[Cite as State v. Sultaana,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 101492

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

HAKEEM SULTAANA

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-571616-A

BEFORE: E.T. Gallagher, J., Jones, A.J., and Stewart, J.

RELEASED AND JOURNALIZED: January 21, 2016 FOR APPELLANT

Hakeem Sultaana, pro se Inmate Number 654-265 Lake Erie Correctional Institution P.O. Box 8000 Conneaut, Ohio 44030

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

BY: James A. Gutierrez Erica Barnhill Assistant Prosecuting Attorneys The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 EILEEN T. GALLAGHER, J.:

{¶1} Defendant-appellant, Hakeem Sultaana (“Sultaana”), appeals his convictions and

sentence. He raises four assignments of error for our review:

1. Hakeem Sultaana was deprived of his liberty without due process of law, where his conviction for engaging in a pattern of corrupt activity is insufficient as a matter of law.

2. The trial court erred by refusing to grant Mr. Sultaana’s Rule 29 motion for acquittal on the tampering with records charges because those counts were more specifically and properly charged under R.C. 4505.01, providing false statements on requests for duplicate titles.

3. The trial court erred in failing to merge the securing writings by deception and theft by deception as allied offenses of similar import. 4. The trial court imposed a sentence contrary to law and violated Hakeem

Sultaana’s Fourteenth amendment right to due process and Sixth amendment right

to trial by jury when it punished Sultaana for exercising his right to trial.

{¶2} We find no merit to the appeal and affirm.

I. Facts and Procedural History

{¶3} In February 2013, the Cuyahoga County Grand Jury issued a 102-count indictment

charging Sultaana and 18 codefendants with various offenses, including engaging in a pattern of

corrupt activity, tampering with records, securing writings by deception, forgery, grand theft, and

unclassified felony title offenses. The state dismissed, without prejudice, the charges against

four codefendants who were unavailable for trial, and the remaining 14 codefendants entered plea

agreements with the state in exchange for truthful testimony at Sultaana’s trial.

{¶4} The state alleged that Sultaana was the mastermind of a theft ring, which was

responsible for stealing over $47,625 from title loan companies, such as LoanMax (a.k.a Integrity

Funding) and Ace Cash Express. Sultaana and the codefendants obtained title loans on vehicles using false information on loan applications and falsified certificates of auto titles. The

codefendants, who testified at trial, recounted similar stories of how Sultaana, and/or his

girlfriend, helped them complete loan applications secured by falsified auto titles. As soon as a

loan was obtained, Sultaana directed the individuals to obtain duplicate auto titles from local title

bureaus in order to procure a second loan from a different loan company. Sultaana discovered

that it took seven to ten days before the liens from the loans appeared on record at the Ohio

Bureau of Motor Vehicles (“BMV”) and that second loans could be obtained during this time

without the second lender knowing of any prior loans or liens on the title.

{¶5} One of Sultaana’s girlfriends, Angel Strong, testified that she assisted Sultaana and

at least four individuals to obtain fraudulent loans. (Tr. 2089-2100, 2112-2138.) According to

Strong, Sultaana forged whoever’s name was originally on the title in order to transfer it into a

codefendant’s name so that the codefendant could apply for a title loan. Strong and Sultaana

subsequently went with the individual to a loan company where the codefendant obtained a loan

with the falsified title. Strong testified, as did numerous codefendants, that Sultaana kept most

of the cash received from the loans even though the codefendants were the named borrowers,

who were responsible for repayment. In each case, Sultaana promised the codefendants, who

were his friends and acquaintances, that he would promptly repay the loans on their behalf.

{¶6} According to Strong, Sultaana used a notary stamp belonging to his friend, Susan

Palcisco, and forged Palcisco’s name to notarize documents associated with some of the

transactions. (Tr. 2079-2080.) Palcisco admitted at trial that she also notarized several

documents for Sultaana that she knew were forged. (Tr. 2184-2186.) An elderly friend

notarized other documents for Sultaana and his codefendants. Strong and several witnesses testified that Sultaana paid all the fees associated with the duplicate auto titles and loan

applications.

{¶7} Michael Russo (“Russo”), a detective with the Ohio BMV, investigated a report that

customers of two loan companies, Ace Cash Express and LoanMax, were obtaining duplicate

titles to fraudulently secure title loans. At the time of the report, Russo was not aware of any lag

time between the time a loan was extended and the time the lien appeared on the title in the BMV

database. Russo searched the BMV database and discovered a recurring pattern in which a title

was used to procure a loan, a duplicate title was subsequently obtained, and a second loan was

made on the duplicate title.

{¶8} According to Russo, there were also commonalities within several of the loan

documents. For example, several applicants listed Unique Auto Sales, located at 4364 West

130th Street, as a place of employment. Russo discovered that Sultaana previously worked at

Unique Auto Sales, which was once a car dealership at that location, but the dealership had been

out of business for several years. The location where the dealership had existed was a now

vacant lot with weeds poking through cracks in the cement. (Tr. 3008.)

{¶9} Russo also found that the license plates listed for the vehicles in the loan

applications typically did not belong to the vehicle. The vehicles actually had temporary tags for

which no permanent tags had been issued. Russo further discovered that Sultaana was also

known as “Kevin Hughley” and the name “Kevin Hughley” was listed on several loan documents

as the applicant’s employer. Sultaana’s cell phone number was frequently listed on the

applications, but the last digit was changed.

{¶10} Russo testified that he created a data sheet depicting the fraudulently secured loans

in chronological order. The data sheet listed the loans, duplicate titles, additional loans, and scrapping of some vehicles. Russo stated: “I was able to establish a pattern within the first four

transactions by the individuals.” (Tr. 3024.)

{¶11} At the conclusion of the trial, the jury found Sultaana guilty of 94 counts in the

indictment, including engaging in a pattern of corrupt activity and grand theft. They also found

him guilty of all the attendant furthermore specifications. The court sentenced Sultaana to a

ten-year prison term for engaging in a pattern of corrupt activity, four years on each of the

unclassified felony title offenses, and shorter sentences on the forgery, tampering with records,

theft, and securing writings by deception convictions. The court ordered the shorter sentences to

run concurrently with the ten-year sentence. However, the court ordered the ten-year prison

term to be served consecutive to the concurrent four-year terms on title offenses for an aggregate

14-year prison term.

{¶12} Sultaana, through appointed counsel, filed a timely notice of appeal, and counsel

filed a comprehensive merit brief. Sultaana later requested removal of his appointed counsel,

and we granted the request. Sultaana filed a motion for new counsel, and we appointed the state

public defender to represent him. The state public defender subsequently moved to withdraw as

counsel. We denied the motion and gave Sultaana three options (1) retain new counsel, (2)

proceed pro se, or (3) work with appointed counsel. Sultaana rejected all three of these options

and gave notice that he had instituted proceedings against appointed counsel in the federal

district court. Thereafter, we granted counsel’s second motion to withdraw as counsel.

{¶13} Throughout several months, Sultaana filed numerous pro se motions even when he

was represented by counsel. On October 1, 2015, we declared Sultaana a vexatious litigator and

ruled that “Sultaana is prohibited from instituting any appeals or original actions, continuing

appeals or original actions, or filing pro se motions in any pending appeal without leave of court.” After granting appointed counsel’s motion to withdraw, we granted Sultaana’s request

to proceed pro se provided that Sultaana refrain from filing any motions, notices or briefs without

first obtaining leave of court, and that the appellate brief filed by Sultaana’s first lawyer would be

considered his brief on appeal.

II. Law and Analysis

A. Sufficiency of the Evidence

{¶14} In the first and second assignments of error, Sultaana challenges the sufficiency of

the evidence supporting his engaging in a pattern of corrupt activity and tampering with records

convictions. The test for sufficiency requires a determination of whether the prosecution met its

burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266,

,

¶ 12. 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),

paragraph two of the syllabus.

1. Engaging in a Pattern of Corrupt Activity

{¶15} Sultaana contends there was insufficient evidence to support his engaging in a

pattern of corrupt activity conviction. He contends that although there was evidence of a pattern

of activity, there was no evidence of an enterprise, which is a necessary element of the offense.

{¶16} Ohio’s Racketeer Influenced and Corrupt Organizations Act (“RICO”) was

modeled after the federal RICO Act, 18 U.S.C. 1961 et seq. and Ohio courts have applied federal

case law in Ohio RICO cases. State v. Beverly,

,

,

.1 R.C. 2923.32(A)(1) provides, in relevant part that “[n]o person * * * associated with

1 The Ohio Supreme Court explained that it relied on several United States any enterprise shall conduct or participate in, directly or indirectly, the affairs of the enterprise

through a pattern of corrupt activity.” R.C. 2923.31 defines “pattern of corrupt activity” as “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.”

{¶17} Thus, in order to prove a RICO offense, the state must prove that (1) the defendant

committed two or more predicate offenses, (2) the defendant was “employed by, or associated

with” an “enterprise,” and (3) the defendant conducted or participated in the enterprise “through

a pattern of corrupt activity.” State v. Miranda,

,

,

, citing R.C. 2923.32(A)(1). “‘The conduct required to commit a RICO violation is

independent of the conduct required to commit [the underlying predicate offenses].’”

quoting State v. Dudas, 11th Dist. Lake Nos. 2008-L-109 and 2008-L-110,

. “The intent of RICO is ‘to criminalize the pattern of criminal activity, not the underlying

predicate acts.’”

quoting State v. Thomas, 3d Dist. Allen Nos. 1-11-25 and 1-11-26,

.

{¶18} R.C. 2923.31(C) defines “enterprise” as including

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.

Supreme Court cases “not because they are the law of the land, [they are not in Ohio, R.C. 2923.31 and 2923.32 are], but because the reasoning applied by the Supreme Court is logical and apt.” Id. at ¶ 14. In Beverly, the court specifically relied on Boyle v. United States,

,

,

(2009). In this case, the alleged enterprise was not a legal entity, but an “association in fact.” To

establish an “association in fact” under R.C. 2923.31(C), there must be “a purpose, relationships

among those associated with the enterprise, and longevity sufficient to permit these associates to

pursue the enterprise’s purpose.” Boyle,

,

,

. “[M]erely committing successive or related crimes is not sufficient to rise to the level of a

RICO violation.” State v. Schlosser,

,

(1997).

{¶19} Sultaana argues there was no evidence of a conspiracy or “association in fact”

because the crimes were nothing but a series of unrelated transactions between Sultaana and each

individual codefendant. Although the existence of an “enterprise” is a separate element from the

“pattern of corrupt activity” that must be proved beyond a reasonable doubt, an enterprise may be

inferred from the evidence indicating associates engaged in a pattern of corrupt activity. Boyle,

,

,

. The Ohio Supreme Court recently held that

“the existence of an enterprise, sufficient to sustain a conviction for engaging in a pattern of

corrupt activity under R.C. 2923.32(A)(1), can be established without proving that the enterprise

is a structure separate and distinct from a pattern of corrupt activity.” Beverly,

,

,

, at syllabus.

{¶20} The facts of Beverly are helpful in determining whether an enterprise may be

inferred from the defendant’s conduct. In Beverly, the court held that the existence of an

enterprise could be inferred from the fact that the defendant and one other person stole three

vehicles, which they used to commit several burglaries. Id. at ¶ 16. In reaching this conclusion,

the court reasoned that “the definition of ‘enterprise’ is remarkably open-ended.” Id. at ¶ 8.

However, it is significant that the two co-conspirators collaborated to commit several offenses at

different times. {¶21} In State v. Montoya, 12th Dist. Clermont No. CA2012-02-015,

, the court found sufficient evidence to support the defendant’s RICO conviction based on drug

possession and trafficking conduct because the defendant and a codefendant had a purpose to sell

heroin on at least three occasions, they formed relationships to engage in that conduct, and there

was longevity because the transactions occurred over the course of a month.

{¶22} At first, the series of transactions involving Sultaana and each individual

codefendant appears to have “wheel and spoke” structure, with Sultaana at the hub and the

individual codefendants in the “rim.” Conspiracies involving a “wheel and spoke” structure

require proof that each defendant in the “rim” knew or had reason to know of the scope of the

conspiracy and that “‘each defendant had reason to believe that their own benefits were

dependent upon the success of the entire venture.’” United States v. Kenny,

(9th

Cir. 1981), quoting United States v. Kostoff,

(9th Cir. 1978). Sultaana argues

that since the codefendants were unaware of one another and the pattern of corrupt activity, there

was no proof of an enterprise.

{¶23} However, the evidence at trial demonstrated that at least two codefendants teamed

up with Sultaana in the commission of numerous offenses with the other individual codefendants

and would be considered the “hub” of the wheel with Sultaana. Susan Palcisco testified that she

notarized false auto titles “a good handful of times,” knowing that Sultaana used the titles to

fraudulently obtain loans with other codefendants.2 (Tr. 2191.) Palcisco testified that she could

2 Although Palcisco did not specifically testify to having knowledge of the conspiracy’s purpose, her knowledge can be inferred by the fact that she admitted notarizing countless blank documents and signatures of individuals who were not present, together with the fact that Sultaana assisted Palcisco in obtaining a falsified title and loan in her own name. As previously stated, in a sufficiency analysis, we review the evidence in a light most favorable to the prosecution to not remember the number of forged documents she notarized for Sultaana because “[t]here was

too many of them.” (Tr. 2191.) Palcisco also stated that Angel Strong accompanied her and

Sultaana when she used a falsified auto title to get a loan for $2,500, of which she received $200,

and Sultaana kept the rest. (Tr. 2198.) Palcisco agreed to take out the loan because Sultaana

told her he needed the money and she wanted to help him since they were “associates.”

(Tr. 2234.)

{¶24} Palcisco also testified that she lent her notary stamp to Sultaana. Sometime later,

Strong and Sultaana persuaded Palcisco to sign a letter authenticating her notary signature on an

auto title that had been rejected because a clerk at the title bureau did not believe it was genuine.

(Tr. 2193-2194.) Palcisco acknowledged they wanted her to sign the authentication letter

because Sultaana had “notarized a title and had it signed, and [the signature] didn’t match my

signature so they wouldn’t let the title go through.” Although she was concerned by the

deception, she nevertheless signed the letter. The fact that Palcisco helped Sultaana obtain

fraudulent certificates of title for the purpose of securing loans by deception established that

Palcisco had a relationship with Sultaana that helped Sultaana pursue the enterprise’s purpose.

Sultaana’s association with Palcisco, by itself, was sufficient to prove the existence of an

enterprise.

{¶25} The evidence also established that Angel Strong participated in fraudulent

transactions with Sultaana and at least four other codefendants at different times and locations.

For example, Strong and Sultaana helped codefendant Natasha Reyes transfer the title to her

determine whether any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jenks,

,

, at paragraph two of the syllabus. boyfriend’s car into Reyes’s name after which Strong helped Reyes complete a loan application

with fraudulent information. (Tr. 2091, 2400-2408.)

{¶26} On another occasion, Strong, Sultaana, and codefendant Sarah McCown obtained a

fraudulent loan in McCown’s name from LoanMax. (Tr. 2112-2114, 2249-2265.) They first

went to a title bureau where Sultaana assisted McCown in transferring the title of someone else’s

vehicle into her name. With respect to the loan process, Strong testified:

Q: Was there any information given to Sarah regarding what to put down on the loan application?

A: Just the income and how much she made at work.

Q: Okay. And who gave that information to whom?

A: Kevin gave it to me, and I gave it to her.

According to Strong, McCown received a loan for “a little over a thousand dollars,” of which

Sultaana gave her “a little over 150 dollars.” (Tr. 2119.)

{¶27} Strong assisted codefendant Stephanie Lenz in completing a loan application with

false information after Sultaana helped her procure a falsified title to a vehicle. Sultaana took

most of the loaned money and gave “a little bit of money” to Strong and Lenz. (Tr. 2133.)

After receiving the loan, Strong and Sultaana helped Lenz get a duplicate title so the vehicle

could be sold for scrap. (Tr. 2135-2136.)

{¶28} Strong also collaborated with Sultaana and Palcisco to secure a loan in her own

name. Strong testified that she and Sultaana fraudulently transferred the title to Sultaana’s

mother’s Honda into Strong’s name, which Sultaana notarized with Palcisco’s notary stamp.

(Tr. 2079.) Strong used the falsified title to obtain a loan in the amount of $8,000 from

LoanMax. (Tr. 2075.) Sultaana took most of the money and gave $2,500 to his mother. In exchange for Strong’s role in the transaction, Sultaana gave Strong a gram of heroin and a pair of

shoes. (Tr. 2075.)

{¶29} Although Strong received little money from the loan transactions, she received

“gifts,” mostly in the form of drugs, in exchange for her participation. (Tr. 2099.) Strong’s

testimony alone is sufficient to establish that Strong and Sultaana associated for the purpose of

committing a pattern of corrupt activity. Both Strong’s and Palcisco’s testimony demonstrates

that they played larger roles in the conspiracy than the individual codefendants at the “rim”; they

were in the “hub” of the wheel with Sultaana.

{¶30} The evidence showed that Sultaana engaged in numerous fraudulent transactions at

title bureaus and loan companies with various codefendants. The collaborative actions of

Strong, Palcisco, and Sultaana established the enterprise element of the offense. The series of

deceitful acts undertaken to attain the loans constitute a pattern of corrupt activity. And the fact

that these transactions occurred on different dates and locations demonstrates the longevity of the

enterprise. Therefore, there was sufficient evidence to sustain Sultaana’s conviction for

engaging in a pattern of corrupt activity.

{¶31} The first assignment of error is overruled.

2. Tampering With Records

{¶32} In the second assignment of error, Sultaana argues there was insufficient evidence

to sustain his tampering with records convictions because those charges were erroneously

charged under R.C. 2913.42 instead of R.C. 4505.19, which prohibits the use of falsified titles

and certificates of title to secure goods, services, credit, and money.

{¶33} Sultaana was convicted of 28 counts of tampering with records, in violation of R.C.

2913.42(A)(1). He contends that, pursuant to R.C. 1.51, he should have been charged with violating R.C. 4505.19(A)(4) because it is a more specific provision than R.C. 2913.42(A)(1).

R.C. 4505.99 provides that a violation of R.C. 4505.19(A)(4) is a misdemeanor. Sultaana’s

tampering with records convictions for falsifying government records under R.C. 2913.42(A)(1)

and 2913.42(B)(4) are third-degree felonies.

{¶34} R.C. 1.51 states:

If a general provision conflicts with a special or local provision, they shall be

construed, if possible, so that effect is given to both. If the conflict between the

provisions is irreconcilable, the special or local provision prevails as an exception

to the general provision, unless the general provision is the later adoption and the

manifest intent is that the general provision prevail.

{¶35} A tampering with records offense under R.C. 2913.42 does not conflict with R.C.

4505.19(A)(4). R.C. 4505.19(A)(4) prohibits one from using fictitious, forged, or counterfeit

certificates of auto titles to obtain goods, credit, or money, i.e., loans. R.C. 2913.42(A)(1)

provides that “[n]o person, knowing the person has no privilege to do so, and with purpose to

defraud or knowing that the person is facilitating a fraud, shall * * * (f)alsify, * * * alter, deface,

or mutilate any writing, * * *or record.” R.C. 2913.42(B)(4) provides that if the tampered

record or writing “is kept by or belongs to a local, state, or federal governmental entity,” then the

tampering with records offense is “a felony of the third[-]degree.” The fact that Sultaana

falsified certificates of title kept by the Ohio BMV is only relevant when determining the level of

the offense.

{¶36} Furthermore, R.C. 2913.42(A)(1) prohibits the act of falsifying records whereas

R.C. 4505.19(A) prohibits the use of falsified records to obtain goods, credit, or money. Thus, a

defendant may be guilty of using a falsified record to perpetrate a fraud without actually falsifying the record, and another defendant could be guilty of falsifying government records

without obtaining goods, credit, or money. Because the offenses involve the commission of

separate and distinct acts not required of the other, the two provisions are reconcilable and do not

conflict. Indeed, R.C. 2941.25, which requires the merger of allied offenses of similar import,

exists because sometimes multiple offenses can be committed by the same conduct. Therefore,

Sultaana was lawfully charged with and convicted of tampering with records in violation of R.C.

2913.42(A)(1) and 2913.42(B)(4).

{¶37} The second assignment of error is overruled.

B. Allied Offenses

{¶38} In the third assignment of error, Sultaana argues the trial court erred in failing to

merge his securing writings by deception convictions with his grand theft conviction. He

contends the grand theft offense incorporates the totality of the theft offenses charged in the

indictment.

{¶39} “R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the Fifth

Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution,

which prohibits multiple punishments for the same offense.” State v. Underwood,

,

,

, ¶ 23. Under R.C. 2941.25(A), when the same conduct

by the defendant “can be construed to constitute two or more allied offenses of similar import,

the indictment or information may contain counts for all such offenses, but the defendant may be

convicted of only one.” However, R.C. 2941.25(B) provides

Where the defendant’s conduct constitutes two or more offenses of dissimilar

import, or where his conduct results in two or more offenses of the same or

similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the

defendant may be convicted of all of them.

{¶40} The Ohio Supreme Court set forth the test courts should employ when deciding

whether two or more offenses are allied offenses that merge into a single conviction under R.C.

2941.25. State v. Ruff,

,

,

. In

accordance with the court’s prior decision in State v. Johnson,

,

,

, the Ruff court held that an allied offenses analysis begins

with an examination of the defendant’s conduct. Ruff at ¶ 25. However, the court elaborated

on the test and held that multiple offenses do not merge if (1) the offenses are dissimilar in

import or significance, (2) the offenses were committed separately, or (3) the offenses were

committed with separate animus or motivation. Id. at syllabus. With respect to the first factor,

the court explained that two or more offenses are dissimilar within the meaning of R.C.

2941.25(B) “when the defendant’s conduct constitutes offenses involving separate victims or if

the harm that results from each offense is separate and identifiable.” Id. at syllabus.

{¶41} Sultaana was convicted of one count of grand theft as charged in Count 2 of the

indictment. Count 2 alleges that Sultaana purposely deprived Integrity Funding, Ace Cash

Express, American Honda Finance, Amy Agosti, and James Wallace, of property or money by

deception, “and the property * * * stolen is valued at $7,500 or more and less than $150,000.”

Sultaana was convicted of 22 counts of securing writings by deception as a result of each

fraudulently secured loan. Each of the 22 counts of securing writings by deception alleged that

Sultaana, by deception, caused either Ace Cash Express or LoanMax to execute a “writing that

disposed of or encumbered property, or by which a pecuniary obligation was incurred and the

value of the property or obligation involved was $1,000 or more and less than $7,500.” The aggregate of all the theft offenses is equal to the value alleged to have been stolen in the grand

theft offense.

{¶42} However, we find that the individual counts of securing writings by deception do

not merge with the grand theft count because they were not committed by the same conduct.

Each of the securing writings by deception offenses were committed separately on different days,

at several different locations. The state suggests that in some cases the value of all theft

amounts may be aggregated, and all thefts may be tried as a single offense pursuant to R.C.

2913.61(C)(2), but contends the offenses in this case should not merge for various reasons.

However, R.C. 2913.61, which requires the aggregation of multiple theft offenses in some cases,

only applies where the defendant committed the theft offenses as a result of an ongoing

relationship with the victim, such as an employer-employee relationship. State v. Mahone, 10th

Dist. Franklin No. 12AP-545,

. In State v. Preztak,

,

,

(8th Dist.), we held that defendant’s theft offenses were

required to be aggregated under R.C. 2913.61(C)(1) because all of the defendant’s thefts

occurred while she was in “the same employment with Associated [Estates Realty Corporation],

who was the only victim.” Id. at ¶ 15.

{¶43} Additionally, the legislative comments to R.C. 2913.61(C)(2) indicate the section

is intended to address embezzlement-type crimes. The comment explains:

Under the new code, embezzlement is not defined as a separate offense, but is a series of theft offenses committed by an offender within a given span of time in his same employment, capacity, or relationship to another. An example of this is the truck driver who over a period of a year lifts a few items from various of his cargoes, even though the cargoes may belong or be consigned to different persons. Another example is the social club treasurer who during his term converts dues money to his own use. {¶44} The rationale for the rule is that the prosecution should not be required to

separately “allege and prove each offense in the series, since in the usual embezzlement case this

would be extremely difficult.” 1974 Committee Comment to H.B. 511. In embezzlement-type

cases, the prosecution need only “allege and prove * * * that the offender committed one or more

theft offenses within a given period, while standing in the same employment, capacity, or

relationship to another.” Id.

{¶45} Sultaana had no legitimate ongoing relationship with the loan companies. Thus,

the securing writings by deception offense alleged in Count 47 is the only count that could

arguably merge with the grand theft offense alleged in Count 2 because they both involve

property loss “valued at $7,500 or more and less than $150,000,” and they were committed in a

single transaction.

{¶46} However, some of the victims of the grand theft offense were not victims of the

securing writings by deception offenses. In addition to the loan companies, Amy Agosti and

James Wallace were victims of the grand theft.3 Thus, the offenses are dissimilar because they

involve different victims. Ruff,

,

,

.

{¶47} Moreover, Ruff instructs us to examine not only the defendant’s conduct or actions,

but also his animus, and whether the offenses caused separate identifiable harm. In this case, the

evidence showed that in each act of securing writings by deception, Sultaana intended to deceive

the loan companies as well as each of the individual codefendants who participated in those

3Agosti gave Sultaana $1,050 and a Blazer in exchange for a vehicle that Sultaana never delivered, and Sultaana never returned the Blazer or the $1,050. Similarly, Wallace paid Sultaana $1,400 to purchase a van, and Sultaana never delivered it or repaid the money. Although Wallace and Agnosti were victims of the grand theft, they were not victims of the securing writings by deception offenses. offenses. Indeed, the codefendants were simultaneously perpetrators and victims of their own

crimes.

{¶48} The fact that Sultaana repeatedly persuaded people to take out loans and give him

the money without repaying the loans demonstrates that Sultaana never intended to repay the

loans as promised. Sultaana planned on keeping the stolen money for himself and leaving the

codefendants in the lurch. His actions evidence an intent to harm both the loan companies and

each individual codefendant. Separate victims are sufficient to establish a separate animus for

each offense, as each victim has a specific and identifiable right to redress against the conduct of

the defendants. Ruff at paragraph two of the syllabus (“[T]wo or more offenses of dissimilar

import exist within the meaning of R.C. 2941.25(B) when the conduct constitutes offenses

involving separate victims.”).

{¶49} The trial court properly determined that Sultaana’s securing writings by deception

and grand theft offenses do not merge into a single conviction under R.C. 2941.25(B) because

they were committed separately, involve separate victims, and the harm resulting from each

offense is separate and identifiable.

{¶50} The third assignment of error is overruled.

C. Sentence and Right to Trial

{¶51} In the fourth assignment of error, Sultaana argues the trial violated his

constitutional rights by imposing a 14-year sentence as punishment for exercising his right to

trial. {¶52} A trial court may not sentence a defendant more severely simply because he

exercised his right to trial. Columbus v. Bee,

,

(10th

Dist. 1979). The United States Supreme Court has held that a trial court violates the Due Process

Clause of the Fourteenth Amendment when the court, motivated by vindictiveness, imposes a

harsher sentence than previously discussed prior to trial. North Carolina v. Pearce,

,

,

(1969). A court may not punish an accused for rejecting a

plea and electing to proceed to trial. State v. Shepherd, 8th Dist. Cuyahoga No. 97962,

.

{¶53} However, vindictiveness is not presumed merely because the trial court imposed a

stricter sentence than the one offered in plea negotiations.

In determining whether a court

was motivated by vindictiveness to impose a harsher sentence, the record must affirmatively

show retaliation as a result of the rejected plea bargain. Id.; see also State v. Warren,

,

(8th Dist. 1998). There must be some positive evidence

demonstrating a vindictive purpose on the court’s part. Shepherd at ¶ 68.

{¶54} Here, the trial court explained at sentencing that as a result of hearing witness

testimony, “the Court learned more information and discovered the extent of the harm.” (Tr.

3503.) The court explained:

As the case progressed * * * the Court learned the details of more of these facts, the details of how the various victims were scammed, were defrauded, how the process was manipulated, not unlike what was going on in the courtroom, and especially how the State’s title system was manipulated and defrauded.

(Tr. 3498.) The court indicated that after hearing witness testimony, it learned how Sultaana

took advantage of people with those vulnerabilities, he used his emotions with his girlfriends, with women. He used their vulnerabilities with respect to drug addiction, substance abuse. The evidence was clear that he perpetrated these scams in order to get more money for drugs, to keep his girlfriends, his codefendants, his minions doing his bidding * * * . So that substance abuse contributed to the seriousness of his conduct.

(Tr. 3500.) The court concluded that the codefendants were, themselves, victims. The

codefendants not only suffered financial loss, but also acquired felony convictions, in part, as a

result of Sultaana’s manipulation.

{¶55} The trial court recognized that, in addition to the loan companies, innocent citizens

such as Amy Agosti and James Wallace were victimized. The court also noted that “[t]his

defendant’s own family members, Dashara Hughley, his own mother [was] sucked into this

scam. It shows a lack of any concern for the rules of society. And this was an organized

criminal activity.” (Tr. 3500.) Thus, the court explained that it found a more severe sentence

was warranted after it learned the scope and magnitude of the harm. (Tr. 3500.)

{¶56} The court also discovered more about Sultaana’s likelihood for recidivism from the

presentence investigation report, which the court lacked during plea negotiations. (Tr.3497.)

The court found that Sultaana was known by other aliases, had other social security numbers, and

had an extensive criminal history that included prior prison terms.

{¶57} It is undisputed that all the sentences were within the statutory range, and the court

complied with the requirements of R.C. 2929.14(C) for the imposition of consecutive sentences.

The court provided a reasonable explanation for its decision to impose a more severe sentence

than the one discussed during plea negotiations. We find nothing in the record to suggest that

the court was motivated by vindictiveness.

{¶58} Therefore, the fourth assignment of error is overruled.

III. Conclusion

{¶59} There was sufficient evidence to support Sultaana’s RICO conviction. The

evidence showed that he conspired with two codefendants to induce “outside” codefendants to commit crimes in furtherance of the conspiracy. The collaboration of these individuals

demonstrated the existence of an enterprise, which is a necessary element of Sultaana’s RICO

conviction.

{¶60} Appellant was properly charged with and convicted of tampering with records

because R.C. 2913.42, which prohibits tampering with records, does not conflict with R.C.

4505.19, which prohibits the use of falsified certificates of title to secure credit or obtain money.

{¶61} The trial court’s decision not to merge Sultaana’s securing writings by deception

convictions with his grand theft conviction was appropriate where the offenses were committed

separately, there were separate victims, and there was separate identifiable harm.

{¶62} Finally, the trial court did not violate Sultaana’s constitutional right to trial by

punishing him with a harsher sentence. The trial court explained that it decided a more severe

sentence was necessary after learning the scope and magnitude of the harm to the large number of

victims.

{¶63} Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution. The defendant’s conviction having been affirmed,

any bail pending appeal is terminated. Case remanded to the trial court for execution of

sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure. EILEEN T. GALLAGHER, JUDGE

LARRY A. JONES, SR., A.J., and MELODY J. STEWART, J., CONCUR