defendant moved the trial court for acquittal, pursuant to Crim.R. 29, at the close of the state's case and again at the close of all the evidence. Crim.R. 29 provides that a motion for acquittal should be granted if the evidence before a trial court is insufficient to sustain a conviction. To determine whether the evidence before a trial court was sufficient to sustain a conviction, an appellate court must view that evidence in a light most favorable to the prosecution:

"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 (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. When deciding whether a conviction is against the manifest weight of the evidence:

"[A]n appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses 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. Otten (1986), 33 Ohio App.3d 339, 340, 515 N.E.2d 1009, 1010-1011.

Defendant was charged with separate violations of R.C. 2923.32(A)(1), (A)(2), and (A)(3). To obtain a conviction under any of those sections, the state was required to prove either "a pattern of corrupt activity" or "the collection of an unlawful debt." The first prong of defendant's argument in support of this assignment of error is that the state failed to prove "a pattern of corrupt activity."

"Corrupt activity" is defined at R.C. 2923.31(I) as "engaging in, attempting to engage in, conspiring to engage in, or soliciting, coercing, or intimidating another person to engage in" any of a number of types of criminal activities, including gambling and operating a gambling house. The phrase "pattern of corrupt activity" is defined at R.C. 2923.31(E) as two or more incidents of corrupt activity, at least one of which must be a felony.

Defendant has asserted that the state failed to prove a felony as an underlying "corrupt activity." The indictment against defendant specified underlying "corrupt activities" of gambling, a violation of R.C. 2915.02(A), and operating a gambling house, a violation of R.C....