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STATE OF OHiO,

IN THE SUPREME COURT OF OHIOSTATE OF OHIO

Plaintiff : AppellaIIt,

V.

ALLEN D. HONEYCUTT,

Defendant-Appellee.

SUPREME COURT CASE No. 2014-0342

DISCRETIONARY APPEAL FROMWARREN COUNTY COURT OFAPPEALS, TWELFTH APPELLATEDISTRICT

APPELLEE, ALLEN HONEYCUTT'S MEMORANDUM IN RESPONSETO APPELLANT'S MEMORANDUM IN SUPPORT OF .IURISDICTION

DAVID P. FORNSHELL (0071582)Warren County Prosecuting AttorneyMICHAEL GREER (0084352)Assistant Prosecuting AttorneyWarren County Prosecutor's Office500 Justice DriveLebanon, Ohio 45036513-695-1325Facsimile: 513 -695 -2962Counsel for Appellant

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WILLIAM R. GALLAGHER (0064683)Arenstein & Gallagher114 East 8"' StreetCincinnati, 0hio 45202513-651-5666Facsimile: 513-651-5688Counsel for Appellee

ELIZABETH CON]KIN (0064678)Of CounselArenstein & Gallagher114 East 8^' Street^ncinnati, Ohio 45202S^ 3-651-5666gacsimile: 513-651-5688^`^ounsel for Appellee

CLERK OF COURT

TABLE OF CONTENTS

EXPLANATION OF WI-IY LEAVE TO APPEAL SHOULD BE DEI+lIED ....................... I

STATEMENT OF THE CASE AND FACTS ............................................. ...................2

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW... .. ......... . ...................................... 5

Ap ellant's Pro os'ition of Law: Did the Warren County Court of Appeals,Twelfth Appellate District, err as a matter of law when, it added a new element to theEngaging stati2te by amending the definition of "Enterprise" and limiting it to"businesslike entities" and when the Twelfth District adopted the federal operationsand means test2 ........................................... .. . .. ..........................................................5

Authorities Cited

State of Ohio v. Justin Baker, 2013-Ohio2398 (12th Dist) Leave toAppeal denied 2013 -1164 ................................. ...... . . ..... ....................................... ..1,9State v Bartrurrm, 2009-Ohio-355 (O'Donnell, .I., dissenting) ....................................................6State v. I-lampton, 134 Ohio St.3d 447, 2012-Ohio-5688, 983 N.E.2d 324............. ..... ......... 2,9State v. Honeycutt, 2014-Ohio-352 (Case No. CA2013-02-018)........ .. ......... . ................. paasimState v. Noling, Slip Opinion No. 2013-Ohio-1764 (O'Donnell, J., dissenting) ......................1,6Williamson v. Ruhich, 171 Ohio St. 253, 168 N.E..2d 876 (1960) .... ....................................6State v. Sifercl, 141 Ohio App.3d 103, 2002-Ohio-680 1, T43 (3rd Dist.) ...................................8

Ohio Const. Art. IV, § (E)(2)(e) .................................................... .... ....... ..........................6

S.Ct.Prac.R. 7.08(I3)(4) ...............................................................................................................1

R.C. 2923.32(A)(1)....... ....>.... ......,....... ...... ..........................................................................4,7

CONCLU SION ....................................................... ..... .................... ..................................9

CERTIFICATE OF S ER V ICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..10

EXPLANATION OF iaV^IY LEAVE TO APPEAL SHOULD NOT BE GRANTED

The Twelfth District's opinion was a fact-dependent analysis involving Ohio's venue

statute, a well settled area of law. As in State of Ohio v. ,Iustin Baker, Case No. 2013-1164,

where this Court declined to accept jurisdiction of the State's appeal pursuant to S.Ct.Prac.R.

7.08(B)(4), nothing about this case warrants granting the State leave to appeal to the Ohio

Supreme Court.

The State accuses the Twelfth District of changing the law regarding "engaging", by

redefining "enterprise" as a "businesslike entity" and by adopting the federal operations and

means test. (State's Brief, at p. 1) A few pages later, however, the State admits, "The Twelfth

District never used the term `businesslike entity' nor did it state it was adding a new element to

Engaging or redefining `enterprise' ..." (State's Brief, at p. 6) Perhaps that is because the Twelfth

District reversed the jury's verdict against Mr. Honeycutt solely because the State violated Mr.

Honeycutt's constitutional and statutory rights to be prosecuted in the venue where his crimes

allegedly occurred.

Contrary to the State's claim, the Twelfth District did not create new law and did not

apply incorrect law. The Twelfth District revievN=ed the evidence, applied the proper law and

issued a 14-page Decision, finding the State had failed to meet its burden to prove beyond a

reasonable doubt Mr. Honeycutt had committed any crime in Warren County. As in Baker, the

State's sole Proposition of Law does not propose new or clarified law. Instead, it alleges the

Twelfth District erred by reversing the jury's verdict against Mr. Honeycutt. This Court,

however, is not an error-correction courk. Its .role is to "clarify confusing constitutional questions,

resolve uncertainties in the law, and address issues of public or great general interest." State v.

Noling, Slip Opinion No. 2013-Ohio-1764, par. 63 (ODonnell, J., dissenting). If this Court were

to accept jurisdiction over this appeal, its role would not be clarifying constitutional questions,

resolving legal uncertainties, or addressing issues of public or great general interest. Instead, its

role would be correcting error that does not exist.

Like Baker, the Honeycutt case was about venue, an area of law that is svell-settled in

Ohio. State v. IHampton, 134 Ohio St3d 447, 2012-Ohio-5688, 983 N.E.2d 324. Although Mr.

Honeycutt raised several i ssues in his appeal to the Twelfth District, the only error the appellate

court addressed was whether the evidence at trial was sufficient to establish venue in Warren

County. After declaring the evidence insufficient, the Twelfth District declined to address Mr.

Honeycutt's remaining errors as moot. In the absence of any legitimate issue appropriate for this

Court's review, there is no justification for exercising jurisdiction over a case that involves no

repercussions for any Ohioans other than the parties. Accepting the State's appeal in this case,

will do nothing to clarify jurisprudence involving the issue of venue in future criminal

prosecutions.

STATEMENT OF THE CASE AND FACTS

A. Statement ®t'the Case

A Warren County, Ohio grand jury indicted Mr. Honeycutt Baker on eight marijuana-related

charges. Despite having no evidence Mr. Honeycutt committed a crime in Warren County, the

State chose to prosecute Mr. Honeycutt in Warren County.l'he jury found Mr. Honeycutt guilty

on all counts. On appeal, the Twelfth District found the State did not meet its burden to prove

venue in Warren County was proper, and therefore, reversed the verdict, vacated Mr.

Honeycutt's convictions and discharged Mr. Honeycutt.

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B. Statement of Facts

In August 2011, the Warren County Drug Task Force (WCDTF) began investigating

Tyler Pagenstecher on suspicion of drug trafficking. The police discovered Pagenstecher was

selling marijuana to other juveniles in the Mason, Warren County, Ohio area. Officers

determined Pagenstecher's supplier was Michael Lopez. Lopez in turn purchased his marijuana

from Cody and Stacy Lampe. The Lampes grew their own marijuana for distribution in

Norwood, Harnilton County, Ohio, and also purchased marijuana from Justin Baker. Baker

operated multiple grow operations, including a "grow house" on Noble Avenue in Hamilton,

Butler County, Ohio and a "warehouse grow" on Creek Road in Blue Ash, Hamilton County,

Ohio. The Creek Road warehouse was leased in Honeycutt's name and contained over 380

marijuana plants.

In January 2012, Pagenstecher agreed to assist the task force by arranging a buy from

Lopez of his usual purchase of four ounces of marijuana. On January 13, 2012, Pagenstecher told

Lopez to meet him at a Walmart in Warren County, Ohio. Members of task force were waiting

for Lopez, and he was immediately apprehended. Lopez agreed to assist the task force, and on

February 1, 2012, arranged a buy from the Lampes at their home in Hamilton County, Ohio. The

Lampes were subsequently detained by the WCDTF.

The Lampes also agreed to assist the task force. Cody Lampe agreed to wear a wire to

allow the task force to listen in on a conversation he had with Baker. Following his conversation

with Cody Lampe, Baker left the bar and traveled to the Creek Road warehouse in Hamilton

County, Ohio. Members of the WCDTF followed Baker and observed him enter the warehouse.

T'he warehouse was subsequently placed under surveillance. A short time later, a warrant to

search the warehouse was issued.

On February 17, 2012, the warrant was executed on the warehouse. Officers recovered

38,000 granis of marijuana and numerous tools used in the cultivation of marijuana from the

warehouse. Vlhile executing the warrant, Honeycutt was standing inside the locked gate to the

warehouse. In his possession were keys that opened not only the gate to the entrance of the

warehouse, but also the doors to the building where the marijuana was being grown. Inside

Honeycutt's truck, officer's found a small amount of marijuana, receipts to Home Depot and

Dayton Hydroponics stores, a drug ledger detailing two separate drug harvests and the amount

collected from such harvests, and the lease, rent receipts, and water and electricity bills for the

warehouse.

Honeycuttwas arrested and indicted on one count of trafficking in marijuana, one count

of possession of marijuana, one count of cultivation of marijuana, one count of possession of

criminal tools, and one count of engaging in. a pattern of corrupt activity. Following a fouur-day

jury trial held in January 2013, Honeycutt was convicted on all counts and was sentenced to

eight years in prison.

C. Court of Appeals Reversed Mr. Honeycott's Convictions Based on Improper Venue

Mr. I-loneycutt appealed his convictions based on, inter alia, being convicted in an improper

venue. The Twelfth District Court of Appeals reversed Mr. Honeycutt's convictions. State v.

Honeycutt, 2014-Ohio-352 (Case No. CA2013-02-018).

By indicting Mr. Honeycutt on a charge of engaging in a pattern of corrupt activity in

violation of R.C. 2923.32(A)(1), the state alleged Mr. Honeycutt directly or indirectly conducted

or participated in a corrupt activity with a group of persons associated-in-fact to traffic marijuana

in Warren County. In support of its claim, the state produced evidence Mr. Honeycutt and Baker

cultivated marijuana in the Creek Road warehouse, Baker sold marijuana to the Lampes, the

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Lampes sold marijuana to Lopez, Lopez sold marijuana to Pagenstecher, and Pagenstecher sold

marijuana to minors and an undercover officer in Warren County. According to the state, an

element of engaging in a pattern of corrupt activity occurred when Pagenstecher sold marijuana

in Warren County, thereby providing venue in Warren County. Honeycutt, 2014-Ohio-352 at par.

22.

In its review of the Record, the Twelfth District detexmined "the state failed to prove beyond

a reasonable doubt Mr. Honeycutt was a direct or indirect participant in the corrupt activity of a

group of persons, associated-in-fact, conducting the affairs of an enterprise in Warren County.

Specifically, the Twelfth District noted: (1) there was no evidence the drugs the Lampes sold to

Lopez originated from an enterprise comprised of Baker and Honeycutt, (2) there was no

evidence tying Honeycutt to Baker's other grow operations, (3) there was no evidence the

marijtian.a Baker sold to the Lampes, later sold to Lopez, was marijuana cultivated at the Creek

Road warehouse, the only location tying Honeycutt directly to Baker, and (4) there was no

evidence any marijuana from the Creek Road warehouse was sold in Warren County, Ohio.

Honeycutt, 2014-Ohio-352 at par. 29b.

ARGUMENT IN RESPONSE TO PROPOSITION OF LAW

Appellant's Proposition of Law: Did the Warren County Court of Appeals,Twelfth Appellate District, err as a matter of law when, it added a new element to theEngaging statute by amending the definition of "Enterprise" and limiting it to"businesslike entities" and when the Twelfth District adopted the federal operationsand means test?

Despite this Court's refusal to accept jurisdiction in Baker, the State seeks leave to appeal

the Twelfth District's decision in Honeycrttt, a virtually identical decision. Although worded

slightly differently, the basis for the State's claim of jurisdiction in Honeycutt is the same as the

argument it set forth in Baker. The State attempted, but failed, to establish jurisdiction in this

Court by arguing the Twelfth District had instituted a more difficult standard for the State to

prosecute defendants for engaging in a pattern of corrupt activity. Baker, Case No. 2013-

1164.This time, the State claims the Twelfth District added another element to the engaging

statute and adopted the federal operations and means test. (State's Brief, at p. 5) Regardless of

the manner of presentation, the State's appeal is nothing more than an assignment of error. As

this Court is not an error-correcting court, this appeal is inappropriate for this Court's review.

State v. Noling, Slip Opinion No. 2013-Ohio-1764, par. 63 (O'Donnell, J., dissenting).

A. This Court has no Jurisdiction to Review the Twelfth District's Decision

The Ohio Constitution gives the Ohio Supreme Court discretionary jurisdiction to review a

Court of Appeals decision in "cases of public or great general interest." Ohio Const. Art. IV, §

(B)(2)(e). The Ohio Supreme Court, however, does not exercise discretionary jurisdiction merely

to correct a lower court's ruling or to answer questions of interest primarily to the parties.

Williarn.ron v. Rubich (1960), 171 Ohio St. 253, 254; State v. Bartrum, 2009-Ohio-355, T131

(O'Donnell, J., dissenting).

In its Decision in Honeycutt, the Twelfth District held the State failed to prove beyond a

reasonable doubt Hon:eycutt was a direct or indirect participant in the corrupt activity of a group

of persons associated-in-fact conducting the affairs of an enterprise in Warren County.

Honeycutt, 2014-Ohio-3 52, 1123-24. The court further held, "Even when broadly construing the

language of R.C. 2923.32, the record demonstrates that the state failed to prove there was a

structure that revealed Honeycutt acting together with others for the sale of marijuana in Warren

County." Id. In reaching it decision, the Twelfth District employed precedent f-rom this Court and

appellate courts throughout Ohio, properly determining I-toneycutt did not commit any crime or element

of a crime in Warren County.

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1. The Twelfth District Required the State to Prove Only Established Factors

a. The Twelfth District did not Redefme Enterprise

Unsuccessful in establishing jurisdiction in its appeal to this Court in Baker, where it

argued the Twelfth District required proof of a conspiracy to establish the existence of an

enterprise, the State now asserts the Twelfth District required proof the enteiprise and the actions

of the various participants were `businesslike'." (State Brief at p. 7) There is no evidence,

however, this alleged requirement of the Twelfth District exists. In fact, the State admits, "The

Twelfth District never used the term "businesslike entity", nor did it state it was adding a new

element or redefining `enterprise'; ..." (State Brief at p. 6)1Vloreover, it is clear the Twelfth

District confined its review to whether Honeycutt engaged in a pattern of corrupt activity in

Warren County.

First, the appellate court stated, "Even when broadly construing the language of R.C.

2923.32, the record demonstrates the State failed to prove there was a structure that revealed

Honeycutt acting together with others for the sale of marijuana in Warren County." Honeycutt,

2014-C3hio-352, T 23. Holding the State failed to demonstrate Honeycutt and Baker formed an

enterprise with others (i.e., Lopez or Pagenstecher) for the trafficking of marijuana in Warren

County, the Twelfth District concluded nothing in the record showed that Pagenstecher or Lopez,

the only two individuals who acted within Warren County, conducted or participated in conduct

that pertained to Honeycutt's enterprise, rather than their own affairs. Id

Second, the Twelfth District concluded, as it did in Baker, the parties did not have the

common purpose of making money for the same enterprise. Honeycutt, 2014-Ohio-352, T 24.

Rather, the evidence revealed each individual had his own separate and distinct "business"

venture when selling marijuana, and each individual participated in his oun affairs. Id. The

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parties were not involved in each other's business affairs, such as setting prices or assigning

customers or territories. Id. The court emphasized no evidence showed the alleged enterprise

participants "joined together to make money for the same enterprise." Icl. (emphasis in original).

Finally, the Twelfth District stated, "I'here is no conduct, conspiracy, or element of control

attributed to Honeycutt placing his enterprise or any of his associates in Warren County." Id.

Other than accusing the Twelfth District of amending the statutory defmition of

enterprise, the State offers no support for this claim. That the appellate court used the word

"business"1 in its opinion does not mean it "added new elements to constrict the concept of

association-in-fact enterprise - linliting the criminal enterprises to `businesslike entities' and

limiting the State's use of the engaging statute". In the absence of any evidence to the contrary,

the is no legitimate ground for reviewing the Twelfth District's conclusion the State violated Mr.

Honeycutt's constitutional and statutory rights to be prosecuted in the venue where his crimes

allegedly occurred.

b. The Twelfth District did not Apptv the Operations and Management Test

The State argues the Twelfth District required the State to prove the defendants

participated in each other's businesses by setting prices, assigning customers, assigning

territories and exercising some degree of control over each other's activities. (State Brief, at p. 8)

Like its claims against the Twelfth District in Baker, the State mischaracterizes the appellate

court's opinion. The Twelfth District explicitly held the members of an enterprise need not know

the identity, or even the number of his confederates. .Honeycutt, 2014-Ohio-352,T28, fn 6. Even

so, the State does have to "prove the members were voluntarily connected to the pattern of

corrupt activity comprising the enterprise." Id. citing State v. Serd, 141. Ohio App.3d 103, 2002-

' Merriam-Webster.com defmes enterprise as .....a business organization...

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Ohio-6801, ¶43 (3rd Dist.). To establish "enterprise", the State needed to prove Lopez and

Pagenstecher voluntarily participated in or were associated with organized conduct for the

purpose or goals of an enterprise existing among Honeycutt, Baker and the Lampes. Id. at ¶30, fn

8. In its review of all the evidence, the appellate court found the State did not prove the parties

functioned as separate parts to form a whole, with a shared, common purpose that Honeycutt

engage in the sale of.marijuana in Warren County. Honeycutt, 2014-Ohio-352, ¶29.

2. The Twelfth District Correctly Reversed Based On Improper Venue

A conviction is improper unless the State proves the crime occurred in the county where

the indictment was returned. State v. HarnptUn, 134 Ohio St.3d 447, 2012-Ohio-5688, 983

N.E.2d 324, 120. Despite having two established venues2, the State chose to indict Honeycutt in

Warren County, a venue whether neither Honeycutt nor any or any of his associates committed a

crime. The State's bad choice does not justify violating Honeycutt's constitutional right to be

tried in a proper venue. Id. at ¶24; Honeycutt, 2014-Ohio-352, T,33; State v. Baker, 20 1. 3-Ohio-

2398 at T38.

CONCLUSION

The Ohio Constitution affords a defendant certain unalienable rights, including the right

to be tried in the county in which the alleged offense occurred. The state may not prosecute a

defendant in a venue if it is unable to prove beyond a reasonable doubt an offense or an element

of an offense occurred within that venue. The Twelfth District engaged in a fact-dependent

inquiry and applied the proper law before fmding Honeycutt had been tried in an improper

venue. If this Court were to accept jurisdiction over this appeal, its role would not be clarifying

2 The Twelfth District conceded, "[I]t is abundantly clear that Honeycutt, by himself or through his associate, Baker,engaged in a pattern of corrupt activity in Butler and Hamilton Counties, no element of this offense occurred inWarren County." Honeycutt, 2014-Ohio-352, f,32.

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constitutional questions, resolving legal uncertainties, or addressing issues of public or great

general interest. Accepting the State's appeal in this case, will do nothing to clarify jurisprudence

involving the issue of venue in future criminal prosecutions. In the absence of any legitimate

issue appropriate for this Court's review, there is no justification for exercising jurisdiction over

this case,

Submitted,

WILLIAM R. G AWAGHER (0064683)Arenstein & Gallagher114 E. 8th StreetCincinnati, Ohio 45202513-651-5666bill@arensteingallagher.comCounsel for Appellee, Allen Honeycutt

ELIZABETH CONKIN (0064678)Of CounselArenstein & Gallagher114 East 8t" StreetCincinnati, Ohio 45202513-651-5666Counsel for Appellee, Allen Honeycutt

CERTIFICATE OF SERVICE

I certify that on -^^ e t 3 .̂ ^,^• i^, a copy of Allen Honeycutt's Memorandum inResponse to Appellant's Memorandum in Support of Jurisdiction, was served via ordinary U.S.mail and e-mail to David Fornshell, Warren. County Prosecutor's Office, 500 Justice Drive,Lebanon, OH 45036.

William. R. Gallagher (0064683)

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