The trial court continues to look at the admissibility of the evidence, and whether it prejudicially erred in its earlier findings and verdicts. The defendants attempt to expose any loopholes in the law that they can find. On some counts, the defendants were vindicated but on others, the trial court upheld its previous judgments.
It was held, for example, that there was a concerted effort to expand the heroin distribution network, and there was ample evidence of the existence of a criminal syndicate organized to traffic in heroin.
Bill Scott the heroin trafficker acts as the front man and/or fake licensee for Intercasino, an online casino owned by Cryptologic and their major source of revenues.
Read the court extracts here ……………….
Below are extracts from the court records, 100% original, not edited
"VIII. Where the sentences imposed contravene constitutional and statutory requirements this court must modify the sentences imposed to conform to the law. (Case 8883).
"4. Prejudicial error was committed by the trial court when it held house bill 300 unconstitutional and sentenced the defendant under the old penalties provided in the former revised code section. (Case 8890).
"5. The trial court erred in holding house bill 300 unconstitutional and sentencing the defendant under the old penalties provided for former revised code section 3719.20(H) in counts 5, 6 and 7 of the indictment. This was prejudicial error. (Case 8892).
"5. The trial court erred in sentencing defendant to ten to twenty years on counts five and six of the indictment. [*48] (Case 8950)."
The trial court followed State v. Morris, Lucas Co. No. L-76-142 (6th Dist. Ct. App., 1977) and ruled subsection 3 of Am. H.B. 300 unconstitutional. Sentences on counts five, six, seven, fifteen and sixteen were imposed according to the former penalty statute. The judgment of the Sixth District Court of Appeals was later reversed in State v. Morris, 55 Ohio St. 2d 101 (1978). The sentences for the convictions left standing under the former drug laws must now be either vacated or modified. State v. Bradford, 55 Ohio St. 2d 116, 118 (1978). We will leave the initial determination of these issues to the trial court.
The following cases are remanded: (1) Case 8878, for vacation or modification of the sentence imposed for conviction on count five; (2) Case 8883, for vacation or modification of the sentences imposed for conviction on counts five and fifteen; (3) Case 8890, for vacation or modification of the sentences imposed for conviction on counts five, fifteen and sixteen; (4) Case 8950, for vacation or modification of the sentence imposed for conviction on count five.
SECTION B - CASE 8878 (JEROME POWELL)
ASSIGNMENTS OF ERROR 1, 2, 3 and 6
"1. The trial [*49] court prejudicially erred in overruling defendant's motion for a judgment of acquittal at the close of the state's case as to: (A) count one; (B) count five (Tr., XV, 3153).
"2. The trial court prejudicially erred in overruling defendant's motion for a judgment of acquittal at the close of the defendant's case as to: (A) count one; (B) count five (Tr., XVI, 3344-45).
"3. The verdict is against the manifest weight of the evidence as to (A) count one; (B) count five.
"6. The trial court prejudicially erred in allowing the indictment and verdicts on counts one and five to place the defendant in double jeopardy in violation of the United States Constitution and the Ohio Constitution."
A judgment of acquittal cannot be entered where, after reviewing the evidence in a light most favorable to the state, it is determined that reasonable minds can reach different conclusions whether each material element of the crime has been proved beyond a reasonable doubt. Where, however, reasonable minds must have a reasonable doubt concerning proof of any material element of the crime, a judgment of acquittal must be entered. State v. Bridgeman, 55 Ohio St. 2d 261 (1978); State v. Benedum, [*50] Summit No. 9061 (9th Dist. Ct. App., May 10, 1979). A conviction is not against the manifest weight of the evidence,
"*** where there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt."
State v. Eley, 56 Ohio St. 2d 169 (1978).
The trial court properly overruled the motions for judgment of acquittal on count five. The conviction is not against the manifest weight of the evidence. State witness Thomas Wilson testified that he sold heroin for James Williams from late 1972 through September of 1973, when Wilson was arrested. In 1973, Williams told Wilson that Powell wanted to "start dealing." Williams asked whether Powell would be a "substantial risk," but Wilson said Powell would be "all right." Thereafter in 1973, Wilson and Powell would go to each other for heroin when Williams had no heroin available. State witness Alfred Oaks sold heroin for James Williams in 1973 until Oaks' arrest on March 26, 1974. When Williams had no heroin available, he told Oaks to see either Thomas Wilson or Powell. Wilson's arrest in September of 1973 serves to place Williams' instructions to [*51] Oaks in 1973. Heroin was discovered during the search of Wilson's residence at 395 West Cedar Street andOaks was in possession of heroin when arrested. The testimonies of Oaks and Wilson are corroborative of each other. See, State v. Vorys, supra.
Powell's residence at 464-1/2 Douglas Street was searched May 9, 1974. Heroin, cocaine, lactose and other drug paraphernalia were seized. In July, 1975, Powell was sentenced for prohibited use of a dwelling house (R.C. 3719.101) and possession of a narcotic drug (R.C. 3719.09). The trial court entered a judgment of acquittal on count six on the grounds that the former conviction under R.C. 3719.101 was a conviction of the substantive offense forming the basis of the offense charged in count six. See, R.C. 2923.01(G),(K). Powell says that his conviction on count five is barred by double jeopardy principles or R.C. 2923.01(G), based on his earlier conviction under R.C. 3719.09.
We reject this argument. The double jeopardy clause is no bar to convictions for both conspiracy to commit a specific offense and the commission of the specific offense. Pinkerton v. United States, 328 U.S. 640, 643-644 (1946). There being no previous judgment [*52] of acquittal, the collateral estoppel rule of Ashe v. Swenson, 397 U.S. 436 (1790) is inapplicable. Nor do we view Powell's possession of narcotic drugs in 1974 as the ultimate object of the conspiracy to possess narcotic drugs. See, State v. Geriak, Summit Nos. 8524, 8525 (9th Dist. Ct. App., December 21, 1977). The conspiracy was in existence prior to 1974, and substantial overt acts in furtherance of the conspiracy had been done by persons with whom Powell conspired. Thus, R.C. 2923.01(G) is inapplicable.
Concerning the period subsequent to January 1, 1974, there is ample evidence of the existence of a criminal syndicate organized to traffic in heroin. It is necessary, however, that there be sufficient proof that Powell had the specific intent to establish or maintain the syndicate or to facilitate any of its activities . This element of scienter requires sufficient proof that Powell knew, or had reasonable cause to know, of the existence of the syndicate, notwithstanding a lack of knowledge as to the identity of one or more of the syndicate's members. See, R.C. 2923.04 (D).
At most, the evidence shows Powell was selling heroin for James Williams at 464-1/2 Douglas Street [*53] and was bringing heroin to Loraine Diamond in the Marysville Reformatory from February through March of 1974 (state exhibits 16E, 16A and 9E). There is nothing to show that Powell knew, or should have known, that Williams was part of a syndicate, even if it is inferred that Powell was aware of Alfred Oaks as another distributor of heroin for Williams. We, therefore, find that the jury must have a reasonable doubt concerning Powell's knowledge of the existence of the syndicate and, thus, of his specific intent to establish or maintain the syndicate or to facilitate any of its activities. The motions for judgment of acquittal on count one should have been granted and the verdict is against the manifest weight of the evidence.
ASSIGNMENT OF ERROR FOUR
"The trial court prejudicially erred in admitting the hearsay testimony of state's witnesses: (A) Thomas Wilson (Tr., VI, 1381-82); (B) Carol Brantley (Tr., VIII, 1878)."
Thomas Wilson testified that, in 1973, and several months after he had commenced selling heroin for James Williams in late 1972, Williams told him that Powell wanted to "start dealing," and asked whether Powell would be a "substantial risk." Carol Brantley [*54] testified that, in late 1973 or early 1974 and while in the reformatory, she met Loraine Diamond, who, at some point, told Brantley she was Powell's common law wife and that she received heroin from Powell (Diamond gave some of this heroin to Brantley). Powell says the admission of the extra judicial statements of Williams and Diamond cannot be justified by the co-conspirator exception to the hearsay rule. There were no objections to the testimony of either Wilson or Brantley, but we find the question raised by Powell is before us. We base this conclusion on the ruling made prior to the testimony of Alma Jones which had a continuing vitality, that statements and declarations of Jones would be admitted prior to a prima facie showing of conspiracy subject to such showing at a later time.
State v. Osborne, 49 Ohio St. 2d 135, 145 (1976) holds:
"***
"Where the existence of a conspiracy has been established by other evidence, an extra judicial statement of a co-conspirator, made in furtherance of the objective of that conspiracy, is admissible as an exception to the hearsay rule."
The admission of such statements does not violate the defendant's right of confrontation. State [*55] v. Carter, 30 Ohio St. 2d 280 (1972), second paragraph of the syllabus.
The extra judicial statement of James Williams was properly admitted. A conspiracy to possess narcotic drugs had been established prima facie. Williams' statement was made in furtherance of the ongoing conspiracy since it shows concerted effort to expand the heroin distribution network.
We cannot determine with any degree of accuracy whether Diamond's statement was made in 1973 or 1974. It cannot, therefore, support the convictions for conspiracy to possess narcotic drugs or engaging in organized crime. Thus, admissibility of the statement is moot.
