[Cite as State v. Birdsong, 2014-Ohio-1353.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT 

LAKE COUNTY, OHIO 

STATE OF OHIO, : O P I N I O N 

 Plaintiff-Appellee, :

CASE NO. 2013-L-003

 - vs - :

EDMOND BIRDSONG, :

 Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 12 CR 

000118. 

Judgment: Affirmed. 

Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, 

Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 

44077 (For Plaintiff-Appellee). 

Brenna Lisowski, 2965 Yorkshire, Cleveland Heights, OH 44118 (For DefendantAppellant). 

CYNTHIA WESTCOTT RICE, J. 

{¶1} Appellant, Edmond Birdsong, appeals his conviction in the Lake County 

Court of Common Pleas, following a jury trial in which he was convicted of engaging in a 

pattern of corrupt activity and multiple counts of felony theft. Appellant argues the trial 

court committed plain error by not merging his predicate offenses with the offense of 

engaging in a pattern of corrupt activity. For the reasons that follow, we affirm. 
 2

{¶2} On February 27, 2012, appellant was charged in a ten-count indictment 

with engaging in a pattern of corrupt activity, a felony of the second degree; theft of 

blank checks, a felony of the fifth degree; and eight counts of theft by deception, 

felonies of the fifth degree, committed against various business establishments in Lake 

and Geauga Counties. Appellant pled not guilty. 

{¶3} Appellant’s jury trial was scheduled to begin on June 26, 2012. However, 

he failed to appear. The trial court ordered that a warrant be issued for his arrest. On 

July 15, 2012, appellant was arrested and transported to the Lake County Jail. The 

case proceeded to jury trial, which began on October 30, 2012. 

{¶4} It was undisputed at trial that appellant and Sanders developed a plan 

whereby appellant would steal checks and then they would pass them at various stores 

in Lake and Geauga Counties to obtain merchandise. They would then either pawn the 

stolen goods or sell them to people known by appellant to be looking for such 

merchandise. Sanders and appellant would split the cash evenly and then use it to buy 

drugs to satisfy their drug habits. 

{¶5} Raymond Reho testified that he works in Fairport Harbor. He said that, 

during a lunch break in the beginning of February 2011, he visited his cousin, who lives 

on Sixth Street in Fairport Harbor. At that time a male was staying at his cousin’s 

house, who said his name was Michael. Reho identified this male in court as appellant. 

{¶6} Reho said he had recently opened a checking account. The bank had 

given him five blank starter checks. The checks had his account number on them, but 

not his name or address. He was to fill in those items when cashing these checks. He 

kept them in his car and never used them. While Reho was visiting his cousin, 
 3

appellant went outside for a while. When Reho returned to his car to go to work, he 

noticed his cell phone was missing from his car. 

{¶7} Reho testified that, one week later, his bank contacted him and advised 

that three of his stolen checks had been used, two at Lake Erie Lawn and Garden and 

one at a gas station, the Painesville One Stop. He testified he had never been to either 

location. The name “John Sanders” was written and signed on the checks. Reho said 

he does not know a John Sanders, and did not write, sign, or pass any of these checks. 

He said he never gave Sanders or anyone else permission to use them. Reho reported 

the theft to the Fairport Harbor Police Department. 

{¶8} Dawn Eustache, cashier at the Lake Erie Lawn and Garden store in 

Mentor-on-the-Lake, testified that on February 15, 2011, two males came into the store 

and selected a chainsaw to buy. One of the males, who identified himself as John 

Sanders, did most of the talking, and paid for the saw using a blank check for $762. 

Sanders wrote in his name and address on the top left-hand corner of the check and 

signed the check. Ms. Eustache later learned that the check had been stolen and was 

refused payment. 

{¶9} Robert Hall, manager of the Lake Erie Lawn and Garden store in 

Painesville, testified that two days later, on February 17, 2011, two males came in the 

store wanting to buy a chainsaw and a leaf blower. Both customers were involved in 

the conversation with Hall. Hall sold them a chainsaw and a leaf blower for $786. One 

of the males, John Sanders, used a starter check that did not have his name on it so 

Hall asked for two forms of identification, which Sanders provided. Sanders printed his 
 4

name and address on the check and signed it. Hall said a few days later, he was 

notified the check was refused payment. 

{¶10} Wendy Carlson testified she lives at 311 Seventh Street in Fairport Harbor 

with her husband Chris. She said that on August 7, 2010, her purse, which contained 

her wallet, driver’s license, and checkbook, was stolen from her car, which was parked 

in their driveway. She reported the theft to the Fairport Harbor Police and notified her 

bank. She provided the check numbers for the ten missing checks and the bank put a 

hold on them. She said her checking account was a joint account with her husband, 

and both of their names were on the checks. 

{¶11} Six months later, on February 22, 2011, Ms. Carlson learned that some of 

her stolen checks had recently been presented for payment. She identified the checks 

passed in this case as having been stolen from her purse. She said she had never 

been to any of the stores where her checks had been passed and she did not pass any 

of them. She said she did not give permission to appellant, John Sanders, Christine 

Turcoliveri, or anyone else to use her checks. 

{¶12} Chris Carlson also identified the checks that had been passed. He said 

that each was signed using his name, but he did not write or sign any of them. He said 

he had never been to any of these stores and he did not give anyone permission to use 

the checks. 

{¶13} Officer Michael Wilson of the Fairport Harbor Police Department testified 

that on August 7, 2010, he met Ms. Carlson at her residence at 311 Seventh Street. 

She reported her car had been entered and her purse was stolen. He said that Sixth 

Street is the next street behind Seventh Street and that the residence at 311 Sixth 
 5

Street is directly behind the Carlson residence. The officer said that appellant was then 

living at 311 Sixth Street, which was directly behind the Carlsons’ residence. 

{¶14} Dan Johnson, owner of First Quality Power Place in Middlefield, Geauga 

County, testified that on February 22, 2011, two males came into the store and bought 

two chainsaws. Mr. Johnson identified appellant in court as one of the two males. Mr. 

Johnson said the male who identified himself as Chris Carlson paid for the saws with a 

check in the amount of $768. That male signed the check as Chris Carlson. Mr. 

Johnson asked for identification. The male purporting to be Carlson said he did not 

have his identification with him, but he offered his “wife” Wendy Carlson’s driver’s 

license as identification and said she was outside in the car. A few days later, Mr. 

Johnson learned that the male who wrote the check was not Chris Carlson and that the 

check was refused payment. 

{¶15} Eric Artim, manager of Hemley Hardware in Montville, Geauga County, 

testified that on February 22, 2011, two males came into the store and bought a plasma 

cutter, which is used to cut steal. The two males picked out the item and came to the 

register together. One male claiming to be Chris Carlson wrote a check for the cutter in 

the amount of $1,729. The other male carried the box containing the cutter outside the 

store. The two males then entered a red car in the parking lot and drove away. A 

surveillance video captured the transaction. John Sanders testified the video showed 

him and appellant at the counter; Sanders writing the check; appellant carrying the 

cutter out of the store; both accomplices entering Sanders’ girlfriend’s red car; and the 

car driving away. A few days later, Mr. Artim was notified the check was refused 

payment. 
 6

{¶16} Brian Tornifolio of Airgas in Middlefield testified that on February 22, 2011, 

he was at the counter when two males came in the store. They said they were looking 

for a welder. Mr. Tornifolio identified appellant in court as one of the males. After 

looking for awhile, they purchased a welder. The male who had been doing most of the 

talking wrote the check for $701, signing his name as Chris Carlson. 

{¶17} During the sale, the two males noticed a plasma cutter. “Carlson” said 

they would think about it and, if they decided to buy it, they would come back for it. The 

next day, November 23, 2011, both men returned to the store and bought the plasma 

cutter. At that time they also bought a welding hood. The total price for these items 

was $1,391, for which “Carlson” wrote a check. A few days later, Mr. Tornifolio learned 

both checks were refused payment. 

{¶18} Clarence Miller, part-owner of C & R Stihl in Middlefield, testified that on 

February 23, 2011, two men came in the store together and bought two chainsaws. 

One of the men paid for the saws with a check he signed as Chris Carlson in the 

amount of $1,729. The two males were standing at the counter together during the 

purchase. A few days later, Mr. Miller received notice from their bank that the check 

had been refused payment. Mr. Miller sent a letter to Chris Carlson. Carlson’s wife 

called. She said the check was stolen and gave Mr. Miller the contact information for 

the investigating officer. 

{¶19} John Sanders testified that on February 23, 2011, he and appellant went 

to Haueter’s Lawn and Sport Center in Middlefield attempting to “purchase” a generator. 

He said the store did not have one so they were unable to obtain it at that time. He and 
 7

appellant had the store manager call the Haueter’s store in Chardon to see if that store 

had a generator for them. They said it would be in the store in a few days. 

{¶20} Thomas Haueter, owner of Haueter’s Lawn and Sport Center, testified that 

on February 26, 2011, a male entered the Chardon store alone, introduced himself as 

Chris Carlson, and said he was there to pick up the generator. He wrote a check for 

$2,128, signing his name as Chris Carlson. The generator was then loaded in his car. 

{¶21} Mr. Haueter deposited the check in the company’s account. 

Subsequently, he received notice that the check was refused payment. Mr. Haueter 

said he was contacted by a Geauga County Sheriff’s detective a week or so later, who 

advised him that their generator was at Geauga Pawn in Newbury, but that he would 

have to pay the amount the pawnshop paid for it. Mr. Haueter paid the pawnshop $300 

for his generator. He also sustained a loss of $500 from having to sell it as used. 

{¶22} Christine Turcoliveri, Sanders’ girlfriend, testified that she also passed one 

of the Carlsons’ checks. She said that in February 2011, she drove appellant and 

Sanders to the Smoke Shop in Middlefield to buy five cartons of cigarettes. She wrote a 

check for over $200 for the cigarettes, using one of Wendy Carlson’s checks and also 

using Wendy Carlson’s driver’s license as identification. She said that after she bought 

the cigarettes, appellant and Sanders sold them for cash and used the money to buy 

drugs, which the three of them used. She said that appellant gave her the Carlsons’ 

checkbook and Ms. Carlson’s driver’s license to use as identification. 

{¶23} Todd Tingler, Sanders’ nephew, testified he is presently at NEOCAP 

following his conviction of grand theft and passing bad checks. Tingler said he passed 

the checks at Chardon Rental in Chardon and at Mentor Rental in Painesville shortly 
 8

before Sanders and appellant committed the thefts involved in this case. He said the 

checks he passed were from the Carlsons’ account and he got them from Sanders and 

appellant. Tingler said he used the money he received from passing these checks to 

buy drugs and he then used the drugs with Sanders and appellant. 

{¶24} Tom Boles, who is another nephew of Sanders and Tingler’s brother, 

testified he is also at NEOCAP following his conviction for passing bad checks. He said 

the checks he used were stolen from a John Krause, and that Sanders and appellant 

provided the checks to him. Boles said that he, Sanders, appellant, and Christine 

Turcoliveri were involved in stealing checks, using them to obtain merchandise, selling it 

to obtain cash, and then using the money to buy drugs. He said his role was to pass 

bad checks to obtain merchandise from places that included Concord Rentals, Handy 

Rentals, and Aaron’s Rentals, and then to sell the merchandise. He said he committed 

these crimes with them between January and March 2011. He said that Sanders and 

appellant asked people what they wanted and they would go to stores and get those 

items using stolen checks. He said that on one occasion, he got a Play Station 3 using 

a bad check. Sanders then took him to a house in Fairport Harbor where they picked 

up appellant. The three of them then sold the play station and used the money to buy 

drugs. 

{¶25} Christine Turcoliveri testified that she is now serving time at NEOCAP 

following her conviction of identify fraud committed against Wendy Carlson, theft, and 

forgery. She said she drove appellant and Sanders to each of the stores they “hit” in 

her red Chevrolet Cavalier. She said this was her role in these crimes. 
 9

{¶26} Turcoliveri said that appellant stole Reho’s starter checks from Reho’s car. 

She said that after appellant stole the checks, he called Sanders and said he had some 

checks. She and Sanders picked him up and they started to use Reho’s checks. 

{¶27} Turcoliveri said she drove appellant and Sanders to the Lake Erie Lawn 

and Garden stores in Mentor-on-the-Lake and Painesville where they used Reho’s 

checks. She said that appellant and Sanders “planned” to go in both stores, get specific 

merchandise they were looking for, and then sell it to people appellant knew. She said 

they sold the merchandise to one of appellant’s friends in Painesville. They then went 

to buy drugs with the money. 

{¶28} Turcoliveri testified that appellant told them he stole the Carlsons’ checks 

from their car. Appellant and Sanders decided to use these checks at various stores in 

Geauga County. She drove Sanders and appellant to the stores they hit in that county. 

Sanders and appellant then pawned or sold the merchandise, split the money, and used 

it to buy drugs. 

{¶29} Turcoliveri said that on February 23, 2011, she drove Sanders and 

appellant to Haueter’s in Middlefield to buy a generator. She said they were unable to 

get a generator at that location so they had the manager call the Haueter’s store in 

Chardon and ask him if they had a generator there. The Chardon manager said it 

would be in the store in a few days. Then, on February 26, 2011, she drove Sanders to 

the Chardon Haueter’s and he bought the generator. Sanders and Turcoliveri then took 

it to a pawnshop in Geauga County and pawned it. They used the money to buy drugs. 

She said that, although appellant was not with them at that time, he: (1) “was involved 

in trying to get [the generator] ordered from the Chardon store;” (2) provided the Carlson 
 10

check Sanders used to buy the generator; and (3) let them keep the Carlson checkbook 

and Wendy’s driver’s license, which they used to steal the generator. 

{¶30} John Sanders testified he is serving a seven-year prison sentence 

following his guilty plea to engaging in a pattern of corrupt activity and multiple counts of 

theft for his role in these crimes. 

{¶31} Sanders said he has been close friends with appellant since high school, 

and he “loves him like a brother.” He said that he, appellant, and Turcoliveri committed 

each of the instant crimes during the month of February 2011. 

{¶32} Sanders said Turcoliveri drove him and appellant to the businesses they 

hit. She stayed in the car while they went inside. He said he and appellant agreed to 

engage in this activity and they agreed about the roles each would play. He said they 

agreed that appellant would provide the checks. Sanders would use the checks to buy 

the merchandise. Appellant would convert the merchandise into cash by selling it to 

people he knows or they would pawn it. They would then split the cash equally and use 

it to buy drugs. Sanders said he was ‘obviously a co-conspirator.” He said they went in 

each store together with the intent to “buy” something with checks they knew were 

stolen. 

{¶33} Sanders said appellant told him he went into Reho’s car and stole his 

checks. Sanders said he wrote his own name on the Reho checks because they were 

starter checks with no name or address on them. He and appellant used Reho’s checks 

at the Lake Erie Lawn and Garden stores in Mentor-on-the-Lake and Painesville. 

{¶34} Sanders said that appellant also provided the Carlson checks, which he 

had also stolen. With those checks they went to the Middlefield area looking for 
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construction-type equipment because appellant knew people who were interested in 

those items. He said that, in general, appellant kept the Carlson checkbook until they 

entered each store to make a purchase. Just before entering a store, appellant would 

give him the checkbook and Wendy Carlson’s driver’s license. Then, after leaving each 

store, Sanders would return the checkbook to appellant. 

{¶35} Appellant did not present any witnesses denying any aspect of the state’s 

evidence, which was therefore undisputed. 

{¶36} Following the presentation of the evidence, the jury returned a verdict, 

finding appellant guilty of all counts as charged in the indictment. 

{¶37} At appellant’s sentencing, the trial court noted that appellant has an 

extensive criminal record. Appellant was adjudicated as a juvenile delinquent on 

several occasions. For example, in 1988, appellant was found to be delinquent for 

discharging a gun and attempted theft. In 1989, he was found delinquent for two counts 

of criminal trespass. In 1990, he was adjudicated for aggravated burglary, grand theft, 

and complicity to grand theft, and committed to D.Y.S. for one year. In 1992, he was 

adjudicated for assault. The court noted that appellant had 17 juvenile cases. As an 

adult, appellant was convicted of two counts of trafficking in drugs in 1994. He was 

convicted of possession of drug paraphernalia in 1995. For this offense, appellant was 

sentenced to prison for one year. He was convicted of domestic violence twice in two 

separate cases in 1996. He was convicted of fleeing and eluding in 1997. He was 

convicted of passing bad checks in 2003. He was convicted of receiving stolen property 

in 2004. He was again convicted of possession of drug paraphernalia in 2005. He was 

convicted of engaging in a pattern of corrupt activity, breaking and entering, and four 
 12

predicate theft offenses in 2006. For these crimes, appellant was sentenced to three 

years in prison. After his release, he was convicted of theft in 2010. He was convicted 

of breaking and entering in 2011. Also in 2011, he was convicted of receiving stolen 

property in three separate cases. In 2011, appellant was sentenced to prison twice for 

a total of 14 months. The trial court noted that appellant has had 15 criminal cases as 

an adult. 

{¶38} The court sentenced appellant to six years in prison for engaging in a 

pattern of corrupt activity (Count 1) and seven months for the theft of blank checks 

(Count 2), the two terms to be served consecutively. The court sentenced appellant to 

120 days each for theft as charged in Count 3 (Lake Erie Lawn and Garden), Count 4 

(Lake Erie Lawn and Garden), Count 5 (Airgas), and Count 6 (First Quality Power 

Tools), each term to be served concurrently to each other and concurrently to the other 

prison terms. The court sentenced appellant to seven months for theft as charged in 

Count 7 (Hemley Tools), which was to be served consecutively to the other sentences. 

The court also sentenced appellant to eight months each for theft as charged in Counts 

8 and 9. These terms were to be served concurrently to each other, but consecutively 

as one eight-month sentence to the other prison terms. Finally, the court sentenced 

appellant to eight months for theft as charged in Count 10 (Haueter’s Lawn and Sport 

Center), which was to be served consecutively to the other prison terms. Appellant’s 

aggregate sentence was eight and one-half years in prison. The trial court also 

sentenced appellant in a second pending criminal case, in which he pled guilty to one 

count of possession of criminal tools, to six months, which was to be served 

concurrently to the sentence in the instant case. 
 13

{¶39} Appellant appeals his conviction and sentence, asserting three 

assignments of error. For his first assigned error, he alleges: 

{¶40} “The evidence was insufficient to sustain a guilty verdict on count one.” 

{¶41} Sufficiency is a test of adequacy that challenges whether the state’s 

evidence has created an issue for the jury to decide regarding each element of the 

offense. State v. Boyle, 11th Dist. Portage Nos. 2004-P-0099, 2004-P-0100 and 2004-

P-0101, 2005-Ohio-5493, ¶22. A “sufficiency” argument raises a question of law as to 

whether the prosecution offered some evidence concerning each element of the 

charged offense. State v. Windle, 11th Dist. Lake No. 2010-L-0033, 2011-Ohio-4171, 

¶25. “An appellate court’s function when reviewing the sufficiency of the evidence to 

support a criminal conviction is to examine the evidence admitted at trial to determine 

whether such evidence, if believed, would convince the average mind of the defendant’s 

guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph 

two of the syllabus; State v. Schlee, 11th Dist. Lake No. 93-L-082, 1994 Ohio App. 

LEXIS 5862, *14 (Dec. 23, 1994). In reviewing the sufficiency of the evidence, the 

“relevant inquiry is whether, after viewing 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, supra. Circumstantial evidence and 

direct evidence inherently possess the same probative value. Id. at 272. 

{¶42} R.C. 2923.32(A)(1), Ohio’s version of the federal Racketeering Influenced 

and Corrupt Organizations Act (“RICO”), provides: “No person * * * associated with * * * 

any enterprise shall conduct or participate in the affairs of the enterprise through a 

pattern of corrupt activity * * *.” 
 14

{¶43} Thus, in order for appellant to be convicted of engaging in a pattern of 

corrupt behavior, the state had the burden of proving that he, while associated with an 

enterprise, participated in the affairs of the enterprise through a pattern of corrupt 

activity. State v. Perry, 11th Dist. Lake No. 2011-L-125, 2012-Ohio-4888, ¶96. 

{¶44} Appellant does not dispute the state proved a pattern of corrupt activity. 

He argues only that the state failed to present sufficient evidence of an enterprise. 

{¶45} R.C. 2923.31(C) defines “enterprise” as “any individual * * * or any * * * 

group of persons associated in fact although not a legal entity.” The statute further 

provides that an enterprise “includes illicit as well as licit enterprises.” 

{¶46} In analyzing the requirements of an enterprise under the analogous 

federal RICO statute, the United States Supreme Court held in Boyle v. United States, 

556 U.S. 938, 946 (2009), as follows: 

{¶47} From the terms of RICO, it is apparent that an association-in-fact 

enterprise must have at least three structural features: [1.] a 

purpose, [2.] relationships among those associated with the 

enterprise, and [3.] longevity sufficient to permit these associates to 

pursue the enterprise’s purpose. As we succinctly put it in [United 

States v.] Turkette, 452 U.S. 576], an association-in-fact enterprise 

is “a group of persons associated together for a common purpose 

of engaging in a course of conduct.” 452 U.S., at 583. 

{¶48} This court followed Boyle in Perry, supra. In Perry, the defendant and a 

male named Ivery broke into five different homes in a one-month period and stole 
 15

various items of personal property from each. In holding that the state proved the 

existence of an enterprise, this court stated: 

{¶49} Though the statute describes what an enterprise may include, it 

does not actually define what an enterprise requires. Such an 

omission has been previously recognized by appellate courts in 

Ohio. To better understand this statute, the Twelfth Appellate 

District recently analyzed the definition of “enterprise” and adopted 

a “streamlined” definition from the federal case of Boyle[, supra], 

noting “‘an association-in-fact enterprise is simply a continuing unit 

that functions with a common purpose.’” State v. Barker, 12th Dist. 

Warren No. CA2011-08-088, 2012-Ohio-887, ¶10, quoting Boyle at 

2245-2246. 

{¶50} Based on the evidence adduced at trial involving the various 

dealings of Ivery and appellant, there is a sufficient basis on which 

to conclude that the duo engaged in an enterprise which carried out 

the common purpose to engage in theft. Perry, supra, at ¶98-99. 

{¶51} Applying these principles here, first, appellant and Sanders engaged in an 

enterprise that carried out a common purpose to pass stolen checks to multiple 

businesses to steal merchandise that could be quickly converted to cash to buy drugs. 

Second, there were relationships between those associated with the enterprise. These 

relationships were both criminal and personal. The roles of the associates in these 

crimes were well-defined. Appellant stole the checks and sold much of the 

merchandise to people he knew who were looking for the specific merchandise he and 
 16

Sanders stole. Sanders did most of the talking, and, according to him, “manipulated 

and connived [his] way into convincing people to accept these checks at every stop 

[they] made.” Turcoliveri had the car and drove Sanders and appellant to the stores they 

decided to hit. Moreover, the associates had personal relationships with each other. 

Sanders said he has known appellant since high school and he loves him like a brother. 

Turcoliveri is Sanders’ girlfriend. Tingler and Boles are Sanders’ nephews. Third, the 

associates’ crimes were committed in a one-month period, long enough to permit them 

to pursue the enterprise’s purpose. We also note that appellant was convicted of nine 

theft offenses arising from his involvement in this enterprise. Moreover, his accomplice, 

Sanders, pled guilty to engaging in a pattern of corrupt activity and numerous theft 

offenses as a result of his involvement in these crimes. Further, Turcoliveri pled guilty 

to identity fraud, forgery, and theft. We therefore hold the state presented sufficient 

evidence to establish the existence of an enterprise. 

{¶52} Appellant’s first assignment of error is overruled. 

{¶53} For his second assigned error, appellant contends: 

{¶54} “The evidence was insufficient to sustain a guilty verdict on count ten.” 

{¶55} Appellant argues the evidence was insufficient to convict him of Count 10, 

the theft of the generator from Haueter’s on February 26, 2011, because he was not 

physically present at the time. Appellant ignores, however, the compelling evidence 

that demonstrates his active participation in this theft. Turcoliveri testified that on 

February 23, 2011, she drove Sanders and appellant to Haueter’s in Middlefield to buy 

a generator. Sanders testified that he and appellant planned to purchase the generator 

that day using a Carlson check. Turcoliveri testified that Sanders and appellant were 
 17

unable to get one at the Middlefield store so they had the manager call the Haueter’s 

store in Chardon to see if he could get a generator for them. The Chardon store 

manager said it would be in the store in a few days. Then, on February 26, 2011, 

Turcoliveri drove Sanders to the Chardon Haueter’s where he “bought” the generator 

using a Carlson check. The state thus presented sufficient evidence that appellant 

actively participated in stealing the generator from Haueter’s. 

{¶56} Appellant’s second assignment of error is overruled. 

{¶57} For his third and final assignment of error, appellant alleges: 

{¶58} “The theft charges were allied offenses of similar import with the charge of 

engaging in a pattern of corrupt activity, and it was plain error not to merge counts two 

through ten with count one.” 

{¶59} Appellant argues the trial court committed plain error in not merging the 

nine predicate theft offenses with engaging in a pattern of corrupt activity. He concedes 

he failed to raise this issue in the trial court. Therefore, he waived all but plain error. 

See e.g. State v. Comen, 50 Ohio St.3d 206, 211 (1990). Plain error exists when a trial 

court did not merge a defendant’s allied offenses of similar import. State v. Underwood, 

124 Ohio St.3d 365, 2010-Ohio-1, ¶31. 

{¶60} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Supreme 

Court of Ohio set forth a new analysis for determining whether multiple offenses are 

allied offenses of similar import. Under the new two-part test, the court considers the 

defendant’s conduct and answers two questions. Id. at ¶44. The first question is 

“whether it is possible to commit one offense and commit the other with the same 

conduct.” Id. at ¶48. If it is found that the offenses can be committed by the same 
 18

conduct, the court must then determine whether the offenses were committed by the 

same conduct, i.e., “a single act, committed with a single state of mind.” Id. at ¶49. If the 

answer to both questions is yes, the offenses are allied offenses of similar import and 

must be merged. Id. at ¶ 50. 

{¶61} If, however, “the commission of one offense will never result in the 

commission of the other, or if the offenses are committed separately, or if the defendant 

has a separate animus for each offense, then the offenses will not merge.” Id. at ¶51. 

{¶62} Appellant’s contention that the predicate offenses should be merged with 

his RICO violation, has been consistently rejected by Ohio courts, both before and after 

Johnson. In State v. Moulton, 8th Dist. Cuyahoga No. 93726, 2010-Ohio-4484, a preJohnson case, the Eighth District noted that “state and federal courts around the country 

have uniformly found that a RICO violation is a discrete offense that can be prosecuted 

and punished separately from its underlying predicate offenses.” Id. at ¶38. 

{¶63} Ohio courts have similarly rejected this argument post-Johnson. See State 

v. LaSalla, 8th Dist. Cuyahoga No. 99424, 2013-Ohio-4596 (theft offenses not allied 

offenses with the RICO offense); State v. Montoya, 12th Dist. Clermont No. CA2012-02-

015, 2013-Ohio-3312 (drug possession and trafficking not allied offenses with the RICO 

offense); State v. Thomas, 3d Dist. Allen Nos. 1-11-25 and 1-11-26, 2012-Ohio-5577 

(trafficking in drugs did not merge with the RICO offense); State v. Dodson, 12th Dist. 

Butler No. CA2010-08-191, 2011-Ohio-6222, ¶67, discretionary appeal not allowed at

131 Ohio St.3d 1486, 2012-Ohio-1143 (trafficking in marijuana did not merge with the 

RICO offense as RICO requires an additional state of mind to form an enterprise); State 

v. Miranda, 10th Dist. Franklin No. 11AP-788, 2012-Ohio-3971, ¶12, affirmed at 2014-
 19

Ohio-451 (trafficking in marijuana predicate offense did not merge with the RICO 

offense). 

{¶64} This court also held that predicate theft and uttering offenses do not 

merge with a RICO violation in State v. Dudas, 11th Dist. Lake Nos. 2008-L-109, 2008-

L-110, 2009-Ohio-1001, ¶45, 49. This court stated: 

{¶65} A violation of R.C. 2923.32 requires more than just the commission 

of multiple designated acts of corrupt activity. R.C. 2923.32 

requires * * * association with an enterprise and participation in the 

affairs of the enterprise through a pattern of corrupt activity. Such 

pattern must include both a relationship and continuous activity, as 

well as proof of the existence of an enterprise. Thus, the conduct 

required to commit a RICO violation is independent of the conduct 

required to commit designated acts of corrupt activity. 

{¶66} Further, R.C. 2923.32 was enacted to criminalize the “pattern of 

criminal activity,” and not the underlying predicate acts. Its 

application depends on the existence of a “pattern of criminal 

activity” that violates an independent criminal statute. * * *. Id. at 

¶46-47. 

{¶67} Ohio courts have relied on legislative intent in finding that a RICO offense 

did not merge with the predicate offense. LaSalla, supra, at ¶28. R.C. 2923.32 was 

intended to provide enhanced sanctions to deal with the unlawful activities of those 

engaged in organized crime. Id., citing State v. Thrower, 62 Ohio App.3d 359, 377 (9th 

Dist.1989). Further, the Tenth District in Miranda, supra, stated: “[T]he General 
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Assembly intended to permit separate punishments for engaging in a pattern of corrupt 

activity and the underlying predicate crimes.” Id. at ¶ 12. Accord Dudas, supra. 

{¶68} As the Eighth District stated in LaSalla, supra, “The RICO statute is 

intended to separately criminalize the use of an enterprise for the purpose of 

systematically committing illicit activities. The purpose of the statute would be frustrated 

by merging the RICO offense with the predicate offense.” Id. at ¶28. 

{¶69} Thus, the Third, Eighth, Tenth, Eleventh, and Twelfth Districts have held 

that predicate offenses are not allied offenses with a RICO offense. Significantly, 

appellant has failed to cite even one case holding that predicate offenses must be 

merged with a RICO violation. 

{¶70} We therefore hold the trial court did not commit plain error in not merging 

the predicate theft offenses with appellant’s RICO violation. 

{¶71} Appellant’s third assignment of error is overruled. 

{¶72} For the reasons stated in the opinion of this court, appellant’s assignments 

of error lack merit and are overruled. It is the judgment and order of this court that the 

judgment of the Lake County Court of Common Pleas is affirmed. 

TIMOTHY P. CANNON, P.J., 

DIANE V. GRENDELL, J., 

concur.