[Cite as State v. Bondurant, 2012-Ohio-4912.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                     HIGHLAND COUNTY

STATE OF OHIO                         :    Case No. 11CA25
                                      :             11CA27
     Plaintiff-Appellee,              :
                                      :    DECISION AND
     v.                               :    JUDGMENT ENTRY
                                      :
ZACHARY BONDURANT,                    :
                                      :
     and                              :
                                      :
JEFFREY STEVENS,                      :    RELEASED 10/17/12
                                      :
     Defendants-Appellants.           :
______________________________________________________________________
                            APPEARANCES:

Eric Allen, The Law Office of Eric J. Allen, LTD, Columbus, Ohio, for appellant
Bondurant.

Bryan Scott Hicks, Lebanon, Ohio, for appellant Stevens.

Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for appellee.
______________________________________________________________________
Harsha, J.

        {¶1}    In their joint trial, Zachary Bondurant and Jeffrey Stevens were each

convicted of engaging in a pattern of corrupt activity, among other offenses. Initially

they argue that there is insufficient evidence to support their convictions for engaging in

a pattern of corrupt activity because the statute’s monetary threshold applies to

individual rather than collective enterprise profit. And they further argue that because

the state failed to show that they individually profited by more than $500, their

convictions cannot stand. However, the legislature intended for Ohio’s RICO statute to

reduce or eliminate organized criminal group activity by imposing a high level of

accountability on those participating in it. Clearly, the focus of the statute is organized
Highland App. Nos. 11CA25 & 11CA27                                                          2

group conduct. Accordingly, we conclude that the statute refers to collective profit, i.e. it

only requires that the state prove the enterprise as a whole profited more than $500.

And because the uncontested evidence makes it clear that the enterprise profited more

than $500, there was sufficient evidence to support each of their convictions for

engaging in a pattern of corrupt activity.

       {¶2}   Bondurant contends that his conviction for trafficking in drugs in a school

zone is against the manifest weight of the evidence. He argues that the detective’s

testimony concerning the school and its proximity to the drugs sales was inadmissible

hearsay and without this testimony, he could not be found guilty of the offense under

R.C. 2925.03(A)(1). However, the court admitted a certified map of the area showing

the distance. Therefore, even without the testimony Bondurant objects to, the trial’s

outcome would not have changed. He also argues that a letter admitted into evidence

to show the building was a school was inadmissible hearsay because it does not fall

within the business record exception. Nevertheless, the detective also testified that he

had personal knowledge the location was a school. Accordingly, Bondurant’s

convictions are not against the manifest weight of evidence.

       {¶3}   Finally, Bondurant argues that his trial counsel provided ineffective

assistance because he did not move to sever his case from his co-defendant Stevens

and also failed to object to the detective’s alleged inadmissible hearsay. Because

Bondurant failed to provide an analysis of how his counsel’s performance fell below a

reasonable standard and how he was prejudiced by trying his case with his co-

defendant, we deem this argument waived. And because we have already determined
Highland App. Nos. 11CA25 & 11CA27                                                           3

that the detective’s testimony did not prejudice him, we find Bondurant’s hearsay related

argument to be meritless.

       {¶4}   In his second assignment of error Stevens again challenges the language

of Ohio’s RICO statute. He argues that the trial court incorrectly sentenced him on a

first-degree felony for engaging in a pattern of corrupt activity because R.C. 2923.32(B)

elevates his conviction to a first-degree felony only if one of the incidents of corrupt

activity was a third-degree felony or higher. He claims that because his other

convictions in this case were only fifth-degree felonies, his conviction for engaging in a

pattern of corrupt activity should have been a second-degree felony. As in his first

assignment of error we must interpret the statute to determine the legislative intent.

Considering that the legislature intended for Ohio’s RICO statute to reduce or eliminate

organized criminal group activity by imposing a high level of accountability, we conclude

that the statute requires only that the enterprise as a whole engaged in an incident of

corrupt activity that was a third-degree felony or higher. And because Stevens admits

that two of the other actors in the enterprise were convicted of second and third-degree

felonies, his first-degree felony conviction was justified. Alternatively, Stevens contends

that the verdict form for his conviction was deficient because the jury did not make a

finding that an individual in the enterprise committed a first, second or third-degree

felony and consequently his conviction could not be elevated to a first-degree felony.

However, the jury’s verdict form identified the offense level, i.e. a first-degree felony,

and therefore the jury did not also have to make a specific finding of an aggravating

element to elevate his conviction.
Highland App. Nos. 11CA25 & 11CA27                                                          4

       {¶5}   Finally, Stevens challenges his sentence for engaging in a pattern of

corrupt activity and claims that the trial court incorrectly determined that a mandatory

sentence applied to his conviction. He argues that R.C. 2929.13(F)(10) requires that

the pattern of corrupt activity involve a first-degree felony and the state did not prove

that anyone involved in the enterprise was convicted of the necessary offenses.

However, the trial court could have imposed a mandatory sentence under R.C.

2929.13(F)(6) based on Stevens’ previous first-degree felony conviction. Therefore, he

has not proven that his sentence is clearly and convincingly contrary to law. And

because trial courts have full discretion to impose a prison sentence within the statutory

range, the trial court did not abuse its discretion by sentencing Stevens to nine years for

a first-degree felony conviction.

                                       I. OVERVIEW

       {¶6}   Over the course of several months, the Highland County Sheriff’s Office

and the U.S. 23 Pipeline Task Force investigated drug-related activity involving Zachary

Bondurant, Jeffery Stevens and several others. Following this investigation, Bondurant

was charged with one count of engaging in a pattern of corrupt activity, six counts of

trafficking in drugs in a school zone and six counts of possession of drugs. Stevens

was charged with one count of engaging in a pattern of corrupt activity, eight counts of

trafficking in drugs and eight counts of possession of drugs. Both Bondurant and

Stevens pleaded not guilty and their cases proceeded to a joint trial.

       {¶7}   At trial, the state alleged that Bondurant and Stevens were both involved

in a “drug ring,” headed by Rodger Cassell. The state theorized that Jeffery Stevens

was his “right-hand man” and Bondurant was his “left-hand man.” The state presented
Highland App. Nos. 11CA25 & 11CA27                                                   5

evidence that showed a series of drug transactions involving Stevens and Bondurant to

undercover informants. The jury convicted them of all counts and this consolidated

appeal followed.

                           II. ASSIGNMENTS OF ERROR

      {¶8}   Bondurant presents three assignments of error:

      {¶9}   1. “THE STATE FAILED TO OFFER SUFFICIENT EVIDENCE TO

CONVICT THE APPELLANT OF ENGAGING IN A PATTERN OF CORRUPT

ACTIVITY THUS VIOLATING APPELLANT’S RIGHT TO DUE PROCESS PURSUANT

TO THE FIFTH AMENDMENT TO THE FEDERAL CONSTITUTION MADE

APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT.”

      {¶10} 2. “THE JUDGMENT OF CONVICTION VIOLATING 2925.03 IS AGAINST

THE WEIGHT OF THE EVIDENCE THAT THE ALLEGED DRUG ACTIVITY

OCCURRED WITHIN THE VICINITY OF A SCHOOL.”

      {¶11} 3. “APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF

COUNSEL AS GUARANTEED BY THE SIXTH AMDENDMENT TO THE FEDERAL

CONSTITUTION, MADE APPLICABLE TO THE STATES BY THE FOURTEENTH

AMDENDMENT, DUE OT THE APPELLANT’S TRIAL COUNSEL FAILING TO MOVE

THE TRIAL COURT FOR AN ORDER SEVERING HIS TRIAL FROM CO-

DEFENDANT’S TRIAL.”

      {¶12} Stevens also presents three assignments of error for our review:

      {¶13} 1. “THE TRIAL COURT IMPROPERLY INTERPRETED R.C. § 2923.31

(I)(2)(c) WHEN IT AGGREGATED THE VALUES OF ALL DEFENDANTS IN MEETING

THE $500.00 THRESHOLD.”
Highland App. Nos. 11CA25 & 11CA27                                                           6

       {¶14} 2. “THE TRIAL COURT IMPROPERLY CONVICTED OF A FIRST-

DEGREE FELONY.”

       {¶15} 3. “THE SENTENCE ON THE ENGAGING IN A PATTERN OF

CORRUPT ACTIVITY WAS IMPROPERLY MANDATORY.”

     III. PATTERN OF CORRUPT ACTIVITY AND THE MONETARY THRESHOLD

       {¶16} Because Bondurant and Stevens make the same argument we will

address their first assignments of error together. Bondurant and Stevens both argue

that there was insufficient evidence to convict them of engaging in a pattern of corrupt

activity because the $500 threshold found in R.C. 2923.31(I)(2)(c) must be applied to

each defendant individually. The state responds that the statute should be read to

mean the $500 requirement applies to the enterprise as a whole. To determine which

approach is correct, we must construe the statute.

                                 A. Statutory Interpretation

       {¶17} The interpretation of a statute is a question of law that we review de novo,

without deference to the trial court's determination. In re Adoption of B.M.W., 4th Dist.

No. 10CA899, 2010-Ohio-5214, ¶ 13. “‘The primary goal of statutory construction is to

ascertain and give effect to the legislature’s intent in enacting the statute. * * * The court

must first look to the plain language of the statute itself to determine the legislative

intent. * * * We apply a statute as it is written when its meaning is unambiguous and

definite.’” Id., quoting State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d

512, ¶ 9. If the meaning of a statute is unambiguous and definite, it must be applied as

written and no further interpretation is necessary. Mathews v. Waverly, 4th Dist. No.

08CA787, 2010-Ohio-347, ¶ 23, citing State ex rel. Savarese v. Buckeye Local School
Highland App. Nos. 11CA25 & 11CA27                                                          7

Dist. Bd. of Edn., 74 Ohio St.3d 543, 545, 660 N.E.2d 463 (1996). We may interpret a

statute only when it is unclear and ambiguous. State v. Chappell, 127 Ohio St.3d 376,

2010-Ohio-5991, 939 N.E.2d 1234, ¶ 16. A statute is ambiguous if its language is

susceptible to more than one reasonable interpretation. State ex rel. Toledo Edison Co.

v. Clyde, 76 Ohio St.3d 508, 513, 668 N.E.2d 498 (1996).

       {¶18} R.C. 2923.32(A)(1), which is Ohio’s RICO statute, states: “No 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.” At the time of trial, R.C. 2923.31(I)(2)(c) defined corrupt

activity as follows:

        “Corrupt activity” means engaging in, attempting to engage in,
        conspiring to engage in, or soliciting, coercing, or intimidating another
        person to engage in * * * [c]onduct constituting any * * * violation of
        section * * * 2925.03 * * * of the Revised Code, * * * when the
        proceeds of the violation, the payments made in the violation, the
        amount of a claim for payment or for any other benefit that is false or
        deceptive and that is involved in the violation, or the value of the
        contraband or other property illegally possessed, sold, or purchased in
        the violation exceeds five hundred dollars, or any combination of
        violations described in division (I)(2)(c) of this section when the total
        proceeds of the combination of violations, payments made in the
        combination of violations, amount of the claims for payment or for other
        benefits that is false or deceptive and that is involved in the
        combination of violations, or value of the contraband or other property
        illegally possessed, sold, or purchased in the combination of violations
        exceeds five hundred dollars[.]” (Emphasis added.)

       {¶19} The phrase “combination of violations” as used in R.C. 2923.31(I)(2)(c) is

susceptible to more than one reasonable interpretation and therefore is ambiguous.

Reading the statute it is unclear whether the legislature intended the phrase to mean

combination of violations involving the enterprise, as the state contends, or an individual

defendant’s combination of violations, as Bondurant and Stevens claim. Accordingly,
Highland App. Nos. 11CA25 & 11CA27                                                            8

we must interpret its language to determine the legislature’s intent. We do this by

considering, among other matters, the circumstances under which the statute was

enacted, the legislative history and the consequences of a particular construction. See

R.C. 1.49. Although Stevens points out that R.C. 2901.04(A) requires us to strictly

construe criminal statutes against the state, statutes “should not be given an artificially

narrow interpretation that would defeat the legislative intent.” State v. White, Slip

Opinion, 2012-Ohio-2583, ¶ 20.

        {¶20} “In general, R.C. 2923.32 is based on the federal RICO statute * * *.

Thus, a review of the purpose behind the federal statute is instructive.” State v.

Schlosser, 79 Ohio St.3d 329, 332, 681 N.E.2d 911 (1997). In enacting the federal

RICO Act, Congress stated that “‘the purpose of this Act [is] to seek the eradication of

organized crime in the United States by strengthening the legal tools in the evidence-

gathering process, by establishing new penal prohibitions, and by providing enhanced

sanctions and new remedies to deal with the unlawful activities of those engaged in

organized crime.’” Id., quoting Organized Crime Control Act of 1970, Statement of

Findings and Purpose, 84 Stat. 922, reprinted in 1970 U.S.Code Cong. & Adm. News at

1073.

        {¶21} The Supreme Court of Ohio has noted that there is “little legislative

history” about the enactment of Ohio’s RICO statute, however comments by the Senate

sponsor, “indicate an intent to impose the greatest level of accountability * * *.”

Schlosser at 333.

                                        B. Analysis
Highland App. Nos. 11CA25 & 11CA27                                                            9

       {¶22} When Stevens and Bondurant initially raised this argument at trial in

Crim.R. 29 motions the state clarified that it attributed $250 in the alleged drug sales to

Stevens and $460 to Bondurant, but also maintained that it recovered over $35,000

from a search of Cassell’s property. After researching the issue, the court concluded

that the $500 threshold applied to the enterprise as a whole and overruled the motion.

The court theorized that “if an enterprise accumulates a million dollars worth of

transactions at four hundred dollars a pop under the theory * * * that the defendants are

raising, then that person could never be guilty of corrupt activity as long as he had a

number of people, none of whom had more than five hundred dollars in total sales. And

that really doesn’t make any sense.”

       {¶23} Although we review this claim without deference to the trial court’s

decision, we agree with its assessment. As the trial court stated, it would not make

sense to let individuals escape punishment because they personally never dealt in a

transaction over $500, although the enterprise they were involved in profited

significantly. Considering that Ohio’s RICO statute is meant to impose heightened

accountability for organized criminal activity involving more than two people, see R.C.

2923.31(C), we interpret the statute to require only that the enterprise as a whole

profited more than $500. Because the focus of the statute is upon prohibiting group

conduct, it only makes sense that the prohibited amount would also focus on the

group’s “success,” not that of each individual.

       {¶24} And because Bondurant and Stevens do not dispute that the enterprise in

this case profited more than $500, there was sufficient evidence to convict them each of

engaging in a pattern of corrupt activity and we overrule their first assignments of error.
Highland App. Nos. 11CA25 & 11CA27                                                          10

                       IV. MANIFEST WEIGHT OF THE EVIDENCE

         {¶25} Addressing Bondurant’s remaining assignments of error, he next argues

that his convictions under R.C. 2925.03 for trafficking in drugs in a school zone are

against the manifest weight of evidence. Specifically, he claims that Detective Denny

Kirk’s testimony regarding the proximity of the school to the drug sales was inadmissible

hearsay. He also argues that a letter admitted into evidence by the state verifying the

school was operational on the dates in question was not a business record subject to a

hearsay exception. And without this evidence, he contends the state failed to prove its

case.

                                     A. Legal Standard

         {¶26} When considering whether a criminal conviction is against the manifest

weight of the evidence, an appellate court must review the entire record, weigh the

evidence and all reasonable inferences, and consider the creditability of witnesses to

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. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d

541(1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.

1983).

         {¶27} “If the prosecution presented substantial evidence upon which the trier of

fact reasonably could conclude, beyond a reasonable doubt, that the essential elements

of the offense had been established, the judgment of conviction is not against the

manifest weight of the evidence.” State v. Puckett, 4th Dist. No. 10CA3153, 2010-Ohio-

6597, ¶ 33, citing State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132 (1978), syllabus.
Highland App. Nos. 11CA25 & 11CA27                                                            11

Thus, we will exercise our discretionary power to grant a new trial “‘only in the

exceptional case in which the evidence weighs heavily against the conviction.’”

Thompkins, 78 Ohio St.3d at 386, 678 N.E.2d 541(1997), quoting Martin at 175.

                                 B. Statutory Requirements

       {¶28} Bondurant was convicted of trafficking in drugs in a school zone under

R.C. 2925.03(A)(1), which states “[n]o person shall knowingly * * * [s]ell or offer to sell a

controlled substance.” Section (C)(2)(b) of the statute further states “[i]f the drug

involved in the violation is any compound, mixture, preparation, or substance included in

schedule III, IV, or V, whoever violates division (A) of this section is guilty of trafficking in

drugs. The penalty for the offense shall be determined as follows * * * if the offense was

committed in the vicinity of a school or in the vicinity of a juvenile, aggravated trafficking

in drugs is a felony of the third-degree * * *.”

       {¶29} “An offense is ‘committed in the vicinity of a school’ if the offender commits

the offense on school premises, in a school building, or within one thousand feet of the

boundaries of any school premises * * *.” R.C. 2925.01(P). A “school premises” is a

“parcel of real property on which any school is situated, whether or not any instruction,

extracurricular activities, or training provided by the school is being conducted on the

premises at the time a criminal offense is committed.” R.C. 2925.01(R). A “‘[s]chool’

means any school operated by a board of education, any community school established

under Chapter 3314. of the Revised Code, or any nonpublic school for which the state

board of education prescribes minimum standards under section 3301.07 of the

Revised Code, whether or not any instruction, extracurricular activities, or training
Highland App. Nos. 11CA25 & 11CA27                                                        12

provided by the school is being conducted at the time a criminal offense is committed.”

R.C. 2925.01(Q).

       {¶30} The provisions of R.C. 2925.03 “clearly indicate that the Ohio legislature

intended to punish more severely those who engage in the sale of illegal drugs in the

vicinity of our schools and our children.” State v. Manley, 71 Ohio St.3d 342, 346, 643

N.E.2d 1107 (1994). “[I]n order to convict a defendant under the school specification,

the state must prove beyond a reasonable doubt that the drug transaction occurred

within the specified distance of a school. The state has the burden of establishing all

material elements of a crime by proof beyond a reasonable doubt. That requirement

also applies in cases involving the imposition of an enhanced punishment upon proof of

some additional element.” (Citations omitted.) Id.

                                      C. Plain Error

       {¶31} Our review of the record shows that Bondurant did not object to Detective

Kirk’s testimony on the basis of hearsay. He also failed to object to the use of the letter

during his testimony and its admission into evidence. Because Bondurant did not object

to these alleged errors at trial, he has waived all but plain error on appeal. See State v.

Shahan, 4th Dist. No. 02CA63, 2003-Ohio-6945, ¶ 9.

       {¶32} “Pursuant to Crim.R. 52(B), plain errors or defects which affect substantial

rights may be grounds for reversal even though they were not brought to the attention of

the trial court.” State v. Phillips, 74 Ohio St.3d 72, 83, 656 N.E.2d 643 (1995). We take

notice of plain error “with the utmost caution, under exceptional circumstances and only

to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372

N.E.2d 804 (1978), paragraph three of the syllabus. “Plain error does not exist unless it
Highland App. Nos. 11CA25 & 11CA27                                                       13

can be said that but for the error, the outcome of the trial would clearly have been

otherwise.” State v. Moreland, 50 Ohio St.3d 58, 62, 552 N.E.2d 894 (1990). After

reviewing the record, we cannot say that the outcome of trial would have clearly been

different without Detective Kirk’s testimony concerning the proximity of the school to the

drug sales and admission of the letter.

       {¶33} Bondurant claims that Detective Kirk’s testimony that “the GIS office told

him [the school] was 477 feet” from the drug sales was inadmissible hearsay. He also

asserts that a letter sent from Highland County Community Action Organization was

inadmissible hearsay not subject to the business record exception because there was

no foundation laid by the detective to admit the letter.

       {¶34} However, without objection from either defendant, the state offered into

evidence a certified map from the Highland County GIS. This map shows the location

of both the Head Start pre-school and Bondurant’s apartment where the drug sales took

place. The map includes a computer generated line labeling the distance between the

two locations as 477 feet. In addition, the map also includes a scale. A certified copy of

a plat map is a public record that is admissible as a hearsay exception under Evid.R.

803(8). State v. Sloan, 8th Dist. No. 79832, 2002-Ohio-2669, ¶ 32. Furthermore, under

Evid.R. 902 a certified copy of the map is self-authenticating. Id. Therefore, even

without Detective Kirk’s testimony, there was substantial evidence presented by the

state to show that the drug sales involving Bondurant occurred within 1000 feet from the

Head Start pre-school.

       {¶35} Finally, Detective Kirk testified without objection that he was familiar with

the Head Start school referred to in the letter and had personal knowledge that the
Highland App. Nos. 11CA25 & 11CA27                                                           14

school was operational. He testified that “[o]ver the years of investigating cases I’ve

been at the facility and observed it to be a Head Start; and then when I contacted

Community Action, they verified that it does continue to be a facility.” He also testified

that the Head Start school was operational from January to March 2011 and

“[a]ccording to the Community Action, it was a pre-school at that time.” Thus, without

considering the letter from the Highland County Community Action Organization,

Detective Kirk’s testimony alone was sufficient to establish that the Head Start facility

was a school under R.C. 2925.01(Q). See State v. Manley, 71 Ohio St.3d 342, 348,

643 N.E.2d 1107 (1994). Especially considering that this testimony went unchallenged

by either defendant at trial. Id.

       {¶36} Thus, even if we reject the evidence Bondurant objects to, we cannot say

the result of his trial clearly would have been different. Because the trial court did not

commit plain error, we overrule his second assignment of error.

                      V. INEFFECTIVE ASSISTANCE OF COUNSEL

       {¶37} Finally, in his third assignment of error Bondurant claims that his trial

counsel was ineffective because he failed to file a motion to sever his trial from his co-

defendant, Stevens.

                                     A. Legal Standard

       {¶38} To establish ineffective assistance of counsel, a defendant must show (1)

deficient performance by counsel, that is, performance falling below an objective

standard of reasonable representation; and (2) prejudice, meaning that there is a

reasonable probability that but for counsel’s errors, the proceeding’s result would have

been different. Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052,
Highland App. Nos. 11CA25 & 11CA27                                                              15

80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989),

paragraphs two and three of the syllabus. We also “must indulge a strong presumption

that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Strickland at 689. “The benchmark for judging any claim of ineffectiveness

must be whether counsel’s conduct so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as having produced a just result.”

Id. at 686.

                                       B. Motion to Sever

       {¶39} App.R. 16(A)(7) requires the appellant to “include in its brief, under the

headings and in the order indicated, all of the following * * * [a]n argument containing

the contentions of the appellant with respect to each assignment of error presented for

review and the reasons in support of the contentions, with citations to the authorities,

statutes, and parts of the record on which appellant relies. The argument may be

preceded by a summary.”

       {¶40} Although, Bondurant provided much law in his brief regarding ineffective

assistance of counsel and joinder, he failed to argue how his counsel’s performance

was deficient or how he was prejudiced by his performance. Rather, the only argument

that Bondurant offers is that he “not only has to fight the charges against him, but he

must also fight the charges against Jeffery Stevens and Rodger Cassell as well.”

       {¶41} “It would be inappropriate for us to create an argument on the [appellant’s]

behalf.” In re A.Z., 4th Dist. No. 11CA3, 2011-Ohio- 6739, ¶ 19. “‘If an argument exists

that can support [an] assignment of error, it is not this court's duty to root it out. * * * It is

not the function of this court to construct a foundation for [an appellant's] claims [.]’” Id.
Highland App. Nos. 11CA25 & 11CA27                                                           16

at ¶ 18, quoting Coleman v. Davis, 4th Dist. No. 10CA5, 2011–Ohio–506, ¶ 13. “In

other words, ‘[i]t is not * * * our duty to create an argument where none is made.’” In re

A.Z. at ¶ 18, quoting Deutsche Bank Natl. Trust Co. v. Taylor, 9th Dist. No. 25281,

2011-Ohio-435, ¶ 7. Therefore, we conclude Bondurant has not overcome the strong

presumption that counsel’s performance was reasonably professional.

                                    C. Failure to Object

       {¶42} Bondurant also argues that his trial counsel provided ineffective

assistance because he failed to object to Detective Kirk’s testimony that allegedly

contained inadmissible hearsay. And he also claims that his trial counsel was

ineffective for not objecting to the admission of the letter from the Highland County

Community Action Organization. However, we have already determined that even

without Detective Kirk’s testimony about the GIS and the letter, there was still sufficient

evidence to convict him of trafficking in drugs in a school zone. Therefore, even if we

assume arguendo that his trial counsel’s performance was deficient by failing to object,

Bondurant cannot prove he was prejudiced. Accordingly, we overrule his third

assignment of error.

   VI. ENGAGING IN A PATTERN OF CORRUPT ACTIVTY AND OFFENSE LEVEL

       {¶43} Turning to Stevens’ remaining claims, in his second assignment of error

he again challenges the language of Ohio’s RICO statute. He argues that the trial court

incorrectly sentenced him on a first-degree felony for engaging in a pattern of corrupt

activity. Stevens points out that under R.C. 2923.32(B) engaging in a corrupt activity is

only elevated to a first-degree felony if one of the “incidents of corrupt activity” was a

third-degree felony or higher. Because his other convictions in this case were only fifth-
Highland App. Nos. 11CA25 & 11CA27                                                           17

degree felonies, he claims his conviction for engaging in a pattern of corrupt activity

should have been a second-degree felony. The state contends that the phrase

“incidents of corrupt activity” refers to the enterprise as a whole, rather than the

individual defendant; and because at least one of Stevens’ co-defendants was

convicted of a third-degree felony, his first-degree felony conviction was proper. Thus,

as in his first assignment of error, we must first examine the statute to determine which

approach is correct.

                                    A. Law and Analysis

       {¶44} Stevens was convicted of engaging in a pattern of corrupt activity in

violation of R.C. 2923.32(A)(1). R.C. 2923.32(B)(1) states, “[w]hoever violates this

section is guilty of engaging in a pattern of corrupt activity. Except as otherwise

provided in this division, engaging in corrupt activity is a felony of the second degree.

Except as otherwise provided in this division, if at least one of the incidents of corrupt

activity is a felony of the first, second, or third degree, aggravated murder, or murder * *

* engaging in a pattern of corrupt activity is a felony of the first degree.”

       {¶45} We find that the phrase “incidents of corrupt activity” as used in R.C.

2923.32(B)(1) is susceptible to more than one reasonable interpretation and therefore is

ambiguous. It is unclear from the statute’s plain language if the legislature intended the

phrase to refer to an individual defendant’s incidents of corrupt activity, as Stevens

claims, or the enterprise’s corrupt activity, as the state argues. Therefore, we must

interpret the statute to determine the legislature’s intent.

       {¶46} As we stated in Section III(A), the legislature intended for Ohio’s RICO

statute to impose the greatest level of accountability for organized criminal activity.
Highland App. Nos. 11CA25 & 11CA27                                                                 18

Thus, consistent with our earlier analysis, we conclude that the phrase “incidents of

corrupt activity” as used in Ohio’s RICO statute refers to the enterprise as a whole.

Therefore, a defendant may be convicted of a first-degree felony if one of the

enterprise’s incidents of corrupt activity constituted a felony of the first, second, or third-

degree. But see State v. Chamblin, 4th Dist. No.02CA753, 2004-Ohio-2252, ¶ 26.

          {¶47} In Chamblin we previously stated that to sustain a conviction under R.C.

2923.32 for a first-degree felony the appellant must have been convicted of a first,

second or third degree felony that was part of the pattern of corrupt activity. Id.

Because we determined that Chamblin’s conviction for the predicate third-degree felony

offense could not stand, we also concluded that he could not be convicted of a first-

degree felony under R.C. 2923.32(B). Id. However, Chamblin did not involve the issue

presented here, i.e. whether the enhancement is available based upon any member of

the enterprise having the requisite conviction.

          {¶48} Here, Stevens does not dispute that the other members of the enterprise

were convicted of the necessary felonies. He concedes that two actors in the enterprise

testified at trial that they were convicted of second and third-degree felonies. Thus,

under our interpretation of R.C. 2923.32(B)(1) he was properly convicted of a first-

degree felony for engaging in a pattern of corrupt activity.1

                                             B. Verdict Forms

          {¶49} Alternatively, Stevens also claims that the jury’s verdict form for his

conviction was deficient under the standard set forth in State v. Pelfrey, 112 Ohio St.3d

422, 2007-Ohio-256, 860 N.E.2d 735. He urges us to remand his case for resentencing


1
    Stevens’ argument only focuses on statutory construction and not a constitutional violation.
Highland App. Nos. 11CA25 & 11CA27                                                         19

because the jury failed to make a specific finding that one of the “incidents of corrupt

activity” was a first, second or third-degree felony.

       {¶50} However, our review of the record shows that Stevens did not object to

the verdict forms at trial. Nevertheless, “the Supreme Court of Ohio has recognized

error, even in the absence of an objection at trial, when a verdict form fails to comply

with R.C. 2945.75(A)(2).” Portsmouth v. Wrage, 4th Dist. No. 08CA3237, 2009-Ohio-

3390, ¶ 42, citing Pelfrey.

       {¶51} R.C. 2945.75(A)(2) provides: “When the presence of one or more

additional elements makes an offense one of more serious degree: * * * A guilty verdict

shall state either the degree of the offense of which the offender is found guilty, or that

such additional element or elements are present. Otherwise, a guilty verdict constitutes

a finding of guilty of the least degree of the offense charged.” And “[p]ursuant to the

clear language of R.C. 2945.75, a verdict form signed by a jury must include either the

degree of the offense of which the defendant is convicted or a statement that an

aggravating element has been found to justify convicting a defendant of a greater

degree of a criminal offense.” Pelfrey at syllabus.

       {¶52} “R.C. 2945.75(A)(2) and Pelfrey apply only to criminal offenses with

multiple degrees of seriousness. For example, in Pelfrey, the defendant was found

guilty of tampering with records in violation of R.C. 2913.42. Depending on the

seriousness of the conduct, tampering with records under R.C. 2913.42 may be a

misdemeanor of the first degree, a felony of the fifth degree, a felony of the fourth

degree, or a felony of the third degree. See RC. 2913.42(B)(1)-(4). The verdict form in

Pelfrey did not list the aggravating element (tampering with government records) or the
Highland App. Nos. 11CA25 & 11CA27                                                           20

degree of the offense (a third degree felony pursuant to R.C. 2913.42(B)(4)). Pelfrey at

¶ 13.” State v. Norman, 4th Dist. Nos. 08CA3059 & 08CA3066, 2009-Ohio-5458, ¶ 61.

       {¶53} Here, a conviction under R.C. 2923.32 for engaging in a pattern of corrupt

activity has multiple degrees of seriousness. Depending on the seriousness of the

incidents of corrupt activity, it can be either a first or second-degree felony. R.C.

2923.32(B). Thus, the jury’s verdict form must comply with R.C. 2945.75(A)(2) and

Pelfrey.

       {¶54} Although Stevens claims that the court itself enhanced his conviction to a

first-degree felony, this is not the case. The jury’s verdict form clearly stated the degree

of the offense. The form states, “[w]e, the jury, having been duly impaneled and sworn,

find the defendant, Jeffery Stevens guilty of Engaging in a Pattern of Corrupt Activity, a

first degree felony as he stands charged in Count 1 of the indictment.” (Emphasis

added.) Because the form clearly stated that the jury found Stevens guilty of a first-

degree felony, it did not also have to state the jury made a specific finding that one of

the incidents of corrupt activity was a first, second or third-degree felony. To comply

with R.C. 2945.75(A)(2) and Pelfrey, the verdict form need only state either the degree

of the offense or that the jury found an aggravating element present. The verdict form

satisfied this requirement. Therefore, we overrule Stevens’ second assignment of error.

                                    VII. SENTENCING

       {¶55} Finally in his third assignment of error Stevens challenges his sentence for

engaging in a pattern of corrupt activity. Stevens claims that the trial court incorrectly

determined that a mandatory sentence applied to his conviction. Specifically, he argues

before imposing a mandatory sentence, the statute requires that the pattern of corrupt
Highland App. Nos. 11CA25 & 11CA27                                                            21

activity involve a first-degree felony; here the state did not prove that anyone involved in

the enterprise was convicted of a first-degree felony. Therefore, he claims the trial court

improperly sentenced him to a mandatory term under R.C. 2929.13(F)(10).

                                   A. Standard of Review

       {¶56} “[A]ppellate courts must apply a two-step approach when reviewing felony

sentences. First, [we] must examine the sentencing court's compliance with all

applicable rules and statutes in imposing the sentence to determine whether the

sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the

trial court's decision in imposing the term of imprisonment is reviewed under the abuse-

of-discretion standard.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d

124, ¶ 26.

                                    B. Law and Analysis

       {¶57} The jury found Stevens guilty of engaging in a pattern of corrupt activity, a

first-degree felony, and the trial court sentenced him to nine years imprisonment. At

sentencing the court stated, “the Defendants have been convicted of engaging in a

pattern of corrupt activity, a first-degree felony. I believe that there’s a mandatory

sentence. * * * And three to ten is the range of sentence that there is.” The court also

stated: “So as to Defendant Stevens, the potential sentence on [Engaging in a Pattern

of Corrupt Activity] is actual three, mandatory actual three to ten years.” The state and

Stevens’ trial attorney both agreed with the court’s statements. Although the court

never orally explained the basis for its conclusion that the sentence was mandatory,

nevertheless, the judgment entry of conviction indicates that the court found “that a

mandatory prison term is required by 2929.13(F) ORC.”
Highland App. Nos. 11CA25 & 11CA27                                                              22

       {¶58} R.C. 2929.13(F) requires the sentencing court to impose a mandatory

prison term for certain serious offenses and limits the court's discretion to reduce that

term, except in certain enumerated circumstances. State v. Johnson, 116 Ohio St.3d

541, 2008-Ohio-69, 880 N.E.2d 896, ¶¶16, 17. The statute states: “Notwithstanding

divisions (A) to (E) of this section, the court shall impose a prison term or terms under

sections 2929.02 to 2929.06, section 2929.14, section 2929.142, or section 2971.03 of

the Revised Code and * * *shall not reduce the term * * * for any of the following

offenses * * * (10) Corrupt activity in violation of section 2923.32 of the Revised Code

when the most serious offense in the pattern of corrupt activity that is the basis of the

offense is a felony of the first degree.”

       {¶59} Although Stevens argues that this is the only subsection that applies to his

case, our review indicates otherwise. R.C. 2929.13(F)(6) also requires a mandatory

sentence for: “Any offense that is a first or second degree felony and that is not set

forth in division (F)(1), (2), (3), or (4) of this section, if the offender previously was

convicted of or pleaded guilty to * * * any first or second degree felony * * *[.]” At trial,

Stevens testified that he was previously convicted of complicity to aggravated robbery.

And because complicity to aggravated robbery is a felony of the first-degree, see R.C.

2911.01(C) and R.C. 2923.03(F), the trial court could have based its finding that

Stevens’ conviction required a mandatory sentence under R.C. 2929.13(F)(6). In fact,

before announcing Stevens’ sentence the court noted that Stevens testified that he had

been convicted of complicity to aggravated robbery, in addition to several other

offenses. In light of the fact that we review judgments, not the rationale behind them,

we cannot say the courts sentence was clearly and convincing contrary to law.
Highland App. Nos. 11CA25 & 11CA27                                                       23

       {¶60} Finally, trial courts have full discretion to impose a prison sentence within

the statutory range. At the time of his sentencing R.C. 29291.4(A)(1) provided that a

first-degree felony was punishable by a term of three to ten years. Accordingly, the trial

court did not abuse its discretion by sentencing Stevens to nine years for a first-degree

felony conviction. We overrule Stevens’ third assignment of error.

                                    VI. CONCLUSION

       {¶61} In conclusion, we overrule each of Bondurant’s assignments of error and

affirm the judgment of the trial court in his case. We also overrule each of Stevens’

assignments of error and affirm the judgment of the trial court in his case.

                                                                 JUDGMENT AFFIRMED.
Highland App. Nos. 11CA25 & 11CA27                                                          24


                                    JUDGMENT ENTRY


       It is ordered that the JUDGMENT IS AFFIRMED and that Appellants shall pay
the costs.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Highland
County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

Abele, P.J. & McFarland, J.: Concur in Judgment and Opinion.

                                            For the Court



                                            BY: ____________________________
                                                William H. Harsha, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
