[Cite as State v. Sparks,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, : CASE NOS. CA2013-02-010 Plaintiff-Appellant/ : CA2013-02-015 Cross-Appellee, : OPINION 3/24/2014 - vs - :

: WILLIAM SPARKS, : Defendant-Appellee/ Cross-Appellant. :

CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 12CR28428

David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive, Lebanon, Ohio 45036, for plaintiff-appellant/cross-appellee

Jeremiah J. Denslow, First National Plaza No. 2000, 130 West Second Street, Dayton, Ohio 45402, for defendant-appellee/cross-appellant

M. POWELL, J.

{¶ 1} Defendant-appellee/cross-appellant, William Sparks, appeals his convictions in

the Warren County Court of Common Pleas for trafficking in, cultivation of, and possession of

marijuana, as well as possession of cocaine, possession of criminal tools, and engaging in a

pattern of corrupt activity. Plaintiff-appellant/cross-appellee, the state of Ohio, appeals the

decision of the trial court sentencing Sparks to community control rather than prison. Warren CA2013-02-010 CA2013-02-015

{¶ 2} This case completes the trilogy begun in State v. Baker, 12th Dist. Warren No.

CA2012-12-127,

, and continued in State v. Honeycutt, 12th Dist. Warren

No. CA2013-02-018,

. These cases all involve individuals variously involved

in the cultivation and/or trafficking of marijuana. As the "trilogy" characterization suggests,

there is substantial overlap of facts and actors among the cases. The three cases concern

the proper venue for the trial of persons charged with engaging in a pattern of corrupt activity

in violation of R.C. 2923.32 and other related course-of-conduct offenses, and particularly

whether Warren County, Ohio was a proper venue. In Baker and Honeycutt we answered

that question in the negative.

{¶ 3} In 2011, the Warren County Drug Task Force began investigating Tyler

Pagenstecher on suspicion of drug trafficking after one of its undercover officers purchased

marijuana from Pagenstecher on three different occasions in the Mason, Warren County,

Ohio area. Pagenstecher was a juvenile at the time. According to the undercover officer, the

marijuana was grown locally. During its investigation, the Warren County Drug Task Force

determined that Pagenstecher's supplier was Michael Lopez who, in turn, purchased his

marijuana from a married couple, Cody and Stacy Lampe. The Lampes grew their own

marijuana in Norwood, Hamilton County, Ohio, and also purchased marijuana from Justin

Baker. The Lampes would sell the marijuana they cultivated. Baker grew substantial

amounts of marijuana in multiple locations, including a "grow house" on Noble Avenue in

Hamilton, Butler County, Ohio, and a "grow warehouse" on Creek Road in Hamilton County,

Ohio. The utilities of the Noble Avenue house were in Sparks' name. In exchange for

growing and processing marijuana for Baker at the Noble Avenue house, Sparks was allowed

to stay in the house rent-free, and Baker paid the utilities for the house and gave Sparks a

few hundred dollars every month. Sparks was not involved at all with the Creek Road

warehouse. -2- Warren CA2013-02-010 CA2013-02-015

{¶ 4} Following his arrest and a search of his house, Pagenstecher agreed to assist

the Warren County Drug Task Force by arranging a buy from Lopez of his usual purchase of

four ounces of marijuana. Thus, on January 13, 2012, Pagenstecher, at the request of the

task force, arranged to meet Lopez at a Walmart in Warren County, Ohio. Members of the

task force were waiting for Lopez, and he was immediately apprehended. Lopez also agreed

to assist the task force by arranging a buy from the Lampes of his usual purchase of a pound

of marijuana. The arranged buy took place on February 1, 2012, at the Lampes' house in

Hamilton County, Ohio. As a result of the buy, the Lampes were apprehended, and they too

agreed to assist the task force.

{¶ 5} Cody Lampe told the task force about his own grow operation; the task force

went to, and seized all of the evidence of, his grow operation. Subsequently, Cody Lampe

set up a meeting with Baker. Cody Lampe agreed to wear a wire to allow the task force to

listen to his conversation with Baker. The conversation took place at a bar in Butler County,

Ohio. During the conversation, Cody Lampe paid Baker $3,000 or $3,800 for marijuana he

had previously received from Baker. Following their conversation, Baker left the bar and

traveled to the Creek Road warehouse in Hamilton County, Ohio. Members of the task force

followed Baker and observed him enter the warehouse.

{¶ 6} On February 17, 2012, search warrants were executed on both the warehouse

and the Noble Avenue house. Officers recovered over 38,000 grams of marijuana from the

warehouse, as well as numerous tools used in the cultivation of marijuana, including grow

lights, timers, tanks of carbon dioxide, clay pellets, scales, and ventilation equipment. The

grow operation in the warehouse was described as being "substantial." Officers recovered

over 9,000 grams of marijuana from the Noble Avenue house, specifically, 51 small

marijuana plants (two to four inches tall) and several very large, very mature marijuana plants

with very large buds the size of a small Nerf football. Officers also recovered numerous tools -3- Warren CA2013-02-010 CA2013-02-015

used in the cultivation of marijuana, including grow lights, tanks of carbon dioxide, clay

pellets, ventilation equipment, and a digital scale. In the kitchen, inside a microwave, officers

found a straw with white powder residue, a small amount of white powder, and a baggie of

white powder on a dinner plate. The white powder was later identified as cocaine. Sparks

was found inside the house during the execution of the search warrant. Sparks admitted the

cocaine was his.

{¶ 7} On July 13, 2012, Sparks was indicted on one count of trafficking in marijuana,

one count of possession of marijuana, one count of cultivation of marijuana, one count of

possession of criminal tools, one count of possession of cocaine, and one count of engaging

in a pattern of corrupt activity. Sparks waived his right to a jury trial and elected to have the

trial court hear his case. Following a one-day bench trial in November 2012, the trial court

found Sparks guilty on all counts and sentenced him to three years of community control.

{¶ 8} The state appeals, raising one assignment of error. On cross-appeal, Sparks

raises one cross-assignment of error. We address Sparks' cross-assignment of error first as

it is dispositive of the case.

{¶ 9} Sparks' cross-assignment of error:

{¶ 10} THE TRIAL COURT ERRED IN CONVICTING APPELLANT (SIC) IN AN

IMPROPER VENUE.

{¶ 11} Sparks argues the state failed to prove that venue was proper in Warren

County because no element of his pattern of corrupt activity occurred in Warren County.

Sparks contends the state failed to prove he "participated in an enterprise, with a structure,

for the sale of marijuana in Warren County." Further, "[his] conduct in Butler County cannot

be connected to activity that occurred in Warren County by other individuals. As a result,

Warren County was an improper venue[.]"

{¶ 12} "'Venue' commonly refers to the appropriate place of trial for a criminal -4- Warren CA2013-02-010 CA2013-02-015

prosecution within a state." State v. Williams,

(10th Dist. 1988). The

Ohio Constitution, Article I, Section 10 establishes a defendant's right to "a speedy public trial

by an impartial jury of the county in which the offense is alleged to have been committed."

Establishing the correct venue is imperative in order to "give the defendant the right to be

tried in the vicinity of his alleged criminal activity, [and] to limit the state from indiscriminately

seeking a favorable location for trial or selecting a site that might be an inconvenience or

disadvantage for the defendant." (Emphasis sic.) State v. Meridy, 12th Dist. Clermont No.

CA2003-11-091,

.

{¶ 13} Venue is not a material element of any offense charged. State v. Headley,

(1983). However, the state "must prove beyond a reasonable doubt that

the crime alleged was committed in the county where the indictment was returned and the

trial held, or that the accused has waived this right; otherwise, the accused cannot be

convicted." Meridy at ¶ 12; State v. Hampton,

,

.

{¶ 14} The standard for establishing venue is whether the defendant has a "significant

nexus" with the county where the trial was held. State v. Mielke, 12th Dist. Warren No.

CA2012-08-079,

. As a result, and pursuant to R.C. 2901.12, Ohio's

venue statute, "[t]he trial of a criminal case in this state shall be held in a court having

jurisdiction of the subject matter, and in the territory of which the offense or any element of

the offense was committed." R.C. 2901.12(A).

{¶ 15} Ohio's venue statute further provides that when an offender commits offenses

in different jurisdictions as part of a course of criminal conduct, venue lies for all the offenses

in any jurisdiction in which the offender committed one of the offenses or any element

thereof. R.C. 2901.12(H). Offenses "committed as part of the same transaction or chain of

events, or in furtherance of the same purpose or objective" serve as "prima facie evidence of

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a course of criminal conduct." R.C. 2901.12(H)(3).

{¶ 16} In the case at bar, none of the marijuana-related offenses (trafficking,

possession, or cultivation), the criminal-tools-possession offense, or the cocaine-possession

offense, nor any elements thereof, occurred in Warren County. Rather, those offenses all

occurred in Butler County. Nonetheless, the state alleged that Warren County was the

proper venue because Sparks engaged in a pattern of corrupt activity within Warren County

in violation of R.C. 2923.32(A)(1).

{¶ 17} Specifically, by indicting Sparks for engaging in a pattern of corrupt activity, the

state alleged that Sparks directly or indirectly conducted or participated in a corrupt activity

with a group of persons associated-in-fact to traffic marijuana in Warren County. In support

of its claim, the state produced evidence that Sparks cultivated and processed marijuana for

Baker in the Noble Avenue house, that Baker sold marijuana to the Lampes, that the Lampes

sold marijuana to Lopez, that Lopez sold marijuana to Pagenstecher, and that Pagenstecher

sold marijuana in Warren County.1 Therefore, according to the state, an element of engaging

in a pattern of corrupt activity occurred when Lopez attempted to sell marijuana to

Pagenstecher in Warren County on January 13, 2012, and when Pagenstecher sold

marijuana in Warren County, thereby providing venue in Warren County.

{¶ 18} R.C. 2923.32(A)(1) provides 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 or the collection of an unlawful debt." An "enterprise"

includes "any individual, sole proprietorship, partnership, limited partnership, corporation, * * *

or any organization, association, or group of persons associated in fact although not a legal

1. The only evidence in the record of any dealings between Lopez and Pagenstecher in Warren County is the controlled buy arranged by Pagenstecher in conjunction with the task force which occurred on January 13, 2012, in the parking lot of a Walmart. Lopez was arrested prior to making an actual sale to Pagenstecher.

-6- Warren CA2013-02-010 CA2013-02-015

entity." R.C. 2923.31(C). An enterprise "includes illicit as well as licit enterprises."

"'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." R.C. 2923.31(E). Under R.C. 2923.31(I)(2)(c), "corrupt

activity" is defined in part as engaging in or attempting to engage in drug trafficking in

violation of R.C. 2925.03.

{¶ 19} "In order to establish that a defendant engaged in a pattern of corrupt activity,

the state must show that the defendant was 'associated with' an 'enterprise.'" State v.

Campbell, 5th Dist. Delaware No. 07-CA-A-08-0041,

. "[M]erely

committing successive or related crimes is not sufficient to rise to the level of a RICO

violation. Both the federal and Ohio RICO statutes require an 'enterprise.'"2 State v.

Schlosser,

(1997).

{¶ 20} An "association-in-fact enterprise is a 'group of persons associated together for

a common purpose of engaging in a course of conduct.'"3 Boyle v. United States,

,

(2009), quoting United States v. Turkette,

,

(1981); Baker,

. Such an enterprise must have three

structural features: "'a purpose, relationships among those associated with the enterprise,

and longevity sufficient to permit those associates to pursue the enterprise's purpose.'"

, quoting

. "'[T]he term "structure" means the way in which parts

2. Ohio's engaging in a pattern of corrupt activity, R.C. 2923.32, is similar to the federal Racketeer Influenced and Corrupt Organizations Act (RICO), which makes it "unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of an unlawful debt." 18 U.S.C. 1962(c).

3. Because the Ohio statute is based upon the federal RICO statute, Ohio courts may rely upon federal case law when analyzing issues pertinent to engaging in a pattern of corrupt activity. Baker,

, citing Schlosser,

.

-7- Warren CA2013-02-010 CA2013-02-015

are arranged or put together to form a whole and the interrelation or arrangement of parts in

a complex entity.'" (Emphasis added.)

, quoting

. In

determining whether a group of people are associated-in-fact, "a court will look to whether

the group is a 'continuing unit that functions with a common purpose.'"

, quoting

. An association-in-fact enterprise "'is proved by evidence of an ongoing

organization, formal or informal, and by evidence that the various associates function as a

continuing unit.'"

, quoting

. The "concept of 'association'

requires both interpersonal relationships and a common interest."

. "Moreover,

the 'defendants must have conducted or participated in the conduct of the enterprise's affairs,

not just their own affairs.'" (Emphasis sic.)

, quoting Ouwinga v. Benistar 419

Plan Services, Inc.,

(6th Cir. 2012).

{¶ 21} We find the state failed to prove beyond a reasonable doubt that Sparks was a

direct or indirect participant in the corrupt activity of a group of persons associated-in-fact

conducting the affairs of an enterprise in Warren County.

{¶ 22} Even when broadly construing the language of R.C. 2923.32, the record shows

that the state failed to prove there was a structure that revealed Sparks acting together with

others for the sale of marijuana in Warren County. Although the state adequately

demonstrated that Sparks was engaged in the cultivation and trafficking of marijuana in the

Noble Avenue house in Butler County, Ohio for the benefit of Baker, the state failed to

demonstrate that Sparks and Baker formed an enterprise with others (i.e., Lopez or

Pagenstecher) for the trafficking of marijuana in Warren County. As in Baker and Honeycutt,

there was no evidence of a common purpose or relationships among the alleged associates

to form a whole, as contemplated by the Boyle court. See Baker,

;

Honeycutt,

. There was no indication that Pagenstecher or Lopez, the

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only two individuals who acted within Warren County, conducted or participated in conduct

that pertained to Sparks' enterprise, rather than their own affairs. Moreover, contrary to the

state's argument, the fact that each individual involved made money selling marijuana and is

guilty of associating with others who buy or sell marijuana does not mean that they acted as

a "continuing unit that functions with a common purpose." To hold otherwise "would

transcend the remedial purpose of R.C. 2923.32." Baker at id.; Honeycutt at

{¶ 23} While the state argued that the group's common purpose was to make money,

the state did not present evidence that Sparks, Baker, the Lampes, Lopez, and Pagenstecher

formed an entity to earn money as an enterprise. Rather, the evidence presented at trial

indicates that each individual had his own separate and distinct "business" venture when

selling marijuana and that each individual participated in his own affairs. There is no

evidence that any of these individuals had any involvement in the others' business affairs;

there is no evidence that they joined together to make money for the same enterprise; and

there is no evidence demonstrating that their motive to make a profit was common in the

sense it supported the enterprise. While the various individuals may have had the same

purpose in selling their marijuana (i.e., to make money), having the same purpose is not the

equivalent of having a "common purpose."

{¶ 24} The record also shows the state failed to establish that the parties had

relationships with one another sufficient to establish an enterprise. There is no evidence in

the record that Baker or Sparks had any relationship with Lopez or Pagenstecher, the

supposed participants in Sparks' enterprise. Nor is there any evidence that Pagenstecher

had a relationship with the Lampes. The testimony elicited at trial revealed that Sparks (1)

only dealt with Baker; (2) had no idea what Baker did with, or where he took the marijuana

once he would get the marijuana from Sparks; and (3) was utterly unaware of Pagenstecher's

marijuana business venture. Cody Lampe testified Baker was his supplier and that he knew -9- Warren CA2013-02-010 CA2013-02-015

Baker cultivated marijuana. Cody Lampe also testified he did not know whether Baker sold

marijuana to other people. He further testified he did not know to whom Lopez sold the

marijuana Lopez purchased from him and his wife. Lopez testified he had never met

Sparks.4

{¶ 25} The record indicates that Baker, the Lampes, Lopez, and Pagenstecher each

committed crimes by selling marijuana at some given point in time. However, "the finding of

'enterprise' demands more than merely grouping related or successive crimes together" and

more "than individual criminals coming into contact." Honeycutt,

,

citing Baker,

, fn. 6 and ¶ 29. In this case, a finding of "enterprise"

would have required the state to prove that Lopez and Pagenstecher voluntarily participated

in, or were in fact, associated with organized conduct for the purpose of an enterprise

existing between Sparks, Baker, and the Lampes.5 Neither Lopez nor Pagenstecher did

anything to further Sparks' enterprise. Rather, they sold marijuana only in furtherance of their

own personal gain.

{¶ 26} Furthermore, Sparks, Baker, the Lampes, Lopez, and Pagenstecher were not a

"unit" in that each individual was not a part of the whole. A "unit," and therefore an

enterprise, requires more than serial drug sales. Associations within the series of

transactions between various individuals may have constituted an enterprise for purposes of

4. The state correctly asserts that members of an enterprise need not know "the identity or the number of their fellow members." However, as we stated in Honeycutt, "the state has to prove the members were 'voluntarily connected to the pattern of corrupt activity [comprising] the enterprise.'" (Emphasis sic.) Honeycutt, 2014-Ohio- 352 at ¶ 28, fn. 6, quoting State v. Siferd,

,

, ¶ 43 (3d Dist.). The fact that Sparks did not know either Lopez or Pagenstecher is but one factor we consider in determining whether the participation of Lopez or Pagenstecher in the alleged enterprise was a voluntary connection to or an association with Sparks. Honeycutt at id.

5. As we noted in Baker and Honeycutt, there is little doubt that Baker and the Lampes participated in each other's enterprises. In those cases and in the case at bar, the state presented evidence that Cody Lampe and Baker exchanged tips on, and equipment for, the cultivation and harvesting of marijuana. However, as we held in Baker and Honeycutt, "[t]he continuing parts * * * must function as a whole" and here, as in Baker or Honeycutt, neither Pagenstecher nor Lopez were a "continuing part" in Sparks' enterprise. Baker, 2013-Ohio- 2398 at ¶ 29, fn. 7; Honeycutt,

.

- 10 - Warren CA2013-02-010 CA2013-02-015

R.C. 2923.32 (i.e., Baker and Sparks; Baker and the Lampes; the Lampes and Lopez; Lopez

and Pagenstecher), but the sequence from Sparks and Baker all the way to Pagenstecher

did not constitute a unit, and therefore, was not an enterprise. Simply stated, the state did

not prove that the parties functioned as separate parts to form a whole, with a shared,

common purpose that Sparks engage in the sale of marijuana in Warren County.

{¶ 27} The evidence presented at trial also demonstrated that Sparks' enterprise never

touched Warren County. Rather, all of Sparks' cultivation, preparation, and possession of

marijuana occurred at the Noble Avenue house in Butler County. There is no evidence that

Baker or Sparks ever directed drug shipments or sold their product in Warren County. Nor is

there evidence that Baker or Sparks ever directed or steered others to further Sparks'

enterprise in Warren County.

{¶ 28} The state seeks to distinguish our decision in Baker from the case at bar on the

ground that in finding that Warren County was not the proper venue in Baker, this court

relied heavily on the fact that the trial court had found that there was no evidence that marijuana grown by Baker entered Warren County. However, there is no such finding in this case. In this case, the trial court, acting as the trier of fact, found that, base[d] on the evidence, it was a reasonable inference that Baker's marijuana had entered Warren County, unlike the Baker case.

{¶ 29} The state's assertion mischaracterizes our analysis in Baker. The state is

correct that in Baker, we noted the trial court's finding "that no marijuana that Baker ever

grew entered Warren County." Baker,

. However, contrary to the

state's assertion, we did not rely heavily on this finding in holding that venue was not proper

in Warren County for purposes of R.C. 2923.32. Rather, we simply referred to the trial

court's finding to further highlight the lack of an enterprise by Baker in Warren County. See

id. at ¶ 18, 35. Our decision in Baker certainly did not turn on this specific facet of the case.

{¶ 30} In the case at bar, the trial court found, "I don't think there's real direct evidence

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that the marijuana that was sold from the testimony here was from Mr. Baker. But I think

there's a reasonable inference that can be drawn from that."6

{¶ 31} While the origin of the marijuana ultimately sold in Warren County is a factor to

be considered in determining the extent of an enterprise, if any, it is a factor the state

overemphasizes. The existence and extent of an enterprise in the case at bar should not

turn upon the fluke of which source of marijuana the Lampes drew from (whether their own or

Baker's grow operations) when they sold marijuana to Lopez. Rather, the more appropriate

focus is upon the common purpose of the individuals involved, their combined efforts in

pursuing such common purpose, and their relationship with one another. Given the state's

failure in the case at bar to establish common purpose and relationship between alleged

enterprise associates, the trial court's finding that the marijuana ultimately sold in Warren

County came from Baker, does not change our analysis.

{¶ 32} In support of its assertion that Sparks, Baker, the Lampes, Lopez, and

Pagenstecher formed a single enterprise and that venue was proper in Warren County, the

state cites the United States Supreme Court's decision in Boyle,

, as well as the

Third Appellate District's decision in State v. Siferd,

,

6. It is unclear whether the trial court inferred that any of the marijuana Baker sold to the Lampes came from the Noble Avenue grow operation tended by Sparks. If so, the propriety of this inference is questionable. As stated earlier, Baker had two separate grow operations, only one of which involved Sparks. The Lampes had their own grow operation. To infer that any marijuana sold in Warren County originated from Baker's Noble Avenue grow operation would require for the trial court to first infer that marijuana Baker sold to the Lampes included marijuana from Baker's Noble Avenue grow operation, and to further infer that marijuana sold by the Lampes to Lopez originated from the Noble Avenue grow operation and not from Baker's Creek Road warehouse grow operation or the Lampes' own grow operation. There was no evidence concerning the grow operation from which marijuana sold by Baker to the Lampes originated, nor was there any evidence as to whether marijuana sold by the Lampes to Lopez originated from Baker's grow operations or the Lampes' grow operation. This appears to be an impermissible stacking of inferences. Hurt v. Charles J. Rogers Transp. Co.,

, 333 (1955) (an inference which is based solely and entirely upon another inference and which is unsupported by any additional fact or another inference from other facts is an inference upon an inference and is universally condemned); 1A Wigmore, Evidence, Section 41, at 1106 (Tillers Rev. 1983) (the true purpose of the rule against pyramiding inferences is to prevent verdicts based on mere speculation or conjecture). Furthermore, an inference that any of the marijuana sold by the Lampes to Lopez originated from Baker is untenable based solely upon the evidence that Baker sold marijuana to the Lampes, in view of the fact that the Lampes had their own separate source of marijuana.

- 12 - Warren CA2013-02-010 CA2013-02-015

(3d Dist.). The state cites these decisions for the proposition that enterprise structure and

association with it may be informal.

{¶ 33} The issue addressed by the Supreme Court in Boyle was whether an

association-in-fact enterprise must have "an ascertainable structure beyond that inherent in

the pattern of racketeering activity in which it engages." Id. at 945. The Supreme Court held

that:

[A]n association-in-fact enterprise is simply a continuing unit that functions with a common purpose. Such a group need not have a hierarchical structure or a "chain of command"; decisions may be made on an ad hoc basis and by any number of methods - by majority vote, consensus, a show of strength, etc. Members of the group need not have fixed roles; different members may perform different roles at different times. The group need not have a name, regular meetings, dues, established rules and regulations, disciplinary procedures, or induction or initiation ceremonies. While the group must function as a continuing unit and remain in existence long enough to pursue a course of conduct, nothing in RICO exempts an enterprise whose associates engage in spurts of activity punctuated by periods of quiescence. Nor is the statute limited to groups whose crimes are sophisticated, diverse, complex, or unique; for example, a group that does nothing but engage in extortion through old- fashioned, unsophisticated, and brutal means may fall squarely within the statute's reach.

Id. at 948.

{¶ 34} Boyle involved an informally organized core group of individuals who, over a

number of years, engaged in bank robberies, bank burglaries, and bank night-deposit box

thefts. This core group would, from time to time, recruit others to assist them with their

criminal activities. Edmund Boyle joined the group in 1994 and participated in numerous

attempted night-deposit box thefts and bank burglaries over the ensuing five years. The

Supreme Court's decision in Boyle stands for the proposition that an "association-in-fact"

enterprise may be informal. Nonetheless, the finding of an enterprise still must consist of a

"unit" with a "common purpose." Those elements are lacking in the case at bar.

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{¶ 35} In Siferd, Donald Siferd was convicted of engaging in a pattern of corrupt

activity in violation of R.C. 2923.32 based upon his association with the Gonzalez family drug

ring. Siferd claimed his conviction was in error because, in spite of his numerous cocaine

purchases from the Gonzalez family drug ring, he was an addict and therefore a crime victim;

he did not direct the operations of the drug ring; and he was not known by all the drug ring

associates of the Gonzalez family drug ring. The Third Appellate District rejected those

claims as conclusive and found that managerial or supervisory direction, control of enterprise

activities, and being known by or interacting with other enterprise associates were not

necessary for one to be liable under R.C. 2923.32. Siferd,

at ¶ 37, 50.

{¶ 36} Boyle and Siferd are of limited utility in resolving the question now before this

court. First, Boyle and Siferd address only what is not necessary in order to find association

with an enterprise (i.e., formalized organization, participation in a managerial capacity, and

inter-relationship with all other enterprise associates). At most, these cases provide

guidance here to the extent that the absence of formal organization, managerial control, and

interaction with certain other individuals associated with the enterprise is not dispositive of

whether a particular person has associated himself with that enterprise based upon the

particular facts of those cases. Boyle and Siferd do not hold that the foregoing indicia are

never relevant and important in determining whether an individual has associated himself

with an enterprise.

{¶ 37} Additionally, Boyle and Siferd construed prerequisites for liability under R.C.

2923.32, and not venue. Construing where venue lies under R.C. 2923.32 involves a more

exacting scrutiny of the several associations of the various individuals involved in the

enterprise than that necessary for liability. Specifically, when the sole issue is liability, it need

only be determined whether a defendant has associated with an enterprise. Once that

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determination has been made, it is no longer important to define the precise parameters of

the enterprise. On the other hand, because venue under R.C. 2923.32 is proper in any

county in which the enterprise conducted activity, see Mielke,

, the

exact parameters of the enterprise take on a much greater significance. This is particularly

true where the defendant is indicted in a county other than the county in which he committed

an alleged predicate offense. In such an instance, it must be determined whether other

individuals committing predicate offenses in the defendant's county of indictment are a part of

the same enterprise so as to subject the defendant to venue in that county even though he

committed an alleged predicate offense in a different county, and not the county of

indictment.

{¶ 38} The decisions in Mielke, State v. Yates, 5th Dist. Licking No. 2009 CA 0059,

, and State v. Giffin,

(10th Dist. 1991), are enlightening

on this point and instructive. In those cases, the defendants were all indicted for numerous

offenses, including violating R.C. 2923.32. All of the alleged R.C. 2923.32 predicate offenses

committed by the defendants were committed in counties other than the county in which they

were indicted and tried. However, in all of those cases, other enterprise associates had

committed predicate offenses in the counties in which the defendants were tried. Upon

appeal in all of those cases, the respective appellate courts found venue to be proper.

However, there is an important distinction between those cases and the case at bar: in all of

those cases, there was a centralization to the enterprise structure.

{¶ 39} In Mielke, an illegal steroid trafficking ring was run by Matthew Geraci. Geraci

had a number of steroid distributors, including Mielke. All of the distributors obtained their

steroids from Geraci either at his home or his office in Hamilton County. Some of Geraci's

distributors sold steroids in the county of Mielke's indictment.

{¶ 40} Yates involved a counterfeit check cashing ring operated by Clyde Haynie. - 15 - Warren CA2013-02-010 CA2013-02-015

Haynie would produce and sign counterfeit checks in Franklin County which were then

cashed by various individuals, including Tamico Yates, in a variety of Ohio counties. Some

of the checks were cashed in the county of Yates' indictment.

{¶ 41} Finally, Giffin involved a burglary ring directed from a Franklin County auction

house by Tom Cummings. Cummings conducted meetings at the auction house and

planned the various burglaries to take place in various counties. Some of the burglaries were

committed in the county of Giffin's indictment.

{¶ 42} Although Mielke, Yates, and Giffin all found that venue was proper, for

purposes of R.C. 2923.32, in a county other that the county where the defendants' predicate

offenses were committed, all three cases involved a radically different enterprise structure

than that involved here. In Mielke, Yates, and Griffin, all three enterprises were structured

like a wheel with a hub and spokes, with the ringleader operating as the hub, and the steroid

distributors, check cashers, or burglars operating as the spokes. While the spokes may not

have had associations or interactions with each other, all were associated through the hub

and were, therefore, a part of a common enterprise.

{¶ 43} Here, the alleged enterprise is more like a chain with one link connected only to

the next. If such a structure is to be construed as an enterprise, then something more is

required than what is required for a hub and spoke structure. In Baker, we found that Baker

and Pagenstecher were not a part of a common enterprise because "[t]here is no evidence

on record that any of the individuals were involved in each other's business affairs, such as

setting prices or being assigned to certain 'customers' or territories, nor is there any other

indication that the parties joined together to make money for the same enterprise." Baker,

. This is not to say that these indicia are necessary to establish a

common enterprise in every case (see, for example, Boyle and Siferd). But in a case such as

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the case at bar, where each successive link in the chain becomes more remote from the links

preceding it, something more than evidence of sequential drug sales is required to establish

a common enterprise.

{¶ 44} Although there may a connection between Sparks on one hand and Lopez and

Pagenstecher on the other hand through the Lampes and Baker, not every collection of

criminals constitutes an enterprise for purposes of R.C. 2923.32. This is apparent from the

Fifth Appellate District's decision in State v. Lynch, 5th Dist. Richland No. 11 CA 75, 2012-

Ohio-2521. In Lynch, Scott Lynch was charged with violating R.C. 2923.32 based upon his

repeated trafficking in heroin. The enterprise element of the offense was premised upon

testimony that "heroin is grown in other countries, brought into the United States by various

drug 'organizations' and distributed throughout U.S. cities, and then 'on down the line from

bigger dealer to smaller dealer and to the user.'" Id. at ¶ 24. The court of appeals rejected

this as a basis for establishment of an enterprise and stated that:

The fact heroin frequently comes into the United States from foreign countries and is then redistributed does not convert appellant's separate instances of trafficking into an EPCA violation under the facts and circumstances presented. We find the evidence in this case failed to sufficiently demonstrate a distinct "structure" for purposes of proving the enterprise element of engaging in a pattern of corrupt activity under R.C. 2923.32(A)(1).

Id. at ¶ 28. The Fifth Appellate District recognized that mere interdependence of criminals is

insufficient to establish an enterprise in the absence of a "distinct structure" to the

interdependence.

{¶ 45} Contrast Lynch with the Second Appellate District's decision in State v. Rogers,

2d Dist. Miami No. 2003-CA-30,

, in which Barry Rogers was indicted in

Miami County for various offenses, including violating R.C. 2923.32, based upon repeated

trafficking in cocaine. Rogers sold cocaine to Jesse Mendez and Reginald Block in

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Montgomery County. Mendez and Block sold the cocaine they purchased from Rogers in

Miami County. Rogers challenged Miami County as the proper venue for his offenses on the

ground he conducted no criminal activity in Miami County. Mendez testified that he and

Rogers were associates in that they moved cocaine together. The Second Appellate District

found that:

Even if Rogers was not directly involved in the Miami County activities of the drug ring, venue there was proper because his predicate acts were part of a criminal course of conduct, committed in his same relationship with Mendez and the enterprise, and in furtherance of the same purpose or objective- profiting from drug trafficking. Although this issue is close, due to the minimal evidence in the record, we conclude that venue in Miami County was satisfactorily proven pursuant to R.C. 2901.12(H).

(Emphasis added.) (Internal citation omitted.) Id. at ¶ 101.

{¶ 46} Rogers differs from Lynch and the case at bar in that there was a relationship

between Rogers and Mendez. Sparks had no relationship with Lopez or Pagenstecher.

Significantly, on evidence much more substantial than the evidence in the case at bar

regarding the interrelationship of enterprise associates, the Second Appellate District noted it

was a "close" call whether Rogers' case was properly venued in Miami County.

{¶ 47} Siferd, although not a venue case, is enlightening on this point as it involves an

enterprise structured similarly to the one involved here. In Siferd, in finding him to be a part

of the Gonzales family drug ring, the Third Appellate District noted that Siferd purchased

substantial quantities of cocaine from enterprise associates, fronted enterprise associates

money to obtain cocaine for him, offered enterprise associates an alternate source for

cocaine when they did not have any on hand, and was compensated by the enterprise for his

involvement with a reliable flow of cocaine and free cocaine. Many of these features of an

association are lacking in the case at bar.

{¶ 48} Here, the only evidence submitted by the state that Lopez and Pagenstecher - 18 - Warren CA2013-02-010 CA2013-02-015

were part of an enterprise reaching to Sparks is that Lopez purchased marijuana from the

Lampes and Pagenstecher purchased marijuana from Lopez. There was no evidence that

Lopez or Pagenstecher assisted the enterprise, separate and apart from purchasing

marijuana. There was no evidence that the enterprise encouraged Lopez and Pagenstecher

to sell marijuana or compensated them for their efforts. Simply put, Lopez and Pagenstecher

were customers of those from whom they purchased marijuana and not distributors for them.

{¶ 49} In light of all of the foregoing, we find that the state failed to prove that Sparks

engaged in a pattern of corrupt activity because there was no evidence that Sparks was

involved in an association-in-fact enterprise with Lopez or Pagenstecher. While Sparks, by

himself or through Baker, may have engaged in a pattern of corrupt activity in Butler County,

no element of this offense occurred in Warren County. The state has failed to prove venue

beyond a reasonable doubt and an acquittal must be entered upon the record. See

Hampton,

; Baker,

.

{¶ 50} Having found that the state failed to prove that Warren County was the proper

venue, we sustain Sparks' first assignment of error. Sparks' convictions are reversed and

vacated, and double jeopardy attaches to bar the state from reprosecuting these charges.

See

.

{¶ 51} We now turn to the state's assignment of error:

{¶ 52} THE WARREN COUNTY COURT OF COMMON PLEAS ABUSED ITS

DISCRETION WHEN IT SENTENCED SPARKS TO SERVE COMMUNITY CONTROL

BECAUSE IT FAILED TO MAKE THE REQUISITE STATUTORY FINDINGS TO SUPPORT

ITS DECISION TO DEPART FROM THE PRESUMPTIONS IN FAVOR OF A PRISON

TERM.

{¶ 53} The state argues the trial court abused its discretion in sentencing Sparks to

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community control because the trial court failed to make the requisite statutory findings under

R.C. 2929.13(D)(2) when it departed from the presumption of a prison sentence in favor of

community control.

{¶ 54} Given our disposition of Sparks' cross-assignment of error, the state's

assignment of error is moot. See App.R. 12(A)(1)(c).

{¶ 55} Judgment reversed, Sparks' convictions are vacated, and Sparks is hereby

discharged.

HENDRICKSON, P.J., concurs.

RINGLAND, J., dissents.

RINGLAND, J., dissenting.

{¶ 56} I respectfully dissent from the majority's decision as I would find that Sparks

was part of an informal criminal enterprise, and that the enterprise's activities extended into

Warren County.

{¶ 57} I first recognize that this court has previously held in Baker that no criminal

enterprise existed between the various individuals involved here.

.

That holding was based on findings that: (1) "there was no common purpose established nor

relationships among associates to form a whole," (2) the conduct of Pagenstecher and Lopez

was for their own benefit rather than that of an enterprise, (3) none of the "individuals were

involved in each other's business affairs, such as setting prices or being assigned to certain

'customers' or territories," (4) "there is no conduct, conspiracy, or element of control attributed

to Baker placing his enterprise or his associates in Warren County," and (5) "the state did not

prove that the marijuana that Baker sold to the Lampes was the same marijuana that was

eventually sold in Warren County to Pagenstecher." Upon further reflection, I now find that

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we interpreted R.C. 2923.32 too narrowly in Baker.

{¶ 58} While I accept that each of the individuals involved here were acting for their

own benefit, I do not accept that fact alone as dispositive of whether they were also acting for

a common purpose. Indeed, I find it unlikely that most members of any criminal enterprise

act altruistically. Each member involved in the facts before us engaged in a pattern of

corrupt activity for the common purpose of selling and trafficking in marijuana. Whether they

knowingly, recklessly or otherwise engaged in that activity is irrelevant as offenses under

R.C. 2923.32 are subject to strict liability. State v. Schlosser,

(1997).

They acted in concert with one another and relied on one another to carry out their common

purpose. It is additionally irrelevant whether Baker personally knew of or was aware of Lopez

or Pagenstecher so long as they were all voluntarily connected to the pattern of corrupt

activity comprising the enterprise. Siferd,

at ¶ 43.

{¶ 59} Furthermore, I do not believe that it is necessary for the state to prove that the

marijuana Baker sold to Lampe ever made it into Warren County. The relevant question is

not whether Sparks' specific contributions to the enterprise reached Warren County, but

rather whether Sparks was part of a group of persons associated-in-fact conducting the

affairs of an enterprise that acted in Warren County. Accordingly, I find it irrelevant whether

Baker's marijuana or the marijuana cultivated by Sparks reached Warren County, so long as

they were part of an enterprise that engaged in corrupt activity in Warren County.

{¶ 60} While the Lampes may have maintained their own grow operation, that does

not exclude Baker's contributions to the "pool" of marijuana from the enterprise. It matters

not whether a particular sale from the Lampes to Lopez contained marijuana from their own

portion of the "pool" or from Baker's portion, so long as all of them were involved in the same

enterprise. For instance, if the Lampes sold the marijuana they purchased from Baker to

someone other than Lopez, thus allowing them to sell their own marijuana to Lopez, Baker - 21 - Warren CA2013-02-010 CA2013-02-015

has still played a role in the enterprise that extended into Warren County. Here, the "pooling"

of their marijuana contributed to the same enterprise which engaged in corrupt activity in

Warren County. Accordingly, I am compelled to find that an informal enterprise existed

similar to that which was contemplated by the United States Supreme Court in Boyle.

.

{¶ 61} I note that even if I were to find that the question of whether Baker's marijuana

entered Warren County is relevant, the present case would be distinguished from Baker,

. In Baker, the trial court stated that, "I do not find that there was evidence

that showed that the marijuana that was grown by Mr. Baker ever made it to Warren County."

Id. at ¶ 35. In contrast, the trial court in the present case found that, "there's a reasonable

inference that can be drawn" that marijuana sold in Warren County came from Baker.

{¶ 62} In light of the foregoing, having found that we previously interpreted R.C.

2923.32 too narrowly, I must respectfully dissent from the majority's decision and would

affirm the trial court.

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