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Tuesday, August 19, 2014

Mark Pickens v. State of Ohio, Case no. 2010-1406
Hamilton County Court of Common Pleas

State of Ohio v. Jordan Beverly, Case no. 2013-0827
Second District Court of Appeals (Clark County)

State of Ohio v. Kenneth Ruff, Case no. 2013-1441
First District Court of Appeals (Hamilton County)


Death Penalty

Mark Pickens v. State of Ohio, Case no. 2010-1406
Hamilton County Court of Common Pleas

Noelle Washington and Mark Pickens met at work and began dating occasionally in fall 2008.
On May 31, 2009, Washington reported to Cincinnati police that Pickens had raped her, apparently after she had told him she planned to move to Tennessee where her sister lived. The next night, Washington, her 9-month-old son, and a 3-year-old girl Washington was babysitting were murdered.

Pickens was found guilty in April 2010 of the rape and aggravated murder of Washington and the aggravated murder of the two children. The court sentenced Pickens to death.

Pickens has exercised his right to appeal his convictions and death sentence directly to the Supreme Court. In his appeal, Pickens’ attorneys have made 10 claims of legal and procedural error during his trial as grounds for the court to reverse his convictions and sentence.

Pickens’ claims
Among the arguments Pickens’ attorneys make in their brief to the court:

The prosecuting attorneys’ responses
On behalf of the state, attorneys from the Hamilton County Prosecutor’s Office responded with several arguments:

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Mark Pickens: Daniel Burke, 513.946.3701

Representing the State of Ohio from the Hamilton County Prosecutor’s Office: Philip Cummings, 513.946.3012

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What Criteria Must Be Met to Prove Existence of an “Enterprise” in State RICO Case?

State of Ohio v. Jordan Beverly, Case no. 2013-0827
Second District Court of Appeals (Clark County)

ISSUE: To prove the existence of an “enterprise” in a pattern of corrupt activity offense, is the state required to show that the organization had a structure separate and distinct from the corrupt activity in which it engages?

BACKGROUND:
Jordan Beverly and another man looked for houses in and near Clark County to rob. If no one answered at a residence when they knocked on a door, the men broke in, stole items, and then sold the property for cash.

In January 2011, they were caught by police and charged with thefts and burglaries that occurred during a three-month period. After a jury trial, Beverly was found guilty of multiple counts of burglary and receiving stolen property, several other crimes, and one count of engaging in a pattern of corrupt activity. The court sentenced him to 66 years, 6 months in prison.

Beverly appealed to the Second District Court of Appeals, which reversed his conviction for engaging in a pattern of corrupt activity, holding that the evidence was insufficient to support that offense.

The state appealed the decision to the Ohio Supreme Court, which agreed to hear the case.

According to attorneys for the state, the prosecutors claimed at trial that Beverly and his partner worked as a team and were two “worker bees” in an ongoing pattern of home thefts.

The case involves Ohio’s version of the federal Racketeer-Influenced and Corrupt Organizations (RICO) law. In their brief, the state’s attorneys write, “Enterprise includes ‘any individual, sole proprietorship, partnership, limited partnership, corporation, trust, union, government agency, or other legal entity’ and extends to ‘any [other] organization, association, or group of persons associated in fact. R.C. 2923.31(C) (emphasis added).” The state’s attorneys argue that the Second District wrongly decided that Ohio law requires an “enterprise” to have a structure that is independent of the pattern of corrupt activity.

In addition, the attorneys contend that when the General Assembly changed the statutes from a focus on organized crime to “corrupt activity,” it was expanding the law from traditional and highly organized crime to all enterprises posing a risk of ongoing criminal activity. They assert that the Second District’s decision instead improperly narrows the scope of the statutes.

Following a 1981 U.S. Supreme Court decision (United States v. Turkette), federal and state courts split over whether an enterprise had to have a structure separate from the underlying criminal acts for a pattern of corrupt activity conviction, the state’s attorneys argue. However, the attorneys claim that the U.S. Supreme Court resolved this issue in Boyle v. United States (2009).

Boyle renounced the argument that ‘the existence of an enterprise may never beinferred from the evidence showing that persons associated with the enterprise engaged in a pattern of racketeering activity,’” they write in their brief. “Instead, it held that prosecutors can prove the enterprise element by showing these features: ‘a purpose, relationships among those associated with the enterprise, and longevity sufficient to permit these associates to pursue the enterprise’s purpose.’”

They maintain that the prosecutors proved that Beverly and his partner were the “brute force” in an enterprise, and the “crimes comprised a structured plan involving out-of-county vehicle thefts, coordinated house burglaries, and hasty fencing of the property for cash. Beverly and his associate were part of an enterprise with the minimal structure needed to sustain a conviction under Ohio’s Corrupt Practices Act.”

The attorney for Beverly concedes that the Second District may have mistakenly required the enterprise to have a separate structure. In spite of this, though, he argues, the appellate court also spelled out the correct elements for proving that Beverly engaged in a pattern of corrupt activity and concluded that there was insufficient evidence.

The attorney also contends that Boyle did not overrule Turkette, but rather clarified the decision.

“While it may be questionable to what degree the requirement that an enterprise have a structure separate and apart from the pattern of corrupt activity survives Boyle, the remainder of the Second District’s analysis regarding the three-part inquiry into the structure of the enterprise is accurate, and its reliance on the ‘separate and apart’ language in no way undermines the totality of its holding,” Beverly’s attorney writes in his brief.

He also contests the state’s arguments that the evidence at trial supported the conviction. The “worker bees” reference implies that others were involved in the crimes, which was not shown by the evidence, Beverly’s attorney asserts. He maintains that the state cites statements made by the prosecutor during opening statements, yet points to no trial evidence that backs its claim that an enterprise existed in this case.

“[T]here is simply no evidence in the record to support these conclusions, other than the fact that Beverly was convicted of burglarizing a number of homes in Clark County and elsewhere,” he writes. “There was no evidence presented at the trial that the ‘out-of-county vehicle thefts’ were part of any structured plan, that the ‘coordinated house burglaries’ were anything more than knocking on the door to see if anyone was home, and the ‘hasty fencing of property for cash’ was anything more than the defendants making a quick buck on stolen property. Further, there was no evidence offered at trial to establish in any way that Beverly and the co-defendant ‘were part of an enterprise.’”

Beverly’s attorney concludes that the state failed to show that Beverly and his accomplice were involved in any “continuing association-in-fact enterprise that functioned with a common purpose.”

An amicus curiae brief supporting the state’s position has been submitted by the Cuyahoga County Prosecutor’s Office.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing the State of Ohio: Eric Murphy, 614.466.8980

Representing Jordan Beverly: Marshall Lachman, 937.743.9443

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Should Aggravated Burglary and Rape Convictions Be Merged?

State of Ohio v. Kenneth Ruff, Case no. 2013-1441
First District Court of Appeals (Hamilton County)

ISSUE: Are crimes of aggravated burglary and rape allied offenses and of similar import?

BACKGROUND:
Kenneth Ruff was convicted of rape and aggravated burglary of three women, attempted rape of a fourth woman, and sexual battery of a minor for crimes committed between 2002 and 2009. Ruff was sentenced to 25 years in prison in three of the cases and 15 years for the two other cases with his sentences to run consecutively.

Ruff appealed his convictions to the First District Court of Appeals, arguing the rape and aggravated burglary charges are allied offenses of similar import so the charges should have been merged.

The First District Court of Appeals agreed with Ruff “because the state relied upon the same conduct to prove both offenses.” Citing Ohio Supreme Court case State v. Johnson (2010), the appeals court concluded that the trial court erred when it imposed consecutive sentences.

“This court has understood Johnson to mean that if the evidence adduced at trial reveals that the state relied upon the same conduct to support the two offenses, and that the offenses had been committed neither separately nor with a separate animus as to each, then the defendant is afforded the protection of R.C. 2941.25, and the trial court errs in imposing separate sentences for the offenses,” the appeals court opinion stated.

The court said had Ruff been convicted of simple burglary instead of aggravated burglary then his convictions would not have been merged with the rape crimes.

“We simply apply the law. And unless and until the Supreme Court sees fit to reconsider its holding in Johnson, we will not shirk our duty to adhere to its holdings,” the court concluded.

The dissent disagreed: “If the average person were asked what Ruff did, he or she would respond that Ruff broke into the victims’ homes and raped them – two offenses. He or she would easily and logically understand that Ruff could properly be punished for both of them.”

Attorneys from the Hamilton County Prosecutor’s Office appealed the case to the Supreme Court, contending that several appeals courts across Ohio have conflicted on this issue.

In their brief to the Supreme Court, the prosecutors state that the Eighth, Tenth, and Twelfth District Court of Appeals have issued opinions where aggravated burglary and rape were not allied offenses of similar import.

“Rape is not incidental to aggravated burglary, and therefore these crimes are not allied offenses,” the prosecutors write. “Moreover, as any rape or burglary victim will tell, the import of these crimes is very different. Reason and common sense must return to the law of merger.”

They agree with the dissent from the First District.

“Rape is a crime against a person,” the prosecutors assert. “It is an intimate, sexual violation. Burglary is a property crime; a crime against the dwelling house, and a breach of the sanctity of one’s home. It is complete upon entry in the building. The import of these crimes is not the same.”

In response, Ruff’s attorney argues that the convictions should have been merged. The attorneys claim that the Fourth, Ninth, and Tenth District Court of Appeals have found “it was possible to commit rape and aggravated burglary with the same conduct, therefore, they were of similar import.”

“It is clear from the testimony that the sole purpose (or animus) that Appellee went into the victims’ homes was to commit the act of rape; it was not to trespass. Since there was no separate animus to commit the rape and aggravated burglary, based upon Appellee’s conduct, then the offenses were truly allied,” Ruff’s attorney writes.

An amicus curiae brief supporting the State of Ohio’s position has been submitted by the Cuyahoga County Prosecutor’s Office. The Ohio Public Defender’s Office has filed an amicus brief supporting Ruff.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing the State of Ohio from the Hamilton County Prosecutor’s Office: Rachel Curran, 513.946.3091

Representing Kenneth Ruff: Michaela Stagnaro, 513.824.8972

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.

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