[Cite as State v. Burkhart, 2012-Ohio-439.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT




STATE OF OHIO                                 :   JUDGES:
                                              :   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                    :   Hon. Sheila G. Farmer, J.
                                              :   Hon. John W. Wise, J.
-v.-                                          :
                                              :
CRAIG BURKHART                                :   Case No. 11AP030010
                                              :
        Defendant-Appellant                   :   OPINION




CHARACTER OF PROCEEDING:                          Appeal from the Court of Common
                                                  Pleas, Case No. 2010CR010002



JUDGMENT:                                         Affirmed




DATE OF JUDGMENT:                                 February 3, 2012




APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

MICHAEL J. ERNEST                                 JACOB T. WILL
125 East High Avenue                              116 Cleveland Avenue, NW
New Philadelphia, OH 44663                        Suite 808
                                                  Canton, OH 44702
Farmer, J.

       {¶1}   On January 6, 2010, the Tuscarawas Grand Jury indicted appellant, Craig

Burkhart, on one count of engaging in a pattern of corrupt activity in violation of R.C.

2923.32, five counts of grand theft in violation of R.C. 2913.02, and three counts of

aggravated theft in violation of R.C. 2913.02.      Said charges arose from numerous

solicitations of funds from many individuals by appellant's mother, Valerie Gordon,

appellant's stepfather, Joel Gordon, and appellant's aunt, Paula Levengood Lee. The

three believed they were soliciting funds to support appellant in a lawsuit against the city

of New Philadelphia. In fact, there was no lawsuit, and appellant was using the funds to

support his drug addiction.

       {¶2}   A bench trial commenced on November 22, 2011. The trial court found

appellant guilty as charged.    By judgment entry filed March 2, 2011, the trial court

sentenced appellant to an aggregate term of eight years in prison.

       {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

       {¶4}   "THE APPELLANT'S CONVICTION FOR ENGAGING IN A PATTERN OF

CORRUPT ACTIVITY IN VIOLATION OF R.C. 2923.32 WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE, AS THE STATE FAILED TO PROVE THE

ELEMENT OF AN ENTERPRISE."
                                            II

      {¶5}   "THE APPELLANT'S CONVICTION FOR AGGRAVATED THEFT IN

VIOLATION OF R.C. 2913.02 WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE, AS THE STATE FAILED TO PROVE THE AGE OF THE VICTIM."

                                            I

      {¶6}   Appellant claims his conviction for engaging in a pattern of corrupt activity

was against the manifest weight of the evidence as the state failed to prove the element

of an "enterprise." We disagree.

      {¶7}   On review for manifest weight, a reviewing court is to examine the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of

witnesses and determine "whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered." State v. Martin (1983), 20 Ohio App.3d 172, 175.

See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new

trial "should be exercised only in the exceptional case in which the evidence weighs

heavily against the conviction." Martin at 175.

      {¶8}   Appellant was convicted of engaging in a pattern of corrupt activity in

violation of R.C. 2923.32(A)(1) with the predicate offenses being five counts of grand

theft and three counts of aggravated theft. We note appellant does not challenge his

convictions on the predicate offenses.1




1
Appellant originally challenged his conviction on one of the aggravated theft counts, but
withdrew Assignment of Error II at oral argument.
       {¶9}     R.C. 2923.32(A)(1) provides, "[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."

       {¶10} R.C. 2923.31(C) states "enterprise" "includes 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."

       {¶11} R.C. 2923.31(E) 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."

       {¶12} Appellant does not dispute the fact that he accepted money under

deception from Joel Gordon, Valerie Gordon, Paula Levengood Lee, Norma Murphy,

Bert Dinsio, Richard Levengood, Cynthia Lumpcik, and Julie Murphy. The deception

was that appellant needed funds to facilitate his lawsuit against the city of New

Philadelphia. Appellant admitted he did not need funds to finance the lawsuit as the

lawsuit did not exist. Appellant used the funds for his own purposes, to support his drug

addiction.

       {¶13} Appellant specifically argues his three family members who solicited the

funds, Joel Gordon, Valerie Gordon, and Paula Levengood Lee, did not know of his

scheme to use the money for drugs nor did they know they were obtaining the monies
under false pretenses. In other words, they believed there was a lawsuit and money

was needed to finance the lawsuit. It is uncontested they engaged in an effort to obtain

funds from individuals to finance the fabricated lawsuit. They believed in the pretense

concocted by appellant.

      {¶14} Appellant argues this activity does not meet the definition of "enterprise"

because the solicitors were victims just as much as the solicited victims.

      {¶15} In State v. Schlosser, 79 Ohio St.3d 329, 1998-Ohio-716, the Supreme

Court of Ohio addressed a similar fact pattern in its review of the culpable mental state

for R.C. 2923.32.     In Schlosser, relatively innocent telemarketers engaged in the

solicitation of customers. The offender's predicate offenses were violations of R.C.

4712.02(J), failure to register as a credit services organization. As pointed out at 335,

the focus of the activity is the action of the offender and what purpose he/she was

intending to cause:

      {¶16} "The pattern of corrupt activity is demonstrated by the fact that the

appellee committed the predicate offense. The General Assembly has determined that

if a defendant has engaged in two or more acts constituting a predicate offense, he or

she is engaging in a pattern of corrupt activity and may be found guilty of a RICO

violation." (Emphasis sic.)

      {¶17} This definition was further refined in State v. Scott, Morgan App. No. 06

CA 1, 2007-Ohio-303, ¶45:

      {¶18} "In order to establish the existence of an 'enterprise' under Ohio's RICO

Act, there must be some evidence of: (1) an ongoing organization, formal or informal;

(2) with associates that function as a continuing unit; and (3) with a structure separate
and apart, or distinct, from the pattern of corrupt activity. State v. Teasley, Franklin App.

Nos. 00AP-1322, 00AP-1323, 2002-Ohio-2333, ¶53, citing State v. Warren (1992),

Franklin App. No. 92AP-603, and United States v. Turkette (1981), 452 U.S. 576, 583,

101 S.Ct. 2524, 69 L.Ed.2d 246."

       {¶19} From the evidence presented, appellant initiated an ongoing organization

to obtain funds by deception i.e., concocted the tale of the lawsuit to obtain funds from

others to support his drug habit. The Gordons and Levengood Lee were his associates

that functioned as a continuing unit for over one year and as relatives of appellant, were

separate and apart from appellant's deception.

       {¶20} Upon review, we conclude the definition of "enterprise" as defined in the

statute has been established by the manifest weight of the evidence.            We find no

manifest miscarriage of justice.

       {¶21} Assignment of Error I is denied.

                                             II

       {¶22} This assignment of error was withdrawn at oral argument.

       {¶23} The judgment of the Court of Common Pleas of Tuscarawas County, Ohio

is hereby affirmed.

By Farmer, J.

Hoffman, P.J. and Wise, J. concur.


                                              _s/ Sheila G. Farmer_______________

                                              _s/ William B. Hoffman_____________

                                              _s/ John W. Wise       _______________

                                                             JUDGES
            IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO

                            FIFTH APPELLATE DISTRICT



STATE OF OHIO                          :
                                       :
      Plaintiff-Appellee               :
                                       :
v.                                     :        JUDGMENT ENTRY
                                       :
CRAIG BURKHART                         :
                                       :
      Defendant-Appellant              :        CASE NO. 11AP030010



      For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Tuscarawas County, Ohio is affirmed.

Costs to appellant.




                                       s/ Sheila G. Farmer_______________



                                       _s/ William B. Hoffman_____________



                                       _s/ John W. Wise   _______________

                                                   JUDGES
