         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D18-330
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RONALD CLARK BALL,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Escambia County.
Thomas V. Dannheisser, Judge.

                       November 1, 2019


OSTERHAUS, J.

     Ronald Clark Ball appeals his jury convictions and sentences
on four counts of grand theft, two counts of money laundering, two
counts of racketeering, and solicitation to tamper with evidence.
We affirm.

                                I.

     The evidence at trial uncovered details of Mr. Ball’s various
schemes to swindle others and enrich himself. Mr. Ball met his
primary victim, a wealthy widow, at a bar. After impressing her
with his experience and knowledge of financial matters, they
started dating and Mr. Ball moved into her house. About the same
time, this victim became concerned with her financial situation
and whether the money she had inherited from her late husband
would continue sustaining her. After speaking with a financial
advisor who offered a four percent return on her investments, Mr.
Ball offered to get the victim a return closer to eighteen percent.
Unfortunately, the victim agreed to let Mr. Ball invest some of her
money. She wrote him checks totaling over a million dollars and
allowed him to invest her insurance policies. Mr. Ball proceeded to
move her money around, into and through different corporations
and bank and financial accounts that he established. Some
accounts the victim authorized and some she didn’t. With access to
the victim’s home, Mr. Ball gained the use of her personal bank
records, driver’s license, passport, and other financial records,
along with her mail and computer.

     At some point along the way, the victim noticed warning signs.
For instance, she walked in on Mr. Ball one day while he was
manipulating her signature on the computer screen. Indeed, he
had a thumb drive containing multiple images of her signature.
She eventually found that Mr. Ball had used her money to buy
things for himself, such as a BMW, artwork, furniture, expensive
clothes, watches, and the like. A fraud examiner was able to trace
money from the various accounts to Mr. Ball’s personal account.
Mr. Ball ultimately spent or lost all of the money. In addition to
her money, Mr. Ball used the accounts to commit crimes involving
other victims.

     The State charged Mr. Ball with four counts of grand theft,
two counts of money laundering, two counts of racketeering, and
solicitation to tamper with evidence. A jury later returned guilty
verdicts on all counts. And this appeal followed.

                                 II.

     A comprehensive review of the record demonstrates no merit
in the six points raised by Mr. Ball challenging his convictions and
sentences. We specifically address, however, Mr. Ball’s argument
that the two racketeering counts violate the Double Jeopardy
Clause. Both the Florida and United States Constitutions contain
Double Jeopardy Clauses that protect persons from multiple
prosecutions for the same crime. State v. Tuttle, 177 So. 3d 1246,
1252 (Fla. 2015). “No person shall be . . . twice put in jeopardy for
the same offense.” Art. I, § 9, Fla. Const.; U.S. Const. amend. V.;
see also Hayes v. State, 803 So. 2d 695, 699 (Fla. 2001).
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     The question Mr. Ball raises here is whether the State
wrongfully chopped one single pattern of crime into two separate
criminal counts. That is, did Mr. Ball truly participate in more
than one “pattern of racketeering activity” under the Florida
Racketeer Influenced and Corrupt Organizations Act (RICO)?
§ 895.03(3), Fla. Stat. (prohibiting “any person employed by, or
associated with, any enterprise to conduct or participate, directly
or indirectly, in such enterprise through a pattern of racketeering
activity”). *

     In cases like this one, Florida courts have evaluated whether
more than one pattern of racketeering activity exists using a five-
factor, totality-of-the-circumstances test borrowed from federal
cases. See Donovan v. State, 572 So. 2d 522, 528 (Fla. 5th DCA
1990) (citing United States v. Ruggiero, 754 F.2d 927 (11th Cir.
1985), cert. denied, 471 U.S. 1127 (1985)); see also Gross v. State,
765 So. 2d 39, 42 (Fla. 2000) (noting that Florida courts look to the
federal courts for guidance in construing RICO provisions). The
five factors are:

    1. Whether the activities allegedly constituting two
    RICO “patterns” occurred during the same time periods;

    2. Whether the activities occurred in the same places;

    3. Whether the activities involved the same persons;

    4. Whether the same criminal statutes were allegedly
    violated; and




    * “Pattern of racketeering activity” means engaging in at least
two incidents of racketeering conduct that have the same or
similar intents, results, accomplices, victims, or methods of
commission or that otherwise are interrelated by distinguishing
characteristics and are not isolated incidents, provided at least one
of such incidents occurred after the effective date of this act and
that the last of such incidents occurred within 5 years after a prior
incident of racketeering conduct. § 895.02(4), Fla. Stat. (2015).

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    5. Whether the overall nature and scope of the activities
    were the same.

Donovan, 572 So. 2d at 528. Uniformity among these factors in the
charges alleged tends to show that only one pattern of racketeering
activity exists. Id. at 528-29. But if these factors show differences
between the RICO charges, then the prosecution does not violate
the Double Jeopardy Clause.

      Our review of Counts 7 and 8 indicate that the trial court got
it right. The allegations and evidence show that Mr. Ball engaged
in more than one pattern of racketeering activity through distinct
enterprises, though some overlap existed. Specifically, Count 7
alleged that Mr. Ball and Noka World Energy (USA), LLC,
engaged not only in efforts to swindle the primary victim out of her
money, but also schemes involving an automobile dealership, loan
companies, banks and tax documents. Count 8 charged acts of a
different enterprise consisting of Mr. Ball, The Kessler Fund, LLC,
and Noka World, LLC, over a different time period. The
information charged this enterprise with crimes involving the
primary victim and the financial entities listed in Count 7, but also
involving the Florida Department of Economic Opportunity and an
attempt to unlawfully obtain unemployment benefits. Count 8
doesn’t include the auto-dealer, auto-financing, and tax-related
allegations found in Count 7.

     Because the State charged different time-periods, different
enterprise membership, different victims, and different unlawful
conduct in Counts 7 and 8, we agree with the trial court that this
is not a situation like Donovan involving the same enterprise and
the same pattern of racketeering activity. Donovan, 572 So. 2d at
528 (reversing where the State “unjustifiably tried to chop various
components of a single pattern into separate patterns”). Even
though Mr. Ball controlled both enterprises, each one was engaged
“in similar but distinct activities.” United States v. Trucchio, 196
Fed. Appx. 825, 827 (11th Cir. 2006). Overlapping enterprises
pursuing different, though overlapping, patterns of racketeering
can be prosecuted separately without violating double jeopardy
protections. See, e.g., United States v. Schiro, 679 F.3d 521, 526
(7th Cir. 2012); United States v. DeCologero, 364 F.3d 12, 18 (1st
Cir. 2004) (“[e]very circuit to have examined the issue has agreed

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that double jeopardy only bars successive RICO charges involving
both the same enterprise and the same pattern of racketeering
activity.”). Thus, we find no error in the judgment and sentence
related to the two racketeering counts.

                                III.

    We AFFIRM the judgment and sentence.

LEWIS and M.K. THOMAS, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Terry P. Roberts of the Law Office of Terry P. Roberts, Tallahassee,
for Appellant.

Ashley Moody, Attorney General, and Steven E. Woods, Assistant
Attorney General, Tallahassee, for Appellee.




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