[Cite as State v. Lightner, 2009-Ohio-2307.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                HARDIN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 6-08-15

        v.

STEVEN LIGHTNER, JR.,                                     OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Hardin County Common Pleas Court
                           Trial Court No. 20082134 CRI

                                      Judgment Affirmed

                              Date of Decision:   May 18, 2009




APPEARANCES:

        Scott B. Johnson for Appellant

        Bradford W. Bailey for Appellee
Case No. 6-08-15


SHAW, J.

       {¶1} Defendant-Appellant, Steven Lightner, Jr. (“Lightner”) appeals from

the December 17, 2008 Judgment Entry of the Court of Common Pleas, Hardin

County, Ohio. Lightner was convicted of one count of Receiving Stolen Property,

in violation of R.C. 2913.51(A),(C), a felony of the fourth degree, one count of

Grand Theft, in violation of R.C. 2913.02(A)(1),(B)(2), a felony of the fourth

degree, and one count of Engaging in a Pattern of Corrupt Activity, in violation of

R.C. 2923.32(A)(1),(B)(1), a felony of the second degree. Lightner received a

total prison sentence of seven years and ten months.

       {¶2} These charges arise from an incident occurring on August 27-28,

2008. It appears that sometimes during the late evening hours of August 27, 2008,

Lightner, his brother Jesse Lightner, John Byers, and JJ Kougher were involved in

the theft of a four year old utility dump trailer from a residence in Hancock,

County, Ohio. After stealing the trailer, they moved it to a residence in Hardin

County, Ohio, and parked it behind the residence.

       {¶3} After storing the trailer in Hardin County, the Lightner brothers tried

to find a buyer for the stolen trailer. The Lightners approached several people

concerning purchasing the trailer, but were unable to find a buyer.

       {¶4} At the same time, JJ Kougher was doing remodeling work on the

bathroom of Rusty Ohler. JJ Kougher told Ohler he could borrow the trailer, and



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instructed Ohler to pick up the trailer to haul away some waste from the

remodeling job.

       {¶5} Once Ohler picked up the dump trailer, he was subsequently stopped

by the police because the trailer did not have a license plate. After the traffic stop,

it was determined that the VIN numbers on the trailer being towed, by Ohler,

without a license plate matched those of the stolen Hancock County trailer.

       {¶6} On July 8, 2008 Lightner was indicted on one count of Receiving

Stolen Property, in violation of R.C. 2913.51(A),(C), a felony of the fourth degree;

one count of Tampering with Evidence, in violation of R.C. 2921.12(A)(1),(B), a

felony of the third degree; one count of Breaking and Entering, in violation of

R.C. 2911.13(A), a felony of the fifth degree; one count of Breaking and Entering,

in violation of R.C. 2911.13(B), a felony of the fifth degree; one count of Grand

Theft, in violation of R.C. 2913.02(A)(1),(B)(2), a felony of the fourth degree; and

one count of Engaging in a Pattern of Corrupt Activity, in violation of R.C.

2923.32(A)(1),(B)(1), a felony of the first degree.

       {¶7} Lightner was arraigned on July 17, 2008 and entered a plea of not

guilty to each count of the indictment.

       {¶8} A jury trial was held on December 15, 2008. At trial, the first count

of Breaking and Entering was dismissed for insufficient evidence at the State’s

concession. After deliberation, the jury found Lightner not guilty of the charge of



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Tampering with Evidence, and the second count of Breaking and Entering.

However, Lightner was found guilty of one count of Receiving Stolen Property, in

violation of R.C. 2913.51(A),(C), a felony of the fourth degree, one count of

Grand Theft, in violation of R.C. 2913.02(A)(1),(B)(2), a felony of the fourth

degree, and one count of Engaging in a Pattern of Corrupt Activity, in violation of

R.C. 2923.32(A)(1),(B)(1), a felony of the second degree.

      {¶9} On December 17, 2008 Lightner was sentenced. The trial court

found that the counts of Receiving Stolen Property and Grand Theft were allied

offenses and proceeded to sentencing only on the charge of Grand Theft. Lightner

was sentenced to a prison term of ten months on his conviction for Grand Theft to

run consecutively to a prison term of seven years on his conviction for of

Engaging in a Pattern of Corrupt Activity.

      {¶10} Lightner now appeals, asserting two assignments of error.

                  ASSIGNMENT OF ERROR I
      THE TRIAL COURT ERRED IN DENYING THE
      DEFENDANT’S CRIMIMAL [SIC] RULE 29 MOTION FOR
      ACQUITTAL, AS THE EVIDENCE TO SUPPORT A
      CONVICTION UNDER SECTION 2923.32 OF THE OHIO
      REVISED CODE WAS INSUFFICIENT TO PROVE BEYOND
      A REASONABLE DOUBT THE “ESSENTIAL ELEMENT”
      OF TWO PREDICATE OFFENSES AND THE EXISTENCE
      OF AN “ENTERPRISE.”

                  ASSIGNMENT OF ERROR II
      THE TRIAL COURT ERRED BY NOT INSTRUCTING THE
      JURY THAT THE PREDICATE ACTS REQUIRED FOR A
      CONVICTION AS TO A VIOLATION OF SECTION 2923.32


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      OF THE OHIO REVISED CODE MUST ALSO BE PROVEN
      BEYOND A REASONABLE DOUBT AND THAT UN-
      INDICTED OFFENSE MAY BE USED AS PREDICATE
      OFFESES.

      {¶11} In his first assignment of error, Lightner argues that the trial court

erred in denying his Crim. R. 29 motion at the close of the State’s case with

respect to his conviction for Engaging in a Pattern of Corrupt Activity pursuant to

R.C. 2923.32(A)(1),(B)(1). As an initial matter, we note that Lightner’s appeal

does not concern his convictions for Receiving Stolen Property or Grand Theft.

Lightner does not appear to dispute those convictions.

      {¶12} Crim.R. 29(A) provides:

      The court on motion of a defendant or on its own motion, after
      the evidence on either side is closed, shall order the entry of a
      judgment of acquittal of one or more offenses charged in the
      indictment, information, or complaint, if the evidence is
      insufficient to sustain a conviction of such offense or offenses.

      {¶13} A trial court should not grant a Crim.R. 29 motion for acquittal if

“reasonable minds can reach different conclusions as to whether each material

element of a crime has been proved beyond a reasonable doubt * * *.” State v.

Bridgeman (1978), 55 Ohio St.2d 261, 263, 381 N.E.2d 184. However, this Court

has previously held that the Bridgeman standard “must be viewed in light of the

sufficiency of evidence test put forth in State v. Jenks (1991), 61 Ohio St.3d 259,

574 N.E.2d 492, paragraph two of the syllabus.” State v. Foster (Sept. 17, 1997),

Seneca App. No. 13-97-09. Thus, “[t]he relevant inquiry is whether, after viewing


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the evidence in a light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime proven beyond a reasonable

doubt.” Jenks, 61 Ohio St.3d 259 at paragraph two of the syllabus.

       {¶14} Specifically, Lightner argues that evidence introduced at trial with

respect to the charge of Engaging in a Pattern of Corrupt Activity was insufficient

to prove two predicate offenses and the existence of an enterprise.   Engaging in a

Pattern of Corrupt Activity is defined by R.C. 2923.32(A)(1), as follows:

      (A)(1) 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.

R.C. 2923.31(C) defines “enterprise” as the following:

      * * * 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.

Finally, R.C. 2923.31(E) defines “pattern of corrupt activity” to mean:

      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.

       {¶15} R.C. 2923.32 defines “corrupt activity” as “engaging in, attempting

to engage in, conspiring to engage in, or soliciting, coercing, or intimidating

another person to engage in * * * conduct constituting” one of the predicate


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offenses listed in R.C. 2923.31(I)(2). See, State v. Adkins, 136 Ohio App.3d 765,

737 N.E.2d 1021, 2000-Ohio-1656; State v. Schlosser (1997), 79 Ohio St.3d 329,

335, 681 N.E.2d 911, 915-916, 1998-Ohio-716.

       {¶16} Although the predicate acts in R.C. 2923.31 need not be supported

by convictions, their occurrence must at least be proven beyond a reasonable

doubt. See State v. Lightner, 3rd Dist. No. 6-08-11, 2009-Ohio-544; State v. Burkitt

(1993), 89 Ohio App.3d 214, 222-23, 624 N.E.2d 210. In addition, the State must

set forth the requisite predicate acts in the indictment that it intends on using as the

foundation for a R.C. 2923.32 offense. State v. Warden, 6th Dist. No. WD-03-065,

2004-Ohio-6306, ¶ 48. This Court has previously stated that “where a defendant is

required to defend himself against additional unindicted predicate offenses, he

should be notified of such by identification of those charges within the

indictment.” State v. Roberson, 3rd Dist. No. 5-02-45, 2003-Ohio-4627, ¶ 13,

quoting State v. Siferd, 3rd Dist. No. 151 Ohio App.3d 103, 2002-Ohio-6801, 783

N.E.2d 519, ¶ 23.

       {¶17} In the indictment, the State offered the following to establish the

pattern of corrupt activity:

       §2913.51(A),(C),      Receiving      Stolen    Property[F4];
       §2921.12(A)(1),(B), Tampering with Evidence[F3]; §2911.13(A),
       Breaking and Entering[F5]; § R.C. 2911.13(B), Breaking and
       Entering[F3]; §2913.02(A)(1),(B)(2), Grand Theft[F4], Theft
       offenses in municipal courts of Ohio; thefts [sic] of Motor
       Scooter on or about May 4, 2003, and Receiving Stolen


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      Property, namely, ATV’s on or about March 2, 2007 through
      and including March 31, 2007

       {¶18} Therefore, we find that Lightner was provided notice, in the

indictment, that the State would attempt to use both a 2003 incident involving the

theft of motor scooters and a 2007 incident involving the theft of ATVs as

predicate offenses. Moreover, Lightner concedes that the theft of the dump trailer

was a single instance of corrupt activity. However, Lightner contends that the

State failed to establish, beyond a reasonable doubt, a second instance of corrupt

activity sufficient to support his conviction for Engaging in a Pattern of Corrupt

Activity.

       {¶19} At trial, the following testimony was offered by Detective Coffman

of the Kenton City Police department.

      Bailey: [D]id you specifically investigate a case of stolen motor
      scooters involving Steve Lightner, Jr. and his brother Jesse
      Lightner?

      Coffman: I was not the lead investigator on it, I did assist in that
      case.

      Bailey: Alright. And you are familiar, though, with it, correct?

      Coffman: That is correct.

      Bailey: And that occurred on or about May 4th, 2003?

      Coffman: Yes

      Bailey: And is that date of any necessary, specific importance to
      the Lightners?


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           Coffman: Jesse’s eighteenth birthday.

           Bailey: So on his eighteenth birthday he and his brother Stevie,
           Jr. were stealing motor scooters, correct?

           Coffman: Correct.

           Bailey: They were, I think, ultimately convicted of that,
           correct?

           Coffman: Yes.

           Bailey: Additionally, were you one of the detectives assisting
           Detective Baum on what I call the ATV cases on or about March
           2nd, 2007 up through and including March 31st, 2007.

           Coffman: Yes.

           Bailey: And you assisted the Hardin County Sheriff’s
           Department in that case?

           Coffman: That is correct.

           Bailey: And who all was involved in stealing some ATVS?

           Coffman: That was Jesse Lightner, Stevie Lightner, Bubba,1
           and Ben Fowler.

           Bailey: Alright. And when you say Stevie Lightner, you’re
           talking about Stevie Lightner, Jr.?

           Coffman: Yes.

           Bailey: And specifically, also in the current case which is what
           we call, I guess, the trailer case stemming from August 27th and
           August 28th of 2007, who was your investigation, what did it
           entail as far as who was all involved in this?

1
    Testimony was given at trial that “Bubba” referred to John Byers.


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      Coffman: Investigation from sources involved in the crimes said
      it was Jeremy Wyomic, Bubba, Jess, and Stevie Lightner, Jr..

      Bailey: Alright. And the same Stevie Lightner, Jr. that you
      interviewed the one that’s involved in all these prior crimes, is
      he in the courtroom today?

      [Detective Coffman identifies Steven Lightner.]

(Tr.p.173-175).

       {¶20} Lightner argues that the State was required to submit certified copies

of his convictions to prove either the 2003 or 2007 incidents as predicate offenses.

However, Lightner misconstrues this Court’s statement in State v. Lightner, 2009-

Ohio-544. In Lightner, this Court did not find it dispositive that a copy of the

defendant’s conviction was not introduced. Failure to introduce a copy of the

defendant’s conviction was one of many factors at issue in Lightner. Moreover, in

Lightner, the predicate offense that the State attempted to rely upon was not

mentioned in the indictment and the jury was not instructed that it could consider

such offense as a predicate offense.

       {¶21} In the present case, Lightner was informed though the indictment

that the State was prepared to use both the 2003 and the 2007 incidents to establish

predicate offenses.   Moreover, when viewing the testimony in a light most

favorable to the prosecution, the proper standard when reviewing a Crim. R. 29

motion, there was sufficient evidence introduced to prove the predicate offense



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with respect to the 2003 incident. Finally, the jury was properly instructed that it

could consider the 2003 and 2007 incidents as predicate offenses, which will be

discussed more fully in the next assignment of error. Accordingly, Lightner’s first

assignment of error is overruled.

        {¶22} In his second assignment of error, Lightner argues that the trial court

did not properly instruct the jury as to the standard of proof for the predicate acts

required to find a violation of R.C. 2923.32 and that the trial court did not properly

instruct the jury as to what could be considered as a predicate offense.

        {¶23} As an initial matter, we note that Lightner did not object to the

instructions when they were given by the trial court. “The failure to object to a

jury instruction constitutes a waiver of any claim of error relative thereto, unless,

but for the error, the outcome of the trial clearly would have been otherwise.”

State v. Underwood (1983), 3 Ohio St.3d 12, 444 N.E.2d 1332, at syllabus.

Absent plain error, the failure to object to improprieties in jury instructions, as

required by Crim.R. 30, is a waiver of the issue on appeal. State v. Underwood, 3

Ohio St.3d at 13 citing State v. Williams (1977), 51 Ohio St.2d 112, 364 N.E.2d

1364.

        {¶24} Pursuant to Crim.R. 52(B), “[p]lain errors or defects affecting

substantial rights may be noticed although they were not brought to the attention of

the court.” State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d 1240, 2002-



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Ohio-68. The Ohio Supreme Court, in Barnes, articulated a three part test for the

finding of plain error.

       First, there must be an error, i.e., a deviation from a legal rule.
       Second, the error must be plain. To be “plain” within the
       meaning of Crim.R. 52(B), an error must be an “obvious” defect
       in the trial proceedings. Third, the error must have affected
       “substantial rights.” We have interpreted this aspect of the rule
       to mean that the trial court's error must have affected the
       outcome of the trial.

Barnes, 94 Ohio St.3d at 27 (internal citations omitted).

       {¶25} Thus, “[o]nly extraordinary circumstances and the prevention of a

miscarriage of justice warrant a finding of plain error.” State v. Brown, 3rd Dist.

No. 8-02-09, 2002-Ohio-4755 citing State v. Long (1978), 53 Ohio St.2d 91, 372

N.E.2d 804, at paragraph three of the syllabus.

       {¶26} Generally, a trial court has broad discretion to decide how to fashion

jury instructions. The trial court must not, however, fail to “fully and completely

give the jury all instructions which are relevant and necessary for the jury to weigh

the evidence and discharge its duty as the fact finder.” State v. Comen (1990), 50

Ohio St.3d 206, 553 N.E.2d 640, paragraph two of the syllabus.

       {¶27} In the present case, Lightner argues that the trial court erred by

failing to instruct the jury as to whether it could consider an unindicted offense as

a basis for a conviction under R.C.2923.32, and that the trial court erred by failing




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to instruct the jury that it must find the predicate offenses beyond a reasonable

doubt.

         {¶28} This Court has stated that the only way to ensure that the State has

satisfied its burden in proving the predicate acts occurred beyond a reasonable

doubt is with the trial court’s jury instructions. State v. Lightner, 2009-Ohio-544,

¶17. See also, State v. Reyes, 6th Dist. No. WD-03-059, 2005-Ohio-2100, ¶ 29,

citing State v. Stacy, 12th Dist. No. CA2002-03-073, 2003-Ohio-3695, ¶ 7.

         {¶29} In the present case, the jury was instructed, in pertinent part, as

follows:

         Count six: Steven Lightner, Jr., from on or about May 4th, 2003
         through on or about March 31st, 2008, in a continuing course of
         criminal conduct between Hancock County and Hardin County,
         Ohio, while employed by or associated with an enterprise, did
         conduct or participate in, directly or indirectly, the affairs of the
         enterprise through a pattern of corrupt activity, to wit:
         receiving stolen property, tampering with evidence, breaking
         and entering, breaking and entering, grand theft, theft offenses
         in municipal courts of Ohio, thefts of motor scooters on or about
         May 4th, 2003, receiving stolen property, namely ATVs on or
         about March 2nd, 2007 through and including March 31st, 2007
         in violation of Ohio Revised Code Section 2923.32A1B1,
         engaging in a pattern of corrupt activity.

         ***

         The Defendant is charged in count six of the indictment with
         engaging in a pattern of corrupt activity. Before you can find
         the Defendant guilty, you must find beyond a reasonable doubt
         that the Defendant, from on or about May 4th, 2003 through on
         or about March 31st, 2008, and in a continuing course of
         criminal conduct between Hardin County and Hancock County


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        in Ohio, while employed by or associated with an enterprise,
        conducted or participated in, directly or indirectly, the affairs of
        the enterprise through a pattern of corrupt activity.

        ***

        A finding of a pattern of corrupt activity requires proof of a
        least two incidents of corrupt activity within six years of each
        other. . . Corrupt activity means engaging in, attempting to
        engage in, conspiring to engage in, soliciting, coercing or
        intimidating another person to engage in theft, receiving stolen
        property, grand theft of a motor vehicle, tampering with
        evidence, breaking and entering, and intimidation of an
        attorney, victim, or witness in a criminal case.

        ***

        If you find that the State proved beyond a reasonable doubt all of
        the essential elements of the offense of engaging in a pattern of
        corrupt activity, your verdict must be guilty.

(Tr.p. 233-244).2

        {¶30} Viewing these jury instructions, we note that the trial court

specifically instructed that the unindicted offenses could be considered as

predicate offenses. The trial court gave the specific dates of the offenses, and then

stated that offenses found to be predicate offenses, occurring within a certain time

period, had to be proven beyond a reasonable doubt. Even if properly objected to,

this court would be unable to find error in these instructions.                          Accordingly,

Lightner’s second assignment of error is overruled.



2
  The trial court’s jury instructions for Engaging in a Pattern of Corrupt Activity are analogous to those
provided in the Ohio Jury Instructions, Section 523.32(A)(1).


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       {¶31} Based on the foregoing, the December 17, 2008 Judgment Entry of

the Court of Common Pleas, Hardin County, Ohio is affirmed.

                                                               Judgment Affirmed

PRESTON, P.J., concurs.

/jlr




ROGERS, J., dissents.

       {¶32} I respectfully dissent from the opinion of the majority. I would first

find that there was insufficient evidence of two predicate offenses. It is my

position that either the State had to offer evidence as to the facts of each prior

offense sufficient for this jury to find beyond a reasonable doubt that Appellant

was guilty of the two prior offenses, or the State must prove the prior convictions

by providing certified copies of the judgments in those cases. The State did

neither in this case. The only evidence offered by the State was that a detective

said he investigated two prior offenses. The State failed to prove the facts of each

prior case. The detective then claimed that Appellant was convicted of those

offenses.

       {¶33} R.C. 2945.75(B)(1) discusses proof of prior convictions and

provides:




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        Whenever in any case it is necessary to prove a prior conviction,
        a certified copy of the entry of judgment in such prior conviction
        together with evidence sufficient to identify the defendant named
        in the entry as the offender in the case at bar, is sufficient to
        prove such prior conviction.

Here, the detective’s conclusory statement that Appellant was convicted was

insufficient for purposes of proving a prior conviction pursuant to R.C.

2945.75(B)(1). I would, therefore, sustain the first assignment of error, which

would render the second assignment of error moot.

        {¶34} However, because the majority addressed the second assignment of

error, I will also comment. It appears that the instructions to the jury generally

included the necessary considerations,3 but that the trial court erred when it read

the indictment to the jury. While this may not be error in every case, it was error

here because the indictment contained allegations of other crimes or bad acts

which were not proven and were unfairly prejudicial to Appellant. Furthermore,

the trial court’s definition of corrupt activity was not limited to the two specific

predicate activities upon which the majority relies. Instead, the trial court included

references to other crimes such as soliciting and intimidation which had no

relevance in this trial, and were again unfairly prejudicial to Appellant.




3
  While the majority finds the jury instructions to have been “analogous” to 4 Ohio Jury Instructions
(2008), Section CR 523.32(A)(1), there were departures which I find to be significant.


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