State v. Haddix

• Decision Date: 23 May 1994
• Docket Number: No. CA93-06-013,CA93-06-013
• Parties: , RICO Bus.Disp.Guide 8685 The STATE of Ohio, Appellee, v. HADDIX, Appellant.
• Court: Ohio Court of Appeals

Page 470

93 Ohio App.3d 470

638 N.E.2d 1096, RICO Bus.Disp.Guide 8685

The STATE of Ohio, Appellee, v. HADDIX, Appellant.

No. CA93-06-013.

Court of Appeals of Ohio, Twelfth District, Preble County.

Decided May 23, 1994.

Rebecca Ferguson, Preble County Pros. Atty., Eaton, and Robert F. Smith, Asst. Atty. Gen., Dublin, for appellee.

Richard J. Wessel and Fred Miller, Hamilton, for appellant.

WALSH, Judge.

Defendant-appellant, Huel Haddix, appeals an order of the Preble County Court of Common Pleas denying his motion for a new trial.

On December 16, 1992, appellant was indicted by the Preble County Grand Jury on one count of engaging in a pattern of corrupt activity in violation of R.C. 2923.32, the Ohio RICO ("Racketeer Influenced and Corrupt Organizations Act") (Count 1 of the indictment), and three counts of receiving stolen property in violation of R.C. 2913.51 (Counts 26, 27, and 30). The case was tried to a jury between May 10 and May 12, 1993, after which appellant was found guilty of all four counts. On May 18, 1993, appellant filed a motion for a new trial, which was denied by the trial court on June 21, 1993. Appellant now appeals, setting forth the following assignments of error:

Assignment of Error No. 1:

"The trial court erred to the prejudice of defendant-appellant when it permitted the state to cross-examine him from exhibits not produced in discovery and when it refused to declare a mistrial."

Assignment of Error No.

2:

"The trial court erred to the prejudice of defendant-appellant when it overruled his motion to dismiss and failed to properly instruct the jury regarding appellant's mental state."

Assignment of Error No. 3:

"The trial court erred to the prejudice of defendant-appellant when it refused to dismiss two counts of receiving stolen property because of improper venue."

Assignment of Error No. 4:

"The trial court erred to the prejudice of defendant-appellant when it overruled his motion for a new trial."

Assignment of Error No. 5:

"The trial court erred to the prejudice of defendant-appellant when it permitted evidence of like and similar acts as well as evidence regarding a pervasive crime problem to be presented to the jury."

In his first assignment of error, appellant argues that the trial court erred in permitting plaintiff-appellee, the state of Ohio, to cross-examine appellant from exhibits that the state had failed to disclose in discovery, and in subsequently refusing to declare a mistrial.

During the trial, appellant denied being involved in a pattern of corrupt activity or in receiving stolen property. By testifying, he placed his credibility in issue. On cross-examination, for impeachment purposes, appellant was questioned about false tax returns which inflated his income and which were submitted to a bank to secure a loan on his daughter's residence. The state admits it did not provide the tax returns to appellant despite a timely request for discovery. The state contends, however, that the introduction of the tax returns at trial was harmless, since the state used them to impeach appellant's testimony and credibility on cross-examination, and not as part of its case-in-chief.

Crim.R. 16(B)(1)(c) provides:

"Documents and tangible objects. Upon motion of the defendant the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, available to or within the possession, custody or control of the state, and which are material to the preparation of his defense, or are intended for use by the prosecuting attorney as evidence at the trial, or were obtained from or belong to the defendant."

Crim.R. 16(B) imposes on the prosecutor a duty to disclose certain information upon a proper discovery request made by the defendant. The rule does not distinguish between whether documents are intended to be used by the prosecutor in its case-in-chief or in cross-examination. Accordingly, the state's failure to disclose appellant's income tax returns despite appellant's proper discovery request violated Crim.R. 16(B)(1)(c).

Failure to comply with a discovery request for documents does not automatically result in the exclusion of the documents. Pursuant to Crim.R. 16(E)(3), when a party fails to provide discovery, the trial court may order the party to permit discovery or inspection, grant a continuance, prohibit the party from introducing into evidence the material not disclosed, or make any other order it deems just under the circumstances. The imposition of sanctions for discovery violations is within the discretion of the trial court. State v. Harcourt (1988), 46 Ohio App.3d 52, 54, 546 N.E.2d 214, 217-218. In the case at bar, the trial court ordered no sanctions and allowed the state to use the tax returns for cross-examination.

Assuming, arguendo, that the trial court's decision to allow the state to use the tax returns for cross-examination was an abuse of discretion, we find any error to be harmless beyond a reasonable doubt. "Error in the admission of evidence in criminal proceedings is harmless if there is no reasonable probability that the evidence may have contributed to the accused's conviction." State v. Bayless (1976), 48 Ohio St.2d 73, 2 O.O.3d 249, 357 N.E.2d 1035, paragraph seven of the syllabus, vacated as to death penalty (1978), 438 U.S. 911, 98 S.Ct. 3135, 57 L.Ed.2d 1155.

The tax returns, which were already known to appellant, inasmuch as he signed them, were not used as substantive evidence of the crimes with which appellant was charged, but to impeach his credibility on cross-examination. The evidence involved falsifying loan application materials wholly unrelated to the charged offenses. Further, there is other evidence in the record which also tends to discredit appellant.

During trial, the state presented the testimony of Robert Hanks, an undercover informant working with a Task Force set up by the Ohio Organized Crime Investigations Commission. Hanks testified as to several criminal transactions in stolen property in which appellant was involved. In particular, Hanks testified that on June 25, 1990, he delivered a stolen Suzuki ATV Quadrunner to appellant, who took possession of it. Dennis Olinger, an accomplice in the corrupt activity, similarly testified. Olinger's general testimony was that appellant would frequently act as a "fence," buying stolen goods at a cheap price and later reselling them at a profit. Olinger testified that on October 10, 1991, he brought three lawn tractors, which he had stolen earlier, to appellant who agreed to buy two of them. When appellant testified, he vehemently denied receiving the stolen Quadrunner from Hanks or the lawn tractors from Olinger. He further stated that these items were never delivered to him.

Appellant's denial of having ever received stolen goods directly conflicted with the testimony of Hanks and Olinger. The jury evidently believed Hanks and Olinger and found appellant guilty. We cannot say that there is a reasonable probability that the disputed income tax returns contributed to appellant's conviction. Appellant's first assignment of error is overruled.

In his second assignment of error, appellant argues that the trial court erred in overruling his motion to dismiss and in failing to instruct the jury as to appellant's culpable mental state with regard to R.C. 2923.32. On January 7, 1993, appellant filed a motion to dismiss his corrupt activity charge, alleging that the statute failed to set forth a culpable mental state and thus an ascertainable standard of guilt. This motion was overruled by the trial court. At the end of the trial, the trial court instructed the jury as to the required culpable mental state for the predicate offenses of receiving stolen property. However, the trial court did not instruct the jury as to a culpable mental state with regard to the R.C. 2923.32 corrupt activity offense.

With the exception of R.C. 2923.32(A)(3), which sets forth a "knowingly" mental state, R.C. 2923.32 is silent as to what culpable mental state a defendant must possess in order to be convicted. R.C. 2901.21 provides that:

"(B) When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in such section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense."

An analysis of the few cases that have addressed the issue reveals that there are arguably three possible rules. One rule is that recklessness is the required culpable mental state to commit the corrupt activity offense of R.C. 2923.32. This is the rule of R.C. 2901.21, as followed by the Second District Court of Appeals in State v. Hughes (Mar. 13, 1992), Miami App. No. 90-CA-54, unreported, 1992 WL 52473. That court held that, because R.C. 2923.32 neither specifies a degree of culpability nor plainly indicates a purpose to impose strict liability, R.C. 2901.21 mandates that recklessness be found in order to convict a defendant. This is also the position taken by appellant.

A second possible rule is that no culpable mental state is required, as R.C. 2923.32 plainly indicates a purpose to impose strict liability. This is the position taken by Judge Grady, concurring in State v. Hughes. Judge Grady argued that since the acts prohibited in RICO are mala prohibita, that is, acts that are made wrong by positive laws and prohibited as such, "omission * * * of an express prescription of criminal intent * * * in R.C. 2923.32 connotes a legislative purpose to create strict liability." He further stated that "[b]ecause [the acts] are in furtherance of other acts which are in...