OPINIONS OF THE SUPREME COURT OF OHIO
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The State of Ohio, Appellant and Cross-Appellee, v.
Morgan, Appellee and Cross-Appellant.
[Cite as State v. Morgan (1994), Ohio St.3d .]
Criminal law -- R.C. 2923.31(E), construed -- Determining
whether a federal offense constitutes a felony for
purposes of R.C. 2923.32.
---
The determination whether a federal offense or an offense
committed in a sister state constitutes a felony for
purposes of R.C. 2923.32 depends upon whether the
actual act committed by the defendant would
constitute a felony offense if committed in Ohio.
The classification of the offense imposed upon the
defendant by the foreign jurisdiction has no bearing
on the question. (R.C. 2923.31[E], construed.)
---
(No. 93-1139 -- Submitted October 26, 1994 -- Decided
December 14, 1994.)
Appeal and Cross-Appeal from the Court of Appeals for
Fairfield County, No. 14-CA-92.
On September 7, 1990, appellee and cross-appellant,
James P. Morgan, was indicted by the Fairfield County
Grand Jury on one count of engaging in a pattern of
corrupt activity in violation of R.C. 2923.32 and four
counts of filing an incomplete, false or fraudulent income
tax return in violation of R.C. 5747.19. Count one of the
indictment consisted of sixty-two underlying predicate
acts. In essence, Morgan and others allegedly engaged in
an illegal gambling or bookmaking operation.
On September 23, 1991, Morgan and the state of Ohio,
appellant and cross-appellee, entered into a plea
agreement. As part of the agreement, appellant, pursuant
to R.C. 2941.33, entered a nolle prosequi regarding counts
two through five of the indictment. In addition, eighteen
of the original predicate acts in count one of the
indictment were dismissed and Morgan then entered a plea
of no contest to the remainder of count one. One of the
remaining predicate acts (predicate act number one)
accused Morgan of violating Section 1955, Title 18, U.S.
Code and R.C. 2915.02(A)(1). Further, the other remaining
predicate acts charged that Morgan violated R.C.
2915.02(A)(1) or (3). R.C. 2915.02(A)(1) and (3) are
misdemeanor gambling offenses under Ohio law.
On October 8, 1991, Morgan filed a motion for
acquittal in the Court of Common Pleas of Fairfield
County. On December 2, 1991, the trial court, finding
Ohio's corrupt activity law (R.C. 2923.31 through 2923.36)
constitutional, denied Morgan's motion for acquittal and
determined that he was guilty of engaging in a pattern of
corrupt activity. The trial court sentenced Morgan to a
period of incarceration of not less than four nor more
than twenty-five years. Morgan was fined $5,000 and
ordered to pay costs of the prosecution in the amount of
$25,000. Thereafter, the trial court conducted a
forfeiture hearing and further ordered Morgan to forfeit
$95,000.
On appeal, the court of appeals reversed the judgment
of the trial court and dismissed the charge against
Morgan. The court further directed that all property
forfeited by Morgan be returned to him. Specifically, the
court of appeals determined that the allegations set forth
in the indictment did not satisfy the requisite felony act
required to sustain a conviction under R.C. 2923.32,
stating that:
"The appellant [Morgan] did not have a previous
conviction for any gambling offense in Ohio which could be
used to enhance a subsequent gambling violation to a
felony. As such, any conduct on the part of the defendant
involving an alleged violation of any section of R.C.
Chapter 2951 [R.C. Chapter 2915 sic] (gambling) would
constitute only a misdemeanor offense. It necessarily
follows that the conduct of the appellant which resulted
in violation of [Section 1955, Title 18, U.S. Code] would
only have constituted a misdemeanor offense, if an offense
at all, in Ohio.
"R.C. 2923.31(E) directs us to determine whether the
incident which resulted in appellant's conviction in the
foreign jurisdiction (be it a federal statute or another
state's statute) would constitute a felony if committed in
Ohio. We believe R.C. 2923.31(E) requires analysis of
appellant's conduct and not the penalty accessible [sic
assessable] by the other sovereign to determine whether it
meets the felony predicate required by Ohio's Corrupt
Practices Act.
"Criminal statutes are to be strictly construed
against the state. R.C. 2901.04. We conclude R.C.
2901.02(E) has no application to the definition of
'pattern of corrupt activities' under Ohio's Corrupt
Practices Act." (Emphasis sic.)
The cause is now before this court pursuant to the
allowance of a motion and cross-motion for leave to appeal.
David L. Landefeld, Prosecuting Attorney, and Paul D.
Morehart, Assistant Prosecuting Attorney, for appellant
and cross-appellee.
Max Kravitz and William D. Holt, for appellee and
cross-appellant.
Douglas, J. Upon our initial consideration, it
appeared that the outcome of this case would hinge on the
constitutionality of Ohio's corrupt activity law.
However, upon further review, it has become apparent
deciding that question is not necessary to the
determination of this appeal. Rather, the simpler
question in this case is whether alleging a violation of
Section 1955, Title 18, U.S. Code is sufficient to
establish the requisite felony act needed to sustain a
conviction for engaging in a pattern of corrupt activity
under R.C. 2923.32(E).
Specifically at issue in this case is the first
predicate act in count one of the indictment. It reads:
"That, for a time period in excess of thirty days,
to-wit: from January 1, 1984, through December 31, 1989,
… James P. Morgan …, in violation of Title 18,
United States Code Section 1955, did conduct, finance,
manage, supervise, direct or own all or part of an illegal
gambling business, to-wit: a bookmaking enterprise as
defined by Ohio Revised Code Section 2915.01(1), operated
out of a building … and/or house … in violation of
Ohio Revised Code Section 2915.02(A)(1)[.]"
R.C. 2923.32(A)(1) provides that: "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."
(Emphasis added.) Further, subsection (B)(1) provides
that a violation of R.C. 2923.32 is a first-degree felony.
The definition of "pattern of corrupt activity" is
set forth in R.C. 2923.31(E). A pattern exists if there
are "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."
(Emphasis added.) This section further requires that at
least one of the incidents forming the pattern must occur
on or after January 1, 1986. Also, "[f]or the purposes of
the criminal penalties that may be imposed pursuant to
section R.C. 2923.32 of the Revised Code, at least one of
the incidents forming the pattern shall constitute a
felony under the laws of this state or, if committed in
violation of the laws of the United States or of any other
state, would constitute a felony under the law of this
state if committed in this state." (Emphasis added.)
R.C. 2923.31(I)(1) provides that "corrupt activity"
includes "engaging in, attempting to engage in, conspiring
to engage in, or soliciting, coercing, or intimidating
another person to engage in … [c]onduct defined as
'racketeering activity' under the 'Organized Crime Control
Act of 1970,' 84 Stat. 941, 18 U.S.C. 1961(1)(B), (1)(C),
(1)(D), and (1)(E), as amended …[.]" Section
1961(1)(B), Title 18, U.S. Code provides that
"racketeering activity" includes any act which is
indictable under Section 1955, Title 18, U.S. Code.
Section 1955, Title 18 involves prohibition against
illegal gambling businesses. An "illegal gambling
business" includes a gambling business which is in
violation of state law or a political subdivision where
the illegal activity is conducted, and it involves five or
more persons "who conduct, finance, manage, supervise,
direct, or own all or part of such business." Section
1955(b)(1)(i) and (ii), Title 18. Additionally, the
gambling business must have been "in substantially
continuous operation for a period in excess of thirty days
or has a gross revenue of $2,000 in any single day."
Section 1955(b)(1)(iii). "Gambling" includes, among other
things, "pool-selling" and "bookmaking." Section
1955(b)(2), Title 18. The penalty for participating in or
being part of an illegal gambling business may include a
fine up to $20,000 and imprisonment of not more than five
years. Section 1955(a), Title 18.
Appellant contends that the indictment is sufficient
to sustain a conviction under R.C. 2923.32. Specifically,
appellant points to the first predicate act in count one
of the indictment and asserts that because Section 1955,
Title 18, allows for imprisonment up to five years, the
indictment satisfies the felony requirement in R.C.
2923.31(E). In support, appellant relies on R.C.
2901.02(E) which states that: "Any offense not
specifically classified is a felony if imprisonment for
more than one year may be imposed as a penalty."
Appellant's contentions lack merit. Rather, we agree
with the conclusions reached by the court of appeals on
this matter. See, also, State v. Rich (1993), 87 Ohio
App.3d 194,
621 N.E.2d 1352.
R.C. 2923.31(E) is clear. This statute sets forth,
among other things, that a defendant's conduct falls
within the meaning of a "pattern of corrupt activity" if
the defendant has committed two or more incidents of
corrupt activity. Further, the General Assembly clearly
expressed that in order for a defendant to be subject to
criminal penalties contained in R.C. 2923.32 at least one
of the incidents forming the pattern of illegal activity
must constitute a felony under Ohio law. And, if that
incident is alleged to have been committed in violation of
federal law or a law of a sister state, the illicit act
must be classified as a felony under Ohio law as if the
incident (defendant's conduct) was committed in this state.
Hence, given the well-defined intent of the General
Assembly in this area, there is no room for judicial
interpretation. Clearly, the focus in a case such as this
should not be on the penalty assessable by the foreign
jurisdiction but, rather, on the actual act (incident)
that was committed by the defendant. Accord Rich at 197,
621 N.E.2d at 1354. Accordingly, we find that the
determination whether a federal offense or an offense
committed in a sister state constitutes a felony for
purposes of R.C. 2923.32 depends upon whether the actual
act committed by the defendant would constitute a felony
offense if committed in Ohio. The classification of the
offense imposed upon the defendant by the foreign
jurisdiction has no bearing on the question.
The court of appeals held, and we agree, that the
alleged violation by Morgan of Section 1955, Title 18,
U.S. Code did not satisfy the requisite felony act in
order to sustain a conviction under R.C. 2923.32. Indeed,
any conduct on the part of Morgan involving an alleged
violation of this federal statute would not, under the
circumstances, constitute a felony offense under Ohio law
"if committed in this state." Absent a previous gambling
conviction, a gambling offense in this state is classified
as a misdemeanor, not a felony. See R.C. 2915.02(F) and
2915.03(B). See, generally, State v. McDonald (1987), 31
Ohio St.3d 47, 50, 31 OBR 155, 157,
509 N.E.2d 57, 60, fn.
1; and State v. Volpe (1988),
38 Ohio St.3d 191, 194,
527
N.E.2d 818, 821.
Accordingly, we affirm the judgment of the court of
appeals in all respects.
Judgment affirmed.
Moyer, C.J., A.W. Sweeney, Wright, Resnick, F.E.
Sweeney and Pfeifer, JJ., concur.
