State v. Walker , 2021 Ohio 4321 ( 2021 )

[Cite as State v. Walker, 2021-Ohio-4321.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 17AP-588
(C.P.C. No. 16CR-3447)
v. :
(REGULAR CALENDAR)
William L. Walker, Jr., :
Defendant-Appellant. :
D E C I S I O N
Rendered on December 9, 2021
On brief: [G. Gary Tyack], Prosecuting Attorney, and
Kimberly M. Bond, for appellee.
On brief: Blake Law Firm Co., LLC, and Dustin M. Blake, for
appellant.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} This case is before the court on remand from the Supreme Court of Ohio
pursuant to State v. Dent, 163 Ohio St.3d 390, 2020-Ohio-6670. The Supreme Court
reversed in part our judgment in State v. Walker, 10th Dist. No. 17AP-588, 2019-Ohio-
1458, as it related to our conclusion regarding the sufficiency of the evidence on the
conviction of engaging in a pattern of corrupt activity and remanded the case to this court
for further proceedings to address the issues this court deemed moot in Walker. On
consideration of the remaining arguments, we affirm.
I. Facts and Procedural History
{¶ 2} In Walker, defendant-appellant, William L. Walker, Jr., appealed from a
judgment entry of the Franklin County Court of Common Pleas finding him guilty, pursuant
No. 17AP-588 2
to jury verdict, of one count of engaging in a pattern of corrupt activity, one count of
possession of cocaine, one count of illegal manufacture of drugs, and three counts of
trafficking in cocaine. We concluded in Walker that there was insufficient evidence to
support Walker's conviction of engaging in a pattern of corrupt activity, rendering moot
several additional arguments Walker made related to his conviction of engaging in a pattern
of corrupt activity. Walker at ¶ 92. We additionally found, however, that there was
sufficient evidence to support Walker's convictions of possession of cocaine, illegal
manufacture of drugs, and trafficking in cocaine, and we overruled Walker's assignments
of error challenging evidentiary rulings, closing arguments, ineffective assistance of
counsel, a Batson challenge, the trial court's merger decisions, and the trial court's decision
on Walker's motion to compel the identity of the confidential informant. Id.{¶ 3} The Supreme Court, in a consolidated action with the appeal of one of
Walker's codefendants, accepted the state's discretionary appeal on the following
proposition of law: "The existence of an enterprise under R.C. 2923.31(C) is established by
showing the organization is fully operational and engaging in a pattern of illicit activity.
The time frame for the commission of a pattern of criminal conduct is sufficient where the
evidence shows the corrupt activity is neither isolated or so closely connected to be
considered a single offense. R.C. 2923.31(E)." Dent at ¶ 14. In the consolidated appeal, the
Supreme Court set out the relevant facts and procedural history of this case as follows:
After a joint jury trial, [Alvin C.] Dent [Jr.] and Walker were
both found guilty of engaging in a pattern of corrupt activity,
possessing cocaine, illegally manufacturing drugs, and
trafficking in cocaine. The convictions for engaging in a
pattern of corrupt activity are the focus of this consolidated
appeal. A third individual, Drakkar Groce, was also convicted
in the same trial. Groce's conviction is the subject of a separate
but related appeal pending before this court in case No. 2019-
0594.
At the joint trial, Detective Lawrence Gauthney of the
Columbus Police Department testified that he began
observing a house on Greenway Avenue in response to citizen
complaints that he had received around February 2016. As a
result, he conducted two to three "spot checks" during which
he observed foot traffic at the house consistent with "an up-
No. 17AP-588 3
and-running drug house." More specifically, he observed a
high volume of individuals who knocked and entered the
house like visitors, but stayed only five to ten minutes before
leaving. He testified that in his experience, this was activity
consistent with the sale of drugs from the house.
Gauthney testified that on March 11 and 15, he conducted
visual surveillance of the property for over an hour each time.
Gauthney's surveillance reports were admitted into evidence,
and he testified again that the activity at the house—
specifically, a high volume of foot traffic in and out within a
short period of time—was what he had consistently observed
during each spot check. Additionally, during the March 15
surveillance, Gauthney observed Walker enter through the
back door of the house but did not see him leave during the
approximately one and one-half hours that Gauthney had
observed the house.
On March 28, Gauthney arranged for a confidential informant
to purchase what Gauthney believed to be crack cocaine from
someone in the house. Following this buy, Gauthney obtained
a no-knock warrant to search the house.
When the warrant was executed on March 29, neither
appellees nor Groce were apprehended in the house, but three
other individuals were. The police recovered items from the
house, including small plastic bags containing cocaine,
electronic scales containing cocaine residue, a glass
measuring cup containing cocaine residue, as well as multiple
firearms and ammunition located throughout the house.
During the search of the house, the police also recovered video
recordings from a camera that was located in the house's
kitchen containing footage of appellees, Groce, and other
individuals. Gauthney determined that the recorded footage
covered a single date—March 29—and lasted for a period of
over four hours.
From the videos, Gauthney drafted an investigative report in
which he described what he observed at various portions of
the videos. This report and portions of the actual videos were
admitted into evidence. In addition, Gauthney testified as to
what he believed the videos showed while the videos played
for the jury. In summary, Gauthney testified that the camera
recorded appellees and Groce conducting various activities
with what Gauthney believed to be cocaine, including
"cooking" it to make crack cocaine (by heating a mixture of
No. 17AP-588 4
cocaine, baking soda, and water), weighing and bagging the
drug, selling it, and exchanging large amounts of money.
More specifically, the videos show Dent handling and
weighing multiple small plastic bags of a white substance
believed to be crack cocaine. Dent is present while Groce
"cooks" crack cocaine using a microwave. Dent also exchanges
large stacks or rolls of money with others in the house,
including Groce and Walker. At one point, Dent—with Groce's
help—adjusts the camera in the kitchen for several minutes.
The videos show Walker handling small plastic bags of crack
cocaine and exchanging large amounts of money with Dent.
He also prepares crack cocaine using a measuring cup, baking
soda, and the microwave. He exchanges a small bag
containing what appears to be crack cocaine for money with
unknown individuals. And then he goes back to bagging up
crack cocaine at the kitchen table.
The videos also show Groce selling what appears to be crack
cocaine to several individuals who appear to stay only a short
time after he lets them into the house. He accesses kitchen
cabinets in which portions of crack cocaine appear to be
stored, weighs the substance and places it in smaller plastic
bags. In addition to "cooking" crack cocaine, he handles large
"cookie" size portions of crack cocaine and splits those larger
portions into smaller-sized portions and places the smaller
portions in bags. He handles money in the kitchen from others
and places it in his wallet.
In addition to these activities that relate to the underlying
offenses of possessing, illegally manufacturing, and
trafficking cocaine, the videos also demonstrate appellees and
Groce engaging in more ordinary activities in the house
distinct from those other individuals in the videos. For
example, appellees and Groce are in the house without
jackets, in contrast to others who come into view of the camera
for a short duration. Although the videos do not include audio,
appellees casually chat with each other, Groce, and others. At
one point, Groce appears shirtless and rolls a cigar. While
appellees and Groce are in view, another individual makes
what appears to be french fries using a countertop appliance.
At another point, Walker makes himself a sandwich and
appears to share a video on his phone with Dent and another
individual. Dent makes a sandwich while handling a large roll
of cash. At one point, Groce enters the kitchen with what
No. 17AP-588 5
appears to be a bag of food and a two-liter beverage. Walker
and Dent share the beverage with Groce and others while
Groce eats. While Walker works at the microwave doing what
appears to be manufacturing crack cocaine, another
individual attempts to hand him cash but Walker allows the
individual to casually leave the money on the top of the
microwave.
The jury returned guilty verdicts for both appellees for
engaging in a pattern of corrupt activity in addition to the
other drug-related underlying offenses. The trial court
sentenced Walker to an aggregate prison term of 20 years and
Dent to an aggregate prison term of 22 years.
Dent and Walker separately appealed to the Tenth District
and argued that their convictions were not supported by
sufficient evidence. In each case, the court of appeals agreed
and reversed each of their convictions for engaging in a
pattern of corrupt activity on the basis that there was
insufficient evidence to support those convictions.
Dent at ¶ 2-13.
{¶ 4} In Walker, we held the evidence presented at trial "was insufficient to satisfy
both the longevity prong of the Boyle [v. United States, 556 U.S. 938 (2009)] test and the
statutory definition of a pattern of corrupt activity." Walker at ¶ 26. However, in reversing
the decision of this court in Walker, the Supreme Court concluded in Dent that "[v]iewing
the evidence described above in a light most favorable to the prosecution as we must, we
conclude that a rational juror could have found beyond a reasonable doubt that [Walker
and Dent] participated in an association-in-fact enterprise with sufficient longevity to
further its purpose." Dent at ¶ 24. The Supreme Court further concluded "that a reasonable
juror could have found beyond a reasonable doubt that [Walker and Dent] participated in
incidents of illegal activity that were not isolated and established a pattern of corrupt
activity." Id. at ¶ 26. Accordingly, the Supreme Court reversed the decision of this court in
part and remanded the case to us to consider the arguments deemed moot in Walker. Id.
at ¶ 27.
{¶ 5} This court subsequently issued a journal entry stating, pursuant to the
mandate of the Supreme Court reversing the judgment of this court, this matter is hereby
resubmitted to the court for consideration of the arguments deemed moot in Walker.
No. 17AP-588 6
II. Assignments of Error
{¶ 6} The assignments of error remanded to this court for consideration read as
follows:
[1.] Walker's convictions for engaging in a pattern of corrupt
activity, illegal manufacture of drugs, possession of cocaine,
and trafficking in cocaine, are not supported by sufficient
evidence to satisfy the requirements of the due process clause
of the Fourteenth Amendment to the US Constitution.
[4.] Walker was denied his right to due process and a
fundamentally fair jury trial under the Fifth, Sixth and
Fourteenth Amendments to the US Constitution due to
improper closing remarks by the prosecutor: A) falsely
representing to the jury that the home security video recording
equipment was motion activated, B) expanding the scope of the
corrupt activity count beyond the predicate acts listed in the
indictment, and C) urging the jury to consider the erroneously
admitted anti-"snitch" tattoo photographs for a forbidden
purpose.
[5.] Walker was denied his right to the effective assistance of
counsel as guaranteed by the Sixth and Fourteenth
Amendments to the US Constitution.
[7.] The trial court's failure to merge Walker's RICO conviction,
trafficking convictions, and manufacturing conviction for
sentencing violated R.C. 2941.25 and/or R.C. 2929.14 and his
rights under the double jeopardy clause of the Fifth and
Fourteenth Amendments to the United States Constitution and
Article I, Section 10 of the Ohio Constitution.
Pursuant to the Supreme Court's remand, we address only the portions of these
assignments of error deemed moot in Walker.
III. First Assignment of Error – Sufficiency of the Evidence
{¶ 7} In his first assignment of error, Walker argues his convictions were not
supported by sufficient evidence. In Walker, because we disposed of Walker's argument
related to the sufficiency of the evidence on his conviction of engaging in a pattern of
corrupt activity based on longevity of the enterprise, we did not address his additional
argument under his first assignment of error that there was insufficient evidence to support
No. 17AP-588 7
his conviction based on the monetary threshold of the underlying violations. We must now
determine whether that argument is appropriate for our consideration.
{¶ 8} In Dent, the Supreme Court reversed our decision related to the sufficiency
of the evidence of engaging in a pattern of corrupt activity and found there was sufficient
evidence that Walker "participated in an association-in-fact enterprise with sufficient
longevity to further its purpose." Dent at ¶ 24. Further, the Supreme Court concluded "a
reasonable juror could have found beyond a reasonable doubt that appellees participated
in incidents of illegal activity that were not isolated and established a pattern of corrupt
activity." Id. at ¶ 26. Thus, the Supreme Court "reverse[d] the Tenth District's judgment[]
in relevant part," and because "the Tenth District determined that its conclusion regarding
insufficient evidence supporting the conviction mooted certain issues raised in some
assignments of error," the Supreme Court "remand[ed] Walker's case to the court of
appeals for further proceedings to address those remaining issues." Id. at ¶ 27.
{¶ 9} Looking at the specific remand instructions provided by the Supreme Court
in Dent, we do not construe the Supreme Court's decision as permitting consideration of
further arguments relating to the sufficiency of the evidence of engaging in a pattern of
corrupt activity. Instead, the Supreme Court is explicit that it remanded the case for further
proceedings to address "those remaining issues" deemed moot in Walker. As Walker's
monetary threshold argument was not one of the "other issues" we specifically deemed
moot in Walker, it was not within the scope of the Supreme Court's remand instructions in
Dent.
{¶ 10} Moreover, even if we were to construe the Supreme Court's remand order as
permitting further consideration of the sufficiency of the evidence of the engaging in a
pattern of corrupt activity conviction, we nonetheless find there is sufficient evidence of the
requisite monetary threshold to support Walker's conviction of engaging in a pattern of
corrupt activity. Whether there is legally sufficient evidence to sustain a verdict is a
question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is a test of
adequacy. Id. The relevant inquiry for an appellate court is whether the evidence
presented, when viewed in a light most favorable to the prosecution, would allow any
rational trier of fact to find the essential elements of the crime proven beyond a reasonable
No. 17AP-588 8
doubt. State v. Mahone, 10th Dist. No. 12AP-545, 2014-Ohio-1251, ¶ 38, citing State v.
Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, ¶ 37.
{¶ 11} Walker was convicted of one count of engaging in a pattern of corrupt activity.
Pursuant to R.C. 2923.32(A)(1), Ohio's Racketeer Influenced and Corrupt Organizations
("RICO") statute, "[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." Under R.C. 2923.31(E), " '[p]attern of corrupt activity' means
two or more incidents of corrupt activity * * * 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." As defined in R.C. 2923.31(I) and as
relevant here, "corrupt activity" includes "engaging in, attempting to engage in, conspiring
to engage in, or soliciting, coercing, or intimidating another person to engage in" conduct
including "any violation * * * or any combination of violations" of the statutes proscribing
the predicate offenses of possession, manufacturing, and trafficking of drugs where the
"proceeds of the violation, * * * or the value of the contraband or other property illegally
possessed, sold, or purchased in the violation exceeds one thousand dollars," or "when the
total proceeds of the combination of violations * * * or value of the contraband or other
property illegally possessed, sold, or purchased in the combination of violations exceeds
one thousand dollars." R.C. 2923.31(I)(2)(c). See also State v. Johnson, 10th Dist. No.
13AP-997, 2015-Ohio-3248, ¶ 61-62.
{¶ 12} Walker argues that although the state presented sufficient evidence of the
monetary threshold for one instance of corrupt activity, it did not present sufficient
evidence of the monetary threshold for a second instance of corrupt activity in order to
sufficiently prove a "pattern" within the statutory meaning. The state responds it need only
provide evidence of proceeds or value exceeding the $1,000 monetary threshold, total, in
order to obtain a conviction of engaging in a pattern of corrupt activity. Thus, the parties
dispute whether, in order to convict someone of engaging in a pattern of corrupt activity
pursuant to R.C. 2923.31 and 2923.32, the $1,000 threshold of the proceeds or value of the
corrupt activity applies to each instance of corrupt activity or whether it applies to the
pattern of corrupt activity as a whole.
No. 17AP-588 9
{¶ 13} Recently, this court considered this identical issue in a memorandum
decision denying a motion for reconsideration in the case of one of Walker's codefendants.
State v. Groce, 10th Dist. No. 18AP-51 (Dec. 7, 2021) (memorandum decision). In the Groce
memorandum decision, we followed the reasoning of the Sixth District Court of Appeals on
the same question. In State v. Liggins, 6th Dist. No. 16 CAS 32, 2018-Ohio-2431, the
appellant argued that although the state presented evidence of a corrupt activity, the state
failed to present sufficient evidence of a pattern of corrupt activity. Specifically, the
appellant asserted that, based on R.C. 2923.31 and 2923.32, the proceeds of each corrupt
activity must exceed $1,000. The state argued, however, that it need only prove that the
proceeds of the pattern of corrupt activity exceeded $1,000. The Sixth District concluded
it agreed with the appellant's interpretation. As the Sixth District summarized:
The language of R.C. 2923.31 and R.C. 2923.32 is plain and
clear. A pattern of corrupt activity requires two or more
corrupt activities. R.C. 2923.31(E). In order for drug
trafficking in violation of R.C. 2925.03 to constitute a corrupt
activity the total proceeds of a violation of that statute or a
combination of violations of that statute must exceed $1,000.
R.C. 2923.31(I)(2)(c). When those definitions are read in
conjunction with each other, in order for the state to establish
a pattern of corrupt activity it must produce evidence of at least
two corrupt activities where the proceeds of each corrupt
activity exceeded $1,000. If the general assembly had intended
for the pattern of corrupt activity proceeds to exceed $1,000,
the "exceeds one thousand dollars" element would have been
included as part of the definition of "pattern of corrupt
activity," rather than as part of the definition of "corrupt
activity." The General Assembly's deliberate act of defining
"corrupt activity" means, at the minimum, the proceeds of
"pattern of corrupt activity" must be at least $2,000.02, since
the proceeds of each "corrupt activity" must at least be
$1,000.01.
Liggins at ¶ 23.
{¶ 14} Having reviewed the case law and statutory language, we find the reasoning
of the Sixth District in Liggins to be persuasive, just as we found in our Groce memorandum
decision. Therefore, we conclude that, based on the plain and unambiguous language of
R.C. 2923.31 and 2923.32, in order for the state to establish a pattern of corrupt activity it
must produce evidence of at least two corrupt activities where the proceeds of each corrupt
No. 17AP-588 10
activity exceeded $1,000, and thus the aggregate total of the pattern of corrupt activities
must be, at minimum, $2,000.02. Liggins at ¶ 23; Groce (memorandum decision). See
also State v. Burley, 6th Dist. No. WD-18-076, 2020-Ohio-4603, ¶ 35 (following Liggins,
and holding that "in order for the state to establish that a 'pattern of corrupt activity' existed
in this case, it must point to evidence in the record of at least two corrupt activities, where
the value of each corrupt activity, i.e., the property illegally purchased, exceeds $1,000, for
a total of at least $2,000.02"); State v. Adkins, 12th Dist. No. CA2019-03-004, 2020-Ohio-
535, ¶ 31 (noting "[c]orrupt activity is defined, inter alia, as engaging in conduct constituting
a violation of R.C. 2925.03 and the proceeds from one of the violations or a combination of
the violations exceeds $1,000," while "[a] pattern of corrupt activity means two or more
instances of corrupt activity, whether or not there is a prior conviction, related to the affairs
of the same enterprise") (emphasis added); State v. Pippins, 10th Dist. No. 15AP-137, 2020-
Ohio-503, ¶ 57 (noting pattern of corrupt activity requires two or more instances of corrupt
activity); Johnson at ¶ 61 (pattern of corrupt activity means two or more incidents of
corrupt activity).
{¶ 15} With that framework, we must determine whether the state presented
sufficient evidence here to satisfy the monetary threshold in order to support Walker's
conviction of engaging in a pattern of corrupt activity. Walker argues there was insufficient
evidence here to convict him of engaging in a pattern of corrupt activity because the state
did not sufficiently prove the amount of proceeds for each of the two or more instances of
corrupt activity. More specifically, though Walker concedes the state was able to satisfy the
monetary threshold of one instance of corrupt activity through the evidence that the
amount of cocaine found in the kitchen cabinet and seized during the police raid was worth
$1,400, he asserts the state did not present any evidence of a dollar amount linked to a
second instance of corrupt activity.
{¶ 16} Having reviewed the record, we do not agree with Walker that the state did
not present any evidence of a value or dollar amount associated with any of the other
underlying offenses to satisfy the monetary threshold of a second instance of corrupt
activity. Specifically, the state presented evidence that another man apprehended inside
the house at the time police executed the search warrant, Taiwain Johnson, had
approximately $1,200 on his person when police searched him. This amount satisfies the
No. 17AP-588 11
monetary threshold for a second instance of corrupt activity. Though Walker asserts the
money found on Johnson's person does not constitute sufficient evidence because the state
did not attempt to link that money specifically to one of Walker's indicted offenses, we are
mindful that in a sufficiency of the evidence review, the question is not "whether the state
presented the best evidence" but "whether the evidence presented, when viewed in a light
most favorable to the prosecution, would allow any rational trier of fact to find the essential
elements of the crime beyond a reasonable doubt." (Emphasis sic.) Dent at ¶ 16. Thus,
construing the evidence in a light most favorable to the prosecution, the state presented
sufficient evidence of the monetary threshold of a second instance of corrupt activity such
that it could demonstrate a pattern of corrupt activity under R.C. 2923.31(E).
{¶ 17} Thus, because the Supreme Court's remand order in Dent did not permit
further consideration of the sufficiency of the evidence of Walker's conviction of engaging
in a pattern of corrupt activity and, even if it did, there was sufficient evidence to satisfy the
monetary threshold requirement of a conviction of engaging in a pattern of corrupt activity,
we overrule the remaining portion of Walker's first assignment of error.
IV. Fourth Assignment of Error – Prosecutor's Closing Remarks
{¶ 18} In his fourth assignment of error, Walker argues the prosecutor made several
remarks during the state's closing argument that deprived Walker of his right to a fair trial.
More specifically, Walker challenges as improper and prejudicial the prosecutor's
statements that (1) represented the surveillance video equipment to be motion activated;
(2) expanded the scope of the engaging in a pattern of corrupt activity charge to events
beyond the predicate offenses listed in the indictment; and (3) urged the jury to consider
the photographs of the tattoo for an impermissible purpose. In Walker, we considered
Walker's argument as it related to the first and third of these allegations, and we found the
argument moot as it related to the second of these statements since it related to his
conviction of engaging in a pattern of corrupt activity. As the Supreme Court's decision in
Dent found sufficient evidence to support Walker's conviction of engaging in a pattern of
corrupt activity, we now consider his argument under his fourth assignment of error related
to the prosecutor's statements allegedly expanding the scope of the engaging in a pattern of
corrupt activity charge.
No. 17AP-588 12
{¶ 19} Court's afford prosecutors wide latitude in closing arguments, and
prosecutors may draw reasonable inferences from the evidence at trial, commenting on
those inferences during closing argument. State v. Hunt, 10th Dist. No. 12AP-1037, 2013-
Ohio-5326, ¶ 18. The test for prosecutorial misconduct in closing arguments "is whether
the remarks were improper and, if so, whether they prejudicially affected substantial rights
of the defendant." State v. Smith, 14 Ohio St.3d 13, 14 (1984), citing United States v. Dorr,
636 F.2d 117 (5th Cir.1981). " '[T]he touchstone of due process analysis in cases of alleged
prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.' "
State v. Wilkerson, 10th Dist. No. 01AP-1127, 2002-Ohio-5416, ¶ 38, quoting Smith v.
Phillips, 455 U.S. 209, 219 (1982). Thus, prosecutorial misconduct is not grounds for
reversal unless the defendant has been denied a fair trial. State v. Maurer, 15 Ohio St.3d
239, 266 (1984).
{¶ 20} Walker argues the state deprived him of a fair trial when, during its rebuttal
argument, the prosecutor commented that as of March 29, 2016, the drug house had all of
the items it would need to engage in a pattern of corrupt activity and that it was "an ongoing
place of business." (Tr. Vol. IV at 966.) Defense counsel objected that the state was
attempting to expand the predicate offenses to the charge of engaging in a pattern of corrupt
activity beyond the one day contained in the indictment. The trial court overruled the
objection and allowed the prosecutor to continue. On appeal, Walker argues the
prosecutor's statements were improper because the state did not indict Walker for any
offenses beyond the single day of the video footage, March 29, 2016. Thus, Walker asserts
that the state limited its ability to demonstrate the existence of an enterprise beyond the
indicted offenses.
{¶ 21} These statements relate to the longevity of the enterprise necessary to
demonstrate a pattern of corrupt activity. Though we held in Walker that the state did not
satisfy the longevity element, the Supreme Court disagreed and held that "a rational juror
could have found beyond a reasonable doubt that appellees participated in an association-
in-fact enterprise with sufficient longevity to further its purpose." Dent at ¶ 24. The
Supreme Court elaborated in Dent, stating:
Evidence of longevity sufficient to further the purpose of the
enterprise is demonstrated by Detective Gauthney's spot
No. 17AP-588 13
checks and his surveillance reports from March 11 and 15, the
confidential informant's purchase of drugs, and the videos
obtained at the time of the search on March 29. Together, this
evidence demonstrates that activity consistent with an "up-and
running drug house" had been occurring since at least late
February when Gauthney received the complaints that
prompted further investigation. Additionally, Gauthney
observed Walker at the house on March 15 using the back door
without knocking and staying longer than a few minutes, which
is activity that stands in contrast to the more frequent visitors
Gauthney observed knocking and entering the front door of the
house and staying only five to ten minutes. Even if we focused
solely on March 29, the day the video evidence was recorded,
appellees performed the tasks necessary to further the
enterprise's purpose of selling crack cocaine out of the house.
And, based on appellees' conduct and interaction in the house
on March 29 that is distinguishable from the frequent yet
short-term visitors observed at the house, it is reasonable to
infer that their activities with the enterprise extended beyond a
single day.
Dent at ¶ 23.
{¶ 22} Even if we were to agree with Walker that the terms of the indictment did, in
fact, limit the state's ability to demonstrate the existence of an enterprise to only March 29,
2016, the Supreme Court specifically found in Dent that the conduct observed in the video
from March 29, 2016, on its own, constituted evidence showing sufficient longevity
showing a common purpose and relationships in furtherance of that purpose. Dent at ¶ 23.
Thus, as the Supreme Court determined the video evidence, alone, constituted sufficient
evidence of the enterprise, Walker cannot demonstrate that the prosecutor's statements
about the conduct observed beyond March 29, 2016 prejudiced him or deprived him of a
fair trial. Hunt at ¶ 18 ( "[a] defendant is entitled to a new trial only when a prosecutor
makes improper remarks and those remarks substantially prejudice the defendant"), citing
Smith at 14. Accordingly, we overrule the remaining portion of Walker's fourth assignment
of error.
V. Fifth Assignment of Error – Ineffective Assistance of Counsel
{¶ 23} In his fifth assignment of error, Walker argues he received the ineffective
assistance of counsel.
No. 17AP-588 14
{¶ 24} In order to prevail on a claim of ineffective assistance of counsel, Walker must
satisfy a two-prong test. First, he must demonstrate that his counsel's performance was
deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984). This first prong requires
Walker to show that his counsel committed errors which were "so serious that counsel was
not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. If
Walker can so demonstrate, he must then establish that he was prejudiced by the deficient
performance. Id. To show prejudice, Walker must establish there is a reasonable
probability that, but for his counsel's errors, the result of the trial would have been different.
A "reasonable probability" is one sufficient to undermine confidence in the outcome of the
trial. Id. at 694.
{¶ 25} In considering claims of ineffective assistance of counsel, courts review these
claims with a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815,
¶ 101. Walker contends his trial counsel was ineffective in (1) failing to object to Detective
Gauthney's identification of Walker; (2) failing to object to the admission of the police
report; (3) failing to request a continuity instruction related to the charge of engaging in a
pattern of corrupt activity; and (4) failing to insist that the trial court correct the
prosecutor's characterization of the surveillance system as motion activated. In Walker, we
overruled this assignment of error as it related to Walker's first, second, and fourth
allegations of ineffective assistance of counsel, finding moot his argument related to the
third allegation of ineffective assistance of counsel. Pursuant to the Supreme Court of
Ohio's decision in Dent, we now address Walker's argument that his trial counsel was
ineffective in failing to request a continuity instruction related to the charge of engaging in
a pattern of corrupt activity.
{¶ 26} Walker argues his trial counsel was ineffective in failing to request an
instruction that the offense of engaging in a pattern of corrupt activity requires the state to
prove "continuous activity." Walker relies on the Supreme Court's statement that proof of
a defendant's conduct or participation in an enterprise through a pattern of corrupt activity
"must include both a relationship and continuous activity, as well as proof of the existence
of an enterprise." (Internal quotations omitted.) State v. Miranda, 138 Ohio St.3d 184,
2014-Ohio-451, ¶ 13. We note, however, that continuity is not an element of R.C. 2923.32.
No. 17AP-588 15
Additionally, this argument relates to the state's burden to prove Walker participated in the
affairs of an enterprise under R.C. 2923.32(A)(1). As the Supreme Court found in Dent that
there was sufficient evidence to sustain Walker's conviction of engaging in a pattern of
corrupt activity, Walker cannot demonstrate his counsel was deficient in failing to request
an additional instruction on continuity. Thus, we overrule the remaining portion of
Walker's fifth assignment of error.
VI. Seventh Assignment of Error – Merger
{¶ 27} In his seventh assignment of error, Walker argues the trial court erred in
failing to merge his convictions for purposes of sentencing. In imposing Walker's sentence,
the trial court merged his convictions under Counts 2 and 3 of the indictment, first-degree
felony trafficking in cocaine and first-degree felony possession of cocaine. On appeal,
Walker asserts the trial court additionally should have (1) merged his convictions of first-
degree felony trafficking, first-degree felony possession, and illegal manufacture of drugs
with his conviction of engaging in a pattern of corrupt activity, and (2) merged his two fifth-
degree felony convictions for trafficking in cocaine with his first-degree felony conviction
for trafficking in cocaine. In Walker, we considered Walker's seventh assignment of error
as it related to the second of these arguments and found the trial court did not err in
imposing the sentence on those counts. The sole remaining issue under this assignment of
error on remand is whether the trial court erred in failing to merge the offenses of first-
degree felony trafficking in cocaine, possession of cocaine, and illegal manufacture of drugs
with the offense of engaging in a pattern of corrupt activity for purposes of sentencing.
{¶ 28} In reviewing a trial court's determination of whether a defendant's offenses
should merge for purposes of conviction, an appellate court reviews the trial court's
determination de novo. State v. Flood, 10th Dist. No. 18AP-206, 2019-Ohio-2524, ¶ 25
citing State v. S.S., 10th Dist. No. 13AP-1060, 2014-Ohio-5352, ¶ 28, citing State v.
Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 1. " 'Appellate courts apply the law to the
facts of individual cases to make a legal determination as to whether R.C. 2941.25 allows
multiple convictions. That facts are involved in the analysis does not make the issue a
question of fact deserving of deference to a trial court.' " S.S. at ¶ 28, quoting Williams at
¶ 25.
No. 17AP-588 16
{¶ 29} R.C. 2941.25 provides:
(A) Where the same conduct by 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.
(B) 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.
{¶ 30} Walker argues the trial court erred when it failed to merge the offenses of
first-degree felony trafficking in cocaine, possession of cocaine, and illegal manufacture of
drugs with the offense of engaging in a pattern of corrupt activity for purposes of
sentencing. "When the defendant's conduct constitutes a single offense, the defendant may
be convicted and punished only for that offense. When the conduct supports more than
one offense, however, a court must conduct an analysis of allied offenses of similar import
to determine whether the offenses merge or whether the defendant may be convicted of
separate offenses." State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, ¶ 24.
{¶ 31} "To determine whether two offenses are allied offenses that merge into a
single conviction, a court must evaluate three separate factors: the conduct, the animus,
and the import." State v. Harris, 10th Dist. No. 15AP-683, 2016-Ohio-3424, ¶ 42, citing
Ruff at paragraph one of the syllabus. "If any of the following is true, the offenses cannot
merge and the defendant may be convicted and sentenced for multiple offenses: (1) the
offenses are dissimilar in import or significance—in other words, each offense caused
separate, identifiable harm, (2) the offenses were committed separately, and (3) the
offenses were committed with separate animus and motivation." Ruff at ¶ 25. Ultimately,
if the harm resulting from each offense is separate and identifiable, the offenses are of
dissimilar import and do not merge. Harris at ¶ 42, citing Ruff at ¶ 25.
{¶ 32} In conducting an analysis of whether two offenses are allied offenses of
similar import, the Supreme Court of Ohio directs an appellate court to look beyond the
statutory elements and to consider the defendant's conduct. "A trial court and the
reviewing court on appeal when considering whether there are allied offenses that merge
No. 17AP-588 17
into a single conviction under R.C. 2941.25(A) must first take into account the conduct of
the defendant. In other words, how were the offenses committed?" Ruff at ¶ 25.
{¶ 33} Walker maintains that his conviction of engaging in a pattern of corrupt
activity must merge because the underlying offenses were necessary prerequisites in order
to find Walker guilty of engaging in a pattern of corrupt activity. However, the Supreme
Court has held that "a RICO offense does not merge with its predicate offenses for purposes
of sentencing." Miranda at ¶ 20. In Miranda, the Supreme Court explained that although
a conviction of engaging in a pattern of corrupt activity is dependent upon the commission
of predicate acts, the engaging in a pattern of corrupt activity charge also addresses the
defendant's additional conduct of association with the enterprise and participation in
conduct in furtherance of the enterprise. Miranda at ¶ 13 ("the conduct required to commit
a RICO violation is independent of the conduct required to commit" the underlying
predicate offenses); State v. Beverly, 143 Ohio St.3d 258, 2015-Ohio-219, ¶ 5. See also
State v. Christian, 2d Dist. No. 25256, 2016-Ohio-516, ¶ 35, quoting State v. Moulton, 8th
Dist. No. 932726, 2010-Ohio-4484, ¶ 38 ("[t]he argument that predicate offenses should
be merged with a conviction for engaging in a pattern of corrupt activity has been
consistently rejected by Ohio courts, on the basis that 'a RICO violation is a discrete offense
that can be prosecuted and punished separately from its underlying predicate offenses' ").
Indeed, "[t]he intent of RICO is ' "to criminalize the pattern of criminal activity, not the
underlying predicate acts." ' " Miranda at ¶ 13, quoting State v. Thomas, 3d Dist. No. 1-11-
25, 2012-Ohio-5577, ¶ 61, quoting State v. Dodson, 12th Dist. No. CA2010-08-191, 2011-
Ohio-6222, ¶ 68. Thus, we do not agree with Walker that his conviction of engaging in a
pattern of corrupt activity arose from the same conduct or had the same animus as the
predicate offenses.
{¶ 34} As the trial court did not err in rejecting Walker's merger argument, we
overrule the remaining portion of Walker's seventh assignment of error.
VII. Disposition
{¶ 35} Based on the foregoing reasons, to the extent we can consider his argument,
sufficient evidence supported Walker's conviction of engaging in a pattern of corrupt
activity, the prosecutor's statements did not deprive Walker of a fair trial, Walker did not
receive the ineffective assistance of counsel, and the trial court did not err in declining to
No. 17AP-588 18
merge Walker's conviction of engaging in a pattern of corrupt activity with the underlying
predicate offenses. Having overruled the remaining portions of Walker's first, fourth, fifth,
and seventh assignments of error that we deemed moot in Walker, and in accordance with
the Supreme Court of Ohio's decision in Dent, we affirm the judgment of the Franklin
County Court of Common Pleas.
Judgment affirmed.
DORRIAN, P.J., and SADLER, J., concur.