[This opinion has been published in Ohio Official Reports at
88 Ohio St.3d 558.]
THE STATE OF OHIO, APPELLANT, v. CHILDS, APPELLEE.
[Cite as State v. Childs, 2000-Ohio-425.]
Criminal law—Conspiracy charge need not include the specific controlled
substance involved in the underlying offense—Party seeking to suppress
evidence allegedly obtained in violation of R.C. 2933.52(A)(1) bears the
burden of proof on that issue.
1. A conspiracy charge need not include the specific controlled substance
involved in the underlying offense.
2. The party seeking to suppress evidence allegedly obtained in violation of
R.C. 2933.52(A)(1) bears the burden of proof on that issue.
(No. 99-12—Submitted February 8, 2000—Decided May 31, 2000.)
APPEAL from the Court of Appeals for Montgomery County, No. 16580.
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{¶ 1} In 1995, Dayton police officer, Dineah Childs, was indicted for
participating in various drug trafficking offenses. Also indicted were her husband
Charles Childs, William Bailey (both police officers), and her cousin Sean Pauley.
According to the testimony at trial, defendant and her codefendants conspired on
several occasions to steal drugs from dealers and to resell the drugs on the street.
During a search of Charles’s desk at work, police discovered a series of audiotapes
that implicated Childs as a participant in the drug trafficking offenses.
{¶ 2} The audiotapes, which spanned a forty-day period, were recorded by
Charles with a voice-activated recorder attached to a phone in Childs’s home.
Childs was a party to most of these conversations and it is upon this evidence that
the counts against her are based. Following is a summary of the relevant portions:
{¶ 3} State’s Exhibit 23 is a recording of a conversation between Childs and
Charles, during which Charles asked Childs if Pauley wanted to buy any drugs.
SUPREME COURT OF OHIO
Charles stated that he had marijuana he was trying to get rid of and told Childs to
ask Pauley for the price of an ounce.
{¶ 4} State’s Exhibit 25 contains a conversation between Childs and Pauley
in which Childs assured Pauley that Charles was obtaining more drugs. In State’s
Exhibit 27, Childs told Pauley that all Charles had was “powder,” meaning cocaine,
but that he was looking for something else.
{¶ 5} In the conversation recorded in State’s Exhibit 33, Pauley instructed
Childs to tell Charles that he wanted his next order of drugs to be “uncut,” a drug
term referring to the pure form of a drug, but otherwise wanted to carry out the
deal in the usual manner.
{¶ 6} State’s Exhibit 37, which essentially encompasses Count 15, contains
two conversations between Childs and Pauley. In the second, Pauley told Childs to
tell Charles that he wanted “four,” to which Childs added that he meant four ounces.
Pauley then began discussing prices and stated that Charles would sell the drugs to
him for $680 an ounce and, in order to make a profit, Pauley would raise it to $750.
{¶ 7} State’s Exhibit 41, which supports Count 14, contains several
conversations. The first was between Childs and Charles, with Pauley’s voice
audible in the background. Childs asked Charles if he had anything for Pauley.
Charles questioned Pauley’s ability to pay, which Childs confirmed. Charles then
instructed her to go upstairs and see what he had, telling her there should be “a
thousand or right around 14 hundred, something like that.” Childs did so,
confirmed the amount, and then assured Charles that he would get his money. The
conversation was interrupted by an unrelated call, but when Childs called Charles
back, she told him that for this deal Pauley wanted to “work it,” meaning purchase
it on credit. Charles agreed to those terms.
{¶ 8} Based upon this and the remaining evidence presented at trial, Childs
was convicted of one count of engaging in a pattern of corrupt activity (Count 1)
and three counts of conspiracy in violation R.C. 2923.01: conspiracy to commit a
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pattern of corrupt activity under R.C. 2923.32(A)(1) (Count 2), conspiracy to
commit aggravated trafficking under former R.C. 2925.03(A)(2) (Count 14), and
conspiracy to commit aggravated trafficking under former R.C. 2925.03(A)(7)
(Count 15). The appellate court reversed the conviction on Count 1 as being against
the manifest weight of the evidence and as based upon insufficient evidence. Count
1 is not at issue in this appeal.
{¶ 9} The court also ruled that Counts 2, 14, and 15 were multiplicitous and
therefore merged into one; that Count 14 was fatally defective and the conviction
was reversed and remanded for a new trial; and that the conviction on Count 2 was
reversed as not being supported by sufficient evidence. Finally, the court reversed
and remanded the conviction on Count 15 for a determination of whether Childs
consented to the recording of the audiotapes in order to assess their admissibility.
The state now appeals the reversal of the convictions on Counts 2, 14, and 15.
{¶ 10} The cause is now before this court upon the allowance of a
discretionary appeal.
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Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and
Lynda K. Ashbery, Assistant Prosecuting Attorney, for appellant.
Charles A. Smiley, Jr., for appellee.
__________________
COOK, J.
{¶ 11} At issue in this appeal is whether the appellate court properly
reversed the convictions against Dineah Childs on the grounds of multiplicity of
convictions, defectiveness of the indictment, and inadmissibility of the supporting
evidence. For the reasons set forth below, we affirm the appellate court’s decision
as to Count 2, but reverse its disposition of Counts 14 and 15.
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I. Multiplicity
{¶ 12} In its first proposition of law, the state urges us to reverse the
appellate court’s merger of Counts 2, 14, and 15. Arguing that each count related
to a distinct conspiratorial agreement, the state contends that neither federal law,
R.C. 2941.25(A), nor 2923.01(F) requires these counts to be merged. Childs
responds that these counts related to a single conspiratorial agreement and are
therefore multiplicitous.
{¶ 13} In resolving this issue, we are mindful of the constitutional concern
underlying multiplicity. It has been said that the vice of a multiplicitous indictment
lies in the possibility of multiple punishments for a single offense in violation of
the cumulative punishment branch of the Double Jeopardy Clause of the Fifth
Amendment. See 1A Wright, Federal Practice & Procedure, Crim.3d (1999) 17,
Section 142.
{¶ 14} The Double Jeopardy Clause is not violated, however, where the
legislature has evinced an intent to permit multiple punishments for a single
offense. Thus, “[t]he real question is one of legislative intent, to be ascertained from
all the data available.” Id. at 17-20, Section 142. As the United States Supreme
Court has clarified, “[w]ith respect to cumulative sentences imposed in a single
trial, the Double Jeopardy Clause does no more than prevent the sentencing court
from prescribing greater punishment than the legislature intended.” Missouri v.
Hunter (1983), 459 U.S. 359, 366,
103 S.Ct. 673, 678,
74 L.Ed.2d 535, 542.
{¶ 15} Our inquiry in cases such as this, therefore, is limited to whether the
General Assembly intended to permit multiple punishments for the offenses at
issue. In Ohio, the primary legislative statement on the multiplicity issue is found
in R.C. 2941.25, concerning allied offenses of similar import. Known as Ohio’s
multi-count statute, that provision asks essentially whether the offenses correspond
to such a degree as to constitute the same offense.
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{¶ 16} R.C. 2941.25, however, is not the sole legislative declaration in Ohio
on the multiplicity of indictments. Depending upon the offense at issue, that section
must be read in concert with other legislative statements on the issue. R.C.
2923.01(F) is such a legislative statement. It sets forth an additional limitation upon
multiple punishments in the context of conspiracy offenses. Thus, we review the
conspiracy convictions against Childs in the context of both R.C. 2941.25 and
2923.01(F).
A. Counts 14 and 15: Conspiracy to Commit Aggravated Trafficking
{¶ 17} R.C. 2941.25(A) provides: “Where the same conduct by defendant
can be construed to constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such offenses, but the
defendant may be convicted of only one.” This statute tests whether “the elements
of the crimes ‘correspond to such a degree that the commission of one crime will
result in the commission of the other’ ” in such instances. If so, the crimes are
deemed offenses of similar import and may not be separately punished. State v.
Rance (1999), 85 Ohio St.3d 632, 638,
710 N.E.2d 699, 705, quoting State v. Jones
(1997),
78 Ohio St.3d 12, 13,
676 N.E.2d 80, 81. In applying this statute, “the
statutorily defined elements of offenses that are claimed to be of similar import are
compared in the abstract.” (Emphasis deleted.) Rance, at paragraph one of the
syllabus.
{¶ 18} Using this analysis, we conclude that the statutory elements of the
offenses contained in Counts 14 and 15 do not correspond to the extent required to
prohibit multiple punishments. Because the underlying offenses in each count
differ—Count 14 involves former R.C. 2925.03(A)(2), while Count 15 involves
former R.C. 2925.03(A)(7)—an element of each crime is unique to that particular
violation. Consequently, these offenses are of dissimilar import and may be the
subject of separate convictions, provided that they are not prohibited from such
under the additional limitation for conspiracies contained in R.C. 2923.01(F).
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{¶ 19} R.C. 2923.01(F) prohibits multiple convictions for single
conspiracies. That section provides: “A person who conspires to commit more than
one offense is guilty of only one conspiracy, when the offenses are the object of the
same agreement or continuous conspiratorial relationship.”
{¶ 20} Pursuant to this statute, analysis of whether conspiracy offenses are
separately punishable under R.C. 2923.01(F) requires a determination as to (1)
whether the offenses are the object of the same agreement, and (2) whether the
offenses are part of a continuous conspiratorial relationship. If either circumstance
exists, the offenses constitute one conspiracy and may not be separately punished.
{¶ 21} The “single agreement” portion of R.C. 2923.01(F) analyzes
whether the evidence supports the existence of one or multiple agreements. As
explained by the United States Supreme Court in Braverman v. United States
(1942), 317 U.S. 49, 53,
63 S.Ct. 99, 102,
87 L.Ed. 23, 28, where the evidence
reveals one agreement, that “agreement cannot be taken to be several agreements
and hence several conspiracies because it envisages the violation of several statutes
rather than one.”
{¶ 22} State courts interpreting statutes nearly mirroring our own have
employed a similar analysis. In Doolin v. State (Fla.App.1995), 650 So.2d 44, 45,
the defendant was charged with two counts of conspiracy: conspiracy to kidnap to
inflict bodily harm and conspiracy to commit aggravated battery. Holding that
these offenses could not be separately punished, the court reasoned that they arose
from one agreement. Specifically, no evidence established that the “conspiracy to
kidnap to inflict bodily harm was terminated and a separate conspiracy to commit
aggravated battery was thereafter agreed to by the co-conspirators.”
Id. Similarly,
in Jones v. State (Okla.Crim.App.1998),
965 P.2d 385, 386, co-conspirators agreed
to murder two individuals at the inception of their plan and the crime was therefore
chargeable as only one conspiracy.
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{¶ 23} Here, the evidence supports the existence of separate agreements as
to Counts 14 and 15. Unlike the situations described in Doolin and Jones, the
audiotapes reveal a series of agreements, rather than one initial agreement to
commit a particular series of offenses. In State’s Exhibit 37, for instance, Childs
conspired to sell four ounces of cocaine. Charged as Count 15, this conspiracy
involved separate negotiations that culminated in a distinctly identifiable agreement
for that particular sale. State’s Exhibit 41 marked the beginning of a new agreement
unrelated to the prior one. The conversation recorded there evidenced a conspiracy
between Childs and Charles to sell drugs to Pauley. Notably, at no time in any of
the prior tapes did the parties agree to or contemplate the future transactions that
would be undertaken. Thus, each sale was brought about by an individual
conspiratorial agreement.
{¶ 24} Having concluded that multiple agreements existed, we must also,
nevertheless, determine whether these agreements were part of an overall
continuing conspiratorial relationship under the second part of R.C. 2923.01(F).
Although we find scant judicial interpretation of this concept, we recognize the
relevant inquiry to be the extent to which the conspiracy embraces a common and
continuous goal.
{¶ 25} In Commonwealth v. Davis (Pa.Super.1997), 704 A.2d 650, 654,
where the overall objective of the conspiracy was to collect a drug debt, the
conspirators could not be separately convicted for their multiple agreements to rob
the victim by force and to beat him with such intensity as to cause his death.
Concluding that the charges of conspiracy to rob and conspiracy to murder were
multiplicitous, the court identified the “ ‘essential feature of the existing
conspiracy’ ” as a “ ‘common plan or scheme to achieve a common, single,
comprehensive goal.’ ”
Id., quoting Commonwealth v. Troop (1990),
391 Pa.Super.
613, 623,
571 A.2d 1084, 1090. Similarly, in State v. Whiteside (Feb. 10, 1987),
Franklin App. No. 86AP-325, unreported,
1987 WL 6532, distinct agreements to
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obtain guns over a period of time to be used during a planned gang shootout were
considered part of the conspirators’ overall goal, and therefore one conspiracy.
{¶ 26} Where co-conspirators committed a series of robberies, however, the
individual agreements to commit these robberies were not part of an overall,
ongoing conspiracy. Commonwealth v. Troop, 391 Pa.Super. at 624-625,
571 A.2d
at 1090. Rather, each robbery stemmed from a separate agreement to acquire
money in order to purchase cocaine.
Id. Consequently, the court allowed separate
convictions for each offense.
{¶ 27} We view the evidence in the instant case as supporting distinct
conspiracies rather than subagreements toward a common overriding objective.
Unlike the collection of the drug debt in Davis, these conspirators entered into
discrete conspiratorial agreements, each with its own short-term goal. Accordingly,
these crimes were permissibly charged as separate offenses under the continuous
conspiratorial relationship prong of R.C. 2923.01(F).
{¶ 28} Because Counts 14 and 15 satisfy each of the applicable statutory
requirements for multiple convictions, we conclude that they are separate offenses
for which separate convictions may be upheld.
B. Count 2: Conspiracy to violate RICO
{¶ 29} Count 2 charged Childs with conspiracy to violate R.C. 2923.32 by
engaging in a pattern of aggravated trafficking. The state argues that this count
may be punished separately from the conspiracies to commit aggravated trafficking
contained in Counts 14 and 15 because (1) the underlying offenses would have been
separately chargeable and (2) to hold otherwise would thwart RICO’s purpose to
enhance penalties where criminal enterprises are involved.
{¶ 30} We believe the conviction on Count 2 fails, however, even before
considering the issue of multiplicity. In resolving the multiplicity issue of Counts
14 and 15, we concluded that the evidence demonstrates that each drug sale was
the result of a separate agreement, a distinct conspiracy aimed solely toward that
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particular short-term goal, and that no single agreement or overall objective to
commit a series of offenses existed. This is also the interpretation of the evidence
argued by the state.
{¶ 31} Based upon that conclusion, however, we consider a conviction for
conspiracy to engage in a pattern of aggravated trafficking to be inconsistent with
the evidence. That is, we are unconvinced that the evidence could support both (1)
the existence of an agreement to engage in a pattern of aggravated trafficking and
(2) a lack of an agreement to commit several offenses of aggravated trafficking.
These concepts are irreconcilable, as a conspiracy to commit a pattern of aggravated
trafficking requires proof of a single agreement to commit a series of drug
offenses—precisely the interpretation of the evidence we reject above. We hold,
therefore, that the conviction on Count 2 was not supported by sufficient evidence,
and we affirm the appellate court’s decision to reverse on that count.
II. Sufficiency of Indictment
{¶ 32} In its second proposition of law, the state challenges the appellate
court’s conclusion that Count 14 was defective for failing to specify the type of
drug that was the subject of the aggravated trafficking conspiracy. Relying on this
court’s decision in State v. Headley (1983), 6 Ohio St.3d 475, 6 OBR 526,
453
N.E.2d 716, the appellate court reasoned that the identity of the controlled
substance is an element of the conspiracy to commit aggravated trafficking and
must be included in the indictment.
{¶ 33} The sufficiency of an indictment is subject to the requirements of
Crim.R. 7 and the constitutional protections of the Ohio and federal Constitutions.
Under Crim.R. 7(B), an indictment “may be made in ordinary and concise language
without technical averments or allegations not essential to be proved. The
statement may be in the words of the applicable section of the statute, provided the
words of that statute charge an offense, or in words sufficient to give the defendant
notice of all the elements of the offense with which the defendant is charged.”
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{¶ 34} An indictment meets constitutional requirements if it “first, contains
the elements of the offense charged and fairly informs a defendant of the charge
against which he must defend, and, second, enables him to plead an acquittal or
conviction in bar of future prosecutions for the same offense. … ‘Undoubtedly
the language of the statute may be used in the general description of an offence, but
it must be accompanied with such a statement of the facts and circumstances as will
inform the accused of the specific offence, coming under the general description,
with which he is charged.’ ” Hamling v. United States (1974), 418 U.S. 87, 117-
118,
94 S.Ct. 2887, 2907,
41 L.Ed.2d 590, 621, quoting United States v. Hess
(1888),
124 U.S. 483, 487,
8 S.Ct. 571, 573,
31 L.Ed. 516, 518.
{¶ 35} Citing Headley, Childs argues that, by omitting the specific
controlled substance, the indictment failed to state the elements of conspiracy to
commit aggravated trafficking under R.C. 2925.03(A)(2). While Headley did
require the specific substance to be identified in an indictment for aggravated
trafficking, we disagree that Headley controls the question of which elements are
necessary in an indictment for conspiracy to commit aggravated trafficking. The
nature of the controlled substance, while an element of aggravated trafficking, is
not an element of the conspiracy to commit that offense.
{¶ 36} Where the offense at issue is charged as a conspiracy, it is well
established that it is the elements of the conspiracy that must be provided:
“[C]onspiring to commit a crime is an offense wholly separate from the crime,
which is the object of the conspiracy.” United States v. Threadgill (C.A.5, 1999),
172 F.3d 357, 367. “Thus, we have consistently held that a conspiracy charge need
not include the elements of the substantive offense the defendant may have
conspired to commit.” Id. “The object crime, while important, is secondary, and
need not be described” with particularity. Commonwealth v. Cantres (1989),
405
Mass. 238, 241,
540 N.E.2d 149, 151.
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{¶ 37} Here, Childs does not contend that any of the statutory elements of
the conspiracy were insufficiently or incompletely set forth in the indictment.
Because we conclude that a conspiracy charge need not include the specific
controlled substance involved in the underlying offense, we hold that each element
of the offense was adequately charged.
{¶ 38} We also conclude that the indictment sufficiently notified Childs of
the charge against her to satisfy constitutional requirements. In holding the
indictment defective, the appellate court emphasized that the indictment failed to
inform Childs of the severity of the offense charged. While we agree that she was
entitled to know of the severity of the offense in order to adequately satisfy her right
to notice of the charge, we disagree that that information had to be expressly stated
in the indictment.
{¶ 39} Courts have consistently held that certain information need not be
specifically set forth in the indictment in order to be sufficiently provided to
defendants: “[A] valid indictment need not notify the defendant of the sentencing
possibilities to which he is exposed except in a general way.” Id.,405 Mass. at 241,
540 N.E.2d at 151.
{¶ 40} Thus, in State v. Burch (July 8, 1987), Summit App. No. 12896,
unreported, 1987 WL 14035, the indictment was considered sufficient where the
defendant was able to deduce certain information from the statements contained in
the indictment. There, the indictment failed to set forth the precise controlled
substance involved in the underlying crime for which the conspiracy charge was
issued. The defendants, however, were considered sufficiently informed that a
Schedule I or II drug was involved, since that information, while not expressly
stated in the indictment, could be determined from a reading of the indictment
together with the statute.
{¶ 41} We apply the same rationale here. The indictment stated that Childs
was charged with conspiracy to commit aggravated trafficking in violation of
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former R.C. 2925.03(A)(2), 145 Ohio Laws, Part III, 5655. Aggravated trafficking
is specifically defined in Section (C) of that statute as requiring a Schedule I or II
substance, with the exception of marijuana. That statute further states that
aggravated trafficking under Section (A)(2) is a felony of the third degree. Former
R.C. 2925.03(C)(2), 145 Ohio Laws, Part III, 5656. Pursuant to former R.C.
2923.01(J)(3), a conspiracy to commit this crime is a fourth-degree felony. 141
Ohio Laws, Part II, 3862. Accordingly, as in Burch, the indictment contained
sufficient information from which the necessary information—here the severity of
the offense and the category of substances involved—could be deduced. The
indictment was therefore sufficient and Childs’s conviction on that count stands.
III. Suppression of Audiotapes
{¶ 42} At the trial court level, Childs moved to suppress the audiotapes of
the conversations between herself and her husband, and herself and Sean Pauley.
Contending that these tapes were made in violation of R.C. 2933.52, Childs argued
that they were not properly admitted into evidence under R.C. 2933.62(A). The trial
court denied the motion and admitted the tapes, but the appellate court reversed that
decision on appeal. The appellate court ruled that the state had the burden of
proving whether the tapes were improperly obtained and specifically whether
Childs consented to the recording of the conversations. On that basis, it remanded
the issue to the trial court for determination of the existence of consent. The state
argues, however, and we agree, that Childs bore the burden of proving that the tapes
should be suppressed.
{¶ 43} Former R.C. 2933.52(A)(1) provided that “[n]o person purposely
shall … [i]ntercept … any wire or oral communication.” 142 Ohio Laws, Part
II, 2704. Under R.C. 2933.62(A), an illegally intercepted communication cannot
be used as evidence in court. However, an intercepted communication is not illegal
if it is obtained by someone who is not a law enforcement officer, provided that the
person is either (1) a party to the intercepted communication or (2) obtains the
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permission of one of the parties to the communication, and the purpose of the
interception is not to commit a crime, tort, or other injurious act. R.C.
2933.52(B)(4).
{¶ 44} Because the state argues the applicability of only the second prong
of that exception, we will limit our analysis to that section. Although Childs
testified that she never consented to the recordings, neither she nor the state
presented evidence as to whether Pauley consented. Because the “consent”
exception requires the consent of only one party to the conversation to render the
interception legal, determination of this issue is crucial to the tapes’ legality and
therefore their admissibility. Accordingly, given the failure to provide evidence on
this issue, its outcome turns upon which party bore the burden of proof.
{¶ 45} It has been said that the party seeking to suppress evidence bears the
burden of proof. See, e.g., Xenia v. Wallace (1988), 37 Ohio St.3d 216, 220-221,
524 N.E.2d 889, 894. In the particular context of Fourth Amendment searches and
seizures, the burden is upon the state if the contested evidence was obtained without
a warrant, but upon the defendant if the search or seizure was pursuant to a warrant.
United States v. Carhee (C.A.10, 1994),
27 F.3d 1493, 1496.
{¶ 46} Because the motion to suppress at issue here involved private rather
than governmental action, the Fourth Amendment is not implicated. See United
States v. Kennedy (D.Kan.2000), 81 F.Supp.2d 1103, 1112 (Fourth Amendment’s
protection against unreasonable searches and seizures proscribes only
governmental action). Instead, the motion rests solely upon an alleged violation of
Ohio’s wiretapping statute. The burden of proof has not yet been decided in this
specific context in Ohio. We consider federal law on this issue instructive.
{¶ 47} Where a party seeks to suppress evidence arguably obtained in
violation of the federal wiretapping statute, federal courts have placed the burden
of proof on that party. In United States v. Ross (C.A.8, 1983), 713 F.2d 389, for
instance, the defendant sought to suppress tapes of incriminating conversations
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under a provision prohibiting willful interceptions under the federal wiretapping
statute. That court determined that the burden of proving the existence of
willfulness to satisfy the exception rested upon the party seeking to suppress the
tapes. Id. at 391. Likewise, in United States v. Phillips (C.A.8, 1976),
540 F.2d
319, 326, the defendant bore the burden of proving that the tape was unlawfully
recorded to support his motion to suppress. See, also, United States v. Traficant
(N.D.Ohio 1983),
558 F.Supp. 996.
{¶ 48} We adopt this reasoning for cases concerning Ohio’s wiretapping
statute and hold that the party seeking to suppress evidence allegedly obtained in
violation of R.C. 2933.52(A)(1) bears the burden of proof on that issue.
Accordingly, Childs bore the burden of proving that the tapes should have been
suppressed and would have had to demonstrate that the tapes were made in violation
of the wiretapping statute. To do so would have required evidence that neither
party consented to the recording. Since Childs offered proof only that her consent
was not obtained, she failed to sustain that burden and the trial court properly denied
her motion to suppress.
IV. Conclusion
{¶ 49} Based upon the foregoing, we affirm the appellate court’s judgment
as to Count 2, but reverse its judgment as to Counts 14 and 15.
Judgment affirmed in part
and reversed in part.
MOYER, C.J., F.E. SWEENEY, PFEIFER and LUNDBERG STRATTON, JJ.,
concur.
DOUGLAS and RESNICK, JJ., concur in judgment.
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